01/17/2019 PLAINTIFF’S STATEMENT OF MATERIAL FACTS NOT IN DISPUTE AND RESPONSE TO DEFENDANT’S STATEMENT OF FACTS NOT IN DISPUTEI
IN THE UNITED
STATES DISTRICT COURT
FOR THE DISTRICT
OF COLUMBIA
PLAINTIFF’S STATEMENT OF MATERIAL FACTS NOT IN
DISPUTE AND RESPONSE TO DEFENDANT’S STATEMENT OF FACTS NOT
IN DISPUTE
Pursuant to Local Rule 7(h) of the Rules of the United
States District Court for the District of Columbia,
Plaintiff hereby submits the following statement of material
facts as to which Plaintiff contends there is no genuine
issue in connection with its cross-motion for summary
judgment, and Plaintiff's response to Defendant’s statement
of material facts. (ECF 10-4)
1.
Plaintiff
disputes that he submitted his FOIA requests on July 29,
2018. Plaintiff submitted his FOIA requests on June 29,
2018. The rest of the Defendant’s statement of material
facts in point 1 are not in dispute.
2.
Plaintiff
agrees that the matters set forth in 2 of Defendant’s
statement of material facts are not in dispute, but adds
that the Bush Library should have notified Plaintiff that it
might consider such records to be non-releasable under
12-year rules and enumerated PRA exemptions that it has
since advanced in litigation. He also calls the court’s
attention to the apparent lack of any NARA consultation with
the NSC before issuing a “Glomar” based on its own
uninformed speculation. Plaintiff notes that while John P.
Fitzpatrick is presently with the National Security Council,
he formerly worked in the National Archives and Records
Administration Information Security Oversight Office until
2016.
3.
Plaintiff
agrees that the matters set forth in 3 of Defendant’s
statement of material facts are not in dispute.
4.
Plaintiff
disputes Defendant assertions that George W. Bush
administration records may be unavailable for release until
January 2021 since an abundance of records was already
released in August of 2018. Plaintiff disputes Defendant
assertions that records requested by Plaintiff necessarily
fall into any designated PRA category, absent verifiable
NARA or in camera
review.
5.
Plaintiff
disputes that fact of the existence or nonexistence
of the requested records is in fact properly classified
pursuant to Executive Order 13,526 since the records may not
be classified given the provenance of their content and
their intended use,
absent verifiable NARA or
in camera review.
6.
Plaintiff
disputes that fact of the existence or nonexistence
of the requested records is in fact properly classified
pursuant to Executive Order 13526.
a.
Plaintiff
agrees that John Fitzpatrick is an original classification
authority. However, Plaintiff disputes any assertion that
Fitzpatrick can apply his authority to presidential
“ambiguity” records since he has not examined their
contents. It is also important to assert that while
Fitzpatrick may be an original classification authority, he
could not have been “the” original classification authority
responsible for any classification of the presidential
letters sought since he did not work for the NSC when the
letters sought were produced.
b.
Plaintiff
disputes that whether the requested records do or do
not exist the information is necessarily under the control
of the United States. Given their provenance and intended
use, existence of the letters is probably not under control
of the United States.
c.
Plaintiff disputes that the
information whether the requested records do or do not exist
pertains any more to the foreign relations of the United
States, more than, say, domestic politics, campaign
contributions, undue foreign influence and defrauding
taxpayers.
d.
Plaintiff disputes that the
information necessarily pertains to information provided to
the United States by a foreign government.
e.
Plaintiff
disputes that an original classification authority
determined, on the basis of any firsthand knowledge of the
documents requested, or familiarity with “ambiguity”
history, or records about it already properly released,
the fact whether or not the requested records exist
could reasonably be expected to result in damage to the
national security. History suggests the precise opposite.
f.
Plaintiff
disputes uninformed, inflated and specious descriptions of
damage to national security that is reasonably likely
to occur.
7.
Plaintiff
disputes that it is the role of a National Security Council
affidavit to determine the permissibility or
impermissibility of classification and FOIA exemptions in a
de novo court
proceeding. Plaintiff asserts that is the court’s role.
8.
Plaintiff
asserts the information requested is as specific as and
matches information previously officially released about the
U.S. acquiescence to the half-century old Israeli
“ambiguity” policy calling first for the U.S. to violate the
NPT and, more recently, the AECA.
9.
Plaintiff
asserts that FOIA and E.O. 13526 do not provide blanket
cover for “breaking the law” under the guise of government
secrecy.
10.
Plaintiff
asserts that NARA has yet to conduct a search for responsive
documents.
11.
Plaintiff
believes in camera
review of the letters would provide a necessary and
authoritative finding of whether the letters have original
classification markings and whether their contents fall into
any FOIA or PRA exemption.
In camera review
would provide a warranted check against rank speculation,
failures to properly research the context and relevant
history of the information sought, and blanket assertions
about their releasability. Given NARA’s associations with
Fitzgerald, in camera
review may be the only bona fide review outside the NARA
domain.
12.
Plaintiff
asserts, on the basis of concurrent related action, that
U.S. State Department input would not meaningfully
contribute to this legal proceeding.
Dated:
January 17, 2018
Respectfully submitted,
____________________________
Grant F. Smith
IRmep
info@IRmep.org
For process service:
Grant F. Smith c/o IRmep
1100 H St. NW Suite 840
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