282 F. Supp. 3d 338
D.C. Cir.2017Background
- Judicial Watch sued the State Department under FOIA seeking records related to the Benghazi attack; parties filed cross-motions for summary judgment.
- The Court previously (Mar. 20, 2017) ordered the State Department to produce two email-chain documents (C05739592 and C05739595) after finding Exemption 5 deliberative-process privilege did not apply to certain redactions.
- The State Department moved for reconsideration under Fed. R. Civ. P. 59(e), asserting that the withheld material in those two documents was classified and therefore exempt under FOIA Exemption 1 (national security), and that the agency failed to assert Exemption 1 earlier due to human error.
- The disputed text consists of summaries of presidential calls and related information also redacted as classified in a separate document (C05702404); the agency had already applied Exemption 1 to that separate document.
- The Court reviewed the agency declaration and its prior in camera review, found the agency’s explanation for the omission credible (attributing it to processing burdens and coordination lapses during review of Clinton-related emails), and determined disclosure would threaten national security.
- The Court granted reconsideration, held the redactions in C05739592 and C05739595 are properly classified, and altered its prior order: the State Department need not disclose the redacted portions (Exemption 1 applies).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should reconsider its prior ruling and permit a belated assertion of Exemption 1 | Defendant’s omission was deliberate and part of an effort to avoid classifying Clinton-server emails | Omission was a "pure mistake" (human error) due to heavy processing burdens; national-security interests require Exemption 1 | Court granted reconsideration: omission was human error and reconsideration appropriate |
| Whether Exemption 1 covers the redacted material in C05739592 and C05739595 | Did not meaningfully contest Exemption 1 for this material | Material was classified under Exec. Order and disclosure would harm foreign relations and national security | Exemption 1 applies; redactions are proper |
| Whether the government must show segregability of non-exempt material | Plaintiff implied agency must release more | Agency asserted line-by-line review found no reasonably segregable additional information | Court accepted agency’s segregability showing based on declaration and in camera review |
| Whether the belated assertion was tactical forfeiture | Plaintiff argued tactical/non-innocent omission | Defendant showed consistent redaction elsewhere, prior classification date, and remedial steps | Court found no tactical advantage and credited remedial steps; permitted belated claim |
Key Cases Cited
- August v. FBI, 328 F.3d 697 (D.C. Cir. 2003) (permits belated assertion of exemptions in limited circumstances where omission was inadvertent)
- Jordan v. DOJ, 591 F.2d 753 (D.C. Cir. 1978) (recognized remand/discretion where government inadvertently failed to invoke correct exemption for high-value material)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (district court has discretion to entertain new exemption on reconsideration)
- Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003) (courts defer to agency affidavits predicting national-security harm)
- ACLU v. DOD, 628 F.3d 612 (2d Cir. 2011) (agency national-security assertions need be only plausible and logical)
- Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (agency must disclose reasonably segregable non-exempt portions)