Physicians for Human Rights v. U.S. Department of Defense ( 2009 )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
*
PHYSICIANS FOR HUMAN RIGHTS,
*
Plaintiff,
* Civil Action No.: RDB-08-273
v.
*
U.S. DEPARTMENT OF DEFENSE, et al.,
*
Defendants. *
* * * * * * * * * * * * *
MEMORANDUM OPINION
Plaintiff Physicians for Human Rights, a non-profit human rights group, filed the present
action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522 et seq., seeking to
compel Defendants, the Department of Defense (“DOD”) and its components, the Defense
Intelligence Agency (“DIA”), United States Special Operations Command (“USSOCOM”), and
United States Central Command (“CENTCOM”), to reveal documentary information relating to
a mass gravesite at Dasht-e-Leili, Afghanistan, where Taliban fighters are alleged to be buried. 1
Currently pending are the parties’ cross-motions for summary judgment. The parties’
submissions have been reviewed and a hearing was conducted on November 4, 2009. For the
reasons explicated below, this Court issues the following memorandum and order.
BACKGROUND
According to media reports, in late 2001, several thousand Taliban fighters surrendered to
the Northern Alliance after a battle in Konduz, Afghanistan. See Pl.’s Exs. 3-6. Northern
1
Plaintiff filed its lawsuit in the U.S. District Court for the District of Columbia and this case was originally
assigned to Judge Colleen Kollar-Kotelly. Because of the high volume of cases currently pending before that court,
the present case was reassigned to the undersigned on June 19, 2009. (Paper No. 25.)
Alliance soldiers under the command of General Abdul Rashid Dostum then crammed the
surrendered Taliban fighters into sealed cargo containers and transported them 200 miles to a
Northern Alliance prison at Sheberghan, a city in northern Afghanistan. Id. Approximately one
thousand of the Taliban prisoners are alleged to have died of asphyxiation during the journey,
and their bodies were allegedly buried in a mass grave in nearby Dasht-e-Leili in December of
2001. Id.Plaintiff Physicians for Human Rights (“PHR”) is a non-profit organization of health care
professionals devoted to the investigation of alleged human rights violations. Compl. ¶ 3. In January
and February of 2002, PHR conducted on-the-ground forensic investigations of the gravesite at
Dasht-e-Leili and subsequently issued a report summarizing their findings. Pl.’s Ex. 1.
Throughout 2002, news sources reported on the underlying events and PHR’s investigations into
the mass gravesite. Pl.’s Exs. 3-6. PHR notes that while there is no indication that the U.S.
military was involved in the deaths, U.S. military personnel were reportedly in the region at the
time and investigated the circumstances surrounding the gravesite. Compl. ¶¶ 6, 9-12. PHR
cites a Newsweek magazine article from 2002, which quotes Department of Defense spokesman
Lt. Col. Dave Lapan as saying that United States Central Command (“CENTCOM”) had “looked
into [the alleged killings] and found no evidence of participation or knowledge or presence” by
American forces. Pl.’s Ex. 3, at 6. The article also notes that the Pentagon had asked the
commander of the Fifth Special Forces Group, Col. John Mulholland, to look into the container
deaths. Col. Mulholland reportedly confirmed that large numbers of Taliban prisoners had died
on the journey to Sheberghan, but that Special Forces had determined that their deaths had
resulted from wounds and disease. Id. at 7.
2
On June 21, 2006, PHR submitted a FOIA request to the United States Department of
State (“State Department”), the Department of Defense (“DOD”), the Department of the Air
Force, the Department of the Army, CENTCOM, and the Central Intelligence Agency (“CIA”),
which included requests for nine specific categories of records. Pl.’s Ex. 2. PHR’s petition
seeks documents relating to, inter alia, the deaths of the Taliban prisoners, the mass graves, and
the investigations conducted by the U.S. military into the underlying events. Id. On April 26,
2007, after the FOIA deadline passed without receiving any documents, PHR submitted an
administrative appeal to the DIA, USSOCOM, and CENTCOM, 2 but no response was given to
the appeal. Pl.’s Ex. 8. On August 6, 2007, DOD released to PHR six documents it deemed
responsive. Pl.’s Ex. 9.
PHR filed a complaint in the U.S. District Court for the District of Columbia on February
19, 2008, alleging that the DOD and three of its components, DIA, USSOCOM, and
CENTCOM, were in violation of their obligations under FOIA. Defendants answered the
Complaint on April 28, 2008, and PHR provided Defendants with additional time to complete
their searches. The DOD, the State Department and the CIA have since provided approximately
60 documents to PHR, some of which were redacted, and all of which originated with the DOD.
Pl.’s Mot. Summ. J. at 6.
On October 3, 2008, Defendants filed the pending Motion for Summary Judgment (Paper
No. 15) with several supporting affidavits, and on November 17, 2008, PHR filed its Cross
Motion for Summary Judgment (Paper No. 16). After obtaining a time extension, Defendants
filed its Reply brief along with several supplemental affidavits that aim to clarify and correct any
2
The Defense Intelligence Agency (“DIA”) and United States Special Operations Command (“USSOCOM”) were
not recipients of PHR’s initial FOIA request. However, the DIA received a request on referral from the Department
of Defense, and USSOCOM received the request on referral from the Department of the Army. Pl.’s Mot. Summ. J.
at 6 n.3.
3
alleged inadequacies in the description of its actions taken in response to the FOIA request.
(Paper No. 20.) On June 19, 2009, the present case was reassigned to the undersigned United
States District Judge. (Paper No. 25.) This Court conducted a hearing on November 4, 2009.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall
be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
genuine issue over a material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In considering a motion for summary judgment, a
judge’s function is limited to determining whether sufficient evidence exists on a claimed factual
dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. A court is
obligated to consider the facts and all reasonable inferences in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.
Ct. 1348, 89 L. Ed. 2d 538 (1986).
In the context of an action filed under the Freedom of Information Act, a district court
reviewing a motion for summary judgment conducts a de novo review of the record, and the
responding federal agency bears the burden of proving that it has complied with its obligations
under the Act. 5 U.S.C. § 552(a)(4)(B). To prevail on summary judgment, an agency must
demonstrate “that it has conducted a search reasonably calculated to uncover all relevant
information, which either has been released to the requester or is exempt from disclosure.”
Thomas v. HHS, Food & Drug Admin., 642 F. Supp. 2d 5, 8 (D.D.C. 2009) (internal citations
4
omitted). On the other hand, in opposing a motion for summary judgment or cross-moving for
summary judgment, a FOIA plaintiff cannot simply rest upon conclusory statements, but must
instead “set forth ‘affirmative evidence’ showing a genuine issue for trial.” Broaddrick v. Exec.
Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (quoting Laningham v. U.S. Navy, 813
F.2d 1236, 1241, 259 U.S. App. D.C. 115 (D.C. Cir. 1987)).
To meet its burden at summary judgment, an agency may rely upon declarations and
Vaughn indexes 3 to describe, in reasonable detail, the nature of its search and the withheld
material, and to explain why such material falls within the claimed FOIA exemptions. See Kidd
v. DOJ, 362 F. Supp. 2d 291, 294 (D.D.C. 2005). Through the submission of appropriate
affidavits, an agency must show “beyond material doubt . . . that it has conducted a search
reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344,
1351, 227 U.S. App. D.C. 253 (D.C. Cir. 1983). In addition, an agency “bears [the] burden of
demonstrating that . . . all information that falls within the class requested either has been
produced, is unidentifiable, or is exempt from disclosure.” Cole v. DOJ, Civ. Act. No. 05-674,
2006 U.S. Dist. LEXIS 69418, 2006 WL 2792681, at *1 (D.D.C. Sept. 27, 2006) (citation
omitted).
