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Case TitleBRENNAN CENTER FOR JUSTICE v. DEPARTMENT OF STATE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv02200
Date Filed2015-12-17
Date Closed2017-11-06
JudgeChief Judge Beryl A. Howell
PlaintiffBRENNAN CENTER FOR JUSTICE
Case DescriptionThe Brennan Center for Justice submitted a FOIA request to the Department of State for records concerning the agency's non-publication of certain international executive agreements and the transmission of such agreements to Congress under the Case-Zablocki Act. The agency acknowledged receipt of the request, but after failing to respond to the Center's queries about the status of the request, the Center complained to the Office of Government Information Services. OGIS was able to tell the Center that the estimated date of completion was April 2016. The Center then filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantDEPARTMENT OF STATE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [35]
FOIA Project Annotation: Judge Beryl Howell has ruled that the State Department properly withheld information that could identify nine classified international agreements under Exemption 1 (national security). The Brennan Center for Justice requested a list of unpublished international executive agreements transmitted to Congress pursuant to the Case-Zablocki Act. The Case-Zablocki Act requires the State Department to annually provide Congress a list of non-treaty international agreements that have not been published because of national security concerns. The Brennan Center requested these lists since 1990, but eventually narrowed its request to nine documents identifying international agreements between 2004 and 2013. The index listed each agreement alphabetically by country, and further identified them by date, title, and summary. The State Department claimed the information was protected under Exemption 1. Characterizing the agency's claims as relying on a mosaic theory that was "not logical," "convoluted and wholly speculative," the Brennan Center argued that the information did not reach the level of harm required for classification. Finding the agency had provided sufficient support for its classification claims, Howell noted that "an analyst for a foreign government could use the information contained in each entry reflecting an agreement's 'title,' 'entry in force,' 'summary,' and 'expiration' to determine which nations have concluded existence-classified agreements with the United States, even if those nations' identities were redacted. Moreover, because the documents at issue list international agreements alphabetically by nation, redacting information relating only to existence-classified agreements would not suffice to protect the classified information, as an analyst could discern at least some of the nations with which the United States has concluded existence-classified agreements by seeing where within the alphabetical list the redacted information appears. Even where alphabetization leaves ambiguity as to the nation with which the United States has concluded an existence-classified agreement, the analyst could combine the information the plaintiff seeks with other publicly-available information to identify the nations with which the United States has existence-classified agreements." Howell added that "producing only each agreement's classification-level notation would not suffice to protected classified information, because any such notations defendant could produce would be listed alphabetically by nation, even if the nations' identities were redacted." The Brennan Center argued the agency could segregate the information in such a way as to mask its identity. But Howell disagreed, pointing out that "identification of nations with which the United States might potentially have concluded an existence-based agreement is not the only danger to the national security that production, in whole or part, of the documents at issue may cause." She observed that "such agreements are existence-classified in part because classification allows the United States to maintain military and intelligence relationships with nations whose populace or neighbors might not favor such cooperation."
