RUDOLPH CONTRERAS, United States District Judge.
This suit arising under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, began in 2007, when Plaintiffs M. Gregg Bloche and Jonathan H. Marks sought records from multiple federal government entities concerning the involvement of medical professionals in designing and implementing interrogation tactics. Presently before the Court are two sets of motions. First, three Defendant agencies, (1) the Department of the Navy ("Navy"); (2) the Office of the Assistant Secretary of Defense for Health Affairs ("OASD-HA Policy"); and (3) the Department of Defense's Office of the Deputy General Counsel for Personnel and Health Policy ("OASD-HAGC"), renew their motion for summary
Second, separately before the Court are cross-motions for summary judgment concerning six other Defendant agencies: (1) the United States Army ("Army"); (2) the Office of the Director of National Intelligence ("ODNI");
Congress enacted FOIA to permit citizens to discover "what their government is up to." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (Douglas, J. dissenting)). FOIA requires the agency to disclose records located in response to a valid FOIA request, unless material in the records falls within one of FOIA's nine statutory exemptions. 5 U.S.C. § 552(b); see also Judicial Watch, Inc. v. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).
"FOIA cases typically and appropriately are decided on motions for summary judgment." Pinson v. U.S. Dep't of Justice, 236 F.Supp.3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). In general, summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In a FOIA suit, "summary judgment is appropriate if there are no material facts 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, Inc. v. Office of Mgmt. and Budget, 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017)).
A court addressing a motion for summary judgment in a FOIA suit is to review the matter de novo. See 5 U.S.C. § 552(a)(4)(B); Life Extension Found., Inc. v. Internal Revenue Serv., 915 F.Supp.2d 174, 179 (D.D.C. 2013). The reviewing court may grant summary judgment based on the record and agency declarations if "the agency's supporting declarations and exhibits describe the requested documents and `the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption,
The sole issue in Defendants' renewed motion for summary judgment, as noted previously, is Defendants' application of FOIA exemptions. This Court's March 2019 memorandum opinion and order denied summary judgment with respect to nine documents, directing Defendants both to produce these documents for in camera review and to provide supplementary justification. The majority of these documents were withheld in full or in part pursuant to Exemption 5's deliberative process privilege,
Exemption 5 of FOIA protects "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." 5 U.S.C. § 552(b)(5). The Supreme Court and the D.C. Circuit have construed Exemption 5 to exempt documents "normally privileged in the civil discovery context." Sears, 421 U.S. at 149, 95 S.Ct. 1504; see also Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). Exemption 5 thus "incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant"—including, as relevant here, "the deliberative process privilege." Brown v. Dep't of State, 317 F.Supp.3d 370, 375 (D.D.C. 2018) (quoting Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (internal quotation mark and citation omitted)); see also Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006).
The deliberative process privilege protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Loving, 550 F.3d at 38 (quoting U.S. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001)). It aims to "prevent injury to the quality of agency decisions," Sears, 421 U.S. at 151, 95 S.Ct. 1504, and "rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news," Klamath Water Users Protective Ass'n, 532 U.S. at 8-9, 121 S.Ct. 1060. The privilege thus balances the merits of transparency against the concern that agencies will be "forced to operate in a fishbowl." Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).
For the deliberative process privilege to apply, the record must "bear on the formulation or exercise of agency policy-oriented judgment." Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). To qualify, the record at issue must be both predecisional and deliberative. See Prop. of the People, 330 F. Supp. 3d at 382. To be predecisional, a record must be antecedent to the adoption of an agency policy. See Access Reports v. U.S. Dep't of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). Although "the term `deliberative' does not add a great deal of substance to the term `pre-decisional,'" it essentially means "that the communication is intended to facilitate or assist development of the agency's final position on the relevant issue." Nat'l Sec. Archive v. Cent. Intelligence Agency, 752 F.3d 460, 463 (D.C. Cir. 2014).
Moreover, the agency bears the burden of showing that the privilege properly applies. See Dillon v. U.S. Dep't of Justice, No. 17-1716, 2019 WL 249580, at *8 (D.D.C. Jan 17, 2019) (citing Prop. of the People, 330 F. Supp. 3d at 380). In order to meet its burden, the agency must offer a "relatively detailed justification" of its application of the privilege. Elec. Privacy Info. Ctr. v. U.S. Drug Enf't Agency, 192 F.Supp.3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). "An agency may rely on detailed affidavits, declarations, a Vaughn index, in camera review, or a combination of these tools." Elec. Frontier Found. v. U.S. Dep't of Justice, 57 F.Supp.3d 54, 59 (D.D.C. 2014) (quoting Comptel v. Fed. Commc'n Comm'n, 910 F.Supp.2d 100, 111 (D.D.C. 2012)). "Ultimately, an agency's
At issue here are five documents, OASD-HA Policy 28-35, 659, 758-59, 761-62, and 765-66, for which Defendant OASD-HA Policy did not previously provide "sufficiently detailed justifications" for its application of FOIA exemptions. Bloche II, 370 F. Supp. 3d at 53. As this Court previously explained, the contested documents fall into two categories: first, agency policy documents and associated discussions and, second, possible communications with outside entities. Id. at 51. "[B]oth 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." Id. (quoting Mead Data Cent., Inc., 566 F.2d at 251). For the following reasons, OASD-HA Policy has now adequately justified its privilege claim for almost all of the challenged OASD-HA Policy documents, but it has not established that the privilege properly applies to OASD HA Policy 28-35.
OASD HA Policy 28-35 is an email chain from 2008 along with an attached information memo ("info memo") discussing proposed amendments to DOD detainee healthcare policies. Second Herrington Decl. ¶ 8; see also Defs.' Mem. P. & A. Supporting Renewed Mot. 12-13. The info memo discusses proposed amendments to DoDI 2310.08E and 2310.01E that were offered by a representative from the group Physicians for Human Rights ("PHR"). Second Herrington Decl. ¶ 8. PHR's specific proposed text is appended to the info memo produced by the agency. Id. PHR submitted this material in response to the Assistant Secretary of Defense for Health Affair's ("ASD(HA)'s") desire for input regarding a potential amendment to these policies. Id. Exemption 5 was not applied to the email chain, but the attached info memo and proposed amendments offered by PHR are withheld in full under Exemption 5's deliberative process privilege. Id. Defendants justify this withholding as authorized by the "consultant corollary" exception to Exemption 5's general rule that a record must be an "interagency or intra-agency communication," 5 U.S.C. § 552(b)(5), to qualify as privileged. Defs.' Mem. P. & A. Supporting Renewed Mot. 13-14. Under the consultant corollary, "records of communications between an agency and outside consultants qualify as `intra-agency' for purposes of Exemption 5 if they have been `created for the purpose of aiding the agency's deliberative process.'" 100Reporters LLC v. U.S. Dep't of Justice, 248 F.Supp.3d 115, 146 (D.D.C. 2017) (quoting Pub. Citizen v. U.S. Dep't of Justice, 111 F.3d 168, 170 (D.C. Cir. 1997) (emphasis in original)); see also Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mex., 740 F.3d 195, 201 (D.C. Cir. 2014) ("This Court has also interpreted the phrase `intra-agency' in Exemption 5 to go beyond the text and include U.S. agency records authored by non-agency entities if those records were solicited by a U.S. agency in the course of its deliberative process." (citing McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331, 336 (D.C. Cir. 2011)). Defendants offer that this is just such a communication: "PHR's proposed amendments and the subsequent `info memo' summarizing PHR's proposals were created to aid the
In challenging this withholding, Plaintiffs primarily contest the vagueness of OASD-HA Policy's description of the document and the attachments. See, e.g., Pls.' Mem. P. & A. Opp'n Defs.' Renewed Mot. Partial Summ. J. ("Pls.' Mem. P. & A. Opp'n") 15 ("Even if one assumes (as Defendants imply but do not make clear) that the attached memo to the email chain contains not just PHR recommendations but comments by DoD personnel on the amendments, Defendants still have not explained how disclosure would inhibit full and frank exchange of views."). Plaintiffs also suggest that this communication was not predecisional because the policies were issued in 2006, yet the dialogue regarding proposed amendments occurred in 2008, such that the document was not "generated before the adoption of an agency policy" in the way that the deliberative process privilege requires. Pls.' Mem. P. & A. Opp'n 14 (quoting Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980)).
