Supreme Court of the
Sibel
Edmonds,
Petitioner
v.
Department of
Justice, et al.
Respondent.
No. 05-190.
2005
74 U.S.L.W. 3321
Before Roberts C.J., and Stevens,
O'Connor, Scalia, Kennedy, Souter,
Thomas, Ginsburg, Breyer,
JJ.
Petition for writ of certiorari to the United States Court
of Appeals for the District of Columbia Circuit denied.
for the
Sibel Edmonds,
Appellant
v.
Department of Justice, et al.,
Appellees
No. 04-5286
2005
Decision without published opinion
Appeal from the United States District Court for the
GINSBURG, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.
JUDGMENT
This cause was considered on the record from the United States District Court and on the briefs and arguments of the parties. It is
ORDERED AND ADJUDGED that the order of the district court dismissing Edmonds’ claims is hereby affirmed for the reasons given in that court’s opinion, 323 F. Supp. 2d 65 (D.D.C. 2004).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
UNITED STATES DISTRICT COURT
FOR THE
Sibel Edmonds,
Appellant
Plaintiff,
v.
United States Department of Justice, et al.,
Defendants.
Civil Action No. 02-1448 (RBW)
323 F. Supp. 2d 65
2004
21 IER Cases (BNA) 1037
Affirmed by
Prior decision.
REGGIE B. WALTON
United States District Judge.
[*67]
Following the terrorist attacks
against our nation on
I.
Factual Background
Although much of the information
concerning the plaintiff’s employment history with the FBI is classified and
therefore will not be referenced in this opinion, n3 the plaintiff contends
that between December 2001 and March 2002, while employed by the FBI, she
reported a number of alleged acts of misconduct to the FBI. n4 Compl. [*69] P
15. On
Following the termination of her
employment with the FBI, many of the events that now serve as the predicate to
the plaintiff’s claims in this lawsuit occurred. On May 8, 2002, the plaintiff
states that her attorney sent a letter to both Attorney General John Ashcroft
and FBI Director Robert S. Mueller indicating that “as a direct result of the
FBI’s failure to address or correct the serious misconduct and security
breaches that were reported by Plaintiff, the safety and security of Plaintiff
and her family has been jeopardized and that a foreign country has targeted
Plaintiff’s sister to be interrogated ‘and taken/arrested by force.’“
The plaintiff
commenced the instant lawsuit on
II. Legal
Analysis
The state secrets privilege is a
common law evidentiary rule that permits the
The origins of
the state secrets privilege can be traced back to the treason trial of Aaron
Burr in United States v. Burr, 25 F. Cas. 30, F. Cas. No. 14692d
(C.C.D. Va. 1807) (No. 14,692D). See In re
improper to call upon the president to produce the letter of Gen. Wilkinson, because it was a private letter, and probably contained confidential communications, which the president ought not and could not be compelled to disclose. It might contain state secrets, which could not be divulged without endangering the national safety. [*71]
In 1875, the Supreme Court had the occasion to address the state secrets privilege in the case of Totten v. United States, 92 U.S. 105, 23 L. Ed. 605 (1875). In Totten, a lawsuit was
brought to recover compensation for services alleged to have been rendered by . . . William A. Lloyd, under a contract with President Lincoln, made in July 1861, by which he was to proceed South and ascertain the number of troops stationed at different points in the insurrectionary States, procure plans of forts and fortifications, and gain such other information as might be beneficial to the government of the United States, and report the facts to the President; for which services he was to be paid $200 a month.
It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting
which it will not allow the
confidence to be violated. On this principle, suits cannot be maintained which
would require a disclosure of the confidences of the confessional, or those
between husband and wife, or of communications by a client to his counsel for
professional advice, or of a patient to his physician for a similar purpose.
Much greater reason exists for the application of the principle to cases of
contract for secret services with the government, as the existence of a
contract of that kind is itself a fact not to be disclosed.
Although these
early cases recognized the existence of the state secrets privilege, it was not
until after World War II that this doctrine’s “lineaments [were brought] into
reasonably sharp focus.” Ellsberg, 709
F.2d at 56. In the seminal case of United States v. Reynolds, 345 U.S.
1, 97 L. Ed. 727, 73 S. Ct. 528 (1953), a lawsuit was brought against the
United States for the wrongful death of three civilians who were aboard a B-29
military airplane that crashed in Georgia.
judicial experience with the privilege which protects military and state secrets has been limited in this country. English experience has been more extensive, but still relatively slight compared with other evidentiary privileges. Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
court must be satisfied from all the evidence and circumstances, and from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. If the court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure.
that the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail.
With the Reynolds
case establishing the contours of the invocation of the state secrets
privilege, those cases that have followed have attempted to sharpen the focus
of the scope of judicial inquiry into this privilege. The District of Columbia Circuit has stated
that “to some degree at least, the validity of the government’s assertion must
be judicially assessed.” Molerio v. FBI, 242
(A) Has the Government Properly Invoked the State
Secrets Privilege?
(1) Personal Consideration Requirement
At the outset,
this Court must address the plaintiff’s contention that the defendants have not
properly invoked the state secrets privilege in this case. Opposition to
Defendants’ Motion to Dismiss (“Pl.’s Opp’n”) at
8-11. The plaintiff asserts that “the Attorney General does not explicitly
state in his declaration that he has reviewed any documents other than a
classified declaration prepared by a lower-ranking official, Bruce Gebhardt, the Deputy Director of the FBI.”
To formally
invoke the state secrets privilege, there must be: (1) a “formal claim of
privilege,” (2) “lodged by the head of the department which has control over
the matter,” (3) “after actual personal consideration by that officer.”
Reynolds, 345
purpose in submitting [the]
Declaration is to assert, at the request of the Director of the Federal Bureau
of Investigation, and in my capacity as Attorney General and head of the
Department of Justice a formal claim of the state secrets privilege in order to
protect the foreign policy and national security interests of the
Ashcroft Decl. P 2. The Attorney General explained that his
“statements in this declaration are based on [his] personal knowledge, on
information provided to [him] in [his] official capacity, and on [his]
evaluation of that information.”
The Court finds that the
Attorney General has complied with the necessary prerequisites for the formal
invocation of the state secrets privilege. It is undisputed that the
Declaration of Attorney General Ashcroft constitutes a “formal claim of
privilege” that has been asserted by the Attorney General in his capacity as
head of the Department of Justice, which is the agency in control over the
matter at issue. Relying principally upon the case of Yang v.
As noted above,
the Attorney General states in his Declaration invoking the state secrets
privilege that his statements “are based on [his] personal knowledge, on
information provided to [him] in [his] official capacity, and on [his]
evaluation of that information.” Ashcroft Decl.
P 2. And he further notes, “in personally
considering this matter, I have also considered a classified declaration by
Bruce J. Gebhardt, the Deputy Director of the Federal
Bureau of Investigation . . . .”
I understand that this lawsuit was filed by Sibel Edmonds, a former contract linguist with the FBI, and alleges violations of the Privacy Act, the First and Fifth Amendments of the United States Constitution, and the Administrative Procedures Act. I have been informed generally of the nature of plaintiff’s claims in this case.
Based on my personal consideration of the matter, I
have concluded that further disclosure of the information underlying this case,
including the nature of the duties of plaintiff or the other contract
translators at issue in this case reasonably could be expected to cause serious
damage to the national security interests of the
In Yang, the Court concluded that the personal consideration requirement of Reynolds was lacking since “Mr. Itoh did not appear to have reviewed the specific content of the material for which privilege [was] sought.” 157 F.R.D. at 634. In this case, the Attorney General was informed [*75] of the plaintiff’s claims and personally considered not only the nature of her claims, n5 but also information provided in a classified declaration prepared by the Deputy Director of the FBI that details the damage to both foreign policy and national security that would result from the disclosure of information related to the plaintiff’s employment with the FBI. The Attorney General’s Declaration is similar to one submitted to the court in Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998). In that case, the Secretary of the Air Force stated:
This Declaration is made for the purpose of advising the court of the national security interests in and the security classification of information that may be relevant to the above captioned lawsuits. The statements made herein are based on (a) my personal consideration of the matter; (b) my personal knowledge; and (c) my evaluation of information made available to me in my official capacity.
