CANNING et al v. UNITED STATES DEPARTMENT OF STATE

Filing 46

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's Motion for Partial Summary Judgment 19 ; granting in part and denying in part Plaintiffs' Motion for Partial Summary Judgment 23 ; denying Plaintiffs' Second Motion For Partial Summary Judgment 35 and Motions For In Camera Review 22 36 . Defendant is directed to supplement the record within 60 days. See document for details. Signed by Judge Randolph D. Moss on September 30, 2015. (lcrdm1, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GEORGE CANNING and JEFFREY
STEINBERG,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
STATE,
Defendant.

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Civil Action No. 13-831 (RDM)

MEMORANDUM OPINION AND ORDER
Plaintiffs George Canning and Jeffrey Steinberg (“Plaintiffs”), acting pro se, brought this
action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq. Plaintiffs seek
an order requiring Defendant United States Department of State (“the Department”) to produce
two groups of records: (1) a 2010 memorandum from the President to his foreign policy advisors,
entitled “Presidential Study Directive 11” (“PSD-11”), and certain related documents; and (2)
documents pertaining to the Muslim Brotherhood. See Dkt. 1 at 7.
The parties have cross-moved for partial summary judgment with respect to the first
portion of Plaintiffs’ FOIA request. Dkts. 19, 23, 35. Plaintiffs also seek in camera review of
approximately ninety original documents that were withheld in full by the Department. Dkts. 22,
36. For the reasons given below, the parties’ motions for partial summary judgment are
GRANTED in part and DENIED in part. The Department is directed to supplement its
declarations with the additional information described in this Memorandum Opinion and to

disclose the portion markings on two documents that were released in part. Plaintiffs’ motions
for in camera review are DENIED.
I. BACKGROUND
The factual and procedural background of this case is not disputed. In December 2012,
Plaintiff Canning filed a FOIA request for “certain information created and/or compiled by the
Department of State, concerning Presidential Study Directive 11 (‘PSD-11’).” Dkt. 1 at 7 (Ex.
A). The request sought a copy of PSD-11 itself, “[d]ocuments and other information created or
compiled by the State Department which were utilized internally . . . , in the creation of PSD11,” and “[d]ocuments and other information created or compiled by the State Department which
were generated pursuant to the mandates of PSD-11.” Id. In addition, the request sought “[a]ll
reports created or compiled by the State Department from 2005 to present, concerning contacts
or interviews with, or otherwise about, individuals identified as leaders of the Muslim
Brotherhood, or otherwise analyzing the Muslim Brotherhood’s role in Muslim nations.” Id.
Plaintiff requested a fee waiver and expedited production of responsive records. Id. at 7-9.
In January 2013, the Department acknowledged receipt of the FOIA request. See Dkt. 1
at 18 (Ex. B). The Department granted the fee waiver request but denied expedited processing.
Id. at 18, 20. Plaintiff Canning filed an administrative appeal of the denial of his motion to
expedite. Id. at 21-22 (Ex. C). He also asked that Plaintiff Steinberg be deemed a co-requester
and permitted to join in the appeal. See id. at 22, 26. The Department upheld the denial of
expedited processing. Id. at 31-32 (Ex. D). Although the record is not entirely clear on this
point, the Department also apparently agreed to treat Plaintiff Steinberg as a co-requester.
In June 2013, Plaintiffs filed this action. See Dkt. 1. They seek an order compelling the
Department to search for and to produce all responsive records on an expedited basis. Id. at 5-6.
The parties conferred and agreed that the Department would prioritize the production of records
2

responsive to the first portion of Plaintiffs’ FOIA request, that is, the request for PSD-11 and
certain related documents. See Dkt. 30 ¶ 2 (Dec. 22, 2014, Joint Status Report). At the parties’
request, the Court granted the parties leave to file cross-motions for partial summary judgment
with respect to the Department’s satisfaction of the first portion of the FOIA request. See June
12, 2014, Minute Order; see also Dkt. 16. Although Plaintiffs agreed to narrow the scope of the
second portion of the FOIA request, see Dkt. 30 ¶ 2 & n.1, the processing and production of
responsive documents is still ongoing, see Dkt. 42 ¶ 1 (Aug. 24, 2015, Joint Status Report).
Accordingly, issues relating to the second portion of Plaintiff’s FOIA request are not presently
before the Court.
In August 2014, the Department moved for partial summary judgment. See Dkt. 19. 1 It
attached a declaration by John F. Hackett, Acting Director of the Office of Information Programs
and Services of the United States Department of State, see Dkt. 19-2 ¶ 1 (“First Hackett Decl.”),
which explained that of the 144 fully processed responsive documents, 10 had been released in
full, 77 had been withheld in full, and 57 had been released in part, see id. ¶ 105; see also id.
¶¶ 8, 9-13. The Hackett declaration further explained that due to a “miscommunication” some
documents were “mistakenly never processed” and that 20 such documents had been “referred to
other agencies with equities in the information.” Id. ¶¶ 13, 31; Dkt. 19 at 12 n.3. These agencies
were later identified as the Central Intelligence Agency (“CIA”) and the United States Agency
for International Development (“USAID”). See Second Declaration of John F. Hackett, Dkt. 251 ¶¶ 15, 16, 24; Third Declaration of John F. Hackett, Dkt. 27-1 ¶ 5.

1

The Court advised Plaintiffs that if they did not timely respond to the arguments in the
Department’s motion for partial summary judgment, those arguments might be deemed
conceded. See Dkt. 20; see also Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988); Neal v. Kelly,
963 F.2d 453 (D.C. Cir. 1992).
3

In October 2014, Plaintiffs cross-moved for partial summary judgment, arguing that the
Department improperly withheld PSD-11 and other responsive documents in whole or part and
that the Department had failed to release or account for other responsive documents. See Dkt. 23
at 1-2. In addition, Plaintiffs moved for in camera review of the classification markings on
approximately 90 original documents, including PSD-11, withheld under Exemption 1. See Dkt.
22 at 1-2.
On November 14, 2014, the Department submitted a second declaration accounting for
17 of the 20 outstanding responsive documents. See Dkt. 25-1. It explained that these
documents were “prepared by the CIA,” had been referred to that agency for review, and were
withheld in full under FOIA Exemption 1 as “relat[ing] directly to intelligence activities,
sources, or methods.” See id. ¶ 24. The declaration also addressed several issues raised in
Plaintiffs’ motion for summary judgment. See id. ¶ 5-14. A few days later, the Department
submitted a third declaration describing the last three outstanding responsive documents, which
had been referred to USAID. See Dkt. 27-1 ¶ 5. Two of the USAID documents were released in
full. Id. The Department redacted the third document, withholding “the names and identifying
details” of “certain local organizations that have received U.S. support.” Dkt. 27-1 ¶ 6. At that
point, the Department stated that it had “produced or Vaughned all information” responsive to
the first portion of Plaintiffs’ FOIA request. See Dkt. 27 at 3.
In December 2014, Plaintiffs filed a second motion for partial summary judgment
addressing the 20 documents referred to the CIA and USAID. See Dkt. 35. Plaintiffs also filed a
second motion for in camera review, again seeking review of the classification markings on the
documents withheld in full under Exemption 1, and in addition, seeking in camera review of the
contents of PSD-11. See Dkt. 36 at 1-2.

4

After the pending motions were fully briefed, the parties jointly notified the Court that
the Department had obtained the emails of former Secretary of State Hillary Clinton and certain
other former State Department employees (collectively, “the Clinton emails”). 2 The parties have
agreed that the Department will search the Clinton emails for documents responsive to both
portions of Plaintiff’s request. See Dkt. 42. The parties have also agreed that the additional
search of the Clinton emails does not pose any barrier to resolution of the pending motions. See
Dkt. 40. The parties confirmed this position at the September 21, 2015, status conference.
Accordingly, the Court resolves the pending motions on the understanding that issues relating to
the search of the Clinton emails and any additional responsive documents identified in that
search can be addressed at a later date.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that “an informed citizenry” is
“vital to the functioning of a democratic society, needed to check against corruption and to hold
the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978) (citation omitted). The Act requires federal agencies to produce agency records upon
public request unless the information requested falls within one of nine enumerated exemptions.
5 U.S.C. §§ 552(a)(3) & (b). Of relevance here are Exemption 1, which covers “matters that are
. . . specifically authorized under criteria established by an Executive order to be kept secret in
the interest of national defense or foreign policy and . . . are in fact properly classified pursuant
to such Executive order,” id. § 552(b)(1); Exemption 5, which covers “inter-agency or intra2

