BARBARA MOSES, Magistrate Judge.
Plaintiff Osen LLC (Osen) brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, against United States Central Command (CENTCOM), seeking unredacted copies of documents related to attacks on American military personnel in Iraq between 2004 and 2011. Now before the Court are the parties' cross-motions for summary judgment, which turn on the narrow issue of whether CENTCOM properly relied on FOIA Exemption 6, which applies to information that "would constitute a clearly unwarranted invasion of personal privacy" if disclosed, 5 U.S.C. § 552(b)(6), when it redacted the names and photographs of foreign nationals suspected to be malign actors.
For the reasons set forth below, CENTCOM's motion (Dkt. No. 21) will be granted in part, Osen's cross-motion (Dkt. No. 26) will be denied, and the Court will leave the case open for the parties to resolve certain limited outstanding issues discussed below.
Osen is a law firm, with offices in New Jersey and New York, "that primarily represents victims of international terrorism." Compl. (Dkt. No. 9) ¶ 12. Osen "represents hundreds of U.S. service members and family members of U.S. service members" who were "killed or injured in terrorist attacks while serving in Iraq," alleging "that these attacks were committed by Iranianbacked terrorists, and that Iran and its corporate enablers are responsible" for its clients' injuries. Id. ¶ 2. Osen has filed "several lawsuits against Iran and several Iranian and Western financial institutions that it alleges helped Iran fund, train, and otherwise support the terrorists" who allegedly injured Osen's clients. Id.
Osen has also filed several lawsuits in this District against various agencies of the U.S. government, including CENTCOM,
On December 27, 2017 and April 6, 2018, Osen submitted the two sets of FOIA requests at issue in this case. Compl. ¶¶ 7, 25, 31, & Exs. A, C. Those requests sought disclosure of 32 weekly reports from General David Petraeus (the then-commander of U.S. and allied forces in Iraq) to Secretary of Defense Robert Gates in 2007 and 2008, 37 Significant Activities (SIGACT) Reports from 2004 through 2009, and 13 other military or intelligence reports. Id. Exs. A, C.
Osen filed its complaint on July 5, 2018, seeking a declaration that "CENTCOM is obligated to provide it with copies of the records sought," and an injunction compelling CENTCOM to provide the same records. Compl. ¶¶ 34-41. Osen alleges, and CENTCOM does not deny, that CENTCOM failed to make a timely "determination" in response to Osen's requests, Compl. ¶ 10, thereby permitting Osen to file suit "without exhausting [its] administrative appeal remedies." Id. (quoting Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 182 (D.C. Cir. 2013)). On August 13, 2018, CENTCOM filed its answer. (Dkt. No. 12.) On August 16, 2018, the parties consented to the jurisdiction of the assigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. No. 13.) On September 26, 2018, the Court held an initial case management conference and put in place a briefing schedule for the parties to file their anticipated cross-motions for summary judgment. (Dkt. No. 16.)
On December 19, 2018, CENTCOM filed its motion, together with a memorandum of law (Def. Mem.) (Dkt. No. 22) and the Kurilla Declaration, attaching a Vaughn index also dated December 19, 2018. (Dkt. No. 23-2.)
On February 21, 2019, Osen filed its cross-motion for summary judgment, together with a memorandum of law (Pl. Mem.) (Dkt. No. 27) and the declaration of attorney Michael J. Radine (Radine Decl.) (Dkt. No. 28), attaching the "separately-numbered productions CENTCOM produced to Plaintiff that Plaintiff is contesting as including improper redactions" (Exhibits 1-16),
In its cross-motion papers, Osen informed the Court that the parties had resolved all of their disputes except for one: CENTCOM's withholding, under Exemption 6, of "the names and photographs of malign actors." Pl. Mem. at 10.
On March 20, 2019, CENTCOM filed its reply brief in support of its motion and in opposition to Osen's cross-motion (Def. Reply Mem.) (Dkt. No. 31), together with the supplemental declaration of Major General Kurilla (Supp. Kurilla Decl.) (Dkt. No. 32). Major General Kurilla reported that during the course of this litigation, CENTCOM's FOIA staff had "made additional efforts to evaluate whether" each individual whose name and/or photograph was redacted "was a public figure, a notorious criminal or terrorist whose identity was in the public domain, or deceased, including supplemental searches of open sources of information," and had unredacted several additional names, including several of the specific names at issue in Osen's cross-motion. Supp. Kurilla Decl. ¶¶ 3-5.
