Public Citizen v. Department of State

• Citation: 11 F.3d 198
• Decision Date: 17 December 1993
• Docket Number: No. 92-5125,92-5125
• Parties: PUBLIC CITIZEN, Appellant, v. DEPARTMENT OF STATE, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 198

11 F.3d 198

304 U.S.App.D.C. 154

PUBLIC CITIZEN, Appellant, v. DEPARTMENT OF STATE, Appellee.

No. 92-5125.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 19, 1993.

Decided Dec. 17, 1993.

On Appeal from the United States District Court for the District of Columbia (No. 90cv00746).

Alan B. Morrison, argued the cause for the appellant. With him on the briefs was David C. Vladeck. Paul R.Q. Wolfson, entered an appearance.

Freddi Lipstein, Atty., U.S. Dept. of Justice, argued the cause for appellee. With her on the brief were J. Ramsey Johnson, U.S. Atty., and Leonard Schaitman, Asst. Director for the Dept. of Justice.

Before: EDWARDS, BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellant Public Citizen seeks disclosure pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1988), of documents pertaining to a meeting between then-Ambassador to Iraq April Glaspie and Iraqi President Saddam Hussein on July 25, 1990, one week before Iraq invaded Kuwait and precipitated the Persian Gulf War. The documents at issue in this case, which were prepared by Glaspie for her superiors at the Department of State ("State"), include diplomatic cables, memoranda, and annotations concerning the meeting between Glaspie and Hussein. The trial judge performed in camera inspections of the disputed materials on three occasions, ultimately sustaining State's refusal to release the documents on the grounds that they are exempt from disclosure under both FOIA exemption 1, ¹ which protects materials properly classified in the interest of national defense or foreign policy, and FOIA exemption 5, ² which protects material that is predecisional and deliberative. See, e.g., Access Reports v. Department of Justice, 926 F.2d 1192, 1194 (D.C.Cir.1991).

In this appeal, Public Citizen does not contest the District Court's decision that the disputed documents are protected by both exemptions 1 and 5. Instead, appellant argues that State waived its right to assert these FOIA exemptions by permitting Glaspie to testify publicly about her meetings with Hussein before two congressional committees. We conclude, however, that the District Court was correct in holding that this court's prior decisions addressing waivers of exemption 1 control this case, and that appellant cannot satisfy the stringent test required to establish such a waiver. Accordingly, we hold that the disputed documents were properly withheld pursuant to FOIA exemption 1.

I. BACKGROUND

A. Facts of the Case

On July 25, 1990, seven days before Iraq invaded Kuwait, Iraqi President Saddam Hussein summoned then-Ambassador Glaspie to meet with him. Hussein gave Glaspie no advance notice, so she was not able to contact the State Department for instructions or to arrange for a note-taker, as is the usual procedure for meetings with a head of state. Declaration of Jock Covey, Principal Deputy Assistant Secretary for the Bureau of Near Eastern and South Asian Affairs, Department of State, reprinted in Joint Appendix ("J.A.") 70-71.

At the conclusion of her meeting with Hussein, Glaspie returned to the United States Embassy in Baghdad and dictated two telegrams to State Department officials in Washington. The first cable contained highlights of her meeting with Hussein and her recommendations concerning it. Id. at J.A. 71. The second cable contained a more detailed account of both the meeting and her recommendations. Id. at J.A. 71-72. These cables are documents 1 and 2 at issue in this case. On July 26 and 29, 1990 two additional cables referring to the Glaspie-Hussein meeting were sent to the State Department from the United States Embassy in Baghdad. Declaration of Frank M. Machak, Information and Privacy Coordinator, State Department, reprinted in J.A. 42-44. These cables are disputed documents 3 and 4.

Glaspie returned to Washington on July 30, 1990, two days before Iraq invaded Kuwait. On September 23, 1990, with tensions mounting in the Persian Gulf region, the New York Times published a purported transcript of the Glaspie-Hussein meeting which had been released by Iraq, suggesting that Glaspie had told Hussein that the United States would not object if Iraq took military action against Kuwait.

While in Washington, Glaspie wrote two further memos recounting her meeting with Hussein, which she prepared in connection with State's consideration of how it would respond to the Iraqi transcript. Id. at J.A. 46-47. These memoranda are documents 6 and 7. At the request of one of her superiors at State, Glaspie also annotated a copy of the Iraqi transcript which was printed in the Times. Id. at J.A. 45. The annotated article is document 5.