The Clinton emails are subject to production in connection with other actions in this
jurisdiction; those actions are the subject of a pending motion to coordinate filed by the United
States. See Dkts. 43, 44. The Department has also moved to stay proceedings relating to the
Clinton emails while the motion to coordinate is pending. See Dkt. 45. Here, however, the
parties agree that there is no reason to delay resolution of the motions addressed in this opinion,
with the understanding that any issues posed by the Clinton emails may be raised and addressed
at a later time.
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agency memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency,” id. § 552(b)(5); and Exemption 6, which covers “personnel
and medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy,” id. § 552(b)(6). The Court reviews the agency’s application of
FOIA exemptions de novo, and the agency bears the burden of sustaining its action. Id.
§ 552(a)(4)(B).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
56 of the Federal Rules of Civil Procedure. See, e.g., Beltranena v. U.S. Dep’t of State, 821 F.
Supp. 2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party
must demonstrate that there are no genuine issues of material fact and that he or she is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In a FOIA
action, the agency may meet its burden by submitting “relatively detailed and non-conclusory”
affidavits or declarations, SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991),
and an index of the information withheld, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir.
1973); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The reviewing court
must “‘ascertain whether the agency has sustained its burden of demonstrating that the
documents requested . . . are exempt from disclosure.’” Assassination Archives & Research Ctr.
v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers, 140 F.3d at 1080).
III. DISCUSSION
The Department asserts that it has fully satisfied its FOIA obligations with respect to the
first part of Plaintiffs’ FOIA request—that is, the request for PSD-11 and certain related
documents—because it “conducted a thorough search for responsive documents and has released
to Plaintiffs all responsive information not subject to an exemption under FOIA, including all
reasonably segregable information.” Dkt. 19 at 9. It further asserts that PSD-11 is exempt from
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disclosure on three independent grounds: under FOIA Exemption 1, as classified material, and
under FOIA Exemption 5, pursuant to the deliberative process privilege and the presidential
communication privilege. See Dkt. 19 at 19, 22-24, 27-30; Dkt. 19-2 ¶ 54. Apart from those
documents produced without redactions, the Department asserts that the other responsive
documents are exempt in whole or part under Exemptions 1, 5, and/or 6. See Dkt. 19-2 ¶¶ 32-53,
55-104; Dkt. 25-1 ¶¶ 5-24; Dkt. 27-1 ¶¶ 5-10.
Plaintiffs, for their part, cross-move for summary judgment with respect to certain
documents that they allege were improperly withheld. See Dkts. 23, 35. Plaintiffs’ principal
contention is that the Department improperly withheld approximately 90 documents, including
PSD-11, under Exemption 1. See Dkt. 23 at 15-29. In conjunction with this argument, Plaintiffs
seek in camera review of the classification markings on these documents. See Dkt. 22 at 1-2,
Dkt. 23 at 26, Dkt. 36 at 1-2. Plaintiffs also argue that PSD-11 is not covered by Exemption 5,
see Dkt. 23 at 37-48, and seek in camera review of its contents to determine whether it contains
“statements of existing policy” that are not exempt, see Dkt. 36 at 2 (emphasis in original).
Plaintiffs further argue, among other things, that the Department improperly classified or
upgraded the classification of certain other documents after receipt of Plaintiffs’ FOIA request,
see Dkt. 23 at 18-24; failed to provide affidavits from CIA or USAID officials regarding the 20
documents referred to those agencies for review, see Dkt. 35 at 6; improperly withheld certain
non-deliberative documents under Exemption 5’s deliberative process privilege, see Dkt. 23 at
44-45; improperly invoked Exemption 6 to redact identifying information about certain foreign
organizations, see Dkt. 35 at 3-6; and failed to identify or account for additional responsive
documents that are known to exist, see Dkt. 23 at 49-51, Dkt. 23-1 ¶¶ 6-11.
The Court begins with the parties’ arguments regarding the documents withheld pursuant
to Exemption 1.
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A. Exemption 1
FOIA Exemption 1 covers “matters that are . . . (1)(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). Here, the applicable order is Executive Order No. 13526 (“EO 13526”), 75 Fed.
Reg. 707 (Dec. 29, 2009), which establishes procedural and substantive requirements for
classification. EO 13526 authorizes the classification of information pertaining to “foreign
relations or foreign activities of the United States, including confidential sources,” where the
“unauthorized disclosure” of such information “could reasonably be expected to cause
identifiable or describable damage to the national security.” EO 13526 § 1.4(d); see id. § 1.2.
Most of the responsive documents withheld in whole or part by the Department,
including the document at the heart of this action, PSD-11, were withheld under Exemption 1.
As explained in the first Hackett declaration, PSD-11 is
[a] five-page signed memorandum, dated August 12, 2010, from the President of
the United States to a select and limited group of senior foreign policy advisors,
cabinet officials, and agency heads, including the Secretary of State, that
discusses sensitive national security topics concerning the Middle East and North
Africa.
Dkt. 19-2 ¶ 54. PSD-11 instructed these officials to engage in policy discussions and to report
the results back to the President. See Declaration of Daniel Sanborn, Dkt. 19-1 ¶¶ 6-9. Plaintiffs
agree that PSD-11 was “an important step in the creation of the [Administration’s] present
policy” with respect to the Middle East. See Dkt. 1 ¶ 9. The first Hackett declaration explains
that PSD-11 was withheld in full because it is a classified document, the disclosure of which
“could have the potential to inject friction into, or cause damage to, a number of our bilateral
relationships, with countries whose cooperation is necessary to U.S. national security.” Dkt. 192 ¶ 54. The other responsive documents that were withheld in whole or part under Exemption 1,
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all of which are related to PSD-11, were withheld for similar reasons. See id. ¶¶ 32-42; see also
Dkt. 25-1 ¶¶ 15-25.
According to the Department’s declarations, Hackett, who has original classification
authority, see Dkt. 19-2 ¶¶ 1, 37, “made certain” that the documents withheld under Exemption 1
were properly classified in accordance with the procedural and substantive requirements of EO
13526, id. ¶ 37; see also Dkt. 25-1 ¶¶ 15-25. Plaintiffs dispute this, questioning whether many of
the documents are “in fact properly classified.” See, e.g., Dkt. 39 at 3 (“plaintiffs have come to
doubt that the entirely-withheld documents . . . have all in fact been classified”) (emphasis in
original). Plaintiffs offer several arguments applicable to different groups of documents.
1. Classification Markings On Documents Withheld In Full
Plaintiffs’ principal argument is that the documents withheld in full under Exemption 1,
including PSD-11, may not bear the required classification markings. See Dkt. 23 at 26-27, Dkt.
33 at 7-12; Dkt. 39 at 3. Plaintiffs do not cite any evidence that these documents are missing
markings, instead relying on the argument that other documents withheld in part under
Exemption 1 are missing classification markings and, accordingly, the same is likely to be true of
the documents withheld in full. See Dkt. 23 at 26 (describing the Vaughn index as “unreliable on
this point”) (emphasis in original). The Department disputes this, noting that some of the partlywithheld documents were properly marked, see Dkt. 25 at 25, and clarifying that other partlywithheld documents were originally classified but erroneously marked as unclassified, see id. at
26; Dkt. 25-1 ¶ 8. As explained in Part A.4 below, the Court concludes that the Department’s
declarations adequately support the conclusion that the partly-withheld documents are, in fact,
classified and entitled to protection. For present purposes, however, the Court need not resolve
that issue. Given the “presumption of good faith” that attaches to agency declarations in FOIA
actions, see, e.g., SafeCard Servs., Inc., 926 F.2d at 1200 (citation omitted), it is sufficient to
9

conclude that the issues raised with respect to the partly-withheld documents do not support an
inference that the Vaughn index as a whole is “unreliable” or that the documents withheld in full
are not properly marked.
In Plaintiffs’ view, the Department’s failure to offer additional information about the
documents’ original classification status (such as the classification date and the name of the
original classifier) casts additional doubt on the representations in the Hackett declarations. See
Dkt. 39 at 3; see also Dkt. 23 at 33 (asking “who classified [PSD-11], and thus, who may
declassify it?”) (emphases in original). But the Department has no obligation to supply the cited
information. EO 13526 does not “require that a classifying authority indicate ‘the person who
classified’ the information in question” or “when [that] information [was] originally classified.”
Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 166-67 (D.D.C. 2013). To be sure, “[i]f the
agency’s release or other representations suggest that information may have been classified after
the relevant FOIA request was submitted, the agency has the burden of coming forward with
evidence to establish either (1) the information was classified prior to the FOIA request; or (2)
the agency satisfied the requirements” applicable to post-request classifications, which are set
forth in EO 13526 § 1.7(d). Id. at 167. But where the record does not indicate that the
documents in question were classified after the FOIA request, the Department has no such
obligation. See id. Because the Department has offered declarations attesting that the
classification criteria in EO 13526 are satisfied, it is Plaintiffs’ burden to raise a genuine question
of fact regarding the documents’ classification. See id. Plaintiffs’ “doubt” on this score, see Dkt.
39 at 3, is insufficient.
In the absence of record evidence for their missing-markings theory, Plaintiffs ask the
Court to conduct an in camera review of the documents withheld in full. Dkt. 22 at 1-2; Dkt. 36

