Citizens United v. U.S. Dep't of State, No. 18-1862, 2020 WL 2542006 (D.D.C. May 19, 2020) (Moss, J.)

Citizens United v. U.S. Dep't of State, No. 18-1862, 2020 WL 2542006 (D.D.C. May 19, 2020) (Moss, J.)

Re:  Request for records concerning October 2016 meeting between officials and Christopher Steele

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 3:  "[T]he Court concludes that the Department lawfully withheld Document 7 under Exemption 3."  The court relates that "[h]ere, the Department invokes the National Security Act of 1947, § 102A(i), as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 . . . ."  "The National Security Act requires the Director of National Intelligence . . . to protect 'intelligence sources and methods' from 'unauthorized disclosure,' . . . and authorizes the DNI to promulgate guidelines for the intelligence community regarding '[a]ccess to and dissemination of intelligence, both in final form and in the form when initially gathered' . . . ."  The court finds that "[defendant's] declaration easily clears the hurdle for invoking Exemption 3 and the National Security Act."  "[Defendant] attests the Document 7 is a five page memorandum prepared by a third party; that it was not prepared by Christopher Steele; that it relates to a 'technical subject' of potential law enforcement interest to the FBI's investigation of Russian interference in the 2016 Presidential election; that disclosure could reveal intelligence sources and methods; and that such a disclosure would be used by adversaries of the United States – including foreign states – to avoid FBI detection."  "The [defendant's] declaration goes as far as the Court might reasonably demand, short of requiring disclosure of the protected information itself."  The court relates that plaintiff's "contention seems to be that 'open-source media' or a report that uses 'open-source media' cannot be an 'intelligence source or method' as that term is used in the National Security Act."  "But, even assuming (without deciding) that [plaintiff's] factual premise is correct, its argument misunderstands the governing law."  "Even if the Court credits [plaintiff's] assertion about the document's contents, the record still '"relates" to intelligence sources [or] methods,' . . . and thus falls squarely within the broad sweep of the statutory protection."
  
  Additionally, the court relates that "[a]s explained in [defendant's] declaration, the Exemption 3 redactions were made to ["the email that Document 7 was attached to"] for the same reasons that Document 7 was withheld."  The court finds that "[t]hose reasons were sufficient to justify the Department's decision to withhold Document 7, and they are sufficient to justify its decision to redact the Exemption 3 material from Document 6."
   
• Exemption 1:  "[T]he Court concludes that the Department has carried its burden of demonstrating that the classified information contained in Document 3 was properly redacted pursuant to Exemption 1."  The court relates that "[t]he Department released this document in part but has redacted 'the email subject headings and the body of each email' under FOIA Exemption 1."  "Turning to the four requirements set out in the Executive Order, [plaintiff] does not dispute that the Document 3 satisfies the first two conditions, and it instead focuses on the third and fourth criteria."  Regarding the third requirement, the court relates that "[plaintiff] assumes . . . that the referenced foreign national is Steele, that the referenced foreign country is Russia, and that the redacted information concerns Carter Page and President Trump."  However, the court finds that "[a] FOIA requester's speculation 'that withheld documents might cover "innocuous, historical,"' or otherwise non-sensitive information 'is insufficient to undermine' a declaration offered by a knowledgeable agency official that the information is properly classified."  Regarding the fourth requirement, the court finds that "[t]he Department is entitled to substantial deference in its explanation about how disclosure could reasonably be expected to harm national security."  The court finds that plaintiff's argument "once again, assumes without basis that Document 3 contains information that the Department had obtained from Steele" and "assumes [that] the information has already been made public in Special Counsel Robert Mueller III's report."  The court finds that "[plaintiff's] argument is, once again, premised on unsupported speculation about the substance of classified material, and that speculation is at odds with relatively detailed agency declarations."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court relates that "the Department claims that it properly redacted ["'a two-page typed set of notes'"] pursuant to Exemptions 1, 3, and 7(E)."  "But aside from describing the documents and the FOIA exemptions it relied on in making its redactions, the Department offers no explanation or justification for its decisions."  The court finds that "[a]s a result, the Court lacks 'an adequate foundation to review[ ] the soundness' of the redactions."
   
• Litigation Considerations:  Regarding plaintiff's allegation of bad faith because defendant "disput[ed] many of its assertions," the court finds that "mere differences in opinion, without more, do not amount to bad faith."  Also, "[t]o the extent [plaintiff] [argues] that the Court should presume the Department, or the FBI, acted in bad faith because the requested documents relate to what [plaintiff] characterizes as 'one of the greatest political scandals in U.S. history,' . . . that argument also fails."  "The Court need not engage on the substance of [plaintiff's] contention because it is unrelated to the only question relevant here – that is, whether there [is] any reason to believe that the declarations proffered by the Department and the FBI are untruthful or that the Department acted in bad faith in addressing [plaintiff's] request."  "[Plaintiff] identifies no evidence of bad faith with respect to that question."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court is satisfied that the Department has complied with its segregability obligations for Documents 3 and 6."  "As to those records, [defendant] attests that the Department reviewed the records and determined that 'no additional meaningful, non-exempt information in them can be reasonably segregated and released.'"  "The more difficult question is whether the Department properly determined that it could not release any meaningful portion of Document 7."  "The Court's hesitancy about this explanation stems from the fact that [defendant's statement on segregability] is relatively generic, does little to explain specifically why no meaningful, non-exempt information in Document 7 could not be segregated and released, and appears to turn on the assessment that any non-exempt material 'would have minimal or no informational content.'"  "Although a close question, the Court concludes that the Department has yet to carry its burden for three reasons."  "First, [defendant's] declaration lacks detail and is relatively conclusory."  "Second, the declaration leaves the reader to wonder what [defendant] means by 'minimal . . . informational content' and whether that information might, nonetheless, bear on the workings of the government."  "Third, although an isolated word or phrase might (or might not) be of little value, the declaration seems to acknowledge that entire 'sentences' might be segregable."