Rosenberg v. U.S. Dep't of Def.
Rosenberg v. U.S. Dep't of Def.
Opinion of the Court
I. INTRODUCTION
Plaintiffs Carol Rosenberg, a reporter for the Miami Herald , and the Miami Herald Media Company bring this action against Defendant United States Department of Defense ("DOD") pursuant to the Freedom of Information Act ("FOIA"),
After Plaintiffs filed this lawsuit, DOD conducted a search for responsive emails and located 256 email records and 92 attachments, totaling 548 pages. DOD released 548 pages to Plaintiffs, some in full and some with redactions. To justify its *72redaction and withholding of information from these documents, Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E). In response, Plaintiffs contest Defendant's redactions as unjustified.
Based upon the court's in camera inspection of a representative sampling of the records produced to Plaintiffs, and for the reasons described below, the court finds that Defendant properly withheld information under Exemptions 3, 6, and 7(E). However, the court also finds that Defendant has not properly justified withholding other information under Exemptions 1 and 5. Accordingly, the court grants in part and denies in part Defendant's Motion for Summary Judgment and Plaintiffs' Motion for Summary Judgment.
II. BACKGROUND
A. Statutory Framework
"The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. ,
In 2016, President Obama signed into law the FOIA Improvement Act of 2016, which amended the FOIA in various ways. See Pub. L. No. 114-185,
Accordingly, as amended by the FOIA Improvement Act, the statutory text now provides that: "An agency shall ... withhold information under this section only if [ ] (I) the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption described in [
B. Factual Background
Since 2001, Plaintiff Carol Rosenberg has reported extensively on SOUTHCOM-a component of DOD responsible for American military operations in Central America, South America, and the Caribbean-including its operation of the Guantánamo Bay detention center. Compl., ECF No. 1, ¶¶ 7, 10. Rosenberg's reporting also included coverage of General Kelly during his tenure as Commander of SOUTHCOM from November 2012 to January 2016.
Following the presidential election on November 8, 2016, Rosenberg and the Miami Herald published a story reporting that then President-elect Trump had met with General Kelly and was considering him for a national security role in the new administration. Pls.' Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. for Summ. J., ECF No. 19 [hereinafter Pls.' Cross-Mot.], Pls.' Statement of Facts, ECF No. 19-2 [hereinafter Pl.'s Stmt.], ¶ 55; Pls.' Cross-Mot., Decl. of John Langford, ECF No. 19-3 [hereinafter Langford Decl.], Ex. I, ECF No. 19-4. Presuming that General Kelly would soon become a candidate for a national security position in the Trump administration, Rosenberg sent a FOIA request to DOD on November 11, 2016, seeking:
[A]ll emails by the former Southern Command commander retired Marine Gen. John F. Kelly to Lisa Monaco [the former Assistant to President Obama for Homeland Security and Counterterrorism] or those that also copied her on his correspondence.
Compl., Ex. A, ECF No. 1-1 [hereinafter FOIA Request]. In the FOIA Request, Rosenberg cited "the sudden emergence of General Kelly as a potential candidate for a national security job in the Trump administration" as grounds for expedited processing pursuant to
During the pendency of the FOIA request, then President-elect Trump selected General Kelly for the position of Secretary of Homeland Security in early December 2016, Pl.'s Stmt. ¶ 57, and the U.S. Senate confirmed General Kelly on January 20, 2017,
C. Procedural Background
Plaintiffs filed this lawsuit on March 30, 2017, challenging the government's failure to expedite processing of the FOIA request and its failure to disclose any responsive documents. See generally Compl. After DOD responded to Plaintiffs' Complaint on April 27, 2017, see Answer, ECF No. 8, the parties negotiated a schedule for DOD to review, process, and produce records, see generally Joint Status Report, ECF No. 11. In a series of rolling productions, DOD produced to Plaintiffs 256 emails and 92 attachments totaling 548 pages, invoking FOIA Exemptions 1, 3, 5, 6, and 7(E) for various redactions and withholdings across the production. See Third Joint Status Report, ECF No. 15, ¶¶ 3-4; see also Def.'s Mot. for Summ. J., ECF No. 18 [hereinafter Def.'s Mot.], Def.'s Statement of Facts, ECF No. 18-3, ¶¶ 6, 8. The responsive email records consist primarily of weekly updates sent by General Kelly to Lisa Monaco and other DOD senior officials about operations at JTF-GTMO, and the remainder are other email correspondence sent between DOD senior officials about General Kelly's weekly reports. The attachments are primarily routine weekly updates on JTF-GTMO sent by General Kelly to DOD senior officials.
After production, DOD moved for summary judgment. See Def.'s Mot. The motion was supported by the declaration of Brigadier General Todd J. McCubbin, the Reserve Deputy Director of SOUTHCOM, see Def.'s Mot., Decl. of Todd J. McCubbin, ECF No. 18-2 [hereinafter McCubbin Decl.], as well as a Vaughn Index, see
Plaintiffs opposed DOD's motion, and filed a cross-motion for summary judgment, asserting that no proper basis exists for most of the government's redactions and withholdings. Pls.' Cross-Mot., Pls.' Mem. in Opp'n to Def.'s Mot. for Summ. J. & in Supp. of Pls.' Cross-Mot. for Summ. J., ECF No. 19-1 [hereinafter Pls.' Mem.], at 1. Plaintiffs also asked the court to conduct an in camera review of a representative sample of the documents at issue, see Pls.' Mem. at 42-43; Pls.' Reply in Further Supp. of Pls.' Cross-Mot., ECF No. 24 [hereinafter Pls.' Reply], at 23-25, which this court agreed to do.