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at 1-2; see also Dkt. 23 at 54. 3 District courts have the option to conduct in camera review
where “needed in order to make a responsible de novo determination on [Defendant’s] claims of
exemption,” Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978), but the FOIA “by no means
compels the exercise of that option,” Juarez v. Dep’t of Justice, 518 F.3d 54, 59-60 (D.C. Cir.
2008). “When the agency meets its burden by means of affidavits, in camera review is neither
necessary nor appropriate.” Hayden v. NSA/CSS, 608 F.2d 1381, 1387 (D.C. Cir. 1979); see also
Juarez, 518 F.3d at 60.
In this case, in camera review is neither necessary nor appropriate. In camera review is a
“last resort,” see Hayden, 608 F.2d at 1387, see also Quinon v. FBI, 86 F.3d 1222, 1228 (D.C.
Cir. 1996), not a fishing expedition. In the absence of any indicia of bad faith or
misrepresentation on the agency’s part, Plaintiffs’ speculation about the withheld documents is
insufficient to justify in camera review. If in camera review were justified solely on the basis of
Plaintiffs’ “doubt,” it is difficult to imagine any FOIA action in which such review would not be
warranted.
In addition, Plaintiffs do not offer any reason to believe that the omission of unspecified
markings from the withheld documents would, in these circumstances, “reflect adversely” on the
documents’ classification. See Judicial Watch, Inc. v. U.S. Dep’t of Defense, 715 F.3d 937, 944
(D.C. Cir. 2013) (holding that in light of the agency’s affidavits, omission of certain
classification markings did not require in camera review); see also Lesar v. U.S. Dep’t of Justice,
636 F.2d 472, 485 (D.C. Cir. 1980) (observing that “the consequences of particular violations
may vary” and that some procedural violations “may be insignificant, undermining not at all the
3

Plaintiffs also ask the Court to review PSD-11’s contents for “statements of existing policy” in
order to determine whether PSD-11 is subject to the deliberative process privilege under
Exemption 5. See Dkt. 36; Dkt. 39 at 4. As discussed below, the Court does not reach the
parties’ arguments with respect to the application of Exemption 5 to PSD-11. Accordingly, this
aspect of Plaintiffs’ request is denied.
11

agency’s classification decision”). In Judicial Watch, for example, the Court of Appeals held
that in light of a declaration from an original classification authority asserting that documents
were “correctly classified,” “any failure relating to application of the classification guide” that
may have resulted in the omission of required markings from those documents “would not reflect
adversely on the agency’s overall classification decision.” 715 F.3d at 944. In light of the
Hackett declarations, which confirm that the withheld documents are properly classified pursuant
to EO 13526, the Court is not persuaded that the absence of unspecified markings would affect
the application of Exemption 1 to those documents. 4 Plaintiffs’ motions for in camera review
are, accordingly, DENIED.
2. PSD-11
Plaintiffs offer a number of arguments directed at whether PSD-11 is properly classified.
They first contend that “administration officials” discussed “PSD-11 and the results of the study
it mandated” with “members of the media.” Dkt. 23 at 33-34. Because administration “officials
. . . would not discuss classified information” with members of the media, Plaintiffs argue, PSD11 must have been “no longer classified” by that time (i.e., approximately 2011). Id. at 34; see
also id. at 36 (asking “how White House officials were empowered to discuss an allegedly
classified document with the journalists”). The cited evidence, however, does not indicate that
administration officials discussed the contents of PSD-11, and it is not contended that the
existence of PSD-11 was classified. Unquestionably, some information about the
Administration’s foreign policies in the Middle East and North Africa was not classified, and
there is no indication that the cited discussions went beyond such information. Plaintiffs do not

4

To the extent Plaintiffs rely on the absence of markings not required by EO 13526 itself, the
Court notes that EO 13526 provides that “[i]nformation assigned a level of classification under
[EO 13526] or predecessor orders shall be considered as classified at that level of classification
despite the omission of other required markings.” EO13526 § 1.6(f).
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offer declarations from participants in these discussions, see id. at 34 & n.13, and the materials
they have submitted do not support a contrary inference.
Plaintiffs next cite a 2011 Washington Post article, which they assert “included what
appear to be quotations of phrases from [PSD-11].” Dkt. 23 at 34. But, as the Department notes,
“[n]owhere in the article does the author suggest that he obtained an authorized copy of the
properly classified PSD-11.” Dkt. 25 at 16. Absent such evidence, there is no basis for
Plaintiffs’ contention that the article demonstrates that the document was never, in fact,
classified, and there is no basis to conclude that the government has waived the right to assert
Exemption 1. Plaintiffs are correct that, “[i]f the government has officially acknowledged
information, a FOIA plaintiff may compel disclosure of that information even over an agency’s
otherwise valid exemption claim.” ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 620 (D.C. Cir.
2011); see Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). “For information to qualify as
‘officially acknowledged,’” however, “it must satisfy three criteria: (1) the information requested
must be as specific as the information previously released; (2) the information requested must
match the information previously disclosed; and (3) the information requested must already have
been made public through an official and documented disclosure.” ACLU, 628 F.3d at 620-21;
see also Wolf, 473 F.3d at 378. Here, there is no evidence that the quoted language actually
appeared in PSD-11, and there is no basis to conclude that, even if it did, any disclosure was
authorized. “[A]n anonymous leak is presumptively an unofficial and unsanctioned act.”
Judicial Watch, Inc. v. Dep’t of Justice, 898 F. Supp. 2d 93, 108 (D.D.C. 2012); see also ACLU,
628 F.3d at 620, 625; cf. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (“‘[I]t is one
thing for a reporter or author to speculate or guess that a thing may be so or even, quoting
undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it

