Charles Seife v. U.S. Department of State
Filing
40
MEMORANDUM OPINION AND ORDER re: 27 MOTION for Summary Judgment filed by U.S. Department of State, 30 CROSS MOTION for Summary Judgment filed by Charles Seife. For the reasons stated above, the State Depart ment's motion for summary judgment is GRANTED IN PART and DENIED IN PART without prejudice. Mr. Seife's cross-motion is DENIED. The denial of the Mr. Seife's motion is without prejudice to the extent that the motion challenges the State Department's response to the 12997 request, the withholding of documents and information under Exemption 5, and the withholding of the identities of the background briefers under Exemption 6. The State Department is directed to s ubmit revised Vaughn submissions addressing the State Department's response to the 12997 request, the information and document claimed exempt under Exemption 5, the identities of background briefers claimed exempt under Exemption 6, as w ell as a segregability analysis addressing the Category 15 document, along with a renewed motion for partial summary judgment no later than April 30, 2018. Mr. Seife may file a renewed cross-motion for summary judgment with respect to the State Department's response to the 12997 request and its withholding of information and documents under Exemptions 5 and 6 no later than thirty (30) days from the date of service of the State Department's renewed motion. Any oppositions to the motion(s) for summary judgment are due no later than twenty-one (21) days following service of the motions, and any replies are due no later than fourteen (14) days following service of the oppositions. The Clerk of Court is directed to terminate the motions pending at Dkt. Nos. 27 and 30. (Signed by Judge Gregory H. Woods on 3/24/2018) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CHARLES SEIFE,
:
:
Plaintiff, :
:
-against:
:
UNITED STATES DEPARTMENT OF
:
STATE,
:
:
Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 3/26/2018
1:16-cv-7140-GHW
MEMORANDUM OPINION
AND ORDER
GREGORY H. WOODS, United States District Judge:
I.
INTRODUCTION
Before the Court are cross-motions for summary judgment in this Freedom of Information
Act (“FOIA”) dispute between journalist and professor of journalism Charles Seife, appearing pro se,
and the United States Department of State (the “State Department”) that began with two July 22,
2014 requests for various records related to press briefings given “on background” by anonymous
senior agency officials. The Court must now rule on the adequacy of the State Department’s
response to the first request, as well as the applicability of FOIA’s Exemptions 5 and 6 to
approximately 80 responsive documents, portions of which were redacted by the State Department,
and to one document withheld in full. For the reasons that follow, the Court concludes that the
State Department is entitled to summary judgment on a portion of its withholdings under
Exemption 6. The Court also concludes that the State Department should be granted a further
opportunity to substantiate its claim that a search in response to the first request would be
unreasonably burdensome, its claims of deliberative process and presidential communications
privilege over the information it has withheld, as well as its claim that Exemption 6 applies to the
identities of the anonymous background briefers. The State Department’s motion for summary
judgment is therefore GRANTED IN PART and DENIED IN PART, and Mr. Seife’s motion for
summary judgment is DENIED.
II.
BACKGROUND
On July 22, 2014, Mr. Seife submitted a FOIA request to the State Department seeking
information on the following “on background” conferences:
(1) Background Conference Call by Senior Administration Officials
on Iraq, conducted on or about June 20, 2014[;]
(2) Background briefing by Senior Administration Officials via
Conference Call on Afghanistan, conducted on or about May 27,
2014[;]
(3) Background Briefing on Syria, conducted on or about May 5,
2014[;]
(4) Background Conference Call on Ukraine Sanctions, conducted on
or about April 28, 2014[;]
(5) Background Briefing on Designation of Boko Haram and Ansaru
as Foreign Terrorist Organizations and as Specially Designated
Global Terrorists, conducted on or about November 13, 2013[;
and]
(6) Background Briefing on Section 1230 Report on Progress Toward
Security and Stability in Afghanistan, Pentagon Briefing Room,
conducted on or about December 10, 2012.
Declaration of Eric Stein, ECF No. 29 (“Stein Decl.”), Ex. 2. In connection with each of the six on
background briefings, Mr. Seife requested (1) the unredacted transcript, which “should identify” the
officials involved in the briefing, and (2) any documents, “including but not limited to e-mails,
meeting minutes, memos, and other communications,” that described the “planning and/or
execution of” each briefing. Id. That request was received by the State Department and assigned
case number F-2014-12996 (the “12996 request”). Stein Decl., Ex. 3.
Also on June 22, 2014, Mr. Seife submitted a second FOIA request to the State Department,
seeking the unredacted transcripts for any “on background” briefing that took place between
2
January 20, 2009 and July 21, 2014. Stein Decl., Ex. 9.1 Mr. Seife explained that “such a transcript
should identify officials involved in the conference/briefing/call by name.” Id. That request was
assigned case number F-2014-12997 (the “12997 request”). Stein Decl., Ex. 10.2
Mr. Seife filed this lawsuit on September 13, 2016, seeking an injunction requiring the State
Department to provide him with the requested information. ECF No. 1. During a November 22,
2016 initial pretrial conference, the Court directed the State Department to provide a full response
to the 12997 request no later than December 16, 2016. ECF No. 14. The Court also directed the
State Department to provide rolling responses to the 12996 request, with a first production due no
later than December 16, 2016, and with production to be completed no later than January 20, 2017.
Id.
In accordance with the Court’s order, on December 16, 2016, the State Department
produced six documents responsive to the 12996 request. Stein Decl., Ex. 4. In response to the
12997 request, the State Department explained that it had no responsive documents because the
State Department does not maintain transcripts identifying the names of the officials conducting the
background briefings. Stein Decl., Ex. 11.3 The State Department also provided the web address at
which the background briefing transcripts were available. Id. The State Department produced
additional documents in response to the 12996 request on January 19, 2017. Stein Decl., Ex. 5.
On March 10, 2017, the Court granted the State Department an extension of time within
which to complete its production in response to the 12996 request, extending the January 20, 2017
Stein’s Declaration indicates that this request is attached as Exhibit 11. Stein Decl. ¶ 14. The Court observes that the
request is actually attached as Exhibit 9.
1
Stein’s Declaration states that the State Department’s letter confirming receipt of the FOIA request and assigning it
case number F-2014-12997 is attached to that declaration as Exhibit 12. Stein Decl. ¶ 15. However, the letter is actually
located at Exhibit 10.
2
Stein’s Declaration indicates that the State Department’s December 16, 2016 response to the 12997 request is attached
as Exhibit 13. Stein Decl. ¶ 16. However, the Court notes that the letter response is actually attached as Exhibit 11.
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deadline to April 17, 2017. ECF No. 18. Three days before that deadline, on April 14, 2017, the
State Department produced additional responsive documents. Stein Decl., Ex. 8. The State
Department also removed certain redactions from previously produced documents and re-released
those documents on January 23, 2017, March 6, 2017, and June 2, 2017. Stein Decl., Exs. 6, 7, 12.4
After receiving a description of the search that the State Department had conducted with
respect to the 12996 request, Mr. Seife requested that additional, targeted searches be performed.
Stein Decl. ¶ 12. Mr. Seife agreed that, if those searches were conducted, he would not challenge the
adequacy of the Department’s search in connection with his 12996 request. Id. The requested
searches were performed, and the State Department completed its production of documents in
connection with the 12996 request on June 29, 2017. Id. ¶ 135; see ECF No. 25.
The State Department withheld information in seventy-two documents under FOIA
Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.” Stein Decl. ¶ 25. The State Department claimed that the withheld
information was subject to the deliberative process privilege. Id. That information related to the
first five background briefings identified by Mr. Seife in his June 22, 2014 request, as well as to a
background briefing on Iraq and Iran that took place on or about June 22, 2014, a background
briefing on a matter related to Afghanistan that was planned for May 31, 2014, and a background
briefing on a presidential speech on Afghanistan that was given on May 28, 2014. Id. While these
last three briefings were not specifically identified in Mr. Seife’s request for information, the State
Stein’s Declaration states that the June 2, 2017 correspondence from the State Department to Mr. Seife is attached as
Exhibit 9. Stein Decl. ¶ 11. The Court observes that it is actually attached as Exhibit 12.
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Stein’s Declaration states that the State Department’s June 29, 2017 letter informing Mr. Seife that it had located ten
additional responsive documents as a result of the targeted searches is attached to that declaration as Exhibit 10. Stein
Decl. ¶ 13. The Court observes, however, that the letter is not attached to the declaration, as Exhibit 10 or otherwise.
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Department produced the transcripts from each of the briefings after broadly construing Mr. Seife’s
request for information related to briefings “on or about” the identified dates. Id. ¶ 25 n.6. Among
the specific material withheld were draft and final talking points, anticipated questions and proposed
answers, and e-mail correspondence regarding the content and modalities of the background
briefings. Id. ¶ 26. The State Department also withheld information under Exemption 5 in one
document that it claimed was subject to the presidential communications privilege. Id. ¶ 28.
In addition to its withholdings pursuant to Exemption 5, the State Department withheld
information in sixty-five responsive documents pursuant to Exemption 6, 5 U.S.C. § 552(b)(6),
which permits an agency to withhold “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” Id. ¶ 31. That
information included the names and official contact information of government employees serving
in sensitive positions within the State Department’s Bureau of Counterterrorism, the National
Security Council, and the Department of Defense, as well as State Department officials’ cell phone
numbers and the personal email addresses of individuals outside of the government. Id. The State
Department additionally withheld an official’s comment regarding a personal schedule and
information that would reveal the identities of the officials who either served as background briefers
or were proposed background briefers. Id. ¶¶ 31, 32.
In sum, the State Department located ninety-six documents that were responsive to Mr.
Seife’s 12996 request, of which fifteen were produced in full, eighty were produced with redactions,
and one document was withheld in full. Id. ¶ 36.6 Along with its productions, the State Department
provided a Vaughn7 index describing the items withheld. Id. ¶ 3 n.2.
The State Department also withheld information in two documents pursuant to FOIA Exemption 3. Def.’s Mem. in
Supp. of Summ. Judgment (ECF No. 28) at 5. Mr. Seife does not challenge those withholdings.
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Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).
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The parties filed cross-motions for summary judgment. ECF Nos. 27, 30. Following the
filing of those motions, the State Department filed a supplemental declaration of Stein, as well as an
updated Vaughn index. ECF No. 35. The supplemental submissions indicate that, after production
of the initial Vaughn index, the State Department released portions of previously withheld
information. See Supplemental Declaration of Eric Stein, ECF No. 35 (“Stein Supp. Decl.”) ¶ 8.
In its summary judgment motion, the State Department stands by its withholdings in
response to the 12996 request, as identified in the updated Vaughn index (the “Vaughn index”), and
maintains its position that no records responsive to the 12997 request exist. Mr. Seife, in his crossmotion for summary judgment, challenges the State Department’s search in connection with the
12997 request and seeks disclosure of a majority of the information withheld pursuant to FOIA
Exemptions 5 and 6.
As explained below, the Court holds that the State Department’s search in connection with
the 12997 request was inadequate. The Court also finds the State Department’s submissions
insufficient to permit a determination that all of the information withheld under the FOIA
exemptions is properly exempt from disclosure.
III.
LEGAL FRAMEWORK
A. Summary Judgment Standard
“Summary judgment is the procedural vehicle by which most FOIA actions are resolved.”