ANALYSIS
In resolving the pending cross-motions for summary judgment this Court must address
(1) whether Defendants conducted reasonably adequate searches for responsive documents under
FOIA; and (2) whether Defendants properly withheld information under the claimed FOIA
exemptions.
3
A Vaughn index is an affidavit provided by a government agency that lists each withheld document, or portion
thereof. The index correlates each withholding with a specific FOIA exemption and provides the agency’s
justification for nondisclosure. See Vaughn v. Rosen, 484 F.2d 820, 157 U.S. App. D.C. 340 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).
5
I. Adequacy of Defendants’ Searches for Responsive Documents
To comply with its search responsibilities under FOIA, a government agency must “show
beyond material doubt ‘that it made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information
requested.’” People for the American Way Found. v. National Park Service, 503 F. Supp. 2d
284, 292 (D.D.C. 2007) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68, 287 U.S. App.
D.C. 126 (D.C. Cir. 1990)). “The adequacy of an agency’s search is measured by a standard of
reasonableness, and is dependent upon the circumstances of the case.” Weisberg, 705 F.2d at
1351 (internal citations and quotations omitted). An agency will not be granted summary
judgment “if a review of the record raises substantial doubt, particularly in view of ‘well defined
requests and positive indications of overlooked materials.’” Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 326, 336 U.S. App. D.C. 386 (D.C. Cir. 1999) (quoting Founding Church
of Scientology v. Nat’l Sec. Agency, 610 F.2d 824, 837, 197 U.S. App. D.C. 305 (D.C. Cir.
1979)). However, there is no requirement under FOIA that an agency’s search be exhaustive, for
“the issue is not whether any further documents might conceivably exist but rather whether the
government’s search for responsive documents was adequate.” Perry v. Block, 684 F.2d 121,
128, 221 U.S. App. D.C. 347 (D.C. Cir. 1982) (per curiam) (emphasis in original). See Meeropol
v. Meese, 790 F.2d 942, 952-53, 252 U.S. App. D.C. 381 (D.C. Cir. 1986) (“[A] search is not
unreasonable simply because it fails to produce all relevant material; no [large] search . . . will be
free from error.”).
PHR claims that Defendants’ declarations are insufficiently detailed and therefore
insufficient to sustain their burden of proof with respect to the adequacy of their searches. In
addition, they contend that Defendants’ searches were unduly restrictive because they: (1) failed
6
to contact certain individuals who are alleged to have made statements regarding government
investigations into the underlying events; (2) did not conduct a search for responsive documents
in Afghanistan; and (3) used flawed search terms and conducted a search that was too limited in
its temporal scope. PHR submits that because of such incompliance, the Defendants should be
compelled to conduct new searches and to submit new affidavits in support thereof. Pl.’s Reply
at 15.
A. Sufficiency of Defendants’ Declarations
To sustain its burden on summary judgment, an agency may rely upon affidavits to
demonstrate the adequacy of its search. An agency’s submissions will be relied upon if they are
found to be “relatively detailed, nonconclusory, and submitted in good faith.” Greenberg v. U.S.
Dept. of Treasury, 10 F. Supp. 2d 3, 12-13 (D.D.C. 1998) (citing Steinberg v. DOJ, 23 F.3d 548,
551, 306 U.S. App. D.C. 240 (D.C. Cir. 1994)). Courts generally expect affidavits to describe, at
minimum, the search methods employed and the files targeted. See Ferranti v. BATF, 177 F.
Supp. 2d 41, 47 (D.D.C. 2001) (“[a]ffidavits that include search methods, locations of specific
files searched, descriptions of searches of all files likely to contain responsive documents, and
names of agency personnel conducting the search are considered sufficient”). Agency affidavits
that bear sufficient detail are presumed to be in good faith, and are to be taken at face value and
relied upon without further investigation during a court’s de novo review. This presumption can
only be rebutted with clear evidence of bad faith, and not by “purely speculative claims about the
existence and discoverability of other documents.” SafeCard Services, Inc. v. SEC, 926 F.2d
1197, 1200, 288 U.S. App. D.C. 324 (D.C. Cir. 1991) (internal quotations omitted).
Accompanying their Motion for Summary Judgment, Defendants submitted eight
declarations: seven from the DOD and one from the State Department. Of these eight, PHR
7
specifically contests the adequacy of the declarations provided by: (1) the Office of the Deputy
Assistant Secretary of Defense for Central Asia (Scott Schless Decl. (Defs.’ Ex. C)); (2)
USSOCOM, and its service component, U.S. Army Special Operations Command (“USASOC”)
(Steven A. Hummer Decl. (Defs.’ Ex. G)); and (3) the DIA and its two major component
directorates, the Directorate for Analysis (“DI”) and the Directorate for Human Intelligence
(“DH”) (Alesia Y. Williams Decl. (Defs.’ Ex. E)). Accompanying their Reply brief, Defendants
submitted three supplemental declarations that addressed alleged deficiencies in the original
declarations. See Supplemental Declaration of Alesia Y. Williams (Defs.’ Ex. I); Supplemental
Declaration of Jacqueline J. Scott (Defs.’ Ex. J); Supplemental Declaration of Steven A.
Hummer (Defs.’ Ex. K).
i. Declaration Supporting the Search Conducted by the Office of the Deputy
Assistant Secretary of Defense for Central Asia
The declaration submitted by Scott Schless, the Principal Deputy to the Deputy Assistant
Secretary of Defense of the Office of Central Asia, is sufficiently detailed. Schless Decl. ¶ 1
(Defs.’ Ex. C). It provides that in August of 2007, action officers in the Afghanistan directorate
searched hard copy files available in the Central Asia Office, and the FOIA Program Manager
from the Office of the Deputy Assistant Secretary of Defense for Asia Pacific Security Affairs
(“APSA”) searched the electronic files of the Office of Central Asia. Id. at ¶ 3. Schless cites the
search terms used in the electronic review and describes the two documents that were produced
by the electronic search. Id. Because the Schless Declaration is sufficiently detailed, it was not
incumbent upon the Defendants to provide a supplemental declaration in support of the search
conducted under the supervision of the Office of the Deputy Assistant Secretary of Defense for
Central Asia.
ii. Declarations Supporting the Search Conducted by USSOCOM and USASOC
8
PHR contests the declarations submitted in support of the searches conducted by
USSOCOM, and its service component, U.S. Army Special Operations Command (“USASOC”),
on the basis that they are impermissibly vague and confusing and “do[] not describe with
specificity how the search was conducted, who conducted it, or the process used to identify
responsive documents.” Pl.’s Reply at 15.
