Students against Genocide v. Department of State, CIV.A. 96-667CKKJMF.

• Decision Date: 25 May 1999
• Docket Number: No. CIV.A. 96-667CKKJMF.,CIV.A. 96-667CKKJMF.
• Citation: 50 F.Supp.2d 20
• Court: U.S. District Court — District of Columbia
• Parties: STUDENTS AGAINST GENOCIDE (SAGE), <I>et al.,</I> Plaintiffs, v. DEPARTMENT OF STATE, <I>et al.,</I> Defendants.

50 F.Supp.2d 20

STUDENTS AGAINST GENOCIDE (SAGE), et al., Plaintiffs, v. DEPARTMENT OF STATE, et al., Defendants.

No. CIV.A. 96-667CKKJMF.

United States District Court, District of Columbia.

May 25, 1999.

COPYRIGHT MATERIAL OMITTED

George Simons LaRoche, Takoma Park, MD, for plaintiffs.

Anne L. Weismann, U.S. Dept. of Justice Civil Div., Washington, DC, Pamela Jane Aronson, U.S. Dept. of Justice, Washington, DC, for defendants.

REPORT AND RECOMMENDATION

FACCIOLA, United States Magistrate Judge.

This Freedom of Information Act, 5 U.S.C. § 552, ("FOIA") action is before me for a report and recommendation on Defendants' Motion for Summary Judgment ("Defs.Mot."), Plaintiffs' Opposition to Defendants' Motion for Partial [sic] Summary Judgement ("Plains.Opp."), and Reply in Support of Defendants' Motion for Summary Judgment ("Defs.Reply"). For the reasons stated below, I recommend that defendants' motion for summary judgment be granted.

I. BACKGROUND

Plaintiffs are several citizens' organizations, members of Congress, and individuals who describe themselves as "concerned with U.S. policy on genocide in Bosnia." Complaint ("Compl.") at 3. They are seeking information regarding "massive human rights violations by Bosnian Serb forces in the Srebrenica area of Bosnia and other places." Id. Defendants are the U.S. Department of State ("DOS"), the U.S. Department of Defense ("DOD"), and the U.S. Central Intelligence Agency ("CIA"). Defendants conducted searches for the requested information and released, in whole or in part, materials which they assert are responsive to the requests. Defendants also simultaneously claimed the right to withhold other potentially responsive documents based on exemptions to FOIA.

In two letters, dated October 12, 1995 and October 18, 1995, plaintiffs submitted FOIA requests to DOS, DOD, and CIA regarding four categories of information. After this action was filed on April 4,1996, the parties agreed to divide the initial FOIA request into two separate requests deemed the "First FOIA Request" and the "Second FOIA Request". The parties also agreed that they would proceed with the litigation based on the First FOIA Request and that plaintiffs would amend their complaint to delete any claims based on the Second FOIA Request.

On September 29, 1998, the court granted defendants' motion for partial summary judgment as to the First FOIA Request. The court also ordered plaintiffs to file inter alia a praecipe of dismissal without prejudice as to the Second FOIA Request or an explanation as to why dismissal without prejudice was not appropriate. Plaintiffs complied with the court's order and filed a praecipe of dismissal.

Plaintiffs then filed a motion to reconsider the order granting partial summary judgment, proffering additional evidence in support of their motion to reconsider. The court issued an order requiring defendants to respond to the proffer of supplemental evidence and also to state whether or not there were any outstanding FOIA requests pending before DOS, DOD, or CIA. Defendants responded by stating that there were no outstanding requests pending before any governmental agencies but that one document which was originally referred to other agencies for review in connection with the Second FOIA Request actually contained information which might be responsive to the First FOIA Request. By letter dated December 18, 1998, the Defense Intelligence Agency ("DIA"), an agency within DOD, informed plaintiffs that it was withholding the document under FOIA Exemption 1, 5 U.S.C. § 552(b)(1). On January 29, 1999, the court denied plaintiffs' motion for reconsideration, thus leaving only one remaining issue before this court: whether DIA's withholding of this document under FOIA Exemption 1 was proper and therefore requires that the court grant its motion for summary judgment.

