Seife v. U.S. Dep't of State
Seife v. U.S. Dep't of State
Opinion of the Court
I. INTRODUCTION
Before the Court are 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") that began with two July 22, 2014 requests for various records related to press briefings given "on background" by anonymous senior agency officials. The Court must now rule on the adequacy of the State Department's response to the first request, as well as the applicability of FOIA's Exemptions 5 and 6 to approximately 80 responsive documents, portions of which were redacted by the State Department, and to one document withheld in full. For the reasons that follow, the Court concludes that the State Department is entitled to summary judgment on a portion of its withholdings under Exemption 6. The Court also concludes that the State Department should be granted a further opportunity to substantiate its claim that a search in response to the first request would be unreasonably burdensome, its claims of deliberative process and presidential communications privilege over the information it has withheld, as well as its claim that Exemption 6 applies to the identities of the anonymous background briefers. The State Department's motion for summary judgment is therefore GRANTED IN PART and DENIED IN PART, and Mr. Seife's motion for summary judgment is DENIED.
II. BACKGROUND
On July 22, 2014, Mr. Seife submitted a FOIA request to the State Department seeking information on the following "on background" conferences:
(1) Background Conference Call by Senior Administration Officials on Iraq, conducted on or about June 20, 2014[;]
(2) Background briefing by Senior Administration Officials via Conference Call on Afghanistan, conducted on or about May 27, 2014[;]
(3) Background Briefing on Syria, conducted on or about May 5, 2014[;]
(4) Background Conference Call on Ukraine Sanctions, conducted on or about April 28, 2014[;]
(5) Background Briefing on Designation of Boko Haram and Ansaru as Foreign Terrorist Organizations and as Specially Designated Global Terrorists, conducted on or about November 13, 2013[; and]
(6) Background Briefing on Section 1230 Report on Progress Toward Security and Stability in Afghanistan, Pentagon Briefing Room, conducted *602on or about December 10, 2012.
Declaration of Eric Stein, ECF No. 29 ("Stein Decl."), Ex. 2. In connection with each of the six on background briefings, Mr. Seife requested (1) the unredacted transcript, which "should identify" the officials involved in the briefing, and (2) any documents, "including but not limited to e-mails, meeting minutes, memos, and other communications," that described the "planning and/or execution of" each briefing. Id. That request was received by the State Department and assigned case number F-2014-12996 (the "12996 request"). Stein Decl., Ex. 3.
Also on June 22, 2014, Mr. Seife submitted a second FOIA request to the State Department, seeking the unredacted transcripts for any "on background" briefing that took place between January 20, 2009 and July 21, 2014. Stein Decl., Ex. 9.
Mr. Seife filed this lawsuit on September 13, 2016, seeking an injunction requiring the State Department to provide him with the requested information. ECF No. 1. During a November 22, 2016 initial pretrial conference, the Court directed the State Department to provide a full response to the 12997 request no later than December 16, 2016. ECF No. 14. The Court also directed the State Department to provide rolling responses to the 12996 request, with a first production due no later than December 16, 2016, and with production to be completed no later than January 20, 2017. Id.
In accordance with the Court's order, on December 16, 2016, the State Department produced six documents responsive to the 12996 request. Stein Decl., Ex. 4. In response to the 12997 request, the State Department explained that it had no responsive documents because the State Department does not maintain transcripts identifying the names of the officials conducting the background briefings. Stein Decl., Ex. 11.
On March 10, 2017, the Court granted the State Department an extension of time within which to complete its production in response to the 12996 request, extending the January 20, 2017 deadline to April 17, 2017. ECF No. 18. Three days before that deadline, on April 14, 2017, the State Department produced additional responsive documents. Stein Decl., Ex. 8. The State Department also removed certain redactions from previously produced documents and re-released those documents on January 23, 2017, March 6, 2017, and June 2, 2017. Stein Decl., Exs. 6, 7, 12.
After receiving a description of the search that the State Department had conducted *603with respect to the 12996 request, Mr. Seife requested that additional, targeted searches be performed. Stein Decl. ¶ 12. Mr. Seife agreed that, if those searches were conducted, he would not challenge the adequacy of the Department's search in connection with his 12996 request. Id. The requested searches were performed, and the State Department completed its production of documents in connection with the 12996 request on June 29, 2017. Id. ¶ 13
The State Department withheld information in seventy-two documents under FOIA Exemption 5,
In addition to its withholdings pursuant to Exemption 5, the State Department withheld information in sixty-five responsive documents pursuant to Exemption 6,
In sum, the State Department located ninety-six documents that were responsive to Mr. Seife's 12996 request, of which fifteen were produced in full, eighty were produced with redactions, and one document was withheld in full.
The parties filed cross-motions for summary judgment. ECF Nos. 27, 30. Following the filing of those motions, the State Department filed a supplemental declaration of Stein, as well as an updated Vaughn index. ECF No. 35. The supplemental submissions indicate that, after production of the initial Vaughn index, the State Department released portions of previously withheld information. See Supplemental Declaration of Eric Stein, ECF No. 35 ("Stein Supp. Decl.") ¶ 8.
In its summary judgment motion, the State Department stands by its withholdings in response to the 12996 request, as identified in the updated Vaughn index (the " Vaughn index"), and maintains its position that no records responsive to the 12997 request exist. Mr. Seife, in his cross-motion for summary judgment, challenges the State Department's search in connection with the 12997 request and seeks disclosure of a majority of the information withheld pursuant to FOIA Exemptions 5 and 6.
As explained below, the Court holds that the State Department's search in connection with the 12997 request was inadequate. The Court also finds the State Department's submissions insufficient to permit a determination that all of the information withheld under the FOIA exemptions is properly exempt from disclosure.