Issues: Exemption 1 - Harm to national security
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-12-171COMPLAINT for Injunctive Relief against DEPARTMENT OF STATE ( Filing fee $ 400 receipt number 0090-4353903) filed by BRENNAN CENTER FOR JUSTICE. (Attachments: # 1 Civil Cover Sheet, # 2 7.1 Certificate, # 3 Summons Dep't of State, # 4 Summons Attorney General, # 5 Summons U.S. Attorney)(Sobel, David) (Entered: 12/17/2015)
2015-12-17Case Assigned to Judge Beryl A. Howell. (md) (Entered: 12/18/2015)
2015-12-182STANDING ORDER. Signed by Judge Beryl A. Howell on December 18, 2015. (lcbah1) (Entered: 12/18/2015)
2015-12-183LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BRENNAN CENTER FOR JUSTICE. ( md) (Entered: 12/18/2015)
2015-12-184SUMMONS (3) Issued Electronically as to DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 12/18/2015)
2016-01-115NOTICE of Appearance by Marian L. Borum on behalf of DEPARTMENT OF STATE (Borum, Marian) (Entered: 01/11/2016)
2016-02-046ANSWER to Complaint by DEPARTMENT OF STATE.(Borum, Marian) (Entered: 02/04/2016)
2016-02-22MINUTE ORDER (paperless) TO SHOW CAUSE (1) why the plaintiff failed to file a joint meet and confer statement per Local Civil Rule 16.3(d) and paragraph 3 of the Court's 2 Standing Order, and (2) why this action should not be dismissed for failure to prosecute. The plaintiff shall respond by February 29, 2016. Signed by Judge Beryl A. Howell on February 22, 2016. (lcbah1) (Entered: 02/22/2016)
2016-02-22Set/Reset Deadlines: Response to Show Cause due by 2/29/2016. (tg) (Entered: 02/22/2016)
2016-02-237NOTICE of Filing Proof of Service by BRENNAN CENTER FOR JUSTICE (Sobel, David) (Entered: 02/23/2016)
2016-02-238RESPONSE TO ORDER TO SHOW CAUSE by BRENNAN CENTER FOR JUSTICE re Order to Show Cause, . (Sobel, David) (Entered: 02/23/2016)
2016-02-23MINUTE ORDER (paperless) DIRECTING the defendant, upon consideration of the plaintiff's 8 Response to Order to Show Cause, to explain, by February 26, 2016, why it has failed to comply with Local Civil Rule 16.3(d) and paragraph 3 of the Court's 2 Standing Order. Signed by Judge Beryl A. Howell on February 23, 2016. (lcbah1) (Entered: 02/23/2016)
2016-02-23Set/Reset Deadlines: Response to Order of the Court due by 2/26/2016. (tg) (Entered: 02/23/2016)
2016-02-269RESPONSE TO ORDER OF THE COURT re Order, filed by DEPARTMENT OF STATE. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Borum, Marian) (Entered: 02/26/2016)
2016-02-29MINUTE ORDER (paperless) DIRECTING the parties, upon consideration of the defendant's 9 Response to Plaintiff's Response to the Court's Order to Show Cause, to file, by March 25, 2016, a Joint Meet and Confer Statement, advising the Court on the status of production and proposing a schedule to govern the submission of dispositive motions in this matter. Signed by Judge Beryl A. Howell on February 29, 2016. (lcbah1) (Entered: 02/29/2016)
2016-03-01Set/Reset Deadlines: Joint Meet & Confer Statement due by 3/25/2016. (tg) (Entered: 03/01/2016)
2016-03-2510MEET AND CONFER STATEMENT. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Sobel, David) (Entered: 03/25/2016)
2016-03-2511MEET AND CONFER STATEMENT. (Borum, Marian) (Entered: 03/25/2016)
2016-03-25MINUTE ORDER (paperless) in light of the defendant's 11 Meet and Confer Statement, the parties are DIRECTED to submit a Joint Status report by April 25, 2016, advising the Court of the status of the search for responsive documents and, if complete, propose a briefing schedule. Signed by Chief Judge Beryl A. Howell on March 25, 2016. (lcbah1) (Entered: 03/25/2016)
2016-03-28Set/Reset Deadlines: Joint Status Report due by 4/25/2016. (tg) (Entered: 03/28/2016)
2016-04-2512Joint STATUS REPORT by DEPARTMENT OF STATE. (Borum, Marian) (Entered: 04/25/2016)
