Public Citizen Inc. v. Department of State
| Decision Date | 18 May 2000 |
| Docket Number | No. Civ.A. 98-1423(ESH).,Civ.A. 98-1423(ESH). |
| Citation | 100 F.Supp.2d 10 |
| Parties | PUBLIC CITIZEN INC., Plaintiff, v. DEPARTMENT OF STATE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Michael Edward Tankersley, Public Citizen Litigation Group, Washington, DC, for plaintiff.
Anne L. Weismann, Richard G. Phillips, Jr., U.S. Department of Justice, Civil Division, Washington, DC, for defendants.
Plaintiff Public Citizen, a nonprofit organization, seeks to compel the production of agency records concerning the record preservation procedures of the Office of the U.S. Trade Representative ("USTR"), the National Archives and Records Administration ("NARA"), and the Department of State under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and to challenge under the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, the date-of-request cut-off that the Department of State imposes on FOIA requesters. Public Citizen contends that the State Department, USTR, and NARA improperly withheld records in response to three FOIA requests. In addition, Public Citizen claims that the State Department's policy of not retrieving documents created after the date of the FOIA request imposes an improper and unreasonable limitation on the public's access to agency records under FOIA and is an improperly promulgated substantive rule under the APA. Defendants have filed motions to dismiss, for summary judgment, and for a protective order. Plaintiff has filed motions for summary judgment, judgment on the pleadings, and to strike the declarations of Frank Machak and Geraldine Phillips.
By letter dated April 17, 1998, Public Citizen requested State Department records, "issued or in use since October 22, 1997" that described the State Department's "current system" for managing "(i) word processing files containing documents such as letters, memoranda, reports, handbooks, directives, and manuals recorded on electronic media such as hard disks or floppy diskettes, (ii) and electronic mail messages that meet the definition of Federal records, and any attachments to the record messages." Letter from M. Tankersley to P. Shields, Grafeld Decl., Exh. 1. Public Citizen also requested "any disposition schedule submitted to [NARA] concerning the transfer or disposal of the electronic mail communications or word processing files described above" and any correspondence or other communications with NARA concerning the disposal of such records. Id. The State Department acknowledged receipt of the request by letter dated April 28, 1998, and indicated that the request would be processed on a first-in, first-out basis. Letter from J. Livornese to M. Tankersley, Grafeld Decl., Exh. 2. On May 7, 1998, the State Department sent a second letter notifying Public Citizen of the agency's date-of-request cut-off policy, i.e., it does not retrieve documents originating after the date of the requester's letter. Letter from J. Livornese to M. Tankersley, Grafeld Decl., Exh. 3.
On July 23, 1998, the State Department released eight documents in response to the April 17, 1998 FOIA request, but withheld thirty pages of one document which contained entries from the State Department's Records Disposition Schedule computer database, because those entries were classified "confidential" under Executive Order 12,958 and were exempt from disclosure under FOIA Exemption 1. 5 U.S.C. § 552(b)(1). On September 4, 1998, the State Department notified Public Citizen that it had reviewed the withheld material and determined that 104 of the entries could be released, but 17 entries remained withheld under Exemption 1. Id. These 17 entries contained a description of records approved for disposition by NARA in schedules N1-59-91-18, N1-59-93-42, and N1-49-92-9 and the disposition period for the records. The 17 entries were not classified "confidential" when the State Department received Public Citizen's April 17, 1998 FOIA request.
On June 22, 1998, Public Citizen made a second (unrelated) FOIA request for records created between April 1, 1998 and November 1998 concerning the travel and appointment schedules of three State Department officials who negotiated the Multilateral Agreement on Investment, and concerning the schedules, minutes, and agendas from any meetings related to international investment issues. By letter dated July 1, 1998, the State Department notified Public Citizen that its second FOIA request was also subject to a date-of-request cut-off on retrieved documents. The State Department apparently released documents to Public Citizen in response to this request on August 3, 1999. See Defendants' Status Report, filed 12/15/99. The Court is not aware if any documents were withheld in response to the June 22, 1998 request. Nor has Public Citizen challenged any FOIA exemption that may have been claimed in connection with the June 22, 1998 request.