Neither party's argument is entirely persuasive. In contesting the predecisional status of the document, Plaintiffs misconstrue the relevant policymaking timeline. Here, as Defendants note, the policy deliberations concerned whether to amend the policy in 2008. An agency may deliberate about potential changes to a policy before concluding that there should be no amendment, and the privilege may still apply so long as the agency establishes the role that the documents at issue played in the deliberative process. Accord Nat'l Sec. Archive v. Cent. Intelligence Agency, 752 F.3d 460, 463 (D.C. Cir. 2014) ("There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still pre-decisional and deliberative."). Because OASD-HA. Policy's supplemental declaration specifies how opinions were generated in deliberation about a specific policy proposal that predated a final policy determination, it establishes that the document was part of a policy-oriented decisionmaking process in the manner required to invoke Exemption 5.
That said, without more clarity about PHR's relationship to the agency in generating the material, this Court cannot determine the propriety of applying the deliberative process privilege—which, again, only applies to "inter-agency or intra-agency" documents. 5 U.S.C. § 552(b)(5). The problem is that OASD-HA Policy has not provided enough explanation about its relationship with PHR, a non-agency actor, for the Court to assess whether OASD-HA Policy may properly rely on the "consultant corollary" exception to Exemption 5. It is true, as Defendants point out, that the involvement of an entity outside of the agency in generating a document does not necessarily bar the application of the privilege. See Defs.' Mem. P. & A. Supporting Renewed Mot. 14. But there are limitations on when an agency can rely on this exception. Critically, an agency can invoke the consultant corollary only if the "outside consultant did not have its own interests in mind." Pub. Emps. for Envtl. Responsibility, 740 F.3d at 201-02. Here, the agency received PHR's proposal after the ASD(HA) "asked his staff to meet with th[e] [PHR] representative to get their views for his consideration." Second Herrington Decl. ¶ 8. Without more detail that OASD-HA Policy fails to provide, this statement does not discharge OASD-HA Policy's burden to establish that the PHR "consultant function[ed] just as an [agency] employee
OASD 659 is an undated single page of handwritten notes by an unknown author that was located alongside a draft investigation report with the title, "Medical Issues Relevant to Interrogation and Detention Operations." Second Herrington Decl. ¶ 9. The agency withheld the draft investigation report, OASD-HA Policy 660-690, in full under Exemption 5, and this Court previously found the draft to be privileged. Id.; see Bloche II, 370 F. Supp. 3d at 53-54 (finding it "clear that the draft was part of a policy-oriented decisionmaking process," such that it was privileged). Defendants equate the handwritten notes to marginal comments in a draft document that were "presumably either helping to edit the draft or writing down excerpts from the report to participate in further deliberations." Second Herrington Decl. ¶ 9. Plaintiffs contest this designation, arguing that that the agency's withholding of the document is unjustified because OASD-HA cannot specify whether the notes were editorial comments or excerpts from the report, such that the agency has not indicated the document's role in the deliberative process. Pls.' Mem. P. & A. Opp'n 16. This argument about the function of the notes, however, is wrong-headed. Regardless of whether the notes were created to edit the draft or to participate in further deliberations about the draft, the agency's declaration attesting that the notes reference particular pages of the draft, see Second Herrington Decl. ¶ 8, and the Court's in camera review of the notes establish that they are the opinions of the writer regarding particular pages of the draft. As such, OASD-HA Policy has amply specified the notes' relationship to the draft and, by extension, how they contributed to a drafting "process by which governmental decisions and policies are formulated." Loving, 550 F.3d at 38 (quoting Klamath Water Users Protective Ass'n, 532 U.S. at 8, 121 S.Ct. 1060). Given that the draft is properly withheld in full pursuant to Exemption 5, it is logical that the notes are also properly withheld pursuant to that same privilege claim. Thus, the agency has adequately justified its application of the privilege here.
Plaintiffs' final deliberative process challenge concerns OASD-HA Policy 758-59, 761-62, and 765-66, which involve the same policy proposal and associated agency communications. Defendants' supplemental declaration provides specificity about the documents that was lacking in
Although the Court agrees that "personnel-related matter" is an imprecise designation in the abstract, when the phrase is read in context, the agency has provided additional specificity and related the matter to a particular deliberative process. The declaration provided gives enough detail for the Court to draw the conclusion that the "personnel-related matter arose under the provisions of DoD's detainee healthcare policy — DoDI 2310.08E — and stems from a request from the Army seeking the ASD(HA)'s approval of the Army's proposed plan for handling the matter." Defs.' Reply Supporting Renewed Mot. Partial Summ. J. 8 (citing Second Herrington Decl. ¶¶ 10-11). Because these communications were antecedent to any policy decision by ASD(HA) and written by individuals without decision-making authority, and because they operated to "facilitate or assist development of the agency's final position on the relevant issue," Nat'l Sec. Archive, 752 F.3d at 463, OASD-HA Policy has shown that the emails in OASD-HA Policy 758-59 and 761-62 qualify for the privilege. Moreover, the agency's supplemental discussion establishes that OASD-HA Policy 765-66, the text of the Army's initial request, also qualifies. This text contains "the Army's rationale" and "proposed plan" and is thus precisely the sort of document "seek[ing] a decision" that Exemption 5 protects in order to encourage uninhibited inter-agency dialogue. Second Herrington Decl. ¶ 11.
Before approving the agency's invocation of the privilege with respect to OASD-HA Policy OASD-HA Policy 659, 758-59, 761-62, and 765-66, however, this Court must also "make specific findings of segregability regarding the documents to be withheld."
Here, as described above, OASD-HA Policy has provided supplementary material in the form of a declaration that details the agency's withholdings. The agency has further averred that it conducted a "line-by-line review of OASD-HA Policy's records" and determined that it "released all reasonably segregable information." Second Herrington Decl. at ¶ 12. Plaintiffs contend that this statement is not enough, arguing that the withholding of draft documents in full suggests that OASD-HA Policy did not release non-exempt, factual information. Pls.' Mem. P. & A. Opp'n at 17-18. But this bare allegation does not overcome the "presumption" that the agency "complied with the obligation to disclose reasonably segregable material." Sussman, 494 F.3d at 1117 (citing Boyd v. U.S. Marshals Serv., 475 F.3d 381, 391 (D.C. Cir. 2007)). Nor do Plaintiffs provide any evidence of an "alleged Government impropriety" that might overcome this presumption. Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). Thus, the supplemental materials submitted discharge the agency's obligation, and the agency may withhold OASD-HA Policy 695, 758-59, 761-62, and 765-66 pursuant to Exemption 5's deliberative process privilege.
The sole remaining issue in Defendants' renewed motion for summary judgment is Defendant Navy's application of Exemption 7(E) to withhold information in two documents, Navy 35 and Navy 38. See Defs.' Mem. P. & A. Supporting Renewed Mot. 5-7. Both of these documents "pertain to detainee interrogation operations at the United States Naval Base, Guantanamo Bay, Cuba." Id. at 7 (citing id. Ex. B, Declaration of Lieutenant Peter Tyson Marx, JAGC, USN ("Marx Decl.") ¶ 7a-b, ECF No. 110-3). For the reasons forth below, Navy has justified its invocation of Exemption 7(E) for the withheld portions of Navy 35 and Navy 38.
FOIA Exemption 7(E) permits an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). An agency seeking to apply Exemption 7(E) must, accordingly, make two showings. First, to demonstrate that the "records or information" were "compiled for law enforcement purposes," id.,
Navy 35 is a six-page memorandum dated January 31, 2001, from the Naval Criminal Investigative Service ("NCIS") Director to the Navy General Counsel that was "attached to a one-page memorandum from the Navy General Counsel to the Assistant Secretary of Defense (Special Operations & Low Intensity Conflict) dated February 4, 2003, with the subject line `Proposed Alternative Approach to Interrogations.'" Marx Decl. ¶ 7a. This one-page memorandum has been released in full to Plaintiffs, id., and only the redactions in the six-page memorandum itself are presently contested.
