Bonner v. US Dept. of State

• Decision Date: 02 November 1989
• Docket Number: Civ. A. No. 86-769.
• Citation: 724 F. Supp. 1028
• Parties: Raymond T. BONNER, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

724 F. Supp. 1028

Raymond T. BONNER, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.

Civ. A. No. 86-769.

United States District Court, District of Columbia.

November 2, 1989.

William Lee Webber, Howrey & Simon, Washington, D.C., for plaintiff.

Joseph V. Jest, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendant.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

I. Introduction

Plaintiff Raymond T. Bonner brings this action under the Freedom of Information Act, 5 U.S.C. § 552 (1988) ("FOIA" or the "Act"), seeking the release from defendant United States Department of State ("State Department") of documents related to United States foreign policy in the Philippines.¹ Before the Court are the parties' cross-motions for partial summary judgment.

The motions concern sixty-three items selected by Bonner as forming a representative sample for a Vaughn index.² The State Department served Bonner with the Vaughn index on February 1, 1988. At the same time, however, it released documents covered by nineteen of the sixty-three items. Therefore, the Vaughn index described only forty-four items.³

Plaintiff seeks a declaration that the State Department's release, rather than description, of documents covered by these nineteen items was improper. He also challenges the State Department's rationales for withholding documents falling under thirty-one items described in the Vaughn index, and asks the Court to order their release.

The State Department has moved for summary judgment as to all sixty-three items. Plaintiff opposes the State Department's motion only insofar as it concerns documents that are covered by plaintiff's motion. The matter has been extensively briefed. At the outset, then, we conclude that the State Department is entitled to summary judgment with respect to all documents not addressed by plaintiff's motion.

II. The Nineteen Released Items

We also may quickly dispose of plaintiff's claim that the State Department improperly failed to describe the nineteen released items. The gist of plaintiff's complaint is that by releasing these documents, and particularly without describing them, the State Department has destroyed the representativeness of the sample and thereby defeated the purpose of a Vaughn index. Plaintiff also contends that the release, without description, evidences the State Department's arbitrariness and bad faith in evaluating plaintiff's FOIA requests.⁴

Plaintiff offers no evidence that the sample's representativeness has been destroyed. He relies on his own ipse dixit conclusion. Moreover, the State Department correctly points out that the newly released information, "like virtually all of the information excised from the remaining 44 items, ... related to the military bases question and other sensitive issues in U.S.-Philippine affairs and was originally withheld under Exemption 1" of FOIA. Defendant's Reply Memorandum at 4. In light of these factors, we cannot conclude that the release of these documents destroyed the representativeness of the sample.

Nor does release of the nineteen items evidence agency arbitrariness or bad faith. It appears that upon re-review, the State Department made a reasoned determination that these documents could safely be released.⁵ Since the State Department carefully re-reviewed all sixty-three items selected by plaintiff, there is no reason to assume that it reached its decision as to nineteen of them arbitrarily. Nor does the mere release of information that was once classified indicate that other information that remains classified also should be released. In light of the Eaves Declaration, discussed more fully below, the Court is unable to concur with plaintiff's "suspicions" concerning the effect the passage of time may have had on other documents the State Department continues to withhold. Accordingly, with respect to these nineteen items, plaintiff's motion is denied and the State Department's motion is granted. We now turn to the items described in the Vaughn index.

III. The Vaughn Index Items⁶

Exemption 1 of FOIA protects from disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). All of the withheld information challenged by plaintiff has been classified pursuant to Executive Order No. 12,356, 47 Fed.Reg. 14,874 (1982).⁷ That Order authorizes the classification of information that, if disclosed, "reasonably could be expected to cause damage to the national security." Exec. Order No. 12,356 § 1.3(b), 47 Fed.Reg. 14,876. "National security" is defined as "the national defense or foreign relations of the United States." Id. § 6.1(e), 47 Fed.Reg. 14,883.