*75The parties' motions are now ripe for disposition.
III. STANDARD OF REVIEW
Most FOIA cases are appropriately resolved on motions for summary judgment. See Brayton v. Office of the U.S. Trade Representative ,
Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are "relatively detailed and non-conclusory." SafeCard Servs., Inc. v. SEC ,
IV. DISCUSSION
Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E) to justify its various *76redactions and withholdings. Plaintiffs challenge the applicability of all exemptions, save Exemption 3.
A. Exemption 5
Exemption 5 applies to "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency."
Here, DOD asserts the deliberative process privilege to withhold information from a number of the responsive email records and attachments.
To invoke the privilege, an agency must show that the withheld information is both "predecisional" and "deliberative." Judicial Watch, Inc. v. U.S. Dep't of Def. ,
Plaintiffs challenge all of DOD's Exemption 5 withholdings as improper. Pls.' Mem. at 11. Plaintiffs assert as a general matter that DOD has not met its burden under the FOIA Improvement Act to show that reasonably foreseeable harm to an exemption-protected interest-here, the agency's deliberative process-would result from the release of the withheld material. See
1. Satisfaction of the FOIA Improvement Act's "Foreseeable Harm" Standard
Plaintiffs' primary challenge to DOD's Exemption 5 withholdings relates to the FOIA Improvement Act's codification of the "foreseeable harm" standard. See
The parties' dispute requires the court to determine what an agency must show to satisfy the FOIA Improvement Act's "foreseeable harm" standard for discretionary withholdings. Although two years have elapsed since the Act's passage in 2016, surprisingly little authority-precedential or persuasive-on this issue exists.
In Ecological Rights Foundation , the court granted summary judgment in favor of a FOIA requester seeking disclosure of records protected under the deliberative process privilege.
The court's insistence on strict compliance with the FOIA Improvement Act in Ecological Rights Foundation , coupled with the text of the Act itself, provides guidance as to what DOD must show here to justify its Exemption 5 withholdings. To satisfy the "foreseeable harm" standard, DOD must explain how a particular Exemption 5 withholding would harm the agency's deliberative process. DOD may take a categorical approach-that is, group together like records-but in that case, it must explain the foreseeable harm of disclosure for each category. Cf. Climate Investigations Ctr. v. U.S. Dep't of Energy , No. 16-cv-00124,
The court is unmoved by Defendant's argument that a more specific foreseeable-harm analysis would be duplicative. DOD submits that because the responsive records "are of the same type," disclosing the information withheld from the records "would yield the same kinds of harms," consistently "across the release." Def.'s Reply at 21. In DOD's view, this general explanation is all that is required, "particularly where the nature of these documents is explained in detail."
*79But pointing out the breadth and variety of these categories of deliberative discussions only serves to undermine Defendant's argument that it has satisfied its statutory obligation. Cf. Prison Legal News v. Samuels ,
To be clear, the court does not read the statutory "foreseeable harm" requirement to go so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings. A categorical approach will do. But the court agrees with Plaintiffs that the government must do more than perfunctorily state that disclosure of all the withheld information-regardless of category or substance-"would jeopardize the free exchange of information between senior leaders within and outside of the [DOD]," id. ¶ 62. See Pl.'s Mem. at 11.
Because Defendant has failed to satisfactorily show that the categories of information withheld under Exemption 5 would result in reasonably foreseeable harm to its deliberative process, the court denies Defendant's motion as to this exemption. In lieu of granting summary judgment in favor of Plaintiffs on this issue, however, the court will allow Defendant to supplement its declaration on remand to satisfy the "foreseeable harm" standard for its discretionary withholdings.
As the agency will have another opportunity to supplement its declarations as to Exemption 5, the court need not fulsomely address Plaintiffs' other foreseeable harm arguments-namely, those charging that DOD can assert no harm from disclosure of discussions that: (1) conceal impermissible animus or embarrassing comments; (2) involve only mundane, minor, and uncontroversial decisions; and (3) relate to decisions that have already been made. See Pls.' Mem. at 13-17. DOD may choose to address the substance of these arguments in its supplemental declaration. Having reviewed some of the disputed withholdings in camera , the court will, however, make findings as to two categories of records, as follows.
a. Information Involving Facially Illegitimate Deliberations
Based upon the court's in camera review, the court rejects Plaintiffs' argument that DOD impermissibly withheld information in Records 72 and 320 in order to conceal animus toward detainees at JTF-GTMO, government misconduct, or embarrassing comments. See Pls.' Mem. at 13-15.
*80b. Information Involving "Mundane" Agency Decisions
Based upon the court's in camera review, the court rejects Plaintiffs' argument that DOD impermissibly withheld information so minor and uncontroversial as to evade the protection of Exemption 5 in Records 31, 129, 140, 295, and 320. See Pls.' Mem. at 15-16. The information redacted from these records is not the type of "mundane material" the disclosure of which "is unlikely to diminish officials' candor or otherwise injure the quality of agency decisions." Petroleum Info. Corp. v. U.S. Dep't of Interior ,
2. Whether Specific Withholdings Are "Predecisional" and "Deliberative"
Plaintiffs' next challenge to the Exemption 5 withholdings asserts that the government has failed to identify the specific, predecisional deliberative process to which certain of the withholdings relate. See Pls.' Mem. at 18. To support their assertion, Plaintiffs point to several of the records, asserting that the agency's description of the withholdings are inadequate to justify Exemption 5 protection. See id. at 19-20.
