Rosenberg v. United States Department of Defense ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
CAROL ROSENBERG, et al., )
)
Plaintiffs, )
)
v. ) Case No. 17-cv-00437 (APM)
)
U.S. DEPARTMENT OF DEFENSE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiffs Carol Rosenberg, a reporter for the Miami Herald, and the Miami Herald Media
Company bring this action against Defendant United States Department of Defense (“DOD”)
pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiffs seek disclosure
of emails to senior DOD officials sent by retired Marine Corps General John F. Kelly—then
Commander of the U.S. Southern Command (“SOUTHCOM”)—relating to Joint Task Force
Guantánamo (“JTF-GTMO”), a military task force based at the U.S. Naval Station at Guantánamo
Bay, Cuba.
After Plaintiffs filed this lawsuit, DOD conducted a search for responsive emails and
located 256 email records and 92 attachments, totaling 548 pages. DOD released 548 pages to
Plaintiffs, some in full and some with redactions. To justify its redaction and withholding of
information from these documents, Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E). In
response, Plaintiffs contest Defendant’s redactions as unjustified.
Based upon the court’s in camera inspection of a representative sampling of the records
produced to Plaintiffs, and for the reasons described below, the court finds that Defendant properly
withheld information under Exemptions 3, 6, and 7(E). However, the court also finds that
Defendant has not properly justified withholding other information under Exemptions 1 and 5.
Accordingly, the court grants in part and denies in part Defendant’s Motion for Summary
Judgment and Plaintiffs’ Motion for Summary Judgment.
II. BACKGROUND
A. Statutory Framework
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of
a democratic society, needed to check against corruption and to hold the governors accountable to
the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Because of
FOIA’s critical role in promoting transparency and accountability, “[a]t all times courts must bear
in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S.
164, 173 (1991)). FOIA requires that “each agency, upon any request for records which
(i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall
make the records promptly available to any person,” 5 U.S.C. § 552(a)(3)(A), unless the records
fall within one of nine narrowly construed exemptions, see id. § 552(b); Vaughn v. Rosen, 484
F.2d 820, 823 (D.C. Cir. 1973). “[T]hese limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act.” Nat’l Sec. Counselors v. CIA, No.
12-cv-284, 2018 WL 3978093, at *3 (D.D.C. Aug. 20, 2018) (alteration in original) (quoting Dep’t
of Air Force v. Rose, 425 U.S. 352, 361 (1976)). Moreover, “[e]ven when an exemption applies,
the agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record’ after removing
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the exempt material and must note the ‘amount of information deleted, and the exemption under
which the deletion is made.’” Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 62 (D.C. Cir. 2018)
(second alteration in original) (quoting 5 U.S.C. § 552(b)).
In 2016, President Obama signed into law the FOIA Improvement Act of 2016, which
amended the FOIA in various ways. See Pub. L. No. 114-185, 130 Stat. 538. As relevant here,
the Act codified the “foreseeable harm” standard established in 2009 by then Attorney General
Holder for defending agency decisions to withhold information. See S. Rep. No. 114-4, at 3 & n.8
(2015) (citing Office of Att’y Gen., Memorandum for Heads of Executive Departments and
Agencies, Subject: Freedom of Information Act (Mar. 19, 2009)); S. Rep. No. 114-4, at 7–8.
Pursuant to the “foreseeable harm” standard, the Department of Justice would “defend an agency’s
denial of a FOIA request only if (1) the agency reasonably fores[aw] that disclosure would harm
an interest protected by one of [FOIA’s] statutory exemptions, or (2) disclosure [were] prohibited
by law.” U.S. Dep’t of Justice, Guide to the Freedom of Information Act 25 (2009 ed.),
https://www.justice.gov/archive/oip/foia_guide09/procedural-requirements.pdf (internal
quotation marks omitted). By codifying this standard, Congress sought to establish a “presumption
of openness” in FOIA. See H.R. Rep. No. 114-391, at 9 (2016); S. Rep. No. 114-4, at 3, 7.
Accordingly, as amended by the FOIA Improvement Act, the statutory text now provides
that: “An agency shall . . . withhold information under this section only if [ ] (I) the agency
reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption
described in [5 U.S.C. § 552(b)]; or (II) disclosure is prohibited by law[.]” 5 U.S.C.
§ 552(a)(8)(A). Stated differently, pursuant to the FOIA Improvement Act, an agency must release
a record—even if it falls within a FOIA exemption—if releasing the record would not reasonably
3
harm an exemption-protected interest and if its disclosure is not prohibited by law. 1 The
“foreseeable harm” standard—and its applicability to DOD’s discretionary redactions—plays a
central role in the parties’ disputes in this matter.
B. Factual Background
Since 2001, Plaintiff Carol Rosenberg has reported extensively on SOUTHCOM—a
component of DOD responsible for American military operations in Central America, South
America, and the Caribbean—including its operation of the Guantánamo Bay detention center.
Compl., ECF No. 1, ¶¶ 7, 10. Rosenberg’s reporting also included coverage of General Kelly
during his tenure as Commander of SOUTHCOM from November 2012 to January 2016. Id.
Following the presidential election on November 8, 2016, Rosenberg and the Miami
Herald published a story reporting that then President-elect Trump had met with General Kelly
and was considering him for a national security role in the new administration. Pls.’ Cross-Mot.
for Summ. J. & Opp’n to Def.’s Mot. for Summ. J., ECF No. 19 [hereinafter Pls.’ Cross-Mot.],
Pls.’ Statement of Facts, ECF No. 19-2 [hereinafter Pl.’s Stmt.], ¶ 55; Pls.’ Cross-Mot., Decl. of
John Langford, ECF No. 19-3 [hereinafter Langford Decl.], Ex. I, ECF No. 19-4. Presuming that
General Kelly would soon become a candidate for a national security position in the Trump
administration, Rosenberg sent a FOIA request to DOD on November 11, 2016, seeking:
[A]ll emails by the former Southern Command commander retired
Marine Gen. John F. Kelly to Lisa Monaco [the former Assistant to
1
Critically, “[t]he foreseeable harm standard applies only to those FOIA exemptions under which discretionary
disclosures can be made.” S. Rep. No. 114-4, at 8. Information that is prohibited from disclosure or exempt from
disclosure by law “is not subject to discretionary disclosure and is therefore not subject to the foreseeable harm
standard.” Id.; cf. U.S. Dep’t of Justice, Guide to the Freedom of Information Act 686–92 (2009 ed.),
https://www.justice.gov/archive/oip/foia_guide09/disclosure-waiver.pdf (explaining that disclosure is prohibited by
law when information is covered by FOIA Exemptions 1 or 3, Exemption 4 if the disclosure is prohibited by the Trade
Secrets Act, or Exemptions 6 or 7(C) if disclosure is prohibited by the Privacy Act of 1974).
4
President Obama for Homeland Security and Counterterrorism] or
those that also copied her on his correspondence.
Compl., Ex. A, ECF No. 1-1 [hereinafter FOIA Request]. In the FOIA Request, Rosenberg cited
“the sudden emergence of General Kelly as a potential candidate for a national security job in the
Trump administration” as grounds for expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E).
FOIA Request at 1. SOUTHCOM acknowledged receipt of Plaintiffs’ FOIA request on November
23, 2016, but denied expedited processing on the basis that “a compelling need [was] not
demonstrated.” Compl., Ex. B, ECF No. 1-2. Rosenberg administratively appealed the denial of
expedited processing. Compl., Ex. C, ECF No. 1-3.
During the pendency of the FOIA request, then President-elect Trump selected General
Kelly for the position of Secretary of Homeland Security in early December 2016, Pl.’s Stmt. ¶ 57,
and the U.S. Senate confirmed General Kelly on January 20, 2017, id. ¶ 59. After six months as
Secretary of Homeland Security, General Kelly was named Chief of Staff to President Trump on
July 29, 2017. Id. ¶ 62.
C. Procedural Background
Plaintiffs filed this lawsuit on March 30, 2017, challenging the government’s failure to
expedite processing of the FOIA request and its failure to disclose any responsive documents. See
generally Compl. After DOD responded to Plaintiffs’ Complaint on April 27, 2017, see Answer,
ECF No. 8, the parties negotiated a schedule for DOD to review, process, and produce records, see
generally Joint Status Report, ECF No. 11. In a series of rolling productions, DOD produced to
Plaintiffs 256 emails and 92 attachments totaling 548 pages, invoking FOIA Exemptions 1, 3, 5,
6, and 7(E) for various redactions and withholdings across the production. See Third Joint Status
Report, ECF No. 15, ¶¶ 3–4; see also Def.’s Mot. for Summ. J., ECF No. 18 [hereinafter Def.’s
Mot.], Def.’s Statement of Facts, ECF No. 18-3, ¶¶ 6, 8. The responsive email records consist
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primarily of weekly updates sent by General Kelly to Lisa Monaco and other DOD senior officials
about operations at JTF-GTMO, and the remainder are other email correspondence sent between
DOD senior officials about General Kelly’s weekly reports. The attachments are primarily routine
weekly updates on JTF-GTMO sent by General Kelly to DOD senior officials.
After production, DOD moved for summary judgment. See Def.’s Mot. The motion was
supported by the declaration of Brigadier General Todd J. McCubbin, the Reserve Deputy Director
of SOUTHCOM, see Def.’s Mot., Decl. of Todd J. McCubbin, ECF No. 18-2 [hereinafter
McCubbin Decl.], as well as a Vaughn Index, see id., Ex. 4 [hereinafter Vaughn Index].
McCubbin’s declaration explained the scope of the search conducted in response to Plaintiffs’
FOIA request and the reasons for DOD’s assertion of various FOIA exemptions to redact the
records. See generally McCubbin Decl. In further support of its motion for summary judgment,
DOD later submitted the declaration of Michael Droz, the Deputy Director of Operations of
SOUTHCOM. See Def.’s Reply in Supp. of Summ. J. & Mem. of P. & A. in Opp’n to Pls.’ Cross-
Mot., ECF No. 22 [hereinafter Def.’s Reply], Second Decl. of Michael Droz, ECF No. 22-1
[hereinafter Droz Decl.]. Droz’s declaration further elaborated on DOD’s withholding of
information from three records pursuant to Exemption 5. See id.
