Physicians for Human Rights v. U.S. Department of Defense ( 2011 )

TI-IE UNITE.D STATES DISTRICT COURT
FOR TI-IE DIS'I``R.ICT OF COLUMBIA
#
PHYSICIANS FOR HUMAN RIGHTS,
P1aintiff,
* Civil Action No.: RDB-O8-273
V. *
U.S. DEPARTl\/[EN'I`` OF DEFENSE, ct al.,
*
Defcndants.
*
* * * * * * * * * * * * *
Plaintiff Physicians for Human Rights ("PHR"), a non-profit human rights group,
filed the present action under the Freedorn of Inforrnation Act ("FOIA"), 5 U.S.C. § 522 el
:eq., seeking to compel Defendants, the Departrnent of Defense (“DOD") and its
components, the Defense Intel]igence Agency ("DIA"), United States Special Operations
Command ("USSOCOM"), and United States Central Command (“CENTCOM")
(collectively "Defendants"), to reveal documentary irlfortnation relating to a mass gravesitc
at Dasht-e-Leili, Afghanistan, where Taliban fighters are alleged to be buried.' The various
components of the DOD searched for, and produced certain documents in response to
Plaintiff’s initial FOlA request, and the parties Eled cross-motions for summary judgment
On Deccmber 30, 2009 this Court entered an Opinion granting in part, and denying in part
1 Plaintiff filed its lawsuit in the U.S. District Court for the Dist:rict 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. .S``¢c
ECF No. 25. This Memorandum Opinion remains a decision of the United States District Court for
the District of Columbia.
both motions. The case presented two issues: (l) whether Defendants properly withheld
information under the claimed FOIA exempu``ons; and (2) whether Defendants conducted
reasonably adequate searches for responsive documents under FOIA.
With respect to the Erst issue, this Court ruled that several of the Defendants had
properly withheld information under certain exemptions, but some of the Defendants,
namely the joint Staff and the DIA, were instructed to submit certain documents to the
court for in ¢a)))era review so that the court could make a better determination as to whether
the documents were properly withheld under the claimed exemptions After completion of
the ia camera review, this Court granted the Defendants’ motion for summary judgment with
respect to the withholdings claimed by the joint Staff and the Defense Intelligence Agency.
.$``ce]anuary 26, 2010 Order, ECF No. 30.
On the second issue, this Court ruled that the Defendants generally complied with
the FOIA search requirements, but the temporal scope of CENTCOM’s search was deemed
to be too narrow. CENTCOM was instructed to conduct a new search for documents
covering a broader period of time, and Defendants were also granted permission to submit a
renewed motion for summary judgment after conducting the new search. Defendants
conducted a new search, submitted three additional documents to PHR, and subsequently
filed a Renewed Motion for Suinrnary judgment (ECF No. 35) on April 15, 2010. PHR filed
its own Renewed Cross-Mou``on for Summary judgment (ECF No. 39) on May 21, 2010.
Accordingly, the only issue before this Court concerns the sufficiency of the supplemental
search conducted by CENTCOM and its withholding of information contained in the three
documents located by that search. 'l``his Court has reviewed the record, as well as the
brief description of each document," Og/e.r@, 79 F.3d at 1181, and a "relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document which they apply,"
Mead Data Cen/., I)zc. )). U..$``. D:p’f of Az``r Forre, 566 P.Zd 242, 251 (D.C. Cir. 1977). PHR’S
central objection to Defeudants’ affidavit in support of their claimed exemption is that the
declaration does not describe how Exemption 1 applies to each of the redacted sections
individually. However, the very case relied upon by PHR does not impose such a
rcquirement, and Ms. Scott’s declaration provides this Court with a sufHcient basis to
evaluate the exemption claim. fee ]zzdivia/ Watc/), lnc. 2). Food e'?' Drug /ld))u'n., 449 F._’)d 141,
146-47 (D.C. Cir. 2006). The declaration explains that documents 1 and 3 are intelligence
highlight articles designed to provide intelligence information to people within the
Departrnent of Defense. Third Scott Dccl. 1111 8, lO. The declaration further states that the
information withheld in those two documents "contains sensitive intelligence reporting
material . . . [that] relates directly to intelligence activities, sources, or methods, and its
disclosure would hinder and damage ongoing intelligence operations, collect:ions, and
activities within USCENTCOM’$ area of operation." Id. 1| 15. As Defendants aptly notc,
the declaration submitted by Ms. Scott is similar to a declaration previously examined, and
deemed sufficient by this Court. SpeciEcally, with regard to Brigadier General Steven A.