Of Plaintiffs' challenges in this vein, the court's in camera review substantiated only one: the assertion that General Kelly's opinions about the merits of a judicial ruling are not properly withheld as predecisional deliberative process. See id. at 20. The agency withheld such information from Records 262, 263, 268, 271, 272, 275, 277, 278, 279, 280, 281, 283, 286, 291, 294, 295, 297, 301, 303, 305, 310, 311, 313, 318, 319, 320, 321, 335, and 346, pursuant to Exemption 5, asserting that in these records, "General Kelly provides his opinions about" a military commission ruling barring female guards from touching certain detainees, "advises senior officials about the consequences of this ruling for the guard force," and "provides recommendations about how the government should proceed under the order and opinions about how the government should handle the equal opportunity complaint." See McCubbin Decl. ¶ 54. Having reviewed in camera Records 278, 281, 295, 320, 321, and 335, the court agrees with Plaintiffs that some of the withheld information involves General Kelly merely "opining about the merits" of the military commission ruling in a manner that is not directed toward decision-making as to law or policy, and that such material is not subject to the deliberative process privilege. In reviewing these documents, the court noted DOD's inconsistent redactions across these records. For example, in Record 320, the government left unredacted General Kelly's opinion that the slow progress of the military commission in addressing the ruling barring female guards from touching certain detainees rivaled the lengthy deliberations required to reach the "complicated" "Dred Scott decision." See Pls.' Cross-Mot., Ex. PP-2, ECF No. 19-6, at Bates 454. Yet, the government opted to redact similar instances of General Kelly's personal opinions from other Records. See, e.g., id. at Bates 327-28, 380-83, 456-59 (Records 278, 295, and 321).
In light of the foregoing, the court denies Defendant summary judgment as to its Exemption 5 withholdings.
B. Exemption 1
FOIA Exemption 1 precludes disclosure of documents that are:
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]
Defendant withheld four categories of classified information pursuant to FOIA Exemption 1, asserting that the information is protected by EO 13,526 because it "pertains to": (1) "military plans, weapon systems, or operations"; (2) "foreign government information"; (3) "intelligence activities (including covert action), intelligence sources or methods, or cryptology"; and (4) "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security." EO 13,526 § 1.4(a), (b), (c), (g); see McCubbin Decl. ¶ 16.
Plaintiffs challenge the government's withholdings under Exemption 1, asserting that the government failed to establish that disclosure of the information withheld pursuant to sections 1.4(a), (b), and (c) would reasonably be expected to damage the national security. Plaintiffs do not contest the other threshold requirements of EO 13,526. The court addresses each category of classified information in the order listed above.
1. Section 1.4(a): Military plans, weapon systems, or operations
According to the agency, the bulk of DOD's withholdings under Exemption 1 *82"concern[ ] military operations" and are therefore protected under section 1.4(a) of EO 13,526. McCubbin Decl. ¶ 18. The agency's declaration explains that the information withheld from the email records and attachments "address a range of operational details covered by Section 1.4(a)." Id. ¶ 19. Because the responsive emails and attachments comprise routine updates sent by General Kelly to DOD senior officials, General Kelly often addressed the same subject matter in his emails-usually, "Camps, Behavioral Health Unit/Detainee Hospital, Facilities, Detainee Movement Orders (DMO), Upcoming Events, and Final Comments"-and provided updates to senior officials on any developments to these categories. Id. In their briefing, the parties identified the disputed categories of operational information covered by DOD's section 1.4(a) withholdings. See Def.'s Mem. at 13-21; Pls.' Mem. at 23-31; Pls.' Reply at 4-13. The court addresses the applicability of section 1.4(a) to each of these categories below.
a. Detainee Conduct
DOD withheld information about detainees and detention operations at JTF-GTMO, which consists of General Kelly's descriptions of detainee conduct, including discussions "identif[ying] noncompliant detainees," explaining "measures being taken to maintain order while ensuring the detainees' health, safety, and wellbeing," and highlighting "the interpersonal relationships between compliant and noncompliant detainees and the effect it has on detention operations." See McCubbin Decl. ¶ 20. According to the agency, "release of this information could damage national security by further complicating detainee operations." Id. In Defendant's view, a future detainee of JTF-GTMO could use this information to "shape their behavior to be maximally disruptive" while detained, and, similarly, current detainees could get hold of the information and "frustrate the mission and operation at JFT-GTMO," thereby "putting the guard force and the security of the facility at risk." Id.
Plaintiffs do not challenge the obvious conclusion that this category of information "pertains" to a "military operation." See Pls.' Reply at 10-11. Rather, Plaintiffs assert that the type of harm the government believes likely to occur upon disclosure-"mak[ing] administration of JTF-GTMO significantly more difficult and plac[ing] military personnel at unnecessary risk," McCubbin Decl. ¶ 20-does not constitute a risk of harm to national security. See Pls.' Reply at 11. Plaintiffs characterize this risk as one involving law enforcement concerns, rather than concerns to the national security. Id.