(2) Specificity Requirement
Aside from claiming that the Attorney General’s Declaration fails to satisfy the personal consideration requirement of Reynolds, the plaintiff also asserts that the Declaration fails to satisfy Reynolds’ specificity requirements so as to allow meaningful judicial review. Pl.’s Opp’n at 11-16. This challenge presents a more difficult question as the Attorney General’s unclassified Declaration does not specify in any detail the harm that might occur to national security should this information be disclosed. The Attorney General’s Declaration simply states:
Based on my personal consideration of the matter, I have concluded that further disclosure of the information underlying this case, including the nature of the duties of plaintiff or the other contract translators at issue in this case reasonably could be expected to cause serious damage to the national security [*76] interests of the United States. Any further elaboration concerning this matter on the public record would reveal information that could cause the very harms my assertion of the state secrets privilege is intended to prevent.
Ashcroft Decl.
P 5. In Linder v. Department of Defense, 328
some form of detailed public explanation of ‘the kinds of injury to national security [they] seek to avoid and the reason those harms would result from revelation of the requested information,’ or indicated ‘why such an explanation would itself endanger national security.’ Or, if necessary, the court would have had to examine the privileged materials in camera to satisfy itself that invocation of the privilege was proper.
in situations in which close examination of the government’s assertions is warranted, the trial judge should insist (1) that the formal claim of privilege be made on the public record and (2) that the government either (a) publicly explain in detail the kinds of injury to national security it seeks to avoid and the reason those harms would result from revelation of the requested information or (b) indicate why such an explanation would itself endanger national security. We wish to make clear the limitations of our ruling: The government’s public statement need be no more (and no less) specific than is practicable under the circumstances.
709 F.2d at 63-64 (footnote
omitted). Here, the Attorney General represented that his “classified
declaration, along with the classified Gebhardt
Declaration, [were] . . . available . . . for in camera, ex parte review to
provide a more detailed explanation of the information at issue and the harms
to national security that would result from its disclosure.” Ashcroft
Decl. P 5. Thus, this situation called for the
Court “to examine the privileged materials in camera to satisfy itself that invocation of the privilege was proper.” Linder,
133 F.3d at 23. This Court therefore reviewed several
classified declarations, including the declarations of Attorney General
Ashcroft and FBI Deputy Director Gebhardt, which
specifically detail the “reasonable danger” that revelation of classified
information would have on both “intelligence-gathering
methods or capabilities, and disruption of diplomatic relations with
foreign governments.” Ellsberg, 709
F.2d at 57. After undertaking this review, the Court is satisfied that
the classified declarations contain a sufficient degree of specificity to
establish that the invocation of the state secrets privilege is proper.
However, this Court is “unable publicly to explain [its] conclusion in any more
detail. It is one of the unfortunate features of this area of the law that open
discussion of how the general principles apply to particular facts is
impossible.”
That privileged
information has already been released to the press or provided in briefings to
Congress does not alter the Court’s conclusion. In Fitzgibbon v. CIA, 286 U.S.
App. D.C. 13, 911 F.2d 755 (D.C. Cir. 1990), the District of Columbia Circuit
stated that “the fact that information
resides in the public domain does not eliminate the possibility that further
disclosures can cause harm to intelligence sources, methods, and operations.”
[*77]Id. at 766. In the plaintiff’s FOIA case, the
court addressed the same contention raised by the plaintiff in her efforts to
gain the release of documents protected by the government’s invocation of the
national security exemption from the FOIA’s mandatory
disclosure rules.
a comparison of the information contained in the documents withheld . . . with the quoted statements in the media which have been attributed to the government, the information that is being withheld is not identical to the information in the public domain. Rather, the withheld information is far more detailed and its release could provide a composite picture, or at least additional information, that would be harmful to national security. Moreover, since the statements in the press were made by anonymous sources, even documents containing identical information may properly be withheld because ‘release would amount to official confirmation or acknowledgment of their accuracy.’
Id. at 49 (quoting Washington Post v. United States DOD,
766 F. Supp. 1, 9 (D.D.C. 1991) (Judge Huvelle noted
that Washington Post stands for the proposition that “information in the public domain may be
withheld where withheld information is more detailed and release of that
information poses a threat to national security; even if the information is
exactly the same, it may be withheld if revealing the context in which the
information is discussed would itself disclose additional information that
would be harmful to national security; or if release of the withheld
information would amount to official confirmation or acknowledgment of its
accuracy”)). The court went on to note that “the fact that the FBI provided
information to members of Congress regarding plaintiff’s whistleblower
allegations does not deprive defendant of the right to classify the information
. . ., for disclosure of information to a congressional committee does not
constitute a waiver.”
(B) If the Government has Properly
Invoked the State Secrets Privilege, Should this Case be Dismissed?
Once the
government has properly invoked the state secrets privilege, the inquiry shifts
to the application of the privilege to the case at hand. As this
Court stated above, it must “uphold the
privilege if the government shows that ‘the information poses a reasonable
danger to secrets of state.’“ In re
it requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management [*78] of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate.
It is generally understood that “the application of the state secrets privilege can . . . have three effects.” Doe v. Tenet, 329 F.3d 1135, 1149 (9th Cir. 2003) (quoting Kasza, 133 F.3d at 1166). As the Ninth Circuit explained:
First, by invoking the privilege over particular evidence, the evidence is completely removed from the case. The plaintiff’s case then goes forward based on evidence not covered by the privilege. If, after further proceedings, the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case.
Alternatively, if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim, then the court may grant summary judgment to the defendant.
Finally, notwithstanding the plaintiff’s ability to produce nonprivileged evidence, if the very subject matter of the action is a state secret, then the court should dismiss the plaintiff’s action based solely on the invocation of the state secrets privilege. While dismissal of an action based on the state secrets privilege is harsh, the results are harsh in either direction and the state secrets doctrine finds the greater public good -- ultimately the less harsh remedy -- to be dismissal.
Kasza, 133 F.3d at 1166-67 (internal
quotation marks and citations omitted); see Zuckerbraun
v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991) (“In some cases, the
effect of the invocation of the privilege may be so drastic as to require
dismissal. Thus, if proper assertion of the privilege precludes access to
evidence necessary for the plaintiff to state a prima facie claim, dismissal is
appropriate. Similarly, it has been held that if the court determines that the
privilege so hampers the defendant in establishing a valid defense that the
trier is likely to reach an erroneous conclusion, then dismissal is also
proper.”) (citations omitted); In re
In undertaking
its role to “critically . . . examine instances of [the] invocation” of the
state secrets privilege in this case, the Court is mindful that “the privilege may not be used to shield any
material not strictly necessary to prevent injury to national security; and,
whenever possible, sensitive information must be disentangled from nonsensitive
information to allow for the release of the latter.” Ellsberg, 709 F.2d at 57 (footnote
omitted). For this reason, following the Court’s initial review of the
classified declarations submitted by the government, the Court issued an Order
on June 3, 2004, requiring the government to specifically detail why it is not
possible to disentangle sensitive information from nonsensitive information to
permit the plaintiff’s claims to go forward and [*79] for the government to
defend against these claims.