On April 4, 2019, Osen filed its reply brief (Pl. Reply Mem.) (Dkt. No. 34). Osen argues that CENTCOM has not sufficiently justified its redactions based on Exemption 6, "particularly given its extensive disclosures elsewhere." Pl. Reply Mem. at 1-6. It also argues that a decision rendered by the Hon. Katherine Polk Failla on March 22, 2019, in a companion case filed by Osen against CENTCOM — which held, in relevant part, that CENTCOM properly relied on Exemption 6 to withhold the names of certain foreign nationals who may have been malign actors involved in attacks on U.S. military personnel — should not compel the same result in this case. See Osen LLC v. United States Cent. Command, 375 F.Supp.3d 409 (S.D.N.Y. 2019) (Osen I). The Court will address Judge Failla's ruling in Osen I below in section II(B).
"FOIA was enacted in order to `promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 355-56 (2d Cir. 2005) (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)). "FOIA strongly favors a policy of disclosure . . . and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act," which must be narrowly construed. Nat'l Council of La Raza, 411 F.3d at 355-56 (citations omitted). "The government bears the burden of demonstrating that an exemption applies to each item of information it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure." Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir. 2016) (quoting Ctr. for Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir. 2014)). However, "[a]ffidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden," and such affidavits "submitted by an agency are accorded a presumption of good faith." Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009) (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)).
FOIA authorizes a complainant from whom agency records have been improperly withheld to bring suit in "the district court of the United States in the district in which the complainant resides, or has his principal place of business . . . ." 5 U.S.C. § 552(a)(4)(B). The district court must then determine the matter de novo. Id.
Summary judgment is the usual mechanism for resolving FOIA disputes. Osen I, 375 F. Supp. 3d at 417 (citing N.Y. Times Co. v. U.S. Dep't of Justice, 235 F.Supp.3d 522, 529 (S.D.N.Y. 2017)). "A district court in a FOIA case may grant summary judgment in favor of an agency `on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'" Grand Cent. P'ship, 166 F.3d at 478 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)) (emphasis in Grand Cent. P'ship). "[D]iscovery relating to the agency's search and the exemptions it claims for withholding records generally is unnecessary if the agency's submissions are adequate on their face." Carney, 19 F.3d at 812. "Conversely, `[s]ummary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption.'" Osen I, 375 F. Supp. 3d at 418 (quoting Nat. Res. Def. Council, Inc. v. U.S. Dep't of Interior, 36 F.Supp.3d 384, 398 (S.D.N.Y. 2014)).
FOIA's sixth exemption permits the government to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). "Exemption 6 is intended to `protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.'" Wood v. F.B.I., 432 F.3d 78, 86 (2d Cir. 2005) (quoting U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 599 (1982)).
"Whether the names and other identifying information about [an individual] may be withheld under Exemption 6 is a two-part inquiry," Wood, 432 F.3d at 86:
Id. (internal citations omitted).
The first step of the inquiry is "not a difficult hurdle to clear, as the Second Circuit considers `a record . . . a "similar file" if it contains personal information identifiable to a particular person.'" Osen I, 375 F. Supp. 3d at 423 (quoting Cook v. Nat'l Archives & Records Admin., 758 F.3d 168, 175 (2d Cir. 2014)). See also Washington Post, 456 U.S. at 602 ("[T]he exemption was intended to cover detailed Government records on an individual which can be identified as applying to that individual.") (citations omitted).
