UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL COUNSEL BUREAU and PILLSBURY, WINTHROP, SHAW, PITTMAN, LLP,

Plaintiffs, v. Civil Action No. 08-1063 (JDB) UNITED STATES DEPARTMENT OF DEFENSE,

Defendant.

MEMORANDUM OPINION

Plaintiffs International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP,

bring this action against the United States Department of Defense pursuant to the Freedom of

Information Act, 5 U.S.C. 552 et seq., seeking records pertaining to four individuals detained at

Guantanamo Bay Naval Base, Cuba. Plaintiffs pursue two FOIA requests. The first seeks

medical records on behalf of Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al

Kandari. The second seeks video, photographic and other recorded documents depicting Fawzi

Khaled Abdullah Fahad Al Odah, Khalid Abdullah Misha'al Al Mutairi, Al Rabiah or Al

Kandari. Now before the Court are the defendant's motion for summary judgment and the

plaintiffs' motion for partial summary judgment and for Rule 56(f) discovery. At issue is whether

the scope of the government's search for records was adequate and whether the government

properly withheld the records it did find.1

1 Plaintiffs "do not object to the scope of the government's search for or disclosure of medical records in response" to the request for medical records, conceding that summary judgment for the government is appropriate on that request. Pl.'s Mem. of P. & A. in Supp. of BACKGROUND

In March 2008, plaintiffs submitted a FOIA request to the Defense Department seeking

records of four Kuwaiti citizens detained at Guantanamo: Fawzi Khaled Abdullah Fahad Al

Odah, Khalid Abdullah Misha'al Al-Mutairi, Fouad Mahmoud Al Rabiah and Fayiz Mohammed

Ahmed Al Kandari ("Kuwaiti Detainees"). See Am. Compl. ¶¶ 1-2, 4. Plaintiffs requested

any recording, including any image, photograph, picture, film, drawing, painting, video, videotape, tape recording, audiotape, CD, or DVD, depicting or reflecting the image, likeness, voice, audible action, or any other aspect or activity of any [Kuwaiti Detainee].

Compl., Ex. A at 1.

Following a search of its records, the Defense Department located fifty-nine photographs,

forty-five videos and one audiotape responsive to plaintiffs' request. See Def.'s Mem. of P. & A.

in Supp. of its Mot. for Summ. J. ("Def.'s Mem.") at 2; Def.'s Mem., Ex. 1, Decl. of Brig. General

Rafael O'Ferrall re: Imagery ("O'Ferrall Decl.") ¶ 7-9. The Department withheld these records in

their entirety, citing four exemptions to FOIA's general rule of disclosure. See O'Ferrall Decl. ¶

11. The Department also determined that it would be impractical to segregate any non-exempt

information from the exempt information. See id. ¶ 34.

The Defense Department has moved for summary judgment with respect to the adequacy

of its search for records, the propriety of the claimed exemptions and the efficacy of its

segregability determination. In support, it has submitted a Vaughn index, the O'Ferrall

Pl.'s Opp'n to Def.'s Mot. for Summ. J., Pl.'s Mot. for Partial Summ. J., and Pl.'s Rule 56(f) Mot. for Disc. ("Pl.'s Mem.") at n.2. Accordingly, this Court considers only plaintiffs' request for video, photographic and other recorded documents. Plaintiffs, however, continue to seek such materials to the extent they have been redacted from the produced medical records. Id. at 2.

-2- Declaration and the Declaration of Rear Admiral David M. Thomas, Jr.2 Plaintiffs challenge the

Department's motion for summary judgment, contending that the Department's submissions are

inadequate to satisfy its burden under FOIA. Plaintiffs instead conclude that the Court should

grant summary judgment in their favor; in the alternative, they request discovery under Rule

56(f).

STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

"if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material

facts are those that "might affect the outcome of the suit under the governing law." Anderson v.

Liberty Lobby, Inc.,

(1986). The movant bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

(1986). The party opposing a motion for summary judgment, however, "may not rely

merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or

as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed.

