Defendant’s Preliminary Statement

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________)
CENTER FOR NATIONAL SECURITY )
STUDIES, et al., )
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Plaintiffs, ) Civil Action No. 01-2500
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v. ) Judge Kessler
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendant. )
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DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO STAY PROCEEDINGS ON DEFENDANT’S SUMMARY JUDGMENT MOTION PENDING DISCOVERY

PRELIMINARY STATEMENT

This litigation, as plaintiffs themselves have defined it, concerns requests they filed with several components of the Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”) for information concerning individuals detained in connection with the government’s investigation of the terrorist attacks of September 11. The Department produced a substantial part of the information responsive to plaintiffs’ request, but withheld a narrow category of sensitive information concerning these detainees, after determining that its release could compromise the ongoing investigation, threaten the safety and security of the public and of the detainees, and invade the detainees’ personal privacy. Thus, the issue for this Court to resolve is limited and well defined, namely, whether the Department of Justice has met its burden of proving that the withheld information is within the claimed exemptions under the FOIA.

Rather than responding to the merits of defendant’s argument, plaintiffs seek to stay the Court’s consideration of the pending summary judgment motion to allow them to take discovery. Discovery in a FOIA case is, however, extremely disfavored, as FOIA cases generally do not present factual issues the resolution of which is dependent on discovery. The discovery plaintiffs seek here is particularly inappropriate, representing an attempt to gain access to the inner workings and probe the bona fides of the government’s ongoing terrorism investigation. At the same time, the issues on which plaintiffs seek discovery will not shed any light on the merits of the challenged withholdings under the FOIA. Indeed, the plaintiffs seek to use discovery to gain even more information than they have sought in their FOIA requests. But that information is entitled to the same, if not greater, protection from disclosure.

Plaintiffs seek two categories of discovery, but neither is necessary to resolve the government’s motion for summary judgment here. First, plaintiffs seek more specific information about how each of the individuals detained pursuant to the investigation of the September 11 attacks is connected to terrorism. Defendant has already demonstrated, however, that disclosure of any additional information about each of the categories of detainees – those subsequently released, those held on immigration?related charges, those held on federal criminal charges, and those held as material witnesses – poses an unacceptable risk of compromising the ongoing investigation, invading the privacy of the detainees, and threatening their safety and the safety of the public at large. More importantly, plaintiffs’ request for further information fundamentally misconstrues the nature of the inquiry under FOIA Exemption 7. The government is not required to demonstrate a connection between each detainee and terrorism in order to invoke the exemption, but merely that the release of information about the individuals would threaten to harm the investigation of terrorist activities, or that it could threaten the safety or privacy of the detainees or the safety of the public.

Second, plaintiffs seek discovery to resolve what they claim are factual discrepancies concerning the number of detainees, discrepancies plaintiffs may have inferred from statements released by defendant at different times as the investigation has proceeded. Not only is discovery unnecessary to explain these alleged discrepancies, but none is material to the resolution of the legal issues presented by this FOIA lawsuit. The number of detainees in custody is necessarily in flux because of the fluid and ongoing nature of defendant’s investigation. A detainee’s status may change as a result of developing circumstances and defendant’s efforts to process expeditiously and, if appropriate, to release the detainee. Any minor numerical errors do not bear on the soundness of the government’s withholdings and certainly do not constitute evidence of some overall governmental wrongdoing, as plaintiffs suggest. Dissecting each individual case through discovery is unnecessary and inappropriate, and would present an unacceptable risk of harm. Plaintiffs’ attempt to broaden this fairly narrow FOIA case into a wide-ranging inquiry into the government’s treatment of the detainees and overall conduct of the terrorism investigation should be rejected. Their motion to stay proceedings on defendant’s summary judgment motion pending discovery should therefore be denied.

BACKGROUND

On October 29, 2001, plaintiffs submitted three FOIA requests to defendant, seeking certain information about the individuals “arrested or detained” pursuant to defendant’s investigation into the September 11 terrorist attacks and related terrorist activities. While defendant was still in the process of responding to these requests, plaintiffs filed this suit on December 5, 2001.

