UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RAFFI KHATCHADOURIAN,

Plaintiff,

v. Case No. 1:16-cv-311-RCL

DEFENSE INTELLIGENCE AGENCY, et al.,

Defendants.

MEMORANDUM OPINION

This case involves plaintiff Raffi Khatchadourian’s Freedom of Information Act (“FOIA”)

request for disclosure of records held by the Defense Intelligence Agency (“DIA”), a component

of the Department of Defense. Previously, this Court granted defendants’ motion for summary

judgment on some counts but denied on others so that defendants could supplement the record

concerning their segregability obligations under Exemptions 1, 3, and 5, and provide additional

explanation for certain withholdings under Exemptions 3 and 5. Khatchadourian v. Def. Intel.

Agency (Khatchadourian I),

, 97 (D.D.C. 2020). Now, defendants have

produced an updated Vaughn Index and segregability explanation and renew their motion for

summary judgment. Defs.’ Renewed Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 119.

Khatchadourian cross-moves for partial summary judgment, Pl.’s Renewed Mot. for Summ. J.

(“Pl.’s Mot.”), ECF No. 126, arguing that defendants’ subsequent disclosures indicate bad faith

and that numerous records remain improperly withheld. Both parties filed replies. Defs.’ Reply,

ECF No. 132; Pl.’s Reply, ECF No. 134. Upon consideration of the parties’ filings, the relevant

law, and the record herein, the Court will GRANT defendants’ motion for summary judgment and

DENY Khatchadourian’s motion for partial summary judgment.

1 I. BACKGROUND

The background of this case has been detailed in a previous memorandum opinion. See

Khatchadourian I, 453 F. Supp 3d at 63–65. Defendant DIA is a component of the Department of

Defense with a mission to “collect, analyze, and provide intelligence on the military capabilities

of foreign military forces.”

at 63 (quoting Decl. of Alesia Williams in Supp. of Defendants’

Mot. for Summ. J. (“Williams Decl.”) ¶ 3, ECF No. 64-1). In 2010, the Secretary of Defense

convened the Information Review Task Force (“IRTF”) within the DIA to conduct “a damage

assessment of one of the largest unauthorized leaks of U.S. government information in history”—

the WikiLeaks disclosure.

at 64–65. The IRTF completed a final report in 2011 that provided

a detailed analysis of the government information systems impacted by the leak.

.

Plaintiff Khatchadourian is a journalist seeking to report on the WikiLeaks disclosure.

. On February 16, 2012, he submitted a FOIA request to the DIA seeking three things:

1) Any documents relevant to the creation, scope, structure, and responsibilities of the IRTF;

2) Any conclusions, reports, or assessments (provisional and/ or final) that have been generated by the IRTF; and

3) Records of all previous FOIA requests for information pertinent to the IRTF.

See

; Pl.’s Statement of Material Facts ¶ 36, ECF No. 126-2. After receiving an

unsatisfactory response from defendants, Khatchadourian filed his complaint in this case on

February 22, 2016. Compl., ECF No. 1.

After litigation commenced, defendants conducted an additional search and identified 850

responsive records. Khatchadourian, 453 F. Supp. 3d at 65. Defendants withheld portions of the

records under Exemptions 1, 3, 5, 6, and 7. Id. Both parties moved for summary judgment. See

ECF Nos. 64 & 78.

2 On the first round of summary judgment, the Court granted defendants’ motion for

summary judgment with respect to the adequacy and scope of defendants’ search, the overall

adequacy of the Vaughn Index, and defendants’ Exemption 7 withholdings. Khatchadourian, 453

F. Supp. 3d at 96. 1 The Court found that “the records withheld under Exemption 1 contain

classified information,” and were properly withheld. Id. at 81. The Court also found that most

records under Exemption 3 were properly withheld, except for document V-106 and other

documents withheld pursuant to

, where the court required more information.

. But the Court identified issues with defendants’ segregability analysis and Exemption 5

withholdings.

The Court:

(1) ordered defendants to supplement the record regarding their segregability analysis with respect to withholdings under Exemption 1; (2) ordered defendants to supplement the record regarding their segregability analysis with respect to withholdings under Exemption 3; (3) ordered defendants to supplement the record regarding documents withheld under Exemption 3 pursuant to

; (4) ordered defendants to supplement the record regarding their segregability analysis with respect to withholdings under Exemption 5; and (5) ordered defendants to supplement the record regarding documents they withheld under the deliberative process privilege.

See

at 96–97.

After the Court’s memorandum opinion, defendants “initiated a 10-month renewed review

of the records” at issue in this case. Defs.’ Statement of Material Facts ¶ 1, ECF No. 120. Most of

the DIA personnel who participated in the previous FOIA process in this case had left DIA or

1 Khatchadourian did not challenge the Exemption 6 withholdings. See ECF No. 78-1.

3 “shifted to other roles,” so defendants instead undertook a “renewed review of the full universe of

documents withheld under Exemptions 1, 3, and 5.” Id. ¶ 3.

The DIA assigned new subject matter experts (“SMEs”) to conduct the first-line review.

Id. ¶ 4. For Exemption 1 withholdings, SMEs examined records “line-by-line” to determine

whether all portions marked as exempt were properly withheld under Exemption 1 as classified

documents. Id. ¶ 6. If a portion of the record withheld under Exemption 1 was labeled unclassified,

the SMEs sought to “determine[] whether that portion was in fact properly marked unclassified,

and if so, whether it contained meaningful information not inextricably intertwined with classified

information.” 2 Id. ¶ 7. If the SMEs determined that there was intelligible, non-inextricably

intertwined information, it was marked for potential release to plaintiffs. Id. ¶ 8. Then, DIA and

DOJ counsel, “along with FOIA-LIT personnel,” reviewed both the records and the SMEs’

notations of segregability determinations. Id. ¶ 9. Second-line reviewers then updated the Vaughn

Index. Id. ¶ 10.

For Exemption 3 withholdings, the SMEs on first-line review sought to determine whether

“any portion of the withheld information could be released without revealing intelligence sources

or methods protected under

(i), or information protected by

.” Id.