At the second step, "[t]he balancing analysis for FOIA Exemption 6 requires that [courts] first determine whether disclosure of the files would compromise a substantial, as opposed to a de minimis, privacy interest, because if no substantial privacy interest is implicated FOIA demands disclosure." Seife v. U.S. Dep't of State, 366 F.Supp.3d 592, 610 (S.D.N.Y. 2019) (quoting Cook, 758 F.3d at 175-76). However, "[t]he privacy interests protected by the exemptions to FOIA are broadly construed." Associated Press v. U.S. Dep't of Justice, 549 F.3d 62, 65 (2d Cir. 2008). "Personal information, including a citizen's name, address, and criminal history, has been found to implicate a privacy interest cognizable under the FOIA exemptions." Id.
"Where an agency has demonstrated a privacy interest sufficient to implicate Exemption 6, the burden falls to the requesting party to establish that disclosure `would serve a public interest cognizable under FOIA.'" Seife, 366 F. Supp. 3d at 610 (quoting Associated Press, 549 F.3d at 66). "The only public interest found to be relevant in FOIA balancing is `the extent to which disclosure would serve the core purpose of the FOIA, which is contribut[ing] significantly to public understanding of the operations or activities of the government.'" Associated Press, 549 F.3d at 66 (quoting U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)). The requester's individual purpose or motive in seeking the information "has no bearing on the merits of his or her FOIA request." Fed. Labor Relations Auth., 510 U.S. at 487 (quoting U.S. Dep't of Justice v. Reporters' Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989)).
"Collateral estoppel, or issue preclusion, prevents the relitigation of an issue that was raised, litigated, and actually decided by a judgment in a prior proceeding." GemShares, LLC v. Kinney, 2017 WL 2559232, at *8 (S.D.N.Y. June 2, 2017) (quoting Jim Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d 729, 734 (2d Cir. 1991)). "In order to establish that an issue was determined in a former adjudication, a party asserting collateral estoppel must establish four things: (1) the issues in the prior proceeding and the current proceeding are identical; (2) the issue raised in the current action was, in fact, actually decided in the prior proceeding; (3) there was a full and fair opportunity to litigate the issue in the prior proceeding; and (4) the issue previously litigated and decided was necessary to support a valid and final judgment on the merits." Id. (citing In re PCH Assocs., 949 F.2d 585, 593 (2d Cir. 1991)).
These principles apply in FOIA actions to prohibit relitigation of issues previously determined in earlier FOIA actions between the same parties. See, e.g., Nat'l Treasury Employees Union v. I.R.S., 765 F.2d 1174, 1177 (D.C. Cir. 1985); Hall v. C.I.A., 2005 WL 850379, at *3 (D.D.C. Apr. 13, 2005). In Nat'l Treasury Employees Union, a complainant brought a first FOIA action against the IRS, seeking disclosure of the "Senior Executive Performance Objectives and Expectations (Form 6419) for the period 1980-1981." 765 F.2d at 1175. That case resulted in a final judgment "ordering release of the documents `except for those portions . . . which identify specific individual employees of the IRS.'" Id. The same complainant — who did not appeal that judgment — then brought a second FOIA suit against the IRS, seeking disclosure of the same forms "for the succeeding year, July 1, 1981, to June 30, 1982." Id. After the IRS disclosed those forms, with the "same kind" of information redacted as had been "ordered deleted" in the first action, id. at 1177 n.7, the parties filed cross-motions for summary judgment. Id. at 1175. The district judge "observed that he was being asked to consider `the same issue . . . simply in a successive year,'" and that "another judge of the same court had already given the issue `her best consideration,' and had `articulated the reasons she found the way she did.'" Id. He therefore "follow[ed] her decision" and dismissed the case. Id.
In an opinion authored by then-Judge Ruth Bader Ginsburg, the D.C. Court of Appeals agreed and affirmed on the basis of collateral estoppel:
765 F.2d at 1177-78 (citations and footnotes omitted).
A district court may raise the issue of collateral estoppel sua sponte. Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) ("we have previously upheld a district court's dismissal of a case on collateral estoppel grounds even where collateral estoppel was not raised as an affirmative defense in the answer, but was raised by the district court sua sponte, without permitting the party against which it was asserted an opportunity to argue the issue"); Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998) (affirming sua sponte application of collateral estoppel in motion for summary judgment). See also Grieve v. Tamerin, 269 F.3d 149, 154 (2d Cir. 2001) (affirming district court's dismissal on collateral estoppel grounds notwithstanding a defendant's failure to plead that defense in her answer, and noting that "principles of preclusion involve" not only "the rights and interests of the parties," but also "important interests of the public and the courts in avoiding repetitive litigation and potentially inconsistent decisions").