N.Y. Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 509 (S.D.N.Y. 2007) (quoting Jones-Edwards
v. Appeal Bd. of Nat’l Sec. Agency, 352 F. Supp. 2d 420, 423 (S.D.N.Y. 2005)). A moving party is
entitled to summary judgment if it can “show[ ] that there is no genuine dispute as to any material
fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
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there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))). A genuine dispute exists where “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party,” while a fact
is material if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
To defeat a motion for summary judgment, the non-moving party “must come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ. P. 56(e)). “[M]ere speculation or
conjecture as to the true nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010) (citations and internal quotations omitted). A party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). In resolving cross-motions for summary
judgment, “each party’s motion must be examined on its own merits, and in each case all reasonable
inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel
Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314
(2d Cir. 1981)).
Because he is proceeding pro se, the Court must liberally construe Mr. Seife’s submissions and
interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed’ . . .
.” (citation omitted)); Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (“Where . . . the complaint was
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filed pro se, it must be construed liberally to raise the strongest arguments it suggests.” (quoting
Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013))). “It is well established that a court is ordinarily
obligated to afford a special solicitude to pro se litigants,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d
Cir.2010), “particularly where motions for summary judgment are concerned,” Jackson v. Fed. Express,
766 F.3d 189, 195 (2d Cir.2014); accord Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). However, “the
liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y.
2013) (internal quotation marks and citation omitted).
B. FOIA
“Congress intended FOIA to permit access to official information long shielded
unnecessarily from public view.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (citation and
internal quotation marks omitted). “FOIA thus mandates that an agency disclose records on
request, unless they fall within one of nine exemptions.” Id. FOIA also contains affirmative
disclosure and indexing requirements, which provide that “[e]ach agency . . . shall make available for
public inspection in an electronic format . . . final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of cases . . . those statements of policy and
interpretations which have been adopted by the agency and are not published in the Federal
Register . . . [and] administrative staff manuals and instructions to staff that affect a member of the
public.” 5 U.S.C. § 552(a)(2)(A)-(C). “As the Act is structured, virtually every document generated
by an agency is available to the public in one form or another, unless it falls within one of the Act’s
nine exemptions.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). “These
exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 562 U.S. at 565
(internal quotation marks and citations omitted); see also U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.
136, 151 (1989) (“Consistent with the Act’s goal of broad disclosure, these exemptions have been
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consistently given a narrow compass.”).
For an agency to prevail on a summary judgment motion in a FOIA case, it “must
demonstrate ‘that each document that falls within the class requested either has been produced, is
unidentifiable, or is wholly exempt from the Act’s inspection requirements.’” Ruotolo v. Dep’t of
Justice, Tax Div., 53 F.3d 4, 9 (2d Cir. 1995) (quoting Nat’l Cable Television Ass’n v. Fed. Commc’ns
Comm’n, 479 F.2d 183, 186 (D.C. Cir. 1973)). “[T]he defending agency [also] has the burden of
showing that its search was adequate.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994).
“[S]ummary judgment in favor of the FOIA plaintiff” is appropriate “[w]hen an agency seeks to
protect material which, even on the agency’s version of the facts, falls outside the proffered
exemption,” but should be denied if the agency satisfies its burden “to show that requested material
falls within a FOIA exemption.” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433
(D.C. Cir. 1992).
“FOIA specifies that a district court must conduct de novo review of an agency’s claims to
exemptions,” Lee v. Fed. Deposit Ins. Corp., 923 F. Supp. 451, 453 (S.D.N.Y. 1996), which “are to be
narrowly construed with all doubts resolved in favor of disclosure,” Halpern v. Fed. Bureau of
Investigation, 181 F.3d 279, 287 (2d Cir. 1999). Agency affidavits or declarations “may justify
summary judgment” if they are “sufficient to afford the FOIA requester a meaningful opportunity
to contest, and the district court an adequate foundation to review, the soundness of the
withholding.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (citation omitted); see
Halpern, 181 F.3d at 293 (“blind deference is precisely what Congress rejected when it amended
FOIA in 1974”). “Affidavits submitted by an agency are ‘accorded a presumption of good faith.’”
Carney, 19 F.3d at 812 (quoting Safecard Servs., Inc. v. Secs. and Exchange Comm’n, 926 F.2d 1197, 1200
(D.C. Cir. 1991)).
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C. Vaughn Submissions
When an agency withholds records in a FOIA case and a complaint challenges such
withholding, the district court must “determine the matter de novo, and may examine the contents
of . . . agency records in camera to determine whether such records or any part thereof shall be
withheld under any of the exemptions . . . .” 5 U.S.C. § 552(a)(4)(B). In such a case, “the burden is
on the agency to sustain its action.” Id.
In 1973, in Vaughn v. Rosen, the Court of Appeals for the D.C. Circuit held that in order to
assure “that allegations of exempt status are adequately justified . . . courts will simply no longer
accept conclusory and generalized allegations of exemptions . . . but will require a relatively detailed
analysis in manageable segments.” 484 F.2d 820, 826 (D.C. Cir. 1973). Thus, when invoking a
FOIA exemption, agencies submit a “Vaughn index”—a list of withheld documents and claimed
exemptions—and a “Vaughn affidavit,” describing the documents and the agency’s rationale for
withholding them. Requiring such submissions serves three goals:
(1) it forces the government to analyze carefully any material withheld,
(2) it enables the trial court to fulfill its duty of ruling on the
applicability of the exemption, (3) and it enables the adversary system
to operate by giving the requester as much information as possible, on
the basis of which he can present his case to the trial court.
Halpern, 181 F.3d at 291 (quoting Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)).
“The titles and descriptions of documents listed in a Vaughn index usually facilitate the task of
asserting and adjudicating the requester’s challenges to the Government’s claims of exemption” by
“giv[ing] the court and the challenging party a measure of access without exposing the withheld
information.” N.Y. Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 439 (2d Cir.), supplemented, 762 F.3d
233 (2d Cir. 2014).
“Summary judgment is warranted on the basis of [Vaughn] affidavits when the affidavits
describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the
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information withheld logically falls within the claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat’l Sec. Agency, 592
F.3d 60, 73 (2d Cir. 2009) (internal quotation marks and citations omitted) (quoting Larson v. Dep’t of
State, 565 F.3d 857, 862 (D.C. Cir. 2009)). “[W]hat constitutes a ‘reasonable’ level of specificity [in a
Vaughn affidavit] varies depending on the particular context,” and specifically, which exemption is
being invoked. Halpern, 181 F.3d at 297 (finding level of specificity insufficient to invoke
Exemption 1, but sufficient to invoke Exemption 7(C)). Affidavits submitted by an agency “are
accorded a presumption of good faith.” Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir.
2016) (quoting Ctr. for Constitutional Rights v. Cent. Intelligence Agency, 765 F.3d 161, 166 (2d Cir. 2014)).
Vaughn submissions are insufficient, however, where “the agency’s claims are conclusory, merely
reciting statutory standards, or if they are too vague or sweeping.” Quinon v. Fed. Bureau of
Investigation, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (quoting Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv.,
608 F.2d 1381, 1387 (D.C. Cir. 1979)).
IV.
DISCUSSION
A. Adequacy of Search in Connection with the 12997 Request
“[T]o establish the adequacy of a search, agency affidavits must be relatively detailed and
nonconclusory, and submitted in good faith.” Grand Central P’ship v. Cuomo, 166 F.3d 473, 489 (2d
Cir. 1999) (citation and internal quotation marks omitted). “[A]n agency’s search need not be
perfect, but rather need only be reasonable.” Id. “[A]gency affidavits must show that the agency
made a good faith effort to search for the requested documents, using methods ‘reasonably
calculated’ to produce documents responsive to the FOIA request.” Garcia v. U.S. Dep’t of Justice,
Office of Info. and Privacy, 181 F. Supp. 2d 356, 366 (S.D.N.Y. 2002) (quoting Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)); see Grand Cent. P’ship, 166 F.3d at 489. Moreover, as
noted above, affidavits submitted by an agency are “accorded a presumption of good faith.” Carney,
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19 F.3d at 812.
The State Department argues that its response to the 12997 request was reasonable because
it does not maintain “on background” briefing transcripts in the format requested by Mr. Seife, that
is, with an inclusion of the name of the government official giving the briefing, and because the
transcripts that it does maintain are already publicly available online. The State Department
acknowledges that it did not perform a search for records responsive to the 12997 request, but
contends that it was not required to do so because any search was not reasonably calculated to
produce responsive results. Mr. Seife, on the other hand, disputes the reasonableness of the State
Department’s decision to forego a search, quipping that it is “of note . . . that defendant’s nonsearch took two and a half years to not complete.” Pl.’s Memorandum in Supp. of S.J. and in Opp.
to Def.’s Mot. for S.J., ECF No. 33 (“Pl.’s Mem.”) at 23 n.9. Mr. Seife criticizes the State
Department’s decision primarily because, as he claims, the agency too narrowly construed his
request. Mr. Seife is correct.
The State Department has submitted the affidavit of Eric Stein, who is the Director of the
Office of Information Programs and Services (“IPS”) of the State Department. Stein Decl. ¶ 1.
Stein’s declaration describes the manner in which FOIA requests are addressed by the State
Department and the steps taken by the Department in response to both of Mr. Seife’s requests.
Stein’s statements related to the 12997 request are detailed, not merely conclusory, and the Court
presumes that they are made in good faith. See Carney, 19 F.3d at 812.
Stein’s declaration explains that each office within the State Department maintains files
concerning foreign policy and other matters that relate to the daily operations of that office. Stein
Decl. ¶ 18. Those files generally consist of “working copies of documents, information copies of
documents maintained in the Central Foreign Policy Records collection, and other documents
prepared by or furnished to the office in connection with the performance of its official duties.” Id.
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The offices also maintain electronic copies of documents and emails. Id. IPS, which Stein himself
currently oversees, is charged with responding to records requests by the public, Congress, other
agencies, and those made pursuant to judicial process. Id. ¶ 2. IPS is also responsible for records
management, privacy protection, national security classification management and declassification
review, corporate records archives management, research, operation and management of the State
Department’s library, and maintenance of the technology applications that support these activities.
Id.
Stein explains that, when the State Department receives a request for information pursuant
to FOIA, IPS evaluates that request and determines which office within the State Department “may
reasonably be expected to contain responsive records.” Id. ¶ 17. That determination is based on the
description provided by the requester of the records being sought and requires knowledge of the
State Department’s records systems, records disposition schedules, and the “substantive and
functional mandates” of the offices within the State Department. Id.
Stein’s declaration goes on to describe the State Department’s handling of Mr. Seife’s
requests. In evaluating the 12997 request, IPS determined that the only State Department
component “reasonably likely” to possess responsive documents was the Bureau of Public Affairs
(“PA”). Stein Decl. ¶ 19. The Deputy Executive Director of PA, in turn, determined that the only
PA component “reasonably likely” to have records responsive to Mr. Seife’s request was the Office
of Press Relations. Id. ¶ 20. The 12997 request was therefore submitted to the director of the
Office of Press Relations for review, and that director confirmed that the office did not maintain
responsive records. Id. ¶ 21.
The Stein Declaration establishes that the State Department “frequently” holds briefings in
which government officials address the State Department press corps “on background,” that is, “not
for individual attribution.” Stein Decl. ¶ 22. Stein avers that “[a]ll of these background briefings are
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transcribed,” but that the transcripts “[a]t no point” identify the background briefers. Id. While the
government officials hosting the briefings “may” be introduced by name to the journalists, they are
identified only as “State Department Official” or “Senior Administration Official” in the transcripts
that are produced. Id. Therefore, because transcripts of the background briefings never include the
name of the briefer, the State Department asserts that it was reasonable for the Office of Press
Relations to believe that no search would generate any records responsive to Mr. Seife’s request,
thereby making any search futile.
