Canning v. United States Department of State

• Court: District Court, District of Columbia
• Decided: October 24, 2018
• Docket: Civil Action No. 2013-0831
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGE CANNING, et al.,

Plaintiffs,

v. Civil Action No. 13-831 (RDM) UNITED STATES DEPARTMENT OF STATE,

Defendant.

SAE PRODUCTIONS, INC.,

Plaintiff,

v. Civil Action No. 15-1245 (RDM) UNITED STATES DEPARTMENT OF STATE,

MEMORANDUM OPINION AND ORDER

This action involves two overlapping Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, requests for State Department records, and two lawsuits seeking to compel the

Department to release those records. The first request, submitted by Plaintiffs George Canning

and Jeffrey Steinberg (“the Canning Plaintiffs”), sought (1) a 2010 memorandum from the

President to his foreign policy advisors, entitled “Presidential Study Directive 11” (“PSD-11”),

and related records, and (2) records concerning the Muslim Brotherhood. Dkt. 72-4 at 2. That

request is the subject of the litigation in Canning v. Department of State, No. 13-cv-831 (“the

Canning case”). The parties to the Canning case, with leave of the Court, previously filed cross- motions for summary judgment with respect to the first category of records—records relating to

PSD-11—and the Court issued an opinion resolving those motions. Canning v. Dep’t of State,

134 F. Supp. 3d 490 (D.D.C. 2015) (“Canning I”). The second request, submitted by SAE

Productions, Inc. (“SAE”), piggybacked on the first. It referred to a news report about the

Canning case and requested copies of three documents quoted in the article and all other

“records that are being processed pursuant to” the Canning Plaintiffs’ FOIA request. Dkt. 72-4

at 24–25. The second request is the subject of the litigation in SAE Productions, Inc. v.

Department of State, No. 15-cv-1245 (“the SAE case”).

Given the overlap between the Canning and SAE cases, the Court granted the State

Department’s motion to consolidate, see Minute Order (July 13, 2017), which the Department

filed almost two years after the Court issued the Canning I opinion, Dkt. 67. After the cases

were consolidated, the State Department moved for summary judgment with respect to all

remaining claims in the two cases, Dkt. 74; the Canning and SAE Plaintiffs opposed that motion,

Dkt. 80, Dkt. 77; and the Canning Plaintiffs also filed a cross-motion for summary judgment

with respect to one document, Dkt. 79, and contested the adequacy of the State Department’s

response to the Canning I decision, Dkt. 49. As narrowed by the parties in their respective

briefs, only the following issues remain for decision: SAE (1) contests the adequacy of the State

Department’s search for responsive records and (2) challenges the Department’s reliance on

FOIA Exemption 5 to withhold certain purportedly deliberative records, and the Canning

Plaintiffs (1) challenge the Department’s reliance on FOIA Exemption 1 to withhold certain

purportedly classified records that were classified after they submitted their FOIA request and

(2) dispute its invocation of FOIA Exemption 5 to withhold certain purportedly deliberative

records.

2 For the reasons explained below, the Court concludes that the Department’s search was

adequate. With respect to those records that were classified in whole or in part after the Canning

Plaintiffs submitted their FOIA request, the Court concludes that the Department has

satisfied the requirements of Executive Order 13562—which governs the processes for post-

request classification of responsive records—for all but four of the withheld records. As to those

four, however, the Department has not yet shown that it complied with Executive Order 13562,

and thus has not shown that it properly invoked FOIA Exemption 1. With respect to the

Defendant’s reliance on the deliberative process privilege to withhold various records, the Court

concludes, first, that the Canning Plaintiffs have failed to establish the absence of a dispute of

material fact as to the one document at issue in their cross-motion for summary judgment;

second, that the Department has failed to carry its similar burden as to three “draft” letters to

King Abdullah of Saudi Arabia; and, finally, that the Department has carried its burden as to its

remaining assertions of the deliberative process privilege. The Court will, accordingly, grant in

part and deny in part the Department’s motion for summary judgment and will deny the Canning

Plaintiffs’ cross-motion for summary judgment.

I. BACKGROUND

A. FOIA Requests

1. Canning Plaintiffs’ Request

In December 2012, George Canning submitted a FOIA request to the State Department

seeking four categories of records:

(1) A copy of Presidential Study Directive 11 [“PSD-11”], as issued by President Obama.

(2) Documents and other information created or compiled by the State Department which was utilized internally to the State Department and/or in submission to the President, in the creation of PSD-11.

3 (3) Documents and other information created or compiled by the State Department which were generated pursuant to the mandates of PSD- 11.

(4) All reports created or compiled by the State Department from 2005 to [the] present, concerning contacts or interviews with, or otherwise about, individuals identified as leaders of the Muslim Brotherhood, or otherwise analyzing the Muslim Brotherhood’s role in Muslim nations.

Dkt. 72-4 at 2. PSD-11 is a classified document, which Plaintiffs claim was created “for the

purpose of ordering an assessment of the Muslim Brotherhood and other ‘political Islamist’

movements.” Dkt. 1 at 2 (SAE Compl. ¶ 6), SAE Prods., Inc. v. Dep’t of State, No. 15-cv-1245

(D.D.C.); see also Dkt. 1 at 3 (Canning Compl. ¶ 10). Jeffrey Steinberg was later added as a co-

requester, and Canning and Steinberg filed suit together in June 2013 seeking to compel the

Department to search for and to produce all responsive records on an expedited basis. See Dkt. 1

(Canning Compl.).

2. SAE Productions Request

In June 2014, a publication based in Dubai—Gulf News Report—published an article

entitled “U.S. Document Reveals Cooperation Between Washington and Brotherhood.” Dkt. 72-

4 at 26. According to the article, President Obama issued PSD-11 in 2010 to obtain “an

assessment of the Muslim Brotherhood and other ‘political Islamist’ movements.” Id. Although

observing that “PSD-11 remains classified,” the article reported that, pursuant to “an ongoing . . .

FOIA[] lawsuit, thousands of pages of documentation of the . . . State Department’s dealings

with the Muslim Brotherhood are in the process of being declassified and released to the public.”

Id. The article then quoted from three documents “obtained under . . . FOIA”: (1) “A State

Department Cable” regarding an April 2012 meeting between “Mission Benghazi” and “a senior

member of the Muslim Brotherhood steering committee;” (2) “Another State Department paper

4 . . . contain[ing] talking points for Deputy Secretary of State William Burns’ scheduled . . .

meeting with [a] Muslim Brotherhood leader” and noting that, until recently, “the Muslim

Brotherhood was banned for over three decades;” and, finally, (3) “An undated State Department

cable” that referred to “Mohammad Swan, Chairman of [the] Justice and Construction Party.”

Id. at 26–27.

Shortly after the Gulf New Report article appeared, SAE submitted a FOIA request to the

State Department that requested copies of the documents discussed in the article and “all . . .

records that are being processed pursuant to” the FOIA request mentioned in the article. Dkt. 72-

4 at 24–25. The State Department has since confirmed that the only FOIA request relating to the

Muslim Brotherhood that was pending before it at the relevant time was the Canning Plaintiffs’

request. Dkt. 72-1 at 5 (First Stein Decl. ¶ 9); Dkt. 74-2 at 2 (Def.’s SUMF ¶ 5). The

Department, accordingly, released to SAE all of the records that it had previously released to the

Canning Plaintiffs. Dkt. 72-1 at 6 (First Stein Decl. ¶ 11).