In response to the requests and this lawsuit, defendant has provided much of the information plaintiffs requested, but has withheld certain limited categories of information pursuant to Exemptions 3, 5, 7(A), 7(C), and 7(F) of the FOIA. The information withheld that is relevant to the present motion includes the names of persons being held on immigration-related charges by the INS and their release date, if they have been released, the citizenship status and dates of arrest of those charged with federal crimes, the places of arrest of all the detainees, the locations where the detainees were originally held and the locations where they are currently being held, and all information regarding those being held as material witnesses and those cases sealed by court order. See Def’s SJ Mem. at 8-10 & Exhs. 5 & 6.

On January 11, 2002, defendant filed a summary judgment motion, seeking a judgment that defendant has properly withheld the above categories of information under the FOIA. See Defendant’s Motion for Summary Judgment. Defendant first showed that the information in question met the threshold requirement that it be “compiled for law enforcement purposes.” Def’s SJ Mem. at 13-14. Defendant then showed that the disclosure of this information “could reasonably be expected” to result in three of the harms covered by Exemption 7. Id. at 14-30. This conclusion was established by the Declaration of James S. Reynolds, the Chief of the Terrorism and Violent Crime Section in the Criminal Division of the DOJ, and one of those responsible for coordinating and supervising DOJ’s investigation into the September 11 terrorist attacks. In his declaration, Mr. Reynolds explains specifically how disclosure of the requested information could result in significant harm to the interests of the United States and compromise the September 11 and other ongoing terrorism?related investigations, 5 U.S.C. § 552(b)(7)(A); Reynolds Dec. 13?18, 28, 35; could violate the substantial privacy interests of the detainees in their names and the requested personal information connected with their status as detainees, 5 U.S.C. § 552(b)(7)(C); Reynolds Dec. 19?23, 29?30, 36; see also id. 24?26; and could pose a serious threat to the life or physical safety of the public, as well as of the detainees and persons affiliated with them, 5 U.S.C. § 552(b)(7)(F); Reynolds Dec. 13-18, 37?38.

Despite the fact that the government’s motion was filed pursuant to a schedule agreed upon by the parties – one that was premised on all parties’ understanding that this case presents issues of law properly resolved by motions for summary judgment and that an expeditious resolution of these issues is appropriate – plaintiffs in response seek to stay the summary judgment proceedings in order to conduct discovery. See Plaintiffs’ Motion to Stay Proceedings on Defendant’s Summary Judgment Motion Pending Discovery (filed Jan. 22, 2002) (“Pls’ Stay Mtn.”). Plaintiffs contend that, in order to rebut defendant’s showing that disclosure may jeopardize the ongoing law enforcement investigation, see 5 U.S.C. § 552(b)(7)(A), they need information concerning, generally, the nature and degree of each detainee’s connection to terrorism and why the public identification of detainees with no currently known link to the September 11 attacks would pose any threat to the investigation. Pls’ Stay Mtn. at 7?16. Plaintiffs also seek clarification of certain alleged factual discrepancies relating to the number of detainees, discrepancies which plaintiffs may have inferred from statements released by defendant at different times as the investigation has proceeded. Id. at 17-20. As will be shown below, this discovery is not warranted.

ARGUMENT

I.

PLAINTIFFS’ MOTION TO STAY SUMMARY JUDGMENT PROCEEDINGS
TO TAKE DISCOVERY SHOULD BE DENIED

Plaintiffs bear a significant burden in attempting to obtain Rule 56(f) discovery in a Freedom of Information Act case. The courts have overwhelmingly and unambiguously declared that discovery is “generally inappropriate” in FOIA cases. Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000) (internal quotation marks and citation omitted); see also Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (“discovery . . . generally is unnecessary”); Broadrick v. Executive Office of the President, 139 F. Supp. 2d 55, 62 (D.D.C. 2001) (“discovery is not typically part of FOIA . . . “). In FOIA cases, where the defendant has the burden of proof, see 5 U.S.C. § 552(a)(4)(B), discovery is unwarranted if defendant’s affidavits “describe the documents and the justifications for nondisclosure in reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738, 751 (D.C. Cir. 1981); see also Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); Billington v. Department of Justice, 11 F. Supp. 2d 45, 72 (D.D.C. 1998) (“[d]iscovery should be denied altogether if the court is satisfied from the agency’s affidavits that no factual disputes remain, and when the affidavits are relatively detailed and submitted in good faith”) (internal quotation marks and citations omitted), aff’d in part, vacated in part, 233 F.3d 581 (D.C. Cir. 2000).