(1)
Plaintiff’s First Amendment Claim
The plaintiff’s complaint
states that she “engaged in activity protected by the First Amendment to the
U.S. Constitution by reporting serious problems within the FBI translator
program which has a direct and significant bearing on matters of widespread
public concern.” Compl. P 51. The plaintiff asserts that
she was terminated from the FBI for engaging in this protected activity.
While the
speech of public employees “enjoys considerable First Amendment protection[,]” to assert a viable First Amendment claim, the
plaintiff would have to satisfy a four- prong test. O’Donnell
v. Barry, 331
First, the public employee must have been speaking on a matter of public concern. If the speech is not of public concern, it is unnecessary to scrutinize the basis for the adverse action absent the most unusual circumstances. Second, the court must consider whether the governmental interest in promoting the efficiency of the pubic services it performs through its employees without disruption, outweighs the employee’s interest, as a citizen, in commenting upon matters of public concern, and the interest of potential audiences in hearing what the employee has to say[.] Third, the employee mush show that her speech was a substantial or motivating factor in prompting the retaliatory or punitive act of which she complains. And finally, the employer should have an opportunity to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.
(2)
Plaintiff’s Fifth Amendment Claim
The plaintiff
also asserts that the “defendants have violated plaintiff’s right to procedural
due process and her due process liberty interest pursuant to [*80] the Fifth
Amendment to the U.S. Constitution as a result of defendants’ termination of
plaintiff’s employment and defendants’ interference with plaintiff’s
opportunity to obtain future employment in her chosen career.” Compl. P 63. The plaintiff alleges that the defendants accomplished
this by “intentionally and willfully releasing derogatory and confidential
information about plaintiff and making defamatory statements about plaintiff in
addition to discharging her from her duties in violation of [her] right to due
process.”
It is well understood that a
non-tenured government employee n6 does not have a property interest in her
job.
(3)
Plaintiff’s Privacy Act Claims
Finally, with
respect to the plaintiff’s Privacy Act claims, the Court also finds that the
plaintiff is unable to establish these claims, nor
will the defendants be able to rebut her allegations without the disclosure of
privileged information. The heart of the plaintiff’s Privacy Act claims is that
“defendants DOJ and FBI, through their officers, employees, agents, and
representatives, commenced intentionally and/or willfully disclosing and
releasing to unauthorized persons the contents of records maintained by
defendants in one or more systems of records pertaining to plaintiff’s”
employment, termination and security review. Compl. P
37. The government asserts that the “plaintiff’s Privacy Act claims
would implicate the central issues that consume the whole of this litigation -
the duties of plaintiff and her co-workers, the plaintiff’s underlying
allegations, and the facts, documents, and evidence in connection therewith.” Def.’s Mem. at
15. In order to litigate plaintiff’s
Privacy Act claims, the government points out that “it would be necessary to
probe the content of what may be contained in a [*81] system of records and who
had access to it, and for an accuracy claim, the substantive content of
information in a system of records would be directly at issue.” Id. Aside from
the disclosure of these privileged documents that comprise the system of
records, because the plaintiff is unaware of who released this information, deposition
testimony would have to be taken. However, as the nature of the plaintiff’s
employment is privileged information, “identifying the individuals involved,
where they work, what they do, their personal background, and their expertise”
is not possible.
III. Conclusion
The District of
Columbia Circuit has stated that “dismissal of a suit, and the consequent
denial of a forum without giving the plaintiff her day in court . . . is indeed
draconian. ‘Denial of the forum provided under the Constitution for the
resolution of disputes, U.S. Const. art. III, § 2, is a drastic remedy that has
rarely been invoked.’“ In re
SO ORDERED this 6th day of July, 2004.
REGGIE B. WALTON
United States District Judge
Notes:
1 The Court notes that the plaintiff also filed a lawsuit
against the FBI pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552, and the Privacy Act, 5 U.S.C. § 552a, seeking documents related to her
employment with the FBI. See
2 Also currently pending before it is an Emergency Motion
of the United States to Quash Deposition of Sibel
Edmonds, or for Protective Order filed with this Court in Burnett v. Al Baraka Inv. & Dev. Corp. (In re Terrorist Attacks),
2004 U.S. Dist. Lexis 10010, Civ. A. No. 03-9849 (S.D.N.Y.). The
3 The contents of this Opinion contain only information that is already in the public domain (i.e., the plaintiff’s complaint) and which the government has not sought to have concealed through a sealing order or otherwise.
4 These reports of misconduct included allegations that:
(a) another employee, a contract monitor, who was granted a security clearance by the FBI, had past and ongoing association with one or more targets of an ongoing FBI investigation; (b) this same other employee was translating information obtained from FBI wire-taps concerning one or more targets with whom she had past and ongoing improper contacts; (c) the same other employee was suspected of leaking information to one or more targets of an FBI investigation to which she was assigned to perform translation services; (d) the other employee improperly instructed Plaintiff and another employee not to listen and translate certain FBI wire-taps because she knew the subjects and was confident that there would be nothing important to translate concerning those subjects or their conversations; (e) Plaintiff’s supervisor issued instructions that assisted the other employee in carrying out misconduct; (f) the other employee threatened the lives and safety of Plaintiff and Plaintiff’s family members, who were citizens of, and resided in, a foreign country, because Plaintiff refused to go along with the other employee’s scheme to obstruct justice and because Plaintiff reported her concerns about the other employee’s wrongdoing to FBI management; (g) both as a result of misconduct by the other employee and Plaintiff’s supervisor, and as a result of gross incompetence in the department, numerous translations were not properly conducted, and/or intentionally not conducted, which threatened intelligence and law enforcement investigations related to September 11th and other ongoing . . . law enforcement investigations; (h) work order documents concerning translations related to September 11th investigations were falsified and contained forgeries of Plaintiff’s name and/or initials; (i) Plaintiff’s supervisor issued an instruction forbidding Plaintiff from raising her concerns to the FBI Special Agent assigned to the case, or others, without the permission of Plaintiff’s supervisor; (j) extremely sensitive and material information was deliberately withheld from translations; and (k) FBI management had failed to take corrective action in response to Plaintiff’s reports and serious concerns, and retaliated against Plaintiff for reporting her concerns. Compl. P 16.
5 The plaintiff seems to suggest that the Attorney General must read her complaint prior to invoking the state secrets privilege. Opp’n at 9-10. There is, however, no case authority cited that would support such a position. Here, the Attorney General was informed of the plaintiff’s claims and personally considered information, including a classified declaration, that led him to conclude that the state secrets privilege should be invoked.
6 A non-tenured government employee is an individual that
has a “legitimate claim of entitlement to continued employment absent
sufficient cause.”
7 In concluding that the state secrets privilege is applicable to this case, the Court finds that dismissal of this suit is the necessary result. While the Court had contemplated alternative remedies short of dismissal, for example staying the case to await the possibility that one day the privileged information will no longer constitute a state secret, it must conclude that there are no viable alternatives. This is due not only to the nature of the information, but also because the imminent threat of terrorism will not be eliminated anytime in the foreseeable future, but is an endeavor that will consume our nation’s attention indefinitely. Moreover, with the case in this posture, the plaintiff will be able to immediately seek appellate review, rather than having these proceedings stayed, which would delay indefinitely the plaintiff’s ability to seek appellate relief.
8 An Order consistent with the Court’s ruling accompanies this Memorandum Opinion.
FOR THE
S. D. Edmonds,
Plaintiff,
v.
Federal Bureau of Investigation,
Defendant.
Civil Action No. 02-1294 (ESH)
272 F. Supp. 2d 35
2003
Ellen Segal Huvelle
United States District Judge.
