UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION Plaintiffs,

v. DEPARTMENT OF STATE, Defendant

. Civil Action No. 11-01072 (CKK)

MEMORANDUM OPINION (July 23, 2012) Plaintiffs, the American Civil Liberties Union and American Civil Liberties Union Foundation (together, the “ACLU”), bring this Freedom of Information Act (“FOIA”) action against Defendant, the United States Department of State (the “State Department”), seeking the disclosure of twenty-three embassy cables concer ning this nation’s foreign affairs. There are now two motions before the Court: the State De partment’s [17] Motion for Summary Judgment and the ACLU’s [18] Cross-Motion for Summary J udgment. In a nutshell, the State Department claims that it has properly withheld informa tion under FOIA Exemption 1, a tool available to agencies to shield national security and other sensitive information from public disclosure. The ACLU counters that the State De partment cannot rely on Exemption 1 in this case because the embassy cables are purportedly already in the pu blic domain after being published by third-party WikiLeaks and because the State Departme nt has allegedly acknowledged the cables’ authenticity. Upon careful consideration of the pa rties’ submissions, the relevant authorities, and the record as a whole, the Court concludes that the State Department’s w ithholdings are justified.2 Accordingly, the State Department’s [17] Motion for Summary Judgment shall be GRANTED and the ACLU’s [18] Cross-Motion for Summary Judgment shall be DENIED. I. BACKGROUND The ACLU submitted a FOIA request to the State Department on April 12, 2011, requesting the disclosure of twenty-three embassy cables specifically identified by date, subject, originating embassy, and unique message reference number. See Def.’s Stmt. of Material Facts Not in Dispute, ECF No. [17-1] (“Def.’s Stmt.”), ¶¶ 1-2. 1 The ACLU brought this action on June 9, 2011 after the State Department di d not promptly prod uce the records. See Compl. for Injunctive Relief, ECF No. [1]. Once the State Department entered an appearance, the parties agreed to postpone further proceedings while th e agency completed its search and production.
See Joint Status Report, ECF N o. [11]; Def.’s Unopposed Mot. to Extend Production Deadline, ECF No. [12]. The State Depa rtment ultimately located al l twenty-three embassy cables requested by the ACLU. 2 See Def.’s Stmt. ¶¶ 4-5. On Oct ober 21, 2011, it produced eleven of the embassy cables with partial withholdings and withheld the remaining twelve cables in full, citing FOIA Exemptions 1, 6, and 7 as the bases for non-disclosure. See Decl. of Sheryl L. Walter, ECF No. [17-2] (“Walter Decl.”), Ex. 5 (Ltr . from A. Galovich to B. Wizner dated Oct. 21, 2011) at 1. The twenty-three embassy cables c over a range of sensit ive subjects, including investigations of individuals suspected of acts of terrorism, bilateral relations with foreign nations, and military operations. See Def.’s Stmt. ¶ 9. Following the State Department’s production, the parties briefed the pending crossmotions for summary judgment. See Mem. in Supp. of Def.’s Mot. for Summ. J., ECF No. [17]

1 For purposes of economy, the C ourt shall only cite to the St ate Department’s statement of material facts when iden tifying undisputed facts. 2 For this reason, the ACLU does not challenge th e adequacy of the State Department’s search.3 (“Def.’s [17] Mem.”); Mem. in Supp. of Pls.’ Opp’ n to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J., ECF No. [18] (“Pls.’ [18] Mem.”); Def.’s Reply Mem. in Supp. of Mot. for Summ. J. and in Opp’n to Pls.’ Cross-Mot. for Summ. J., ECF No. [20]; Pls.’ Reply Mem. in Supp. of Pls.’ Cross-Mot. for Summ. J., ECF No. [22]. The motions are fully briefed and ripe for adjudication. In an exercise of its discretion, the Court finds that hold ing oral argument would not be of assistance in rendering a decision. See LCvR 7(f). II. LEGAL STANDARD Congress enacted FOIA to “pie rce the veil of admi nistrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose , 425 U.S. 352, 361 (1976) (quotation marks omitted). However, Congress remained sensitive to the need to achieve balance between these objectives and the poten tial that “legitimate governmental and private interests could be harmed by release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n , 975 F.2d 871, 872 (D.C. Cir. 1992) ( en banc ) (quotation marks omitted), cert. denied , 507 U.S. 984 (1993). To this end, FOIA “requires federal agencies to make Government records availa ble to the public, subject to ni ne exemptions for categories of material.” Milner v. Dep’t of Navy , __ U.S. __, 131 S. Ct. 1259, 1261-62 (2011). Despite the availability of such exemptions, “disclosure, not secrecy, is the dominant objective of the act.”