R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some

metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp.,

(1986). Any factual assertions in the movant's affidavits will be

2 Rear Admiral Thomas is the Commander of Joint Task Force-Guantanamo, which oversees the detention and interrogation of enemy combatants at Guantanamo. See Def.'s Combined Reply in Supp. of Mot. for Summ. J. and Opp'n to Pl.'s Cross Mot. for Partial Summ. J. ("Def.'s Reply"), Ex. 2, Declaration of Rear Admiral David M. Thomas, Jr. ("Thomas Decl.") ¶ 1. Brigadier General O'Ferrall is the Deputy Commander of the Joint Task Force. See O'Ferrall Decl. ¶ 1.

-3- accepted as being true unless the opposing party submits his own affidavits or other documentary

evidence contradicting the assertion. Neal v. Kelly,

(D.C. Cir. 1992).

FOIA requires a federal agency to release all records responsive to a proper request

except those protected from disclosure by one or more of nine enumerated exemptions set forth

at

(b). A district court is authorized "to enjoin [a federal] agency from

withholding agency records or to order the production of any agency records improperly withheld

from the complainant."

(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom

of the Press,

(1980). The agency has the burden of proving that "each

document that falls within the class requested either has been produced, is unidentifiable, or is

wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency,

(D.C. Cir. 1978), cert. denied,

(1980) (internal citation and

quotation omitted); see also Maydak v. Dep't of Justice,

(D.C. Cir. 2000) (the

government has the burden of proving each claimed FOIA exemption). The district court may

award summary judgment to an agency solely on the basis of information provided in affidavits

or declarations that describe "the documents and the justifications for nondisclosure with

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,

(D.C. Cir.

1981); see also Vaughn v. Rosen,

(D.C. Cir. 1973), cert. denied,

(1974).

-4- ANALYSIS

I. Adequacy of the Defense Department's Search for Responsive Records

To prevail on summary judgment when the adequacy of an agency's search is at issue,

"the defending agency must show beyond material doubt that it has conducted a search

reasonably calculated to uncover all relevant documents." Morely v. Central Intelligence

Agency,

(D.C. Cir. 2007) (internal quotations omitted). The agency is

required to set forth the search terms used and the search conducted, see Oglesby v. Dep't of

Army,

(D.C. Cir. 1990), as well as to describe the structure of the file systems

searched, see Church of Scientology v. Internal Revenue Service,

(D.C.

Cir. 1986), aff'd,

(1987). In adjudicating these issues, the court "may be warranted in

relying upon agency affidavits." Morley,

. But reliance is only appropriate

where the affidavits are "relatively detailed and non-conclusory, and . . . submitted in good faith."

SafeCard Servs., Inc. v. Securities & Exchange Comm'n,

(D.C. Cir. 1991)

(quotation omitted).

Plaintiffs challenge the Defense Department's motion for summary judgment as to the

scope of the Department's search, the search terms used, and the Department's description of its

file systems. The Court takes each point in turn.

A. Scope of the Search

Although a reasonable search does not require that "an agency search every record

system," "the agency cannot limit its search to only one record system if there are others that are

likely to turn up the information requested." Oglesby,

. In response to plaintiffs'

-5- FOIA request, the Defense Department searched the records of three components of Joint Task

Force-Guantanamo: the Joint Intelligence Group, the Joint Detention Group, and the Joint Task

Force's Operations Directorate. O'Ferrall Decl. ¶ 7-9; see also Thomas Decl. ¶ 22. According to

the Department, no other Joint Task Force component was "likely to have responsive information

because no other components make systematic use of the information" requested by plaintiffs.

O'Ferrall Decl. ¶ 10. Rear Admiral Thomas echoes this conclusion: "I have no reason to believe

that any other Joint Task Force office would have responsive records." Thomas Decl. ¶ 22. And

the Department argues that "[n]o other [Joint Task Force] components have authority for any

aspect of the ongoing housing, care, feeding or security of the detainees, nor do any other

components have responsibility for storing records relating to any of these areas." Def.'s Reply at

6. The Department therefore asserts it has satisfied its burden under FOIA.

Plaintiffs, for their part, contend that the Defense Department improperly limited its

search, and hence "failed to search for certain types of records that fell squarely within Plaintiffs'

FOIA request." Pl.'s Reply to Def.'s Opp'n to Pl.'s Cross Mot. for Partial Summ. J. ("Pl.'s Reply")

at 2; see also Pl.'s Mem. at 10 ("The O'Ferrall Declaration . . . demonstrates that the government

constructed its searches too narrowly."). For example, plaintiffs note that the Defense

Department audio recorded detainees' Combatant Status Review Tribunal ("CSRT") proceedings.

