Citizens United v. U.S. Dep't of State
| Decision Date | 29 July 2021 |
| Docket Number | Civil Action No. 18-1862 (RDM) |
| Parties | CITIZENS UNITED, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
This case concerns a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request submitted by Citizens United to the Department of State ("the Department") seeking records related to an October 2016 meeting between Department officials and Christopher Steele. Citizens United v. Dep't of State, 460 F. Supp. 3d 12, 15 (D.D.C. 2020) ("Citizens United I"). The Department has released four documents in full, released four documents with redactions, and withheld one document in full. In the Court's prior opinion in this case, it denied Citizens United's motion for summary judgment and granted the Department's cross-motion for summary judgment as to most of the withholdings. Id. But the Court denied the Department's motion for summary judgment with respect to two of the partially redacted documents, concluding that the Department had failed to explain why the redactions were proper. Id. at 24. The Court also denied summary judgment with respect to the document withheld in full because the Department had failed to explain why no part of the document could be released. Id. at 27. Seeking to address these deficiencies, the Department has now filed a renewed motion for summary judgment, supported by supplemental declarations providing additional detail about the withholdings. Dkt. 24. Citizens United opposes that motion and seeks in camera review of each of the redacted materials. Dkt. 25. In light of the additional detail and explanation that the Department has provided, the Court will GRANT the Department's renewed motion for summary judgment.
Prompted by a press report that Steele "visited the State Department [in October 2016] [and] brief[ed] officials" there, Citizens United sent the Department a FOIA request in June 2018 seeking records relating to that meeting. Citizens United I, 460 F. Supp. 3d at 15 (quoting Dkt. 1-2 at 2). After the Department failed to provide a timely, substantive response, Citizens United brought this action to compel the release of responsive materials. Id. at 16; Dkt. 1. Several months later, the Department informed Citizens United that it had located nine responsive records, four of which it released in full, four of which it released with redactions, and one of which it withheld in full. Citizens United I, 460 F. Supp. 3d at 15; Dkt. 13-5 at 3 (1st Stein Decl. ¶¶ 8-10). Because several of the documents included "FBI information/equities," the Department consulted the FBI about those records and withheld some content at the FBI's request. Dkt. 13-4 at 3 (1st Seidel Decl. ¶ 6). In June 2019, Citizens United moved for summary judgment to compel the release of the withheld materials, Dkt. 11, and the Department cross-moved for summary judgment, Dkt. 13.
The Court denied Citizens United's motion for summary judgment and granted partial summary judgment in favor of the Department. The Court denied the Department's motion for summary judgment, however, with respect to Documents 4, 7, and 9. Documents 4 and 9 are notes from an October 11, 2016 meeting attended by Deputy Assistant Secretary of State Kathleen Kavalec, Steele, and Tatyana Duran of Orbis Security. Citizens United I, 460 F. Supp.3d at 23; Dkt. 13-4 at 6 (Vaughn index). The Department made redactions to both sets of notes. Dkt. 11-6 at 18-19, 22, 26. In support of these redactions, the Department invoked three FOIA Exemptions: Exemption 1, which protects records authorized to be kept secret pursuant to executive order, 5 U.S.C. § 552(b)(1); Exemption 3, which protects records "exempted from disclosure by statute," id. § 552(b)(3); and Exemption 7(E), which protects records "compiled for law enforcement purposes," the disclosure of which would reveal "techniques and procedures for law enforcement investigations or prosecutions" or would reveal guidelines that could allow circumventing the law, id. § 552(b)(7)(E). The Court concluded that the Department had "failed to provide a sufficiently detailed explanation for these withholdings," and, indeed, "aside from describing the documents," had failed to offer any "explanation or justification for its decisions." Citizens United I, 460 F. Supp. 3d at 24. That lack of detail prevented the Court from engaging in the de novo review that FOIA requires. The Court could not determine, for example, whether the material withheld from Documents 4 and 9 is, in fact, "properly classified pursuant to an executive order or whether [it] falls within the ambit of" a statute forbidding disclosure—as relevant here, the National Security Act of 1947 as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024(i)(1) (collectively, the "National Security Act"). Citizens United I, 460 F. Supp. 3d at 24.
The Court had different concerns about Document 7. "Document 7 is 'a five-page research document prepared by a third party (not Christopher Steele) about a technical subject,'" containing "'potential leads of investigative interest to the FBI related to the investigation of Russia's interference in the 2016 Presidential election.'" Id. at 18 (quoting Dkt. 18-1 at 4 (Hardy Decl. ¶ 7)). Document 7 was "'transmitted for law enforcement purposes from [the State Department] to the FBI.'" Id. The Department withheld this document in full pursuant toExemptions 3 and 7(E), and the Court concluded that the withholding was permissible under Exemption 3 and the National Security Act. Id. at 17-20. But the Court could not ascertain on the record before it whether all of Document 7 was properly withheld, or whether the Department could reasonably segregate the confidential portions of the document and release any non-confidential portions. Id. at 27. Although this issue presented "a close question," the Court concluded that the Department had failed to carry its burden with respect to segregability. Id. In particular, the declaration the Department offered in support of its motion—a declaration by Assistant Section Chief of the Record/Information Dissemination Section, Information Management Division, FBI, Michael G. Seidel, Dkt. 13-4 at 1 (Seidel Decl. ¶ 1)—offered only a "generic" explanation, did "little to explain specifically why no meaningful, non-exempt information in Document 7 could not be segregated and released, and appear[ed] to turn on the assessment that any non-exempt material 'would have minimal or no informational content.'" Citizens United I, 460 F. Supp. 3d at 27 (quoting Dkt. 13-4 at 21 (Seidel Decl. ¶ 50)) (emphasis added in opinion). In other words, the declaration suggested that some "minimal informational . . . content" could be segregated and released. Id. (quoting Dkt. 13-4 at 21 (Seidel Decl. ¶ 50)). Indeed, the declaration seemed "to acknowledge that entire 'sentences' might be segregable." Id. (quoting same). "To resolve any doubts about the possible release of any non-exempt portions of Document 7," the Court denied summary judgment on the issue without prejudice. Id.
In response, the Department renewed its motion for summary judgment and filed two supplemental declarations. Dkt. 24; Dkt. 24-3; Dkt. 24-4. But, having received further input from the FBI, the Department receded—at least in part—from its contention that all of the redactions to Document 4 were justified, and, on July 21, 2020, it re-released that document "with additional information unredacted." Dkt. 24-1 at 5. Despite that concession, however,Citizens United opposes the Department's motion. Dkt. 25. The Court must now decide whether the Department's more robust justifications for the remaining withholdings pass muster.
Agencies must disclose records requested pursuant to the Freedom of Information Act unless those records fall within one of nine exclusive statutory exemptions. Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011). "[T]he vast majority of FOIA cases can be resolved on summary judgment." Citizens United I, 460 F. Supp. 3d at 16 (quoting Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011)). To prevail on a motion for summary judgment, the movant must demonstrate "that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To meet its burden in a FOIA case, an agency must submit declarations that are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and that "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).
An agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced . . . or is wholly exempt from [FOIA's] inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the agency's decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).
Document 4 is a two-page, typed set of notes, with one paragraph-sized redaction and two smaller, additional redacted blocks of text, Dkt. 27-1 at 3-4, and Document 9 is an eleven-page, handwritten set of notes with a roughly two-line redaction and a half-line redaction, Dkt. 11-6 at 22-32. The State Department made all of the redactions at the behest of the FBI, except for one redaction on the...
To continue reading
Request your trial