Plaintiffs opposed DOD’s motion, and filed a cross-motion for summary judgment,
asserting that no proper basis exists for most of the government’s redactions and withholdings.
Pls.’ Cross-Mot., Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J. & in Supp. of Pls.’ Cross-Mot.
for Summ. J., ECF No. 19-1 [hereinafter Pls.’ Mem.], at 1. Plaintiffs also asked the court to
conduct an in camera review of a representative sample of the documents at issue, see Pls.’ Mem.
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at 42–43; Pls.’ Reply in Further Supp. of Pls.’ Cross-Mot., ECF No. 24 [hereinafter Pls.’ Reply],
at 23–25, which this court agreed to do. 2
The parties’ motions are now ripe for disposition.
III. STANDARD OF REVIEW
Most FOIA cases are appropriately resolved on motions for summary judgment. See
Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court
must grant summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a
fact is “material” only if it is capable of affecting the outcome of litigation. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly
places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine
the matter de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). As a general matter, “[i]n FOIA cases, an
agency defendant may be entitled to summary judgment if it can demonstrate that (1) no material
facts are in dispute, (2) it has conducted an adequate search for responsive records, and (3) each
responsive record that it has located has either been produced to the plaintiff, is unidentifiable, or
is wholly exempt from disclosure.” Mattachine Soc’y of Wash., D.C. v. U.S. Dep’t of Justice, 267
F. Supp. 3d 218, 223 (D.D.C. 2017) (citing Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344,
1350–51 (D.C. Cir. 1983)).
2
Specifically, the court reviewed in camera Records 31, 72, 129, 140, 168, 240, 248, 265, 278, 281, 288, 295, 297,
307, 317, 320, 321, 326, 328, 331, and 335. See Minute Order, Aug. 22, 2018; Def.’s Notice of Lodging of Classified
Documents for Ex Parte, In Camera Review, ECF No. 26.
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Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and non-conclusory.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks
omitted). The agency’s affidavits or declarations must “describe the documents and the
justifications for nondisclosure with reasonably specific detail” and “demonstrate that the
information withheld logically falls within the claimed exemption.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either
contrary evidence in the record [or] by evidence of agency bad faith.” Id.; Beltranena v. Clinton,
770 F. Supp. 2d 175, 182 (D.D.C. 2011) (quoting Military Audit Project, 656 F.2d at 738). “To
successfully challenge an agency’s showing that it complied with the FOIA, the plaintiff must
come forward with ‘specific facts’ demonstrating that there is a genuine issue with respect to
whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep’t of Justice,
696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.
136, 142 (1989)). “Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears logical or plausible.” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d
937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).
IV. DISCUSSION
Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E) to justify its various redactions
and withholdings. Plaintiffs challenge the applicability of all exemptions, save Exemption 3. 3 The
court addresses the parties’ disputes below, starting with Exemption 5.
3
Other issues have been conceded by Plaintiffs. First, Plaintiffs’ claim that DOD improperly denied expedited
processing of their FOIA request is now moot, as DOD completed its processing of Plaintiffs’ request. See 5 U.S.C.
§ 552(A)(6)(E)(iv) (“A district court of the United States shall not have jurisdiction to review an agency denial of
expedited processing of a request for records after the agency has provided a complete response to the request.”).
Second, Plaintiffs do not challenge the adequacy of the search conducted by DOD. See generally Pls.’ Cross-Mot.;
Pls.’ Reply. Thus, the only issue left for the court to resolve is the propriety of DOD’s withholdings under the
aforementioned FOIA Exemptions.
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A. Exemption 5
Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). The exemption protects information that would be “normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). “Exemption 5
incorporates the privileges that the Government may claim when litigating against a private party,
including the governmental attorney-client and attorney work product privileges, the presidential
communications privilege, the state secrets privilege, and the deliberative process privilege.”
Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).
Here, DOD asserts the deliberative process privilege to withhold information from a
number of the responsive email records and attachments. 4 See generally Vaughn Index; McCubbin
Decl. ¶ 41 (stating that the information withheld contains “General Kelly’s opinions, advice, and
recommendations to [DOD] senior officials about developments at JTF-GTMO and deliberative
discussions about policy issues and potential actions related to detention operations”). The
deliberative process privilege allows an agency to withhold responsive records if the documents
“reflect[] advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.” Sears, 421 U.S. at 150 (internal
quotation marks omitted). The privilege “rests most fundamentally on the belief that were agencies
forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the
4
Specifically, DOD withheld information from the following email records and attachments: Records 1, 3–4, 22–24,
29, 31, 45–46, 50, 58, 60, 62, 64–66, 72, 75, 83, 85, 99, 105, 129–31, 136, 140, 143–45, 148–49, 160, 186, 189, 195,
199–201, 211, 216, 219, 226, 232–33, 248, 250–55, 258, 260, 262–88, 290–97, 299, 301, 303–05, 307, 310–14, 317–
21, 324, 326–28, 331–41, 343, and 346–47. See McCubbin Decl. ¶ 42; Vaughn Index at 17–22.
9
quality of administrative decisions would necessarily suffer.” Army Times Publ’g Co. v. Dep’t of
Air Force, 998 F.2d 1067, 1070 (D.C. Cir. 1993) (internal quotation marks omitted).
To invoke the privilege, an agency must show that the withheld information is both
“predecisional” and “deliberative.” Judicial Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735, 739
(D.C. Cir. 2017). “Documents are ‘predecisional’ if they are ‘generated before the adoption of an
agency policy.’” Id. (quoting Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874
(D.C. Cir. 2010)). “[A] document is deliberative if it is ‘a part of the agency give-and-take—of
the deliberative process—by which the decision itself is made.’” Abtew, 808 F.3d at 899 (quoting
Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).
Plaintiffs challenge all of DOD’s Exemption 5 withholdings as improper. Pls.’ Mem. at
11. Plaintiffs assert as a general matter that DOD has not met its burden under the FOIA
Improvement Act to show that reasonably foreseeable harm to an exemption-protected interest—
here, the agency’s deliberative process—would result from the release of the withheld material.
See 5 U.S.C. § 552(a)(8)(A)(i)(I). Plaintiffs also contend that DOD has failed to identify the
specific deliberative processes to which certain of its withholdings relate. The court addresses
each issue in turn.
1. Satisfaction of the FOIA Improvement Act’s “Foreseeable Harm” Standard
Plaintiffs’ primary challenge to DOD’s Exemption 5 withholdings relates to the FOIA
Improvement Act’s codification of the “foreseeable harm” standard. See 5 U.S.C. § 552(a)(8)(A).
According to Plaintiffs, the FOIA Improvement Act requires agencies to make a specific showing
that disclosure of each of its Exemption 5 withholdings would reasonably and foreseeably harm
“‘the quality of agency decisions’ by inhibiting ‘open and frank discussions among those who
make them within the Government.’” See Pls.’ Reply at 3 (quoting Dep’t of Interior v. Klamath
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Water Users Protective Ass’n, 532 U.S. 1, 9 (2001)); see also Pls.’ Mem. at 11, 13. Pursuant to
Plaintiffs’ interpretation of the government’s burden under the “foreseeable harm” standard,
McCubbin’s general assertion that disclosure of any of the information withheld under Exemption
5 “would jeopardize the free exchange of information between senior leaders within and outside
of [DOD],” McCubbin Decl. ¶ 62, is “plainly insufficient,” see Pls.’ Mem. at 11. In response,
DOD asserts that Plaintiffs make too much of the FOIA Improvement Act’s impact on the
government’s burden to justify a discretionary withholding under FOIA. Def.’s Reply at 17–18.
According to DOD, the Act does not require an agency to go through the superfluous exercise of
showing how each disclosure would harm its deliberative process, especially where, as here, the
agency’s declaration explains that disclosing any of General Kelly’s “routine[] consult[ations] with
senior D[O]D and White House officials . . . about ongoing operational issues at JTF-GTMO”
would impede open discussion on these issues. See id. at 20 (first and second alterations in
original) (quoting McCubbin Decl. ¶ 41).
The parties’ dispute requires the court to determine what an agency must show to satisfy
the FOIA Improvement Act’s “foreseeable harm” standard for discretionary withholdings.
Although two years have elapsed since the Act’s passage in 2016, surprisingly little authority—
precedential or persuasive—on this issue exists. 5 The court’s search yielded only eight federal
court cases that even mention the FOIA Improvement Act. Of these, only two cases—Edelman v.
SEC, 239 F. Supp. 3d 45 (D.D.C. 2017), and Ecological Rights Found. v. FEMA, No. 16-cv-05254,
2017 WL 5972702 (N.D. Cal. Nov. 30, 2017)—discuss the newly-codified “foreseeable harm”
5
Notably, the Department of Justice’s Office of Information Policy has not yet updated its current Guide to the
Freedom of Information Act to reflect the “substantive and procedural amendments” contained in the FOIA
Improvement Act of 2016. See U.S. Dep’t of Justice, Guide to the Freedom of Information Act,
https://www.justice.gov/oip/doj-guide-freedom-information-act-0; see also U.S. Dep’t of Justice, OIP Summary of the
FOIA Improvement Act of 2016, https://www.justice.gov/oip/oip-summary-foia-improvement-act-2016.
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standard, and only Ecological Rights Foundation can be said to address the standard
substantively. 6
In Ecological Rights Foundation, the court granted summary judgment in favor of a FOIA
requester seeking disclosure of records protected under the deliberative process privilege. 2017
WL 5972702, at *7. Finding that the agency had failed to justify its invocation of the privilege,
the court noted that the agency “fail[ed] to explain how disclosure would expose [the agency’s]
decision-making process so as to discourage candid discussion” and likewise “d[id] not provide
any justification for how the agency would be harmed by disclosure as required by the FOIA
Improvement Act of 2016[,] 5 U.S.C. § 552(a)(8)(A)(i).” Id. at *6. The court concluded that
“[a]bsent a showing of foreseeable harm to an interest protected by the deliberative process
exemption, the documents must be disclosed.” Id.