USSOCOM provided two declarations from Brigadier General Steven A. Hummer that
thoroughly describe the procedures, locations, and people involved in the searches. See Hummer
Decl. (Defs.’ Ex. G); Hummer Suppl. Decl. (Defs.’ Ex. K). They explain how USASOC
conducted hard-copy and electronic searches in its constituent directorates that were deemed
likely to contain responsive documents. Moreover, USASOC even broadened its search by
referring the request up the chain of command to USSOCOM, which in part, then tasked its four
service components to conduct internal searches of their own. Hummer Decl. ¶ 4; Hummer
Suppl. Decl. ¶ 2. USSOCOM’s supplemental declaration also provides the search terms that
were employed to locate responsive documents. Hummer Suppl. Decl. at ¶ 7. In sum, affidavits
submitted by USSOCOM and USASOC bear the requisite indicia of thoroughness. See Oglesby,
920 F.2d at 68 (noting that affidavits must be “reasonably detailed . . . , setting forth the search
terms and the type of search performed, and averring that all files likely to contain responsive
materials (if such records exist) were searched”).
iii. Declarations Supporting the Search Conducted by DIA and its Two Major
Directorates, the Directorate for Analysis (“DI”) and the Directorate for Human
Intelligence (“DH”)
Finally, PHR challenges the declarations submitted by the DIA, which describe the
searches conducted by two of its directorates, the Directorate for Analysis (“DI”) and the
Directorate for Human Intelligence (“DH”).
9
Alesia Y. Williams, the Chief of the FOIA Services Section within the DIA, provided
two declarations that explain in sufficient detail the nature and scope of the searches conducted
within the DIA. See Williams Decl. (Defs.’ Ex. E); Williams Suppl. Decl. (Defs.’ Ex. I). The
declarations outline the organizational structure and functions of the DIA and its constituent
directorates. They explain in detail the processing of PHR’s FOIA request and the searches
conducted within the DI, the DH, and the Research and Reference Library (“Library”)—the
directorates deemed reasonably likely to have responsive records. Williams Decl. ¶ 9. The
declarations also identify many of the databases searched, and the types of searches and search
terms that were employed.
PHR faults the DIA’s submissions for not identifying the specific offices within the DI
and DH directorates that were tasked with search responsibilities. In response, Defendants
explain that the disclosure of information on these offices would reveal DIA’s organizational
structure—information that is protected by statute. See Defs.’ Reply at 4 (citing 10 U.S.C. §
424(a), (b)).
This Court finds that the DIA properly withheld the sensitive identifying information at
issue, including the name, geographic location, and subject matter responsibilities of some of its
offices. Williams Suppl. Decl. ¶ 9. This data is protected under 10 U.S.C. § 424, which
authorizes the withholding of information relating to “the organization or any function of an
organization of the Department of Defense,” such as the DIA. Nevertheless, the DIA has still
provided significant detail on the nature of the search conducted within the directorates’
offices—as much as could be reasonably expected in light of Defendants’ legitimate concern in
preventing the disclosure of classified information. Within the DI, target files were searched by
“manually opening and reading every document dealing with the time period specified in the
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request letter.” Id. at ¶ 12. The searching analyst also “manually opened and read every
document” that referred to the Jowzjan, Faryab, and Sari-pol provinces, Rashid Dostum, and
Dasht-e-Leili. Id. The classified electronic file systems that were searched by the DI and the
search terms that were used in the search were also identified. Williams Decl. ¶ 10; Williams
Suppl. Decl. ¶ 11. In addition, the tasked office within the DH searched “all of its electronic files
and hard copy files,” using the search terms “Dasht-e-Leili, Sheberghan, Mazar-i-Sharif, and
Grave.” Williams Suppl. Decl. ¶ 14.
Defendants have satisfied their burden of explicating the “scope and method of the
search” in “reasonable detail” through their proffered declarations. Kidd, 362 F. Supp. 2d at 295.
This Court is able to assess DIA’s search to the extent necessary to determine that it satisfied its
burden in conducting a search “reasonably calculated to uncover all relevant documents.”
Weisberg, 705 F.2d at 1351.
B. Adequacy of Defendants’ Searches with Respect to the Contact of Certain DOD
Officials
PHR contends that the Defendants’ searches were unreasonable because they did not
contact DOD officials who may have known where responsive documents were located. PHR
cites the Newsweek article from August of 2002 that first broke the story of the underlying events
in the American media. (Pl.’s Ex. 3.) In this article, DOD spokesman Lt. Col. Lapan is quoted
as stating that CENTCOM had looked into the alleged killings of Taliban fighters. Id. at 6. In
addition, the article notes that Col. Mulholland, the commander of the Fifth Special Forces
Group, had headed an investigation into the container deaths. Id. at 7.
PHR originally contended, in its cross-motion for summary judgment, that Defendants’
search was inadequate because they failed to contact Lt. Col. Lapan and Col. Mulholland, who
likely had personal knowledge of the DOD investigation. Pl.’s Mot. Summ J. at 18-19.
11
Defendants subsequently interviewed Col. Mulholland, who stated that that he was not aware of
any additional responsive documents and that he was not aware of any investigations into
allegations relating to the deaths or mass grave. Hummer Suppl. Decl. ¶ 9. In its Reply brief,
PHR now maintains that Defendants’ decision not to contact Lt. Col. Lapan is a violation of their
FOIA obligations.
The fact that Lt. Col. Lapan was not contacted does not undermine the legitimacy of
Defendants’ searches because there is no “positive indication” in the record that he had
possession or knowledge of any responsive documents. Moreover, Defendants’ action in
contacting Col. Mulholland does not oblige them to contact Lt. Col. Lapan as well, or otherwise
raise any substantial doubt regarding the government’s efforts. While PHR’s FOIA request
specifically mentions Col. Mulholland, it does not include any reference to Lt. Col. Lapan. (Pl.’s
Ex. 2, at p.3.) The FOIA request references the Newsweek article from 2002, but agencies are
not required to personally contact every individual that may be mentioned in an article that is
merely cited in a request. A responding agency must “construe a FOIA request liberally,”
Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890, 315 U.S. App. D.C. 177 (D.C. Cir.
1995), but it is not “obliged to look beyond the four corners of the request for leads to the
location of responsive documents.” Kowalczyk v. DOJ, 73 F.3d 386, 389, 315 U.S. App. D.C.
286 (D.C. Cir. 1996). See Miller v. Casey, 730 F.2d 773, 777, 235 U.S. App. D.C. 11 (D.C. Cir.
1984) (stating that an agency is “bound to read [a FOIA request] as drafted, not as either agency
officials or [the requester] might wish it was drafted”).
Plaintiffs cite to Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325, 336 U.S. App.
D.C. 386 (D.C. Cir. 1999) and Jackson v. U.S. Attorney’s Office, Dist. of N.J., 362 F. Supp. 2d
39 (D.D.C. 2005) in support of their argument. In Valencia-Lucena, the plaintiff, a convicted
12
drug dealer, submitted FOIA requests to the Coast Guard specifically seeking a logbook from
one of its ships, which had been used as evidence against him during his trial. 180 F.3d at 323-
25. In ruling on plaintiff’s FOIA request, the court found the Coast Guard’s search to be
inadequate because, inter alia, it failed to contact the ship’s captain for information on the
logbook, despite the fact that the captain had allegedly consulted the logbook while testifying
against the plaintiff at trial. Id. at 327-28. Likewise, in Jackson, the plaintiff sought documents
relating to the decision of the local United States Attorney’s Office not to investigate matters
relating to plaintiff’s claim of discrimination. 362 F. Supp. 2d at 41. Prior to submitting his
FOIA request, plaintiff had learned that an official at the U.S. Attorney’s Office had issued a
written directive to terminate the investigation. Id. This Court ruled that the defendants did not
comply with their search obligations under FOIA because they failed to contact the author of the
directive and the FBI agent that alerted plaintiff to its existence. Id. at 42. The holdings in these
two cases stand for the proposition that “[w]hen all other sources fail to provide leads to the
missing record, agency personnel should be contacted if there is a close nexus . . . between the
person and the particular record.” Valencia-Lucena, 180 F.3d at 328; Jackson, 362 F. Supp. 2d
at 41-42.
