Bloche v. Dep't of Def.
Bloche v. Dep't of Def.
Opinion of the Court
DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL JUDGMENT
I. INTRODUCTION
In this case arising under the Freedom of Information Act ("FOIA"),
II. LEGAL STANDARD
FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.' " FBI v. Abramson ,
"FOIA cases typically and appropriately are decided on motions for summary judgment." Prop. of the People, Inc. v. Office of Mgmt. and Budget ,
Applying these principles to the FOIA context, a government agency is "entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates 'that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.' " Prop. of the People ,
To meet its burden, the agency may "rely on declarations that are reasonably detailed and non-conclusory." Pinson ,
III. ANALYSIS
In this case, the adequacy of the Defendants' searches is not at issue-as the Court noted above. Instead, Plaintiffs dispute only the validity of certain FOIA exemptions that Defendants have claimed. The majority of Plaintiffs' challenges relate to Defendants' invocations of the deliberative process privilege, which falls within the ambit of FOIA Exemption 5. See
A. Exemption 5 - The Deliberative Process Privilege
FOIA Exemption 5 permits agencies to withhold "inter-agency or intra-agency memorandums or letters that would not be available by law to a party ... in litigation with the agency."
Relevant here is the deliberative process privilege, which protects "documents reflecting advisory opinions, recommendations and deliberations comprising *51part of a process by which governmental decisions and policies are formulated." Id. at 38 (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n ,
"To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment." Prop. of the People ,
1. Defendants' Claims of Deliberative Process Privilege
Here, all three Defendant organizations have cited the deliberative process privilege as a basis for withholding a variety of documents either in full or in part. Most of these documents, however, fall into at least one of two broad categories. The first category encompasses draft agency policy documents and the discussions surrounding them. The second involves the formulation of agency responses to statements or inquiries from other entities-like media organizations, public interest groups, and even other governmental departments.
In the abstract, both of these categories of documents fall within the scope of the deliberative process privilege-as long as each particular privilege claim is properly supported by the "relatively detailed justification" that FOIA requires, Mead Data Cent., Inc. ,
With respect to the second category, courts have repeatedly found the deliberative process privilege "to cover agency deliberations about how to respond to media inquiries regarding prior agency actions, as well as discussions about press coverage of existing agency policies, and suggested talking points about how to answer questions regarding the duties assigned to agency employees."
*52Competitive Enter. Inst. v. EPA ,
For the same reason, the privilege also covers determinations about how to respond to statements or inquiries made by public interest groups, and it covers how to respond to Congress. In those instances, too, the documents at issue memorialize the "ongoing decisionmaking about 'how the agency's activities should be described to the general public.' " Competitive Enter. Ins. ,
With these general principles in mind, Defendants' claims of deliberative process privilege here are proper as long as they are supported by a relatively detailed justification. Most claims are. An illustrative example of a document within the first category of claims is Navy 12, which is a 222-page compilation of "several draft documents, including a 106-page draft of Army Regulation (AR) 190-8 (Detainee Operations) that reflects attorneys' comments on the draft, which was created for the purpose of revising the previous revision of the same AR." Decl. of Major Sean D. Schrock, USMC ("Schrock Decl.") ¶ 17(b)(2), ECF No. 61-2. Attached to the draft AR are draft memorandums and "other internal documents providing legal advice and comment to senior service legal leaders upon the draft AR."
Another example is OASD-HAGC 71-229, which "contains 15 different copies of the draft DoD Instruction ... that led to the DoD Instruction 2310.08E, which is public." OASD-HAGC Vaughn Index, ECF No. 69-1 at 3. Most of these drafts, OASD-HAGC clarifies, also "include 'track changes' and marginal notes."