The court’s insistence on strict compliance with the FOIA Improvement Act in Ecological
Rights Foundation, coupled with the text of the Act itself, provides guidance as to what DOD must
show here to justify its Exemption 5 withholdings. To satisfy the “foreseeable harm” standard,
DOD must explain how a particular Exemption 5 withholding would harm the agency’s
deliberative process. DOD may take a categorical approach—that is, group together like records—
but in that case, it must explain the foreseeable harm of disclosure for each category. Cf. Climate
Investigations Ctr. v. U.S. Dep’t of Energy, No. 16-cv-00124, 2018 WL 4500884, at *13 (D.D.C.
6
In Edelman, the court only briefly addressed the FOIA requester’s assertion that the SEC failed to conduct the
“foreseeable harm analysis” required by the FOIA Improvement Act of 2016 to support its Exemption 5 withholdings,
before noting that the Act itself “ha[d] no bearing on the Court’s analysis” because the FOIA request was made in
January 2014, two years before the FOIA Improvement Act—and its “foreseeable harm” standard—went into effect.
See 239 F. Supp. 3d at 54 n.5.
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Sept. 19, 2018). Defendant has failed to do so here, and the court therefore lacks sufficient
information to determine whether the redacted material has been properly withheld.
The court is unmoved by Defendant’s argument that a more specific foreseeable-harm
analysis would be duplicative. DOD submits that because the responsive records “are of the same
type,” disclosing the information withheld from the records “would yield the same kinds of
harms,” consistently “across the release.” Def.’s Reply at 21. In DOD’s view, this general
explanation is all that is required, “particularly where the nature of these documents is explained
in detail.” Id. To be sure, the agency’s declaration provides sufficiently detailed descriptions of
the nature and substance of the withheld communications about JTF-GTMO operations between
General Kelly and senior DOD officials. See generally McCubbin Decl. Indeed, the declaration
provides that these communications run the gamut from discussions about “the performance of
personnel”; “housing and recreational opportunities” for detainees; “operational changes related
to noncompliant detainee behavior, including guard responses”; “operational changes related to
facilities issues”; “possible changes to procedures for detainee communications”; general
processes for “decision-making at JTF-GTMO”; “staffing issues”; “security protocols”; and
“operational issues related to a possible new detention operation in the continental United States,”
to “appropriate next steps related to detainees’ mental, physical, and emotional health”; “detainee
movements”; and “media coverage.” McCubbin Decl. ¶¶ 43–62.
But pointing out the breadth and variety of these categories of deliberative discussions only
serves to undermine Defendant’s argument that it has satisfied its statutory obligation. Cf. Prison
Legal News v. Samuels, 787 F.3d 1142, 1149–50 (D.C. Cir. 2015) (explaining that while an agency
“may justify its withholdings and redactions category-of-document by category-of-
document, . . . [t]he range of circumstances included in the category must characteristically
13
support an inference that the statutory requirements for [the] exemption are satisfied” (emphasis
added) (internal quotation marks omitted)). The court can readily see, for example, that disclosure
of the internal deliberations between General Kelly and high-ranking DOD officials about “a
possible new detention operation in the continental United States” could result in reasonably
foreseeable harm to future “honest and frank communication within the agency.” See Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). But, absent more detail
from the agency, the court can less readily agree with the notion that disclosure of other, seemingly
more benign, categories of withheld deliberative information—e.g., General Kelly’s “opinions
about the current state of facilities on base and recommendations and advice about maintenance
issues,” McCubbin Decl. ¶ 52—would reasonably result in the same level of harm to the
exemption-protected interest.
To be clear, the court does not read the statutory “foreseeable harm” requirement to go so
far as to require the government to identify harm likely to result from disclosure of each of its
Exemption 5 withholdings. A categorical approach will do. But the court agrees with Plaintiffs
that the government must do more than perfunctorily state that disclosure of all the withheld
information—regardless of category or substance—“would jeopardize the free exchange of
information between senior leaders within and outside of the [DOD],” id. ¶ 62. See Pl.’s Mem. at
11.
Because Defendant has failed to satisfactorily show that the categories of information
withheld under Exemption 5 would result in reasonably foreseeable harm to its deliberative
process, the court denies Defendant’s motion as to this exemption. In lieu of granting summary
judgment in favor of Plaintiffs on this issue, however, the court will allow Defendant to supplement
14
its declaration on remand to satisfy the “foreseeable harm” standard for its discretionary
withholdings.
As the agency will have another opportunity to supplement its declarations as to Exemption
5, the court need not fulsomely address Plaintiffs’ other foreseeable harm arguments—namely,
those charging that DOD can assert no harm from disclosure of discussions that: (1) conceal
impermissible animus or embarrassing comments; (2) involve only mundane, minor, and
uncontroversial decisions; and (3) relate to decisions that have already been made. See Pls.’ Mem.
at 13–17. DOD may choose to address the substance of these arguments in its supplemental
declaration. Having reviewed some of the disputed withholdings in camera, the court will,
however, make findings as to two categories of records, as follows.
a. Information Involving Facially Illegitimate Deliberations
Based upon the court’s in camera review, the court rejects Plaintiffs’ argument that DOD
impermissibly withheld information in Records 72 and 320 in order to conceal animus toward
detainees at JTF-GTMO, government misconduct, or embarrassing comments. See Pls.’ Mem. at
13–15.
b. Information Involving “Mundane” Agency Decisions
Based upon the court’s in camera review, the court rejects Plaintiffs’ argument that DOD
impermissibly withheld information so minor and uncontroversial as to evade the protection of
Exemption 5 in Records 31, 129, 140, 295, and 320. See Pls.’ Mem. at 15–16. The information
redacted from these records is not the type of “mundane material” the disclosure of which “is
unlikely to diminish officials’ candor or otherwise injure the quality of agency decisions.”
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1436 & n.8 (D.C. Cir. 1992); see
also id. at 1436 (holding that “materials that do not embody agency judgments,” including
15
“materials relating to standard or routine computations or measurements over which the agency
has no significant discretion,” are not entitled to protection under Exemption 5).
2. Whether Specific Withholdings Are “Predecisional” and “Deliberative”
Plaintiffs’ next challenge to the Exemption 5 withholdings asserts that the government has
failed to identify the specific, predecisional deliberative process to which certain of the
withholdings relate. See Pls.’ Mem. at 18. To support their assertion, Plaintiffs point to several
of the records, asserting that the agency’s description of the withholdings are inadequate to justify
Exemption 5 protection. See id. at 19–20.
Of Plaintiffs’ challenges in this vein, the court’s in camera review substantiated only one:
the assertion that General Kelly’s opinions about the merits of a judicial ruling are not properly
withheld as predecisional deliberative process. See id. at 20. The agency withheld such
information from Records 262, 263, 268, 271, 272, 275, 277, 278, 279, 280, 281, 283, 286, 291,
294, 295, 297, 301, 303, 305, 310, 311, 313, 318, 319, 320, 321, 335, and 346, pursuant to
Exemption 5, asserting that in these records, “General Kelly provides his opinions about” a
military commission ruling barring female guards from touching certain detainees, “advises senior
officials about the consequences of this ruling for the guard force,” and “provides
recommendations about how the government should proceed under the order and opinions about
how the government should handle the equal opportunity complaint.” See McCubbin Decl. ¶ 54.
Having reviewed in camera Records 278, 281, 295, 320, 321, and 335, the court agrees with
Plaintiffs that some of the withheld information involves General Kelly merely “opining about the
merits” of the military commission ruling in a manner that is not directed toward decision-making
as to law or policy, and that such material is not subject to the deliberative process privilege. In
reviewing these documents, the court noted DOD’s inconsistent redactions across these records.
16
For example, in Record 320, the government left unredacted General Kelly’s opinion that the slow
progress of the military commission in addressing the ruling barring female guards from touching
certain detainees rivaled the lengthy deliberations required to reach the “complicated” “Dred Scott
decision.” See Pls.’ Cross-Mot., Ex. PP-2, ECF No. 19-6, at Bates 454. Yet, the government opted
to redact similar instances of General Kelly’s personal opinions from other Records. See, e.g., id.
at Bates 327–28, 380–83, 456–59 (Records 278, 295, and 321). 7 In light of the sensitivity of these
records, the court will give the government a subsequent opportunity to explain why the records
fall within Exemption 5’s ambit in its supplemental declaration.
In light of the foregoing, the court denies Defendant summary judgment as to its Exemption
5 withholdings.
B. Exemption 1
FOIA Exemption 1 precludes disclosure of documents that are:
(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy and (B) are in fact properly classified pursuant to
such Executive order[.]
5 U.S.C. § 552(b)(1). Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“EO 13,526”),
is the basis for the government’s redaction of 196 of the records produced to Plaintiffs. See Def.’s
Mot., Mem. of P. & A. in Supp., ECF No. 18-1 [hereinafter Def.’s Mem.], at 11 (citing Vaughn
Index); see also McCubbin Decl. ¶¶ 16, 18, 35–37. EO 13,526 provides that information may be
classified if four conditions are satisfied: (1) an original classification authority must classify the
information; (2) the information must be “owned by, produced by or for, or . . . under the control
of the United States Government”; (3) the information must fall within one of eight categories
7
The court is satisfied that the information pertaining to the military commission ruling withheld from Records 281,
320, and 335, see id. at Bates 336–38, 452–55, 503–06, were properly redacted pursuant to the deliberative process
privilege.
17
specified in section 1.4 of EO 13,526; and (4) the original classification authority must determine
that the unauthorized disclosure of the information “reasonably could be expected to result in
damage to the national security, . . . and the original classification authority is able to identify or
describe the damage.” EO 13,526 § 1.1(a). As relevant here, information is properly classified at
the “Secret” level, see McCubbin Decl. ¶ 16, if unauthorized disclosure “reasonably could be
expected to cause serious damage to the national security that the original classification authority
is able to identify or describe,” EO 13,526 § 1.2(a)(2).