¶ 12. After reviewing the withholdings and deeming them proper, SMEs sought to determine

whether there was any intelligible, non-exempt information that could be segregated. Id. ¶ 15.

Then, like with Exemption 1, DIA and DOJ counsel reviewed each of the records in a second-line

2 Khatchadourian disputes a number of DIA’s factual explanations of its segregability process, arguing that they “blend factual assertions with legal argument.” See Pl.’s Statement of Material Facts ¶ 2 n.2. This Court disagrees that explanations of defendants’ segregability process are legal conclusions—especially given this Court’s previous mandate to further explain the segregability process. The DIA’s assertions of its process do not mean, however, that the “justifications [for withholding] are proper or that Defendants have satisfied their obligations under FOIA.” Id. ¶ 9.

4 review and updated the Vaughn Index. Id. ¶ 17. Second-line reviewers were in regular contact with

SMEs about their determinations. Id.

For withholdings under Exemption 5 and the deliberative process privilege, SMEs added

notations “regarding the context of the creation of documents marked as exempt as deliberative,

to support the basis for the predecisional and deliberative nature of the documents.” Id. ¶ 19. SMEs

also examined whether Exemption 5 withholdings were coextensive with other asserted

withholdings. Id. ¶ 20. If so, they did not send those portions of the documents for second-line

review. Id. ¶ 21. But documents withheld solely under Exemption 5 were sent for a second-line

review, similar to Exemptions 1 and 3. Id.

All told, defendants provided supplemental releases for “approximately 287 records” after

the renewed review. Pl.’s Statement of Material Facts ¶ 22. The DIA states that the supplemental

releases are largely “comprised of unclassified subject headers.” Defs.’ Statement of Material

Facts ¶ 23. Khatchadourian concedes that “some” unclassified subject headers were produced.

Pl.’s Statement of Material Facts ¶ 23.

Defendants’ motion for summary judgment includes a declaration from Steven Tumiski,

Chief of Records Management and Information Services for the DIA, who explains in detail the

basis behind withholdings under Exemptions 1, 3, and 5. See Decl. of Steven Tumiski (“Tumiski

Decl.”), ECF No. 119-1. This declaration includes detailed descriptions of individually challenged

documents. After Khatchadourian filed his motion for partial summary judgment, defendants filed

an additional declaration from the Director of the Information Management and Compliance

Office, Brentin Evitt, who provides further explanation about the withholdings that

Khatchadourian challenges. See Decl. of Brentin Evitt (“Evitt Decl.”), ECF No. 133-1.

5 The record also includes a declaration from Adam Marshall, senior staff attorney at the

Reporters Committee for Freedom of the Press, in support of Khatchadourian’s motion for partial

summary judgment. See Decl. of Adam Marshall (“Marshall Decl.”), ECF No. 126-3. His

declaration is comprised of examples of documents disclosed to Khatchadourian after defendants’

renewed review. See id.

Defendants renewed their motion for summary judgment. Defs.’ Mot. 1. They argue that

the record before the Court regarding segregability and the Exemption 5 withholdings is “robust,”

and point to the “meticulous” second look undertaken by the DIA. Id. Since these were the only

issues left open after Khatchadourian I, defendants argue summary judgment is warranted.

Khatchadourian also moves for partial summary judgment. Pl.’s Mot. First, he counters that the

DIA’s subsequent disclosures indicate “bad faith.” Id. at 2. Second, he raises a smattering of

challenges to the withholdings of “numerous types of information, records, and categories

thereof.” Id. Both parties filed replies. Defs.’ Reply, ECF No. 132; Pl.’s Reply, ECF No. 134. The

parties’ renewed summary judgment motions are now ripe.

II. LEGAL STANDARDS

A. Freedom Of Information Act

FOIA requires the government to disclose certain records to anyone who requests them.

. Because FOIA mandates a “strong presumption in favor of disclosure,” Am. Civil

Liberties Union v. U.S. Dep’t of Justice,

(D.C. Cir. 2011), agencies may only

withhold records which fall under “one of nine delineated statutory exemptions.” Elliott v. U.S.

Dep’t of Agric.,

(D.C. Cir. 2010) (citing

(b)). An agency

withholding material under a FOIA exemption bears the burden of showing that the material falls

within the bounds of the asserted exemption. Khatchadourian I, 453 F. Supp. 3d. at 65.

6 B. Summary Judgment

Summary judgment is appropriate when there is “no genuine issue as to any material fact”

and “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

burden is placed on the party moving for summary judgment. Celotox Corp. v. Catrett,

(1986). Most FOIA cases are resolved at the summary judgment stage. Brayton v. Off. of

the U.S. Trade Representative,

(D.C. Cir. 2011). When a plaintiff challenges

certain agency withholdings, the agency is “entitled to summary judgment if no material facts are

in dispute and if it demonstrates that each document that falls within the class requested . . . is

wholly exempt from [FOIA’s] disclosure requirements.” Khatchadourian I, 453 F. Supp. 3d. at 65

(quoting Shapiro v. Dep’t of Justice,

(D.D.C. 2014)). An agency meets this

burden if “any combination of its Vaughn Index, affidavits, or declarations ‘describe the

justifications for nondisclosure with reasonably specific detail, demonstrate 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.’” Khatchadourian I, 453 F. Supp. 3d.

at 65 (quoting Larson v. Dep’t of State,

(D.C. Cir. 2009)).

FOIA mandates that all “reasonably segregable portion[s] of a record” be released, even if

a document includes exempt material.

(a)(3), (b). A court must “make specific

findings” as to whether a “reasonably segregable portion of a record” is non-exempt and releasable

“[b]efore approving the application of a FOIA exemption.” Khatchadourian I, 453 F. Supp. 3d. at

65 (quoting Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007)).