See Pl.'s Mem. at 14-15. And although at least two of the Kuwaiti Detainees participated in such

proceedings, plaintiffs suggest the Department failed to search for these records. Pl.'s Reply at 5-

6. Moreover, plaintiffs maintain that the government artificially limited the scope of the search it

did conduct by seeking records regarding only "housing, care, feeding or security of the

detainees." Pl.'s Reply, at 3; see also Thomas Decl. ¶ 22. "By limiting the scope of the search,"

-6- plaintiffs argue, "the government potentially missed numerous responsive documents." Pl.'s

Reply at 3.

Finally, plaintiffs suggest that publicly-available information confirms the existence of

other responsive records. They note, for example, that under the standard operating procedures

for the Guantanamo detention centers, the government is required to take and maintain

photographs of detainees engaged in hunger strikes. See Pl.'s Mem., Ex. 4b, Camp Delta

Standard Operating Procedures, 28 March 2003 § 19-8k. According to medical records, "at least

one of the Kuwaiti Detainees has gone on a hunger strike." Pl.'s Reply at 10. Nevertheless

plaintiffs assert "[t]here is no indication that the government searched the hunger strike photos

for images of this Kuwaiti Detainee." Id.

Although the Defense Department concedes it did not search for records of the CSRTs, it

asserts that "a DOD organization completely separate and distinct from [the Joint Task Force]"

maintains the records. Def.'s Reply at n.4. Further, according to the Department, these records

"are publically available, in transcript form." Id., at 13-14. The Department therefore concludes

that it was unnecessary to include these records in its search. Id. Finally, with regard to

plaintiffs' contention that the Defense Department did not search records required by Camp

Delta's Standard Operating Procedures, the Department offers that this information was either

maintained by the three components that were searched or "not recorded by [the Joint Task

Force.]" Thomas Decl. ¶ 28a-28h.3

3 The Defense Department does not respond to plaintiffs' assertion that it improperly limited its search to recordings documenting the "housing, care, feeding or security of the detainees."

-7- The Defense Department's search was inadequate. It did not search records maintained

by Defense Department components other than those within Joint Task Force-Guantanamo. See

Def.'s Reply, at n.4. Nor, apparently, did it search records of the Kuwaiti Detainees other than

those documenting housing, care, feeding or security.4 Plaintiffs' FOIA request was not limited

either to particular Defense Department components or to records documenting particular

activities. See Oglesby,

("[T]he agency cannot limit its search to only one record

system if there are others that are likely to turn up the information requested."). And plaintiffs'

request seeks "any recording" depicting the Kuwaiti Detainees. Compl., Ex. A at 1. The

Department is therefore incorrect that it need not produce audio or video recordings of CSRT

proceedings because transcripts are publicly available.

Hence, summary judgment is appropriate for plaintiffs on the adequacy of the scope of

the Defense Department's search. There is no genuine issue of material fact regarding the

Department's failure to search Defense Department components beyond Joint Task Force-

Guantanamo. Nor is there a genuine dispute that the Department's search for records

documenting only the Kuwaiti Detainees' housing, care, feeding or security was inappropriately

limited. The government will therefore be required to search records of the Defense Department

and its components for documents responsive to plaintiffs' FOIA request.5

4 At the very least, the Department did not explain why it only searched records relating to housing, care, feeding or security. 5 Because the Defense Department did not adequately search its records in response to plaintiffs' FOIA request, the Court need not address all of plaintiffs' arguments challenging the adequacy of the Department's search. Certainly, the Department must search the records of all Defense Department components likely to have relevant documents. See Weisberg v. Dep't of Justice,

(D.C. Cir. 1983) (search must be "reasonably calculated to uncover all relevant documents"). Additionally, the Court notes the Department's broad definition of

-8- B. Description of the Search Terms

When responding to a FOIA request, an agency must set "forth the search terms and the

type of search performed, and aver[] that all files likely to contain responsive materials (if such

records exist) were searched . . . ." Oglesby,

. In support of its inquiry, the

Defense Department has submitted two declarations explaining which search terms were used,

and why the terms were chosen. See, e.g., Thomas Decl. ¶ 25 (Joint Detention Group records

searched according to how they were indexed -- by inmate security number); id. at ¶ 23

(Operations Directorate records searched by detainee's name, country of origin, and inmate

security number); id. at ¶ 24 (Joint Intelligence Group records searched by detainee's name and

inmate security number). These declarations also explain why certain records were not searched.