The court declines Plaintiffs' invitation to second guess the government's judgment that releasing information about detainee conduct within JTF-GTMO would imperil the national security. The D.C. Circuit has continually "reaffirm[ed] [the] deferential posture" a court must assume "in FOIA cases regarding the 'uniquely executive purview' of national security." Larson v. Dep't of State ,
b. Detainee Health
DOD withheld information relating to detainee health and hunger strikes, wherein General Kelly "discuss[es] in broad and specific terms detainees' mental, physical, and emotional health, as well as the measures ... being developed or taken to ensure their wellbeing," McCubbin Decl. ¶ 23, and identifies "the number of hunger strikers" and "the impact ... the strike is having on detainees' health," id. ¶ 26. According to the agency, "releasing information about the health and medical status of detainees would create a severe risk of damage to national security by yielding information that can be used as propaganda by terrorist organizations and other adversaries." Id. ¶ 24. Moreover, the agency explains that "[b]ecause some detainees have engaged in hunger strikes and other noncompliant behavior that lead to medical concerns over their health and wellbeing, release of this information would enable adversaries that seek to inflame public reaction to detention operations at JTF-GTMO, putting U.S. military forces and allies at risk." Id.
For their part, Plaintiffs contend that the agency's withholding of detainee health and hunger strike information is unjustified because: (1) much of the withheld detainee health information-facts about detainee height and weight, the numbers of hunger strikers, as well as details and first-hand accounts of the enteral feeding program-has previously been disclosed and therefore cannot now be withheld, and (2) the disclosure of similar information undermines the government's claim that disclosure would cause serious damage to the national security. See Pls.' Mem. at 26-28.
i. Official Acknowledgement
The court turns first to address Plaintiffs' assertion that the detainee health and enteral feeding program information redacted by DOD cannot be protected by Exemption 1 because the government already has publicly disclosed such information. The court disagrees. Plaintiffs fail to show that any of the information identified has been disclosed in a manner that allows them to overcome the agency's invocation of Exemption 1.
Information is "officially acknowledged" and must be disclosed over government objection if: "(1) the information requested [is] as specific as the information previously released; (2) the information requested ... match[es] the information previously disclosed; and (3) the information requested ... already *84ha[s] been made public through an official and documented disclosure." ACLU v. U.S. Dep't of Def. ,
Plaintiffs have failed to shoulder their burden of pointing to "specific information" that has been officially disclosed and "matches" the withheld information. Plaintiffs identify various sources of information that they assert are "official disclosures" of the information they seek here: (1) prior disclosure of detainees' height and weight information from 2002 through 2006, see Pls.' Stmt. ¶ 40; Langford Decl., Exs. JJ, KK, ECF No. 19-4; (2) figures on the Miami Herald webpage tallying the number of hunger strikers and instances of force-feeding conducted at JTF-GTMO, Pls.' Mem. at 26 (citing Pls.' Stmt. ¶ 41); see Langford Decl., Ex. X, ECF No. 19-4; (3) a Miami Herald article in which Navy Rear Admiral Kyle Cozad explains that daily figures of hunger strikers and the number of prisoners designated for enteral feedings are not "operationally or medically relevant," Pls.' Mem. at 26-27 (citing Pls.' Stmt. ¶ 39); Langford Decl., Ex. Y, ECF No. 19-4; (4) a detainee's published accounts of his own force-feeding, Pls.' Mem. at 27 (citing Pls.' Stmt. ¶ 44); see Langford Decl., Ex. AA, ECF No. 19-4; and (5) a New York Times article in which then SOUTHCOM commander, General Craddock, discloses the use of "restraint chairs" to force-feed Guantánamo detainees, Pls.' Mem. at 27 (citing Pls.' Stmt. ¶ 34); Langford Decl., Ex. Z, ECF No. 19-4. Having reviewed these sources, the court concludes that none of the information matches the withheld information.
*85Rather than demonstrate that the "information requested" is "as specific as the information previously released," ACLU ,
ii. Harm to the National Security
The court easily rejects Plaintiffs' related assertion that the release of similar information to that withheld here somehow lessens the risk of harm to the national security resulting from disclosure of information relating to detainee health and the controversial enteral feeding program. "[T]he fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods and operations." Fitzgibbon v. CIA ,
c. Detainee Movements to Third Countries
DOD withheld information relating to detainee movement to third countries, including General Kelly's discussions as to "whether a detainee movement is authorized," "the measures that need to be taken to execute the mission," "the logistical requirements necessary to conduct the mission," "the required approval and coordination with the receiving nation," "the reactions of the detainees upon learning *86of their transfer," as well as "information regarding the receiving nation," including "when and how the transfer will occur" and "details regarding preliminary discussions with the receiving nation." Id. ¶ 27. According to the agency, releasing information about detainee movements "create[s] significant national security risks by publicizing sensitive operational details about how these orders are executed, including the logistical details that could enable interference in future or similar operations." Id. ¶ 28. Moreover, because the information concerns the U.S. government's cooperation with foreign governments to move detainees, releasing that information "would have a significant detrimental effect on the government's ability to continue cooperating with foreign governments in these operations." Id.
Plaintiffs' challenge to these withholdings is limited to the government's withholding of information detailing the "reactions of the detainees upon learning of their transfer." See Pls.' Mem. at 28-29. Plaintiffs argue that the release of such information "do[es] not implicate governmental operations, logistics, procedures, or the United States' relationship with foreign governments." Id. at 29. The court agrees with Plaintiffs-the connection between releasing information about the "reactions of detainees" upon learning of their movements from JTF-GTMO and a risk of "enabl[ing] interference in future or similar" detainee movements is tenuous at best. Information about a detainee's feelings or thoughts about his impending transfer would not seem to pose the same security risk as, say, information regarding how or when the detainees are being transferred, or the name of the receiving nation. If, as DOD appears to assert, see Def.'s Reply at 11, the redacted information about the reactions of detainees is too intertwined with other withheld information-the identity of the receiving nation or questions of timing, for example-then DOD may assert as much in a supplemental declaration. On the present record, however, the court cannot discern, even affording due deference to the agency on national security matters as required, a logical connection between the disclosure of detainees' reactions to transfer orders and a risk to the national security.
