Judicial Watch, Inc. v. U.S. Dep't of State
Judicial Watch, Inc. v. U.S. Dep't of State
Opinion of the Court
Pending before the Court is defendant U.S. Department of State's motion pursuant to Federal Rule of Civil Procedure 59(e) for reconsideration of the Court's March 20, 2017 order granting in part and denying in part defendant's motion for summary judgment. Def.'s Mot. for Recon. & to Alter J. [Dkt. # 46] ("Def.'s Mot."). The Court previously concluded that two documents that defendant redacted pursuant to Freedom of Information Act ("FOIA") Exemption 5 were not exempt, and it ordered defendant to produce the two documents-C05739592 and C05739595-to plaintiff. See Judicial Watch, Inc. v. U.S. Dep't of State ,
Now, the agency contends that the information withheld from those two documents is covered by FOIA Exemption 1: it was classified at the time defendant produced the redacted documents to plaintiff and when defendant filed its motion for summary judgment. Based on the Court's review of the State Department's supporting declaration, as well as the Court's previous review of the information sought to be withheld during an in camera inspection, the Court finds that the State Department failed to invoke Exemption 1 due to human error, and that disclosure of the redacted information would threaten national security. Therefore, the Court concludes that it is appropriate to reconsider its prior ruling, and it has determined that the withheld material falls within the scope of FOIA Exemption 1. Accordingly, defendant's motion for reconsideration is granted, and defendant need not disclose the redacted information within C05739592 and C05739595 to plaintiff.
BACKGROUND
On September 4, 2014, plaintiff initiated this action against defendant under FOIA, seeking records relating to notes or reports created in response to the September 11, 2012 attack on the United States Consulate in Benghazi, Libya. Compl. [Dkt. # 1] ¶ 5. Over the next year and a half, defendant produced documents to plaintiff until it determined that it had completed processing the FOIA request. See Joint Status Report [Dkt. # 29].
On June 6, 2016, defendant moved for summary judgment, Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 31-1] ("Def.'s Mem."), and plaintiff filed a cross-motion for summary judgment one month later, in which it challenged the State Department's withholding of certain responsive records under FOIA Exemptions 1 and 5. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 34] ("Pl.'s Cross-Mot."); Pl.'s Mem. of P. & A. in Opp. to Def.'s Mem. [Dkt. # 34] ("Pl.'s Cross-Mem."). Ultimately, plaintiff narrowed its challenge to withholdings under Exemption 5's deliberative process privilege on the grounds that the government misconduct exception applied. Pl.'s Reply to Def.'s Opp. to Pl.'s Cross-Mot. [Dkt. # 40] ("Pl.'s Cross-Reply") at 1-6.
After an in camera review of the documents withheld or redacted under Exemption 5, the Court granted in part and denied in part both motions for summary judgment. Judicial Watch, Inc. ,
On April 17, 2017, defendant filed the pending motion, arguing that reconsideration is necessary "in order to permit [the State Department] to apply Exemption 1 to certain classified information which was previously withheld only pursuant to Exemption 5" in order to prevent compromising the nation's foreign relations or national security. Def.'s Mot. at 1-2. Defendant maintains that "[t]he inadvertent omission of the Exemption 1 assertion with respect to [the] two documents was the type of 'pure mistake' that can be remedied on reconsideration." Id. at 1. Plaintiff opposed the motion on May 1, 2017, arguing that defendant's failure to assert Exemption 1 was deliberate and part of a "contemporaneous effort by [d]efendant to avoid designating emails from Secretary Clinton's unofficial server as classified." Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. [Dkt. # 47] ("Pl.'s Opp.") ¶¶ 1, 3. On May 5, 2017, the State Department filed a reply. Def.'s Reply in Supp. of Def.'s Mot. [Dkt. # 48] ("Def.'s Reply").