Hummer’s declaration, this Court found that:
ll
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 addin``on, the redactions are specifically labeled in
order to "correlate the claimed exemptions to particular passages." .S``c/)i/lcr,
964 F.Zd at 1209. By carefully delineating the exempt from the disclosed
information, and by linking the withheld portions to the claimed excmptions,
the affidavits afford a basis for finding that the agency has produced all
"reasonably segregable" responsive portions of the documents at issue. .S``ee
/lrm.rtrvn_g, 97 F.3d at 578.
P/g)'.nr``¢‘ian: for Hurnan Rifgblr, 675 F. Supp. 2d at l70. The same can be said for Ms. Scott’s
declaration here. 'l'he redactions made by CENTCOM are limited in scope, and those that
are made are clearly labeled so as to provide this Court with a basis for finding that the
claimed exemptions are relevant and properly claimed.
Nevertheless, PHR claims that this Court should conduct an in camera review of the
unredacted documents. While this Court has "broad discretion in determining whether in
camera review is appropriate," /lrr)):trvng z). Exemtz``ve Ojire qf the Prv.rz'a’ent, 97 F.3d 575, 578
(D.C. Cir. 1996), the D.C. Circuit has cautioned that trial courts should not readily rely on
the procedure without cause. .S``ee, e._g., R¢y v. Tnmer, 587 F.Zd ll87, 1195 (D.C. Cir. 1978).
'l``he D.C. Circuit has further cautioned that in the national security context "z``n camera review
is a last resort to be used only when the affidavits are insufficient." Hq}'a'en v. N.S``A, 608 F.2d
1381, 1387 (D.C. Cir. 1979) (internal quotation marks and citation omitted); rec aka
Arm.rhvng, 97 F.f’)d at 580-81; PHE, lnr. r). Dcp’t of ])n'lz'ce, 983 F.Zd 248, 252-53 (D.C. Cir.
1993). Because this Court has already concluded that the affidavit submitted by Defendants
is suft``icient, and because PHR has put forth no arguments or evidence tending to question
the justifications provided in the affidavit, this Court concludes that in camera review of the
documents is not warranted.
12
2. withholdings Under Exemptions 2, 3, & 6
Defendants have also made certain withholdings under Exempn``ons 2, 3, and 6.
Notably, PHR does not appear to challenge Defendants’ withholdings under these
exemptions. Rather, PHR’s argument concerns only Exemprion 1. Nevertheless, each
exemption will be discussed briefly below.
I:``.xempn``on 2 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 (l) the documents relate to "trivial administrative matters of no genuine public
interest" (known as the "low 2" exemption); or (2) the disclosure of the documents would
"signi€cantly risk[] circumvention of agency regulations or statutes" (known as the "high 2"
exemption). Cmoker 1). Bumzu of A/m/)o/, Tobacm Zb' Firearm.r, 670 F.2d 1051, 1069 (D.C. Cir.
1981) (en banc). Here, Defendants have withheld intemal telephone numbers in documents
l and 3 under Exemption 2. Ms. Scott’s declaration states that the organization’s telephone
numbers are "of purely internal interest to the agency . . . and would serve no public
interest." Third Scott Ded. 1| l6. ln addition, the declaration states that "the public release
of those phone numbers could unnecessarily hinder the organization’s daily performance
effectiveness to accomplish its assigned operational mission." ld. The withholding of
internal telephone numbers is generally appropriate, and is appropriate in this particular case
as well. .S``ee, e.g., C``o)uzp¢'ion z). F.B.I., 606 F. Supp. 2d 14, 31 (D.D.C. 2009); Fi.rc/)er 1). U.S. Dq)’t
of ]u.rtice, 596 F. Supp. 2d 34, 45-4() (D.D.C. 2009).
