Competitive Enter. Inst. v. Dep't of Treasury
Competitive Enter. Inst. v. Dep't of Treasury
Opinion of the Court
Competitive Enterprise Institute ("Competitive Enterprise") brings this action against the Department of Treasury pursuant to the Freedom of Information Act ("FOIA") concerning its request for a two-page letter (the "Letter") exchanged between the Governor of the Bank of England and former Treasury Secretary Jack Lew. Neither party contests that the Letter contains potentially sensitive information regarding the economic policies of the United States government. They do dispute, however, whether FOIA requires the disclosure of that information.
The Department of Treasury declined to disclose the Letter under FOIA Exemption 1, which exempts from disclosure information classified in the interest of national defense or foreign policy. Competitive Enterprise argues that the Letter does not fall within the scope of Exemption 1 because it was improperly classified. It also requests that the Court conduct an in camera review of the Letter, asserting that the declaration provided by the Department of Treasury is not specific enough for the Court to reach a determination on the Letter's status, and that the Department's handling of the classification process and FOIA requests indicate agency bad faith or sloppiness.
For the reasons explained below, the Court finds that the Letter was properly classified and that the Department of Treasury's Exemption 1 withholding is justified. Accordingly, the Court grants the Department of Treasury's motion for summary judgment.
II. FACTUAL BACKGROUND
In September 2014, the Governor of the Bank of England, Mark Carney, sent the Letter to then-Secretary of the Treasury Jack Lew. Def.'s Statement of Material Facts ("Def.'s Statement") ¶ 1, ECF No. 12. To date, the contents of the Letter have not been made public or disclosed by the Department of Treasury, but Competitive Enterprise contends that the Letter inquired why the reinsurance subsidiary of a large and influential American company, Berkshire Hathaway, was not included in the United States Financial Stability Board's list of "systemically important financial institutions." Id. ¶ 4; see Compl. ¶ 1, ECF No. 1. After the Letter was sent, the Bank of England requested that the Letter be given confidential treatment. Def.'s Statement ¶ 2.
In April 2015, a series of online reports were published regarding Berkshire Hathaway's alleged absence from the Financial Stability Board's list. See Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. ("Pl.'s Opp'n") at 7, ECF No. 14; Pl.'s Opp'n. Attach. A. ECF No. 14-4. Later that month, Elizabeth Festa, who is not a party to this action, submitted a FOIA request for the Letter. See id. Attach. B., ECF No. 14-5. The Department of Treasury denied Ms. Festa's request, claiming that the Letter was a "foreign record" not releasable by the agency. Id. Attach. C., ECF No. 14-6. Two years later, in April 2017, the Department *415of Treasury decided to classify the Letter pursuant to § 1.4(b), (d), and (e) of Executive Order 13,526, on the grounds that the Letter contained "foreign government information," information damaging to the "foreign relations or foreign activities of the United States," and information concerning "scientific, technological, or economic matters relating to the national security." Def.'s Statement ¶¶ 5-8; Decl. Michael Mason ("Mason Decl.") ¶ 8, ECF No. 12-1.
That month, Competitive Enterprise submitted its own FOIA request for the Letter. Pl.'s Opp'n at 1. The Department of Treasury informed Competitive Enterprise that the requested Letter had been properly classified "in accordance with Executive Order 13,526," and it accordingly denied the request under FOIA Exemption 1, which protects against the disclosure of classified information. Id. Attach. F., ECF No. 14-9; Def.'s Statement ¶ 5; see
In August 2017, Competitive Enterprise filed this action seeking to compel the Letter's disclosure. It argues primarily that the Letter was improperly classified, and thus cannot be withheld under FOIA Exemption 1. See generally Compl. The Department of Treasury's motion for summary judgment is now ripe and pending before the Court.
III. LEGAL STANDARDS
A. Freedom of Information Act
FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.' " FBI v. Abramson ,
B. Summary Judgment
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. of Wildlife v. U.S. Border Patrol ,
*416Larson v. U.S. Dep't of State ,
To carry its burden, the agency must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Elec. Privacy Info. Ctr. v. DEA ,
IV. ANALYSIS
The Department of Treasury maintains that the Letter may be withheld under Exemption 1 because the information in the Letter was properly classified in accordance with the procedural and substantive requirements of Executive Order No. 13,526, and the information in the letter pertains to (1) foreign government information; (2) foreign relations or foreign activities of the United States; and (3) scientific, technological, or economic matters relating to the national security. See Exec. Order No. 13,526,
Competitive Enterprise attacks the Letter's classification on several grounds. First, Competitive Enterprise asserts that the Department of Treasury improperly classified the Letter to avoid the embarrassment of public disclosure. Pl.'s Opp'n at 5-6. Second, Competitive Enterprise argues that the Letter does not fall within the categories of information that may be classified under EO 13,526 § 1.4. Pl.'s Opp'n at 2-3. Third, Competitive Enterprise argues that even if the Letter's content warranted classification, the Department of Treasury failed to follow the classification procedure established by the Department of State's Foreign Affairs Manual. Pl.'s Opp'n at 5-7.