Defendant withheld four categories of classified information pursuant to FOIA Exemption
1, asserting that the information is protected by EO 13,526 because it “pertains to”: (1) “military
plans, weapon systems, or operations”; (2) “foreign government information”; (3) “intelligence
activities (including covert action), intelligence sources or methods, or cryptology”; and
(4) “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or
protection services relating to the national security.” EO 13,526 § 1.4(a), (b), (c), (g); see
McCubbin Decl. ¶ 16.
Plaintiffs challenge the government’s withholdings under Exemption 1, asserting that the
government failed to establish that disclosure of the information withheld pursuant to sections
1.4(a), (b), and (c) would reasonably be expected to damage the national security. Plaintiffs do
not contest the other threshold requirements of EO 13,526. The court addresses each category of
classified information in the order listed above. 8
8
The court readily dismisses Plaintiffs’ unsupported assertion that the government has improperly withheld
information under Exemption 1 to conceal information that would be embarrassing to government officials. See Pls.’
Mem. at 22 (identifying Records 265 and 320). The court has reviewed in camera Records 265 and 320 and finds no
indication of impropriety or government attempts to wrongfully conceal information in these Records.
18
1. Section 1.4(a): Military plans, weapon systems, or operations
According to the agency, the bulk of DOD’s withholdings under Exemption 1 “concern[]
military operations” and are therefore protected under section 1.4(a) of EO 13,526. McCubbin
Decl. ¶ 18. The agency’s declaration explains that the information withheld from the email records
and attachments “address a range of operational details covered by Section 1.4(a).” Id. ¶ 19.
Because the responsive emails and attachments comprise routine updates sent by General Kelly to
DOD senior officials, General Kelly often addressed the same subject matter in his emails—
usually, “Camps, Behavioral Health Unit/Detainee Hospital, Facilities, Detainee Movement
Orders (DMO), Upcoming Events, and Final Comments”—and provided updates to senior
officials on any developments to these categories. Id. In their briefing, the parties identified the
disputed categories of operational information covered by DOD’s section 1.4(a) withholdings. See
Def.’s Mem. at 13–21; Pls.’ Mem. at 23–31; Pls.’ Reply at 4–13. The court addresses the
applicability of section 1.4(a) to each of these categories below.
a. Detainee Conduct
DOD withheld information about detainees and detention operations at JTF-GTMO, which
consists of General Kelly’s descriptions of detainee conduct, including discussions “identif[ying]
noncompliant detainees,” explaining “measures being taken to maintain order while ensuring the
detainees’ health, safety, and wellbeing,” and highlighting “the interpersonal relationships
between compliant and noncompliant detainees and the effect it has on detention operations.” See
McCubbin Decl. ¶ 20. According to the agency, “release of this information could damage
national security by further complicating detainee operations.” Id. In Defendant’s view, a future
detainee of JTF-GTMO could use this information to “shape their behavior to be maximally
disruptive” while detained, and, similarly, current detainees could get hold of the information and
19
“frustrate the mission and operation at JFT-GTMO,” thereby “putting the guard force and the
security of the facility at risk.” Id.
Plaintiffs do not challenge the obvious conclusion that this category of information
“pertains” to a “military operation.” See Pls.’ Reply at 10–11. Rather, Plaintiffs assert that the
type of harm the government believes likely to occur upon disclosure—“mak[ing] administration
of JTF-GTMO significantly more difficult and plac[ing] military personnel at unnecessary risk,”
McCubbin Decl. ¶ 20—does not constitute a risk of harm to national security. See Pls.’ Reply at
11. Plaintiffs characterize this risk as one involving law enforcement concerns, rather than
concerns to the national security. Id.
The court declines Plaintiffs’ invitation to second guess the government’s judgment that
releasing information about detainee conduct within JTF-GTMO would imperil the national
security. The D.C. Circuit has continually “reaffirm[ed] [the] deferential posture” a court must
assume “in FOIA cases regarding the ‘uniquely executive purview’ of national security.” Larson
v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (quoting Ctr. for Nat’l Sec. Studies v. U.S.
Dep’t of Justice, 331 F.3d 918, 926–27 (D.C. Cir. 2003)). The Circuit has cautioned against
“undertak[ing] searching judicial review” when it comes to evaluating an agency’s withholding of
classified information, because “the Executive departments responsible for national defense and
foreign policy matters have unique insights into what adverse [e]ffects . . . might occur as a result
of a particular classified record.” Id. at 864–65 (internal quotation marks omitted). As such, to
properly invoke Exemption 1, “little proof or explanation is required [from the agency] beyond a
plausible assertion that information is properly classified.” Morley v. CIA, 508 F.3d 1108, 1124
(D.C. Cir. 2007). While “vague, conclusory affidavits, or those that merely paraphrase the words
of a statute” will not pass muster, id. (quoting Church of Scientology of Cal., Inc. v. Turner, 662
20
F.2d 784, 787 (D.C. Cir. 1980) (per curiam)), the agency’s affidavit in this case does not suffer
from those deficiencies. Instead, the agency “logical[ly]” and “plausibl[y],” see Larson, 565 F.3d
at 862 (internal quotation marks omitted), connects disclosure of the withheld information—
sensitive information pertaining to enemy combatant detainees and behavioral tolerances at JTF-
GTMO—to the risk of interference with the safe administration of JTF-GTMO. The agency’s
declaration therefore “offer[s] the ‘little proof or explanation’ necessary to show that, if released,”
the withheld information “‘reasonably could be expected to result in damage to the national
security.’” See Int’l Counsel Bureau v. U.S. Dep’t of Def., 723 F. Supp. 2d 54, 63 (D.D.C. 2010)
(citation omitted) (first quoting Morley, 508 F.3d at 1124; then quoting Larson, 565 F.3d at 865).
b. Detainee Health
DOD withheld information relating to detainee health and hunger strikes, wherein General
Kelly “discuss[es] in broad and specific terms detainees’ mental, physical, and emotional health,
as well as the measures . . . being developed or taken to ensure their wellbeing,” McCubbin Decl.
¶ 23, and identifies “the number of hunger strikers” and “the impact . . . the strike is having on
detainees’ health,” id. ¶ 26. According to the agency, “releasing information about the health and
medical status of detainees would create a severe risk of damage to national security by yielding
information that can be used as propaganda by terrorist organizations and other adversaries.” Id.
¶ 24. Moreover, the agency explains that “[b]ecause some detainees have engaged in hunger
strikes and other noncompliant behavior that lead to medical concerns over their health and
wellbeing, release of this information would enable adversaries that seek to inflame public reaction
to detention operations at JTF-GTMO, putting U.S. military forces and allies at risk.” Id.
For their part, Plaintiffs contend that the agency’s withholding of detainee health and
hunger strike information is unjustified because: (1) much of the withheld detainee health
21
information—facts about detainee height and weight, the numbers of hunger strikers, as well as
details and first-hand accounts of the enteral feeding program—has previously been disclosed and
therefore cannot now be withheld, and (2) the disclosure of similar information undermines the
government’s claim that disclosure would cause serious damage to the national security. See Pls.’
Mem. at 26–28.
i. Official Acknowledgement
The court turns first to address Plaintiffs’ assertion that the detainee health and enteral
feeding program information redacted by DOD cannot be protected by Exemption 1 because the
government already has publicly disclosed such information. The court disagrees. Plaintiffs fail
to show that any of the information identified has been disclosed in a manner that allows them to
overcome the agency’s invocation of Exemption 1.
Information is “officially acknowledged” and must be disclosed over government
objection if: “(1) the information requested [is] as specific as the information previously released;
(2) the information requested . . . match[es] the information previously disclosed; and (3) the
information requested . . . already ha[s] been made public through an official and documented
disclosure.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 620–21 (D.C. Cir. 2011). “These criteria
are important because they acknowledge the fact that in the arena of intelligence and foreign
relations there can be a critical difference between official and unofficial disclosures.” Shaffer v.
Def. Intelligence Agency, 102 F. Supp. 3d 1, 9 (D.D.C. 2015). Consequently, “[p]rior disclosure
of similar information does not suffice; instead, the specific information sought by the plaintiff
must already be in the public domain by official disclosure. This insistence on exactitude
recognizes the Government’s vital interest in information relating to national security and foreign
affairs.” ACLU, 628 F.3d at 621 (alteration in original) (quoting Wolf v. CIA, 473 F.3d 370, 378
22
(D.C. Cir. 2007)). A plaintiff asserting a claim of official acknowledgement bears the “initial
burden of pointing to specific information in the public domain that appears to duplicate that being
withheld.” Wolf, 473 F.3d at 378 (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.
Cir. 1983)).
Plaintiffs have failed to shoulder their burden of pointing to “specific information” that has
been officially disclosed and “matches” the withheld information. Plaintiffs identify various
sources of information that they assert are “official disclosures” of the information they seek here:
(1) prior disclosure of detainees’ height and weight information from 2002 through 2006, see Pls.’
