Government Accountability Project v. U.S. Department of State

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GOVERNMENT ACCOUNTABILITY )
PROJECT, )
)
Plaintiff, )
) Civil Case No. 08-1295 (RJL)
v. )
)
U.S. DEPARTMENT OF STATE, )
)
Defendant.

MEMO~INION
(March~, 2010) [#15 and #21]

Plaintiff, Government Accountability Project ("GAP"), brings this action against

the U.S. Department of State (the "State Department" or "defendant"), for failing to

disclose, in whole or in part, certain documents pursuant to a request under the Freedom

of Information Act ("FOIA"), 5 U.S.C. § 552. Before the Court is the defendant's

Motion for Summary Judgment and the plaintiffs Cross-Motion for Summary Judgment.

Upon consideration of the parties' pleadings, relevant law, and the entire record herein,

the defendant's motion is GRANTED and the plaintiffs cross-motion is DENIED.

BACKGROUND

On May 21,2007, GAP made a FOIA request to the State Department's Office of

Information Programs and Services for: (1) all correspondence from January 1,2005, to

the present regarding the Foundation for the Future; (2) all correspondence with the

World Bank between Elizabeth Cheney and J. Scott Carpenter regarding the Middle East
Partnership Initiative; and (3) all memoranda, talking points, policy papers, position

papers, and background points regarding the Foundation for the Future. Compl. ~ 6;

Def.'s Mot. for Summ. J. ("Def.'s Mot.") Attach. 2, Decl. of Celeste Houser-Jackson

("Houser-Jackson Decl."), ~ 4 & Ex. 1. The Foundation for the Future (the "FF") is a

non-profit organization established in July 2006 that provides opportunities through grant

administration for non-governmental organizations and activists working to support

democracy, good governance, human rights, and reform in the Broader Middle East and

North Africa region. Houser-Jackson Decl. ~ 21. The State Department provides funding

to the FF and also contracted with the Eurasia Foundation to provide start-up support for

the FF. Id. ~ 22. The Office of the Middle East Partnership Initiative within the Bureau

of Near Eastern Affairs at the State Department ("NEAIPI") managed the State

Department's relationship with the Eurasia Foundation, along with working with the FF

during the start-up phase. Id.

In response to the plaintiffs FOIA requests, the State Department conducted

multiple comprehensive searches, resulting in 306 responsive documents. See id.

~~ 11-19. Of these documents, the defendant released 168 documents in full, released

eighty-five in part, and withheld fifty-three documents in full. Id. ~ 19. On July 28, 2008,

the plaintiff filed this action to compel the defendant to produce certain specified

documents of those that the defendant withheld in part or in full. Compl. ~ 15; see also

Def.'s Mot. Ex. A (listing the contested documents).

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 ANALYSIS

The parties have filed cross-motions for summary judgment. Summary judgment

shall be granted when the record demonstrates "that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing same). In a

FOIA case, the agency bears the burden of establishing that the search was adequate and

that each responsive document was either produced, unidentifiable, or exempt from

production. See Weisberg v. Us. Dep't ofJustice, 745 F.2d 1476, 1485, 1489 (D.C. Cir.

1984). In this case, GAP does not contest the adequacy of the State Department's search

for responsive documents; GAP does, however, dispute the State Department's reliance

on certain enumerated exemptions.

The Court's review of an agency's justification for non-disclosure is de novo. See

5 U.S.C. § 552(a)(4)(B). In doing so, the Court "may rely on affidavits or declarations

submitted by the agency, if those documents describe 'the justifications for non-

disclosure with reasonably specific detail, demonstrate that the information withheld

logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith. '" Suzhou Yuanda Enter., Co.

v. Us. Customs & Border Prot., 404 F. Supp. 2d 9, 12 (D.D.C. 2005) (quoting Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Here, the State Department

submitted two detailed declarations, one by Celeste Houser-Jackson and the other by

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Steve A. Lauderdale. Both describe the searches performed and the exemptions invoked

for the documents that were withheld in whole or in part pursuant to Exemptions 1,4, 5,

and 6. See Houser-Jackson Decl.; Def.'s Opp'n to Pl.'s Mot. for Summ. 1. ("Pl.'s Cross-

Mot.") Attach. 1, Decl. of Steve A. Lauderdale ("Lauderdale Decl. "). For the following

reasons, the Court finds there are no genuine issues of material fact as to the validity of

each exemption invoked in this case.

