UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) DAVID J. RUDOMETKIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-cv-2687 (TSC) ) UNITED STATES OF AMERICA, ) ) ) Defendant. ) ) )

MEMORANDUM OPINION

Defendant in this FOIA case has supplemented the record with respect to the

search and certain withheld information and renewed its motion for summary judgment.

See Mem. Op. and Order (“Mem. Op. 1”), ECF No 43 (granting partial summary

judgment). Plaintiff has cross-moved for summary judgment. For the reasons

explained below, Defendant’s motion will be GRANTED, and Plaintiff’s motion will be

DENIED.

A. Adequacy of the Search

Defendant has now produced sufficient evidence to enable an examination of its

search for responsive records. See Mem. Op. 1 at 5-6 (finding no factual record to

support summary judgment). Plaintiff had requested from the Office of the Secretary of

Defense (OSD) “copies of any communications concerning the nomination, selection,

and appointment of [Colonel] Douglas K. Watkins to the Chief Trial Judge of the

Military Commissions Trial Judiciary.” Mem. Op. 1 at 1. In Defendant’s supplemental

1 declaration, Associate Deputy General Counsel Mark H. Herrington explains the

process that resulted in Colonel Watkins’ selection and describes the search performed

by the attorney who was “involved in the entire process” and “had access to the

locations of all the documents related to [Plaintiff’s] request.” Second Herrington

Decl., ECF No. 48-3 ¶ 5. The documents “were stored in the shared drive of electronic

records in [the] Office of General Counsel [“OGC”] in a folder” under the attorney’s

name and “in his email account.” Id. The attorney’s search “for items identified as

relating to the Chief Judge and Colonel Watkins,” id., located the records that were

released to Plaintiff on May 3, 2021. See Mem. Op. 1 at 3. Herrington attests that the

released records “encompassed all records responsive to Plaintiff’s request within the

Office of the Secretary of Defense.” Id.

Plaintiff disputes neither the description of the search nor its reasonableness

given “the very specific nature of the [FOIA] request and the singular location where

the documents were held.” Def.’s Renewed Mot. for Summ. J., ECF No. 48 at 3; see

generally Pl.’s Reply to Def’s Counsel (Mr. Herrington) Decl. and Cross Mot. for

Summ. J. (“Pl.’s Opp’n”), ECF No. 51. Therefore, the court will grant Defendant’s

motion on its defense of the search.

B. Improper Withholdings

The court concluded that Defendant had improperly withheld certain information

under FOIA Exemption 5 based on the deliberative process privilege and the attorney-

client privilege. Mem. Op. 1 at 8-11. In response, Defendant has released to Plaintiff

all the Bates pages listed in the Vaughn Index as Documents 2, 9 and duplicate

Document 30, see Second Herrington Decl. ¶ 6, the partial releases of which were found

2 to be improper, see Mem. Op. at 9-10. In addition, Defendant has withdrawn “its

assertion of attorney-client privilege as to any records but maintains that the relevant

emails and memoranda from OGC attorneys and the Secretary remain pre-decisional

deliberative process privileged[.]” Second Herrington Decl. ¶ 7; see also id. ¶ 10

(explaining that “the emails and memoranda are also deliberative, as they represent the

opinions, advice, analysis and recommendations conveyed by senior government

attorneys during the decision-making process”). Herrington notes that the court

previously approved all other Exemption 5 redactions as deliberative process material,

id. ¶¶ 8-10 (citing Mem. Op. 1 at 7-9), and accounts for the remaining documents

containing Exemption 5 redactions, see id. ¶ 9. The withheld material consists of “the

direct recommendations from subordinates to either the Office of General Counsel or

Secretary of Defense,” pre-decisional “draft copies of those deliberative documents,”

and duplicate pages. Def.’s Mot. at 4-6 (citing Second Herrington Decl. ¶ 9(C), 9(D),

9(E), 9(G)); see Vaughn Index, Docs. 3, 5, 6, 11, 12, 13, 14-19, 21, 23, 24, 26.

Plaintiff “challenges all of [Defendant’s] Exemption 5 privilege as improper

under the FOIA Improvement Act.” Pl.’s Opp’n at 1. In addition, Plaintiff “raises a

colorable claim there is evidence of government misconduct in the nomination and

selection” of Colonel Watkins as Chief Judge “that merits records being un-redacted

and fully disclosed.” Pl.’s Opp’n at 1. Plaintiff’s claims, discussed next in reverse

order, are unavailing.

1. Misconduct Claim

Plaintiff premises his cross-motion for summary judgment on the alleged

misconduct. See Opp’n and Cross-Mot. at 3-5, citing Decl. of David J. Rudometkin,

3 ECF No. 51-1. But as concluded previously, the misconduct allegation is irrelevant to

the Exemption 5 analysis. See Mem. Op. 1 at 8-9. The privilege cases upon which

Plaintiff relies, see Opp’n at 3-4, are inapposite because they are not FOIA cases. In

one such case, the D.C. Circuit crystallized the distinction, noting that the need

“characteristic of the deliberative process privilege is not an issue in FOIA cases

because the courts have held that the particular purpose for which a FOIA plaintiff

seeks information is not relevant in determining whether FOIA requires disclosure.” In

re Sealed Case,

(D.C. Cir. 1997).