A third example-and one that does not involve a draft regulation or instruction-is OASD-HA Policy 660-90, which is a "draft of a portion of an investigation report" titled "Medical Issues Relevant to Interrogation and Detention Operations." OASD-HA Policy Vaughn Index, *53ECF No. 69-2 at 17. The agency has provided less information about this document than the two preceding examples, but there is still enough to conclude that the draft report is privileged. As the agency has stated that the draft includes "preliminary opinions which do not reflect DoD's final decision,"
There are plenty of good examples for the second category of documents as well. Take OASD-HA Policy 251-57, which the agency has explained "is an email string with attached draft talking points" that "was part of the pre-decisional deliberative process of preparing a DoD official for a media interview." OASD-HA Policy Vaughn Index, ECF No. 69-2 at 9 ; see also, e.g., id. at 9-10 (similar descriptions for OASD-HA Policy 244-48, 249-50, and 258-63); OASD-HAGC Vaughn Index, ECF No. 69-1 at 6 (similar description for OASD-HAGC 319- 24). OASD-HAGC 547-51 is also illustrative: it includes the redaction of a pre-decisional "comment from a DoD employee on a potential DoD response to an American Psychiatric Association ... statement." OASD-HAGC Vaughn Index, ECF No. 69-1 at 13 ; see also, e.g., id. at 14-15 (OASD-HAGC 557-62 being a draft response to the American College of Physicians; OASD-HAGC 587-88 being a draft response to a report by the American Medical Association). As is OASD-HAGC 453-87, which includes "draft briefing slides being circulated for comment within DoD ... as part of the predecisional deliberations on information to brief a Congressional field office regarding the Army Field Manual" and its interrogation policy. Id. at 11; see also id. at 17 (OASD-HAGC 641-47: a draft white paper that was to be used to inform Congressional offices); OASD-HA Policy Vaughn Index, ECF No. 69-2 at 24 (OASD-HA Policy 851-52: email string "discussing how to respond to several questions from the Senate Armed Services Committee Staff."). For all of these documents, the relevant agency has provided enough information for the Court to conclude that the document memorializes the "ongoing decisionmaking about 'how the agency's activities should be described to the general public.' " Competitive Enter. Ins. ,
Having said all of this, Defendants have not provided sufficiently detailed justifications for all of the documents that they claim to be privileged. Unlike the examples above, a select few of *54Defendants' claims identify neither an internal policy-oriented decisionmaking process nor a possible public communication being planned to an outside entity. OASD-HA Policy 758- 59, 761-62, and 765-66 all involve "a request from the Army Surgeon General to the Assistant Secretary of Defense for Health Affairs" and purportedly reflect "internal deliberations regarding a proposed response to the" Assistant Secretary. See OASD-HA Policy Vaughn Index, ECF No. 69-2 at 19-20. But the agency has never provided even a vague description of what the request concerned, and it is not clear from the information provided that the Army Surgeon General's response to another Department of Defense official would constitute the kind of "public relations effort[ ]" that, say, a communication with Congress would. Comm. on Oversight & Gov't Reform ,
In addition to these five documents, there are two OASD-HAGC claims that are also insufficiently supported. The first is OASD-HAGC 563-68, which is titled "Email: AMA Draft" and has apparently been released in part. OASD-HAGC Vaughn Index, ECF No. 69-1 at 14. The problem with respect to OASD 563-68 is that the agency's explanation for its redactions-however extensive they may be-is "N/A." Id. Thus, although it appears that this document might involve a draft of a public communication with the American Medical Association, the agency has not told the Court or Plaintiffs why certain material is privileged. The agency must justify its claim of privilege to meet its burden.
Then finally, OASD-HAGC 272 "is the coordination signature page" of a memo that was released to Plaintiffs in full. Id. at 4. According to OASD-HAGC, release of the signature page "would reveal the deliberative process of which components and signatories were required prior to the finalization of the memorandum." Id. But as another court in this circuit has already held, the names on a signature page "are indisputably 'factual.' " Judicial Watch, Inc. v. Department of the Navy ,
All told, then, the Court grants Defendants' motion for summary judgment with respect to all of their claims for deliberative process privilege, with the exception of the seven documents identified above: OASD-HAGC 272 and 563-68, and OASD-HA Policy 28-35, 659, 758-59, 761-62, and 765-66.