Navy 38 is an eighteen-page document that partially overlaps with the material contained in Navy 35. See Marx Decl. ¶ 7b. Specifically, Navy 38 consists of the same one-page "Proposed Alternative Approach to Interrogations" memorandum and the same six-page memorandum contained in Navy 35. Id. Navy 38 additionally includes an eleven-page appendix entitled "Special Recommendations for Interrogators of Al-Qa'ida Detainees at Guantanamo Bay, Cuba." Id. This appendix is partially withheld under Exemption 7(E). Id. ¶ 7b(2).
Navy offers that the information contained in both Navy 35 and Navy 38 "readily meets the threshold requirement of Exemption 7"—that the materials were "compiled for law enforcement purposes," 5 U.S.C. § 553(b)(7)(E)—because it was "compiled to assist" NCIS "agents and other law enforcement personnel carry out their investigatory mission." Marx Decl. ¶ 7b(1). Navy further states that disclosure of the redacted portions of the six-page memorandum appearing in both Navy 35 and Navy 38 would reveal "psychological and strategic approaches to interviewing detainees that are not generally known to the public." Id. ¶ 7b(2). The agency paints a dim picture of public disclosure, warning that the information, if revealed, "could reasonably be expected to risk circumvention of the law because current and future military detainees could use the information to evade interrogation," thereby "significantly lower[ing] the effectiveness of these interviewing techniques" in ways that "could lead to unreliable information being obtained from interview subjects" in the future. Id. The agency offers additional discussion of the withheld information in Navy 38, which consists of "detailed psychological strategies and techniques designed to build rapport with Al Qa'ida detainees ... that are not generally known to the public," and the release of which the agency warns could compromise future interrogations "because current and future military detainees could use the information to evade interrogation." Id. ¶ 7b(3). For this document, Navy also offers further specification, noting that the document
Plaintiffs make three arguments concerning the agency's application of 7(E). First, Plaintiffs question "what law enforcement purpose is involved." Pls.' Mem. P. & A. Opp'n 10. Second, Plaintiffs contend that Navy has not established "exactly what laws would purportedly be circumvented" if the psychological techniques and strategies discussed in the withheld portions of the documents were released. Id. Finally, Plaintiffs contend that Navy's asserted harms are baseless because "some (if not all) of the[] techniques have either been changed or rendered unlawful" in the "intervening years," such that public disclosure of the techniques cannot lead to a present-day risk of circumvention. Id.
Based on the supplementary declaration and in camera review of the agency's withholdings, Navy has the better argument on all three fronts. For one, the agency has cleared Exemption 7(E)'s threshold requirement. NCIS, which is located within the Department of the Navy, is "the civilian federal law enforcement agency uniquely responsible for investigating felony crime, preventing terrorism, and protecting secrets" for the U.S. Navy and U.S. Marine Corps. Marx Decl. ¶ 7b(1). NCIS is tasked with a "counterterrorism mission" and "is responsible for detecting, deterring, and disrupting terrorism worldwide through a wide array of investigative and operational capabilities." Id. As part of this mission, the agency has operated alongside "other law enforcement agencies" to "engage[] in investigatory activities related to the September 11, 2001, terrorist attacks, and the individuals detained at the United States Naval Base at Guantanamo Bay, Cuba." Id. As Defendants argue, the NCIS mission centers on matters of counterterrorism and national security, which courts in this Circuit have found to fall within "the realm of law enforcement purposes sufficient to justify withholding based on Exemption 7." See Defs.' Mem. P. & A. Supporting Renewed Mot. (citing Am. Civil Liberties Union of S. Cal. v. U.S. Citizenship & Immigration Servs., 133 F.Supp.3d 234, 242 (D.D.C. 2015) (citations omitted)); see also Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 862 (D.C. Cir. 1989) (reading the term "law enforcement" as "encompassing the enforcement of national security laws as well"); Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982) (concluding that there must be a connection between the "activities that give rise to the documents sought" and "enforcement of federal laws or ... the maintenance of national security").
This description establishes an adequate connection between the records at issue and NCIS's law enforcement duties. See Blackwell, 646 F.3d at 40 (quoting Campbell, 164 F.3d at 32). Logically, NCIS cannot carry out its law enforcement function with respect to the investigation of individuals detained at the Naval Base in Guantanamo Bay, Cuba, Marx Decl. ¶ 7b(1), without an established approach to interrogation. Based on the titles of the materials and the agency's discussion of them, the documents were drafted to reevaluate the agency's approach to interrogation. Thus, so long as NCIS compiled materials for law enforcement purposes and satisfies the second prong of Exemption 7(E)—discussed next—it may invoke the exemption.
Although 7(E) sets a low bar, clearing it nonetheless requires more than merely restating the relevant legal standard. Navy's declaration clears the bar for Navy 38: the Marx Declaration provides particularized details concerning aspects of
That said, an assertion made by a law enforcement agency invoking Exemption 7(E) is entitled to deference, see Campbell, 164 F.3d at 32, and the Court's in camera review of the document indicates that the partial redaction is appropriate in order for Navy to shield particular details of its interrogation strategy. Plaintiffs' third argument concerning timing does not change this conclusion. As Defendants note, the Marx Declaration refers to a risk of evasion for "current and future military detainees" and the potential impact on "future investigations and interviews." Defs.' Reply Supporting Renewed Mot. 4 (citing Marx Decl. ¶¶ 7b(2)-(3)). Plaintiffs have not pointed to any reason to discredit this statement. Taking this sworn declaration at its word, it appears that the techniques are in fact still in use, and Plaintiffs' contention is unavailing. Thus, Navy may withhold in part Navy 35 and Navy 38 pursuant to FOIA Exemption 7(E).
As previously stated, also before the Court are cross-motions for summary judgment involving a different set of Defendant agencies—Army, SOCOM, DIA, CENTCOM, and JTF-GTMO—and Plaintiffs' challenge to these agencies' application of FOIA exemptions. See ECF Nos. 96, 97. Sixty nine of the seventy-eight documents contested at this juncture involve Defendant Army. See Pls.' Reply Ex. 1, Updated History of Disputed Docs, ECF No. 101-1.
Again, Exemption 5 exempts documents that are "normally privileged in the civil discovery context." Sears, 421 U.S. at 149, 95 S.Ct. 1504. In addition to the deliberative process privilege, which this Court discussed above in addressing Defendants' renewed motion for partial summary judgment, ECF No. 110, Exemption 5 includes two other privileges that Army also invokes: the attorney-client privilege, and the work product privilege. See Brown, 317 F. Supp. 3d at 375; Loving, 550 F.3d at 37.
The attorney-client privilege covers "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Cent., Inc., 566 F.2d at 252. It is not limited to the context of litigation, see id. at 252-53; rather, it "also protects communications from attorneys to their clients if the communications `rest on confidential information obtained from the client.'" Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997) (quoting In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984)). If the communications suggest that "the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests," Coastal States, 617 F.2d at 863, then a court may infer confidentiality. That said, a court should narrowly construe the attorney-client privilege, which "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Id. at 862-63 (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)).
The work product doctrine "shields materials `prepared in anticipation of litigation or for trial by or for [a] party or by or for that ... party's representative (including the ... party's attorney, consultant,... or agent).'" Tax Analysts, 117 F.3d at 620 (quoting Fed. R. Civ. P. 26(b)(3)); see also Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 S.Ct. 451 (1947). This doctrine protects deliberative materials as well as "factual materials prepared in anticipation of litigation." Tax Analysts, 117 F.3d at 620 (citing Martin v. Office of Special Counsel, 819 F.2d 1181, 1184-87 (D.C. Cir. 1987); A. Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 147 (2d Cir. 1994)). Thus, it provides relatively broader coverage than the deliberative process privilege. However, to qualify for such coverage, the document must have been prepared "in anticipation of foreseeable
Because Army's application of Exemption 5 involves various combinations of the privileges available to it under this exemption, the Court will begin with the simplest case—the contested documents that involve only the deliberative process privilege —and then proceed to Army's other privilege claims.
Army withholds twenty-two of the challenged documents in full or in part under only the deliberative process privilege.