The holdings in Valencia-Lucena and Jackson are inapposite because they are closely
based on unique and factually dissimilar scenarios. Both of these cases involved specifically
targeted records and individuals who were identified as “‘likely to turn up the information
requested.’” Valencia-Lucena, 180 F.3d at 327 (quoting Oglesby, 920 F.2d at 68). In this case,
however, PHR’s search is not focused upon the recovery of any particular document, nor is it
suggested that Lt. Col. Lapan has ever borne a “close nexus” to any known and sought-after
document. There is no clear indication in the record that Lt. Col. Lapan has had exceptional
13
access to, or a unique knowledge of, any records relating to the investigation. Furthermore, this
case is distinguishable from cases where agencies refused to conduct searches in certain
locations despite the agencies’ acknowledgement that such locations were “likely to have”
responsive documents. See, e.g., Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d
1, 13-14 (D.D.C. 2004) (faulting defendant for not referring a FOIA request to an office that
likely held responsive documents); Friends of Blackwater v. U.S. Dep’t of Interior, 391 F. Supp.
2d 115, 120-21 (D.D.C. 2005) (finding search to be inadequate when agency failed to produce
documents known to have originated in a certain office); Campbell v. DOJ, 164 F.3d 20, 28, 334
U.S. App. D.C. 20 (D.C. Cir. 1998) (holding that government’s search was inadequate where its
own documents revealed that requested documents were likely contained in another of its record
systems); Valencia-Lucena, 180 F.3d at 325-27 (finding agency’s search to be unreasonable
where the agency recognized that there might be responsive documents in a records center that it
declined to search).
PHR’s argument regarding Lt. Col. Lapan is similar to the unsuccessful argument
advanced by the plaintiffs in Amnesty International USA v. CIA, No. 07 Civ. 5435, 2008 U.S.
Dist. LEXIS 47882, 2008 WL 2519908, at *38-45 (S.D.N.Y. June 19, 2008). In Amnesty
International, the plaintiffs claimed that the Department of Homeland Security’s (“DHS”) search
was unreasonable in part because the agency did not compile a list of individuals deemed subject
to its secret detention program and then conduct a search for documents relating to these names.
Id. at *38-40. In rejecting this contention, the court found that the government lacked notice of
any obligation to search for these names as they were not actually stated in the request, and were
merely mentioned in materials cited in a footnote in the request. Id. at *40-41. The court
observed that to compile such a list of names, the government agency would need to conduct its
14
own further research and investigation—an obligation that is not mandated under FOIA. Id. at
*39-40. Finally, the plaintiffs’ suggestion that there were obvious “leads” in the case that would
prompt further searches was rejected, as plaintiffs could only rely upon news articles and reports
authored by non-governmental sources. The court concluded that “the additional documents
relied on in this case do not indicate that there remain [agency] documents that are responsive to
the Request and which have not been produced.” Id. at *44-45.
As in Amnesty International, PHR’s request to have Lt. Col Lapan interviewed is absent
from its FOIA petition, and is entirely based upon his mention in a news article. Thus,
Defendants were not properly notified of any obligation to make inquiries relating to Lt. Col
Lapan. In addition, PHR’s request is essentially a post hoc attempt to open a new line of inquiry
in its pursuit of information on the underlying events. In this respect PHR is seeking remedies
that are beyond the purview of FOIA and its focus upon the disclosure of documents. See
Amnesty International, 2008 U.S. Dist. LEXIS 47882, 2008 WL 2519908, at *40 (“FOIA is a
mechanism to obtain access to records, not answers to questions.”); Hudgins v. IRS, 620 F. Supp.
2d 19, 21 (D.D.C. 2003) (“FOIA creates only a right of access to records, not a right to personal
services”). In the absence of any “positive indications of overlooked materials,” Founding
Church of Scientology, 610 F.2d at 837, the Defendants’ decision not to contact Lt. Col. Lapan
does not cast any doubt upon the legitimacy of their searches.
C. Adequacy of Defendants’ Searches with Respect to the Discovery of Documents in
Afghanistan
PHR claims that the geographic scope of Defendants’ searches was too limited in that
they failed to conduct sufficient searches for documents in Afghanistan.
Jacqueline J. Scott, the Command FOIA and Privacy Act Officer for CENTCOM
submitted two detailed declarations describing the entity’s search procedures and scope. See
15
Jacqueline J. Scott Decl. (Defs.’ Ex. F); Scott Suppl. Decl. (Defs.’ Ex. J). CENTCOM tasked
Combined Joint Task Force (CJTF) 76, CJTF-82, CJTF-101, and the Combined Security
Transition Command, Afghanistan (CSTC-A), to search for electronic and physical records in
Afghanistan that were responsive to PHR’s FOIA request. Scott Suppl. Decl. ¶¶ 1-3. In
addition, nine of the Headquarters’ CENTCOM directorates and offices were tasked to conduct a
search. Id. ¶ 4. Scott’s Supplemental Declaration also identifies the data storage devices and
systems that were examined, id. ¶¶ 7-8, and provides a long list of the search terms that were
employed. Id. ¶ 9.
The Fifth Special Forces Group, which was allegedly located at the Sheberghan prison at
the time of the underlying events, see Pls.’ Ex. 2 at 2, conducted a search for responsive
documents within its control. Hummer Suppl. Decl. ¶ 6. In addition, the DIA “search[ed] all
areas, databases, files, and offices likely to have records pertaining to a mass grave at Dasht-e-
Leili.” Williams Suppl. Decl. ¶ 10. More specifically, the DIA’s two major directorates, the DI
and the DH, and the DIA’s classified library all conducted keyword and manual searches of the
DIA’s classified web and all electronic and hard copy files that would likely contain responsive
documents relating to Afghanistan. Id. at ¶¶ 9-14. In doing so, they employed relevant search
terms referring to the Jowzjan, Faryab and Sari-pol provinces, Rashid Dostum, and Dasht-e-
Leili. Id. at ¶¶ 10, 12.
Defendants have produced “reasonably detailed affidavit[s]” that set forth “the search
terms and the type of search performed, and averring that all files likely to contain responsive
materials . . . were searched.” Ogelsby, 290 F.2d at 68. Presuming that these declarations were
issued in good faith, and in the absence of any rebutting evidence of bad faith, this Court finds
that the geographic scope of Defendants’ search was not unreasonable under the circumstances.
16
Defendants tasked those offices and directorates that were reasonably expected to contain
responsive documents. These entities thereupon conducted searches in Afghanistan and searched
for documents referencing relevant geographic locations in Afghanistan. Defendants’
interpretation of PHR’s FOIA request was not unduly narrow, as the request does not include any
instruction to search for documents that refer to specific provinces in Afghanistan. Finally, there
are no positive indications in the record that any requested documents were located in any
provinces that were not searched. Compare Valencia-Lucena, 180 F.3d at 327 (finding search to
be unreasonable because government refused to search a federal records center that it had
acknowledged might contain responsive documents), with Amnesty International, 2008 U.S.
Dist. LEXIS 47882, 2008 WL 2519908, at *44-45 (rejecting plaintiffs’ request for an additional
name search in part because there was no indication that such an inquiry would lead to any
overlooked documents).