Osen filed Osen I on June 13, 2017, challenging CENTCOM's redactions on "approximately 900 pages" of "records regarding 92 attacks on U.S. service-members in Iraq that occurred between 2004 and 2011." Osen I, 375 F. Supp. 3d at 414, 416. Those records included, among others, SIGACT Reports, though none of the specific SIGACT Reports at issue here. Pl. Reply Mem. at 6. After CENTCOM reprocessed a number of documents, the parties resolved all of their disputes except for CENTCOM's withholding of three categories of information, one of which was "the names of foreign nationals who were captured on the battlefield, were interrogated in connection with EFP attacks, were suspected of involvement in EFP attacks, or provided information to the U.S. government and its agents." Osen I, 375 F. Supp. 3d at 416; see also id. at 424.
During the course of the summary judgment proceedings, CENTCOM agreed to remove redactions regarding four specified individuals, as well as redactions regarding "any remaining references to the names of terrorist groups, public figures . . . and `already exposed names' within particular records, that continue to be withheld pursuant to Exemption 6[.]" Osen I, 375 F. Supp. 3d at 424 (alterations in the original). Osen, in turn, narrowed its request to "the disclosure of the `names of terrorists other than [the] four Plaintiff specifically identified in its opening brief.'" Id. at 425.
Judge Failla held that CENTCOM's reliance on Exemption 6 to withhold those names "present[ed] a straightforward case for redaction: The redacted material is personally identifying, disclosure poses risks for the individuals, and the public's interest in disclosure is minimal." Osen I, 375 F. Supp. 3d at 424. Applying the two-step balancing test set out in Wood, she concluded that "the individuals whose identifying information has been redacted" had "a privacy interest in that information," id. at 425-26, and that disclosure of the names would not "serve the public interest by advancing `the core purpose of the FOIA,'" id. at 427 (quoting Reporters' Comm., 489 U.S. at 775), because it would not "inform the public on Government agencies' performance of their missions and how they conduct operations or activities." Id.
CENTCOM appealed Judge Failla's March 22, 2019 Opinion and Order on other grounds; that appeal remains pending. See Osen LLC v. United States Cent. Command, No. 19-1577 (2d Cir. May 24, 2019). However, Osen did not appeal the ruling concerning CENTCOM's application of Exemption 6 to redact the names of suspected terrorists.
Here, as in Osen I, CENTCOM has relied on Exemption 6 to withhold the names and other personally identifying information of foreign nationals suspected of involvement in attacks on Americans in Iraq. Compare Kurilla Decl. Ex. 2 § 4 (CENTCOM redacted the "[n]ames of persons targeted as, and/or suspected to be, malign actors") to Osen I, 375 F. Supp. 3d at 424 (CENTCOM redacted the "names and/or other identifying information" of individuals who were "suspected of involvement in particular EFP attacks"). Similarly, as in Osen I, CENTCOM has "present[ed] a straightforward case for redaction: The redacted material is personally identifying, disclosure poses risks for the individuals, and the public's interest in disclosure is minimal." Osen I, 375 F. Supp. 3d at 424.
According to Major General Kurilla, "CENTCOM applied FOIA Exemption 6 to information regarding third-party foreign nationals," including the names and identifying details of "personnel targeted as, and/or suspected to be, malign actors," Kurilla Decl. ¶ 26 (citations to Bates-numbered documents omitted), because "[p]ublic disclosure of the names and/or other identifying information of these third party individuals could result in a wide range of potential harms," including, for "[i]ndividuals whose names are associated with American military efforts in lraq," potential "harassment, retaliation, or other types of reprisals depending on the roles depicted in the challenged records," as well as "undue attention by the public," particularly for "individuals who may have been suspected, but never formally charged or convicted, of involvement in certain hostile activities." Id. ¶ 27. Major General Kurilla also asserts that there is "no cognizable public interest in the disclosure of the names and other identifying information regarding the third-party individuals described above" because the disclosure of that information "would not inform Plaintiff or the general public about CENTCOM's performance of its mission and/or how CENTCOM actually conducts its operations or activities." Id. ¶ 28.