Stmt. ¶ 40; Langford Decl., Exs. JJ, KK, ECF No. 19-4; (2) figures on the Miami Herald webpage
tallying the number of hunger strikers and instances of force-feeding conducted at JTF-GTMO,
Pls.’ Mem. at 26 (citing Pls.’ Stmt. ¶ 41); see Langford Decl., Ex. X, ECF No. 19-4; (3) a Miami
Herald article in which Navy Rear Admiral Kyle Cozad explains that daily figures of hunger
strikers and the number of prisoners designated for enteral feedings are not “operationally or
medically relevant,” Pls.’ Mem. at 26–27 (citing Pls.’ Stmt. ¶ 39); Langford Decl., Ex. Y, ECF
No. 19-4; (4) a detainee’s published accounts of his own force-feeding, Pls.’ Mem. at 27 (citing
Pls.’ Stmt. ¶ 44); see Langford Decl., Ex. AA, ECF No. 19-4; and (5) a New York Times article in
which then SOUTHCOM commander, General Craddock, discloses the use of “restraint chairs”
to force-feed Guantánamo detainees, Pls.’ Mem. at 27 (citing Pls.’ Stmt. ¶ 34); Langford Decl.,
Ex. Z, ECF No. 19-4. Having reviewed these sources, the court concludes that none of the
information matches the withheld information. 9
Rather than demonstrate that the “information requested” is “as specific as the information
previously released,” ACLU, 682 F.3d at 620, Plaintiffs have merely identified facts relating to
9
One caveat: according to Plaintiffs, the Miami Herald tally of hunger strikers and force-fed detainees “documents
the routine official acknowledgment of the number of hunger strikers.” Pls.’ Reply at 14. For example, Plaintiffs
23
hunger strikes and enteral feeding from a variety of sources—some “official” but most not—“in
the hopes that such information collectively is ‘as specific as’ and ‘matches’ the information that
has been withheld.” ACLU v. CIA, 109 F. Supp. 3d 220, 241 (D.D.C. 2015), aff’d sub. nom. ACLU
v. U.S. Dep’t of Justice, 640 F. App’x 9 (D.C. Cir. 2016). But Plaintiffs’ approach is unavailing.
To begin with, the government-issued charts detailing the height and weight of specific detainees
between the years 2002 and 2006 pertain to a time period outside of the scope of the responsive
records, and therefore cannot “match” any of the information withheld by DOD. Compare
Langford Decl., Exs. JJ, KK (height and weight information recorded from 2002 through 2006),
with Vaughn Index (responsive records from 2013 through 2016). Additionally, Plaintiffs have
not shown that General Craddock’s official acknowledgement of the use of “restraint chairs” to
impose enteral feeding, nor the first-hand account of a JTF-GTMO detainee describing force-
feeding, “officially acknowledge” the specific, redacted details withheld by DOD here. The mere
existence of some public information about the enteral feeding program does not suffice to
overcome DOD’s invocation of Exemption 1 to protect the specific withheld information.
Cf. Azmy v. U.S. Dep’t of Def., 562 F. Supp. 2d 590, 598–99 (S.D.N.Y. 2008) (“[T]he application
of Exemption 1 is generally unaffected by whether the information has entered the realm of public
knowledge. A limited exception is permitted only where the government has officially disclosed
explain that the May 15, 2013 tally of 100 hunger strikers and 30 tube-fed detainees was derived from the public
statement of Army Lt. Col. Samuel House, the JTF-GTMO spokesman. See id. (citing Carol Rosenberg, Guantánamo:
30 of 100 Hunger Strikers Now Being Tube-Fed, Miami Herald (May 15, 2013),
https://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article1951559 html). The figures for
this date are thus “officially acknowledged” such that DOD may not withhold the number of hunger strikers and force-
fed detainees for the date of May 15, 2013.
However, with regard to the other figures reported on the Miami Herald website, which range from March
4, 2013 to December 2, 2013, see id. (citing Carol Rosenberg & Lazaro Gamio, Tracking the Hunger Strike, Miami
Herald, http://media miamiherald.com/static/media/projects/gitmo_chart/ (last visited Dec. 3, 2017)), Plaintiffs have
failed to bring to the court’s attention the specific official disclosures that support each count in the tally. Accordingly,
Plaintiffs have not met their burden to prove that these figures are “official disclosures” that overcome DOD’s
invocation of Exemption 1.
24
the specific information the requester seeks.” (alteration in original) (quoting Halpern v. FBI, 181
F.3d 279, 294 (2d Cir. 1999))). Here, Plaintiffs merely point to alleged disclosures of “vaguely
similar information” but fail to identify officially disclosed information that “precisely tracks or
duplicates the information it has requested.” See ACLU, 109 F. Supp. 3d at 241 (cleaned up). In
short, Plaintiffs have not met their burden to show that the withheld information has been officially
acknowledged.
ii. Harm to the National Security
The court easily rejects Plaintiffs’ related assertion that the release of similar information
to that withheld here somehow lessens the risk of harm to the national security resulting from
disclosure of information relating to detainee health and the controversial enteral feeding program.
“[T]he fact that information resides in the public domain does not eliminate the possibility that
further disclosures can cause harm to intelligence sources, methods and operations.” Fitzgibbon
v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990). As the agency avers, “releasing sensitive deliberative
materials related to hunger strikes would create a powerful propaganda tool for hostile parties
seeking to recruit and inflame forces against the United States military and personnel abroad.”
McCubbin Decl. ¶ 26. This statement readily satisfies the standard for a plausible and logical
explanation for classification and is therefore sufficient to invoke Exemption 1.
c. Detainee Movements to Third Countries
DOD withheld information relating to detainee movement to third countries, including
General Kelly’s discussions as to “whether a detainee movement is authorized,” “the measures that
need to be taken to execute the mission,” “the logistical requirements necessary to conduct the
mission,” “the required approval and coordination with the receiving nation,” “the reactions of the
detainees upon learning of their transfer,” as well as “information regarding the receiving nation,”
25
including “when and how the transfer will occur” and “details regarding preliminary discussions
with the receiving nation.” Id. ¶ 27. According to the agency, releasing information about detainee
movements “create[s] significant national security risks by publicizing sensitive operational details
about how these orders are executed, including the logistical details that could enable interference
in future or similar operations.” Id. ¶ 28. Moreover, because the information concerns the U.S.
government’s cooperation with foreign governments to move detainees, releasing that information
“would have a significant detrimental effect on the government’s ability to continue cooperating
with foreign governments in these operations.” Id.
Plaintiffs’ challenge to these withholdings is limited to the government’s withholding of
information detailing the “reactions of the detainees upon learning of their transfer.” See Pls.’
Mem. at 28–29. Plaintiffs argue that the release of such information “do[es] not implicate
governmental operations, logistics, procedures, or the United States’ relationship with foreign
governments.” Id. at 29. The court agrees with Plaintiffs—the connection between releasing
information about the “reactions of detainees” upon learning of their movements from JTF-GTMO
and a risk of “enabl[ing] interference in future or similar” detainee movements is tenuous at best.
Information about a detainee’s feelings or thoughts about his impending transfer would not seem
to pose the same security risk as, say, information regarding how or when the detainees are being
transferred, or the name of the receiving nation. If, as DOD appears to assert, see Def.’s Reply at
11, the redacted information about the reactions of detainees is too intertwined with other withheld
information—the identity of the receiving nation or questions of timing, for example—then DOD
may assert as much in a supplemental declaration. On the present record, however, the court
cannot discern, even affording due deference to the agency on national security matters as required,
26
a logical connection between the disclosure of detainees’ reactions to transfer orders and a risk to
the national security.
Plaintiffs additionally assert that the government has officially acknowledged and
disclosed the country of destination for detainee transfers and must therefore disclose this
information. See Pls.’ Mem. at 29 (citing Pls.’ Stmt. ¶¶ 48–49); see also Langford Decl., Exs. DD,
EE, FF, GG, HH, ECF No. 19-4. In the sources identified by Plaintiffs, DOD announced the
transfer of three detainees to the United Arab Emirates in January 2017, see Langford Decl., Ex.
DD, ten detainees to Oman in January 2017, see id., Ex. EE, six detainees to Uruguay in December
2014, see id., Ex. FF, six detainees to Palau in October 2009, see id., Ex. GG, and five detainees
to Kuwait in November 2005, see id., Ex. HH. In their reply brief, Plaintiffs also note that a search
of the U.S. Department of Defense news release webpage resulted in 13 detainee transfer
announcements between November 5, 2014, and January 8, 2016. See Pls.’ Reply at 16.
Although this information constitutes official disclosures of the names of detainees and the
country of destination for their transfers, the only specific “match” to the withheld information
that Plaintiffs bring to the court’s attention is the agency’s withholding from Record 207, which
redacts information from a June 13, 2015 email describing a transfer to Oman. See Pls.’ Cross-
Mot., Ex. PP-2, ECF No. 19-6 [hereinafter Production Pt. 1], at Bates 214. As Plaintiffs point out,
DOD announced on June 13, 2015, the names of six detainees transferred to Oman. See Pls.’
Reply at 16 (citing Detainee Transfer Announced, U.S. Dep’t of Def. (June 13, 2015),
https://dod.defense.gov/News/News-Releases/News-Release-View/Article/605565/detainee-
transfer-announced/). Plainly, the government cannot withhold this information from Record 207
because it has been officially disclosed. With regard to the other disclosures, Plaintiffs have not
27
met their burden of providing the court with the “match” in the withheld information to the
information already officially acknowledged.
d. Order Affecting Female Guards
Some of the information withheld by Defendant pursuant to Exemption 1 contains
“discussions of an order affecting female guards and a subsequent equal opportunity complaint.”
McCubbin Decl. ¶ 33. According to the agency, DOD withheld information in General Kelly’s
comments about this issue “describing guard force composition, guard actions related to detainees,
and the use of classified information in related proceedings.” Id.
Plaintiffs assert that DOD has not identified any harm that might result from the disclosure
of this withheld information. Pls.’ Mem. at 30; Pls.’ Reply at 17. But, the agency has satisfactorily
shown that disclosure of this information—particularly as it reveals information about the
composition of the guard force and interactions between guards and detainees—reasonably could
be expected to “provide those who seek to harm the United States with critical information
regarding our operations, our policies—and how they change dependent on certain factors—and
our vulnerabilities.” McCubbin Decl. ¶ 34. Again, the court defers to the agency’s logical
explanation.
e. Court and Commission Proceedings
DOD withheld information that “contain discussions of detainee-related proceedings in
federal court and military commissions.” Id. ¶ 33. The withheld information “describ[es]
detainees’ health, behavior, and conditions in the context of these proceedings; logistical and
operational issues related to the detainees and the facilities; and operational responses to
proceedings and orders that touch on classified subject matter.” Id. Once again, Plaintiffs’
challenge to the withholding of this information questions the government’s showing of resulting
28
national security harm from the release of this information. See Pls.’ Reply at 17. And, again, the
court rejects Plaintiffs’ argument; it is more than logical and plausible that the sensitive nature of
this information is such that its release could “permit[] the details of [the detainees’] detention to
become widely known to hostile forces abroad that are still engaged with deployed forces.”
