COUNCIL FOR A LIVABLE WORLD
U.S. DEPARTMENT OF STATE,
The Council for a Livable World Education Fund ("the Council") filed this Freedom of Information Act ("FOIA") lawsuit to compel the Department of State to release information relating to the Blue Lantern program. After both parties moved for summary judgment, this Court ordered
that the defendant submit a supplemental Index of the documents withheld pursuant to Exemption 3, in accordance with the standards outlined in this Memorandum and Order, and make further disclosures where necessary in accordance with these standards.
Memorandum & Order of Jan. 21, 1998 ("Op."), at 17 (emphasis added). Based on this order, the Council expected that defendant would make further disclosures, and submit a supplemental Vaughn index of withheld documents, pursuant to the standards outlined in the Court's opinion for applying Exemption 3. These standards govern the interpretation of the Exemption 3 statute at issue: section 38(e) of the Arms Export Control Act ("AECA"), 22 U.S.C. § 2778(e), which incorporates by reference the confidentiality provision of section 12(c) of the Export Administration Act ("EAA"), 50 U.S.C. App. § 2411(c)(1).(1)
Instead of complying with the Court's mandate, defendant has taken advantage of the Court's order by interpreting it to authorize further withholdings pursuant to Exemption 1, even though the order is bereft of any authority for such action. Defendant also withholds some material pursuant to the previously unmentioned Exemption 7(A). In short, defendant has undergone a "deathbed classification" in order to evade the effects of the Court's order on a wholesale basis. Defendant's plea for forbearance should be rejected.
Furthermore, as to Exemption 3, rather than apply the standards for interpreting section 38(e) of the AECA set forth by the Court's opinion, defendant in effect moves for reconsideration of the Court's order by proffering--without explanation--arguments that defendant did not make (but could have made) in its initial summary judgment briefing. Defendant continues to withhold material under an interpretation of Exemption 3 that the Court flatly rejected. In addition, the Vaughn index and defendant's marking of Exemption 3 withholdings on the documents themselves are confusing, incomplete, and misleading.
In this brief, we argue, first, that defendant's Exemption 1 and 7(A) claims are untimely and should be rejected. We then demonstrate that, in any event, these claims are unfounded on their merits. Next, as to the Exemption 3 claims, we show that defendant has not met its burden, as ordered by the Court, to specifically and clearly explain how each piece of withheld information concerns a license application, and not an arms transaction or a possible future license application. Finally, we argue that the Court should issue an order bringing into the light this litigation's shadow case: defendant's failure to explain why it has not disclosed hundreds of pages of material, dozens of telegrams, and scores of pieces of information covered by individual excisions.
Accordingly, as specifically set forth in the proposed order that accompanies this motion, the Council respectfully requests that the Court grant its motion for summary judgment as to the Exemption 1 and Exemption 7(A) issues and, in part, the Exemption 3 issue. Before we explain in detail why defendant's new legal arguments are untimely and unpersuasive, it is important to understand the events that led up to what is, in essence, defendant's effort to evade this Court's January 21, 1998 order. Accordingly, we begin with a brief overview of events.
I. Factual and procedural background.
That defendant has been less than diligent, and at times even disingenuous, in complying with the Court's order is evident from examining defendant's processing of the Council's FOIA request.
In denying the Council's request in 1995, defendant stated that "[t]he Department's Division of Classification Review has reviewed these documents." Sheils Decl., Ex. 5, at 1.(2) Defendant informed the Council that, "[a]fter careful review," it had determined that the Blue Lantern report--the only document that defendant had retrieved--was exempt from disclosure pursuant to section 38(e) of the AECA and, thus, Exemption 3. Id. Ex. 6, at 1. Defendant did not claim that any of the requested materials warranted withholding pursuant to Exemption 1. See id.
The Council appealed, clarifying that it sought information only on cases involving post-licensing verification. Id. Ex. 7 at 1. The State Department's FOIA appeals board affirmed, assuring the Council that "very little of the material retrieved in response to your request relates to post-licensing verification and none relates to a determination that the exported material was received by the proper party." Id. Ex. 9, at 1. Subsequent disclosures demonstrate that this statement was grossly misleading because many, if not most, of the case summaries in the Blue Lantern report relate to precisely these issues. 1998 Cardamone Decl. ¶¶ 13, 1516.(3)
After this case was filed, the State Department's then-Acting Information and Privacy Coordinator stated that "[i]n reviewing the case for purposes of preparation of a Vaughn Declaration, the Department decided to retrieve for review as possibly responsive to the request any telegrams that were listed in the case reports set forth in the [Blue Lantern report]." Sheils Decl. ¶ 12 (second emphasis added). This statement is a de facto acknowledgment that defendant failed to conduct an adequate search for responsive materials when it retrieved only the Blue Lantern report in its initial response to the request. Cf. Founding Church of Scientology v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979) (refusing to accept agency's claim of inability to retrieve requested documents "in the face of well-defined requests and positive indications of overlooked materials") (emphasis added).
Of the telegrams that were located, 114 were found to be responsive to the Council's request. Sheils Decl. ¶ 12. Of these, ten had previously been classified and were determined to continue to warrant classification. Id. Furthermore, defendant assured the Court that "[a]ll of the documents have been re-reviewed for reasonable segregation of non-exempt information," and that "no segregation of meaningful information in the withheld documents can be made without disclosing information warranting protection under the FOIA." Id. ¶ 13. The Court upheld the withholding of the ten telegrams in their entirety. See Op. at 16.
Defendant's latest disclosures, however, demonstrate that its prior assertion that it could make "no segregation of meaningful information" in the ten telegrams withheld under Exemption 1 was false. For defendant has now disclosed material from all ten telegrams. 1998 Cardamone Decl. ¶¶ 1720. The disclosed material clearly consists of segregable, non-exempt information which, with exempt information such as the identities of confidential foreign government sources having been excised, poses no threat to national security. See id. ¶ 21.