Plaintiffs additionally assert that the government has officially acknowledged and disclosed the country of destination for detainee transfers and must therefore disclose this information. See Pls.' Mem. at 29 (citing Pls.' Stmt. ¶¶ 48-49); see also Langford Decl., Exs. DD, EE, FF, GG, HH, ECF No. 19-4. In the sources identified by Plaintiffs, DOD announced the transfer of three detainees to the United Arab Emirates in January 2017, see Langford Decl., Ex. DD, ten detainees to Oman in January 2017, see id. , Ex. EE, six detainees to Uruguay in December 2014, see id. , Ex. FF, six detainees to Palau in October 2009, see id. , Ex. GG, and five detainees to Kuwait in November 2005, see id. , Ex. HH. In their reply brief, Plaintiffs also note that a search of the U.S. Department of Defense news release webpage resulted in 13 detainee transfer announcements between November 5, 2014, and January 8, 2016. See Pls.' Reply at 16.
Although this information constitutes official disclosures of the names of detainees and the country of destination for their transfers, the only specific "match" to the withheld information that Plaintiffs bring to the court's attention is the agency's withholding from Record 207, which redacts information from a June 13, 2015 email describing a transfer to Oman. See Pls.' Cross-Mot., Ex. PP-2, ECF No. 19-6 [hereinafter Production Pt. 1], at Bates 214. As Plaintiffs point out, DOD announced on June 13, 2015, the names of six detainees transferred to Oman. See Pls.'
*87Reply at 16 (citing Detainee Transfer Announced , U.S. Dep't of Def. (June 13, 2015), https://dod.defense.gov/News/News-Releases/News-Release-View/Article/605565/detainee-transfer-announced/). Plainly, the government cannot withhold this information from Record 207 because it has been officially disclosed. With regard to the other disclosures, Plaintiffs have not met their burden of providing the court with the "match" in the withheld information to the information already officially acknowledged.
d. Order Affecting Female Guards
Some of the information withheld by Defendant pursuant to Exemption 1 contains "discussions of an order affecting female guards and a subsequent equal opportunity complaint." McCubbin Decl. ¶ 33. According to the agency, DOD withheld information in General Kelly's comments about this issue "describing guard force composition, guard actions related to detainees, and the use of classified information in related proceedings." Id.
Plaintiffs assert that DOD has not identified any harm that might result from the disclosure of this withheld information. Pls.' Mem. at 30; Pls.' Reply at 17. But, the agency has satisfactorily shown that disclosure of this information-particularly as it reveals information about the composition of the guard force and interactions between guards and detainees-reasonably could be expected to "provide those who seek to harm the United States with critical information regarding our operations, our policies-and how they change dependent on certain factors-and our vulnerabilities." McCubbin Decl. ¶ 34. Again, the court defers to the agency's logical explanation.
e. Court and Commission Proceedings
DOD withheld information that "contain discussions of detainee-related proceedings in federal court and military commissions." Id. ¶ 33. The withheld information "describ[es] detainees' health, behavior, and conditions in the context of these proceedings; logistical and operational issues related to the detainees and the facilities; and operational responses to proceedings and orders that touch on classified subject matter." Id. Once again, Plaintiffs' challenge to the withholding of this information questions the government's showing of resulting national security harm from the release of this information. See Pls.' Reply at 17. And, again, the court rejects Plaintiffs' argument; it is more than logical and plausible that the sensitive nature of this information is such that its release could "permit[ ] the details of [the detainees'] detention to become widely known to hostile forces abroad that are still engaged with deployed forces." McCubbin Decl. ¶ 34.
f. Congressional Matters
Plaintiffs' final challenge to the government's section 1.4(a) withholdings involves redactions in Records 272 and 304 that "contain discussions of congressional matters related to JTF-GTMO operations." Id. ¶ 33. As with the redactions concerning discussions of court proceedings and commissions, the agency claims that disclosing this information would provide "those who seek to harm the United States with critical information regarding our operations, our policies-and how they change dependent on certain factors-and our vulnerabilities." Id. ¶ 34.
The court agrees with Plaintiffs that the agency's justification for withholding this information is plainly insufficient. Merely identifying information as "discussions of congressional matters related to JTF-GTMO operations" and asserting that its disclosure would harm the national security is inadequate, even under Exemption 1. See *88Int'l Counsel Bureau ,
2. Section 1.4(b) "Foreign Government Information"
DOD withheld foreign government information from one record-Record 273-as classified pursuant to section 1.4(b) of EO 13,526. According to the agency's declaration, Record 273 "discusses a detainee movement operation that was postponed due to the receiving nation no longer being willing or able or both to accept the detainee." McCubbin Decl. ¶ 35. According to DOD, disclosure of this information "would negatively impact our ability to deal with foreign nations on sensitive matters" and "protect and advance U.S. national interests" because "[f]oreign governments would no longer trust us to deal with foreign nations on sensitive matters."
