Seife v. U.S. Dep't of State

• Decision Date: 24 March 2018
• Docket Number: 1:16–cv–7140–GHW
• Parties: Charles SEIFE, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — Southern District of New York

298 F.Supp.3d 592

Charles SEIFE, Plaintiff,

v.UNITED STATES DEPARTMENT OF STATE, Defendant.

1:16–cv–7140–GHW

United States District Court, S.D. New York.

Signed March 24, 2018

Filed March 26, 2018

Charles Seife, New York, NY, pro se.

Dominika Natalia Tarczynska, United States Attorney's Office, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

I. INTRODUCTION

Before the Court are cross-motions for summary judgment in this Freedom of Information Act ("FOIA") dispute between journalist and professor of journalism Charles Seife, appearing pro se , and the United States Department of State (the "State Department") that began with two July 22, 2014 requests for various records related to press briefings given "on background" by anonymous senior agency officials. The Court must now rule on the adequacy of the State Department's response to the first request, as well as the applicability of FOIA's Exemptions 5 and 6 to approximately 80 responsive documents, portions of which were redacted by the State Department, and to one document withheld in full. For the reasons that follow, the Court concludes that the State Department is entitled to summary judgment on a portion of its withholdings under Exemption 6. The Court also concludes that the State Department should be granted a further opportunity to substantiate its claim that a search in response to the first request would be unreasonably burdensome, its claims of deliberative process and presidential communications privilege over the information it has withheld, as well as its claim that Exemption 6 applies to the identities of the anonymous background briefers. The State Department's motion for summary judgment is therefore GRANTED IN PART and DENIED IN PART, and Mr. Seife's motion for summary judgment is DENIED.

II. BACKGROUND

On July 22, 2014, Mr. Seife submitted a FOIA request to the State Department seeking information on the following "on background" conferences:

(1) Background Conference Call by Senior Administration Officials on Iraq, conducted on or about June 20, 2014[;]

(2) Background briefing by Senior Administration Officials via Conference Call on Afghanistan, conducted on or about May 27, 2014[;]

(3) Background Briefing on Syria, conducted on or about May 5, 2014[;]

(4) Background Conference Call on Ukraine Sanctions, conducted on or about April 28, 2014[;]

(5) Background Briefing on Designation of Boko Haram and Ansaru as Foreign Terrorist Organizations and as Specially Designated Global Terrorists, conducted on or about November 13, 2013[; and]

(6) Background Briefing on Section 1230 Report on Progress Toward Security and Stability in Afghanistan, Pentagon Briefing Room, conductedon or about December 10, 2012.

Declaration of Eric Stein, ECF No. 29 ("Stein Decl."), Ex. 2. In connection with each of the six on background briefings, Mr. Seife requested (1) the unredacted transcript, which "should identify" the officials involved in the briefing, and (2) any documents, "including but not limited to e-mails, meeting minutes, memos, and other communications," that described the "planning and/or execution of" each briefing. Id. That request was received by the State Department and assigned case number F–2014–12996 (the "12996 request"). Stein Decl., Ex. 3.

Also on June 22, 2014, Mr. Seife submitted a second FOIA request to the State Department, seeking the unredacted transcripts for any "on background" briefing that took place between January 20, 2009 and July 21, 2014. Stein Decl., Ex. 9.¹ Mr. Seife explained that "such a transcript should identify officials involved in the conference/briefing/call by name." Id. That request was assigned case number F–2014–12997 (the "12997 request"). Stein Decl., Ex. 10.²

Mr. Seife filed this lawsuit on September 13, 2016, seeking an injunction requiring the State Department to provide him with the requested information. ECF No. 1. During a November 22, 2016 initial pretrial conference, the Court directed the State Department to provide a full response to the 12997 request no later than December 16, 2016. ECF No. 14. The Court also directed the State Department to provide rolling responses to the 12996 request, with a first production due no later than December 16, 2016, and with production to be completed no later than January 20, 2017. Id.