Many of Army's deliberative process claims concerning draft documents and associated communications provide the requisite justification. The agency's drafts and deliberations around Army Field Manual 2-22.3 ("FM 2-22.3") are illustrative.
So, too, do the agency's justifications suffice when it comes to many of the internal communications surrounding its development of not only FM 2.22-3, but also other agency policies. Take Army 72, which consists of an email chain with an attached draft PowerPoint that was prepared for a "Familiarize Brief" on the proposed FM. See Revised Updated Army Vaughn Index 23. The agency has "redacted portions of [the] email regarding recommended changes to [the] [P]ower[P]oint brief," which is withheld in full. Id. Although Army would, ideally, speak with more precision to define the purpose and expectations of a "Familiarize Brief," the material provided logically indicates that the PowerPoint is a draft briefing document and that the email chain contains "recommended changes" to it. Id. By indicating the context (development of the agency's position concerning the FM) for which the material was produced, Army has amply "`identif[ied the decisionmaking process' to which the withheld documents contributed." Elec. Frontier Found. v. U.S. Dep't of Justice, 890 F.Supp.2d 35, 52 (D.D.C. 2012) (emphasis in original) (quoting Sears, 421 U.S. at 150, 95 S.Ct. 1504). Army has thus established how releasing the withheld materially could logically and plausibly chill agency deliberations concerning the draft FM, thereby undermining the purpose of the privilege.
Although Army provides slightly less detail, it has also adequately justified its redactions for most of its other applications of the privilege. The majority of these applications are partial withholdings in email chains concerning the "logistics of coordinat[ing] review of" a "Proposed SecDef Memo on Ethics Principles and Procedures for Detainees," id. at 20 (discussing Army 67); see also id. at 23 (similar description for Army 71), "seeking advice and assistance" from agency attorneys "on tracking of investigations based on allegations of improper behavior in relation to detainee operations," id. at 30 (discussing Army 82); "addressing concerns raised by DOD" about a draft Army document, the "Interim Guidance on Detainee Medical Care," id. at 31 (discussing Army 83); see also id. (similar description for Army 84); id. at 32 (similar description for Army 85),
The remaining challenged documents involve the agency's development of its position concerning FM 2-22.3 or its internal discussions concerning other agency policies. Some of these documents provide the "relatively detailed" justification required to apply the privilege. Army 62 is illustrative of an adequate justification. This document consists of a "[d]raft communications plan prepared by the Army's office of the Chief of Public Affairs for [the] purpose of developing a media and public affairs strategy for the issuance of the FM." Revised Updated Army Vaughn Index 17. The agency makes clear that this "draft communications plan ... was prepared to assist the Army in navigating the significant public interest in detainee interrogation methods by proposing a media and public affairs strategy for announcing" the FM's "upcoming issuance." Second Shields Decl. ¶ 10. This description sufficiently establishes that the document played a role in Army's decisionmaking about how to communicate the developing policy to the public, see Competitive Enter. Ins., 12 F. Supp. 3d at 118 (quoting Nat'l Sec. Archive, 1993 WL 128499, at *2), such that it is privileged. Along similar lines, Army provides sufficient justification to withhold in part Army 105, which consists of "notes prepared by attorneys for senior Army personnel in order to assist in their preparation for addressing a [c]ongressional committee regarding the Common Article 3 Executive Order." Revised Updated Army Vaughn Index 43. The agency clarifies that the relevant deliberative process at issue is Army's decision about "what information should be provide to Congress" and specifies that the "list of talking points reflects internal deliberations regarding what information" to provide. Id.
But Army's other privilege claims are insufficiently supported. Consider Army 63 and Army 64, which both consist of "questions and answers in draft form addressing various Army concerns or points of clarification about the new Army FM 2-22.3." Revised Updated Vaughn Index 18. The agency states that these draft questions and answers addressed "the Army's forthcoming issuance of the FM" and were "prepared for decision makers to address various concerns and points of clarification with the proposed FM." Second Shields Decl. ¶ 10. However, Army never identifies or describes which decisionmakers were targeted, nor does it state what sorts of concerns or points of clarification were involved with any particularity. Without more to contextualize the agency's development of and subsequent reliance on—or lack thereof—the reasoning in these documents, the Court cannot be certain that these documents entail predecisional "formulation or exercise of ... policy-oriented judgment." Bloche II, 370 F. Supp. 3d at 54 (quoting Prop. of the People, 330 F. Supp. 3d at 382 (emphasis in original)); see also Petroleum Info. Corp., 976 F.2d at 1435.
Nor has Army adequately justified its withholding in full of four documents, Army 25, Army 26, Army 112, and Army 113, all of which it seeks to shield in
In sum, then, the Court grants Defendants' motion for summary judgment with respect to all of their deliberative process privilege claims, with the exception of the six documents identified in the preceding discussion: Army 25, Army 26, Army 63, Army 64, Army 112, and Army 113. As the Court explained in Bloche II, where, as here, "an agency fails to meet its burden, FOIA provides courts `a host of procedures' to determine whether the exemption claim is proper, including discovery, further agency affidavits, and in camera review of the records in question." 370 F. Supp. 3d at 55 (quoting Allen v. Cent. Intelligence Agency, 636 F.2d 1287, 1298 (D.C. Cir. 1980), abrogated on other grounds by Founding Church of Scientology of Wash., D.C., Inc. v. Smith, 721 F.2d 828, 830-31 (D.C. Cir. 1983)). In general, "a district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions." Spirko, 147 F.3d at 997. Nonetheless, "in camera inspection may be particularly appropriate ... when the number of withheld documents is relatively small." Id. at 996 (internal quotation marks omitted)); see also Gatore v. U.S. Dep't of Homeland Sec., 292 F.Supp.3d 486, 495 (D.D.C. 2018) (finding in camera review the "most efficient means" of resolving an issue "given the small number of documents at issue); Physicians for Human Rights v. Dep't of Def., 675 F.Supp.2d 149, 167 (D.D.C. 2009) (quoting Allen, 636 F.2d at 1298) (same). In this instance, given the relatively small number of documents at issue, the Court finds further agency supplementation along with in camera review of the documents to be the most expeditious resolution. Thus, Army must provide these materials to the Court along with updated justifications for its claims of deliberative process privilege, either in the form of new declarations or a revised Vaughn index, see Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), whereupon it may, if it continues to apply deliberative process privilege to the contested documents, submit a renewed motion for summary judgment.
Army relies on another part of Exemption 5, the attorney-client privilege, to withhold in part Army 80 and to withhold in full Army 96. Unlike the documents discussed below, for which Army invokes both attorney-client privilege and another privilege, the attorney-client privilege is the sole basis for these redactions. Plaintiffs challenge both of these withholdings, contending that Army's updated declaration, see Second Swords Decl., still fails to establish "how or why these records were meant to be confidential or whether they were actually kept confidential," Pls.' Reply 12. Although Plaintiffs are correct that the agency claiming attorney-client privilege must show confidentiality and thereby demonstrate that the privilege is applicable, see Mead Data Cent., Inc., 566 F.2d at 254, for the reasons set forth below, Army has carried its burden for both of the challenged documents.
Army 80 and Army 96 consist of emails dated July 6, 2005, and July 7, 2005, respectively, on the same topic. Each document is described in Army's Vaughn Index as an "[e]mail from a [Department of the Army] Office of the General Counsel Attorney to an Office of Congressional Legal Liaison member addressing legal concerns raised by the DoD with respect to the Army's position on the treatment of detainees,
With this combination of the Vaughn Index and its declarations, Army has adequately justified its application of the privilege. Because the attorney-client privilege "protects communications from attorneys to their clients if the communications `rest on confidential information obtained from the client,'" Tax Analysts, 117 F.3d at 618 (quoting In re Sealed Case, 737 F.2d at 98-99), and this was a communication in which an Army attorney conveyed her position on "legal concerns" regarding an agency position to an agency client, Army has established that this is the sort of communication that the privilege protects. See also In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C. Cir. 2014) ("[T]he [attorney-client] privilege applies to a confidential communication between an attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client."). Moreover, Army's description carries its burden to "demonstrate that confidentiality was expected in the handling of these communications, and that it was reasonably careful to keep this confidential information protected from general disclosure." Coastal States, 617 F.2d at 863. Plaintiffs' contrary argument is misguided. Army explicitly states that the communications were made in confidence. See Second Swords Decl. ¶ 9b(i). And the Court credits the sworn statement that there is "no record of" "confidentiality being compromised," id., as adequate evidence that they were in fact maintained internally and not divulged in a manner that would compromise confidentiality. In short, there is no reason, based on the evidence Plaintiffs offer, to question the confidentiality of the communication. See Hunton & Williams LLP v. U.S. Environmental Protection Agency, 248 F.Supp.3d 220, 256 (D.D.C. 2017) (affirming agency's attorney-client privilege claim where there was no indicia that the documents were distributed to outside entities). The redacted portions of Army 80 and Army 96 are, accordingly, privileged and appropriately withheld.