As in Osen I, Osen does not challenge the first step of the test under Exemption 6, i.e., that the military and intelligence reports it requests are "similar files." Pl. Mem. at 12. However, it argues that the balancing test under Exemption 6 does not authorize CENTCOM's redactions of the names and photographs of the suspected malign actors (the Redacted Individuals). In addition, Osen contends that CENTCOM's prior disclosures of some of those names and/or photographs (or the names and/or photographs of other malign actors) waives its entitlement to invoke Exemption 6 here. Pl. Mem. at 12-21; Pl. Reply Mem. at 1-10.
The Court concludes that Osen's challenge to CENTCOM's application of Exemption 6 is barred by principles of collateral estoppel, and that even if it were not, that challenge would fail on the merits. The Court also concludes that it cannot adjudicate Osen's second challenge on the present record.
The Court first considers the preclusive effect of Osen I. As noted above, the application of collateral estoppel requires the establishment of four elements: "(1) the issues in the prior proceeding and the current proceeding are identical; (2) the issue raised in the current action was, in fact, actually decided in the prior proceeding; (3) there was a full and fair opportunity to litigate the issue in the prior proceeding; and (4) the issue previously litigated and decided was necessary to support a valid and final judgment on the merits." GemShares, 2017 WL 2559232, at *8.
The Exemption 6 issue that Osen seeks to raise here — whether CENTCOM was entitled to rely on that exemption to redact the names and identifying information of suspected malign actors in Iraq — is identical to the Exemption 6 issue that was decided in Osen I, after Osen had a full and fair opportunity to litigate it, and was necessary to support Judge Failla's final judgment on the merits, which Osen has not appealed. Judge Failla decided each element of the balancing test set out in Wood, 432 F.3d at 86, and concluded both that the suspected malign actors had a privacy interest in their names and identifying information, and that disclosure of that information would not advance "the core purpose of the FOIA":
Osen I, 375 F. Supp. 3d at 425-27 (citations omitted).
To be sure, the specific reports requested by Osen in this case are not identical to those in Osen I.
Significantly, Osen does not contend otherwise. Aside from the "corroborating evidence" it suggests links some of the Redacted Individuals to "terrorists acts and groups," and the prior disclosures by CENTCOM discussed below in section II(C)(4), see Pl. Reply Mem. at 6-8, it has not presented this Court with any factual or legal differences between this case and Osen I which compel revisiting Judge Failla's judgment, nor any intervening changes in the law which are favorable to its position. See Nat'l Treasury Employees Union, 765 F.2d at 1177 ("There has been no change favorable to the Union in the legal climate; the FOIA requests in the two actions are identical except for the year involved; the same courts and the same procedures are implicated; no overriding public concern warrants allowing the Union to start over; and the continuing character of the Union's interest was foreseeable at the time of the initial action."); Berlitz Sch. of Languages of Am., Inc. v. Everest House, 619 F.2d 211, 216 (2d Cir. 1980) (affirming district court's determination that an action was barred by res judicata and collateral estoppel where the factual differences between the case at bar and the prior action were "not so great as to warrant another judicial proceeding"). Moreover, because the issue presented for decision here is privacy, not classification, the passage of time, standing alone, does not alter the legal calculus.
Instead, Osen simply "disagrees" with Judge Failla's decision, Pl. Reply Mem. at 10, raising a series of policy arguments — all variants on the arguments presented in Osen I — as to why, in its view, disclosing the names of the "alleged terrorists" would constitute a public benefit. See, e.g., id. at 10 ("[D]isclosure would also provide the families of U.S. service members injured or killed in terrorist attacks the names of those who helped perpetrate those attacks, which Plaintiff submits is a profoundly compelling public interest."). The Court therefore concludes that principles of collateral estoppel bar relitigation of CENTCOM's application of Exemption 6 here.