For the reasons explained below, the Court holds that because it is plausible that the Letter contains information, the disclosure of which could harm "foreign relations," it was properly classified pursuant to EO 13,526 § 1.4(d). The Court additionally concludes that given the deference afforded to agencies in matters of national security, see Campbell v. DOJ ,
*417A. The Bank of England Letter Was Properly Classified
The Court first considers whether the Department of Treasury acted in accordance with the classification guidelines of EO 13,526 and whether, therefore, the Letter was properly withheld under Exemption 1. Competitive Enterprise makes several arguments for why the Letter's classification does not comply with EO 13,526, none of which persuade the Court. The Department of Treasury's declaration adequately indicates that the Letter "pertains to ... foreign relations or foreign activities of the United States," and therefore was properly classified. See EO 13,526 § 1.4(d).
As noted above, FOIA requires agencies to disclose records upon request unless one of nine exemptions applies. See Milner ,
Executive Order No. 13,526 sets forth both procedural and substantive criteria for classification, stating in relevant part that information may be classified under the Order only if: (1) an original classification authority classifies the information; (2) the information is under the control of the United States Government; (3) the information falls under one or more of the categories of information listed in § 1.4 of the order; and (4) the classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security,
Pursuant to § 1.4, information shall not be considered for classification unless "its unauthorized disclosure could reasonably be expected to cause ... damage to the national security" and it pertains to one of eight particular categories:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities, sources, or methods;
*418(d) foreign relations or foreign activities of the United States;
(e) scientific, technological, or economic matters relating to the national security;
(f) government programs for safeguarding nuclear materials;
(g) vulnerabilities or capabilities of systems ... relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
EO 13,526 § 1.4(a)-(h). Furthermore, information falling within these guidelines is not properly classified if the classification process was undertaken to prevent embarrassment to a person, organization, or agency.
First, Competitive Enterprise makes the conclusory assertion that the Department of Treasury classified the Letter to avoid embarrassment, but mere speculation that an agency withheld or classified information to avoid embarrassment is not sufficient to pull that information outside the scope of EO 13,526. Dibacco v. U.S. Dep't of Army ,
Second, Competitive Enterprise claims that the Letter does not fall within one of the § 1.4 categories-and therefore that its classification was improper-because (1) the Bank of England is not a "foreign government," and (2) the agency's declaration fails to establish that the information in the Letter is "scientific, technological, or economic matters relating to the national security ," as required by § 1.4(e). However, Competitive Enterprise offers little meaningful challenge to the Department of Treasury's assertion that the information contained in the Letter also falls squarely within § 1.4(d), pertaining to "foreign relations" or activities of the United States. Because this assertion has merit, the Court need not consider whether the Letter was also properly classified under §§ 1.4(b) or (e). See Leopold v. CIA ,
EO 13,526 does not specifically define "foreign relations," as it is used in § 1.4(d), and courts have applied this category to a range of situations in which it is reasonable to believe that the disclosure of information may harm relations between the United States and a foreign country-whether or not that information is from or pertains to the foreign government itself. See Ctr. for Int'l Envtl. Law ,
Competitive Enterprise's conclusion, therefore, that the exempted information need originate from, or be communicated to, a foreign government to fall under the "foreign relations" category, see Pl.'s Opp'n at 14-15, is not supported by case law. See Am. Jewish Cong. ,
The Department of Treasury's description of the Letter is sufficient to conclude that the Letter's disclosure could damage the United States' foreign relations. The Mason Declaration asserts that the Letter contains "sensitive" information regarding international regulatory standards, policy positions of the United States and the United Kingdom, potential next steps both countries may take regarding application of those standards, and other regulatory topics "at issue." Mason Decl. ¶ 4. Courts have held that the disclosure of information that may impact future negotiations between the United States and foreign nations, or that may damage the United States' ability to speak candidly with or about foreign nations, poses sufficient potential harm to "foreign relations" to justify classification under EO 13,526 and nondisclosure under Exemption 1. See, e.g., Judicial Watch ,
As noted, proper classification is the only factor courts need consider when evaluating whether information has been *420properly withheld under Exemption 1. See Ctr. for Int'l Envtl. Law ,
B. In Camera Review of the Bank of England Letter Is Not Warranted