See, e.g., id. at ¶ 6 (Joint Task Force's Security Directorate records not searched because they

were indexed by date; finding a particular detainee "would require knowledge of the exact date

and time that the detainee walked by a particular camera"); Def.'s Reply at 11 ("[T]here was no

feasible method to search [the Security Directorate files] for records responsive to Plaintiffs'

FOIA request.").

Although plaintiffs initially challenged the Department's "limited or undisclosed search

terms," see Pl.'s Mem. at 10-12, they largely dropped this challenge in response to the Thomas

Declaration. Nevertheless, plaintiffs maintain that the Department failed to adequately explain

why it did not search records that are not indexed by unique identifying information, such as

"Forced Cell Extraction," which the Department suggests limits the number of potentially responsive documents. See Def.'s Reply at 14. Plaintiffs contend that Camp Delta's Standard Operating Procedures do not support this definition. See Pl.'s Reply at 9. The Court believes the Department's new search will resolve any concerns raised by the Department's definition.

-9- inmate security number and name. See Pl.'s Reply at 3-4. Specifically, plaintiffs assert that the

"government provides no detail on the volume of this material or any real estimate of the time or

cost that it would incur in reviewing the tapes." Id. at 4. Accordingly, plaintiffs assert, the

government "cannot claim it conducted an adequate search." Id. (citing Schrecker v. Dep't of

Justice,

(D.C. Cir. 2001)).

Plaintiffs are correct. The Defense Department, by not providing any detail on whether a

search of records indexed by date would be "unduly burdensome," has failed to demonstrate the

reasonableness of its search terms. See Schrecker,

. Although the Department's

claim of infeasibility as to records indexed by date may well be correct, the Court cannot credit

this bare assertion. The Department therefore must either search these records or demonstrate

why it would be impractical to do so.

C. Description of the Agency's File System

Finally, for a FOIA search to be reasonable, the agency must also "identify the searched

files and describe at least generally the structure of the agency's file system." Church of

Scientology,

. The Defense Department has satisfied this requirement. The

Thomas Declaration describes the structure of Joint Task Force-Guantanamo and the records

maintained by its offices and subordinate components. See Thomas Decl. ¶¶ 4-20; see also Def.'s

Reply at 6-13. And the declaration permits plaintiffs to evaluate the Defense Department's

assertion that only three components of the Joint Task Force maintain records responsive to

plaintiffs' request. This is sufficient for the government to carry its burden under FOIA. See

Oglesby,

; Church of Scientology,

. Indeed, plaintiffs largely

drop this challenge in their reply brief. The Court notes, however, that going forward, the

-10- Defense Department must fully describe the records it searches pursuant to the Court's order.

And it must use terms reasonably calculated to produce responsive records.

II. Propriety of Withholding Documents Under FOIA's Exemptions

The Defense Department has also moved for summary judgment on the propriety of its

withholdings under four of the statutory exemptions to FOIA's general rule of disclosure.

"[W]hen an agency seeks to withhold information, it must provide a relatively detailed

justification, specifically identifying the reasons why a particular exemption is relevant and

correlating those claims with the particular part of a withheld document to which they apply."

Morley,

. This justification -- a Vaughn index -- "must explain specifically

which of the nine statutory exemptions to FOIA's general rule of disclosure supports the agency's

decision to withhold a requested document or to delete information from a released document."

Founding Church of Scientology, Inc. v. Bell,

(D.C. Cir. 1979); see also

Vaughn,

. Therefore a "[c]ategorical description of redacted material coupled

with categorical indication of anticipated consequences of disclosure is clearly inadequate."

Morley,

.

The Defense Department has withheld video, photographic and other responsive records

pursuant to Exemptions 1, 2, 3 and 6.6 In support of its withholding, the Department submits a

one-page Vaughn index purportedly covering ninety-two records, and two declarations

describing generally the reasons for withholding the records. These submissions are inadequate.

