REGGIE B. WALTON, United States District Judge
David L. Cleveland, the plaintiff in this civil matter, alleges that the defendant, the Department of State ("the State Department"), violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), by not providing to him the documents requested and by failing to process his FOIA request within the statutorily mandated twenty-day timeframe. See Complaint for Declaratory and Injunctive Relief ("Compl.") ¶¶ 16-21. Currently before the Court are the parties' cross-motions for summary judgment. See Plaintiff's Motion for Summary Judgment ("Pl.'s Mot.") at 1; Defendant's Motion for Summary Judgment ("Def.'s Mot.") at 1. After carefully considering the parties' submissions,
The plaintiff's FOIA request concerns a fifteen-page report issued by the State Department on May 24, 2012, entitled "Country Reports on Human Rights Practices for 2011-Cameroon" (the "Report"). Pl.'s Mem. at 3; see also Pl.'s Mot., Exhibit ("Ex.") 1 (the "Report"). Specifically, the plaintiff sought "a copy of all documents or electronically stored information relating to [the Report]." Pl.'s Mem., Ex. 2 (plaintiff's September 17, 2012 FOIA request, which was provided to the Court as an attachment to the complaint ("FOIA request")). The Report was prepared
Hackett Decl. ¶ 11. However, the Report does not cite any specific sources as support for the numerous factual assertions set forth in the Report. See Pl.'s Mem. at 3-4.
The plaintiff submitted his initial FOIA request to the State Department on September 17, 2012. Hackett Decl. ¶ 4; Pl.'s Facts ¶ 5. In that request, the plaintiff sought "all documents or electronically stored information relating to [the Report] which was published on May 24, 2012." Hackett Decl. ¶ 4; Pl.'s Mem., Ex. 2 (FOIA request). Specifically, the plaintiff sought information regarding
Hackett Decl. ¶ 4; Pl.'s Mem., Ex. 2 (FOIA request). The plaintiff requested that the State Department
Pl.'s Mem., Ex. 2 (FOIA request). The plaintiff indicated that he was willing to pay up to $50 for the responsive documents and was seeking the information "for personal use and not for commercial use." Id. He was notified on September 19, 2012, that the Office of Information Programs and Services ("IPS") "would begin processing his request based upon the
On September 2, 2014, two years after the plaintiff made his FOIA request,
Hackett Decl. ¶¶ 8, 12-26. Of these fifty-six responsive documents, "IPS released [five] documents in full, [fourteen] documents in part, ... withheld ... [thirty-seven] documents [in full, and] advised [the p]laintiff that one document required interagency coordination." Id. ¶ 8. Ultimately, on November 20, 2014, in its Hackett Declaration, the State Department notified the plaintiff that the interagency review "had been completed and the document was released in part." Id. ¶ 9. It also provided a narrative Vaughn index.
The plaintiff contends that he is entitled to summary judgment because the State Department failed to: (1) conduct a search adequate to discover documents responsive to his FOIA request; (2) describe the responsive documents it has withheld from disclosure; (3) provide the reasons why the documents are exempt from disclosure; and (4) explain why portions of the withheld documents cannot be segregated from the exempt portions of the documents and produced to him. See generally Pl.'s Mot.; Pl.'s Mem. The State Department opposes the plaintiff's motion in all respects. See generally Def.'s Mot.; Def.'s Mem. I. As noted, the State Department also requests summary judgment, arguing that (1) it conducted adequate searches for responsive documents; (2) the documents and information not produced to plaintiff are exempt from disclosure; and (3) all reasonably segregable material has been released to the plaintiff.
Courts will grant a motion for summary judgment "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); Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 67 F.Supp.3d 290,
Courts review an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and "FOIA cases typically and appropriately are decided on motions for summary judgment," ViroPharma Inc. v. HHS, 839 F.Supp.2d 184, 189 (D.D.C.2012) (citations omitted). In a FOIA action to compel production of agency records, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates `that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978)).
Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are "relatively detailed and nonconclusory," Safecard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotations and citations omitted), and when they "describe the documents and 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 [or] by evidence of agency bad faith," Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with `specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C.2010) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)).
For the reasons that follow, the Court finds that: (1) the defendant conducted reasonable and adequate searches, where necessary; (2) the defendant withheld from disclosure only information based properly on a FOIA exemption; and (3) the defendant released all reasonably segregable information not otherwise exempt from disclosure.
