United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2001 Decided January 25, 2002
No. 00-5387
Public Citizen,
Appellant
v.
Department of State, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01423)
Michael E. Tankersley argued the cause for appellant.
With him on the briefs was Alan B. Morrison.
Matthew M. Collette, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Wilma A. Lewis, U.S. Attorney at the time the brief was
filed, Leonard Schaitman, Attorney, U.S. Department of
Justice, and John Schnitker, Attorney, U.S. Department of
State.
Before: Edwards and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: When the State Department re-
sponds to Freedom of Information Act requests, it generally
declines to search for documents produced after the date of
the requester's letter. Challenging this "date-of-request cut-
off" policy, appellant claims that the Department promulgated
it without notice and opportunity to comment as required by
the Administrative Procedure Act, and that, in any event, the
policy is unreasonable both generally and as applied to appel-
lant's particular request because it forces FOIA requesters to
file multiple requests. We reject the former claim because
the policy falls within the APA's exemption for "rules of
agency organization, procedure or practice." Finding that
the State Department has failed to substantiate its claim that
an "administrative nightmare" would result were it unable to
apply the date-of-request cut-off policy, however, we agree
with appellant that the policy is unreasonable both generally
and as applied to its FOIA request. Finally, we reject
appellant's additional claim that the Department improperly
invoked FOIA's national security exemption to withhold some
otherwise responsive information.
I.
The State Department processes FOIA requests in four
stages. During the first stage, it mails a letter to the
requester acknowledging receipt and assigning an identifica-
tion number. Grafeld Decl. II p 18. This initial letter also
informs the requester that the "cut-off date ... is the date of
the requester's letter" and that "no documents ... origi-
nat[ing] after the date of [the] letter will be retrieved."
Sforza Decl. p 6. During the second stage, the Department's
Statutory Compliance & Research Division determines "which
offices, overseas posts, or other records systems within the
Department may reasonably be expected to contain the infor-
mation requested." Grafeld Decl. II p 23. The Department
then "task[s]" these various components to search for respon-
sive documents. Id. p 28. The speed at which the tasked
component completes a search depends largely on available
personnel, the nature of the request and the number of
outstanding requests. "By far" the most frequently tasked
component is the Department's Central Foreign Policy File, a
centralized automated records system containing the "most
comprehensive authoritative compilation of documents," in-
cluding documents "that establish, discuss or define foreign
policy," as well as "official record copies of incoming and
outgoing Department communications." Id. p 24. Conse-
quently, the Central File has the "longest queue" of any
Department component. Id. p 46. During the third phase of
FOIA request processing, the Department reviews the re-
trieved documents to determine whether it should withhold
any, or portions thereof, pursuant to one of FOIA's nine
exemptions. During the final phase, the Department copies
the documents, redacts classified material and releases them
to the requester.
In April 1998, appellant Public Citizen, a non-profit, public
interest organization "dedicated to the study and promotion
of public health and ... consumer welfare," Appellant's Open-
ing Br. at ii, sent a FOIA request to the Department asking
for records describing its "current system for managing word
processing files ... and electronic mail messages," as well as
"disposition schedule[s] submitted to the National Archives
concerning the transfer or disposal" of these materials. Graf-
eld Decl. I p 4. Three months later, the Department released
seven documents in full, as well as an eighth with portions
redacted pursuant to FOIA's first exemption, the national
security exemption, 5 U.S.C. s 552(b)(1). This final docu-
ment was a thirty-five chapter "records disposition schedule,"
essentially a document index with each entry containing a
brief description of a Department record and designating the
record as "permanent" or "temporary." Ronan Decl. p 4.
Although the Department initially withheld all 119 entries
pertaining to the Bureau of Intelligence and Research, it
eventually released all but portions of seventeen entries.
According to the Department, the withheld portions describe
"sources and methods of intelligence collection [that] would
identify substantive areas in which intelligence activities have
been carried out or might be undertaken in the future," as
well as "identif[y] persons and organizations that ... partici-
pate in ... intelligence activities." Grafeld Decl. I p 17.
Significantly for this case, the letter accompanying the re-
leased documents stated that although the Department typi-
cally declines to retrieve documents produced after the date
of the FOIA request, the Department had waived this "date-
of-request cut-off" policy as a courtesy to Public Citizen. Id.
p 9.