Shortly after the end of the Persian Gulf War, members of Congress sought to question Glaspie in order to address concerns over her July 25, 1990 meeting with the Iraqi President. On March 20, 1991, Glaspie appeared before a public session of the Senate Foreign Relations Committee. On the following day she testified before the Middle East Subcommittee of the House Foreign Affairs Committee, again in an open session. The parties to this appeal disagree as to how extensively Glaspie's testimony before these committees covered her meeting with Hussein, but we need not delve into the transcripts of the hearings in order to resolve this case.

B. Proceedings Below

By letter dated March 25, 1991, Public Citizen made a FOIA request that State release all records relating to the Glaspie-Hussein meeting. State identified 31 responsive documents. Seventeen of these documents were released in their entirety, eight were released in part, and six were withheld. Public Citizen then filed suit seeking disclosure of the six documents that were withheld. Relying on affidavits from State Department officials, the Government moved for summary judgment. The affidavits averred that each of the documents at issue are properly classified as "confidential" in accordance with Executive Order 12,356, 47 Fed.Reg. 14,874 (1982), because they pertain to the "foreign relations and foreign activities of the United States" and/or contain "foreign government information." Brief for Appellee at 9-10. The affidavits also asserted that each of the documents is predecisional and deliberative and thus is protected by exemption 5. Id. at 10.

The District Court conducted an in camera review of the documents on November 27, 1991, January 10, 1992, and April 3, 1992. In his initial ruling based on the first two in camera examinations, the District Judge held that all but two of the documents, numbers 6 and 7, were properly withheld under FOIA exemptions 1 and 5. Jan. 14, 1992 Order, reprinted in J.A. 280. The District Court's January 14 Order, however, permitted State to present additional justification for withholding documents 6 and 7. Pursuant to the District Court's invitation, State presented additional affidavits and the trial judge again examined documents 6 and 7 in camera on April 3, 1992. On April 7, 1992 the District Court issued the order appealed from in this case, holding that all six disputed documents were properly withheld under FOIA exemptions 1 and 5. Apr. 7 Order, reprinted in J.A. 302.

Both of the District Court's orders in this case recognized that, pursuant to the test enunciated in Afshar v. Department of State, 702 F.2d 1125 (D.C.Cir.1983), an agency can, under certain limited circumstances, waive the applicability of FOIA exemption 1 to information it has previously released to the public. The District Judge held, however, that the Afshar waiver criteria were not met in the instant case. According to the trial court, although Glaspie's congressional testimony concededly revealed certain facts contained in the disputed documents, the context in which the information appeared in the documents was significantly different. The District Judge therefore felt compelled to defer to State's judgment that disclosure of the documents would jeopardize national security.

II. DISCUSSION

This is an unusual FOIA case in that appellant does not contest the District Court's judgment that the disputed documents are exempt from disclosure under both exemptions 1 and 5. See Brief of Appellant at 7-8 nn. 2, 3; Reply Brief of Appellant at 1. The sole issue before us is whether Glaspie's public testimony concerning her meeting with Hussein operates as a waiver of these otherwise valid FOIA exemptions. Further, Public Citizen concedes that it cannot satisfy the test this court established in Afshar for waiver of FOIA exemption 1. See Brief of Appellant at 11; Reply Brief of Appellant at 1. Appellant instead attempts to argue that the instant case is distinguishable on its facts from our previous decisions addressing waivers of exemption 1. We are unpersuaded. The law of this circuit provides that an agency official does not waive FOIA exemption 1 by publicly discussing the general subject matter of documents which are otherwise properly exempt from disclosure under that exemption. ³

This court established the criteria for waiver of exemption 1 in Afshar v. Department of State, a case involving in part the C.I.A. Director's statutory right to protect intelligence sources and methods. In Afshar, an Iranian-born American citizen submitted FOIA requests to State, the Department of Justice and the C.I.A. for all documents pertaining to him or his activities as editor of the Iran Free Press, a newspaper frequently critical of the former Shah of Iran. The agencies refused to release certain documents they claimed were exempt under FOIA exemptions 1, 3 and 5. Afshar argued that the exemptions had been waived because "information fitting the defendants' descriptions of the withheld information has already been released to the public." Afshar, 702 F.2d at 1129.

Afshar held that although an agency bears the burden of proving that a FOIA exemption...