Canning v. United States Department of State ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEORGE CANNING, et al.,
Plaintiffs,
v.
Civil Action No. 13-831 (RDM)
UNITED STATES DEPARTMENT OF
STATE,
Defendant.
SAE PRODUCTIONS, INC.,
Plaintiff,
v.
Civil Action No. 15-1245 (RDM)
UNITED STATES DEPARTMENT OF
STATE,
Defendant.
MEMORANDUM OPINION AND ORDER
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.
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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.
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(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
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. . . 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
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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 responsive records, Dkt. 53, and the parties engaged in extended negotiation
regarding the terms and scope of the search, Dkts. 55–65. After agreeing that the Department’s
search was adequate and narrowing their disagreement regarding the relevant withholdings, the
parties jointly proposed a schedule for briefing the remaining issues. Dkt. 66 at 2.
Shortly before the Court issued the Canning I decision, SAE brought its own FOIA
action. SAE Prods., Inc. v. Dep’t of State, No. 15-cv-1245 (D.D.C. filed June 4, 2013). That
action was assigned to Judge Chutkan and proceeded along a parallel schedule for over two
years. Over that time, SAE withdrew its request for PSD-11, Minute Order (Nov. 30, 2015),
SAE Prods., No. 15-cv-1245, and the Department made several productions. See, e.g., id.,
Minute Order (Jan. 5, 2016), SAE Prods., No. 15-cv-1245, Minute Order (April 18, 2016), SAE
Prods., No. 15-cv-1245, Minute Order (Aug. 25, 2016), SAE Prods., No. 15-cv-1245.
Eventually, SAE and the Department proposed that Judge Chutkan adopt the same briefing
schedule set in the Canning case, and the State Department indicated that it intended “to move
shortly to consolidate [the SAE] case with Canning.” Dkt. 24 at 2, SAE Prods., No. 15-cv-1245.
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The Department subsequently moved to consolidate, Dkt. 25, SAE Prods., No. 15-cv-1245, and
neither SAE, Dkt. 26, SAE Prods., No. 15-cv-1245, nor the Canning Plaintiffs opposed that
motion, Dkt 67. The Court, accordingly, consolidated the cases and set a revised briefing
schedule. Minute Order (Sept. 27, 2017). The State Department has now moved for summary
judgment in both cases, Dkt. 74; the Canning Plaintiffs and SAE have opposed that motion, Dkt.
80, Dkt. 77; and the Canning Plaintiffs have cross-moved for partial summary judgment with
respect to a single document, Dkt. 79.
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 . . . [and] 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 (1978). The Act embodies a “general philosophy of full agency disclosure.”
U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on
request unless they fall within one of nine exemptions. See 5 U.S.C. § 552(b). “These
exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t
of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1973), then
quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See 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 judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). An agency may meet this
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burden by submitting “relatively detailed and non-conclusory” affidavits or declarations,
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the
information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973); Summers v.
Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An 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 [FOIA’s]
inspection requirements.’” Students Against Genocide v. 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)). The Court reviews the
agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C.
§ 552(a)(4)(B).
III. ANALYSIS
A. Adequacy of the Search
As noted above, the Canning Plaintiffs do not contest the adequacy of the Department’s
search. Dkt. 66 at 1 (Joint Status Report ¶ 3). Although SAE does not challenge the adequacy of
the Department’s search for the second category of records it seeks—that is, “copies of
documents processed pursuant to” the Canning Plaintiffs’ FOIA request—it does argue that the
Department has failed to carry its burden of showing that it conducted a reasonable search for the
first category of records—that is, copies of the documents identified in the Gulf News Report
article. Dkt. 77 at 8. According to SAE, the Department has not indicated which search terms
and timeframe it used and has not explained why it searched only a single database, the
“FREEDOMS 2” or “F2” database. Id. In short, according to SAE, the Department has not
offered “even a scintilla of information” regarding the search. Id. As explained below, this
contention is belied by the record.
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An agency fulfills its obligations under FOIA to conduct an adequate search “if it can
demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.
1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The agency “cannot
limit its search to only one record system if there are others that are likely to turn up the
information requested,” but, at the same time, it need not “search every record system.” Oglesby
v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Similarly, the agency need not deploy
every conceivable search term or permit the FOIA requester to dictate the search terms in the
course of litigation, but it must use terms reasonably calculated to locate responsive records.
Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 339 (D.D.C. 2015). To
prevail on summary judgment, the agency must submit declarations that “‘denote which files
were searched,’ [and] by whom those files were searched, and [that] reflect a ‘systematic
approach to document location.’” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d
137, 144 (D.D.C. 2015) (quoting Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir.
1980)); see also Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C.
Cir. 2006); Oglesby, 920 F.2d at 68. Those declarations “are accorded a presumption of good
faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). But where “a review of the
record raises substantial doubt, particularly in view of ‘well defined requests and positive
indications of overlooked materials,’ summary judgment is inappropriate.” Valencia-Lucena,
180 F.3d at 326 (citation omitted).
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The State Department relies on two declarations from Eric Stein, the Director of the
Department’s Office of Information Programs and Services (“IPS”), in support of its contention
that it conducted an adequate search for the records identified in the Gulf News Report article.
See Dkt. 72-1 (First Stein Decl.); Dkt. 81-1 (Second Stein Decl.). In the first, Stein attests that
the IPS Branch Chief for Litigation and Appeals reviewed SAE’s FOIA request for “copies of all
the State Department documents and records identified in [the] June 18, 2014 Gulf News
Report” and “determined that the only FOIA lawsuit against the Department concerning the
Muslim Brotherhood was the suit filed by Plaintiffs Canning and Steinberg.” Dkt. 72-1 at 5
(First Stein Decl. ¶ 9). Based on this assessment, which SAE does not dispute, the Branch Chief
searched the “F2” database “using information quoted in” the “Gulf News Report article cited in
SAE’s request,” and she “located the documents described in the article.” Dkt. 72-1 at 5 (First
Stein Decl. ¶ 9). The second Stein declaration further attests that the IPS Branch Chief used
search terms derived from the Gulf News Report article’s quotations from the documents SAE
sought, which included “Mission Benghazi,” “banned for over three decades,” and “Chairman of
Justice and Construction Party.” Dkt. 81-1 at 3–4 (Second Stein Decl. ¶ 5). Taken together, the
Department maintains, these declarations demonstrate that the search was adequate. Dkt. 81 at 6.