The standard for obtaining discovery under Rule 56(f) is equally strenuous. Rule 56(f) permits discovery only if the party opposing the motion files an affidavit demonstrating that it “cannot for reasons stated present by affidavit facts essential to justify [its] opposition.” Fed. R. Civ. P. 56(f). To meet this burden, the party opposing the motion for summary judgment must “demonstrate precisely how additional discovery will lead to a genuine issue of material fact.” Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000). That is, the opposing party must “indicate what facts [it] intend[s] to discover that would create a triable issue.” Carpenter v. Federal Nat’l Mortgage Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999); see King v. United States Dep’t of Justice, 830 F.2d 210, 232 n.157 (D.C. Cir. 1987).

Plaintiffs fail to meet these stringent standards in the present case. Plaintiffs identify two general matters on which they want discovery: (1) the nature and degree of the connection between each detainee and terrorism, and how the disclosure of information regarding detainees who have been determined to be of no current investigative interest could harm the government’s investigation, and (2) clarification of certain alleged factual discrepancies in defendant’s declarations. However, neither category of information is “essential” to resolving defendant’s summary judgment motion. FOIA Exemption 7(A) does not require that the government establish a connection between each detainee and terrorism, but rather between release of the withheld information and potential harm to the investigation of terrorism. As to the latter issue, the Declaration of James S. Reynolds, Chief of the Terrorism and Violent Crime Section of the Criminal Division of the Department of Justice, filed with defendant’s summary judgment motion, explains in sufficient detail how disclosure of the withheld information, even as to detainees who are not currently of investigative interest regarding the September 11 attacks, could harm the investigation. And resolving the exact number of detainees is equally irrelevant. In Exemption 7 cases, the courts are authorized to make decisions regarding generic categories of information, rather than being required to review each document and each withholding individually. In the present case, the applicability of the relevant exemptions can be adequately assessed without knowing exactly how many detainees are in each category.

Nevertheless, to clarify some of the information provided by Mr. Reynolds in his January 11 declaration, defendant submits herewith the Supplemental Declaration of Mr. Reynolds (“Supp. Reynolds Dec.”) (Exhibit 1 hereto), providing additional information and making clear beyond any doubt that discovery is neither necessary nor appropriate here. Cf. Founding Church of Scientology v. United States Marshals Serv., 516 F. Supp. 151, 156 (D.D.C. 1980) (finding affidavits insufficient but issuing protective order against discovery and ordering defendants “to file with the Court a detailed affidavit or affidavits which support(s) their assertions that the search of their files conducted in response to plaintiff’s FOIA request was adequate”). This supplemental declaration confirms that the INS list of “Inactive Cases” contains the names of detainees who are believed not to be of current interest regarding the investigations emanating from the September 11 attacks, thus answering one of plaintiffs’ questions. Supp. Reynolds Dec. 3. It also makes clear that the harms outlined in Mr. Reynolds’ prior declaration apply equally to disclosure of details regarding these detainees. Id. 5-6. It further addresses plaintiffs’ questions with regard to the number of detainees. Id. 2-4. Corrected lists of detainees are also provided. Id. 8 & Amended Exhs. 5 & 6. This declaration lays to rest any valid concerns about the sufficiency of defendant’s response, and underlines that there is no evidence of bad faith in defendant’s FOIA response or any other evidence sufficient to overcome the presumption against discovery. For all of these reasons, plaintiffs’ motion for a stay of proceedings to take discovery should be denied.

A. THE NATURE OF THE CONNECTION BETWEEN EACH DETAINEE AND TERRORIST ACTIVITIES IS NOT RELEVANT TO RESOLVING THE VALIDITY OF DEFENDANT’S WITHHOLDINGS

Plaintiffs seek discovery to ascertain whether the government has concluded that, with respect to at least some of the detainees, “there is no connection to terrorism.” Pls’ Stay Mtn. at 12 (emphasis in original). More specifically, plaintiffs seek information regarding detainees on the INS list labeled “Inactive Cases,” detainees cleared for voluntary departure, detainees who have been released from custody, and detainees who have been certified under Public Law No. 107-56. Id. at 15-17. These details will, they assert, reveal that the government has determined that there is no connection between some of the detainees and terrorist activities. In addition, they seek discovery generally to “shed light on the government’s own determinations that most of the detainees have no connection to terrorism.” Id. at 15.