Rose , 425 U.S. at 361. For this reason, the “exempti ons are explicitly made exclusive, and must be narrowly construed.” Milner , 131 S. Ct. at 1262 (quotati on marks and citation omitted). Summary judgment is proper when the pleadi ngs, the discovery materials on file, and any affidavits or declarations “show[] that there is no genuine disput e as to any material fact and the movant is entitled to judgme nt as a matter of law.” F ED
. R. C IV
. P. 56(a). When presented with a motion for summary judgment in this context, th e district court must c onduct a “de novo” review4 of the record, 5 U.S.C. § 552(a)(4 )(B), which “requires the court to ascertain whether the agency has sustained its burden of dem onstrating that the documents re quested . . . are exempt from disclosure,” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency , 334 F.3d 55, 57 (D.C. Cir. 2003) (quotation marks omitted). “C onsistent with the purpose of the Act, the burden is on the agency to justif y withholding requested documents,” Beck v. Dep’t of Justice , 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that “it has fully discharged its disclosure obligati ons” is summary judgment appropriate, Weisberg v. U.S. Dep’t of Justice , 705 F.2d 1344, 1350 (D.C. Cir. 1983). In asce rtaining whether the agency has met its burden, the district court may rely upon agency affidavits or declarations. Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). “If an agency’s affidavit describes the justifications for withholding th e information with specific de tail, demonstrates that the information withheld logically falls within th e 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.” Am. Civil Liberties Union v. U.S. Dep’t of Def. , 628 F.3d 612, 619 (D.C. Cir. 2011). In other words, “[u]ncontradicted, plausible affidavits showing reasonable specificity a nd a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State , 641 F.3d 504, 509 (D.C. Cir. 2011). III. DISCUSSION The parties’ cross-motions speak to th e same overarching question: has the State Department properly withheld information from the twenty-three embassy cables? The Court answers this question in the affirmative. He re, the Court shall begin by explaining why it is satisfied that the State Department has properl y invoked Exemption 1 as a justification for the non-disclosure of national secur ity or other sensitive informa tion contained in the embassy5 cables. 3 See infra Part III.A. Thereafter, the Court sh all explain why it is unpersuaded by the ACLU’s argument that public disclosure is wa rranted because the cables are purportedly already in the public domain and because the State Department has allegedly acknowledged their authenticity. See infra Part III.B. Before concluding, the Co urt shall explain w hy it is satisfied that the State Department has disclosed all reasonably segregable information, see infra Part III.C, and why the Court declines the ACLU’s invitation to review the embassy cables in

camera , see infra Part III.D.
