Risenhoover v. Dep't of State, No. 19-715, 2020 WL 3128947 (D.D.C. June 12, 2020) (Howell, J.)

Risenhoover v. Dep't of State, No. 19-715, 2020 WL 3128947 (D.D.C. June 12, 2020) (Howell, J.)

Re:  Request for records concerning directive

Disposition:  Granting defendants' motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The court relates that "plaintiff challenges [defendant's] declarant['s] competency to testify about information he obtained from other individuals."  The court holds that "[t]his challenge is misguided."  The court relates that "[defendant's declarant] attests that (1) he is 'the Department official immediately responsible for responding to [FOIA] requests[,]' (2) he is 'in charge of coordinating the agency's search and recovery efforts with respect' to such requests, and (3) his statements are 'based upon [his] personal knowledge' gained 'in the course of [his] official duties.'"
   
• Exemption 1:  The court holds that "defendants are entitled to summary judgment on withholding . . . five cables under FOIA Exemption 1."  The court relates that "State withheld a total of five Department cables 'pursuant to E.O. 13526 sections 1.4(b) and[/or] 1.4(d).'"  "Section 1.4(b) pertains to 'foreign government information' and [S]ection 1.4(d) pertains to 'foreign relations or foreign activities of the United States, including confidential sources.'"  "State confirms that Taiwan is considered a foreign government for purposes of E.O. 13526."  The court finds that "State's declarant has 'original classification authority' and is 'authorized to classify and declassify national security information.'"  "He confirms that (1) each withheld document was 'classified at the time of [ ] creation at the Secret level' with a 'declassification date' in 2032; (2) the information in the documents 'continues to meet the classification criteria of E.O. 13526,' and (3) the information has not been 'previously authorized or officially acknowledged' for 'public release.'"  The court holds that "[i]n all but the March 19, 2007 cable, State withheld 'written statements provided to the United States by Taiwan, through AIT, in confidence, as well as detailed descriptions of statements made by President Chen during confidential discussions,' . . . which qualify as foreign government information under Section 1.4(b)."  "The information comprising all of the cables, including the March 19, 2007 cable, also was classified under Section 1.4(d) because it 'concern[s] sensitive aspects of U.S. foreign relations[.]'"  "State's declarant has reasonably explained why confidentiality is 'a vital aspect of successful foreign relations' and the potentially chilling effect on foreign relations if expectations of confidentially are unmet."  The court holds that "State has properly invoked Exemption 1 and 'determined that no segregation of meaningful information could be made without disclosing information warranting protection under the law.'"
   
• Procedural Requirements, Searching for Responsive Records & Litigation Considerations, Adequacy of Search:  The court holds that "State is entitled to summary judgment on the search question."  The court notes "[t]hat [the State Archiving System ("SAS")] is the record system most likely to house responsive records is not in genuine dispute, and reasonably so."  "Plaintiff apparently questions whether the SAS should have contained documents from other offices, including the White House and the Executive Office of the President."  The court holds that "Plaintiff's suggestions, to the extent intelligible, misapprehend FOIA, which obligates an agency to disclose only those records it possesses and controls at the time of the FOIA request."  "State was not obliged, as plaintiff seems to suggest, to seek out records created by and/or maintained at the White House or any other non-departmental office."  Additionally, regarding plaintiff's search term argument, the court holds that "State revised [its] search terms to encompass plaintiff's suggestions, 'conducted an additional full-text search of SAS,' and located three additional classified cables."  "State's discovery of additional cables does not call into question the adequacy of the search since even 'a reasonable and thorough search' could 'miss[ ]' responsive documents."
   
• Litigation Considerations & Procedural Requirements, Entities Subject to the FOIA:  The court holds that "the claims against [the Executive Office of the President ("EOP")] and [the National Security Council ("NSC")] are appropriately dismissed for failure to state a claim."  The court finds that "Plaintiff does not dispute in any cogent manner defendants' argument that no claim has been stated against either [EOP] or [NSC]."  "The Court agrees for the simple reason that the complaint is based on neither a FOIA request directly to EOP or NSC nor a referral of records to either entity."  "As for the NSC, moreover, the law in this Circuit is clear that the NSC is not an 'agency' for purposes of the FOIA."