This discovery is unnecessary and inappropriate for three reasons. First, defendant has acknowledged its conclusion that some detainees are not currently of interest regarding the investigations emanating from the September 11 attacks. Moreover, Mr. Reynolds’ declarations sufficiently demonstrate that release of the information sought, even as to those detainees not currently of investigative interest, could harm the investigation, as well as put at risk the safety of the public and the detainees and threaten the privacy of the detainees, and therefore establish the validity of the government’s assertion of Exemption 7. Second, to the extent that plaintiffs’ request for discovery actually goes beyond the foregoing issues, into the connection between each detainee and terrorism, it is based on a misreading of Exemption 7. And, third, discovery into the government’s underlying investigative determinations regarding the link between the detainees and terrorism is in any event not permitted under FOIA.

1. Mr. Reynolds’ Declarations Establish That Release Of Information Even Regarding Those Detainees Who Have Been Determined Not To Be Of Current Interest Regarding The Investigations Emanating From The September 11 Attacks Could Harm The Investigations

That some of the detainees about whom information has been withheld include individuals not currently of investigative interest regarding the events of September 11 is not in dispute. See, e.g., Reynolds Dec. 16 & Exh. 6; Supp. Reynolds Dec. 3. What plaintiffs apparently dispute is the conclusion that releasing their names and other identifying information could nevertheless pose an unacceptable risk to the ongoing investigation or the public safety. However, Mr. Reynolds’ declarations sufficiently establish that release of the information sought, even as to those detainees not currently of investigative interest, could harm the investigation, as well as endanger the safety of the public and the safety of the detainees and threaten the privacy of the detainees. Further discovery on these issues is, therefore, not justified. Indeed, in making this argument, plaintiffs ignore the privacy and safety interests independently justifying withholding under Exemption 7(C) and 7(F). Unless those exemptions are first held inapplicable, discovery allegedly directed towards ascertaining the applicability of Exemption 7(A) is superfluous.

As Mr. Reynolds explains, even though some detainees may not themselves be of current interest with respect to the investigations emanating from the September 11 attacks, the same harms described in his original declaration at paragraphs 14?16 could occur if their names are disclosed. Supp. Reynolds Dec. 5-6. For example, disclosure of information regarding these detainees could inform terrorist organizations about what evidence law enforcement has obtained, or, just as importantly, has not obtained. Id. 6.

Disclosure could reveal important information about the direction, progress, focus and scope of the investigation, and thereby assist terrorist organizations in counteracting our investigative efforts. Id. For example, disclosing information about persons who are not currently the subject of investigative interest may inform terrorist organizations of routes of investigation that were followed but eventually abandoned. Id. Such information could provide insights into the past and current strategies and tactics of law enforcement agencies conducting the investigation. Id. Even confirmation of negative knowledge can be harmful to government efforts when battling a sophisticated foe. See Vosburgh v. IRS, 1994 WL 564699, *2 (D. Ore. 1994) (“Exemption 7(A) protects disclosure of the kinds of documents which could interfere with enforcement proceedings by exposing . . . the evidence that has and has not been gathered . . . .”), aff’d, 106 F.3d 411 (9th Cir. 1997) (Table); International Collision Specialists, Inc. v. IRS, 1994 WL 395310, *2 (D.N.J. 1994) (protecting against disclosure of information that would reveal “what information was and was not in the possession of the IRS” and “would also reveal the strengths and weaknesses of the IRS’s case”).

Disclosure could also reveal investigative methods, sources, and witnesses. Supp. Reynolds Dec. 6. In addition, the detainees about whom information is disclosed could be subjected to intimidation or harm, thereby discouraging or preventing them from supplying valuable information or leads in the future. Id. Disclosure could deter these individuals from cooperating with the Department of Justice after they are released from custody for fear of retaliation by terrorist organizations against them or their family members and associates. Id.

Finally, because the investigation is fluid and evolving, the significance of a given detainee may change over time. Supp. Reynolds Dec. 7. For example, at least one detainee who had been determined to be of no investigative interest was later returned to the active interest category after a reevaluation by law enforcement components involved in the investigation. Id.