The legal premise of this argument is correct: “FOIA does not demand a search that would
be futile.” Amnesty Int’l USA v. Cent. Intelligence Agency, No. 07-cv-5435 (LAP), 2008 WL 2519908, at
* 11 (S.D.N.Y. June 19, 2008) (citing Am.-Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland
Sec., 516 F. Supp. 2d 83, 87-88 (D.D.C. 2007)); see also Thomas v. Comptroller of Currency, 684 F. Supp.
2d 29, 33 (D.D.C. 2010) (finding agency’s decision not to perform a search reasonable where the
information requested by the plaintiff was “not the type of information” maintained by the agency);
Am.-Arab Anti-Discrimination Comm., 516 F. Supp. 2d at 87-88 (finding the agency’s statement that it
did not maintain the information sought by the plaintiff was sufficient “if not exactly to show the
adequacy of the search, then to explain why a search would be futile and is unnecessary”). However,
the State Department’s construction of Mr. Seife’s request—as pertaining only to transcripts
identifying the briefer—is unreasonably narrow.
“To assess the adequacy of a search, courts must first ‘ascertain the scope of the request
itself.’” Amnesty Int’l USA, 2008 WL 2519908, at *12 (quoting Nation Magazine v. U.S. Customs Serv.,
71 F.3d 885, 889 (D.C. Cir. 1995)). An agency is not “obliged to look beyond the four corners of
the request for leads to the location of responsive documents.” Kowalczyk v. U.S. Dep’t of Justice, 73
F.3d 386, 389 (D.C. Cir. 1996). Rather, an agency is “bound to read [a request] as drafted, not as
either agency officials or [the requester] might wish it was drafted.” Miller v. Casey, 730 F.2d 773, 777
14
(D.C. Cir. 1984); see also Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (“[A]dequacy [of
an agency’s search] is measured by the reasonableness of the effort in light of the specific request.”
(emphasis added) (citation omitted)). Nevertheless, an agency may not “read the request so strictly
that the requester is denied information the agency well knows exists in its files.” Hemenway v.
Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985). Instead, “an agency has a duty to ‘construe a FOIA
request liberally.’” Amnesty Int’l USA, 2008 WL 2519908, at *12 (quoting LaCedra v. Exec. Office for
U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003)).
Here, the 12997 request seeks, “for any ‘on background’ conference/briefing/call that took
place between January 20, 2009 and July 21, 2014, . . . an unredacted transcript of each
conference/briefing/call; such a transcript should identify officials involved in the
conference/briefing/call by name.” Stein Decl., Ex. 9. The State Department interprets this
language as a request for only those transcripts of background briefings that “identify officials
involved in the conference/briefing/call by name.” Pl.’s Reply Memorandum, ECF No. 38 (“Pl.’s
Reply”) at 5. However, as Mr. Seife has rightly observed, his request does not limit the transcripts
that he seeks to those that do identify the briefers by name. Rather, his use of the phrase “should
identify” expresses his expectation to receive transcripts containing the briefers’ identities. Because an
agency responding to a FOIA request is mandated to construe the request broadly, the State
Department should have interpreted the 12997 request as one for unredacted transcripts of each “on
background” conference, briefing, and call that took place between January 20, 2009 and July 21,
2014, regardless of whether the transcript identified by name the government official providing the
briefing.
With this liberal construction of the 12997 request in mind, the Court turns to the State
Department’s decision to forego a search for responsive transcripts. Contrary to the State
Department’s representation, Mr. Seife argues that the agency does, in fact, maintain transcripts of
15
background briefings in which the briefers’ names are identified. As examples of such transcripts,
Mr. Seife points to several transcripts that contain, in place of the briefers’ names and titles,
bracketed terms such as “title redacted,” “introductions redacted,” “name deleted,” and “briefer
name deleted.” Pl.’s Mem., Ex. C. These transcripts, Mr. Seife comments, suggest that the State
Department “occasionally keeps transcripts” in unredacted form identifying the briefers. Pl.’s Mem.
at 23.
In his supplemental declaration, Stein affirms that he reviewed the initial draft of one of the
five transcripts relied on by Mr. Seife and confirmed that the draft produced by the stenographer
contained the bracketed terms in the first instance, and not the actual names and titles of the
briefers. Stein Supp. Decl. ¶ 4. Stein clarified that the briefers’ names and titles do not appear in
even the initial drafts prepared by the stenographers, but that those drafts are produced with the
bracketed terms in place of any identifying information. Id. ¶ 5. Mr. Seife has not produced any
evidence to suggest that the averments of Stein’s supplemental declaration were made in bad faith.
Accordingly, the Court affords the supplemental declaration the presumption of good faith that it
must and finds that the State Department has adequately shown that any search for unredacted
transcripts of background briefings containing the names of the briefers would indeed be futile.
This does not end the inquiry, however, as Mr. Seife’s request also included, as the Court has
just explained, a request for transcripts in which the briefers’ names were not identified. It is true
that the State Department is not required to produce, in response to a FOIA request, any
documents that are otherwise publicly available. See Triestman v. U.S. Dep’t of Justice, Drug Enforcement
Admin., 878 F. Supp. 667, 671 (S.D.N.Y. 1995) (“[T]o require an agency to collect and produce
information that has already been made public would not further the general purpose of FOIA,
which is to satisfy the citizens’ right to know what their government is up to. . . . FOIA does not
obligate an agency to serve as a research service for persons seeking information that is readily
16
available to the public.” (internal quotation marks and citation omitted)). Therefore, to the extent
that any responsive transcripts are publicly available online, the State Department is not required to
gather and produce those for Mr. Seife.8
However, Mr. Seife maintains that other responsive transcripts exist that have not been
uploaded to the public website. The State Department does not deny this, and in fact acknowledges
that background briefing transcripts prepared by the White House or other federal agencies may
have been forwarded to the State Department and to State Department employees and may be
stored in the employees’ email accounts. Stein Supp. Decl. ¶ 7. Nonetheless, the State Department
argues that Mr. Seife’s request for transcripts of background briefings over a five-and-a-half-year
period is overly broad, and a search for such transcripts would be unreasonably burdensome. Def.’s
Opp. to Pl.’s Mot. for S.J. and Reply Memorandum, ECF No. 34 (“Def.’s Reply”) at 6 and n.3.
While this may in fact be true, the State Department has not sufficiently established the burden that
it cites.
For a FOIA request to be proper, the request must “reasonably describe” the records
sought. 5 U.S.C. § 552(a)(3)(A). This requirement is satisfied “if a professional employee of the
agency familiar with the subject matter can locate the records with a reasonable amount of effort.”
Freedom Watch, Inc. v. Cent. Intelligence Agency, No. 12-cv-0721 (ESH), 2012 WL 4753281, at *6 (D.D.C.
Oct. 5, 2012) (internal citations and quotation marks omitted). Mr. Seife’s request for unredacted
transcripts of “on background” briefings, conferences, and calls between January 20, 2009 and July
21, 2014 reasonably describes the records sought. Mr. Seife provides the State Department with the
specific form of document that he seeks—transcripts—along with the applicable date range for his
request. This is unlike requests that courts have found to be overly broad. See, e.g., Roman v. Cent.
Indeed, Mr. Seife has acknowledged that he does not seek duplications of the publicly available transcripts. Pl.’s Mem.
at 24 n.10.
8
17
Intelligence Agency, No. 11-cv-5944 (JFB) (WDW), 2013 WL 210224, at *6 (E.D.N.Y. Jan. 18, 2013)
(finding that a request for “all files and/or reports” on “Arch of the Covenant” and “military or
non-military reports of angels and persons dressed in white” was “not specific enough for an
employee of the agency to find all files regarding this information with a ‘reasonable amount of
effort’”); Dale v. Internal Revenue Serv., 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (finding that a request
for “any and all documents, including but not limited to files, that refer or relate in any way to Billy
Ray Dale” was overly broad); Mason v. Callaway, 554 F.2d 129, 131 (4th Cir. 1977) (concluding that a
request for “all correspondence, documents, memoranda, tape recordings, notes, and any other
material pertaining to the atrocities committed against plaintiffs, . . . including, but not limited to, the
files of [various government offices] . . . typifies the lack of specificity that Congress sought to
preclude in the requirement of 5 U.S.C. § 552(a)(3) that records sought be reasonably described”).
Moreover, to the extent that the State Department determined that the request did not
reasonably describe the records being sought, it was under the obligation to engage in a dialogue
with Mr. Seife to more appropriately tailor the request, a process that the State Department
undertook in connection with the 12996 request. See Ruotolo, 53 F.3d at 10 (holding that under 28
C.F.R. § 16.3(b), the agency had a duty to assist FOIA requesters “in reformulating their request if it
was thought that the request needed to be narrowed”). It is not apparent that the State Department
engaged in a similar process with respect to the 12997 request.
Furthermore, while Stein affirms in his supplemental declaration that a search for transcripts
of background briefings not uploaded to the State Department’s website would be “incredibly
burdensome,” Stein Supp. Decl. ¶ 7, he fails to sufficiently explain how and why it would be so.
“An agency need not respond to a request that is ‘so broad as to impose an unreasonable burden
upon the agency,’ such as one which ‘require[s] the agency to locate, review, redact, and arrange for
inspection a vast quantity of material.’” Nat’l Day Laborer Organizing Network v. U.S. Immigration and
18
Customs Enf’t, No. 16-cv-387 (KBF), 2017 WL 1494513, at *11 (S.D.N.Y. Apr. 19, 2017) (quoting
Serv. Women’s Action Network v. Dep’t of Def., 888 F. Supp. 2d 282, 290-91 (D. Conn. 2012), aff’d, 570
F. App’x 54, 57 (2d Cir. 2014)); accord Am. Fed’n of Gov’t Emps., Local 2782 v. U.S. Dep’t of Commerce,
907 F.2d 203, 209 (D.C. Cir. 1990); Roman, 2013 WL 210224, at *6. “The rationale for this rule is
that FOIA was not intended to reduce government agencies to full-time investigators on behalf of
requestors.” Freedom Watch, Inc., 2012 WL 4753281, at *6. Nonetheless, if an agency claims that
responding to a request is unreasonable, “it bears the burden to ‘provide [a] sufficient explanation as
to why such a search would be unreasonably burdensome.’” Ayuda, Inc. v. Fed. Trade Comm., 70 F.
Supp. 3d 247, 275 (D.D.C. 2014) (alteration in original) (quoting Nation Magazine, 71 F.3d at 892).
The State Department’s explanation of the burden involved here is inadequate.
Stein attests that “there is no centralized or systematized process by which [other federal]
entities send transcripts to PA” and that a search for transcripts of background briefings would
“need to cover the individual e-mail accounts of all employees who may have signed up to receive
press releases from the White House or other agencies.” Stein Supp. Decl. ¶ 7. That is the extent of
his explanation of the burden imposed by Mr. Seife’s 12997 request. Stein provides no information
regarding the total number of email accounts that would need to be searched, or the level of
difficulty of, or amount of time required by, the search process itself. Absent such or similar
information describing with reasonable specificity the actual burden imposed by the 12997 request,
the Court cannot conclude that a response to Mr. Seife’s request would in fact be unduly
burdensome. 9
Under the State Department’s interpretation of the 12997 request, it was reasonable for the agency to believe that the
Office of Press Relations would be the most likely to possess responsive records. First, Stein’s declaration sufficiently
establishes that IPS had the knowledge required to determine which office within the State Department was reasonably
likely to maintain records responsive to the request. IPS itself is tasked with managing records within the State
Department and with responding to records requests under FOIA. Stein Decl. ¶ 2. Second, the Stein Declaration
sufficiently shows that the Office of Press Relations was reasonably likely to have the requested records. As Stein
explains in his declaration, the Office of Press Relations is “the central conduit of information flowing from the [State]
Department to accredited journalists” and “supports the President and the Secretary of State by explaining U.S. foreign
9
19
B. The 12996 Request
1. Documents Withheld Pursuant to Exemption 5
The State Department claims that portions of various emails, draft talking points, proposed
questions and answers, and draft documents in connection with press releases are properly withheld
under Exemption 5. Mr. Seife argues that the State Department has failed to carry its burden to
show that the redacted information in these documents is subject to either the deliberative process
privilege or the presidential communications privilege. The Court agrees with Mr. Seife.
