Davidson v. United States State Department et al

MOTION for Summary Judgment

D.D.C.November 17, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LAWRENCE U. DAVIDSON, III, Pro Se ) ) Plaintiff, ) ) v. ) Civil Action No. 14-1358(RC) ) UNITED STATES DEPARTMENT ) OF STATE, ) ) Defendant. ) __________________________________________) DEFENDANT=S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT Defendant, the United States Department of State (AState Department@, “DOS” or “The Defendant”), respectfully renews its motion pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment in favor of Defendant on the grounds that no genuine issue as to any material fact exists that Defendant has satisfied all of its obligations pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in response to Plaintiff’s requests for information, and that Defendant is entitled to judgment as a matter of law. In support of this motion, the Court is respectfully referred to Defendant’s Supplemental Vaughn Index, Supplemental Declaration of Eric F. Stein (Suppl. Stein Decl.), Defendant’s Memorandum of Points and Authorities in Support of its Motion for Summary Judgment, and Defendant’s Statement of Material Facts in Support of its Motion for Summary Judgment. On September 2, 2016, the Court issued a Memorandum Opinion and Order denying in part and granting part the Defendant’s motion for summary judgment under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Specifically, the Court granted Defendant’s motion for summary judgment regarding its asserted Privacy Act, Exemptions 5 and 6 but denied the Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 1 of 30 2 motion with regard to the adequacy of the search and Vaughn Index. Memorandum and Opinion (Mem. Op.) at 32, ECF No. 31. This Court directed Defendant to provide additional descriptions of: 1) searches conducted for the records of U.S. Ambassador to Libya Gene Cretz, 2) communications with staff previously assigned to the U.S. Embassy in Libya, 3) records regarding an investigation conducted by FBI Special Agent R. Godfrey, 4) searches for Plaintiff’s passport records, and 5) searches conducted by the Department’s Office of the Inspector General; and provide an updated Vaughn index detailing the information withheld and the justifications for those withholdings for 40 documents, which were inadvertently omitted in the previous Hackett and Stein Declarations. On the basis of newly filed information, Defendant, by and through undersigned counsel, respectfully renews and supplements its motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, as, in light of the supplemental declaration and Supplemental Vaughn Index produced, no genuine issue of material fact exists that Defendant has satisfied all of its obligations pursuant to the Freedom of Information Act. As demonstrated by the attached Statement of Material Facts Not in Genuine Dispute and the following Memorandum of Points and Authorities, Defendant is entitled to judgment as a matter of law as Defendant, produced all documents responsive to Plaintiff’s request and subject to FOIA, and properly withheld information pursuant to the statutory exemptions. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 2 of 30 3 Respectfully submitted, CHANNING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON, BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 3 of 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LAWRENCE U. DAVIDSON, III, Pro Se ) ) Plaintiff, ) ) vi. ) Civil Action No. 14-1358(RC) ) UNITED STATES DEPARTMENT ) OF STATE, et al., ) ) Defendant. ) __________________________________________) DEFENDANT=S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT Defendant, the United States Department of State (ADepartment@, “DOS”, or “Defendant”), respectfully moves for summary judgment on Plaintiff’s Freedom of Information Act (“FOIA”) claim in this case. This action arises from Plaintiff’s request to obtain diplomatic assistance from the Department of State in collecting an alleged debt owed to him by the former government of Libya. Plaintiff filed his complaint seeking relief for FOIA and non-FOIA claims related to his request for assistance. Plaintiff Lawrence Davidson III (“Davidson” or “Plaintiff”) requested records from the State Department seeking documents related to himself, his efforts to obtain diplomatic assistance, as well as any related investigations. After conducting multiple searches, the State Department located 157 documents responsive to Plaintiff’s request. The State Department released 34 records to Plaintiff in full, 100 records in part and withheld the remaining 23 records in full. The attached supplemental declaration explains who performed the searches for responsive records, how the searches were performed, and the line-by-line segregability analysis the Department conducted for each document responsive to Plaintiff’s FOIA request. The Vaughn Index explains all of the withheld documents and the exemptions Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 4 of 30 2 that were applied to each document. Because no genuine disputes of material fact exist, the Department respectfully requests that the Court grant its motion for summary judgment and dismiss Plaintiff=s Complaint with prejudice. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant hereby incorporates its Statement of Material Facts as to which there is no dispute and will provide a brief procedural background here. II. LEGAL STANDARDS 1. FOIA Congress has enacted the FOIA, 5 U.S.C. § 552, in order to insure that the “veil” of governmental “administrative secrecy” is pierced and the “agency action [s are opened] to the light of public scrutiny.” Am. Civil Liberties Union v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C.Cir.2011) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). The FOIA is, thus, “a means for citizens to know ‘what their Government is up to.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171–172 (2004) (citation and internal quotation marks omitted). The FOIA requires federal agencies to release all records responsive to a request for production unless a specific exemption is applicable. See 5 U.S.C. § 552(a)(3)(A),(4)(B) and 5 U.S.C. § 552(b). It “allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure.” Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.Cir. 2010) (citations omitted). When a FOIA requester properly exhausts his administrative remedies, he may file a civil action challenging an agency's response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C.Cir.2004). Once such an action is filed, the Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 5 of 30 3 agency generally has the burden of demonstrating that its response to the plaintiff's FOIA request was appropriate. See id. at 678. 2. Summary Judgment Summary judgment is appropriate where the movant shows that there is "no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). FOIA cases are typically and appropriately decided on motions for summary judgment. See Harrison v. EOUSA, 377 F. Supp. 2d 141, 145 (D.D.C. 2005). A defendant is entitled to summary judgment in a FOIA case if it can demonstrate that no material facts are in dispute and that each responsive record located is either exempt from disclosure or was disclosed to the plaintiff. See Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden, a defendant may rely on "'relatively detailed and non-conclusory'" affidavits or declarations. Harrison, 377 F. Supp. 2d at 146 (quoting SafeCard Servs., Inc., v. SEC, 926 F.2d 1197, 120 (D.C. Cir. 1991)). 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."'" Harrison, 377 F. Supp. 2d at 146 (quoting SafeCard Servs., 926 F.2d at 1200). “In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when they (1) ‘describe the documents and justifications for nondisclosure with reasonably specific detail; (2) demonstrate that information withheld logically falls within the claimed exemption; (3) are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’” Citizens for Responsibility and Ethics in Washington (“CREW”) v. U.S. Dep’t of Justice, 949 F. Supp. 2d 225, 229 -230 (D.D.C. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 6 of 30 4 2013) citing Military Audit Project v. Casey, 656 F. 2d 724, 738 (D.C. Cir. 1981). “[I]n order for the Government to discharge its evidentiary burden it must 1) provide a description of the nature and contents of the withheld document 2) identity the document’s author or origin, 3) note the circumstances that surround the document’s creation, and 4) provide some indication of the type of litigation for which the document’s use is at least foreseeable.” CREW v. U.S. Dep’t of Justice, 2014 WL 2604640 at *3 (D.D.C. 2014). A. Reasonableness of Agency Search In responding to a FOIA request, an agency is under a duty to conduct a reasonable search for responsive records. Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Cleary, Gottlieb, Steen & Hamilton v. Dept. of Health, et al., 844 F. Supp. 770, 776 (D.D.C., 1993); Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1352 (D.C. Cir., 1983). This reasonableness standard focuses on the method of the search, not its results, so that a search is not unreasonable simply because it fails to produce relevant material. Cleary, 844 F. Supp. at 777 n.4. An agency is not required to search every record system, but need only search those systems in which it believes responsive records are likely to be located. Oglesby, 920 F.2d at 68; Kowalczyk v. Department of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996); CREW v. DOJ, 535 F.Supp.2d 157, 160 (D.D.C. 2008) (finding search to be adequate where DOJ identified the files searched and established that these were the locations most likely to contain responsive records). Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the absence and discoverability of documents. CREW, 949 F. Supp. 2d at 230, citing Safeguard Servs., Inc. v. Securities & Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Moreover, the search need only be reasonable; it does not have to be exhaustive. Miller v. United States Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985). Thus, the Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 7 of 30 5 issue is not whether there might exist any other records possibly responsive to the request, but rather whether the actual search for responsive records was reasonable. Id.; Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). Therefore, the agency can establish the reasonableness of its search by affidavits if they are relatively detailed, non-conclusory, and made in good faith. Weisberg, 745 F.2d at 1485; Perry v. Block, 684 F.2d 121, 125-26 (D.C. Cir. 1982). As long as the agency submits detailed affidavits showing the scope and method of the search, then, in the absence of countervailing evidence, or apparent inconsistency of proof, dismissal or summary judgment is appropriate in its favor. Perry, 684 F.2d at 127. Consistent with the reasonableness standard, the adequacy of the search is dependent upon the circumstances of the case. Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C. Cir. 1990). III. ARGUMENT A. Defendant’s Supplemental Search Was Reasonably Calculated To Uncover All Documents Responsive To The Plaintiff’s FOIA Request. An agency must release all records responsive to a properly submitted FOIA request unless the records are protected from disclosure by one or more of the FOIA's nine Exemptions. See 5 U.S.C. § 552(b); see also Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989). As shown below, DOS conducted an reasonable and adequate supplemental search for records responsive, released all non-exempt records, and properly withheld exempt records (or exempt portions thereof) pursuant to Privacy Act exemption d(5), and FOIA Exemptions (b)(5) and (b)(6). Therefore, DOS is entitled to summary judgment in its favor. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 8 of 30 6 1. Records of U.S. Ambassador to Libya Gene Cretz The Defendant’s previous Motion for Summary Judgment describes the Department’s search of the records of personnel who were in the Front Office of the Bureau of Near Eastern Affairs (“NEA/FO”), one of whom was William Roebuck. ECF No. 25, Defendant’s Motion for Summary Judgment, Hackett Declaration at ¶ 20 (Hackett Decl.). While in the Hackett Declaration William Roebuck bears the title of “Ambassador,” the Department does not state, and did not intend to imply, that William Roebuck was the Ambassador to Libya during the relevant time period. Suppl. Stein Decl. at ¶¶ 3-4.1 The Department has now reviewed the searches that were conducted and conducted additional searches of the files of the U.S. Embassy in Tripoli that were carried over when the Embassy was evacuated, the Central Foreign Policy Records, and the Retired Records Inventory Management System. Suppl. Stein Decl. at ¶¶ 3-4. a. Files of the U.S. Embassy in Tripoli, Libya On July 26, 2014, the U.S. Embassy in Tripoli, Libya was closed and remains closed as of the date of this filing. All paper files from the Consular Section and all electronic storage devices were destroyed prior to suspension of operations on July 26, 2014. All remaining files were saved to one thumb drive. These records included certain unclassified files maintained by the Political and Economic section, memoranda, human resources documents, and work requests, and would have included any files of Ambassador Gene Cretz, if any of his files were saved. Suppl. Stein Decl. at ¶¶ 5-6 1 Indeed, the Hackett Declaration states that Mr. Roebuck “was assigned to the NEA/FO during the relevant time period of this request and is currently serving as U.S. Ambassador to Bahrain.” (ECF No. 25, Hackett Decl. ¶ 20, emphasis added). Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 9 of 30 7 The thumb drive was transferred to the Libya External Office (“LEO”), which is currently operating from the U.S. Embassy in Tunis, where the contents were downloaded and saved to the LEO’s electronic shared drive. The Embassy Tunis’ Information Management Officer (“IMO”), conducted a search of the contents of LEO shared drive using the terms: “Lawrence,” “Davidson,” “Export Strategic Alliance,” “Mason,” “Nate,” “Wilkens,” “Christopher,” “Abdalla,” “Alice,” “Sizer,” “Lydia,” “Sideras,” “Evyenia,” “Bell,” “Kimberly,” “Slack,” Anne,” “Wilson,” “Grigola,” “Yamamoto,” “Donald,” “Thomas-Greenfield,” Thomas,” “Greenfield,” “Linda,” “Roebuck,” “William,” “Cretz,” “Gene,” “Hamidan,” “Draper,” “Dejuana,” “Carlos,” “Sherman,” “Wendy,” or “American Embassy in Libya.” No responsive documents were located as a result of these searches. Id. b. Retired Records Inventory Management System The Retired Record Inventory Management System (“RIMS”) is a searchable database of Department records that have been retired to the Records Service Center. IPS analysts can search both the full-text of the retired file manifests, as well as database fields in the RIMS database. The retired file manifests serve as an index of the contents of retired files and are used to direct a researcher to particular file folders or documents in retired file boxes. On occasion, manifests do not contain sufficient detail to indicate the exact contents maintained under a given subject. Once a potentially responsive box is located, the entire contents of the box must be searched manually. Suppl. Stein Decl. ¶¶ 7-8. In an effort to conduct a thorough search, an IPS analyst conducted a search of RIMS for any retired files of the U.S. Ambassador to Libya Gene Cretz. The analyst searched RIMS using the following terms or combination of terms: “Cretz,” “Cretz and Libya,” “Cretz and Davidson,” Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 10 of 30 8 “Davidson and Libya,” or “Export Strategic Alliance and Libya.” These searches located no retired files for Ambassador Cretz relating to Libya or Lawrence Davidson. c. Central Foreign Policy Records The Central Foreign Policy Records (or “Central File”) is the Department’s centralized records system and contains over 30 million records of a substantive nature that establish, discuss, or define foreign policy, set precedents, or require action or use by more than one office. Searches of the Central File are conducted through an automated interface, known as the State Archiving System (“SAS”), which searches the full text of millions of cables and other substantive correspondence documents in the Central File. An IPS analyst with knowledge of both the request and the records system conducted supplemental full-text search of the Central File using the combined search terms: “Cretz,” “Cretz and Libya,” “Cretz and Davidson,” “Davidson and Libya,” or “Export Strategic Alliance and Libya” for the date range January 2008 to October 2016. These searches located no responsive documents. Stein Decl. 9. 2. Records Regarding an Investigation Conducted by FBI Special Agent R. Godfrey As explained in the Hackett Declaration at ¶¶ 45-47, the Department conducted a search of the records of the Bureau of Diplomatic Security (“DS”). DS is the law enforcement arm of the Department and is responsible for providing a safe and secure environment for the conduct of U.S. foreign policy. DS has a broad scope of global responsibilities, with protection of people, information, and property as its top priority. DS designs and maintains security programs for every diplomatic mission in the world, investigates passport and visa fraud, conducts personnel Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 11 of 30 9 security investigations, and protects the Secretary of State and high-ranking foreign dignitaries and officials visiting the United States. Suppl. Stein Decl. at ¶¶10-11. DS conducted a search of the Investigative Management System (“IMS”) for all records relating to Lawrence Davidson. The IMS is a database used for managing DS investigation cases and contains information related to domestic and international criminal law enforcement, including all coordinated investigations between DS and external law enforcement agencies. All case-related information is stored in this database. If the Department had any information regarding an investigation conducted by the FBI of or on behalf of Lawrence Davidson, that information would be stored in the IMS. DS searched the IMS using the search terms: “Lawrence Davidson,” “Lawrence Davidson, III” “Lawrence U. Davidson,” “Lawrence U. Davidson, III,” or “Export Strategic Alliance” and located no responsive documents. Id. 3. Passport Records Passport Services in the Bureau of Consular Affairs (“CA/PPT”) is charged with issuing passports to U.S. citizens. Suppl. See, Stein Decl. at ¶12. CA/PPT conducted a search of the Passport Information Electronic Records System (“PIERS”),2 the Passport Lookout Tracking System (“PLOTS”),3 the American Citizen Records Query (“ACRQ”),4 and the Travel Document Issuance System (“TDIS”)5 for any passport records regarding Plaintiff, using his name and place and date of birth for the time period January 2009 to the present. The 2 PIERS is a database that provides passport data from 1978 to the present and passport images from 1994 to the present. 3 PLOTS is an Intranet-based system used to manage all automated passport lookout cases originating in the Department, at passport agencies/centers, or at posts, and allows authorized users to retrieve digital records of passport lookouts. 4 ACQR is an Intranet-based system that provides passport data from 1978 to present and passport images from 1994 to present. 5 TDIS is an Intranet-based system that contains information on recently issued passports. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 12 of 30 10 Department maintains no passport-type records beyond those contained in these databases. No responsive records were located as a result of these searches. Id. 4. Office of Inspector General By letter dated October 15, 2013, Plaintiff submitted a FOIA request to the Department, with a carbon copy to the Office of Inspector General – Investigation Division, seeking certain information regarding himself and his company Export Strategic Alliance (see ECF No. 25, Hackett Decl. ¶ 4 Exhibit 1). The Office of Inspector General (“OIG”) is a decentralized office within the Department that maintains its own FOIA program. The OIG conducted a search for responsive records, and the results of these searches are detailed below. See, Suppl. Stein Decl. at ¶ 13. The OIG is responsible for the periodic inspection of the Department’s approximately 260 embassies, diplomatic posts, and international broadcasting installations throughout the world to determine whether policy goals are being achieved and whether the interests of the United States are being represented and advanced effectively. Additionally, the OIG performs specialized security inspections and audits in support of the Department's mission to provide effective protection to our personnel, facilities, and sensitive information. OIG also audits Department operations and activities to ensure that they are as effective, efficient, and economical as possible. Finally, OIG investigates instances of fraud, waste, and mismanagement that may constitute either criminal wrongdoing or violation of Department regulations. Upon review of Plaintiff’s FOIA request, OIG determined that the OIG components reasonably likely maintain responsive records were the Office of Investigations, the Office of Inspections, and the Office of Audits. Suppl. Stein Decl. at ¶14. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 13 of 30 11 The Office of Investigations (“OIG/INV”) conducts investigations of criminal, civil, and administrative misconduct related to organizational programs and operations. Investigations examine specific allegations, reports, or other information indicating possible violations of law or regulation. OIG/INV also maintains the OIG Hotline, a confidential channel for complaints about violations of law or regulation, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety. An OIG employee conduced a search of the Investigative Management System (“IMS”)6 using the search terms “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” The search located no responsive records. See, Suppl. Stein Decl. at ¶15. The Office of Inspections (“OIG/ISP”) provides the Department of State with systematic and independent assessments of mission leadership, policy implementation, resource management, and management controls. OIG/ISP assesses the effectiveness of programs, identifies potential efficiencies and cost-saving measures, encourages self-evaluation and correction, and identifies problems and recommends solutions. The office’s work encompasses both overseas and domestic operations. OIG/ISP also conducts thematic reviews of programs and operations such as foreign assistance oversight, U.S. embassy security, consular affairs management, and efforts to counter terrorism. All OIG/ISP files are maintained electronically. An OIG employee conducted a search of OIG/ISP’s electronic files, which consist of email records, documents located on the office’s SharePoint site, and documents located on the office’s electronic shared drive, including digitized copies of paper records, using the search terms “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” No responsive records were located as a result of these searches. See, Suppl. Stein Decl. at ¶16. 6 The IMS is the official electronic case file system for OIG’s Office of Investigations. It is the electronic repository (case file) for all records, documents, and reports associated with an official OIG investigation. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 14 of 30 12 The Office of Audits (“OIG/AUD”) has a leading role in helping the Department improve management, strengthen integrity and accountability, and ensure the most efficient, effective, and economical use of resources. OIG/AUD’s mandate includes security, consular affairs, contracts and grants oversight, international broadcasting, administrative and financial management, and information technology, as well as new initiatives and priorities. An OIG employee conducted a search of the Compliance Analysis Tracking System (“CATS”), which contains the full text of audit report recommendations and titles of audit reports, using the search terms “Libya,” “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” No date range was applied to this search. No responsive documents were located as a result of this search. Suppl. Stein Decl. at ¶17. 5. State Department Has Submitted a Proper Declaration and Vaughn Index. In moving for summary judgment in a FOIA case, an agency must establish a proper basis for its withholding of responsive documents. “In response to this special aspect of summary judgment in the FOIA context, agencies regularly submit affidavits . . . in support of their motions for summary judgment against FOIA plaintiffs.” Judicial Watch v. Dep’t of Health and Human Servs., 27 F. Supp. 2d 240, 242 (D.D.C. 1998). The declaration or affidavit (singly or collectively) is often referred to as a Vaughn Index. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). There is no set formula for a Vaughn Index. “[I]t is well established that the critical elements of the Vaughn Index lie in its functionand not in its form.” Kay v. F.C.C. ., 976 F. Supp. 23, 35 (D.D.C. 1997), aff’d, 172 F.3d 919 (D.C. Cir. 1998). “The materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 15 of 30 13 evaluate the claim of privilege.” Delaney, Midgail & Young, Chartered v. Internal Revenue Serv., 826 F.2d 124, 128 (D.C. Cir. 1987); see also Keys v. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987); Hinton v. Dep’t of Justice, 844 F.2d 126, 129 (3d Cir. 1988). “All that is required, and that is the least that is required, is that the requester and the trial judge be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure.” Id. at 128. The specificity of itemization needed depends upon the nature of the document and the exemption asserted. Info. Acquisition Corp. v. Dep’t of Justice, 444 F.Supp. 458, 462 (D.D.C. 1978). The Vaughn Index serves a threefold purpose: (1) it identifies each document withheld; (2) it states the statutory exemption claimed; and (3) it explains how disclosure would damage the interests protected by the claimed exemption. See Citizens Comm. on Human Rights v. Food and Drug Admin, 45 F.3d at 1325 (9th Cir. 1995). “Of course the explanation of the exemption claim and the descriptions of withheld material need not be so detailed as to reveal that which the agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). In this case, State Department submitted the Declaration of Eric F. Stein, Acting Director of the Office of Information Programs and Services (“IPS”) of the United States Department of State. Mr. Stein has personally reviewed the records in the case file established for processing the request at issue in this litigation (“subject request”) and upon information furnished to him in the course of his official duties. Mr. Stein is familiar with the efforts of Department personnel to process the subject request, and Mr. Stein is responsible for coordinating the agency’s supplemental search and recovery efforts with respect to that request. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 16 of 30 14 All potentially responsive documents retrieved by the Department in response to FOIA and Privacy Act requests are ingested into IPS’s document review system (called FREEDOMS2 or “F2”), where they are reviewed, appropriate FOIA and/or Privacy Act exemptions are applied, and a final release determination is made. Suppl. Stein Decl. ¶ 18. The Department conducted a thorough review of all of the documents maintained in F2 that were retrieved in response to Plaintiff’s request and confirmed that a total of 159 documents were located. The Department released 34 documents in full, released 103 documents in part, and denied 22 documents in full.7 While preparing the Vaughn index of these documents, the Department determined that one document (C05836852) previously denied in full could be released in part, and additional information could be released in one other document (C05836848). Id. Mr. Stein’s declarations together with the attached Supplemental Vaughn Index submitted in support of this motion, meet the requirements of Vaughn v. Rosen, 484 F.2d at 820. Mr. Stein’s declaration identifies the information withheld, states the statutory exemption claimed, and explains how disclosure would damage the interests protected. See Citizens Comm. on Human Rights, 45 F.3d at 1325. The attached Supplemental Vaughn Index provides a detailed description of all the documents, the status of disclosure, and analysis of each applicable exemption for withholding documents. Therefore, the Stein Supplemental Declaration and Vaughn Index provide the Court with the requisite basis to grant Defendants’ motion for summary judgment. 7 The Department inadvertently omitted from the Hackett Declaration Vaughn index 30 documents released in part and 10 documents denied in full. Suppl. Stein Decl. ¶ 18. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 17 of 30 15 6. The State Department Complied with the FOIA's Segregability Requirement If a record contains information exempt from disclosure, the FOIA requires that any "reasonably segregable," non-exempt information be disclosed after redaction of the exempt information. 5 U.S.C. § 552(b). Non-exempt portions of records need not be disclosed if they are "inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). To establish that all reasonably segregable, non- exempt information has been disclosed, an agency need only show "with reasonable specificity" that the information withheld cannot be segregated. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996) (internal quotation marks omitted); Canning v. Dep’t of Justice, 567 F. Supp. 2d 104, 110 (D.D.C. 2008). See Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (“government's declaration and supporting material are sufficient to satisfy its burden to show with ‘reasonable specificity’ why the document cannot be further segregated,” where declaration averred that agency had “‘released to plaintiff all material that could be reasonably segregated’”); Loving v. Dep’t of Defense, 496 F. Supp. 2d 101, 110 (D.D.C. 2007), aff’d, 550 F.3d 32 (2008), cert. denied, 130 S.Ct. 394 (2009). Moreover, the agency is not required to “commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.” Mead Data Ctr., Inc., 566 F.2d at 261, n.55. As established by the Supplemental Stein Declaration and Vaughn Index, where non- exempt information could be segregated from exempt information, the DOS segregated and disclosed the non-exempt information. Supp. Stein Decl. ¶¶ 24-53. The DOS established, with reasonable specificity, that responsive documents were only redacted after a line-by-line review and after a determination that there were no reasonably segregable portions of documents Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 18 of 30 16 appropriate for release. Therefore, it is clear that DOS processed and released all reasonably segregable information from the documents provided to Plaintiff unless such release would constitute an unwarranted invasion of personal privacy or would violate the agency’s attorney- client, attorney work-product or deliberative process privileges. Hence, DOS has established with reasonable specificity, that all reasonably segregable, non-exempt information has been released to Plaintiff. 7. The State Department Properly Applied Privacy Act Exemption d(5) An agency may deny an individual's right of access to his own records under subsection (d)(1) of the Privacy Act of 1974, 5 U.S.C. §552a, where the systems of records in which the requested material is contained has been exempted pursuant to subsection (j) of the statute. 5 U.S.C.§ 552a(j). Here, the DOS has evaluated the responsive material at issue under the Privacy Act (in addition to FOIA). Hacket Declaration at ¶10. The Privacy Act exemption, 5 U.S.C. § 552a(b) , sets the conditions of disclosure in that any agency shall not disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would fall within one of twelve specified exceptions not applicable here. Id. a. Privacy Act Exemption (d)(5) Privacy Act exemption (d)(5), 5 U.S.C. §552a(d)(5), provides that “nothing in[the Privacy Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.” Id. DOS properly withheld responsive material in part or in full under exemption (d)(5) where such material relates to the Plaintiff’s ongoing civil litigation. Suppl. Stein Decl. at ¶¶ 32-38; 41-42; 44-47; 49-52. Information has been withheld Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 19 of 30 17 from documents in this case because that information was compiled in the reasonable expectation of civil litigation. Id. When an individual has indicated a propensity for litigation about the subject matter of the documents and that propensity is known at the time of the creation of the documents, Exemption (d)(5) shields the information from disclosure. Schoenman v. F.B.I., 573 F. Supp. 2d 119, 143 (D.D.C. 2008) (“nothing in [the Privacy Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding”). Because Plaintiff has already initiated civil litigation as a result of the DOS response to his request, the information compiled in anticipation of litigation was properly exempt under Privacy Act Exemption (d)(5). See Davidson v. United States State Department (Civ. No. 14-01358) (RC). 8. DOS Properly Withheld Documents Under FOIA Exemption 5 The Freedom of Information Act “represents a balance struck by Congress between the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” Ctr. for Nat'l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003), cert. denied, 540 U.S. 1104 (2004)(citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). Accordingly, although the Act generally requires agencies to release documents responsive to a properly submitted request, it also provides nine statutory exemptions to this general disclosure obligation. See 5 U.S.C. §§ 552(a)(3), (b)(1)-(b)(9). While the nine exemptions should be “narrowly construed,” Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 630 (1982), the Supreme Court has made clear that courts must give them “meaningful reach and application.” John Doe Agency, 493 U.S. at 152. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 20 of 30 18 Exemption 5 of the FOIA exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has interpreted Exemption 5 as allowing an agency to withhold from the public documents which a private party could not discover in litigation with the agency. U.S. v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). Exemption 5 incorporates privileges that the government enjoys under the relevant statutory and case law in the pretrial discovery context. Fed. Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 26 (1983). Agency documents that are not routinely discoverable in civil litigation are exempted from disclosure under Exemption 5. Id. at 27. Accordingly, Exemption 5 allows an agency to invoke civil discovery privileges, including the attorney-client privilege, attorney work-product privilege, and the executive deliberative process privilege, to justify the withholding of documents that are responsive to a FOIA request. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). a. Attorney Work-Product It is well settled that Exemption 5 was intended to encompass the work-product doctrine. Announced in Hickman v. Taylor, 329 U.S. 495 (1947), the work-product doctrine is codified in the Federal Rules of Civil Procedure, which provides: [A] party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for another party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 21 of 30 19 hardship to obtain the substantial equivalent of the materials by other means. Fed. R. Civ. P. 26(b)(3). Under the FOIA, work-product materials are not considered to be routinely available in litigation because they can only be released under Rule 26(b)(3) upon showings of substantial need and undue harm by the party seeking discovery. Grolier, 462 U.S. at 27. In light of the information contained in the withheld documents and their purpose relating to USCIS administrative hearings, such documents would be clearly protected from disclosure under Rule 26(b)(3) in civil litigation, thus making them exempt from disclosure under Exemption 5. See Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (“Any part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under Exemption 5.”) (internal quotation omitted). Only documents routinely disclosable in civil discovery fall outside the protection of the exemption. Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1184-87 (D.C. Cir. 1987). For the attorney work-product privilege to apply, the litigation at issue need not be judicial. Rather, courts have found that the attorney work-product privilege extends to document prepared in anticipation of administrative litigation, partially because “administrative litigation certainly can beget court litigation and may in many circumstances be expected to do so.” Exxon Corp. v. Dep't of Energy, 585 F.Supp. 690, 700 (D.D.C.1983). Here, these records contain the mental impressions of agency counsel. They were prepared with administrative litigation in mind. Consequently, these records are privileged under the attorney work-product doctrine and protected from disclosure under Exemption 5. See also Martin, 819 F.2d at 1187 (finding that attorney notes were protected from disclosure under Exemption 5 of FOIA, noting that “[a] clearer case for application of Hickman v. Taylor, is difficult to imagine); see also Jackson v. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 22 of 30 20 U.S. Attorney’s Office, Dist. of N.J., 293 F. Supp. 2d 34, 40 (D.D.C. 2003)(finding attorney’s notes protected by Exemption 5 under work-product doctrine). This Court has also found that the work product privilege is likely to apply “[w]here a FOIA request ‘focuses specifically on documents and communications related to a particular course of litigation[.]” See CREW v. U.S. Dep’t of Justice, 2014 WL 2604640 at *4. Additionally, [w]here an attorney prepares a document in the course of an active investigation focusing on specific events and a specific possible violation by a specific party, it has litigation sufficiently in ‘mind’ for the document to qualify as attorney product.” Safecard Serv. Inc., 926 F. 2d at 1203. Here, the DOS identified and described in detail in its Vaughn index documents that clearly fall within the protections of the attorney work-product privilege. See Suppl. Stein Decl. at ¶¶ 32-38, 41-42; 44-47; 49-52. The withheld documents included internal communications which contain employees’ comments and opinion, assessment of Plaintiff’s legal claims, as well as the attorney’s mental impressions. These documents were prepared by a DOS attorney in anticipation of litigation and, therefore, have been withheld under the attorney work product doctrine. Id. These documents were written by the attorney who was acting on a specific complaint about specific individuals who engaged in alleged, identified misconduct. These documents were created with an eye towards potential litigation. Id. The documents withheld reflect the legal analysis and thought processes of the DOS attorneys in an administrative matter that had a possibility of resulting in litigation including work product and mental impressions of the attorneys. Thus, DOS properly withheld documents under the Attorney Work Product Privilege of Exemption 5. Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 23 of 30 21 b. Attorney-Client Communications It is well settled that Exemption 5 exempts from disclosure materials protected by the attorney-client privilege. See Loving v. Dept. of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (“Exemption 5 incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant -- including the Presidential communications privilege, the attorney-client privilege, the work product privilege, and the deliberative process privilege -- and excludes these privileged documents from FOIA’s reach.”) (internal quotation marks omitted). The attorney-client privilege rests at the center of our adversary system and promotes “broader public interests in the observance of law and administration of justice” and “encourage[s] full and frank communication between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The attorney-client privilege “protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services.” See In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). “In the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.” Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997). Here, the DOS withheld documents in full or in part pursuant to the attorney-client privilege. See Suppl. Stein Decl. at ¶¶ 32-38, 41-42; 44-47; 49-52. These documents consists of email exchanges and contain confidential communications between DOS attorneys and employees. Id. The information within the documents was exchanged between DOS attorneys to and agency employees within the attorney client privilege. The legal analysis was requested by agency employees and held in confidence. Documents were written by attorneys to provide confidential legal advice to the DOS employees responsible for deciding possible action to Mr. Davidson’s request. DOS withheld Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 24 of 30 22 certain details of the discussions between a Department attorney and its clients that reveal the attorney’s thought processes relating to reasonably anticipated litigation as well as the confidential two-way communications that occur between an attorney and her clients when seeking legal advice. See i.e., Suppl. Stein Decl. at ¶33. These are clearly protected communications under the attorney-client privilege. See Reliant Energy Power Generation, Inc. v. Fed. Energy Regulatory Comm’n, 520 F. Supp. 2d 194, 206-07 (D.D.C. 2007) (“The privilege applies to disclosures made by a client to an attorney as well as an attorney's written communications to a client.”) (internal quotation marks omitted). Consequently, the State Department’s Exemption 5 withholdings under the attorney-client privilege are proper as a matter of law. c. Deliberative Process Privilege To withhold a responsive document under the deliberative process privilege, the agency must demonstrate that the document is “both predecisional and deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). Whether a particular document is protected by the deliberative process privilege depends on two factors: first, whether the document is predecisional, whether it was generated before the adoption of an agency policy; and, second, whether the document is deliberative, whether it reflects the give-and-take of the consultative process. Coastal States Gas Corp., 617 F.2d at 866. In making those determinations, courts consider whether the document is so candid and personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency; whether the document is recommendatory in nature or is a draft of what will become a final document; and whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another. Id. The Supreme Court commented that, “[h]uman experience teaches Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 25 of 30 23 that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.” United States v. Nixon, 418 U.S. 683, 705 (1974). Here, the State Department withheld documents in full or in part under the deliberative process privilege. See Suppl. Stein Decl. at ¶¶ 32-35, 37-38; 42; 46-47;49; 51-52. Documents withheld under this privilege include communications between DOS employees and attorneys containing employees’ opinions and comments regarding Mr. Davidson’s request and what course of action the agency should take. See Suppl. Stein Decl. at ¶34. These records are pre- decisional and deliberative; they contain factual distillations and deliberative analysis regarding the merits of the investigation and whether any an action against the individuals was warranted. These documents are pre-decisional and deliberative because they reflect the give-and-take of the wide array of DOS’s communications prior to making a decision in the pending administrative matter. 9. DOS Properly Applied Exemption (b)(6) FOIA Exemption (b)(6) provides for the withholding of matters contained in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(6). The primary purpose of enacting Exemption (b)(6) was “to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Dep’t of State v. Washington Post Co., 456 U.S. 595, 599 (1982). The Supreme Court has adopted a broad construction of the privacy interests protected by this exemption, has rejected a “cramped notion of personal privacy[,]” and has emphasized that “privacy encompass[es] the individual’s control of information concerning his or her person.” Dep’t of Justice v. Reporters Comm. for Freedom of Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 26 of 30 24 the Press, 489 U.S. 749, 763 (1989). Privacy is of particular importance in the FOIA context because a disclosure required by FOIA is a disclosure to the public at large. See Painting & Drywall Work Pres. Fund, Inc. v. Dep’t of Housing and Urban Dev., 936 F.2d 1300, 1302 (D.C. Cir. 1991). Moreover, “even though ‘an event is not wholly ‘private’ [it] does not mean that an individual has no interest in limiting disclosure or dissemination of the information.’” Fed. Labor Relations Auth. v. Dep’t of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992)(quoting Reporters Comm. for Freedom of the Press., 489 U.S. at 763). The Supreme Court has concluded that “as a categorical matter . . . a third party’s request for . . . information about a private citizen can reasonably be expected to invade that citizen’s privacy.” Reporters Comm. for Freedom of the Press, 489 U.S. at 780. “The threshold is fairly minimal, such that all information which applies to a particular individual is covered by Exemption 6, regardless of the type of file in which it is contained.” Conception v. Fed. Bureau of Investigations, 606 F.Supp.2d 14, 35 (D.D.C. 2009) (citations and internal quotation marks omitted). In evaluating an Exemption (b)(6) withholding, a court must balance the subject individual’s right to privacy against the public’s interest in disclosure. Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976). See Am. Civil Liberties Union v. Dep’t of Justice, 698 F.Supp.2d 163 (D.D.C. 2010)(“The proper application of . . . [E]xemption[ (b)(6)] requires a balancing of individual privacy interests against the public interest.”)(citing Reporters Comm. for Freedom of the Press, 489 U.S. at 776)). As the District of Columbia Circuit has stated: [s]ince this is a balancing test, any invasion of privacy can prevail, so long as the public interest balanced against it is sufficiently weaker. The threat to privacy thus need not be patent or obvious to be relevant. It need only outweigh the public interest. Pub. Citizen Health Research Group v. Dep’t of Labor, 591 F.2d 808, 809 (D.C. Cir. 1978). If an individual’s Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 27 of 30 25 privacy interest is implicated, then a FOIA requestor must show that “(1) the public interest is a significant one; and (2) the information is likely to advance that interest.” Am. Civil Liberties Union, 2010 WL 1140868, at * 1 (citing Harrison, 377 F.Supp.2d at 147; Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2003)). See Carter v. Dep’t of Commerce, 830 F.2d 388, 391-92 nn.8 & 13 (D.C. Cir. 1987)(A plaintiff bears the burden of demonstrating that the release of the withheld documents would serve this interest.). The review of an agency’s withholding under Exemption 6 proceeds in two stages: first, the Court must decide whether the information is subject to protection under the exemption; and second, the Court must determine whether disclosure would constitute a “clearly unwarranted invasion of personal privacy.” Washington Post Co. v. Dep’t of Health and Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982). With respect to the first stage, the threshold for the application of Exemption 6 is “minimal.” Id. As previously indicated, Exemption 6 provides for the withholding of matters contained in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(6). “The Supreme Court has interpreted the phrase ‘similar files’ to include all information that applies to a particular individual.” Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37, 46 (D.C. Cir. 1999), quoting Dep’t of State v. Wash. Post Co., 456 U.S. 5at 602 (“The term ‘similar files’ is not “limited to files containing ‘intimate details’ and ‘highly personal’ information,” and is, instead, intended by Congress “to have a broad, rather than a narrow, meaning.”). The Court also has emphasized that “both the common law and the literal understanding of privacy encompass the individual’s control of information concerning his or her person.” Reporters Comm. for Freedom of the Press, 489 U.S. at 763. The Supreme Court has found that Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 28 of 30 26 “[i]ncorporated in the ‘clearly unwarranted’ language is the requirement for . . . [a] ‘balancing of interests between the protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information.’” Lepelletier, 164 F.3d at 46, citing Dep’t of Defense v. Fed. Labor Relations Auth., 964 F.2d 26, 29 (D.C. Cir. 1992) (citations omitted). In determining how to balance the private and public interests involved, the Supreme Court has sharply limited the notion of “public interest” under the FOIA: “[T]he only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’” Lepelletier, 164 F.3d at 46, quoting Fed Labor Relations Auth., 510 U.S. at 497; see also Reporters Comm. for Freedom of the Press, 489 U.S. at 773. DOS properly withheld documents in part pursuant to exemptions (b)(6). See Suppl. Stein Decl. at ¶¶ 32-46; 48-53. DOS withheld the names of its employees, including administrative and lower level staff at the State Department, and direct contact information for DOS staff (including phone numbers and email addresses.) See, Suppl. Stein Decl. at ¶¶ 25-29. DOS also withheld the signatures of DOS employees. The individuals whose information was withheld have strong privacy interests in information about them in responsive records, and the Court should find their privacy interests quite substantial and weighty. On the public interest side of the balancing, Plaintiff cannot identify any public interest to be served by the release of this information, and indeed, the names and identifying information about these third parties reveals nothing significant about what the government was up to. Accordingly, the balance favors withholding the information and DOS was justified in withholding this information pursuant to Exemptions (b)(6). Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 29 of 30 27 IV. CONCLUSION For the foregoing reasons, Defendant DOS respectfully request that its Motion for Summary Judgment on Plaintiff’s FOIA claim be granted because there is no genuine issue of material fact, and Defendant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). Respectfully submitted, CHANNING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON, BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:14-cv-01358-RC Document 33 Filed 11/17/16 Page 30 of 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LAWRENCE U. DAVIDSON, III, Pro Se ) ) Plaintiff, ) ) v. ) Civil Action No. 14-1358(RC) ) UNITED STATES DEPARTMENT ) OF STATE, et al., ) ) Defendants. ) __________________________________________) DEFENDANT’S SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS I. Records of U.S. Ambassador to Libya Gene Cretz 1. Defendant has reviewed the searches that were previously conducted and conducted additional searches of the records of personnel who were in the Front Office of the Bureau of Near Eastern Affairs (“NEA/FO”) and conducted additional searches of the files of the U.S. Embassy in Tripoli that were carried over when the Embassy was evacuated, the Central Foreign Policy Records, and the Retired Records Inventory Management System. Id. at ¶ 4. Files of the U.S. Embassy in Tripoli, Libya 2. On July 26, 2014, the U.S. Embassy in Tripoli, Libya was closed and remains closed as of the date of this filing. All paper files from the Consular Section and all electronic storage devices were destroyed prior to suspension of operations on July 26, 2014. All remaining files were saved to one thumb drive. These records included certain unclassified files maintained by the Political and Economic section, memoranda, human resources documents, and work requests, Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 1 of 8 2 and would have included any files of Ambassador Gene Cretz, if any of his files were saved. Id. at ¶ 5. 