A. The State Department Has Discharged Its Burden of Establishing That It Has Properly Invoked Exemption 1 Exemption 1 applies to materials that are “specifically authorized under criteria established by an Executive or der to be kept secret in the interest of nati onal defense or foreign policy and . . . are in fact prope rly classified pursuant to such Executive Order.” 5 U.S.C. § 552(b)(1). In this case, the State Depart ment relies upon Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“E.O. 13526”), which prescrib es a uniform system for classifying and safeguarding national security info rmation. To show that it has properly withheld information on this basis, the State Department must demonstrate that the informa tion was classified pursuant to proper procedures and that the withheld informa tion falls within the substantive scope of E.O. 13526. See Salisbury v. United States , 690 F.2d 966, 971-72 (D.C. Cir. 1982) (analyzing a predecessor to E.O. 13526). St ated somewhat differently: Information can be properly cl assified under Executive Order 13526 if four requirements are met: (1) an original classification authority classifies the information; (2) the United States Government owns, produces, or cont rols the information; (3) the information falls within one or mo re of eight protected categories

3 Although the State Department also relies on Exemptions 6 and 7 as alternative bases for withholding some information, the Court need not address whether those exemptions have been properly invoked because Exemption 1 c overs all the information withheld.6 listed in section 1.4 of the Executiv e Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably coul d be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. Am. Civil Liberties Union v. Dep’t of Justice , 808 F. Supp. 2d 280, 298 (D.D.C. 2011) (citing E.O. 13526 § 1.1(a)), appeal docketed , No. 11-5320 (D.C. Cir. Nov. 16, 2011). It is uncontested that the St ate Department has satisfied th e first three of these four requirements. The ACLU simply offers no rejo inder to the State Department’s affirmative showing that all the information at issue (1) was cl assified by an original classification authority, (2) is owned, produced, or controlled by the United States, and (3) falls within one or more of the eight relevant categories. See Def.’s [17] Mem. at 5-9. In this Circuit, “[i]t is well understood . . . that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Ge n. Bd. of Global Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d , 98 F. App’x 8 (D.C. Cir. 2004); accord Lewis v. District of Columbia , No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) ( per curiam ). In the absence of a response, the Court treats as conced ed the State Department’s argument that it has satisfied the first three require ments under E.O. 13526. But even absent such a concession, the record is clear that all three have been met. See Walter Decl. ¶¶ 1, 14, 17-21, 35-76. The parties instead focus on the fourth and fi nal requirement, which requires “the original classification authority [to] determine[] that th e unauthorized disclosure of the information reasonably could be expected to result in damage to the nationa l security” and to “identify or describe the damage.” E.O. 13526 § 1.1(a)(4). In this regard, the C ourt is mindful of its responsibility to conduct a “de novo” review of the record. 5 U.S. C. § 552(a)(4)(B). Nonetheless, in recognition that courts are gene rally ill-equipped to s econd-guess the Executive’s7 opinion in the national security context, “the government’s burden [here] is a light one.” Am. Civil Liberties Union , 628 F.3d at 624. In this context, the district court “mus t accord substantial weight to an agency’s affidavit concerning the details of the clas sified status of the disputed record,” keeping in mind “that a ny affidavit or agency statement will always be speculative to some extent, in the sense that it de scribes potential future harm.” Id. at 619 (quotation marks, notations, and citations omitted); see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice , 331 F.3d 918, 927 (D.C. Cir. 2003) (“[W]e have consis tently deferred to executive affidavits predicting harm to national security, and have found it unwise to undertake searching judicial review.”), cert. denied , 540 U.S. 1104 (2004). In the end, th e “agency’s justif ication . . . is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of State , 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. Cent. Intelligence Agency , 473 F.3d 370, 374-75 (D.C. Cir. 2007)). For the reasons set forth be low, it is both plausible and logi cal that the official disclosure of the information at issue in this case “reasonabl y could be expected to re sult in damage to the national security.” E.O. 13526 § 1.1(a)(4). First, E.O. 13526 permits agencies to withhold information concerning “military plans, weapon systems, or operations” a nd “intelligence activities (incl uding covert