III. LEGAL FRAMEWORK
A. Summary Judgment Standard
"Summary judgment is the procedural vehicle by which most FOIA actions are resolved." N.Y. Times Co. v. U.S. Dep't of Def. ,
To defeat a motion for summary judgment, the non-moving party "must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. ,
*605In determining whether there exists a genuine dispute as to a material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian ,
Because he is proceeding pro se , the Court must liberally construe Mr. Seife's submissions and interpret them "to raise the strongest arguments that they suggest ." Triestman v. Fed. Bureau of Prisons ,
B. FOIA
"Congress intended FOIA to permit access to official information long shielded unnecessarily from public view." Milner v. Dep't of Navy ,
For an agency to prevail on a summary judgment motion in a FOIA case, it "must demonstrate 'that each document *606that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements.' " Ruotolo v. Dep't of Justice, Tax Div.,
"FOIA specifies that a district court must conduct de novo review of an agency's claims to exemptions," Lee v. Fed. Deposit Ins. Corp.,
C. Vaughn Submissions
When an agency withholds records in a FOIA case and a complaint challenges such withholding, the district court must "determine the matter de novo , and may examine the contents of ... agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions ...."
In 1973, in Vaughn v. Rosen , the Court of Appeals for the D.C. Circuit held that in order to assure "that allegations of exempt status are adequately justified ... courts will simply no longer accept conclusory and generalized allegations of exemptions ... but will require a relatively detailed analysis in manageable segments."
(1) it forces the government to analyze carefully any material withheld, (2) it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, (3) and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.
Halpern ,
"Summary judgment is warranted on the basis of [ Vaughn ] affidavits when the 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." Wilner v. Nat'l Sec. Agency ,
IV. DISCUSSION
A. Adequacy of Search in Connection with the 12997 Request
"[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 ,
The State Department argues that its response to the 12997 request was reasonable because it does not maintain "on background" briefing transcripts in the format requested by Mr. Seife, that is, with an inclusion of the name of the government official giving the briefing, and because the transcripts that it does maintain are already publicly available online. The State Department acknowledges that it did not perform a search for records responsive to the 12997 request, but contends that it was not required to do so because any search was not reasonably calculated to produce responsive results. Mr. Seife, on the other hand, disputes the reasonableness of the State Department's decision to forego a search, quipping that it is "of note ... that defendant's non-search took two and a half years to not complete." Pl.'s Memorandum in Supp. of S.J. and in Opp. to Def.'s Mot. for S.J., ECF No. 33 ("Pl.'s Mem.") at 23 n.9. Mr. Seife criticizes the State Department's decision primarily because, as he claims, the agency too narrowly construed his request. Mr. Seife is correct.
*608The State Department has submitted the affidavit of Eric Stein, who is the Director of the Office of Information Programs and Services ("IPS") of the State Department. Stein Decl. ¶ 1. Stein's declaration describes the manner in which FOIA requests are addressed by the State Department and the steps taken by the Department in response to both of Mr. Seife's requests. Stein's statements related to the 12997 request are detailed, not merely conclusory, and the Court presumes that they are made in good faith. See Carney ,
Stein's declaration explains that each office within the State Department maintains files concerning foreign policy and other matters that relate to the daily operations of that office. Stein Decl. ¶ 18. Those files generally consist of "working copies of documents, information copies of documents maintained in the Central Foreign Policy Records collection, and other documents prepared by or furnished to the office in connection with the performance of its official duties."
Stein explains that, when the State Department receives a request for information pursuant to FOIA, IPS evaluates that request and determines which office within the State Department "may reasonably be expected to contain responsive records." Id. ¶ 17. That determination is based on the description provided by the requester of the records being sought and requires knowledge of the State Department's records systems, records disposition schedules, and the "substantive and functional mandates" of the offices within the State Department. Id.
Stein's declaration goes on to describe the State Department's handling of Mr. Seife's requests. In evaluating the 12997 request, IPS determined that the only State Department component "reasonably likely" to possess responsive documents was the Bureau of Public Affairs ("PA"). Stein Decl. ¶ 19. The Deputy Executive Director of PA, in turn, determined that the only PA component "reasonably likely" to have records responsive to Mr. Seife's request was the Office of Press Relations. Id. ¶ 20. The 12997 request was therefore submitted to the director of the Office of Press Relations for review, and that director confirmed that the office did not maintain responsive records. Id. ¶ 21.
The Stein Declaration establishes that the State Department "frequently" holds briefings in which government officials address the State Department press corps "on background," that is, "not for individual attribution." Stein Decl. ¶ 22. Stein avers that "[a]ll of these background briefings are transcribed," but that the transcripts "[a]t no point" identify the background briefers. Id. While the government officials hosting the briefings "may" be introduced by name to the journalists, they are identified only as "State Department Official" or "Senior Administration Official" in the transcripts that are produced. Id. Therefore, because transcripts of the background briefings never include the name of the briefer, the State Department asserts that it was reasonable for the Office of Press Relations to believe that no search would generate any *609records responsive to Mr. Seife's request, thereby making any search futile.
The legal premise of this argument is correct: "FOIA does not demand a search that would be futile." Amnesty Int'l USA v. Cent. Intelligence Agency , No. 07-cv-5435 (LAP),
"To assess the adequacy of a search, courts must first 'ascertain the scope of the request itself.' " Amnesty Int'l USA ,
Here, the 12997 request seeks, "for any 'on background' conference/briefing/call that took place between January 20, 2009 and July 21, 2014, ... an unredacted transcript of each conference/briefing/call; such a transcript should identify officials involved in the conference/briefing/call by name." Stein Decl., Ex. 9. The State Department interprets this language as a request for only those transcripts of background briefings that "identify officials involved in the conference/briefing/call by name." Pl.'s Reply Memorandum, ECF No. 38 ("Pl.'s Reply") at 5. However, as Mr. Seife has rightly observed, his request does not limit the transcripts that he seeks to those that do identify the briefers by name. Rather, his use of the phrase "should identify" expresses his expectation to receive transcripts containing the briefers' identities. Because an agency responding to a FOIA request is mandated to construe the request broadly, 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.