SAE raises a number of questions regarding the adequacy of the searches—but each is
readily answered, and none of those answers suggest that the Department’s search was
inadequate.
First, SAE asks: what search terms did the Department use? The answer to that question
is straightforward. SAE sought three documents, each of which was quoted in the Gulf News
Report article. So, the Department took a distinctive phrase from each of the three quoted
passages—“Mission Benghazi,” “banned for over three decades,” and “Chairman of Justice and
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Construction Party”—and searched for that phrase. Dkt. 81-1 at 3–4 (Second Stein Decl. ¶ 5).
That search process, moreover, proved successful. Each of the phrases “located” a document
that contained “the same language quoted in the article,” and, as SAE’s request posited, each of
those documents was among the records “previously produced to [the Canning Plaintiffs] in
response to” their FOIA request. Id. To the extent this process might have left any doubt about
whether the Department found the exact documents that SAE sought, Exhibit 2 to the Second
Stein declaration puts that doubt to rest. That exhibit compares the language quoted in the Gulf
News Report article to the language appearing in the documents that the Department released to
SAE, and it shows that the same—extended—quotes appear in both. Indeed, the punctuation and
capitalization are identical, and, where the Gulf News Report article varied slightly from one of
the documents, the author used brackets to reflect that minor variance. Dkt. 81-3 at 1–2 (Second
Stein Decl.) (Ex. 2).
Second, SAE asks: what timeframe did the Department use for purposes of its search?
Here, too, the record provides an answer. SAE requested copies of the three documents quoted
in the Gulf News Report article, all three of which, according to SAE, the Department had
previously released to the Canning Plaintiffs. According to the Stein declaration, the
Department located and produced to SAE “all material that had been previously released in
Canning, et al. v. State, 13-cv-831.” Dkt. 72-1 at 6 (First Stein Decl. ¶ 11). There was no reason
for the Department to search for records created after its earlier release of records to the Canning
Plaintiffs—or after publication of the Gulf News Report article—and the record clearly
establishes that the Department not only searched for, but located, the records from the relevant
timeframe.
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Finally, SAE asks: why did the Department search only one database, the “FREEDOMS
2” or “F2” database? The Second Stein declaration answers this question as well: “F2 is the
database in which the Department maintains documents released in response to FOIA requests.”
Dkt. 81-1 at 3 (Second Stein Decl. ¶ 4). Because SAE sought records that the Department had
released in response to a prior FOIA request, this was the obvious place to search. As explained
in the Second Stein declaration, the search was “reasonably calculated to uncover all relevant
documents” responsive to SAE’s request. Valencia-Lucena, 180 F.3d at 325 (quoting Truitt, 897
F.2d at 542). FOIA requires nothing more.
The Court thus concludes that the Department’s search for records responsive to SAE’s
FOIA request was adequate and that the Department, accordingly, is entitled to summary
judgment on this issue.
B. Withholdings
Both the Canning Plaintiffs and SAE contend that the Department has failed to carry its
burden with respect to a handful of withholdings. The Canning Plaintiffs oppose the
Department’s motion for summary judgment, arguing that the Department has not shown (1) that
certain records withheld under Exemption 1 (including records addressed in Canning I) were
properly classified under the post-request standard for classification; (2) that a handful of other
documents withheld under Exemption 1 that are marked “unclassified” are, in fact, classified;
and (3) that three documents withheld under Exemption 5 are, in fact, deliberative. With respect
to one of those three documents, moreover, the Canning Plaintiffs go a step further and argue
that they have carried their burden of showing that the document is not deliberative and that it
therefore must be released. SAE, for its part, raises only a general challenge to the Department’s
withholdings. It argues that the Department has failed to provide sufficient detail—either in its
Vaughn index or elsewhere—to permit the Court to determine whether the thirty-eight
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documents withheld as deliberative under Exemption 5 are, in fact, deliberative. The Court
holds (1) that the Department has not yet justified its use of post-request classification to
withhold four documents; (2) that it has not yet justified its use of the deliberative process
privilege to withhold three additional documents; but (3) that the Department has otherwise
carried its burden.
1. Exemption 1
FOIA Exemption 1 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.” 5 U.S.C.
§ 552(b)(1). Executive Order 13526 (“EO 13526”), 75 Fed. Reg. 707 (Dec. 29, 2009), in turn,
establishes procedural and substantive requirements for classification of national security
information. As relevant here, Executive Order 13526 authorizes the classification of
information pertaining to “foreign relations or foreign activities of the United States, including
confidential sources,” when the “unauthorized disclosure” of such information “could reasonably
be expected to cause identifiable or describable damage to the national security.” EO 13526
§ 1.4(d); see id. § 1.2.
The Canning Plaintiffs challenge the withholding of documents, or portions thereof, that
were classified after they submitted their FOIA request. As the Court explained in Canning I, if
documents are “‘classified after the relevant FOIA request was submitted,’ the Department must
show that ‘the agency satisfied the requirements of [Executive Order 13526] § 1.7(d).’” Canning
I, 134 F. Supp. 3d at 506 (quoting Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 167
(D.D.C. 2013)). That section provides in relevant part:
Information that has not previously been disclosed to the public under proper
authority may be classified . . . after an agency has received a request for it
under the Freedom of Information Act . . . only if such classification meets the
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requirements of this order and is accomplished on a document-by-document
basis with the personal participation or under the direction of the agency head,
the deputy agency head, or the senior agency official designated under
[S]ection 5.4 of this order.
EO 13526 § 1.7(d) (emphasis added).
The following principles, accordingly, must guide the Court’s consideration. First, FOIA
Exemption 1 applies only to records that have been “properly classified” pursuant to the
governing Executive Order. 5 U.S.C. § 552(b)(1). Second, with respect to records that are
classified after the agency receives a FOIA request, Executive Order 13526 permits
classification only if three conditions are satisfied: (1) the records must otherwise meet the
requirements for classification, (2) the classification must be “accomplished on a document-by-
document basis,” and (3) that review must occur either (a) “with the personal participation” of
“the agency head, the deputy agency head, or the senior agency official designated under” the
Executive Order or (b) “under the direction” of one of those three officials. EO 13526 § 1.7(d).
Third, and inherent in the prior principle and the structure of the Executive Order, an agency may
not unreservedly delegate that post-request review responsibility to any other official; rather, for
reasons that the Court has previously explained, one of the three officials identified in Executive
Order 13526 must either personally participate in the review or the review must take place
“under [his or her] direction.” Canning I, 134 F. Supp. 3d at 507–08.
