Brennan Ctr. for Justice v. Dep't of State
Brennan Ctr. for Justice v. Dep't of State
Opinion of the Court
The plaintiff, Brennan Center for Justice, challenges the response of the defendant, the U.S. Department of State, to the plaintiff's request, pursuant to the Freedom of Information Act ("FOIA"),
I. Background
The plaintiff's January 2014 FOIA request sought the defendant's records regarding unpublished international executive agreements transmitted to Congress, pursuant to the Case-Zablocki Act, 1 U.S.C. § 112b. Pl.'s Mem. Opp'n Def.'s Mot. & Mem. Supp. Cross-Mot. ("Pl.'s Opp'n") at 1-2, ECF No. 28. The plaintiff, a nonpartisan law and policy institute, sought these records under FOIA for the purpose of understanding the "scope and nature of international agreements that have been withheld from the full Congress and the public on national security grounds."
*77The parties' narrowed dispute is whether the defendant must produce the classification levels for each individual unpublished international agreement listed in nine documents for each of the nine years 2004 through 2011 and 2013.
A. The United States's Unpublished International Agreements
The Secretary of State must, as a general rule, publish in a compilation entitled United States Treaties and Other International Agreements international agreements that the United States has concluded with another nation. 1 U.S.C. § 112a(a). Under the Case-Zablocki Act, the Secretary transmits to Congress the text of any such agreement, other than a treaty, "as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter."
The Case-Zablocki Act also requires the Secretary to transmits annually to Congress an index of international agreements not published or proposed to be published that the United States "has signed" or "proclaimed," or "with reference to which any other final formality has been executed, or that has been extended or otherwise modified, during the preceding calendar year."
B. The Plaintiff's FOIA Request
On January 31, 2014, the plaintiff requested records pertaining to the Secretary's non-publication of international agreements pursuant to the Secretary's authority under 1 U.S.C. § 112a and those agreements' transmission to Congress in compliance with the Case-Zablocki Act. Pl.'s Opp'n at 3. For a period of almost thirty years-1990 to the present-the plaintiff sought (1) the number of international agreements withheld from publication due to a determination that such agreements' publication posed a risk to national security; (2) the number of international agreements withheld from publication pursuant to
The defendant, by letter dated February 26, 2014, acknowledged receipt of the plaintiff's FOIA request and denied the plaintiff's request for expedited processing, but did not provide an estimated date of completion for the request.
C. The FOIA Lawsuit and the Documents At Issue
Ten and a half months after the plaintiff had submitted its FOIA request, the defendant had not issued a final response determining whether the defendant would release the requested records.
The parties ultimately agreed to further narrow their dispute to the defendant's redaction of the classification levels of each executive agreement listed in the following nine documents, totaling 164 pages:
1. Document C05997746: a 10-page table entitled "Case Act Index-2004 (Sorted by Country)" ("2004 Index");
2. Document C05997747: a 19-page table entitled "Case Act Index-2005 (Sorted by Country)" ("2005 Index");
3. Document C06005005: a 23-page table entitled "Index of International Agreements for the 2006 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2006 Index");
*794. Document C06005002: a 19-page table entitled "Index of International Agreements for the 2007 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2007 Index");
5. Document C06005001: a 27-page table entitled "2008 Index of International Agreements Not Printed in TIAS submitted in fulfillment of the requirements of 1 U.S.C. § 112b(d)" ("2008 Index");
6. Document C06004999: a 17-page table entitled "Index of International Agreements for the 2009 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2009 Index");
7. Document C06004998: a 16-page table entitled "Index of International Agreements for the 2010 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2010 Index");
8. Document C06004997: a 17-page table entitled "Index of International Agreements for the 2011 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2011 Index");
9. Document C06004994: a 16-page table entitled "Index of International Agreements for the 2013 reporting year submitted in fulfillment of the requirements of 1 U.S.C. 112b (d)" ("2013 Index").
