Case Detail

FOIA Project Annotation: In a decision that was certainly expected based on the case law and the significant degree of deference courts afford agencies on matters of national security, Judge Colleen Kollar-Kotelly has ruled that the State Department can continue to withhold 23 cables under Exemption 1 (national security) even though they were admittedly made public by WikiLeaks. Although government classification policy should not be dictated by unauthorized disclosures, the widespread availability of the WikiLeaks documents, including publication of a large amount of the cables' contents in the New York Times and several other respected European publications, has severely undercut the government's credibility concerning the sanctity of the documents and leaves information policy in an Alice Through the Looking Glass world where the government gets to pretend that these documents have never been disseminated and remain under classification lock and key. In the first opinion concerning the effect of the WikiLeaks disclosures on the FOIA status of the underlying documents, the ACLU's only challenge concerning the cables was that the WikiLeaks disclosures had irrevocably placed them in the public domain. Kollar-Kotelly first addressed whether the State Department had met its burden of showing that the cables remained classified. She explained that "in this case, the State Department relies upon Executive Order 13526 which prescribes a uniform system for classifying and safeguarding national security information. To show that it has properly withheld information on this basis, the State Department must demonstrate that the information was classified pursuant to proper procedures and that the withheld information falls within the substantive scope of E.O. 13526." She then observed that "the ACLU simply offers no rejoinder to the State Department's affirmative showing that all the information at issue (1) was classified 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 [withholding] categories [in the Executive Order]. . .In the absence of a response, the Court treats as conceded the State Department's argument that it has satisfied the first three requirements under E.O. 13526. But even absent such a concession, the record is clear that all three have been met." Kollar-Kotelly indicated that the only dispute centered on whether the agency had sufficiently shown that disclosure could harm national security or foreign relations. But she readily admitted that she was subject to some rather specific constraints in reviewing such a claim. "In this context," she noted, "the district court 'must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record,' keeping in mind 'that any affidavit or agency statement will always be speculative to some extent, in the sense that it describes potential future harm.'. .In the end, the 'agency's justification. . .is sufficient if it appears "logical" or "plausible."'" The State Department had withheld several cables on the basis that they contained information concerning military plans or intelligence activities. Kollar-Kotelly noted that "the State Department's original classification authority explains that the disclosure of this information has the potential to, among other things, inhibit the United States' ability to successfully carry out military operations and enable foreign government or persons hostile to the United States' interests to develop countermeasures to the United States' intelligence activities, sources, or methods. It is both plausible and logical that the official disclosure of this kind of information "reasonably could be expected to result in damage to the national security.' The Court therefore defers to the considered judgment of the Executive." The agency had withheld other cables because they contained foreign government information or information about the foreign relations or activities of the United States. Here, Kollar-Kotelly observed that "the State Department's original classification authority 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 confidentiality of information; inhibit the United States' ability to access sources of information essential to the conduct of foreign affairs; and damage the United States' relationship with foreign governments, agencies and officials. It is both plausible and logical that the official disclosure of this kind of information 'reasonably could be expected to result in damage to the national security.' The Court again defers to the considered judgment of the Executive." She then turned to a consideration of whether the cables had entered the public domain. She noted that "when the specific information sought by a plaintiff is already in the public domain by an official disclosure, an agency cannot be heard to complain about further disclosure. Critically, public disclosure alone is insufficient; the information in the public domain must also be 'officially acknowledged.'" The ACLU asserted that the cables had entered the public domain through the WikiLeaks disclosures and that the State Department had acknowledged their authenticity. But Kollar-Kotelly pointed out that "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 WikiLeaks disclosure. Although the ACLU points to various public statements made by Executive officials regarding the WikiLeaks disclosure, it has failed to tether those generalized and sweeping comments to the specific information at issue in this caseâ€"the twenty-three embassy cables identified in its request. Nor did the State Department acknowledge the 'authenticity' of the WikiLeaks disclosure in this litigation by failing to issue a Glomar response. Because the ACLU's request made no mention of the WikiLeaks disclosure and instead identified each cable by date, subject, originating embassy, and unique message reference number, the State Department made no admission by producing responsive documents." She concluded that "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 disclosure)." Kollar-Kotelly also declined the ACLU's invitation to conduct an in camera review of the cables. Instead, she noted that "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."