13

officially to say that it is so.’”) (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th
Cir. 1975)).
More generally, there is no indication here that the government has officially disclosed or
acknowledged PSD-11’s contents. Even assuming that government officials discussed the
policies resulting from PSD-11 with the media, see Dkt. 23 at 33-34, an official disclosure of
information “similar” to the exempted information is not enough, see Wolf, 473 F.3d at 378
(“[p]rior disclosure of similar information does not suffice”); ACLU, 628 F.3d at 625 (“we have
repeatedly rejected the argument that the government’s decision to disclose some information
prevents the government from withholding other information about the same subject”); Trea
Senior Citizens League v. U.S. Dep’t of State, 923 F. Supp. 2d 55, 65 (D.D.C. 2013) (rejecting
the argument that “once a government agency publicly releases any information about a
particular issue, that agency has waived its ability to later withhold any other information related
to the same issue”).
Plaintiffs dispute the need for continuing classification of PSD-11, questioning whether
“release of PSD-11 . . . can make things any worse than they are now . . . .” Dkt. 23 at 32-36.
Although “[n]o information may remain classified indefinitely,” EO 13526 § 1.5(d), the passage
of four years is far from forever, and the Department has met its burden by offering a “logical”
or “plausible” explanation for the continuing classification of PSD-11, see Judicial Watch, 715
F.3d at 941. In particular, the Hackett declaration asserts that disclosing PSD-11 would “risk . . .
harm to national security,” despite the passage of time, and that “the risk of harm . . . is
exacerbated by the political and security instability in the region in question.” See Dkt. 19-2
¶ 54. The declaration explains that
[t]he disclosure of the information in this document at this time could have the
potential to inject friction into, or cause damage to, a number of our bilateral
relationships with countries whose cooperation is important to U.S. national
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security, including some in which public opinion might not currently favor close
cooperation with the United States.
Id. Agency declarations “concerning the details of the classified status of the disputed record[s]”
are accorded “substantial weight” in national security FOIA cases, see ACLU, 628 F.3d at 619,
and Plaintiffs have not identified any basis for the Court to “second-guess” the Department’s
account, see id. Plaintiffs’ assertion that the disclosure of PSD-11 would not “make things any
worse than they are now,” Dkt. 23 at 32-36, merely constitutes a disagreement on a matter of
foreign policy and national security that is committed to the political branches—and not to
Plaintiffs or the Court.
Finally, Plaintiffs contend that the Hackett declarations are deficient in two respects.
First, Plaintiffs argue, the declarations provide only “formulaic” and “conclusory” justifications
for withholding PSD-11 and other documents. See Dkt. 23 at 29-32. The Court disagrees. This
is not an instance where the agency’s declarations merely assert, without explanation or context,
that information is exempt or that its disclosure would impair the agency’s functions. See, e.g.,
Founding Church of Scientology, Inc. v. NSA, 610 F.2d 824, 831 (D.C. Cir. 1979). The Court of
Appeals has held that a similar “level of detail . . . [is] sufficiently specific to qualify for
withholding under Exemption 1 in light of the substantial weight owed agency explanations in
the context of national security.” See Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir.
2009). “If an agency’s statements supporting exemption contain reasonable specificity of detail
as to demonstrate that the withheld information logically falls within the claimed exemption and
evidence in the record does not suggest otherwise, as is the case here, the court should not
conduct a more detailed inquiry to test the agency’s judgment and expertise or to evaluate
whether the court agrees with the agency’s opinions.” Id. That is the case here.
Second, Plaintiffs contend that the Hackett declarations fail to indicate that, with respect
to each document withheld under Exemption 1, the Department balanced the public interest in
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disclosure of that document against the need to withhold it. See Dkt. 23 at 27-28. They cite EO
13526 § 3.1(d), which states, “[i]n some exceptional cases . . . the need to protect [classified]
information may be outweighed by the public interest in disclosure of the information.” This
argument is also unpersuasive. As Plaintiffs concede, Hackett asserts that the criteria in EO
13526 have been satisfied. Plaintiffs cite no authority requiring that an agency expressly confirm
that it has conducted a balancing test with respect to each document withheld under Exemption
1, and the Court is aware of none. Nor would such a per se requirement be consistent with the
language of EO 13526 § 3.1. The declassification of information under this provision is
discretionary; the provision applies, by its terms, only in “exceptional cases,” and it does not
alter the criteria for classification. See id.
Because the Court concludes that the Department has adequately justified its application
of Exemption 1 to PSD-11, the Court does not reach the parties’ arguments regarding the
application of the deliberative process privilege and presidential communications privilege to
that document.
3. Documents Classified After The FOIA Request
Plaintiffs next argue that certain documents were not designated as classified until after
receipt of Plaintiffs’ FOIA request. See Dkt. 23 at 18-24; Dkt. 23-2 ¶ 6; Dkt. 33 at 13-18.
According to Plaintiffs, the Department failed to comply with the more stringent requirements
applicable to the classification (or upgrade of classification) of documents in such circumstances.
Id.; see EO 13526 § 1.7(d).
The Department does not dispute that it classified or upgraded the classification of certain
documents subsequent to Plaintiffs’ request. Specifically, Deputy Assistant Secretary for Global
Information Services Margaret Grafeld classified two formerly unclassified documents
(C05518307 and C05424215). See Dkt. 19-2 ¶ 38; Dkt. 25-1 ¶¶ 10-11; Dkt. 23 at 18. In
16

addition, Grafeld “upgraded” the classification of emails that had been previously marked
“unclassified when separated” from their classified attachments (C05423595, C05423598,
C05424194, C05424200, C05424216, C05424217, C05424218, and C05424222). See Dkt. 25 at
29 n.4; Dkt. 25-1 ¶¶ 6-8. 5
Because these documents were “classified after the relevant FOIA request was
submitted,” the Department must show that “the agency satisfied the requirements of [EO 13526]
§ 1.7(d).” Nat’l Sec. Counselors, 960 F. Supp. 2d at 167. Among other things, section 1.7(d)
provides that previously undisclosed responsive information may be classified after the receipt of
a FOIA request “only if such classification . . . is accomplished on a document-by-document
basis with the personal participation or under the direction of the agency head, deputy agency
head, or the senior agency official designated under section 5.4 of this order.” EO 13526
§ 1.7(d) (emphasis added).
Plaintiffs contend that Grafeld lacked the authority to make such classifications because
she is not “the agency head, deputy agency head, or the senior agency official designated under
section 5.4.” Id.; see Dkt. 23 at 18-21; Dkt. 33 at 13-18. The Department responds that the
designated “senior agency official” is the Under Secretary of State for Management, see Dkt. 192 ¶ 38, 22 C.F.R. § 9.3, who has “authoriz[ed] and direct[ed]” Grafeld to classify information in
accordance with § 1.7(d), see Dkt. 25 at 29 (“the senior agency official designated under section
5.4 . . . unquestionably directed Ms. Grafeld to perform the document review contemplated by
1.7(d)”); Bureau of Administration; Classification Authority Acting Under the Direction of the

5

The Department maintains that these emails “were and remain properly classified in the first
instance, notwithstanding that they may have been improperly marked by the individual
senders.” Dkt. 25-1 ¶ 8; see also id. ¶¶ 6-7. According to the Department, Grafeld upgraded the
classifications merely “to avoid any ambiguity” about the documents’ status. Id. ¶ 8. For
present purposes, the Court assumes that the emails were previously unclassified and were
classified by Grafeld pursuant to EO 13526 § 1.7(d).
17

Senior Agency Official, 64 Fed. Reg. 7227 (Feb. 12, 1999) (providing that the Acting Under
Secretary for Management, Patrick F. Kennedy, “authorize[s] and direct[s] the Deputy Assistant
Secretary for Records and Publishing Services” (now Global Information Services) to classify
information pursuant to the analogous provision in the preceding Executive Order); see also
Classified Nat’l Security Information, 60 Fed. Reg. 19825, § 1.8(d) (Apr. 17, 1995) (“EO
12958”). In Plaintiffs’ view, however, this “delegation” is a nullity. See Dkt. 23 at 19 & n.2.
They argue that “the senior agency official designated under” § 5.4 may not delegate his
authority to classify or upgrade document classifications under § 1.7(d), because § 1.7(d) “makes
no provision for this authority to be delegated.” Dkt. 23 at 19. Plaintiffs also argue that
delegation is contrary to the purpose of § 1.7(d)—that is, to ensure accountability in post-request
classification decisions by limiting the number of agency personnel involved. Id.
The Court is persuaded that § 1.7(d) limits post-request classification authority in order to
prevent abuse and to ensure that a senior government official takes responsibility for intervening
classification decisions that thwart otherwise valid FOIA requests. This conclusion is supported
by a comparison of § 1.7(d) with § 1.3 of EO 13526. Section 1.3 authorizes officials to
“delegate” original classification authority without additionally requiring that those officials
personally participate in or direct each exercise of that classification authority. E.g., EO 13526
§ 1.3(b)(2) (providing that “‘Top Secret’ original classification authority may be delegated only
by the President, the Vice President, or an agency head or official designated” by the President).
The Court also concludes, however, that the delegation to Grafeld was, on its face,
consistent with this stringent construction of § 1.7(d). Section 1.7(d) requires that post-request
classification or upgrade decisions be made on a “document-by-document basis with the personal
participation or under the direction of,” among others, “the senior agency official designated
under section 5.4 of” EO 13526. Here, the designated “senior agency official”—the Under
18

Secretary of State for Management, see 64 Fed. Reg. 7227—directed Grafeld to act as “the
official to classify information on a document-by-document basis” under his “direction,” and to
“keep [him] apprised of actions taken under this authority,” id. Thus, consistent with § 1.7(d),
Grafeld was authorized to make document-by-document classification determinations subject to
the “direction” of the designated “senior agency official,” the Under Secretary of State for
Management.
Other courts in this jurisdiction have rejected arguments indistinguishable from
Plaintiffs’. In Mobley v. CIA, 924 F. Supp. 2d 24 (D.D.C. 2013), the court concluded that the
agency had “complied with Executive Order 13526 § 1.7(d) when it established that Margaret
Grafeld . . . , ‘personally considered’ the withheld portions” of the documents at issue and
determined that their classification needed to be upgraded. See id. at 58; see also Darui v. Dep’t
of State, 798 F. Supp. 2d 32, 42 (D.D.C. 2011) (“Grafeld’s declaration establishes the
department’s compliance with section 1.7(d)”); Muttitt v. Dep’t of State, 926 F. Supp. 2d 284,
303-04 (D.D.C. 2013) (requiring additional information to confirm that Grafeld reviewed and
classified the documents at issue). Plaintiffs fail to address or distinguish these decisions.
Accordingly, the Court agrees with the Department that Grafeld, who made the
classification decisions at issue here, see Dkt. 25-1 ¶¶ 8, 10, 11; Dkt. 19-2 ¶ 38, was authorized
to classify documents pursuant to EO 13526 § 1.7(d), to the extent she acted consistent with that
order’s requirements and the terms of the Under Secretary’s authorization, see 64 Fed. Reg.
7227. The next question is whether she satisfied those requirements when she made the
classification decisions at issue here. Plaintiffs argue that Grafeld should be required to explain
the timing of the decisions, that is, “what changed” to justify classification of previously
unclassified documents. See Dkt. 23 at 19. The Court disagrees; EO 13526 § 1.7 imposes no
such requirement and Plaintiffs do not cite any authority that does impose such a requirement.
19