2. Segregability
Before moving onto Defendants' other claimed exemptions, there is one other deficiency with one of the Defendants' submissions with respect to the deliberative process privilege-that Defendant being OASD-HA Policy. As Plaintiffs correctly note, "the deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must." Loving ,
As the Court just explained, Defendants here have done the former: with the exception of the seven documents specifically *56identified as having insufficient explanations, the entries in their Vaughn indexes are adequate. The Navy and OASD-HAGC have also met the latter requirement: they submitted declarations stating that they have released all segregable information. See Schrock Decl. ¶¶ 5-6; Decl. of John A. Casciotti ¶ 3, ECF No. 61-5. OASD-HA Policy has not, however, submitted such a declaration. The agency instead asks the Court to infer that it has met its obligation based on the fact that it has released a large portion of its privileged documents in part. But the Court declines this invitation; courts typically require sworn declarations or affidavits to avoid such conjecture. Thus, although OASD-HA Policy, like the other two Defendants, has shown a willingness to segregate information, it has failed to establish that no additional reasonably segregable information exists within the material it has withheld. See Loving ,
B. Exemption 1
As the Court said earlier, aside from Plaintiffs' challenges to Defendants' claims of deliberative process privilege, there are three additional discrete issues raised in the parties' motions for summary judgment. The first relates to FOIA Exemption 1, which protects material "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and" that is "in fact properly classified pursuant to such [an] Executive order."
In evaluating the Navy's Exemption 1 claim, the Court is guided by the same general principles identified above: the agency's justification for invoking the exemption "is sufficient if it appears logical or plausible' " Am. Civil Liberties Union v. Dep't of Def. ,
*57Am. Civil Liberties Union ,
Here, contrary to the Plaintiffs' contentions, the Navy's submission is sufficiently detailed to show that parts of Navy 42 logically fall within the scope of Exemption 1. As the Court already said, the Navy has asserted that the parts of the document are classified at the "Secret" level. In the Court's view, it certainly makes sense that a classified detainee interrogation log would contain information about intelligence sources and methods, and the agency's declaration explains that there are many reasons why revelation of those sources and methods could risk national security and the defense against transnational terrorism. For one, intelligence sources, the declaration states, "can ... be expected to furnish information only when confident that they are protected from retribution by the absolute secrecy surrounding their relationship to the United States government." Schrock Decl. ¶ 17(s). The declaration also explains that "[d]etailed knowledge of the methods and practices of an intelligence agency must be protected from disclosure because such knowledge would be of material assistance to those who would seek to penetrate, detect, prevent, avoid, or damage the intelligence operations of the United States." Id. And the declaration says that "[d]isclosure of information the U.S. government obtains through intelligence sources or methods could reasonably be expected to enable persons and groups hostile to the United States to identify U.S. intelligence activities ... and to design countermeasures to them." Id. This justification is logical and plausible, and it is not "contradicted by contrary evidence in the record or by evidence of the agency's bad faith," Am. Civil Liberties Union ,
C. Exemption 7(E)
Plaintiffs also challenge the Navy's assertion of FOIA Exemption 7(E) over two documents: Navy 35 and Navy 38, both of which contain a six-page memorandum titled "An Alternative Approach to the Interrogation of Detainees at Guantanamo Bay, Cuba" that was sent by the Director of the Naval Criminal Investigative Service ("NCIS") to the Navy General Counsel. See Schrock Decl. ¶¶ 17(l), (o). Navy 38 also includes an eleven-page appendix titled "Specific Recommendations for Interrogators of Al-Qa'ida Detainees at Guantanamo Bay, Cuba" that "discuss[es] in detail proposed interrogation strategies and techniques." Id. ¶ 17(o).
Exemption 7(E) permits the withholding of "records or information compiled for law enforcement purposes, but *58only to the extent that the production of such law enforcement records or information ... 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."
Neither of these requirements are particularly demanding, but the Navy has not met them here. As justification for claiming Exemption 7(E), the Navy's declaration merely says that the withheld material "identif[ies] Law Enforcement and/or National Security techniques and procedures that are not widely known" and that are sometimes "intended for covert use." Schrock Decl. ¶ 17(o). Disclosure of this information, the Navy contends, "would diminish or negate the effectiveness of these techniques and procedures." Id. ¶ 17(o). This reasoning is conclusory; it essentially just restates the applicable legal standard in different words. With respect to the Exemption's first requirement, the Navy's declaration names no relevant "law enforcement duty" and no "individual or incident" at issue. And with respect to the second requirement, the declaration identifies no "law" that would be easier to violate if the information were released. To be sure, Plaintiffs do not appear to have challenged certain aspects of the Navy's assertions here, and the Court can easily assume that NCIS qualifies as a law enforcement agency. The Court can also imagine an argument that the disclosure of the specifics of interrogation methods might make it easier for detainees to resist interrogation. But the Court cannot be required to make such assumptions; the burden is on the Navy to establish the requisite nexus. As things currently stand, then, the Court is unable to conclude that the withheld material was "compiled for law enforcement purposes" or that its release "could reasonably be expected to risk circumvention of the law."