[*42]
This action was filed pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Plaintiff Sibel Edmonds seeks documents from the Federal Bureau of Investigation (“FBI”) relating to her FBI employment, including her personnel file, her allegations of wrongdoing at the FBI, investigations related to her whistleblower allegations, her security clearance, and the investigation and/or adjudication of her security clearance. Defendant released 343 of 1,486 pages of responsive material and has filed a motion for summary judgment arguing that it has released all nonexempt information after a thorough search. Plaintiff challenges all withholdings and opposes the granting of summary judgment. Upon review of the pleadings, the entire record, and the relevant law, the Court grants defendant’s motion except as to defendant’s invocation of Exemption 5 and its claim of Exemption 2 as to a limited number of documents. With respect to these two issues, defendant must provide additional information to support its withholdings.
Plaintiff is a whistleblower who
worked as a contract linguist for the FBI after the
By letter dated
By letter dated
The responsive documents and DPIS’s are numbered consecutively beginning with Edmonds-1 and ending with Edmonds-1486. Whenever an exemption is invoked to redact information in a document, that exemption is noted in the margin of the page. The only exception to this practice is that in each case where Exemption 1 is claimed, Exemption 5 is also claimed but may not be marked on the document. (Hardy Dec. P 11.) Some of the withholdings are further segregated into coded subcategories. (Id. P 12.) Defendant has also presented for ex parte and in camera review an eighteen-page supplement to the Hardy Declaration and a detailed Vaughn index of 225 pages to further explain its withholdings pursuant to Exemptions 1 and 7(D). (Id. P 4.)
Plaintiff has not
provided a list of uncontested withholdings, arguing that she cannot do so
without a list or index of documents. (Pl.’s Opp. at 3.) Rather, on
I. FOIA: General Principles and Standard of Review
Under FOIA, an
agency must disclose all records requested by “any person,” 5 U.S.C. § 552(a)(3), unless the agency can establish that information falls
within one of the nine exemptions set forth in the statute. See 5 U.S.C. §
552(b). These exemptions are exclusive, and should be narrowly construed. Dep’t of Air Force v. Rose, 425
In reviewing an agency’s invocation of an
exemption, the Court must consider that in enacting FOIA, Congress aimed to
strike a balance “between the right of the public to know what their government
is up to and the often compelling interest that the government maintains in
keeping certain information [*44] private, whether to protect particular
individuals or the national interest as a whole.” ACLU v. United States Dep’t
of Justice, 265 F. Supp. 2d 20, 2003 U.S. Dist. Lexis 8363, Civ. No. 02-2077,
2003 WL 21152857, at *5 (D.D.C.
Summary
judgment can be granted to the government in a FOIA case if “the agency proves
that it has fully discharged its obligation under the FOIA, after the underlying facts and the
inferences to be drawn from them are construed in the light most favorable to
the FOIA requester.” Greenberg v. Dep’t of Treasury, 10 F.
Supp. 2d 3, 11 (D.D.C. 1998). The government must prove that “each
document that falls within the class [of documents] requested either has been
produced, is unidentifiable, or is wholly exempt from the Act’s inspection
requirements.” Goland v. CIA, 197
II. Adequacy of the Affidavit
Plaintiff argues
that defendant has failed to meet its burden on summary judgment because of its
failure to produce “an itemized public index that describes each record or
withheld portion and gives a detailed explanation of the agency’s grounds for
withholding, correlating each exemption claimed with the particular record or
portion to which it supposedly applies.” (Pl.’s Opp. at 6.) However, “it is the function, not the form, of the
index that is important” and the same end can be achieved through the
submission of an affidavit and annotated documents. Keys v. United States Dep’t
of Justice, 265
Affidavits
submitted by a government agency to justify FOIA exemption claims must “strive
to correct . . . the asymmetrical distribution of knowledge that characterizes
FOIA litigation” to enable the district court “‘to make a rational decision
whether the withheld material must be produced without actually viewing the
documents themselves.’“ King, 830 F.2d at 218 (quoting Dellums
v. Powell, 206
As discussed below with respect to most of the claimed exemptions, the Court can make an informed decision as to whether the withheld material must be produced [*45] based on the public and classified affidavits, the coded documents, and the classified index. Specifically, the classified declaration and index enable the Court to fulfill its duty of ruling on the Exemptions 1 and 7(D) withholdings. Moreover, the public affidavit and the coded documents provide sufficient detail with respect to most of the remaining material withheld under other exemptions. In particular, the public affidavit and the coded documents provide an “adequate foundation” for the Court to affirm the soundness of withholdings under Exemptions 6, 7(C), and 7(A). King, 830 F.2d at 218. These documents also support defendant’s claims pursuant to Exemption 2 on the pages marked Edmonds-823 and 1359 and pursuant to Exemption 7(E) on the pages marked Edmonds-1329, 1330-1346, 1361-1368. Thus, with limited exception, n2 the Court has been provided with an adequate basis to rule on virtually all of defendant’s withholdings.
III. Exemption 1
Exemption 1
protects from mandatory disclosure under FOIA matters 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). Information must be classified in accordance
with the procedural and substantive requirements of the governing executive
order in order to be withheld under Exemption 1. Lesar v.
According to defendant,
the material withheld pursuant to Exemption 1 meets the substantive
requirements of the Executive Order because it consists of “intelligence
sources or methods,” E.O. 12958 § 1.5(c), and “reasonably could be expected to
result in damage to the national security.” E.O. 12958 § 1.2.
(Def.’s Mem.
at 9.) “Substantive review of
classification decisions is quite deferential.”
The Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security. . . . Moreover, . . . we have consistently deferred to executive affidavits predicting harm to the national security and have found it unwise to undertake searching judicial review. . . . Gardels v. CIA, 223 U.S. App. D.C. 88, 689 F.2d 1100, 1104 (D.C. Cir. 1982) (“Once satisfied that proper procedures have been followed and that the information logically falls into the exemption claimed, the courts need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.”)
[*46] Ctr. for Nat’l Security Studies v.
Despite the deference owed to the executive in the FOIA context when national security concerns are implicated, plaintiff argues that the Hardy Declaration is not sufficiently specific to justify granting summary judgment because it does not contain adequate descriptions of the withheld information or adequate justifications for the claimed exemptions. (Pl.’s Opp. at 3.) As explained by the Hardy Declaration, however, “public disclosure of the information contained in the classified and withheld portions of the[] documents [responsive to plaintiff’s request] would reveal information about an intelligence activity, source or method and would have a negative impact on the FBI’s ability to effectively collect intelligence information and would seriously damage the national security interests of the United States.” (Hardy Decl. P 18.) Moreover, though defendant “is unable in its public declaration to provide complete descriptions of the documents, or detailed explanations justifying withholdings, without revealing the very information it seeks to protect,” (Memorandum of Law in Support of Defendant’s Motion for Summary Judgment [“Def.’s Mem.”] at 3-4), it has provided to the Court ex parte and in camera extensive classified documents to support its Exemption 1 claims, including the eighteen-page Supplemental Classified Declaration of David M. Hardy (the “classified declaration”) and a 225-page document-by-document Vaughn index identifying the specific information withheld pursuant to Exemption 1. n3 The classified declaration also provides additional details regarding confidential source information withheld under Exemption 7(D). (Def.’s Mem. at 3-4.) n4
After reviewing the extensive
confidential material submitted by defendant, the Court agrees that this is one
of those “occasions when extensive public justification would threaten to
reveal the very information for which a FOIA exemption [*47] is claimed.”
Lykins, 725 F.2d at 1463.
The confidential index “describes the withheld information and the
justification for withholding [pursuant to Exemption 1] with reasonable
specificity.” Fitzgibbon v.