B. Procedural History

Prior to consolidation of the Canning and SAE cases, the parties to the Canning case

conferred and agreed to prioritize the production of records relating to PSD-11 and, with leave of

the Court, filed cross-motions for partial summary judgment regarding the Department’s

response to that portion of the Canning Plaintiffs’ request. Canning I, 134 F. Supp. 3d at 497–

98. While those motions were pending, the State Department continued to process and to

produce records responsive to the remaining portion of the Canning Plaintiffs’ request—that is,

their request for records relating to the Muslim Brotherhood. Id. at 498. In the Canning I

decision, the Court granted in part and denied in part the parties’ competing cross-motions for

partial summary judgment. The Court granted the Canning Plaintiffs’ motion to the extent it

sought disclosure of the portion markings that were redacted from two documents, but otherwise 5 denied the motion. Id. at 518. The Court, moreover, denied the Department’s cross-motion with

respect to the withholding of records that were classified after the Canning Plaintiffs’ submitted

their FOIA request, but otherwise granted the motion. Id. With respect to the post-request

classification of responsive documents, the Court directed the Department to supplement the

record with additional information regarding the post-request classification process. Id. The

Department did so, Dkt. 48, and the Canning Plaintiffs challenged the adequacy of that further

submission, Dkt. 49; see also Dkt. 51 (Department’s reply).

After the Court issued the Canning I decision, the parties agreed to defer entry of a

further briefing schedule until the Department had completed its review and processing of

potentially responsive records, Dkt. 53, and the parties engaged in extended negotiation

regarding the terms and scope of the search, Dkts. 55–65. After agreeing that the Department’s

search was adequate and narrowing their disagreement regarding the relevant withholdings, the

parties jointly proposed a schedule for briefing the remaining issues. Dkt. 66 at 2.

Shortly before the Court issued the Canning I decision, SAE brought its own FOIA

action. SAE Prods., Inc. v. Dep’t of State, No. 15-cv-1245 (D.D.C. filed June 4, 2013). That

action was assigned to Judge Chutkan and proceeded along a parallel schedule for over two

years. Over that time, SAE withdrew its request for PSD-11, Minute Order (Nov. 30, 2015),

SAE Prods., No. 15-cv-1245, and the Department made several productions. See, e.g., id.,

Minute Order (Jan. 5, 2016), SAE Prods., No. 15-cv-1245, Minute Order (April 18, 2016), SAE

Prods., No. 15-cv-1245, Minute Order (Aug. 25, 2016), SAE Prods., No. 15-cv-1245.

Eventually, SAE and the Department proposed that Judge Chutkan adopt the same briefing

schedule set in the Canning case, and the State Department indicated that it intended “to move

shortly to consolidate [the SAE] case with Canning.” Dkt. 24 at 2, SAE Prods., No. 15-cv-1245.

6 The Department subsequently moved to consolidate, Dkt. 25, SAE Prods., No. 15-cv-1245, and

neither SAE, Dkt. 26, SAE Prods., No. 15-cv-1245, nor the Canning Plaintiffs opposed that

motion, Dkt 67. The Court, accordingly, consolidated the cases and set a revised briefing

schedule. Minute Order (Sept. 27, 2017). The State Department has now moved for summary

judgment in both cases, Dkt. 74; the Canning Plaintiffs and SAE have opposed that motion, Dkt.

80, Dkt. 77; and the Canning Plaintiffs have cross-moved for partial summary judgment with

respect to a single document, Dkt. 79.

II. LEGAL STANDARD

The Freedom of Information Act is premised on the notion that “an informed citizenry

[is] vital to the functioning of a democratic society . . . [and] needed to check against corruption

and to hold the governors accountable to the governed.’” NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214, 242 (1978). The Act embodies a “general philosophy of full agency disclosure.”

U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep’t of Air

Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on

request unless they fall within one of nine exemptions. See 5 U.S.C. § 552(b). “These

exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t

of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1973), then

quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule

of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175 (D.D.C.

2011). To prevail on a summary judgment motion, the moving party must demonstrate that there

are no genuine issues of material fact and that he or she is entitled to judgment as a matter of

law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). An agency may meet this

7 burden by submitting “relatively detailed and non-conclusory” affidavits or declarations,

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the

information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973); Summers v.

Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency “is entitled to summary

judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls

within the class requested either has been produced . . . or is wholly exempt from [FOIA’s]

inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.

Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the

agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C.

§ 552(a)(4)(B).

III. ANALYSIS

A. Adequacy of the Search

As noted above, the Canning Plaintiffs do not contest the adequacy of the Department’s

search. Dkt. 66 at 1 (Joint Status Report ¶ 3). Although SAE does not challenge the adequacy of

the Department’s search for the second category of records it seeks—that is, “copies of

documents processed pursuant to” the Canning Plaintiffs’ FOIA request—it does argue that the

Department has failed to carry its burden of showing that it conducted a reasonable search for the

first category of records—that is, copies of the documents identified in the Gulf News Report

article. Dkt. 77 at 8. According to SAE, the Department has not indicated which search terms

and timeframe it used and has not explained why it searched only a single database, the

“FREEDOMS 2” or “F2” database. Id. In short, according to SAE, the Department has not

offered “even a scintilla of information” regarding the search. Id. As explained below, this

contention is belied by the record.

8 An agency fulfills its obligations under FOIA to conduct an adequate search “if it can

demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all

relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.

1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The agency “cannot

limit its search to only one record system if there are others that are likely to turn up the

information requested,” but, at the same time, it need not “search every record system.” Oglesby

v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Similarly, the agency need not deploy

every conceivable search term or permit the FOIA requester to dictate the search terms in the

course of litigation, but it must use terms reasonably calculated to locate responsive records.

Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 339 (D.D.C. 2015). To

prevail on summary judgment, the agency must submit declarations that “‘denote which files

were searched,’ [and] by whom those files were searched, and [that] reflect a ‘systematic

approach to document location.’” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d

137, 144 (D.D.C. 2015) (quoting Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir.

1980)); see also Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C.

Cir. 2006); Oglesby, 920 F.2d at 68. Those declarations “are accorded a presumption of good

faith, which cannot be rebutted by ‘purely speculative claims about the existence and

discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting Ground

Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). But where “a review of the

record raises substantial doubt, particularly in view of ‘well defined requests and positive

indications of overlooked materials,’ summary judgment is inappropriate.” Valencia-Lucena,

180 F.3d at 326 (citation omitted).

9 The State Department relies on two declarations from Eric Stein, the Director of the

Department’s Office of Information Programs and Services (“IPS”), in support of its contention

that it conducted an adequate search for the records identified in the Gulf News Report article.

See Dkt. 72-1 (First Stein Decl.); Dkt. 81-1 (Second Stein Decl.). In the first, Stein attests that

the IPS Branch Chief for Litigation and Appeals reviewed SAE’s FOIA request for “copies of all

the State Department documents and records identified in [the] June 18, 2014 Gulf News

Report” and “determined that the only FOIA lawsuit against the Department concerning the

Muslim Brotherhood was the suit filed by Plaintiffs Canning and Steinberg.” Dkt. 72-1 at 5

(First Stein Decl. ¶ 9). Based on this assessment, which SAE does not dispute, the Branch Chief

searched the “F2” database “using information quoted in” the “Gulf News Report article cited in

SAE’s request,” and she “located the documents described in the article.” Dkt. 72-1 at 5 (First

Stein Decl. ¶ 9). The second Stein declaration further attests that the IPS Branch Chief used

search terms derived from the Gulf News Report article’s quotations from the documents SAE

sought, which included “Mission Benghazi,” “banned for over three decades,” and “Chairman of

Justice and Construction Party.” Dkt. 81-1 at 3–4 (Second Stein Decl. ¶ 5). Taken together, the

Department maintains, these declarations demonstrate that the search was adequate. Dkt. 81 at 6.