On the other hand, the Court cannot confirm on the present record that Grafeld personally
reviewed each document at issue to accomplish the “document-by-document” determination
contemplated by § 1.7(d) or that she kept the Under Secretary “apprised of actions taken under
[that] authority.” See 64 Fed. Reg. 7227. The Department did not submit any declarations from
Grafeld, and although the Hackett declarations assert that Grafeld made the classification
decisions, they only confirm that Grafeld personally reviewed one of the documents in question
(C05518307), see Dkt. 19-2 ¶ 38, while asserting that the other documents were reviewed by
Hackett or “the Department,” see Dkt. 19-2 ¶ 98; Dkt. 25-1 ¶¶ 8, 10, 11. The Department does
not contend that Hackett is authorized to classify information under § 1.7(d), and Hackett does
not attest that the relevant classifications were all based on a document-by-document review
conducted by a person authorized to make such classifications, see Muttitt, 926 F. Supp. 2d at
303-04. Finally, although the Under Secretary “direct[ed]” that Grafeld act as the classifying
official, see 64 Fed. Reg. 7227, the declarations do not indicate whether the Under Secretary was
“apprised of actions taken under [that] authority” so that he could exercise oversight of those
actions, see id. Absent some opportunity for actual oversight by the Under Secretary, the Court
concludes that there would be no meaningful difference between acting at the Under Secretary’s
direction and acting pursuant to a delegation of his authority. Such a mere difference in
nomenclature would not serve the purpose of the limited post-FOIA-request classification
authority contained in § 1.7(d). Moreover, the authorization that Grafeld received from the
Under Secretary required that he be kept “apprised” of the actions taken, and thus conditioned
the exercise of Grafeld’s authority on this requirement.
The Department may, within 60 days, submit additional declarations confirming that
Grafeld previously reviewed—or has now reviewed—each document classified in accordance

20

with § 1.7(d) and that she previously apprised—or has now apprised—the Under Secretary of her
decisions.
4. Documents Withheld In Part
Plaintiffs argue that a number of documents were withheld in part under Exemption 1
even though they were not marked classified or were marked “unclassified.” See Dkt. 23 at 1416; Dkt. 23-2 ¶¶ 3-4. In particular, Plaintiffs cite certain cover emails that were unmarked or
marked as unclassified when separated from their classified attachments. See Dkt. 23 at 15-16;
see also Dkt. 25-1 ¶¶ 6-8 (2d Hackett Decl.), and certain emails from National Security Council
(“NSC”) staff that Plaintiffs allege were missing appropriate markings, see Dkt. 23 at 15-16.
The Department responded by providing additional explanation for the withholding of the
cited documents. See Dkt. 25-1 ¶¶ 7-9. As already discussed, the second Hackett declaration
asserts that Grafeld upgraded the cover emails’ classifications, and in any event, “the marking of
[the cover emails] by their authors as wholly unclassified [when separated from their
attachments] was a marking error, and not a classification decision,” id. ¶ 7, and “these
documents were and remain properly classified in the first instance,” id. ¶ 8. The declaration
further asserts that the NSC emails were properly designated as classified marked “[SECRET,
Record],” which “is the manner in which the NSC marks classified email correspondence.” Id.
¶ 9.
With respect to the emails for which the Department deemed upgraded classification
necessary, as discussed above, the Department may submit additional information to confirm that
those documents were—or have now been—correctly classified pursuant to § 1.7(d). Assuming
such information is provided, the Court is satisfied that Exemption 1 applies. With respect to the
NSC emails, Hackett’s confirmation that the documents were properly designated as classified in
the first instance suffices to cure any procedural defects in their marking. See Judicial Watch,
21

Inc., 715 F.3d at 943-44; see also Leopold v. Dep’t of Justice, 2015 WL 5297254, at *11 (D.D.C.
Aug. 12, 2015) (“because [the declarant] holds original classification authority, and has
determined that the document in question is currently and properly classified, the derivative
classification requirements of [section] 2.1 are irrelevant to this case”). Plaintiffs have not
offered any reason to believe that the markings on these documents, even if incorrect, cast doubt
on their classification. Based upon the Court’s review, it appears that this accounts for all the
partly-withheld documents challenged by Plaintiffs as originally unmarked or marked
unclassified. See Dkt. 23 at 53-54.
Plaintiffs next challenge the Department’s decision to redact a number of email subject
lines and titles. See Dkt. 23 at 24-25, 53; Dkt. 23-2 ¶¶ 7-8. Plaintiffs argue that regulations
issued by the Information Security Oversight Office (“ISOO”) disfavor the classification and
redaction of email subject lines and attachment titles. See Dkt. 23 at 24 (citing ISOO guidance
and 32 C.F.R. § 2001.23). But Plaintiffs do not identify any authority that prohibits either type
of redaction. To the contrary, the guidance cited by Plaintiffs acknowledges that the title of an
attachment may, in some instances, be classified. See Dkt. 23 at 25, Dkt. 23-2 at 113 (“most
titles should be unclassified, but this example shows an attachment with a classified title”).
Plaintiffs contend that as a general matter, email subject lines and attachment titles are too brief
to require classification or redaction. But they cite no authority for the proposition that
Exemption 1 does not apply to brief portions of text or that such redactions are subject to
heightened review. The Department has provided explanations for the redacted subject lines and
attachment titles. See Dkt. 19-2 ¶¶ 96, 98; Dkt. 25-1 ¶ 7 & n.4. Plaintiffs’ speculation that these
redactions were nonetheless unwarranted is insufficient to demonstrate a dispute of material fact.
Plaintiffs also argue that certain information was withheld even though it appears to be
the same as information disclosed elsewhere. See Dkt. 23 at 48; Dkt. 23-1 at ¶ 13. The second
22

Hackett declaration asserts, however, that “I have reviewed each of the documents Plaintiffs
challenge . . . and verified that the redacted content of these documents was not previously
released.” Dkt. 25-1 ¶ 7 n.2. Once again, Plaintiffs’ argument fails because they offer no basis,
other than speculation, to disbelieve the Hackett declaration. That speculation is insufficient to
rebut the “presumption of good faith” that attaches to agency declarations in FOIA actions. See
SafeCard Servs., 926 F.2d at 1200.
Finally, Plaintiffs challenge the redaction of notations in portion-marked paragraphs that
indicate the level of classification of that paragraph. See Dkt. 23 at 31; Dkt. 23-2 ¶¶ 9-10
(challenging redactions in C05518351 and C05518358). In the cited documents, entire
paragraphs have been redacted together with the associated portion markings. See Dkt. 23-2 at
41-45. The portion markings are not in isolation responsive to Plaintiffs’ request, but the thrust
of Plaintiffs’ argument, even if not made explicit, appears to be that the redacted portion
markings would reveal that the redacted paragraphs are not classified and accordingly not
exempt from disclosure. The Department responds that the notations or portion markings were
not disclosed independent of the associated paragraphs because the markings would not be
meaningful in isolation (and could be misleading), and in any event, Hackett has confirmed that
the redacted information is properly classified and that no additional information is segregable.
See Dkt. 25-1 ¶ 12 (“these documents were originally designated, and remain currently
designated, SECRET/NOFORN”); Dkt. 25 at 32-33.
The Court concludes that in light of the mismarking issues raised to date, it is fair for
Plaintiffs to request access to the actual portion markings in these two documents. Even if the
Department is correct that the portion markings are minimally meaningful, they are concededly
not classified, see Dkt. 25-1 ¶ 12, and disclosure of the markings will not be unduly burdensome.
The Department’s only other argument is that the isolated markings “may be misleading,” see
23