(1) identifies the document, by type and location in the body of documents requested; (2) notes that Exemption 1 is claimed; (3) describes the document withheld or any redacted portion thereof, disclosing as much information as possible without thwarting the exemption’s purpose; (4) explains how this material falls within one or more of the categories of classified information authorized by the governing executive order; and (5) explains how disclosure of the material in question would cause the requisite degree of harm to the national security.
King, 830 F.2d at 224. The
Court’s review also confirms that disclosure of the classified information withheld
“reasonably could be expected to cause serious damage to the national
security.” (Defendant’s Reply in Support of Motion for
Summary Judgment [“Def.’s Reply”] at 6.)
Further, defendant’s submissions substantiate its position that some
information required classification
because it was intertwined with the sensitive matters at the heart of the case
and could not be further segregated and that other categories of information
were withheld because, in view of the information relevant to this matter that
is already in the public arena, they would tend to reveal matters of national
security even though the sensitivity of the information may not be readily
apparent in isolation. (See id.) This explanation
comports with the Supreme Court’s recognition that “what may seem trivial to the uninformed, may
appear of great moment to one who has a broad view of the scene and may put the
questioned item of information in its proper context.” CIA v.
Sims, 471
Plaintiff’s
specific challenges to the invocation of Exemption 1 are similarly
unconvincing. First, plaintiff complains that defendant has over-classified
certain documents. The classified declaration, however, satisfactorily explains
why it is now proper to classify many work-related documents pertaining to
plaintiff’s employment (e.g., plaintiff’s invoices for contract services as a
linguist, her personnel file, letters and e-mails written by FBI agents
praising her work performance, and documents concerning her whistleblower
allegations), which may not have been classified when plaintiff was employed at
the FBI, but must now be treated as classified given the public disclosures
surrounding plaintiff’s allegations. n5 For, as
recognized by this Circuit, information
can be classified if, when aggregated and discussed in the context of the
responsive documents, it reveals other underlying facts, associations or
relationships that are classified. See Halperin, 629
F.2d at 150 (“each individual piece of intelligence information, much like a
piece of a jigsaw puzzle, may aid in [*48] piecing together other bits of information
even when the individual piece is not of obvious importance in itself”). See
also Goldberg v. Dep’t of State, 260
Second, plaintiff
argues that defendant has not complied with some of the Executive Order’s procedural
requirements. The evidence before the Court proves otherwise. The public and
classified Hardy Declarations amply demonstrate that defendant has complied
with the procedural strictures of Executive Order 12958 with respect to the
documents withheld under Exemption 1, including the eight documents
specifically identified by plaintiff. (
Third, the major
thrust of plaintiff’s attack on defendant’s Exemption 1 claim is premised on
her argument that information is being withheld that is already in the public
domain through disclosures to the news media and FBI briefings to Congress.
Plaintiff’s position is riddled with problems. First, “the fact that information resides in
the public domain does not eliminate the possibility that further disclosures
can cause harm to intelligence sources, methods, and operations.” Fitzgibbon v.
CIA, 911 F.2d 755, 766, 286
As is apparent
from a comparison of the information contained in the documents withheld under
Exemption 1, as explicated by the classified declaration, with the quoted
statements in the media which have been attributed to the government, the
information that is being withheld is not identical to the information in the
public domain. Rather, the withheld information is far more detailed and its
release could provide a composite picture, or at least additional information,
that would be harmful to national security. Moreover, since the statements in
the press were made by anonymous sources, even documents containing identical
information may properly be withheld because “release would amount to official
confirmation or acknowledgment of their accuracy.”
Further, the fact that the FBI provided information to members of Congress regarding plaintiff’s whistleblower allegations does not deprive defendant of the right to classify the information under Exemption 1, for disclosure of information to a congressional committee does not constitute a waiver. See Fitzgibbon, 911 F.2d at 766 (government transmission of “an official document to a congressional committee does not mean that the Agency can thereby automatically be forced to release any number of other documents”); Murphy v. Dep’t of the Army, 198 U.S. App. D.C. 418, 613 F.2d 1151, 1156 (D.C. Cir. 1979) (“we conclude that, to the extent that Congress has reserved to itself in Section 552(c) the right to receive information not available to the general public, and actually does receive such information pursuant to that section . . ., no waiver occurs of the privileges and exemptions which are available to the executive branch under the FOIA”); Safeway Stores v. FTC, 428 F. Supp. 346, 347 (D.D.C. 1977) (“Disclosure to an authorized congressional committee does not waive the exemption.”)
Thus, it is not “disingenuous,” as argued by plaintiff (Pl.’s Opp. at 18), for the defendant to classify information that is arguably in the public domain. At least in the area of national security, it is accepted that an agency can determine that disclosure of information already in the public realm “reasonably could be expected to cause damage to the national security,” Washington Post, 766 F. Supp. at 10, and as this Circuit has recently cautioned, “the court should not second-guess the executive’s judgment in this area.” Ctr. for Nat’l Security Studies, 331 F.3d at 931. Applying this admonition, this Court will accept the predictive judgments reflected in the government declarations regarding the harm to the national security that reasonably could be expected to occur from further disclosure, and it will therefore sustain defendant’s claim under Exemption 1. n8
[*50]
IV. Exemption 2
Under Exemption
2, the government is not required to disclose information “related solely to
the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Only information that is “used for predominantly
internal purposes” is protected under Exemption 2. Crooker v. Bureau of
Alcohol, Tobacco & Firearms, 216
If the
“predominantly internal” test is met, an agency may withhold material if it
shows that “either [1] disclosure may risk circumvention of agency regulation,
or [2] the material relates to trivial administrative matters of no genuine
public interest.” Schiller v. NLRB, 296
Defendant has invoked Exemption 2 to withhold both “high 2” and “low 2” information, including (1) portions of polygraph examinations (“Exemption 2-1”); (2) internal rules for language services (“Exemption 2-2”); and (3) defendant’s secure facsimile numbers (“Exemption 2-3”). (Hardy Decl. P 12.)
The Court has identified only six pages withheld in whole or in part pursuant to Exemption 2 that are not also classified and properly withheld pursuant to Exemption 1. As the Court has already found that the classified material has been properly withheld under Exemption 1, only these six pages need be addressed here. Three of these pages are discussed herein, but as to Edmonds-775, 776, and 777, defendant has failed to explain the rationale for withholding these documents under Exemption 2. Consequently, having no basis for determining whether these pages have been properly withheld, the Court will require defendant to provide additional information as to these three documents. The remaining three documents (Edmonds-1329, 1357, and 823) have, however, been properly withheld.
A. Polygraph
Information
Edmonds-1329 is a
polygraph worksheet for plaintiff’s
B. Internal
Rules for Language Services
The material withheld under Exemption 2-2 (see Edmonds-1359) contains the internal rules and regulations used to grant a waiver from the ordinary language testing requirements for the position of Contract Language Monitor. (Hardy Decl. P 29.) These rules and regulations are “predominantly internal.” They pertain only to particular government employees and do not “purport to regulate activities among members of the public.” Cox, 601 F.2d at 5. Thus, they meet the threshold test for Exemption 2.
Plaintiff argues
that the information should not be withheld because defendant “has not cited
any foreseeable adverse consequence for the release of this [*51] information.”
(Pl.’s Opp. at 20.)