1. Exemption 1

Exemption 1 of the FOIA exempts from mandatory disclosure records "that are

(A) specifically authorized under criteria established by an Executive order to be kept

secret in the interest of national defense or foreign policy and (B) are in fact properly

classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). "[C]ourts must

'recognize that the Executive departments responsible for national defense and foreign

policy matters have unique insights into what adverse affects [sic] might occur as a result

of public disclosure of a particular classified record. '" Salisbury v. United States, 690

F.2d 966,970 (D.C. Cir. 1982) (quoting S. Rep. No. 93-1200 at 12 (1974)). Thus, while

this Court's review is de novo, Congress has indicated that courts should give "substantial

weight" to agency statements concerning the decisions that withhold information on the

basis of Exemption l. See Larson v. Us. Dep't a/State, 565 F.3d 857,864 (D.C. Cir.

2009); Halperin v. CIA, 629 F.2d 144,147-48 (D.C. Cir. 1980). Accordingly, "[i]fan

agency's statements supporting exemption contain reasonable specificity of detail as to

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demonstrate that the withheld information logically falls within the claimed exemption

and evidence in the record does not suggest otherwise, ... the court should not conduct a

more detailed inquiry to test the agency's judgment and expertise or to evaluate whether

the court agrees with the agency's opinions." Larson, 565 F.3d at 865.

In this case, the State Department withheld telegrams in part and in full from

various U.S. Embassies conveying the views of foreign government officials, both on the

FF exclusively and on a range of regional issues of which the FF was only one and often

non-segregable. See Houser-Jackson Decl. ~~ 50, 78-80, 87, 89, 90, 116. The telegrams

include information obtained in confidence during the course of the conduct of U.S.

foreign relations. See id. ~~ 57, 79, 85,97, 119. For each of these documents, the Court

finds that the Houser-Jackson declaration contains reasonable specificity of detail that

demonstrates that each document was appropriately withheld in part or in full under

Exemption 1. 1 See id. ~~ 24-30,57,79,85,97,119.

First, the Houser-Jackson declaration states that these documents were reviewed in

accordance with Executive Order 12958, as amended by Executive Order 13292, and the

withheld portions were properly classified under § 1.4(b) (foreign government

information) and § 1.4(d) (foreign relations or foreign activities of the United States,

including confidential sources) of the Executive Order. See id. ~~ 26-30. Second, the

The identities of sources in document E135 were withheld under Exemption 6.
See Houser-Jackson Decl. ~ 97. The plaintiff does not appear to be contesting the
nondisclosure of this information in E135. See Pl.'s Cross-Mot. 27-30.

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declaration makes clear that the original classification authority in the State Department

determined that disclosure of the withheld information could reasonably be expected to

cause damage to national security and describes such damage. See id. ~~ 24-30; see also

Exec. Order No. 13,292,68 Fed. Reg. 15,315 (Mar. 25, 2003) (revoked by Exec. Order

No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) (text of § 1.4 largely unchanged». More

specifically, the State Department explained that an "essential understanding that governs

all diplomatic intercourse ... is that confidentiality will be observed." Houser-Jackson

Decl. ~ 27. "Given the sensitive and often charged politics of the Middle East, the nature

and extent of cooperation with the u.S. is frequently a subject that foreign governments

want and expect to be treated confidentially." Id. ~ 29. In fact, disclosure of the

information in question would cause foreign governments to become less willing in the

future to furnish information important to the conduct of U.S. foreign relations, which

would harm these relations and inhibit future cooperation and information sharing,

causing damage to national security. Id. ~~ 27-30.

In light of the foregoing, I find that the State Department has demonstrated that

disclosure of this information is reasonably expected to cause damage to national security

and has adequately described such damage. See Krikorian v. Dep 't of State, 984 F .2d

461, 465 (D.C. Cir. 1993) (recognizing the State Department's judgment that release

would "jeopardize 'reciprocal confidentiality' and damage national security"). In

comparison, plaintiff offers no meritorious argument, about the documents generally or

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any specific document, to the contrary, nor is there any evidence suggesting bad faith on

behalf of the defendant. Therefore, the Court concludes that this information was

properly withheld under Exemption 1. See Larson, 565 F.3d at 864-65.