3. The thumb drive was transferred to the Libya External Office (“LEO”), which is currently operating from the U.S. Embassy in Tunis, where the contents were downloaded and saved to the LEO’s electronic shared drive. The Embassy Tunis’ Information Management Officer (“IMO”), conducted a search of the contents of LEO shared drive using the terms: “Lawrence,” “Davidson,” “Export Strategic Alliance,” “Mason,” “Nate,” “Wilkens,” “Christopher,” “Abdalla,” “Alice,” “Sizer,” “Lydia,” “Sideras,” “Evyenia,” “Bell,” “Kimberly,” “Slack,” Anne,” “Wilson,” “Grigola,” “Yamamoto,” “Donald,” “Thomas-Greenfield,” Thomas,” “Greenfield,” “Linda,” “Roebuck,” “William,” “Cretz,” “Gene,” “Hamidan,” “Draper,” “Dejuana,” “Carlos,” “Sherman,” “Wendy,” or “American Embassy in Libya.” No responsive documents were located as a result of these searches. Id. at ¶ 6. Retired Records Inventory Management System 4. The Retired Record Inventory Management System (“RIMS”) is a searchable database of Department records that have been retired to the Records Service Center. IPS analysts can search both the full-text of the retired file manifests, as well as database fields in the RIMS database. The retired file manifests serve as an index of the contents of retired files and are used to direct a researcher to particular file folders or documents in retired file boxes. On occasion, manifests do not contain sufficient detail to indicate the exact contents maintained under a given subject. Once a potentially responsive box is located, the entire contents of the box must be searched manually. Id. at ¶ 7. 5. The IPS analyst tasked conducted a search of RIMS for any retired files of the U.S. Ambassador to Libya Gene Cretz. The analyst searched RIMS using the following terms or Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 2 of 8 3 combination of terms: “Cretz,” “Cretz and Libya,” “Cretz and Davidson,” “Davidson and Libya,” or “Export Strategic Alliance and Libya.” These searches located no retired files for Ambassador Cretz relating to Libya or Lawrence Davidson. Id. at ¶ 8. Central Foreign Policy Records 6. The Central Foreign Policy Records (or “Central File”) is the Department’s centralized records system and contains over 30 million records of a substantive nature that establish, discuss, or define foreign policy, set precedents, or require action or use by more than one office. Searches of the Central File are conducted through an automated interface, known as the State Archiving System (“SAS”), which searches the full text of millions of cables and other substantive correspondence documents in the Central File. An IPS analyst with knowledge of both the request and the records system conducted supplemental full-text search of the Central File using the combined search terms: “Cretz,” “Cretz and Libya,” “Cretz and Davidson,” “Davidson and Libya,” or “Export Strategic Alliance and Libya” for the date range January 2008 to October 2016. These searches located no responsive documents. Id. at ¶ 9. II. Records Regarding an Investigation Conducted by FBI Special Agent R. Godfrey 7. As explained in the Hackett Declaration at ¶¶ 45-47, the Department conducted a search of the records of the Bureau of Diplomatic Security (“DS”). DS is the law enforcement arm of the Department and is responsible for providing a safe and secure environment for the conduct of U.S. foreign policy. DS has a broad scope of global responsibilities, with protection of people, information, and property as its top priority. DS designs and maintains security programs for every diplomatic mission in the world, investigates passport and visa fraud, Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 3 of 8 4 conducts personnel security investigations, and protects the Secretary of State and high-ranking foreign dignitaries and officials visiting the United States. Id. at ¶ 9 . 8. DS conducted a search of the Investigative Management System (“IMS”) for all records relating to Lawrence Davidson. The IMS is a database used for managing DS investigation cases and contains information related to domestic and international criminal law enforcement, including all coordinated investigations between DS and external law enforcement agencies. All case-related information is stored in this database. If the Department had any information regarding an investigation conducted by the FBI of or on behalf of Lawrence Davidson, that information would be stored in the IMS. DS searched the IMS using the search terms: “Lawrence Davidson,” “Lawrence Davidson, III” “Lawrence U. Davidson,” “Lawrence U. Davidson, III,” or “Export Strategic Alliance” and located no responsive documents. Id. at ¶ 11. III. Passport Records 9. Passport Services in the Bureau of Consular Affairs (“CA/PPT”) is charged with issuing passports to U.S. citizens. CA/PPT conducted a search of the Passport Information Electronic Records System (“PIERS”),1 the Passport Lookout Tracking System (“PLOTS”),2 the American Citizen Records Query (“ACRQ”),3 and the Travel Document Issuance System (“TDIS”)4 for any passport records regarding Plaintiff, using his name and place and date of birth 1 PIERS is a database that provides passport data from 1978 to the present and passport images from 1994 to the present. 2 PLOTS is an Intranet-based system used to manage all automated passport lookout cases originating in the Department, at passport agencies/centers, or at posts, and allows authorized users to retrieve digital records of passport lookouts. 3 ACQR is an Intranet-based system that provides passport data from 1978 to present and passport images from 1994 to present. 4 TDIS is an Intranet-based system that contains information on recently issued passports. Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 4 of 8 5 for the time period January 2009 to the present. The Department maintains no passport-type records beyond those contained in these databases. No responsive records were located as a result of these searches. Id. at ¶ 12. IV. Office of Inspector General 10. By letter dated October 15, 2013, Plaintiff submitted a FOIA request to the Department, with a carbon copy to the Office of Inspector General – Investigation Division, seeking certain information regarding himself and his company Export Strategic Alliance (see Hackett Decl. ¶ 4 Exhibit 1). The Office of Inspector General (“OIG”) is a decentralized office within the Department that maintains its own FOIA program. The OIG conducted a search for responsive records, and the results of these searches are detailed below. Id. at ¶ 13. 11. The OIG is responsible for the periodic inspection of the Department’s approximately 260 embassies, diplomatic posts, and international broadcasting installations throughout the world to determine whether policy goals are being achieved and whether the interests of the United States are being represented and advanced effectively. Additionally, the OIG performs specialized security inspections and audits in support of the Department's mission to provide effective protection to our personnel, facilities, and sensitive information. OIG also audits Department operations and activities to ensure that they are as effective, efficient, and economical as possible. Finally, OIG investigates instances of fraud, waste, and mismanagement that may constitute either criminal wrongdoing or violation of Department regulations. Upon review of Plaintiff’s FOIA request, OIG determined that the OIG components reasonably likely maintain responsive records were the Office of Investigations, the Office of Inspections, and the Office of Audits. Id. at ¶ 14. Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 5 of 8 6 12. The Office of Investigations (“OIG/INV”) conducts investigations of criminal, civil, and administrative misconduct related to organizational programs and operations. Investigations examine specific allegations, reports, or other information indicating possible violations of law or regulation. OIG/INV also maintains the OIG Hotline, a confidential channel for complaints about violations of law or regulation, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety. An OIG employee conducted a search of the Investigative Management System (“IMS”)5 using the search terms “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” The search located no responsive records. Id. at ¶ 15. 13. The Office of Inspections (“OIG/ISP”) provides the Department of State with systematic and independent assessments of mission leadership, policy implementation, resource management, and management controls. OIG/ISP assesses the effectiveness of programs, identifies potential efficiencies and cost-saving measures, encourages self-evaluation and correction, and identifies problems and recommends solutions. The office’s work encompasses both overseas and domestic operations. OIG/ISP also conducts thematic reviews of programs and operations such as foreign assistance oversight, U.S. embassy security, consular affairs management, and efforts to counter terrorism. All OIG/ISP files are maintained electronically. An OIG employee conducted a search of OIG/ISP’s electronic files, which consist of email records, documents located on the office’s SharePoint site, and documents located on the office’s electronic shared drive, including digitized copies of paper records, using the search terms “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” No responsive records were located as a result of these searches. Id. at ¶ 16. 5 The IMS is the official electronic case file system for OIG’s Office of Investigations. It is the electronic repository (case file) for all records, documents, and reports associated with an official OIG investigation. Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 6 of 8 7 14. The Office of Audits (“OIG/AUD”) has a leading role in helping the Department improve management, strengthen integrity and accountability, and ensure the most efficient, effective, and economical use of resources. OIG/AUD’s mandate includes security, consular affairs, contracts and grants oversight, international broadcasting, administrative and financial management, and information technology, as well as new initiatives and priorities. An OIG employee conducted a search of the Compliance Analysis Tracking System (“CATS”), which contains the full text of audit report recommendations and titles of audit reports, using the search terms “Libya,” “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” No date range was applied to this search. No responsive documents were located as a result of this search. Id. at ¶ 17. 15. All potentially responsive documents retrieved by the Department in response to FOIA and Privacy Act requests are ingested into IPS’s document review system (called FREEDOMS2 or “F2”), where they are reviewed, appropriate FOIA and/or Privacy Act exemptions are applied, and a final release determination is made. The Department conducted a thorough review of all of the documents maintained in F2 that were retrieved in response to Plaintiff’s request and confirmed that a total of 159 documents were located. 6 The Department released 34 documents in full, released 103 documents in part, and denied 22 documents in full. The Department inadvertently omitted from the Hackett Declaration Vaughn index 30 documents released in part and 10 documents denied in full. Id. at ¶ 18. 16. While preparing the Vaughn index of these documents, the Department determined that one document (C05836852) previously denied in full could be released in part, and additional information could be released in one other document (C05836848). Id. 6 These numbers include the two documents that were released in part and described in the March 21, 2016, ECF No. 25, Defendant’s Motion for Summary Judgment, Stein Declaration. Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 7 of 8 8 Respectfully submitted, CHANNIING D. PHILLIPS D.C. BAR # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: /s/ BENTON G. PETERSON, BAR # 1029849 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 252-2534 Case 1:14-cv-01358-RC Document 33-1 Filed 11/17/16 Page 8 of 8 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LAWRENCE U. DAVIDSON, § § Plaintiff, § § v. § Civil Action No. 1:14-cv-01358 (RC) DEPARTMENT OF STATE, et al., § § § Defendant. § SUPPLEMENTAL DECLARATION OF ERIC F. STEIN Pursuant to 28 U.S.C. § 1746, I, Eric F. Stein, declare and state as follows: 1. I am the Acting Director of the Office of Information Programs and Services (“IPS”) of the United States Department of State (the “Department”) and have served in this capacity since October 16, 2016. Previously, I was the Acting Co-Director since March 21, 2016. I am the Department official immediately responsible for responding to requests for records under the Freedom of Information Act (the “FOIA”), 5 U.S.C. § 552, the Privacy Act of 1974, 5 U.S.C. § 552a, and other applicable records access provisions. Prior to serving in this capacity, from April 2013, I worked directly for the Department’s Deputy Assistant Secretary (“DAS”) for Global Information Services (“GIS”) and served as a senior advisor and deputy to the DAS on all issues related to GIS’ offices and programs, which includes IPS. As IPS Acting Director, I have original classification authority and am authorized to classify and declassify national security information. I make the following statements based upon my personal knowledge, which in turn is based upon information furnished to me in the course of my official duties. I am familiar with the efforts of Department personnel to process the subject request, and Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 1 of 34 2 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) I am in charge of coordinating the agency’s search and recovery efforts with respect to that request. 