The court agrees with Plaintiffs that DOD has failed to show that the information in Record 273 pertains to "foreign government information" within the meaning of section 1.4(b) of EO 13,526. The Executive Order defines "foreign government information," as relevant here, as "information provided to the United States Government by a foreign government ... with the expectation that the information, the source of the information, or both, are to be held in confidence ," or, conversely, "information produced by the United States Government pursuant to or as a result of a joint arrangement with a foreign government ... requiring that the information ... be held in confidence ." EO 13,526 § 6.1(s) (emphases added). The agency's declaration fails to show that the redacted information in Record 273 was provided to the United States explicitly "to be held in confidence." See id.; cf. Azmy ,
3. Section 1.4(c) "Intelligence Activities, Sources, or Methods"
DOD withheld information in 12 records pursuant to section 1.4(c), which allows classification of information that "pertains to ... intelligence activities (including covert action), intelligence sources or methods, or cryptology." EO 13,526 § 1.4(c); see McCubbin Decl. ¶ 36. According to the agency's declaration, these records contain "information on intelligence activities that are vital to ... detention operations," the release of which "could be reasonably expected to reveal intelligence sources and methods or otherwise compromise [DOD's] mission to collect intelligence." McCubbin Decl. ¶ 36.
*89Plaintiffs' objection to this withholding is two-fold. First, Plaintiffs argue that the government has not shown that the redacted records fall under section 1.4(c)'s protection. Pls.' Mem. at 33. Second, Plaintiffs assert that the government has also failed to establish the requisite risk of harm to national security that would result from disclosure of the redacted information. Id. at 34. In particular, Plaintiffs point to deficiencies in the agency's descriptions of Records 60, 168, and 186, asserting that the government has not shown how information about detention operations redacted from those records "pertains" to intelligence operations. Cf. McCubbin Decl. ¶ 36.
The court agrees with Plaintiffs and finds that the information supplied about the section 1.4(c) withholdings is insufficient. The information about the detention of enemy combatants at JTF-GTMO readily satisfies the "foreign component" requirement of classifiable "intelligence." See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ,
The court will therefore deny summary judgment to Defendant on this issue. As requested, the court will allow DOD to supplement its showing and address the information withheld under section 1.4(c) with a classified ex parte declaration for the court's in camera review. See Def.'s Mem. at 24 n.12; Def.'s Reply at 16 n.13.
4. Section 1.4(g) "Vulnerabilities or Capabilities ... Relating to the National Security"
Plaintiffs do not challenge DOD's withholdings under section 1.4(g) of EO 13,526, which protects information that "pertains to ... vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security." See McCubbin Decl. ¶ 37 (explaining that Records 27, 55, 56, 75, 96, 105, 156, 189, and 194 include information withheld under section 1.4(g) ). According to the agency, these records "discuss detainee movements to third countries, and, in particular, focus on the vulnerabilities of the mission due to possible changes in mission," including "threat assessments of airfields used to transport and transfer the detainees."
C. Exemption 3
Plaintiffs do not challenge DOD's withholding of information in Record 272 pursuant to Exemption 3. See generally Pls.' Mem. Exemption 3 permits the withholding of records that are "specifically exempted from disclosure by statute" if that statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue."
D. Exemption 6
DOD invokes Exemption 6 to redact two categories of information. The first category involves identifying information of government personnel, including individuals below the rank of colonel or GS-15,
An agency may use Exemption 6 to withhold "personnel and medical files ... the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
There is no dispute that the documents at issue are "personnel and medical files" that satisfy the threshold requirement of Exemption 6. Instead, Plaintiffs assert that these Exemption 6 withholdings are improper because, as to both categories of information: (1) the government has failed to establish that there are valid privacy interests in the redacted information, and (2) any existing privacy interests are not outweighed by the public's interest in the information. Neither argument is convincing.
*911. Description of Personnel Actions
DOD redacted "descriptive information about personnel actions" from the records, asserting that the "privacy interest in this information ... far outweighs any minimal interest the public could have in the information." See McCubbin Decl. ¶ 67. Plaintiffs counter that the government fails to explain how descriptions of personnel actions would necessarily identify specific personnel and thus give rise to any privacy interest that could outweigh the public's interest in the information. See Pls.' Reply at 19-20.
The balancing analysis for Exemption 6 requires a court to first determine "whether disclosure of the files would compromise a substantial, as opposed to de minimis , privacy interest." Multi Ag Media LLC ,
"Finding a substantial privacy interest does not conclude the inquiry," however. Multi Ag Media LLC ,
2. Detainee Information
The court likewise upholds DOD's withholding of detainee information pursuant to Exemption 6. See McCubbin Decl. ¶ 70. As the agency explains, "release of this information would constitute a clearly unwarranted invasion of [the detainees'] personal privacy, particularly with respect to medical information and identifying numbers that can be tied to detainee conduct and health." Id. ¶ 71.
Plaintiffs' objection to these withholdings centers primarily on their assertion that the government "is redacting information similar in form to information that it has already released." Pls.' Mem. at 36. In particular, Plaintiffs assert that DOD cannot invoke Exemption 6 as to: (1) detainee numbers-two of which the government released in this production, see id. at 36-37 (referring to Records 325 and 343, which identify detainees 768 and 128, respectively), and others online, see Pls.' Reply at 21-22 (citing List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba, from January 2002 through May 15, 2006 , U.S. Dep't of Def., http://archive.defense.gov/news/May2006/d20060515% 20List.pdf)-and (2) detainees' medical information, in light of the government's previous release of medical charts tracking hunger-striking detainees' weight, see Pls.' Mem. at 37 (citing Pls.' Stmt. ¶ 40).