Meanwhile, in response to the initial withholding, Public
Citizen had filed suit in the United States District Court for
the District of Columbia claiming that the Department pro-
mulgated the cut-off policy without the notice and comment
required by the Administrative Procedure Act, 5 U.S.C.
s 553(b), and that the cut-off policy was unreasonable both
generally and as applied to its request. Public Citizen also
claimed that in withholding portions of the seventeen record
entries, the Department had improperly invoked FOIA's na-
tional security exemption.
Before anything significant occurred in the district court,
Public Citizen submitted two additional FOIA requests. The
first, made in June, sought documents relating to "interna-
tional investment issues," including discussions or negotia-
tions of the Multilateral Agreement on Investment. Grafeld
Decl. II p 43. The Department acknowledged this request
with its standard letter, which included a paragraph inform-
ing Public Citizen that it would apply its usual date-of-request
cut-off policy. The second request, made in October, sought
four specific record disposition schedules and two related
"appraisal memoranda" from the National Archives and Rec-
ords Administration. Appellees' Br. at 13. The Archives
released two of these schedules in full but, after consulting
with the State Department (the relevant classification author-
ity), invoked FOIA's national security exemption to withhold
portions of the remaining documents that essentially duplicat-
ed information withheld in response to Public Citizen's April
FOIA request. See id. (Archives documents "contained the
same information in the Department of State records previ-
ously withheld as classified"); Appellant's Opening Br. at 12-
13 (Archives documents "included the same information in the
database entries withheld by the Department"). Amending
its complaint in the district court, Public Citizen challenged
the application of the cut-off policy to the June request and
charged that the Department had improperly classified the
Archives material.
In May 2000, the district court dismissed Public Citizen's
challenge to the cut-off policy as applied to the April FOIA
request because the Department had in fact not applied it.
The court dismissed as unripe Public Citizen's challenge to
the cut-off policy generally, finding it insufficiently "crystal-
lized," as well as Public Citizen's challenge to the cut-off
policy as applied to the June FOIA request, reasoning it was
"not possible ... to know" whether the cut-off policy would
be applied to that request. Pub. Citizen v. Dep't of State, 100
F. Supp.2d 10, 18 (D.D.C. 2000). Finding the policy a "rule[ ]
of agency organization ... or practice" exempt from notice
and comment, the district court also granted summary judg-
ment for the Department on Public Citizen's APA claim. Id.
at 20-21.
Turning to the Department's invocation of FOIA's national
security exemption, the district court, after examining a clas-
sified State Department declaration in camera, found that the
Department had, for the most part, demonstrated that the
withheld material was classifiable. At the same time, howev-
er, the court ordered the "disposition dates" on the seventeen
record entries released because they were "apparently ...
meaningful" to Public Citizen and easily segregable. Id. at
25. Because in responding to Public Citizen's FOIA request,
the Department had classified some information the organiza-
tion sought, the district court held that pursuant to Executive
Order 12,958, the Department and Archives had to show that
they had not previously released the withheld portions. Id.
at 22 (citing Exec. Order No. 12,958 s 1.8(d) (requiring
agencies classifying information in response to a FOIA re-
quest to show that they have not previously released the
information)). Although the district court found that the two
agencies had generally satisfied this burden, it ordered the
Department to file a supplemental declaration addressing
whether it had ever previously disclosed the information
contained in the Archives documents. As part of its ruling on
the public disclosure issue, the district court rejected Public
Citizen's arguments that the government declarants lacked
"personal knowledge" of agency procedure, and thus denied
Public Citizen's motion to strike the relevant portions of the
declarations. Id. at 26 n.11. It also denied Public Citizen's
motion for additional discovery. After the Department filed
its supplemental declaration, the district court entered final
judgment for the Department.
Public Citizen appeals the district court's dismissal of its
challenges to the reasonableness of the cut-off policy as
unripe and the grant of summary judgment with respect to
the remaining claims, as well as the district court's discovery
and evidentiary rulings. We review the former de novo,
Wilson v. Pena, 79 F.3d 154, 160 n. 1 (D.C. Cir. 1996) ("Our
standard of review under Federal Rules 12(b)(6) and 56 is the
same: de novo."), and the latter for abuse of discretion, White
v. Fraternal Order of Police, 909 F.2d 512, 517 (D.C. Cir.
1990) (reviewing district court's discovery ruling for abuse of
discretion); O'Regan v. Arbitration Forums, Inc., 246 F.3d
975, 986 (7th Cir. 2001) (reviewing district court's decision to
strike parts of an affidavit for abuse of discretion).
II.