The description of these principles is straightforward; their application is more
challenging. In responding to the Canning Plaintiffs’ first three FOIA requests, which were also
at issue in Canning I, the Department classified, upgraded, or clarified the classification of ten
documents pursuant to Section 1.7(d). See 134 F. Supp. 3d at 506 & n.5. And in responding to
their fourth request, which seeks records relating to the Muslim Brotherhood, the Department
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classified fifty-four documents, in whole or in part, pursuant to Section 1.7(d).1 Dkt. 81-1 at 4
(Second Stein Decl. ¶ 6). All but four of these documents were reviewed and classified by
Margaret Grafeld, who at the time served as the Deputy Assistant Secretary for Global
Information Services, and the remaining four documents were reviewed and classified by Eric
Stein, who currently serves as the State Department’s Director of the Office of Information
Program and Services. Id. at 1, 4–5 (Second Stein Decl. ¶¶ 1, 6, 8). The uncontroverted
evidence further shows that Grafeld and Stein reviewed and classified the relevant records on a
document-by-document basis, see Dkt. 48-1 at 2 (Grafeld Decl. ¶ 3); Dkt. 72-1 at 10–11 (First
Stein Decl. ¶ 30), as required by the Executive Order, see EO 13526 § 1.7(d).
Although the Canning Plaintiffs acknowledge that this evidence “satisfies the Court’s
requirement for a showing [that] the classifier reviewed each document,” Dkt. 80 at 15, fulfilling
the requirement that review be conducted on a document-by-document basis, they raise three
challenges to the Department’s withholding of the records based on its post-request classification
decisions. The Court will address each challenge in turn.
a. Explanation of Reasons for Classifying the Records
The Canning Plaintiffs first argue that the Department was required to do more “to
explain the reasons” why it decided to classify “previously-unclassified information.” Dkt. 49 at
4; Dkt. 80 at 11. In pressing this argument, however, they conflate the well-established
requirement that an agency seeking summary judgment in a FOIA action must proffer
declarations or other evidence “describ[ing] the justifications for nondisclosure with reasonably
specific detail,” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009), and a new
1
The Canning Plaintiffs do not challenge the Department’s decision to withhold four of these
documents: C05619421, C05619422, C05619424, and C05655960. Dkt. 81-1 at 5 (Second Stein
Decl. ¶ 6 n.4); Dkt. 80 at 11.
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requirement, which they would have the Court add, that an agency that classifies records after a
FOIA request is submitted must explain “the timing of the decision[], that is, ‘what changed’ to
justify classification of previously unclassified documents.” Canning I, 134 F. Supp. 3d at 507;
see also Dkt. 49 at 4 (reasserting argument “notwithstanding the Court’s disagreement”).
There can be no dispute that the Department satisfied the first of these requirements. As
to each post-request classification decision, the Department explains with “reasonably specific
detail” the basis for decision in its Vaughn index. See Dkt. 81-2 at 5–8, 11, 13–14, 17–24, 29–
47, 49, 51. To take just one example, the Department explains that it “classified portions of [a]
document that were originally UNCLASSIFIED as CONFIDENTIAL” because those portions of
the document “contain[] sensitive details regarding the security situation in Libya and Egypt,”
which were “provided by a foreign government in confidence,” and because the Department’s
“[r]elease of the . . . information . . . would cause foreign officials to believe that U.S. officials
are not able or willing to observe the confidentiality expected in such interchanges.” Id. at 5.
Given the deference that courts must accord to judgments made by the Executive Branch on
issues of national security and foreign policy, see, e.g., Ctr. for Nat’l Sec. Studies v. Dep’t of
Justice, 331 F.3d 918, 926–27 (D.C. Cir. 2003), this description, and the other, similar
descriptions contained in the Vaughn index, are sufficient to show that the withheld information
“logically fall[s] within” Exemption 1, Larson, 565 F.3d at 401.
There is no support, moreover, for the Canning Plaintiffs’ contention that FOIA or
Executive Order 13526 imposes the further requirement that, if an agency does not classify a
record until after it receives a FOIA request, the agency must not only explain the basis for its
classification decision but must also explain “what changed.” Dkt. 49 at 4. Plaintiffs do not cite
any relevant authority in support of this contention, and nothing in the text of Section 1.7(d) of
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the Executive Order supports their position. With respect to the substance of the classification
decision, the Executive Order mandates that the record meet “the requirements” for
classification, EO 13526 § 1.7(d), and those requirements include a finding that “disclosure
could reasonably be expected to cause identifiable or describable damage to,” id. § 1.4, the
“national defense or foreign relations of the United States,” id. § 6.1 (cc). Given this mandate, it
is appropriate to put the classifying agency to the test of explaining—in general terms—how
disclosure could harm the national security interests of the United States. Once the agency does
so, however, it is shown that the record at issue was “properly classified pursuant to [the]
Executive Order,” 5 U.S.C. § 552(b)(1), and FOIA requires nothing more.
b. “Ambiguously Marked” Documents
The Canning Plaintiffs also argue that certain documents were improperly withheld under
Exemption 1 because they contain ambiguous markings. See Dkt. 80 at 22. According to the
Canning Plaintiffs, this poses two problems. First, it casts doubt on the Department’s claim that
the redacted material is, in fact, classified. Second, it raises the possibility that the records
continue to reside in the Department’s general files without classification markings and that, as a
result, the records are classified only as to Plaintiffs. Id. at 23. As a review of the relevant
records reveals, however, neither argument is persuasive.
The Canning Plaintiffs identify five documents that they contend have “ambiguous
markings”: C05475518, C05475530, C05475549, C05475562, C05575691, and C05619429.
Dkt. 80-1 at 3–4 (Fourth Canning Decl. ¶ 5). Each of those documents, however, bears a
heading indicating that it is classified at either the “CONFIDENTIAL” or “SECRET” level. Id.
at 3 (Fourth Canning Decl. ¶ 5) (explaining that “each bear a notation indicating they had been
classified by the Deputy Assistant Secretary of State, Global Information Service”); id. at 13–46
17
(Exs. B–K). The Vaughn index, moreover, explains that “the Department classified portions of
the document that were originally UNCLASSIFIED.” See, e.g., Dkt. 81-2 at 5 (C05475518); see
also id. at 8 (C05475530), 13 (C05475549), 14 (C05475562), 32 (C05595691),2 33
(C05619429). In short, there is no meaningful ambiguity.