13
Under Exemption 3, FOI_A allows the withholding of material that is "speciftcally
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 . . . ." 5
U.S.C. § 552(b)(3). Ms. Scott’s declaration cites 10 U.S.C. § 424 as a statute that falls within
the scope of Exemption 3. 'I'his Court has previously recognized that § 424 protects
"sensitive identifying information at issue, including thc narne, geographic locau``on, and
subject matter responsibilities of some of its of€ces," and is indeed a statute that falls within
the scope of Exemption 3. P/_)y.ridan.rjbr Human Rzgbl.r, 675 F. Supp. 2d at 160. Ms. Scott’s
declaration states that "[p]ortions of document 3 have been withheld under [Exemption 3]
because they name a DlA unit and its location, which if released, would reveal DIA’s
organizational structure and affect the agency’s mission." Third Scott Decl. 11 17. 'I``his
Court finds that Defendants properly invoked Excepu``on 3 to withhold limited amounts of
information in document 3.
Finally, Defendants have withheld certain information under Exempdon 6.
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 frles" has been broadly interpreted by the Supreme
Court of the United States to include information that "applies to a particular individual."
U.S. Dej)’l q/``.S``tate l). Wa.rbi)z_gto)) Po.rt Co., 456 U.S. 595, 602 (1982). Once this minimal
threshold is satisfled, courts balance the privacy interests cited by the government against the
public’s interest in the release of the requested information lJpe//etierz). FDIC, 164 F.3d 37,
46, 334 U.S. App. D.C. 37 (D.C. Cir. 1999). However, the "only relevant public interest in
14
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 ofDe/‘én:e v. Fer/. I_.abor R:/atz``orz: Au//)., 510
U.S. 487, 495-96, ll4 S. Ct. lOO6, 127 L. Ed. 2d 325 (1994) (internal citation and quotation
marks omitted).
Here, Ms. Scott’s declaration states that "USCEN'I``COM has withheld individual’s
names from document 1 . . . and document 3 . . . . USCENTCOM has balanced the
individuals’ interests in privacy against the public interest in disclosure of their names, and
determined that disclosure of the names could put our service member, contractor, and
civilian employees at risk." 'I'hird Scott Decl. 1] 18. Considering the fact that PHR does not
challenge Defendants’ invocation of Exemption 6 with regard to the withholding of certain
individuals’ names, and that this Court has previously found that Defendants properly
withheld individuals’ names in similar circumstances, .ree P/y.sz``c~ian: for H.v)))an Rz<'gbt.r, 675 F.
Supp. 2d at 169, this Court concludes that the names at issue were properly withheld.
In sum, Defendants have produced a "reasonably detailed aflidavit, setting forth the
search terms and the type of search performed, and [have] aver[ed] that all files likely to
contain responsive materials . . . were searched." O_g/c.v@/, 920 F.2d at 68. As a result,
Defendants are entitled to summary judgment because they have "conducted a search
reasonably calculated to uncover all relevant information, which either has been released to
the requester or is exempt from disclosure." T/)o))/a: u. HH.S``, Food e’:" Drug Admirz., 642 F.
Supp. 2d 5, 8 (D.D.C. 2009).
CONCLUSION
For the reasons set forth above, Defendants’ Motion for Sumrnary judgment (ECF
No. 35) is GRANTED and Plaintiff PHR’s Cross-Motion for Summary judgment (ECF No.
39) is DENIED.
A separate Order follo\vs.
Dated: April 19, 2011 [§[ m 'D-
Richard D. Bcnnett
Unitcd States District]udge
pleadings and exhibits, and finds that no hearing is necessary. .S``ee Local Rule 7(f) (D. D.C.
2010). For the reasons stated below, Defendants Renewed Motion for Surnrnary judgment
(ECF No. 35) is GRANTED and Plaintiff’s Renewed Cross-Motion for Summary judgment
(ECF No. 39) is DENIED.
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 Hle, together with the afhdavits, if any, show that there is no genuine issue as
to an_v 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." Andenon v. Ljl)erg' I_.ob[y_,
Im'., 477 U.S. 242, 248 (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. Ia'. at 249. A
court is obligated to consider the facts and all reasonable inferences in the light most
favorable to the nonmoving party. Mat:u.v/)z``fa E/ec. Indu.r. Co. z). Ze)rit/) Radio C``orp., 475 U.S.
S74, 587 (1986).