We begin with Public Citizen's claim that the Department
unlawfully promulgated the cut-off policy without the notice
and opportunity to comment required by the APA. The
Department responds that its cut-off policy is procedural and
thus covered by the APA's exemption from notice and com-
ment for "rules of agency organization, procedure, or prac-
tice," 5 U.S.C. s 553(b)(3)(A). According to Public Citizen,
the cut-off policy cannot be considered procedural because it
"substantially ... affects rights" by "needlessly multipl[ying]
the number of FOIA requests that must be submitted to
obtain access to records." Appellant's Opening Br. at 33-34.
We have, however, characterized agency rules as procedural
even where their effects were far harsher than the Depart-
ment's date-of-request cut-off policy. For example, in Rang-
er v. FCC, we found an agency rule establishing a cut-off date
for the filing of radio license applications to be procedural
even though the failure to observe the rule cost appellants a
radio broadcast license. 294 F.2d 240, 243-44 (D.C. Cir.
1961).
As we recognized in American Hospital Ass'n v. Bowen,
"[o]ver time, our circuit in applying the s 553 exemption for
procedural rules has gradually shifted focus from asking
whether a given procedure has a 'substantial impact' on
parties to ... inquiring more broadly whether the agency
action ... encodes a substantive value judgment." 834 F.2d
1037, 1047 (D.C. Cir. 1987) (citation omitted). This "gradual
move," we noted, "reflects a candid recognition that even
unambiguously procedural measures affect parties to some
degree." Id. More recently, in JEM Broadcasting Co. v.
FCC, we found that FCC "hard look rules," which required
the dismissal of flawed license applications without leave to
amend, were procedural despite their sometimes harsh ef-
fects. 22 F.3d 320, 327-28 (D.C. Cir. 1994). In doing so, we
rejected the argument that the rules encoded substantive
value judgments because they valued applications without
errors over those with minor errors. Id. Clarifying the
American Hospital standard, we held that in referring to
"value judgments" in that case, we had not intended to
include "judgment[s] about what mechanics and processes are
most efficient" because to do so would "threaten[ ] to swallow
the procedural exception to notice and comment, for agency
housekeeping rules often embody [such] judgment[s]." Id. at
328.
Because the Department's cut-off policy applies to all FOIA
requests, making no distinction between requests on the basis
of subject matter, it clearly encodes no "substantive value
judgment," Am. Hosp., 834 F.2d at 1047. To be sure, the
policy does represent a "judgment" that a date-of-request cut-
off promotes the efficient processing of FOIA requests, but a
"judgment about procedural efficiency ... cannot convert a
procedural rule into a substantive one." James V. Hurson
Assocs., Inc. v. Glickman, 229 F.3d 277, 282 (D.C. Cir. 2000)
(internal quotation marks and citation omitted). Consequent-
ly, we agree with the district court that the Department's cut-
off policy represents a prototypical procedural rule properly
promulgated without notice and comment.
III.
Before considering the merits of Public Citizen's alternative
argument--that the cut-off policy is unreasonable--we must
address the Department's assertion, embraced by the district
court, that the policy is unripe for review either generally or
as applied to the June request. Ripeness inquiry requires
that we evaluate "the fitness of the issues for judicial decision
and the hardship to the parties of withholding court consider-
ation." Texas v. United States, 523 U.S. 296, 300-301 (1998)
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
"[U]nder the ripeness doctrine, the hardship prong ... is not
an independent requirement divorced from the consideration
of the institutional interests of the court and agency." Payne
Enters., Inc. v. United States, 837 F.2d 486, 493 (D.C. Cir.
1988). A case is ripe "when it presents a concrete legal
dispute [and] no further factual development is essential to
clarify the issues, ... [and] there is no doubt whatever that
the challenged agency practice has crystallized sufficiently for
purposes of judicial review." Rio Grande Pipeline Co. v.
FERC, 178 F.3d 533, 540 (D.C. Cir. 1999) (alterations in
original) (internal quotation marks and citation omitted).
The Department argues that Public Citizen's generic chal-
lenge is unripe because it does not apply an "across-the-board
cut-off rule." Appellees' Br. at 26. In fact, the Department
contends, it will "on occasion" perform a "more comprehen-
sive search." Id. The record, however, provides little if any
support for the notion that the cut-off policy is flexible. The
Department's published guidance states unequivocally that
"the Department has established that the cut-off date ... is
the date of the initial request," http: //foia.state.gov/
faqs.asp#Q15 (last visited Jan. 4, 2002), and all Department
acknowledgment letters refer to the cut-off policy as a "condi-
tion[ ] which govern[s] all [FOIA] requests," Sforza Decl. p 6.
