Judicial Watch, Inc. v. Export-Import Bank

• Decision Date: 09 August 2000
• Docket Number: No. C.A. 99-1693(RCL).,C.A. 99-1693(RCL).
• Citation: 108 F.Supp.2d 19
• Parties: JUDICIAL WATCH, INC. Plaintiff, v. EXPORT-IMPORT BANK, Defendant.
• Court: U.S. District Court — District of Columbia

108 F.Supp.2d 19

JUDICIAL WATCH, INC. Plaintiff, v. EXPORT-IMPORT BANK, Defendant.

No. C.A. 99-1693(RCL).

United States District Court, District of Columbia.

August 9, 2000.

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Larry Klayman, Judicial Watch, Inc., Washington, D.C., for Plaintiff or Petitioner.

Scott S. Harris, Assistant United States Attorney, Washington, D.C., for Defendant or Respondent.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the Court on defendant Export-Import Bank's ("the Bank") motion for summary judgment and plaintiff Judicial Watch's cross-motion for summary judgment. For the following reasons, defendant's motion is granted in part and denied in part, and plaintiff's motion is granted in part and denied in part.

BACKGROUND

I. Facts

On May 22, 1999, Judicial Watch submitted a Freedom of Information Act ("FOIA") request to the Bank. The Bank received Judicial Watch's five-part request on May 25, 1999. Judicial Watch sought records pertaining to 1) "the application, analysis, consideration, and/or granting of export insurance for goods and services considered for exportation and/or exported to the People's Republic of China from January 20, 1993 to the present"; 2)(a) "the appointment of James Harmon and Maria Haley to the Export-Import Bank," and (b) "their contact with companies, entities, and/or persons related or doing or conducting business in any way with the People's Republic of China"; 3) "contact and/or communication by James Harmon and/or Maria Haley with the government officials and/or agents of the People's Republic of China"; 4) "contact and/or communication by James Harmon and/or Maria Haley with Tony Coehlo"; and 5) "Tony Coehlo and/or Wertheim-Schroeder." Complaint, at ¶ 5.

According to Judicial Watch, it had neither received a response to its request within twenty working days nor a statement from the Bank articulating the reason for the delay, as required by 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B)(i)-(iii). The Bank, however, wrote Judicial Watch on July 21, 1999, explaining that the delay resulted from Judicial Watch's lack of cooperation. Specifically, Judicial Watch had agreed during a June 4, 1999 telephone conversation to clarify the request, but never called the Bank back to do so. In addition, the Bank called Judicial Watch several more times and left messages (on June 9, 11, and 16, 1999) which were not returned. Nevertheless, Judicial Watch determined that it had exhausted its administrative remedies and filed this lawsuit on June 24, 1999, to compel disclosure.

Pursuant to the FOIA, the Bank conducted a search for responsive records and made disclosures to the plaintiff. The disclosure occurred in three phases. First, on September 2, 1999, the Bank released 335 pages of documents, either in redacted form or their entirety, responsive to parts 2 through 5 of the request. The Bank also referred 35 responsive documents to the Department of Commerce for review and direct response to Judicial Watch. Second, on September 20, 1999, the Bank released 50 pages from Director Haley's telephone logs, which were responsive to parts 2 through 5 of the request. Third, on December 15, 1999, the Bank released 16,683 pages, either in redacted form or in their entirety, responsive to part one of the request. The Bank, however, withheld seven binders of documents, totaling 2,113 pages, and 137 insurance applications that were either withdrawn or denied by the Bank.

II. The Export-Import Bank

To evaluate the legal issues in this FOIA suit, the following background information pertaining to the Bank is useful. The Bank is an agency of the United States government. Its purpose is to aid in financing and facilitating exports and the exchange of goods and services between the United States and foreign countries. 12 U.S.C. § 635(a)(1). The Bank is founded on the premise that it is in the United States' interest to "foster expansion of manufactured goods, agricultural products, and other goods and services, thereby contributing to the promotion and maintenance of high levels of employment and real income and to the increased development of the productive resources of the United States". 12 U.S.C. § 635a(b) and (c). To achieve this goal, the Bank is authorized to provide guarantees, insurance, and extensions of credit on competitive terms to United States businesses that seek to export goods and services to other countries, particularly where private financing and insurance is unavailable because of risk factors specific to the country importing those goods. Id.; see also Declaration of Joseph A. Sorbera ("Sorbera Decl."), App. A, at 2. Governance of the Bank is by a five-member Board of Directors, all of whom are appointed by the President with the approval of the U.S. Senate. 12 U.S.C. § 635a(b) and (c).

