                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
RICHARD BENJAMIN,                   )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 15-0160 (ABJ)
                                    )
U.S. DEPARTMENT OF STATE,           )
                                    )
                  Defendant.        )
____________________________________)

                                 MEMORANDUM OPINION

       Plaintiff Dr. Richard Benjamin has sued the U.S. Department of State (the “State

Department”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking

documents relating to the U.S. government’s role in a June 1957 coup d’état in Haiti. Am. Compl.

[Dkt. # 19] ¶ 1. Plaintiff’s lawsuit originated as a disagreement over the State Department’s

withholding of four specific documents. Id. ¶ 3. Since the initiation of this action, the State

Department has released two of the documents in full, and it has released the remaining two

documents with minimal redactions.

       The State Department has moved for summary judgment on the basis that the redactions

are justified under FOIA Exemption 1, 5 U.S.C. § 552(b)(1), because the redacted information is

classified. Def.’s Renewed Mot. for Summ. J. [Dkt. # 22] (“Def.’s Mot.”); Mem. in Supp. of Def.’s

Mot. [Dkt. # 22] (“Def.’s Mem.”) at 4–5. In support of its argument, the State Department

submitted two in camera and ex parte declarations. See Def.’s Notice of Submission of In Camera

Ex Parte Decl. [Dkt. # 15] (“Def.’s Decl.”); Def.’s Notice of Submission of In Camera Ex Parte

Decl. [Dkt. # 23] (“Def.’s 2d Decl.”). Plaintiff opposes the motion, challenging the ex parte nature

of the proceedings and arguing that there exists a genuine issue of material fact on the question of
whether the documents should remain partially classified. Pl.’s Resp. in Opp. to Def.’s Mot. [Dkt.

# 25] (“Pl.’s Opp.”). Defendant replied in support of the motion. Reply in Supp. of Def.’s Mot.

[Dkt. # 26].

       The Court will grant the State Department’s motion, because it finds that the agency’s

invocation of Exemption 1 was justified.

                                        BACKGROUND

       Plaintiff brings this FOIA action seeking agency records regarding the U.S. government’s

role in the June 1957 coup that “ousted Haiti’s President, Daniel Fignolé, and installed notorious

dictator François ‘Papa Doc’ Duvalier.” Am. Compl. ¶ 1. As part of plaintiff’s ongoing research

into the topic, plaintiff filed a FOIA request with the National Archives and Records

Administration (“NARA”) on December 23, 2010. Id. ¶¶ 8, 13. His request specifically sought

“several cables discussing Fignolé that the U.S. Embassy in Port-au-Prince exchanged with the

State Department in Washington, D.C. during the summer of 1957.” Id. ¶ 2.

       On July 23, 2012, NARA informed plaintiff that the State Department had “partially denied

his request by redacting portions of four responsive records pursuant to Exemption 1.” Id. ¶ 15.1

Plaintiff’s complaint alleged that the State Department failed to release portions of four responsive

records – a June 11, 1957 record; a June 17, 1957 record; a July 9, 1957 record; and a September

13, 1957 record. Id. ¶¶ 3, 15. Plaintiff appealed the partial denial on September 17, 2012, but the

State Department’s decision was upheld by an agency review board on September 16, 2014. Id.

¶¶ 16–19.




1       Exemption 1, as will be discussed below, allows documents to be kept from the public eye
“in the interest of national defense or foreign policy.” 5 U.S.C. § 552(b)(1).
                                                  2
        Plaintiff filed this lawsuit on February 2, 2015, requesting that the Court declare that the

June 17, 1957 and July 9, 1957 records were not exempt under Exemption 1. Compl. ¶ 3; id. at 6

(Req. for Relief) ¶ A. After the lawsuit was filed, the State Department released the July 9

document in full and also released additional information in the June 17 document. Def.’s

Statement of Material Facts Not in Genuine Dispute [Dkt. # 22] (“Def.’s SOF”) ¶ 8. Only the

equivalent of half of one line remained redacted in the June 17 document. Id.; Decl. of John F.

Hackett (July 24, 2015), Ex. 2 to Def.’s Mot. [Dkt. # 22-2] (“Hackett Decl.”) ¶ 12.

        Plaintiff filed an amended complaint on September 18, 2015, requesting that the Court find

all four records not exempt from disclosure under Exemption 1. Am. Compl. ¶ 3; id. at 6 (Req.

for Relief). On December 3, 2015, defendant released the June 11 document in part, and also

released the September 13 document in full. Def.’s SOF ¶ 10; Ex. A to Def.’s Mot. [Dkt. # 22-3]

at 1.

        Because the State Department has released the July 9 and September 13 documents in full,

the only issues that remain in this litigation pertain to whether the limited redactions in the June

11, 1957 and June 17, 1957 documents were proper. In support of its position that the limited

redactions in those two documents were proper, the State Department filed an in camera and ex

parte declaration that itself was classified. See Def.’s Decl. Defendant filed another in camera

and ex parte declaration with its renewed motion for summary judgment. See Def.’s 2d Decl. The




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Court permitted the State Department to submit in camera and ex parte materials, see Min. Order

(July 20, 2015), and the Court has reviewed the sealed material. 2

                                   STANDARD OF REVIEW

       In a FOIA case, the district court reviews the agency’s action de novo and “the burden is

on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “FOIA cases are typically and appropriately decided

on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). On a

motion for summary judgment, the Court “must view the evidence in the light most favorable to

the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility

determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir.