In addition to contesting the Department of Treasury's classification decision, Competitive Enterprise argues that the lack of specificity in the Department of Treasury's declaration and the alleged bad faith in the Department's classification and FOIA response processes necessitate in camera review by this Court. While the Court may further examine the agency's records at its discretion under 5 U.S.C § 552(a)(4)(B), in camera review is a last resort in national security situations, Larson ,
As noted, the Court may rely on agency declarations when the declarations "demonstrate that the information withheld logically falls within the claimed exemption and [is] not controverted by evidence of agency bad faith." Larson ,
When it comes to an agency's articulation of national security threats, courts recognize that agency declarations will always be somewhat speculative and need not show actual harm. Halperin v. CIA ,
*421Judicial Watch, Inc. v. FDA ,
Again, the Court's task is not to evaluate the objective validity of the Department of Treasury's assertions, but rather to evaluate whether the Mason Declaration is specific enough to determine whether the agency plausibly asserted that the Letter's disclosure could "reasonably could be expected" to harm the foreign relations of the United States. Ctr. for Int'l Envtl. Law ,
The Mason Declaration identifies several discrete topics that this Court has already determined reasonably fall under the category of information that may damage "foreign relations"- which the language of EO 13,526 equates with damage to national security. EO 13,526 § 6.1(1); see EO 13,526 § 1.4(d); Mason Decl. ¶ 4 (characterizing Letter as discussing "international regulatory standards and the application of those standards ... regulatory topics at issue... [,] policy positions, and ... possible next steps for the two countries"). It is, therefore, plausible that the Department of Treasury also concluded that disclosure of that information would result in damage to the relations between the United States and the United Kingdom. Mason Decl. ¶ 4. Moreover, the Bank of England specifically requested that the Letter be kept confidential, a request that both indicates the sensitivity of the information contained in the Letter and supports the Department of Treasury's contention that its disclosure could reasonably be expected to damage foreign relations. Def.'s Statement ¶ 2. Any more specificity from the Department of Treasury, particularly with a document of this length, would seemingly "thwart" Exemption 1's original purpose, which this Court is loath to do. See King v. DOJ ,
Finally, the Court does not agree that Competitive Enterprise's primary allegations of bad faith on the Department of Treasury's part-that the agency unnecessarily delayed its response to the FOIA requests and classified the Letter to avoid embarrassment-warrant in camera review. Evidence of bad faith must be "tangible" in order to justify in camera review. Carter v. U.S. Dep't of Commerce ,
*422Ellis v. DOJ ,
Having determined that the Mason Declaration is sufficiently detailed and that the record contains no evidence of bad faith, "in camera review is neither necessary nor appropriate"-particularly given the national security implications of Exemption 1. ACLU ,
V. CONCLUSION
For the foregoing reasons, the Department of Treasury's motion for summary judgment (ECF No. 12) is GRANTED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
"Damage to the national security" includes any harm to the foreign relations of the United States. EO 13,526 § 6.1(1).
Competitive Enterprise also argues that the Letter was not properly classified because the Department of Treasury failed to adhere to the Department of State's Foreign Affairs Manual, which requires the Department of State's input on the classification of "information received from a foreign government." Pl.'s Opp'n 5-6; see 12 FAM 534.1(d)(1)-(4). That argument lacks merit for two reasons. First, because the Letter falls within § 1.4(d) of EO 13,526, pertaining to "foreign relations," it does not and need not necessarily contain "information received from a foreign government," and therefore the Manual need not apply. Second, even if the Letter does contain "foreign government information," the Foreign Affairs Manual applies solely to the classification procedures of "foreign affairs agencies," which the Department of Treasury is not. See 12 FAM 511.1(a)(1)-(5) (listing "foreign affairs agencies").
Competitive Enterprise additionally argues that Mr. Mason's use of statutory language in his declaration necessitates in camera review. See Pl.'s Opp'n at 16 (citing Campbell ,
Competitive Enterprise rests this bad faith argument on the Department of Treasury's response to Ms. Festa, who is not a party to this case. See Pl.'s Opp'n at 4-5. While the Court takes notice of the timeline surrounding Ms. Festa's request, the fact that the agency later determined that the information in the Letter was classifiable, and not a "foreign record," is not tangible evidence of bad faith, nor does it display the extreme sloppiness Competitive Enterprise claims-particularly given the Court's determination that the information in the Letter was indeed classifiable. See Attach. E. While the classification of material after a FOIA request may be problematic in certain cases, the Department of Treasury complied fully with EO 13,526 procedures. See EO 13,526 § 1.7(d) (describing the procedure for post-FOIA request classification); Mason Decl. ¶ 6-10.
Though Competitive Enterprise does little to raise the issue of segregability, the Court has "an affirmative duty to consider the segregability issue sua sponte. " Morley ,
Reference
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- COMPETITIVE ENTERPRISE INSTITUTE v. DEPARTMENT OF TREASURY
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