Dkt. 25 at 33, but it does not explain why. Accordingly, the Department is directed to disclose
the unclassified portion markings redacted from these two documents (C05518351 and
C05518358).
5. Documents Referred To CIA And USAID
Plaintiffs argue that with respect to the 18 documents that were withheld in whole or part
after consultation with the CIA and USAID, the Department has not met its burden because
“neither the CIA nor [the] USAID has submitted sworn declarations with statements from
personal knowledge.” Dkt. 35 at 6. Plaintiffs contend that the Department is required to provide
declarations from officials at CIA and USAID to substantiate these decisions. Id. Although the
CIA documents were withheld in full under Exemption 1, while the USAID document was
withheld in part under Exemption 6, Plaintiffs make the same argument with respect to both
agencies.
There appear to be two aspects to Plaintiffs’ argument. First, Plaintiffs argue that the
Department is “required” to submit declarations from the agencies that “originated” the
documents. See Dkt. 35 at 6-7. The Court is not aware of any authority holding that an
originating agency is “required” to submit a declaration to justify another agency’s withholding
decision. The only authority Plaintiffs cite for this “requirement” is the Department of Justice’s
Guide to the FOIA (“FOIA Guide”), which states that “‘ordinarily’” the referring agency
“‘includ[es] with its own court submissions, declarations from those originating agencies which
address any withholdings made in the referred records.’” Dkt. 35 at 7 (quoting FOIA Guide); see
also Dkt. 35 at 16. The FOIA Guide is not legally binding, and in any event, the quoted
language does not require agencies to submit declarations from officials of other agencies with
which they have consulted, even if they “ordinarily” do so, see id.; see also Dkt. 39 at 8.
Plaintiffs also argue that EO 13526, by requiring agencies to “refer copies of any request and the
24

pertinent documents to the originating agency,” see id. § 3.6(b), impliedly requires an originating
agency to provide declarations substantiating the withholding decision, see Dkt. 39 at 6-7. The
Court does not agree; the cited language only requires referral, and it is undisputed that the
documents were referred.
Second, Plaintiffs contend that Hackett is “incompetent to submit a Rule 56 declaration
justifying those [other] agencies’ withholding decisions,” and that insofar as his declarations rely
on information obtained through consultation with other agencies they are “hearsay.” Dkt. 35 at
8. But courts in this jurisdiction have long held that FOIA declarants may rely on “information
they have obtained in the course of their official duties.” See, e.g., Barnard v. DHS, 598 F.
Supp. 2d. 1, 19 (D.D.C. 2009); Cucci v. DEA, 871 F. Supp. 508, 513 (D.D.C. 1994); Inst. for
Policy Studies v. CIA, 885 F. Supp. 2d 120, 133 (D.D.C. 2012). The Court agrees with the
Department that Hackett—an original classification authority who is familiar with FOIA
procedures and has reviewed the documents in question—may make a decision based in part on
information obtained in the course of his official duties without triggering a need for additional
declarations from the individuals he consulted.
To be sure, agencies must provide the reviewing court with sufficient information to
justify their withholding decisions. In some situations, that may require additional declarations
from other agencies. But Plaintiffs do not identify any information essential to the Court’s
review that can only be obtained from CIA or USAID officials. Hackett, moreover, did not
merely relay withholding determinations made by another agency without providing an
explanation for those determinations. He made the determination to apply Exemption 6 “in
consultation with” USAID, see Dkt. 27-1 at ¶ 6, and he “concu[rred] in the [CIA’s]
determination” that the CIA documents related to intelligence activities, on which basis the

25

documents were withheld under Exemption 1, see Dkt. 25-1 ¶ 24. The Department has met its
burden.
*

*

*

With the exception of the need for further information relating to the Department’s postrequest classification decisions, the Court concludes that the Department has adequately
supported its application of Exemption 1 to the documents withheld under that exemption,
including PSD-11. The Court next considers the parties’ arguments with respect to other
documents withheld under Exemptions 5 and 6.
B. Exemption 5: Deliberative Process Privilege
FOIA Exemption 5 covers “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), and “encompasses the privileges that the Government could assert in civil
litigation against a private litigant,” including “the deliberative process privilege” and “the
presidential communications privilege,” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir.
2014). In addition to PSD-11, the Department has invoked the deliberative process privilege as a
basis for withholding numerous documents relating to PSD-11 in whole or part. Plaintiffs argue,
however, that PSD-11 and approximately 20 other documents are not exempt. See Dkt. 23 at 4445, 54. Because the Court concludes that PSD-11 was properly withheld under Exemption 1, it
need not reach the parties’ arguments with respect to that document. For the reasons explained
below, the Court concludes that Exemption 5 applies to the other documents challenged by
Plaintiffs.
“[T]he deliberative process privilege covers deliberative, pre-decisional communications
within the Executive Branch,” Nat’l Sec. Archive, 752 F.3d at 462, including “‘documents
reflecting advisory opinions, recommendations and deliberations comprising part of the process
26

by which governmental decisions and policies are formulated,’” Loving v. U.S. Dep’t of Defense,
550 F.3d 32, 38 (D.C. Cir. 2008) (quoting U.S. Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001)). “To be pre-decisional, the communication (not
surprisingly) must have occurred before any final agency decision on the relevant matter. . . .
The term ‘deliberative’ in this context means, in essence, that the communication is intended to
facilitate or assist development of the agency’s final position on the relevant issue.” Nat’l Sec.
Archive, 752 F.3d at 463 (citations omitted).
The Hackett declaration explains that PSD-11 “directed certain high-ranking officials,
including officials at the Department, to assist in policy deliberations on sensitive national
security topics,” which in turn prompted agency “deliberations about how best to respond to the
President’s inquiry,” “required relevant subject-matter experts within the Department to candidly
evaluate particular foreign policy approaches, weigh various foreign policy considerations, and
make recommendations for policy priorities,” and “precipitated an internal dialogue among
officials about the best way to respond to the inquiry set forth in the PSD.” Dkt. 19-2 ¶ 45; see
also id. ¶ 47. “Collectively, this internal evaluation, commentary, and dialogue is
‘predecisional,’ i.e., antecedent to the adoption of a policy, and (b) deliberative, i.e., reflective of
the give-and-take of the consultative process, with regard to the shaping of the Department’s
response to the policy inquiry set forth in the PSD.” Dkt. 19-2 ¶ 48. The Department withheld
numerous documents produced during this process in whole or part under Exemption 5. See
generally Dkt. 19-2 ¶¶ 55-104.
Plaintiffs argue that approximately 20 of these documents are not “deliberative” in
nature, or at least, not wholly so, because they contain factual information. They point to four
paragraphs in the Department’s Vaughn index indicating that certain documents withheld in full
or in part under Exemption 5, such as a “planning document” and draft papers, included factual
27

or administrative information. See Dkt. 23 at 45 (citing Dkt. 19-2 ¶¶ 55, 80, 84, 99); id. at 54.
Notably, the documents described in these four paragraphs were all classified. Indeed, all the
documents challenged by Plaintiffs that were withheld in full under Exemption 5 were also
withheld in full under Exemption 1, see id.; Dkt. 19-2 ¶¶ 55, 80, 84, including the “planning
document” and two draft papers cited in Plaintiffs’ briefs, see Dkt. 23 at 45. As the Court has
already upheld the Department’s application of Exemption 1 to the documents withheld in full
under Exemption 1 (with the exception of the documents classified subsequent to Plaintiffs’
FOIA request, which are not at issue here), see supra, Part A, the Court need not reach the
parties’ additional arguments with respect to the documents withheld in full under Exemption 5.
All but two of the challenged documents withheld in part under Exemption 5 were also
withheld in part under Exemption 1, see Dkt. 23 at 54; Dkt. 19-2 ¶¶ 99, 101, including the email
exchanges cited in Plaintiffs’ brief, see Dkt. 23 at 45 (citing Dkt. 19-2 ¶ 99). As it is unclear
whether the same information was withheld under both exemptions, however, the Court will
consider the application of Exemption 5 to all these challenged documents. They include “interagency email exchanges concerning the scheduling [of] meetings . . . and the review of papers
produced in connection with the requests made by the President in PSD-11,” Dkt. 19-2 ¶ 99, and
“email exchanges concerning various aspects of the deliberations undertaken in response to PSD11,” id. ¶ 101. The documents were withheld in part because release would “chill the open and
frank exchange of idea and recommendations” within the Administration during the development
of “strategic policy guidance.” Id. ¶¶ 99, 101. Plaintiffs do not dispute that these emails were
part of a deliberative policy development process, but contend that they should have been
released in full because they are not themselves deliberative. Dkt. 23 at 45.
As a threshold matter, the Hackett declaration establishes that these emails were reviewed
for reasonably segregable non-exempt material and that all such material was released. Dkt. 1928

2 ¶¶ 99, 101. But Plaintiffs appear to assert that there cannot be any deliberative aspect to the
emails, and they cannot be withheld, even in part, because the declarations do not describe the
emails as “subjective utterances.” Dkt. 23 at 45. Even assuming the material withheld under
Exemption 5 was factual, which is not at all clear, Plaintiffs’ reading of Exemption 5 is too strict.
“While it is true that ‘purely factual material usually cannot be withheld under Exemption 5,’ it
can be where ‘it reflects an exercise of discretion and judgment calls’ and where its exposure
would enable the public to probe an agency’s deliberative processes.” Leopold v. CIA, 2015 WL
1445106, at *6 (D.D.C. Mar. 31, 2015) (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of
State, 641 F.3d 504, 513 (D.C. Cir. 2011)) (alterations omitted). “[T]he legitimacy of
withholding does not turn on whether the material is purely factual in nature . . . but rather on
whether the selection or organization of facts is part of an agency’s deliberative process.”
Ancient Coin Collectors Guild, 641 F.3d at 513. Plaintiffs have not given the Court any basis to
disturb the Department’s determination that the material withheld under Exemption 5 would
“reveal” inter-agency deliberative processes or “chill the open and frank exchange of ideas”
within the Administration. See Dkt. 19-2 ¶¶ 99, 101; see also id. ¶¶ 46-49. Accordingly, the
Court upholds the application of Exemption 5 to the challenged documents.
C. Exemption 6
FOIA Exemption 6 applies to “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The Department withheld portions of approximately 20 documents pursuant to
Exemption 6. See Dkt. 19-2 ¶ 20; Dkt. 27-1 ¶¶ 5, 6. Plaintiffs challenge only one of those
documents: a 13-page document originating with USAID (C05518306), which was redacted to
remove “the names and identifying details of certain local organizations that have received U.S.