In the context of an action filed under the Freedom of Inforrnation Act, a district
court reviewing a motion for summary judgment conducts a de now 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." Tl)oma.r v. HH.$``, Food e';" Dmg /Idm``n., 642 F. Supp. 2d 5, 8 (D.D.C. 2009)
(intemal citations omitted). On the other hand, in opposing a motion for summary
judgment or cross-moving for summary judgment, a FOL‘X plaintiff carmot simply rest upon
conclusory statements, but must instead "set forth ‘af&rmative evidence’ showing a genuine
issue for trial." Bmaddri¢')é z). Exec. Ojic‘e of Prt.rident, 139 F. Supp. 2d 55, 65 (D.D.C. 2001)
(quoting l_.anin_gbam z). U.S. Naig/, 813 F.Zd 1236, 1241 (D.C. Cir. 1987)).
To meet its burden at surnmary judgrnent, an agency may rely upon declarations and
Vaug/))) indexes? to describe, in reasonable detai1, the nature of its search and the withheld
material, and to explain why such material falls within the claimed FOLK exemptions .S``ec
Kz``dd 1). DO], 362 F. Supp. 2d 29l, 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." Wez'.rberg u.
DO], 705 F.Zd 1344, 1351, (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." Ca/e z). DO], Civ. Act. No. 05-
674, 2006 WL 2792681, ar *1 (D.D.c. sept 27, 2006) (¢iaaon onarr¢d).
2
A Vaugl))l index is an affidavit provided a government agency that lists each withheld
document, or portion thereof. 'l``he index correlates each withholding with a specific FOL'K
exemption and provides the agency’s justi§cation for nondisclosure fee Vaug/)n v. Ro:en, 484 F.2d
820, 157 U.S. App. D.C. 340 (D.C. Cir. 1973), rm'. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d
873 (1974).
ANALYSIS
The background facts of this action were fully set forth in this Court’s Memorandum
Opinion of December 30, 2009 and will not be reiterated here. .S``ee P})}.cician.rfar Human R:``g/)t.r
z). Unii¢d .S``tate: Dep’t of Defense, 675 F. Supp. 2d 149, 155-56 (D.D.C. 2009) (ECF No. 28).
In resolving the pending renewed cross-motions for summary judgment this Court must
address (l) whether Defendants conducted reasonably adequate searches for responsive
documents under FOIA; and (2) whether Defendants properly withheld information under
the claimed FOL~\ exemptions
l. 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."’ Peop/e for the Ar)mz``can Wqy Found. r). Natz``omz/ Par)€-: .S``ervice, 503 F.
Supp. 2d 284, 292 (D.D.C. 2007) (quoting Og/¢:lg¢ v. U..$``. Dep’/ of Ann_y, 920 F.Zd 57, 68,
(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." Wei.rberg, 705 F.Zd 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.’” l/a/encia-I.;¢¢‘ena x). U..S``.
Coa.rt Guara', 180 F.?)d 321, 326, (D.C. Cir. 1999) (quoting Foundi)lg C``burr/) qf.S``vz``enlz)/agy z'. Na/’/
.S``er. /lge)zg¢, 610 F.2d 824, 837, (D.C. Cir. 1979)). However, there is no requirement under
FOLA that an agency’s search be cxhaustive, for "the issue is not whether any further
documents might conceivably exist but rather whether the government’s search for
responsive documents was adequate." I’ery 1). B/or/e, 684 F.2d 121, 128, (per curiam)
(emphasis in original). .$``ee Mceropo/ 1). Mce.re, 790 F.Zd 942, 952-53, (D.C. Cir. 1986) ("[A]
search is not unreasonable simply because it fails to produce all relevant material; no [large]
search . . . will be free from error.").
To sustain its burden on summary judgment, an agency may rely on affidavits to
demonstrate the adequacy of its search. l-Iere, Defendants have submitted one3 affidavit
fromjacqueline ]. Scott, Senior Analyst for Freedom of Inforrnan'on Act and Privacy Act for
the U.S. Central Command, Departrnent of Defense.‘* .S``ee jacqueline ]. Scott Decl., Defs.’
Ex. A, ECF No. 35-2 (hereinafter "Third Scott Decl."). That declaration describes in
sufficient detail the location, search metbods, and scope of the search conducted.