2016-04-25MINUTE ORDER (paperless) in light of the parties' 12 Joint Status Report, DIRECTING the parties to file Joint Status Reports, every thirty days, beginning on June 6, 2016, informing the Court of the status of the production of non-exempt responsive documents, until production is completed, at which time the parties shall propose a schedule to govern the submission of dispositive motions in this matter. Signed by Chief Judge Beryl A. Howell on April 25, 2016. (lcbah1) (Entered: 04/25/2016)
2016-04-26Set/Reset Deadlines: Joint Status Report due by 6/6/2016 and every thirty days thereafter. (tg) (Entered: 04/26/2016)
2016-04-2613Consent MOTION to Clarify by DEPARTMENT OF STATE (Borum, Marian) (Entered: 04/26/2016)
2016-04-26MINUTE ORDER (paperless) GRANTING the defendant's 13 Consent Motion for Clarification. Accordingly, the defendant is directed to file Status Reports, every thirty days, beginning on June 6, 2016, informing the Court of the status of the production of non-exempt responsive documents, until production is completed, at which time the parties shall jointly propose a schedule to govern the submission of dispositive motions in this matter. Signed by Chief Judge Beryl A. Howell on April 26, 2016. (lcbah1) (Entered: 04/26/2016)
2016-06-0614First STATUS REPORT to the Court by DEPARTMENT OF STATE. (Borum, Marian) (Entered: 06/06/2016)
2016-07-0615Second STATUS REPORT by DEPARTMENT OF STATE. (Borum, Marian) (Entered: 07/06/2016)
2016-08-0516Third STATUS REPORT by DEPARTMENT OF STATE. (Walker, Johnny) (Entered: 08/05/2016)
2016-08-2917NOTICE OF SUBSTITUTION OF COUNSEL by John Cuong Truong on behalf of DEPARTMENT OF STATE Substituting for attorney Marian L. Borum (Truong, John) (Entered: 08/29/2016)
2016-09-0618STATUS REPORT (Fourth) by DEPARTMENT OF STATE. (Truong, John) (Entered: 09/06/2016)
2016-10-0519STATUS REPORT (Fifth) by DEPARTMENT OF STATE. (Truong, John) (Entered: 10/05/2016)
2016-10-3120Consent MOTION for Extension of Time to Complete Document Production by DEPARTMENT OF STATE (Truong, John) (Entered: 10/31/2016)
2016-11-01MINUTE ORDER (paperless) GRANTING the defendant's 20 Consent Motion for Extension of Time to Complete Document Production. Accordingly, the defendant shall complete production of documents by January 17, 2017. The parties shall continue to file Joint Status Reports, every thirty days, until production is completed, at which time the parties shall propose a schedule to govern the submission of dispositive motions in this matter. Signed by Chief Judge Beryl A. Howell on November 1, 2016. (lcbah1) (Entered: 11/01/2016)
2016-11-01Set/Reset Deadlines: Defendant's production of documents due by 1/17/2017. (tg) (Entered: 11/01/2016)
2016-11-0421STATUS REPORT (Sixth) by DEPARTMENT OF STATE. (Truong, John) (Entered: 11/04/2016)
2016-12-0522STATUS REPORT (Seventh) by DEPARTMENT OF STATE. (Truong, John) (Entered: 12/05/2016)
2017-01-0523STATUS REPORT (Eighth) by DEPARTMENT OF STATE. (Truong, John) (Entered: 01/05/2017)
2017-02-1624STATUS REPORT (Ninth) by DEPARTMENT OF STATE. (Truong, John) (Entered: 02/16/2017)
2017-02-16MINUTE ORDER (paperless), upon consideration of the government's 24 Ninth Status Report, DIRECTING the parties jointly to file, by March 17, 2017, a status report indicating the parties' progress "toward[] possibly resolving this case without further litigation" and, if necessary, proposing a schedule to govern further proceedings in this case. Signed by Chief Judge Beryl A. Howell on February 16, 2017. (lcbah1) (Entered: 02/16/2017)
2017-02-17Set/Reset Deadlines: Joint Status Report due by 3/17/2017. (tg) (Entered: 02/17/2017)
2017-03-1725Joint STATUS REPORT by DEPARTMENT OF STATE. (Truong, John) (Entered: 03/17/2017)