There are other troubling features of defendant's reprocessing of the Council's FOIA request. First, defendant asserts that the Blue Lantern report is a 326-page document. Second Grafeld Decl. ¶ 3. Yet defendant has disclosed only 146 pages, containing 161 entries; there is no explanation as to the fate of the remaining 180 pages. 1998 Cardamone Decl. ¶¶ 56. Second, defendant has not disclosed dozens of telegrams that are referenced in the Blue Lantern report and in the telegrams that it has released. See id. ¶¶ 78 . While defendant seems to imply that these unreleased telegrams are not responsive to the Council's request, see Sheils Decl. ¶ 12, defendant's prior inaccurate representations render this assertion not credible. See generally Part VI, infra. Third, three of the 114 telegrams that were initially retrieved in response to the Council's FOIA request have disappeared, and defendant has provided no explanation for their absence. See Cardamone Decl. ¶¶ 912. Finally, despite defendant's strenuous protestations that the requested information cannot be released because it is sensitive national security information, defendant has released information that the statute allegedly entitles it to withhold, such as the parties to the transaction, see id. ¶ 14, or that is not even responsive to the Council's FOIA request, such as documents that relate to pre-license end-use checks, see id. ¶¶ 13, 1516 .
In summary, examining the documents and defendant's latest Vaughn index in the light of the history of the Council's FOIA request shows that defendant conduct has been less than diligent. Indeed, on two occasions--the appeals board's assertion that little information in the Blue Lantern report pertained to post-license end-use checks or to a determination that the exported material reached the proper party, and defendant's assertion to the Court that none of the material in the ten previously classified telegrams could be segregated and disclosed--it is hard to avoid the conclusion that defendant's statements have been disingenuous. It is in the context of defendant's demonstrated lack of candor that the latest disclosures and Vaughn index must be analyzed. In short, where questions arise as to the propriety of a particular withholding, defendant is not entitled to the benefit of the doubt.
II. Defendant's belated Exemption 1 and Exemption 7(A) claims are untimely.
More than three years have passed since the Council filed its FOIA request. Nearly twenty-one months have passed since the Council filed this lawsuit. Sixteen months have gone by since defendant initially moved for summary judgment. The Court has already issued an opinion, an order, and a partial judgment on the merits of this case. Yet only now does defendant raise an entirely new claim: Exemption 1 as to documents for which the exemption had not previously been claimed. See Washington Post Co. v. United States Dep't of Health & Human Serv., 795 F.2d 205, 208 n.1 (D.C. Cir. 1986) (holding that untimely raising of exemption includes not only "raising of a new numbered exemption" but also "untimely raising of a new element of a numbered exemption that has already been invoked"). And only now, for the first time, does defendant make the claim that Exemption 7(A) protects some of the requested records from disclosure.
Agencies may "not make new exemption claims to a district court after the judge has ruled in the other party's favor." Holy Spirit Ass'n for the Unification of World Christianity v. CIA, 636 F.2d 838, 846 (D.C. Cir. 1980), vacated in part as moot, 455 U.S. 997 (1982); accord Senate of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987). The rationale for this rule is that "[t]he government should not be permitted to assert its theories seriatim absent the most compelling circumstances, as the interests of judicial economy and finality militate against a court's tolerating a piecemeal approach." American Broadcasting Cos. v. USIA, 599 F. Supp. 765, 767 (D.D.C. 1984); accord Ryan v. Department of Justice, 617 F.2d 781, 79192 (D.C. Cir. 1980). An agency's "play[ing] cat and mouse by withholding its most powerful cannon until after the District Court has decided the case and then springing it on surprised opponents and the judge" is impermissible. Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 482 F.2d 710, 722 (D.C. Cir. 1973) (upholding district court's denial of motion for rehearing), rev'd on other grounds, 421 U.S. 168 (1975).(4)
There are four situations in which an agency is likely to make an untimely claim of exemption, only three of which constitute the "extraordinary circumstances" in which a court has the discretion to consider the untimely claims. See Lykins v. Assistant Attorney General Rose, 608 F. Supp. 693, 695 (D.D.C. 1984). None apply to this case.
First, the agency may invoke an exemption for the first time "in order to gain a tactical advantage over the requestor." Jordan v. United States Dep't of Justice, 591 F.2d 753, 780 (D.C. Cir. 1978) (en banc) (exemption invoked for first time on appeal). Such conduct never constitutes the extraordinary circumstances that permit the untimely assertion of an exemption. Id.
Second, extraordinary circumstances may exist where "sensitive, personal private information might be revealed." Ryan, 617 F.2d at 792. This situation is inapplicable to this case, and defendant does not invoke it.
Third, an agency might be forced to raise untimely an exemption "because of a substantial change in the factual context of the case or because of an interim development in applicable legal doctrine." Jordan, 591 F.2d at 780. Defendant does not argue that its untimely invocation of exemptions fits within this situation; in any event, interim developments "do not include losses . . . in the very case where the government seeks to belatedly raise an exemption." Lykins, 608 F. Supp. at 695; accord Crooker v. United States Parole Comm'n, 760 F.2d 1, 2 (1st Cir. 1986).
Finally, extraordinary circumstances exist when, (1) "through pure mistake," the government attorneys did not invoke the correct exemption in the initial proceeding, and (2) "the value of the material which otherwise would be subject to disclosure [is] obviously high, e.g., confidential information compromising the nation's foreign relations or national security [which] appear[s] highly likely was intended to be protected by one of the nine enumerated exemptions." Jordan, 591 F.2d at 780. Defendant suggests--without relying on a scrap of factual evidence in the record--that it failed to invoke Exemptions 1 and 7(A) "by mistake." Def.'s Resp. Jan. 21, 1998 Remand Order & Mem. Supp. Renewed Mot. Summ. J. ("Def.'s Br.") at 910 n.3.