However, a showing of a “foreseeable
adverse consequence”
is only relevant to the “high 2” information, and not to these
internal rules, which are “low 2” information “of a relatively trivial nature”
and “of no genuine public interest.” (Def.’s
Reply at 13-14.) Nor does plaintiff challenge this classification of
“low 2,” since she fails to articulate any public interest in the withheld
information. See Billington v. Dep’t of Justice, 11
F. Supp. 2d 45, 70-71 (D.D.C. 1998) (internal information properly withheld
under low-2 exemption where plaintiff “did not even touch upon a public
interest in the material”), vacated in part on other grounds, 344
C. Secure Facsimile
Numbers
Defendant has
redacted secure facsimile numbers under Exemption 2-3 from Edmonds-823. These
numbers are used only by FBI Special Agents and staff conducting classified or
sensitive investigations - and not by the general public. (Hardy
Decl. P 30.) Their release “could
significantly risk circumvention of the FBI’s law enforcement ability by
providing those with the intent of breaking the law the ability to monitor or
block the FBI’s secure
facsimile lines. These actions would, at best, make this equipment worthless to
the FBI in supporting its investigations and could possibly jeopardize the
information transmitted on these machines.” (
V. Exemption 5
Exemption 5
protects 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). Exemption 5
has been held to incorporate the privileges that are available to an agency in
civil litigation, including the deliberative process privilege, the
attorney-client privilege, and the attorney work-product doctrine. NLRB v. Sears, Roebuck & Co. 421
VI. Exemptions 6 and 7(C)
Exemption 6
permits withholding information “the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects from disclosure “records or
information compiled for law enforcement purposes” but only to the extent that
the production of such information “could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Both exemptions require that the Court balance the
privacy interests of the subjects of the requests with the public’s interest in
disclosure to determine whether defendant’s non-disclosure is proper.
Defendant has
invoked Exemptions 6 and 7(C) to protect the names and identifying data of FBI
special agents and support personnel and third parties. Defendant bears the burden of establishing
that the balance tips in favor of privacy, thereby justifying the withholding
of the requested material under the asserted exemptions. 5 U.S.C. § 552(a)(4)(B).
However, it is plaintiff’s burden to support her claim that disclosure of
withheld information advances the public interest. King, 830
F.2d at 234. With respect to disclosure under FOIA, the public interest
is limited to that which “sheds light on an agency’s performance of its
statutory duty” in order to inform the citizens “about what their government is
up to.”
Plaintiff has not demonstrated how the disclosure of the individual identities of FBI personnel and third parties would serve the public interest. The fact that the underlying documents relate to plaintiff’s whistleblower allegations about misconduct in the FBI’s Language Division (see Pl.’s Opp. at 34-35) does not create a public interest in the identities of these individuals, for there is no reason to believe that disclosure would shed light on the allegations under investigation. In contrast, this Court has “admonished repeatedly” that witnesses, informants, and investigating agents have a “substantial interest in seeing that their participation remains secret” and that “third parties discussed in investigatory files may have a similarly strong interest in nondisclosure.” King, 830 F. Supp. at 233; see also Lesar, 636 F.2d at 487 (recognizing that FBI agents have a legitimate privacy interest in their names).
[*53] The individuals whose identities have been withheld have a significant privacy interest at stake. For example, as defendant notes, the public identification of FBI agents “could subject them to harassment or unofficial questioning in the conduct of their official duties or private lives and could lead to the attempted compromise of these employees.” (Hardy Decl. P 39.) Moreover, the release of an agent’s identity in connection with a particular law enforcement or national security investigation may also create animosity toward that agent and any type of publicity concerning a particular investigation may seriously prejudice the agent’s effectiveness in conducting future investigations. (Id. P 55.) Similarly, FBI support personnel have access to information regarding investigations and “may become targets of harassing inquiries for unauthorized access to information” so that the release of their identities could have the same impact as the disclosure of agent identities. (Id. P 56.) Third parties mentioned in investigative files also have privacy interests at stake as disclosure could cast them in an unfavorable or negative light regardless of whether they were of investigative interest to the FBI. (Id. PP 40, 57.)
The Court agrees
that “the privacy interests of third
parties mentioned in law enforcement files are ‘substantial’ while ‘the public
interest in disclosure [of third party identities] is not just less
substantial, it is unsubstantial.’“ Blanton v. United States Dep’t of Justice,
63 F. Supp. 2d 35, 45 (D.D.C. 1999) (quoting SafeCard
Servs., Inc. v. SEC, 288
VII. Exemption 7(A)
Exemption 7(A) shields from disclosure “records or information compiled [*54] for law enforcement purposes, but only to the extent that the production of such records could . . . interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). Thus, an investigatory record must meet two criteria to fall within Exemption 7(A): first, it must be “compiled for law enforcement purposes,” and second, its release must “interfere with enforcement proceedings.”
Defendant need
not demonstrate how the release of the withheld documents would interfere with
law enforcement proceedings on a document-by-document basis. Rather, defendant
may “group [] documents into relevant categories that are sufficiently distinct
to allow a court to grasp ‘how each . . . category of documents, if disclosed,
would interfere with the investigation.’“ Bevis v.
Dep’t of State, 255
The categories
relied upon, however, must be “functional” - “allowing the court to trace a
rational link between the nature of the document and the alleged likely
interference.” Crooker v. Bureau of Alcohol, Tobacco and
Firearms, 252
Plaintiff argues that defendant’s withholding under Exemption 7(A) is improper because defendant has not adequately described the material withheld and, in particular, has not distinguished between documents directly generated in connection with the ongoing OPR and OIG investigations and documents generated prior to the investigations. (Pl.’s Opp. at 35-36.) A review of paragraphs 49-51 of the Hardy Declaration disproves this claim. Moreover, Exemption 7(A) requires only that disclosure of material would interfere with a “concrete prospective law enforcement proceeding,” Carson v. United States Dep’t of Justice, 203 U.S. App. D.C. 426, 631 F.2d 1008, 1018 (D.C. Cir. 1980) (internal quotation and citation omitted), and does not contain a limitation on withholding based on when or why the document was generated.
Defendant has done all that is required to justify its withholdings under Exemption 7(A). See Bevies, 801 F.2d at 1389-90. The material withheld was compiled as part of the law enforcement investigations by OPR and OIG. (Hardy Decl. P 47.) Defendant has invoked this exemption to withhold the entire OPR investigatory file, which is maintained according to agency guidelines, n13 and other documents that were provided to OIG as part of its investigation of plaintiff’s allegations and which OIG advises are subject to Exemption 7(A). (Hardy Decl. PP 44-45.)
Defendant does
not, however, assert that these documents are protected from disclosure based
solely on the fact that they are contained in investigatory files. See Crooker,
789 F.2d at 65 (affidavit stating only
that “requested documents are contained in a criminal investigation file” is
impermissibly general and does not justify withholding under Exemption 7(A)).
Defendant performed a document-by-document review of the responsive material
[*55] and grouped the withheld material into two functional categories:
evidentiary and investigative materials. (Hardy Decl. P 50.) Defendant has also provided a detailed
discussion of the materials contained within each functional category and the
reasons that disclosure would interfere with the pending investigations. (
The evidentiary
material is comprised of third-party statements and physical evidence that is
either actual evidence or derived from such evidence (i.e., material describing
the contents of the original evidentiary record, how it was obtained, or how it
relates to the investigation). (Id. P 50.) The Hardy
Declaration explains that third-party statements are one of the principal tools
used in an investigation, that the physical evidence withheld includes correspondence
with third parties and the product of investigative techniques, and that
disclosure of such material could taint future disclosures and stifle the
cooperation of individuals who have provided information with the understanding
that their identities and the information provided would be protected. (
Moreover, the
likelihood of intimidation of individuals involved in the investigation has
been found to justify the withholding of information by both the Supreme Court
and this Circuit “on numerous occasions.” Ctr. for Nat’l Security Studies, 331
F.3d at 929 (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
239-42, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978) and listing Circuit Court
cases). Finally, the Circuit Court recently chronicled in detail the “weight of
authority counseling deference [to the government’s judgments contained in
affidavits] in national security matters” and concluded that the deference that
has historically been given to the executive when it invokes FOIA Exemption 1
must be extended to Exemption 7(A) in cases like this one, where national
security issues are at risk.