29

support in order to protect the personal privacy interests of individuals who work for those
organizations.” Dkt. 27-1 ¶ 6 (Third Hackett Decl.).
The third Hackett declaration explains that the local organizations named in the redacted
document are active in countries “where the public or the host government may not favor
cooperation with the United States.” Id. ¶¶ 6, 8. Thus,
[i]t is the Department’s judgment (in consultation with USAID) that there is a
reasonable likelihood that the country involved, or individuals within that country,
would take retributive measures against individuals within these organizations for
their cooperation with the United States, if that cooperation were to become
public. Given the nature of the particular programs involved, including their size,
release of the names of the organizations or other identifying details, including
descriptions of the organizations and their programs, would be tantamount to
releasing the identities of the individuals involved, who remain located in the host
country. Such revelation could subject these individuals to intimidation,
harassment, or violence, possibly including death, if the information were to be
made public. The significant privacy interests of these individuals outweigh any
public interest in disclosure of the limited information redacted.
Id. ¶ 6.
To determine whether Exemption 6 applies, a reviewing court must first ask whether the
records are “similar” to “personnel and medical files” within the meaning of Exemption 6, that
is, whether the information requested “applies to a particular individual.” New York Times Co. v.
NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc). If this “minimal” threshold is satisfied,
id., the reviewing court then asks whether disclosure “would constitute a clearly unwarranted
privacy invasion,” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). In
making this inquiry, the court must balance the individual privacy interest against “the citizens’
right to be informed about what their government is up to.” Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1115 (D.C. Cir. 2007). “Where there is a substantial probability that disclosure will
cause an interference with personal privacy, it matters not that there may be two or three links in
the causal chain.” Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 878 (D.C.
Cir. 1989).
30