II. DISCUSSION

A. Legal Standard

In a FOIA action, "the agency bears the burden of showing that there is no genuine issue of material fact, even when the underlying facts are viewed in the light most favorable to the requester." Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983). In order to meet that burden, the agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act[ ]." National Cable Television Assn. v. Federal Communications Commission, 479 F.2d 183, 186 (D.C.Cir.1973). In addition, even in the national security context, the agency must show that reasonably segregable portions of non-exempt information have been produced. Ray v. Turner 587 F.2d 1187, 1197 (D.C.Cir.1978); 5 U.S.C. § 552(b). The court reviews the claimed exemptions de novo. 5 U.S.C. § 552(a)(4)(B).

In order to meet its burden of proof, it is sufficient for the agency to submit affidavits by individuals with personal knowledge of the processing of the request. Weisberg v. Department of Justice, 705 F.2d at 1351; Fed.R.Civ.P. 56(e). This circuit has held that "if the affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents." Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir. 1979); see Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978). In national security cases dealing with classified information, "Congress has instructed the courts to accord `substantial weight' to agency affidavits." Id. at 352, quoting S.Rep. No. 93-1200, 93rd Cong., 2d Sess. 12, 1974 U.S.Code Cong. & Ad. News, 6285 (1974).

B. Analysis

FOIA Exemption 1 states that the provisions of FOIA do not apply to matters that are "(A) specifically authorized to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to Executive order." 5 U.S.C. § 552(b)(1). Executive Order 12958 sets out a system of procedures and bases for classifying national security information. "Information may not be considered for classification unless it concerns ... (c) intelligence sources and methods." Exec. Or. 12958, § 1.5(c), reprinted in 50 U.S.C.A. § 435 note (West Supp.1998).

In support of its motion for summary judgment, defendant DIA states the following:

As explained in the Richardson declaration, the information discussed in the document at issue was obtained from classified sources and methods and `the release of any portion of the material would tend to reveal those sources and methods used to collect the material.'... The disclosure of those sources and methods `reasonably could be expected to enable foreign authorities to identify U.S. intelligence activities, methods and sources and to take counter measures which would damage the ability of the U.S. government to acquire information that is often critical to the formulation of U.S. foreign policy and the conduct of foreign relations.'

Defs. Mot. at 7.

Plaintiffs, on the other hand, contend that defendants have in effect waived their right to claim any privilege to the document because the information was already disclosed to foreign governments when then U.N. Representative Madeline Albright shared it with the representatives of other nations at a meeting of the U.N. Security Council. Plains. Opp. at 3-4. See Students Against Genocide v. Department of State, No. Civ. A. 96-667, 1998 WL 699074 (D.D.C. Aug.24, 1998).

It does not follow, however, that merely because classified information has been shared with foreign governments that national security has been compromised. Plaintiffs cannot simply substitute their judgment for the United States government's judgement that additional disclosure would be harmful. Furthermore, this court has found no authority for the proposition that the sharing of classified information with foreign governments effects a waiver under FOIA.

In fact, defendants have identified case law in this jurisdiction which stands for the exact opposite proposition. In Van Atta v. Defense Intelligence Agency, No. CIV. A.87-1508, 1988 WL 73856 (D.D.C. July 6, 1988), plaintiffs filed a FOIA request with DIA for release of documents concerning sightings of Americans in Vietnam. Plaintiffs argued that because the information in the documents was shared with Vietnamese diplomats, FOIA exemptions did not apply. The court did not agree. "Plaintiff's more substantive argument — that there can be no harm from disclosure of the material because it has been previously disclosed to a foreign government — is inapposite. The government's decision to share information with a foreign power does not open that information to public scrutiny or undermine the reasons for non-disclosure." Id. at *2.

Additionally, in a series of decisions, this Circuit has considered when disclosure of information should be deemed to waive a FOIA exemption. These decisions cast an important light on plaintiffs' "waiver" theory.

In Military Audit Project v. Casey, 656 F.2d 724 (D.C.Cir.1981), the court was confronted with (1) a report by a Senate Committee about the potential use of deep sea mining technology for the raising of a sunken Russian submarine, (2) a memorandum to science writers and editors by the Deputy Head of the Public Information Branch of the National Science Foundation referring to a ship ("the Glomar explorer") being used to raise a sunken submarine and (3) a disclosure by a former CIA director of how this ship failed to raise the sunken submarine. The court of appeals held that these unofficial disclosures did not deprive the CIA of its right to claim that it should not be forced to disclose its records pertaining to the Glomar explorer and the work it did. The court of appeals rejected the argument that, once the "cat is out of the bag" because of unofficial disclosures,...