III. DISCUSSION

Defendants maintain that they have fulfilled their FOIA duties and released all reasonably

segregable portions of the record. Defs.’ Mot. 7. In response, Khatchadourian first argues that the

newly released information proves that defendants have acted in bad faith. Pl.’s Mot. 2. Then,

7 rather than attack defendants’ segregability process or withholdings broadly, Khatchadourian

raises a torrent of smaller arguments to pick holes in defendants’ withholdings.

9–31. But it is

Khatchadourian’s arguments that do not hold water. Defendants have also now provided a

“sufficiently detailed” explanation of their segregability analysis and their withholdings under

Exemption 5. Sack v. CIA,

(D.D.C. 2014). They are entitled to summary

judgment.

The Court will first address Khatchadourian’s bad faith argument. Next, the Court will

evaluate defendants’ Exemptions 1 and 3 segregability analyses in turn. Then the Court will

evaluate defendants’ withholdings under Exemption 5. Last, the Court will address

Khatchadourian’s two short arguments related to Exemption 7 and the names of senior IRTF

leadership.

A. Defendants Did Not Act In Bad Faith

After this Court denied summary judgment in Khatchadourian I, the DIA took the

opportunity for a “renewed review of the full universe of documents withheld under Exemptions

1, 3, and 5.” Defs.’ Statement of Material Facts ¶ 3; Pl.’s Statement of Material Facts ¶ 3. As a

result of this renewed review, Defs.’ Statement of Material Facts ¶ 4, defendants provided

supplemental releases for “approximately 287 records,” Pl.’s Statement of Material Facts ¶ 22.

Khatchadourian argues that this extensive rehaul of the process, far from indicating DIA’s

commitment to FOIA compliance, is evidence of bad faith. Pl.’s Mot. 5. This Court does not agree.

In this Circuit, courts “decline[] to find subsequent disclosure as evidence of bad faith”

because to “effectively penalize an agency for voluntarily declassifying documents would work

mischief by creating an incentive against disclosure.” Pub. Citizen v. Dep’t of State,

(D.C. Cir. 2002). That is what Khatchadourian asks this Court to do. Khatchadourian proffers

8 a number of documents or portions of documents it maintains DIA previously improperly withheld

as evidence of bad faith. Pl.’s Mot. 6–7. But the cases on which Khatchadourian relies are not like

this one. For example, in Citizens for Responsibility & Ethics in Washington v. United States

Department of Justice the court conducted an in camera review and found unexempted material.

See

, 143 (D.D.C. 2021). Here, defendants engaged in an unprompted second-

round review and produced these documents on their own accord. Khatchadourian’s argument is

not just unsupported by the record in this case. It would also create the perverse incentive against

subsequent disclosure by agencies that the D.C. Circuit has instructed this Court to avoid.

Indeed, the Court previously rejected bad-faith arguments of the sort Khatchadourian

makes here. As the Court previously explained in Khatchadourian I:

‘[P]laintiff suggests that inconsistent applications of redactions demonstrates bad faith. It is important to note, however, that the agency reviewed the [document] twice. When it was reviewed for the second time (three years later), FOIA exemptions were applied differently. This is bound to happen when large numbers of records are reviewed three years apart, and it is insufficient to show bad faith.

Khatchadourian I, 453 F. Supp. 3d at 80.

B. The Defendants Are Entitled To Summary Judgment On Exemption 1

In Khatchadourian I, this Court held that defendants “met their burden to show that the

records withheld under Exemption 1 contain classified information” but submitted only a

“conclusory” segregability analysis that was insufficient to demonstrate adequate segregability.

Id. at 79, 81. Now, defendants proffer a more detailed process for this Court’s review. Defs.’ Mot.

7–9. Khatchadourian, in response, challenges three types of records he claims are still improperly

withheld. Pl.’s Mot. 9, 15, 19. While Khatchadourian pays lip service to the segregability analysis,

in reality he challenges defendants’ withholdings—which this Court has already determined are

9 proper. The Court finds that the newly described segregability analysis demonstrates adequate

segregability and rejects Khatchadourian’s challenges.

Exemption 1 protects from disclosure any information classified “under criteria established

by an Executive order to be kept secret in the interest of national defense or foreign policy” that

“[is] in fact properly classified pursuant to such Executive order.”

(b)(1). In this

case, “the current, operative Executive Order is Executive Order 13526.” Khatchadourian I, 453

F.3d at 75. Executive Order 13526 allowed classification if four conditions are met:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

Exec. Order No. 13,526 § 1.1(a),

(Dec. 29, 2009). When issues of national

security are involved in a FOIA dispute, a court “must accord substantial weight to an agency’s

affidavit concerning details of the classified status of the disputed record.” Am. Civil Liberties

Union v. U.S. Dep’t of Defense,

(D.C. Cir. 2011).

1. Defendants Released All Reasonably Segregable Portions Of The Challenged Records

When portions of records contain classified information—as this Court has previously held

all records withheld under Exemption 1 do—non-classified portions of a document still “must be

disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v.

U.S. Dep’t of Air Force,

(D.C. Cir. 1977). It is the agency’s burden to show

10 with “reasonable specificity” the bases for its segregability determinations. Armstrong v. Exec.

Off. of the President,

(D.C. Cir. 1996). Still, the government is entitled to a

presumption that it “complied with the requirement to segregate non-exempt materials.” Sack v.

CIA,

(D.D.C. 2014).

While defendants’ previous segregability analysis was “conclusory” and lacking,

Khatchadourian, 453 F.3d at 81, their renewed explanation and Vaughn Index is sufficiently

detailed enough to fulfill their segregability burden. Defendants declared in each entry of their

Vaughn Index when no “reasonably segregable non-exempt portion of the document could be

released.” Sack,

. These individualized declarations are “sufficient to establish

that [the agency] fulfilled its obligation to segregate” when combined with “sufficiently detailed”

justifications for withholdings.

The D.C. Circuit has also approved of using affidavits to support a showing that a document

cannot be further segregated. Johnson v. Exec. Off. for U.S. Att’ys,

, 776 (D.C. Cir.