McCubbin Decl. ¶ 34.
f. Congressional Matters
Plaintiffs’ final challenge to the government’s section 1.4(a) withholdings involves
redactions in Records 272 and 304 that “contain discussions of congressional matters related to
JTF-GTMO operations.” Id. ¶ 33. As with the redactions concerning discussions of court
proceedings and commissions, the agency claims that disclosing this information would provide
“those who seek to harm the United States with critical information regarding our operations, our
policies—and how they change dependent on certain factors—and our vulnerabilities.” Id. ¶ 34.
The court agrees with Plaintiffs that the agency’s justification for withholding this
information is plainly insufficient. Merely identifying information as “discussions of
congressional matters related to JTF-GTMO operations” and asserting that its disclosure would
harm the national security is inadequate, even under Exemption 1. See Int’l Counsel Bureau, 723
F. Supp. 2d at 60 (“[A] categorical description of redacted material coupled with categorical
indication of anticipated consequences is clearly inadequate to support withholding records, even
under exemption 1.” (internal quotation marks omitted)). DOD does not indicate the nature of the
“congressional matters” redacted from the records, nor describe what kind of “JTF-GTMO
operations” they involve. As such, DOD has not “afford[ed] the FOIA requester a meaningful
opportunity to contest, and the district court an adequate foundation to review, the soundness of
the withholding.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (internal
29
quotation marks omitted). If DOD wishes to withhold this information pursuant to Exemption 1,
then it must provide more information to support that invocation.
2. Section 1.4(b) “Foreign Government Information”
DOD withheld foreign government information from one record—Record 273—as
classified pursuant to section 1.4(b) of EO 13,526. According to the agency’s declaration,
Record 273 “discusses a detainee movement operation that was postponed due to the receiving
nation no longer being willing or able or both to accept the detainee.” McCubbin Decl. ¶ 35.
According to DOD, disclosure of this information “would negatively impact our ability to deal
with foreign nations on sensitive matters” and “protect and advance U.S. national interests”
because “[f]oreign governments would no longer trust us to deal with foreign nations on sensitive
matters.” Id.
The court agrees with Plaintiffs that DOD has failed to show that the information in
Record 273 pertains to “foreign government information” within the meaning of section 1.4(b) of
EO 13,526. The Executive Order defines “foreign government information,” as relevant here, as
“information provided to the United States Government by a foreign government . . . with the
expectation that the information, the source of the information, or both, are to be held in
confidence,” or, conversely, “information produced by the United States Government pursuant to
or as a result of a joint arrangement with a foreign government . . . requiring that the
information . . . be held in confidence.” EO 13,526 § 6.1(s) (emphases added). The agency’s
declaration fails to show that the redacted information in Record 273 was provided to the United
States explicitly “to be held in confidence.” See id.; cf. Azmy, 562 F. Supp. 2d at 600 (approving
of government’s invocation of Exemption 1 because “information by foreign governments is
provided to JTF-GTMO in confidence, with the expectation that it will not be publicly released”).
30
It is no doubt formalistic to require the government to confirm a fact that the court might
reasonably infer, but the requirements of Exemption 1 are clear. The court will therefore grant the
agency a subsequent opportunity to confirm that the redacted information was provided to JTF-
GTMO by a foreign government in confidence.
3. Section 1.4(c) “Intelligence Activities, Sources, or Methods”
DOD withheld information in 12 records pursuant to section 1.4(c), which allows
classification of information that “pertains to . . . intelligence activities (including covert action),
intelligence sources or methods, or cryptology.” EO 13,526 § 1.4(c); see McCubbin Decl. ¶ 36.
According to the agency’s declaration, these records contain “information on intelligence activities
that are vital to . . . detention operations,” the release of which “could be reasonably expected to
reveal intelligence sources and methods or otherwise compromise [DOD’s] mission to collect
intelligence.” McCubbin Decl. ¶ 36.
Plaintiffs’ objection to this withholding is two-fold. First, Plaintiffs argue that the
government has not shown that the redacted records fall under section 1.4(c)’s protection. Pls.’
Mem. at 33. Second, Plaintiffs assert that the government has also failed to establish the requisite
risk of harm to national security that would result from disclosure of the redacted information. Id.
at 34. In particular, Plaintiffs point to deficiencies in the agency’s descriptions of Records 60, 168,
and 186, asserting that the government has not shown how information about detention operations
redacted from those records “pertains” to intelligence operations. Cf. McCubbin Decl. ¶ 36.
The court agrees with Plaintiffs and finds that the information supplied about the section
1.4(c) withholdings is insufficient. The information about the detention of enemy combatants at
JTF-GTMO readily satisfies the “foreign component” requirement of classifiable “intelligence.”
See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 160 F. Supp. 3d 226,
31
234 (D.D.C. 2016) (explaining that “intelligence” as defined by section 6.1(x) of EO 13,526
“requires a foreign component”); see also Executive Order No. 12,333, 46 Fed. Reg. 59,941 (Dec.
4, 1981), § 3.4(a), (d) (defining “counterintelligence” and “foreign intelligence”). But without
more information, the court cannot conclude that the information withheld involves intelligence
“activities,” “sources,” or “methods.” EO 13,526 § 1.4(c). For example, the agency describes
Record 168 as involving an update from General Kelly regarding “communal and single-cell
distribution, detainee activity that needs to be monitored, and the impetus behind . . . noncompliant
activity.” McCubbin Decl. ¶ 36. It is not clear how this information pertains to any intelligence
activity, source, or method, nor how its disclosure would reasonably be expected to cause damage
to the national security.
The court will therefore deny summary judgment to Defendant on this issue. As requested,
the court will allow DOD to supplement its showing and address the information withheld under
section 1.4(c) with a classified ex parte declaration for the court’s in camera review. See Def.’s
Mem. at 24 n.12; Def.’s Reply at 16 n.13.
4. Section 1.4(g) “Vulnerabilities or Capabilities . . . Relating to the National
Security”
Plaintiffs do not challenge DOD’s withholdings under section 1.4(g) of EO 13,526, which
protects information that “pertains to . . . vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the national security.” See
McCubbin Decl. ¶ 37 (explaining that Records 27, 55, 56, 75, 96, 105, 156, 189, and 194 include
information withheld under section 1.4(g)). According to the agency, these records “discuss
detainee movements to third countries, and, in particular, focus on the vulnerabilities of the mission
due to possible changes in mission,” including “threat assessments of airfields used to transport
and transfer the detainees.” Id. On the basis of the agency declaration, the court is satisfied that
32
the information was properly classified under section 1.4(g) and therefore grants summary
judgment in favor of Defendant as to this issue.
C. Exemption 3
Plaintiffs do not challenge DOD’s withholding of information in Record 272 pursuant to
Exemption 3. See generally Pls.’ Mem. Exemption 3 permits the withholding of records that are
“specifically exempted from disclosure by statute” if that 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)(A)(i). According to the agency’s declaration, the information redacted from Record
272 is “withheld under the specific authority of 10 U.S.C. § 130b,” see McCubbin Decl. ¶ 39,
which authorizes the withholding from disclosure to the public “personally identifying information
regarding . . . any member of the armed forces assigned to an overseas unit, a sensitive unit, or a
routinely deployable unit,” 10 U.S.C. § 130b(a)(1). Specifically, the redacted information in
Record 272 “specifically identif[ies] the names, office affiliations, contact information, and titles
of covered personnel that are assigned to routinely deployable units.” McCubbin Decl. ¶ 39. On
the basis of the agency declaration, the court is satisfied that the information was properly redacted
under Exemption 3 and therefore grants summary judgment in favor of Defendant as to these
withholdings.
D. Exemption 6
DOD invokes Exemption 6 to redact two categories of information. The first category
involves identifying information of government personnel, including individuals below the rank
of colonel or GS-15, id. ¶¶ 64, 66; the email addresses of all DOD personnel regardless of rank or
position, id. ¶ 69; and “personally identifying information in the form of companies deployed to
JTF-GTMO, personal characteristics of military personnel, and some descriptive information
33
about personnel actions,” id. ¶ 67. The second category pertains to detainee information—“names,
numbers, and other identifying information in the context of discussing noncompliant behavior,
medical care, detainee movements, and detainee communications.” Id. ¶ 70. 10 Within these
categories, Plaintiffs challenge only Defendant’s withholding of “descriptive information about
[DOD] personnel actions” and all detainee information. See Pls.’ Mem. at 34–38; Pls.’ Reply at
19–22.
An agency may use Exemption 6 to withhold “personnel and medical files . . . the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). Courts “pursue two lines of inquiry to determine whether [the agency] has
sustained its burden to show that the information [sought] is properly withheld” under Exemption
6. Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). First,
courts determine whether the information withheld is contained in “personnel, medical, or similar
files covered by Exemption 6.” Id. (internal quotation marks omitted). If so, courts “then
determine whether . . . disclosure would constitute a clearly unwarranted invasion of personal
privacy.” Id. (internal quotation marks omitted). The second inquiry requires courts “to balance
the privacy interest that would be compromised by disclosure against any public interest in the
requested information.” Id.
There is no dispute that the documents at issue are “personnel and medical files” that satisfy
the threshold requirement of Exemption 6. Instead, Plaintiffs assert that these Exemption 6
withholdings are improper because, as to both categories of information: (1) the government has
failed to establish that there are valid privacy interests in the redacted information, and (2) any
10
Defendant also invoked Exemption 6 to withhold information related to third parties—including two court experts
and visitors to Guantánamo—from certain documents. See McCubbin Decl. ¶ 72. Plaintiffs do not challenge those
withholdings. Cf. Pls.’ Mem. at 35 & n.8.
34
existing privacy interests are not outweighed by the public’s interest in the information. Neither
argument is convincing.