VIII. Exemption 7(E)
Exemption 7(E) protects from disclosure information compiled for law enforcement purposes where release of the information “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions [*56] if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Defendant asserts this exemption to withhold some of the questions asked during plaintiff’s polygraph examinations and numerical ratings assigned to her responses. (Hardy Decl. P 60.)
To determine that
information is properly withheld under Exemption 7(E), the Court must find
that: (1) the information was “compiled for law enforcement purposes,” and (2)
release of the information could reasonably be expected to risk circumvention
of the law. FBI v. Abramson, 456
Plaintiff does not dispute defendant’s rationale for withholding but argues that defendant has not adequately described the information withheld and that defendant’s withholding of polygraph information under a variety of exemptions is inconsistent and improper. (Pl.’s Opp. at 20.) The Court disagrees. First, the Hardy Declaration adequately describes the information withheld (Hardy Decl. P 60) and the number of pages withheld is evident from the codes on the documents and DPIS’s. (See Edmonds-1329, 1333-1346, 1361-1368.) Next, there is no basis for plaintiff’s objection to the fact that defendant has not specified the exact polygraph exam which has been withheld. (Pl.’s Opp. at 20.) The date of the polygraph exams that were the subject of withholding is irrelevant as the release of the questions and the coding of the responses “would frustrate enforcement of the law” regardless of the date. Blanton, 63 F. Supp. 2d at 50. See also Shores v. FBI, 185 F. Supp. 2d 77, 85 (D.D.C. 2002) (release of polygraph information “could defeat the effectiveness of any polygraph examinations . . . in the future”); Coleman, 13 F. Supp. 2d at 84 (“the release of particular details with regard to an individual [polygraph] test could foreseeably circumvent the entire process”); Perrone v. FBI, 908 F. Supp. 24, 28 (D.D.C.1995) (“it is important to the effectiveness of a polygraph examination that the exact questions to be asked and their sequence not be known by the examinee”). Further, the fact that defendant released some polygraph questions and withheld some polygraph information under Exemption 1 rather than Exemptions 2 or 7(E) (see Edmonds-1355, 1356) does not invalidate withholding under Exemption 7(E). It merely reflects a thoughtful consideration of each document rather than a categorical withholding of all polygraph information under a single exemption. Clearly, the government determined that there was no basis for withholding questions that had been released and that some information could be classified while other information could only be properly withheld under other exemptions.
Since the substance of the withheld information is clear from the Hardy Declaration and this declaration also convincingly describes how the release of this information might create a risk of circumvention of the law, the Court concludes that defendants has properly invoked Exemption 7(E) to withhold polygraph information.
IX. Segregation of Non-Exempt Portions of Withheld
Material
FOIA requires agencies to release “any reasonably segregable portion of a record [*57] . . . after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). “Non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Schiller, 964 F.2d at 1209 (internal quotations and citation omitted). The Hardy Declaration affirms that “every effort was made to provide the plaintiff with all reasonably segregable portions of responsive material.” (Hardy Decl. P 12.)
Where only
portions of a document are exempt from disclosure, defendants have clearly
“correlated the theories of exemptions with the particular textual segments
which it desired exempted” rather than withholding the entire document. Schwartz
v. IRS, 167
Given the effort made to disclose segregable material and to explain why information in other documents is not segregable, the Court has no reason to question defendant’s segregability determinations. These efforts make clear that defendant undertook an analysis to determine what, if any, non-confidential information could be released. Accordingly, the Court finds that defendant “has carefully and methodically sought to respect the principle ‘that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.’“ Canning v. Dep’t of Justice, 848 F. Supp. 1037, 1049 n.2 (D.D.C. 1994) (quoting Schiller, 964 F.2d at 1209).
X. Reasonableness of Search for Responsive Documents
Plaintiff claims that since defendant failed to provide plaintiff with adequate information describing the withheld documents, defendant has failed to demonstrate that its search for responsive documents was reasonable. (Pl.’s Opp. at 38.) However, the adequacy of defendant’s affidavit and coding system have no bearing on the reasonableness of its search. An agency can prevail on a motion for summary judgment if it shows, “beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. Dep’t of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the agency “may rely upon affidavits . . ., as long as they are relatively detailed and nonconclusory and submitted in good faith.” Id. (citations omitted). The required level of detail “sets forth the search terms and the type of search performed, and avers that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby v. United States Dep’t of Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990). The fundamental issue is not “whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 (D.C. Cir. 1984) [*58] Defendant avers that it searched the two record systems in which responsive records were likely to be found: its Central Records System (CRS) and its Electronic Surveillance index (ELSUR). (Declaration of Christine Kiefer [“Kiefer Decl.”] P 35.) The CRS contains all pertinent information that the FBI has acquired in the course of fulfilling its mandated law enforcement responsibilities including administrative, applicant, criminal, personnel and other files compiled for law enforcement purposes. (Id. P 30.) The CRS search produced four main files and one cross-reference file responsive to plaintiff’s request. (Id.) Searches of individual employees’ offices produced additional documents. (Hardy Decl. P 7.)
The Kiefer Declaration provides an extensive explanation of the CRS and the indexing systems used to locate records. (Kiefer Decl. PP 30-34.) This detailed account of the search method and the identification of more than 1,400 responsive documents suggests that the agency made a good faith effort to uncover all documents related to plaintiff. Canning, 848 F. Supp. at 1050 (finding search for requested records reasonable based on a search process similar to the search described by defendant in the instant matter). Moreover, plaintiff has not pointed to any evidence or even articulated a relevant basis for challenging the reasonableness of defendant’s search. She only argues that defendant has “over-classified” responsive documents, depriving plaintiff of an opportunity to challenge the agency’s search effort. (Pl.’s Opp. at 39.) The Court has already rejected plaintiff’s argument that documents were improperly classified. Accordingly, the Court finds that defendant has demonstrated that it adequately searched all files reasonably likely to contain responsive records. See Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 127 (D.C. Cir. 1982) (“in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.”).
XI. Discovery
“Discovery in FOIA is rare and should be denied where an agency’s declarations are reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute remains.” Schrecker v. United States Dep’t of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002); see also Judicial Watch, Inc. v. United States Dep’t of Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (“discovery is not favored in lawsuits under the FOIA”). Given the Court’s conclusions, there is no basis for granting discovery here. The Court has determined that the classified index and declaration adequately justify the withholding of classified information. As previously discussed, there is no basis for the Court to examine an agency’s reasons or motives for classifying information. See EPA v. Mink, 410 U.S. 73, 84, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1993) (FOIA is not intended “to subject executive security classifications to judicial review at the insistence of anyone who might seek to question them”). Moreover, those documents that were improperly marked have been corrected and resubmitted. (See Def.’s Reply Ex.1.) In addition, in the limited circumstances where the public declaration and coded documents have been found to be insufficient, the Court is directing defendant to provide additional information describing the withheld information and the basis for the claimed exemption. This step, not discovery, is appropriate where defendant has failed to adequately describe information withheld.
For the reasons discussed above, the Court finds that, except where specified, [*59] the defendant’s declarations, coding system, and classified index describe “the justifications for nondisclosure 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.” Military Audit Project, 656 F.2d at 738. Accordingly, defendant’s motion for summary judgment with respect to Exemptions 1, 6, 7(A), 7(C), 7(D), and 7(E) is granted. The Court also grants defendant’s motion with respect to Exemption 2 except for the documents marked Edmonds-775, 776, and 777. The Court reserves ruling on these three documents, as well as any information withheld solely pursuant to Exemption 5, pending receipt and review of the additional information requested from defendant. A separate Order accompanies this Memorandum Opinion.
