100Reporters v. U.S. Dep't of State
| Decision Date | 26 April 2022 |
| Docket Number | Civil Action No. 19-1753 (RDM) |
| Citation | 602 F.Supp.3d 41 |
| Parties | 100REPORTERS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Adam Alexander Marshall, Gunita Singh, KatieLynn Boyd Townsend, Reporters Committee for Freedom of the Press, Washington, DC, for Plaintiffs.
Kathleene A. Molen, U.S. Attorney's Office for the District of Columbia, Washington, DC, Paul Cirino, DOJ-ENRD, Washington, DC, for Defendant.
Plaintiffs 100Reporters, a nonprofit investigative news organization, and Douglas Gillison, a journalist, bring this action against the United States Department of State ("Department") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In December 2017, Plaintiffs submitted two FOIA requests to the Department seeking records related to the vetting of foreign security personnel pursuant to two statutes commonly referred to as the "Leahy Laws," 22 U.S.C. § 2378d and 10 U.S.C. § 362. Plaintiffs’ first request sought all records "pertaining to the nomination and/or vetting of foreign military and security personnel and/or units for U.S. training or assistance pursuant to ... the Leahy laws," Dkt. 25-3 at 3 (2d Stein Decl. ¶ 5), although Plaintiffs subsequently narrowed that request to records from the International Vetting and Security Tracking system created on or after January 1, 2017, that relate to Iraq, Afghanistan, Egypt, Colombia, Philippines, Cambodia, Mexico, and Bangladesh, id. at 4 (2d Stein Decl. ¶ 8). Plaintiffs’ second request sought "all guides, manuals, instruction or directions pertaining to" Leahy vetting; the " ‘Report on Government Police Training and Equipping Programs’ submitted to Congress pursuant to § 1235(c) of the Ike Skeleton National Defense Authorization Act for Fiscal Year 2011;" and any similar reports "submitted to Congress in subsequent fiscal years." Id. at 6–7 (2d Stein Decl. ¶ 21). Defendants searched for records responsive to both requests and disclosed some records in full or in part and withheld other records in full. Those withholdings are described in a Vaughn index, which includes fifty entries. See Dkt. 30-3.
Pending before the Court are the Department's motion for summary judgment, Dkt. 25, and Plaintiffs’ cross-motion for partial summary judgment, Dkt. 26. Plaintiffs do not contest the Department's decision to withhold twelve of the records identified in the Vaughn index or to redact certain information, including telephone numbers and email addresses; nor do they challenge the adequacy of the Department's search for records responsive to Plaintiffs’ first FOIA request. Dkt. 26-1 at 7 n.1. That leaves two general categories of dispute: (1) whether the Department adequately searched for the reports to Congress that Plaintiffs requested, and (2) whether the Department has lawfully withheld all or part of thirty-eight records pursuant to FOIA Exemptions 5, 6, 7(C), 7(E), and 7(F).
For the reasons explained below, the Court concludes that the Department's search for the reports to Congress was inadequate but that the Department has met its burden with respect to some, although not all, of the withheld and redacted records. The Court, accordingly, will GRANT in part and DENY in part the Department's motion for summary judgment and DENY Plaintiffs’ cross-motion for partial summary judgment.
First introduced in an amendment to the 1997 Foreign Operations Appropriations Act sponsored by Senator Patrick Leahy, see Dkt. 26-3 at 108, the "Leahy Laws" consist of two provisions: one that applies to the Department of Defense ("DOD"), 10 U.S.C. § 362 ("Defense Leahy Law"), and another that applies to the Department of State, 22 U.S.C. § 2378d ("State Leahy Law"). The Defense Leahy Law prohibits the use of DOD funds for "any training, equipment, or other assistance for a unit of a foreign security force if the Secretary of Defense has credible information that the unit has committed a gross violation of human rights." 10 U.S.C. § 362(a)(1). The prohibition in the Defense Leahy Law, however, does not apply in cases where "the Secretary of Defense, after consultation with the Secretary of State, determines that the government of such country has taken all necessary corrective steps, or if the equipment or other assistance is necessary to assist in disaster relief operations or other humanitarian or national security emergencies." Id. § 362(b). The Secretary of Defense may also waive the prohibition on funds if such a waiver is "required by extraordinary circumstances." Id. § 362(c). The Defense Leahy Law requires "consultation with the Secretary of State" to ensure that "full consideration is given to any credible information available to the Department of State relating to human rights violations." Id. § 362(a)(2). In addition, if DOD withholds funds from a foreign security force under the Defense Leahy Law, the Secretary of Defense must inform "the appropriate committees of Congress." Id. § 362(e).