2. Exemption 4

Exemption 4 protects "trade secrets and commercial or financial information

obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). In this

case, the State Department withheld in part or in full four documents pursuant to

Exemption 4.

As an initial matter, GAP appears to argue that the withheld information is not

commercial. See Pl.'s Cross-Mot. 14-15 (stating that "the Foundation's operations have

no logical connection to making a profit" and that "the Foundation is not engaged in any

endeavor which could even conceivably connect to a commercial interest"). Our Circuit

has found that "the terms 'commercial' and 'financial' in the exemption should be given

their ordinary meanings" and that the commercial information provision is not confined to

only those records that reveal "basic commercial operations." Pub. Citizen Health

Research Group v. Food & Drug Admin., 704 F.2d 1280, 1290 (D.C. Cir. 1983). The

documents at issue here clearly fall within the ordinary meaning of "commercial." One

document was a report from U.S. Embassy Jordan on a discussion with FF officials about

establishing a presence in the North Africa-Gulf region, including soliciting proposals

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and making grants. 2 See Houser-Jackson Decl. ,-r 123. The other three documents were

reports prepared by NEAIPI on FF meetings concerning staffing, remuneration,

recruiting, and prospective grant projects. See id. Based on these descriptions, I am fully

satisfied that the defendant has demonstrated FF's commercial interest in the information

withheld under Exemption 4.

GAP primarily challenges whether the withheld documents were properly

considered confidential. Our Circuit has set forth a two-part test for determining

confidentiality:

[C]ommercial or financial matter is 'confidential' for purposes of the
exemption if disclosure of the information is likely to have either of the
following effects: (1) to impair the Government's ability to obtain necessary
information in the future; or (2) to cause substantial harm to the competitive
position of the person from whom the information was obtained.

Nat 'I Parks & Conservation Ass 'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)

(footnote omitted). This test was later reaffirmed for situations when the information

disclosed is "required" by the government. Critical Mass Energy Project v. Nuclear

Regulatory Comm 'n, 975 F.2d 871,872 (D.C. Cir. 1992) (en banc). However, "where, as

here, the information sought is given to the Government voluntarily, it will be treated as

2 This document, N104, also contained email addresses ofFF contacts, some of
whom are private citizens. That information was withheld under Exemption 6, discussed
infra. Houser-Jackson Decl. ,-r 123. Upon further review, the State Department
determined that five of those email addresses were public and released them. Lauderdale
Decl. ,-r 8. The defendant continues to withhold two email addresses that appear to be
personal. Id.

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confidential under Exemption 4 if it is of a kind that the provider would not customarily

make available to the public." Id. This test provides a "categorical" rule to protect the

Government's "continuing ability to secure such data on a cooperative basis" and avoid

"injur[ing] the provider's interest in preventing its unauthorized release." Id. at 879.

Here, the State Department has shown that the information withheld under

Exemption 4 was submitted voluntarily and "was provided with the expectation of

confidentiality." Lauderdale Decl. ~ 5. In addition, the defendant has demonstrated that

releasing the withheld information "would harm the competitive position of the FF vis-a-

vis other foundations working in the same region and competing for similar, high-quality

projects." Houser-Jackson Decl. ~ 123. This information concerning FF's internal

deliberations is certainly not the type that would '''customarily' be made public." Id.

~ 32; see also id. ~ 123 ("The representatives no doubt believed that the conversation with

U.S. Embassy staff would be treated as privileged.... The FF would not customarily

make public their internal deliberations."). Accordingly, the Court concludes that the

undisclosed information was properly considered confidential and thus appropriately

withheld pursuant to Exemption 4.

3. Exemption 5

Exemption 5 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." 5 U.S.C. § 552(b)(5). For a document to qualify

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for this exemption, "it must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it." Dep't of

the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1,8 (2001). Courts have

incorporated civil discovery privileges into this exemption, such as attorney work

product, attorney-client privilege, and what is called the "deliberative process" privilege.

See Nat 'I Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975);

Coastal States Gas Corp. v. Dep 't of Energy, 617 F .2d 854, 862 (D.C. Cir. 1980).

