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

366 F.Supp.3d 592

Charles SEIFE, Plaintiff,

v.UNITED STATES DEPARTMENT OF STATE, Defendant.

1:16-cv-7140-GHW

United States District Court, S.D. New York.

Signed March 6, 2019

Charles Seife, New York, NY, pro se.

Dominika Natalia Tarczynska, Peter Max Aronoff, United States Attorney's Office, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

I. INTRODUCTION

Before the Court is the second wave of cross-motions for summary judgment in this Freedom of Information Act ("FOIA") dispute between journalist and professor of journalism Charles Seife, appearing pro se , and the United States Department of State (the "State Department"). The dispute began with two July 22, 2014 requests for various records related to press briefings given "on background" by anonymous senior agency officials. The Court assumes the parties' familiarity with the facts, legal principles, and conclusions of law set forth in the Court's prior opinion, Seife v. United States Dep't of State , 298 F.Supp.3d 592, 630 (S.D.N.Y. 2018) (the " Prior Opinion") (ECF No. 40 ). To the extent that any particular fact or legal principle articulated in the Prior Opinion bears upon the analysis here, it is embedded in this opinion, below.¹

For the reasons that follow, Plaintiff's cross-motion for summary judgment is DENIED, and the State Department's cross-motion for summary judgment is GRANTED IN PART and DENIED IN PART.

II. RECENT DEVELOPMENTS

In the wake of the Prior Opinion, the State Department released additional information to Plaintiff, and the parties engaged in very limited conferral regarding the outstanding issues. Unable to reach an accord, the parties filed a second wave of cross-motions for summary judgment, which are now ripe for adjudication.

Before the Court are three discrete issues: 1) whether the State Department's search for responsive transcripts was adequate; 2) whether the State Department properly withheld information pursuant to 5 U.S.C. § 552(B)(5) ("Exemption 5"); and 3) whether the State Department properly withheld, pursuant to 5 U.S.C. § 552(b)(6) ("Exemption 6"), the identities of the "on background" briefers who are still employed by the federal government. The Court addresses each of those questions in turn, below.²

During the course of briefing, the State Department submitted a revised Vaughn index, to which the Court refers passim (the "Revised Vaughn Index"). (ECF No. 58-1 ). Additionally, the State Department voluntarily released additional information which has limited the scope of the dispute before the Court. The voluntarily released information included the identities of the "on background" briefers previously withheld under Exemption 6, save for those briefers who are still currently employed by the federal government. To facilitate the Court's in camera review of the privacy issues related to the disclosure of the remaining briefers, the State Department also submitted the June 6, 2018 ex parte declaration of Eric F. Stein (the "ex parte Declaration") which identifies the "on background" briefers at issue.

III. REQUEST F-2014-12997

For the reasons articulated below, the Court holds that the State Department's search conducted in response to the remaining aspects of Plaintiff's FOIA request numbered F-2014-12997 ("Request 12997") was adequate in part, and inadequate in part. Accordingly, summary judgment is granted to the State Department in part, and the parties are directed to confer regarding a solution to the narrow remaining areas of dispute.

A. Standard

"[T]o establish the adequacy of a search, agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith." Grand Central P'ship v. Cuomo , 166 F.3d 473, 488-89 (2d Cir. 1999) (citation and internal quotation marks omitted). "[A]n agency's search need not be perfect, but rather need only be reasonable." Id. at 489. "[A]gency affidavits must show that the agency made a good faith effort to search for the requested documents, using methods ‘reasonably calculated’ to produce documents responsive to the FOIA request." Garcia v. U.S. Dep't of Justice, Office of Info. and Privacy , 181 F.Supp.2d 356, 366 (S.D.N.Y. 2002) (quoting Weisberg v. U.S. Dep't of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984) ); see Grand Cent. P'ship , 166 F.3d at 489. Affidavits and declarations submitted by an agency are "accorded a presumption of good faith." Carney v. U.S. Dep't of Justice , 19 F.3d 807, 812 (2d Cir. 1994).