Pl.'s Opp'n, Ex. A, 2005-2011, 2013 Indices, ECF No. 28-1; Joint Status Report, dated Mar. 17, 2017, at 1, ECF No. 25; First OIPS Decl. ¶ 14; Pl.'s Reply Mem. Supp. Pl.'s Cross-Mot. ("Pl.'s Reply") at 6, ECF No. 33. The nine disputed documents are each classified as "Secret" pursuant to Executive Order 13,526 ("EO 13,526"), except for the 2010 Index, which was classified as "Confidential." First OIPS Decl. ¶ 15. The defendant initially had labeled the 2011 Index as "Sensitive But Unclassified," but determined upon review after receiving the FOIA request that the document had been mislabeled due to a clerical error and contained "Secret"-level information.
The defendant produced all nine documents, but redacted all substantive information in the text "except for the consecutive numbers for each listed entry appearing on the left margin of each index." Pl.'s Opp'n at 5-6. Using this information, the plaintiff was able to determine the number of international agreements withheld from publication annually, but not the number of such agreements that are classified or each agreement's level of classification-i.e. , confidential, secret- or existence-classified.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "In FOIA cases, 'summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' " Judicial Watch, Inc. v. U.S. Secret Serv. ,
*80The FOIA was enacted "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request." DiBacco v. U.S. Army ,
In litigation challenging the sufficiency of "the release of information under the FOIA, 'the agency has the burden of showing that requested information comes within a FOIA exemption.' " Pub. Citizen Health Research Grp. v. Food & Drug Admin. ,
An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate. See Judicial Watch, Inc. ,
The FOIA provides federal courts with the power to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."
III. ANALYSIS
The nine disputed documents each list alphabetically, by non-United States signatory nation, unpublished international agreements that the United States has entered, including some the very existence of which is classified. First OIPS Decl. ¶ 16. After the parties narrowed their dispute, the defendant moved for dismissal in part and for summary judgment in part, asserting that the redacted information implicated national security concerns and *82thus was properly withheld under FOIA's Exemption 1. Def.'s Mot.; Def.'s Mem. Supp. Mot. ("Def.'s Mem.") at 4-6, ECF No. 27.
While not disputing the defendant's assertion that the documents fall within the scope of FOIA Exemption 1, the plaintiff nonetheless characterizes the defendant's "mosaic" argument as "not logical," "convoluted and wholly speculative," and seeks in camera review of the documents to determine whether additional segregable material may be disclosed. Pl.'s Opp'n at 8, 11-14. The sole dispute that remains before the Court thus is whether the classification levels of the agreements listed in the nine disputed documents are segregable and subject to disclosure.
A. Classification to Protect National Security
FOIA's first exemption applies to "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."
Although a district court "accord[s] substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record," the court does not "relinquish[ ] [its] independent responsibility" "to conduct a de novo review of the classification decision." Goldberg v. U.S. Dep't of State ,
EO 13,526 allows an agency to classify information if the agency "determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage." Exec. Order No. 13,526 § 1.1(a)(4) (Dec. 29, 2009). "Damage to the national security" is defined as "harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information."
EO 13,526 contemplates that "[c]ompilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information." Id. § 1.7(e). In this way, EO 13,526 recognizes that "the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair," as "[t]housands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate." Halkin v. Helms ,
*84United States v. Yunis ,
The Supreme Court has recognized in the FOIA context that "[f]oreign intelligence services have both the capacity to gather and analyze any information that is in the public domain and the substantial expertise in deducing" sensitive national security information "from seemingly unimportant details." CIA v. Sims ,
B. The Defendant Has Properly Withheld the Documents at Issue
Set against this standard, the defendant has met its burden to show that all reasonably segregable material in the nine documents at issue have been produced. The defendant argues that the documents "ha[ve] been properly withheld under Exemption 1 because [their] release would reveal sensitive aspects of U.S. foreign relations, in particular, international agreements the existence of which implicates issues of U.S. national security." Def.'s Mem. at 6. "Release of the information withheld," the defendant argues, "has the potential to inject friction into, or cause damage to, a number of the country's bilateral relationships with countries whose cooperation is important to U.S. national security."
