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

134 F.Supp.3d 490

George Canning and Jeffrey Steinberg, Plaintiffs,

v.United States Department of State, Defendant.

Civil Action No. 13–831 (RDM)

United States District Court, District of Columbia.

Signed September 30, 2015

George Canning, Leesburg, VA, pro se.

Jeffrey Steinberg, Leesburg, VA, pro se.

Kyle Renee Freeny, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiffs George Canning and Jeffrey Steinberg ("Plaintiffs"), acting pro se, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552, et seq . Plaintiffs seek an order requiring Defendant United States Department of State ("the Department") to produce two groups of records: (1) a 2010 memorandum from the President to his foreign policy advisors, entitled "Presidential Study Directive 11" ("PSD–11"), and certain related documents; and (2) documents pertaining to the Muslim Brotherhood. See Dkt. 1 at 7.

The parties have cross-moved for partial summary judgment with respect to the first portion of Plaintiffs' FOIA request. Dkts. 19, 23, 35. Plaintiffs also seek in camera review of approximately ninety original documents that were withheld in full by the Department. Dkts. 22, 36. For the reasons given below, the parties' motions for partial summary judgment are GRANTED in part and DENIED in part. The Department is directed to supplement its declarations with the additional information described in this Memorandum Opinion and to disclose the portion markings on two documents that were released in part. Plaintiffs' motions for in camera review are DENIED.

I. BACKGROUND

The factual and procedural background of this case is not disputed. In December 2012, Plaintiff Canning filed a FOIA request for "certain information created and/or compiled by the Department of State, concerning Presidential Study Directive 11 (‘PSD–11’)." Dkt. 1 at 7 (Ex. A). The request sought a copy of PSD–11 itself, "[d]ocuments and other information created or compiled by the State Department which were utilized internally ..., in the creation of PSD–11," and "[d]ocuments and other information created or compiled by the State Department which were generated pursuant to the mandates of PSD–11." Id. In addition, the request sought "[a]ll reports created or compiled by the State Department from 2005 to 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." Id. Plaintiff requested a fee waiver and expedited production of responsive records. Id. at 7–9.

In January 2013, the Department acknowledged receipt of the FOIA request. See Dkt. 1 at 18 (Ex. B). The Department granted the fee waiver request but denied expedited processing. Id. at 18, 20. Plaintiff Canning filed an administrative appeal of the denial of his motion to expedite. Id. at 21–22 (Ex. C). He also asked that Plaintiff Steinberg be deemed a co-requester and permitted to join in the appeal. See id . at 22, 26. The Department upheld the denial of expedited processing. Id. at 31–32 (Ex. D). Although the record is not entirely clear on this point, the Department also apparently agreed to treat Plaintiff Steinberg as a co-requester.

In June 2013, Plaintiffs filed this action. See Dkt. 1. They seek an order compelling the Department to search for and to produce all responsive records on an expedited basis. Id. at 5–6. The parties conferred and agreed that the Department would prioritize the production of records responsive to the first portion of Plaintiffs' FOIA request, that is, the request for PSD–11 and certain related documents. See Dkt. 30 ¶ 2 (Dec. 22, 2014, Joint Status Report). At the parties' request, the Court granted the parties leave to file cross-motions for partial summary judgment with respect to the Department's satisfaction of the first portion of the FOIA request. See June 12, 2014, Minute Order; see also Dkt. 16. Although Plaintiffs agreed to narrow the scope of the second portion of the FOIA request, see Dkt. 30 ¶ 2 & n.1, the processing and production of responsive documents is still ongoing, see Dkt. 42 ¶ 1 (Aug. 24, 2015, Joint Status Report). Accordingly, issues relating to the second portion of Plaintiff's FOIA request are not presently before the Court.

