Cozen O'Connor v. U.S. Dept. of Treasury

Decision Date07 August 2008
Docket NumberCivil Action No. 05-4332.
Citation570 F.Supp.2d 749
PartiesCOZEN O'CONNOR, a Professional Corporation v. UNITED STATES DEPARTMENT OF TREASURY.
CourtU.S. District Court — Eastern District of Pennsylvania
MEMORANDUM OPINION

SAVAGE, District Judge.

Introduction

In this action brought under the Freedom of Information Act ("FOIA"), Cozen O'Connor ("Cozen"), a law firm, requested documents regarding terrorism-related designations of eighty-seven individuals, entities and foreign states that are in the possession of the United States Department of the Treasury ("Treasury") and other government agencies.1 Cozen seeks these documents to assist it in prosecuting civil claims against those responsible for the September 11, 2001, attacks on the World Trade Center Towers and the Pentagon.2

Moving for summary judgment, Treasury contends that its search, given the nature of the subject matter and the scope of the request, was adequate, and that it properly asserted the exemptions with ample descriptions of the documents it withheld. Additionally, with respect to requests concerning sixteen entities, Treasury refuses to admit or deny the existence or nonexistence of any responsive records pertaining to those entities. It asserts that the mere fact as to whether the records exist is exempt from disclosure because disclosing the existence or nonexistence of the records may indicate to one of those sixteen entities that Treasury may or may not have commenced an investigation into that entity. It emphasizes out that those charged with protecting the national security and implementing foreign policy are better equipped than the courts to evaluate the impact resulting from disclosure of the information it withheld. It also disputes that it acted in bad faith.

Cozen counters that Treasury has not produced all documents responsive to its requests. It argues that Treasury conducted an inadequate search, improperly invoked exemptions, did not sufficiently describe withheld documents so one could determine if the asserted exemptions applied, and improperly refused to acknowledge that it did or did not have documents in certain instances. Cozen also claims that Treasury acted in bad faith as evidenced by its delay in responding and inadequate processing of the request.

After reviewing Cozen's requests and Treasury's responses, and conducting an in camera review of classified declarations and a complete unredacted Treasury evidentiary file, I conclude that summary judgment cannot be granted at this time. There are questions regarding the adequacy of Treasury's search. With respect to the asserted exemptions, Treasury's withholding of the documents, with the exception of a few, was proper. Therefore, summary judgment will be denied, and Treasury will be given an opportunity to explain the parameters of its search to assure that it was adequate to find responsive documents.

I. FOIA Request

Cozen requested detailed intelligence and investigative information located in Treasury's files relating to the designations of: Iran, Iraq, Sudan and Syria as state sponsors of terrorism; specific groups and organizations engaged in terrorist activity or having the capability and intent to engage in terrorist activity or terrorism; and, individuals and organizations providing material or financial support to, or associating with, designated terrorists. It also sought the identification of assets belonging to those so designated.

The comprehensive scope of the request is set forth in Cozen's letter of July 30, 2003, which reads:

any and all documents, including, but not limited to: intelligence and research files, terrorism intelligence summaries, narcotics intelligence summaries, security files, reports and/or summaries of terrorism/narcotics investigations, memoranda (including, but not limited to, inter and intra-office communications), white papers, correspondence, records, analyses, graphs, reports, computer generated printouts or other matter, reports of consultants, surveys and studies supporting the designation....3

The documents sought by Cozen are maintained by the Office of Assets Control ("OFAC"). OFAC is a part of the Treasury's Office of Terrorism and Financial Intelligence, which was created by statute as a law enforcement organization within Treasury.4 OFAC administers United States economic sanctions programs primarily directed against foreign states and nationals, including sponsors of global terrorism, by enforcing blocking orders, which segregate and freeze blocked assets, and by imposing certain restrictions on trade and financial transactions. OFAC administers approximately thirty economic sanctions programs, the majority of which are conducted under the authority of the International Emergency Economic Powers Act ("IEEPA") and various executive orders.5 50 U.S.C.A. §§ 1701-1706 (2003 & West Supp.2008).

Pursuant to the IEEPA, the President can issue executive orders imposing economic sanctions in order to combat threats to the national security, to enforce foreign policy, and to protect the economy. Id. § 1701(a). One form of sanctions is the blocking of assets to prevent their use in support of global terrorists' plots.6 The executive orders can direct the blocking of property and property interests of persons designated as terrorists or supporters of terrorism within the United States or within the possession or control of United States persons, wherever located. Blocking prevents assets from being transferred, withdrawn, exported, paid or otherwise dealt in by United States persons and entities without OFAC's prior authorization.