FOIA Exemption 5 exempts from disclosure “inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with the
agency . . . .” 5 U.S.C. § 552(b)(5); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S.
340, 352 (1979) (“Exemption 5 of the FOIA . . . provides that the affirmative disclosure provisions
do not apply to ‘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.” (citing 5 U.S.C. § 552(b)(5))).
“Courts have interpreted Exemption 5 to encompass traditional common-law privileges against
disclosure, including the. . . deliberative process . . . privilege[ ].” Nat’l Council of La Raza v. Dep’t of
Justice, 411 F.3d 350, 356 (2d Cir. 2005); see also Sears, 421 U.S. at 149 (“[I]t is reasonable to construe
Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil
discovery context.”); Grand Cent. P’ship, 166 F.3d at 481 (“Stated simply, agency documents which
would not be obtainable by a private litigant in an action against the agency under normal discovery
rules (e.g., attorney-client, work-product, executive privilege) are protected from disclosure under
policy and actions to domestic and foreign journalists.” Id. ¶ 20. The office prepares the State Department
spokesperson for daily press briefings, releases additional information to the media, acts as the “authoritative channel of
information about the Secretary’s schedule,” and responds to inquiries from the press. Id. In light of these functions
performed by the Office of Press Relations, it was reasonable to believe that that office would have in its possession any
documents responsive to the 12997 request. Because the Court finds that the State Department’s interpretation of the
12997 request was overly narrow, and in light of the State Department’s recognition that Department employees may
have responsive documents stored in their email, it is not clear that the Office of Press Relations would be the only
department to have information responsive to the 12997 request as the Court has just interpreted that request.
20
Exemption 5.” (citations and internal quotation marks omitted)).
A document fitting the criteria for withholding under Exemption 5 may nevertheless fall
outside of Exemption 5 “if it closely resembles that which FOIA affirmatively requires to be
disclosed: ‘final opinions . . . made in the adjudication of cases,’ ‘statements of policy and
interpretations which have been adopted by the agency and are not published in the Federal
Register,’ and ‘administrative staff manuals and instructions to staff that affect a member of the
public.’” Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 195 (2d
Cir. 2012) (quoting 5 U.S.C. § 552(a)(2)(A)-(C)). The two long-recognized exceptions to Exemption
5 are: (1) adoption, i.e., “when the contents of the document have been adopted, formally or
informally, as the agency position on an issue or are used by the agency in its dealings with the
public”; and (2) working law, i.e., “when the document is more properly characterized as an opinion
or interpretation which embodies the agency’s effective law and policy.” Id. (internal citations and
alterations omitted); see also Sears, 421 U.S. at 153 (“The affirmative portion of the Act, expressly
requiring indexing of ‘final opinions,’ ‘statements of policy and interpretations which have been
adopted by the agency,’ and ‘instructions to staff that affect a member of the public,’ 5 U.S.C.
§ 552(a)(2), represents a strong congressional aversion to secret (agency) law and represents an
affirmative congressional purpose to require disclosure of documents which have the force and
effect of law.” (internal citation and quotation marks omitted)).
a. Deliberative Process Privilege
Exemption 5 encompasses the deliberative process privilege, a privilege that protects records
that are: “(1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his
decision, and (2) deliberative, i.e., actually related to the process by which policies are formulated.”
La Raza, 411 F.3d at 356 (internal quotation marks omitted) (quoting Grand Cent. P’Ship, 166 F.3d at
482). This privilege protects “recommendations, draft documents, proposals, suggestions, and other
21
subjective documents which reflect the personal opinions of the writer rather than the policy of the
agency,” as well as “advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated.” Grand Cent. P’Ship, 166 F.3d
at 482 (citation omitted).
A document is “predecisional” when it is “prepared in order to assist an agency
decisionmaker in arriving at his decision.” Grand Cent. P’Ship, 166 F.3d at 482; accord Tigue v. U.S.
Dep’t of Justice, 312 F.3d 70, 80 (2d Cir. 2002); Hopkins v. U.S. Dep’t of Housing & Urban Dev., 929 F.2d
81, 84 (2d Cir. 1991). In assessing whether a document is predecisional, courts also consider
whether the government can: “(i) pinpoint the specific agency decision to which the document
correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency
official charged with making the agency decision, and (iii) verify that the document precedes, in
temporal sequence, the decision to which it relates.” Nat’l Congress for Puerto Rican Rights ex rel. Perez
v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000) (quotations and citation omitted).
A document is “deliberative” if it is “actually . . . related to the process by which policies are
formulated.” Stinson v. City of New York, 304 F.R.D. 432, 435 (S.D.N.Y. 2015) (omission in original)
(quoting Sec. & Exchange Comm’n v. Collins & Aikman Corp., 256 F.R.D. 403, 416 (S.D.N.Y. 2009)).
“The privilege ‘does not operate indiscriminately to shield all decision-making by public officials’
such as ‘routine operating decision[s].’” N.Y. Times Co., 499 F. Supp. 2d at 514 (quoting Schiller v.
City of New York, 04-cv-7922 (KMK) (JCF), 2007 WL 136149, at *12 (S.D.N.Y. Jan. 19, 2007)). “To
determine whether a document is deliberative, ‘[c]ourts have looked to factors such as whether the
document “(i) formed an essential link in a specified consultative process, (ii) ‘reflect[s] the personal
opinions of the writer rather than the policy of the agency,’ and (iii) if released, would ‘inaccurately
reflect or prematurely disclose the views of the agency.”’ Id. (quoting Grand Cent. P’Ship, 166 F.3d at
482).
22
The deliberative process privilege “does not, however, as a general matter, cover ‘purely
factual’ material.” Hopkins, 929 F.2d at 85. Nor does the privilege “protect a document which is
merely peripheral to actual policy formation; the record must bear on the formulation or exercise of
policy-oriented judgment.” Tigue, 312 F.3d at 80 (quoting Grand Cent. P’Ship, 166 F.3d at 482).
Most of the documents at issue in this case involve deliberations regarding the scheduling of
various press events and the substance of the message to be communicated to the press during those
events. The parties’ briefing underscores a split among district courts, in the absence of binding
appellate precedent, as to whether an agency’s decision regarding when, what, and how to
communicate to the press is in itself the type of policy-oriented judgment that is protected by the
deliberative process privilege. The Courts of Appeals for the Second and District of Columbia
Circuits have yet to establish a clear rule on the matter. Other courts in this district have answered
the question in the negative, holding that “[d]eliberations about how to present an already decided
policy to the public, or documents designed to explain that policy to—or obscure it from—the
public, including in draft form, are at the heart of what should be released under FOIA.” Nat’l Day
Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713, 741 (S.D.N.Y.
2011), amended on reconsideration (Aug. 8, 2011); see id. (concluding that agency deliberations about the
“messaging” to be delivered to the public about an existing policy is not protected under the
privilege); MacNamara v. City of New York, No. 04-cv-9216 (KMK) (JCF), 2007 WL 1169204, at *5
(S.D.N.Y. Apr. 20, 2007) (“Whether or not the Mayor should use . . . suggested ‘talking points’ is not
the sort of public policy decision that falls within the scope of the [deliberative process] privilege.”);
Fox News Network, LLC v. U.S. Dep’t of Treasury (“Fox News II”), 911 F. Supp. 2d 261, 276 (S.D.N.Y.
2012) (“[C]ommunications concerning how to present agency policies to the press or public,
although deliberative, typically do not qualify as substantive policy decisions protected by the
deliberative process privilege.”).
23
It is only when a draft public statement would reveal the agency’s deliberations regarding the
underlying substantive policy that these courts find that the privilege applies. See Citizens Union of
City of N.Y. v. Attorney Gen. of N.Y., 269 F. Supp. 3d 124, 165 (S.D.N.Y. 2017) (recognizing that
“discussions about, and revisions to, a draft public statement may be privileged if disclosure of the
communications would reveal how the Legislature’s or Governor’s deliberations regarding the
underlying ethics reform legislation progressed over time”); Fox News Network, LLC v. U.S. Dep’t of
Treasury (“Fox News I”), 739 F. Supp. 2d 515, 545 (S.D.N.Y. 2010) (holding that a draft press release
about a non-final policy decision, along with emails about the press release, were privileged because
they revealed alternatives that were ultimately not adopted and discussed rationales that may not
accurately reflect the ultimate rationale for the policy decision).
On the other hand, courts in the District of the District of Columbia have concluded that
draft talking points, anticipated questions and proposed answers, and other documents reflecting
deliberations about how to present an agency’s policy to the public are entitled to the protection of
the deliberative process privilege. See, e.g., ICM Registry, LLC v. U.S. Dep’t of Commerce, 538 F. Supp.
2d 130, 136 (D.D.C. 2008) (finding that emails containing agency employees’ opinions on public
relations were subject to the deliberative process privilege); Sierra Club v. U.S. Dep’t of Interior, 384 F.
Supp. 2d 1, 19 (D.D.C. 2004) (concluding that the agency sufficiently showed that a document
containing draft talking points was protected by the deliberative process privilege when those talking
points were “predecisional to the actual communication of [the] information and issues”); Thompson
v. Dep’t of the Navy, No. CIV. A. 95-347 (RMU), 1997 WL 527344, at *4-5 (D.C.C. Aug. 18, 1997)
(finding that a set of hypothetical questions to help an admiral prepare for an interview, a critique of
a practice interview, a draft answer to a possible media question, and a video of a mock press
conference were privileged because the materials showed the Navy’s “predecisional, deliberative
process concerning what information it was going to disclose to the media”). The First Circuit
24
Court of Appeals has more recently followed this approach as well, determining that “documents
[that] deal with the [agency’s] decision of how and what to communicate to the public” are
predecisional because that decision “is a decision in and of itself.” New Hampshire Right to Life v. U.S.
Dep’t of Health & Human Servs., 778 F.3d 43, 54 (1st Cir.), cert. denied, 136 S. Ct. 383 (2015).
As Judge Maas aptly remarked, “[i]n light of these conflicting decisions, it is appropriate to
focus on the policy underlying the deliberative process privilege.” Fox News I, 739 F. Supp. 2d at
544. As the Supreme Court has explained, the deliberative process privilege rests on “the policy of
protecting the ‘decision making processes of government agencies,’” with a particular focus on
“documents ‘reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions are policies are formulated.’” Sears, 421 U.S. at 150
(internal citations omitted). “[T]he ultimate purpose of this long-recognized privilege is to prevent
injury to the quality of agency decisions.” Id. at 151. As then-Judge Ginsburg highlighted, “[i]n
enacting Exemption 5, Congress determined that the ‘efficiency of Government would be greatly
hampered if, with respect to legal and policy matters, all Government agencies were prematurely
forced to “operate in a fishbowl.”’” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434
(D.C. Cir. 1992) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)).