The threshold issue under Exemption 5 is whether the withheld documents qualify

as "inter-agency or intra-agency" memoranda. In addition to documents prepared within

a government agency, the Supreme Court has implicitly recognized a consultant corollary

that extends Exemption 5 to cover "records submitted by outside consultants" to

government agencies when those consultants "played essentially the same part in an

agency's process of deliberation as documents prepared by agency personnel might have

done." Klamath, 532 U.S. at 10; see also Nat 'I Inst. of Military Justice v. Us. Dep 't of

Defense, 512 F.3d 677,681 (D.C. Cir. 2008) ("[D]ocuments such as the ones

here-submitted by non-agency parties in response to an agency's request for advice-are

covered by Exemption 5."); Citizensfor Responsibility & Ethics in Wash. v. Us. Dep't of

Homeland Sec., 514 F. Supp. 2d 36, 44 (D.D.C. 2007) ("[W]hen an agency solicits

opinions from and recommendations by temporary, outside consultants, those materials

are considered 'intra-agency' for FOIA purposes."). Here, GAP argues that two

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documents, N5A and N33, are not "intra-agency" because they were created by a private

entity, the Eurasia Foundation, for another private entity, the FF, and not for the purpose

of aiding the State Department's deliberative process. See PI.'s Cross-Mot. 23-24; PI.'s

Reply 10-13. What plaintiff fails to recognize, however, is the clear consulting

relationship between the Eurasia Foundation and the State Department:

In addition to providing funding to the FF, the Department of State contracted
with the Eurasia Foundation (a non-profit organization supported by the U.S.
Agency for International Development and public and private donors) to
provide start-up support for the FF. During 2006 and 2007, the Eurasia
Foundation (EF) was responsible for providing logistical support for FF
meetings, drafting a business plan, bylaws and rules of procedure, drafting
budgets and assisting with selection [of] the management team. The Office of
Middle East Partnership Initiative in the Bureau of Near Eastern Affairs
(NEAIPI) actively managed State Department's relationship with the Eurasia
Foundation, attended early Foundation for the Future meetings and consulted
closely with FF staff and management during the start up phase.

Houser-Jackson Decl. ,-r 22; see also id. ,-r 34 ("The withheld information includes pre-

decisional discussions among U.S. government employees as well as advice and

recommendations provided by officials of the Eurasia Foundation which was, at the time

the information was exchanged, under contract to the government for the purpose of

assisting in the organization and launching of the Foundation for the Future."). From this

description, it is obvious that the Eurasia Foundation acted as a consultant to the State

Department, and not in any adversarial capacity that would negate the consulting

relationship, and thus that the materials in question are appropriately considered "intra-

agency" for FOIA purposes. See Citizens/or Responsibility, 514 F. Supp. 2d at 44. As a

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result, the only question that remains for the documents withheld under Exemption 5 is

whether they fall within the civil discovery privileges incorporated into this exemption.

In this case, the defendant asserts both the deliberative process privilege and the attorney-

client privilege.

The deliberative process privilege exempts from FOIA disclosure those documents

that contain deliberations comprising part of a process by which governmental decisions

and policies are made. See Klamath, 532 U.S. at 8. Advice, recommendations, and

opinions that are part of the decision-making process are protected from disclosure as

long as they are "predecisional." See Sears, 421 U.S. at 151-53. The purpose of the

deliberative process privilege is to protect the decision-making process of government

agencies and to encourage '''the frank discussion oflegal and policy issues' by ensuring

that agencies are not 'forced to operate in a fishbowl. '" Mapother v. Dep 't ofJustice, 3

F.3d 1533,1537 (D.C. Cir. 1993) (quoting Wolfe v. Dep't of Health & Human Servs., 839

F.2d 768, 773 (D.C. Cir. 1988) (en banc)).

In this case, the final decisions as to which the deliberative process applies

involved the organization and launching of the FF. See Houser-Jackson Decl. ~ 34. The

information withheld included the individuals being considered for the FF' s board, 3 draft

The names and information of these individuals was also withheld pursuant to
Exemption 6, discussed infra. Houser-Jackson Decl. ~~ 124-165. Upon further review,
the State Department released the curriculum vitae of the successful applicants with
redactions made for purely personal information. Lauderdale Decl. ~ 7.