The only evidence of flexibility that the Department points to
is the fact that it did not apply the cut-off policy to Public
Citizen's initial FOIA request. But we have never allowed
agencies to defeat judicial review of their standards by occa-
sionally waiving them in individual cases. See, e.g., Better
Gov't Ass'n v. Dep't of State, 780 F.2d 86, 91 (D.C. Cir. 1986)
(holding challenge to fee waiver policy as applied moot be-
cause agency had waived fees, but finding challenge to "fa-
cial" validity of fee waiver ripe). This general principle
applies with special force here: At oral argument, Depart-
ment counsel was unable to give any reason for the waiver,
leading us to suspect that the Department waived the cut-off
policy only to avoid having it attacked by a vigorous litigant
like Public Citizen.
Equally unconvincing is the Department's argument that
the generic challenge is unripe because the reasonableness of
the cut-off policy turns on "the particular circumstances of
the case." Appellees' Br. at 27. As a non-profit organization
that has "submitted ... and plans to continue to submit
FOIA requests" to the Department, First Amend. Compl.
p 27, Public Citizen seeks a declaration that the Department's
reflexive application of the date-of-request cut-off policy to all
FOIA requests is unreasonable. Public Citizen does not
argue that the Department may never under any circum-
stances reasonably apply a date-of-request cut-off to a partic-
ular FOIA request. Although such a claim might well be
impossible to adjudicate outside the "particular circum-
stances" of one or more FOIA requests, the claim Public
Citizen mounts in this case, by its very nature, is not.
Finding no "institutional interests," Payne Enters., 837 F.2d
at 493, in deferring review, we think Public Citizen's generic
challenge is ripe.
We reach the same conclusion with respect to Public Citi-
zen's challenge to the cut-off policy as applied to its June
request, even though the record before the district court does
not indicate whether the Department in fact "exercised its
discretion to retrieve documents created after the date of the
request." Pub. Citizen, 100 F. Supp. 2d at 17-18. As we
said in Better Government, "[w]here ... the agency has
stated that the action in question governs and will continue
to govern its decisions, such action must be viewed as final in
our analysis of ripeness." 780 F.2d at 93. Here, the Depart-
ment sent Public Citizen a letter expressly saying that it
considered the date of the letter to be the "cut-off" date, thus
creating a controversy ripe for judicial review.
Public Citizen argues that the cut-off policy is unreasonable
because it forces the organization to "periodically ... resub-
mit the identical request in order to get more recent records."
Appellant's Opening Br. at 30. In support of this argument,
Public Citizen relies on our decision in McGehee v. CIA, 697
F.2d 1095 (D.C. Cir. 1983). In that case, a freelance journal-
ist filed a FOIA request with the Central Intelligence Agency
seeking all documents relating to the infamous Jonestown
Massacre. Id. Following its usual practice, the CIA's Infor-
mation and Privacy Division "tasked" the divisions most likely
to possess relevant documents. Id. at 1098. Though the
journalist made the initial request in December 1978, by
November 1980, almost two years later, the CIA had neither
released any documents nor provided any meaningful infor-
mation about the status of the request. Id. at 1099. The
journalist sued, claiming that the CIA's use of a date-of-
request cut-off policy was unreasonable. Id.
We began by rejecting the CIA's contention that because
the "language in ... FOIA and authoritative case law inter-
preting the statute establishes that the use of a time-of-
request cut-off is always reasonable," we should "decide [the]
question from a generic standpoint." Id. at 1102. In particu-
lar, we rejected the CIA's reliance on cases holding that
FOIA does not require "an agency ... [to] continuously ...
update its responses," reasoning that "the question presented
in this case is whether, when an agency first releases docu-
ments ... it may use a [date-of-request] cut-off." Id. "That
an agency has no obligation, after it has once responded fully
to a FOIA request," we noted, "has little bearing on the issue
before us." Id.
We then considered the reasonableness of the date-of-
request cut-off policy as applied to the journalist's particular
FOIA request. The CIA defended the policy as necessary to
avoid an "administrative nightmare." Id. at 1103. "Confu-
sion," the CIA argued, "might be engendered by different
agency components using different cut-off dates," fee sched-
ules would be "disrupt[ed]" without such a policy, and it
would experience increased costs from the "successive ...
searches that might be necessary if the date of a final
response or the date of litigation were employed as a cut-off."