Plaintiffs correctly contend that “organizations have no privacy interests” under
Exemption 6. See Dkt. 35 at 8-9. The Department, relying on Bigwood v. USAID, 484 F. Supp.
2d 68, 76-77 (D.D.C. 2007), responds that the privacy interests implicated here belong to the
individuals employed by the named organizations, see Dkt. 38 at 11; Bigwood, 484 F. Supp. 2d
at 76-77. Bigwood held that Exemption 6 authorized redaction of “the organizational identities
of . . . USAID grantees” in Venezuela, id. at 76, based on “declarations that detail the potential
harm to the employees” of those organizations “due to their connection with the United States
government,” id. at 77 & n.4. The Department argues that here, as in Bigwood, naming the
organizations could place the individuals within those organizations at risk of “intimidation,
harassment, or violence, possibly including death.” Dkt. 27-1 ¶¶ 6, 8; see Bigwood, 484 F. Supp.
2d at 77 & n.4.
Assuming for the moment that the disclosure of information about the organizations
would identify the individuals involved, the Court has little trouble concluding that disclosure
“would constitute a clearly unwarranted privacy invasion.” Nat’l Ass’n of Home Builders, 309
F.3d at 32. Plaintiffs appear to agree that employees of organizations that cooperate with the
United States may be subject to retaliation or “endangered” based on their associations with the
United States. See Dkt. 35 at 11. Here, however, they speculate that identities of the relevant
organizations and the individuals within those organizations are already known by those who
might pose a threat to them. Id. at 12-13. Although not entirely clear, Plaintiffs’ argument
appears to be that Exemption 6 does not apply because these individuals are already in danger
and no additional harm will flow from disclosure.
The Court does not agree that the risk to the relevant individuals is resolved. Plaintiffs
speculate, at best, that they have identified the organizations in question, see id. at 11, and even
were Plaintiffs correct, that would not mean that disclosure would not affect additional
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individuals or lead to other reprisals, including (according to the Department) bodily harm or
even death, see Dkt. 27-1 ¶¶ 6, 8.
On the present record, however, it is a closer question whether the organizations’
identifying details constitute information “similar” to personnel files or medical records within
the meaning of Exemption 6. This requirement is “minimal”: “the threshold . . . is crossed if the
information merely ‘applies to a particular individual,’” even if that information is not
“intimate.” New York Times, 920 F.2d at 1006 (quoting U.S. Dep’t of State v. Washington Post
Co., 456 U.S. 595, 602 (1982)). Exemption 6 covers “not just files, but also bits of personal
information, such as names and addresses, the release of which would ‘create[ ] a palpable threat
to privacy.’” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152-53 (D.C. Cir. 2006) (quoting
Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987)). Thus, the Court of
Appeals has held that Exemption 6 may extend to financial information “easily traceable to an
individual,” see New York Times, 920 F.2d at 1006, to information about small family farms that
“in some cases [would] allow for an inference to be drawn about the financial situation of an
individual farmer,” see Multi Ag Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1228-30
(D.C. Cir. 2008), and to “the names and addresses of persons and businesses associated with” the
development and manufacture of a controversial abortion drug, see Judicial Watch, 449 F.3d at
153. On the other hand, the Court of Appeals has observed that the “[t]he financial records of a
large corporation” would not qualify for withholding under Exemption 6 “because they do not
contain information ‘personal to any particular individual.’” New York Times, 920 F.2d at 1006
(quoting Washington Post Co., 456 U.S. at 602 n.4).
In Bigwood, the district court agreed with USAID that disclosing identifying information
about local organizations would be “tantamount to releasing the identities of . . . individual[ ]”
employees, see 484 F. Supp. 2d at 76 (quotation marks and citation omitted), and that in light of
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the “strong[ ] privacy interest in avoiding physical danger,” those individuals had a clear privacy
interest in the nondisclosure of such information, see id. at 77 (citing Judicial Watch, 449 F.3d at
153). Thus, the court concluded that “the organizational identity of USAID grantees is
information . . . [that] in this case ‘applies to a particular individual,’ and thus the records
requested are ‘similar files’ which may be protected from disclosure by Exemption 6 of the
FOIA.” Id. at 76. The Department asserts that the same is true here: disclosing identifying
information about the organizations would be “tantamount” to disclosing the identities of the
individuals within those organizations, placing the individuals in physical danger. Dkt. 27-1 ¶ 6.
The Court notes that there are differences between this case and Bigwood. In particular,
the organizations in Bigwood were “very small,” with fewer than ten employees each, see 484 F.
Supp. 2d at 76, while here, it is unclear how large the organizations are. The Department asserts,
however, that it made the withholding decision “in consultation with USAID” based on “the
nature of the particular programs involved, including their size,” see Dkt. 27-1 ¶ 6, and against
the backdrop of the political climate in the host countries, id. The Department and USAID are
far better positioned than Plaintiffs or the Court to determine whether, on these facts, disclosure
would lead to the identification of particular individuals in those countries. As the Court of
Appeals has observed in a different context, “[i]n the absence of any conflicting evidence, we
give some credence to the agency’s familiarity with” whether a disclosure “would lead to
identification of” the individuals in question. Carter, 830 F.2d at 391-92 (affirming application
of Exemption 6 to information from patent attorney misconduct investigations, based on “the
[Patent and Trademark Office’s] reasonable determination that release of [that information]
would identify patent attorneys who have been under investigation”). Here, as in Carter, the
FOIA requester has not presented evidence “suggesting that the disclosure . . . would not
identify” those individuals. Id. And here, the Department has particular expertise regarding
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“local organizations that have received U.S. support,” Dkt. 27-1 ¶ 6, and the relative risk of
identification of individuals associated with those organizations.
For the reasons given, the Court concludes that—although it is a close question—the
Department has met its burden with respect to the application of Exemption 6 to this document.
D. “Unaccounted-For” Documents
The Court next turns to Plaintiffs’ motion for partial summary judgment with respect to
several allegedly “unaccounted-for” responsive documents “which are known to exist.” See Dkt.
23 at 49-51. These “unaccounted-for” documents include documents that Plaintiffs argue
resulted from the PSD-11 process, specifically Presidential Policy Directive 13 (“PPD-13”), a
“State paper” referenced in emails from an NSC employee; a paper “referenced” by “Mr.
Howard”; a “report to the President” described in a New York Times article by Mark Landler;
and a “2011 report on Islamic movements which might take power in the Middle East, reported
in the Washington Post.” See Dkt. 23-2 ¶¶ 18-20. Plaintiffs also ask for “the attachments
referenced in the released emails.” See Dkt. 23 at 49-51. Finally, Plaintiffs ask for the
“transmittal memorandum [that] allegedly accompanied PSD-11,” id., which is referenced in the
Sanborn declaration, see Dkt. 19-1 (Sanborn Decl.).
The Department argues that PPD-13 is not responsive. See Dkt. 25-1 ¶¶ 13, 14 (“PPD-13
was not generated pursuant to the mandates of PSD-11” and “is not responsive to a reasonable
interpretation of Plaintiffs’ FOIA request”). Plaintiffs speculate that PPD-13 was generated as a
result of deliberations pursuant to PSD-11, see Dkt. 23 at 49, but they do not identify any factual
support for that assertion. With respect to the other documents allegedly generated in response
to PSD-11—such as the “State paper” and the “report to the President”—Plaintiffs provide no
basis to conclude that these vague descriptions do not refer to any documents already accounted
for in the Hackett declarations. Nor, for the most part, is there information suggesting that the
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Department possesses or controls copies of the “referenced” documents; if it does not possess or
control them, it is not required to locate and release them. See Lewis v. U.S. Dep’t of Justice,
867 F. Supp. 2d 1, 13 (D.D.C. 2011); Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 138 (1980) (“possession or control is a prerequisite to FOIA disclosure”).
Moreover, even assuming that the Department might somewhere possess copies of some of these
documents, an agency is not required to demonstrate that each and every responsive document
was actually located or that no other relevant documents exist. See Perez-Rodriguez v. U.S.
Dep’t of Justice, 888 F. Supp. 2d 175, 182 (D.D.C. 2012) (citing Weisberg v. Dep’t of Justice,
705 F.2d 1344, 1351 (D.C. Cir. 1983)). It is only obligated to “conduct[ ] a search reasonably
calculated to uncover all relevant documents.” Weisberg, 705 F.2d at 1351. The Department has
provided declarations detailing its search, see Dkt. 19-2 ¶¶ 14-30, and Plaintiffs have not
objected to the methods or scope of the search. The failure of the search to turn up a given
document—even if that result is “unexpected”—“does not alone render a search inadequate.”
Ancient Coin Collectors Guild, 641 F.3d at 514; see also id. (“[T]he adequacy of a FOIA search
is generally determined not by the fruits of the search, but by the appropriateness of the methods
used to carry out the search.”) (quotation marks and citation omitted). Similarly, with respect to
the email attachments, Plaintiffs offer no information suggesting that the attachments were
identified as responsive in the Department’s search but nonetheless withheld, or that the
Department’s search was deficient because it did not find the attachments.
In their motion for summary judgment, Plaintiffs argued that the transmittal
memorandum described in the Sanborn declaration “is clearly responsive to plaintiffs’ FOIA
request.” Dkt. 23 at 38; see also Dkt. 19-1 ¶¶ 4-5 (Sanborn Decl.) (stating that the transmittal
memorandum was from the Executive Secretary of the NSC to agencies receiving copies of
PSD-11). In response, the Department submitted a second declaration from Hackett asserting
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that any transmittal memorandum, “to the extent that it exists, would not be responsive.” See
Dkt. 25 at 39-40; Dkt. 25-1 ¶ 13. The Department notes that Plaintiffs asked for PSD-11 itself,
“[d]ocuments and other information created or compiled by the State Department which were
utilized internally . . . , in the creation of PSD-11,” and “[d]ocuments and other information
created or compiled by the State Department which were generated pursuant to the mandates of
PSD-11,” Dkt. 1 at 7, and argues that the transmittal memorandum does not fall into those three
categories.
The Court concludes that the Department’s reading of the FOIA request is reasonable.
Plaintiffs argue that the memorandum is “responsive” because it was “produced . . . after the date
of PSD-11 to transmit the PSD to designated recipients,” Dkt. 23 at 38, see also Dkt. 33 at 24,
but a transmittal document from the NSC to the agencies does not fall within the three categories
identified in Plaintiffs’ request. Although the Court of Appeals has repeatedly cautioned that “an
agency has a duty to construe a FOIA request liberally,” Nation Magazine, Washington Bureau
v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995); see also LaCedra v. Executive Office
for U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003), the agency is not obligated to rewrite the
request to ask for more than the requester did. Plaintiff Canning, who has some experience filing
FOIA requests, drafted the request to ask for the specific three categories of information
identified above—not for all information relating in any way to PSD-11. He could have drafted
the request broadly to encompass other documents related to PSD-11, but chose not to do so.
Accordingly, the Court agrees with the Department that the transmittal memorandum is not
responsive and need not be disclosed.
E. Segregability
Finally, the Court reviews the Department’s determination that the documents withheld in
full under the exemptions already discussed, including PSD-11, did not contain reasonably
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segregable information. See Sussman, 494 F.3d at 1116 (“Before approving the application of a
FOIA exemption, the district court must make specific findings of segregability regarding the
documents to be withheld.”). The FOIA requires agencies to disclose “[a]ny reasonably
segregable portion” of a responsive record “after deletion of the portions which are exempt.” 5
U.S.C. § 552(b).
Where, as here, the agency determines that entire documents must be withheld because
non-exempt information is not segregable, the agency bears the burden of “show[ing] with
‘reasonable specificity’ why the documents cannot be further segregated.” Armstrong v. Exec.
Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). The agency may meet this burden by
providing a “‘detailed justification’ for . . . non-segregability.” Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of
the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)).
The Court concludes that the Department has met this burden. The Hackett declarations
state that reasonably segregable portions of the responsive documents have been released. See
Dkt. 19-2 ¶ 37, ¶¶ 54-104; Dkt. 25-1 ¶¶ 9, 26; Dkt. 27-1 ¶ 11. The information in the
declarations substantiates with “reasonable specificity,” see Armstrong, 97 F.3d at 578, that the
Department has reviewed the documents for segregable material as required by the FOIA, see
Loving, 550 F.3d at 41 (affirming district court’s decision to deny in camera review based on
“the description of the document set forth in the Vaughn index and the agency’s declaration that
it released all segregable material”).
Aside from their arguments with respect to the documents withheld in part under
Exemption 1, see supra Part A.4, and certain documents withheld as deliberative under
Exemption 5, see supra Part B, Plaintiffs do not offer any arguments suggesting that reasonably
segregable material has not been released. As already discussed, the Court directs the
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Department to disclose the portion markings in two documents, but finds Plaintiffs’ remaining
arguments unpersuasive. The Court sees no other indications in the record that the Department
failed to disclose reasonably segregable non-exempt material from any other documents withheld
under Exemptions 1, 5, or 6.
*

*

*

For the reasons given, the Court grants Defendant’s motion for summary judgment in part
and denies it in part. The Department is directed to supplement the record with additional
information confirming that Grafeld reviewed the documents classified as required by § 1.7(d)
and apprised the Under Secretary of those actions. The Court grants Plaintiffs’ cross-motion for
summary judgment (Dkt. 23) in part and denies it in part. The Department is directed to disclose
the portion markings redacted from documents C05518351 and C05518358. Plaintiffs’ second
cross-motion for summary judgment (Dkt. 35) and Plaintiffs’ motions for in camera review
(Dkts. 22, 36) are denied.
IV. CONCLUSION
For the reasons stated above, it is hereby
ORDERED that the Department’s motion for partial summary judgment (Dkt. 19) is
GRANTED in part and DENIED in part. The Department may supplement the record with
information addressing the issues identified in this Memorandum Opinion within 60 days. It is
further
ORDERED that Plaintiffs’ cross-motion for partial summary judgment (Dkt. 23) is
GRANTED in part and DENIED in part. The Department is directed to disclose the portion
markings redacted from documents C05518351 and C05518358. It is further

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ORDERED that Plaintiffs’ second cross-motion for summary judgment (Dkt. 35) and
Plaintiffs’ motions for in camera review (Dkts. 22, 36) are DENIED.
It is SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 30, 2015

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