2. This Supplemental Declaration responds to the Court’s Memorandum of Opinion (“Memorandum”) and complements the previous Declaration dated November 20, 2015, executed by John F. Hackett, and my Declaration executed on March 21, 2016, with additional descriptions of: 1) searches conducted for the records of U.S. Ambassador to Libya Gene Cretz, 2) communications with staff previously assigned to the U.S. Embassy in Libya, 3) records regarding an investigation conducted by FBI Special Agent R. Godfrey, 4) searches for Plaintiff’s passport records, and 5) searched conducted by the Department’s Office of the Inspector General; and provides an updated Vaughn index detailing the information withheld and the justifications for those withholdings for 40 documents, which were inadvertently omitted in the previous Hackett and Stein Declarations. I. Records of U.S. Ambassador to Libya Gene Cretz 3. Paragraph 20 of the Hackett Declaration describes the Department’s search of the records of personnel who were in the Front Office of the Bureau of Near Eastern Affairs (“NEA/FO”), one of whom was William Roebuck. While in the Hackett Declaration William Roebuck bears the title of “Ambassador,” the Department does not state, and did not intend to imply, that William Roebuck was the Ambassador to Libya during the relevant time period. Indeed, the Hackett Declaration states that Mr. Roebuck “was assigned to the NEA/FO during the relevant time period of this request and is currently serving as U.S. Ambassador to Bahrain.” (Hackett ¶ 20, emphasis added) 4. The Department believes that searches described in the Hackett Declaration were sufficient to have located any records of Ambassador Cretz relating Plaintiff’s FOIA request, if Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 2 of 34 3 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) such records existed. Nevertheless, the Department has proceeded to review the searches that were conducted and conducted additional searches of the files of the U.S. Embassy in Tripoli that were carried over when the Embassy was evacuated, the Central Foreign Policy Records, and the Retired Records Inventory Management System. The results of these searches are detailed below. Files of the U.S. Embassy in Tripoli, Libya 5. On July 26, 2014, the U.S. Embassy in Tripoli, Libya was closed and remains closed as of the date of this declaration. All paper files from the Consular Section and all electronic storage devices were destroyed prior to suspension of operations on July 26, 2014. All remaining files were saved to one thumb drive. These records included certain unclassified files maintained by the Political and Economic section, memoranda, human resources documents, and work requests, and would have included any files of Ambassador Gene Cretz, if any of his files were saved. 6. The thumb drive was transferred to the Libya External Office (“LEO”), which is currently operating from the U.S. Embassy in Tunis, where the contents were downloaded and saved to the LEO’s electronic shared drive. The Embassy Tunis’ Information Management Officer (“IMO”), conducted a search of the contents of LEO shared drive using the terms: “Lawrence,” “Davidson,” “Export Strategic Alliance,” “Mason,” “Nate,” “Wilkens,” “Christopher,” “Abdalla,” “Alice,” “Sizer,” “Lydia,” “Sideras,” “Evyenia,” “Bell,” “Kimberly,” “Slack,” Anne,” “Wilson,” “Grigola,” “Yamamoto,” “Donald,” “Thomas-Greenfield,” Thomas,” “Greenfield,” “Linda,” “Roebuck,” “William,” “Cretz,” “Gene,” “Hamidan,” “Draper,” “Dejuana,” “Carlos,” “Sherman,” “Wendy,” or “American Embassy in Libya.” No responsive documents were located as a result of these searches. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 3 of 34 4 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) Retired Records Inventory Management System 7. The Retired Record Inventory Management System (“RIMS”) is a searchable database of Department records that have been retired to the Records Service Center. IPS analysts can search both the full-text of the retired file manifests, as well as database fields in the RIMS database. The retired file manifests serve as an index of the contents of retired files and are used to direct a researcher to particular file folders or documents in retired file boxes. On occasion, manifests do not contain sufficient detail to indicate the exact contents maintained under a given subject. Once a potentially responsive box is located, the entire contents of the box must be searched manually. 8. In an effort to conduct a thorough search, an IPS analyst conducted a search of RIMS for any retired files of the U.S. Ambassador to Libya Gene Cretz. The analyst searched RIMS using the following terms or combination of terms: “Cretz,” “Cretz and Libya,” “Cretz and Davidson,” “Davidson and Libya,” or “Export Strategic Alliance and Libya.” These searches located no retired files for Ambassador Cretz relating to Libya or Lawrence Davidson. Central Foreign Policy Records 9. The Central Foreign Policy Records (or “Central File”) is the Department’s centralized records system and contains over 30 million records of a substantive nature that establish, discuss, or define foreign policy, set precedents, or require action or use by more than one office. Searches of the Central File are conducted through an automated interface, known as the State Archiving System (“SAS”), which searches the full text of millions of cables and other substantive correspondence documents in the Central File. An IPS analyst with knowledge of both the request and the records system conducted supplemental full-text search of the Central File using the combined search terms: “Cretz,” “Cretz and Libya,” “Cretz and Davidson,” Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 4 of 34 5 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) “Davidson and Libya,” or “Export Strategic Alliance and Libya” for the date range January 2008 to October 2016. These searches located no responsive documents. II. Records Regarding an Investigation Conducted by FBI Special Agent R. Godfrey 10. As explained in the Hackett Declaration at ¶¶ 45-47, the Department conducted a search of the records of the Bureau of Diplomatic Security (“DS”). DS is the law enforcement arm of the Department and is responsible for providing a safe and secure environment for the conduct of U.S. foreign policy. DS has a broad scope of global responsibilities, with protection of people, information, and property as its top priority. DS designs and maintains security programs for every diplomatic mission in the world, investigates passport and visa fraud, conducts personnel security investigations, and protects the Secretary of State and high-ranking foreign dignitaries and officials visiting the United States. 11. DS conducted a search of the Investigative Management System (“IMS”) for all records relating to Lawrence Davidson. The IMS is a database used for managing DS investigation cases and contains information related to domestic and international criminal law enforcement, including all coordinated investigations between DS and external law enforcement agencies. All case-related information is stored in this database. If the Department had any information regarding an investigation conducted by the FBI of or on behalf of Lawrence Davidson, that information would be stored in the IMS. DS searched the IMS using the search terms: “Lawrence Davidson,” “Lawrence Davidson, III” “Lawrence U. Davidson,” “Lawrence U. Davidson, III,” or “Export Strategic Alliance” and located no responsive documents. III. Passport Records 12. Passport Services in the Bureau of Consular Affairs (“CA/PPT”) is charged with issuing passports to U.S. citizens. CA/PPT conducted a search of the Passport Information Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 5 of 34 6 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) Electronic Records System (“PIERS”),1 the Passport Lookout Tracking System (“PLOTS”),2 the American Citizen Records Query (“ACRQ”),3 and the Travel Document Issuance System (“TDIS”)4 for any passport records regarding Plaintiff, using his name and place and date of birth for the time period January 2009 to the present. The Department maintains no passport-type records beyond those contained in these databases. No responsive records were located as a result of these searches. IV. Office of Inspector General 13. By letter dated October 15, 2013, Plaintiff submitted a FOIA request to the Department, with a carbon copy to the Office of Inspector General – Investigation Division, seeking certain information regarding himself and his company Export Strategic Alliance (see Hackett Decl. ¶ 4 Exhibit 1). The Office of Inspector General (“OIG”) is a decentralized office within the Department that maintains its own FOIA program. The OIG conducted a search for responsive records, and the results of these searches are detailed below. 14. The OIG is responsible for the periodic inspection of the Department’s approximately 260 embassies, diplomatic posts, and international broadcasting installations throughout the world to determine whether policy goals are being achieved and whether the interests of the United States are being represented and advanced effectively. Additionally, the OIG performs specialized security inspections and audits in support of the Department's mission 1 PIERS is a database that provides passport data from 1978 to the present and passport images from 1994 to the present. 2 PLOTS is an Intranet-based system used to manage all automated passport lookout cases originating in the Department, at passport agencies/centers, or at posts, and allows authorized users to retrieve digital records of passport lookouts. 3 ACQR is an Intranet-based system that provides passport data from 1978 to present and passport images from 1994 to present. 4 TDIS is an Intranet-based system that contains information on recently issued passports. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 6 of 34 7 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) to provide effective protection to our personnel, facilities, and sensitive information. OIG also audits Department operations and activities to ensure that they are as effective, efficient, and economical as possible. Finally, OIG investigates instances of fraud, waste, and mismanagement that may constitute either criminal wrongdoing or violation of Department regulations. Upon review of Plaintiff’s FOIA request, OIG determined that the OIG components reasonably likely maintain responsive records were the Office of Investigations, the Office of Inspections, and the Office of Audits. 15. The Office of Investigations (“OIG/INV”) conducts investigations of criminal, civil, and administrative misconduct related to organizational programs and operations. Investigations examine specific allegations, reports, or other information indicating possible violations of law or regulation. OIG/INV also maintains the OIG Hotline, a confidential channel for complaints about violations of law or regulation, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety. An OIG employee conduced a search of the Investigative Management System (“IMS”)5 using the search terms “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” The search located no responsive records. 16. The Office of Inspections (“OIG/ISP”) provides the Department of State with systematic and independent assessments of mission leadership, policy implementation, resource management, and management controls. OIG/ISP assesses the effectiveness of programs, identifies potential efficiencies and cost-saving measures, encourages self-evaluation and correction, and identifies problems and recommends solutions. The office’s work encompasses 5 The IMS is the official electronic case file system for OIG’s Office of Investigations. It is the electronic repository (case file) for all records, documents, and reports associated with an official OIG investigation. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 7 of 34 8 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) both overseas and domestic operations. OIG/ISP also conducts thematic reviews of programs and operations such as foreign assistance oversight, U.S. embassy security, consular affairs management, and efforts to counter terrorism. All OIG/ISP files are maintained electronically. An OIG employee conducted a search of OIG/ISP’s electronic files, which consist of email records, documents located on the office’s SharePoint site, and documents located on the office’s electronic shared drive, including digitized copies of paper records, using the search terms “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” No responsive records were located as a result of these searches. 17. The Office of Audits (“OIG/AUD”) has a leading role in helping the Department improve management, strengthen integrity and accountability, and ensure the most efficient, effective, and economical use of resources. OIG/AUD’s mandate includes security, consular affairs, contracts and grants oversight, international broadcasting, administrative and financial management, and information technology, as well as new initiatives and priorities. An OIG employee conducted a search of the Compliance Analysis Tracking System (“CATS”), which contains the full text of audit report recommendations and titles of audit reports, using the search terms “Libya,” “Lawrence Davidson,” “Lawrence U. Davidson,” or “Export Strategic Alliance.” No date range was applied to this search. No responsive documents were located as a result of this search. V. VAUGHN INDEX 18. All potentially responsive documents retrieved by the Department in response to FOIA and Privacy Act requests are ingested into IPS’s document review system (called FREEDOMS2 or “F2”), where they are reviewed, appropriate FOIA and/or Privacy Act exemptions are applied, and a final release determination is made. The Department conducted a Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 8 of 34 9 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) thorough review of all of the documents maintained in F2 that were retrieved in response to Plaintiff’s request and confirmed that a total of 159 documents were located. 