The remainder of the documents that Army has withheld in full or in part pursuant to Exemption 5 involve more than one privilege claim. The Court will first assess Army's overlapping attorney-client and attorney work product privilege claims before turning to its overlapping deliberative process and attorney-client privilege claims. For the reasons set forth below, Army has justified only a few of its withholdings in these categories based on the material provided.
Army has applied both attorney-client and attorney work product privilege to three contested documents: Army 81, Army 95, and Army 111. Again, the purpose of each of these privileges is distinct. See Coastal States, 617 F.2d at 864. The
Two of the contested documents, Army 95 and Army 81, are email communications concerning allegations of improper behavior in detainee operations, detainee abuse, and associated investigations. See Revised Updated Army Vaughn Index 31, 40. Army details the investigation at issue in Army 95: this document consists of "an email chain beginning with a request to several agency directorates and their counsel from Major General George Fay for assistance with answering a follow-up question to his investigative findings and recommendations regarding allegations of detainee abuse at Abu Ghraib that were lodged against specifically identified U.S. soldiers." Second Swords Decl. ¶ 9b(iv). Army states that the redacted portions of the email chain involve "agency counsel's legal opinions and recommendations regarding the possibility of criminal prosecutions as a result" of the investigation. Id.
These statements suffice to establish that this document qualifies for work product privilege. Plaintiffs are correct that the bare prospect that "litigation might someday occur" is too insubstantial a ground to justify invocation of this privilege. Senate of the Commonwealth of Puerto Rico, 823 F.2d at 587. That said, "Exemption 5 extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated." Schiller, 964 F.2d at 1208 (citing Delaney, Migdail & Young, Chartered v. Internal Revenue Serv., 826 F.2d 124, 127 (D.C. Cir. 1987)). The relevant standard is whether the government's attorney "prepared a document in the course of an investigation that was undertaken with litigation in mind." Boyd v. Executive Office for United States Attorneys, 87 F.Supp.3d 58, 84 (D.D.C. 2015) (quoting Safecard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1202 (D.C. Cir. 1991)); see also Agility Public Warehousing Company K.S.C. v. Department of Defense, 110 F.Supp.3d 215, 228 (D.D.C. 2015) ("The work-product doctrine is not limited to those cases where litigation is a foregone conclusion."). The key question is whether litigation is foreseeable by the individual who prepared the document, at the time that it was prepared: "[f]or a document to meet [the anticipation-of-litigation] standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." Agility Public Warehousing Company K.S.C., 110 F. Supp. 3d at 228 (emphasis in original) (quoting In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)). Here, Army has
But similar specificity is lacking for Army 81. For this document, the withheld material appears in an email "from an attorney in the Department of Defense's Office of General Counsel to an attorney in the Department of the Army's Office of General Counsel seeking assistance with tracking investigations into allegations of detainee mistreatment and recommendations for how to respond to anticipated legal questions and possible litigation." Second Swords Decl. ¶ 9b(iii) (emphasis added). Rather than identify a particular investigative proceeding, Army relies on generalities coupled with the statement that "[c]ounsel anticipated the possibility of litigation." Id. But there is a difference between "possible litigation," id., and the "foreseeable litigation" that the law demands to claim the privilege, Schiller, 964 F.2d at 1208. And in this instance, Army has not indicated in a nonconclusory fashion the investigative context that would establish a "real possibility" of litigation, Agility Public Warehousing Company K.S.C., 110 F. Supp. 3d at 228 (emphasis omitted) (quoting In re Sealed Case, 146 F.3d at 884), at the time that the attorney prepared the material. Thus, without greater detail to establish more than the concern that "litigation might someday occur," Senate of the Commonwealth of Puerto Rico, 823 F.2d at 587, Army cannot rely on work product doctrine to withhold Army 81.
That said, the justification provided does permit the agency to partially withhold Army 81 pursuant to attorney-client privilege. Army's Vaughn Index specifies that the redacted portions of the document "reflect advice that was being sought as well as the recommendations provided" by the agency's counsel. Revised Updated Army Vaughn Index 31. Thus, this communication is clearly one "between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Cent., Inc., 566 F.2d at 252. In addition, Army affirms that the material was confidential, and that confidentiality has been preserved. See Second Swords Decl. ¶ 9b(iii) ("The legal opinions and recommendations withheld in Document 81 were made in confidence between agency counsel and their clients and have subsequently remained confidential."). This statement, in conjunction with the entry in its Vaughn Index and the description of the communication's purpose in the declaration, carries Army's burden to "demonstrate that confidentiality was expected in the handling of these communications," Coastal States, 617 F.2d at 863, and as such, Army has adequately justified its application of the privilege.
The Court thus finds the application of attorney-client privilege proper for Army 81 and Army 95, but finds Army's explanation inadequate for Army 111. In this case, the Court exercises its "broad discretion" regarding how best to redress Army's failure to meet its burden by ordering updated justification for Army 111, Allen, 636 F.2d at 1298, which Army may submit either in the form of new declarations or a revised Vaughn index, see Vaughn, 484 F.2d at 826-28.
For the remaining forty documents, Army justifies its withholdings pursuant to both the deliberative process privilege and the attorney-client privilege.
Plaintiffs have the better argument. Although Defendants are correct as a matter of law—an agency can simultaneously invoke both privileges, and in some cases, the Court need only make a determination as to one—their conclusion is incorrect. Because neither Army's declarations nor its Vaughn Index adequately indicate which privilege applies to which portions of the document, it has not in fact "sufficiently demonstrated" that its withholdings are proper pursuant solely to the deliberative process privilege. As the following discussion explains, the problem stems from the language that Army invokes and the manner in which it claims both privileges without any particularity as to which privilege applies to which portions of the document. This issue arises in several ways, which the Court will summarize before assessing why this approach is problematic, in context.