This suggestion is preposterous. State Department FOIA experts do not lightly overlook asserted classification concerns. Indeed, the government frankly admits that its conduct was intentional, not inadvertent: "[D]efendant did not assert Exemptions (b)(1) and (b)(7) because it has relied upon Exemption (b)(3) to withhold such information for many years." Id. at 10 n. 3. With all due respect, such a rationale cannot constitute "pure mistake;" rather, it is an intentional litigation strategy chosen by defendant, the consequences of which defendant must bear. See Crooker, 760 F.2d at 2 (refusing to elevate "routine recourse to hindsight to the level of extraordinary circumstances").
Furthermore, although the leading case on untimely claiming an exemption, Jordan, involved raising the exemption claim for the first time on appeal, the normal practice of the courts is to refuse to consider untimely assertions of Exemptions 1 and 7 in the district court as well. In Ray v. United States Dep't of Justice, 908 F.2d 1549, 1557 (11th Cir. 1990), rev'd on other grounds, 502 U.S. 164 (1991), after the district court had ruled that the information was not protected by FOIA Exemption 6 (personal privacy), the State Department filed a motion "to alter or amend the judgment," arguing "for the first time" since the case had been filed nearly two years earlier that the information was also exempt from disclosure pursuant to Exemptions 1 and 7. The district court refused to consider the untimely exemptions. Id. On appeal, the agency argued that its failure timely to raise these exemptions was the result of "pure mistake" and that the court should consider the exemptions on their merits "because they involve grave concerns of national security and foreign policy." Id. The Eleventh Circuit refused: "We find it difficult to believe that the redacted information implicates compelling national security concerns in light of the government's failure for almost two full years to bring these concerns to the attention of the court or the plaintiffs." Id.; see also Long v. Bureau of Economic Analysis, 646 F.2d 1310, 132223 (9th Cir. 1981) (upholding denial of motion for leave to amend answer to raise untimely Exemption 7 claim), vacated on other grounds, 454 U.S. 934 (1981); Holy Spirit Ass'n, 636 F.2d at 846 (upholding refusal to consider untimely new rationale offered for Exemption 1 claim); cf. Senate of P.R., 823 F.2d at 581 (upholding consideration of untimely Exemption 7 claim because of "substantial change in factual context of case"). But see Lame v. United States Dep't of Justice, 767 F.2d 66, 71 n.7 (3d Cir. 1985) (permitting raising of Exemption 7(E) claim for first time after remand because plaintiff had had full opportunity to test and challenge agency's claim on remand).
Exemption 1 in particular lends itself to abuse by government agencies seeking a litigation advantage over FOIA requesters. If agencies may raise new Exemption 1 claims after losing on the merits of another exemption, then it will be open season for agencies to test their other exemption theories in the courts, for two reasons. First, there will be no penalty for doing so--if the agency loses on the merits of one exemption (as in this case, where the Court rejected defendant's interpretation of Exemption 3), then the agency can play its ace in the hole, which is to engage in a "deathbed classification" of the documents upon administrative remand, and then wave the "national security" flag before the court.
Second, it will be to the agency's advantage not to raise Exemption 1 claims in the initial proceeding, if the agency wants to test a theory based on another exemption. For if the agency were to raise both the Exemption 1 claim and the other exemption claim in the initial district court proceeding, then the court might decide the merits solely on Exemption 1 grounds and not even reach the other theory. Indeed, defendant effectively concedes this point: "Defendant respectfully submits that if Exemption  does not justify withholding such sensitive material, the State Department will, contrary to its previous practice, have to begin the burdensome process of classifying information previously withheld under Exemption  in order to protect it from release under Exemption , as was done in this case." Def's Br. at 13 n.8. That is, the State Department views Exemption 3 here as a long-term labor-saving device--and it begs the Court to excuse it from its obligation to comply with the FOIA.
In short, defendant should not be permitted to have a second bite at the apple. No party has infinite time or resources in which to make every legal argument or pursue all legal options. Defendant's decision to rely solely on Exemption 3 in withholding this material at the initial summary judgment stage is a tactical litigation decision the consequences of which defendant must live with. Defendant's untimely invocation of Exemptions 1 and 7(A) is unjustified, and the Council respectfully requests that the Court order defendant to disclose all material that has been withheld for the first time pursuant to these exemptions since January 21, 1998.(5)
III. The untimely Exemption 1 claims should be rejected on their merits.
Even if the Court chooses to evaluate the Exemption 1 claims, defendant's Vaughn index does not show that Exemption 1 was properly claimed for the belatedly classified documents. Hence, these claims should be rejected on the merits.
Exemption 1 protects from disclosure matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). The agency has the burden of proof, and it may meet this burden by submitting affidavits and other evidence showing "(1) that it followed proper classification procedures, and (2) that by its description, the document logically falls within the claimed exemption." Hayden v. National Security Agency/Central Security Serv., 608 F.2d 1381, 138687 (D.C. Cir. 1979). Such affidavits must show with "reasonable specificity" why the withheld material falls within the ambit of Exemption 1; the affidavits "will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping." Id. at 1387.(6)
Defendant's belated classification fails these tests in two ways. First, there is no evidence that defendant followed all of the proper procedures in classifying this material. Second, as to six of the newly classified telegrams and all of the withheld portions of the Blue Lantern report, the affidavits do not show that this material logically falls within the scope of Exemption 1.
A. Procedural improprieties.
Defendant has not established, as it must, that it followed proper classification procedures. All of the belated classifications were made under the authority of Executive Order 12958, see Second Grafeld Decl. ¶ 8, which requires that:
Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552) . . . only if such classification meets the 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 section 5.6 of this order.
Executive Order 12958 § 1.8(d) (emphasis added). Nothing in the record establishes that the individual who classified this material, Margaret P. Grafeld, the State Department's Acting Information and Privacy Coordinator and Acting Director of the Department's Office of Information Resources Management Programs and Services, is the "senior agency official designated under section 5.6" of the Executive Order. See Second Grafeld Decl. ¶¶ 12, 79. Thus, because defendant has not shown that "it followed proper classification procedures," Hayden, 608 F.2d at 1387, it should be ordered to release all of the belatedly classified information.