Issues: Exemption 1 - Properly classified, Public domain

Date Filed	Doc #	Docket Text
2011-06-09	1	COMPLAINT against DEPARTMENT OF STATE ( Filing fee $ 350, receipt number 4616039522) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 06/09/2011)
2011-06-09		SUMMONS (3)Issued as to DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 06/09/2011)
2011-06-09	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (jf, ) (Entered: 06/09/2011)
2011-06-14	3	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Benjamin E. Wizner, :Firm- American Civil Liberties Union Foundation, :Address- 125 Broad Street, New York, NY 10004. Phone No. - 212-519-7860. Fax No. - (212) 549-2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Ben Wizner, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 06/14/2011)
2011-06-16	4	ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on June 16, 2011. (SM) (Entered: 06/16/2011)
2011-06-17	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/16/2011. (Spitzer, Arthur) (Entered: 06/17/2011)
2011-06-17	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/16/2011. Answer due for ALL FEDERAL DEFENDANTS by 7/16/2011. (Spitzer, Arthur) (Entered: 06/17/2011)
2011-06-21		MINUTE ORDER granting 3 Motion for the Admission, Pro Hac Vice, of Ben Wizner as Additional Counsel for Plaintiff, contingent upon Attorney Wizner certifying to the Court that he is familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on June 21, 2011. (SM) (Entered: 06/21/2011)
2011-06-22	7	RESPONSE TO ORDER OF THE COURT re Order on Motion for Leave to Appear Pro Hac Vice, filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (znmw, ) (Entered: 06/26/2011)
2011-06-30	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF STATE served on 6/15/2011 (Spitzer, Arthur) (Entered: 06/30/2011)
2011-07-14	9	NOTICE of Appearance by Scott Risner on behalf of DEPARTMENT OF STATE (Risner, Scott) (Entered: 07/14/2011)
2011-07-14	10	ANSWER to 1 Complaint by DEPARTMENT OF STATE.(Risner, Scott) (Entered: 07/14/2011)
2011-07-14		MINUTE ORDER (paperless). The Defendant having now answered the Complaint in this Freedom of Information Act action, the parties shall promptly meet and confer and, on or before Monday, July 25, 2011, file a Joint Status Report proposing a schedule for proceeding in this action. Signed by Judge Colleen Kollar-Kotelly on July 14, 2011. (lcckk3) (Entered: 07/14/2011)
2011-07-22	11	STATUS REPORT (Joint) by DEPARTMENT OF STATE. (Risner, Scott) (Entered: 07/22/2011)
2011-07-25		MINUTE ORDER (paperless). Upon consideration of the parties' 11 Joint Status Report, Defendant shall produce all non-exempt, responsive records to Plaintiffs by no later than September 30, 2011. On or before October 31, 2011, the parties shall file a Joint Status Report proposing a briefing schedule for the resolution of any outstanding issues within the scope of the 1 Complaint. Signed by Judge Colleen Kollar-Kotelly on July 25, 2011. (lcckk3) (Entered: 07/25/2011)
2011-07-25		Set/Reset Deadlines: Joint Status Report due by 10/31/2011. (dot ) (Entered: 10/26/2011)
2011-09-29	12	Unopposed MOTION for Extension of Time to Complete Processing by DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Risner, Scott) (Entered: 09/29/2011)
2011-09-30		MINUTE ORDER (paperless). Upon consideration of Defendant's 12 Unopposed Motion to Extend Production Deadline, and in particular Defendant's representation that the "requested extension... should leave sufficient time for the parties to submit a proposed briefing schedule by October 31, 2011," as required by the Court's Minute Order dated July 25, 2011, the Motion is GRANTED. Defendant shall have to and including October 21, 2011, to produce all non-exempt, responsive records to Plaintiffs. Signed by Judge Beryl A. Howell, sitting as the Motions Judge under Local Civil Rule 40.8, on September 30, 2011. (lcckk3) (Entered: 09/30/2011)
