Citizens For Responsibility & Ethics In Wash. v. U.S. Dep't of State

• Decision Date: 02 June 2022
• Docket Number: Civil Action 19-1344 (RBW),19-2125 (RBW)
• Parties: CITIZENS FOR RESPONSIBILITY AND ETICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

CITIZENS FOR RESPONSIBILITY AND ETICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.

Civil Action Nos. 19-1344 (RBW), 19-2125 (RBW)

United States District Court, District of Columbia

June 2, 2022

MEMORANDUM OPINION

REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

The plaintiffs in the above-captioned matters, Citizens for Responsibility and Ethics in Washington (“CREW”) and the Reporters Committee for Freedom of the Press (the “RCFP”), bring these civil actions against the defendant, the United States Department of State (the “Department”), pursuant to the Freedom of Information Act (the “FOIA”), 5 U.S.C. § 552. See generally Complaint for Injunctive and Declaratory Relief (“Compl. I”), Civ. Action No 191344, ^[1] ECF No. 1; Complaint for Declaratory and Injunctive Relief (“Compl. II”), Civ. Action No 19-2125, ECF No. 1. Currently pending before the Court are (1) the Defendant's Motion for Summary Judgment (the “Department's motion” or “Def.'s Mot.”), ECF No. 18, and (2) the Plaintiffs' Cross-Motion for Partial Summary Judgment (the “plaintiffs' motion” or “Pls.' Mot”), ECF No. 19. Upon careful consideration of the parties' submissions, ^[2] the Court concludes for the following reasons that it must grant in part and deny in part both the Department's motion for summary judgment and the plaintiffs' cross-motion for partial summary judgment.

I. BACKGROUND

CREW represents that it is “a non-profit, non-partisan organization . . . committed to protecting the rights of citizens to be informed about the activities of government officials and agencies, and to ensuring the integrity of government officials and agencies.” Compl. I ¶ 4. The RCFP represents that it is “an unincorporated nonprofit association of reporters and editors dedicated to preserving the First Amendment's guarantee of a free press and vindicating the rights of the news media and the public to access government records.” Compl. II ¶ 3.

On March 19, 2019, both plaintiffs independently submitted FOIA requests to the Department for records “relating to a telephone conference call on international religious freedom on which [then-]Secretary of State [Michael] Pompeo had participated on March 18, 2019. See Def.'s Facts ¶ 1; see Pls.' Facts I ¶ 1. Specifically, the RCFP requested

1. Any transcripts, readouts, audio recordings, or other records that capture the substance of the March 18, 2019 call on “international religious freedom, ” in which Secretary Pompeo participated; 2. Any and all emails or other forms of communication inviting individuals or organizations to join or participate in the March 18, 2019 call on “international religious freedom, ” in which Secretary Pompeo participated; and 3. Any and all records setting forth the criteria or selection process for inviting individuals or organizations to join or participate in the March 18, 2019 call on “international religious freedom, ” in which Secretary Pompeo participated.

Stein Decl. ¶ 5. CREW similarly requested “all documents referencing, concerning, or relating to the briefing call on international religious freedom held by Secretary . . .Pompeo on March 18, 2019.” Id. ¶ 12.

The plaintiffs separately filed these FOIA cases in this Court on May 8, 2019, see generally Compl. I, and July 17, 2019, see generally Compl. II. Presumably, either following or contemporaneously with the filing of these suits, the Department identified the Office of the Executive Secretariat, the Bureau of Global Public Affairs, and the Office of International Religious Freedom as the offices likely to possess records responsive to the plaintiffs' requests, see Stein Decl. ¶¶ 19-22, and the “Department searched for [and located] responsive records in those offices[, ]” Def.'s Facts ¶ 3; see Pls.' Facts I ¶ 3.