An analyst for a foreign government could use the information contained in each entry reflecting an agreement's "title," "entry in force," "summary," and "expiration" to determine which nations have concluded existence-classified agreements with the United States, even if those nations'
*85identities were redacted. First OIPS Decl. ¶ 17. Moreover, because the documents at issue list international agreements alphabetically by nation, redacting information relating only to existence-classified agreements would not suffice to protect the classified information, as an analyst could discern at least some of the nations with which the United States has concluded existence-classified agreements by seeing where within the alphabetical list the redacted information appears. Id. ¶ 16. Even where alphabetization leaves ambiguity as to the nation with which the United States has concluded an existence-classified agreement, the analyst could combine the information the plaintiff seeks with other publicly-available information to identify the nations with which the United States has existence-classified agreements. Id. In these ways, the analyst could discover classified information for which public disclosure could harm the United States' relations with nations that rely on the United States' commitment not to divulge existence-classified agreements' existence. Id.
Producing only each agreement's classification-level notation likewise would not suffice to protect classified information, because any such notations the defendant could produce would be listed alphabetically by nation, even if the nations' identities were redacted. Id. ¶ 18. Using alphabetically-arranged copies of unclassified agreements exempt from publication, which the defendant makes available to the public upon request, see 1 U.S.C. § 112a(b)(3), a researcher could fill in all rows of the produced documents marked "unclassified," then deduce which nations have concluded existence-classified agreements with the United States based on where any existence-classified notations fall alphabetically in these lists. First OIPS Decl. ¶ 18.
The plaintiff provides no indication that the defendant has fallen short of acting in good faith to produce all reasonably segregable material; indeed, the defendant's production of the 2012 and 2014 Case-Zablocki Act Indices, which the defendant determined required no or little redaction, to protect classified information, see id. ¶ 19 n.1, shows otherwise. The plaintiff instead argues that the defendant can produce many, if not most, of the classification levels in the nine documents at issue without disclosing the identities of nations which the United States has concluded existence-classified agreements. Pl.'s Opp'n at 11-14. The plaintiff acknowledges that an enterprising foreign analyst could use publicly-available information to ascertain the identities of those nations in each document with which the United States has concluded unclassified agreements, and then identify nations with which the United States has concluded existence-classified agreements where such existence-classified agreements fall between two unclassified agreements with the same nation, as in the following illustration:
Classification Status Nation Unclassified [redacted] [Lalaland, filled in by researcher] Existence-Classified [redacted] Unclassified [redacted] [Lalaland, filled in by researcher]
*86Id. at 12. Here, an analyst easily could determine that the United States has concluded an existence-classified agreement with Lalaland, because unclassified agreements with Lalaland flank the existence-classified agreement on both sides. See id. The plaintiff asserts, however, that an analyst who sees only the following would be unable to determine with which nation the United States has concluded an existence-classified agreement:
Classification Status Nation Unclassified [redacted] [Lalaland, filled in by researcher] Existence-Classified [redacted] Unclassified [redacted] [Mamaland, filled in by researcher]
Id. An analyst presented with this information, the plaintiff argues, would be unable to determine whether the United States has concluded an existence-classified agreement with Lalaland or Mamaland. See id. Likewise, the plaintiff asserts, an analyst will be unable to determine with which of Lalaland, Mamaland, or Nanaland the United States has concluded an existence-classified agreement if she sees the following:
Classification Status Nation Unclassified [redacted] [Lalaland, filled in by researcher] Existence-Classified [redacted] Unclassified [redacted] [Nanaland, filled in by researcher]
Id. The plaintiff similarly asserts that the analyst will be unable to determine the identity of any nation that has concluded an existence-classified agreement with the United States if she sees:
Classification Status Nation Unclassified [redacted] [Lalaland, filled in by researcher] Existence-Classified [redacted] Existence-Classified [redacted] Existence-Classified [redacted] Unclassified [redacted] [Nanaland, filled in by researcher]
Id. at 13.