D. Adequacy of Defendants’ Searches with Respect to Search Terms Employed and
the Temporal Scope of CENTCOM’s Search
1. Search Terms Employed
PHR contends that the Defendants’ search terms were not “reasonably calculated to
uncover all relevant documents requested,” Pl.’s Mot. Summ. J. at 19, and that their searches
failed to utilize a “wide range of . . . useable search terms” that were included in the FOIA
request. Id. at 20.
Contrary to the suggestion in PHR’s briefs, the FOIA petition does not set forth a discrete
list of search terms, and even if PHR had included such a list, there is no bright-line rule
requiring agencies to use the search terms proposed in a FOIA request. See Nielsen v. U.S.
Bureau of Land Management, 252 F.R.D. 499, 514 (D. Minn. 2008) (finding that there was no
support “for the proposition that a FOIA claimant can dictate the search terms to be used as the
17
benchmark for determining whether an agency’s search is reasonable”). Additionally, as
evidenced in their affidavits, Defendants properly exercised their discretion in crafting lists of
search terms that they believed to be reasonably tailored to uncover documents responsive to the
FOIA request. As mentioned above, in responding to a FOIA request, an agency is only held to
a standard of reasonableness; as long as this standard is met, a court need not quibble over every
perceived inadequacy in an agency’s response, however slight. See Johnson v. Executive Office
for U.S. Attorneys, 310 F.3d 771, 776, 354 U.S. App. D.C. 49 (D.C. Cir. 2002) (“FOIA,
requiring as it does both systemic and case-specific exercises of discretion and administrative
judgment and expertise, is hardly an area in which the courts should attempt to micro manage the
executive branch.”).
2. Temporal Scope of CENTCOM’s Search
PHR’s final challenge concerns the temporal scope of CENTCOM’s search. Defendants
acknowledge that the search conducted by CENTCOM was designed to review documents only
within the months of November and December of 2001 (Scott Supp. Decl. ¶ 9), and in this
respect, Defendants have interpreted PHR’s FOIA request too narrowly. While the underlying
events occurred in November and December of 2001, PHR have clearly requested all records
“pertaining” or “relating to” the underlying events, including any subsequent investigations.
Pls.’ Ex. 2 at 3-4. For instance, the FOIA request expressly seeks “[a]ll records pertaining to the
existence or reported existence of a grave in or around Dasht-e-Leili (using this or other spelling)
in Afghanistan in November or December 2001, including records of physical evidence of a
mass grave or investigations conducted contemporaneously or subsequently to determine
whether such a grave exists . . . .” Id. at 4 (emphasis added).
18
Consequently, summary judgment is appropriate for PHR on the adequacy of
CENTCOM’s search. There is no genuine dispute that the temporal scope of CENTCOM’s
search was too narrow and did not comport with PHR’s FOIA petition. Therefore, CENTCOM
must conduct a new search that is designed to obtain responsive documents generated from
November 1, 2001, until the start date of its new search. See, e.g., Edmunds Inst. v. U.S. Dep’t of
Interior, 383 F. Supp. 2d 105, 110-111 (D.D.C. 2005) (endorsing the start date of a search as an
appropriate cut-off date); Defenders of Wildlife, 314 F. Supp. 2d at 12 n.10 (same). Defendants
may submit a renewed motion for summary judgment addressing the results of CENTCOM’s
new search, and if CENTCOM seeks to withhold documents found pursuant to this new search,
it must submit supplementary affidavits justifying such withholdings.
II. Propriety of Defendants’ Withholdings under FOIA’s Exemptions
PHR challenges Defendants’ withholding of information under the cited FOIA
exemptions, noting that they have not satisfied their burden of adequately describing, in
sufficient detail, the documents claimed to be exempt. To resolve whether the exemptions were
properly invoked, PHR requests that the withheld documents be made available for in camera
review.
Defendants have submitted five declarations and four accompanying Vaughn indexes that
address the withholding of information deemed responsive to PHR’s FOIA request. See William
T. Kammer Decl. (Defs.’ Ex. A.) Mark S. Patrick Decl. (Defs.’ Ex. B); Steven A. Hummer Decl.
(Defs.’ Ex. G); Alesia Y. Williams Decl. (Defs.’ Ex. E); Margaret P. Grafeld Decl. (Defs.’ Ex.
H). While Defendants have cited FOIA Exemptions 1, 2, 3, and 6 as bases for nondisclosure,
they predominately depend upon Exemption 1 to withhold information purportedly relating to
19
national security and foreign policy matters. As a result, the following analysis largely focuses
on assessing Defendants’ reliance upon Exemption 1.
A. Legal Standard for Reviewing Withholdings under FOIA’s Exemptions
FOIA requires government agencies to disclose documents deemed responsive to a
properly fashioned request unless they can claim protection under one or more of nine statutory
exemptions. 5 U.S.C. § 552(a), (b). The Act also requires an agency to disclose “[a]ny
reasonably segregable portion of a record,” id. § 552(b), after redaction or deletion of exempt
portions, unless they are “inextricably intertwined with exempt portions.” Mead Data Cent. Inc.
v. U.S. Dep’t of Air Force, 566 F.2d 242, 260, 184 U.S. App. D.C. 324 (D.C. Cir. 1977); see also
Schiller v. NLRB, 964 F.2d 1205, 1209-10, 296 U.S. App. D.C. 84 (D.C. Cir. 1992) (discussing
the “segregability requirement”). While the exemptions in FOIA represent Congress’
recognition that “legitimate governmental and private interests could be harmed by release of
certain types of information,” FBI v. Abramson, 456 U.S. 615, 621, 102 S. Ct. 2054, 72 L. Ed. 2d
376 (1982), they are “limited” in scope and “do not obscure the basic policy that disclosure, not
secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96
S. Ct. 1592, 48 L. Ed. 2d 11 (1976). Consequently, the exemptions are narrowly construed and
the “burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). Under FOIA, courts
review an agency’s reliance upon a FOIA exemption to withhold documents de novo. See
Phillippi v. CIA, 546 F.2d 1009, 1013, 178 U.S. App. D.C. 243 (D.C. Cir. 1976).
FOIA cases present a “unique evidentiary configuration” whereby the responding agency
“alone possesses, reviews, discloses, and withholds the subject matter of the request.” Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006); see also King v. DOJ, 830 F.2d 210,
218, 265 U.S. App. D.C. 62 (D.C. Cir. 1987) (noting the “asymmetrical distribution of
20
knowledge that characterizes FOIA cases”). To facilitate an agency’s task in justifying its
withholdings without needlessly sacrificing their confidential status, an agency may rely upon
Vaughn indexes, or other forms of affidavits, to describe the material at issue. These
submissions enable “the adversary system to operate by giving the requester as much
information as possible, on the basis of which he can present his case to the trial court.” Lykins
v. DOJ, 725 F.2d 1455, 1463, 233 U.S. App. D.C. 349 (D.C. Cir. 1984). In addition, they
provide “the reviewing court a reasonable basis to evaluate the claim of privilege.” Gallant v.
NLRB, 26 F.3d 168, 172-73, 307 U.S. App. D.C. 27 (D.C. Cir. 1994) (internal quotation marks
and citation omitted).
An agency’s affidavits and Vaughn indexes are evaluated primarily on the basis of the
detail they provide about the withheld material; at minimum, the document descriptions should
identify the “length, date, author and brief description of each document” at issue. Oglesby v.
U.S. Dep’t of Army, 79 F.3d 1172, 1178-81, 316 U.S. App. D.C. 372 (D.C. Cir. 1996). The D.C.
Circuit focuses upon “the function, not the form,” Keys v. DOJ, 830 F.2d 337, 349, 265 U.S.