With this liberal construction of the 12997 request in mind, the Court turns to *610the State Department's decision to forego a search for responsive transcripts. Contrary to the State Department's representation, Mr. Seife argues that the agency does, in fact, maintain transcripts of background briefings in which the briefers' names are identified. As examples of such transcripts, Mr. Seife points to several transcripts that contain, in place of the briefers' names and titles, bracketed terms such as "title redacted," "introductions redacted," "name deleted," and "briefer name deleted." Pl.'s Mem., Ex. C. These transcripts, Mr. Seife comments, suggest that the State Department "occasionally keeps transcripts" in unredacted form identifying the briefers. Pl.'s Mem. at 23.
In his supplemental declaration, Stein affirms that he reviewed the initial draft of one of the five transcripts relied on by Mr. Seife and confirmed that the draft produced by the stenographer contained the bracketed terms in the first instance, and not the actual names and titles of the briefers. Stein Supp. Decl. ¶ 4. Stein clarified that the briefers' names and titles do not appear in even the initial drafts prepared by the stenographers, but that those drafts are produced with the bracketed terms in place of any identifying information. Id. ¶ 5. Mr. Seife has not produced any evidence to suggest that the averments of Stein's supplemental declaration were made in bad faith. Accordingly, the Court affords the supplemental declaration the presumption of good faith that it must and finds that the State Department has adequately shown that any search for unredacted transcripts of background briefings containing the names of the briefers would indeed be futile.
This does not end the inquiry, however, as Mr. Seife's request also included, as the Court has just explained, a request for transcripts in which the briefers' names were not identified. It is true that the State Department is not required to produce, in response to a FOIA request, any documents that are otherwise publicly available. See Triestman v. U.S. Dep't of Justice, Drug Enforcement Admin. ,
However, Mr. Seife maintains that other responsive transcripts exist that have not been uploaded to the public website. The State Department does not deny this, and in fact acknowledges that background briefing transcripts prepared by the White House or other federal agencies may have been forwarded to the State Department and to State Department employees and may be stored in the employees' email accounts. Stein Supp. Decl. ¶ 7. Nonetheless, the State Department argues that Mr. Seife's request for transcripts of background briefings over a five-and-a-half-year period is overly broad, and a search for such transcripts would be unreasonably burdensome. Def.'s Opp. to Pl.'s Mot. for S.J. and Reply Memorandum, ECF No. 34 ("Def.'s Reply") at 6 and n.3. While this may in fact be true, the State Department *611has not sufficiently established the burden that it cites.
For a FOIA request to be proper, the request must "reasonably describe" the records sought.
Moreover, to the extent that the State Department determined that the request did not reasonably describe the records being sought, it was under the obligation to engage in a dialogue with Mr. Seife to more appropriately tailor the request, a process that the State Department undertook in connection with the 12996 request. See Ruotolo ,
Furthermore, while Stein affirms in his supplemental declaration that a search for transcripts of background briefings not uploaded to the State Department's website would be "incredibly burdensome," Stein Supp. Decl. ¶ 7, he fails to sufficiently explain how and why it would be so. "An agency need not respond to a request that is 'so broad as to impose an unreasonable burden upon the agency,' such as one which 'require[s] the agency to locate, review, redact, and arrange for inspection a vast quantity of material.' " Nat'l Day Laborer Organizing Network v. U.S. Immigration and Customs Enf't , No. 16-cv-387 (KBF),
*612Freedom Watch, Inc.,
Stein attests that "there is no centralized or systematized process by which [other federal] entities send transcripts to PA" and that a search for transcripts of background briefings would "need to cover the individual e-mail accounts of all employees who may have signed up to receive press releases from the White House or other agencies." Stein Supp. Decl. ¶ 7. That is the extent of his explanation of the burden imposed by Mr. Seife's 12997 request. Stein provides no information regarding the total number of email accounts that would need to be searched, or the level of difficulty of, or amount of time required by, the search process itself. Absent such or similar information describing with reasonable specificity the actual burden imposed by the 12997 request, the Court cannot conclude that a response to Mr. Seife's request would in fact be unduly burdensome.
B. The 12996 Request
1. Documents Withheld Pursuant to Exemption 5
The State Department claims that portions of various emails, draft talking points, proposed questions and answers, and draft documents in connection with press releases are properly withheld under Exemption 5. Mr. Seife argues that the State Department has failed to carry its burden to show that the redacted information in these documents is subject to either the deliberative process privilege or the presidential communications privilege. The Court agrees with Mr. Seife.
FOIA Exemption 5 exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency ...."