ELLEN SEGAL HUVELLE
United States District Judge
Notes:
1 The employment case,
2 The Court is requesting additional information in the few instances where the public declaration and coded material are inadequate to assess the claim under Exemption 5 and with respect to three pages withheld under Exemption 2. See infra Sections IV and V.
3 Defendant also submitted the Ex Parte, In Camera Declarations of Attorney General John Ashcroft and Deputy FBI Director Bruce Gebhardt, which explain more fully the grounds for the Attorney General’s assertion of the state secrets privilege (see Def.’s Mem. at 18) and provide further background information for defendant’s claims under Exemption 1.
4 Courts are permitted to review classified affidavits ex parte and in camera in national security cases. Lykins v. United States, 233 U.S. App. D.C. 349, 725 F.2d 1455 (D.C. Cir. 1984) (citing Hayden v. NSA, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1384 (D.C. Cir. 1979)). Cf. Holy Land Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156, (D.C. Cir. 2003) (slip op. at 10). Moreover, this is not a case in which the government has made no public record of its reasons for claiming the exemption as was the situation in the case cited by plaintiff -- Phillippi v. Central Intelligence Agency, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1012 (D.C. Cir. 1976). There, defendant’s affidavit stated only that the agency could “neither confirm nor deny” the existence of the requested documents, id. at 1013, whereas here defendant has submitted two public declarations that describe the processing of plaintiff’s FOIA request, the decision to classify portions of the requested documents, and the justification for Exemption 1 withholding. The Court gives “substantial weight,” Hayden, 608 F.2d at 1384, to defendant’s assertions that it has “made every effort to ensure that as much information as possible is disclosed” (Hardy Decl. P 4), and has thus exercised its discretion to accept the classified affidavits in camera and ex parte. See Hayden, 608 F.2d at 1384 (finding that it is within the court’s discretion to accept classified affidavits in camera where defendant has created “as full a public record as possible”).
5 As an example, plaintiff points to a Computer Custody Log Sheet (see Edmonds-436) documenting the chain of custody of a computer belonging to plaintiff’s husband while it was in the FBI’s possession. (Pl.’s Opp. at 11.) The FBI gave Mr. Edmonds a completed copy of the document which contained the names of three FBI Special Agents. These names, however, were subsequently classified and redacted from the document on national security grounds. (Id.) Defendant’s reasoning for withholding the names is adequately addressed in the classified declaration, and based on this explanation, the Court is satisfied that the names are properly withheld.
6 As originally submitted, these pages were not stamped with the name of the classifying authority, the reasons for classification, and the date for declassification as required by the Executive Order. As noted, this deficiency has been remedied. Secondly, with respect to plaintiff’s challenge to Edmonds-421, 422, and 431, the Executive Order requires only that the first pages of documents contain these markings, and as explained by defendant (see Def.’s Reply at 11 n.2), these three documents are not the first pages of documents and thus need not be stamped.
7 Plaintiff also argues that the documents marked Edmonds-5, 442, and 708 are not properly classified because they are stamped “ALL INFORMATION CONTAINED HEREIN IS UNCLASSIFIED EXCEPT WHERE SHOWN OTHERWISE.” (Johnson Aff. P 29.) Such markings do not indicate that the material is improperly withheld. The marking clearly indicates that information is classified “where shown otherwise.” Thus, the redactions in the three cited documents necessarily reflect defendant’s determination that the particular deleted information is being withheld under Exemption 1.
8 Defendant has asserted Exemption 7(D) to withhold some
of the information also withheld under Exemption 1. (See,
e.g., Edmonds-1381.) Exemption 7(D) permits the withholding or redacting
of law enforcement records where disclosure “could reasonably be expected to
disclose the identity of a confidential source . . . and, in the case of a
record or information compiled by a criminal law enforcement authority in the
course of a criminal investigation . . . information furnished by a
confidential source.” 5 U.S.C. § 552(b)(7)(D). Since
the Court finds that this information is properly classified and withheld under
Exemption 1, it need not address withholding pursuant to Exemption 7(D).
However, it is clear from the classified affidavit and index that Exemption
7(D) has been asserted properly to protect a source who
provided information under an express assurance of confidentiality. See United
States Dep’t of Justice v. Landano, 508
9 Plaintiff claims that she is unable to determine from the Hardy Declaration whether defendant is withholding entire pages of information based on this exemption. (Pl.’s Opp. at 21.) There is no basis for this confusion. Secured facsimile numbers are withheld from one document (Edmonds-823), which is clearly an organizational chart that has redactions for the numbers only.
10 Plaintiff also argues that defendant improperly asserts that all information exempt under Exemption 1 is also exempt under Exemption 5 as a result of the state secrets privilege and that the declarations of Attorney General Ashcroft and Deputy FBI Director Gebhardt do not satisfy the requirements for invoking the state secrets privilege. (Pl.’s Opp. at 23-34.) The Court need not address the validity of the state secrets privilege in order to determine whether the withholdings in this case are proper, since it has upheld their nondisclosure on the basis of Exemption 1. Moreover, the Court did not review the Ashcroft or Gebhardt Declarations to evaluate the assertion of the state secrets privilege, but only as background information to assist in understanding the government’s basis for classifying information pursuant to Exemption 1.
11 Plaintiff’s argument that high-ranking supervisory or managerial FBI officials have a diminished privacy interest and that, for this reason, their identities should not be withheld (Pl.’s Opp. at 35) does not change this analysis. Since plaintiff has not demonstrated that disclosure would advance a public interest, the results of the Court’s balancing test will not change regardless of whether plaintiff’s legal assertion is accurate.
12 In addition to the media reports (see Pl.’s Exs. 10, 11, 15, and 18), plaintiff also references her husband’s affidavit stating that three FBI Special Agents were identified in the Computer Custody Log Sheet provided to him. (See Pl.’s Ex. 3, Affidavit of Matthew Edmonds [“M. Edmonds Aff.”] P 9). As described supra note 5, these names have been properly withheld under Exemption 1.
13 This includes the pages marked Edmonds-208 through Edmonds-386 and Edmonds-956 through Edmonds-1160. Much of this information is also withheld under Exemption 1. Defendant did not invoke Exemption 7(A) to withhold public source information, such as newspaper articles, contained in the OPR file. (Hardy Decl. at 23 n.13.)
Upon consideration of defendant’s motion for summary judgment, plaintiff’s opposition, defendant’s reply, and the entire record in this case and for the reasons given in the attached Memorandum Opinion, it is hereby
ORDERED that the Defendant Federal Bureau of Investigation’s Motion for Summary Judgment [30-1] is GRANTED IN PART with respect to Exemptions 1, 6, 7(A) , 7(C), 7(D), 7(E) and Exemption 2, except that the Court reserves ruling with respect to documents marked Edmonds-775, 776, and 777; it is
FURTHER ORDERED that the Court reserves ruling with respect to any information withheld solely on the basis of Exemption 5; and it is
FURTHER ORDERED that by August 8, 2003, defendant shall file an affidavit describing the documents marked Edmonds 775, 776, and 777 and justifying their withholding under Exemption 2; and it is
FURTHER ORDERED that by August 8, 2003, defendant shall provide an affidavit describing any documents withheld pursuant to Exemption 5 that have not been found, pursuant to this Order, properly withheld under another FOIA exemption and justifying their withholding under Exemption 5; and it is
FURTHER ORDERED that plaintiff shall file any objections to defendant’s continued withholdings by August 19, 2003.
SO ORDERED.
ELLEN SEGAL HUVELLE
United States District Judge