action), intelligence sources or methods, or cryptology.” E.O. 13526 § 1.4(a), (c). Refe rencing these categories, the State Department has withheld information from two documents (E13 and E18) concerning details of military flight operations, the pro cedures for obtaining allied cooperation in the performance of military flight operations, and co mmunications with Canadian officials revealing intelligence activities, sources, or methods. See Walter Decl. ¶¶ 17, 19, 54, 61, 64. The State Department’s original classificati on authority explains that the disc losure of this information has the potential to, among other things , inhibit the United States’ abil ity to successfully carry out8 military operations and enable foreign government s or persons hostile to the United States’ interests to develop countermeasures to the Unit ed States’ intelligence activities, sources, or methods. See id. It is both plausible and logical that the official disclosu re of this kind of information “reasonably could be expected to resu lt in damage to the national security.” E.O. 13526 § 1.1(a)(4). The Court therefore defers to the considered judgment of the Executive. Second, E.O. 13526 permits agencies to withho ld “foreign government information” and information concerning “foreign relations or fore ign activities of the Un ited States, including confidential sources.” E.O. 13526 § 1.4(b), (d); see also id. § 6.1(k), (s) (further defining “foreign government information” and “confidential sources”). Referenci ng these categories, the State Department has withheld information from twenty-three documents (E1 through E11, E13, and E18 through E28) concerning, among other things, discussions, assessments, or recommendations relating to bilatera l affairs with, or the policies, political situation, or security situation of, Afghanistan, Ireland, Libya, Lichte nstein, Luxembourg, the Netherlands, Pakistan, Saudi Arabia, Switzerland, Tunisia, the Unite d Kingdom, and Yemen; and discussions, assessments, or recommendations relating to the fo reign policy implications of former detainees held in United States custody under suspicion of terrorism, including complaints against United States officials pertaining to the alleged tortur e of detainees held in Guantanamo Bay, Cuba. See Walter Decl. ¶¶ 35-76. The State Department’s origin al classification author ity explains that the disclosure of this information has the potential to, among other things, degrade the confidence in the United States’ ability to maintain the confiden tiality of information; inhibit the United States’ ability to access sources of info rmation essential to the conduct of foreign affairs; and damage the United States’ relationship with forei gn governments, agencies, and officials. See id. ¶¶ 18, 20, 41, 42, 46, 50, 54, 59, 64, 69, 74, 76. It is both pl ausible and logical that the official9 disclosure of this kind of information “reasonably could be expected to result in damage to the national security.” E.O. 13526 § 1.1(a)(4). The C ourt again defers to the considered judgment of the Executive. In short, affording substantial weight and deference to the State Department’s declaration, the Court finds that it is both plausible and logical that the official disclosure of the information at issue “reasonably could be expected to result in damage to the national security.” E.O. 13526 § 1.1(a)(4). B. The ACLU Has Failed to Discharge Its Burden of Establishing That the Prior Disclosure Doctrine Applies in this Case It is well established that the assessment of ha rm to national security is entrusted to the Executive and not the courts. Fitzgibbon v. Cent. Intelligence Agency , 911 F.2d 755, 766 (D.C. Cir. 1990). As set forth above, th e Court is satisfied that each item of information withheld in this case falls within the scope of E.O. 13526 and that its official public disclosure “reasonably could be expected to result in damage to the national security.” E. O. 13526 § 1.1(a)(4). The Court must therefore defer to the State Department’s judgment. See Ameziane v. Obama , 620 F.3d 1, 7 (D.C. Cir. 2010) (“[T]he failure to give deference [to the government’s assessment of harm] when it is due is error.”), cert. denied , __ U.S. __, 131 S. Ct. 1673 (2011). Nonetheless, when the specific information s ought by a plaintiff is already in the public domain by an official disclosure, an agency canno t be heard to complain about further disclosure. Wolf , 473 F.3d at 378. Critically, public disclosure alone is insuffici ent; the information in the public domain must also be “officially acknowledged.” Fitzgibbon , 911 F.2d at 765. This principle recognizes that “there can be a critical difference be tween official and unofficial disclosures,” id. , and the mere “fact that information ex ists in some form in the public domain10 does not necessarily mean that official di sclosure will not cause [cognizable] harm,” Wolf , 473 F.3d at 378. For this reason, the proponent of disclosure must meet an