SAE raises a number of questions regarding the adequacy of the searches—but each is

readily answered, and none of those answers suggest that the Department’s search was

inadequate.

First, SAE asks: what search terms did the Department use? The answer to that question

is straightforward. SAE sought three documents, each of which was quoted in the Gulf News

Report article. So, the Department took a distinctive phrase from each of the three quoted

passages—“Mission Benghazi,” “banned for over three decades,” and “Chairman of Justice and

10 Construction Party”—and searched for that phrase. Dkt. 81-1 at 3–4 (Second Stein Decl. ¶ 5).

That search process, moreover, proved successful. Each of the phrases “located” a document

that contained “the same language quoted in the article,” and, as SAE’s request posited, each of

those documents was among the records “previously produced to [the Canning Plaintiffs] in

response to” their FOIA request. Id. To the extent this process might have left any doubt about

whether the Department found the exact documents that SAE sought, Exhibit 2 to the Second

Stein declaration puts that doubt to rest. That exhibit compares the language quoted in the Gulf

News Report article to the language appearing in the documents that the Department released to

SAE, and it shows that the same—extended—quotes appear in both. Indeed, the punctuation and

capitalization are identical, and, where the Gulf News Report article varied slightly from one of

the documents, the author used brackets to reflect that minor variance. Dkt. 81-3 at 1–2 (Second

Stein Decl.) (Ex. 2).

Second, SAE asks: what timeframe did the Department use for purposes of its search?

Here, too, the record provides an answer. SAE requested copies of the three documents quoted

in the Gulf News Report article, all three of which, according to SAE, the Department had

previously released to the Canning Plaintiffs. According to the Stein declaration, the

Department located and produced to SAE “all material that had been previously released in

Canning, et al. v. State, 13-cv-831.” Dkt. 72-1 at 6 (First Stein Decl. ¶ 11). There was no reason

for the Department to search for records created after its earlier release of records to the Canning

Plaintiffs—or after publication of the Gulf News Report article—and the record clearly

establishes that the Department not only searched for, but located, the records from the relevant

timeframe.

11 Finally, SAE asks: why did the Department search only one database, the “FREEDOMS

2” or “F2” database? The Second Stein declaration answers this question as well: “F2 is the

database in which the Department maintains documents released in response to FOIA requests.”

Dkt. 81-1 at 3 (Second Stein Decl. ¶ 4). Because SAE sought records that the Department had

released in response to a prior FOIA request, this was the obvious place to search. As explained

in the Second Stein declaration, the search was “reasonably calculated to uncover all relevant

documents” responsive to SAE’s request. Valencia-Lucena, 180 F.3d at 325 (quoting Truitt, 897

F.2d at 542). FOIA requires nothing more.

The Court thus concludes that the Department’s search for records responsive to SAE’s

FOIA request was adequate and that the Department, accordingly, is entitled to summary

judgment on this issue.

B. Withholdings

Both the Canning Plaintiffs and SAE contend that the Department has failed to carry its

burden with respect to a handful of withholdings. The Canning Plaintiffs oppose the

Department’s motion for summary judgment, arguing that the Department has not shown (1) that

certain records withheld under Exemption 1 (including records addressed in Canning I) were

properly classified under the post-request standard for classification; (2) that a handful of other

documents withheld under Exemption 1 that are marked “unclassified” are, in fact, classified;

and (3) that three documents withheld under Exemption 5 are, in fact, deliberative. With respect

to one of those three documents, moreover, the Canning Plaintiffs go a step further and argue

that they have carried their burden of showing that the document is not deliberative and that it

therefore must be released. SAE, for its part, raises only a general challenge to the Department’s

withholdings. It argues that the Department has failed to provide sufficient detail—either in its

Vaughn index or elsewhere—to permit the Court to determine whether the thirty-eight 12 documents withheld as deliberative under Exemption 5 are, in fact, deliberative. The Court

holds (1) that the Department has not yet justified its use of post-request classification to

withhold four documents; (2) that it has not yet justified its use of the deliberative process

privilege to withhold three additional documents; but (3) that the Department has otherwise

carried its burden.

1. Exemption 1

FOIA Exemption 1 covers “matters that are . . . specifically authorized under criteria

established by an Executive order to be kept secret in the interest of national defense or foreign

policy and . . . are in fact properly classified pursuant to such Executive order.” 5 U.S.C.

§ 552(b)(1). Executive Order 13526 (“EO 13526”), 75 Fed. Reg. 707 (Dec. 29, 2009), in turn,

establishes procedural and substantive requirements for classification of national security

information. As relevant here, Executive Order 13526 authorizes the classification of

information pertaining to “foreign relations or foreign activities of the United States, including

confidential sources,” when the “unauthorized disclosure” of such information “could reasonably

be expected to cause identifiable or describable damage to the national security.” EO 13526

§ 1.4(d); see id. § 1.2.

The Canning Plaintiffs challenge the withholding of documents, or portions thereof, that

were classified after they submitted their FOIA request. As the Court explained in Canning I, if

documents are “‘classified after the relevant FOIA request was submitted,’ the Department must

show that ‘the agency satisfied the requirements of [Executive Order 13526] § 1.7(d).’” Canning

I, 134 F. Supp. 3d at 506 (quoting Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 167

(D.D.C. 2013)). That section provides in relevant part:

Information that has not previously been disclosed to the public under proper authority may be classified . . . after an agency has received a request for it under the Freedom of Information Act . . . only if such classification meets the 13 requirements of this order and is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under [S]ection 5.4 of this order.

EO 13526 § 1.7(d) (emphasis added).

The following principles, accordingly, must guide the Court’s consideration. First, FOIA

Exemption 1 applies only to records that have been “properly classified” pursuant to the

governing Executive Order. 5 U.S.C. § 552(b)(1). Second, with respect to records that are

classified after the agency receives a FOIA request, Executive Order 13526 permits

classification only if three conditions are satisfied: (1) the records must otherwise meet the

requirements for classification, (2) the classification must be “accomplished on a document-by-

document basis,” and (3) that review must occur either (a) “with the personal participation” of

“the agency head, the deputy agency head, or the senior agency official designated under” the

Executive Order or (b) “under the direction” of one of those three officials. EO 13526 § 1.7(d).

Third, and inherent in the prior principle and the structure of the Executive Order, an agency may

not unreservedly delegate that post-request review responsibility to any other official; rather, for

reasons that the Court has previously explained, one of the three officials identified in Executive

Order 13526 must either personally participate in the review or the review must take place

“under [his or her] direction.” Canning I, 134 F. Supp. 3d at 507–08.

The description of these principles is straightforward; their application is more

challenging. In responding to the Canning Plaintiffs’ first three FOIA requests, which were also

at issue in Canning I, the Department classified, upgraded, or clarified the classification of ten

documents pursuant to Section 1.7(d). See 134 F. Supp. 3d at 506 & n.5. And in responding to

their fourth request, which seeks records relating to the Muslim Brotherhood, the Department

14 classified fifty-four documents, in whole or in part, pursuant to Section 1.7(d).1 Dkt. 81-1 at 4

(Second Stein Decl. ¶ 6). All but four of these documents were reviewed and classified by

Margaret Grafeld, who at the time served as the Deputy Assistant Secretary for Global

Information Services, and the remaining four documents were reviewed and classified by Eric

Stein, who currently serves as the State Department’s Director of the Office of Information

Program and Services. Id. at 1, 4–5 (Second Stein Decl. ¶¶ 1, 6, 8). The uncontroverted

evidence further shows that Grafeld and Stein reviewed and classified the relevant records on a

document-by-document basis, see Dkt. 48-1 at 2 (Grafeld Decl. ¶ 3); Dkt. 72-1 at 10–11 (First

Stein Decl. ¶ 30), as required by the Executive Order, see EO 13526 § 1.7(d).

