Canning v. U.S. Dep't of State

346 F.Supp.3d 1

George CANNING, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF STATE, Defendant.

SAE Productions, Inc., Plaintiff,

v.United States Department of State, Defendant.

Civil Action No. 13-831 (RDM)

Civil Action No. 15-1245 (RDM)

United States District Court, District of Columbia.

Signed October 24, 2018

George Canning, Leesburg, VA, pro se.

Jeffrey Steinberg Centreville, VA, pro se.

Mark Steven Zaid, Bradley Prescott Moss, Law Offices of Mark S. Zaid, P.C., Washington, DC, for Plaintiff.

James O. Bickford, Joseph Evan Borson, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This action involves two overlapping Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests for State Department records, and two lawsuits seeking to compel the Department to release those records. The first request, submitted by Plaintiffs George Canning and Jeffrey Steinberg ("the Canning Plaintiffs"), sought (1) a 2010 memorandum from the President to his foreign policy advisors, entitled "Presidential Study Directive 11" ("PSD-11"), and related records, and (2) records concerning the Muslim Brotherhood. Dkt. 72-4 at 2. That request is the subject of the litigation in Canning v. Department of State , No. 13-cv-831 ("the Canning case"). The parties to the Canning case, with leave of the Court, previously filed cross-motions for summary judgment with respect to the first category of records—records relating to PSD-11—and the Court issued an opinion resolving those motions. Canning v. Dep't of State , 134 F.Supp.3d 490 (D.D.C. 2015) (" Canning I "). The second request, submitted by SAE Productions, Inc. ("SAE"), piggybacked on the first. It referred to a news report about the Canning case and requested copies of three documents quoted in the article and all other "records that are being processed pursuant to" the Canning Plaintiffs' FOIA request. Dkt. 72-4 at 24–25. The second request is the subject of the litigation in SAE Productions, Inc. v. Department of State , No. 15-cv-1245 ("the SAE case").

Given the overlap between the Canning and SAE cases, the Court granted the State Department's motion to consolidate, see Minute Order (July 13, 2017), which the Department filed almost two years after the Court issued the Canning I opinion, Dkt. 67. After the cases were consolidated, the State Department moved for summary judgment with respect to all remaining claims in the two cases, Dkt. 74; the Canning and SAE Plaintiffs opposed that motion, Dkt. 80, Dkt. 77; and the Canning Plaintiffs also filed a cross-motion for summary judgment with respect to one document, Dkt. 79, and contested the adequacy of the State Department's response to the Canning I decision, Dkt. 49. As narrowed by the parties in their respective briefs, only the following issues remain for decision: SAE (1) contests the adequacy of the State Department's search for responsive records and (2) challenges the Department's reliance on FOIA Exemption 5 to withhold certain purportedly deliberative records, and the Canning Plaintiffs (1) challenge the Department's reliance on FOIA Exemption 1 to withhold certain purportedly classified records that were classified after they submitted their FOIA request and (2) dispute its invocation of FOIA Exemption 5 to withhold certain purportedly deliberative records.

For the reasons explained below, the Court concludes that the Department's search was adequate. With respect to those records that were classified in whole or in part after the Canning Plaintiffs submitted their FOIA request, the Court concludes that the Department has satisfied the requirements of Executive Order 13562 —which governs the processes for post-request classification of responsive records—for all but four of the withheld records. As to those four, however, the Department has not yet shown that it complied with Executive Order 13562, and thus has not shown that it properly invoked FOIA Exemption 1. With respect to the Defendant's reliance on the deliberative process privilege to withhold various records, the Court concludes, first, that the Canning Plaintiffs have failed to establish the absence of a dispute of material fact as to the one document at issue in their cross-motion for summary judgment; second, that the Department has failed to carry its similar burden as to three "draft" letters to King Abdullah of Saudi Arabia; and, finally, that the Department has carried its burden as to its remaining assertions of the deliberative process privilege. The Court will, accordingly, grant in part and deny in part the Department's motion for summary judgment and will deny the Canning Plaintiffs' cross-motion for summary judgment.

I. BACKGROUND

A. FOIA Requests

1. Canning Plaintiffs' Request

In December 2012, George Canning submitted a FOIA request to the State Department seeking four categories of records:

(1) A copy of Presidential Study Directive 11 ["PSD-11"], as issued by President Obama.

(2) Documents and other information created or compiled by the State Department which was utilized internally to the State Department and/or in submission to the President, in the creation of PSD-11.