B. Substantive shortcomings.
Even if Ms. Grafeld possesses the necessary authority under the Executive Order, defendant's Exemption 1 claims fail. Defendant's affidavits are not sufficiently specific to show that the portions of six telegrams and all of the material in the Blue Lantern report "logically fall within" Exemption 1. See Hayden, 608 F.2d at 1387. Defendant claims that all of the withheld material was properly classified pursuant to two sections of Executive Order 12958: section 1.5(b), which permits the classification of "foreign government information," and section 1.5(d), which permits the classification of "foreign relations or foreign activities of the United States, including confidential sources." Second Grafeld Decl. ¶ 8. All of the newly-classified information is "Confidential"--the lowest level of classification--as defined by Executive Order 12958 § 1.3(a)(3), i.e., defendant claims that it is information "the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe." See Second Grafeld Decl. ¶¶ 9, 24, 43, 45, 52, 5455, 6162, 67, 81, 97, 103, 105, 110, 126, 128.
The Council does not contest that some information relating to the Blue Lantern program may in some cases be subject to classification. See generally id. ¶¶ 78 (explaining in general terms how information relating to Blue Lantern program concerns foreign government information and information concerning U.S. foreign relations and activities, including confidential sources). Nor does the Council contest defendant's general justifications for classifying Blue Lantern program information as "confidential," e.g., that assurances of confidentiality to foreign government authorities who cooperate with end-user checks may be necessary to ensure the continued viability of the program. See id. ¶ 7. But these justifications cannot apply to all of portions of six of the telegrams and to the Blue Lantern report being withheld, and, as we now show, the Vaughn index does not establish that the withheld material was properly classified.
1. Defendant has not shown that six of the telegrams were properly classified.
For every telegram a portion of which is withheld pursuant to Exemption 1, the Vaughn index says, with minor, purely grammatical variations:
Document No. ____ also contains information conveyed in confidence by an official of a foreign government. This information constitutes material specifically authorized under criteria established by Executive Order 12958, Sec. 1.5(b) and (d) to be classified. It is, therefore, exempt from disclosure under exemption 1 of the FOIA.
See, e.g., id. at 17. There are two noteworthy features to this language. First, the language is sheer boilerplate--it is "conclusory, merely reciting statutory standards," and "sweeping." Hayden, 608 F.2d at 1387. This language is used, without any substantive variation, to justify the classification of every withheld telegram. Second, this general language can only be used as part of a showing that withheld material was properly classified, and thus that Exemption 1 applies, if the substantive descriptions of the telegrams justify applying the boilerplate language to withheld material. In other words, it is the descriptions that are pivotal to an Exemption 1 claim, not the boilerplate language.
To see that defendant has not met its burden, one need only compare the withholdings from the six telegrams under Exemption 1 with defendant's acceptable justification for withholding material from the other fourteen telegrams. For example, defendant describes one of these telegrams, Document 33, as a telegram from "Embassy New Delhi to the Department dated April 21, 1994 providing an interim account of its investigation, including discussions with foreign government officials." Second Grafeld Decl. ¶ 24 (emphasis added). This description provides an account of "discussions with foreign government officials" and gives content to what would otherwise be the conclusory, and thus legally inadequate, assertions in the boilerplate paragraph. Thus, defendant has described the withheld material in such a way that it "logically falls within the claimed exemption." Hayden, 608 F.2d at 1387.(7)
Similarly, the descriptions of the withheld material in three other telegrams, when read in conjunction with defendant's general justifications for classification of Blue Lantern materials, see id. ¶¶ 78; Sheils Decl. ¶¶ 15, 19, show that this material was properly classified pursuant to section 1.5(b) as foreign government information. The withheld material reports that the host government had instituted an investigation. See Second Grafeld Decl. ¶ 45 (Document 15), ¶ 54 (Document 32), ¶ 64 (Document 66). Given defendant's assertion that none of the material belatedly classified has been publicly disclosed, id. ¶ 8, and thus the implication that defendant did not learn this information from, say, reading a local newspaper, the fact that the host government had instituted an investigation falls within the category of "foreign government information" the disclosure of which could reasonably be expected to damage the national security. Accordingly, the material from these three telegrams was properly classified, and Exemption 1 applies.
In contrast to the Vaughn index descriptions of these fourteen telegrams, the descriptions of the remaining six telegrams lack any specific detail showing that classification was proper. For example, Documents 73 and 77 are described only as "reporting that the items were sold exclusively to local retailers who in turn sold them to local customers." Id. ¶ 52. Nothing about this description, however, suggests that the withheld information involves "foreign government information" or "foreign relations information," including "confidential sources." The same lack of specific detail plagues the descriptions of the remaining four telegrams.(8)
2. Defendant has not established that the Blue Lantern report was properly classified.
Defendant's description of the material withheld on twenty pages of the Blue Lantern report is even more unacceptably vague and terse. We quote it here in its entirety:
[Twenty pages] contain reference to foreign government sources. This information constitutes material specifically authorized under criteria established by Executive Order 12958, Sec. 1.5(b) and (d) to be kept classified. They are therefore exempt from disclosure under exemption 1 of the FOIA.
Second Grafeld Decl. ¶ 9. These three sentences are the government's only explanation for deletions that appear on twenty pages. Thus, the Vaughn index is inadequate simply because of defendant's failure to provide a comphrehensible, deletion-by-deletion description of the withheld material. See Oglesby v. United States Dep't of Army, 79 F.3d 1172, 118081, 1187 (D.C. Cir. 1996) (holding that Army's Vaughn index as to Exemption 1, which offered only one short description for entire 483-page "compilation" of documents, was inadequate). Indeed, with respect to most of the pages from the Blue Lantern report on which material is withheld pursuant to Exemption 1, there are multiple withholdings. It is impossible for the Court or the Council to discern how many, if any, of the withholdings on a given page fit into the only justification offered for withholding this material: "references to foreign government sources." For example, two pieces of information have been withheld from page 164 of the Blue Lantern report pursuant to Exemption 1; examination of that page suggests that some of these withholdings could not possibly be only "references to foreign government sources." See 1998 Cardamone Decl. ¶¶ 2425. In short, the burden that Exemption 1 applies rests on defendant's shoulders, and defendant has not carried that burden.