First, despite explicitly claiming both privileges, many of Army's justifications do appear to rely primarily on the deliberative process privilege—but without expressly stating that all redactions were applied pursuant to this privilege. In these instances, Army contends that the redaction is justified because it "contains the opinions, recommendations, and suggestions of the authors regarding the proposed policies and reflect[s] the give-and-take of the consultative process." Revised Updated Army Vaughn Index 2 (discussing Army 21); see also, e.g., id. at 4 (discussing Army 34); id. at 10 (discussing Army 47); id. at 11 (discussing Army 48); id. at 12 (discussing Army 49); id. at 42 (discussing Army 99); id. at 22 (discussing Army 70 and adding that other portions with "recommended responses" were withheld in part); id. at 3 (discussing redaction in Army 24 of "comment to client on draft policy"); id. at 7 (describing portions of Army 42 that "discuss the proposed policy"); id. at 44 (discussing redactions in Army 44 of "portions of email chain that reflected intra-agency deliberations regarding [] comments and recommendations" on a proposed draft). There are numerous other, similar examples in the Vaughn Index. At times, the entry for a record also states that the document is "predecisional," see id. at 2 (characterizing Army 21 as a "predecisonal draft memorandum"); more often, Army implies the document's predecisonal status, see, e.g., id. at 7 (referring to recommendations on a draft DODI and then referencing the final version of the DODI for Army 41); id. at 33-34 (similar discussion of Army 86 and Army 88, respectively). One logical
Moreover, although Defendants imply that the deliberative process privilege standing alone supports the withholdings in all of these documents, see Defs.' Mem. P. & A. Opp'n 26 n.5, other entries in the Vaughn Index create doubt as to whether this privilege alone covers all the withholdings. For some of the documents, the justificatory language itself mixes the deliberative process and attorney-client legal standards in a way that creates ambiguity around Army's rationale. Take Army 43, for which Army "redacted portions of [an] email exchange reflecting legal advice and recommendations." Revised Updated Army Vaughn Index 8. At no point does Army establish which portions were redacted because of their status as opinions and recommendations (deliberative process privilege), or whether the same or different portions were redacted because of their status as legal advice or recommendations (attorney-client privilege). Or consider, as another representative example, Army 45, a set of emails in which attorneys from Army and "other military branches" provided "legal advice" to the Assistant Secretary of Defense (Health Affairs). Id. at 9. For this document, Army "redacted portions of draft predecisional inter/intra agency communications between the client and agency counsel commenting on the proposed response" to a report by the Council on Ethical and Judicial Affairs on the grounds that the redacted portions "contain the opinions, recommendations, and suggestions of the authors regarding the proposed policies and reflect the give-and-take of the consultative process." Id. at 9; see also id. at 13 (describing redactions in Army 50 of "communications between agency counsel and client commenting on" an attached draft policy); id. at 37-40 (describing similar redactions in Army 91, Army 92, and Army 93 of "recommendations and other comments in an email chain between agency counsel and client on [a] draft policy," as well as almost identical language concerning Army 94), id. at 13, 26, 35, 44 (discussing redacted portions of Army 51, Army 75, Army 89, and Army 109, respectively, that consist of "communications between agency counsel and client"); id. at 18-19, 21, 36 (similar justifications for redactions in Army 65, Army 66, Army 69, and Army 90 of "legal opinions regarding" Army's "proposed response to Dr. Winkwerder's Staffing of a proposed health care personnel policy"); id. at 24-29 (similar language concerning Army 73, Army 74, Army 76, Army 77, Army 78, and Army 79, respectively, and the redaction therein of portions of email communications between agency counsel and the client, including references to "legal opinions," "legal and other comments," or "legal recommendations"); id. at 42 (similar language regarding redaction in Army 98 of "legal advice" on draft document). For some of these documents, moreover, Army has withheld in full an attached document, without explicitly specifying which privilege applies to it, and on what basis. See, e.g., id. at 6 (Army 40); id. at 14 (Army 52); id. at 21 (Army 69); id. at 22 (Army 70).
Furthermore, for still other documents, the language of the Vaughn Index suggests even more strongly that Army—not-withstanding Defendants' argument that solely the deliberative process privilege
As Plaintiffs rightly argue, this uncertainty about which privilege applies to a particular withholding has real stakes. The two privileges often overlap, yet they are not identical: attorney-client privilege covers the underlying factual material associated with an attorney's provision of legal advice, whereas the "deliberative process privilege directly protects advice and opinions and does not permit the nondisclosure of underlying facts unless they would indirectly reveal the advice, opinions, and evaluations circulated within the agency as part of its decision-making process." Mead Data Cent., Inc., 566 F.2d at 254. Accordingly, without more specific detail as to which parts of which documents are withheld under which privilege, Army has not carried its burden to justify application of either privilege. See Pronin, 2019 WL 1003598, at *3 (establishing that an agency seeking to invoke an exemption must "describe the requested documents and `the justifications for nondisclosure with reasonably specific detail.'" (quoting Larson, 565 F.3d at 862)). Even if the invocation of deliberative process privilege alone justifies at least some of Army's redactions—which the Court does not decide at this juncture—it is not clear that all of the redactions are proper under this privilege. Thus, the Court directs Army to submit supplemental material to clarify which privilege it is claiming for each portion of these forty challenged documents, at which point it will determine whether Army's justification for applying either one or both of these privileges is adequate.
As previously discussed with regard to Defendants' renewed motion for
The parties in this case disagree as to whether Army has met this burden. In addition to generally challenging Army's "over-withholding of information," Pls.' Reply 22, Plaintiffs argue that Army has failed to segregate and disclose non-exempt material for its deliberative process privilege claims and "has provided no explanation for why segregable information has not been released." Pls.' Mem. 27; see also id. at 38 ("Army has provided no explanation for why the redacted documents [to which it applied both the deliberative process and attorney-client privilege] do not contain segregable information."). In support of this argument, Plaintiffs point to documents such as Army 46, a policy memorandum, and assert that such a document "must include background and factual information that is not deliberative in nature." Id. at 28. Along similar lines, Plaintiffs contend that Army 72, which includes a PowerPoint presentation on a proposed draft of FM 2-22.3 prepared for a "Familiarize Brief," is "extremely likely" to "contain factual information and information on current policies in order to contextualize the proposed changes." Id. In response to Plaintiffs' objections, Army updated its Vaughn Index entries, with "[p]articular attention ... paid to the ten documents which were previously withheld in full." Second Swords Decl. ¶ 5. Major Swords states that he "re-reviewed" these ten documents, nine of which relate to FM 2-22.3, and determined that one (Army 61) could be released in full and that "there was no reasonably segregable, non-exempt information that could be released in the remaining nine documents" based on his "line-by-line review." Second Swords Decl. ¶ 10.
But there are two fundamental problems with Army's reliance on these submissions to establish that it has satisfied its segregability burden. First and foremost, this declaration addresses the nine wholly withheld documents with specificity, yet it never discusses Army's review of the other documents to which it applied FOIA exemptions. Nor does Army's first declaration include any statement that Army has released all segregable information. To be sure, by detailing the manner in which Army applied the
Second, there is a flaw in the justification for the fully withheld documents: it is not obvious which "ten documents" are referenced. On the Court's count, the Vaughn Index on which Army presently relies to justify its withholdings lists twelve documents that remain withheld in full: Army 15, Army 16, Army 20, Army 22, Army 25, Army 26, Army 62, Army 63, Army 64, Army 111, Army 112, Army 113. See Revised Updated Vaughn Index. Thus, the Court cannot pinpoint which documents are referenced in Army's second declaration, which makes it impossible to identify with certainty which documents Major Swords re-reviewed in his segregability analysis. Army must therefore, for all documents, re-review its withholdings, produce any remaining, non-exempt segregable material that remains withheld, and submit a sworn statement to confirm that all segregable material has been released for all partially and wholly withheld documents. Until such time, Army has not satisfied what FOIA requires to withhold information in any of the sixty-nine challenged documents.
As the Court previously mentioned, in addition to challenging these documents withheld in part or in full by Defendant Army, Plaintiffs contest the exemptions applied to nine documents by four other Defendant agencies: SOCOM 8, DIA 9-12, CENTCOM 1-9, CENTCOM 23-25, CENTCOM 36-49, JTF-GTMO 4-16, JTF GTMO 52-66, JTF-GTMO 78-90, and JTF-GTMO 94-95. Beginning with Defendant SOCOM, the Court will next discuss these documents.
Plaintiffs challenge the withholding of information in SOCOM 8 pursuant to the deliberative process privilege, which, as previously discussed, requires Defendants to show that the withheld information is both predecisional and deliberative. See Prop. of the People, 330 F. Supp. 3d at 382. SOCOM 8 is a single page in a "38-page slide presentation from December 2005 by the Deputy Director of SOCOM's Psychological Applications Directorate concerning then-current applications of operational psychology." Defs.' Mot. Partial Summ. J. Ex. H, Declaration of Mark H. Herrington ("Herrington Decl.") ¶ 6, ECF No. 96-9; see also Defs.' Mem. P. & A. Opp'n 22 (citing Herrington Decl. ¶ 6). The redacted page in the slide presentation discusses "repatriation lessons learned" and involves the author's analysis of "how best to meet the psychological needs of U.S. prisoners of war when they are rescued and returned home." Herrington Decl. ¶ 6. The specific information that SOCOM has withheld consists of "comments provided in 2003 by a soldier who was a prisoner of war during Operation Iraqi Freedom," which SOCOM states consists of this soldier's "opinions, advice, and recommendations." Id. Plaintiffs contest these withholdings as neither predecisional nor deliberative. First, Plaintiffs argue that the comments are not predecisional to "the document's context[:]" "current agency application." Pls.' Mem. 30. Plaintiffs also maintain that the comments, which were made two years before the slide presentation was created, are "no longer predecisional" "[t]o the extent that the agency ha[s] chosen to adopt them, or decisionmakers
Without more specificity about the decisionmaking timeline and context, however, SOCOM has failed to carry its burden concerning application of the privilege. To qualify as deliberative and hence subject to the privilege requires, "in essence, that the communication is intended to facilitate or assist development of the agency's final position on the relevant issue." Nat'l Sec. Archive, 752 F.3d at 463 (citing Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)). Here, SOCOM has not explained how, exactly, the comments from 2003 contributed to the agency's deliberative process concerning a final position on the relevant issue. SOCOM does state a general policy justification for the withholding, explaining that "[d]ebriefings of former U.S. prisoners of war are kept in confidence to ensure full disclosure and to avoid service personnel withholding information for fear of embarrassment." Herrington Decl. ¶ 6. But this overarching policy rationale does not connect the 2003 comments up to a deliberative process culminating in a final agency position on how to improve the repatriation process for former prisoners of war.