2002). The Circuit explained that

[The agency attorney] submitted a supplemental affidavit in order to further address the issue of segregability. In that statement, [the agency attorney] explained that she personally conducted a line-by- line review of each document withheld in full and determined that “no documents contained releasable information which could be reasonably segregated from the nonreleasable portions.” The combination of the Vaughn index and the affidavits of [two agency attorneys] are sufficient to fulfill the agency’s obligation to show with “reasonable specificity” why a document cannot be further segregated.

Id. at 776. Here, like in Johnson, two members of DIA’s staff have filed sworn affidavits including

extensive explanations of the multiple level, line-by-line review of each document. See Tumiski

Decl. ¶ 7–11; Evitt Decl. ¶ 12–20. Evitt even reviewed the records Khatchadourian challenges in

his motion for partial summary judgment yet again and provided more detail as to why the records

11 could not be further segregated. Evitt Decl. ¶ 12. With these new explanations of process,

defendants fulfilled their segregability requirements.

2. Khatchadourian’s Challenges To Defendants’ Exemption 1 Withholdings Fail

Khatchadourian’s arguments opposing defendants’ summary judgment motion do not

focus on particular exemptions. Instead, they focus on certain categories of information covered

by multiple exemptions. That can make them hard to follow. Khatchadourian focuses on three

types of information withheld under Exemption 1: (1) subject lines, (2) paragraphs withheld under

the heading “Expected Media Treatment,” and (3) information relating to Afghanistan. Pl.’s Mot.

12, 15, 19. But nowhere in his motion does Khatchadourian discuss the sufficiency of the renewed

segregability process—the issue remaining for Exemption 1. For that reason alone,

Khatchadourian’s arguments fail. And beyond the fact that Khatchadourian’s arguments are

foreclosed by this Court’s previous holding in Khatchadourian I, they are also baseless.

(i) Khatchadourian’s Challenges To Subject Line Withholdings Under Exemption 1

Khatchadourian proffers four examples to support his argument that subject lines are being

improperly withheld. Pl.’s Mot. 12–14 (identifying documents V-643, V-060, V-062, and V-120).

All are unmerited. For V-643, he notes that the unredacted classification marking is (U), indicating

“that the subject line is not, in fact, classified.” Id. at 12. But Evitt, reviewing the subject line again,

declared V-643 is “mismarked as unclassified” and “is in fact classified.” Evitt Decl. ¶ 16. 3

Khatchadourian notes documents where the subject line has been released, like V-062, and points

3 Khatchadourian argues that if information was mismarked, that means it was not properly originally classified under Executive Order 13526. Pl.’s Reply 10. But he “[has] not offered any reason to believe that the markings on these documents, even if incorrect, cast doubt on their classification.” Canning v. Dep’t of State,

(D.D.C. 2015). Defendants here “ha[ve] offered declarations attesting that the classification criteria in EO 13526 are satisfied.”

. They have explained that what happened here was a “marking error” and not a “classification decision.”

Absent more, mere admitted mismarking does not raise a genuine issue of material fact as to whether these documents are properly classified.

12 to the “peculiar” inconsistency of withholding some subject lines and not others without a

“particularized showing.” Pl.’s Mot. 13. But, as defendants note, “[t]here is no requirement to parse

a document with such particularity in a Vaughn Index that it address the rationale for withholding

each sentence.” Defs.’ Reply. 9. And, to this Court, releasing some subject lines and not others

indicates properly individualized segregability determinations, as opposed to blanket decisions.

Khatchadourian’s final two challenges to subject lines focus on whether their disclosure

could damage national security, a requirement for classification under Executive Order 13526.

§1.1(a). Citing V-060, Khatchadourian argues that he does understand how a subject line could

“cause harm” if released. Pl.’s Mot. 13. In response, the government explained that the subject line

in V-060 “discusses the covert intelligence activities of a foreign adversary,” Evitt Decl. ¶ 17.

Finally, Khatchadourian speculates that he could guess the redacted subject line of V-120 based

on the disclosed portions of the record, and argues that it is hard to see what “harm would result

from disclosing the subject line of a memo when the body of the memo demonstrates what it

concerns.” Pl.’s Mot. 14. Defendants explained that “revealing the fact that IRTF wrote an entire

classified memorandum about WikiLeaks issues with respect to one country may tend to reveal

the extent of U.S. vulnerabilities” with respect that country. Evitt Decl. ¶ 15. These explanations

indicate the possibility of significant harm to national security if released.

(ii) Khatchadourian’s Challenges To “Expected Media Treatment” Paragraphs Under Exemption 1

Khatchadourian’s arguments about “Expected Media Treatment” paragraphs also miss the

mark. These paragraphs are withheld portions of internal memoranda that fall under the disclosed

section header “Expected Media Treatment.” See, e.g., V-068. Khatchadourian first expresses

doubt paragraphs under the “Expected Media Treatment” header are classified because the

defendants released a single paragraph under an “Expected Media Treatment” header that was

13 marked unclassified. Pl.’s Mot. 16. This argument baffles. The fact that the defendants properly

released an unclassified portion of the document does not indicate that the portions they withheld

are also unclassified.

Second, Khatchadourian disputes that the paragraphs in question could “harm [] the

national defense or foreign relations of the United States,” as required for withholding under

Executive Order 13526. § 1.1(a); 6.1(l). But defendants explained that the paragraphs “tend to

reveal, at a granular level, the kinds of news media that the U.S. Government tracks within

particular countries, its candid assessments regarding the trustworthiness of or motivations behind

the reporting of particular news sources, and other information that would tend to reveal [the

government’s] sources and methods of collecting and synthesizing intelligence with respect to

news media.” Evitt Decl. ¶ 24. This affidavit “describes the justifications for withholding the

information with specific detail, demonstrates that the information withheld logically falls within

the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence

of the agency’s bad faith.” Khatchadourian I, 453 F. Supp. 3d at 76 (quoting Ctr. for Nat. Sec.

Studies v. U.S. Dep’t of Justice,

(D.C. Cir. 2003)). Defendants have fulfilled

their burden for withholding these portions of the record.