IV. The untimely Exemption 7(A) claims should be rejected on their merits.
Exemption 7(A) covers "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). Assuming the Court reaches the merits of defendant's untimely Exemption 7 claim, defendant has not shown that its withholding of any material pursuant to this exemption is proper.
A. Defendant has failed to specify exactly where information is withheld pursuant to Exemption 7(A).
Not only has defendant belatedly raised its Exemption 7 claim, but it has failed even to specify exactly where it is withholding material on that basis. On the one hand, from defendant's markings on the documents themselves, it appears that material was withheld pursuant to Exemption 7(A) on only three documents: Pages 104 and 128 of the Blue Lantern report, and Document 83 of the telegrams. Even on these three documents, it is impossible to tell which material was withheld allegedly pursuant to Exemption 3, and which material was withheld allegedly pursuant to Exemption 7(A). See 1998 Cardamone Decl. ¶¶ 2628.
On the other hand, defendant's declarations and Statement of Material Facts As To Which There Is No Genuine Dispute ("Statement of Material Facts") suggest that defendant has withheld much more information than that contained in these three documents. Defendant asserts that "the State Department is withholding information relating to ongoing law enforcement investigations pursuant to Exemption 7(A) of the FOIA," and cites nine paragraphs of the Grafeld Declaration to support this assertion. See Statement of Material Facts ¶ 16. These nine paragraphs correspond not only to the aforementioned three documents on which a marking appears to indicate that material has been withheld pursuant to Exemption 7(A), but also to five other telegrams on which there is no marking to indicate that material has been withheld pursuant to Exemption 7(A). See 1998 Cardamone Decl. ¶ 28. In other words, while defendant is avowedly "withholding information relating to ongoing law enforcement investigations pursuant to Exemption 7(A)" in these five documents, Statement of Facts ¶ 16, defendant has placed no markings on the documents to indicate where material is being withheld pursuant to the exemption, or even that such material is being withheld. Thus, defendant does not meaningfully identify, let alone describe, the withheld information, and the Court should not countenance this sort of gamesmanship. The burden of showing that an exemption applies rests not with the Court or the Council, but with defendant. Accordingly, the Council's motion for summary judgment should be granted as to defendant's Exemption 7(A) claims for these five telegrams.
B. Defendant has not met its burden of showing that Exemption 7(A) applies.
Even apart from these procedural flaws, defendant has not met its substantive Exemption 7(A) burden. To prevail on an Exemption 7(A) claim, the government must show, "by more than conclusory statement," (1) that there is an ongoing law enforcement proceeding, and (2) that disclosure of the records requested "would interfere with" this proceeding. Campbell v. Department of Health & Human Serv., 682 F.2d 256, 259 (D.C. Cir. 1982).
As to the material on two pages of the Blue Lantern report and Document 83 of the telegrams, defendant has not come forward with any specific information in the corresponding paragraphs of its declarations--not even a conclusory statement--to show that disclosure of the withheld information "would interfere with" a particular ongoing enforcement proceeding.(9) Rather, defendant proclaims that disclosing this information would interfere with future law enforcement efforts because foreign government officials would no longer cooperate with State Department end-user checks. Second Grafeld Decl. ¶ 7.
This argument mixes apples and oranges. The sections of defendant's declarations that pertain to Exemption 7(A) demonstrate that defendant is attempting improperly to piggyback its Exemption 7(A) defense onto the national security concerns that underlie Exemption 1--a fact that is readily ascertained by comparing defendant's assertions in support of its invocation of Exemption 7(A) with its statements in support of Exemption 1.(10) Defendant's concern--that the Blue Lantern program may be jeopardized if confidential foreign government source information and national security information are not protected from disclosure when they are properly classified--may be legitimate, but defendant is barking up the wrong tree. Exemption 7(A) has nothing to do with these concerns, which are cognizable, if at all, under Exemption 1. The Council's motion for summary judgment should therefore also be granted as to defendant's claim that Exemption 7(A) justifies withholding material from pages 104 and 128 of the Blue Lantern report and Document 83 of the telegrams.
The same flaw infects the five telegrams from which defendant states it has withheld material under to Exemption 7(A), see Statement of Material Facts ¶ 16, but on which there are no markings to indicate that or where such information is withheld. The Vaughn index statements offered to justify the withholding of this material do not satisfy either prong of the Campbell test. See Second Grafeld Decl. ¶ 5051 (Documents 16 & 18) (making no mention of ongoing law enforcement proceeding), ¶ 60 (Document 21) (same), ¶ 68 (Document 26) (same), ¶ 77 (Document 42) ("Withheld information consists of . . . law enforcement material.").
To summarize, defendant has not met its burden of showing that it has properly withheld portions of any document pursuant to Exemption 7(A). If the Court reaches the merits of this exemption claim, summary judgment should be granted to the Council and defendant should be ordered to disclose all material for which this exemption has been invoked.