This lack of detail is especially problematic, moreover, because "application of the deliberative process privilege is context-specific." Hardy, 243 F. Supp. 3d at 168 (quoting Edmonds Inst. v. U.S. Dep't of Interior, 460 F.Supp.2d 63, 70 (D.D.C. 2006)); see also Coastal States, 617 F.2d at 867 (stating that the applicability of the privilege depends on the role that information "plays in the administrative process"). On the submissions provided, the Court lacks the information it needs to evaluate SOCOM's application of the privilege, in context. The key problem, put simply, is that SOCOM does not say anything about how or why the comments were gathered in 2003. Were they provided as part of an earlier policymaking initiative or decision point, or were they collected as part of the same deliberative process to which the 2005 presentation contributed? Or, in the alternative, were they gathered as part of the individual's debriefing, and then subsequently applied to inform an agency policy evaluation? Without knowing more, the Court cannot ascertain what role, if any, the redacted communication played in facilitating or assisting development of the agency's final position on the matter. And as such, it cannot ascertain whether the redacted comments are deliberative in the manner that the privilege requires. Nor does SOCOM clarify the role of the 2005 presentation in which the redacted comments appear vis-à-vis the agency's deliberative process concerning the same issue. This lack of specificity makes it all the more difficult to determine the role of the comments with respect to the "frank exchange of ideas and opinions," Nat'l Sec. Archive, 752 F.3d at 462 (quoting Dudman Comm'ns, 815 F.2d at 1567), required to formulate the agency's final position. It is possible that the material is in fact privileged. But on the material provided, SOCOM's justification is insufficient to allow the Court to draw any firm conclusions. Thus, to the extent that SOCOM
A single document is also at issue with respect to Defendant DIA, which has withheld in full a four-page trip report, DIA 9-12. Defs.' Mot. Partial Summ. J. Ex. C, Declaration of Alesia Y. Williams in Support of Defendants' Motion for Summary Judgment ("Second Williams Declaration") ¶¶ 8-20, ECF No. 96-4.
In this case, for reasons similar to those outlined previously with respect to Defendant Army's concurrent deliberative process and attorney-client privilege withholdings, the Court agrees with Plaintiffs. Neither the declaration provided nor DIA's Vaughn Index, see Pls.' Mem. Ex. C, Vaughn Index to the Declaration of Alesia Y. Williams, ECF No. 97-5, indicates which portions of the document were redacted pursuant to which privilege. The Vaughn Index, confusingly, makes no mention of Exemption 5 in discussing DIA 9-12. See id. DIA instead offers a blanket reference to "certain information" in justifying each exemption. See Second Williams Decl. ¶¶ 8, 12, 20. Nor do DIA's submissions at any point state whether any single privilege would shield the document in full. It is easy to intuit which portions were redacted pursuant to Exemption 3, yet this is not the case for Exemptions 1 and 5,
Plaintiffs contest Defendant CENTCOM's redaction of portions of three documents pursuant to Exemption 1: CENTCOM 1-9, CENTCOM 23-35, and CENTCOM 36-49. Because the Court has not yet discussed what an agency must establish to apply Exemption 1, it will set forth the applicable legal standard before assessing whether CENTCOM may partially withhold these documents. For the following reasons, CENTCOM has carried its burden here and may apply Exemption 1 to shield portions of these three documents.
FOIA Exemption 1 "protects material that is (1) "specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy" and (2) "in fact properly classified pursuant to such [an] Executive order." 5 U.S.C. § 552(b)(1); see also Larson, 565 F.3d at 861 (quoting 5 U.S.C. § 552(b)(1)). For an agency to withhold material under Exemption 1, the information at issue "must be classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms." Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980). The basis for classification of national security information that is relevant here is located in Executive Order 13,526 ("EO 13,526"). See Defs.' Mot. Partial Summ. J. Ex. J., Declaration of Major General Michael Erik Kurilla ("Kurilla Decl.") ¶ 8, ECF No. 96-11.
Under EO 13,526, four conditions are required to establish that information has been properly classified: (1) "an original classification authority is classifying the information;" (2) the United States Government owns or controls the information, or the information was produced by or for the Government; (3) "the information falls within one or more of the categories of information listed in section 1.4" of EO 13,526; 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" and "is able to identify or describe the damage." Exec. Order 13,526, 75 Fed. Reg. 707, 707 (Dec. 29, 2009); see also Elec. Privacy Info. Ctr. v. U.S. Dep't of Justice, 296 F.Supp.3d 109, 124 (D.D.C. 2017) (discussing EO 13,526). Section 1.4 of EO 13,526 identifies eight categories of information that "could reasonably be expected to cause identifiable or describable damage to the national security[,]" including, as relevant here, information pertaining to "military plans, weapons systems, or operations" or "intelligence activities (including covert action), intelligence sources or methods, or cryptology." Exec. Order 13,526, 75 Fed. Reg. at 709. "Thus, if information that is responsive to a FOIA request fits into any of the eight categories, and if an original classifying authority has designated the information classified based on that authority's determination that the unauthorized disclosure of the information reasonably could be expected to result in damage to the
As with all FOIA exemptions, an agency that withholds information pursuant to Exemption 1 bears the burden of justifying its decision. King, 830 F.2d at 217 nn.57-58 (citing 5 U.S.C. § 552(a)(4)(B)). The agency must, as with all FOIA exemptions, put forth a justification for invoking the exemption that "appears logical or plausible." Dillon, 2019 WL 249580, at *8 (quoting Wolf, 473 F.3d at 374-75)). That said, the national security context is unique, and courts in this Circuit have "consistently deferred to executive affidavits predicting harm to the national security[ ] and have found it unwise to undertake searching judicial review." Nat'l Sec. Counselors v. Cent. Intelligence Agency., 960 F.Supp.2d 101, 164-65 (D.D.C. 2013) (quoting Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003)); see also James Madison Project v. Cent. Intelligence Agency, 605 F.Supp.2d 99, 109 (D.D.C. 2009) (citing Schlesinger v. Cent. Intelligence Agency, 591 F.Supp. 60, 67 (D.D.C. 1984), then citing Halperin v. Cent. Intelligence Agency, 629 F.2d 144, 148 (D.C. Cir. 1980)). Courts are thus to "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record," while taking into account the reality "that any affidavit or other agency statement of threatened harm to national security will always be speculative to some extent, in the sense that it describes a potential future harm." Am. Civil Liberties Union v. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (quoting Wolf, 473 F.3d at 374).
In this case, CENTCOM both affirms that the material is properly classified and states that it is properly withheld under Section 1.4(a) and 1.4(c) of EO 13,526. See Kurilla Decl. ¶¶ 8-10. This information is classified at the SECRET level, "including records labelled SECRET//NOFORN (which prohibits even foreign coalition partners from viewing the records)." Id. ¶ 8. CENTCOM states that material redacted on one page of CENTCOM 1-9, one page of CENTCOM 23-35, and four pages of CENTCOM 26-39 concerns "document titles and procedures related to interrogation." Id. ¶ 11 (discussing redactions at "bates numbered pages[] 3, 25, 40, and 45-47"). It submits that "[d]ivulging these procedures would provide future potential detainees with invaluable insight into interrogation operations[,] enabling them to overcome techniques to extract vital intelligence." Id.; see also Pls.' Mem. Ex. K, CENTCOM Vaughn Index 2-3, ECF No. 97-13.