App. D.C. 189 (D.C. Cir. 1987), meaning that the affidavits are also expected to provide a
“relatively detailed justification, specifically identifying the reasons why a particular exemption
is relevant and correlating those claims with the particular part of a withheld document to which
they apply.” Mead Data, 566 F.2d at 251. In sum, an agency’s burden is considered to be
satisfied when its submissions explicate “the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor by evidence of
agency bad faith.” Miller, 730 F.2d at 776 (quotation omitted). On the other hand, agency
21
statements are not accorded deference if they are “conclusory, merely reciting statutory
standards, or if they are too vague or sweeping.” Ogelsby, 79 F.3d at 1176.
B. Legal Standard for Reviewing Withholdings under Exemption 1 of FOIA
Exemption 1 protects matters “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy and . . . are
in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). In claiming
protection under Exemption 1, Defendants rely on Executive Order 12,958, which allows for the
classification of information that “could be expected to result in damage to the national security.”
Exec. Order No. 12,958 § 1.1(a)(4) (1995), as amended, 68 Fed. Reg. 15,315 (2003) (hereinafter
“EO 12,958”). Of the seven categories of classification set forth in the Executive Order,
Defendants claim that the withheld material relates to: (1) foreign government information; (2)
intelligence activities, sources or methods; and (3) foreign relations or foreign activities of the
United States. See Defs.’ Mot. Summ. J. at 14-15 (citing Exec. Order 12958, § 1.4).
To withhold material under Exemption 1, Defendants must establish that they complied
with proper procedures in classifying materials and that the withheld information falls within the
substantive scope of EO 12,958. See Salisbury v. United States, 690 F.2d 966, 971-72, 223 U.S.
App. D.C. 243 (D.C. Cir. 1982). As under the other FOIA exemptions, a responding agency may
satisfy its burden with affidavits that explain with reasonable specificity its reasons for
nondisclosure. However, courts must take into account certain additional factors when
reviewing claims under the national security exemption. In these situations, judges are mindful
that issues of national security are within the unique purview of the executive branches,
Zadvydas v. Davis, 533 U.S. 678, 696, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001); Center for
National Security Studies v. DOJ, 331 F.3d 918, 926-27, 356 U.S. App. D.C. 333 (D.C. Cir.
22
2003), and that as a practical matter, “[f]ew judges have the skill or experience to weigh the
repercussions of disclosure of intelligence information.” Weissman v. CIA, 565 F.2d 692, 697,
184 U.S. App. D.C. 117 (D.C. Cir. 1977); see also McGehee v. Casey, 718 F.2d 1137, 1148, 231
U.S. App. D.C. 99 (D.C. Cir. 1983) (“‘the Executive departments responsible for national
defense and foreign policy matters have unique insights into what adverse affects [sic] might
occur as a result of a particular record.’”) (quoting S. Rep. No. 1200, 93d Cong., 2d Sess. 12,
U.S.C.C.A.N. 1974, p. 6267 (1974) (Conference Report on the FOIA Amendments)).
Consequently, “the court owes substantial weight to detailed agency explanations in the national
security context.” King, 830 F.2d at 217.
Nevertheless, judicial deference for an agency’s justifications under Exemption 1 is only
warranted when the agency’s affidavits are first found, at a minimum, to “contain sufficient
detail to forge the ‘logical connection between the information [withheld] and the claimed
exemption.’” Oglesby, 79 F.3d at 1178 (quoting Goldberg v. U.S. Dep’t of State, 818 F.2d 71,
78, 260 U.S. App. D.C. 205 (D.C. Cir. 1987)). Therefore, an agency is in no way excused from
its burden to properly describe the withheld material that is claimed to be protected by
Exemption 1. See Center for National Security Studies, 331 F.3d at 940 (“no amount of
deference can make up for agency allegations that display, for example, a ‘lack of detail and
specificity, bad faith, [or] failure to account for contrary record evidence,’ since ‘deference is not
equivalent to acquiescence’”) (Tatel, J., dissenting) (quoting Campbell, 164 F.3d at 30).
C. Legal Standard for Employing In Camera Review in FOIA Cases
Under FOIA, district courts are afforded the option of utilizing in camera review “to
determine whether [the agency’s records] or any part thereof shall be withheld under any of the
exemptions,” 5 U.S.C.§ 552(a)(4)(B), and its decision may not be disturbed on appeal absent an
23
abuse of discretion. Spirko v. U.S. Postal Serv., 147 F.3d 992, 996, 331 U.S. App. D.C. 178(D.C. Cir. 1998). Nevertheless, while district court judges are said to have “broad discretion in
determining whether in camera review is appropriate,” Armstrong v. Executive Office of the
President, 97 F.3d 575, 578, 321 U.S. App. D.C. 118 (D.C. Cir. 1996), the D.C. Circuit has
cautioned that trial courts should not readily rely upon the procedure without cause. See, e.g.,
Ray v. Turner, 587 F.2d 1187, 1195, 190 U.S. App. D.C. 290 (D.C. Cir. 1978) ("[i]n camera
inspection requires effort and resources and therefore a court should not resort to it routinely on
the theory that 'it can't hurt '"); Mead Data, 566 F.2d at 250 n.10 ("[i]n camera inspection of
disputed documents places a very burdensome demand on federal trial courts . . . [and] also
creates problems for appellate review").
The D.C. Circuit has proposed a set of prudential factors for a district court to consider
before exercising its discretion to employ in camera review. See Allen v. CIA, 636 F.2d 1287,
1293, 205 U.S. App. D.C. 159 (D.C. Cir. 1980). These factors include: (1) judicial economy; (2)
the conclusory nature of the agency affidavits; (3) bad faith on the part of the agency; (4)
disputes concerning the contents of the documents; (5) whether the agency proposes in camera
inspection; and (6) the public interest in disclosure. Id. at 1297-99. Although there is no
indication of bad faith on the part of the Defendants, this Court finds—as a general matter—that
the weight of these factors tilts in favor of in camera review in this case. The contested
documents, are “few in number and of short length,” meaning that instead of being burdensome
or costly, in camera review would be an efficient means of resolving the issues at stake. 4 Allen,
636 F.2d at 1298; Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 393, 265 U.S. App. D.C. 240(D.C. Cir. 1987). The parties’ disputes concern the contents of the withheld documents, and
4
PHR notes that this Court “would need to review fewer than 25 pages of documents in camera to verify the
Defendants’ claimed exemptions.” Pl.’s Reply at 17-18.
24
there is a considerable public interest in the war in Afghanistan. Finally, other procedures aimed
at resolving the issue have already been employed, as Defendants have had full opportunity to
justify its withholdings through affidavits (both original and supplementary) and oral argument.
See EPA v. Mink, 410 U.S. 73, 93, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973) (noting that an agency
should be given the opportunity to provide affidavits and oral testimony before in camera review
is employed).
Notwithstanding the factors militating for in camera review, this Court is mindful that “in
national security cases, a district court exercises a wise discretion when it limits the number of
documents it reviews in camera.” Armstrong, 97 F.3d at 580; see also Hayden v. NSA, 608 F.2d
1381, 1387, 197 U.S. App. D.C. 224 (D.C. Cir. 1979) (stating that in the national security
context, “in camera review is a ‘last resort’ to be used only when the affidavits are insufficient
for a responsible de novo decision”) (internal quotations omitted). Accordingly, the propriety of
inspection will be determined as to each contested document, and will depend on the adequacy of
the explanations provided by the government in its accompanying affidavits.