A document fitting the criteria for withholding under Exemption 5 may nevertheless fall outside of Exemption 5 "if it closely resembles that which FOIA affirmatively requires to be disclosed: 'final opinions ... made in the adjudication of cases,' 'statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,' and 'administrative staff manuals and instructions to staff that affect a member of the public.' " Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep't of Justice ,
a. Deliberative Process Privilege
Exemption 5 encompasses the deliberative process privilege, a privilege that protects records that are: "(1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually related to the process by which policies are formulated." La Raza ,
A document is "predecisional" when it is "prepared in order to assist an agency decisionmaker in arriving at his decision." Grand Cent. P'Ship ,
A document is "deliberative" if it is "actually ... related to the process by which policies are formulated." Stinson v. City of New York ,
The deliberative process privilege "does not, however, as a general matter, cover 'purely factual' material." Hopkins ,
Most of the documents at issue in this case involve deliberations regarding the scheduling of various press events and the substance of the message to be communicated to the press during those events. The parties' briefing underscores a split among district courts, in the absence of binding appellate precedent, as to whether an agency's decision regarding when, what, and how to communicate to the press is in itself the type of policy-oriented judgment that is protected by the deliberative process privilege. The Courts of Appeals for the Second and District of Columbia Circuits have yet to establish a clear rule on the matter. Other courts in this district have answered the question in the negative, holding that "[d]eliberations about how to present an already decided policy to the public, or documents designed to explain that policy to-or obscure it from-the public, including in draft form, are at the heart of what should be released under FOIA." Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enf't Agency ,
It is only when a draft public statement would reveal the agency's deliberations regarding the underlying substantive policy that these courts find that the privilege applies. See Citizens Union of City of N.Y. v. Attorney Gen. of N.Y. ,
On the other hand, courts in the District of the District of Columbia have concluded that draft talking points, anticipated questions and proposed answers, and other documents reflecting deliberations about how to present an agency's policy to the public are entitled to the protection of the deliberative process privilege. See, e.g. , ICM Registry, LLC v. U.S. Dep't of Commerce ,
As Judge Maas aptly remarked, "[i]n light of these conflicting decisions, it is appropriate to focus on the policy underlying the deliberative process privilege." Fox News I ,
It is established that a document is predecisional, and potentially subject to the deliberative process privilege's protections, where that document is "prepared in order to assist an agency decisionmaker in arriving at his decision ." Renegotiation Bd. v. Grumman Aircraft Eng'g Corp. ,
Moreover, the Second Circuit has previewed its position on this issue, a position which aligns with the approach taken by the First Circuit and the District of the District of Columbia. In American Civil Liberties Union v. Department of Justice , the Second Circuit found that the deliberative process privilege applied to "a draft of a proposed op-ed article that suggested some ways of explaining the Government's legal reasoning in support of drone strikes."
In light of American Civil Liberties Union , the First Circuit's holding, and the policy underpinnings of the deliberative process privilege, this Court respectfully parts ways with its esteemed colleagues *617and adopts the approach espoused by the District of the District of Columbia. Therefore, the State Department here may withhold documents that reflect agency deliberations regarding the manner in which its policies are explained to the public. Nonetheless, the burden remains on the State Department to "furnish the Court with specific information establishing that the [document] is both predecisional and deliberative, by explaining, for example, the 'function and significance [of the document] in the agency's decisionmaking process.' " Fox News II ,
Here, the documents withheld by the State Department pursuant to the deliberative process privilege are described in the Stein Declaration and Vaughn index as intra- and inter-agency email exchanges regarding the content and modalities of various "on background" briefings, as well as related draft and final talking points, anticipated questions and proposed answers, draft "rollout" schedules, and draft opening statements.
i. Emails
The documents listed in Categories 1, 3, 4, 6, 12, 19 through 22, and 25 through 29 are various email exchanges that discuss internal State Department deliberations and consultations with other agencies regarding the text of, timing of, and participation in various State Department background briefings and other announcements. Those include the November 13, 2013, announcement designating Boko Haram and Ansaru as Foreign Terrorist Organizations and Specially Designated Global Terrorists, the agency's May 5, 2014 background briefing on Syria, travel and press schedules related to issues concerning Afghanistan, a May 2014 background briefing on the topic of Sergeant Bowe Bergdahl's release and return, background briefings on Iraq and Iran, and the public rollout of a policy announcement on Ukraine-related sanctions. The Stein Declaration explains in general terms that the State Department "often uses background briefings to provide the public with additional information about important policy announcements or evolving policy actions" and that background briefings are "frequently" scheduled "either immediately before or immediately following policy announcements or decisions." Stein Decl. ¶ 26. Stein goes on to state that deliberations regarding the manner in which the background briefings will be executed "often take place in the context of broader discussions of accompanying public outreach strategies and the underlying policy actions at issue,"
The Vaughn index provides slightly more detail regarding the nature of the alleged deliberations reflected in the redacted documents. It explains that the materials in Categories 1, 3, 4, and 26 relate to a final decision regarding the text and timing of, and participation in, certain announcements and the potential participants in the related background briefings. Stein Supp. Decl., Ex. 19 at 1-4, 22. Some of these emails are additionally described as *618reflecting foreign policy considerations. See id. at 2-3, 22. The emails listed in Categories 6, 12, 21, and 29 include proposed talking points and anticipated questions and proposed answers in connection with background briefings. Id. at 6, 11, 18, 25. The emails in Category 12 also include discussions regarding the individual to serve as background briefer and "deliberations about a response to a senator's Question for the Record," which the State Department asserts is not responsive to Mr. Seife's request. Id. at 11. The emails in Category 19 reference deliberations with respect to the content of a statement to be made by Secretary of State John Kerry and the "sequencing of events surrounding the statement." Id. at 16. The email in Category 20 discusses the selection of a background briefer, content of talking points, and communications to the briefing attendees.