2. FOIA Improvement Act

In 2016, Congress enacted the FOIA Improvement Act “in part out of concerns

that some agencies were overusing FOIA exemptions that allow, but do not require,

information to be withheld from disclosure.” Reps. Comm. for Freedom of the Press v.

Fed. Bureau of Investigation,

(D.C. Cir. 2021) (citations and

alterations omitted). Congress “was particularly concerned with increasing agency

overuse and abuse of Exemption 5 and the deliberative process privilege.”

Therefore, “Congress added the distinct foreseeable harm requirement to foreclose the

withholding of material unless the agency can articulate both the nature of the harm

from release and the link between the specified harm and specific information contained

in the material withheld.”

Consequently, for requests submitted after June 30, 2016,

, an agency

may withhold information under a FOIA exemption only if it “reasonably foresees that

disclosure would harm an interest protected by an exemption” or if “disclosure is

prohibited by law[.]”

(a)(8)(A). An agency cannot rely on “mere

4 ‘speculative or abstract fears,’ or fear of embarrassment,” nor can it satisfy its burden

with “generalized assertions[.]” Reps. Comm. for Freedom of the Press,

(citation omitted).

Herrington attests that “it is reasonably foreseeable that disclosure” of the

redacted recommendations “would harm the full and free discussion of the nomination

within the agency” since it “is the record of recommendations from the Judge Advocate

General of each of the military services.” Second Herrington Decl. ¶ 11; see accord

Mem. Op. 1 at 8 (citing Defendant’s attestation of foreseeable harm). Herrington adds

that if such information is “made public and conflicted with the ultimate decision, those

officers could suffer negative impacts on their ability to lead and their careers.”

Focusing on the latter, Plaintiff posits that no harm could come from the release

of “discussions made over four years ago . . . about officers who have since retired,

about a 4 year old agency decision.” Pl.’s Opp’n at 2-3. But Defendant has sufficiently

articulated “[a] link between the specified harm,” i.e., the chilling of candid discussions

about future candidates, and the withheld information, i.e., the officers’ solicited

recommendations as part of the decision-making process. Reps. Comm. for Freedom of

the Press,

; see accord Mem. Op. 1 at 8. In other words, Defendant

has “specifically focused on the information at issue” and reasonably explained how

“disclosure of that information would chill future internal discussions.” Machado

Amadis v. United States Dep't of State,

, 371 (D.C. Cir. 2020) (internal

quotation marks omitted) (emphases added)). And the “chilling of candid advice is

5 exactly what the [deliberative process] privilege seeks to prevent.” 1

C. Record Segregability

An agency must disclose “[a]ny reasonably segregable portion” of an otherwise

exempt record.

(b). While an agency is presumed to have complied with

its obligation to disclose non-exempt portions of the record, a “district court must make

specific findings of segregability regarding the documents to be withheld.” Sussman v.

U.S. Marshals Serv.,

(D.C. Cir. 2007). The D.C. Circuit “has long

recognized . . . that documents may be withheld in their entirety when nonexempt

portions “‘are inextricably intertwined with exempt portions.’” Juarez v. Dep't of Just.,

(D.C. Cir. 2008) (quoting Mead Data Central, Inc. v. U.S. Dep't of Air

Force,

(D.C. Cir. 1977)).

Initially, Herrington attested to having “conducted a page-by-page and line-by-

line review” of all responsive documents and finding “no further reasonably segregable

information” with respect to Exemptions 5 and 6. First Herrington Decl. (“Herrington

Decl.”) ¶ 13, ECF No. 21-3. In the supplemental declaration, Herrington attests to

having conducted a “line by line” review of the current documents and redacting the

deliberative process material. Second Herrington Decl. ¶ 12; see id. ¶ 7 (“All

deliberative process documents were redacted to remove only the exempted portions.”).

Herrington explains that in certain documents such as “the action memo with

recommendations from the General Counsel to the Secretary,” deliberative process

1 Plaintiff states “[g]iven that no statute prevents the disclosure of the DoD General Counsel routing sheets, information memos, such as document 21, or emails, the remaining issue is whether” Defendant has satisfied the foreseeable harm requirement. Pl.’s Opp’n at 2 (parenthesis omitted). The statement, to the extent intelligible, presents no genuine issue of material fact with respect to the Exemption 5 withholdings. 6 information “was withheld practically in full because the recommendations could not be

separated from the non-exempt portion of the record.” Id. ¶ 12; see Herrington Decl. ¶

8 (redacted material encompassed “substance of the actual nominations and

accompanying advice and recommendations”). In addition to those “heavily redacted”

documents, Defendant has withheld in full only unsigned draft versions of deliberative

documents containing “edits and notes.” Second Herrington Decl. ¶¶ 7, 10. Defendant

has shown “with reasonable specificity” why those responsive documents could not “be

further segregated,” Armstrong v. Executive Office of the President,

(D.C. Cir. 1996), and the Exemption 6 withholdings of third-party identifying

information are minimal and properly justified. Therefore, the court finds that all

reasonably segregable non-exempt information has been disclosed to Plaintiff.

CONCLUSION

For the foregoing reasons, the court concludes that no genuine dispute remains

and that Defendant, having now fully complied with the FOIA, is entitled to judgment

as a matter of law. A separate order accompanies this memorandum opinion.

Date: July 26, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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