Plaintiffs’ disagreement is based on surviving “UNCLASSIFIED” or “SBU” portion
marking, but those markings must be understood in light of the “CLASSIFIED” headers and the
Vaughn index. Although the Department might reasonably have crossed out the surviving
markings and added new portion markings, there is no question that the redacted portions have,
in fact, been designated as classified. Similarly, there is no question that, if a State Department
employee were to review any of these documents, that employee would understand that the
document is classified. Finally, there is no basis to infer that the Department maintains these
classified records in general files that are accessible by employees or others without the requisite
security clearance, and there is no reason to conclude that, even if they did, the documents would
have lost their status as classified records under Executive Order 13526.
c. Post-Request Authority to Classify
Finally, the Canning Plaintiffs argue that the Department has failed to carry its burden of
showing that it complied with the “personal-participation or under-the-direction-of” requirement
of Section 1.7(d), both with respect to its original ten Section 1.7(d) withholdings and fifty of its
2
The Fourth Canning declaration identifies this document as “C05575691,” Dkt. 80-1 at 3–4
(Fourth Canning Decl. ¶ 5), but the document Plaintiffs attach to the declaration—and which
number corresponds to the correct Vaughn entry—is Document “C05595691,” see id. at 26–30;
Dkt. 81-2 at 33–34. It is unclear whether the attached document is the document that the
Canning Plaintiffs intend to rely upon, and the heading is cut-off in the version filed with the
Court. The Vaughn index, moreover, uses a slightly different locution in discussing this
document, noting simply that the record was classified in part after the Department received the
Canning Plaintiffs’ FOIA request. If Plaintiffs, in fact, have a different document in mind, they
may renew their motion with respect to that document as appropriate.
18
subsequent Section 1.7(d) withholdings. As explained below, the Court concludes that the
Department has satisfied its burden with respect to all but four of the withheld records.
Under the Executive Order, an agency may classify documents after receiving a FOIA
request only “with the personal participation or under the direction of the agency head, the
deputy agency head, or the senior agency official designated under [S]ection 5.4 of th[e]
[Executive] [O]rder.” EO 13526 § 1.7(d). The senior State Department official designated
under Section 5.4 is the Under Secretary of State for Management. See 22 C.F.R. § 9.3. For
present purposes, all agree that neither the Secretary or Deputy Secretary of State nor the Under
Secretary for Management personally participated in the Section 1.7(d) review, and all agree that
the review did not take place “under the direction of” the Secretary or Deputy Secretary of State.
The question, accordingly, comes down to whether the post-request review occurred “under the
direction of” the Under Secretary.
Two Department of State “notices” issued by the Under Secretary for Management speak
to this issue. The first, which was in effect at the time Deputy Assistant Secretary Grafeld
conducted her review, “authorize[d] and direct[ed] the Deputy Assistant Secretary for Records
and Publishing Services . . . to be the official to classify information on a document-by-document
basis consistent with the circumstances and procedures described in” the relevant Executive
Order, and provided that “[t]he Deputy Assistant Secretary shall act under the direction of the
Under Secretary for Management and shall keep [him] apprised of actions taken under this
authority.” 64 Fed. Reg. 7227 (Feb. 12, 1999). The second, which was in effect at the time IPS
Director Stein conducted his review, “authorize[s] and direct[s] the Deputy Assistant Secretary
. . . and the Director of Information Programs and Services . . . to classify or reclassify
information consistent with the circumstances and procedures described in [S]ection 1.7(d) of
19
E.O. 13526,” and provides that “this authority shall be exercised on a document-by-document
basis only as to information that has not been previously released to the public under proper
authority, and only if such classification meets the requirements of E.O. 13526.” 81 Fed. Reg.
15605 (Mar. 23, 2016). The second notice omits the requirement that the Under Secretary be
kept “apprised of actions taken,” 64 Fed. Reg. at 7227, but does specify that “[t]he official
exercising [the Section 1.7(d)] authority shall do so under the direction of the Under Secretary
for Management,” 81 Fed. Reg. at 15605.
When the Court last considered whether Grafeld’s document-by-document review
satisfied the under-the-direction-of standard, it concluded that the 1999 notice was facially
consistent with the requirements of Section 1.7(d); the notice required that the official engaged in
the document-by-document review exercise the assigned authority “under the direction of . . . the
Under Secretary” and that she keep the Under Secretary “apprised of actions taken under” the
assigned “authority.” Canning I, 134 F. Supp. 3d at 507 (quoting 64 Fed. Reg. at 7227). The
Court now reaffirms that conclusion and further concludes that the 2016 notice is also facially
consistent with the Executive Order; although it omits the express duty to keep the Under
Secretary apprised of the classification actions taken, it maintains the core requirement that the
official engaged in the document-by-document review act “under the direction of the Under
Secretary for Management,” which is precisely what the Executive Order requires. 81 Fed. Reg.
at 15605.
That, however, answers only part of the question. As the Court also explained in
Canning I, more than facial consistency is required; it is not enough, in short, simply to say that
the reviewing official “shall” exercise her authority “under the direction of the Under Secretary.”
See 134 F. Supp. 3d at 507–08. The process must also be structured or implemented in a way
20
that provides an “opportunity for actual oversight by the Under Secretary” because, absent such
an opportunity, the under-the-direction-of requirement would be rendered obsolete: “[T]here
would be no meaningful difference between acting at the Under Secretary’s direction and acting
pursuant to [an unconstrained] delegation of his authority.” Id. at 508. Given that “§ 1.7(d)
limits post-request classification authority in order . . . to ensure that a senior government official
takes responsibility for intervening classification decisions that thwart otherwise valid FOIA
requests,” such a wholesale delegation of responsibility would contravene the purposes of the
Executive Order’s limits. Id. at 506. To be clear, this does not mean that the Under Secretary
must review and approve each decision. Rather, one acts under the “direction” of another if she
is subject to that person’s “guidance[,] supervision,” Merriam Webster’s Collegiate Dictionary
328 (10th ed. 1996), or “management,” The New Oxford American Dictionary 479 (2d ed.
2005).3 It is not the Court’s role to micromanage how the Under Secretary—or any other senior
official designated under the Executive Order—guides, supervises, or manages the review
process. But, because the Executive Order requires that the document-by-document review
occur “with the personal participation of, or under the direction of, the agency head, the deputy
agency head,” or designated official (here, the Under Secretary), EO 13526 § 1.7(d), the Court
3
It is not uncommon for a statute or rule to require that a government official “direct” the
activities of other officials, although each context is unique. All “litigation in which the United
States . . . is a party,” for example, is conducted “under the direction of the Attorney General.”