(iii) Khatchadourian’s Challenges In Light Of The Dissolution Of The Government Of Afghanistan

Finally, Khatchadourian argues that the harm requirement for classification under

Executive Order 13526 is at issue with “respect to some of the records withheld by [d]efendants

due to the dissolution of the government of Afghanistan.” Pl.’s Mot. 19. Citing an unpublished

opinion from another district, Khatchadourian asks the defendants to “evaluate and reevaluate

current international . . . conditions” in light of this regime change.

(quoting Hiken v. Dep’t of

Defense, No. 06-cv-2812 (MHP),

, at *4 (N.D. Cal. Feb. 3, 2012)). The war in

14 Afghanistan officially ended on August 30, 2021—near the end of defendants renewed review,

Evitt Decl. ¶ 28, and more than five years into this FOIA litigation. This Court will not “demand

that [defendants] undertake the Sisyphean task of checking that any exemptions properly applied

. . . remain valid now.” Shapiro v. Dep’t of Just., No. 12-cv-313 (BAH),

, at *19

(D.D.C. July 2, 2020). Plaintiff is more than welcome to file another FOIA request. He cannot cut

the line “based on post-response occurrences [that] could create an endless cycle of judicially

mandated reprocessing.” Bonner v. U.S. Dep’t of State,

(D.C. Cir. 1991).

C. The Defendants Are Entitled To Summary Judgment On Exemption 3

In Khatchadourian I, the Court found defendants’ Exemption 3 withholdings justified, with

the exception of certain records withheld under

.

. But the Court asked

for more information about the segregability analysis.

. Defendants have now provided

additional information about both the records withheld under

and the segregability

analysis. In response, Khatchadourian fails to challenge segregability, and instead again raises

issues with particular withholdings. Because this Court has already determined that documents are

properly withheld under Exemption 3—except for issues “which [Khatchadourian] no longer

challenges, such as . . . the propriety of withholding public news articles under

,”

Defs.’ Reply 7—this Court will only briefly address Khatchadourian’s arguments after evaluating

segregability.

FOIA’s Exemption 3 protects information that is “specifically exempted from disclosure

by statute.”

(b)(3). Defendants have relied on two such statutes. Khatchadourian I,

453 F. Supp. 3d at 85.

exempts from disclosure information regarding “the

organization or any function” of the DIA, “the number of persons employed by or assigned or

detailed to” the DIA and the “name, official title, occupational series, grade, or salary of any such

15 person.” § 424(a). In relevant part, 50 U.S.C. § 3024—the other statute in question—states that

the Director of National Intelligence “shall protect intelligence sources and methods from

unauthorized disclosure.” § 3024(i)(1). Section 3024 is a “‘near-blanket FOIA exemption’ which

covers public and non-public information because ‘bits and pieces of data may aid in piecing

together bits of other information even when the individual piece is not of obvious importance in

itself.’” Id. at 88 (quoting Leopold v. CIA,

(D.D.C. 2015)).

1. Defendants Fulfilled Their Segregability Requirements And Explained Their

Withholdings

Defendants have now properly fulfilled their segregability requirements for Exemption 3.

Like with Exemption 1, for Exemption 3 defendants declared “that [they] conducted a line-by-line

review for segregable information,” Sack,

, and detailed in their Vaughn Index

when no further information could be segregated. Courts in this district have held this is “sufficient

to establish that [the agency] fulfilled its obligation to segregate” when combined with

“sufficiently detailed” justifications for withholdings. Sack,

. Defendants

further detailed their extensive segregability process in an affidavit, which the Circuit has approved

of as fulfilling segregability requirements. Johnson, 310 F.3d at 776. Like for Exemption 1, this

Court finds that defendants have fulfilled their segregability requirements for Exemption 3.

As to the records withheld under § 424, defendants attest that the only information withheld

under § 424 are: employee names and contact information; office names, symbols, and similar

information; web addresses from certain internal DIA networks; names of countries or agencies

with which DIA shares intelligence; 4 information that would tend to reveal the number of

personnel and resources tasked to IRTF; information regarding upcoming focus areas for IRTF

4 This Court previously held that § 424 covered information regarding the “countries that DIA shares specific intelligence with” and “information about the other government agencies with which DIA shares information.” Khatchadourian I, 453 F. Supp. 3d at 86.

16 personnel; and information regarding the IRTF office space, building access, finances. Tumiski

Decl. ¶ 13. This Court agrees that each of these categories of information, if disclosed, would

“reveal DIA’s organizational structure” and so are appropriately withheld under

.

Khatchadourian I, 453 F. Supp. 3d at 86.

2. Khatchadourian’s Challenges To Defendants’ Exemption 3 Withholdings Fail

Khatchadourian challenges two types of information withheld under Exemption 3: subject

lines and “Expected Media Treatment” paragraphs. Pl.’s Mot. 14, 17–18. Setting aside the fact that

his challenges are foreclosed by this Court’s previous determinations, they also fail on the merits.

Khatchadourian first challenges subject lines withheld under Exemption 3 and,

specifically,

. Pl.’s Mot. 14. He argues that defendants have not provided an

explanation as to how § 3024 is implicated by redacted subject lines. Id. For example, he points to

V-048 and complains that the Vaughn Index “does not contain any information about what the

subject line contains or explain how release of that subject line, alone, would jeopardize

‘intelligence sources and methods.’” Id. But Khatchadourian point to no requirement that

defendants parse each document with such specificity. In any matter, defendants explain that “the

subject line of [V-048] relates to the Government’s assessment of the release of information from

a partner agency’s intelligence database, with respect to then-ongoing Iraq negotiations” and was

properly withheld as “related to intelligence sources and methods.” Evitt. Decl. ¶ 18. Absent

evidence of “bad faith” or “contrary evidence in the record,” this logical and specific affidavit

entitles defendants to summary judgment as to that document. Khatchadourian I,

. And while he buries it in a footnote, there is in fact evidence of good faith here: Khatchadourian

notes that other documents, like V-081 and V-082, have only portions of subject lines redacted

17 under

, with other words disclosed. Pl.’s Mot. 15 n.4. This indicates that

defendants undertook an individualized segregability analysis.

