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Pursuant to D.C. Circuit Rule 36, this disposition will not be published.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 mu