The adequacy of an agency's search is measured by a standard of reasonableness under the attendant circumstances.
In response to the plaintiff's FOIA request, the State Department "evaluate[d] the request to determine which offices, overseas posts, or other records systems within the Department may reasonably be expected to contain the records requested." Hackett Decl. ¶ 12. "After reviewing [the p]laintiff's request, [the Office of Information Programs and Services ("IPS")] determined that the only offices reasonably likely to have documents responsive to [the p]laintiff's request were the Bureau of Democracy, Human Rights, and Labor[;] the Bureau of African Affairs[;] and the U.S. Embassy in Yaoundé, Cameroon." Id. ¶ 14.
Id. ¶ 15 (emphasis added).
In conducting its search of the DRL:
Id. ¶ 16. After conducting this search the State Department "located [fourteen] responsive documents." Id. ¶ 17. Of these fourteen responsive documents, "[t]he Department released [two] documents in part and withheld [twelve] documents in full." Id.
In conjunction with the review of the plaintiff's FOIA request, the "DRL determined that since [the p]laintiff's FOIA request was for records relating to the Human Rights Report for Cameroon, the only DRL component reasonably likely to maintain responsive records was the Office of Africa (`DRL/AF')." Id. ¶ 15.
Id. ¶ 18. In considering the plaintiff's FOIA request, the Bureau of African Affairs
Id. Neither the Executive Office nor the Office of Central Africa maintain paper records. Id. ¶¶ 19, 20. And while the Office of Regional Security Affairs "keeps very limited paper records, which are organized by subject, country, and [Traffic Analysis by Geography and Subject (`TAGS')]," id. ¶ 21, all three offices organize their electronic records by country and issue, and the records "consist[] of an electronic shared drive (a directory of folders stored on a local network), Word documents, and e-mails,"
Additionally, "[u]pon review of the [plaintiff's] FOIA request, a Foreign Service Officer who was knowledgeable of both the [plaintiff's] FOIA request at issue and the records system of the U.S. Embassy at Yaoundé[, Cameroon] determined that the only component reasonably likely to contain responsive records was the Political-Economic (`POL/ECON') Section." Id. ¶ 23.
Id. In conducting searches of its paper
Finally, while the State Department "determined [that although] the Central Foreign Policy Records [were] not reasonably likely to contain responsive records," Def.'s Mem. II at 11, because the plaintiff specifically
Hackett Decl. ¶ 26. The Central Foreign Policy Records repository
Id. "This search located no responsive documents." Id.
The Hackett Declaration demonstrates the State Department's thorough and methodological approach in responding to each component of the plaintiff's FOIA request. As the Court has explained, in processing each element of the plaintiff's request, the State Department considered "which offices, overseas posts, or other records systems ... [would] reasonably be expected to contain the records requested," id. ¶ 12, and subsequently searched those entities using specific search terms and discrete time periods, id. ¶¶ 15-16, 18-21, 23-24. Moreover, based on the specificity of the plaintiff's request, the State Department explicitly searched the Central Foreign Policy Records despite its prior conclusion that it was unlikely that this repository contained responsive records.
"Once an agency has made a prima facie showing of adequacy, the burden shifts to the plaintiff to provide ... evidence sufficient to raise `substantial doubt' concerning the adequacy of the agency's search." Schoenman v. FBI, 764 F.Supp.2d 40, 46 (D.D.C.2011) (citing Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C.Cir.2003)). To that end, the plaintiff submits that the State Department "has failed to conduct an adequate search" for documents used to compile its 2011 Cameroon Report because it "did not produce
Equally unpersuasive is the plaintiff's assertion that the State Department "should provide at least as many documents in this case as it did in the case of Tarzia v. Clinton [,10-cv-5654(FM), 2012 WL 335668 (S.D.N.Y. Jan. 30, 2012) (emphasis added)],"
Relying on Exemption 5, of the fifty-seven responsive documents discovered by the State Department, thirty-six documents were withheld in their entirety and sixteen documents were withheld in part. See Hackett Decl. ¶ 48. With the exception of document C05509987, which was withheld in part pursuant to Exemption 6, see id. ¶ 46, all of the documents that were withheld either in full or in part were withheld pursuant to Exemption 5, see id. ¶¶ 36-47. Although the plaintiff raises no objections to the State Department's assertion that the withheld documents fall within the scope of FOIA Exemptions 5 and 6, see generally Pl.'s Opp'n (raising no opposition to the State Department's assertions of Exemption 5 and 6); Def.'s Mem. at 12-16 (asserting Exemption 5 and 6), Def.'s Mem. II at 12-16 (same), the Court will nonetheless examine the propriety of the State Department's invocation of both Exemptions.