Khatchadourian’s next challenge is to “Expected Media Treatment” paragraphs, which

were often withheld based on a combination of both Exemption 1 and Exemption 3. Pl.’s Mot. 17–

18. This Court previously noted that a “pattern of collecting particular news sources or particular

types of stories could reveal a method of collecting intelligence” and thus could be withheld under

Exemption 3 pursuant to

(i). Khatchadourian I, 453 F. Supp. 3d at 88. Defendants

argue that discussions of potential media treatment tend to reveal what news media the government

tracks within a particular country and its individualized assessments of the motivations or

trustworthiness of international news sources. Evitt. Decl. ¶ 24. This “describes the justifications

for withholding the information with specific detail [and] demonstrates that the information

withheld logically fails within the claimed exemption.” Ctr. for Nat. Sec. Studies,

. 5

D. The Defendants Are Entitled To Summary Judgment On Exemption 5

In Khatchadourian I, the Court found that all records defendants withheld under Exemption

5 were inter- or intra-agency communications—the first requirement of Exemption 5. 453 F. Supp.

3d at 92. However, defendants did not fulfill their burden to prove that the records fit within the

deliberative process privilege, the recognized privilege defendants invoked. Id. Thus, unlike

Exemptions 1 and 3, for Exemption 5 the Court is not just evaluating the segregability process, but

5 Khatchadourian’s argument regarding “Expected Media Treatment” paragraphs withheld pursuant to

rely on pure speculation. Pl.’s Mot. 17. Khatchadourian argues that “employee names and contact information, as well as office names/symbols and similar information,” “the countries with which [DIA] shares intelligence,” or information that “would tent to reveal [DIA’s] agency partners”—information withheld under 10 U.S.C. § 424—are simply not the type of information that would appear under “Expected Media Treatment.” Id. He bases this solely on one disclosed “Expected Media Treatment” paragraph. This baseless guesswork is insufficient to overcome the weight courts are required to give to agency affidavits. Ctr. for Nat. Sec. Studies,

.

18 also the withholdings themselves. Khatchadourian challenges both a broad category of

withholdings under Exemption 5—Category C—as well as specific, individualized withholdings.

“FOIA’s Exemption 5 exempts from disclosure any ‘interagency or intra-agency’ records

which would otherwise be exempted from discovery in the context of civil litigation.”

Khatchadourian I, 453 F. Supp. 3d at 90 (citing

(b)(5)). “A record qualifies as

exempt only if: (1) its source is a government agency, and (2) it falls within the ambit of a privilege

against discovery under judicial standards that would govern litigation against the agency that

holds it.”

(internal quotation marks omitted).

1. Defendants Have Proven That Records Withheld Under Exemption 5 Fall Within the Deliberative Process Privilege

As this Court previously explained:

A record protected under [the deliberative process privilege] must be both “predecisional” and “deliberative.”

A record is predecisional if it was “generated before the adoption of an agency policy[.]”

A reviewing court’s task is not merely to determine the date of a decision and then the date of a relevant record to determine whether it is predecisional. Sierra Club v. U.S. Dep’t of Interior,

(D.D.C. 2004) (holding that such an approach is “simplistic”). A record generated after one decision can be the basis of another, future decision. See

Alternatively, a record post- dating a decision may still reflect predecisional information if it “recounts predecisional deliberations.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., No. 04-cv-1625 (PLF),

, at *7 (D.D.C. Dec. 22, 2006) (citation omitted). Whether a record is predecisional depends on a record’s context relative to particular agency decisions or series of decisions. See Conservation Force v. Jewell,

(D.D.C. 2014). It is the agency’s burden to “pinpoint” a particular decision or “sub-decision” which the record informed. Senate of P.R. v. U.S. Dep’t of Justice,

(D.C. Cir. 1987) (citation omitted); 100Reporters LLC [v. U.S. Dep’t of Just.], 248 F. Supp. 3d [115,] 153 [(D.D.C. 2017)]. An agency cannot merely point to an “umbrella process” if there are “subsidiary decisions” that a record informs. 100Reporters LLC, 248 F. Supp. 3d at 153.

A record is deliberative if it “reflects the give-and-take of the consultative process.” Coastal States Gas Corp., 617 F.2d at 866.

19 This covers “recommendations, draft documents, proposals, suggestions” and other documents that would “inaccurately reflect or prematurely disclose” the agency’s views. Id. Material that is “purely factual” cannot generally be withheld unless it reflects “exercise of discretion and judgment calls.” Ancient Coin Collectors Guild v. U.S. Dep’t of State,

(D.C. Cir. 2011) (citation omitted). The distinction between “purely factual” information and information reflecting agency deliberation is not always clear. Id.; see Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

(D.D.C. 2017). Courts in this Circuit therefore apply a “functional” approach to determine the applicability of the privilege in which “the legitimacy of withholding does not turn on whether the material is purely factual in nature or whether it is already in the public domain, but rather on whether the selection or organization of facts is part of an agency’s deliberative process.” Hardy,

(quoting Ancient Coin Collectors Guild,

(D.C. Cir. 2011)).

Id. at 91.

To prove that a record meets these requirements, defendants accordingly must establish:

(1) the deliberative process involved; (2) the role the document played in the course of the

deliberative process; and (3) the nature of the decision-making authority vested in the office or

person issuing the records, along with where the parties to the documents sit in the chain of

command. Id.

Defendants now identify six categories withheld under Exemption 5 and detail why records

in each of those categories are predecisional and deliberative.

• Category A involves “[d]ocuments updating DIA leadership regarding policy issues related to the IRTF’s ongoing review of U.S. vulnerabilities after WikiLeaks, for the purpose of informing leadership’s decision-making on the contents of the final IRTF report and/or taking countermeasures to mitigate such vulnerabilities.” Tumiski Decl. ¶ 16. These records include documents that inform superiors of “issues for decision” and frame deliberations regarding, among other things, “decision on countermeasures to reduce or otherwise mitigate U.S. vulnerabilities as a result of WikiLeaks’ unauthorized disclosure.” Id.