Specifically, the Ms. Scott’s declaration lists the nine different organizations$ that
CENTCOM tasked to search for responsive documents. ld. at 1] 4. The declaration also
indicates that those nine organizations "are the only offices of record within USCE``.NTCOM
(including Headquarters USCENTCOM and its area of operational responsibility, i.e.,
3
Accompanying their previous motion for summary judgment, Defendants submitted eight
declarations The present declaration concerns only the supplemental search ordered by this Court
as a result of its December 30, 2009 Memorandum Opinion. .S``ec P/y'.ricz``anr_/br Human Rz¢``g/)!.r z). Uniled
.Y!ain Dcp’/ ofDefense, 675 F. Supp. 2d 149, 155-56 (D.D.C. 2009) (ECF No. 28).
‘ Ms. Scott previously submitted two declarations in support of Defendants’ first motion for
summary judgment .S``ee .S``ee P/gy.ria'an.r for Human Rig})t.r v. Um``ted .S``i¢)ia: Dep’i qfDefensc, 675 F. Supp.
2d 149, 162-63 (D.D.C. 2009) (ECF No. 28).
5 Those organizations are: USCEN'l``COl\/l’s (1) intelligence directorate; (2) Opcrations directorate;
(3) Strategy, Plans, and Policy directocatc; (4) Commander’s initiative Group OfEce; (5) History
Office; (6) Staff judge Advocate OfEce; (7) Inspector Gcneral Office; and (8) Records Management
OfHce. in addition, Ms. Scott’s declaration indicates that forces in Afghanistan were also tasked
with searching for responsive documents _]acquelinej. Scott Decl. 11 4.
6
Afghanistan), that were reasonably likely to maintain documents responsive to the Physicians
for Human Rights request." !d. The declaration provides the search terms that were used
and describes the various search methods employed. Id. at 1]1| 3-6.
PHR asserts that Defendants’ declaration that it submitted in support of the adequacy
of their searches is insufficiently detailed in that it "does not provide information speci&c
enough to enable PHR to challenge the procedures utilized." PHR Cross-Mot. Sumrn. ]. at
5, ECF No. 39. Specifically, PHR challenges the declaration submitted by Defendants on
the ground that the although the declaration lists the organizations that were seatched, it fails
to list the organizations that were not searched. Id. PHR also claims that the declaration is
insufficient because it is not detailed enough with regard to how the key word search was
carried out, that the declaration fails to identify the specific individuals who conducted the
searches, and because the declaration does not indicate the precise method by which
Defendants ruled out false positive responses Id. Finally, PHR challenges the declaration
because it "does not show that CENTCOM searched in Afghanistan for responsive
documents.” Id. at 6.6
PHR’s arguments are unavailing This Court previously found affidavits similar to
the one submitted by Ms. Scott in the present matter suf§ciently detailed to establish the
adequacy of Defendants’ searches. .S``ee, e._g., P/y'.ri¢z``an.r for Huma)) Rz_'gbt.r, 675 F. Supp. at 162-
" By way of a footnote, PHR raises another argument that this Court rejected in its December 30,
2009 Memorandum Opinion. Spccifically, PHR contends that "in order to conduct an adequate
search under FOIA, Defendants were required to contact Lt. Col. Lapan, a DOD spokesperson who
stated that CENTCOM had questioned U.S. troops in Afghanistan after the alleged massacre.”
PHR Cross-Mot. Surnm. ]. at 4, n.l. In their Reply, PHR further explained that "[t]o the extent
[this] Court disagrees with this position, [PHR] expressly preserves this argument for purposes of
appellate review." Because this Court already rejected this argument, it need not address it further.
7
64. Moreover, there is no requirement, and PHR points to no case law so indicating, that an
agency is required to list the individual units of an agency that were not scarched_-indeed,
such a requirement would impose a burden on Defendants that FOIA does not contemplate.
Additionally, PHR’s arguments are unpersuasive with regard to the deelaration’s
description of the key word searches conducted by Defendants. 'I``he Defendants’
declaration lists over thirty separate search words and combinations of words that were used.
Thc declaration states that the CENTCOM units conducted "l:``tle name, content, properties,
and full text searchcs" utilizing the search terms "independently, and then in combination
designed to rule[ ] out false positives and identify all responsive records.” Third Scott Decl.