Exemption 5 of the FOIA provides that "inter-agency or intra-agency memorand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency" are not subject to disclosure. 5 U.S.C. § 552(b)(5). "To qualify [for non-disclosure under Exemption 5], a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001).
The threshold issue that must be addressed when Exemption 5 is asserted is whether the records in question qualify as "inter-agency or intra-agency memorand[a]." Judicial Watch, Inc. v. U.S. Dep't of Commerce, 90 F.Supp.2d 9, 13 (D.D.C.2000). "With respect to the secondary consideration under Exemption 5 — whether such materials would not be `available by law in litigation with the agency,'" id. "the parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery," Burka v. U.S. Dep't of Health & Human Servs., 87 F.3d 508, 516
The deliberative process privilege protects from disclosure "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Klamath, 532 U.S. at 8, 121 S.Ct. 1060. The purpose of the deliberative process privilege is "(1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they finally are adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationale that were not in fact ultimately the grounds for an agency's action." Defenders of Wildlife v. U.S. Dep't of Agric., 311 F.Supp.2d 44, 57 (D.D.C.2004) (citing Russell v. Dep't of Air Force, 682 F.2d 1045, 1048 (D.C.Cir.1982)); Coastal States, 617 F.2d at 866; Jordan v. U.S. Dep't of Justice, 591 F.2d 753, 772-73 (D.C.Cir.1978) (en banc)). Thus, when a court reviews whether an agency properly withheld documents under the deliberative process privilege, the critical question to ask is whether "disclosure of [the] materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Formaldehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1122 (D.C.Cir.1989) (internal quotation marks omitted and alteration in original) (quoting Dudman Commc'ns Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C.Cir.1987)); see also Sears, 421 U.S. at 151, 95 S.Ct. 1504 (noting that the "ultimate purpose of [the deliberative process] privilege is to prevent injury to the quality of agency decisions").
To be exempt from disclosure under the deliberative process privilege, the agency must show that the information is both (1) "predecisional" and (2) "deliberative." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C.Cir.2002). "A document is predecisional if it was `prepared in order to assist an agency decision-maker in arriving at his decision,' rather than to support a decision already made." Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1434 (D.C.Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975)). The preparation of the document, therefore, must be "[a]ntecedent to the adoption of an agency policy." Jordan, 591 F.2d at 774. However, a document cannot be characterized as predecisional "if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States, 617 F.2d at 866. Examples
Citing the deliberative process privilege, the State Department withheld thirty-six documents in their entirety and redacted sixteen documents prior to their disclosure, see Def.'s Mem. II at 12-15; Hackett Decl. ¶ 48, asserting that the redacted portions of the responsive documents contain "draft text, ... editing comments[,] and suggested red-line edits" and thus are deliberative and predecisional, see id. ¶¶ 36, 37, 38, 40, 41, 42, 43, 44, 45. Among the documents withheld are four unclassified "[fifty-two]-page drafts of the 2011 Cameroon Human Rights Report."
In addition to the previously discussed withheld documents, the State Department also withheld, in part, "intra-agency e-mail exchanges among Department officials discussing revisions to the [Report],"
The plaintiff does not contest the State Department's characterization of the withheld documents as part of the deliberative process privilege that are exempt from disclosure pursuant to Exemption 5. Accordingly, and for the reasons explained above, the Court concludes that the defendants properly asserted Exemption 5 to withhold the documents at issue under the deliberative process privilege.