STANDARD OF REVIEW
"Motions under Fed. R. Civ. P. 59(e) are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Max S. Baucus ,
ANALYSIS
As a general rule, an agency "must assert all exemptions at the same *342time, in the original district court proceedings." August v. FBI ,
[I]f the value of the material which otherwise would be subject to disclosure were obviously high, e.g., confidential information compromising the nation's foreign relations or national security, and it appeared highly likely [it] was intended to be protected by one of the nine enumerated exemptions, then ... the appellate court would have discretion to "remand the cause and require such further proceedings to be had as may be just under the circumstances."
The D.C. Circuit has not provided any explicit guidance on the question of whether to accept an agency's belated assertion of a FOIA exemption on a motion for reconsideration. See Sussman v. U.S. Marshals Serv. ,
As other courts in this district have noted, "a district court retains the discretion" to determine whether "an untimely assertion has been forfeited" on reconsideration. See, e.g. , Shapiro v. DOJ , No. 13-555,
[b]asic principles of fairness, efficiency, and finality, moreover-principles inherent in the rules of civil procedure that apply with extra force in the context of FOIA litigation-counsel in favor of requiring *343the government to make some threshold showing of good cause to avoid a finding of forfeiture. Such a showing need not be an onerous requirement. The government might in some cases argue that its failure to raise a FOIA exemption earlier was an inadvertent error, or that some intervening change in law or fact excuses it, or that the consequences of not permitting an untimely assertion would be "dire"; indeed, the reasoning employed in August and Maydak supports exactly these arguments.
Shapiro,
In light of all of these authorities, and in particular, the fact that the national security exemption is involved, the Court finds it appropriate to review this issue now.
I. The Court will reconsider its prior ruling.
Turning to the two documents that the agency seeks to keep redacted, the State Department has described the information contained within them in detail, and it has explained the reasons why the agency failed to assert Exemption 1 originally. See Decl. of Eric F. Stein [Dkt. # 46-2] ("Stein Decl."). The Court finds that the State Department failed to invoke Exemption 1 due to pure human error, and that disclosure of the redacted information would threaten national security. Therefore, the Court concludes that it is appropriate to reconsider its prior ruling.
Documents C05739592 and C05739595 are email chains that contain an email message dated September 13, 2012, from Denis R. McDonough to three high-level State Department officials ("McDonough email"). Stein Decl. ¶ 4. The McDonough email contains summaries of two separate calls between the President of the United States and the Presidents of Libya and Egypt.
The State Department's declarant also averred that the documents "should have [been] marked ... as classified" and that this "oversight occurred because of a confluence of unique circumstances related to the processing of emails provided to the Department by former Secretary of State Hillary Rodham Clinton." Stein Decl. ¶ 9. Specifically, C05739592 and C05739595 were among the emails provided by former Secretary Clinton in response to a request from the Department of State, while C05702404, because it does not contain any email messages to or from Secretary Clinton, was not part of the emails provided to the State Department by her. Id. ¶ 10. Documents C05739592 and C05739595 were responsive to requests of the House Select Committee on Benghazi, and were originally compiled and reviewed in response *344to congressional requests. Id. ¶ 11. The documents were then reviewed for exempt information in this case and were produced with the same redactions as the versions given to Congress. Id. ¶¶ 11-12. In comparison, document C05702404 was received from a different custodian and reviewed by a different FOIA team, and it was produced a few weeks after C05739592 and C05739595. Id. ¶ 13. The information in C05702404 was redacted pursuant to Exemption 1 because of its classified content, and the information redacted in C05739592 and C05739595 is the same as the information redacted in C05702404. Id. ¶¶ 12-13.
According to the State Department's declarant, this mistake occurred because the agency "was facing enormous time pressure to produce approximately 30,000 Clinton emails to the public on its website and laboring under a very heavy FOIA workload at the time." Stein Decl. ¶ 14. As a result, "there was little opportunity for coordination across the teams processing different FOIA requests involving Secretary Clinton's emails at that specific time, and the differences in redactions and exemptions asserted amongst the three documents went unnoticed." Id. Further, during the time period when the agency was producing the declaration and narrative Vaughn index in this case, there had been a leadership change in the Office of Information Programs and Services ("IPS") the month before, and there was a "new vacancy in a critical manager position with oversight of FOIA litigation cases in IPS." Id. Although the Court does not excuse defendant's lack of organization, it recognizes that the agency "has been taking steps to ensure better coordination when documents are reviewed and produced in response to FOIA requests." Id. ¶ 15. Specifically, the State Department has increased its use of "text mining," to allow employees to determine if a document has previously been reviewed in the same case or a different case, and it has introduced new tools to enable searches of document collections in order to avoid duplicates. Id.