28 U.S.C. § 516; see also id. § 519 (supervision of litigation). To perform this function, the
Attorney General issues guidance and sets policy relating to that litigation, see Justice Manual,
https://www.justice.gov/jm/justice-manual (last visited Oct. 23, 2018), and he relies on
delegations to other department officials, see, e.g., 28 C.F.R. § 0.45 (functions of Assistant
Attorney General for the Civil Division). Here, as the Court has previously explained, Canning
I, 134 F. Supp. 3d at 506, however, the structure and language of the Executive Order preclude a
wholesale delegation of authority, and, unlike the Attorney General, the Under Secretary has not
issued any guidance to the reviewing officials (beyond the guidance that appears in the Executive
Order itself) regarding the exercise of their responsibilities.
21
must ensure that responsibility for the review is not simply reassigned in its entirety to the
Deputy Assistant Secretary or the IPS Director. In short, the Under Secretary is free to decide
how he will guide, supervise, or manage the review process, but the Court must decide whether
he has done so.
The Court starts with the slice of Canning I that remains for decision. In that opinion, the
Court observed that, in the then-controlling notice, the Under Secretary “direct[ed]” that Grafeld
conduct the required document-by-document review “under [the Under Secretary’s] direction”
and that she “keep [him] apprised of actions taken under this authority.” 134 F. Supp. 3d at 507
(quoting 64 Fed. Reg. at 7227). Although that process was, in the abstract, sufficient, the Court
could not enter summary judgment in favor of the Department because the record did not reveal
whether the contemplated process was, in fact, followed. Id. at 507–08. The Court, accordingly,
provided the Department with sixty days to “submit additional declarations confirming that
Grafel previously reviewed—or has now reviewed—each document classified in accordance
with § 1.7(d) and that she previously apprised—or has now apprised—the Under Secretary of her
decisions.” Id. at 508.
Consistent with the Court’s order, the Department has now submitted a declaration from
Grafeld attesting that she personally reviewed each of the documents at issue and determined that
each document satisfied the requirements for classification under the Executive Order, Dkt. 48-1
at 2–3 (Grafeld Decl. ¶ 3), and that she has “apprised Under Secretary for Management Patrick
Kennedy of [her] decision to classify the [specific] documents [at issue] in accordance with
§ 1.7(d) of Executive Order 13526,” id. at 3 (Grafeld Decl. ¶ 4). That declaration addresses the
Court’s remaining question, and it establishes that the review of these particular documents was,
as contemplated by the February 1999 notice, conducted under the direction of the Under
22
Secretary. Although not the only means by which a senior official might guide, supervise, or
manage another official, by “appris[ing]” the Under Secretary of her decisions, Grafeld provided
the Under Secretary with “some opportunity for actual oversight,” Canning I, 134 F. Supp. 3d at
508. That opportunity, when combined with the “direct[ion]” to conduct a review “on a
document-by-document basis consistent with the” requirements specified in the Executive Order,
is sufficient to show that the review was conducted “under the direction of” the Under Secretary.
81 Fed. Reg. at 15605.
The Canning Plaintiffs disagree, arguing that the Grafeld declaration is inadequate
because it does not explain how Grafeld apprised the Under Secretary of her determinations,
does not identify what information she provided him, and does not indicate whether the Under
Secretary concurred in her determinations. Dkt. 49 at 2. Nothing in the Executive Order or in
the concept of “direction,” however, requires either that level of detail or the affirmative
concurrence of the Under Secretary. Here, moreover, Grafeld has identified the substance of her
apprisal: in her declaration, she pinpoints the specific documents at issue and reports that she
apprised the Under Secretary of her decision to classify those specific documents in accordance
with § 1.7(d) of Executive Order 13526. Dkt. 48-1 at 3 (Grafeld Decl. ¶ 4). The Under
Secretary directed that Grafeld conduct the review, told her to do so in compliance with the
Executive Order, and had “some opportunity for actual oversight,” Canning I, 134 F. Supp. 3d at
508, because he was “apprised of actions taken under” his direction. Dkt. 48-1 at 3 (Grafeld
Decl. ¶ 4). This process may lie at the edge of any reasonable understanding of what constitutes
guidance, supervision, or management. But, as the Supreme Court has cautioned in a different
context, absent clear constraints or compelling circumstances, agencies should be left free to
fashion their own rules and procedures in the discharge of their responsibilities. Vt. Yankee
23
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543 (1978). Because nothing in the Executive
Order precludes the approach the Department applied, and because that approach ensures that the
Under Secretary bears ultimate responsibility for the classification decisions, the Court concludes
that the Department has carried its burden with respect to the records at issue in Canning I.
That same conclusion also applies to the additional records that Grafeld reviewed and
classified or reclassified after the Canning Plaintiffs submitted their FOIA request. As Stein now
attests, those records were reviewed pursuant to the same notice from the Under Secretary;
Grafeld reviewed each document; and she apprised the Under Secretary of her determinations “in
a biannual report.” Dkt. 81-1 at 5 (Second Stein Decl. ¶ 7). Again, the Under Secretary
acknowledged that Grafeld was acting “under his direction,” and he had the opportunity to
disagree with her actions when he was “apprised” of her decisions. That is enough.
The Court is not convinced, however, that the Department has carried its burden with
respect to the four records that Stein reviewed pursuant to the March 23, 2016 notice. Id. at 4–5
(Second Stein Decl. ¶¶ 6, 8). As noted above, the Department has narrowly carried its burden
with respect to the records that Grafeld reviewed. What pushed the Department’s showing over
the line was the evidence that Grafeld “personally reviewed” each of the documents; that the
Under Secretary was apprised of Grafeld’s decision to classify those specific documents “in
accordance with § 1.7(d) of Executive Order 13526,” Dkt. 48-1 at 3 (Grafeld Decl. ¶ 4); and that
the Under Secretary had the opportunity to disagree or otherwise guide the process. With respect
to the remaining four records, however, Stein merely asserts that he “will apprise the Under
Secretary for Management of [his] actions in the next biannual report.” Id. (Second Stein Decl. ¶
8) (emphasis added). There is no evidence that the Under Secretary was aware that the four
records were subject to reclassification; there is no evidence that he had the opportunity to
24
express a contrary view; and there is no evidence he guided, managed, or supervised Stein’s
review in any way, beyond merely assigning the review responsibility to him.