Even if collateral estoppel did not apply, however, the Court would reach the same conclusion as Osen I on the merits: that CENTCOM properly applied Exemption 6 because the Redacted Individuals have a valid privacy interest in their names and other identifying details and because disclosure of that information would not advance the core purpose of FOIA.
It is "well established that identifying information such as names, addresses, and other personal information falls within the ambit of privacy concerns under FOIA." Associated Press v. U.S. Dep't of Def., 554 F.3d 274, 285 (2d Cir. 2009). Osen does not dispute this general principle, but argues that CENTCOM has shown nothing more than a "mere possibility" of risks of potential harassment of or retaliation to the Redacted Individuals if their names and/or photographs are disclosed. Pl. Mem. at 14 (citing Dep't of Air Force v. Rose, 425 U.S. 352, 381 n.16 (1976)). See also Rose, 425 U.S. at 381 n.16 ("Exemption 6 was directed at threats to privacy interests more palpable than mere possibilities."). Osen also alleges that by "participat[ing] in such heinous crimes," the Redacted Individuals "forfeited any right to privacy." Pl. Mem. at 14.
Neither argument is compelling. As a preliminary matter, CENTCOM has already reprocessed its document production to reveal the names of "public figure[s]" and "notorious criminal[s]" and terrorists. Supp. Kurilla Decl. ¶ 5. The Redacted Individuals include "individuals who may have been suspected, but never formally charged or convicted, of involvement in certain hostile activities." Kurilla Decl. ¶ 27; see also Supp. Kurilla Decl. ¶ 8 ("Certain records from which information has been withheld pursuant to Exemption 6 consist of intelligence information that remained subject to corroboration at the time the record was generated, or unevaluated intelligence reports that simply report what detainees or other individuals communicated to American forces. It is possible, but by no means certain, that the individuals identified as perpetrators in these documents actually were involved in hostile acts against American and coalition forces. CENTCOM does not know what has become of most of the individuals identified in these records, including whether any of these individuals may currently be aligned with the United States, or the potential ramifications that could result from the disclosure of the names of the individuals withheld in these records."). As in Osen I, the Court "does not consider the potential reputational damage or the risk of violence to individuals who are identified based on uncorroborated intelligence reports to be `mere possibilities.'" Osen I, 375 F. Supp. 3d at 426.
Nor has Osen cited any authority for the proposition that an individual suspected of crimes of terrorism "forfeits" her right to privacy for purposes of Exemption 6. See Pl. Mem. at 14. "[E]ven convicted defendants" — which the remaining Redacted Individuals do not appear to be — retain a privacy interest in their names and other identifying information for purposes of FOIA. Pinson v. U.S. Dep't of Justice, 202 F.Supp.3d 86, 100 (D.D.C. 2016) (quoting ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 7 (D.C. Cir. 2011)).
Having determined that the Redacted Individuals have a privacy interest in their names and photographs, the Court must "balance[] the public's need for the information against th[ose] individual[s'] privacy interest[s] to determine whether the disclosure . . . would constitute a `clearly unwarranted invasion of personal privacy.'" Wood, 432 F.3d at 86 (citing 5 U.S.C. § 552(b)(6)).
As in Osen I, Osen relies heavily on a 2017 decision from the Southern District of Florida — Broward Bulldog, Inc. v. U.S. Dep't of Justice, 2017 WL 2119675 (S.D. Fla. May 16, 2017) — for the proposition that the public has an interest in "determining who is behind terrorist attacks against Americans." Pl. Reply Mem. at 6-9; see also Pl. Mem. at 13, 19, 21 (discussing Broward Bulldog). In Broward Bulldog, the court held in relevant part that there was a "significant public interest" in disclosure of the individual names of persons who may have been involved in the September 11, 2001 terrorist attacks. 2017 WL 2119675, at *12. However, on September 23, 2019, the Eleventh Circuit reversed that portion of the district court's order:
Broward Bulldog, Inc. v. U.S. Dep't of Justice, 2019 WL 4593316, at *13 (11th Cir. Sept. 23, 2019) (citations omitted). The Eleventh Circuit acknowledged that the public might have "some" interest in disclosure of the identifying information at issue — which could "reveal how the government took action with respect to certain leads," or permit media outlets "to contact individuals involved in the investigation" — but held that those were not "significant public interest[s] that can outweigh the strong privacy interests in the clearly identifying information at issue." Id., at *14.