Exemption 6 of the FOIA provides that "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," are not subject to disclosure. 5 U.S.C. § 552(b)(6). "To determine whether an agency has properly invoked ... [a] personal privacy exemption[], a court must balance the public interest in disclosure against the privacy interest the exemption is intended to protect." Moore, 601 F.Supp.2d at 13 (citing Dep't of State v. Ray, 502 U.S. 164, 175, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)). "Generally, government employees and officials... have a privacy interest in protecting their identities because disclosure `could subject them to embarrassment and harassment in the conduct of their official duties and personal affairs.'" Moore, 601 F.Supp.2d at 14 (quoting Halpern v. FBI, 181 F.3d 279, 296-97 (2d Cir.1999)).
The State Department redacted the "mobile phone number of [one] U.S. Government employee" from document C05509987, citing the employee's "strong privacy interest in his or her personal phone number because the release of this information could result in unwanted attention or harassment." Hackett Decl. ¶ 32. Specifically, the Acting Director of the defendant's Office of Information Programs and Services determined that the release of the employee's phone number "would constitute a clearly unwarranted invasion of personal privacy" because it "would not serve the `core purpose' for which Congress enacted the FOIA ... [and] would shed no additional light on the conduct of government business." Id. ¶¶ 1, 33, 34. The plaintiff has raised no public interest that would be served by the disclosure of the employee's phone number. Moreover, he does not challenge the defendant's invocation of Exemption 6. Pl.'s Opp'n at 3. Thus, the defendant's invocation of FOIA Exemption 6 was proper.
Under the FOIA, "even if [the] agency establishes an exemption, it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s)." Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1167 (D.C.Cir.2011). "[I]t has long been the rule in this Circuit that non-exempt portions of a document must
Here, the State Department's series of "Version" drafts that preceded the adoption of the final Report are not duplicate copies of identical documents, but rather are successive evolving renditions of the Report "that reflect[] an internal dialog between Department employees about how to update the [Report] ... in an effort to reach a consensus on a final version of the report." Hackett Decl. ¶¶ 29, 39, 41, 42, 43, 44. Additionally, the State Department did not withhold any of these documents in their entirety, but instead, "conducted a line-by-line review" of the draft copies of the Report, as it did with all responsive documents, to ensure that all "reasonably segregable, non-exempt material" was released to the plaintiff. Id. ¶¶ 36-47. While the drafts of the Report, specifically Versions 2 through 5, as well as the preliminary and undated drafts, were withheld in full, portions of Version 1, as well as the intra-agency e-mail exchanges, other than "editing comments regarding the draft text [of the Report]," were released to the plaintiff. Id. Furthermore, two documents originally withheld in full, "in an abundance of caution," were subsequently reviewed and eventually released to the plaintiff in part. See id. ¶¶ 8-9.
Based on the State Department's unchallenged representation that it has "conducted a line-by-line review" of each document responsive to the plaintiff's FOIA request, including draft copies of the Cameroon Report, to ensure that all "reasonably segregable, non-exempt material" was released to the plaintiff, id. ¶¶ 36-47, the Court concludes that the Department has satisfied its segregability obligation under the FOIA, see, e.g., DiBacco v. U.S. Dep't of the Army, 983 F.Supp.2d 44, 65 (D.D.C.2013) (finding the agency's segregability requirement satisfied where it conducted a "document-by-document" review for segregable information and the plaintiffs failed to offer evidence rebutting the agency's representations in this regard in its declaration)
For the foregoing reasons, the State Department has submitted sufficient factual detail for the Court to find that it conducted reasonable and adequate searches to discover documents responsive to the plaintiff's FOIA request, released to the plaintiff all documents not otherwise subject to an applicable FOIA Exemption, and released to the plaintiff all reasonably segregable information not otherwise exempt from disclosure. Accordingly, the Court must grant the State Department's motion for summary judgment.
The Court is, however, deeply disappointed with the State Department's submission. The Court granted the State Department's contested Motion for Extension of Time to Respond to Plaintiff's Motion for Summary Judgment, ECF No. 14, finding that it was "in the interest of ensuring a just and accurate resolution of this case" to grant the request. Order, ECF No. 16 at 2. Specifically, the Court justified granting the State Department's request because it wanted to "ensure [that] the issues [would be] briefed as thoroughly and concisely as possible." Id. (internal citations omitted). It was certainly not the Court's expectation that the State Department would simply recycle its original opposition, adding only a Response to the Plaintiff's Statement of Material Facts, and fashion it as a reply. Compare ECF No. 17 with ECF No. 18.