As an initial matter, the court notes that, notwithstanding their detention, the detainees at Guantánamo Bay maintain a substantial privacy interest in their personally identifying information. See Associated Press v. U.S. Dep't of Def. ,
The court recognizes that there is significant public interest in the withheld information, as disclosure of the information could assist the public in learning more about the government's treatment and care of detainees at JTF-GTMO. See Int'l Counsel Bureau ,
* * *
Having reviewed the agency's declaration as to the remaining categories of undisputed information withheld under Exemption 6, see McCubbin Decl. ¶¶ 64, 66, 69, 72, the court is satisfied that DOD has adequately shown that the disclosure of this information would constitute a clearly unwarranted invasion of personal privacy. The court therefore grants summary judgment in favor of DOD as to its Exemption 6 withholdings.
E. Exemption 7(E)
Next, the court addresses the government's invocation of Exemption 7(E) to redact information from four records: Records 257, 263, 270, and 291. McCubbin Decl. ¶ 76. According to McCubbin, the information redacted from these records relates to "security protocols, including detainee distribution among the camps, and protocols related to identifying and dealing with detainees who claim to be on hunger strike."
Exemption 7(E) allows an agency to withhold information "compiled for law enforcement purposes" if its release "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."
Record 257 is a memorandum that compares Bureau of Prisons ("BOP") and DOD policies for the management of hunger strikers and enteral feeders and "describes in minute detail the procedures to be followed by guard personnel to confirm if a detainee is on hunger strike, and, if so, the steps that need to be taken, including the specific techniques used for enteral feeding." McCubbin Decl. ¶ 76. As a threshold matter, Plaintiffs do not dispute that these records have been "compiled for *94law enforcement purposes." Cf. Pls.' Mem. at 38; McCubbin Decl. ¶ 75. Instead, Plaintiffs assert that the redactions in Record 257 are inappropriate because DOD has not shown that the withheld information constitutes techniques and procedures or guidelines used "for law enforcement investigations or prosecutions" within the meaning of the statutory text. See Pls.' Mem. at 39-40. In Plaintiffs' view, the "force-feeding procedures" used at JTF-GTMO bear no relation to any law enforcement investigation or prosecution, and therefore cannot be withheld under Exemption 7(E). See
Contrary to Plaintiffs' assertion, Exemption 7(E) has not been limited to "techniques and procedures" or "guidelines" that directly relate to a particular investigation, prosecution, or crime. Instead, courts have widely approved of agency's invocations of Exemption 7(E) to shield from disclosure law enforcement techniques, procedures, or guidelines that, if disclosed, would raise security concerns or render the withheld law enforcement techniques or guidelines ineffective. See, e.g., Jimenez v. FBI ,
The recent case of Pinson v. Department of Justice is instructive on the applicability of Exemption 7(E) to the information redacted in Record 257. See
In this case, the information withheld from Record 257 details the manner in which guards are to engage in the "inherently contentious and confrontational process of enteral feeding" of JTF-GTMO detainees. Def.'s Reply at 36. As in Pinson , the information redacted from Record 257 falls within Exemption 7(E)'s ambit because its disclosure would raise significant security concerns for those guards implementing the enteral feeding procedures, thus rendering the "law enforcement techniques and procedures" and "guidelines" spelled out in the document ineffective.
*95DOD has also sufficiently shown that the information in Record 257 is "not generally known to the public" and that its disclosure would pose a reasonable risk of circumvention of the law.
Accordingly, the court is satisfied that DOD has met its burden of providing a logical explanation of how disclosing the information withheld under Exemption 7(E)-including the information withheld from Records 263, 270, and 291-could present a risk of circumvention of the law. See Shapiro ,
F. Segregability
Finally, the court turns to evaluate the segregability of the records produced to Plaintiffs. The court will address only Defendant's segregability determination as to the information that was properly *96withheld pursuant to section 1.4(g) of EO 13,526 and Exemptions 3, 6, and 7(E). See Sussman v. U.S. Marshals Serv. ,
Because "[t]he focus of the FOIA is information, not documents, ... an agency cannot justify withholding an entire document simply by showing that it contains some exempt material." Mead Data Cent., Inc. v. U.S. Dep't of Air Force ,
The court is satisfied that the agency has complied with its segregability responsibility as to the information withheld pursuant to section 1.4(g) of EO 13,526 and Exemptions 3, 6, and 7(E). The agency's declaration affirms that the pages produced to Plaintiffs "were reviewed line-by-line to identify information exempt from disclosure for which a discretionary waiver of exemption could be applied." McCubbin Decl. ¶ 78; see also Droz Decl. ¶ 8 (explaining that Records 189, 201, and 251 "were reviewed line-by-line to identify information exempt from disclosure" and that "[e]very effort was made to segregate releasable material from exempt material"). Indeed, the production itself is indicative of the line-by-line parsing accomplished by Defendant: nearly all of the responsive records produced to Plaintiffs are redacted only in part. See Citizens for Responsibility & Ethics in Wash. ,
V. CONCLUSION AND ORDER
For the reasons set forth above, the court grants in part and denies in part Defendant's Motion for Summary Judgment, ECF No. 18, and Plaintiffs' Motion for Summary Judgment, ECF No. 19.
1. Defendant's Motion is granted as to: (a) the adequacy of the search; (b) withholdings under Exemption 1, section 1.4(g) of Executive Order 13,526 ; (c) withholdings under Exemption 3; (d) withholdings under Exemption 6; and (e) withholdings under Exemption 7(E).