The Department merely lists the asserted exemptions by document. The Department does not

6 The Defense Department subsequently withdrew its withholding of the photographs on Exemption 1 grounds. See Def.'s Reply at 3.

-11- "subdivide the document[s] under consideration into manageable parts cross-referenced to the

relevant portion of the government's justification." Vaughn,

. Nor does it

describe how the asserted exemptions apply to the withheld documents.

And the Department

does not consider unique documents separately; rather, it categorically applies each exemption to

groups of documents. Contra Morley,

. This Court cannot fairly assess the

propriety of the exemption claims because there is a dearth of "reasonably specific detail" about

how the exemptions apply to the documents as a whole. Casey,

.7

Nor are these deficiencies cured by the O'Ferrall Declaration and the Thomas Declaration.

Those declarations, like the Vaughn index, do not explain with the necessary detail how a

particular exemption supports the Department's decision to withhold a responsive document. See

Bell,

. Rather, the declarations simply assert, in general terms, the justifications

for withholding documents. See, e.g., Thomas Decl. ¶ 24 (release of audio recording "would risk

disclosing intelligence sources and methods, causing harm to national security"); O'Ferrall Decl.

¶ 28 (release of audio recording "would permit hostile entities to gain specific knowledge of the

operational methods employed in certain circumstances, which would provide them an

opportunity to develop countermeasures or resistence to tactics"); Id. at ¶ 27 (release of forced

cell extraction video "would permit hostile entities to gain specific knowledge of the operational

methods employed in certain circumstances, which would provide them an opportunity to

develop countermeasures or resistence to tactics"); Id. at ¶ 33 (forced cell extraction videos

7 This inadequacy is particularly evident when the Vaughn index for these records is compared to the Defense Department's Vaughn index for medical records, the latter of which encompasses twenty-four pages and outlines in detail what information has been withheld from each unique document. See Def.'s Mem., Ex. 1. Tellingly, plaintiffs did not object to that Vaughn index. See Pl.'s Mem. at n.2.

-12- "contain personally identifiable information of [extraction] team members"). Although the Court

can certainly imagine that the asserted justifications may be valid as to some of the withheld

records, it cannot conclude they are categorically valid as to all withheld records

None of the Department's justifications are more than "vague, broad [and] wholesale

claims of exempt status." Elec. Privacy Info. Ctr.v. Dep't of Justice,

(D.D.C. 2007). The Department does not, as required by Vaughn, marry a specific exemption

with a particular part of the withheld document. See PHE, Inc. v. Dep't of Justice,

(D.C. Cir. 1993) ("[A]n affidavit that contains merely a categorical description of redacted

materials coupled with categorical indication of anticipated consequences of disclosure is clearly

inadequate." (internal quotation omitted)). Hence, the Department has not provided this Court

with sufficiently detailed explanations of why the claimed exemptions are relevant, and

correlated, to the withheld records. See Morley,

.

Without this detail, the Court cannot assess the validity of the Defense Department's

claims of exemption. Accordingly, both parties' motions for summary judgment will be denied

without prejudice as to the exemption claims. If the Department wishes to maintain its

exemption claims, it must supplement its Vaughn submission.8 In doing so, the Department

should be mindful of its duty to segregate all non-exempt material -- an issue not adequately

addressed through its current Vaughn submission.

8 Of course, if the Defense Department wishes to withhold documents found pursuant to the new search ordered here, it must submit a Vaughn index and accompanying declarations justifying the exemptions for those records as well.

-13- CONCLUSION For these reasons, plaintiffs' motion for partial summary judgment will be granted in part

and denied in part. Plaintiffs' motion will be granted with respect to the adequacy of the Defense

Department's search. The Department is required to conduct a new search of the records of the

Defense Department and its components for documents responsive to plaintiffs' FOIA request.

Both parties' motions will be denied without prejudice as to the Defense Department's exemption

claims. The Department's Vaughn index is inadequate and conclusory, and therefore this Court

cannot judge the propriety of the exemption claims. Finally, judgment will be entered in favor of

the Defense Department as to production of the medical records. A separate Order accompanies

this Memorandum Opinion.

/s/ John D. Bates JOHN D. BATES United States District Judge

Dated: September 25, 2009

-14-