Am. Ctr. for Law & Justice v. U.S. Dep't of State
Am. Ctr. for Law & Justice v. U.S. Dep't of State
Opinion of the Court
The Israeli-Palestinian conflict casts a long shadow, one that extends even to this Freedom of Information Act suit. Plaintiff here, the American Center for Law and Justice, challenges the State Department's withholding of portions of a report containing information about the work of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). State withheld the information under FOIA Exemption 1, contending that its release would be a threat to national security. In this suit, ACLJ challenges the withholding, and State now moves for summary judgment. Because the Court finds *5that the invocation of Exemption 1 is sound, it will grant the Motion.
I. Background
ACLJ is a non-profit organization "dedicated to the defense of constitutional liberties secured by law." ECF No. 1 (Compl.), ¶ 5. In line with its mission, Plaintiff regularly makes records requests to federal, state, and local governments and then publishes its findings. Id. This case stems from one such request. In recounting the procedural history, the Court, for the purposes of this Motion, accepts as true ACLJ's factual retelling of all that has transpired.
On February 15, 2018, Plaintiff submitted a FOIA request to State's Office of Information Programs and Services (IPS) seeking various documents related to the work of the UNRWA. Id., ¶ 7. The request specifically asked for a State Department report concerning UNRWA aid to Palestinian refugees. Id. When Defendant failed to make a determination within the requisite twenty-day period, Plaintiff filed the instant Complaint. Id., ¶¶ 31-33; see
ACLJ later amended its request, limiting it to the specific UNRWA Report to Congress on Protracted Refugee Situations. See ECF No. 15-4 (Defendant's Statement of Undisputed Material Facts), ¶ 3; see also ECF No. 16-2 (Redacted Report). Congress directed the State Department to write such a report on UNRWA activities. See S. Rep. No. 113-81, at 70 (2013). The Report included information concerning the number of people receiving UNRWA services and the extent to which such services further the security interests of the United States and Middle Eastern allies. See Redacted Report at 1, 3, 4; see also ECF No. 15-1 (Declaration of Eric F. Stein), ¶ 14.
On July 13, 2018, State released most of the five-page Report but withheld certain portions pursuant to FOIA Exemption 1. See Reply at 5; Stein Decl., ¶¶ 16-30. As a classified document, the Report contained a classification rationale and related markings by Anne C. Richard, the Assistant Secretary for the Bureau of Population, Refugees, and Migration (PRM). Richard had original classification authority to review the Report. See Stein Decl., ¶ 16. Further explaining the document's classification, State submitted the Declaration of Eric F. Stein, Director of IPS, who also had original classification authority.
II. Legal Standard
Summary judgment may 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). "A genuine issue of material fact is one that would change the outcome of the litigation." Laverpool v. Dep't of Hous. & Urban Dev.,
FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of the U.S. Trade Representative,
III. Analysis
Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose,
On the other hand, "Congress was also aware that 'legitimate governmental and private interests could be harmed by release of certain types of information.' " AquAlliance v. U.S. Bureau of Reclamation,
*7Elec. Privacy Info. Ctr. v. Office of the Dir. of Nat'l Intelligence,
In the spotlight here is Exemption 1, which covers matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order."
ACLJ mounts two types of challenges here, which may be defined as procedural and substantive. As to the former, it argues that, because State has not complied with the technical requirements of Executive Order 13526 - the E.O. governing classification - its invocation of Exemption 1 was improper. As to the latter, it maintains that Defendant has not produced a sufficient substantive basis for its withholdings. The Court looks at each separately.
A. Procedural Requirements
E.O. 13526 enumerates a number of procedural requirements that the Government must satisfy in classifying information. See
1. Markings and Assurances
Section 1.6 of the Executive Order requires documents at the time they are *8classified to contain five sets of markings: (1) that the information was within one of the three classification levels; (2) the identity, by name and position, of the original classification authority; (3) the agency and office of origin; (4) instructions for declassification; and (5) a concise reason for classification that, at a minimum, cites the applicable classification categories. The Report contains each of these markings: (1) it was labeled "Confidential"; (2) Anne C. Richard's name and position were given; (3) PRM, the office of origin, was cited; (4) it set the declassification date to occur on January 14, 2025; and (5) Reason 1.4(d) was provided as an applicable classification category. See Redacted Report.
ACLJ nonetheless argues that Richard failed to "ma[k]e certain" that the Report was properly classified under these requirements. See Opp. at 6 (quoting Canning v. U.S. Dep't of State,
Plaintiff next argues that because Richard invoked § 1.4(d) as her classification rationale while Stein cited both § 1.4(b) and § 1.4(d), this somehow renders the entire classification improper. The Court is not persuaded. Section 1.6 of the Order requires that the relevant document contain "a concise reason for classification that, at a minimum, cites the applicable classification categories." E.O. 13526, § 1.6.(a)(5). This reason must be "immediately apparent" at the time of the original classification.