Osen cites no case other than Broward Bulldog for its proposition that "there is a weighty public interest," for FOIA purposes, "in determining who is behind terrorist attacks against Americans." Pl. Reply Mem. at 8. For the same reasons set forth in Osen I, therefore, the Court concludes that revealing the names and photographs of the Redacted Individuals would not advance the core purpose of the FOIA.
As a result, "the privacy interests of the redacted individuals outweigh any claim regarding public interests," and CENTCOM was entitled to rely on Exemption 6 to redact the names of the Redacted Individuals under that exemption. See also Osen I, 375 F. Supp. 3d at 427.
Osen makes one additional argument in challenging CENTCOM's Exemption 6 redactions: that "the redactions made have been inconsistent, idiosyncratic and — in the specific instances at issue — unsupportable." Pl. Mem. at 7. For instance, it points to one instance in which CENTCOM redacted "places and organizations" under the guise of redacting the names of living people. Pl. Reply Mem. at 4.
Those inconsistencies do not rise to the level of "contradictory evidence in the record" or "evidence of agency bad faith" sufficient to justify a wholesale rejection of CENTCOM's application of Exemption 6. Grand Cent. P'ship, 166 F.3d at 478; see also Schwartz v. Dep't of Def., 2017 WL 78482, at *20 (E.D.N.Y. Jan. 6, 2017) (quoting Clemente v. F.B.I., 741 F.Supp.2d 64, 88 (D.D.C. 2010)) ("`[M]inor inconsistencies' in an agency's invocation of FOIA exemptions `are unsurprising and practically inevitable.'"); Diamond v. Fed. Bureau of Investigation, 532 F.Supp. 216, 228 (S.D.N.Y. 1981) ("even if plaintiff had established inconsistencies in defendants' handling of some of the exemptions, it does not follow that other of the exemptions are necessarily not justified"), aff'd sub nom. Diamond v. F.B.I., 707 F.2d 75 (2d Cir. 1983). However, as to the specific example of CENTCOM's application of Exemption 6 to "places and organizations," rather than individuals, the Court will direct the parties to meet and confer regarding any such outstanding issues and provide an update to the Court in the event they are unable to resolve them.
Osen also contends that CENTCOM and other subcomponents of the Department of Defense "have routinely released names of suspected terrorists" in prior public disclosures, including in the form of "wartime pressers," Tactical Interrogation Reports, the Official Iraq War History, and the CENTCOM Iraq War Papers (referred to collectively herein, as in Osen's briefs, as the CENTCOM Releases). Pl. Mem. at 6-9.
The Tactical Interrogation Reports of Qais Khazali — seven of which Osen submitted to this Court, see Radine Decl. Exs. 17-23 — were declassified by CENTCOM on April 6, 2018, released to the public on or before August 30, 2018, and "provide names and photographs of dozens of suspected Iranian terrorists." Pl. Mem. at 7; Radine Decl. Exs. 17-23. See also Josh Rogin, Iraqi terrorist turned politician told U.S. interrogators he worked with Iran to kill Americans, Washington Post, Aug. 30, 2018. On or about January 17, 2019, the U.S. Army War College released "The U.S. Army in the Iraq War" (the Official History), together with the "CENTCOM Iraq Papers," each of which contains unredacted names and photographs of suspected and/or confirmed terrorists (though the CENTCOM Iraq Papers also contain some privacy redactions). Pl. Mem. at 6-9; Radine Decl. Exs. 24-28, 31. See also CENTCOM IRAQ Papers, U.S. Army Heritage & Education Center, https://ahec.armywarcollege.edu/CENTCOM-IRAQ-papers/index.cfm (last visited September 30, 2019). The "wartime presser" Osen refers to is a Situational Update presented by Brigadier General Kevin J. Bergner, dated July 2, 2007, revealing the names and photographs of certain "suspected terrorists." Radine Decl. ¶ 15, Ex. 29. Osen argues that the CENTCOM Releases were not available to it during the briefing of Osen I, but had they been, "it may have changed the result." Pl. Reply Mem. 6.