V. Defendant has not shown that it has properly withheld information pursuant to Exemption 3 and the AECA.
In this part, we show, first, that the Court's January 21, 1998 opinion set forth specific standards for interpreting Exemption 3 in the reprocessing of the Council's FOIA request. Next, we explain that defendant has, without justification, refused to accept one of those standards, reurging instead its interpretation of the section 38(e) of the AECA which the Court rejected. We argue that the Court should also reject the invitation to reconsider its opinion. In any event, defendant's new arguments are unpersuasive. Finally, we demonstrate that, as to the Blue Lantern report and approximately 60 of the telegrams, defendant has not come forward with a legitimate explanation of why material should be withheld from these documents pursuant to Exemption 3. As to thirty-seven telegrams, while Exemption 3 clearly exempts some of the withheld pieces of information from disclosure, because defendant's Vaughn index contains obvious mischaracterizations of the withheld material, defendant should be ordered to reprocess these thirty-seven telegrams in strict compliance with the Court's January opinion.
A. The Court's January 21, 1998 Opinion established the applicable disclosure standards.
In its January 21, 1998 opinion, the Court held that defendant's "conclusory assertions" that information withheld pursuant to Exemption 3 "concerns a license application" did not meet defendant's burden of proof. Op. at 12. Accordingly, the Court ordered defendant to "submit another Index . . . in which the defendant explains specifically and clearly how each withheld piece of information, from both fully and partially withheld documents, concerns a 'license application,' in accordance with the interpretation of this term set out in this Memorandum and Order." Id. (emphasis added).
Five principles implicitly guided the Court's interpretation of the phrase, "information obtained for the purpose of consideration of, or concerning, license application," 50 U.S.C. App. § 2411(c)(1) (incorporated in 22 U.S.C. § 2278(e)). The first principle, of which the remaining four are specific applications, is that the phrase has limited application: "Not all information flowing from a license application may 'concern' the application such that it may be withheld from disclosure." Op. at 11. The second principle is that defendant may not withhold information on the ground that it may concern a future license application. Id. The Court held that examples of the information the disclosure of which was required by the first principle are telegram headers and information pertaining to the administration of the Blue Lantern program. Id. at 1112. Third, defendant must disclose the names of the countries and the types and defense articles for which licenses are issued. Id. at 11. Fourth, when "defendant cannot legitimately make" a specific and clear explanation why a particular withheld piece of information concerns a license application, "defendant may not rely on Exemption 3 to withhold the information." Id. at 12. Finally, defendant may withhold the precise value, nature, parties to the transaction, and shipping date of exports. Id. at 11.
Defendant claims that it has released administrative information and telegram headings in all documents. Second Grafeld Decl. ¶ 3. Furthermore, it appears that defendant has generally released the names of the countries and the types and quantities of defense articles for which licenses are issued. Defendant continues to withhold information which it characterizes as the precise value, nature, parties to the transaction, and shipping dates of exports. Id. ¶ 4.
B. Defendant's petition that the Court should reconsider its January 21 Opinion on the Exemption 3 issue is untimely and baseless.
A striking feature of defendant's renewed motion for summary judgment and accompanying declarations is that defendant simply refuses to accept the Court's holding that "[n]ot all information flowing from a license application may 'concern' the application such that it may be withheld from disclosure." Op. at 11. Rather, defendant re-urges its rejected argument that Exemption 3 "remain[s] a viable FOIA exemption upon which defendant may rely to withhold certain information about end-use checks." Def.'s Br. at 10; see also Second Grafeld Decl. ¶ 4 (providing "further explanation to the court" as to why information on end-use checks and re-transfers is covered by Exemption 3).(11)
The Court should decline defendant's invitation to reconsider its January opinion. Defendant offers no reason why it could not have made during the initial round of summary judgment briefing the arguments it now makes in support of its rejected interpretation of section 38(e) of the AECA. See Washington Post, 795 F.2d at 208 n.1 (holding that untimely raising of exemption includes not only "raising of a new numbered exemption" but also "untimely raising of a new element of a numbered exemption"). Even if the Court decides to revisit the issue, however, it should reject defendant's interpretation of section 38(e) because the new arguments cannot withstand scrutiny.
Defendant first claims that, in interpreting section 38(e), which incorporates by reference the EAA's confidentiality provision, the Court erroneously relied on cases involving the Commerce Department and the EAA. See Def.'s Br. at 10. This argument is baseless. The Court referred only to cases involving the Commerce Department's application of the EAA simply because there are no reported cases involving the State Department. In any event, the Court's reasoning rested not on any distinctive feature about Commerce Department administration of the EAA, but rather upon Congressional intent and upon the inherent implausibility of defendant's interpretation of the EAA, which would impose no limiting principle whatsoever on the phrase, "concerns a license application." See Op. at 611.
Second, defendant argues that the EAA, for purposes of this case, must be interpreted in the context of the AECA, which is a foreign affairs statute administered by the State Department and which, unlike the EAA, governs the commercial export of national security-sensitive arms. Def.'s Br. at 1011. Defendant undertakes a lengthy explanation of the history of government regulation of arms exports from as early as 1935, evidently for the purpose of showing that the AECA was "designed to implement the foreign policy and national security objectives of the United States." Id. at 11. Even if this tale is an accurate representation of this history--and it cannot be gainsaid that the AECA is generally designed to implement foreign policy objectives--none of it is relevant to the narrow question of whether section 38(e), as it incorporates EAA section 12(c), is meant to govern confidential commercial information or confidential national security information. Indeed, defendant provides no support whatsoever for a key premise of the argument: namely, that "the authorities to control exports which are now in the AECA . . . have historically been a part of the foreign policy laws of the United States. . . . and have never been deemed to be part of the trade laws of the United States." Id. at 11. In any event, it does not follow from this premise, even if true, that the confidentiality provision of the EAA, which governs commercially sensitive information, was magically transformed, when it was incorporated by reference into AECA section 38(e), into something that has nothing to do with commercially sensitive information: a national security statute. Defendant's argument is particularly dubious when one considers that the legislative history does not support such a radical transformation. See Pl.'s Reply Supp. Cross-Mot. Summ. J. ("Pl.'s Reply Br.") at 15; see also Op. at 810; Lessner v. United States Dep't of Commerce, 827 F.2d 1333, 133740 (9th Cir. 1987). In short, defendant has ample means through the classification process to protect sensitive national security information. Section 38(e), as it incorporates EAA section 12(c), is simply not a tool for that purpose.