2011-10-11	13	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Nathan Freed Wessler, :Firm- American Civil Liberties Union Foundation, :Address- 125 Broad Street, NY NY 10004. Phone No. - (212) 519-7847. Fax No. - 212-549-2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Nathan Freed Wessler, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/11/2011)
2011-10-12		MINUTE ORDER granting 13 Motion for Admission Hac Vice as to Nathan Freed Wessler, contingent upon Attorney Wessler certifying to the Court that he is familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on October 12, 2011. (SM) (Entered: 10/12/2011)
2011-10-20	14	RESPONSE TO ORDER OF THE COURT re Order on Motion for Leave to Appear Pro Hac Vice, filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Wessler, Nathan) (Entered: 10/20/2011)
2011-10-27	15	STATUS REPORT (Joint Proposed Briefing Schedule) by DEPARTMENT OF STATE. (Risner, Scott) (Entered: 10/27/2011)
2011-10-28	16	SCHEDULING AND PROCEDURES ORDER. Upon review of the parties' 15 Joint Proposed Briefing Schedule, and in order to administer this civil action in a manner fair to the litigants and consistent with the parties' interest in completing this litigation in the shortest possible time and at the least possible cost, the parties are directed to comply with each of the directives set forth in this Order. In addition, the parties shall adhere to the following schedule: by no later than December 22, 2011, Defendant shall serve and file its motion for summary judgment; by no later than January 23, 2012, Plaintiffs shall serve and file their opposition to Defendant's motion for summary judgment and their cross-motion for summary judgment; by no later than February 13, 2012, Defendant shall serve and file its reply in support of its motion for summary judgment and its opposition to Plaintiffs' cross-motion for summary judgment; and by no later than February 27, 2012, Plaintiffs shall serve and file their reply in support of their cross-motion for summary judgment. The dates identified are firm; the Court has given the parties the schedule that they have requested and expects that they will adhere to that schedule. Signed by Judge Colleen Kollar-Kotelly on October 28, 2011.(lcckk3) (Entered: 10/28/2011)
2011-12-22	17	MOTION for Summary Judgment by DEPARTMENT OF STATE (Attachments: # 1 Statement of Facts, # 2 Walter Declaration, # 3 Exhibits to Walter Declaration, # 4 Text of Proposed Order)(Risner, Scott) (Entered: 12/22/2011)
2012-01-23	18	Cross MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Exhibit A-C, # 4 Exhibit D-M, # 5 Exhibit N-S, # 6 Exhibit T-W, # 7 Exhibit X-Z, # 8 Exhibit AA-AG, # 9 Exhibit AH-AM, # 10 Exhibit AN-AS, # 11 Text of Proposed Order)(Wizner, Benjamin) (Entered: 01/23/2012)
2012-01-23	19	Memorandum in opposition to re 17 MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (See Docket Entry 18 to view document. Counsel is reminded to file the opposition as a separate docket entry in future). (znmw, ) (Entered: 01/24/2012)
2012-02-13	20	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by DEPARTMENT OF STATE. (Attachments: # 1 Response to Statement of Facts, # 2 Text of Proposed Order)(Risner, Scott) (Entered: 02/13/2012)
2012-02-13	21	REPLY to opposition to motion re 17 MOTION for Summary Judgment filed by DEPARTMENT OF STATE. (Risner, Scott) (Entered: 02/13/2012)
2012-02-27	22	REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Spitzer, Arthur) (Entered: 02/27/2012)
2012-07-23	23	ORDER AND JUDGMENT. For the reasons stated in the accompanying Memorandum Opinion, the State Department's 17 Motion for Summary Judgment is GRANTED, the ACLU's 18 Cross-Motion for Summary Judgment is DENIED, and final judgment is ENTERED in the State Department's favor. Signed by Judge Colleen Kollar-Kotelly on July 23, 2012. (lcckk3) (Entered: 07/23/2012)
2012-07-23	24	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on July 23, 2012. (lcckk3) (Entered: 07/23/2012)
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