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

128 F.Supp.3d 284

David L. Cleveland, Plaintiff,

v.United States Department of State, Defendant.

Civil Action No. 13–1627 (RBW)

United States District Court, District of Columbia.

Signed September 11, 2015

David Laundon Cleveland, Catholic Charities, Washington, DC, for Plaintiff.

Rhonda C. Fields, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

David L. Cleveland, the plaintiff in this civil matter, alleges that the defendant, the Department of State ("the State Department"), violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), by not providing to him the documents requested and by failing to process his FOIA request within the statutorily mandated twenty–day timeframe. See Complaint for Declaratory and Injunctive Relief ("Compl.") ¶¶ 16–21. Currently before the Court are the parties' cross–motions for summary judgment. See Plaintiff's Motion for Summary Judgment ("Pl.'s Mot.") at 1; Defendant's Motion for Summary Judgment ("Def.'s Mot.") at 1. After carefully considering the parties' submissions,¹ the Court concludes for the reasons stated below that it will grant the defendant's motion and deny the plaintiff's motion.

I. Background²

A. The Country Reports on Human Rights Practices for 2011–Cameroon

The plaintiff's FOIA request concerns a fifteen–page report issued by the State Department on May 24, 2012, entitled "Country Reports on Human Rights Practices for 2011–Cameroon" (the "Report"). Pl.'s Mem. at 3; see also Pl.'s Mot., Exhibit ("Ex.") 1 (the "Report"). Specifically, the plaintiff sought "a copy of all documents or electronically stored information relating to [the Report]." Pl.'s Mem., Ex. 2 (plaintiff's September 17, 2012 FOIA request, which was provided to the Court as an attachment to the complaint ("FOIA request")). The Report was prepared

using information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations, and published reports. U.S. diplomatic missions abroad prepared the initial drafts of the individual country reports, using information they gathered throughout the year from a variety of sources, including government officials, jurists, the armed forces, journalists, human rights monitors, academics, and labor activists. This information gathering can be hazardous, and U.S. Foreign Service personnel regularly go to great lengths, under trying and sometimes dangerous conditions, to investigate reports of human rights abuse.

Hackett Decl. ¶ 11. However, the Report does not cite any specific sources as support for the numerous factual assertions set forth in the Report. See Pl.'s Mem. at 3–4.

B. The Plaintiff's FOIA Request

The plaintiff submitted his initial FOIA request to the State Department on September 17, 2012. Hackett Decl. ¶ 4; Pl.'s Facts ¶ 5. In that request, the plaintiff sought "all documents or electronically stored information relating to [the Report] which was published on May 24, 2012." Hackett Decl. ¶ 4; Pl.'s Mem., Ex. 2 (FOIA request). Specifically, the plaintiff sought information regarding

who wrote the [R]eport, and what sources of information they relied upon to write it ... [, as well as] copies of all documents (including those in French and in any other language, and including emails, telegrams, electronic files, and electronic communications) regarding to or relating to the research, investigation, preparation, writing[,] and publication of this report.

Hackett Decl. ¶ 4; Pl.'s Mem., Ex. 2 (FOIA request). The plaintiff requested that the State Department

search all places and records systems, including but not limited to 1) electronic [databases] in Cameroon, in all overseas posts and in the United States; 2) paper files; 3) data compilations from which data can be obtained [to include: t]he Central Foreign Policy Records file[;] [t]he archive email folder[; c]lassified paper files[; u]nclassified paper files[; r]etired files[; r]etired file manifest[; and n]on–public documents.

Pl.'s Mem., Ex. 2 (FOIA request). The plaintiff indicated that he was willing to pay up to $50 for the responsive documents and was seeking the information "for personal use and not for commercial use." Id. He was notified on September 19, 2012, that the Office of Information Programs and Services ("IPS") "would begin processing his request based upon the information provided in his communication." Hackett Decl. ¶ 5.

On September 2, 2014, two years after the plaintiff made his FOIA request,

IPS informed the [p]laintiff that [its] searches of the agency records of the Bureau of Democracy, Human Rights and Labor, the Bureau of African Affairs, ... the U.S. Embassy in Yaoundé, Cameroon [and, per the plaintiff's request, the Central Foreign Policy Records (the "Central File") ], had been completed and resulted in [the] retrieval of [fifty–six] responsive records.

Hackett Decl. ¶¶ 8, 12–26. Of these fifty–six responsive documents, "IPS released [five] documents in full, [fourteen] documents in part, ... withheld ... [thirty–seven] documents [in full, and] advised [the p]laintiff that one document required interagency coordination." Id. ¶ 8. Ultimately, on November 20, 2014, in its Hackett Declaration, the State Department notified the plaintiff that the interagency review "had been completed and the document was released in part." Id. ¶ 9. It also provided a narrative Vaughn index.³ See id. ¶¶ 27–47. Of the fifty–one documents withheld, either in full or in part, the State Department cited 5 U.S.C. § 552(b)(5) ("Exemption 5") as its ground for withholding fifty of those documents, id. ¶¶ 27–30, 35–45, 47, and cited 5 U.S.C. § 552(b)(6) ("Exemption 6") as its ground for withholding one document, id. ¶¶ 31–34, 46.

The plaintiff contends that he is entitled to summary judgment because the State Department failed to: (1) conduct a search adequate to discover documents responsive to his FOIA request; (2) describe the responsive documents it has withheld from disclosure; (3) provide the reasons why the documents are exempt from disclosure; and (4) explain why portions of the withheld documents cannot be segregated from the exempt portions of the documents and produced to him. See generally Pl.'s Mot.; Pl.'s Mem. The State Department opposes the plaintiff's motion in all respects. See generally Def.'s Mot.; Def.'s Mem. I. As noted, the State Department also requests summary judgment, arguing that (1) it conducted adequate searches for responsive documents; (2) the documents and information not produced to plaintiff are exempt from disclosure; and (3) all reasonably segregable material has been released to the plaintiff.

II. STANDARD OF REVIEW

Courts will grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 67 F.Supp.3d 290, 297 (D.D.C.2014). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and may do so by "citing to particular parts of materials in the record, including ... affidavits or declarations," Fed.R.Civ.P. 56(c)(1)(A). "[A] dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable [factfinder] could [render a decision] for the nonmoving party" on an element of the nonmoving party's claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992). In opposing a summary judgment motion, a party may not "replace conclusory allegations of the complaint ... with conclusory allegations of an affidavit," Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), but rather must "set forth specific facts showing that there is a genuine issue [of fact]," Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotations omitted).

Courts review an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and "FOIA cases typically and appropriately are decided on motions for summary judgment," ViroPharma Inc. v. HHS, 839 F.Supp.2d 184, 189 (D.D.C.2012) (citations omitted). In a FOIA action to compel production of agency records, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.’ " Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) ).

Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are "relatively detailed and nonconclusory," Safecard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotations and citations omitted), and when they "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith," Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D....