In focusing on whether the Under Secretary was apprised of Stein’s determinations, the
Court does not mean to suggest that apprisal and an opportunity to weigh in is the only way to
satisfy the under-the-direction-of requirement. As noted above, judges need to avoid injecting
themselves “into day-to-day agency management.” Norton v. S. Utah Wilderness All., 542 U.S.
55, 66–67 (2004). The problem, however, is that “direction” requires something more than an
unconstrained delegation, and the only something that the Department has identified is the
apprisal process. Without that—or something else—all the Department has is a notice that says,
“perform the review required by the Executive Order under my direction,” with no guidance,
supervision, or management. Such a bare reassignment of authority cannot be squared with the
manifest intent of the Executive Order to require “participation” or “direction” by the agency
head, deputy agency head, or designated “senior agency official.” EO 13526, § 1.7(d). Absent
some indicia of “participation” or “direction” by one of these senior Department officials, EO
13526 § 1.7(d), the Court cannot conclude that a post-request classification determination was
“properly” made “pursuant to [the] Executive [O]rder,” 5 U.S.C. § 552(b)(1)—and here, with
respect to these four documents, there is no evidence that apprisal or any other means of
“direction” has occurred. The Court, accordingly, concludes that the Department—at least on
the present record—is not entitled to summary judgment with respect to the four records that
Stein classified.
Finally, the Court is unpersuaded by the Canning Plaintiffs’ more sweeping contention
that the records at issue were not properly classified in accordance with the State Department’s
Foreign Affairs Manual—or “FAM.” They argue that the FAM in place at the relevant time
25
required that the Under Secretary and the Deputy Assistant Secretary for Global Information and
Services draft a memorandum regarding “upgrad[ing]” the classification of the relevant
documents and that the memorandum be “approved.” Dkt. 80 at 18–19. And because there is no
evidence that the Under Secretary played any role in the process or that the classification
decisions were “approved,” they contend, the Department has failed to carry its burden of
showing that the records were properly classified. Id. at 19–20. But, as explained in the Second
Stein declaration, the version of the FAM quoted in Plaintiffs’ brief contained an error that was
corrected in subsequent versions; the requirement was not that the Under Secretary and Deputy
Assistant Secretary draft the memorandum but, rather, that “the classification memorandum is
drafted for the Under Secretary . . . , the Deputy Assistant Secretary . . . , or the director of the
Office of Information Programs and Services . . . , who subsequently review and approve or
disapprove the memorandum.” Dkt. 81-1 at 6 n.5 (Second Stein Decl. ¶ 9 n.5). Moreover, even
putting that aside, FOIA Exemption 1 applies to records that “are in fact properly classified
pursuant to [the] Executive [O]rder,” 5 U.S.C. § 552(b)(1), and does not require compliance with
the FAM.
* * *
The Court concludes that the Department has satisfied the requirements of Executive
Order 13562 regarding the post-request classification of responsive records for all but four of the
withheld records. As to those four, the Department has not yet shown that it complied with
Executive Order 13562, and thus has not shown that those documents were properly withheld.
The Court will, accordingly, grant in part and deny in part the Department’s motion for summary
judgment with respect to Exemption 1.
26
2. Exemption 5
Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). This exemption shields “those documents . . . normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Courts have,
accordingly, incorporated the three traditional civil discovery privileges under Exemption 5: “(1)
the attorney work-product privilege; (2) the deliberative process privilege; and (3) the attorney-
client privilege.” Wright, 121 F. Supp. 3d at 184. Both SAE and the Canning Plaintiffs
challenge the Department’s invocation of Exemption 5 to protect purportedly deliberative
records.
The deliberative process privilege protects “documents ‘reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Sears, Roebuck & Co., 421 U.S. at 150 (quoting Carl
Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The “privilege
rests on the obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, and its object is to enhance ‘the
quality of agency decisions,’ . . . by protecting open and frank discussion among those who make
them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8–9 (2001) (citations omitted). “Manifestly, the ultimate purpose of this long-recognized
privilege is to prevent injury to the quality of agency decisions.” Sears, Roebuck & Co., 421
U.S. at 151.
“To qualify for withholding under Exemption 5’s executive privilege, information must
be both ‘predecisional’ and ‘deliberative.’” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976
F.2d 1429, 1434 (D.C. Cir. 1992); see also Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C.
27
Cir. 2014); Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 874 (D.C. Cir. 2010); Judicial Watch, Inc.
v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A record “is predecisional if it was ‘prepared in
order to assist an agency decisionmaker in arriving at his decision,’ rather than to support a
decision already made,” and it is “deliberative if it ‘reflects the give-and-take of the consultative
process.’” Petroleum Info. Corp., 976 F.2d at 1434 (citations omitted). The agency asserting the
privilege bears the burden of establishing that the information is exempt. Fed. Open Mkt. Comm.
of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); Mink, 410 U.S. at 93; Pub. Citizen,
Inc., 598 F.3d at 869; Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir.
2014). “Summary judgment is warranted when the agency’s affidavits ‘describe 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 nor by evidence of agency bad faith.’” Elec. Frontier Found., 739 F.3d at
7 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)); see also Senate of the
Commonwealth of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). To meet
this burden, an “agency must establish ‘what deliberative process is involved, and the role played
by the documents in issue in the course of that process.’” Senate of the Commonwealth of P.R.,
823 F.2d at 585–86 (citation omitted).
a. Canning Plaintiffs’ Exemption 5 Challenge
The Canning Plaintiffs challenge the Department’s application of Exemption 5 to three
documents, all of which are “drafts” of a letter from President Obama to King Abdullah of Saudi
Arabia. Dkt. 80 at 25 (citing Documents C05781947, C06231742, C06320987). The
Department explains in its Vaughn index that Document C05781947 is “a draft letter to King
Abdullah of Saudi Arabia,” which was withheld pursuant to Exemption 5 because it is “pre-
decisional and deliberative with respect to a final determination on the content of the letter,” and
28
its release “could reasonably be expected to chill the open and frank expression of ideas,
recommendations, and opinions that occur when U.S. Government officials are crafting text for
signature by the President.” Dkt. 72-2 at 146–49. Documents C06231742 and C06320987 are
Arabic “versions” of document C05781947: “Document C06231742 is an incomplete draft of the
letter and Document C06320987 is an unsigned draft of the full letter.” Id. at 144. According to
the Department, the withheld material “is pre-decisional and deliberative with respect to the final
determination on the content of the letter,” and its release “would impede the ability of
responsible executive branch officials to formulate” policy “by inhibiting candid discussion and
the expression of recommendations and judgments regarding future courses of action.” Id.