1] 5. This description is adequate, and Defendants’ declaration sufficiently sets forth "the
search terms and the type of search performed, and aver[s] that all files likely to contain
responsive materials . . . were searched." Og/e:b} v. U..S``. D¢y)’l ofAr/))), 920 F.Zd 57, 68 (D.C.
Cir. 1990). Thc declaration allows this Court to assess CEN'I``COM’s search to the extent
necessary to determine that it satisfied its burden in conducting a search "reasonably
calculated to uncover all relevant documents." Wei.rberg 1). DO], 705 F.2d 1344, 1351, (D.C.
Cir. 1983). The fact that CEN'I'COM did not state the identity of the specific individuals
who conducted the searches is of little moment_FOIA does not impose such a burden on
the agency. .S``ee M¢ynard 1). C``.I.A., 986 F.Zd 547, 563 (lst Cir. 1993) ("T``here is, however, no
general requirement for an agency to disclose the identity and background of the actual
persons who process FOIA requests.").
Finally, PHR’s contention that Defendants’ search was inadequate because the
declaration does not establish that CENTCOM searched in Afghanistan, can be easily
disposed of. PHR made a similar argument in its Erst cross-motion for summary judgment,
and this Court found that the declaration in question, also submitted by Ms. Scott,
sufficiently established that the search conducted was of reasonable geographic scope and
included Afghanistan. .S``ee_/br l'~lzlman Rz;g/)t.r, 675 F. Supp. at 162-63. Here, Ms. Scott"s
declaration explains that the supplemental search conducted by CENTCOM included "U.S.
Forces, Afghanistan (USFOR-A) Combined joint Task Force 82 and C0mbined Sccurity
Transition Commant." 'I'hird Scott Decl. 11 4. The declaration further states that those units
are "responsible for conducting stability 0pcrations, establishing Afghanisran to deter the re-
emergence of terrorisrn, facilitating reconstruction, partnering with the Government of the
Islarnic republic of Afghanistan and the international community to plan and implement
management reforms of the Afghanistan National Security Forces." ld. These units were
"the only offices of record within USCENTCOM (including Headquarters USCENTCOM
and its area of operational responsibility, i.e., Afg/)a):i.rtan), that were reasonably likely to
maintain documents responsive to the Physicians for Human Rights request." Id. (emphasis
added). lt is clear that the declaration sufficiently states the geographic scope of Defendants’
search and this Court concludes that the search was adequate and included records located in
Afghariistan.
II. Propriety of Defendants’ withholdings under FOlA’s Exemptions
As previously mentioned, after conducting the supplemental search ordered by this
Court in its December 30, 2009 Memorandum Opinion, Defendants located three additional
documents that were not previously discovered. .S``ee PHR Cross-Mot. Surnrn. _|. Exs. 1-3.
CENTCOM determined that certain portions of these documents contained information
subject to FOIA’s statutory exemptions to disclosure, and redacted those portions of the
documents, Defendants produced the redacted documents to PHR on April 15, 2010.
Defendants rely on FOlA exemptions 1, 2, 3, and 6 as bases for nondisclosure. 'I``he
legal standard for reviewing withholdings under such exemptions was thoroughly described
in this Court’s previous Memorandum Opinion, and will not be reiterated here. Each
claimed exemption will be addressed in turn.
1. withholdings Under Exemption 1
Exemption l 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)(l). In
claiming protection under Exemption 1, Defendants rely on Executive Ordcr 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 § l.1(a)(4) (1995), ar amended, 68 Fed. Reg.
15,315 (2003) (hereinafter "E.O. 12,958"). E.O. 12,958 sets forth seven categories of
classification, of which only two arc relevant and relied upon by Defendants: (l) information
relating to intelligence activities, sources, or methods; and (2) foreign relations or foreign
activities of thc United States, including confidential sources. See Defs.’ Mot. Summ. j. at 13
(citing E.O. 12,958 § l.4). Thc declaration attached to Defendants’ motion for summary
judgment explains why two of the three documents, document 1 and document 3, were
partially redacted under Exemption 1.
After reviewing the redacted documents, this Court concludes that Defendants have
met their burden because Ms. Scott’s declaration sets forth the “length, date, author and
‘lO