The Reynolds declarations provide a more than adequate record to explain both the status of the class of detainees who have been determined to be no longer of investigative interest, and the link between information withheld concerning them and the threat of harms to the ongoing terrorism investigation, or to the public safety or to the safety and privacy of the detainees. Discovery is therefore both unnecessary and inappropriate. Plaintiffs are free to dispute the legal sufficiency of defendant’s showing in this regard, but that is a merits issue addressed properly through briefing on the pending summary judgment motion, not discovery. See note 3 supra.

Plaintiffs also have no legitimate need under the FOIA for the specific information they request regarding numbers of detainees in certain categories, such as the specific numbers of individuals cleared for voluntary departure, released from custody, or certified pursuant to Public Law No. 107-56. The Reynolds declarations establish that, regardless of their status, release of information about the detainees may cause the harms Exemption 7 of the FOIA was intended to protect against. Further information regarding the exact number of detainees in each category is simply irrelevant to determining the applicability of this Exemption.

2. Exemption 7(A) Does Not Require Defendant To Establish The Existence Of A Connection Between Each Detainee
And Terrorism

As an initial matter, plaintiffs fundamentally misconceive the function of a criminal investigation when they suggest that the September 11 investigations have partially resulted in a conclusion that some detainees have “no connection” to terrorism. As the Reynolds declarations indicate, Reynolds Dec. 4; Supp. Reynolds Dec. 2-5, and common sense dictates, the purpose of such an investigation is not to “clear” suspects, and that is not the effect of a determination, necessary an interim one, that someone is not currently of investigative interest. Rather, such a judgment merely indicates that insufficient evidence exists, at a particular point in time, to associate an individual with criminal activities. This is a far cry from a conclusion that a detainee has “no connection” to terrorism.

In addition, there are logical errors in plaintiffs’ reasoning that they need information regarding the connection between each detainee and terrorism. Plaintiffs assert that they need this information because the applicability of Exemption 7(A) relies on “information establishing some connection between each detainee and terrorism.” Pls’ Stay Mtn. at 12. They contend that “[i]t is logically essential to the government’s assertions about the harms to its investigation and enforcement activities that could result from disclosure of identifying information about the detainees that the detainees are individuals involved in terrorism or having knowledge about terrorism.” Id. at 15. Plaintiffs’ assertions, however, are incorrect.

First, Exemption 7(A) does not require defendant to show a connection between each detainee and terrorism, but rather between the type of information about the detainees being withheld and possible harm to the terrorism investigation, or to future law enforcement proceedings. Specifically, Exemption 7(A) requires that defendant show that disclosure of the information about the detainees “could reasonably be expected to interfere with law enforcement proceedings.” 5 U.S.C. § 552(a)(7)(A); see North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989) (the agency must demonstrate that disclosure would “disrupt, impede, or otherwise harm the enforcement proceeding”). As explained above, Mr. Reynolds’ declarations establish that even disclosure of information about detainees who have been determined to be of no investigative interest regarding the September 11 attacks could potentially harm the investigation in several ways. Each of these harms can be established without establishing the existence of a connection between each detainee and terrorism.

It is also not necessary for the government to establish how release of information about each individual detainee is harmful. It is well established that an agency may make “generic determinations” of the applicability of Exemption 7(A), i.e., that “with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records . . . would generally ‘interfere with enforcement proceedings.’” Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978)). “[A]n agency is permitted to withhold records under Exemption 7(A) on a categorical basis and establish a generic showing of interference, rather than an individual showing of interference.” Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C. 1997), aff’d, 172 F.3d 919 (D.C. Cir. 1998) (Table); see also United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989) (“Our cases provide support for the proposition that categorical decisions may be appropriate and individual circumstances disregarded” in Exemption 7(C) cases.).

Plaintiffs cite also the wrong standard for Exemption 7 in attempting to justify discovery, stating that “the agency must show that release of the material will result in one of the harms specified in the statute.” Pls’ Stay Mtn. at 6 (emphasis supplied). In fact, the FOIA was amended in 1986 (after the cases cited by plaintiffs, such as FBI v. Abramson, 456 U.S. 615 (1982)), to lessen the showing required. Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207-48 (1986). At present, with regard to exemptions 7(A), 7(C), and 7(F), the FOIA requires only that a defendant establish that disclosure “could reasonably be expected” to create the harm specified. 5 U.S.C. § 552(b)(7)(A), (C), (F). Under this standard, defendant does not need to establish that the predicted harms will follow or that they ever have followed, only that they are reasonably likely. In short, FOIA Exemption 7(A) simply does not require defendant to establish that “the detainees are individuals involved in terrorism or having knowledge about terrorism,” as plaintiffs assert. Under Rule 56(f), plaintiffs must show that discovery will provide them with specific material facts that are “essential” to defeat the government’s summary judgment motion. Fed. R. Civ. P. 56(f). The connection between each detainee and terrorism is not an essential, material fact in this case, and therefore discovery on this issue is unnecessary.