Although the Canning Plaintiffs acknowledge that this evidence “satisfies the Court’s

requirement for a showing [that] the classifier reviewed each document,” Dkt. 80 at 15, fulfilling

the requirement that review be conducted on a document-by-document basis, they raise three

challenges to the Department’s withholding of the records based on its post-request classification

decisions. The Court will address each challenge in turn.

a. Explanation of Reasons for Classifying the Records

The Canning Plaintiffs first argue that the Department was required to do more “to

explain the reasons” why it decided to classify “previously-unclassified information.” Dkt. 49 at

4; Dkt. 80 at 11. In pressing this argument, however, they conflate the well-established

requirement that an agency seeking summary judgment in a FOIA action must proffer

declarations or other evidence “describ[ing] the justifications for nondisclosure with reasonably

specific detail,” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009), and a new

1 The Canning Plaintiffs do not challenge the Department’s decision to withhold four of these documents: C05619421, C05619422, C05619424, and C05655960. Dkt. 81-1 at 5 (Second Stein Decl. ¶ 6 n.4); Dkt. 80 at 11.

15 requirement, which they would have the Court add, that an agency that classifies records after a

FOIA request is submitted must explain “the timing of the decision[], that is, ‘what changed’ to

justify classification of previously unclassified documents.” Canning I, 134 F. Supp. 3d at 507;

see also Dkt. 49 at 4 (reasserting argument “notwithstanding the Court’s disagreement”).

There can be no dispute that the Department satisfied the first of these requirements. As

to each post-request classification decision, the Department explains with “reasonably specific

detail” the basis for decision in its Vaughn index. See Dkt. 81-2 at 5–8, 11, 13–14, 17–24, 29–

47, 49, 51. To take just one example, the Department explains that it “classified portions of [a]

document that were originally UNCLASSIFIED as CONFIDENTIAL” because those portions of

the document “contain[] sensitive details regarding the security situation in Libya and Egypt,”

which were “provided by a foreign government in confidence,” and because the Department’s

“[r]elease of the . . . information . . . would cause foreign officials to believe that U.S. officials

are not able or willing to observe the confidentiality expected in such interchanges.” Id. at 5.

Given the deference that courts must accord to judgments made by the Executive Branch on

issues of national security and foreign policy, see, e.g., Ctr. for Nat’l Sec. Studies v. Dep’t of

Justice, 331 F.3d 918, 926–27 (D.C. Cir. 2003), this description, and the other, similar

descriptions contained in the Vaughn index, are sufficient to show that the withheld information

“logically fall[s] within” Exemption 1, Larson, 565 F.3d at 401.

There is no support, moreover, for the Canning Plaintiffs’ contention that FOIA or

Executive Order 13526 imposes the further requirement that, if an agency does not classify a

record until after it receives a FOIA request, the agency must not only explain the basis for its

classification decision but must also explain “what changed.” Dkt. 49 at 4. Plaintiffs do not cite

any relevant authority in support of this contention, and nothing in the text of Section 1.7(d) of

16 the Executive Order supports their position. With respect to the substance of the classification

decision, the Executive Order mandates that the record meet “the requirements” for

classification, EO 13526 § 1.7(d), and those requirements include a finding that “disclosure

could reasonably be expected to cause identifiable or describable damage to,” id. § 1.4, the

“national defense or foreign relations of the United States,” id. § 6.1 (cc). Given this mandate, it

is appropriate to put the classifying agency to the test of explaining—in general terms—how

disclosure could harm the national security interests of the United States. Once the agency does

so, however, it is shown that the record at issue was “properly classified pursuant to [the]

Executive Order,” 5 U.S.C. § 552(b)(1), and FOIA requires nothing more.

b. “Ambiguously Marked” Documents

The Canning Plaintiffs also argue that certain documents were improperly withheld under

Exemption 1 because they contain ambiguous markings. See Dkt. 80 at 22. According to the

Canning Plaintiffs, this poses two problems. First, it casts doubt on the Department’s claim that

the redacted material is, in fact, classified. Second, it raises the possibility that the records

continue to reside in the Department’s general files without classification markings and that, as a

result, the records are classified only as to Plaintiffs. Id. at 23. As a review of the relevant

records reveals, however, neither argument is persuasive.

The Canning Plaintiffs identify five documents that they contend have “ambiguous

markings”: C05475518, C05475530, C05475549, C05475562, C05575691, and C05619429.

Dkt. 80-1 at 3–4 (Fourth Canning Decl. ¶ 5). Each of those documents, however, bears a

heading indicating that it is classified at either the “CONFIDENTIAL” or “SECRET” level. Id.

at 3 (Fourth Canning Decl. ¶ 5) (explaining that “each bear a notation indicating they had been

classified by the Deputy Assistant Secretary of State, Global Information Service”); id. at 13–46

17 (Exs. B–K). The Vaughn index, moreover, explains that “the Department classified portions of

the document that were originally UNCLASSIFIED.” See, e.g., Dkt. 81-2 at 5 (C05475518); see

also id. at 8 (C05475530), 13 (C05475549), 14 (C05475562), 32 (C05595691),2 33

(C05619429). In short, there is no meaningful ambiguity.

Plaintiffs’ disagreement is based on surviving “UNCLASSIFIED” or “SBU” portion

marking, but those markings must be understood in light of the “CLASSIFIED” headers and the

Vaughn index. Although the Department might reasonably have crossed out the surviving

markings and added new portion markings, there is no question that the redacted portions have,

in fact, been designated as classified. Similarly, there is no question that, if a State Department

employee were to review any of these documents, that employee would understand that the

document is classified. Finally, there is no basis to infer that the Department maintains these

classified records in general files that are accessible by employees or others without the requisite

security clearance, and there is no reason to conclude that, even if they did, the documents would

have lost their status as classified records under Executive Order 13526.

c. Post-Request Authority to Classify

Finally, the Canning Plaintiffs argue that the Department has failed to carry its burden of

showing that it complied with the “personal-participation or under-the-direction-of” requirement

of Section 1.7(d), both with respect to its original ten Section 1.7(d) withholdings and fifty of its

2 The Fourth Canning declaration identifies this document as “C05575691,” Dkt. 80-1 at 3–4 (Fourth Canning Decl. ¶ 5), but the document Plaintiffs attach to the declaration—and which number corresponds to the correct Vaughn entry—is Document “C05595691,” see id. at 26–30; Dkt. 81-2 at 33–34. It is unclear whether the attached document is the document that the Canning Plaintiffs intend to rely upon, and the heading is cut-off in the version filed with the Court. The Vaughn index, moreover, uses a slightly different locution in discussing this document, noting simply that the record was classified in part after the Department received the Canning Plaintiffs’ FOIA request. If Plaintiffs, in fact, have a different document in mind, they may renew their motion with respect to that document as appropriate.

18 subsequent Section 1.7(d) withholdings. As explained below, the Court concludes that the

Department has satisfied its burden with respect to all but four of the withheld records.