The State Leahy Law contains a prohibition on funding that closely resembles the Defense Leahy Law: it provides that "[n]o assistance shall be furnished [under Chapter 32 of Title 22, ‘Foreign Assistance’] or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights." 22 U.S.C. § 2378d(a). This prohibition does "not apply," however, "if the Secretary [of State] determines and reports to" the Senate Committee on Foreign Relations, the House Committee on Foreign Affairs, and the Senate and House Committees on Appropriations "that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice." Id. § 2378d(b). The Secretary of State is required to establish and maintain procedures to collect, validate, and preserve vetting information. Id. § 2378d(d). Those procedures must also "ensure that when an individual is designated to receive United States training, equipment, or other types of assistance[,] the individual's unit is vetted as well as the individual." Id. § 2378d(d)(5). If aid is withheld under the State Leahy Law, the Secretary of State must, "to the maximum extent practicable, assist the foreign government in bringing the responsible members of the security forces to justice." Id. § 2378d(c). In addition, the Secretary of State is required to adopt procedures for making "publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished pursuant to" the State Leahy Law. Id. § 2378d(d)(7).
Implementation of both Leahy Laws—known as "Leahy vetting"—begins with the State Department. Dkt. 25-4 at 3 (Blaha Decl. ¶ 6). The Office of Security and Human Rights, within the Bureau of Democracy, Human Rights, and Labor, acts as the "lead contact ... for Leahy vetting policy and workflow issues." Id. at 4 (Blaha Decl. ¶ 9). Each U.S. embassy also has a "point of contact with responsibility for oversight of, and compliance with, Leahy vetting procedures." Id. When a foreign security force or one of its members is nominated to receive assistance from DOD or the State Department, the U.S. embassy in the unit's home country opens a case in the International Vetting and Security Tracking ("INVEST") system, which serves as the "official system of record and medium for conducting Leahy vetting." Dkt. 26-3 at 21.1 The embassy then conducts "consular, political, and other security and human rights checks," including checks on the credibility of derogatory information. Dkt. 25-4 at 3 (Blaha Decl. ¶ 6). If a unit is designated for U.S. assistance, the State Department, "at a minimum, vets the unit and the unit's commander." Id. If an individual is designated for such assistance, the State Department "vets that individual as well as his or her unit." Id. In most cases, "an additional review is conducted by [State] Department analysts in Washington, D.C." after embassy officials have conducted checks. Id. When DOD-funded assistance is at issue, the State Department "conducts Leahy vetting and provides DOD with pertinent derogatory information," but "DOD is ultimately responsible for [its] compliance with the [Defense] Leahy law." Id.
Plaintiff 100Reporters is a nonprofit investigative news organization in Washington, D.C. Dkt. 1 at 2 (Compl. ¶ 3). Plaintiff Douglas Gillison is a journalist who previously reported for 100Reporters; he now reports for Agence France-Presse. Id. (Compl. ¶ 5). According to Plaintiffs, their reporting has "revealed instances in which United States assistance or training was given to individuals or units of the security forces of a foreign country despite credible information that the individual or unit committed a gross violation of human rights, contrary to the Leahy Laws’ requirements." Id. at 6 (Compl. ¶ 19). Through FOIA requests and this suit, Plaintiffs "seek to inform the public about Leahy [v]etting generally, specific examples of individuals or units that have undergone Leahy [v]etting, and possible violations of the Leahy Laws." Id. at 8 (Compl. ¶ 23).
On December 15, 2017, Plaintiffs filed two FOIA requests with the State Department. In their first request, Plaintiffs sought "all records prepared, collected or maintained by the [State Department] pertaining to the nomination and/or vetting of foreign military and security personnel and/or units for U.S. training or assistance pursuant to ... the Leahy Laws." Dkt. 25-6 at 2 (Ex. B). This request included "[a]ll entries in the State Department's International Vetting and Security Tracking [s]ystem, also known as INVEST, ... and all records [that] system[ ] may contain." Id. On March 19, 2018, Plaintiffs narrowed their first request to records...
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