D. Exemption 6
Finally, Plaintiffs challenge the OASD Defendants' invocation of FOIA Exemption 6 to redact the domain portions of agency email addresses-like "@defense.gov." (The Navy has not redacted this information.) Exemption 6 permits the withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
In this case, Defendants have not even shown how the domain part of a government email address constitutes a "personnel, medical, or similar file" within the meaning of Exemption 6. As Plaintiffs correctly note, email domains do not "refer to a particular individual."
And even if Defendants had established that email domains were "similar files" for purposes of Exemption 6, they have not shown a " 'substantial' privacy interest" that weighs in favor of withholding. Judicial Watch v. Navy ,
Nonetheless, the Court will treat this issue essentially the same way it has treated the others where Defendants have failed to meet their burden. If Defendants still believe that certain email domains are exempt under Exemption 6, they may submit, within thirty days, an updated justification that explains (1) how the relevant domains are "similar files" that refer to a particular individual; (2) how disclosure of the domains would implicate any substantial privacy interest; and (3) how that substantial privacy interest outweighs the public's interest in seeing the information. Should Defendants choose to exercise this option, Plaintiffs may file a response within twenty-one days.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' motion for partial summary judgment is *60DENIED , and Defendants' cross-motion for partial summary judgment is GRANTED IN PART and DENIED IN PART . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
As a formal matter, OASD-HA Policy and OASD-HAGC are not actually Defendants; they are instead components of a named Defendant, the Department of Defense. For simplicity, however, the Court will occasionally refer to them as Defendants in this opinion.
The parties' cross-motions for summary judgment (ECF Nos. 96 and 97) with respect to six other Defendant entities-the Army, the Defense Intelligence Agency, the Office of the Director of National Intelligence, Joint Task Force Guantanamo, United States Central Command, and the United States Special Operations Command-will be resolved in a separate forthcoming opinion and order.
All three of the above examples are admittedly fairly long documents. According to Plaintiffs, any parts of these and other similar drafts that were eventually "formally or informally adopted in final versions must be disclosed." Pls.' Opp'n to Defs.' Cross-Mot. for Summ. J. ("Pls.' Opp'n") at 14, ECF No. 62. This is not the law, though; FOIA does not require an agency to release portions of any draft that are ultimately repeated in the final policy. For one, as Defendants correctly note, this "would be a waste of time and elevate form over substance, as FOIA requesters would only receive what they already had." Defs.' Reply at 20, ECF No. 65. But also, even these repeat disclosures would have consequences for the agencies: they "would divulge information regarding 'decisions to insert or delete material or to change [the] draft's focus or emphasis' and thus 'would stifle the creative thinking and candid exchange of ideas necessary to produce good ... work.' " Hardy ,
In reviewing some document entries, the Court has been able to obtain additional context for the relevant agency's claim of privilege from the document's title. If, taking the title and the agency's explanation together, the Court was able to discern how a policy-oriented decisionmaking process was involved, it has upheld the claim of privilege. For the select few documents identified above, however, the title provides little, if any, additional information.
At the time the parties completed their briefing, the Navy asserted that Navy 31, 32, and 40 were exempt under FOIA Exemption 5, as well as other exemptions. See NavyVaughn Index, ECF No. 61-7 at 4-5. Since then, however, the Navy has released those documents in part, making only minimal redactions under Exemption 6 to protect the identities of individuals. As this invocation of Exemption 6 is undoubtedly proper, the Court grants summary judgment in favor of the Navy with respect to those three documents. See, e.g., Judicial Watch v. Dep't of the Navy ,
The Navy has also cited FOIA Exemptions 3 and 6 to redact the names of non-senior military interrogators and other individuals contained within Navy 42. Schrock Decl. ¶ 17(s). To the extent that Plaintiffs challenge those redactions, the redactions are proper. See Hall v. CIA ,
Reference
- Full Case Name
- M. Gregg BLOCHE and Jonathan H. Marks v. DEPARTMENT OF DEFENSE
- Cited By
- 32 cases
- Status
- Published