Billington v. Dept. of Justice
| Decision Date | 12 August 1998 |
| Docket Number | No. Civ.A. 92-0462 RCL.,Civ.A. 92-0462 RCL. |
| Citation | 11 F.Supp.2d 45 |
| Parties | Gail G. BILLINGTON, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Gail G. Billington, Leesburg, VA, for plaintiff.
Scott S. Harris, Assistant United States Attorney, United States Attorney's Office, Washington, DC, for defendant.
This matter comes before the court on the cross-motions for partial summary judgment, pursuant to Fed.R.Civ.P. 56(c), of plaintiff Gail G. Billington and defendant U.S. Department of Justice and on plaintiff's collateral motions. Based upon the memoranda in support of and in opposition to the cross-motions, the entire record thereto and the relevant law, plaintiff's motions will be granted in part and denied in part; defendant's motion will be granted in part and denied in part.
Plaintiff Gail G. Billington initiated this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. This litigation concerns an enormous amount of documents. Billington originally submitted ninety FOIA requests to thirty FBI field offices between November 1991 and February 1992. She sought information about a number of individuals and organizations associated with the National Caucus of Labor Committees (NCLC).
On February 21, 1992, Billington filed this lawsuit regarding the FBI's compliance with her requests to fifteen of those FBI offices. On July 22, 1992, deliberation over this matter was postponed until May 8, 1995, when Judge George H. Revercomb granted the FBI's Motion to Stay Proceedings. Subsequently, on July 19, 1993, this case was reassigned to this court. Since December 1994, the FBI and other agencies have released numerous documents.
The parties agreed in October 1996 to split this litigation into two stages: 1) all documents, including those referred to "referral agencies," except for documents from four specified "Internal Security" files, and 2) the documents from the four "Internal Security" files. At present, the court addresses issues related to the first stage.
This case involves over 40,000 documents. Processing this number of documents is an enormous task. As illustration to the amount of work involved in this request, the parties corresponded at least 57 times between January 5, 1995 and August 5, 1997 on matters related to processing, cost and release of the documents. In a December 1996 Notice of Filing, Plaintiff provided specifications of challenged documents for this stage from the following twenty subject matters: 1) Baltimore file # BA 196-1284; 2) Indianapolis file # IP 196-1593; 3) New York file # NY 196-3975; 4) New York file # NY 196-4052; 5) Philadelphia file # PH 196-1893; 6) Irene Beaudry; 7) Michael Billington; 8) Campaigner Publications; 9) Caucus Distributors; 10) Executive Intelligence Review; 11) Executive Intelligence Review News Service; 12) Fusion Energy Foundation; 13) Paul Gallagher; 14) International Caucus of Labor Committee; 15) National Caucus of Labor Committees; 16) New Solidarity International Press Service; 17) Publication and General Management; 18) Suzanne Rose; 19) Schiller Institute; and 20) U.S. Labor Party.
Many of the documents had to be referred by the FBI to numerous other governments agencies and entities, including the Internal Revenue Service, Department of Energy, Immigration and Naturalization Service, Central Intelligence Agency, Department of Justice, Department of State, Executive Office of United States Attorneys, Secret Service, the Army Intelligence and Security Command, and the Defense Intelligence Agency.
Defendant began providing Vaughn declarations from the FBI and referral agencies in September 1997, and then filed a motion for summary judgment concerning plaintiff's challenges on December 15, 1997. Plaintiff responded with her cross-motion for partial summary judgment and collateral motions on February 3, 1998.1
Many of the documents in this case have been filed under seal under the terms of a consent order issued in LaRouche v. Kelly, No. 75 CIV 6010 (S.D.N.Y. March 5, 1979).
The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986) establishes a statutory right for citizens to gain access to government information. The Act creates a basic presumption that agency records should be accessible to the public and commands government agencies to make records available upon demand unless the request falls within one of nine exemptions. The defendant justifies nondisclosure by invoking six of the nine exemptions. The court will discuss 1) the contested FBI withholdings by exemption group; 2) the plaintiff's request for additional searches; 3) disputes over cross-reference information and an allegedly wrong document in the Vaughn index, Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973); and 4) challenges concerning information referred to other agencies.
Summary judgment in a FOIA action is appropriate when the pleadings together with the declarations show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202; Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C.Cir.1988) (); Weisberg v. Department of Justice, 627 F.2d 365, 368 (D.C.Cir.1980). Courts review FOIA suits de novo. However the agency carries the burden of justifying nondisclosure, See 5 U.S.C. § 552(a)(4)(B); U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).
Agencies may rely on the declarations of its officials in order to sustain their burden of proof in a FOIA case. See Oglesby v. U.S. Department of the Army, 920 F.2d 57, 68 (D.C.Cir.1990); Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978). The agency's declarations are accorded a presumption of expertise. Pharmaceutical Manufacturers Ass'n v. Weinberger, 411 F.Supp. 576, 578 (D.D.C. 1976.). However, the declarations must be clear, specific and adequately detailed; they must describe the withheld information and the reason for nondisclosure in a factual and non-conclusory manner; and they must be submitted in good faith. See Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.1979). Unless the affidavits are deficient, the court need not conduct further inquiry into their veracity. Id. at 1387. A plaintiff must show that the claimed exemption is improperly asserted in order to have a triable issue of material fact that will preclude awarding summary judgment to the defendant.
Exemption 1 permits agencies to withhold information that is "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) [is] in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Executive Order 12958 currently controls. Summary judgment may be awarded to a defendant agency invoking Exemption 1 "only if (1) the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed, and (2) the affidavits are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency." Canning v. U.S. Department of Justice, 848 F.Supp. 1037, 1049 (D.D.C.1994) citing the standards set forth King v. United States Department of Justice, 830 F.2d 210, 217 (D.C.Cir.1987); see also Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir.1980); Voinche v. FBI, 940 F.Supp. 323, 328 (D.D.C.1996).
Agencies may meet this burden by "filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King 830 F.2d at 217. Courts must accord substantial weight to an agency's affidavit concerning the classified status of a disputed record, because "`[e]xecutive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure.'" McDonnell v. United States, 4 F.3d 1227, 1243 (3rd Cir.1993) (quoting Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982)). If the agency's statements meet the aforementioned standard of reasonable specificity and good faith, the court "is not to conduct a detailed inquiry into whether it agrees with the agency's opinions." Halperin, 629 F.2d at 148.
Accordingly, this court reviewed the submitted affidavits, Vaughn indices and agency actions to determine whether the FBI meets this standard of reasonable specificity and good faith. The following is a discussion of the specific challenges proffered by the plaintiff to compel disclosure of information withheld under this exemption.
In her challenges to Exemption 1 redactions, Billington cites documents which she believes were improperly, withheld or redacted because they had been disclosed publicly. When asserting that material is publicly available, plaintiff bears the burden of production. Davis v. Department of Justice, 968 F.2d 1276, 1279 (D.C.Cir.1992); Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C.Cir.1983) (). Both ...
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