2017-03-20MINUTE ORDER (paperless), upon consideration of the parties' 25 Joint Status Report, ISSUING the following SCHEDULING ORDER to control further proceedings in this matter: the government shall, by May 18, 2017, file any motion for summary judgment; the plaintiff shall, by June 19, 2017, file any cross-motion for summary judgment and any opposition to the government's motion for summary judgment; the government shall, by July 19, 2017, file any reply in support of its motion for summary judgment and any opposition to the plaintiff's cross-motion for summary judgment; the plaintiff shall, by August 11, 2017, file any reply in support of its motion for summary judgment. Signed by Chief Judge Beryl A. Howell on March 20, 2017. (lcbah1) (Entered: 03/20/2017)
2017-03-20Set/Reset Deadlines: Summary Judgment motions due by 5/18/2017; Cross-Motion and Opposition to Motion for Summary Judgment due by 6/19/2017; Opposition to Cross-Motion and Reply to Opposition to Motion for Summary Judgment due by 7/19/2017; Reply to Opposition to Cross Motion due by 8/11/2017. (tg) (Entered: 03/20/2017)
2017-04-1726NOTICE OF SUBSTITUTION OF COUNSEL by William Mark Nebeker on behalf of DEPARTMENT OF STATE Substituting for attorney John C. Truong (Nebeker, William) (Entered: 04/17/2017)
2017-05-1827MOTION to Dismiss Or, In The Alternative , MOTION for Summary Judgment by DEPARTMENT OF STATE (Attachments: # 1 Declaration Stein, # 2 Text of Proposed Order)(Nebeker, William) (Entered: 05/18/2017)
2017-06-1928Memorandum in opposition to re 27 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by BRENNAN CENTER FOR JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Statement of Facts - Response, # 5 Text of Proposed Order)(Sobel, David) (Entered: 06/19/2017)
2017-06-1929Cross MOTION for Summary Judgment by BRENNAN CENTER FOR JUSTICE (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Statement of Facts, # 5 Text of Proposed Order)(Sobel, David) (Entered: 06/19/2017)
2017-07-1330Unopposed MOTION for Extension of Time to File Response/Reply as to 29 Cross MOTION for Summary Judgment by DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 07/13/2017)
2017-07-14MINUTE ORDER (paperless), upon consideration of the government's 30 Unopposed Motion for Enlargement of Time, ISSUING the following revised SCHEDULING ORDER to control further proceedings in this matter: the government shall, by August 3, 2017, file any reply in support of its motion for summary judgment and any opposition to the plaintiff's cross-motion for summary judgment; the plaintiff shall, by August 29, 2017, file any reply in support of its motion for summary judgment. Signed by Chief Judge Beryl A. Howell on July 14, 2017. (lcbah1) (Entered: 07/14/2017)
2017-07-14Set/Reset Deadlines: Opposition to Cross-Motion and Reply to Opposition to Motion for Summary Judgment due by 8/3/2017; Reply to Opposition to Cross-Motion due by 8/29/2017. (tg) (Entered: 07/14/2017)
2017-08-0331REPLY to opposition to motion re 29 Cross MOTION for Summary Judgment , 27 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by DEPARTMENT OF STATE. (Attachments: # 1 Declaration Second Stein Decl., # 2 Text of Proposed Order)(Nebeker, William) (Entered: 08/03/2017)
2017-08-0332Memorandum in opposition to re 29 Cross MOTION for Summary Judgment (Same as ECF No. 31) filed by DEPARTMENT OF STATE. (Attachments: # 1 Declaration Second Stein Decl., # 2 Text of Proposed Order)(Nebeker, William) (Entered: 08/03/2017)
2017-08-2933REPLY to opposition to motion re 29 Cross MOTION for Summary Judgment filed by BRENNAN CENTER FOR JUSTICE. (Sobel, David) (Entered: 08/29/2017)
2017-11-0634ORDER GRANTING the defendant's 27 Motion to Dismiss, or, in the Alternative, for Summary Judgment, and DENYING the plaintiff's 29 Cross-Motion for Summary Judgment. See Order for further details. The Clerk of the Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on November 6, 2017. (lcbah1) (Entered: 11/06/2017)
2017-11-0635MEMORANDUM OPINION regarding the defendant's 27 Motion to Dismiss, or, in the Alternative, for Summary Judgment, and the plaintiff's 29 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on November 6, 2017. (lcbah1) (Entered: 11/06/2017)
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