It is established that a document is predecisional, and potentially subject to the deliberative
process privilege’s protections, where that document is “prepared in order to assist an agency
decisionmaker in arriving at his decision.” Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S.
168, 184 (1975) (emphasis added); accord Grand Cent. P’Ship, 166 F.3d at 482; Hopkins, 929 F.2d at 84.
Of course, not every decision made by an agency is shielded by the deliberative process privilege.
See N.Y. Times Co., 499 F. Supp. 2d at 514. Nonetheless, underlying the deliberative process
privilege is the recognition that “the process of selecting among alternative policies can be delicate
and audience-sensitive, susceptible to distortions and vulnerable to fudging when the deliberators
25
fear or expect public reaction.” Petroleum Info. Corp., 976 F.2d at 1435. This consideration provides
considerable weight to the approach embraced by the District of the District of Columbia: an
agency’s decision regarding how to present its substantive policies to the public often involves the
evaluation of alternative public relations policies, policies which by their very nature are audiencesensitive and must anticipate public reaction. Even when an underlying decision or policy has
already been established by the agency, the decision of how, and to what extent, to convey that
policy to the public may require input by many working components within the agency, or even an
analysis of the underlying policy itself. The Court is concerned that a rule categorically exempting
such decisions from the deliberative process privilege would force agencies to prematurely “operate
in a fishbowl.” Id. at 1434.
Moreover, the Second Circuit has previewed its position on this issue, a position which
aligns with the approach taken by the First Circuit and the District of the District of Columbia. In
American Civil Liberties Union v. Department of Justice, the Second Circuit found that the deliberative
process privilege applied to “a draft of a proposed op-ed article that suggested some ways of explaining
the Government’s legal reasoning in support of drone strikes.” 844 F.3d 126, 133 (2d Cir. 2016)
(emphasis added). The article was never published, and the Circuit concluded that, “[a]lthough it
reveals some of the unnamed writer’s thinking about legal justification for drone strikes, it is a draft
and for that reason predecisional.” Id. The draft document is not described as reflecting
deliberations in connection with the underlying drone strike policy, but rather in connection with the
ways in which the administration’s justification for those strikes would be presented to the public. If
the Second Circuit viewed such a decision as outside the category of policy-oriented judgment
protected by the deliberative process privilege, there would be no basis for the Circuit’s conclusion
that the document was in fact privileged. Thus, while American Civil Liberties Union contains no
detailed analysis in connection with the privilege’s application to that draft document, it does suggest
26
that, if faced with the question of whether decisions regarding press strategy may be exempt from
disclosure under the deliberative process privilege, the Second Circuit’s answer would be “yes.”
In light of American Civil Liberties Union, the First Circuit’s holding, and the policy
underpinnings of the deliberative process privilege, this Court respectfully parts ways with its
esteemed colleagues and adopts the approach espoused by the District of the District of Columbia.
Therefore, the State Department here may withhold documents that reflect agency deliberations
regarding the manner in which its policies are explained to the public. Nonetheless, the burden
remains on the State Department to “furnish the Court with specific information establishing that
the [document] is both predecisional and deliberative, by explaining, for example, the ‘function and
significance [of the document] in the agency’s decisionmaking process.’” Fox News II, 911 F. Supp.
2d at 276 (quoting N.Y. Times Co., 499 F. Supp. 2d at 515); see also Nat’l Day Laborer Org. Network, 811
F. Supp. 2d at 741 (a draft document is only protected by the privilege “if it contains discussions that
reflect the policy-making process”); Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir.
1991) (emphasizing the need for detailed submissions by the agency showing that the documents
reflect the “give-and-take of the consultative process” as well as “the role played by the documents
in issue in the course of that process” (internal citations omitted)).
Here, the documents withheld by the State Department pursuant to the deliberative process
privilege are described in the Stein Declaration and Vaughn index as intra- and inter-agency email
exchanges regarding the content and modalities of various “on background” briefings, as well as
related draft and final talking points, anticipated questions and proposed answers, draft “rollout”
schedules, and draft opening statements.
i. Emails
The documents listed in Categories 1, 3, 4, 6, 12, 19 through 22, and 25 through 29 are
various email exchanges that discuss internal State Department deliberations and consultations with
27
other agencies regarding the text of, timing of, and participation in various State Department
background briefings and other announcements. Those include the November 13, 2013,
announcement designating Boko Haram and Ansaru as Foreign Terrorist Organizations and
Specially Designated Global Terrorists, the agency’s May 5, 2014 background briefing on Syria,
travel and press schedules related to issues concerning Afghanistan, a May 2014 background briefing
on the topic of Sergeant Bowe Bergdahl’s release and return, background briefings on Iraq and Iran,
and the public rollout of a policy announcement on Ukraine-related sanctions. The Stein
Declaration explains in general terms that the State Department “often uses background briefings to
provide the public with additional information about important policy announcements or evolving
policy actions” and that background briefings are “frequently” scheduled “either immediately before
or immediately following policy announcements or decisions.” Stein Decl. ¶ 26. Stein goes on to
state that deliberations regarding the manner in which the background briefings will be executed
“often take place in the context of broader discussions of accompanying public outreach strategies
and the underlying policy actions at issue,” id., and “involve foreign policy considerations the
disclosure of which could chill the free flow of internal recommendations, candid assessments and
necessary exchanges in which government officials are involved,” Stein Supp. Decl. ¶ 11.
The Vaughn index provides slightly more detail regarding the nature of the alleged
deliberations reflected in the redacted documents. It explains that the materials in Categories 1, 3, 4,
and 26 relate to a final decision regarding the text and timing of, and participation in, certain
announcements and the potential participants in the related background briefings. Stein Supp.
Decl., Ex. 19 at 1-4, 22. Some of these emails are additionally described as reflecting foreign policy
considerations. See id. at 2-3, 22. The emails listed in Categories 6, 12, 21, and 29 include proposed
talking points and anticipated questions and proposed answers in connection with background
briefings. Id. at 6, 11, 18, 25. The emails in Category 12 also include discussions regarding the
28
individual to serve as background briefer and “deliberations about a response to a senator’s
Question for the Record,” which the State Department asserts is not responsive to Mr. Seife’s
request. Id. at 11. The emails in Category 19 reference deliberations with respect to the content of a
statement to be made by Secretary of State John Kerry and the “sequencing of events surrounding
the statement.” Id. at 16. The email in Category 20 discusses the selection of a background briefer,
content of talking points, and communications to the briefing attendees.10 Id. at 17. The emails
listed in Categories 22, 25, and 28 include discussions regarding schedules of possible press events
and the appropriate participants. Id. at 19, 21, 23. The authors of all of the withheld emails are
identified only as State Department or other agency “officials,” and any relationship between the
authors and recipients is not apparent from the submissions. Finally, the Vaughn index states that
some of the withheld emails reflect their authors’ views and opinions, but provides no such
information in connection with the emails listed in Categories 1, 3, 4, 26, and 29.
The information submitted in the Vaughn index and the Stein Declaration is insufficient to
allow the Court to determine whether a majority of the information withheld on the basis of the
deliberative process privilege are in fact entitled to such protection. The Vaughn index states that
many of these emails contain “deliberations” and “internal Department discussions” regarding
“press strategy” and the “text, timing, and participation in” the State Department’s announcements.
However, it is unclear that all of the emails are predecisional and deliberative. See Stein Supp. Decl.,
Ex. 19 at 1-4, 16, 19, 21-23. While several of the emails appear to temporally pre-date the State
Department announcements and background briefings that they relate to, some of the emails are
dated the same date as the announcement to which they relate. This is particularly true of many
emails related to the State Department’s November 13, 2013 announcement regarding Boko Haram
This email is also described as including communications with presidential advisers, and the State Department has
withheld it under the presidential communications privilege, discussed infra at Section IV.B.1.b
10
29
and Ansaru, as well as the emails in Category 19, all of which are dated the same date as the related
background briefing. See id. at 1, 3-5. Other emails, such as the emails in Categories 6, 20, 21, and
22, relate to events for which a date is not provided. See id. at 6, 17-19.
Even if the emails could all be considered predecisional, the Court cannot conclude that they
are deliberative. Despite the conclusory assertion that the emails reflect the State Department’s
deliberations, the emails’ roles in the deliberative process are not apparent from the State
Department’s submissions. See Quinon, 86 F.3d at 1227 (noting that Vaughn submissions are
insufficient where “the agency’s claims are conclusory, merely reciting statutory standards, or if they
are too vague or sweeping”). There is no indication in the Stein Declaration or the Vaughn index,
for example, that the emails concerning the text, timing, and modalities of certain agency
announcements include recommendations or proposals, or that they reflect the views of the authors
rather than of the agency. Cf. Sierra Club, 384 F. Supp. 2d at 19 (finding that an emailed document
was protected by the deliberative process privilege when it “specified the decision at issue . . . and
that the document contained recommendations, which may or may not have been adopted”); see
Grand Cent. P’Ship, 166 F.3d at 482 (explaining that the deliberative process privilege protects
“recommendations, draft documents, proposals, suggestions, and other subjective documents which
reflect the personal opinions of the writer rather than the policy of the agency”).
Nor does the Vaughn index identify the authors and recipients of the emails with sufficient
specificity to determine that the emails do not contain “the denouement of the decisionmaking
rather than part of its give-and-take.” Access Reports, 926 F.2d at 1195; see id. (recognizing that “the
relation between the author and recipients of the document” is a “key feature under both the
‘predecisional’ and ‘deliberative’ criteria”). The relationships between the authors and recipients of
these emails are particularly important in light of the fact that the dates of many of the emails
allegedly reflecting the deliberative process—and not the State Department’s final decisions
30
regarding its press strategy—coincide with the dates of the announcements to which they relate, and
the Vaughn index does not state that all of those emails contain the authors’, rather than the
agency’s, opinions. Absent information describing the authors and recipients, or whether the
communications involved recommendations for consideration in the deliberative process, such as
suggestions made by junior officials to senior officials or decision-makers within the agency, the
Court cannot determine that the emails are deliberative in nature and subject to the privilege. See
Access Reports, 926 F.2d at 1195 (“A document from a junior to a senior is likely to reflect his or her
own subjective opinions and will clearly have no binding effect on the recipient. By contrast, one
moving from senior to junior is far more likely to manifest decisionmaking authority and to be the
denouement of the decisionmaking rather than part of its give-and-take.”); U.S. Dep’t of the Treasury v.
Pension Benefit Guar. Corp., 222 F. Supp. 3d 38, 42 (D.D.C. 2016) (“Even if the document is
predecisional at the time it is prepared, it can lose that status if it is adopted formally or informally,
as the agency position on an issue.” (citation omitted)).
Additionally, certain emails, such as those contained in Categories 25, 26, and 28, are
described as including information regarding the planning of several press events. Yet, the State
Department has not shown that those communications are press policy discussions, such as those
that have been protected by the District of the District of Columbia, rather than mere logistical or
“routine operating decision[s].” N.Y. Times Co., 499 F. Supp. 2d at 514; see ICM Registry, 538 F.
Supp. 2d at 136 (“[D]eliberations regarding public relations policy are deliberations about policy, even
if they involve ‘massaging’ the agency’s public image.” (emphasis added)). Stein’s supplemental
declaration states generally that discussions regarding the planning of press events involves foreign
policy considerations, but does not explain how those foreign policy considerations elevate the
event-planning discussions from routine operating decisions to policy-oriented deliberations.