20 • Category B is comprised of slide-decks presented by subordinates to superior officers with assessments on particular issues. Id. With these decks, subordinates “propos[ed] steps for future action.” Id.

• Category C includes “[r]ecords presented by subordinate officers to superiors reflecting those officers’ interim assessments of WikiLeaks-related vulnerabilities with respect to particular foreign policy and/or military interests.” Id.

• Category D includes records requesting “further information from inter-agency partners relevant to IRTF tasks.” Tumiski Decl. ¶ 16.

• Category E includes a response to a request for “a predecisional assessment regarding whether certain information could be safely shared with foreign partners.” Id.

• Category F includes “[r]ecords presented by subordinate officers to superiors reflecting draft talking points on certain foreign relations issues.” Id.

Far from the “broad and opaque” nature of defendants’ previous Vaughn Index and

supporting affidavits, Khatchadourian I, 453 F. Supp. 3d at 93, their renewed explanations detail

how these records are predecisional and deliberative. Instead of identifying two “umbrella”

decisions like before, id. at 92, defendants identify a number of smaller decisions with

specificity—assessments regarding what information could be shared with other partners,

decisions regarding what superiors should say when discussing foreign relations issues,

individualized assessments on discrete issues presented to superiors via slide deck, and decisions

on how to protect United States vulnerabilities through potential countermeasures. Tumiski Decl.

¶ 16. The agency has properly pinpointed “sub-decision[s]” which the record informed,

100Reporters LLC, 248 F. Supp. 3d at 153, and illustrated that these records are predecisional.

And Khatchadourian concedes that all but one of these categories are properly withheld—he

challenges only the records included in Category C.

21 Defendants have also established that these records are deliberative. The “function and

significance” in the deliberative process that each document played is now clear. Trea Senior

Citizens League v. Dep’t of State,

(D.D.C. 2013). The D.C. Circuit has

identified “two factors that can assist the court in determining whether [the deliberative process]

privilege is available: the ‘nature of the decisionmaking authority vested in the officer or person

issuing the disputed document,’ and the relative positions in the agency’s ‘chain of command’

occupied by the document's author and recipient.” Senate of the Commonwealth of P.R. v. U.S.

Dep’t of Just.,

(D.C. Cir. 1987) (citations omitted). Defendants have identified

both those factors here. They explain “the relation between the author and the recipients of the

documents” by indicating when materials went from subordinate officers, who lack

decisionmaking authority, to superiors. Access Reports v. Dep’t of Just.,

(D.C.

Cir. 1991). Memoranda from subordinates to superior officers recommending certain strategies in

light of a “particular controversy” are the “classic case of the deliberative process at work.” Coastal

States Gas. Corp. v. Dep’t of Energy,

(D.C. Cir 1980). Defendants also now

distinguish between talking points, slide decks, internal memoranda, and interagency requests and

responses. Tumiski Decl. ¶ 16. Each of the types of documents withheld under Exemption 5

“informed agency decision making in distinct ways.” Khatchadourian I, 453 F. Supp. 3d at 95.

Now, unlike before, defendants have “explain[ed] how.” Id.

Khatchadourian’s arguments to the contrary are unconvincing. He argues that defendants

failed to establish that records in Category C are predecisional because defendants do not pinpoint

the exact decision in question for each individual record, instead using categories. Pl.’s Mot. 26.

But Khatchadourian seeks a level of specificity not required. While the “deliberative process

privilege is [more] dependent upon the individual document and the role it plays in the

22 administrative process” than other exemptions, Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d.

101, 189 (D.D.C. 2013), an agency need only “reveal as much detail as possible as to the nature

of the document, without actually disclosing information that deserves protection,” Oglesby v. U.S.

Dep’t of Army,

(D.C. Cir. 1996). In response to Khatchadourian’s opposition,

defendants clarified that Category C documents involve “one or more military diplomatic issues

with respect to the WikiLeaks” leak, and informed five types of decisions: “(1) whether to escalate

the issue by informing superiors, (2) whether to engage on the issue with agency partners, (3)

whether to make public statements, (4) whether to engage in discussions with particular countries

or other entities to lower tensions, or (5) whether to take no action.” Evitt Decl. ¶ 39. These

identified decisions are specific enough for this Court to conclude that the documents are

predecisional. The Court need not require defendants disclose the “particular decisions

themselves,” which may reveal the “very information the agency hopes to protect.” Defs.’ Reply

22 (quoting Am. Civ. Liberties Union v. CIA,

(D.C. Cir. 2013)).

Khatchadourian also demands a “precisely tailored” explanation for each withheld record

under Category C.

But that is exactly what defendants provide: “At a minimum, the agency

must provide three basic pieces of information in order for the deliberative-process privilege to

apply: (1) the nature of the specific deliberative process involved, (2) the function and significance

of the document in that process, and (3) the nature of the decisionmaking authority vested in the

document’s author and recipient.” Nat’l Sec. Counselors, 960 F. Supp. 2d at 189. Those facts are

provided for each document here. While Khatchadourian may find the explanations provided

“rote” because they apply to both desk notes and more formal memoranda, Pl.’s Mot. 27, the law

does not require more.

23 2. Khatchadourian’s Challenges to Individual Documents Do Not Alter This Court’s Analysis

Outside of his Category C challenges, Khatchadourian also challenges a number of

individual documents withheld under Exemption 5 based on conjecture as to what they contain.

This conjecture mostly derives from Khatchadourian’s interpretations of the title of these

documents. These challenges are rejected.

Khatchadourian argues that V-622 and V-624, both titled “Response Memo from IRTF to

Senator,” are not intra- or inter-agency documents because their titles indicate they were released

to Congress and so cannot be withheld 5. Pl.’s Mot. 23. But this Court previously held that all

records withheld under Exemption 5 were inter- or intra-agency records, see Khatchadourian I,

453 F. Supp. 3d at 92. In light of defendants sworn declaration that these were internal IRTF

memoranda discussing proposed responses to questions from Congress and were not released to

Congress, Evitt Decl. ¶¶ 34–37, this Court sees no reason to revisit that holding.