2. Adequate Explanations
E.O. 13526 gives a number of requirements for classifying government documents. One of these states that the original classification authority must "determine[ ] that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security." E.O. 13526, § 1.1(a)(4). Plaintiff argues both that Richard failed to identify such relevant threats and that Stein was incapable of curing her omission, as that duty is reserved solely to the classification authority who reviews the Report "in the first instance." Opp. at 7 (quoting E.O. 13526 § 6.1(gg) ). In other words, because Richard did not fully explain the threat in *9classifying the original Report, Stein cannot bolster her effort with a subsequent affidavit.
This position holds no water. Plaintiff misinterprets the Order to mean that Richard must have articulated possible threats initially. ACLJ cites no caselaw to support this proposition, and with good reason - it does not exist. State properly asserts that the determining factor is whether a present-day original classification authority (in this case, Stein) is able to certify, based on his own independent review of the information, that it presently meets the standards for classification. See, e.g., Larson,
This does not mean, however, that Richard - who first marked the document classified - has no duties in this respect. Rather, the Order is clear that "[a]t the time of original classification," the classification authority must provide "a concise reason for classification that, at a minimum, cites the applicable classification categories in section 1.4." E.O. 13526, § 1.6(a)(5). This Richard has done. On her initial markings, she wrote, "Classified by: PRM Assistant Secretary Anne C. Richard E.O. 13526, Reason 1.4(d)." No more is needed.
Having determined that all procedural requirements were satisfied, the Court now turns to Plaintiff's arguments as to substance.
B. Substantive Requirements
ACLJ next contends that Defendant has not complied with Exemption 1's substantive requirements because: (1) the material is not properly classified under either § 1.4(b) or § 1.4(d); (2) previous public discussion of the issues means that classification is inappropriate; and (3) the rationale provided is pretext for Defendant to cover its "embarrassment." Opp. at 7-13.
1. Appropriately Classified
To show that the material was properly classified under § 1.4(b) and § 1.4(d) - and thus properly withheld - the Government offers Stein's Declaration, which "need only be plausible and logical to justify the invocation of a FOIA exemption in the national security context." ACLU,
a. Personal Knowledge to Classify
Even though ACLJ does not challenge Stein's classification authority, it contends that he did not establish his personal knowledge when he based his classification on "information [that had] been furnished" to him. See Opp. at 10; Stein Decl., ¶ 1. Declarations in the FOIA context are held to be sufficient where the declarant "attests to the personal knowledge of the procedures used in handling a FOIA request and his familiarity with the documents in question." Hall v. CIA,
Unsatisfied with this standard, Plaintiff then attempts to tack on requirements that Stein specify the precise means by which he learned of this information, such as whether it came through a "review of documents, testimony, or written statements." Opp. at 10. ACLJ cites no basis for such intensive inquiry, and this Court does not impose one today. Cf. Carney v. U.S. Dep't of Justice,
b. Rationales
ACLJ also takes issue with each of Stein's classification rationales. Recall that under § 1.6(a)(5) of the Order, an original classification authority must provide a "concise reason for classification that, at a minimum, cites the applicable classification categories in section 1.4 of [the Order]." Two rationales are offered in the Declaration: § 1.4(b) and § 1.4(d). ACLJ suggests that Stein, somehow knowing Richard's § 1.4(d) classification to be insufficient standing alone, attempted to pull the wool over its eyes by later asserting § 1.4(b) without requisite explanation. See Opp. at 10.
Yet Stein gave a plethora of reasons as to why both § 1.4(b) and (d) were accurate rationales to support classification. With respect to § 1.4(b), he stated that: (a) "A portion of the classified information is 'foreign government information' provided to the Department by a foreign government or international organization with the expectation that it would be kept confidential," id., ¶ 16; (b) "A representative of the source of this foreign government information recently reaffirmed to a State Department official that it continues to have the same expectation of confidentiality with respect to the information provided to the State Department, which was utilized in the report," id.; and (c) "Additional classified information in the report was derived from other State Department sources discussing the region, which were themselves classified at the [c]onfidential level." Id.