Overall, the emails listed in the Vaughn index and the descriptions provided by the State
31
Department are simply insufficient for the Court to determine the role that these emails and their
contents played in the agency’s deliberations.
ii. Proposed Talking Points, Anticipated Questions and Proposed
Answers, and Draft Opening Statements
“The mere fact that a document is a draft . . . is not a sufficient reason to automatically
exempt it from disclosure.” N.Y. Times Co., 499 F. Supp. 2d at 515 (quoting Lee, 923 F. Supp. at
458). The descriptions provided by the State Department of many of the “proposed” talking points
and anticipated questions and proposed answers do not include specific information about the
documents, such as the dates on which they were prepared, the relationship between their author
and ultimate recipient, or their “function and significance in the agency’s decisionmaking process.”
The Wilderness Soc’y v. U.S. Dep’t of the Interior, 344 F. Supp. 2d 1, 14 (D.D.C. 2004).
It is equally unclear whether the “proposed” talking points that were withheld were in draft
or final form. Stein’s declaration states that the withheld documents include “draft and final
proposed talking points.” Stein Decl. ¶ 26. However, the descriptions provided in the Vaughn index
do not specify whether the proposed talking points at issue are in draft or final form, or whether
they were the talking points actually implemented by State Department officials in communicating
with the press. See Brennan Ctr., 697 F.3d at 195 (noting that documents may lose Exemption 5
protection if they are “used by the agency in its dealings with the public”).
Moreover, with the exception of the document in Category 15, these documents were
withheld only part, yet the Vaughn index does not specify the information that was withheld.
Instead, the index explains in conclusory terms that the documents were withheld in part under
Exemption 5 as they contain material “which is pre-decisional and deliberative with respect to a final
decision” on “points made to the press” or “press guidance,” and that the documents contain “the
authors’ thoughts and opinions.” Stein Supp. Decl., Ex. 19 at 5, 6, 9, 10, 14, 15. First, as previously
explained, conclusory explanations are insufficient to justify application of the deliberative process
32
privilege. See Quinon, 86 F.3d at 1227. More fundamentally, the Court simply cannot determine
whether material is appropriately withheld without a more fulsome description of what that material
is.
With respect to the draft listed in Category 15, which was withheld in whole, the Vaughn
index describes this document as “anticipated questions and proposed answers regarding the
Department’s November 13, 2013 announcement designating Boko Haram and Ansaru as Foreign
Terrorist Organizations and Specially Designated Global Terrorists.” Stein Supp. Decl., Ex. 19 at
13. No additional details are provided. The date of the document is unknown, as are the roles
played by the author and recipient and the document itself in any related decisionmaking process.
The drafts of opening statements contained in Category 13 are likewise inadequately
described. While the State Department indicates that the two documents in that category are a clean
draft and a subsequent redline draft of opening statements “prepared for the Department’s
November 13, 2013 background briefing about the designation of Boko Haram and Ansaru” as
terrorist organizations, the Vaughn index does not specify what portions of those drafts were
withheld. See Stein Supp. Decl., Ex. 19 at 12.
Based upon the information provided by the State Department, the Court cannot
determine that the proposed talking points, draft questions and answers, and draft opening
statements “formed an essential link in a specified consultative process” or “if released, would
inaccurately reflect or prematurely disclose the views of the agency.” Grand Cent. P’Ship, 166 F.3d at
482.
iii. Draft Rollout Schedules
The State Department has withheld portions of draft “rollout” schedules related to the
announcement designating Boko Haram and Ansaru as terrorist organizations and to “the topic of
Iraq.” Stein Supp. Decl., Ex. 19 at 10, 14. The former, listed in Category 11, does not specify which
33
portions of the draft document were withheld. See id. at 10. The withheld information in the latter,
listed in Category 17, is described as proposed events, proposed participants, and tentative timing of
events. Id. at 14. From the conclusory statements offered to explain the application of Exemption
5, the Court cannot determine whether this information is properly subject to the deliberative
process privilege, or falls instead in the category of “routine operating decision[s].” N.Y. Times Co.,
499 F. Supp. 2d at 514.
b. Presidential Communications Privilege
The presidential communications privilege is “closely affiliated” with the deliberative process
privilege. In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997); see Judicial Watch, Inc. v. Dep’t of Justice,
365 F.3d 1108, 1113 (D.C. Cir. 2004) (“Exemption 5 also has been construed to incorporate the
presidential communications privilege.”). “The privilege protects ‘communications in performance
of a President’s responsibilities, . . . of his office, . . . and made in the process of shaping policies and
making decisions.’” Am. Civil Liberties Union v. Nat’l Sec. Agency, No. 13-cv-9198 (KMW) (JCF), 2017
WL 1155910, at *9 (S.D.N.Y. Mar. 27, 2017) (alterations in original) (quoting Amnesty Int’l USA v.
Cent. Intelligence Agency, 728 F. Supp. 2d 479, 522 (S.D.N.Y. 2010)). The privilege “applies to
communications made in the process of arriving at presidential decisions.” N.Y. Times Co., 499 F.
Supp. 2d at 516 (quoting In re Sealed Case, 121 F.3d at 745). The privilege protects “communications
‘in performance of a President’s responsibilities,’ . . . ‘of his office,’ . . . and made ‘in the process of
shaping policies and making decisions.’” Amnesty Int’l, 728 F. Supp. 2d at 522 (quoting Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977)).
Broader than the deliberative process privilege, the presidential communications privilege
protects “final and post-decisional materials as well as pre-deliberative ones.” Amnesty Int’l, 728 F.
Supp. 2d at 522 (quoting In re Sealed Case, 121 F.3d at 745). The privilege extends beyond direct
communications by the President to communications “solicited and received” by senior presidential
34
advisors, as well as communications authored by such advisors themselves. In re Sealed Case, 121
F.3d at 752. The privilege additionally protects records memorializing or reflecting such
communications. Amnesty Int’l, 728 F. Supp. 2d at 522; Citizens for Responsibility & Ethics (“CREW”) v.
U.S. Dep’t of Homeland Sec., No. 06-cv-0173 (RJL), 2008 WL 2872183, at *3 (D.D.C. July 22, 2008).
The State Department has withheld one document that it claims is exempt from disclosure
pursuant to the presidential communications privilege—an email listed in Category 20 of the Vaughn
index. That email is described as “an inter-agency email exchange containing deliberations about the
preparation of talking points, proposed answers to anticipated questions, and the selection of
Department and [Department of Defense] briefers for an upcoming background briefing that
concerned Iraq.” Stein Supp. Decl., Ex. 19 at 17. The Vaughn index explains that portions of this
email were withheld under the presidential communications privilege because the withheld material
includes a communication sent by Bernadette Meehan, a director of strategic communications at the
National Security Council, on June 19, 2014. Id. Stein’s declaration describes Ms. Meehan as a
“senior presidential advisor with broad and significant responsibility for gathering information in the
course of preparing advice for potential presentation to the President.” Stein Decl. ¶ 28. The
supplemental declaration states that Ms. Meehan was responsible for advising the President on
“strategic communications on matters related to national security, including the United States policy
towards Iraq.” Stein Supp. Decl. ¶ 9. Stein also avers that disclosure of the withheld information in
the email exchange would reveal both information regarding the process by which the President
receives national security advice from his advisers, as well as information about the advice itself. Id.
Mr. Seife contests the factual premise of these statements, arguing that spokespeople
generally do not advise the President on subjects such as foreign policy or national security, and that
it is unlikely that Ms. Meehan would advise the President on press strategy, as that role is usually
relegated to the White House Office of Communications. Pl.’s Mem. at 11. He correctly argues that
35
the presidential communications privilege is to be applied only to those communications that are
authored or received in the course of advising the President. See In re Sealed Case, 121 F.3d at 752
(“Of course, the privilege only applies to communications that [ ] advisers and their staff author or
solicit and receive in the course of performing their function of advising the President on official
government matters.”); accord Judicial Watch, 365 F.3d at 1116; Ctr. for Effective Gov’t v. U.S. Dep’t of
State, 7 F. Supp. 3d 16, 23 (D.D.C. 2013). Indeed, when a presidential adviser is simultaneously
responsible for performing functions other than advising the President, “the government bears the
burden of proving that the communications occurred in conjunction with the process of advising
the President.” In re Sealed Case, 121 F.3d at 752.
Here, the Court accepts the factual premise established by the State Department, namely that
Ms. Meehan was a senior presidential adviser. See Florez, 829 F.3d at 182 (noting that affidavits
submitted by an agency are accorded a “presumption of good faith”). Despite Mr. Seife’s
protestations, the Court does not discern any suggestion of bad faith on the part of the State
Department. Nevertheless, Mr. Seife is correct in that the agency has not carried its burden of
providing the Court with sufficient detail for it to determine that the email in question was authored
in the course of advising the President. Neither Stein’s declarations nor the Vaughn index indicate
that the information in the email was gathered or created for the purpose of advising the President,
or in the course of such advising. Particularly because Ms. Meehan is a “dual hat” adviser, the State
Department must show that this email was prepared in the course of advising the President, and not
in the performance of some other governmental function. In re Sealed Case, 121 F.3d at 752.
2. Documents Withheld Pursuant to Exemption 6
The State Department withheld various categories of information claiming that Exemption 6
applies. The withheld information includes agency officials’ official government email addresses, cell
phone numbers, the identities of background briefers, and names of certain agency officials. The
36
State Department also withheld contact information for members of the public and an official’s
comments about personal plans. Mr. Seife does not take issue with all of these withholdings.
Rather, he contests the redaction of the background briefers’ identities, the names of Department of
Defense (“DoD”) officials, and government email addresses and cell phone numbers of agency
officials.
FOIA Exemption 6 exempts from disclosure information from personnel, medical, or other
similar files that “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). This exemption “is intended to ‘protect individuals from the injury and embarrassment
that can result from the unnecessary disclosure of personal information.’” Wood v. Fed. Bureau of
Investigation, 432 F.3d 78, 86 (2d Cir. 2005) (Sotomayor, J.) (quoting U.S. Dep’t of State v. Washington
Post Co., 456 U.S. 595, 599 (1982)). Exemption 6 is “specifically aimed at protecting the privacy of
personal information in government records.” Associated Press v. U.S. Dep’t of Justice, No. 06-cv-1758
(LAP), 2007 WL 737476, at *4 (S.D.N.Y. Mar. 7, 2007), aff’d, 549 F.3d 62 (2d Cir. 2008).
A court’s inquiry regarding the applicability of Exemption 6 to withheld information is a
two-step process. Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 174 (2d Cir. 2014); Wood,
432 F.3d at 86. First, the court “must determine whether the personal information is contained in a
file similar to a medical or personnel file.” Wood, 432 F.3d at 86. If the information is contained in a
“similar file,” the court must then “balance the public’s need for the information against the
individual’s privacy interest to determine whether the disclosure of the [information] would
constitute a ‘clearly unwarranted invasion of personal privacy.’” Id. (quoting 5 U.S.C. § 552(b)(6))
(citing U.S. Dep’t of State v. Ray, 502 U.S. 164, 175 (1991)).
a. “Similar Files”
A majority of the withheld personal information is contained in emails. The State
Department has also withheld the names of background briefers appearing in proposed talking
37
points, draft opening statements, and a draft rollout schedule, as well as an agency official’s cell
phone number contained in draft opening statements. These documents are “similar files” under
FOIA.
“The phrase ‘similar files’ sweeps broadly and has been interpreted by the Supreme Court to
mean ‘detailed Government records on an individual which can be identified as applying to that
individual.’” Cook, 758 F.3d at 174 (quoting Washington Post, 456 U.S. at 602); accord Associated Press v.