Based on these examples, the plaintiff argues, two conditions must obtain for the defendant's mosaic theory to prevail: each page of each document at issue must list an existence-classified agreement that is (1) bookended by unclassified agreements, which (2) the United States has concluded with the same nation. Id. at 11-13. Even where such conditions obtain, the plaintiff argues, "the agency could easily engage in a partial redaction of the classification levels *87on those pages, redacting this information in enough entries to throw off the alphabetic deduction, while releasing the classification levels on the others." Id. at 13. As such, the plaintiff says, the defendant's assertion that it cannot segregate and release any information that these documents contain is "patently overbroad." Id. At a minimum, the plaintiff asserts, the documents should be inspected in camera to "determine whether the agency's hypothetical conditions are actually present." Id. (citing Spirko v. U.S. Postal Serv. ,
The plaintiff's argument is flawed because even the limited disclosures the plaintiff seeks could cause damage to the national security. The sequencing that the plaintiff acknowledges would enable a foreign analyst to determine the identity of a nation with which the United States has concluded an existence-classified agreement-that agreement's location between two unclassified agreements concluded with the same nation-in fact occurs in the withheld documents. Second Decl. of Eric F. Stein, Dir., OIPS ("Second OIPS Decl.") ¶ 11, ECF No. 31-1. Moreover, disclosure of agreements' classification levels could damage the national security even where such disclosure would not enable an analyst to identify with certainty the nations with which the United States has concluded existence-classified agreements, because the defendant "has the right to assume that foreign intelligence agencies are zealous ferrets" who may draw useful inferences from partial bits of information that form a larger mosaic. Larson ,
Identification of nations with which the United States might potentially have concluded an existence-classified agreement is not the only danger to the national security that production, in whole or part, of the documents at issue may cause. Even mere public speculation that a particular nation, or subset of nations, has concluded one or more existence-classified agreements with the United States could reasonably be expected to cause damage to the national security. Such agreements are existence-classified in part because classification allows the United States to maintain military and intelligence relationships with nations whose populaces or neighbors might not favor such cooperation. Id. ¶ 13.
For these reasons, the defendant has made a "logical" and "plausible" showing that disclosure of any portion of the documents at issue may harm the national security. JudicialWatch, Inc. ,
IV. Conclusion
For the foregoing reasons, the plaintiff's claims are dismissed as to all documents but the nine disputed documents, as to which the defendant's motion for summary judgment is granted, and the plaintiff's cross-motion for summary judgment is denied. An appropriate Order accompanies this Memorandum Opinion.
The full citation to the plaintiff's report is: Elizabeth Goitein, Brennan Ctr. for Justice, The New Era of Secret Law 49 tbl. (Oct. 2016), https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law_0.pdf.
The defendant's motion to dismiss the plaintiff's claims as to those documents that no longer are at is sue, Def.'s Mot.; see also Def.'s Mem. at 2-4; Def.'s Reply Pl.'s Opp'n & Opp'n Pl.'s Cross-Mot. ("Def.'s Reply") at 1-2, ECF No. 31, is granted because the plaintiff has offered no argument as to why dismissal is inappropriate with respect to documents that already have been produced to the plaintiff. Accordingly, the plaintiff's claims are dismissed as to all documents but the nine documents that remain at issue.
The plaintiff observes that the "[d]efendant rejected plaintiff's offer to settle the litigation by providing, for each index, a count of how many agreements fell within each classification category-a solution that could have been implemented in a manner of minutes without implicating the hypothetical 'mosaic theory' scenario posited by the agency." Pl.'s Opp'n at 8. The plaintiff's settlement offer is irrelevant to the validity of the defendant's withholdings, as any count of the number of agreements of each classification category would have constituted a new record that FOIA does not oblige the defendant to create. See Forsham v. Harris ,
The defendant, addressing an example that the plaintiff presented, elaborates that "[b]ased on what is publicly known about the United States' relations with" five specified nations, "one could then make an informed guess about the name of the country that concluded the existence-classified agreement." Def.'s Reply at 6. The plaintiff observes that "quick Google searches reveal that the U.S. has bilateral agreements with each of those [five] countries," and argues that "[i]t is thus unclear, at best, how one could make an informed guess as to the identity of the particular country in that example." Pl.'s Reply at 4 (internal quotation marks omitted). This is probative of little-the plaintiff identifies no evidence that the United States is materially likelier to have concluded an existence-classified agreement with a nation with which the United States has concluded an unclassified agreement than with a nation with which the United States has not concluded an unclassified agreement. In any event, foreign analysts presumably have at their disposal more advanced analytical tools for identifying nations with which the United States has concluded existence-classified agreements than Google Search. See Larson ,
Reference
- Full Case Name
- BRENNAN CENTER FOR JUSTICE v. DEPARTMENT OF STATE
- Cited By
- 12 cases
- Status
- Published