On October 6, 1998, Public Citizen sent a FOIA request to NARA seeking Department of State Records Schedules N1-59-95-4, N1-59-91-33, N1-59-93-42, and N1-59-92-9, and the appraisal memoranda for these schedules. On November 13, 1998, NARA released schedules N1-59-95-4 and N1-59-91-33 and their accompanying appraisal memoranda. NARA did not release the remaining schedules and appraisal memoranda because the agency had to consult with the State Department on the classification status of those records. NARA subsequently released portions of N1-59-93-42 and N1-59-92-9 and their respective appraisal memoranda, but upon advice of the State Department determined that the documents contained classified information and could not be released in their entirety. NARA is claiming exemption from disclosure under FOIA Exemption 1. 5 U.S.C. § 552(b)(1)
By letter dated April 17, 1998, Public Citizen requested from USTR the same information that it sought in the April FOIA request to the State Department — records "issued or in use since October 22, 1997," describing USTR's current system for managing word processing files and e-mail messages, and any communication with NARA concerning the disposal of such records. Letter from M. Tankersley to S. Harrison, Overton Decl., Exh. 1. On July 23, 1998, USTR informed plaintiff that it had located three documents. Letter from S. Harrison to M. Tankersley, Overton Decl., Exh. 2. It released two of the documents and withheld one in its entirety, claiming exemption from disclosure on the basis of the attorney work-product privilege under FOIA Exemption 5. See 5 U.S.C. § 552(b)(5).
Public Citizen's original complaint challenged only (1) the State Department's use of a date-of-request cut-off in responding to FOIA requests, (2) the State Department's failure to release documents responsive to plaintiff's April 17, 1998 FOIA request to the State Department, and (3) the USTR's failure to release documents responsive to plaintiff's April 17, 1998 FOIA request to the USTR. Plaintiff amended its complaint in February 1999 to add claims regarding its June 22, 1998 FOIA request to the State Department and its October 6, 1998 FOIA request to NARA. The amended complaint added allegations that (1) the application of the State Department's date-of-request cut-off to the June 22, 1998 request was unlawful and (2) NARA's assertion of Exemption 1 to withhold two records disposition schedules and two appraisal memoranda was improper.
Defendants' motion to dismiss in part and for summary judgment, filed September 15, 1998, and plaintiff's motion for partial summary judgment, filed February 8, 1999, are directed at the original complaint only. Defendants' motion to dismiss and plaintiff's motion for partial summary judgment address Public Citizen's generic claim that the date-of-request cut-off is substantively and procedurally invalid. Defendants' motion for summary judgment addresses the State Department's decision to withhold 17 record entries under Exemption 1 in response to the April 17, 1998 request, and the USTR's decision to withhold a memorandum under Exemption 5 in response to the April 17, 1998 request. Plaintiff's motion for judgment on the pleadings, filed March 31, 1999, seeks to compel defendants to produce documents responsive to the June 22, 1998 request to the State Department and the October 6, 1998 request to NARA because, at the time the motion was filed, no documents had been produced in response to those requests. Defendants' motion for partial summary judgment, filed June 4, 1999, covers only the decision by NARA to withhold documents under Exemption 1 in response to the October 6, 1998 FOIA request. Plaintiff has also filed motions to strike the affidavits of Frank Machak and Geraldine Phillips, which were submitted by the State Department and NARA in support of the decision to withhold the NARA documents. Defendants have filed for a protective order to bar Public Citizen from taking discovery on whether the NARA documents were publicly released prior to classification.
Public Citizen challenges the Department of State's policy of imposing a date-of-request cut-off on searches conducted pursuant to FOIA requests. The Department of State places the following conditions on FOIA searches:
The cut-off date for retrieving documents is the date of the requester's letter. Accordingly, no documents which originated after the date [the requester's] letter will be retrieved.
Only existing documents are subject to the Freedom of Information Act. The Act does not provide for the creation of documents, compilation of data, preparation of lists, analyses of events, etc. See Letter from J. Livornese to M. Tankersley, Grafeld Declaration, Exh. 3.
Plaintiff challenges the date-of-request cut-off generically and as applied to its April 17, 1998 and June 22, 1998 FOIA requests to the Department of...
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