U.S. Dep’t of Def., 554 F.3d 274, 291 (2d Cir. 2009). As the Supreme Court has further explained,
“the protection of an individual’s right of privacy, which Congress sought to achieve by preventing
the disclosure of [information] which might harm the individual, surely was not intended to turn
upon the label of the file which contains the damaging information.” Washington Post, 456 U.S. at
601 (alteration in original). Therefore, “a record need not be like a personnel file in the sense that it
is employment-related or a medical file in the sense that it contains a record of a person’s medical
history or medical treatment and care.” Cook, 758 F.3d at 174. “Indeed, the record need not even
be a ‘file.’” Id.; accord N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1006-07
(D.C. Cir. 1990). Nor does the information in the file need to be “intimate”; “the threshold for
determining whether information applies to a particular individual is minimal.” Milton v. U.S. Dep’t of
Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting N.Y. Times Co., 920 F.2d at 1006).
The emails at issue here are “similar files” under Exemption 6. They contain the names and
email addresses of agency officials, and, thus, can be identified as applying to those individuals. See
Cook, 758 F.3d at 174; see also Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46-47
(D.D.C. 2012) (finding that emails, which contained names, titles, offices, and phone numbers,
qualified as similar files). Even where the emails contain the names of individuals other than the
authors and recipients, they nonetheless contain personally identifying information and are therefore
similar files. See Judicial Watch, 875 F. Supp. 2d at 46 (“[F]iles containing private information on
38
multiple individuals may also be protected.” (citing Judicial Watch, Inc. v. Food & Drug Admin., 449
F.3d 141, 152 (D.C. Cir. 2006)).
The other documents—proposed talking points, draft opening statements, and draft rollout
schedules—are also similar files. As explained above, the Supreme Court has made clear that any
government record that can be identified as applying to the individual in question meets the
threshold requirement under Exemption 6. In light of this broad reading of the term “similar files,”
as well as the fact that these documents contained the names of agency officials, the Court finds that
the gatekeeping requirement is satisfied.
b. Balancing of Interests
Having concluded that the withheld information is contained in files that qualify for
exemption under Exemption 6, the Court must determine whether disclosure of the personal
information would result in a “clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
522(b)(6). In making this determination, the Court must balance the privacy concerns of the agency
officials with the public’s interest in disclosure. Wood, 432 F.3d at 87. However, “[t]he balancing
analysis for FOIA Exemption 6 requires that [courts] first determine whether disclosure of the files
would compromise a substantial, as opposed to a de minimis, privacy interest, because if no
substantial privacy interest is implicated FOIA demands disclosure.” Cook, 758 F.3d at 176 (quoting
Long v. Office of Personnel Mgmt., 692 F.3d 185, 191 (2d Cir. 2012)).
An individual’s privacy concerns “encompass[ ] all interests involving ‘the individual’s
control of information concerning his or her person.’” Wood, 432 F.3d at 88 (quoting Hopkins, 929
F.2d at 87). “Information protected under Exemption 6 includes such items as a person’s name,
address, place of birth, employment history, and telephone number.” Lewis v. U.S. Dep’t of Justice,
867 F. Supp. 2d 1, 17 (D.D.C. 2011); see Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873,
875 (D.C. Cir. 1989); Gov’t Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 106 (D.D.C.
39
2010) (personal email addresses); Schwaner v. Dep’t of the Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010)
(names, ranks, companies, and addresses of Army personnel).
Where an agency has demonstrated a privacy interest sufficient to implicate Exemption 6,
the burden falls to the requester to establish that disclosure “would serve a public interest cognizable
under FOIA.” Associated Press, 549 F.3d at 66. The public’s interest in disclosure involves
considerations of “the extent to which disclosure of the information sought would she[d] light on an
agency’s performance of its statutory duties or otherwise let citizens know what their government is
up to.” Wood, 432 F.3d at 88 (quoting Bibles v. Or. Natural Desert Ass’n, 519 U.S. 355, 355-56 (1997)).
i. Identities of Background Briefers
The State Department’s submissions do not establish a substantial privacy interest subject to
balancing against any public interest in disclosure. As the State Department explains, background
briefers are senior officials who are typically experts in the policy or subject matter that they brief.
Stein Supp. Decl. ¶ 12. They hold positions that do not include, as a general job responsibility,
interaction with the press. Id. The State Department asserts that disclosure of the identities of the
background briefers would “harm [the briefers’] privacy interest[s] in conducting official duties free
from harassment or embarrassment, by jeopardizing professional relationships and compromising
the briefer[s’] ability to perform effectively in [their] field of expertise.” Stein Decl. ¶ 33. These
assertions, however, do not establish that any interference with the officials’ ability to perform their
jobs also results in a “clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
Although courts read Exemption 6 broadly, Washington Post, 456 U.S. at 601, the exemption
“does not categorically exempt individuals’ identities,” Judicial Watch, 449 F.3d at 153. “Names and
other identifying information do not always present a significant threat to an individual’s privacy
interest[,]” and the threat to privacy “depends on the consequences likely to ensue from disclosure.”
Wood, 432 F.3d at 88 (citing Ray, 502 U.S. at 177). The Second Circuit has upheld the redaction of
40
individuals’ identities where public disclosure would expose those individuals to “embarrassment
and harassment in the conduct of their official duties and personal affairs.” Halpern, 181 F.3d at
296-97; accord Wood, 432 F.3d at 88. However, “an identifiable privacy interest in avoiding
disclosures of information that could lead to annoyance or harassment . . . does not authorize a
‘blanket exemption’ for the names of all government employees in all records.” Elec. Privacy Info. Ctr.
v. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 116 (D.D.C. 2005) (citing Baez v. U.S. Dep’t of Justice,
647 F.2d 1328, 1338 (D.C. Cir. 1980), and Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir.
1980)). “To justify their Exemption 6 withholdings, the defendants must show that the threat to
employees’ privacy is real rather than speculative.” Id. (citing Dep’t of the Airforce v. Rose, 425 U.S. 352,
380 n.19 (1976)).
The State Department has not provided evidence of a “real” threat of harassment to the
background briefers. Instead, the Stein Declaration relies on conclusory statements and a
hypothetical situation to explain the potential invasion of privacy. See Stein Decl. ¶ 33. The link
connecting the disclosure of these briefers’ identities to the alleged harassment is missing. The State
Department has not indicated that the background briefers at issue hold classified positions, or even
sensitive positions. The briefers appear to hold positions that are known, or knowable, to the
general public. Therefore, it is not apparent from the submissions how a foreign counterpart’s
knowledge that the briefer—holding an official position known to the counterpart—delivered what
became a public message would expose that briefer to unwarranted harassment in either his or her
official duties or personal life. It may be that whatever privacy interest the briefers have in
controlling dissemination of their names is de minimis and does not trigger the need to balance that
interest with the public interest in disclosure. See Cook, 758 F.3d at 176; Fed. Labor Rel. Auth. v. U.S.
Dep’t of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992) (noting that “the competing interests at
stake must be balanced” only “once a more than de minimis privacy interest is implicated). The Court
41
cannot conclude otherwise on this record.
Although the State Department’s failure to establish a substantial privacy interest is
dispositive, the Court addresses the competing interests at stake here. In arguing that disclosure is
necessary to inform the public about what the government is “up to,” Mr. Seife has identified two
particular concerns that will be satisfied by disclosure. The first is the public concern with
“[u]nderstanding the reasons for the government’s increasing reliance on background briefings, as
well as other mechanisms for controlling press coverage.” Declaration of Charles Seife, ECF No. 31
(“Seife Decl.”) ¶ 13. Mr. Seife affirms in his declaration, without identifying the source of his
information, that the proportion of press briefings held on background increased from twenty
percent in 2008 to nearly ninety percent in 2014, without any parallel rise in overall number of
briefings. Id. ¶ 12. Mr. Seife claims that allowing briefers to remain anonymous gives them “license
to lie” and insulates them from any skepticism that they may draw if their identities were known. Id.
¶ 9.
Second, in his reply brief, Mr. Seife explains that disclosure of the identities of the
background briefers will “demonstrate that executive branch agencies are actively deceiving the
public about a longstanding government practice: that the government is less than forthright about
whom it gives anonymity to at background briefings and why.” Pl.’s Reply at 12. This appears
targeted at the State Department’s averments in the Stein Declaration that the background briefers
do not routinely interact with the press.
These concerns are precisely the type of public interest cognizable under FOIA. See Long,
692 F.3d at 193 (“The only public interest cognizable under FOIA is the public ‘understanding of
the operations or activities of the government.’” (quoting U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of Press, 489 U.S. 749, 775 (1989))). Of course, “[t]he simple invocation of a legitimate public
interest . . . cannot itself justify the release of personal information. Rather, a court must first
42
ascertain whether that interest would be served by disclosure.” Hopkins, 929 F.2d at 88. “Disclosure
of information ‘that is accumulated in various governmental files but that reveals little or nothing
about an agency’s own conduct’ does not serve the policies underlying FOIA.” Massey v. Fed. Bureau
of Investigations, 3 F.3d 620, 625 (2d Cir. 1993) (quoting Reporters Comm., 489 U.S. at 773), abrogated on
other grounds, Milner v. Dep’t of Navy, 562 U.S. 562 (2011).
With respect to the first public interest articulated by Mr. Seife, disclosure of the names of
the background briefers would not reveal the reasons for the incremental number of press briefings
held on background rather than on the record. Disclosure may permit Mr. Seife, and other
members of the public, to contact the background briefers and attempt to obtain explanatory
information from them. However, this attenuated relationship between the information sought and
the potential illumination of the government activity at issue has been rejected by the Second Circuit
as grounds for disclosure under FOIA. See Hopkins, 929 F.2d at 88 (finding disclosure of payroll
records not required where it “would serve the public interest only insofar as it would allow the
[plaintiff] to contact individual employees, who may then dispute the accuracy of the data reflected
in the [agency’s] records”); see also id. (“[W]e find that disclosure of information affecting privacy
interests is permissible only if the information reveals something directly about the character of a
government agency or official.”). Moreover, the Second Circuit has expressly rejected “the interest
in identifying a federal employee by name in order to make contact or conduct interviews” as a
proper public interest to be balanced against the employee’s privacy concerns. Long, 692 F.3d at
194. Indeed, such a use of information obtained under FOIA “actually facilitates the invasion of the
employee’s personal privacy.” Id.
With respect to the second public interest—the interest in knowing that the government is
deceiving the public regarding the officials who are permitted to remain anonymous in giving
background briefings—Mr. Seife has identified a stronger public interest. Disclosure of the
43
background briefers’ identities would likely reveal what the government is “up to” when it describes,
at least in its submissions to this Court, the nature of the work performed by the briefers. Stein
avers that the background briefers do not regularly interact with the press, Stein Decl. ¶ 32, while
Mr. Seife has affirmed that he has personal knowledge of approximately a dozen briefings for which
the briefers’ identities were leaked, and in each case, the briefer was an official spokesperson or was
otherwise “well-acquainted with briefing the press,” Supplemental Declaration of Charles Seife, ECF
No. 39 (“Seife Supp. Decl.”) ¶ 7. Despite the State Department’s argument that Mr. Seife’s
allegations in this respect are nothing more than speculative, Mr. Seife has substantiated this
assertion with specific examples outlined in his declaration. At least one of these enumerated
briefings occurred in 2014, the year during which a majority of the background briefings listed in the
12996 request took place. Id. ¶ 16. Mr. Seife proceeds to list additional background briefers that he
personally has unmasked. Id. ¶¶ 21-26. Those briefers addressed the press anonymously on dates
between September 2012 and May 2014, again within the date range of the briefings identified in Mr.