3. Discovery On The Government’s Determinations Regarding Each Detainee’s “Connection To Terrorism” Would Be An
Improper End Run Around FOIA

Finally, to the extent that plaintiffs seek discovery generally to “shed light on the government’s own determinations that most of the detainees have no connection to terrorism,” Pls’ Stay Mtn. at 15, such discovery is not permitted under FOIA. Allowing discovery into the facts connecting each detainee to terrorism and the government’s decisions regarding these facts would allow plaintiffs access to the very information that the government claims is exempt and hence improperly attempts an end run around the FOIA. See Public Citizen Health Research Group v. FDA, 997 F. Supp. 56, 73 (D.D.C. 1998) (plaintiff’s attempt to obtain through discovery “precisely that which is at issue in the FOIA suit itself . . . is clearly improper”), aff’d in part, rev’d in part on other grounds, 185 F.3d 898 (D.C. Cir. 1999); see also Military Audit Project, 656 F.2d at 751 (denying discovery in case involving classified materials, on ground that “more detailed information [about the government’s position] itself may compromise intelligence methods and sources”). Moreover, “the thought processes of the agency in deciding to claim a particular FOIA exemption . . . constitute[] predecisional thought processes of agency officials. They are protected from disclosure by United States v. Morgan, 313 U.S. 409, 422 (1941).” Murphy v. FBI, 490 F. Supp. 1134, 1136 (D.D.C. 1980).

B. DISCOVERY INTO THE ADEQUACY OF DEFENDANT’S FOIA RESPONSE IS NOT NECESSARY AND, IN ANY EVENT, THE ADDITIONAL DECLARATIONS SUBMITTED HEREWITH ADDRESS PLAINTIFFS’ QUESTIONS REGARDING THE NUMBERS OF DETAINEES

Plaintiffs also seek discovery to clarify certain alleged factual discrepancies regarding the numbers of detainees. As indicated above, these numbers are irrelevant to determining the applicability of the exemptions, and the requested discovery is therefore unnecessary. In addition, discrepancies and errors in the numbers of detainees do not establish a need to conduct discovery into the adequacy of the agency’s search or FOIA response, particularly where, as here, the agency has submitted supplemental affidavits and released additional information to address these questions.

As explained above, it is well established that “discovery is not typically a part of FOIA . . . cases.” Broadrick, 139 F. Supp. 2d at 55 (citing Goland). In those few cases where the courts have permitted discovery following the agency’s filing of its summary judgment motion and declarations, that discovery is generally limited to the adequacy of the agency’s search or the completeness of the agency’s index. See Bureau of Nat’l Affairs, Inc. v. IRS, 24 F. Supp. 2d 90, 91 (D.D.C. 1998) (“Once the motion for summary judgment is filed, accompanied by the Vaughn index . . . discovery in a FOIA case is restricted and should be permitted only if limited to, for example, the scope of the agency’s search for documents.”); Billington, 11 F. Supp. 2d at 72 (“Discovery is generally limited to the scope of an agency’s search.”); Public Citizen Health Research Group, 997 F. Supp. at 72 (“Typically, [FOIA discovery] is limited to investigating the scope of the agency search for responsive documents, the agency’s indexing procedures, and the like.”).

Apparently recognizing these principles, plaintiffs attempt to justify their asserted need for discovery by arguing that the alleged numerical discrepancies that they may have culled from various public releases issued over a period of several months raise questions as to the adequacy of defendant’s FOIA response. Specifically, plaintiffs argue that discovery into the adequacy of defendant’s FOIA response is necessary because “[t]here are . . . reasons to believe that defendant’s FOIA response is not even complete, as the government’s response gives no accounting whatsoever of hundreds of people whom the Justice Department has announced have been detained.” Pls’ Stay Mtn. at 17. Plaintiffs also cite “apparent discrepancies, inconsistencies or omissions” between public statements regarding the numbers of detainees and defendant’s submissions in this case as evidence that the FOIA response is “inaccurate and incomplete.” Id. at 17-20.