In light of the substantiation of the important national security interests at stake, it does not appear that the agency's failure to invoke Exemption 1 was part of an effort to gain a tactical advantage, but rather, that it stemmed from inefficiencies at and extraordinary burdens placed upon defendant's FOIA unit. See August ,
Because the State Department's failure to raise FOIA Exemption 1 at the outset of the proceedings resulted from human error, because disclosure of the information *345would pose a significant risk to national security, and because the agency has taken steps to ensure that it does not make the same mistake again, the Court will reconsider its ruling concerning the production of C05739592 and C05739595, and it will address whether the State Department's redactions are proper under FOIA Exemption 1.
II. Exemption 1 applies to the redactions in documents C05739592 and C05739595.
Plaintiff does not appear to challenge defendant's assertion of Exemption 1 to C05739592 and C05739595, just as it did not challenge the application of Exemption 1 to the same information withheld in document C05702404. See generally Pl.'s Opp.; see also Pl.'s Cross-Reply at 1 (stating that defendant had "met its burden of proof on its Exemption 1 claims" and that plaintiff was no longer challenging defendant's redactions under that exemption). In any event, the Court is independently satisfied that Exemption 1 applies to the redacted information.
FOIA Exemption 1 provides that 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" are exempt from production under FOIA.
Here, the State Department has provided the declaration of Eric Stein, which puts forth plausible and logical explanations in support of the agency's invocation of Exemption 1. The declarant averred that the information was classified on May 15, 2015, pursuant to Executive Order 13,526, which classifies information that could reasonably be expected to cause harm to national security. See Stein Decl. ¶¶ 6-8. Moreover, the Court conducted an in camera review of the documents prior to its ruling on the motions for summary judgment, and it is satisfied that the redacted information is properly classified pursuant to FOIA Exemption 1.
After asserting and explaining the use of particular exemptions, an agency must release "[a]ny reasonably segregable portion of a record,"
*346The State Department's declarant explained that the agency "conducted a line-by-line review of [C05702404] and determined there is no additional information that can be reasonably segregated for release." Stein Decl. ¶ 6. Since he also averred that this "explanation applies with equal force to the text as it appears in documents C05739592 and C05739595," see id. ¶ 7, and this was borne out by the Court's in camera review, the Court finds that the State Department has met its segregability obligation.
CONCLUSION
For the foregoing reasons, the Court finds it appropriate to reconsider its ruling on the parties' motions for summary judgment. Defendant's Motion for Reconsideration [Dkt. # 46] is GRANTED, and the Court ALTERS its Order of March 20, 2017 as follows: The Court concludes that documents C05739592 and C05739595 contain classified information and that the documents are properly redacted pursuant to FOIA Exemption 1. Therefore, defendant need not disclose the redacted portions of the documents to plaintiff.
SO ORDERED.
In its cross-reply, plaintiff asserted that it was "satisfied that [d]efendant has now met its burden of proof on its Exemption 1 claims," and that the only remaining issues revolved around defendant's withholdings under Exemption 5's deliberative process privilege. Pl.'s Cross-Reply at 1.
The State Department noted that one sentence, which was not part of the call summaries, was withheld from the McDonough email in document C05702404 but was not withheld pursuant to Exemption 5 from documents C05739592 and C05739595. Def.'s Mot. at 5 n.4, citing Stein Decl. ^ 8 n.2. Because the agency has publicly released that sentence, it does not seek to withhold it now, and that sentence remains unredacted in the copies of C05739592 and C05739595. Id. , citing Stein Decl. ¶ 8 n.2
Reference
- Full Case Name
- JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF STATE
- Cited By
- 6 cases
- Status
- Published