As an initial matter, the Canning Plaintiffs assert that the draft letters “do not themselves
contain the deliberators’ proposals or arguments about what is to be said to the King, but are
rather ‘snapshots’ of the then-current undecided letter-text which was under discussion.” Dkt. 80
at 26. Although it is unclear whether they intend to press this as a stand-alone argument, to the
extent they do, the Court is unpersuaded. The deliberative process privilege is designed to
protect the “open and frank discussion” of proposals within the government, Klamath Water
Users Protective Ass’n, 532 U.S. at 8–9, regardless of how a proposal or suggestion is offered.
When a government employee or official prepares a draft letter—or speech, brief, or guidance
document—for an intermediate or ultimate decisionmaker’s consideration, she is offering a
proposal for consideration, just as she would do in drafting an options memo or in participating
in a group discussion. See Sierra Club v. U.S. Dep’t of Interior, 384 F. Supp. 2d 1, 19–20
(D.D.C. 2004). The Court, accordingly, concludes that a draft letter can, as appropriate, fall
within the deliberative process privilege.
29
The Canning Plaintiffs’ principal argument posits that the three documents at issue were
not, in fact, drafts. With respect to one of the three records—Document C06320987—they argue
that the Department has, in effect, conceded that the Document “is the final version” of the letter
from President Obama to King Abdullah, and they, accordingly, seek summary judgment in their
favor. Dkt. 79 at 1–4. And, with respect to the other two—Documents C05781947 and
C06231742—they assert that enough uncertainty exists that the Court should deny the
Department’s motion for summary judgment. Dkt. 80 at 26–33.
The Canning Plaintiffs build their claim that Document C06320987 “is clearly the final
version of the letter” on the fact that the Department’s Vaughn index refers to Document
C06231742 as “an incomplete draft of the letter,” while it refers to Document C06320987 as “an
unsigned draft of the full letter.” Dkt. 80 at 26–27; Dkt. 72-2 at 144. In their view,
“[n]otwithstanding the word ‘draft,’ that description conveys that the form, substance, and
translation in Document C06320987 are complete” and that “the Arabic-language letter awaits
only copying onto Presidential letterhead and the President’s signature.” Dkt. 80 at 27. To this,
Plaintiffs add that the Vaughn index entry for these Arabic-language versions of the letter lacks
the “draft” designation found in the column header that appears for the English-language version
of the letter, and, unlike the entry for the English-language version, the Vaughn index refers to
the documents—at least once—as “versions of a letter” as opposed to “draft[s]” of a “letter.”
Compare Dkt. 72-2 at 144 with id. at 146. In response, Stein attests that the three versions of the
letter “are all in draft form, as stated in the ‘Description’ category of the Vaughn Index.” Dkt.
81-1 at 6–7 (Second Stein Decl. ¶ 11). Stein further explains that the differences that the
Canning Plaintiffs highlight in the Vaugh index are “merely stylistic” and were “not intended to
convey that the Arabic versions are final.” Id. at 7 (Second Stein Decl. ¶ 11).
30
To start, the Court is unconvinced that Document C06320987 “is clearly the final version
of the letter.” Dkt. 80 at 26. Both the Vaughn index and the Second Stein Declaration represent
that the document is a draft, Dkt. 81-1 at 6–7 (Second Stein Decl. ¶ 11), and that
characterization, at the very least, gives rise to a disputed issue of material fact. But, at the same
time, the Court is unconvinced—at least on the present record—that the three documents were
deliberative. To be sure, none of the documents bear the President’s signature, and none is
printed in final form on presidential stationary. If all that remained to be done, however, was to
print and sign the letter—and if, in fact, any of the three documents is identical in substance to
the letter that was sent to King Abdullah—it is difficult to discern how that document reflects
anything that is “pre-decisional.” That concern, moreover, is more than hypothetical. Given the
opportunity to respond to the Canning Plaintiffs’ arguments—including their contention that “all
decisions [had] been made” regarding the content of the letter—the Second Stein Declaration
merely attests that the documents were “in draft form.” Dkt. 81-1 at 6–7 (Second Stein Decl.
¶ 11) (emphasis added). The declarant’s use of the word “form” at least raises the question
whether he means to distinguish between the “form” and the “substance” of the records.
It may be that the documents were drafts, both as a matter of “form” and “substance.” It
may be that the President had yet to sign off on the documents, and that the Department contends
that a recommendation that is ultimately approved remains a recommendation until finally and
formally approved. Or it may be that the Department takes the view that a pre-decisional,
presidential recommendation does not lose its exempt status, even after the President formally
adopts the recommendation without modification. On the present record, however, the Court
cannot discern what significance the Department attaches to the word “draft,” and, to the extent
it intends to distinguish between “drafts in form” and “drafts in substance,” the Department has
31
not briefed any of the potentially relevant legal issues. Moreover, because the Department has
failed to release a final, signed version of the letter, see Dkt. 80 at 32 n.14, an unsigned—but
otherwise final—version of the letter would add materially to FOIA’s goal of shedding light on
workings of government. See Robbins Tire & Rubber Co., 437 U.S. at 242. The Court will,
accordingly, deny summary judgment with respect to the applicability of Exemption 5 to the
Documents C06320987, C05781947, C06231742.
b. SAE’s Exemption 5 Challenge
Finally, SAE challenges the Department’s use of the Exemption 5 deliberative process
privilege to withhold thirty-eight records in whole or in part. Dkt. 77 at 11. Like the Canning
Plaintiffs, SAE focuses on the Department’s decision to withhold “drafts,” but, unlike the
Canning Plaintiffs, SAE offers little reason to question the Department’s characterization of the
records at issue. Instead, SAE simply asserts in categorical terms that the descriptions contained
in the Department’s Vaughn index fail to provide “sufficient context with which to evaluate” the
Department’s reliance on the deliberative-process privilege, and it offers six examples to support
its contention. Dkt. 77 at 12 (citing Documents C05429202, C05475534, C05475572,
C05475573, C05517719, C05999326).