Under the Executive Order, an agency may classify documents after receiving a FOIA

request only “with the personal participation or under the direction of the agency head, the

deputy agency head, or the senior agency official designated under [S]ection 5.4 of th[e]

[Executive] [O]rder.” EO 13526 § 1.7(d). The senior State Department official designated

under Section 5.4 is the Under Secretary of State for Management. See 22 C.F.R. § 9.3. For

present purposes, all agree that neither the Secretary or Deputy Secretary of State nor the Under

Secretary for Management personally participated in the Section 1.7(d) review, and all agree that

the review did not take place “under the direction of” the Secretary or Deputy Secretary of State.

The question, accordingly, comes down to whether the post-request review occurred “under the

direction of” the Under Secretary.

Two Department of State “notices” issued by the Under Secretary for Management speak

to this issue. The first, which was in effect at the time Deputy Assistant Secretary Grafeld

conducted her review, “authorize[d] and direct[ed] the Deputy Assistant Secretary for Records

and Publishing Services . . . to be the official to classify information on a document-by-document

basis consistent with the circumstances and procedures described in” the relevant Executive

Order, and provided that “[t]he Deputy Assistant Secretary shall act under the direction of the

Under Secretary for Management and shall keep [him] apprised of actions taken under this

authority.” 64 Fed. Reg. 7227 (Feb. 12, 1999). The second, which was in effect at the time IPS

Director Stein conducted his review, “authorize[s] and direct[s] the Deputy Assistant Secretary

. . . and the Director of Information Programs and Services . . . to classify or reclassify

information consistent with the circumstances and procedures described in [S]ection 1.7(d) of

19 E.O. 13526,” and provides that “this authority shall be exercised on a document-by-document

basis only as to information that has not been previously released to the public under proper

authority, and only if such classification meets the requirements of E.O. 13526.” 81 Fed. Reg.

15605 (Mar. 23, 2016). The second notice omits the requirement that the Under Secretary be

kept “apprised of actions taken,” 64 Fed. Reg. at 7227, but does specify that “[t]he official

exercising [the Section 1.7(d)] authority shall do so under the direction of the Under Secretary

for Management,” 81 Fed. Reg. at 15605.

When the Court last considered whether Grafeld’s document-by-document review

satisfied the under-the-direction-of standard, it concluded that the 1999 notice was facially

consistent with the requirements of Section 1.7(d); the notice required that the official engaged in

the document-by-document review exercise the assigned authority “under the direction of . . . the

Under Secretary” and that she keep the Under Secretary “apprised of actions taken under” the

assigned “authority.” Canning I, 134 F. Supp. 3d at 507 (quoting 64 Fed. Reg. at 7227). The

Court now reaffirms that conclusion and further concludes that the 2016 notice is also facially

consistent with the Executive Order; although it omits the express duty to keep the Under

Secretary apprised of the classification actions taken, it maintains the core requirement that the

official engaged in the document-by-document review act “under the direction of the Under

Secretary for Management,” which is precisely what the Executive Order requires. 81 Fed. Reg.

at 15605.

That, however, answers only part of the question. As the Court also explained in

Canning I, more than facial consistency is required; it is not enough, in short, simply to say that

the reviewing official “shall” exercise her authority “under the direction of the Under Secretary.”

See 134 F. Supp. 3d at 507–08. The process must also be structured or implemented in a way

20 that provides an “opportunity for actual oversight by the Under Secretary” because, absent such

an opportunity, the under-the-direction-of requirement would be rendered obsolete: “[T]here

would be no meaningful difference between acting at the Under Secretary’s direction and acting

pursuant to [an unconstrained] delegation of his authority.” Id. at 508. Given that “§ 1.7(d)

limits post-request classification authority in order . . . to ensure that a senior government official

takes responsibility for intervening classification decisions that thwart otherwise valid FOIA

requests,” such a wholesale delegation of responsibility would contravene the purposes of the

Executive Order’s limits. Id. at 506. To be clear, this does not mean that the Under Secretary

must review and approve each decision. Rather, one acts under the “direction” of another if she

is subject to that person’s “guidance[,] supervision,” Merriam Webster’s Collegiate Dictionary

328 (10th ed. 1996), or “management,” The New Oxford American Dictionary 479 (2d ed.

2005).3 It is not the Court’s role to micromanage how the Under Secretary—or any other senior

official designated under the Executive Order—guides, supervises, or manages the review

process. But, because the Executive Order requires that the document-by-document review

occur “with the personal participation of, or under the direction of, the agency head, the deputy

agency head,” or designated official (here, the Under Secretary), EO 13526 § 1.7(d), the Court

3 It is not uncommon for a statute or rule to require that a government official “direct” the activities of other officials, although each context is unique. All “litigation in which the United States . . . is a party,” for example, is conducted “under the direction of the Attorney General.” 28 U.S.C. § 516; see also id. § 519 (supervision of litigation). To perform this function, the Attorney General issues guidance and sets policy relating to that litigation, see Justice Manual, https://www.justice.gov/jm/justice-manual (last visited Oct. 23, 2018), and he relies on delegations to other department officials, see, e.g., 28 C.F.R. § 0.45 (functions of Assistant Attorney General for the Civil Division). Here, as the Court has previously explained, Canning I, 134 F. Supp. 3d at 506, however, the structure and language of the Executive Order preclude a wholesale delegation of authority, and, unlike the Attorney General, the Under Secretary has not issued any guidance to the reviewing officials (beyond the guidance that appears in the Executive Order itself) regarding the exercise of their responsibilities.

21 must ensure that responsibility for the review is not simply reassigned in its entirety to the

Deputy Assistant Secretary or the IPS Director. In short, the Under Secretary is free to decide

how he will guide, supervise, or manage the review process, but the Court must decide whether

he has done so.

The Court starts with the slice of Canning I that remains for decision. In that opinion, the

Court observed that, in the then-controlling notice, the Under Secretary “direct[ed]” that Grafeld

conduct the required document-by-document review “under [the Under Secretary’s] direction”

and that she “keep [him] apprised of actions taken under this authority.” 134 F. Supp. 3d at 507

(quoting 64 Fed. Reg. at 7227). Although that process was, in the abstract, sufficient, the Court

could not enter summary judgment in favor of the Department because the record did not reveal

whether the contemplated process was, in fact, followed. Id. at 507–08. The Court, accordingly,

provided the Department with sixty days to “submit additional declarations confirming that

Grafel previously reviewed—or has now reviewed—each document classified in accordance

with § 1.7(d) and that she previously apprised—or has now apprised—the Under Secretary of her

decisions.” Id. at 508.

Consistent with the Court’s order, the Department has now submitted a declaration from

Grafeld attesting that she personally reviewed each of the documents at issue and determined that

each document satisfied the requirements for classification under the Executive Order, Dkt. 48-1

at 2–3 (Grafeld Decl. ¶ 3), and that she has “apprised Under Secretary for Management Patrick

Kennedy of [her] decision to classify the [specific] documents [at issue] in accordance with

§ 1.7(d) of Executive Order 13526,” id. at 3 (Grafeld Decl. ¶ 4). That declaration addresses the

Court’s remaining question, and it establishes that the review of these particular documents was,

as contemplated by the February 1999 notice, conducted under the direction of the Under

22 Secretary. Although not the only means by which a senior official might guide, supervise, or

manage another official, by “appris[ing]” the Under Secretary of her decisions, Grafeld provided

the Under Secretary with “some opportunity for actual oversight,” Canning I, 134 F. Supp. 3d at

508. That opportunity, when combined with the “direct[ion]” to conduct a review “on a

document-by-document basis consistent with the” requirements specified in the Executive Order,

is sufficient to show that the review was conducted “under the direction of” the Under Secretary.