Khatchadourian next argues that defendants are improperly withholding a number of

“final” talking points under Exemption 5. Pl.’s Mot. 28. He infers from the fact that other

documents are labeled “draft talking points” while certain documents are merely labeled “talking

points” that these were final talking points taken up to the podium by Secretary of Defense Robert

Gates. Id. at 29. Defendants explain these were talking points created for internal briefing

meetings, not public adoption, Evitt Decl. ¶ 41, and so are predecisional and deliberative. While

Khatchadourian argues that these are not predecisional because they were used the internal

meetings and thus adopted, Pl.’s Reply 17, he seems to misunderstand the nature of the relevant

decision. Defendants does not argue that the relevant decision was what to say in the internal

meeting. For example, the Vaughn Index for V-478 (one of the records in question) explains that

24 the relevant decision was the “impact assessment of the unauthorized disclosure of information

resulting from leaked documents.” ECF No. 123-3 at 22.

Next, Khatchadourian challenges V-495, which is titled “Finished Intelligence Product”

and V-637, which is titled “Final Report of the Department of Defense Information Review Task

Force.” Pl.’s Reply 18. A finished product is not predecisional. But defendants contend that these

are both “draft document[s]” because they contain “no final document number” or “placeholder

for date.” Evitt Decl. ¶¶ 43–44, 46. While Khatchadourian argues that this is a “discrepancy” in

the defendants’ submissions that illustrates bad faith, the Court sees no discrepancy. Non-

withstanding the titles of the documents, which the defendants cannot change, they have

consistently asserted that these documents are predecisional. And, in any event, because these

paragraphs of the records in question are withheld in full under Exemptions 1 and 3, Evitt. Decl.

¶ 42, they will not bar summary judgment. 6 Gellman v. Dep’t of Homeland Sec., No. 16-cv-635

(CRC),

, at *13 n.17 (D.D.C. Mar. 20, 2020) (“To the extent a document or

redaction is properly withheld under another exemption already upheld by the Court, the

Government need not review that document for the application of the deliberative process

privilege.”)

Khatchadourian challenges V-549 and V-550, because defendants failed to identify “the

identifies, positions, and job duties of the authors and recipients of the withheld documents.” Pl.’s

Mot. 31 (quoting Khatchadourian I, 453 F. Supp. 3d at 95). Defendants have corrected that issue

and explained that both the documents are emails “sent by subordinate officials to superiors” and

6 The same goes for V-606, the “Red Line Rules,” which defendants now admit should not have been withheld under Exemption 5, but which defendants withheld in full under Exemption 3. Evitt Decl. ¶ 45.

25 “discuss[] the content of classified intelligence cables that are attached to the emails.” Evitt Decl.

¶ 47. These documents are properly withheld under Exemption 5.

Finally, Khatchadourian again challenges subject lines and “Expected Media Treatment”

paragraphs withheld under Exemption 5. Pl.’s Mot. 15, 18. Khatchadourian argues that neither of

these types of information can be deliberative. Id. As to “Expected Media Treatment,” defendants

assert that these paragraphs “discuss the likely impact of WikiLeaks cables with respect to

particular news events and noteworthy foreign policy issues in particular countries, and make

recommendation on how high-level officials should think through decisions on those issues.” Evitt

Decl. ¶ 26. That information is properly predecisional and deliberative. As to subject lines, none

of them are withheld on the basis of Exemption 5 alone, Evitt Decl. ¶ 19, and we have previously

approved of their withholding under Exemptions 1 and 3, supra. The Court need not undergo its

subject line analysis for a third time. Gellman,

, at *13 n.17. The subject lines

are properly withheld.

3. Defendants Fulfilled Their Segregability Obligations For Exemption 5

Defendants previously failed to explain with “reasonably specificity” how the DIA

undertook its segregability analysis for Exemption 5. Khatchadourian I, 453 F. Supp. 3d at 95.

Now, like for Exemptions 1 and 3 above, defendants have provided significant detail about their

segregability process as to Exemption 5. Tumiski Decl. ¶ 11. This detail and the two-level review

process described fulfill defendants’ segregability obligations for Exemption 5, just as it did for

the previous two Exemptions.

26 E. Khatchadourian Is Not Entitled To Summary Judgment For Document V-406 Or The Names Of IRTF Leadership

Khatchadourian raises two final challenges to defendants’ withholdings—one to document

V-406 and one to the withholding of “the names of IRTF senior leadership.” Pl.’s Mot. 21–23. The

Court will briefly address each of these arguments.

To start, V-406 is withheld coextensively under Exemptions 3 and 5, Evitt Decl. 21 n.2,

and thus its exemption is already upheld by the Court. The Court accordingly need not address the

issue of whether it is properly withheld under Exemption 7. Gellman,

, at *13

n.17.

Second, Khatchadourian asks the Court to order defendants to reprocess the documents

again because defendants redacted the names of IRTF senior leadership. Pl.’s Mot. 32. But

Khatchadourian already has this information. While the records here have the names of Scott Liard,

John Kirchhofer, and Robert A. Carr—all IRTF senior leadership—redacted, defendants have

since admitted that these men were IRTF Chief, IRTF Deputy, and IRTF Director, respectively.

Suppl. Decl. of Alessia Williams ¶ 38, ECF No. 85-1. Khatchadourian argues that “persist[ing]”

to redact these names on the record is bad faith. Pl.’s Mot. 32. But defendants have disclosed this

information on the record, and none of Khatchadourian’s cited cases require an agency to reprocess

documents yet again to unredact specific names when they have already admitted to plaintiff the

exact information plaintiff seeks.

IV. CONCLUSION

Based on the foregoing, the Court will GRANT defendants’ motion for summary judgment

and DENY plaintiff’s motion for partial summary judgment. A separate order consistent with this

opinion will follow.

27