As explained above, CENTCOM's prior disclosures of the names of some suspected terrorists does not prohibit it from relying on Exemption 6 to redact the names of other suspected terrorists, because the privacy interest at stake under Exemption 6 "belongs to the individual, not the agency holding the information." Associated Press, 395 F. Supp. 2d at 19. However, to the extent Osen contends that CENTCOM has previously disclosed the names and/or photographs of the specific individuals redacted here, that contention, if true, could bar CENTCOM from invoking Exemption 6 here.
Under the "official acknowledgment" doctrine (also sometimes referred to as the public domain doctrine), an agency's prior release of information into the public record may prohibit that agency from later withholding the same information based on an otherwise valid FOIA exemption. See Wolf v. C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007) (quoting Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990)) ("when information has been `officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim"). However, the information sought must be substantially the same as the information previously released. See Wolf, 473 F.3d at 378 ("Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure."); Osen I, 375 F. Supp. 3d at 421 (concluding that CENTCOM's prior release of an EFP strike photograph did not require the release of all such photographs).
Under the official acknowledgment doctrine, the requester carries "the burden of production on the issue of whether the sought after documents are publicly available." DiGirolamo v. Drug Enf't Admin., 2017 WL 4382097, at *7 (S.D.N.Y. Sept. 29, 2017); Conti v. U.S. Dep't of Homeland Sec., 2014 WL 1274517, at *21 (S.D.N.Y. Mar. 24, 2014). See also Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (quoting Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)) ("plaintiff[s] asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld"); Grandison v. U.S. Dep't of Justice, 600 F.Supp.2d 103, 116 (D.D.C. 2009).
Osen has not met that initial burden of production, because it has failed to identify specific information, released by CENTCOM, which is identical to the redacted names and photographs at issue here. See, e.g., Conti, 2014 WL 1274517, at *21 (finding that a plaintiff did not meet his burden of production to show that the names DHS redacted had entered the public domain through released deposition transcripts where he cited "only one specific section of deposition testimony from one deposition," and the information in that deposition was not identical to the information being withheld). See also Osen I, 375 F. Supp. 3d at 426-27 ("The mere assertion that existing lists of individuals may overlap with the redacted individuals does not demonstrate that CENTCOM has disclosed any names that remain redacted."). Osen concedes that it has not performed a comprehensive review of information in the public domain in order to point "to specific information in the public domain that appears to duplicate that being withheld," Davis, 968 F.2d at 1279, when it asserts that "CENTCOM has also not checked the names in its various disclosures against the names redacted in the records at issue." Pl. Reply Mem. at 7 (emphasis added); see also Pl. Mem. at 20 ("Names can be compared to the dozens of names CENTCOM released in the TIRs, the Iraq War Papers, news stories or elsewhere.") (emphasis in original). "[G]rudging though it may be," the law places the initial burden on Osen to conduct such a comparison. Davis, 968 F.2d at 1279. See also Conti, 2014 WL 1274517, at *21 (citing Davis and finding that a plaintiff failed to meet his burden of production to point to specific information identical to the information being withheld).
In light of the recent publication of some of the CENTCOM Releases, however, the Court will afford Osen one more opportunity, if it wishes to take it, to review those releases and meet and confer with CENTCOM to request the disclosure of information, if any, identical to that which CENTCOM has publicly disclosed. As in Osen I, the Court "sees no reason to doubt CENTCOM's good-faith efforts to identify the sufficiently public individuals in the redacted material or its continued willingness to work with Plaintiff's in addressing these disputes." Osen I, 375 F. Supp. 3d at 427 n.7.
For the reasons set forth above, defendant's motion (Dkt. No. 21) is GRANTED IN PART, and plaintiff's motion (Dkt. No. 26) is DENIED. However, the Court will not enter judgment at this time, in order to afford the parties an opportunity to consider whether to further litigate the issues left open above. See Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) ("[E]ven when both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party.").
The Court will conduct a status conference on
The Clerk of Court is directed to terminate the motions at Dkt. Nos. 21 and 26.
