Smith v. U.S. Nat'l Archives & Records Admin., Civil Action No. 1:18-cv-2048 (TSC)

415 F.Supp.3d 85

Grant F. SMITH, Plaintiff,

v.UNITED STATES NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (NARA), Defendant.

Civil Action No. 1:18-cv-2048 (TSC)

United States District Court, District of Columbia.

Signed November 27, 2019

Grant F. Smith, Washington, DC, pro se.

Rebecca Marie Cutri-Kohart, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff Grant F. Smith, proceeding pro se , has sued Defendant U.S. National Archives and Records Administration ("NARA") seeking to compel responses to his two Freedom of Information Act ("FOIA") requests. Pending before the court are NARA's motion for summary judgment under Federal Rule of Civil Procedure 56, (ECF No. 10), and Smith's cross-motion for summary judgment, (ECF No. 13).

For the reasons set forth below, the court will GRANT Defendant's Motion for Summary Judgment and will DENY Plaintiff's Cross-Motion for Summary Judgment.

I. BACKGROUND

Smith is a public interest researcher and founder of the Institute for Research: Middle Eastern Policy, Inc. (ECF No. 1. ("Compl.") ¶ 3.) On June 29, 2018, he filed a FOIA request with the George W. Bush Presidential Library ("Bush Library") and a request with the William J. Clinton Presidential Library ("Clinton Library"). (Id. ¶ 5.) Both presidential libraries are operated by NARA. (Id. ) The requests seek letters from Presidents Bush and Clinton to Israel regarding the Nuclear Non-Proliferation Treaty. (Id. Ex. A, Ex. B.) NARA denied both FOIA requests by issuing a Glomar response, neither confirming nor denying the existence of the letters. (Id. Ex. C, Ex. D.) Smith appealed the denials on July 16, 2018. (Id. Ex. F, Ex G.) Before those appeals were processed, Smith filed this suit to compel disclosure of the requested documents. (Id. )

NARA moved for summary judgment on December 20, 2018, on the basis that the Bush Library response is unreviewable and the Clinton Library's Glomar response was proper. (ECF No. 10-1 ("Def. Br.") at 2, 6.) Smith cross-moved for summary judgment. (ECF No. 13.)

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is proper where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Waterhouse v. District of Columbia , 298 F.3d 989, 991 (D.C. Cir. 2002). Courts must view "the evidence in the light most favorable to the non-movant[ ] and draw[ ] all reasonable inferences accordingly," and determine whether a "reasonable jury could reach a verdict" in the non-movant's favor. Lopez v. Council on Am.–Islamic Relations Action Network, Inc. , 826 F.3d 492, 496 (D.C. Cir. 2016). "Where the non-moving party is proceeding pro se , courts in this jurisdiction will construe the non-moving party's filings liberally." Cunningham v. U.S. Dep't of Justice , 40 F. Supp. 3d 71, 82 (D.D.C. 2014), aff'd , No. 14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). "However, a pro se litigant still has the burden of establishing more than ‘[t]he mere existence of a scintilla of evidence’ in support of his position." Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Presidential Records Act

Congress passed the Presidential Records Act of 1978 ("PRA") in order to: (1) guarantee "public ownership of presidential records and ensure the preservation of presidential records for public access after the termination of a President's term in office" and (2) "minimize outside interference with day-to-day-operations of the President and his closest advisors and ensure executive branch control over presidential records during the President's term in office." Judicial Watch, Inc. v. Nat'l Archives and Records Admin. , 845 F. Supp. 2d 288, 296 (D.D.C. 2012) (quoting Armstrong v. Bush , 924 F.2d 282, 290 (D.C. Cir. 1991) ). The PRA delegates to the Archivist of the United States "responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President." 44 U.S.C. § 2203(f)(1). The Act also has several provisions governing restrictions on access to presidential records.

The PRA allows the President, before leaving office, to restrict access to certain categories of presidential records for up to twelve years. 44 U.S.C. § 2204(a). The President may restrict access to materials "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... in fact properly classified pursuant to such Executive order." 44 U.S.C. § 2204(a)(1).¹ During the period of restricted access, the Archivist's determinations regarding access to presidential records are immune from judicial review. 44 U.S.C. § 2204(b)(3). But "courts are accorded the power to review guidelines outlining what is, and what is not, a ‘presidential record’ under the terms of the PRA." Armstrong v. Exec. Office of the President (Armstrong II) , 1 F.3d 1274, 1290 (D.C. Cir. 1993).

C. FOIA

"FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies." Citizens for Resp. and Ethics in Wash. v. U.S. Dep't of Justice , 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster , 673 F.2d 408, 413 (D.C. Cir. 1982) ). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such "information is exempted under [one of nine] clearly delineated statutory [exemptions]." Id. (quoting Pratt , 673 F.2d at 413 ) (internal quotation marks omitted); see also 5 U.S.C. §§ 552(a) – (b).

The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The government agency bears the burden of showing that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior , 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B) ). "FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI , 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defs. of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009) ).

In FOIA cases, including those where an agency issues a Glomar² response, summary judgment may be based solely on information provided in the agency's supporting declarations. See Wolf v. CIA , 473 F.3d 370, 375 (D.C. Cir. 2007) ("Proper invocation of, and affidavit support for, either Exemption, standing alone, may justify the CIA's Glomar response."); Am. Civ. Liberties Union (ACLU) v. U.S. Dep't of Def. , 628 F.3d 612, 619 (D.C. Cir. 2011) ("An agency withholding responsive documents from a FOIA release bears the burden of proving the applicability of claimed exemptions. Typically it does so by affidavit."). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU , 628 F.3d at 619 (citations omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Id. (quoting Larson v. U.S. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) ). In order to overcome 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.D.C. 2010) (citing U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ).

An agency issuing a Glomar response is entitled to summary judgment if it shows through affidavits or declarations that "acknowledging the mere existence of the responsive records would disclose exempt information." Elec. Privacy Info. Ctr. v. NSA , 678 F.3d 926, 931 (D.C. Cir. 2012). "In Glomar cases courts may grant summary judgment on the basis of agency affidavits that contain ‘reasonable specificity of detail rather than mere conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ " Id. at 931 (quoting Gardels v. CIA , 689 F.2d 1100, 1105 (D.C.Cir.1982) ). "The supporting affidavit must justify the Glomar response based on ‘general exemption review standards established in non-Glomar cases.’ " Id. (quoting Wolf , 473 F.3d at 374–75 ).

III. ANALYSIS

A. FOIA Request to Bush Library

NARA moves for summary judgment on Smith's FOIA request to the Bush Library for an alleged letter from President Bush to Israel regarding the Nuclear Non-Proliferation Treaty. NARA argues that its Glomar response is unreviewable because President Bush's presidential records are still subject to the twelve-year restricted period under the PRA. (Def. Br. at 6–7.) Smith contends first that the requested Bush letter is not properly classified, and second, that John Laster, Director of the Presidential Materials Division at NARA, is not a proper classification authority. (ECF No. 11-1 ("Pl. Br.") at 48–52.)

Pursuant to the PRA, President George W. Bush invoked the twelve-year restriction period for his presidential records falling under § 2204(a), including for properly classified documents in the interest of national defense or foreign policy. (ECF No. 10-2 ("Laster Decl.") ¶ 13; ECF No. 16-1.) That period does not expire until January 2021. (Laster Decl. ¶ 13.) During the twelve-year restricted period,...