In accordance with the Court's order, on December 16, 2016, the State Department produced six documents responsive to the 12996 request. Stein Decl., Ex. 4. In response to the 12997 request, the State Department explained that it had no responsive documents because the State Department does not maintain transcripts identifying the names of the officials conducting the background briefings. Stein Decl., Ex. 11.³ The State Department also provided the web address at which the background briefing transcripts were available. Id. The State Department produced additional documents in response to the 12996 request on January 19, 2017. Stein Decl., Ex. 5.

On March 10, 2017, the Court granted the State Department an extension of time within which to complete its production in response to the 12996 request, extending the January 20, 2017 deadline to April 17, 2017. ECF No. 18. Three days before that deadline, on April 14, 2017, the State Department produced additional responsive documents. Stein Decl., Ex. 8. The State Department also removed certain redactions from previously produced documents and re-released those documents on January 23, 2017, March 6, 2017, and June 2, 2017. Stein Decl., Exs. 6, 7, 12.⁴

After receiving a description of the search that the State Department had conducted with respect to the 12996 request, Mr. Seife requested that additional, targeted searches be performed. Stein Decl. ¶ 12. Mr. Seife agreed that, if those searches were conducted, he would not challenge the adequacy of the Department's search in connection with his 12996 request. Id. The requested searches were performed, and the State Department completed its production of documents in connection with the 12996 request on June 29, 2017. Id. ¶ 13⁵ ; see ECF No. 25.

The State Department withheld information in seventy-two documents under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Stein Decl. ¶ 25. The State Department claimed that the withheld information was subject to the deliberative process privilege. Id. That information related to the first five background briefings identified by Mr. Seife in his June 22, 2014 request, as well as to a background briefing on Iraq and Iran that took place on or about June 22, 2014, a background briefing on a matter related to Afghanistan that was planned for May 31, 2014, and a background briefing on a presidential speech on Afghanistan that was given on May 28, 2014. Id. While these last three briefings were not specifically identified in Mr. Seife's request for information, the State Department produced the transcripts from each of the briefings after broadly construing Mr. Seife's request for information related to briefings "on or about" the identified dates. Id. ¶ 25 n.6. Among the specific material withheld were draft and final talking points, anticipated questions and proposed answers, and e-mail correspondence regarding the content and modalities of the background briefings. Id. ¶ 26. The State Department also withheld information under Exemption 5 in one document that it claimed was subject to the presidential communications privilege. Id. ¶ 28.

In addition to its withholdings pursuant to Exemption 5, the State Department withheld information in sixty-five responsive documents pursuant to Exemption 6, 5 U.S.C. § 552(b)(6), which permits an agency to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. ¶ 31. That information included the names and official contact information of government employees serving in sensitive positions within the State Department's Bureau of Counterterrorism, the National Security Council, and the Department of Defense, as well as State Department officials' cell phone numbers and the personal email addresses of individuals outside of the government. Id. The State Department additionally withheld an official's comment regarding a personal schedule and information that would reveal the identities of the officials who either served as background briefers or were proposed background briefers. Id. ¶¶ 31, 32.

In sum, the State Department located ninety-six documents that were responsive to Mr. Seife's 12996 request, of which fifteen were produced in full, eighty were produced with redactions, and one document was withheld in full. Id. ¶ 36.⁶ Along with its productions, the State Department provided a Vaughn⁷ index describing the items withheld. Id. ¶ 3 n.2.

The parties filed cross-motions for summary judgment. ECF Nos. 27, 30. Following the filing of those motions, the State Department filed a supplemental declaration of Stein, as well as an updated Vaughn index. ECF No. 35. The supplemental submissions indicate that, after production of the initial Vaughn index, the State Department released portions of previously withheld information. See Supplemental Declaration of Eric Stein, ECF No. 35 ("Stein Supp. Decl.") ¶ 8.

In its summary judgment motion, the State Department stands by its withholdings in response to the 12996 request, as identified in the updated Vaughn index (the " Vaughn index"), and maintains its position that no records responsive to the 12997 request exist. Mr. Seife, in his cross-motion for summary judgment, challenges the State Department's search in connection with the 12997 request and seeks disclosure of a majority of the information withheld pursuant to FOIA Exemptions 5 and 6.

As explained below, the Court...