This Court must determine de novo whether the State Department properly withheld the information pursuant to Exemption 1. 5 U.S.C. § 552(a)(4)(B). While the State Department bears the burden of sustaining its claim,⁸ we must accord "substantial weight" to its determinations.⁹ See Goldberg v. United States Department of State, 818 F.2d 71, 78 (D.C.Cir. 1987); Abbotts v. Nuclear Regulatory Commission, 766 F.2d 604, 606 (D.C.Cir. 1985); Gardels v. CIA, 689 F.2d 1100, 1104 (D.C.Cir.1982); Lesar v. United States Department of Justice, 636 F.2d 472, 481 (D.C.Cir.1980); Halperin v. CIA, 629 F.2d 144, 147-48 (D.C.Cir.1980). Specifically, we must grant summary judgment to the State Department "if its affidavits `describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption,' and `are not controverted by ... contrary evidence in the record'" or "`evidence of agency bad faith.'" Abbotts, 766 F.2d at 606 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.1981)); see also Goldberg, 818 F.2d at 77-78; Gardels, 689 F.2d at 1104-05; Halperin, 629 F.2d at 148.

The information plaintiff seeks has been identified as concerning either foreign government information, foreign relations or foreign activities of the United States, or a confidential source. See Exec. Order No. 12,356 § 1.3(a)(3), (5), (9), 47 Fed.Reg. 14,876. Section 1.3(b) of Executive Order 12,356 provides that such information "shall be classified when ... its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security." Id. § 1.3(b), 47 Fed.Reg. 14,876. Many of the withheld documents concern United States military bases in the Philippines. Others contain biographic information on foreign officials, confidential assessments of various economic and political situations in the Philippines and elsewhere, and information provided to United States officials in confidence by a foreign source.

The State Department's Eaves Declaration¹⁰ is one hundred and forty-three (143) pages in length and describes in excruciating detail: how and at what level each of the withheld documents covered by the Vaughn index and challenged by plaintiff was classified;¹¹ its sender and recipient; the source of the information it contains; and why partial release was or was not possible. For each item, the Eaves Declaration explains why disclosure of the information is reasonably likely to cause damage, and in some cases serious damage, to the national security.¹²

We have examined the State Department's rationales and find that they satisfy this Circuit's standard for summary judgment.¹³ The Eaves Declaration describes the reasons for nondisclosure with at least as much specificity and logic as agencies have in numerous other cases upholding continued classification. See, e.g., Goldberg, 818 F.2d at 78 n. 7 ("Although the Eaves affidavit might have been more complete ..., it certainly does an adequate job of justifying the current classification of the document excerpts. The affidavit demonstrates a careful, document-by-document and answer-by-answer review."); Halperin, 629 F.2d at 147-48; American Jewish Congress v. Department of the Treasury, 549 F.Supp. 1270, 1277-78 (D.D. C.1982) (Disclosure would indicate that the United States was "unable or unwilling to maintain its commitments and uphold the usual standards of international practice with respect to ... confidentiality."), aff'd without opinion, 713 F.2d 864, cert. denied, 464 U.S. 895, 104 S.Ct. 244, 78 L.Ed.2d 233 (1983); Fulbright & Jaworski v. Department of the Treasury, 545 F.Supp. 615, 619 (D.D.C.1982) (Release of document concerning past treaty negotiations probably would undermine the government's ability to achieve desired results in future treaty negotiations "because the document so clearly sets forth the U.S. goals, rationales and past experiences."). We are persuaded that the Eaves Declaration provides "ample evidence to show the plausibility of the alleged potential harm, in a manner that is reasonably detailed rather than conclusory." Halperin, 629 F.2d at 148. This Court declines to "conduct a detailed inquiry to decide whether it agrees with the agency's opinions," for we "lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case." Id.

The record is devoid of any contrary evidence or evidence of agency bad faith.¹⁴ As enunciated in Goldberg, "contrary evidence must somehow undermine or call into question the correctness of the classification status of the withheld information, or the agency's explanation for the classification." Goldberg, 818 F.2d at 81. Plaintiff merely disagrees with the conclusions reached by the State Department as to the risk of damage to national security that would result from disclosure.¹⁵ While requesters of information under FOIA may be expected to disagree with agency rationales for withholding certain information, plaintiff simply has not shown...