81 Fed. Reg. at 15605.

The Canning Plaintiffs disagree, arguing that the Grafeld declaration is inadequate

because it does not explain how Grafeld apprised the Under Secretary of her determinations,

does not identify what information she provided him, and does not indicate whether the Under

Secretary concurred in her determinations. Dkt. 49 at 2. Nothing in the Executive Order or in

the concept of “direction,” however, requires either that level of detail or the affirmative

concurrence of the Under Secretary. Here, moreover, Grafeld has identified the substance of her

apprisal: in her declaration, she pinpoints the specific documents at issue and reports that she

apprised the Under Secretary of her decision to classify those specific documents in accordance

with § 1.7(d) of Executive Order 13526. Dkt. 48-1 at 3 (Grafeld Decl. ¶ 4). The Under

Secretary directed that Grafeld conduct the review, told her to do so in compliance with the

Executive Order, and had “some opportunity for actual oversight,” Canning I, 134 F. Supp. 3d at

508, because he was “apprised of actions taken under” his direction. Dkt. 48-1 at 3 (Grafeld

Decl. ¶ 4). This process may lie at the edge of any reasonable understanding of what constitutes

guidance, supervision, or management. But, as the Supreme Court has cautioned in a different

context, absent clear constraints or compelling circumstances, agencies should be left free to

fashion their own rules and procedures in the discharge of their responsibilities. Vt. Yankee

23 Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543 (1978). Because nothing in the Executive

Order precludes the approach the Department applied, and because that approach ensures that the

Under Secretary bears ultimate responsibility for the classification decisions, the Court concludes

that the Department has carried its burden with respect to the records at issue in Canning I.

That same conclusion also applies to the additional records that Grafeld reviewed and

classified or reclassified after the Canning Plaintiffs submitted their FOIA request. As Stein now

attests, those records were reviewed pursuant to the same notice from the Under Secretary;

Grafeld reviewed each document; and she apprised the Under Secretary of her determinations “in

a biannual report.” Dkt. 81-1 at 5 (Second Stein Decl. ¶ 7). Again, the Under Secretary

acknowledged that Grafeld was acting “under his direction,” and he had the opportunity to

disagree with her actions when he was “apprised” of her decisions. That is enough.

The Court is not convinced, however, that the Department has carried its burden with

respect to the four records that Stein reviewed pursuant to the March 23, 2016 notice. Id. at 4–5

(Second Stein Decl. ¶¶ 6, 8). As noted above, the Department has narrowly carried its burden

with respect to the records that Grafeld reviewed. What pushed the Department’s showing over

the line was the evidence that Grafeld “personally reviewed” each of the documents; that the

Under Secretary was apprised of Grafeld’s decision to classify those specific documents “in

accordance with § 1.7(d) of Executive Order 13526,” Dkt. 48-1 at 3 (Grafeld Decl. ¶ 4); and that

the Under Secretary had the opportunity to disagree or otherwise guide the process. With respect

to the remaining four records, however, Stein merely asserts that he “will apprise the Under

Secretary for Management of [his] actions in the next biannual report.” Id. (Second Stein Decl. ¶

8) (emphasis added). There is no evidence that the Under Secretary was aware that the four

records were subject to reclassification; there is no evidence that he had the opportunity to

24 express a contrary view; and there is no evidence he guided, managed, or supervised Stein’s

review in any way, beyond merely assigning the review responsibility to him.

In focusing on whether the Under Secretary was apprised of Stein’s determinations, the

Court does not mean to suggest that apprisal and an opportunity to weigh in is the only way to

satisfy the under-the-direction-of requirement. As noted above, judges need to avoid injecting

themselves “into day-to-day agency management.” Norton v. S. Utah Wilderness All., 542 U.S.

55, 66–67 (2004). The problem, however, is that “direction” requires something more than an

unconstrained delegation, and the only something that the Department has identified is the

apprisal process. Without that—or something else—all the Department has is a notice that says,

“perform the review required by the Executive Order under my direction,” with no guidance,

supervision, or management. Such a bare reassignment of authority cannot be squared with the

manifest intent of the Executive Order to require “participation” or “direction” by the agency

head, deputy agency head, or designated “senior agency official.” EO 13526, § 1.7(d). Absent

some indicia of “participation” or “direction” by one of these senior Department officials, EO

13526 § 1.7(d), the Court cannot conclude that a post-request classification determination was

“properly” made “pursuant to [the] Executive [O]rder,” 5 U.S.C. § 552(b)(1)—and here, with

respect to these four documents, there is no evidence that apprisal or any other means of

“direction” has occurred. The Court, accordingly, concludes that the Department—at least on

the present record—is not entitled to summary judgment with respect to the four records that

Stein classified.

Finally, the Court is unpersuaded by the Canning Plaintiffs’ more sweeping contention

that the records at issue were not properly classified in accordance with the State Department’s

Foreign Affairs Manual—or “FAM.” They argue that the FAM in place at the relevant time

25 required that the Under Secretary and the Deputy Assistant Secretary for Global Information and

Services draft a memorandum regarding “upgrad[ing]” the classification of the relevant

documents and that the memorandum be “approved.” Dkt. 80 at 18–19. And because there is no

evidence that the Under Secretary played any role in the process or that the classification

decisions were “approved,” they contend, the Department has failed to carry its burden of

showing that the records were properly classified. Id. at 19–20. But, as explained in the Second

Stein declaration, the version of the FAM quoted in Plaintiffs’ brief contained an error that was

corrected in subsequent versions; the requirement was not that the Under Secretary and Deputy

Assistant Secretary draft the memorandum but, rather, that “the classification memorandum is

drafted for the Under Secretary . . . , the Deputy Assistant Secretary . . . , or the director of the

Office of Information Programs and Services . . . , who subsequently review and approve or

disapprove the memorandum.” Dkt. 81-1 at 6 n.5 (Second Stein Decl. ¶ 9 n.5). Moreover, even

putting that aside, FOIA Exemption 1 applies to records that “are in fact properly classified

pursuant to [the] Executive [O]rder,” 5 U.S.C. § 552(b)(1), and does not require compliance with

the FAM.

* * *

The Court concludes that the Department has satisfied the requirements of Executive

Order 13562 regarding the post-request classification of responsive records for all but four of the

withheld records. As to those four, the Department has not yet shown that it complied with

Executive Order 13562, and thus has not shown that those documents were properly withheld.

The Court will, accordingly, grant in part and deny in part the Department’s motion for summary

judgment with respect to Exemption 1.

26 2. Exemption 5

Exemption 5 protects “inter-agency or intra-agency memorandums or letters that 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). This exemption shields “those documents . . . normally privileged in the civil

discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Courts have,

accordingly, incorporated the three traditional civil discovery privileges under Exemption 5: “(1)

the attorney work-product privilege; (2) the deliberative process privilege; and (3) the attorney-

client privilege.” Wright, 121 F. Supp. 3d at 184. Both SAE and the Canning Plaintiffs

challenge the Department’s invocation of Exemption 5 to protect purportedly deliberative

The deliberative process privilege protects “documents ‘reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.’” Sears, Roebuck & Co., 421 U.S. at 150 (quoting Carl

Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The “privilege

rests on the obvious realization that officials will not communicate candidly among themselves if

each remark is a potential item of discovery and front page news, and its object is to enhance ‘the

quality of agency decisions,’ . . . by protecting open and frank discussion among those who make

them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532

U.S. 1, 8–9 (2001) (citations omitted). “Manifestly, the ultimate purpose of this long-recognized

privilege is to prevent injury to the quality of agency decisions.” Sears, Roebuck & Co., 421

U.S. at 151.