Seife’s FOIA request. The unmasked briefers were all either agency spokespeople or otherwise
frequently interacted with the press. Id. ¶¶ 22-27.
Mr. Seife attests that he has personal knowledge of these allegations of fact. Id. ¶ 1. The
Court credits his attestation, as Mr. Seife affirms that he has more than twenty years of experience in
the media industry and has been using FOIA to research information about “governmental media
practices” since 1998. Seife Supp. Decl. ¶ 6. Among his research, Mr. Seife has investigated the
executive branch’s practice of holding press briefings on background rather than on the record. Id.
This evidence, submitted by sworn affidavit, suggests that the assertion in Stein’s Declaration
that the background briefers do not interact frequently with the press was not made in good faith,
and raises questions regarding the presumption of good faith that the Court otherwise affords to the
State Department submissions. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174-75
44
(2004) (holding that, under FOIA Exemption 7(C), a requester asserting a public interest in showing
that agency officials acted improperly in the performance of duties may obtain disclosure of
requested information by producing “evidence that would warrant a belief by a reasonable person
that the alleged Government impropriety might have occurred” and noting that where the
presumption of good faith applies to agency submissions, “clear evidence is usually required to
displace it”). While the Court does not at this time reach an ultimate determination with respect to
the presumptive good faith that is owed to the State Department in connection with the sworn
testimony it has submitted regarding background briefers, the Court notes its concern.
ii. Identities of Lower-Level Department of Defense Employees
The State Department has also withheld the identities of certain DoD officials. Stein’s
supplemental declaration establishes that the DoD’s practice is to withhold any personally
identifying information of its members who hold the military rank of Colonel or below, or are
otherwise ranked on the General Schedule (“GS”) at GS-15 or lower. Stein Supp. Decl. ¶ 13. An
exception to this policy exists for officials who routinely interact with the press. Id. The DoD’s
rationale for this policy is that such employees could face annoyance or harassment in their private
lives if their identities are disclosed. Id. Regarding the specific individuals whose identities have
been obscured here, Stein affirms that they were all ranked Colonel or lower, or GS-15 or lower, did
not routinely deal with the press, were involved in sensitive discussions related to the “contentious
regions” of Afghanistan and Iraq, and were not decision makers. Id.
The public interest identified by Mr. Seife here is the interest in knowing who, and what
departments within the DoD, are involved in making decisions regarding background briefings so as
to elucidate the reasons for the on background briefings. Pl.’s Mem. at 21; Pl.’s Reply at 14.
However, that public interest is insufficient to tip the scale in favor of disclosure, the primary
reason, once again, being the lack of a sufficient link between the information sought by Mr. Seife
45
and the government activity at issue. Given the lack of a direct link, the public interest in disclosure
is minimal, if it exists at all. See Hopkins, 929 F.2d at 88; Ctr. for Public Integrity v. U.S. Office of Personnel
Mgmt., No. 04-1274 (GK), 2006 WL 3498089, at *4-6 (D.D.C. Dec. 4, 2006) (finding a minimal, if
any, public interest in officials’ names where the link between those names and the public interest
allegedly served by disclosure was too attenuated).
Even if there were public interest in disclosure, the privacy interests at play here are
sufficient to permit the redaction of the DoD officials’ names. The Second Circuit, confronted with
withholdings based on the same DoD policy at issue here, concluded that DoD employees “have a
cognizable privacy interest in keeping their names from being disclosed wholesale” and found that
interest to outweigh the minimal public interest in disclosure. Long, 692 F.3d at 192, 195. Other
courts have similarly found the privacy interests of those officials whose names are withheld
pursuant to the DoD’s policy to outweigh the public interest in disclosure. See, e.g., Carmody &
Torrance v. Def. Contract Mgmt. Agency, No. 3:11-cv-1738 (JCH), 2014 WL 1050908, at *12-13 (D.
Conn. Mar. 13, 2014) (finding that the public interest served by disclosing DoD employee names
was “negligible or nonexistent”); Ctr. for Public Integrity, 2006 WL 3498089, at *6 (“[B]ecause the
privacy interest of the federal employees at issue in this case in the nondisclosure of their names and
duty stations outweighs the minimal FOIA-related public interest in disclosure, the Court concludes
that disclosure would constitute a ‘clearly unwarranted invasion of personal privacy.’” (quoting 5
U.S.C. § 552(b)(6))).
In light of the minimal public interest in disclosure, and the privacy interest held by the DoD
officials in controlling the dissemination of their names, the State Department’s withholdings were
appropriate to avoid a “clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
Summary judgment is therefore granted in favor of the State Department on these redactions.
46
iii. Email Addresses and Phone Numbers
The State Department has redacted the official government email addresses and official and
personal cellular phone numbers of certain employees in sensitive positions within the State
Department, the DoD, and the National Security Council. Mr. Seife asserts that the public interest
at stake as to this information involves his need as a journalist to interview these officials, as well as
a growing concern that senior officials attempt to evade FOIA by using private email servers in lieu
of official ones. Pl.’s Mem. at 21-22.
The first of these public interests is non-cognizable under FOIA. See Long, 692 F.3d at 193
(“The only public interest cognizable under FOIA is the public ‘understanding of the operations or
activities of the government.’” (quoting Reporters Comm., 489 U.S. at 775)); Cook, 758 F.3d at 177
(“Goals other than opening agency action to public scrutiny are deemed unfit to be accommodated
under FOIA when they clash with privacy rights.” (citation omitted)).
As to the second interest, Stein affirms that the withheld email addresses are those of DoD
employees, National Security Council officials, and a State Department official.11 Stein Supp. Decl. ¶
14. These officials hold sensitive positions, and they maintain a privacy interest in their contact
information. See Lewis, 867 F. Supp. 2d at 17 (noting that privacy interest exists in information such
as a person’s name, address, place of birth, employment history, and telephone number); Gov’t
Accountability Project, 699 F. Supp. 2d at 106 (personal email addresses); Schwaner, 696 F. Supp. 2d at
82 (names and addresses). The State Department has established that the email addresses that were
withheld were exclusively official government email addresses, and not personal accounts. See Stein
Supp. Decl. ¶ 14. Therefore, in weighing even a de minimis privacy right in the email addresses with
the public interest articulated by Mr. Seife, the Court finds that disclosure of the redacted email
The State Department has also withheld the contact information of an Office of the Director of National Intelligence
official. That official’s identity was withheld under FOIA Exemption 3, and Mr. Seife does not contest that withholding.
Stein Supp. Decl. ¶ 12 n.8.
11
47
domain information would not be proper. Accordingly, summary judgment on this issue is granted
in favor of the State Department.
C. Segregability
FOIA mandates that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt under this
subsection.” 5 U.S.C. § 552(b). “This provision requires agencies and courts to differentiate among
the contents of a document rather than to treat it as an indivisible ‘record’ for FOIA purposes.” Fed.
Bureau of Investigation v. Abramson, 456 U.S. 615, 626 (1982); accord Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1116 (D.C. Cir. 2007) (“Before approving the application of a FOIA exemption, the
district court must make specific findings of segregability regarding the documents to be withheld.”).
With respect to the document in Category 15, the State Department has indicated that it
“conducted thorough review of the document and determined that there is no meaningful, nonexempt information that may be reasonably segregated and released.” Stein Supp. Decl., Ex. 19 at
14. As explained below, the Court will grant the State Department an opportunity to substantiate its
claim of deliberative process privilege over the document and is not yet in a position to reach the
question of segregability.
D. Revised Vaughn Submissions
“[A] district court should not undertake in camera review of withheld documents as a
substitute for requiring an agency’s explanation of its claimed exemptions in accordance with
Vaughn.” Spirko v. U.S. Postal Service, 147 F.3d 992, 997 (D.C. Cir. 1998). Rather, “[t]he district court
should first offer the agency the opportunity to demonstrate, through detailed affidavits and oral
testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt
portions.” Id. (citation and internal quotation marks omitted). “If the agency fails to provide a
sufficiently detailed explanation to enable the district court to make a de novo determination of the
48
agency’s claims of exemption, the district court then has several options, including inspecting the
documents in camera, requesting further affidavits, or allowing the plaintiff discovery.” Id.
The Court finds it appropriate, at this juncture, to provide the State Department with the
opportunity to either conduct a search for documents responsive to the 12997 request or to provide
further substantiation for the agency’s claim that such a search would be unreasonably burdensome.
The Court also finds it appropriate to allow the State Department to provide further substantiation
of the grounds for its withholdings with respect to the information and document claimed exempt
under FOIA Exemption 5 and with respect to the identities of background briefers. Cf. Elec. Frontier
Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 174-75 (D.D.C. 2011) (“Having found the DOJ’s
Vaughn submissions inadequate, the Court has several options regarding how to proceed in this case
. . . [T]he Court finds that the best approach is to direct the agency to revise their Vaughn
submissions, taking into account the deficiencies identified by the Court.”). The Court will defer
ruling on the applicability of the deliberative process privilege and the presidential communications
privilege to the redacted information and withheld document, and will also withhold ruling on the
applicability of Exemption 6 to the identities of the background briefers, in order to allow the State
Department the opportunity to provide additional support for its claimed exemptions. The Court
will, of course, rule on the applicability of the asserted privileges and exemptions in the event that
the State Department is ultimately unsuccessful in carrying its burden of demonstrating the
applicability of the privileges and exemptions that it has asserted. Mr. Seife is free to assert any
objection to the State Department’s response to the 12997 request and to renew his arguments that
the information withheld in response to the 12996 request is not protected under Exemptions 5 and
6, in accordance with the schedule set forth below.
Accordingly, the State Department’s motion for summary judgment as to the applicability of
Exemption 6 is GRANTED as to the withholding of the identities of DoD officials and contact
49
information for agency officials, and DENIED WITHOUT PREJUDICE as to the propriety of the
agency’s response to the 12997 request, the withholding of information and the Category 15
document pursuant to Exemption 5, and as to the withholding under Exemption 6 of the identities
of the background briefers.
V.
CONCLUSION
For the reasons stated above, the State Department’s motion for summary judgment is
GRANTED IN PART and DENIED IN PART without prejudice. Mr. Seife’s cross-motion is
DENIED. The denial of the Mr. Seife’s motion is without prejudice to the extent that the motion
challenges the State Department’s response to the 12997 request, the withholding of documents and
information under Exemption 5, and the withholding of the identities of the background briefers
under Exemption 6. The State Department is directed to submit revised Vaughn submissions
addressing the State Department’s response to the 12997 request, the information and document
claimed exempt under Exemption 5, the identities of background briefers claimed exempt under
Exemption 6, as well as a segregability analysis addressing the Category 15 document, along with a
renewed motion for partial summary judgment no later than April 30, 2018. Mr. Seife may file a
renewed cross-motion for summary judgment with respect to the State Department’s response to
the 12997 request and its withholding of information and documents under Exemptions 5 and 6 no
later than thirty (30) days from the date of service of the State Department’s renewed motion. Any
oppositions to the motion(s) for summary judgment are due no later than twenty-one (21) days
following service of the motions, and any replies are due no later than fourteen (14) days following
service of the oppositions.
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The Clerk of Court is directed to terminate the motions pending at Dkt. Nos. 27 and 30.
SO ORDERED.
Dated: March 24, 2018
New York, New York
__________________________________
_____________________
______ _____ _____
____
___
GREGORY H. WOODS
GREGORY H
GOR
United States District Judge
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