2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Where a plaintiff

has not provided evidence that an agency acted in bad faith, “a court may award summary




2       Plaintiff objects to the Court’s determination of a summary judgment motion based upon
declarations that he cannot review. Pl.’s Opp. at 12. He contends that proceeding in this manner
limits his ability to argue that defendant’s rationale for the claimed exemption is invalid, and that
it also precludes him from arguing that the State Department failed to comply with its own
declassification policies or the declassification requirements in Executive Order 13,526. Id. But
courts have inherent authority to review documents in camera. Arieff v. U.S. Dep’t of Navy, 712
F.2d 1462, 1469 (D.C. Cir. 1983) (“[T]he receipt of in camera affidavits is . . . ‘part of a trial
judge’s procedural arsenal.’”), quoting United States v. Southard, 700 F.2d 1, 11 (1st Cir. 1983).
As the D.C. Circuit has recognized, “where the district court could reasonably find that public
itemization and detailed justification would compromise legitimate secrecy interests . . . it [is]
appropriate to receive affidavits in camera rather than in public.” Hayden v. NSA, 608 F.2d 1381,
1385 (D.C. Cir. 1979). The Court of Appeals “recognized that a fuller public record could enhance
the adversary process; but it could also reveal sensitive information.” Id. at 1385; see also Mobley
v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015) (affirming the use of ex parte, in camera declarations
where agency asserted a national security interest in the records). Because the receipt and review
of in camera and ex parte declarations is permissible in the FOIA context, especially in Exemption
1 cases, the Court will overrule plaintiff’s objection.
                                                   4
judgment solely on the basis of information provided by the agency in declarations.” Moore, 601

F. Supp. 2d at 12.

                                           ANALYSIS

       FOIA requires the release of government records upon request. Its purpose is “to ensure

an informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that legitimate

governmental and private interests could be harmed by release of certain types of information and

provided nine specific exemptions under which disclosure could be refused.” FBI v.

Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of

Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress

between the public’s right to know and the government’s legitimate interest in keeping certain

information confidential.”), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).

       The general rule in FOIA cases is that “[i]f an agency’s affidavit describes the justifications

for withholding the information with specific detail, demonstrates that the information withheld

logically falls within the claimed exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis

of the affidavit alone.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). “[W]hen

an agency seeks to withhold information, it must provide a relatively detailed justification” for the

withholding, Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007), quoting King v. U.S. Dep’t of

Justice, 830 F.2d 210, 219 (D.C. Cir. 1987), through a Vaughn Index, an affidavit, or by other

means. Gallant v. NLRB, 26 F.3d 168, 172–73 (D.C. Cir. 1994). Furthermore, where a case turns

on classified material, “[t]he court is to ‘accord substantial weight to an agency’s affidavit

                                                 5
concerning the details of the classified status of the disputed record.’” Jarvik v. CIA, 741 F. Supp.

2d 106, 118 (D.D.C. 2010), quoting Military Audit Project, 656 F.2d at 738.

       FOIA Exemption 1 provides that matters that are “specifically authorized under criteria

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

policy and are in fact properly classified pursuant to such Executive order” are exempt from

production under FOIA. 5 U.S.C. § 552(b)(1). “[I]n the FOIA context, [the D.C. Circuit has]

consistently deferred to executive affidavits predicting harm to the national security, and have

found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at

927. “The [agency’s] arguments need only be both ‘plausible’ and ‘logical’ to justify the

invocation of a FOIA exemption in the national security context.” ACLU, 628 F.3d at 624, quoting

Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007); see also Morley, 508 F.3d at 1124 (“[T]he

text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible

assertion that information is properly classified.”).

       After examining the State Department’s ex parte, in camera declarations, the Court is

satisfied that the State Department has put forth a “plausible” and “logical” argument in support

of its invocation of Exemption 1, and therefore, the Court will grant defendant’s motion for

summary judgment. 3




3        Plaintiff argues that the State Department’s declarations are not entitled to deference
because plaintiff submits that, by changing its position on various documents over the course of
this litigation, defendant is not acting in good faith. Pl.’s Opp. at 3. However, the D.C. Circuit
has “emphatically reject[ed]” this line of reasoning. Military Audit Project, 656 F.2d at 754. The
Court has explained that such an argument, if accepted, would “work mischief in the future by
creating a disincentive for an agency to reappraise its position, and when appropriate, release
documents previously withheld,” and that the “argument is based on the perverse theory that a
forthcoming agency is less to be trusted in its allegations than an unyielding agency.” Id.
                                                   6
                                      CONCLUSION

       Because the Court finds that the government’s reliance on Exemption 1 was proper, the

Court will grant defendant’s motion for summary judgment.

       A separate order will issue.




                                          AMY BERMAN JACKSON
                                          United States District Judge

DATE: April 12, 2016




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