The information submitted in the Vaughn index and the Stein Declaration is insufficient to allow the Court to determine whether a majority of the information withheld on the basis of the deliberative process privilege are in fact entitled to such protection. The Vaughn index states that many of these emails contain "deliberations" and "internal Department discussions" regarding "press strategy" and the "text, timing, and participation in" the State Department's announcements. However, it is unclear that all of the emails are predecisional and deliberative. See Stein Supp. Decl., Ex. 19 at 1-4, 16, 19, 21-23. While several of the emails appear to temporally pre-date the State Department announcements and background briefings that they relate to, some of the emails are dated the same date as the announcement to which they relate. This is particularly true of many emails related to the State Department's November 13, 2013 announcement regarding Boko Haram and Ansaru, as well as the emails in Category 19, all of which are dated the same date as the related background briefing. See id. at 1, 3-5. Other emails, such as the emails in Categories 6, 20, 21, and 22, relate to events for which a date is not provided. See id. at 6, 17-19.
Even if the emails could all be considered predecisional, the Court cannot conclude that they are deliberative. Despite the conclusory assertion that the emails reflect the State Department's deliberations, the emails' roles in the deliberative process are not apparent from the State Department's submissions. See Quinon ,
*619Sierra Club ,
Nor does the Vaughn index identify the authors and recipients of the emails with sufficient specificity to determine that the emails do not contain "the denouement of the decisionmaking rather than part of its give-and-take." Access Reports , 926 F.2d at 1195 ; see id. (recognizing that "the relation between the author and recipients of the document" is a "key feature under both the 'predecisional' and 'deliberative' criteria"). The relationships between the authors and recipients of these emails are particularly important in light of the fact that the dates of many of the emails allegedly reflecting the deliberative process-and not the State Department's final decisions regarding its press strategy-coincide with the dates of the announcements to which they relate, and the Vaughn index does not state that all of those emails contain the authors', rather than the agency's, opinions. Absent information describing the authors and recipients, or whether the communications involved recommendations for consideration in the deliberative process, such as suggestions made by junior officials to senior officials or decision-makers within the agency, the Court cannot determine that the emails are deliberative in nature and subject to the privilege. See Access Reports , 926 F.2d at 1195 ("A document from a junior to a senior is likely to reflect his or her own subjective opinions and will clearly have no binding effect on the recipient. By contrast, one moving from senior to junior is far more likely to manifest decisionmaking authority and to be the denouement of the decisionmaking rather than part of its give-and-take."); U.S. Dep't of the Treasury v. Pension Benefit Guar. Corp. ,
Additionally, certain emails, such as those contained in Categories 25, 26, and 28, are described as including information regarding the planning of several press events. Yet, the State Department has not shown that those communications are press policy discussions, such as those that have been protected by the District of the District of Columbia, rather than mere logistical or "routine operating decision[s]." N.Y. Times Co. ,
Overall, the emails listed in the Vaughn index and the descriptions provided by the State Department are simply insufficient for the Court to determine the role that these emails and their contents played in the agency's deliberations.
ii. Proposed Talking Points, Anticipated Questions and Proposed Answers, and Draft Opening Statements
"The mere fact that a document is a draft ... is not a sufficient reason to *620automatically exempt it from disclosure." N.Y. Times Co. ,
It is equally unclear whether the "proposed" talking points that were withheld were in draft or final form. Stein's declaration states that the withheld documents include "draft and final proposed talking points." Stein Decl. ¶ 26. However, the descriptions provided in the Vaughn index do not specify whether the proposed talking points at issue are in draft or final form, or whether they were the talking points actually implemented by State Department officials in communicating with the press. See Brennan Ctr. ,
Moreover, with the exception of the document in Category 15, these documents were withheld only part, yet the Vaughn index does not specify the information that was withheld. Instead, the index explains in conclusory terms that the documents were withheld in part under Exemption 5 as they contain material "which is pre-decisional and deliberative with respect to a final decision" on "points made to the press" or "press guidance," and that the documents contain "the authors' thoughts and opinions." Stein Supp. Decl., Ex. 19 at 5, 6, 9, 10, 14, 15. First, as previously explained, conclusory explanations are insufficient to justify application of the deliberative process privilege. See Quinon ,
With respect to the draft listed in Category 15, which was withheld in whole, the Vaughn index describes this document as "anticipated questions and proposed answers regarding the Department's November 13, 2013 announcement designating Boko Haram and Ansaru as Foreign Terrorist Organizations and Specially Designated Global Terrorists." Stein Supp. Decl., Ex. 19 at 13. No additional details are provided. The date of the document is unknown, as are the roles played by the author and recipient and the document itself in any related decisionmaking process.
The drafts of opening statements contained in Category 13 are likewise inadequately described. While the State Department indicates that the two documents in that category are a clean draft and a subsequent redline draft of opening statements "prepared for the Department's November 13, 2013 background briefing about the designation of Boko Haram and Ansaru" as terrorist organizations, the Vaughn index does not specify what portions of those drafts were withheld. See Stein Supp. Decl., Ex. 19 at 12.
Based upon the information provided by the State Department, the Court cannot determine that the proposed talking points, draft questions and answers, and draft opening statements "formed an essential link in a specified consultative process" or "if released, would inaccurately reflect or prematurely disclose the views of the agency." Grand Cent. P'Ship,
*621iii. Draft Rollout Schedules
The State Department has withheld portions of draft "rollout" schedules related to the announcement designating Boko Haram and Ansaru as terrorist organizations and to "the topic of Iraq." Stein Supp. Decl., Ex. 19 at 10, 14. The former, listed in Category 11, does not specify which portions of the draft document were withheld. See id. at 10. The withheld information in the latter, listed in Category 17, is described as proposed events, proposed participants, and tentative timing of events. Id. at 14. From the conclusory statements offered to explain the application of Exemption 5, the Court cannot determine whether this information is properly subject to the deliberative process privilege, or falls instead in the category of "routine operating decision[s]." N.Y. Times Co. ,
b. Presidential Communications Privilege
The presidential communications privilege is "closely affiliated" with the deliberative process privilege. In re Sealed Case ,
Broader than the deliberative process privilege, the presidential communications privilege protects "final and post-decisional materials as well as pre-deliberative ones." Amnesty Int'l ,
The State Department has withheld one document that it claims is exempt from disclosure pursuant to the presidential communications privilege-an email listed in Category 20 of the Vaughn index. That email is described as "an inter-agency email exchange containing deliberations about the preparation of talking points, proposed answers to anticipated questions, and the selection of Department and [Department of Defense] briefers for an upcoming background briefing that concerned Iraq." Stein Supp. Decl., Ex. 19 at 17. The Vaughn index explains that portions of this email were withheld under the presidential communications privilege because the withheld material includes a communication sent by Bernadette Meehan, *622a director of strategic communications at the National Security Council, on June 19, 2014.