Finally, defendant protests that information such as the value, nature, and parties to a transaction, which the Court held is protected from disclosure because it "concerns a license application," should also be protected from disclosure pursuant to Exemption 3 "in other instances such as end-use checks and re-transfers" because the same information appears in these circumstances. Second Grafeld Decl. ¶ 4. This argument is misplaced. Defendant is again proffering an interpretation of EAA section 12(c) that contains no limiting principle whatsoever on the scope of the phrase, "information obtained for the purpose of consideration of, or concerning, license applications." But, as the Court held, defendant may not withhold information on the ground that it may concern a future license application. Op. at 11. Furthermore, while the Council agrees that section 38(e) protects commercially sensitive information submitted by private parties as part of the license application process, even when that same information reappears in an end-use check or re-transfer, section 38(e) does not protect information generated by the government from sources other than the license application process itself, such as information gathered in a post-license end-use check. See generally Pl.'s Reply Br. at 418. More puzzling, defendant's declarations on this issue are directed to showing how information on end-use checks and re-transfers implicates foreign policy and national security concerns and could lead to the initiation of enforcement actions by U.S. Customs and the Department of Justice. See Second Grafeld Decl. ¶¶ 45; Lowell Decl. ¶¶ 217. Such concerns, if valid, implicate not section 38(e)'s confidentiality provision, but Exemptions 1 and 7(a).
C. Defendant has not specifically and clearly explained how each piece of withheld information concerns a license application, and not an arms transaction.
Before addressing the substantive flaws in defendant's reprocessing, it is necessary to again point out that, despite the Court's order to "specifically and clearly" explain how "each piece of withheld information" fits into Exemption 3, Op. at 11, it is often impossible to discern where or whether any piece of information has been withheld from the Blue Lantern report, due to the extraordinarily unclear way in which excisions from the report are marked. See 1998 Cardamone Decl. ¶¶ 3034.
1. The shortcomings of the processing of the Blue Lantern report.
Defendant has released 146 pages from the Blue Lantern report. There are literally hundreds of Exemption 3 excisions on these pages--although, as stated above, it is difficult to know exactly when defendant has withheld material, and it is impossible to tell what happened to the 180 pages which are not accounted for. Yet the entirety of the explanation in the Vaughn index of why this information was properly withheld pursuant to Exemption 3 is the following:
Upon re-review of the computer printout in conformity with the Court's Order, additional material is being released. Withheld material consists of parties to the transaction and of end-use checks, as well as identify of foreign government sources. . . . This document constitutes material relating to arms export licensing required to be kept confidential by Section 38(e) of the Arms Export Control Act (22 U.S.C. Section 2278(e)(e)). It is therefore exempt from disclosure under exemption 3 of the FOIA.
Second Grafeld Decl. ¶ 9 (emphasis added).
It is important to stress one feature of this passage. Defendant claims that it "is not withholding any non-license application information"--that is, "information about end-use checks"--pursuant to Exemption 3 "that is not also being withheld in reliance upon" Exemptions 1 and 7, Def.'s Br. at 10 & n.4. It follows that all information withheld pursuant to Exemption 3 that is not also being withheld pursuant to Exemptions 1 and 7 must consist of the names of the parties to the transaction. Thus, on any page of the report without Exemption 1 and Exemption 7 excisions, i.e., all but twenty-two pages, defendant represents that the withheld information consists only of the parties to the transaction. Also, with respect to the twenty pages with both Exemption 1 and Exemption 3 withholdings, information not marked as classified must be withheld solely pursuant to Exemption 3 and must therefore be, according to defendant, parties to the transaction.
But even a cursory examination of the pages from the Blue Lantern report reveals that defendant's Exemption 3 excisions far exceed "parties to the transaction." For example, on Page 132 of the report, not only the parties, but also the license number, remarks by State Department personnel, and the "response back" to the Blue Lantern inquiry appear to have been withheld. See 1998 Cardamone Decl. ¶ 35. Page 132 is typical of many pages of the Blue Lantern report. See id. Thus, defendant's claim that all information that has been withheld pursuant to Exemption 3 which has not also been withheld pursuant to Exemptions 1 and 7(a) consists only of the "parties to the transaction" simply cannot be taken seriously. Because defendant has not offered a legitimate explanation on a page-by-page basis as to why it is withholding this information, disclosure of all information in the Blue Lantern report withheld pursuant to Exemption 3, other than the parties to the transaction, should be ordered. Cf. Oglesby, 79 F.3d at 118081, 1187.
2. The shortcomings of the telegrams.
There are four separate problems with defendant's withholding of information from 97 of the 101 telegrams on Exemption 3 grounds.(12) The complexity of these problems warrants a preliminary overview. First, the Vaughn index provides no explanation whatsoever for material withheld from forty-nine of the telegrams. Second, some of the material withheld from twelve telegrams is described as license application data or as data about the parties to the transaction. Given defendant's continued insistence on an expansive interpretation of Exemption 3, i.e., that it may withhold information on the ground that the material may concern a future license application, such as information concerning end-use checks and re-transfers, see pp. 2326, supra, defendant has not established that Exemption 3 applies to the material from these twelve telegrams. Third, defendant describes some of the material withheld pursuant to Exemption 3 from two of the telegrams simply as law enforcement or foreign government information. Defendant, however, does not claim Exemptions 1 or 7 for this material, and Exemption 3 does not apply to law enforcement or foreign government information. Defendant should be ordered to disclose this material from these two telegrams. Fourth, while defendant describes some of the Exemption 3 material withheld from thirty-seven telegrams as consisting of the value, nature, and parties to the transaction, these descriptions are often incomplete and inaccurate. Defendant should be ordered to reprocess them in strict compliance with the standards of the Court's January opinion.(13)
The ninety-seven telegrams are grouped into thirty-five separate cases. At the end of the Vaughn index paragraphs for each case, the following boilerplate paragraph appears to explain why Exemption 3 applies:
The withheld information constitutes material relating to arms export licensing required to be kept confidential by Section 38(e) of the Arms Export Control Act (22 U.S.C. Section 2278(e)), which incorporates by reference the confidentiality provisions of Section 12(c) of the Export Administration Act (Title 50 U.S.C. Appendix Section 2411(c)). It is therefore exempt from disclosure under exemption 3 of the FOIA.