6 The Department released 34 documents in full, released 103 documents in part, and denied 22 documents in full. The Department inadvertently omitted from the Hackett Declaration Vaughn index 30 documents released in part and 10 documents denied in full. These 40 documents are described below (see infra ¶¶ 32-53). While preparing the Vaughn index of these documents, the Department determined that one document (C05836852) previously denied in full could be released in part, and additional information could be released in one other document (C05836848). VI. EXEMPTIONS CLAIMED FOIA Exemption 5 – Privileged Information 19. 5 U.S.C. § 552(b)(5) states that the FOIA does not apply to: inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.... 20. Exemption 5 protects from disclosure information that is normally privileged in the civil discovery context, including information that is protected by the deliberative process, attorney-client, and attorney work-product privileges. 21. The deliberative process privilege protects the confidentiality of candid views and advice of U.S. Government officials in their internal discussions related to policy formulation and administrative direction. Disclosure of candid views and advice offered during internal discussions pertaining to an agency decision and/or policy formulation would chill the free flow of internal recommendations, candid assessments, and other necessary exchanges in which 6 These numbers include the two documents that were released in part and described in the March 21, 2016, Stein Declaration. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 9 of 34 10 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) Department officials are involved. It would severely hamper the ability of responsible officials to formulate and carry out executive branch programs if preliminary comments, opinions, and ideas were shared with the public, which may cause public confusion as to what constitutes the final decision. Disclosure of pre-decisional and deliberative information, which in some instances contains selected factual material intertwined with opinion, would inhibit candid internal discussions and the expression of recommendations and judgments regarding current matters of concern and preferred courses of action by Department personnel. For these reasons, portions of the withheld documents are exempt from release under Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process privilege. 22. The Department has also withheld information pursuant to the attorney-client privilege. This information reflects consultations undertaken in confidence between U.S. Government officials and Department attorneys for the purpose of obtaining legal advice in anticipation of civil litigation. The withheld information reflects the two-way confidential communications that occur between attorneys and their clients when seeking and providing legal advice. 23. The Department also withheld information under Exemption 5 pursuant to the attorney work-product privilege. The attorney work-product privilege protects information prepared by an attorney or at his or her direction in anticipation of litigation. As discussed in more detail in the Vaughn index, each of the withholdings made pursuant to the attorney work- product privilege contains information prepared by or at the request of an attorney in connection with contemplated or ongoing litigation. 24. The withheld information is, accordingly, exempt from release under Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work- Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 10 of 34 11 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) product privileges. I have also determined that there is no additional, meaningful non-exempt information that is being withheld under Exemption 5 that can be segregated and released. FOIA Exemption (b)(6) – Personal Privacy 25. 5 U.S.C. § 552(b)(6) states that the FOIA does not apply to: …personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.... 26. The courts have interpreted the language of Exemption 6 broadly to encompass all information that applies to an individual without regard to whether it was located in a particular type of file. In certain documents the Department has withheld employees’ names, work e-mail addresses, and telephone numbers under Exemption 6, 5 U.S.C. § 552(b)(6). 27. Inasmuch as the information withheld is personal to an individual, there is clearly a privacy interest involved. I am required, therefore, to determine whether there exists any public interest in disclosure and to weight any such interest against the extent of the invasion of privacy. 28. In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Supreme Court laid down two rules for determining public interest in disclosure of information involving a privacy interest: (1) whether disclosure would serve the “core purpose” for which Congress enacted the FOIA, i.e., to show “what the government is up to,” and (2) that public interest means the interest of the public in general, not particular interests of the person or group seeking the information. Accordingly, the identity of the requester as well as the purpose for which the information is sought is irrelevant in making the disclosure determination. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 11 of 34 12 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) 29. As for all of the information withheld pursuant to Exemption 6, I have concluded that (1) disclosure of the information withheld would result in a clearly unwarranted invasion of personal privacy; and (2) disclosure of the information would not serve the “core purpose” of the FOIA, i.e., it would not disclose information about “what the government is up to.” Accordingly, I have determined that the privacy interests identified in the withheld information clearly outweigh any public interest in disclosure of such personal information. Privacy Act Exemption (d)(5) 30. 5 U.S.C. 552a (d)(5) states in pertinent part: Nothing in this section shall allow an individual to access any information compiled in reasonable anticipation of a civil action or proceeding. 31. The Department of State has published in the Code of Federal Regulations at 22 C.F.R. 171.32(d) a rule related to this exception in connection with the relevant Department systems of records. As described in the attached Vaughn Index, the Department applied Privacy Act exemption (d)(5) to withhold information related to the Plaintiff’s ongoing civil litigation. VII. SUPPLEMENTAL VAUGHN INDEX 32. Documents C05813992 (three pages) and C05833607 (three pages) are intra- agency e-mail exchanges among DOS officials and DOS attorneys dated January 29-February 6, 2014, discussing the drafting of a letter in response to Mr. Davidson’s request for commercial advocacy and his references to the submission of multiple FOIA requests, including proposed revisions to the text of the letter. These documents were originally and are currently UNCLASSIFIED. The Department released the documents in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work product privileges, and (b)(6). The Department also withheld Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 12 of 34 13 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to a final decision on how to respond to Mr. Davidson, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department withheld certain information pursuant to attorney-client privilege to protect communications between attorneys and their clients for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department withheld the names of employees and an employee’s phone number and email address under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 13 of 34 14 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) 33. Document C05814247 consists of a two-page intra-agency e-mail exchange between a DOS attorney and DOS officials, dated August 28-September 2, 2014, discussing Mr. Davidson’s filing of a FOIA lawsuit and suggesting next steps to be taken by the Department. This document was originally and is currently UNCLASSIFIED. The Department released the document in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to a final decision on the next steps to be taken, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department withheld certain information pursuant to attorney-client privilege to protect communications between attorneys and their clients for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department withheld the names of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal information from Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 14 of 34 15 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 34. Documents C05814249 (three pages), C05814407 (three pages), and C05814471 (three pages) are inter-agency email exchanges among U.S. Government officials, including attorneys, dated August 28-September 2, 2014, informing the officials of a complaint filed against them by Mr. Davidson in federal court and advising the officials of the next steps that should be taken. These documents were originally and are currently UNCLASSIFIED. The Department released the documents in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to a final decision on the next steps to be taken, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. Additionally, the documents have been withheld pursuant to attorney-client privilege to protect communications between attorneys and Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 15 of 34 16 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) their clients for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names, email addresses, and phone numbers of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 35. Documents C05814282 (four pages), C05814472 (four pages), C05814489 (five pages), C05814434 (three), and C05837920 (eight pages) are intra-agency email exchanges between DOS officials and DOS attorneys, dated September 9, 2014-May 27, 2015, discussing the processing of Plaintiff’s Privacy Act (“PA”) request that was under litigation. These documents were originally and are currently UNCLASSIFIED. The Department released the documents in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 16 of 34 17 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) information, which is pre-decisional and deliberative with respect to a final decision on how to process Plaintiff’s request and contains the officials’ opinions and preliminary assessments, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department also withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names, email addresses, and phone numbers of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 36. Document C05814428 is a three-page memorandum from the Department’s Office of the Legal Adviser to the Bureau of Near Eastern Affairs, dated September 1, 2012, regarding a potential complaint to be filed by Mr. Davidson in connection with his commercial advocacy request. The document was originally and is currently UNCLASSIFIED. The Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 17 of 34 18 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) Department denied the document in full pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the attorney-client and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). This document has been withheld pursuant to attorney-client privilege to protect communications between attorneys and their clients for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names and phone number of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 37. Documents C05814470 (one page) and C05814475 (two pages) are internal Department letters, dated September 5 and September 8, 2014, respectively, regarding Department of Justice representation for a DOS employee. The documents were originally and are currently UNCLASSIFIED. The Department denied the documents in full pursuant to FOIA Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 18 of 34 19 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). The documents were withheld pursuant to attorney-client privilege to protect communications between an attorney and his client for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names of employees and one employee’s phone number under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 38. Documents C05814496 (two pages) and C05814430 (one-page) are undated draft letters, regarding Department of Justice representation for a DOS employee. The documents were originally and are currently UNCLASSIFIED. The Department denied the documents in full pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process and attorney work-product privileges, and (b)(6). The Department also Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 19 of 34 20 