Students Against Genocide v. Department of State

• Decision Date: 07 August 2001
• Docket Number: No. 99-5316,99-5316
• Citation: 257 F.3d 828
• Parties: (D.C.Cir. 2001) Students Against Genocide, et al., Appellants v. Department of State, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 828

257 F.3d 828 (D.C.Cir. 2001)

Students Against Genocide, et al., Appellants v. Department of State, et al., Appellees

No. 99-5316

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2000

Decided August 7, 2001

Appeal from the United States District Court for the District of Columbia (No. 96cv00667) George S. LaRoche argued the cause and filed the briefs for appellants.

Douglas N. Letter, Appellate Litigation Counsel, U.S. Department of Justice, argued the cause for appellees. With him on the brief were David W. Ogden, Acting Assistant Attorney General at the time the brief was filed, and Wilma A. Lewis, U.S. Attorney at the time the brief was filed. Leonard Schaitman, Attorney, entered an appearance.

Before: Rogers and Garland, Circuit Judges and Silberman, Senior Circuit Judge.^*

Garland, Circuit Judge:

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, Students Against Genocide and other individuals and organizations (collectively "SAGE" or "plaintiff") seek agency records relating to human rights violations committed by Bosnian Serb forces in Bosnia during the summer of 1995. We affirm the district court's grant of summary judgment in favor of the agencies, and remand a limited issue regarding SAGE's eligibility for attorney's fees and costs.

I

Plaintiff's FOIA requests focus primarily on a presentation made by then-U.S. Ambassador Madeleine Albright to the United Nations Security Council on August 10, 1995. A New York Times article published the following day reported that Albright "told a closed door session of the Security Council that 2,000 to 2,700 missing Bosnians ... might have been shot by the Bosnian Serbs" when the Serbs seized the Bosnian town of Srebrenica in July 1995. Barbara Crossette, U.S. Seeks to Prove Mass Killings, N.Y. Times, Aug. 11, 1995, at A3. According to the article, Albright supported the allegation by showing classified "spy satellite" and "spy plane" photographs to the Security Council.

The Times article reported that some of the photographs, taken in mid-July 1995, showed "mounds of freshly dug patches of earth" in areas where Bosnian Muslim families were said to have been "herded together." One photograph showed "about 600 people gathered in a soccer field," and another, taken a few days later, showed "areas of freshly dug earth" at the same location. The article reported that after Albright's presentation, the Clinton Administration publicly released three of the photographs, "taken from a U-2 spy plane," that "showed the disturbed soil." The Administration decided to publicize the photographs, the article reported, "to put pressure on the Bosnian Serbs to support a new peace effort being promoted among European allies and the warring parties in the Balkans." Id.

On October 12 and 18, 1995, SAGE filed identical requests for production of four categories of records from the Department of State, the Department of Defense, and the Central Intelligence Agency (CIA). As subsequently clarified, the first two request categories, based on the New York Times article, sought all photographs and documents used by Albright during her presentation to the Security Council. The third category, of a more general nature, sought any documentation of atrocities in Bosnia from 1993 to the present. The fourth category sought information referred to in a letter that Michael Habib, Director of the State Department's Office of Eastern European Affairs, sent to Beth Stephens, of the Center for Constitutional Rights, on March 24, 1993. The "Habib Letter" stated that the United States had reported information concerning "rape and other grave breaches of the Geneva Conventions" to the United Nations. Letter from M. Habib to B. Stephens (Mar. 24, 1993) (quoted in Kadic v. Karadzic, 70 F.3d 232, 250 n.10 (2d Cir. 1995)).¹

In April 1996, at which time the agencies had not yet released any documents in response to plaintiff's FOIA requests, SAGE filed a complaint in the United States District Court for the District of Columbia. SAGE sought an order, pursuant to 5 U.S.C. 552(a)(4)(B) and (E), directing the agencies to produce the four categories of requested records and to pay attorney's fees and other litigation costs. SAGE subsequently dismissed its claim with respect to the "Category Three" request, and only the Category One, Two, and Four requests remain at issue in this litigation.