1. Description of Personnel Actions
DOD redacted “descriptive information about personnel actions” from the records,
asserting that the “privacy interest in this information . . . far outweighs any minimal interest the
public could have in the information.” See McCubbin Decl. ¶ 67. Plaintiffs counter that the
government fails to explain how descriptions of personnel actions would necessarily identify
specific personnel and thus give rise to any privacy interest that could outweigh the public’s
interest in the information. See Pls.’ Reply at 19–20.
The balancing analysis for Exemption 6 requires a court to first determine “whether
disclosure of the files would compromise a substantial, as opposed to de minimis, privacy interest.”
Multi Ag Media LLC, 515 F.3d at 1229 (internal quotation marks omitted). “A substantial privacy
interest is anything greater than a de minimis privacy interest.” Id. at 1229–30. Here, the court
agrees with Defendant that disclosure of the withheld descriptions of personnel action “obviously”
implicates an employee’s substantial privacy interest in sensitive information regarding his or her
employment. See Def.’s Reply at 31. The D.C. Circuit has recognized that “[a]n employee has at
least a minimal privacy interest in his or her employment history and job performance
evaluations.” Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984). That privacy interest arises not only
“from the presumed embarrassment or stigma wrought by negative disclosures,” but also from “the
employee’s more general interest in the nondisclosure of diverse bits and pieces of information,
both positive and negative, that the government, acting as an employer, has obtained and kept in
the employee’s personnel file.” Id. Thus, “[c]ourts generally recognize the sensitivity of
information contained in personnel-related files and have accorded protection to the personal
35
details of a federal employee’s service.” Smith v. Dep’t of Labor, 798 F. Supp. 2d 274, 284–85
(D.D.C. 2011); see Bloomgarden v. U.S. Dep’t of Justice, 874 F.3d 757, 760–62 (D.C. Cir. 2017)
(affirming Exemption 6 withholding of proposed termination letter sent to Assistant U.S. Attorney
(“AUSA”) because the AUSA’s “quite substantial” privacy interest in avoiding embarrassment
caused by disclosure of a discipline letter containing allegations of unprofessionalism outweighed
the public’s interest in learning about the AUSA disciplinary process). The court therefore agrees
with DOD that disclosing information about personnel actions taken by DOD as to the individual
targeted by those actions would constitute an unwarranted invasion of the employee’s personal
privacy.
“Finding a substantial privacy interest does not conclude the inquiry,” however. Multi Ag
Media LLC, 515 F.3d at 1230. The court must now “address the question whether the public
interest in disclosure outweighs the individual privacy concerns” in the withheld personnel
information. Id. (internal quotation marks omitted). “The only valid public interest in the FOIA
context is one that serves FOIA’s core purpose of shedding light on an agency’s performance of
its statutory duties.” Smith, 798 F. Supp. 2d at 285 (citing Reporters Comm., 489 U.S. at 773).
“The requester has the burden of demonstrating that public interest.” Id. In this case, Plaintiffs
have not carried their burden. Plaintiffs assert that, because claims of sex discrimination against
female service members and allegations regarding “hazardous work environments” have arisen
from DOD’s operation of JTF-GTMO, the public has an interest in “understanding . . . how the
government handles personnel actions.” Pls.’ Mem. at 38 (citing Pls.’ Stmt. ¶ 53). But Plaintiff
has not shown that disclosure of this information would actually shed light on those unrelated
issues; therefore, any general interest in learning more about the manner in which personnel actions
are “handled” at JTF-GTMO does not overcome the privacy interest in the nondisclosure of
36
information kept in an employee’s personnel file. Cf. Reporters Comm., 489 U.S. at 772
(explaining that “an invasion of privacy is warranted” under the private-public interest balancing
test only if disclosure “open[s] agency action to the light of public scrutiny,” not to serve “the
purposes for which the request for information is made” (internal quotation marks and emphasis
omitted)).
2. Detainee Information
The court likewise upholds DOD’s withholding of detainee information pursuant to
Exemption 6. See McCubbin Decl. ¶ 70. As the agency explains, “release of this information
would constitute a clearly unwarranted invasion of [the detainees’] personal privacy, particularly
with respect to medical information and identifying numbers that can be tied to detainee conduct
and health.” Id. ¶ 71.
Plaintiffs’ objection to these withholdings centers primarily on their assertion that the
government “is redacting information similar in form to information that it has already released.”
Pls.’ Mem. at 36. In particular, Plaintiffs assert that DOD cannot invoke Exemption 6 as to:
(1) detainee numbers—two of which the government released in this production, see id. at 36–37
(referring to Records 325 and 343, which identify detainees 768 and 128, respectively), and others
online, see Pls.’ Reply at 21–22 (citing List of Individuals Detained by the Department of Defense
at Guantanamo Bay, Cuba, from January 2002 through May 15, 2006, U.S. Dep’t of Def.,
http://archive.defense.gov/news/May2006/d20060515%20List.pdf)—and (2) detainees’ medical
information, in light of the government’s previous release of medical charts tracking hunger-
striking detainees’ weight, see Pls.’ Mem. at 37 (citing Pls.’ Stmt. ¶ 40).
As an initial matter, the court notes that, notwithstanding their detention, the detainees at
Guantánamo Bay maintain a substantial privacy interest in their personally identifying
37
information. See Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 286–87 (2d Cir. 2009)
(concluding that Guantánamo detainees “have a measurable privacy interest in the nondisclosure
of their names and other identifying information”); see also Mingo v. U.S. Dep’t of Justice, 793 F.
Supp. 2d 447, 455 (D.D.C. 2011) (recognizing privacy interest in medical records of prison
inmates). This privacy interest is “significantly lessened,” however, if the personally identifying
information has been released or is “‘open and notorious.’” See Int’l Counsel Bureau, 723 F. Supp.
2d at 66–67 (quoting Hidalgo v. FBI, 541 F. Supp. 2d 250, 255 (D.D.C. 2008)); see also id. (finding
Guantánamo detainees’ privacy interest in photographs only “slight” because “the government
ha[d] already released a substantial amount of information about these detainees,” including their
photographs (emphasis added)). But the personally identifying detainee information redacted by
DOD in this case has not been released. E.g., Def.’s Reply at 33 (“D[O]D is not seeking to
withhold records that have already been made public.”). Accordingly, the court agrees with
Defendant that the public availability of certain detainee information—here, the detainee numbers
of two detainees, detainee numbers from 2002 through 2006, and a chart tracking detainee weight
during hunger strikes—does not lessen the privacy interest of the detainees as to the more general
medical information withheld here, nor mandate its disclosure.
The court recognizes that there is significant public interest in the withheld information, as
disclosure of the information could assist the public in learning more about the government’s
treatment and care of detainees at JTF-GTMO. See Int’l Counsel Bureau, 723 F. Supp. 2d at 66
(“The press has taken a substantial interest in the Guantánamo Bay detainees, and has reported
extensively on them and their condition.”); In re Guantanamo Bay Detainee Litig., 624 F. Supp.
2d 27, 37 (D.D.C. 2009) (“Public interest in Guantanamo Bay generally . . . has been
unwavering.”). Although it is a close call, on balance, the court concludes that the public’s general
38
interest in obtaining information about the treatment of JTF-GTMO detainees does not outweigh
the substantial privacy interests of the detainees in nondisclosure of their personally identifying
information. See Associated Press, 554 F.3d at 290 (concluding that detainees’ privacy interest in
their names and identifying information in records regarding abuse allegations by military
personnel outweighed the public’s interest in using that information to determine whether those
allegations affected the government’s treatment of them). The court therefore concludes that
detainee information is properly withheld under Exemption 6.
* * *
Having reviewed the agency’s declaration as to the remaining categories of undisputed
information withheld under Exemption 6, see McCubbin Decl. ¶¶ 64, 66, 69, 72, the court is
satisfied that DOD has adequately shown that the disclosure of this information would constitute
a clearly unwarranted invasion of personal privacy. The court therefore grants summary judgment
in favor of DOD as to its Exemption 6 withholdings.
E. Exemption 7(E)
Next, the court addresses the government’s invocation of Exemption 7(E) to redact
information from four records: Records 257, 263, 270, and 291. McCubbin Decl. ¶ 76. According
to McCubbin, the information redacted from these records relates to “security protocols, including
detainee distribution among the camps, and protocols related to identifying and dealing with
detainees who claim to be on hunger strike.” Id. Plaintiffs challenge only DOD’s redactions of
information in Record 257. See Pls.’ Mem. at 38.
Exemption 7(E) allows an agency to withhold information “compiled for law enforcement
purposes” if its release “would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement investigations or
39
prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”
5 U.S.C. § 552(b)(7)(E). To properly invoke this exemption, the agency “must [also] show that
the records contain law-enforcement techniques and procedures that are generally unknown to the
public.” Elkins v. Fed. Aviation Admin., 134 F. Supp. 3d 1, 4 (D.D.C. 2015) (internal quotation
marks omitted).
Record 257 is a memorandum that compares Bureau of Prisons (“BOP”) and DOD policies
for the management of hunger strikers and enteral feeders and “describes in minute detail the
procedures to be followed by guard personnel to confirm if a detainee is on hunger strike, and, if
so, the steps that need to be taken, including the specific techniques used for enteral feeding.”
McCubbin Decl. ¶ 76. As a threshold matter, Plaintiffs do not dispute that these records have been
“compiled for law enforcement purposes.” Cf. Pls.’ Mem. at 38; McCubbin Decl. ¶ 75. Instead,
Plaintiffs assert that the redactions in Record 257 are inappropriate because DOD has not shown
that the withheld information constitutes techniques and procedures or guidelines used “for law
enforcement investigations or prosecutions” within the meaning of the statutory text. See Pls.’
Mem. at 39–40. In Plaintiffs’ view, the “force-feeding procedures” used at JTF-GTMO bear no
relation to any law enforcement investigation or prosecution, and therefore cannot be withheld
under Exemption 7(E). See id. at 40–41.
Contrary to Plaintiffs’ assertion, Exemption 7(E) has not been limited to “techniques and
procedures” or “guidelines” that directly relate to a particular investigation, prosecution, or crime.