In August 2014, the Department moved for partial summary judgment. See Dkt. 19.¹ It attached a declaration by John F. Hackett, Acting Director of the Office of Information Programs and Services of the United States Department of State, see Dkt. 19–2 ¶ 1 ("First Hackett Decl."), which explained that of the 144 fully processed responsive documents, 10 had been released in full, 77 had been withheld in full, and 57 had been released in part, see id. ¶ 105; see also id. ¶¶ 8, 9–13. The Hackett declaration further explained that due to a "miscommunication" some documents were "mistakenly never processed" and that 20 such documents had been "referred to other agencies with equities in the information." Id. ¶¶ 13, 31; Dkt. 19 at 12 n.3. These agencies were later identified as the Central Intelligence Agency ("CIA") and the United States Agency for International Development ("USAID"). See Second Declaration of John F. Hackett, Dkt. 25–1 ¶¶ 15, 16, 24; Third Declaration of John F. Hackett, Dkt. 27–1 ¶ 5.

In October 2014, Plaintiffs cross-moved for partial summary judgment, arguing that the Department improperly withheld PSD–11 and other responsive documents in whole or part and that the Department had failed to release or account for other responsive documents. See Dkt. 23 at 1–2. In addition, Plaintiffs moved for in camera review of the classification markings on approximately 90 original documents, including PSD–11, withheld under Exemption 1. See Dkt. 22 at 1–2.

On November 14, 2014, the Department submitted a second declaration accounting for 17 of the 20 outstanding responsive documents. See Dkt. 25–1. It explained that these documents were "prepared by the CIA," had been referred to that agency for review, and were withheld in full under FOIA Exemption 1 as "relat[ing] directly to intelligence activities, sources, or methods." See id. ¶ 24. The declaration also addressed several issues raised in Plaintiffs' motion for summary judgment. See id. ¶ 5–14. A few days later, the Department submitted a third declaration describing the last three outstanding responsive documents, which had been referred to USAID. See Dkt. 27–1 ¶ 5. Two of the USAID documents were released in full. Id. The Department redacted the third document, withholding "the names and identifying details" of "certain local organizations that have received U.S. support." Dkt. 27–1 ¶ 6. At that point, the Department stated that it had "produced or Vaughned all information" responsive to the first portion of Plaintiffs' FOIA request. See Dkt. 27 at 3.

In December 2014, Plaintiffs filed a second motion for partial summary judgment addressing the 20 documents referred to the CIA and USAID. See Dkt. 35. Plaintiffs also filed a second motion for in camera review, again seeking review of the classification markings on the documents withheld in full under Exemption 1, and in addition, seeking in camera review of the contents of PSD–11. See Dkt. 36 at 1–2.

After the pending motions were fully briefed, the parties jointly notified the Court that the Department had obtained the emails of former Secretary of State Hillary Clinton and certain other former State Department employees (collectively, "the Clinton emails").² The parties have agreed that the Department will search the Clinton emails for documents responsive to both portions of Plaintiff's request. See Dkt. 42. The parties have also agreed that the additional search of the Clinton emails does not pose any barrier to resolution of the pending motions. See Dkt. 40. The parties confirmed this position at the September 21, 2015, status conference. Accordingly, the Court resolves the pending motions on the understanding that issues relating to the search of the Clinton emails and any additional responsive documents identified in that search can be addressed at a later date.

II. LEGAL STANDARD

The Freedom of Information Act is premised on the notion that "an informed citizenry" is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (citation omitted). The Act requires federal agencies to produce agency records upon public request unless the information requested falls within one of nine enumerated exemptions. 5 U.S.C. §§ 552(a)(3) & (b). Of relevance here are Exemption 1, which covers "matters that are ... specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order," id. § 552(b)(1) ; Exemption 5, which covers "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," id. § 552(b)(5) ; and Exemption 6, which covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," id. § 552(b)(6). The Court reviews the agency's application of FOIA exemptions de novo, and the agency bears the burden of sustaining its action. Id. § 552(a)(4)(B).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Beltranena v. U.S. Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C.2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to...