exacting standard: First, the information requested must be as specific as the information previously released. Second, the information requested must match the information previous ly disclosed . . . . Third, . . . the information requested must already have been made public through an official and documented disclosure. Fitzgibbon , 911 F.2d at 765 (citation omitted). In this case, the ACLU contends that th e twenty-three embassy cab les it seeks in this action must be disclosed because they are alle gedly already in the public domain after being published by third-party WikiLeaks and becau se the State Department has purportedly acknowledged their authentic ity. The ACLU couches this basic contention in a variety of forms, but this much is clear: the ACLU has not met the exacting standard demanded by settled precedent. No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the Wiki Leaks disclosure. Although the ACLU points to various public statements made by Executive officials regarding the WikiLeaks disclosure, it has failed to te ther those generalized and sweep ing comments to the specific information at issue in this case—the twenty-three embassy cables identified in its request. Nor did the State Department acknowledge the “authen ticity” of the WikiLeaks disclosure in this litigation by failing to issue a Glomar response. See Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency , 678 F.3d 926, 931 (D.C. Cir. 2012) (“[A]n agency may issue a Glomar response, i.e. , refuse to confirm or deny the existence or none xistence of responsive reco rds if the particular FOIA exemption at issue would itself preclude the acknowledgment of such documents.”). Because the ACLU’s request made no mention of the WikiLeaks disclosure and instead11 identified each cable by date, subject, orig inating embassy, and unique message reference number, the State Department made no ad mission by producing responsive records. The Court has considered the remaining arguments tendered by the ACLU and has concluded that they are without merit. In the end, there is no evidence that the Executive has ever officially acknowledged that the specific information at issue in this case was part of the WikiLeaks disclosure (or any other public disclo sure). Accordingly, the ACLU has failed to meet its burden of showing that the prior disclosure doctrine applies in this case. D. The State Department Has Discharged It s Burden of Establishing That It Has Disclosed All Reasonably Segregable Information Even when an agency may properly withhol d a responsive record under one of FOIA’s enumerated exemptions, it nevertheless must di sclose any non-exempt information that is “reasonably segregable.” 5 U.S.C. § 552(b). The question of segregab ility is by necessity subjective and context-specific, turning upon the nature of the documents and information in question. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force , 566 F.2d 242, 261 (D.C. Cir. 1977). An agency need not, for instance, “commit signifi cant time and resources to the separation of disjointed words, phrases, or even sentences whic h taken separately or to gether have minimal or no information content.” Id. at 269 n.54. Ultimately, to discharge its burden before the district court, the agency “must provide a reasonably de tailed justification rather than conclusory statements to support its claim that the non-exem pt material in a docum ent is not reasonably segregable.” Id. In this case, the State Department explains how it carefully review ed and released all reasonably segregable information, a process th at included a line-by-lin e review of a small number of documents, and it has provided a suffi ciently detailed description of the information withheld on a document-by-document basis. See Walter Decl. ¶¶ 35-77. Based upon this12 account, and a searching review of the documents th at the State Department has withheld only in part, the Court finds that the State Department has adequately demonstrated, in reasonable and non-conclusory terms, that all non- exempt material has either been disclosed to the ACLU or is not reasonably segregable. D. The Court Declines to Review the Embassy Cables In Camera In the FOIA context, the district c ourt has broad discre tion to conduct an in camera inspection of withheld records. See Boyd v. Criminal Div. of U.S. Dep’t of Justice , 475 F.3d 381, 391 (D.C. Cir. 2007). In this case , because the State Department’s declarations are sufficiently detailed and the Court is satisfied that no factual dispute remains, the Court declines to exercise its discretion to review the embassy cables in camera

. IV. CONCLUSION For the reasons set forth above, the Court shall GRANT the State Department’s [17] Motion for Summary Judgment and DENY the ACLU’s [18] Cross-Motion for Summary Judgment. An appropriate Order and Judgment accompanies this Memorandum Opinion.

Date: July 23, 2012 _____/s/______________________ COLLEEN KOLLAR-KOTELLY United States District Judge