(3) Documents and other information created or compiled by the State Department which were generated pursuant to the mandates of PSD-11.

(4) All reports created or compiled by the State Department from 2005 to [the] present, concerning contacts or interviews with, or otherwise about, individuals identified as leaders of the Muslim Brotherhood, or otherwise analyzing the Muslim Brotherhood's role in Muslim nations.

Dkt. 72-4 at 2. PSD-11 is a classified document, which Plaintiffs claim was created "for the purpose of ordering an assessment of the Muslim Brotherhood and other ‘political Islamist’ movements." Dkt. 1 at 2 (SAE Compl. ¶ 6), SAE Prods., Inc. v. Dep't of State , No. 15-cv-1245 (D.D.C.); see also Dkt. 1 at 3 (Canning Compl. ¶ 10). Jeffrey Steinberg was later added as a co-requester, and Canning and Steinberg filed suit together in June 2013 seeking to compel the Department to search for and to produce all responsive records on an expedited basis. See Dkt. 1 (Canning Compl.).

2. SAE Productions Request

In June 2014, a publication based in Dubai—Gulf News Report —published an article entitled "U.S. Document Reveals Cooperation Between Washington and Brotherhood." Dkt. 72-4 at 26. According to the article, President Obama issued PSD-11 in 2010 to obtain "an assessment of the Muslim Brotherhood and other ‘political Islamist’ movements." Id. Although observing that "PSD-11 remains classified," the article reported that, pursuant to "an ongoing ... FOIA[ ] lawsuit, thousands of pages of documentation of the ... State Department's dealings with the Muslim Brotherhood are in the process of being declassified and released to the public." Id. The article then quoted from three documents "obtained under ... FOIA": (1) "A State Department Cable" regarding an April 2012 meeting between "Mission Benghazi" and "a senior member of the Muslim Brotherhood steering committee;" (2) "Another State Department paper ... contain[ing] talking points for Deputy Secretary of State William Burns' scheduled ... meeting with [a] Muslim Brotherhood leader" and noting that, until recently, "the Muslim Brotherhood was banned for over three decades;" and, finally, (3) "An undated State Department cable" that referred to "Mohammad Swan, Chairman of [the] Justice and Construction Party." Id. at 26–27.

Shortly after the Gulf New Report article appeared, SAE submitted a FOIA request to the State Department that requested copies of the documents discussed in the article and "all ... records that are being processed pursuant to" the FOIA request mentioned in the article. Dkt. 72-4 at 24–25. The State Department has since confirmed that the only FOIA request relating to the Muslim Brotherhood that was pending before it at the relevant time was the Canning Plaintiffs' request. Dkt. 72-1 at 5 (First Stein Decl. ¶ 9); Dkt. 74-2 at 2 (Def.'s SUMF ¶ 5). The Department, accordingly, released to SAE all of the records that it had previously released to the Canning Plaintiffs. Dkt. 72-1 at 6 (First Stein Decl. ¶ 11).

B. Procedural History

Prior to consolidation of the Canning and SAE cases, the parties to the Canning case conferred and agreed to prioritize the production of records relating to PSD-11 and, with leave of the Court, filed cross-motions for partial summary judgment regarding the Department's response to that portion of the Canning Plaintiffs' request. Canning I , 134 F.Supp.3d at 497–98. While those motions were pending, the State Department continued to process and to produce records responsive to the remaining portion of the Canning Plaintiffs' request—that is, their request for records relating to the Muslim Brotherhood. Id. at 498. In the Canning I decision, the Court granted in part and denied in part the parties' competing cross-motions for partial summary judgment. The Court granted the Canning Plaintiffs' motion to the extent it sought disclosure of the portion markings that were redacted from two documents, but otherwise denied the motion. Id. at 518. The Court, moreover, denied the Department's cross-motion with respect to the withholding of records that were classified after the Canning Plaintiffs' submitted their FOIA request, but otherwise granted the motion. Id. With respect to the post-request classification of responsive documents, the Court directed the Department to supplement the record with additional information regarding the post-request classification process. Id. The Department did so, Dkt. 48, and the Canning Plaintiffs challenged the adequacy of that further submission, Dkt. 49; see also Dkt. 51 (Department's reply).

After the Court issued the Canning I decision, the parties agreed to defer entry of a further briefing schedule until the Department had completed its review and processing of potentially...