Mr. Seife contests the factual premise of these statements, arguing that spokespeople generally do not advise the President on subjects such as foreign policy or national security, and that it is unlikely that Ms. Meehan would advise the President on press strategy, as that role is usually relegated to the White House Office of Communications. Pl.'s Mem. at 11. He correctly argues that the presidential communications privilege is to be applied only to those communications that are authored or received in the course of advising the President. See In re Sealed Case ,
Here, the Court accepts the factual premise established by the State Department, namely that Ms. Meehan was a senior presidential adviser. See Florez ,
2. Documents Withheld Pursuant to Exemption 6
The State Department withheld various categories of information claiming that Exemption 6 applies. The withheld information includes agency officials' official government email addresses, cell phone numbers, the identities of background briefers, and names of certain agency officials. The State Department also withheld contact information for members of the public and an official's comments about personal plans. Mr. Seife does not take issue with all of these withholdings. Rather, he contests the redaction of the background *623briefers' identities, the names of Department of Defense ("DoD") officials, and government email addresses and cell phone numbers of agency officials.
FOIA Exemption 6 exempts from disclosure information from personnel, medical, or other similar files that "would constitute a clearly unwarranted invasion of personal privacy."
A court's inquiry regarding the applicability of Exemption 6 to withheld information is a two-step process. Cook v. Nat'l Archives & Records Admin. ,
a. "Similar Files"
A majority of the withheld personal information is contained in emails. The State Department has also withheld the names of background briefers appearing in proposed talking points, draft opening statements, and a draft rollout schedule, as well as an agency official's cell phone number contained in draft opening statements. These documents are "similar files" under FOIA.
"The phrase 'similar files' sweeps broadly and has been interpreted by the Supreme Court to mean 'detailed Government records on an individual which can be identified as applying to that individual.' " Cook , 758 F.3d at 174 (quoting Washington Post ,
The emails at issue here are "similar files" under Exemption 6. They contain the names and email addresses of agency officials, and, thus, can be identified *624as applying to those individuals. See Cook , 758 F.3d at 174 ; see also Judicial Watch, Inc. v. U.S. Dep't of State ,
The other documents-proposed talking points, draft opening statements, and draft rollout schedules-are also similar files. As explained above, the Supreme Court has made clear that any government record that can be identified as applying to the individual in question meets the threshold requirement under Exemption 6. In light of this broad reading of the term "similar files," as well as the fact that these documents contained the names of agency officials, the Court finds that the gatekeeping requirement is satisfied.
b. Balancing of Interests
Having concluded that the withheld information is contained in files that qualify for exemption under Exemption 6, the Court must determine whether disclosure of the personal information would result in a "clearly unwarranted invasion of personal privacy."
An individual's privacy concerns "encompass[ ] all interests involving 'the individual's control of information concerning his or her person.' " Wood ,
Where an agency has demonstrated a privacy interest sufficient to implicate Exemption 6, the burden falls to the requester to establish that disclosure "would serve a public interest cognizable under FOIA." Associated Press ,
i. Identities of Background Briefers
The State Department's submissions do not establish a substantial privacy interest subject to balancing against any public interest in disclosure. As the State *625Department explains, background briefers are senior officials who are typically experts in the policy or subject matter that they brief. Stein Supp. Decl. ¶ 12. They hold positions that do not include, as a general job responsibility, interaction with the press.
Although courts read Exemption 6 broadly, Washington Post ,
The State Department has not provided evidence of a "real" threat of harassment to the background briefers. Instead, the Stein Declaration relies on conclusory statements and a hypothetical situation to explain the potential invasion of privacy. See Stein Decl. ¶ 33. The link connecting the disclosure of these briefers' identities to the alleged harassment is missing. The State Department has not indicated that the background briefers at issue hold classified positions, or even sensitive positions. The briefers appear to hold positions that are known, or knowable, to the general public. Therefore, it is not apparent from the submissions how a foreign counterpart's knowledge that the briefer-holding an official position known to the counterpart-delivered what became a public message would expose that briefer to unwarranted harassment in either his or her official duties or personal life. It may be that whatever privacy interest the briefers have in controlling dissemination of their names is de minimis and does not trigger the need to balance that interest with the public interest in disclosure. See Cook , 758 F.3d at 176 ; Fed. Labor Rel. Auth. v. U.S. Dep't of Veterans Affairs ,
Although the State Department's failure to establish a substantial privacy interest is dispositive, the Court addresses the competing interests at stake here. In arguing *626that disclosure is necessary to inform the public about what the government is "up to," Mr. Seife has identified two particular concerns that will be satisfied by disclosure. The first is the public concern with "[u]nderstanding the reasons for the government's increasing reliance on background briefings, as well as other mechanisms for controlling press coverage." Declaration of Charles Seife, ECF No. 31 ("Seife Decl.") ¶ 13. Mr. Seife affirms in his declaration, without identifying the source of his information, that the proportion of press briefings held on background increased from twenty percent in 2008 to nearly ninety percent in 2014, without any parallel rise in overall number of briefings. Id. ¶ 12. Mr. Seife claims that allowing briefers to remain anonymous gives them "license to lie" and insulates them from any skepticism that they may draw if their identities were known. Id. ¶ 9.