D. Defendants’ Affidavits Concerning Material Withheld under FOIA’s Exemptions
In view of the standards set forth above, this Court proceeds to review the documents at
issue to determine whether the Defendants’ are entitled to summary judgment with respect to any
of their withholdings. Included in this analysis is a determination of whether Defendants’
submissions are adequate, or whether in camera review is warranted under the circumstances.
1) Affidavits of William T. Kammer
William T. Kammer provided a declaration and Vaughn index in his role as the Chief of
the Office of Freedom of Information within the Executive Services Directorate of the DOD.
Kammer Decl. ¶ 1 (Defs.’ Ex. A). Kammer issues policy on FOIA matters and supervises the
25
processing of FOIA requests and appeals for various offices, including the Office of the
Secretary of Defense (OSD). Kammer’s declaration relates to documents provided by two OSD
components: the Correspondence Control Division (CCD) and the Office of the Deputy Assistant
Secretary of Defense for Asia Pacific Security Affairs (APSA). Id. at ¶ 4. After the completion
of its search, APSA provided PHR with two pages of information, and neither page included any
redacted material that was deemed responsive. Id. at ¶ 9. The CCD provided PHR with six
responsive documents. In these documents, Exemption 6 is cited for the purpose of withholding
the “names of OSD personnel who are not decision makers from four responsive documents. Id.
at ¶ 5.
Exemption 6 permits agencies 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). The term “similar files” has been broadly interpreted to include information
that “applies to a particular individual.” U.S. Dep’t of State v. Washington Post Co., 456 U.S.
595, 602, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982). Once this minimal threshold is satisfied,
courts balance the privacy interests cited by the government against the public’s interest in the
release of the requested information. Lepelletier v. FDIC, 164 F.3d 37, 46, 334 U.S. App. D.C.
37 (D.C. Cir. 1999). However, the “only relevant public interest in disclosure to be weighed in
this balance is the extent to which disclosure would serve the core purpose of the FOIA, which is
contributing significantly to public understanding of the operations or activities of the
government.” Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495-96, 114 S. Ct.
1006, 127 L. Ed. 2d 325 (1994) (internal citation and quotation marks omitted).
26
In the CCD documents, all responsive information has been disclosed with the exception
of a few names that were redacted because “their release would constitute a clearly unwarranted
invasion of the personal privacy of individuals.” Kammer Decl. ¶ 5.
This Court finds that the names at issue were properly withheld. As an initial matter, this
Court acknowledges that Exemption 6 has been read to protect “not just files, but also bits of
personal information, such as names and addresses, the release of which would ‘create[] a
palpable threat to privacy.’" Judicial Watch, 449 F.3d at 152-53 (quoting Carter, 830 F.2d at
391). With regard to the balancing test, PHR has not suggested that any public benefit would
result from the discovery of these names; 5 nor is this Court able to divine any meaningful public
interest in obtaining “information about private citizens that is accumulated in various
governmental files but that reveals nothing about an agency’s own conduct.” DOJ v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 773-74, 109 S. Ct. 1468, 103 L. Ed. 2d 774(1989). As a result, summary judgment is entered in favor of Defendants with respect to the
information withheld in the documents produced by the CCD.
2) Affidavits of Mark S. Patrick
Mark S. Patrick serves as the Chief of the Information Management Division within the
Joint Staff, and he oversees FOIA searches and reviews of the Joint Staff’s corporate records.
Patrick Decl. ¶¶ 1, 2 (Defs.’ Ex. B.) Patrick’s submissions concern a single withheld
document—a U.S. Space Command (SPACECOM) Situation Report for Operations Noble Eagle
and Enduring Freedom, dated September 6, 2002, which is described as a “worldwide summary
of the wide range of SPACECOM activities at that time.” Id. at ¶ 4. After “conferring with
subject matter experts from the J-5 Central Asia/South Asia Division,” Patrick determined that
portions of the document contained information that was shielded from disclosure under
5
Indeed, in its briefs on summary judgment, PHR has not specifically challenged the CCD’s withholdings.
27
Exemption 1. Id. at ¶ 5. He explains that “release of this information would reveal classified
foreign government information, as well as intelligence activities, sources, or methods, and could
hinder efforts by DoD to obtain similar information in the future.” Id.
The seven page document provided by the Joint Staff contains two pages of responsive
content, the disclosed portion of which references media reports concerning mass graves and the
capture and shipment of Taliban fighters in Afghanistan. The greater portion of the responsive
material on the final two pages has been redacted in full. While Patrick’s submissions provide
the most basic identifying information on the withheld portions, they do not describe their
content, or explain—in specific, non-generic terms—why it fits within the scope of Exemption 1.
Instead, Patrick’s declaration merely recites the exact language of EO 12,958 as a justification
for nondisclosure. See Allen, 636 F.2d at 1298 ("where the agency affidavits merely parrot the
language of the statute and are drawn in conclusory terms, the court's responsibility to conduct
de novo review is frustrated"). Responding agencies are charged with the burden of “describing
the withheld documents to the greatest extent possible without disclosing information that must
be protected.” Ogelsby, 79 F.3d at 1184. Because Patrick’s submissions are insufficiently
detailed, Defendants cannot rely upon them to justify their withholdings. Accordingly, the
SPACECOM Situation Report at issue must be submitted in unredacted form for in camera
review.
3) Affidavits of Steven A. Hummer
Brigadier General Steven A. Hummer, Chief of Staff to USSOCOM, submitted a
declaration and a Vaughn index in support of the agency’s withholdings. Hummer Decl. ¶ 1
(Defs.’ Ex. G.) USSOCOM produced seven responsive documents that are described as
28
intelligence summaries and situation reports. Portions of six of the produced documents were
redacted pursuant to Exemptions 1 and 6. 6 Id. at ¶ 8.
Hummer’s submissions address each of the documents individually. His Vaughn index
provides general identifying information and broad descriptions of the exempted material,
whereas his declaration provides more detail on the content of the information and the
justifications for exemption. 7 The redacted information is described as exempt under Exemption
1 because it either “consists of observations and evaluations from intelligence sources” Id. at
¶12, or because it is “information consist[ing] of foreign relations, foreign activities of the United
States . . . [and it] include[s] confidential sources.” Id. at ¶ 14. Much of the material is similarly
described as subject to Exemption 6 because it “refers to key personnel who may have been
involved in important intelligence operations.” Id. at ¶ 12.
The redactions in the USSOCOM documents appear to be targeted and precise, and the
responsive portions provide the reviewer with some of the surrounding context. In addition, the
redactions are specifically labeled in order to “correlate the claimed exemptions to particular
passages.” Schiller, 964 F.2d at 1209. By carefully delineating the exempt from the disclosed
information, and by linking the withheld portions to the claimed exemptions, the affidavits afford
a basis for finding that the agency has produced all “reasonably segregable” responsive portions
of the documents at issue. See Armstrong, 97 F.3d at 578. Thus, after according the
justifications proffered in Hummer’s submissions “substantial weight,” this Court grants
6
USSOCOM initially referred to Exemption 5, which permits the nondisclosure of “inter-agency or intra-agency
memorandums or letters which 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). However, USSOCOM ultimately determined, after further review, that the
information did not need to be withheld under Exemption 5. Hummer Decl. ¶ 8.