“To qualify for withholding under Exemption 5’s executive privilege, information must

be both ‘predecisional’ and ‘deliberative.’” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976

F.2d 1429, 1434 (D.C. Cir. 1992); see also Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. 27 Cir. 2014); Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 874 (D.C. Cir. 2010); Judicial Watch, Inc.

v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A record “is predecisional if it was ‘prepared in

order to assist an agency decisionmaker in arriving at his decision,’ rather than to support a

decision already made,” and it is “deliberative if it ‘reflects the give-and-take of the consultative

process.’” Petroleum Info. Corp., 976 F.2d at 1434 (citations omitted). The agency asserting the

privilege bears the burden of establishing that the information is exempt. Fed. Open Mkt. Comm.

of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); Mink, 410 U.S. at 93; Pub. Citizen,

Inc., 598 F.3d at 869; Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir.

2014). “Summary judgment is warranted when the agency’s affidavits ‘describe the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.’” Elec. Frontier Found., 739 F.3d at

7 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)); see also Senate of the

Commonwealth of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). To meet

this burden, an “agency must establish ‘what deliberative process is involved, and the role played

by the documents in issue in the course of that process.’” Senate of the Commonwealth of P.R.,

823 F.2d at 585–86 (citation omitted).

a. Canning Plaintiffs’ Exemption 5 Challenge

The Canning Plaintiffs challenge the Department’s application of Exemption 5 to three

documents, all of which are “drafts” of a letter from President Obama to King Abdullah of Saudi

Arabia. Dkt. 80 at 25 (citing Documents C05781947, C06231742, C06320987). The

Department explains in its Vaughn index that Document C05781947 is “a draft letter to King

Abdullah of Saudi Arabia,” which was withheld pursuant to Exemption 5 because it is “pre-

decisional and deliberative with respect to a final determination on the content of the letter,” and 28 its release “could reasonably be expected to chill the open and frank expression of ideas,

recommendations, and opinions that occur when U.S. Government officials are crafting text for

signature by the President.” Dkt. 72-2 at 146–49. Documents C06231742 and C06320987 are

Arabic “versions” of document C05781947: “Document C06231742 is an incomplete draft of the

letter and Document C06320987 is an unsigned draft of the full letter.” Id. at 144. According to

the Department, the withheld material “is pre-decisional and deliberative with respect to the final

determination on the content of the letter,” and its release “would impede the ability of

responsible executive branch officials to formulate” policy “by inhibiting candid discussion and

the expression of recommendations and judgments regarding future courses of action.” Id.

As an initial matter, the Canning Plaintiffs assert that the draft letters “do not themselves

contain the deliberators’ proposals or arguments about what is to be said to the King, but are

rather ‘snapshots’ of the then-current undecided letter-text which was under discussion.” Dkt. 80

at 26. Although it is unclear whether they intend to press this as a stand-alone argument, to the

extent they do, the Court is unpersuaded. The deliberative process privilege is designed to

protect the “open and frank discussion” of proposals within the government, Klamath Water

Users Protective Ass’n, 532 U.S. at 8–9, regardless of how a proposal or suggestion is offered.

When a government employee or official prepares a draft letter—or speech, brief, or guidance

document—for an intermediate or ultimate decisionmaker’s consideration, she is offering a

proposal for consideration, just as she would do in drafting an options memo or in participating

in a group discussion. See Sierra Club v. U.S. Dep’t of Interior, 384 F. Supp. 2d 1, 19–20

(D.D.C. 2004). The Court, accordingly, concludes that a draft letter can, as appropriate, fall

within the deliberative process privilege.

29 The Canning Plaintiffs’ principal argument posits that the three documents at issue were

not, in fact, drafts. With respect to one of the three records—Document C06320987—they argue

that the Department has, in effect, conceded that the Document “is the final version” of the letter

from President Obama to King Abdullah, and they, accordingly, seek summary judgment in their

favor. Dkt. 79 at 1–4. And, with respect to the other two—Documents C05781947 and

C06231742—they assert that enough uncertainty exists that the Court should deny the

Department’s motion for summary judgment. Dkt. 80 at 26–33.

The Canning Plaintiffs build their claim that Document C06320987 “is clearly the final

version of the letter” on the fact that the Department’s Vaughn index refers to Document

C06231742 as “an incomplete draft of the letter,” while it refers to Document C06320987 as “an

unsigned draft of the full letter.” Dkt. 80 at 26–27; Dkt. 72-2 at 144. In their view,

“[n]otwithstanding the word ‘draft,’ that description conveys that the form, substance, and

translation in Document C06320987 are complete” and that “the Arabic-language letter awaits

only copying onto Presidential letterhead and the President’s signature.” Dkt. 80 at 27. To this,

Plaintiffs add that the Vaughn index entry for these Arabic-language versions of the letter lacks

the “draft” designation found in the column header that appears for the English-language version

of the letter, and, unlike the entry for the English-language version, the Vaughn index refers to

the documents—at least once—as “versions of a letter” as opposed to “draft[s]” of a “letter.”

Compare Dkt. 72-2 at 144 with id. at 146. In response, Stein attests that the three versions of the

letter “are all in draft form, as stated in the ‘Description’ category of the Vaughn Index.” Dkt.

81-1 at 6–7 (Second Stein Decl. ¶ 11). Stein further explains that the differences that the

Canning Plaintiffs highlight in the Vaugh index are “merely stylistic” and were “not intended to

convey that the Arabic versions are final.” Id. at 7 (Second Stein Decl. ¶ 11).

30 To start, the Court is unconvinced that Document C06320987 “is clearly the final version

of the letter.” Dkt. 80 at 26. Both the Vaughn index and the Second Stein Declaration represent

that the document is a draft, Dkt. 81-1 at 6–7 (Second Stein Decl. ¶ 11), and that

characterization, at the very least, gives rise to a disputed issue of material fact. But, at the same

time, the Court is unconvinced—at least on the present record—that the three documents were

deliberative. To be sure, none of the documents bear the President’s signature, and none is

printed in final form on presidential stationary. If all that remained to be done, however, was to

print and sign the letter—and if, in fact, any of the three documents is identical in substance to

the letter that was sent to King Abdullah—it is difficult to discern how that document reflects

anything that is “pre-decisional.” That concern, moreover, is more than hypothetical. Given the

opportunity to respond to the Canning Plaintiffs’ arguments—including their contention that “all

decisions [had] been made” regarding the content of the letter—the Second Stein Declaration

merely attests that the documents were “in draft form.” Dkt. 81-1 at 6–7 (Second Stein Decl.

¶ 11) (emphasis added). The declarant’s use of the word “form” at least raises the question

whether he means to distinguish between the “form” and the “substance” of the records.

It may be that the documents were drafts, both as a matter of “form” and “substance.” It

may be that the President had yet to sign off on the documents, and that the Department contends

that a recommendation that is ultimately approved remains a recommendation until finally and

formally approved. Or it may be that the Department takes the view that a pre-decisional,

presidential recommendation does not lose its exempt status, even after the President formally

adopts the recommendation without modification. On the present record, however, the Court

cannot discern what significance the Department attaches to the word “draft,” and, to the extent

it intends to distinguish between “drafts in form” and “drafts in substance,” the Department has

31 not briefed any of the potentially relevant legal issues. Moreover, because the Department has

failed to release a final, signed version of the letter, see Dkt. 80 at 32 n.14, an unsigned—but

otherwise final—version of the letter would add materially to FOIA’s goal of shedding light on

workings of government. See Robbins Tire & Rubber Co., 437 U.S. at 242. The Court will,

accordingly, deny summary judgment with respect to the applicability of Exemption 5 to the

Documents C06320987, C05781947, C06231742.

b. SAE’s Exemption 5 Challenge

Finally, SAE challenges the Department’s use of the Exemption 5 deliberative process

privilege to withhold thirty-eight records in whole or in part. Dkt. 77 at 11. Like the Canning

Plaintiffs, SAE focuses on the Department’s decision to withhold “drafts,” but, unlike the

Canning Plaintiffs, SAE offers little reason to question the Department’s characterization of the

records at issue. Instead, SAE simply asserts in categorical terms that the descriptions contained

in the Department’s Vaughn index fail to provide “sufficient context with which to evaluate” the

Department’s reliance on the deliberative-process privilege, and it offers six examples to support

its contention. Dkt. 77 at 12 (citing Documents C05429202, C05475534, C05475572,

C05475573, C05517719, C05999326).