On October 10, 1997, after producing documents in response to plaintiff's requests, the defendant agencies filed a motion for summary judgment.² The agencies asserted that they had conducted a reasonable search and had released all responsive documents (or reasonably segregable portions thereof), except those that were exempt from release under (inter alia) two FOIA exemptions: Exemption 1, which protects records properly classified in the interest of national defense or foreign policy, 5 U.S.C. 552(b)(1), and FOIA Exemption 3, which protects records specifically exempted from disclosure by statutes other than FOIA, 5 U.S.C. 552(b)(3). Defs.' Mot. for Partial Summ. J. at 8.

The district court referred the case to a magistrate judge, who conducted a hearing and issued a report recommending that the court grant the agencies' motion for summary judgment. In his report, the magistrate first noted SAGE's complaint that the agencies had produced, or withheld and indexed, many documents plaintiff believed were outside the scope of its requests. The magistrate explained that during the hearing it had become clear that the parties had "different interpretations" of the breadth of SAGE's requests. Students Against Genocide v. Dep't of State, No. CIVA96-667, 1998 WL 699074, at *3 (D.D.C. Aug. 24, 1998) ("First Mag. Rep't"). Plaintiff, he said, "view[s] [its] requests as very narrow, seeking at most a handful of photographs and documents utilized by Albright at her presentation to the U.N. Security Council, and a few specific documents to which a [Department of State] official (Habib) referred in a particular letter." Id. The agencies, by contrast, "read the requests much more broadly by focusing on the phrase 'documents containing the allegedly "sensitive information" shared' by Albright with the Security Council.... Thus, they searched for, and produced, documents which were not necessarily used at the presentation but which contained the information Albright shared." Id.

The magistrate also reported that SAGE "sought a statement from defendants that the documents which were processed ... were responsive to plaintiffs' three very specific information requests." Id. Accordingly, the magistrate had "secured a statement from the defendants that the information transmitted to [SAGE] was responsive to categories one and two of the request as they related to Albright's presentation." Id. The government further confirmed that all of the information responsive to plaintiff's Category One and Two requests had either been released or withheld as exempt. Id. (quoting Tr. at 48). With respect to Category Four, the information referred to in the Habib Letter, the government represented that it had located three documents responsive to the request and had released all three to plaintiff. Id. at 11 n.17. The magistrate pronounced himself satisfied with "the responsiveness of the released information." Id. at 4.

Finally, the magistrate turned to the agencies' searches, and to the affidavits, commonly known as Vaughn indices,³ that listed the withheld documents and justified their withholding under FOIA Exemptions 1 and 3. After reviewing the agencies' declarations, the magistrate found the searches reasonable, the Vaughn indices sufficiently detailed, and the exemptions properly invoked. As a result, the magistrate recommended that the district court grant the agencies' motion for summary judgment.⁴

On September 29, 1998, after conducting a de novo review of the summary judgment materials, the district court adopted the magistrate's report in full. In addition, the court rejected SAGE's argument that the magistrate should not have accepted the representations of government counsel that the documents produced and/or indexed were responsive to plaintiff's requests, but should instead have required counsel to file further affidavits. The court held that SAGE had waived this argument by failing to assert it before the magistrate. See Students Against Genocide v. Department of State, No. 96cv0667, slip op. at 3-4 (D.D.C. Sept. 29, 1998) ("Dist. Ct. Op.").

After the district court granted summary judgment, but before the time for appeal had run, plaintiff filed a motion to reconsider based on further disclosure letters it had received from the government. The district court issued an order requiring the government to respond, and, after further pleadings, again referred the matter to the magistrate. Upon the government's second motion for summary judgment, the magistrate determined that a component of the Department of Defense, the Defense Intelligence Agency (DIA), had found and properly withheld a single document--a classified memorandum from the Director of the DIA to the Chairman of the Joint Chiefs of Staff. Students Against Genocide v. Dep't of State, 50 F. Supp. 2d 20 (D.D.C. 1999) ("Second Mag. Rep't"). The district court denied SAGE's motion for reconsideration of its first summary judgment order, and, on July 22, 1999, adopted the magistrate's recommendation to grant the government's second motion for summary judgment. SAGE then filed the instant appeal.⁵

II

FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions. See 5 U.S.C. 552(a)(3)(A), (b). In a suit brought to compel production, 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...