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of these drafts, which are pre-decisional and deliberative with regard to the final contents of the letter, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the name and phone number of an employee under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 39. Document C05814440 is a two-page Search Tasker (form DS-1748), dated August 6, 2014, for the Bureau of Diplomatic Security prepared for Plaintiff’s FOIA request F- 2014-04063. The document was originally and is currently UNCLASSIFIED. The Department Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 20 of 34 21 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) released the document in part, withholding the names and a phone number of Department employees under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 40. Document C05814446 is a one-page email dated August 6, 2014, regarding the processing of Plaintiff’s FOIA request F-2014-04063. The document was originally and is currently UNCLASSIFIED. The Department released the document in part, withholding the names of three employees, and one employee’s title, email address, and phone numbers under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 41. Documents C05814469 (three pages), C05814473 (four pages), C05814474 (four pages), and C05814494 (one page) are intra-agency email exchanges between DOS Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 21 of 34 22 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) officials and DOS attorneys, discussing Department of Justice representation for DOS employees in connection with the Davidson complaint. All of the text of documents C05814469 and C05814473 is contained in C05814474. The documents were originally and are currently UNCLASSIFIED. The Department released the documents in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the attorney-client and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). The documents were withheld pursuant to attorney-client privilege to protect communications between an attorney and her client for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names, phone numbers, and email addresses of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 22 of 34 23 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) 42. Documents C05814492 (three pages), C05814486 (two pages), C05814487 (two pages), and C05814488 (two pages) are intra-agency email exchanges between DOS attorneys dated August 26-August 28, 2014, discussing a lawsuit filed against the Department by Mr. Davidson and proposed next steps to be taken. These documents were originally and are currently UNCLASSIFIED. The Department released the documents in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre- decisional and deliberative with respect to a final decision on the next steps to be taken and contain the officials’ opinions and preliminary assessments, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names, email addresses, and phone numbers of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 23 of 34 24 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 43. Document C05836834 is a one-page intra-agency email dated April 21, 2014, regarding a letter from Under Secretary Sherman to Mr. Davidson. The document was originally and is currently UNCLASSIFIED. The Department released the document in part, withholding the names of two employees under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 44. Document C05836836 is a one-page coversheet regarding action on a letter from Lawrence Davidson to Under Secretary Sherman. This document was originally and is currently UNCLASSIFIED. The Department released the document in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5) and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). The Department withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 24 of 34 25 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the name of an employee under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 45. Document C05836848 is a one-page coversheet regarding action on a letter from Lawrence Davidson to Under Secretary Sherman. This document was originally and is currently UNCLASSIFIED. The Department released the document in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5) and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). The Department withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the phone number of an employee under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 25 of 34 26 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 46. Documents C05836838 (three pages) and C05836851 (three pages) are draft memoranda, dated November 13, 2013, from the Bureau of Near Eastern Affairs to Under Secretary Sherman regarding a proposed response letter to Lawrence Davidson. Document C05836851 contains red-line edits and editing comments and is an earlier draft of document C05836838. These documents were originally and are currently UNCLASSIFIED. The Department withheld these documents in full under FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process and attorney work-product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to the final text of the memorandum, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names and phone Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 26 of 34 27 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) numbers of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 47. Document C05836844 is a one-page draft letter dated November 13, 2013, from Under Secretary Sherman to Lawrence Davidson. The document was originally and is currently UNCLASSIFIED. The Department withheld the document in full under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the deliberative process and attorney work-product privileges. The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to the final text of the letters, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 27 of 34 28 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) and legal strategies. There is no additional non-exempt information that may be reasonably segregated and released. 48. Document C05836845 is a one page coversheet dated November 1, 2013. The document was originally and is currently UNCLASSIFIED. The Department released the document in part, withholding the names and a phone number of a Department employee under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 49. Documents C05836850 (three pages), C05836852 (two pages), and C05836849 (two pages) are intra-agency email exchanges between DOS officials and DOS attorneys, dated November 8, 2013 and January 7, 2014, discussing the drafting and clearing of a letter to Mr. Davidson. These documents were originally and are currently UNCLASSIFIED. The Department released the documents in part with excisions made pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work-product privileges, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative and contains the authors’ opinions and preliminary assessments on how to respond to Mr. Davidson, could Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 28 of 34 29 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. Additionally, the documents have been withheld pursuant to attorney-client privilege to protect communications between an attorney and his client for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in these documents, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department withheld the names of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 50. Document C05837910 is a one page letter from the Department of Justice to the Department of State, dated September 16, 2014, regarding the filing of a FOIA/PA complaint against the Department. The document was originally and is currently UNCLASSIFIED. The Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 29 of 34 30 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) Department withheld the document in full, under FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the attorney work-product privilege, and (b)(6). The Department also withheld certain information prepared in reasonable anticipation of civil litigation under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). The Department withheld this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department withheld the names of DOJ and DOS employees and an employee’s phone number under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 51. Document C05836854 is a two-page intra-agency email between DOS attorneys and DOS official dated June 5, 2015, discussing the processing of Plaintiff’s Privacy Act request that was under litigation. This document was originally and is currently UNCLASSIFIED. The Department withheld the document in full under FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process and attorney work-product privileges, and (b)(6). The Department also withheld this information, which was prepared in reasonable anticipation of civil litigation, under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to a final decision on how to Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 30 of 34 31 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) process Plaintiff’s request and contains the officials’ opinions and preliminary assessments, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department withheld this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. 52. Document C05837911 is a three-page intra-agency email exchange between DOS attorneys and DOS officials, regarding the processing of Plaintiff’s Privacy Act request that was under litigation. This document was originally and is currently UNCLASSIFIED. The Department released the documents in part with excisions made under FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), pursuant to the deliberative process, attorney-client, and attorney work- product privileges, and (b)(6). The Department also withheld this information, which was Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 31 of 34 32 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) prepared in reasonable anticipation of civil litigation, under Privacy Act Exemption (d)(5), 5 U.S.C. § 552a(d)(5). Release of this information, which is pre-decisional and deliberative with respect to a final decision on how to process Plaintiff’s request and contains the officials’ opinions and preliminary assessments, could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action. Disclosure of this information would also impede the ability of responsible Department officials to formulate and carry out executive branch programs by inhibiting candid internal discussion and the expression of recommendations and judgments regarding a preferred course of action. The Department withheld certain information pursuant to attorney-client privilege to protect communications between an attorney and his clients for the purpose of providing legal advice. These communications were intended to be kept confidential and that confidentiality has been maintained. The Department also withheld certain information in this document, which was prepared by or at the direction of an attorney in reasonable anticipation of civil litigation, pursuant to the attorney work-product privilege, to protect the attorney’s mental impressions, thought processes, and legal strategies. The Department also withheld the names and phone numbers of employees under Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal contact information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 32 of 34 33 Davidson v. Dep’t of State, et al. Supplemental Stein Declaration No. 1:14-cv-01358 (ABJ) 53. Document C05836853 is a one-page intra-agency email exchange between DOS officials and a DOS attorney, dated June 4-5, 2015, discussing the processing of Plaintiff’s FOIA request. The document was originally and is currently UNCLASSIFIED. The Department released the document in part, withholding the names of Department employees under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Individuals, including government employees, have a privacy interest in protecting their personal information from public disclosure, because its release could result in harassment or unsolicited attention and would not shed light on governmental operations. As a result, release of this information would constitute an unwarranted invasion of personal privacy, and the information is exempt from disclosure under FOIA Exemption 6. This information is not about the Plaintiff; therefore, he has no access rights to it under the Privacy Act. There is no additional non-exempt information that may be reasonably segregated and released. VIII. CONCLUSION 54. In summary, the Department has conducted adequate searches of all places reasonably likely to maintain records responsive to Plaintiff’s FOIA request, including records of: 1) the U.S. Ambassador to Libya Gene Cretz, 2) communications with staff previously assigned to the U.S. Embassy in Libya, 3) an investigation conducted by FBI Special Agent R. Godfrey, 4) passport records, and 5) the Department’s Office of the Inspector General. The Department has also provided a supplemental Vaughn index of 40 documents inadvertently omitted from the November 20, 2015, Hackett Declaration. Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 33 of 34 Case 1:14-cv-01358-RC Document 33-2 Filed 11/17/16 Page 34 of 34