The deliberative process privilege “covers recommendations, draft documents, proposals,

suggestions, and other subjective documents which reflect the personal opinions of the writer

rather than the policy of the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d

854, 866 (D.C. Cir. 1980). As noted above, an agency invoking the privilege bears the burden of

showing that “the document is both ‘predecisional’ and ‘deliberative.’” Access Reports v. Dep’t

of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). The agency must also offer “specific and

detailed proof that disclosure would defeat, rather than further, the purposes of . . . FOIA.”

Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977). Review 32 of the six examples that SAE cites shows that the Department has carried this burden with

respect to the deliberative process withholdings that SAE challenge (other than the three

withholdings, discussed above, that the Canning Plaintiffs have also challenged).

The first example—Document C05429202—is a draft of a paper regarding “how certain

terms [would] be defined for the purposes of” PSD-11. Dkt. 81-2 at 4. The document is

classified and was withheld on that ground. Id. In addition, it was withheld pursuant to

Exemption 5 because it is “pre-decisional and deliberative with respect to a final determination

on the content of the briefing paper,” and because its release “could reasonably be expected to

chill the open and frank exchange of ideas and recommendations that occur when Department

officials are crafting a paper for a high-ranking Department official and developing strategic

policy guidance on a sensitive subject.” Id. The Department further represents that “[d]isclosure

of this information would impede the ability of responsible executive branch officials to

formulate and carry out programs by inhibiting candid discussion and the expression of

recommendations and judgments regarding future courses of action.” Id. The Court concurs in

the assessment that a draft document proposing how to define terms used in a presidential

national security directive lies at the core of the deliberative process privilege.

The next three examples—Documents C054755732, C05475534 and C05475572—are,

according to the Vaughn index, “drafts of a memo from the Special Coordinator for Middle East

Transitions . . . and Assistant Secretary for [Near Eastern Affairs]. . . outlining plans for U.S.

Support to [Middle East and North Africa] Transition Countries.” Dkt. 72-2 at 10. The

Department asserts that the documents are “pre-decisional and deliberative with respect to a final

determination on the content of the memos and whether and how to provide support to the

transition governments of Egypt, Libya, Tunisia, and Yemen.” Id. at 10–11. The Court is, once

33 again, persuaded that draft memoranda, which address “whether and how to provide support” to

foreign governments, lie at the core of the privilege.

The Court is also unconvinced by SAE’s contention that the Department must disclose

the extent to which the “‘draft’ findings and conclusions outlined in those documents [were]

ultimately relied upon in the discharge of official duties.” Dkt. 77 at 12. Although a document

that is “predecisional at the time it is prepared . . . can lose that status if it is adopted, formally or

informally, as the agency position on an issue,” Coastal States Gas Corp., 671 F.2d at 866, that

does not mean that every suggestion, proposal, or draft that precedes a final decision—and that is

consistent with that decision—loses its protected status. To be sure, the privilege does not

extend to “‘opinions and interpretations which embody [an] agency’s effective . . . policy.’”

Elec. Frontier Found., 739 F.3d at 7 (quoting Sears, Roebuck & Co., 421 U.S. at 153). It does,

however, protect “‘all papers which reflect the agency’s group thinking in the process of

working out its policy,’” id. (emphasis added)—even if portions of that “thinking” are ultimately

persuasive to those charged with making final, operative decisions. The relevant question is

whether the record at issue reflects the ideas, theories, or suggestions that “‘go into the making

of’” policy—in which case the privilege is available—or, rather, reflects the policy “‘itself’”—in

which case the privilege does not apply. Id. at 8 (quoting Coastal States Gas Corp., 671 F.2d at

868). Here, there is no basis to conclude that any of the three “draft” memoranda ever

“themselves” embodied a final statement of Department policy.

The fourth example—Document C05517719—is a “draft Action Memo for the Secretary

[of State] regarding a proposed call to Egyptian President Morsy,” which includes “draft text,

including red-line edits, regarding a recommendation . . . to the Secretary on topics to be

discussed during the call and background information.” Dkt. 72-2 at 35. This document, which

34 includes red-line edits and consists of a recommendation from a subordinate to a superior about a

policy decision, falls squarely within the deliberative process privilege. See Coastal States, 617

F.2d at 868 (“[A] document from a subordinate to a superior official is more likely to be

predecisional, while a document moving in the opposite direction is more likely to contain

instructions to staff explaining the reasons for a decision already made.”); Brinton v. Dep’t of

State, 636 F.2d 600, 605 (D.C. Cir. 1980) (“[F]inal opinions . . . typically flow from a superior

with policy-making authority to a subordinate who carries out the policy.”).

SAE’s final example—Document C05999326—is “a briefing paper prepared for the

Secretary’s briefing of members of the House and Senate” and “consists of a series of proposed

answers to anticipated questions regarding various U.S. foreign policy issues.” Dkt. 72-2 at 142–

43. The Department asserts that the information is “pre-decisional and deliberative with respect

to a final decision on the content of . . . the information to be communicated to Congress” as well

as “pre-decisional and deliberative with respect to a final determination on the particular U.S.

policy under consideration.” Id. at 143. This description is, once again, sufficient to sustain the

privilege. Despite SAE’s assertions to the contrary, the Vaughn index describes the context and

nature of the document in detail; it is a “draft” memorandum containing “recommendations” for

the Secretary of State regarding a conversation with a foreign head of state. As such, the

document lies at the core of the deliberative process privilege. See Elec. Frontier Found., 739

F.3d at 7 (agency must “‘describe [its] justifications for nondisclosure with reasonably specific

detail, demonstrate that the information withheld logically falls within the claimed exemption,’”

and that showing cannot be “‘controverted by either contrary evidence in the record nor by

evidence of agency bad faith’” (quoting Miller, 730 F.2d at 776).

35 Having reviewed the Vaughn index and the parties’ pleadings, the Court concludes that

the Department has carried its burden of showing that it properly invoked Exemption 5 with

respect to all of the withheld material, with the exception of the three “draft” letters to King

Abdullah. The Court will, accordingly, grant in part and deny in part the Department’s motion

for summary judgment with respect to Exemption 5.

CONCLUSION

For the reasons set forth above, the Court GRANTS in part and DENIES in part the

Department’s motion for summary judgment, Dkt. 74, and DENIES the Canning Plaintiffs’

cross-motion for summary judgment, Dkt. 79. The sole remaining issues in this proceeding are

(1) whether the four records that Stein classified after the Canning Plaintiffs submitted their

FOIA request were—or have now been—classified “under the direction” of the Under Secretary,

and (2) whether the three “draft” letters to King Abdullah fall within the deliberative process

privilege. The Department may renew its motion for summary judgment as consistent with this

opinion.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: October 24, 2018