B. Recent Developments as to Request 12997

In the Prior Opinion, the Court held that "the State Department should have interpreted the 12997 request as one for unredacted transcripts of each ‘on background’ conference, briefing, and call that took place between January 20, 2009 and July 21, 2014, regardless of whether the transcript identified by name the government official providing the briefing." Prior Opinion, 298 F.Supp.3d at 609. Subsequently, "the State Department conducted a search for any transcripts created by the State Department—both for transcripts for ‘on background’ briefings and for internal-use transcripts of Government officials' engagements with select groups of reporters in which they spoke for ‘attribution to a government official, not for individual attribution’—and produced 452 such transcripts to Plaintiff as a result of this search." Def.'s Reply (ECF No. 57 ) at 2 (citing Third Decl. of Eric F. Stein (ECF No. 50) ("3d Stein Decl.") ¶¶ 5-6, 10-11). Those 452 transcripts are the fruit of the State Department's search of "the shared drive where the stenographers who prepared the transcripts stored their files." Def.'s Br. (ECF No. 49 ) at 6. "[A]pproximately 50 [of those] transcripts ... are not currently on the Department's website." Fourth Decl. of Eric F. Stein (ECF No. 58) ("4th Stein Decl.") ¶ 10. While the State Department was not obligated to produce transcripts which were publicly available, all 452 transcripts were produced. See Prior Opinion, 298 F.Supp.3d at 610 (citing Triestman v. U.S. Dep't of Justice, Drug Enforcement Admin. , 878 F.Supp. 667, 671 (S.D.N.Y. 1995) ). There is no dispute that the search of the stenographers' shared drive was adequate to produce responsive transcripts produced by the State Department. See Pl.'s Br. (ECF No. 54 ) at 23-26.

Rather, the current dispute is as to the adequacy of the State Department's search of its employees' email accounts for material responsive to Request 12977. The genesis of the dispute is in the State Department's concern that Request 12997, as drafted, encompasses all transcripts, regardless of whether they were prepared by the State Department or not. Unlike the stenographers' shared drive, which has a high likelihood of containing all relevant transcripts prepared by the State Department, there is no centralized repository for non-State-Department-produced transcripts in the possession, custody or control of the State Department. Nor is there a centralized method by which transcripts prepared by other departments or agencies are disseminated throughout the State Department. 3d Stein Decl. ¶ 8. Instead, State Department employees acquire such transcripts through individual subscriptions to mailing lists, and otherwise on an ad hoc basis. Id. Therefore, locating all transcripts responsive to Request 12997 in the possession, custody or control of the State Department that were not prepared by the State Department, would require individual review of each of the State Department's 20,000 plus employees' data. Id. Uncontroversially, the State Department considers conducting such a search to be unduly burdensome.

On this point, Plaintiff agrees. Third Decl. of Charles Seife (ECF No. 53) ("3d Seife Decl.") ¶ 77. ("I obviously wouldn't want State to search every employees' account, so I would be happy to work with [Defendant] to limit the scope in that regard."). However, the State Department's proposed solution was to limit the scope of Request 12997 to State-Department-produced transcripts—which in practice would limit the search to only the search of the stenographer's shared drive described above. Id. ¶ 81. Plaintiff rejected that proposed limitation of Request 12997, citing his concern that that limiting the searches to transcripts prepared by the State Department would exclude transcripts of joint conferences prepared by another agency—for example "a joint State/DoD briefing whose transcript was compiled by DoD and transmitted to State" would be excluded by the State Department's proposed solution. Id. ¶ 82.

Despite Plaintiff's willingness to confer with the State Department as to document custodians and search terms, the State Department instead unilaterally implemented the following protocol. Id. ¶ 86-87. First, it adopted Plaintiff's suggestion that employees of the State Department's Bureau of Public Affairs Office of Press Relations ("PA/PRS") were the most likely to have responsive documents. 3d Stein Decl. ¶ 13. Second, the State Department identified which of its current employees were employed by PA/PRS from January 20, 2009 to July 21, 2014 (the "12997 period"). Id. The Deputy Director of PA/PRS has been employed at PA/PRS since November 6, 2011. Accordingly, she searched her email account using the search term "background briefing"—limited to the date range of November 6, 2011 to July 21, 2014. Id. ¶ 13. She only searched the "White House" folder of her email account, "because she only subscribes to White House and DoD releases and only saves transmission from the White House." Id. That search led to the production of two transcripts which were not available on the White House's archive website. Id.

The third step in the State Department's search was to locate current PA/PRS employees who were employed by PA/PRS during the portion of the 12997 period not covered by the Deputy Director's search—January 20, 2009 to November 5, 2011. Id. ¶¶ 13-14. A search of their email, using unspecified terms and...