The CENTCOM Vaughn Index adds further detail regarding each document. For CENTCOM 1-9, "[t]he redacted information would reveal tactics, techniques, and procedures (TTPs) for collecting and assessing intelligence information[] and reviewing intelligence and operational plans." CENTCOM Vaughn Index 2. For CENTCOM 23-25, "[t]he redacted information would reveal interrogation methods and approaches by personnel involved in assessing detainees and intelligence processes." Id. at 3. And for CENTCOM
Plaintiffs do not argue that the challenged information is improperly classified, but rather contest the sufficiency of CENTCOM's justifications. Plaintiffs assert that "CENTCOM does not make clear how each" of the "particular documents" at issue "would in fact harm national security if released," Pls.' Mem. 18, in the manner required to sustain its Exemption 1 claim. In particular, Plaintiffs contest CENTCOM's repeated reliance on a "blanket statement" that these documents could provide "`invaluable insight into interrogation operations,' without explaining how or why." Id. at 18-19. Without more, Plaintiffs press the Court to deem "CENTCOM's broad justification ... too conclusory to satisfy the Exemption 1 plausible and logical standard" and to conduct in camera review. Pls.' Reply 8.
The Court agrees that CENTCOM's justifications are terse. Contrary to Plaintiffs' contentions, however, its submissions are sufficiently detailed to establish that the withheld portions logically and plausibly fall within Exemption 1's protections for classified material. The titles of each of the documents contextualize CENTCOM's justifications: CENTCOM 1-9 is "an appendix to the Behavioral Science Consultation Team Standard Operation Procedures," and both CENTCOM 23-25 and CENTCOM 36-49 are "Multi-National Force-Iraq Interrogation Policy" documents. Kurilla Decl. ¶ 6. Based on these titles and the SECRET level of classification for "document titles and procedures related to interrogation" contained in these documents, it strikes the Court as logical and plausible that the documents contain "details of practices associated with interrogation," the disclosure of which would risk undermining the future viability of techniques relied upon "to extract vital intelligence." Id. at 11. As Defendants put this point, drawing from the Kurilla Declaration: "it is both logical and plausible that disclosure of information pertaining to the military's interrogation methods reasonably could be expected to harm the national security by providing `future potential detainees with invaluable insight into interrogation operations,' which would `enable[e] them to overcome [the military's interrogation] techniques[,]' thereby diminishing the military's ability to `extract vital intelligence' from adversaries." Defs.' Mem. P. & A. Opp'n 9 (quoting Kurilla Decl. ¶ 12). The Court is hard-pressed to say how CENTCOM could explain "how or why" release of the documents would harm national security interests, Pls.' Mem. 18-19, with any greater specificity, without risking disclosure of the classified techniques themselves. Nor do Plaintiffs suggest what, exactly, is missing from the
CENTCOM has thus met its "light" burden, Am. Civil Liberties Union, 628 F.3d at 624, to establish a risk of a particular category of harm articulated in section 1.4 of EO 13,526 with respect to the release of properly classified information, such that it may properly invoke Exemption 1. CENTCOM also submits, via sworn affidavit, that its FOIA Office conducted a "line-by-line" review of each record and, "with respect to the records that were released in part, all information not exempted from disclosure pursuant" to an exemption "was correctly segregated and non-exempt portions were release[d]." Kurilla Decl. ¶ 17. Thus, CENTCOM has satisfied what FOIA requires and may partially withhold CENTCOM 1-9, CENTCOM 23-35, and CENTCOM 36-49 pursuant to Exemption 1.
The final matter before the Court in the parties' cross-motions for partial summary judgment is Defendant JTF-GTMO's application of FOIA exemptions. Plaintiffs contest the partial withholding of JTF-GTMO 4-16, JTF-GTMO 52-66, JTF-GTMO 78-90,
Before proceeding with this analysis, however, the Court will attempt to clarify what, exactly, is contested at this juncture, and how it relates to the parties' submissions. JTF-GTMO has provided redacted versions of the documents, and Defendants explain how some—but critically, not all— of the documents that Plaintiffs challenge are included in the material that JTF-GTMO attached to its declaration as Exhibit 1. Defendants state that "the pages released to Plaintiffs as GTMO 4-16 and GTMO 78-90 appear as GTMO 001-0013 in Exhibit 1" and "the pages released to Plaintiffs as GTMO 52-66 appear as GTMO 0023-0037." Defs' Mem. 15 n.5. This explanation leaves the Court with two puzzles. First, although Plaintiffs indicate that they challenge the partial withholding of JTF-GTMO 94-95, there is no mention of it in either of the parties' filings apart from the entry in Plaintiffs' history of disputed documents —nor does Defendants' exhibit appear to include it. Based on JTF-GTMO's declaration and Vaughn Index, it is possible that this document is a duplicate of JTF-GTMO 52-66. See Ring Decl. ¶ 5 (discussing the release of the document "redactions in 2008, at which time duplicates of the same document were released with bates-stamped pages 17-18 and 94-95"); JTF-GTMO Vaughn Index 5, ECF No. 97-10
Second, a similar ambiguity plagues another aspect of JTF-GTMO's submissions. Although the exhibit containing redacted documents contains a third document, located at Bates numbered pages 0014 and 0015, see Defs.' Mot. Partial Summ. J. Ex. I-1, ECF No. 96-10 at 23-24,
Turning back to JTF-GTMO 4-16 and JTF-GTMO 52-66, for the reasons set forth below, JTF-GTMO has not provided sufficient explanation for its invocation of Exemption 7(E).
As discussed previously with respect to Defendants' renewed motion for
Again, JTF-GTMO applied Exemption 7(E) to all of the redactions in JTF-GTMO 4-16 and JTF-GTMO 52-66. Because JTF-GTMO's Vaughn Index does not discuss the application of Exemption 7(E) to either document—only the application of Exemption 1 and other exemptions not at issue here—the Court relies on the justification provided in the Ring Declaration. JTF-GTMO 4-16 is a document entitled "Behavioral Science Consultation Team, Joint Intelligence Group, Joint Task Force — GTMO, Standard Operating Procedures," Ring Decl. ¶ 5, that was created to "establish Standard Operating Procedures (SOP) for the daily operation of the Behavioral Science Consultation Team (BCST)" at Guantanamo Bay, Cuba, Defs.' Mot. Partial Summ. J. Ex. I-1. JTF-GTMO 52-66 is a "notes page printout," Defs.' Mot. Partial Summ. J. Ex. I-1 at 4, for "an undated slide presentation titled `Interrogator Training'" that "was prepared to explain the legal basis and justifications" for JTF-GTMO's interrogations. Ring Decl. ¶ 5. For both of these documents, JTF-GTMO states that the exemption meets Exemption 7's threshold requirement that the records were compiled for "the law enforcement purposes of pursuing a violation of federal law and a breach of national security." Id. ¶ 14. JTF-GTMO further offers that "the records contain information related to detainee observation protocols and detainee management strategies," id. ¶ 15, such that release of the withheld information could allow detainees to "better understand how the guard force operates and government strategies for ensuring the security of detention and interrogation operations, which could be used to evade those protocols," id. ¶ 16. Plaintiffs do not challenge the statement that the information was compiled for law enforcement purposes, but instead attack JTF-GTMO's justification as insufficient to satisfy what Exemption 7(E) demands. See Pls.' Mem. 40. Plaintiffs contend that JTF-GTMO has not set forth with adequate particularity "how potential evasion of protocols would lead to circumvention of the law." Id.
Here, even taking into account Exemption 7(E)'s low bar, the Court agrees that JTF-GTMO's justification is wanting. As this Court concluded in its March 2019 memorandum opinion with respect to similar language offered by Defendant
Accordingly, JTF-GTMO has not carried its burden to establish that it properly withheld information pursuant to Exemption 7(E) in JTF-GTMO 4-16 and JTF-GTMO 52-66.
For the foregoing reasons, Defendants' renewed motion for partial summary judgment, ECF No. 110, is