*11Plaintiff asserts that these are conclusory, again requesting information as to the source and method of communication with this representative, as well as raising other specific questions as to the nature of Stein's knowledge of these discussions with foreign officials. See Opp. at 8, 10. State has no obligation to answer Plaintiff's multitude of questions - in fact, E.O. 13526 does not "require that a classifying authority indicate the person who classified the information in question or when [that] information [was] originally classified." Canning,
His Declaration also explains specific harms that would likely occur as a result of the information's release. He notes that the "ability to obtain information from foreign governments is essential to the formulation and successful implementation of U.S. foreign policy," and that the "[r]elease of foreign government information provided in confidence ... would cause foreign officials to believe that U.S. officials are not able or willing to observe the confidentiality expected in such interchanges." Stein Decl., ¶ 26. He then describes the potentially damaging impact release would have on a "number of our bilateral relationships with countries whose cooperation is important to U.S. national security." Id.; see also id., ¶¶ 27-29 (describing further potential harm to foreign relations from disclosure). It is against precisely such harm to the Government's "foreign relations" that § 1.4(d) seeks to protect. These statements are thus sufficient because they demonstrate that "the withheld information logically falls within the claimed exemption[s]" - namely, the ones identified in both § 1.4(b) and § 1.4(d). See Larson,
ACLJ last argues that the "proper justification for withholding the information under Section 1.4(d) relies upon a proper showing under Section 1.4(b)." Opp. at 11. Put simply, Plaintiff seems to believe that a § 1.4(d) classification cannot stand on its own. See Opp. at 10-11. This contention founders on two shoals. First, the Court has just determined that State has made a sufficient showing under § 1.4(b). Second, Stein has also satisfactorily explained why the § 1.4(d) classification was appropriate, an explanation this Court accepts. See Stein Decl., ¶¶ 17-18; 27-29; see also Larson,
With both § 1.4(b) and (d) properly invoked, ACLJ's argument falls apart. The Executive Order requires only that "the information is within one or more of the [protected] categories ... listed in section 1.4" of the Order. See E.O. 13526, § 1.1(a) (emphasis added). The Court sees no reason why the existence of a second legitimate basis for withholding in addition to the one rightly claimed by Richard should invalidate the document's protection from disclosure.
2. "Public" Disclosure and Congressional Requests to Declassify
As with many frustrated folk, Plaintiff then takes to the Internet. ACLJ posits that the discussion there of topics similar to those classified here and a letter by members of Congress requesting declassification of the Report undermine the Government's contention that disclosure could actually pose a threat to national *12security. See Opp. at 12. In other words, any classification would be inappropriate.
The Court is not convinced. ACLJ bases its first claim on the fact that some topics similar to information referred to in three of the classified paragraphs are "routinely provided and/or discussed on UNRWA's website." Opp. at 11. Plaintiff asserts that, because of the "broad public discussion" of these topics, it is "inconceivable" that the information withheld would pose a legitimate threat to national security if released. Id. at 12.
As an initial matter, the Court notes that ACLJ's conclusion does not necessarily follow from its premise. For instance, it is entirely possible that the government did not rely on "information provided ... by a foreign government," E.O. 13526, §§ 1.4(b), 6.1(s)(1), in compiling information within a certain topic at one time, but did at a later time. But more significantly, Plaintiff's assertions run headlong into State's assessment of the impact of disclosure. Stein has provided a long list of potential harms to foreign relations or activities of the United States in the event of release, including "damage to [ ] a number of our bilateral relationships with countries whose cooperation is important to U.S. national security, including some in which public opinion might not currently favor close cooperation with the United States" and the possibility that the withheld information would "impair the U.S.['s] ability to continue [as] an intermediary" in related negotiations. Id., ¶ 27. He further states that the "ability to obtain information from foreign governments is essential to the formulation and successful implementation of U.S. foreign policy." Id., ¶ 26. "Courts in this circuit have consistently deferred to executive affidavits predicting harm to national security, and have found it unwise to undertake searching judicial review of such claims." Unrow Human Rights Impact Litig. Clinic v. U.S. Dep't of State,
Nor is there any basis to a possible claim that State has waived its classification authority through an official acknowledgment. It is true that, where "the government has officially acknowledged information, a FOIA plaintiff may compel disclosure of that information even over an agency's otherwise valid exemption claim." ACLU v. U.S. Dep't of Defense,
Plaintiff then points to a letter written by certain members of Congress to President Trump that requested that the information be declassified. See Opp. at 12; Letter to Donald J. Trump, President of the United States, from Members of the United States House of Representatives (Apr. 18, 2018). It is a dangerous proposition indeed that executive-branch determinations should be overruled by a simple missive from a few members of the legislature. Such a theory would overturn years of deference to executive affidavits in matters *13of national security and potentially implicate separation of powers. See, e.g., Larson,
3. Embarrassment
Plaintiff takes a final swing, positing that State is merely trying to save face by classifying this hot-button information. See Opp. at 13. It is true that E.O. 13526 § 1.7(a) provides that classification shall not be used to "prevent embarrassment to a person, organization, or agency." ACLJ's argument, however, is mere unsupported speculation, and the Court will not entertain it. See, e.g., Competitive Enter. Inst.,
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant's Motion for Summary Judgment. A separate Order so stating will issue with this Opinion.
Reference
- Full Case Name
- AMERICAN CENTER FOR LAW AND JUSTICE v. UNITED STATES DEPARTMENT OF STATE
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- 3 cases
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- Published