The deliberative process privilege “covers recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the personal opinions of the writer
rather than the policy of the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 866 (D.C. Cir. 1980). As noted above, an agency invoking the privilege bears the burden of
showing that “the document is both ‘predecisional’ and ‘deliberative.’” Access Reports v. Dep’t
of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). The agency must also offer “specific and
detailed proof that disclosure would defeat, rather than further, the purposes of . . . FOIA.”
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977). Review
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of the six examples that SAE cites shows that the Department has carried this burden with
respect to the deliberative process withholdings that SAE challenge (other than the three
withholdings, discussed above, that the Canning Plaintiffs have also challenged).
The first example—Document C05429202—is a draft of a paper regarding “how certain
terms [would] be defined for the purposes of” PSD-11. Dkt. 81-2 at 4. The document is
classified and was withheld on that ground. Id. In addition, it was withheld pursuant to
Exemption 5 because it is “pre-decisional and deliberative with respect to a final determination
on the content of the briefing paper,” and because its release “could reasonably be expected to
chill the open and frank exchange of ideas and recommendations that occur when Department
officials are crafting a paper for a high-ranking Department official and developing strategic
policy guidance on a sensitive subject.” Id. The Department further represents that “[d]isclosure
of this information would impede the ability of responsible executive branch officials to
formulate and carry out programs by inhibiting candid discussion and the expression of
recommendations and judgments regarding future courses of action.” Id. The Court concurs in
the assessment that a draft document proposing how to define terms used in a presidential
national security directive lies at the core of the deliberative process privilege.
The next three examples—Documents C054755732, C05475534 and C05475572—are,
according to the Vaughn index, “drafts of a memo from the Special Coordinator for Middle East
Transitions . . . and Assistant Secretary for [Near Eastern Affairs]. . . outlining plans for U.S.
Support to [Middle East and North Africa] Transition Countries.” Dkt. 72-2 at 10. The
Department asserts that the documents are “pre-decisional and deliberative with respect to a final
determination on the content of the memos and whether and how to provide support to the
transition governments of Egypt, Libya, Tunisia, and Yemen.” Id. at 10–11. The Court is, once
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again, persuaded that draft memoranda, which address “whether and how to provide support” to
foreign governments, lie at the core of the privilege.
The Court is also unconvinced by SAE’s contention that the Department must disclose
the extent to which the “‘draft’ findings and conclusions outlined in those documents [were]
ultimately relied upon in the discharge of official duties.” Dkt. 77 at 12. Although a document
that is “predecisional at the time it is prepared . . . can lose that status if it is adopted, formally or
informally, as the agency position on an issue,” Coastal States Gas Corp., 671 F.2d at 866, that
does not mean that every suggestion, proposal, or draft that precedes a final decision—and that is
consistent with that decision—loses its protected status. To be sure, the privilege does not
extend to “‘opinions and interpretations which embody [an] agency’s effective . . . policy.’”
Elec. Frontier Found., 739 F.3d at 7 (quoting Sears, Roebuck & Co., 421 U.S. at 153). It does,
however, protect “‘all papers which reflect the agency’s group thinking in the process of
working out its policy,’” id. (emphasis added)—even if portions of that “thinking” are ultimately
persuasive to those charged with making final, operative decisions. The relevant question is
whether the record at issue reflects the ideas, theories, or suggestions that “‘go into the making
of’” policy—in which case the privilege is available—or, rather, reflects the policy “‘itself’”—in
which case the privilege does not apply. Id. at 8 (quoting Coastal States Gas Corp., 671 F.2d at
868). Here, there is no basis to conclude that any of the three “draft” memoranda ever
“themselves” embodied a final statement of Department policy.
The fourth example—Document C05517719—is a “draft Action Memo for the Secretary
[of State] regarding a proposed call to Egyptian President Morsy,” which includes “draft text,
including red-line edits, regarding a recommendation . . . to the Secretary on topics to be
discussed during the call and background information.” Dkt. 72-2 at 35. This document, which
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includes red-line edits and consists of a recommendation from a subordinate to a superior about a
policy decision, falls squarely within the deliberative process privilege. See Coastal States, 617
F.2d at 868 (“[A] document from a subordinate to a superior official is more likely to be
predecisional, while a document moving in the opposite direction is more likely to contain
instructions to staff explaining the reasons for a decision already made.”); Brinton v. Dep’t of
State, 636 F.2d 600, 605 (D.C. Cir. 1980) (“[F]inal opinions . . . typically flow from a superior
with policy-making authority to a subordinate who carries out the policy.”).
SAE’s final example—Document C05999326—is “a briefing paper prepared for the
Secretary’s briefing of members of the House and Senate” and “consists of a series of proposed
answers to anticipated questions regarding various U.S. foreign policy issues.” Dkt. 72-2 at 142–
43. The Department asserts that the information is “pre-decisional and deliberative with respect
to a final decision on the content of . . . the information to be communicated to Congress” as well
as “pre-decisional and deliberative with respect to a final determination on the particular U.S.
policy under consideration.” Id. at 143. This description is, once again, sufficient to sustain the
privilege. Despite SAE’s assertions to the contrary, the Vaughn index describes the context and
nature of the document in detail; it is a “draft” memorandum containing “recommendations” for
the Secretary of State regarding a conversation with a foreign head of state. As such, the
document lies at the core of the deliberative process privilege. See Elec. Frontier Found., 739
F.3d at 7 (agency must “‘describe [its] justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically falls within the claimed exemption,’”
and that showing cannot be “‘controverted by either contrary evidence in the record nor by
evidence of agency bad faith’” (quoting Miller, 730 F.2d at 776).
* * *
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Having reviewed the Vaughn index and the parties’ pleadings, the Court concludes that
the Department has carried its burden of showing that it properly invoked Exemption 5 with
respect to all of the withheld material, with the exception of the three “draft” letters to King
Abdullah. The Court will, accordingly, grant in part and deny in part the Department’s motion
for summary judgment with respect to Exemption 5.
CONCLUSION
For the reasons set forth above, the Court GRANTS in part and DENIES in part the
Department’s motion for summary judgment, Dkt. 74, and DENIES the Canning Plaintiffs’
cross-motion for summary judgment, Dkt. 79. The sole remaining issues in this proceeding are
(1) whether the four records that Stein classified after the Canning Plaintiffs submitted their
FOIA request were—or have now been—classified “under the direction” of the Under Secretary,
and (2) whether the three “draft” letters to King Abdullah fall within the deliberative process
privilege. The Department may renew its motion for summary judgment as consistent with this
opinion.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: October 24, 2018
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