Regarding CREW, on September 30, 2019, the Department notified it “that [the Department] had located four records responsive to [CREW's] request[] and released two of those records in full and two in part.” Pls.' Facts II ¶ 15; see Def.'s Resp. to Pls.' Facts ¶ 15. On November 15, 2019, the Department notified “CREW that it had located two additional records responsive to its request[] and released both records in part.” Pls.' Facts II ¶ 16; see Def.'s Resp. to Pls.' Facts ¶ 16. On December 16, 2019, the Department notified “CREW that it had located 25 additional records responsive to its request[] and released [eleven] of those records in full and [fourteen] in part.” Pls.' Facts II ¶ 17; see Def.'s Resp. to Pls.' Facts ¶ 17. On January 17, 2020, the Department notified “CREW that it had located [forty-eight] additional records responsive to its request[] and released [twenty] of those records in full and [twenty-eight] in part. Pls.' Facts II ¶ 18; see Def.'s Resp. to Pls.' Facts ¶ 18. The Department “also re-released one document from a prior production, with some redactions lifted.” Pls.' Facts II ¶ 18; see Def.'s Resp. to Pls.' Facts ¶ 18. On “March 9, 2020, [the Department] re-released one record to CREW in full that it had previously released in part.” Pls.' Facts II ¶ 19; see Def.'s Resp. to Pls.' Facts ¶ 19. On July 14, 2020, the Department represents that it released another record in full that it had previously released in part, leaving a “final count [of thirty-five] records released in full and [forty-four] records released in part.” Def.'s Resp. to Pls.' Facts ¶ 20.

Regarding the RCFP's request, no response was received from the Department “prior to [the RCFP's] lawsuit filed July 17, 2019.” Pls.' Facts II ¶ 23; see Def.'s Resp. to Pls.' Facts ¶ 23. However, “[a]fter the initiation of the [RCFP]'s lawsuit, [the Department] released certain records and portions thereof in response to [the] RCFP's request[] and withheld other portions of those records[, ]” Pls.' Facts II ¶ 24; see Def.'s Resp. to Pls.' Facts ¶ 24, resulting in the production of the same documents released to CREW, see Stein Decl. ¶¶ 7-11.

As to both plaintiffs' requests, the Department withheld portions of records pursuant to 5 U.S.C. § 552(b)(1) (“Exemption 1”), 5 U.S.C. § 552(b)(5) (“Exemption 5”), and 5 U.S.C. § 552(b)(6) (“Exemption 6”). See Pls.' Facts II ¶¶ 21, 25; Def.'s Resp. to Pls.' Facts ¶¶ 21, 25.

On February 27, 2020, the Court consolidated the plaintiffs' two cases. See Order at 12 (Feb. 27, 2020), ECF No. 16. On March 12, 2020, the Department filed its motion for summary judgment, see generally Def.'s Mot., on April 16, 2020, the plaintiffs filed their combined cross-motion for partial summary judgment and opposition to the defendant's motion for summary judgment, see generally Pls.' Mot.; Pls.' Mem., on July 15, 2020, the Department filed its opposition to the plaintiffs' motion for summary judgment and reply in support of its motion for summary judgment, see generally Def.'s Opp'n; Def.'s Reply, and on August 10, 2020, the plaintiffs filed their reply in support of their cross-motion for summary judgment, see generally Pls.' Reply.

II. STANDARD OF REVIEW

The Court must grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials, ” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248), but must instead present specific facts “such that a reasonable [factfinder] could return a verdict for the non[-]moving party, ” Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23 (D.C. Cir. 2013) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm'n, 663 F.2d 120, 127 (D.C. Cir. 1980)). If the Court concludes that “the non[-]moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, when “ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. Fed. Electoral Comm'n, 424 F.Supp.2d 100, 109 (D.D.C. 2006).

“FOIA cases typically are resolved on motions for summary judgment.” Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The “FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); see also Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 101 (D.C. Cir. 1988) (“[The] FOIA is to be interpreted with a presumption favoring disclosure and exemptions are to be construed narrowly.”). In a FOIA action, the agency has “th[e]...