See, e.g., Second Grafeld Decl. at 22. Defendant claims that the "[s]pecific items being withheld for each document are indicated" in the separately numbered paragraphs of the Vaughn index that correspond to each of the telegrams. Id. ¶ 10.
1. The first problem with defendant's reprocessing of the telegrams is that this assertion is often not true. Material withheld pursuant to Exemption 3 in many telegrams is not identified or described at all in the Vaughn index. Illustrative of the index's shortcomings is its description of Document 53. This telegram is two-and-one-half pages long, and brackets appear at fourteen places to indicate withholdings ostensibly made pursuant to Exemption 3. These withholdings total approximately fifty percent of the document, including one page in its entirety. See 1998 Cardamone Decl. ¶ 36. The paragraph in the Vaughn index that describes the telegram, however, states only the information--the header--that has been released. See Second Grafeld Decl. ¶ 85. This paragraph offers no description whatsoever of the withheld portions--an omission that is repeated with thirty-three other telegrams, see 1998 Cardamone Decl. ¶ 36. (In contrast, defendant's description of the material withheld from Document 23--"parties to the transaction," Second Grafeld Decl. ¶ 23--does explain specifically and clearly how the excisions fall within Exemption 3. See 1998 Cardamone Decl. ¶ 38.) Consequently, defendant has not satisfied the Court's requirement that defendant explain specifically and clearly how each piece of withheld information concerns a license application, and the entirety of these thirty-four telegrams must be released to the Council. The same analysis applies to fifteen telegrams in which some information has been withheld solely pursuant to Exemption 3 and some, belatedly, pursuant to Exemption 1, in that the Vaughn index descriptions of these documents also do not offer any description whatsoever of the material withheld solely pursuant to Exemption 3. See id. ¶ 37.
2. The second problem with the telegrams stems from defendant's continued insistence on the interpretation of section 38(e), rejected by the Court, which regards information about future license applications, such as end-user checks and re-transfers, as information that "concerns a license application." See pp. 2326, supra. In other words, defendant continues to interpret section 38(e) without any limiting principle, and it appears that defendant will not release information unless specifically ordered to do so by the Court.
Defendant attempts to justify withholdings from four telegrams on the ground that the information concerns "license application data," see, e.g., Second Grafeld Decl. ¶ 26, and that the information makes "specific reference to [the] license application," see, e.g., id. ¶ 60. Defendant also withholds some information in eight telegrams on the ground that the information consists of "data related to parties." See, e.g., id. ¶ 112. The meaning of these terms is unclear, particularly since the terms merely restate a contested Exemption 3 issue in this case: the circumstances in which information "concerns a license application." In light of defendant's clinging to its overly expansive interpretation of the AECA, the Court cannot be assured that defendant does not regard, say, the fact that a party has unlawfully diverted an arms shipment to an unauthorized end-user as "data related to parties" or as the kind of "license application data" that would warrant denial of a future license application. Defendant has not shown that Exemption 3 applies to the material withheld on this basis from these twelve telegrams.(14)
3. The third Exemption 3 problem is that defendant improperly seeks to import the concerns that underlie Exemptions 1 and 7(a) into its application of Exemption 3. The information withheld from Document 42 supposedly consists of "parties to the transaction"--that is, information withholdable pursuant to Exemption 3--and "law enforcement information"--that is, information that can be withheld only pursuant to Exemption 7. See id. ¶ 77. The Vaughn index, however, invokes only Exemption 3 in justifying the excisions on Document 42. See id. at 32. Analogously, the information withheld from Document 59, an unclassified telegram, supposedly consists of "parties to the transaction"--that is, information withholdable pursuant to Exemption 3--and "details of Embassy contacts with Israeli authorities"--that is, confidential source or foreign government information that can only be withheld pursuant to Exemption 1. See id. ¶ 82. The Vaughn index, however, invokes only Exemption 3 in justifying the excisions on Document 59. See id. at 32. Because Exemption 3 does not justify withholding "law enforcement information" on Document 42 or the foreign government/confidential source information on Document 59, defendant should be ordered to disclose that information.(15)
4. The fourth problem with defendant's Exemption 3 withholdings, which affects thirty-seven telegrams, is that Defendant describes the material withheld from these telegrams as consisting of the value, nature, or parties to the transaction, or some combination of these three. Examining the telegrams themselves, however, shows that the Vaughn index descriptions are, more often than not, incomplete and/or inaccurate. For example, defendant describes the material withheld from Document 23 as "parties to the transaction," Second Grafeld Decl. ¶ 39, yet other information, probably the license number, has clearly been withheld, see 1998 Cardamone Decl. ¶ 38. Similarly, the information withheld from Document 117 supposedly consists only of the "nature and parties to the transaction." Second Grafeld Decl. ¶ 113. Yet excisions are made in approximately eighteen places, including virtually the entirety of one page. See 1998 Cardamone Decl. ¶ 39. Documents 23 and 117 are typical of the inaccurate and incomplete manner in which defendant has described material withheld from these documents; in fact, the majority of these thirty-seven telegrams seem to contain some information which the Vaughn index misdescribes or fails to describe. See id. Accordingly, it is impossible for the Court or the Council to assess the propriety of these Exemption 3 withholdings.
These examples strongly suggest that defendant has applied the five principles set out in an overbroad manner. When information does not fit squarely within the five types of information that the Court unambiguously ordered defendant to disclose--administrative information, telegram headings, names of countries