Instead, courts have widely approved of agency’s invocations of Exemption 7(E) to shield from
disclosure law enforcement techniques, procedures, or guidelines that, if disclosed, would raise
security concerns or render the withheld law enforcement techniques or guidelines ineffective.
See, e.g., Jimenez v. FBI, 938 F. Supp. 21, 30 (D.D.C. 1996) (approving BOP’s invocation of
40
Exemption 7(E) to withhold the gang validation criteria used by BOP to classify gang members
because disclosure of the information “could enable inmates to circumvent detection as gang
members” and “hamper the effectiveness of law enforcement officers”); Jordan v. U.S. Dep’t of
Justice, 668 F.3d 1188, 1201 (10th Cir. 2011) (approving BOP’s invocation of Exemption 7(E) to
redact portion of inmate’s psychological records that advised all staff regarding appropriate actions
to take with regard to the inmate—“a dangerous prisoner with a history of threatening staff with
bodily harm”—because “knowing BOP strategy could make it easier for [the prisoner] to subvert
it”).
The recent case of Pinson v. Department of Justice is instructive on the applicability of
Exemption 7(E) to the information redacted in Record 257. See 313 F. Supp. 3d 88 (D.D.C. 2018).
In Pinson, BOP invoked Exemption 7(E) to withhold from disclosure, among other information, a
“description of the Bureau’s calculated use of force technique and a photo of the technique being
used,” as well as “recommendations for improving future uses of force and corrective measures to
be taken for errors identified in the use of force under review.” Id. at 116. The court agreed with
BOP’s assertion that releasing this information—which detailed “equipment to be used during the
use of force technique, which staff members were to perform what role during the use of force,
and steps to be taken if the inmate remained noncompliant”—would “allow inmates to target
certain staff or equipment during a use of force or anticipate what steps staff would be taking based
on their noncompliance, thus allowing circumvention and rendering the procedures ineffective.”
Id. at 117 (internal quotation marks omitted). The court therefore granted summary judgment to
BOP as to its use of Exemption 7(E) to withhold this information. See id. at 118.
In this case, the information withheld from Record 257 details the manner in which guards
are to engage in the “inherently contentious and confrontational process of enteral feeding” of JTF-
41
GTMO detainees. Def.’s Reply at 36. As in Pinson, the information redacted from Record 257
falls within Exemption 7(E)’s ambit because its disclosure would raise significant security
concerns for those guards implementing the enteral feeding procedures, thus rendering the “law
enforcement techniques and procedures” and “guidelines” spelled out in the document ineffective.
DOD has also sufficiently shown that the information in Record 257 is “not generally
known to the public” and that its disclosure would pose a reasonable risk of circumvention of the
law. 11 Plaintiffs’ arguments to the contrary are unavailing. First, Plaintiffs suggest that because
BOP policies for managing hunger strikers and enteral feeders are available to the public, the
redacted information in Record 257 is effectively public as well because DOD’s “hunger strike
policy and procedures mirrors those followed by [BOP] to the maximum extent possible.” Pls.’
Mem. at 41–42 (quoting Production Pt. 1 at Bates 257). But the information withheld from Record
257 details the differences between BOP policy and the policy employed at JTF-GTMO, see
McCubbin Decl. ¶ 76; the policies and procedures in force at JTF-GTMO for hunger strikes and
enteral feeding thus are not publicly available. Plaintiffs cannot seek disclosure of JTF-GTMO’s
policies based on another agency’s public disclosure of its policies. Cf. Mobley v. CIA, 806 F.3d
568, 583 (D.C. Cir. 2015) (“Disclosure by one federal agency does not waive another agency’s
right to assert a FOIA exemption.”). Second, the court readily credits DOD’s explanation that
disclosure of information about the enteral feeding policy in place at JTF-GTMO could reasonably
be expected to “create a risk of circumvention,” see Pinson, 313 F. Supp. 3d at 117, because
11
The court assumes, without deciding, that Exemption 7(E)’s requirement that disclosure of the withheld information
“could reasonably be expected to risk circumvention of the law” applies to “techniques and procedures for law
enforcement investigations or prosecutions,” as it does to “guidelines.” See Citizens for Responsibility & Ethics in
Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1102 n.8 (D.C. Cir. 2014) (acknowledging, but declining to weigh in
on, “disagreement” as to “whether the ‘risk of circumvention’ requirement applies to records containing ‘techniques
and procedures’ or only to records containing ‘guidelines’”). But see Allard K. Lowenstein Int’l Human Rights Project
v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010) (“The sentence structure of Exemption (b)(7)(E) indicates
that the qualifying phrase (‘if such disclosure could reasonably be expected to risk circumvention of the law’) modifies
only ‘guidelines’ and not ‘techniques and procedures.’”).
42
detainees’ improved understanding of “how the guard force operates and government strategies
for ensuring the security of detention operations . . . could be used to evade those protocols,”
McCubbin Decl. ¶ 77. See Pinson, 313 F. Supp. 3d at 117 (disclosing information about BOP use
of force techniques “could reasonably be expected to create a risk of circumvention by revealing
the techniques involved in the use of force and the effectiveness of such techniques, rendering
them ineffective in future uses”); see also Shapiro v. U.S. Dep’t of Justice, 893 F.3d 796, 800 (D.C.
Cir. 2018) (explaining that to invoke Exemption 7(E), an agency “only needs to demonstrate
logically how the release of the requested information might create a risk of circumvention of the
law”—“a relatively low bar” (cleaned up)).
Accordingly, the court is satisfied that DOD has met its burden of providing a logical
explanation of how disclosing the information withheld under Exemption 7(E)—including the
information withheld from Records 263, 270, and 291—could present a risk of circumvention of
the law. See Shapiro, 893 F.3d at 801. The court therefore grants summary judgment in favor of
Defendant as to its Exemption 7(E) withholdings.
F. Segregability
Finally, the court turns to evaluate the segregability of the records produced to Plaintiffs.
The court will address only Defendant’s segregability determination as to the information that was
properly withheld pursuant to section 1.4(g) of EO 13,526 and Exemptions 3, 6, and 7(E). See
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“If the district court
approves [a] withholding without . . . a finding [as to segregability], remand is required even if the
requester did not raise the issue of segregability before the court.”). The court will address DOD’s
43
segregability determination with respect to the remaining withholdings, as necessary, after DOD
is given an opportunity to supplement its declarations.
Because “[t]he focus of the FOIA is information, not documents, . . . an agency cannot
justify withholding an entire document simply by showing that it contains some exempt material.”
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA
therefore requires that “[a]ny reasonably segregable portion of [the] record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). An agency must provide a “detailed justification” and not just make “conclusory
statements” to support its segregability determination. Mead Data Cent., 566 F.2d at 261.
Agencies, however, “are entitled to a presumption that they complied with the obligation to
disclose reasonably segregable material,” which can be overcome by contrary evidence produced
by the requester. Sussman, 494 F.3d at 1117.
The court is satisfied that the agency has complied with its segregability responsibility as
to the information withheld pursuant to section 1.4(g) of EO 13,526 and Exemptions 3, 6, and
7(E). The agency’s declaration affirms that the pages produced to Plaintiffs “were reviewed line-
by-line to identify information exempt from disclosure for which a discretionary waiver of
exemption could be applied.” McCubbin Decl. ¶ 78; see also Droz Decl. ¶ 8 (explaining that
Records 189, 201, and 251 “were reviewed line-by-line to identify information exempt from
disclosure” and that “[e]very effort was made to segregate releasable material from exempt
material”). Indeed, the production itself is indicative of the line-by-line parsing accomplished by
Defendant: nearly all of the responsive records produced to Plaintiffs are redacted only in part.
See Citizens for Responsibility & Ethics in Wash., 160 F. Supp. 3d at 245 (finding that agency met
its segregability burden of proof by submitting detailed Vaughn index and agency affidavit that
44
affirmed “line-by-line segregability review” and because at least some of the responsive
documents were released in part). Moreover, the court has reviewed in camera a sampling of the
documents produced to Plaintiffs; that review resulted in no reason for the court to question
whether DOD complied with its obligation to disclose reasonably segregable material. The court
therefore concludes that DOD complied with its segregability responsibility as to the information
withheld pursuant to section 1.4(g) of EO 13,526 and Exemptions 3, 6, and 7(E).
V. CONCLUSION AND ORDER
For the reasons set forth above, the court grants in part and denies in part Defendant’s
Motion for Summary Judgment, ECF No. 18, and Plaintiffs’ Motion for Summary Judgment, ECF
No. 19.
1. Defendant’s Motion is granted as to: (a) the adequacy of the search; (b) withholdings
under Exemption 1, section 1.4(g) of Executive Order 13,526; (c) withholdings under
Exemption 3; (d) withholdings under Exemption 6; and (e) withholdings under
Exemption 7(E).
2. Defendant’s Motion is denied as to: (a) withholdings under Exemption 5; and (b)
withholdings under Exemption 1, section 1.4(a), 12 (b), (c) of Executive Order 13,526.
Defendant shall supplement its declarations to address the deficiencies identified in this
Memorandum Opinion and may also submit to the court a classified ex parte
declaration to support its withholdings.
3. Plaintiffs’ Motion is granted insofar as DOD has withheld officially acknowledged
information as to: (a) the May 15, 2013 tally of hunger strikers and tube-fed detainees
12
The court found, however, that the following categories of Exemption 1, section 1.4(a) withholdings were properly
withheld: (1) records pertaining to detainee conduct, infra at IV.B.1.a; (2) records pertaining to “an order affecting
female guards,” infra at IV.B.1.d; and (3) records pertaining to detainee-related proceedings in federal court and
military commissions, infra at IV.B.1.e.
45
at JTF-GTMO, and (b) the June 13, 2015 email describing a detainee transfer to Oman
in Record 207, but is denied in all other respects.
The parties shall meet and confer and no later than October 10, 2018, propose a schedule
for an additional round of summary judgment briefing.
Dated: September 27, 2018 Amit P. Mehta
United States District Judge
46