The allegation that there are “hundreds of people” unaccounted for is simply untrue. As Mr. Reynolds explains in his Supplemental Declaration, the numbers of “detainees” cited in early reports included individuals that were later omitted from the public releases. Reynolds Supp. Dec. 2. Specifically, DOJ attempted at one time to publicly release a count of all persons contacted by law enforcement in connection with the attacks, even if they were just briefly stopped. Id. However, it eventually became clear that this system was impractical. Id. DOJ then concluded that it was better to focus on the individuals who were formally taken into custody because they were believed to have violated federal criminal law or the immigration laws, or were believed to have information material to grand jury investigations into the events of September 11. Id. Thus, later Justice Department releases provide smaller numbers because those numbers exclude persons who no longer meet the Department’s definition of “detainee.”

The alleged inconsistencies and inaccuracies identified by plaintiffs also do not establish that the agency’s FOIA search and response are inadequate, nor do they justify discovery. First, as Mr. Reynolds explains, the numbers of “detainees” cited in various public releases are necessarily fluid, both because the use of the word “detainee” is not always consistent and because people are released and new people arrested as the investigation progresses. Supp. Reynolds Dec. 3-4. On any given day since September 11, the FBI has followed leads which may have resulted in the apprehension of additional individuals suspected of connections to terrorism. Id. 3. By the same token, persons believed not to be of current investigative interest may have been released from custody or deported. Id. Similarly, the total number of persons charged with federal crimes in the aftermath of the September 11 attacks will vary over time, sometimes from day to day. Id. 4. For these reasons, and because public officials have used different sets of numbers, and different definitions of the term “detainee” over time, comparisons of public statements by various officials about the total number of detainees is bound to produce different, and imprecise, numbers. Id. 3-4. The differing numbers cited in plaintiffs’ brief are a function of these factors.

In addition, given the dynamic nature and nationwide scope of the investigation, defendant’s accounting for the detainees is understandably susceptible to such minor mishaps as clerical errors, inadvertent misstatements, and accidental miscalculations. Mr. Reynolds addresses certain technical errors in his Supplemental Declaration and releases a corrected list of detainees. Supp. Reynolds Dec. 8 & Amended Exh. 5; see also Amended Exh. 6. These minor, inadvertent numerical discrepancies do not, however, constitute evidence of government wrongdoing nor do they justify discovery, particularly given defendant’s corrections and supplemental release of information.

In a FOIA case, the agency’s affidavits or declarations are entitled to a presumption of good faith. See Carney, 19 F.3d at 812; see also Kay v. FCC, 976 F. Supp. at 33 (agency affidavits “generally enjoy a presumption of good faith”) (citing Carter v. United States Dep’t of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987)). Discovery is not appropriate as long as the court is satisfied that these affidavits are sufficiently detailed and submitted in good faith. Billington, 11 F. Supp. 2d at 72. Supplemental affidavits are accorded the usual “presumption of good faith” due an agency’s affidavits, even if they correct prior affidavits. See SafeCard Servs., Inc., v. SEC, 926 F. 2d 1197, 1202 (D.C. Cir. 1991) (an “apparent mix-up and a small collection of other technical failings support neither the allegation that the SEC’s search procedures were inadequate, nor an inference that it acted in bad faith”); see also Broadrick, 139 F. Supp. 2d at 62 (“an agency’s efforts to correct or update the record should not be viewed as an indication of unreliability”); Billington 11 F. Supp. 2d at 72 (“one error does not constitute bad faith”). Indeed, submission of supplemental affidavits is the usual procedure when an agency’s initial Vaughn indices or declarations may be insufficient, in lieu of immediately resorting to in camera inspection or discovery. See, e.g., Paisley v. CIA, 712 F.2d 686, 690 (D.C. Cir. 1983) (district court ordered supplemental Vaughn indices), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984); Public Citizen, Inc. v. Department of State, 100 F. Supp. 2d 10, 29 (D.D.C. 2000) (ordering agency to submit an additional affidavit to cure deficiencies), aff’d in part, reversed in part on other grounds, 276 F.3d 634 (D.C. Cir. 2002); Billington, 11 F. Supp. 2d at 67 (same); see also PHE, Inc. v. Department of Justice, 983 F.2d 248, 253 (D.D.C. 1993) (where affidavit was “too vague and conclusory,” remanding to district court for a determination “whether to require a more illuminating affidavit or to conduct an in camera review of the material . . . withheld” but noting that “in camera review is generally disfavored”). These presumptions apply here; Mr. Reynolds’ declarations do not evince any governmental “bad faith” and are sufficiently detailed to support the exemptions.