2. Defendant's Motion is denied as to: (a) withholdings under Exemption 5; and (b) withholdings under Exemption *971, section 1.4(a),12 (b), (c) of Executive Order 13,526. Defendant shall supplement its declarations to address the deficiencies identified in this Memorandum Opinion and may also submit to the court a classified ex parte declaration to support its withholdings.
3. Plaintiffs' Motion is granted insofar as DOD has withheld officially acknowledged information as to: (a) the May 15, 2013 tally of hunger strikers and tube-fed detainees at JTF-GTMO, and (b) the June 13, 2015 email describing a detainee transfer to Oman in Record 207, but is denied in all other respects.
The parties shall meet and confer and no later than October 10, 2018, propose a schedule for an additional round of summary judgment briefing.
Critically, "[t]he foreseeable harm standard applies only to those FOIA exemptions under which discretionary disclosures can be made." S. Rep. No. 114-4, at 8. Information that is prohibited from disclosure or exempt from disclosure by law "is not subject to discretionary disclosure and is therefore not subject to the foreseeable harm standard." Id.; cf. U.S. Dep't of Justice, Guide to the Freedom of Information Act 686-92 (2009 ed.), https://www.justice.gov/archive/oip/foia_guide09/disclosure-waiver.pdf (explaining that disclosure is prohibited by law when information is covered by FOIA Exemptions 1 or 3, Exemption 4 if the disclosure is prohibited by the Trade Secrets Act, or Exemptions 6 or 7(C) if disclosure is prohibited by the Privacy Act of 1974).
Specifically, the court reviewed in camera Records 31, 72, 129, 140, 168, 240, 248, 265, 278, 281, 288, 295, 297, 307, 317, 320, 321, 326, 328, 331, and 335. See Minute Order, Aug. 22, 2018; Def.'s Notice of Lodging of Classified Documents for Ex Parte, In Camera Review, ECF No. 26.
Other issues have been conceded by Plaintiffs. First, Plaintiffs' claim that DOD improperly denied expedited processing of their FOIA request is now moot, as DOD completed its processing of Plaintiffs' request. See
Specifically, DOD withheld information from the following email records and attachments: Records 1, 3-4, 22-24, 29, 31, 45-46, 50, 58, 60, 62, 64-66, 72, 75, 83, 85, 99, 105, 129-31, 136, 140, 143-45, 148-49, 160, 186, 189, 195, 199-201, 211, 216, 219, 226, 232-33, 248, 250-55, 258, 260, 262-88, 290-97, 299, 301, 303-05, 307, 310-14, 317- 21, 324, 326-28, 331-41, 343, and 346-47. See McCubbin Decl. ¶ 42; Vaughn Index at 17-22.
Notably, the Department of Justice's Office of Information Policy has not yet updated its current Guide to the Freedom of Information Act to reflect the "substantive and procedural amendments" contained in the FOIA Improvement Act of 2016. See U.S. Dep't of Justice, Guide to the Freedom of Information Act , https://www.justice.gov/oip/doj-guide-freedom-information-act-0; see also U.S. Dep't of Justice, OIP Summary of the FOIA Improvement Act of 2016 , https://www.justice.gov/oip/oip-summary-foia-improvement-act-2016.
In Edelman , the court only briefly addressed the FOIA requester's assertion that the SEC failed to conduct the "foreseeable harm analysis" required by the FOIA Improvement Act of 2016 to support its Exemption 5 withholdings, before noting that the Act itself "ha[d] no bearing on the Court's analysis" because the FOIA request was made in January 2014, two years before the FOIA Improvement Act-and its "foreseeable harm" standard-went into effect. See
The court is satisfied that the information pertaining to the military commission ruling withheld from Records 281, 320, and 335, see
The court readily dismisses Plaintiffs' unsupported assertion that the government has improperly withheld information under Exemption 1 to conceal information that would be embarrassing to government officials. See Pls.' Mem. at 22 (identifying Records 265 and 320). The court has reviewed in camera Records 265 and 320 and finds no indication of impropriety or government attempts to wrongfully conceal information in these Records.
One caveat: according to Plaintiffs, the Miami Herald tally of hunger strikers and force-fed detainees "documents the routine official acknowledgment of the number of hunger strikers." Pls.' Reply at 14. For example, Plaintiffs explain that the May 15, 2013 tally of 100 hunger strikers and 30 tube-fed detainees was derived from the public statement of Army Lt. Col. Samuel House, the JTF-GTMO spokesman. See
However, with regard to the other figures reported on the Miami Herald website, which range from March 4, 2013 to December 2, 2013, see
Defendant also invoked Exemption 6 to withhold information related to third parties-including two court experts and visitors to Guantánamo-from certain documents. See McCubbin Decl. ¶ 72. Plaintiffs do not challenge those withholdings. Cf. Pls.' Mem. at 35 & n.8.
The court assumes, without deciding, that Exemption 7(E)'s requirement that disclosure of the withheld information "could reasonably be expected to risk circumvention of the law" applies to "techniques and procedures for law enforcement investigations or prosecutions," as it does to "guidelines." See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ,
The court found, however, that the following categories of Exemption 1, section 1.4(a) withholdings were properly withheld: (1) records pertaining to detainee conduct, infra at IV.B.1.a; (2) records pertaining to "an order affecting female guards," infra at IV.B.1.d; and (3) records pertaining to detainee-related proceedings in federal court and military commissions, infra at IV.B.1.e.
Reference
- Full Case Name
- Carol ROSENBERG v. U.S. DEPARTMENT OF DEFENSE
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