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manuals of policies and procedures, and email exchanges concerning how the FF might

function. See id. ~~ 124-165,166-174. It is apparent that these documents are pre-

decisional. Furthermore, the descriptions of these documents indicate that they contain

advice and recommendations that were an integral part of identifiable decisional

processes and were deliberative in nature. See, e.g., id. ~ 174 (describing N 5A as a draft

manual of policies and procedures for the FF's staff); id. (describing N128A as an email

exchange concerning possible language changes to the draft Memorandum of

Understanding between the State Department and the FF). Plaintiffs argument that the

defendant failed to produce a specific decision for any of the documents is unconvincing

in light of the specific decisions clearly at issue for each of the challenged documents. In

addition, I agree with defendant's assertion that disclosure of this information is likely to

interfere with the candor necessary for open and frank discussions on the defendant's

preferred course of action regarding the FF. See Coastal States, 617 F .2d at 866.

Accordingly, I uphold the defendant's classification of these documents as subject to the

deliberative process privilege and therefore exempt from disclosure under Exemption 5.

Because all of the information withheld pursuant to the attorney-client privilege was also

withheld pursuant to the deliberative process privilege, I do not need to consider the

propriety of the defendant's application of the attorney-client privilege. See Lauderdale

Decl. ~ 6.

4. Exemption 6

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 The final FOIA exemption relied on by the State Department is Exemption 6,

which provides for the withholding of "personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

5 U.S.C. § 552(b)(6). The terms "similar files" is construed broadly and is '''intended to

cover detailed Government records on an individual which can be identified as applying

to that individual. '" us. Dep 't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)

(quoting H.R. Rep. No. 89-1497 at 11 (1966)); see also Lepelletier v. Fed. Deposit Ins.

Corp., 164 F.3d 37, 47 (D.C. Cir. 1999) ("The Supreme Court has interpreted the phrase

'similar files' to include all information that applies to a particular individual."). In this

case, the State Department withheld the personal email addresses of several individuals,

the names and curriculum vitae of individuals who were considered for the FF board but

were ultimately not selected, and any purely personal information contained in the

curriculum vitae of the successful applicants for the board. See Houser-Jackson Decl.

~~ 123, 165, 177; Lauderdale Decl. ~~ 7-9. Because those email addresses can be

identified as applying to particular individuals, they qualify as "similar files" under

Exemption 6, see Wash. Post Co., 456 U.S. at 602, and, like the remaining documents

described above and found to be properly withheld under Exemption 5, can be withheld

as well. How so?

Exemption 6 requires "a balancing of the individual's right of privacy against the

preservation of the basic purpose of the Freedom of Information Act to open agency

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action to the light of public scrutiny." Dep 't of the Air Force v. Rose, 425 U.S. 352, 372

(1976) (internal quotations marks and citation omitted). "In making that balance,

agencies and reviewing courts consider whether disclosure of the requested information

would result in an invasion of privacy, and if so, the extent and seriousness of that

invasion, as well as the extent to which disclosure would serve the public interest." Us.

Dep't of De! Dep 't of Military Affairs v. Fed. Labor Relations Auth., 964 F .2d 26, 29

(D.C. Cir. 1992). "[T]he only relevant public interest in the FOIA balancing analysis [is]

the extent to which disclosure of the information sought would 'she[d] light on an

agency's performance of its statutory duties' or otherwise let citizens know 'what their

government is up to.'" Lepelletier, 164 F.3d at 47 (quoting Us. Dep't of De! v. Fed.

Labor Relations Auth., 510 U.S. 487, 497 (1994» (alterations in original). Here, the

private individuals mentioned in these records have a clear privacy interest in avoiding

the disclosure of their personal email addresses. See Lauderdale Decl. ~~ 8-9.

Furthermore, releasing their email addresses serves no public interest because these email

addresses would not reveal "what the government is up to." To the contrary, release of

the excised addresses would constitute a clearly unwarranted invasion of privacy. Thus,

the State Department properly withheld this information under Exemption 6.

CONCLUSION

For all of the foregoing reasons, the Court GRANTS the defendant's motion for

summary judgment and DENIES the plaintiffs cross-motion for summary judgment. The

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Court also DISMISSES the action in its entirety. An order consistent with this decision

accompanies this Memorandum Opinion.

~
RICHARD~
United States District Judge

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