7
In challenging USSOCOM’s withholdings, PHR focuses exclusively upon Hummer’s Vaughn index as providing
cursory explanations. However, when assessing a claim of exemption, reviewing courts consider all of the
submissions provided by an agency that address the issue, not merely the Vaughn index. See Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 146 (D.C. Cir. 2006) (noting that an agency may “submit other measures in combination or in
lieu of the index itself”).
29
summary judgment in favor of Defendants with respect to the documents provided by
USSOCOM.
4) Affidavits of Alesia Y. Williams
Alesia Williams, the Chief of the FOIA Services Section for the Defense Intelligence
Agency (DIA), provided a declaration and affidavit that concern the withholdings in two
responsive intelligence reports under Exemptions 1, 2 and 3. Williams Decl. ¶ 1 (Defs.’ Ex. E.)
With respect to the material excised under Exemption 1, Williams’ declaration merely
characterizes it as “non-segerable [sic] classified information” that relates to “intelligence
sources and methods.” Williams Decl. ¶¶ 18, 20.
Information in the documents was also withheld under Exemption 2, which permits
responding agencies to withhold information that is “related solely to the internal personnel rules
and practices of an agency.” 5 U.S.C. § 552(b)(2). This exemption has been construed to protect
“predominately internal” documents in instances where (1) the documents relate to “trivial
administrative matters of no genuine public interest” (known as the “low 2” exemption); (2) the
disclosure of the documents would “significantly risk[] circumvention of agency regulations or
statutes” (known as the “high 2” exemption). Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 670 F.2d 1051, 104, 216 U.S. App. D.C. 232 (D.C. Cir. 1981) (en banc). Williams
states that the information withheld under the “low 2” exemption pertained to “administrative
handling codes, Intelligence Information Report numbers, internal office symbols, internal phone
numbers and other similar point of contact information, and message routing data.” Williams
Decl. ¶ 22. The information excised under the “high 2” exemption in document 1 included
“intelligence code words, caveats, country names, and names of international organizations
30
which DIA shared intelligence with.” Id. at ¶ 23. In Document 2, such material included the
“geocoordinates and the preparer’s evaluation of the classified source.” Id. at ¶ 24
Finally, Williams cites Exemption 3 as a basis for nondisclosure. Exemption 3 allows the
withholding of material that is “specifically exempted from disclosure by statute provided that
such statute . . . requires that the matters be withheld from the public in such a manner as to leave
no discretion on the issue . . . .” Her declaration cites 10 U.S.C. § 424 as a statute that permits
the non-disclosure of personnel data and information pertaining to the organization and function
any DOD organization, including the DIA. The information withheld in the two responsive
documents under Exemption 3 concerns DIA personnel and the organizational structure of the
DIA. Williams Decl. ¶ 26.
This Court finds that Williams’ submissions are clearly deficient with respect to claiming
non-disclosure under Exemptions 1 and 3, as they do not “provide specific information sufficient
to place the documents within the exemption category.” Hayden, 608 F.2d at 1387. Williams’
submissions expansively describe the purposes for the exemptions, but such discussion does not
compensate for the lack of detail concerning the content of the withheld material or its
connection to a particular exemption. See Davin v. DOJ, 60 F.3d 1043, 1051 (3d Cir. 1995)
(noting that an agency must “provide the ‘connective tissue’ between the document, the deletion,
the exemption and the explanation”).
Furthermore, in both documents, large chunks of information were redacted in full, and
two pages from Document 2 were excised in their entirety. The agency bears the burden of
proving that the redacted information is not segregable from the non-exempt information, 5
U.S.C. § 552(a)(4)(B), and Williams’ submissions fail to make a detailed showing in this respect.
Through the blanket use of the three cited exemptions, Defendants’ have not satisfied the
31
segregability requirement. See Center for Biological Diversity v. U.S. Marine Corps, Civ. No.
00-2387, 2003 U.S. Dist. LEXIS 26856, at *21 (D.D.C. Aug. 21, 2003) (finding insufficient
agency’s broad classification of documents as “non-segregable” without providing “enough
information [to] make a finding as to segregability that would sustain summary judgment”).
In sum, the DIA has not given an adequate factual basis for PHR and this Court to
evaluate whether the exemptions have been properly claimed and all reasonably segregable
information has been provided. See King, 830 F.2d at 218 (noting that even in the national
security context, an agency’s explanation must be “full and specific enough to afford the FOIA
requester a meaningful opportunity to contest, and the district court an adequate foundation to
review, the soundness of the withholding”). As a result, these documents must be submitted in
unredacted form for in camera review.
5) Affidavit of Margaret P. Grafeld
Finally, Margaret P. Grafeld, the Information and Privacy Coordinator and the Director
of the Office of Information Programs and Services for the State Department, has submitted a
declaration in support of a claim under Exemption 1. Grafeld Decl. ¶ 1 (Defs.’ Ex. H.) She
notes that the State Department received three documents from the DIA, and that two of them
were ultimately deemed to contain responsive information that was exempt from disclosure. Id.
at ¶ 6. The information, which has been classified as “top secret,” is said to relate directly to
intelligence activities, sources and methods, and the foreign relations and activities of the United
States. Id. at ¶¶ 11, 12, 15. The two documents are Assessment Roundups from 2002 that were
prepared by the Bureau of Intelligence and Research at the State Department. Id. at ¶ 16. They
both contain lengthy portions that concern events outside of Afghanistan that were not
responsive to PHR’s FOIA request. Each document begins with a list of contents and the list
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items that refer to responsive material in the bodies of the respective documents were disclosed.
Id. The relevant portions of the documents “describe the circumstances of mass graves in
Afghanistan, and attempts to obtain accurate information about them.” Id. The withheld
material on pages 17, 18, and 20 of Document 1 and on page 10 of Document No. 2 are said “to
contain information that is based on sensitive intelligence sources and methods.” Id. The
material excised on page 19 of Document 1 identifies the confidential source of the information
excised on page 18. Id.
Grafeld’s declaration supplies the necessary identifying information and descriptions of
the withheld material. In addition, the excised material appears to be relatively targeted, and the
un-redacted responsive material provides sufficient context to serve as a basis for review. PHR
has not specifically challenged the adequacy of Grafeld’s declaration, and this Court is not able
to discern any significant shortcoming that would prevent a meaningful review of the exemptions
claimed. Consequently, after giving “substantial deference” to Grafeld’s declaration, summary
judgment is granted to Defendants with respect to the information redacted in the documents
provided by the State Department.
CONCLUSION
For the reasons set forth above, this Court concludes that Defendants’ Motion for
Summary Judgment (Paper No. 15) is GRANTED and Plaintiff’s Cross-Motion for Summary
Judgment (Paper No. 16) is DENIED with respect to the adequacy of the search conducted by
the Defendants, except with respect to the search conducted by CENTCOM. Defendants’
motion is DENIED and Plaintiff’s cross-motion is GRANTED with respect to the adequacy of
the search conducted by CENTCOM. CENTCOM shall conduct a new search for responsive
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documents generated from November 1, 2001, until the start date of its new search, in a manner
consistent with the Order accompanying this Opinion.
Defendants’ motion is GRANTED and Plaintiff’s cross-motion is DENIED with respect
to the withholdings claimed by the Defendants, except with respect to the withholdings claimed
by the Joint Staff and the DIA. Judgment is deferred with respect to the withholdings claimed by
the Joint Staff and the DIA, who shall both submit un-redacted copies of their responsive
documents to this Court for in camera review.
A separate Order follows.
Dated: December 30, 2009 /s/______________
Richard D. Bennett
United States District Judge
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