Second, in his reply brief, Mr. Seife explains that disclosure of the identities of the background briefers will "demonstrate that executive branch agencies are actively deceiving the public about a longstanding government practice: that the government is less than forthright about whom it gives anonymity to at background briefings and why." Pl.'s Reply at 12. This appears targeted at the State Department's averments in the Stein Declaration that the background briefers do not routinely interact with the press.
These concerns are precisely the type of public interest cognizable under FOIA. See Long ,
With respect to the first public interest articulated by Mr. Seife, disclosure of the names of the background briefers would not reveal the reasons for the incremental number of press briefings held on background rather than on the record. Disclosure may permit Mr. Seife, and other members of the public, to contact the background briefers and attempt to obtain explanatory information from them. However, this attenuated relationship between the information sought and the potential illumination of the government activity at issue has been rejected by the Second Circuit as grounds for disclosure under FOIA. See Hopkins ,
With respect to the second public interest-the interest in knowing that the government is deceiving the public regarding the officials who are permitted to remain anonymous in giving background briefings-Mr. Seife has identified a stronger public interest. Disclosure of the background briefers' identities would likely reveal what the government is "up to" when it describes, at least in its submissions to this Court, the nature of the work performed by the briefers. Stein avers that the background briefers do not regularly interact with the press, Stein Decl. ¶ 32, while Mr. Seife has affirmed that he has personal knowledge of approximately a dozen briefings for which the briefers' identities were leaked, and in each case, the briefer was an official spokesperson or was otherwise "well-acquainted with briefing the press," Supplemental Declaration of Charles Seife, ECF No. 39 ("Seife Supp. Decl.") ¶ 7. Despite the State Department's argument that Mr. Seife's allegations in this respect are nothing more than speculative, Mr. Seife has substantiated this assertion with specific examples outlined in his declaration. At least one of these enumerated briefings occurred in 2014, the year during which a majority of the background briefings listed in the 12996 request took place. Id. ¶ 16. Mr. Seife proceeds to list additional background briefers that he personally has unmasked. Id. ¶¶ 21-26. Those briefers addressed the press anonymously on dates between September 2012 and May 2014, again within the date range of the briefings identified in Mr. Seife's FOIA request. The unmasked briefers were all either agency spokespeople or otherwise frequently interacted with the press. Id. ¶¶ 22-27.
Mr. Seife attests that he has personal knowledge of these allegations of fact. Id. ¶ 1. The Court credits his attestation, as Mr. Seife affirms that he has more than twenty years of experience in the media industry and has been using FOIA to research information about "governmental media practices" since 1998. Seife Supp. Decl. ¶ 6. Among his research, Mr. Seife has investigated the executive branch's practice of holding press briefings on background rather than on the record. Id.
This evidence, submitted by sworn affidavit, suggests that the assertion in Stein's Declaration that the background briefers do not interact frequently with the press was not made in good faith, and raises questions regarding the presumption of good faith that the Court otherwise affords to the State Department submissions. See Nat'l Archives & Records Admin. v. Favish ,
ii. Identities of Lower-Level Department of Defense Employees
The State Department has also withheld the identities of certain DoD officials.
*628Stein's supplemental declaration establishes that the DoD's practice is to withhold any personally identifying information of its members who hold the military rank of Colonel or below, or are otherwise ranked on the General Schedule ("GS") at GS-15 or lower. Stein Supp. Decl. ¶ 13. An exception to this policy exists for officials who routinely interact with the press.
The public interest identified by Mr. Seife here is the interest in knowing who, and what departments within the DoD, are involved in making decisions regarding background briefings so as to elucidate the reasons for the on background briefings. Pl.'s Mem. at 21; Pl.'s Reply at 14. However, that public interest is insufficient to tip the scale in favor of disclosure, the primary reason, once again, being the lack of a sufficient link between the information sought by Mr. Seife and the government activity at issue. Given the lack of a direct link, the public interest in disclosure is minimal, if it exists at all. See Hopkins ,
Even if there were public interest in disclosure, the privacy interests at play here are sufficient to permit the redaction of the DoD officials' names. The Second Circuit, confronted with withholdings based on the same DoD policy at issue here, concluded that DoD employees "have a cognizable privacy interest in keeping their names from being disclosed wholesale" and found that interest to outweigh the minimal public interest in disclosure. Long ,
In light of the minimal public interest in disclosure, and the privacy interest held by the DoD officials in controlling the dissemination of their names, the State Department's withholdings were appropriate to avoid a "clearly unwarranted invasion of personal privacy."
iii. Email Addresses and Phone Numbers
The State Department has redacted the official government email addresses and official and personal cellular phone numbers of certain employees in sensitive positions *629within the State Department, the DoD, and the National Security Council. Mr. Seife asserts that the public interest at stake as to this information involves his need as a journalist to interview these officials, as well as a growing concern that senior officials attempt to evade FOIA by using private email servers in lieu of official ones. Pl.'s Mem. at 21-22.
The first of these public interests is non-cognizable under FOIA. See Long ,
As to the second interest, Stein affirms that the withheld email addresses are those of DoD employees, National Security Council officials, and a State Department official.
C. Segregability
FOIA mandates that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."
With respect to the document in Category 15, the State Department has indicated that it "conducted thorough review of the document and determined that there is no meaningful, nonexempt information that may be reasonably segregated and released." Stein Supp. Decl., Ex. 19 at 14. As explained below, the Court will grant the State Department an opportunity to substantiate its claim of deliberative process privilege over the document and is not yet in a position to reach the question of segregability.