ANALYSIS

In light of this background, the Court must dispose of two legal issues. First, whether the Bank's search for responsive records was adequate. Second, whether the Bank properly withheld information from Judicial Watch and segregated nonexempt information for disclosure.

I. The Freedom of Information Act

The FOIA, 5 U.S.C. § 552 (1994 & Supp. II 1996), stipulates that any person has a right of access to federal agency records, except for those records protected from disclosure by one of nine exemptions. The purpose of the FOIA is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978).

When an agency withholds requested information, it must demonstrate that the information is exempt from disclosure. 5 U.S.C. § 552(a)(4)(B). Accordingly, the agency submits an index to the court which must adequately describe the withheld information and explain the relevance of each exemption. Founding Church of Scientology v. Bell, 603 F.2d 945, 946 (D.C.Cir.1979); Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973). Further, "[i]f a document contains exempt information, the agency must still release `any reasonably segregable portion' after deletion of the nondisclosable portions." Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C.Cir.1996)(citing 5 U.S.C. § 552(b)). To ensure that all reasonably segregable information has been disclosed to the requester, the district court is required to enter a finding on segregability. TransPacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). Even if the issue of segregability has not been raised by the plaintiff, the district court has "an affirmative duty to consider the segregability issue sua sponte." Id.

FOIA litigation is typically adjudicated through summary judgment. Summary judgment is appropriate when the pleadings, together with any affidavits, "show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 313 (D.C.Cir.1988).

In FOIA litigation, the standard of review in the district court is de novo, and the agency bears the burden of justifying the withholdings. 5 U.S.C. § 552(a)(4)(B); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). To meet its burden of proof, the agency may submit affidavits from their officials. Hayden v. NSA, 608 F.2d 1381, 1386 (1979). The affidavits "must show, with reasonable specificity, why the documents fall within the exemption." Id. at 1387. Once a court determines that the affidavits are sufficient, no further inquiry into their veracity is required.

Summary judgment is appropriate in the instant case because there are no genuine issues of material fact and the legal issues can be resolved based on the pleadings and affidavits. Although Judicial Watch argues for discovery on the adequacy of the Bank's search for responsive documents, discovery in a FOIA action is "generally inappropriate." Center for Nat'l Sec. Studies v. Office of Indep. Counsel, No. 91-1691, slip op. at 3 (D.D.C. Mar. 2, 1993). Discovery may be appropriate when the plaintiff can raise sufficient question as to the agency's good faith in processing or in its search. See, e.g., Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994). Judicial Watch has not alleged, much less raised sufficient question, that the Bank acted in bad faith regarding this FOIA request. Further, Judicial Watch's allegation that Bank officials acted improperly by assisting individuals in export matters in exchange for campaign contributions is irrelevant to resolving this FOIA action.

II. Adequacy of the Search

An agency will be granted summary judgment on the adequacy of the search if it has demonstrated that it has conducted a "search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 1350-51 (D.C.Cir.1983) ("Weisberg I"). Accordingly, "[t]he adequacy of the search ... is judged by a standard of reasonableness and depends, not surprisingly, on the facts of each case." Weisberg v. U.S. Department of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) ("Weisberg II"). To meet its burden of proving that no genuine issue of material fact exists, "the agency may rely on reasonably detailed, nonconclusory affidavits submitted in good faith." Id. (citing Weisberg I, 705 F.2d at 1350-51).

Judicial Watch does not challenge the adequacy of the Bank's search with respect to parts 1, 2(a), 3, 4 and 5 of the request. Judicial Watch, however, argues that the Bank's search for records responsive to part (2)(b) of the request was inadequate because the Bank failed to conduct any search at all.

A. The Bank's Record Systems

The Bank...