Id. at 1103-04 (internal quotation marks omitted). The CIA
also claimed that it needed the date-of-request cut-off policy
to preserve the "expeditious[ ] processing [of] relatively sim-
ple requests." Id. at 1104 n. 41. Finding the CIA's argu-
ments "either unpersuasive or irrelevant" in the "absence of
more detailed substantiation," we hypothesized an "alterna-
tive procedure[ ] without the flaws of the [date]-of-request
cut-off policy and without any real potential for ... adminis-
trative nightmares," namely, that at minimum, the CIA could
use as the cut-off date the date on which the Information and
Privacy Division determined which components to "task." Id.
at 1103-04.
According to Public Citizen, McGehee controls this case and
requires that we find the State Department's cut-off policy
unreasonable both generally and as applied to the June
request. The Department urges us not to address these
questions but instead to remand to the district court, which
because it dismissed Public Citizen's claims as unripe, never
reached the merits of the McGehee issue. We see no reason
to remand. Not only was the Department aware of McGehee,
but given the procedural posture of this case--cross-motions
for summary judgment--it had every opportunity to justify
its policy. See Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029,
1032-33 (D.C. Cir. 1988) (holding that court must enter
summary judgment against nonmovant who bears the burden
of production and fails to meet that burden).
We need not linger long over the Department's attempts to
justify its reflexive application of the cut-off policy to every
request regardless of circumstances. McGehee expressly re-
jected the proposition that under FOIA, the "use of a time-of-
request cut-off date is always reasonable." McGehee, 697
F.2d at 1102. Although specific circumstances in some agen-
cies may render an across-the-board rule reasonable, the
Department has made no showing that warrants such an
approach in its case.
The Department advances two justifications for its cut-off
policy as applied to Public Citizen's June request. It first
argues that although the use of a "later cut-off date" might
have resulted in the retrieval of more documents, Public
Citizen would have had to "wait a longer time." Appellees'
Br. at 34. As noted above, however, McGehee rejected a
similar argument advanced by the CIA, 697 F.2d at 104-05
n.41, and we find the claim likewise unsubstantiated here.
Because the Department has a large "backlog" of FOIA
requests, Grafeld Decl. II p 2, and because Public Citizen has
no way of knowing whether the Department created new
responsive documents after the date of its June request, the
policy's net result is to increase processing time by forcing
Public Citizen to file multiple FOIA requests to obtain docu-
ments that the Department would have released in response
to a single request had it used a later cut-off date.
Second, the Department points out that because the June
request was not limited to a "central records system," the
Department must "task various offices and components" to
search for responsive records. Since searches may take place
in "different components ... at vastly different times for the
same FOIA request," the Department argues, a "date-of-
request" cut-off policy avoids the "confusion of having multi-
ple cut-off dates on a given request, and provides requesters
with a clear basis for determining whether a subsequent
request might be necessary." Appellees' Br. at 35-36.
Again, we rejected just such a claim in McGehee, hypothesiz-
ing an alternative procedure that would utilize a "cut-off date
much later than the time of the original request ... [and]
result[ ] in a much fuller search and disclosure." 697 F.2d at
1104. The same is true here: Because the Central File is
typically the component searched last--it possesses the long-
est queue--and because, as the Department concedes, the
Central File contains the "most comprehensive" collection of
Department documents, Grafeld Decl. II p 46, the current
policy of releasing only documents prepared before the re-
quest date permits the Department to withhold, with little or
no justification, a potentially large number of relevant docu-
ments. At the very least, we think that with minimal admin-
istrative hassle, the Department could apply a date-of-search
cut-off to the Central File.
In short, like the CIA in McGehee, the State Department
has failed to substantiate its claim that an "administrative
nightmare," 697 F.2d at 1103, would result were it unable to
apply the date-of-request cut-off policy to Public Citizen's
June request. In reaching this conclusion, we emphasize that
nothing in this opinion precludes either the Department or
any other federal agency from attempting a more compelling
justification for imposing a date-of-request cut-off on a partic-
ular FOIA request.
IV.
This brings us to Public Citizen's challenge to State's and
Archives' invocation of FOIA's national security exemption.
According to Public Citizen, the district court erred when it
concluded that the Department (which has sole classification
authority) has shown that the information withheld relates to
national security. Public Citizen also argues that even if the
material does relate to national security, the two agencies
must show that they have never previously released the
material publicly. We disagree with both contentions.