*630D. Revised Vaughn Submissions
"[A] district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn ." Spirko v. U.S. Postal Service ,
The Court finds it appropriate, at this juncture, to provide the State Department with the opportunity to either conduct a search for documents responsive to the 12997 request or to provide further substantiation for the agency's claim that such a search would be unreasonably burdensome. The Court also finds it appropriate to allow the State Department to provide further substantiation of the grounds for its withholdings with respect to the information and document claimed exempt under FOIA Exemption 5 and with respect to the identities of background briefers. Cf. Elec. Frontier Found. v. U.S. Dep't of Justice ,
Accordingly, the State Department's motion for summary judgment as to the applicability of Exemption 6 is GRANTED as to the withholding of the identities of DoD officials and contact information for agency officials, and DENIED WITHOUT PREJUDICE as to the propriety of the agency's response to the 12997 request, the withholding of information and the Category 15 document pursuant to Exemption 5, and as to the withholding under Exemption 6 of the identities of the background briefers.
V. CONCLUSION
For the reasons stated above, the State Department's motion for summary judgment is GRANTED IN PART and DENIED IN PART without prejudice. Mr. Seife's cross-motion is DENIED. The denial *631of the Mr. Seife's motion is without prejudice to the extent that the motion challenges the State Department's response to the 12997 request, the withholding of documents and information under Exemption 5, and the withholding of the identities of the background briefers under Exemption 6. The State Department is directed to submit revised Vaughn submissions addressing the State Department's response to the 12997 request, the information and document claimed exempt under Exemption 5, the identities of background briefers claimed exempt under Exemption 6, as well as a segregability analysis addressing the Category 15 document, along with a renewed motion for partial summary judgment no later than April 30, 2018. Mr. Seife may file a renewed cross-motion for summary judgment with respect to the State Department's response to the 12997 request and its withholding of information and documents under Exemptions 5 and 6 no later than thirty (30) days from the date of service of the State Department's renewed motion. Any oppositions to the motion(s) for summary judgment are due no later than twenty-one (21) days following service of the motions, and any replies are due no later than fourteen (14) days following service of the oppositions.
SO ORDERED.
Stein's Declaration indicates that this request is attached as Exhibit 11. Stein Decl. ¶ 14. The Court observes that the request is actually attached as Exhibit 9.
Stein's Declaration states that the State Department's letter confirming receipt of the FOIA request and assigning it case number F-2014-12997 is attached to that declaration as Exhibit 12. Stein Decl. ¶ 15. However, the letter is actually located at Exhibit 10.
Stein's Declaration indicates that the State Department's December 16, 2016 response to the 12997 request is attached as Exhibit 13. Stein Decl. ¶ 16. However, the Court notes that the letter response is actually attached as Exhibit 11.
Stein's Declaration states that the June 2, 2017 correspondence from the State Department to Mr. Seife is attached as Exhibit 9. Stein Decl. ¶ 11. The Court observes that it is actually attached as Exhibit 12.
Stein's Declaration states that the State Department's June 29, 2017 letter informing Mr. Seife that it had located ten additional responsive documents as a result of the targeted searches is attached to that declaration as Exhibit 10. Stein Decl. ¶ 13. The Court observes, however, that the letter is not attached to the declaration, as Exhibit 10 or otherwise.
The State Department also withheld information in two documents pursuant to FOIA Exemption 3. Def.'s Mem. in Supp. of Summ. Judgment (ECF No. 28) at 5. Mr. Seife does not challenge those withholdings.
Vaughn v. Rosen ,
Indeed, Mr. Seife has acknowledged that he does not seek duplications of the publicly available transcripts. Pl.'s Mem. at 24 n.10.
Under the State Department's interpretation of the 12997 request, it was reasonable for the agency to believe that the Office of Press Relations would be the most likely to possess responsive records. First, Stein's declaration sufficiently establishes that IPS had the knowledge required to determine which office within the State Department was reasonably likely to maintain records responsive to the request. IPS itself is tasked with managing records within the State Department and with responding to records requests under FOIA. Stein Decl. ¶ 2. Second, the Stein Declaration sufficiently shows that the Office of Press Relations was reasonably likely to have the requested records. As Stein explains in his declaration, the Office of Press Relations is "the central conduit of information flowing from the [State] Department to accredited journalists" and "supports the President and the Secretary of State by explaining U.S. foreign policy and actions to domestic and foreign journalists." Id. ¶ 20. The office prepares the State Department spokesperson for daily press briefings, releases additional information to the media, acts as the "authoritative channel of information about the Secretary's schedule," and responds to inquiries from the press. Id. In light of these functions performed by the Office of Press Relations, it was reasonable to believe that that office would have in its possession any documents responsive to the 12997 request. Because the Court finds that the State Department's interpretation of the 12997 request was overly narrow, and in light of the State Department's recognition that Department employees may have responsive documents stored in their email, it is not clear that the Office of Press Relations would be the only department to have information responsive to the 12997 request as the Court has just interpreted that request.
This email is also described as including communications with presidential advisers, and the State Department has withheld it under the presidential communications privilege, discussed infra at Section IV.B.1.b
The State Department has also withheld the contact information of an Office of the Director of National Intelligence official. That official's identity was withheld under FOIA Exemption 3, and Mr. Seife does not contest that withholding. Stein Supp. Decl. ¶ 12 n.8.
Reference
- Full Case Name
- Charles SEIFE v. UNITED STATES DEPARTMENT OF STATE
- Cited By
- 48 cases
- Status
- Published