Plaintiffs contend that discovery is necessary because this case raises “questions relating to potential governmental impropriety” concerning the treatment of the detainees. Pls’ Stay Mem. at 20. While the government strongly disagrees with plaintiffs’ characterization of its terrorism investigation, it respectfully submits that plaintiffs misconstrue the circumstances under which evidence of “collateral” bad faith, as opposed to bad faith involved in responding to the FOIA requests, justifies discovery in a FOIA case. As the case cited by plaintiff, Rugiero v. United States Dep’t of Justice, 257 F.3d 534 (6th Cir.), petition for cert. filed (Dec. 6, 2001) (No. 01-907), makes clear, a FOIA case is solely about the validity of the government’s decisions to withhold certain documents. It is not a vehicle for exploring the governmental policies or practices that resulted in the creation of those documents, and a plaintiff should therefore not be allowed to conduct such an exploration into those policies or practices, no matter how inflammatory the allegations of misconduct in connection with these underlying activities may be.

In Rugiero, the Sixth Circuit explained that using “collateral” bad faith to undermine the government’s affidavits in a FOIA case is “unusual” and such bad faith would be judged “according to a very high standard that would infrequently be met.” 257 F.3d at 547. Indeed, the Rugiero court declined to overcome the presumption of good faith and denied plaintiff’s request for in camera review. Id. Plaintiffs do not meet this high standard here. Plaintiffs do not provide a single shred of admissible evidence regarding the underlying allegations concerning the government’s treatment of the detainees. And, as is more relevant here, nothing plaintiffs have submitted (their newspaper articles and hearsay reports) provides a basis to call into question the good faith of Mr. Reynolds.

Finally, the cases cited by plaintiffs in which discovery was allowed do not suggest that discovery should be allowed here. In those cases, discovery was allowed for certain, very specific, limited purposes relating to the nature of the documents themselves or the circumstances of their creation, such as to determine whether the documents in question were in fact marked confidential, Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974), to ascertain whether the documents were “personal papers” of a government official, American Broadcasting Cos. v. United States Info. Agency, 599 F. Supp. 765, 769 (D.D.C. 1984), or to determine whether the information in the documents had been obtained under an implied promise of confidentiality. Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C. Cir. 1981). Plaintiffs have not established any similar circumstances here.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for a stay of proceedings to take discovery should be denied.

Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

ROSCOE C. HOWARD, JR.
United States Attorney

DAVID J. ANDERSON
ANNE L. WEISMANN (D.C. Bar No. 298190)
LISA A. OLSON (D.C. Bar No. 384266)
CAROL FEDERIGHI
U.S. Department of Justice
Civil Division, Room 1052
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514?5633
Facsimile: (202) 616?8470
E?mail: lisa.olson@usdoj.gov

Dated: February 5, 2002 Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that, on February 5, 2002, copies of the foregoing Defendant’s Opposition To Plaintiffs’ Motion To Stay Proceedings On Defendant’s Summary Judgment Motion Pending Discovery, the attached Supplemental Declaration of James S. Reynolds, and a proposed Order were served by facsimile and by first?class mail, postage prepaid, upon plaintiffs’ counsel as follows:

David L. Sobel, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
fax: (202) 483?1248

Arthur B. Spitzer, Esq.
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
fax: (202) 452?1868

Kate Martin, Esq.
Center for National Security Studies
2130 H Street, N.W. S. 701
Washington, D.C. 20037
fax: (202) 994?7005

Steven R. Shapiro, Esq.
Lucan Guttentag, Esq.
American Civil Liberties Union Foundation
125 Broad Street
New York, N.Y. 10004
fax: (212) 549?2651

Elliot M. Mincberg, Esq.
People for the American Way Foundation
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
fax: (202) 293?2672

__________________________
CAROL FEDERIGHI

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