The government has the initial burden of demonstrating
that requested material is classifiable. Halperin v. CIA, 629
F.2d 144, 147 (D.C. Cir. 1980). Summary judgment may be
granted on this issue "on the basis of agency affidavits [only]
if they contain reasonable specificity of detail rather than
merely conclusory statements, and ... they are not called
into question by contradictory evidence in the record or by
evidence of agency bad faith." Id. at 148. In this case, the
Department's declaration states as follows:
Withheld ... information ... relates directly to intelli-
gence activities, sources or methods, discussed in detail
in the Document Description shown below. Disclosure of
this information could enable foreign governments or
foreign persons or entities opposed to United States
foreign policy objectives to identify U.S. intelligence ac-
tivities, sources or methods and to undertake counter-
measures that could frustrate the ability of the U.S.
Government to acquire information necessary to the for-
mulation and implementation of U.S. foreign policy. Dis-
closure of this information, therefore, "... reasonably
could be expected to result in damage to the national
security...."
Machak Decl. II p 11. In Halperin, we found similar lan-
guage sufficient to sustain the government's burden. In that
case, the CIA stated that if the names of its attorneys were
revealed "representatives of hostile, foreign intelligence ser-
vices working in this country [could], by a variety of tech-
niques, ... undertake courses of action to ascertain ... other
contacts [or] other locations, and then arrive at determina-
tions whether [the attorney] is doing any other function for
the [CIA]." Halperin, 629 F.2d at 149. The sworn state-
ment in this case--that "[d]isclosure ... could enable foreign
persons or entities opposed to United States foreign policy
objectives to identify U.S. intelligence activities, sources or
methods"--is equally specific and detailed. To be absolutely
sure, like the district court, we reviewed the classified portion
of the declaration and are satisfied that the government has
sustained its burden.
In the face of the Department's reasonably detailed decla-
ration, Public Citizen points to only one source of "contradic-
tory evidence," id.: the fact that after reviewing the Archives
documents, the Department turned over certain information
that it had earlier refused to release in response to Public
Citizen's first FOIA request. Yet we have previously de-
clined to find subsequent disclosure as evidence of bad faith,
reasoning that "to effectively penalize an agency for volun-
tarily declassifying documents would work mischief by creat-
ing an incentive against disclosure." Pub. Citizen v. Dep't of
State, 11 F.3d 198, 203 (D.C. Cir. 1993) (internal quotation
marks and citation omitted). That principle applies here as
well.
Public Citizen next claims that the government's declara-
tions are insufficient to demonstrate that the information
withheld had never been previously released because the
declarants did not rely on "personal knowledge." Appellant's
Opening Br. at 39. This argument rests on a misunderstand-
ing of the burden of production. Although it is true that
under certain circumstances, previously released information
"cannot be withheld under exemption[ ] one," we have made
clear that "a plaintiff asserting a claim of prior disclosure
must bear the initial burden of pointing to specific informa-
tion in the public domain that appears to duplicate that being
withheld." Afshar v. Dep't of State, 702 F.2d 1125, 1129 (D.C.
Cir. 1983). "This is so," we have explained, "because the task
of proving the negative, that the information has not been
revealed, might require the government to undertake an
exhaustive, potentially limitless, search." Davis v. Dep't of
Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992). Public Citizen
points to no "specific information in the public domain" that
might "duplicate that being withheld." Afshar, 702 F.2d at
1130. Instead, it argues that if researchers had requested
the documents, Archives employees might have shown the
documents to them. Such speculation neither satisfies Public
Citizen's burden of production, cf. Cottone v. Reno, 193 F.3d
550, 554 (D.C. Cir. 1999) (plaintiff met burden by demonstrat-
ing that audio tapes containing information had been "aired
publicly in open court"), nor demonstrates that the district
court's denial of the organization's request for further discov-
ery amounted to an abuse of discretion, see White, 909 F.2d at
517.
V.
In sum, we conclude that (1) the cut-off policy is a proce-
dural rule properly promulgated without notice and comment,
(2) Public Citizen's McGehee challenges to the cut-off policy
generally and as applied to its June request are ripe, (3) the
cut-off policy is unreasonable both generally and as applied to
Public Citizen's June request and (4) the Department and
Archives properly withheld material pursuant to FOIA's na-
tional security exemption. Thus, we affirm in part, reverse in
part, and remand to the district court for further proceedings
consistent with this opinion.
So ordered.