Al-Turki v. Department of Justice
Filing
39
ORDER that Defendants Motion for Leave to File In Camera and Ex Parte Declaration ECF No. 27 is GRANTED. The In Camera and Ex Parte Declaration shall be submitted to my Chambers within ten (10) days of this Order, by Judge Wiley Y. Daniel on 5/13/2015.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 14-cv-00802-WYD-CBS
HOMAIDAN AL-TURKI,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.
ORDER
THIS MATTER is before the Court on Defendant’s Motion for Leave to File In
Camera and Ex Parte Declaration filed November 25, 2014. Defendant seeks to file an
in camera and ex parte classified declaration by an FBI Special Agent in support of the
pending summary judgment motion regarding exemptions that Defendant claims as to
Plaintiff’s FOIA requests. While Defendant has filed a public declaration which it asserts
provides all the information that may be disclosed on the public record, it seeks to
submit the classified declaration to provide additional details concerning its withholdings
of materials concerning ongoing law enforcement investigation.
In support of the motion, Defendant states in the estimation of the Declarant that
the disclosure of the information in the declaration would undermine the interests
protected by 5 U.S.C. § 552(b)(7)(A), which exempts from disclosure under FOIA
“records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information (A) could reasonably
be expected to interfere with enforcement proceedings . . . .” Defendant asserts that
this information cannot be disclosed publicly without causing serious harm to the
ongoing law enforcement investigation. Further, it contends that the declaration is
classified.
Plaintiff filed a response opposing the motion on December 22, 2014. He argues
that the motion should be denied because throughout its public filings, the government
has made misrepresentations that eliminate this Court’s ability to trust the government’s
statements asserted via an in camera and ex parte without permitting Plaintiff to assess
the viability of the Defendant’s assertions. A reply was filed by the Defendant on
January 12, 2015.
Turning to my analysis, courts are permitted to rule on summary judgment in
FOIA cases on the basis of government affidavits describing the documents sought.
See Lion Raisins v. U.S. Dep’t of Agriculture, 354 F.3d 1072, 1082 (9th Cir. 2004). The
government is generally required to “submit detailed public affidavits identifying the
documents withheld, the FOIA exemptions claimed, and a particularized explanation of
why each document falls within the claimed exemption.” Id. Also, “[u]nder certain
limited circumstances”, courts “have endorsed the use of in camera review of
government affidavits as the basis for FOIA decisions.” Id. According to the Ninth
Circuit, the court may rely on ex parte affidavits, however, only “‘in the exceptional
case’” and after ‘the government has submitted as detailed public affidavits and
testimony as possible.’” Id. (quoting id.).
I find that the above requirements have been met. Defendant submitted with its
Motion for Summary Judgment a detailed and lengthy public Declaration of David
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M. Hardy, the Section Chief of the Record/Information Dissemination Section of the
Records Management Division in Virginia. (ECF No. 26-1.) It purports to explain the
basis for the exemptions, providing all the information that Defendants asserts may be
disclosed on the public record.1 I accept at this juncture Defendant’s representation that
it has submitted as detailed a public declaration as it asserts is possible. I also accept
at this juncture Defendant’s assertion that the in camera and ex parte classified
declaration will provide additional details concerning withholdings of materials
concerning ongoing law enforcement investigation, and that it cannot be disclosed
publicly without causing serious harm to the ongoing law enforcement investigation.
Based on the foregoing, I find that this is an exceptional case where submission
of an in parte and in camera declaration by the Government is appropriate. This case
involves national security. The in camera ex parte declaration is classified and to be
classified, the information, if disclosed, “reasonably could be expected to result in
damage to the national security.” Executive Order 13526, § 1.1(a)(4). Defendant
asserts that the in camera ex parte declaration explains why it is classified. Further,
Defendant represents that this information cannot be disclosed publicly without causing
serious harm to the ongoing law enforcement investigation. Many other courts have
allowed in camera declarations in such cases, and where additional public disclosure
would publicly reveal what a FOIA exemption is supposed to protect. See, e.g., Hayden
v. Nat’l Sec. Agency, 608 F.2d 1381, 1391 (D.C. Cir. 1979) (“The agency stated as
much detail publicly in this case as it reasonably could without revealing sensitive
1
The merits of that Declaration are not evaluated in connection with this motion.
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information, and presented further specifics in camera. This is the proper way to satisfy
FOIA Exemption 3.”); Public Education Ctr, Inc. v. DOD, 905 F. Supp 19, 22 (D.D.C.
1995) (reviewing declarations supporting Exemption (b)(1) and observing “there are
occasions when extensive public justification would threaten to reveal the very
information for which a FOIA exemption is claimed.”); Frydman v. Dep’t of Justice, No.
78-4257, 1990 WL 113902, at *2 (D. Kan. July 11, 1990) (“The court has inspected the
affidavit and the documents. Plaintiff has objected to the use of in camera affidavits.
But, in camera affidavits have been employed with circuit court approval in other cases
involving national security allegations.”).
Plaintiff argues that three circumstances justify the Court refusing to consider an
in camera ex parte declaration: (1) the motion for summary judgment is “riddled with
factual inaccuracies”; (2) the Defendant fails to mention responsive documents not
subject to a FOIA exemption; and (3) the Government has waived certain exemptions
because of public disclosure. Plaintiff provides no authority for the proposition that any
of these assertions, if true, should make the Court refuse an in camera ex parte
classified declaration justifying Exemption 7(A), and I have found none. Accordingly, I
reject Plaintiff’s arguments and find that Defendant’s motion should be granted.
However, once the declaration is filed and considered in connection with the
pending summary judgment motion, I will review it to ensure that Defendant’s rationale
for filing it ex parte and in camera was proper. I will also determine whether any
portions of the declaration could be released to augment the public record. See Public
Education Center, Inc., 905 F. Supp. at 22.
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Based upon the foregoing, it is
ORDERED that Defendant’s Motion for Leave to File In Camera and Ex Parte
Declaration (ECF No. 27) is GRANTED. The In Camera and Ex Parte Declaration shall
be submitted to my Chambers within ten (10) days of this Order.
Dated: May 13, 2015
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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