Before assets may be blocked, the owner must be designated by Treasury as a terrorist or a supporter of a terrorist organization. In the designation process, Treasury conducts an investigation by assembling information, classified and unclassified, from public and nonpublic sources. The evidence is summarized in an evidentiary memorandum that references the exhibits acquired during the investigation. To ensure that the designation is consistent with the operational and policy interests of other agencies as well as national security and foreign policy goals, there is inter-agency coordination in the designation process. Thus, information used in making the designation decision is generated by many agencies.

Notifying the subject of an investigation before the process is concluded could subvert the effectiveness of the sanction. In the meantime, the subject could transfer, hide, sell or destroy assets, or otherwise obstruct the investigation. As a consequence, blocking of assets could not be accomplished, frustrating OFAC's law enforcement efforts. Hence, Treasury will not release information that could reveal that a designation investigation and process is underway.

II. FOIA Standards

Enacted to assure transparency and accountability, FOIA requires the government and its agencies to disclose information to the public upon request. 5 U.S.C.A. § 552(a)(3)(A) (2007). However, not all information must be disclosed. Recognizing that the public's right to know may be outweighed by the government's need to keep certain information confidential, Congress created nine exemptions. 5 U.S.C.A. § 552(b)(1)-(9) (2007); Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C.Cir.2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989)). In the absence of an applicable exemption, the agency must disclose the requested information.

Judicial review of an agency's decision to withhold documents is different from the review of other agency decisions.7 The deferential substantial evidence standard does not apply. The agency's decision is reviewed de novo, and the burden is on the agency to prove that it properly withheld the records. U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 108 L.Ed.2d 774 (1989); Sheet Metal Workers Int'l Ass'n. v. U.S. Dep't of Veterans Affairs, 135 F.3d 891, 897 (3d Cir. 1998). During the review, the statutory exemptions, in light of the strong presumption in favor of disclosure, are construed narrowly. FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); Davin v. U.S. Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir.1995).

When invoking an exemption, the agency must provide reasonably specific information that explains how the exemption applies. Am. Friends Serv. Comm. v. Dep't of Defense, 831 F.2d 441, 444 (3d Cir.1987); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). It must describe the material being withheld, state the justification for non-disclosure, and cite each exemption asserted. Am. Friends Serv. Comm., 831 F.2d at 444; Casey, 656 F.2d at 738. It may do so by providing a detailed affidavit or submitting a Vaughn index.8 Gallant v. NLRB, 26 F.3d 168, 173 (D.C.Cir.1994). Conclusory affidavits that merely recite statutory standards or are vague will not suffice. Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.1999); Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C.Cir.1998). Because the agency has full knowledge of the contents of the withheld records and the requester has only the agency's affidavits and descriptions of the documents, its affidavits must be specific enough to give the requester "a meaningful opportunity to contest" the withholding of the documents...

To continue reading

Request your trial
34 cases
  • Walsh v. E. Penn Mfg. Co.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 17 August 2021
    ...The mere fact of a delay in processing a request alone does not establish bad faith. Cozen O'Connor v. U.S. Dep't of Treasury , 570 F. Supp. 2d 749, 768-69 (E.D. Pa. 2008) (finding no evidence of bad faith given the number of agencies involved, the nature of information sought, the volume o......
  • Lewis v. U.S. Dep't of Justice, Civil Action No. 09–0746 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 2 November 2011
    ...Document G,” which it had referred to the DEA for direct response to the requester); see also Cozen O'Connor v. U.S. Dep't of Treasury, 570 F.Supp.2d 749, 769 (E.D.Pa.2008) (“When the agency refers the record to the originating agency for a response, it still must defend the originating age......
  • Pellegrino v. U.S. of Am. Transp. Sec. Admin.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 28 February 2012
    ...and “must provide reasonably specific information that explains how the exemption applies.” Cozen O'Connor v. U.S. Dep't of Treasury, 570 F.Supp.2d 749, 765 (E.D.Pa.2008).24VI. Claim for Failure to Correct False Records Pursuant to Privacy Act The Privacy Act provides the sole remedy for Pl......
  • Am. Civil Liberties Union of N. Cal. v. Superior Court
    • United States
    • California Court of Appeals
    • 20 December 2011
    ...of the nonexempt parts will reveal exempt information. [Citations.]" (Cozen O'Connor v. United States Dept. of Treasury (E.D.Pa.2008) 570 F.Supp.2d 749, 771–772 (Cozen O'Connor ). ) Title 5 United States Code section 552(b), part of the FOIA derives from the principle that information may n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT