Khatchadourian v. Defense Intelligence Agency ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RAFFI KHATCHADOURIAN
Plaintiff,
Case No. 1:16-cv-311-RCL/DAR
Vv.
DEFENSE INTELLIGENCE AGENCY,
et al.,
Defendants.
MEMORANDUM OPINION
This action arises from the production and retention of records pursuant to plaintiff Raffi
Khatchadourian’s request for disclosure of records held by the Defense Intelligence Agency
(“DIA”) under the Freedom of Information Act (“FOIA”). Defendants DIA and Department of
Defense (“DOD”) filed for summary judgment (ECF No. 64) in August of 2018. In April of
2019, Mr. Khatchadourian filed a summary judgment motion (ECF No. 78) as well as a motion
for in camera review (ECF No. 79). |
Plaintiff argues that (1) DIA narrowly construed his request in contravention of FOIA,
(2) DIA’s search was inadequate; (3) defendants’ Vaughn Index and declarations are facially
inadequate and conclusory; (4) defendants’ inconsistencies and conclusory justifications for
withholdings under Exemption 1 preclude summary judgment in defendants’ favor; (5)
_ defendants’ inconsistencies and conclusory justifications for withholdings under Exemption 3
preclude summary judgment in defendants’ favor; (6) defendants do not demonstrate that the
deliberative process applies to any of DIA’s Exemption 5 withholdings; (7) defendants’
conclusory justifications for DIA’s Exemption 7 withholdings preclude summary judgment in
favor of defendants, and (8) defendants do not meet their burden to show that they properly
segregated non-exempt information from otherwise exempt records. As a remedy for these
alleged problems, plaintiff moves for in camera review of a select number of records, which
defendants argue is inappropriate.
The Court referred all pending motions to Magistrate Judge Deborah A. Robinson in
February of 2018. In February of 2020, Magistrate Judge Robinson issued a Report &
Recommendation (ECF No. 87) finding that (1) DIA properly construed the scope of Plaintiff's
request; (2) DIA’s search was adequate; (3) defendants’ Vaughn Index and declarations are not
facially inadequate; (4) defendants demonstrate that all records withheld under Exemption 1
contain classified information, but do not adequately explain how DIA segregated non-exempt
information from such records; (5) defendants demonstrate that some records include
information properly withheld under Exemption 3, but do not adequately explain how DIA
segregated non-exempt information from such records; (6) defendants do not demonstrate that
the deliberative process applies to any of DIA’s Exemption 5 withholdings, nor do defendants
adequately explain how DIA segregated non-exempt information from such records, and (7) DIA
properly invoked Exemption 7 for the sole record it withheld under this exemption. Magistrate
Judge Robinson recommended that defendants’ motion for summary judgment be granted as to
(1) the adequacy and scope of DIA’s search for responsive records; (2) the overall adequacy of
defendants’ Vaughn Index and associated declarations; and (3) defendants’ Exemption 7
withholdings. She recommended that plaintiff's motion for summary judgment be denied as to
those issues but granted as to all public news article records withheld under Exemption 3 and 10
U.S.C. § 424 (meaning that defendants’ motion for summary judgment should be denied as to
that issue). The report further recommends denying without prejudice defendants’ motion for
summary judgment as to (1) defendants’ exemptions 1, 3, and 5 withholdings to allow
supplementation of the record with respect to segregability; (2) defendants’ Exemption 3
withholdings to allow supplementation of the record with respect to V-106 and all records
identified as lacking under 10 U.S.C. § 424; and (3) defendants’ Exemption 5 withholdings to
allow supplementation of the record with respect to the deliberative process privilege. Finally,
Magistrate Judge Robinson recommended that plaintiff's motion for in camera review be
denied.!
Upon consideration of the underlying motions, the report, plaintiffs objection to the
report (ECF No. 89), defendants’ response to that objection (ECF No. 90), and plaintiff's reply
(ECF No. 91), the Court will adopt the report in its entirety. Plaintiff's objections are without
merit. Defendants never filed any objection to the report, and they ask the Court to adopt the
report in its entirety. As explained below, the Court will GRANT IN PART AND DENY IN
PART plaintiff's and defendants’ motions for summary judgment. The Court will GRANT
defendants’ motion for summary judgment and DENY plaintiffs motion for summary judgment
with respect to (1) the adequacy and scope of DIA’s search for responsive records; (2) the overall
adequacy of defendants’ Vaughn Index and associated declarations; and (3) defendants’
Exemption 7 withholdings. With respect to Exemption 1, the Court will ORDER defendants to
supplement the record regarding the segregability analysis. With respect to Exemption 3, the
Court will ORDER defendants to supplement the record with respect to V-106 and all other
records withheld under 10 U.S.C. § 424 on the basis of “revealing DIA functions.” The Court
will further ORDER defendants to supplement the record regarding the Exemption 3
segregability analysis. With respect to Exemption 5, the Court will ORDER defendants to
supplement the record regarding the deliberative process privilege. The Court will further
' District Court judges apply the de novo standard of review to any part of a Magistrate Judge’s report to which there
has been a proper objection. Fed. R. Civ. P. 72(b)(3).
3
ORDER defendants to supplement the record regarding the Exemption 5 segregability analysis.
Finally, the Court will DENY plaintiff's motion for in camera review.
BACKGROUND
Plaintiff Raffi Khatchadourian is a journalist seeking to report on the release of United
States military secrets by the website Wikileaks. Complaint (ECF No. 1) {| 4. Defendant DIA, as
a component of DOD, has a mission “to collect, analyze, and provide intelligence on the military
capabilities of foreign military forces[.]” Declaration of Alesia Y. Williams in Support of
Defendants’ Motion for Summary Judgment (ECF No. 64-1) 43. On July 28, 2010, the Secretary
of Defense convened the Information Review Task Force (“IRTF”) to conduct a damage
assessment of one of the largest unauthorized leaks of U.S. government information in history.
Id. 45. In its final report (completed on June 15, 2011), the IRTF provided a detailed analysis of
the U.S. government information systems impacted by the leak. Jd. This assessment contained
classified information, including (among other things) highly specific and detailed information
regarding military plans and operations, clandestine intelligence relationships with other
countries, intelligence sources and methods, and an assessment of the potential harm that the
disclosures posed to U.S. and coalition forces.
On February 16, 2012, plaintiff submitted a FOIA request to DIA seeking:
1) Any documents relevant to the creation, scope, structure, and responsibilities of the
Information Review Task Force...
2) Any conclusions, reports, or assessments (provisional and/ or final) that have been
generated by the IRTF.
3) Records of all previous FOIA requests for information pertinent to the IRTF.
Khatchadourian Declaration Exhibit 1 (ECF No. 78-5) at 4.
On September 12, 2013, DIA identified six records responsive to plaintiff's request.”
Defendants’ Statement of Material Facts (ECF No. 64) 7 3. Of the six records, one was withheld
in full, two were released in full, and three were released in part. /d. Plaintiff appealed DIA’s
initial response on November 12, 2013. Jd. ¥ 5. Plaintiff filed his complaint on February 22,
2016. See ECF No. 1. Between July 18, 2016 and October 25, 2016, DIA provided additional
responsive records in several batches in response to plaintiff's 2013 appeal. ECF No. 64-1 4 13.
During the pendency of this litigation, in response to plaintiff's assertion that he expected
the first prong of his request to have included a search of DIA’s email system, DIA began to
design a search protocol to locate responsive email records. Jd. §{ 15-16. DIA and plaintiff
worked together through several rounds of searches, narrowing the scope of potentially
responsive emails to be reviewed from 1.8 million to 118,000, then from 118,000 to 18,000. Jd.
qq 15-18. DIA then used two 300-email samples to determine the extent to which the 18,000
emails contained responsive records. Jd. {{ 15-19, 21. DIA indicated that 2-4% of the emails
would be responsive and nonduplicative. /d. §§ 20, 22. DIA abandoned this process in mid-2017
and elected to use its own, unilaterally designed email search protocol. Jd. ¢ 25. This protocol
was limited to six search terms, searched within the email accounts of six people, and was
restricted to a thirty-six-day period during which the IRTF was being “stood up.” Jd. {{] 27-29.
DIA also searched through “a newly identified computer database.” Jd. § 30. This search yielded
potentially responsive records consisting of 1,750 emails and 650 records from the database. Jd.
{ 31. Upon processing, DIA indicated that only five of those emails were responsive with an
additional seven responsive attachments. ECF No. 50 at 3.
2 The Court will only include the portions of Defendants’ Statement of Material Facts or the Williams Declaration
which plaintiff does not dispute. See Plaintiff's Combined Statement of Material Facts as to Which There Is No
Genuine Issue and Response to Defendants’ Statement of Material Facts (ECF No. 78-2).
5
Plaintiff also made a second request to DIA on October 20, 2015 seeking all processing
notes and communications regarding his first request and his appeal of DIA’s initial response to
it. ECF No. 64-1 7 10. DIA answered plaintiff's second request on June 16, 2016, identifying
thirty-three records, twelve of which were released in full, and twenty-one of which were
released in part. Jd. { 12.
Including disclosures made after the litigation commenced, DIA has identified 850
responsive records, totaling over 5,000 pages. See id. at 38-809 (“Vaughn Index”); Amended
Vaughn Index (ECF No. 75-1) (updating Vaughn Index for “Part 2” only). Of the responsive
records which DIA identified, the agency withheld portions of or the entirety of certain records
under Exemptions 1, 3, 5, 6, and 7. See Vaughn Index at 809; Supplemental Declaration of
Alesia Y. Williams (ECF No. 84-1) 7] 32-33.
LEGAL STANDARDS
I. FOIA
FOIA provides for the disclosure of certain government records to anyone who requests
them. 5 U.S.C. § 552. “FOIA mandates a ‘strong presumption in favor of disclosure.’” Am. Civil
Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)). As a result, “agencies may withhold
only those documents or portions thereof that fall under one of nine delineated statutory
exemptions.” Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C.
§ 552(b)). An agency withholding any material pursuant to an exemption under FOIA “bears the
burden of showing that withheld material falls within the asserted exemption[.]” Jd. (citing 5.
U.S.C. § 552(a)(4)(B)).
II. Summary Judgment
A court may grant summary judgment where “there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.” McKinley v. Bd. of
Governors of the Fed. Reserve Sys., 647 F.3d 331, 335 (D.C. Cir. 2011). Courts typically decide
FOIA cases on motions for summary judgment. See Defenders of Wildlife v. U.S. Border Patrol,
623 F. Supp. 2d 83, 87 (D.D.C. 2009). Where the action is challenging an agency’s withholding
of certain records, “the agency is entitled to summary judgment if no material facts are in dispute
and if it demonstrates that each document that falls within the class requested . . . is wholly
exempt from [FOIA’s] disclosure requirements.” Shapiro v. Dep't of Justice, 34 F. Supp. 3d 89,
94 (D.D.C. 2014). An agency will meet its burden if any combination of its Vaughn Index,
affidavits, or declarations “describe the justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically falls within the claimed exemption,
and are not controverted by either contrary evidence in the record nor by evidence of agency bad
faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted).
Additionally, a court “must make specific findings” as to whether any “reasonably segregable
portion of a record” is non-exempt and releasable “[b]efore approving the application of a FOIA
exemption{.]” Sussman y. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (citing 5
U.S.C. § 552(b)).
ANALYSIS
I, Adequacy of DIA’s Search
An agency that has received a FOIA request must “conduct a search reasonably
calculated to uncover all relevant documents.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.
Cir. 1990) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983))
(noting that the actual recovery of every existing document is not significant; the relevant issue is
“whether the government’s search for responsive documents was adequate”). An adequate search
is one that is reasonable, and the agency must demonstrate that its search was reasonable
“beyond material doubt.” Jd. For the court to grant an agency’s motion for summary judgment,
“the agency must show that it made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (holding that the agency is not
required to search every record system, but must search the systems “likely to turn up the
information requested”). “There is no requirement that an agency search every record system.”
Id. An agency is, however, required to “explain in its affidavit that no other record system was
likely to produce responsive documents.” Jd. To meet this standard, an agency can produce “[a]
reasonably detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exist) were
searched.” Reporters Comm. for Freedom of Press v. Fed. Bureau of Investigation, 877 F.3d
399, 402 (D.C. Cir. 2017) (quoting Oglesby, 920 F.2d at 68). An agency meeting this burden is
“accorded a presumption of good faith, which cannot be rebutted by purely speculative claims
about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. S.E.C., 926
F.2d 1197, 1200 (D.C. Cir. 1991) (citation and quotation marks omitted).
Plaintiff challenges the adequacy of DIA’s search in three ways.” First, plaintiff argues
that DIA failed to construe plaintiff's first request liberally. See ECF No. 78-1 at 22-24. Second,
3 In his motion for summary judgment, plaintiff originally asserted a fourth way—that DIA “does not aver that all
files likely to contain responsive materials were searched in response to Plaintiff's FOIA requests.” ECF No. 78-1 at
9. Defendants subsequently filed a supplemental declaration in which DIA avers that all such files were searched.
See ECF No. 84-1 4 10. Plaintiff does not argue in his Reply that this is insufficient, and the Court has no basis to
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plaintiff argues that DIA’s response to the first request was inadequate because DIA did not
search all locations likely to contain responsive records. See id. at 12-18. Third, plaintiff argues
that DIA overlooked and failed to pursue clear leads which would have led to responsive records.
See id. at 18-22. Defendants maintain that DIA has searched all locations likely to contain
responsive, nonduplicative records. See ECF No. 84-1 § 10.
A. Defendants Properly Construed Plaintiff's Request.
Plaintiff argues that DIA failed to meet its “duty to construe a FOIA request liberally.”
Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995);
ECF No. 78-1 at 22-24. If “an agency becomes reasonably clear as to the materials desired,” the
agency must provide them even if the request is not a “model of clarity.” Truitt, 897 F.2d at 544;
see also LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003) (holding
that where requester sought records “pertaining to” a matter while listing specific records, the
agency should not have limited its search to only the specific records). But see Kowalczyk v. U.S.
Dep’t of Justice, 73 F.3d 386, 388-89 (D.C. Cir. 1996) (holding that where requester sought “all
records in agency files,” the agency was not obliged to search other offices).
In response to plaintiff's first request, DIA interpreted the first category of records
seeking “documents relevant to the creation, scope, structure, and responsibilities” of the IRTF to
mean “foundational documents” of the IRTF including, inter alia, “mission statements, mission
requirements, leadership chain of command, organizational charts, resourcing, and processes[.]”
ECF 64-1 9 6. DIA interpreted the second category of records seeking “[a]ny conclusions,
reports, or assessments” by the IRTF “as a relatively narrow request for documents . . . such as
conclude that defendants have not met this requirement under FOIA. See generally Combined Reply Memorandum
of Law in Support of Plaintiffs Motion for Summary Judgment and/or Partial Summary Judgment and Plaintiff's
Motion for Jn Camera Review (ECF No. 86).
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memoranda, desk notes, briefings, and interim assessments” of the IRTF but not of any
constituent members of IRTF. Jd. DIA interpreted the third category of records to include
administrative records related to past FOIA requests. Jd. Plaintiff notes that defendants
themselves characterize the search of the second category of records as “narrow” and points to
the fact that DIA found that five of 1,750 emails were responsive as evidence of this narrow
reading. See id.
Magistrate Judge Robinson found that defendants properly construed plaintiff's request,
explaining:
While the agency did interpret Plaintiff's request for reports “as a relatively narrow
request for documents,” this was a reasonable interpretation of a narrow request for
“lalny conclusions, reports, or assessments (provisional and/ or final) that have
been generated by the IRTF.” Williams Declaration {| 6; Initial Request (emphasis
added). It was reasonable to interpret this as a request for records held by the IRTF
itself rather than any constituent member. See Kowalczyk, 73 F.3d at 389 (“If the
agency may reasonably interpret the request to be for records in a specific office or
offices only—the office to which the request was sent or any office(s) named in the
request—then upon discovering that it has other responsive records elsewhere, it
may reasonably infer that the requester already has those records, is seeking them
through a separate request, or, for whatever reason, does not want them.”). The
agency reasonably interpreted the first prong of the request differently because
Plaintiff requested “[a]ny documents relevant to” the scope and creation of the
IRTF, which would necessarily involve a search of more than just records generated
by the IRTF. Plaintiff limited the second prong of his request to records “generated
by the IRTF.” Just as it was reasonable for the agency in Kowalczyk to interpret a
request for agency records as a limited inquiry, DIA’s interpretation here is
reasonable. Moreover, while the percentage of responsive records produced is low,
the undersigned cannot ascribe that result to any unduly narrow interpretation of
the first prong of the initial request. DIA’s interpretation of the scope of both
prongs of Plaintiff's first request are therefore reasonable.
ECF No. 87 at 9-10.
The Court agrees with this analysis. Plaintiff objects, maintaining that DIA misconstrued
his request. See ECF No. 89 at 4-11. Plaintiff is incorrect. The first prong requested “[a]ny
documents relevant to” the scope and creation of the IRTF, whereas the second request was more
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limited to records “generated by the IRTF.” ECF No. 78-5. The difference in wording would lead
a reasonable person to conclude that the scope of the first prong is broader than the scope of the
second prong. It is true that agencies have a “duty to construe a FOIA request liberally.” Nation
Magazine, 71 F.3d at 890. This does not, however, mean that agencies are prohibited from
reasonably interpreting FOIA requests. Plaintiff could have worded his request however he
wanted, and he chose to word it in such a way that strongly suggests a difference between the
scope of the first and second prongs. Therefore, the Court finds that defendants properly
construed his request.
B. DIA Conducted an Adequate Email Search for Records Relevant to the Creation,
Scope, Structure, and Responsibilities of the IRTF.
In conducting a search for emails in response to the first prong of plaintiff's initial
request, DIA initially worked with plaintiff to craft search terms and other parameters. See ECF
No. 64-1 9§ 14-24. The first effort yielded 1.8 million potentially responsive emails containing
the words “IRTF” or “Information Review Task Force.” /d. J 15. A second effort with a cut-off
date of June 5, 2013 yielded 118,500 potentially responsive emails. Jd. DIA conducted a further
search which was restricted to emails created between May 1, 2010 and June 5, 2013 with more
specific search terms beyond “IRTF” or “Information Review Task Force.” Jd. § 17. From this
third search, which produced over 18,000 emails, DIA conducted tests to determine whether a
sample of the emails would produce emails responsive to plaintiff's request. Jd. {J 18-20. DIA
indicated that two samples revealed, respectively, that 2%-4% of emails were responsive and
nonduplicative. Jd. {4 20, 22. DIA processed these responsive records, but in light of the low
response rate, it sought an alternative search protocol without plaintiff's involvement. Jd. 20,
22, 25. Through interviews with people familiar with the origins of the IRTF, DIA concluded
11
that the best means of identifying responsive emails was to search the email repositories for six
“key players” involved with the IRTF’s founding. Id. {{] 25-29. The search was further limited to
particular search terms for emails created between July 25, 2010 and August 30, 2010, dates
upon which DIA believed the foundation of the IRTF was laid. Jd. [J 28-29. DIA further
searched “a newly identified computer database” with these same terms. Jd. { 30. This search
resulted in approximately 1,750 potentially responsive emails uncovered from searching the
email repositories and approximately 650 potentially responsive records from the database. Jd. {
31. DIA subsequently processed these records. Id.
Plaintiff argues that DIA must review all potentially responsive emails through its
original process and requests that the court order DIA to review the 118,500 emails produced
through the second search. ECF No. 78-1 at 14. Having identified potentially responsive records,
plaintiff argues that DIA cannot offer a “flat refusal” to search them. Jd. Further, plaintiff argues
that the time period of July 25, 2010 to August 30, 2010 was unduly narrow. Jd. at 17-18.
Magistrate Judge Robinson found that DIA conducted an adequate email search for
records relevant to the creation, scope, structure, and responsibilities of the IRTF, explaining:
[T]he agency’s email search was “reasonably calculated to uncover all relevant
documents.” Truitt, 897 F.2d at 542. DIA was tasked with finding “documents
relevant to the creation, scope, structure, and responsibilities of the Information
Review Task Force[.]” See Initial Request. As previously discussed, DIA properly
interpreted this as a request for foundational documents related to the IRTF. See
Williams Declaration J 6. Defendants exhaustively detail each step of how they
determined that its search would be “likely to turn up the information requested.”
Oglesby, 920 F.2d at 68. Through emails with six DIA personnel, DIA determined
who would be likely to have produced or received such records, the time frame
during which the records were likely created, and what search terms would reveal
responsive records. See Williams Declaration {| 25-29. It was reasonable to limit
the search to those most involved with the creation of the IRTF because those
people—instead of all DIA employees—would be most likely to possess responsive
records. Jd 927. It was also reasonable to limit the time frame to between July
25, 2010 and August 30, 2010 because that is when decisions about the IRTF’s
creation were made. Jd, 428. The search terms, which Plaintiff does not appear to
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directly challenge, were reasonable because they included, inter alia, the initial
working name of the IRTF and words that relate to the founding of the IRTF, such
as “scope.” Id. § 29. Based on the level of detail that DIA provides and the
reasonableness of DIA’s search, DIA is accorded a presumption of good faith. See
SafeCard Servs., 926 F.2d at 1200.
In an effort to overcome this presumption, Plaintiff points to DIA’s previous
searches, which revealed considerably more potentially responsive records. See
Plaintiff's Memorandum at 14. Broader search criteria may have produced more
responsive records, but this is “speculative.” SafeCard Servs., 926 F.2d at 1200.
DIA searched the same email repository in its final effort as it did in its previous
efforts, just with tailored criteria that were more likely to produce responsive
records. In addition, DIA searched a “database.” Williams Declaration J 30. A
theoretical needle in a considerable haystack is insufficient to rebut a presumption
of good faith. See Schrecker v. U.S. Dep't of Justice, 217 F. Supp. 2d 29, 35
(D.D.C. 2002) (holding that, where “agency reasonably chose to search the most
likely place responsive documents would be located[,]” requiring a “search through
millions of documents is not reasonable and therefore not necessary”). DIA’s
search of emails with respect to the first prong of Plaintiff's initial request was
reasonable and, as a result, adequate.
ECF No. 87 at 11-13.
The Court concurs with this analysis. Plaintiff objects, arguing that the possibility of
more responsive records being produced was not merely speculative. See ECF No. 89 at 6. DIA’s
search methodology, however, was reasonably calculated to uncover the foundational documents
for the IRTF, and it was reasonable to hone in on the emails of those most involved with the
creation of the IRTF and on the time frame when decisions about the IRTF’s creation were
made. The search terms were also appropriate. Plaintiff argues that DIA’s refusal to process the
approximately 118,500 emails identified as potentially responsive “smacks of bad faith.” ECF
No. 89 at 5. On the contrary, the agency is afforded a presumption of good faith, and it is
plaintiff's burden to overcome that presumption. He has been completely unable to do so.
Agencies are only required to process records that are actually responsive to FOIA requests. In
their reply to plaintiff's objection, defendants cite recent case law wherein the Court rejected the
notion that an agency must review “every document that resulted from” broad search terms.
13
Schaerr v. U.S. Dep’t of Justice, 2020 U.S. Dist. LEXIS 13772 at *57-58 (D.D.C. Jan. 28, 2020)
(explaining that the Department of State did not need to search through every one of the
thousands of documents that were only potentially responsive). Essentially, DIA did what FOIA
requires of it, and neither Mr. Khatchadourian nor this Court can force it to do more than what
FOIA mandates.
C. DIA Did Not Need to Conduct an Email Search for Conclusions, Reports, or
Assessments Generated by the IRTF.
Plaintiff also faults DIA for not searching through its email repository in response to the
second prong of plaintiff's initial request. See ECF No. 78-1 at 16-17. Magistrate Judge
Robinson found that DIA did not need to conduct such a search, stating that because DIA’s
interpretation of the second prong of plaintiff's first request was reasonable, “DIA did not need
to search through its email repositories to adequately provide ‘conclusions, reports, or
assessments (provisional and/ or final) that have been generated by the IRTF[.]’ Initial Request.”
ECF No. 87 at 13. Magistrate Judge Robinson further explained:
Defendants maintain that the databases maintained by the IRTF and DIA “were
intended to be the repositories for all products generated by the IRTF{.]”
Supplemental Williams Declaration § 18. Because Plaintiff sought records
“generated by the IRTF,” it was reasonable to conduct a search of these databases
without a search of the email repositories of the IRTF’s constituent members. See
id. Plaintiff points to twice daily “Email briefs” that were produced by the IRTF
as evidence that it was unreasonable for DIA to rely solely on its databases. See
Plaintiff's Memorandum at 17. Defendants maintain, however, that these email
briefs were actually in the database and included in the Vaughn Index. See
Supplemental Williams Declaration { 13. While Plaintiff characterizes this as an
effective concession that emails are likely to contain responsive records, Plaintiff
fails to rebut the presumption of good faith accorded here. The fact that emails
were part of the IRTF databases indicates that the databases were likely to contain
responsive records, not that DIA’s email repositories contained any further
responsive records in response to the second prong of Plaintiff's initial request.
ECF No. 87 at 13.
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The Court agrees with this analysis. Plaintiff objects, continuing to argue that DIA
needed to search individuals’ email accounts. See ECF No. 89 at 8. As previously explained,
however, the distinction between the wording of plaintiff’s first and second requests made DIA’s
interpretation reasonable. In light of the wording, DIA did not need to conduct a broader search
than it did, and DIA acted reasonably.
D. DIA Did Not Fail to Follow Up on Clear Leads.
Plaintiff argues that the search was inadequate because DIA ignored “clear and certain
leads” that would have led to responsive records. See Kowalczyk, 73 F.3d at 389. An agency’s
duty is to “conduct a search reasonably calculated to uncover all relevant documents.” Jd.
(quoting Truitt, 897 F.2d at 542). This duty extends to “leads that emerge during the inquiry[,]”
not just those leads identifiable at the outset of a search. Campbell v. U.S. Dep’t of Justice, 164
F.3d 20, 28 (D.C. Cir. 1998). It is “rare” that “tan agency record contains a lead so apparent that
the [agency] cannot in good faith fail to pursue it.” Kowalczyk, 73 F.3d at 389. To show that a
search ignored a clear lead, a FOIA plaintiff must meet an “exacting standard” in overcoming “a
presumption of good faith which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” Reporters Comm. for Freedom of Press, 877
F.3d at 407; see also Negley v. Fed. Bureau of Investigation, 169 Fed. App’x. 591, 594 (D.C.
Cir. 2006).
Plaintiff maintains that DIA ignored clear leads in failing to search (1) the offices or files
of senior IRTF leadership, (2) Intellipedia, “ta Wikipedia-like online platform” for government
agencies, (3) IRTF’s electronic request for information (“RFI”) portal, and (4) records of their
Congressional liaison. See ECF No. 78-1 at 18-22.
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1. The Offices and Non-Email Records of IRTF Senior Leadership Are Not
Clear Leads.
Plaintiff points out that DIA did not, in its original declaration, state that it searched the
offices or files of IRTF’s senior leadership, including IRTF Director Robert Carr, IRTF Chief
Scott Liard, and IRTF Deputy Chief John Kirchhofer. See ECF No. 78-1 at 16. In response,
defendants supplemented the original declaration to reflect that DIA did, in fact, search their
emails. See ECF No. 84-1 § 14. Plaintiff still maintains that DIA should have searched “the
offices or non-email files of? IRTF’s senior leadership. ECF No. 86 at 8. Plaintiff points to three
indications that the non-email records of these individuals contain responsive, nonduplicative
records: (1) IRTF Deputy Chief Kirchhofer’s testimony during the court-martial trial of Chelsea
Manning that he received “at least 100 information papers” generated by the IRTF, (2) IRTF
Director Carr’s testimony that he “received weekly reports from the IRTF[,]” and (3) records
produced in another, related litigation that DIA did not produce to Plaintiff. /d. at 19-20 (citing
Townsend Declaration Exhibit 1, Exhibit 4 at 168 (ECF No. 78-3); ECF No. 78-2 {{ 105-106.
Magistrate Judge Robinson found that the offices and non-email records of IRTF senior
leadership are not clear leads, explaining:
IRTF Deputy Chief Kirchhofer’s testimony does not indicate that his office is likely
to contain responsive, nonduplicative records. Plaintiff overlooks the explanation
offered by DIA that these “information papers” likely have been processed already.
See Supplemental Williams Declaration § 15. IRTF used an “Information
Memorandum” format to “report developments in its review and assessment of the
impact of the unauthorized disclosure of information resulting from the leaked
documents.” Jd, This description is consistent with the testimony of IRTF Deputy
Chief Kirchhofer, who was not totally certain what these “information papers” were
formally called. See Townsend Declaration Exhibit 4, at 168 (“[I]nformation paper
I think is what we called them”). These were analyses from staff, which were part
of the “audit trail of [the IRTF’s] analytical efforts.” Jd. DIA’s explanation that
this is “more likely . . . a reference to the Information Memorandum format” is
reasonable in this context. Supplemental Williams Declaration { 15. DIA’s
representations are consistent with the fact that “well over 100 of these
memoranda” were included in the Vaughn Index. Jd. For these reasons, it is
16
“speculative” that these records are within the non-email records of the constituent
members of the IRTF. Reporters Comm. for Freedom of Press, 877 F.3d at 407.
Likewise, IRTF Director Carr’s testimony does not indicate that his office is likely
to contain responsive, nonduplicative records. In his testimony, IRTF Director Carr
merely characterized the work of the IRTF as producing “VTC briefs” or “reports”
for the Secretary of Defense. See Townsend Declaration Exhibit 1, at 18. Given
the repeated references to “we” in his testimony, his testimony speaks to work
generated by the IRTF. See id. DIA reasonably believed that this information
would be within the IRTF databases, not necessarily in IRTF Director Carr’s office.
Further, the fact that DIA produced some records to another FOIA plaintiff does
not indicate that the search was deficient or that these records are within the offices
of senior IRTF leadership. Any differences in production result from a difference
in the terms of Plaintiffs request and the request at issue in Leopold v. Dep’t of
Defense, No. 15-cv-01105-TSC. | Compare Williams Declaration { 16
(characterizing plaintiff's request in Leopold as including “[aJ]ny and all
communications” between DIA and multiple, other government agencies and
personnel) with Initial Request (limiting the second prong of the request to records
“generated by the IRTF”). The undersigned cannot ascribe any differences in
production to a failure to pursue clear leads in these circumstances.
More generally, it was not error to decline to search the offices or non-email files
of senior leadership. As previously discussed, DIA’s search was adequate for the
first and second prongs of Plaintiff's first request. Plaintiff's assertion that IRTF
staffs offices and non-email records contain further responsive records are “purely
speculative claims about the existence and discoverability of other documents”
because Plaintiff does not show which responsive, nonduplicative records or
categories of records reside in those locations. Reporters Comm. for Freedom of
Press, 877 F.3d at 407.
ECF No. 87 at 15-17. *
The Court concurs with this analysis. Plaintiff objects, continuing to argue that DIA
failed to search the offices and non-email records of IRTF senior leadership. See ECF No. 89 at
9-11. DIA searched their emails, and as Magistrate Judge Robinson determined, plaintiff
provides nothing more than pure speculation that their non-email records would result in
responsive, non-duplicative documents. Therefore, DIA was under no obligation to search office
and non-email records of IRTF senior leadership.
17
2. Intellipedia, IRTF’s Electronic RFI Portal, and Records of the IRTF
Congressional Liaison Are Not Clear Leads.
Plaintiff argues that DIA ignored three other clear leads. These three locations are
variations on the same theme. For each, Plaintiff argues that DIA’s production of some records
indicates that responsive records are likely there. DIA produced records indicating that DIA used
but did not search Intellipedia, the IRTF RFI portal, and the office of the IRTF Congressional
liaison. DIA produced records indicating that the IRTF published and edited articles on
Intellipedia, a platform on which the intelligence community shares and edits articles in a
manner similar to Wikipedia. See ECF No. 78 Exhibits 7, 11, 12. DIA also produced records
suggesting that the IRTF received and responded to requests for information from other
government entities through its electronic RFI Portal. See id., Exhibit 11. Other records indicate
that IRTF interacted with Congress through its Congressional liaison because a record produced
to plaintiff indicates that the Congressional liaison worked on “products” such as “Talking
Points” and “Q&AJ.]” See id., Exhibit 20, at 288. Defendants concede that DIA did not search
these locations, but maintain that Intellipedia, the RFI Portal, and the records of the IRTF
Congressional liaison are unlikely to contain responsive, nonduplicative records. ECF No. 84 at
10-12.
Magistrate Judge Robinson found that these were not clear leads, explaining:
For all three locations, Plaintiff fails to meet this Circuit’s “exacting standard”
because Plaintiff's assertions about the existence of responsive, nonduplicative
records in these three locations are “speculative claims[.J” Reporters Comm. for
Freedom of Press, 877 F.3d at 407. There is little doubt that these locations
contained responsive records. Still, Plaintiff does not rebut Defendants’ contention
that DIA’s email and database searches were likely to uncover the records
contained in these locations. With respect to Intellipedia and the RFI Portal,
Plaintiff relies heavily on one record to show that these locations contain responsive
records. A document partly titled “Knowledge Management Lessons Learned”
details the process by which DIA produced information through the RFI portal and
Intellipedia. See Townsend Declaration Exhibit 11, at 206, 214-20. This record
18
reveals a central process within the IRTF by which the IRTF produced information
through the RFI Portal and Intellipedia. Given the centralized nature of these
processes and the IRTF more broadly, Defendants’ suggestion that DIA’s search
protocol was likely to locate these records is convincing. See Supplemental -
Williams Declaration { 18. It is likely that these records were within the IRTF’s
central databases.
With respect to records within the files of the IRTF Congressional liaison, it is more
likely than not that DIA’s search would uncover the responsive records that
Plaintiff claims are missing. See Supplemental Williams Declaration { 20
(identifying documents titled “Talking Points”), Based on the limited information
provided by DIA and Plaintiff, it is possible that responsive, nonduplicative records
are within all three locations. However, Defendants are entitled to summary
judgment on these questions because this possibility is speculative and these leads
are not “clear and certain.” Kowalczyk, 73 F.3d at 389.
ECF No. 87 at 17-18.
The Court concurs with this analysis. Plaintiff objects, asking this Court to order
defendants to pursue those three supposedly clear leads. The Court, however, finds that these are
not clear leads. Plaintiff provides nothing more than speculation to show that searching these
locations would uncover responsive documents. Therefore, DIA is not obligated to search those
additional three locations.
Il. Defendants’ Vaughn Index and Declarations Are Not Facially Inadequate.
An agency withholding information under FOIA must provide its justifications with
“[s]pecificity.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987). Through an
agency’s Vaughn index and supporting affidavit or declaration, the agency must offer “a
relatively detailed justification, specifically identifying the reasons why a particular exemption is
relevant and correlating those claims with the particular part of a withheld document to which
they apply.” Jd. (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977)). For every record withheld, the agency “should reveal as much detail as
possible as to the nature of the document, without actually disclosing information that deserves
19
protection.” Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). A court will
find an agency’s justifications insufficient if they are “conclusory, merely reciting statutory
standards, or if they are too vague or sweeping.” King, 830 F.2d at 219 (quoting Allen v. Cent.
Intelligence Agency, 636 F.2d 1287, 1291 (D.C. Cir. 1980)).
In reviewing the adequacy of an agency’s justification, a court must “focus on the
functions of the Vaughn index, not the length of the document descriptions, as the touchstone of
[its] analysis.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006).
As a result, in certain circumstances involving voluminous records, an agency may claim
exemptions on a categorical basis. See id. at 148 (holding that a “decision to tie each document
to one or more claimed exemptions in its index and then summarize the commonalities of the
documents in a supporting affidavit is a legitimate way of serving those functions”). If an agency
does not provide document-by-document justifications, a categorical approach may still be
adequate if it serves the three purposes of the Vaughn index requirement:
[I]t forces the government to analyze carefully any material withheld, it enables the
trial court to fulfill its duty of ruling on the applicability of the exemption, and it
enables the adversary system to operate by giving the requester as much
information as possible, on the basis of which he can present his case to the trial
court.
Id. at 146 (quoting Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)).
Plaintiff argues that the Vaughn Index and Williams Declaration are “patently
insufficient” to justify nondisclosure. ECF No. 78-1 at 26. Plaintiff points to several documents
as evidence of “endemic” insufficient justifications. Jd. at 24. V-318, for example, is a 504-page
“Document Log” whose withholding is justified only by “generic recitations that are repeated
throughout Defendant’s Vaughn Index.” Jd. at 23 (citing Vaughn Index at 327). In response,
defendant maintains that the Vaughn Index adequately explains that defendant withheld V-318
20
pursuant to Exemption 1 because the Index explains that it contains “methods and processes used
in assessing the impact of the unauthorized disclosure of information resulting from leaked
documents.” ECF No. 84 at 13-14. The Index also explains that Exemption 3 applies to V-318
because the document includes information concerning “[c]omputer links from a classified
network{[.]” Jd. at 14. Defendants further emphasize that the Williams Declaration provides more
details about each withholding. See id. at 14-15.
Magistrate Judge Robinson found that the Vaughn Index and declarations are not facially
insufficient, explaining:
850 records totaling 5,000 pages are at issue here. This is the kind of situation
where “particularity may actually impede court review and undermine the functions
served by a Vaughn index.” Judicial Watch, 449 F.3d at 147. The undersigned
finds no fundamental flaw in Defendants providing limited information in the
Vaughn Index and adding further rationales across categories of records through
the Williams Declaration. For certain categories of information, the Williams
Declaration provides the necessary detail to aid in judicial review. For example,
the Declaration states that thirty-four records are exempt under Exemption | and
Section 1.4(a) of Executive Order 13,526 because the records include “general and
specific details relating to another government’s military operations” and how
Wikileaks disclosures affected “U.S. intelligence sources and methods and foreign
policy, and future foreign government military cooperation with the United States.”
Williams Declaration ] 39; Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29,
2009). Defendants withheld another thirty-eight records under Exemption 1 and
Section 1.4(a) of Executive Order 13,526 because they include information
“relating to the United States’ military activities . . . includ[ing] specific military
activities, plans, and operations” and the impact that the Wikileaks disclosures may
have on U.S. foreign policy and military operations.” Jd. 40. The Vaughn Index
provides slightly more information, including whether the record is a
“Memorandum,” the number of pages, a date, and the agency involved. See e.g.,
Vaughn Index at 122 (V-112).
Though Defendants do not justify each of the thirty-four records document-by-
document, this level of detail is sufficient to “enable[] the trial court to fulfill its
duty of ruling on the applicability of the exemption, and . . . enable[] the adversary
system to operate by giving the requester as much information as possible, on the
basis of which he can present his case to the trial court.” Keys, 830 F.2d at 349. In
the context of Exemption 1, this court must determine, inter alia, whether the
information consists of “military plans, weapons systems, or operations” and
whether disclosure “could be expected to result in damage to the national security[.]
21
Executive Order No. 13,256 §§ 1.4(a), 1.1(a)(4). The Williams Declaration and
Vaughn Index provide the detail necessary for the court to determine whether
Defendants satisfied these criteria, as these justifications are specific to the
Wikileaks disclosures. As a whole, the undersigned finds that Defendants’
approach to the Vaughn Index and associated declarations are therefore not facially
“conclusory, merely reciting statutory standards, or... too vague or sweeping.”
King, 830 F.2d at 219 (citation omitted). The undersigned therefore recommends
that Plaintiff's motion for summary judgment be denied to the extent Plaintiff
challenges the entirety of Defendants’ Vaughn Index and associated declarations.
Instead, the undersigned will examine each exemption, one-by-one, and the
adequacy of Defendants’ justifications for each in turn.
ECF No. 87 at 20-21.
The Court agrees with this analysis. Plaintiff does not appear to object to this specific
portion of the report and appears to have abandoned any argument about the Vaughn Index or
declarations being facially inadequate. See generally ECF No. 89. Even if plaintiff did object,
such an objection would be without merit. The Vaughn Index and accompanying declarations
provide sufficient detail and therefore are not facially inadequate.
Ill. All Records Withheld Under Exemption 1 Contain Classified Information and Plaintiff
Cannot Show Bad Faith or Contradictory Evidence, But Defendants Fail to Demonstrate
an Adequate Segregability Analysis.
Exemption 1 protects from disclosure any information classified “under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy and .. . are in fact properly classified pursuant to such Executive order[.]” 5 U.S.C. §
§22(b)(1). The current, operative Executive Order is Executive Order 13526, which allows
classification if the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the
United States Government;
(3) the information falls within one or more of the categories of information listed
in section 1.4 of this order; and
22
(4) the original classification authority determines that the unauthorized disclosure
of the information reasonably could be expected to result in damage to the national
security, which includes defense against transnational terrorism, and the original
classification authority is able to identify or describe the damage.
§ 1.1(a).
Section 1.4 lists categories of classified information, which includes “(a) military plans,
weapons systems, or operations; (b) foreign government information; (c) intelligence activities
(including covert action), intelligence sources or methods, or cryptology; (d) foreign relations or
foreign activities of the United States, including confidential sources; (€) scientific,
technological, or economic matters relating to the national security . . . (g) vulnerabilities or
capabilities of systems, installations, infrastructures, projects, plans, or protection services
relating to the national security; or (h) the development, production, or use of weapons of mass
destruction.”
Under Exemption 1, an agency “bears the burden of proving the applicability of claimed
exemptions.” Am. Civil Liberties Union, 628 F.3d at 619. In the national security context, a court
“must accord substantial weight to an agency’s affidavit concerning the details of the classified
status of the disputed record.” Jd. (quoting Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 374
(D.C. Cir. 2007)). Courts in this Circuit “have consistently deferred to executive affidavits
predicting harm to the national security, and have found it unwise to undertake searching judicial
review.” Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003).
Accordingly, an agency will be entitled to summary judgment if the agency submits an affidavit
or declaration that “describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,
and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad
23
faith.” Id. (citing Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009)); see also
Summers v. U.S. Dep’t of Justice, 999 F.2d 570, 572-73 (D.C. Cir. 1993) (holding that a
declaration is acceptable in FOIA litigation and that an affidavit is not required). These
justifications will be upheld if “logical” or “plausible.” Wolf, 473 F.3d at 375 (citations omitted).
If an agency affidavit or declaration is “conclusory,” “contradicted in the record[,]” or
there is “evidence in the record of agency bad faith,” then summary judgment is not appropriate
and a court may grant in camera review as a “last resort[.]” Hayden, 608 F.2d at 1387. A
reviewing court has “‘broad discretion’ to decide whether in camera review is necessary.”
100Reporters LLC v. United States Dep’t of Justice, 248 F. Supp. 3d 115, 166 (D.D.C. 2017)
(citation omitted). A court, in its discretion, may also order in camera review of a representative
sample of records, further discovery, or supplementation of agency Vaughn filings. See King,
830 F.2d at 225.
In this case, DIA withheld numerous records or information within records pursuant to
Executive Order 13526 subsections 1.4 (a), (b), (c), (d), (g), and (h). See Vaughn Index at 809.
Plaintiff argues that defendants are not entitled to summary judgment with respect to Exemption
1 because material facts suggest that some information withheld under Exemption | is not, in
fact, classified. See ECF No. 78-1 at 30-32, 36-37. Plaintiff further argues that inconsistent
production and internal communications within DIA suggest “contrary evidence in the record”
and “the agency’s bad faith” such that in camera review is appropriate. Jd. at 37 (citation
omitted); ECF No. 79-1 at 2-7.
First, plaintiff argues that defendant produced an August 15, 2010 slide deck before
litigation commenced, then withheld them from subsequent production in the course of this
litigation. See id. at 29-30. Second, plaintiff argues that DIA produced a November 29, 2010
24
slide deck three separate times, each time withholding more material for the same record. See id.
at 30-31. Lastly, plaintiff maintains that DIA redacted the June 11, 2010 IRTF Final Report,
something DIA did not do for another FOIA plaintiff in similar litigation.* See id, at 31. For the
first and third objections, DIA now admits that information was improperly withheld. DIA
attributes any inconsistencies with respect to the August 15, 2010 slide deck to the fact that
“[t]he application of exemptions is not an exact science and differences in application can
occur.” ECF No. 84-1 4 9. Defendants assert, with respect to the June 11, 2010 IRTF Final
Report, that the DIA “inadvertently omitted” a single page which it has subsequently produced to
plaintiff. Jd. | 26. For the second objection, DIA admits that one of the versions of the slide deck
was inconsistently produced, but for another, plaintiff is mistakenly referencing different records.
See id. | 25.
Plaintiff also points to internal DIA communications which reveal that a FOIA analyst
believed certain records were improperly withheld under Exemptions 1 and 3. Specifically, a
FOIA analyst wrote a note on November 5, 2012 stating that “unclassified portions . . . were
being denied under B1.” See ECF No. 78-4. The same analyst reiterated the point in another
email, stating that “[s]ome of the documents being denied in full contain unclassified/FOUO
paragraphs where the blanket use of B1 and B3 is being used incorrectly.” See ECF No. 78
Exhibit 33. In response to those concerns, an unknown DIA employee noted, after re-reviewing
the records, that there was “no additional information for release.” See id. Exhibit 23. In response
to a “status inquiry” from plaintiff, another unknown DIA employee noted that “6 [partial
‘In his motion for summary judgment, plaintiff also originally pointed to inconsistencies between the Williams
Declaration and the Vaughn Index. See ECF No. 78-1 at 34-36 (arguing that the Williams Declaration did not
account for V-845 through V-850, and that V-709 through V-761 were initially marked as partially released).
Defendants filed a supplemental declaration addressing the first issue to the Court’s satisfaction, and plaintiff does
not appear to object. See ECF No. 84-1 9 29; see generally ECF No. 86. For the latter issue, plaintiff does not appear
to challenge it, and the Court accepts DIA’s representation of a mere “administrative” error. ECF No. 84-1 { 30; see
generally ECF No. 86.
25
release] docs contained unclass info withheld under (b)(1)[.]” Jd. Exhibit 36; see also
Defendants’ Amended Objections and Responses to Plaintiff's First Set of Interrogatories
(“Defendants’ Interrogatory Responses”) (ECF No 84-2) at 7.
Plaintiff argues that these communications evince bad faith and inconsistency warranting
in camera review and that, at the very least, these communications preclude summary judgment
in favor of defendants with respect to Exemption 1. To plaintiff, material questions of fact
remain as to whether the records withheld under Exemption 1 “are, as a factual matter,
classified” because there is no evidence that the FOIA analyst’s concerns were addressed. ECF
No. 78-1 at 37. Defendants counter that these communications do not evince bad faith.
Moreover, defendants argue that the preliminary conclusions from a single analyst should not
preclude summary judgment. See ECF No. 84 at 18-20, 25-26. According to defendants, after the
FOIA analyst registered his concerns, all relevant records “were subsequently reevaluated and
reprocessed[.]” Id. at 26. While defendants cannot identify the records to which the analyst was
referring because the emails do not identify specific records and the analyst does not remember
any details, any disagreement between the analyst and a final decisionmaker was “nothing more
than an internal agency debate about a preliminary classification decision, which is irrelevant to
the question of whether the agency’s ultimate classification is correct.” Jd. at 19; ECF No. 84-2
at 6.
A. Defendants Demonstrate That All Records Withheld Under Exemption 1 Contain
Classified Information.
Magistrate Judge Robinson found that defendants met their burden to show that the
records withheld under Exemption 1 contain classified information, explaining:
Apart from Plaintiff's allegations of inconsistency and general argument that DIA’s
justifications for withholdings are conclusory, Plaintiff offers little to overcome the
26
“substantial weight to an agency’s affidavit concerning the details of the classified
status of the disputed record.” Wolf, 473 F.3d at 374. For example, in arguing more
broadly that DIA’s justifications are conclusory for all withholdings, Plaintiff
points to DIA’s justifications for withholding V-318 in its entirety. Plaintiff's
Memorandum at 26. Given the conclusion that Defendants provided an adequate
explanation for its withholding of this record, the undersigned has little difficulty
in further concluding that V-318 and all other records withheld under Exemption 1
contain classified information that the agency properly withheld.
For each category of information under Executive Order 13,256 subsections 1.4 (a),
(b), (c), (d), (g), and (h), DIA provides similar “logical” and “plausible”
justifications for its withholdings. Wolf, 473 F.3d at 375 (citations omitted); see
Williams Declaration [{ 34-55. For example, as previously noted, DIA explains
that it withheld information from thirty-four records under Exemption 1 and Section
1.4(a) of Executive Order 13,526 because the records include “general and specific
details relating to another government’s military operations” and how Wikileaks
disclosures affected “U.S. intelligence sources and methods and foreign policy, and
future foreign government military cooperation with the United States.” Williams
Declaration { 39. DIA further explains that all records were properly classified and
goes on to describe each category of records which DIA withheld and the harms
associated with potential disclosure. See id. J] 36, 37-55. Because “searching
judicial review” is inappropriate in these circumstances, the undersigned must take
these justifications at face value. Ctr. for Nat. Sec. Studies, 331 F.3d at 927.
ECF No. 87 at 26-27.
The Court agrees with this analysis. Plaintiff objects, arguing that there is still a factual
dispute about whether DIA has actually determined that the records at issue were classified. See
ECF No. 89 at 21-22. This objection is without merit. Although a DIA FOIA analyst initially
believed that some of the records withheld under Exemption 1 were unclassified, those records
were later reprocessed, and DIA determined that those records actually were classified. See ECF
No. 84-2 at 6. On September 12, 2013, DIA notified Mr. Khatchadourian that it had identified
six responsive records and that two of them were being released in full. See ECF No. 64-1 8.
Additionally, there is no dispute that DIA’s declarant has expressly stated that all of the
information withheld under Exemption 1 has been classified because releasing the information
could reasonably be expected to cause serious or grave harm to national security. See id. at J 36.
27
DIA was entitled to reprocess the records and change its mind about whether they were
classified. Agencies frequently do this, and oftentimes they realize that they can release
documents they previously thought should be exempt. If agencies can later release information
they previously withheld, there is no reason why the reverse should be impermissible. For these
reasons, defendants have sufficiently demonstrated that records withheld under Exemption | are
classified.
B. Plaintiff Fails to Demonstrate the Existence of Bad Faith.
Few cases in this Circuit address what constitutes bad faith, with most cases focusing on
what is not bad faith. Courts in this Circuit “decline[] to find subsequent disclosure as evidence
of bad faith, reasoning that ‘to effectively penalize an agency for voluntarily declassifying
documents would work mischief by creating an incentive against disclosure.”” Pub. Citizen v.
Dep’t of State, 276 F.3d 634, 645 (D.C. Cir. 2002) (“Pub. Citizen IT’)) (quoting Pub. Citizen v.
Dep't of State, 11 F.3d 198, 203 (D.C. Cir. 1993) (“Pub. Citizen I’)). Likewise, a court will not
find bad faith by “a mere allegation of agency misrepresentation or bad faith nor by past agency
misconduct in other unrelated cases.” Hayden, 608 F.2d at 1387. In one case wherein the Sixth
Circuit found bad faith, a plaintiff seeking records related to the FBI’s COINTELPRO program
demonstrated that the FBI’s “infringement of civil liberties” through the program, not the FOIA
response itself, was “evidence of bad faith or illegality with regard to the underlying activities
which generated the documents at issue.” Jones v. Fed. Bureau of Investigation, 41 F.3d 238,
242 (6th Cir. 1994).
Magistrate Judge Robinson found no evidence of bad faith, explaining:
DIA’s inconsistent approach to the classification designations of several records is
not evidence of bad faith because DIA has subsequently corrected any errors. See
Supplemental Williams Declaration {J 9, 26. This is the precise situation where, if
28
the undersigned were to “find subsequent disclosure as evidence of bad faith,” such
a finding would create a perverse incentive against disclosure. Pub. Citizen II, 276
F.3d at 645. For the slide deck which DIA allegedly produced three times, each
time with more redactions, the undersigned concludes that one of the three records
is not the same as the other two. Compare Townsend Declaration Exhibit 37, at
107 (reflecting a “Media Analysis” at page 12 of the slide deck) and Townsend
Declaration Exhibit 38, at 117 (reflecting the same) with Townsend Declaration
Exhibit 38, at 122 (reflecting a “Media Analysis” at page 7 of the slide deck). For
the two identical records with different redactions, the undersigned accepts DIA’s
explanation of “human error.” Supplemental Williams Declaration 4 25. While
this admission is not a “subsequent disclosure[,]” a single discrepancy is not
sufficient for a wholesale finding of bad faith for all of DIA’s Exemption 1
withholdings. Pub. Citizen II, 276 F.3d at 645.
Nor do DIA’s internal communications evince bad faith. After the FOIA analyst
registered his concerns about improper withholdings, DIA reprocessed all of the
records that he reviewed. Defendants’ Interrogatory Responses at 4-6. DIA made
efforts to identify the particular records for which the analyst registered concern.
Id. at 5-6. Any failure to do so has less to do with bad faith and more to do with
the fact that the analyst’s emails do not identify particular records. Jd. Moreover,
there is some evidence that the six records identified for partial release were, in
fact, re-reviewed. See id. at 8-9. There is therefore no evidence of “bad faith or
illegality” with respect to the nature of the underlying records or the search itself.
Jones, 41 F.3d at 242.
ECF No. 87 at 28-29.
The Court concurs with this analysis. Plaintiff objects, arguing that DIA’s quality control
process is evidence of bad faith. See ECF No. 89 at 17-21. As previously explained, however,
DIA is entitled to reprocess records and change its mind about what is classified. Agencies
should be encouraged to review records multiple times to ensure that all unclassified information
is released and to be certain that no classified information inadvertently slips through. Punishing
DIA for double-checking its records would only hinder the agency’s incentive to take another
look at its records in subsequent cases, Additionally, the Vaughn Index and accompanying
declarations are sufficient to convince the Court that Exemption 1 was properly invoked.
Essentially, DIA’s internal communications are not evidence of bad faith.
29
Plaintiff also argues that errors in DIA’s production are evidence of bad faith.
Specifically, plaintiff suggests that inconsistent applications of redactions demonstrates bad faith.
See ECF No. 89 at 19-20. It is important to note, however, that the agency reviewed the slide
deck twice. When it was reviewed for the second time (three years later), FOIA exemptions were
applied differently. This is bound to happen when large numbers of records are reviewed three
years apart, and it is insufficient to show bad faith. Essentially, although there is evidence of
some minor mistakes, plaintiff has been unable to show that these mistakes amount to bad faith.
In his objection, plaintiff points to DIA’s withholding of portions of a record in this case
that were produced in another case and asks the Court to view that withholding as evidence of
bad faith. ECF No. 89 at 20. The supplemental Williams Declaration confirms that identical
documents were produced in both cases. See ECF No. 84-1 { 26. DIA apparently sent those
documents to DOJ attorney Nicholas Cartier on June 5, 2019, and he accidentally failed to
forward them to plaintiff. ECF No. 90-1 9 4. Upon reading plaintiff's objection to the report,
however, DIA realized that the eleventh page of the document was inadvertently omitted from
the version initially given to plaintiff, and on March 4, 2020, DIA provided plaintiff with the
missing page. See ECF No. 90-1 3. There is no evidence that the eleventh page contains
anything that the government would have a particular interest in hiding, suggesting that Mr.
Cartier’s failure to forward the page was most likely an accident rather than a part of some
nefarious scheme to keep Mr. Khatchadourian from reporting on the page’s contents. In light of
DIA’s prompt rectification of what was clearly a mere oversight, the Court concludes that
plaintiff has not shown evidence of bad faith.
30
C. Plaintiff Fails to Demonstrate the Existence of Contradictory Evidence.
Pursuant to Executive Order 13526, agencies have the ability to “reclassify specific
information only when the standards and procedures for classifying information under this order
are followed.” § 1.5(c). An “earlier (non) classification decision” therefore does not “preclude[]
or interfere[] with the right of the [agency] to reclassify the information later[.]” Goldberg v.
U.S. Dep’t of State, 818 F.2d 71, 80 (D.C. Cir. 1987). In Goldberg, this Circuit held that, in the
summary judgment context, “a FOIA petitioner must do more than point to evidence that the
information sought was at some previous time classified differently.” Jd. at 81. Rather, a FOIA
plaintiff must point to “contrary evidence [which] must somehow undermine or call into question
the correctness of the classification status of the withheld information, or the agency’s
explanation for the classification.” Jd. The Court held that the “prior, unexplained decisions” of
ambassadors to mark withheld cables as “unclassified” was insufficient to undermine the State
Department’s later decision to classify the cables. Jd. at 80-81.
Magistrate Judge Robinson found that plaintiff failed to demonstrate the existence of
contradictory evidence, explaining:
[T]he record is vague and ambiguous in many respects. There is no evidence, for
example, that DIA ever reclassified any information. Ms. Williams, who has
declassification authority pursuant to Executive Order 13,256, “determined that an
original classification authority properly classified the information withheld by
DIA under Exemption 1[.]” Williams Declaration | 36. She does not explain when
a classification authority made these determinations or which classification
authorities made various decisions. This problem is compounded by the FOIA
analyst’s belief that portions of certain records should not be considered classified.
It is possible that the analyst believed this because, in fact, the portions were not
classified by a classification authority at the time the analyst reviewed them. It is
equally possible that the portions were classified and the analyst believed they
should be declassified. There is no clear record on the sequence of any of these
decisions. However, no matter the exact sequence, an agency’s affidavit or
declaration is entitled to “substantial weight[.]” Wolf, 473 F.3d at 374. The
Williams Declaration provides that a classification authority “properly classified
the information withheld by DIA under Exemption 1[.]” Williams Declaration {
31
36. There is insufficient evidence of contradictory evidence because, whether DIA
reclassified or declined to declassify the information identified by the FOIA
analyst, DIA has stated that the withholdings include information which some
classification authority has designated as classified at some point.
ECF No. 87 at 29-30.
The Court agrees with this analysis and finds nothing in any of plaintiff's filings
(including his objection to the report and reply in support of his objection) that would show
contradictory evidence. Therefore, plaintiff has not only failed to show bad faith, but has also
failed to show the existence of any contradictory evidence.
D. Defendants Fail to Demonstrate an Adequate Segregability Analysis For Records
Withheld Pursuant to Exemption 1.
FOIA requires that any “reasonably segregable portion of a record shall be provided to
any person requesting such record after the deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). “It has long been a rule in this Circuit that non-exempt portions of a document must be
disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc.,
566 F.2d at 260. While “[a]gencies are entitled to a presumption that they complied with the
obligation to disclose reasonably segregable material[,]” agencies must still demonstrate with
“reasonable specificity” the bases for their conclusions regarding segregability. Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007); Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (citation omitted). An agency “must usually
submit a sufficiently detailed Vaughn index for each document and an affidavit or declaration
stating that it has released all segregable material” to meet this burden. Bloche v. Dep’t of Def.,
370 F. Supp. 3d 40, 55 (D.D.C. 2019). A “conclusory affidavit” or declaration is insufficient.
Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008).
In a Declaration, DIA averred that, for all records:
32
As required under FOIA, subject matter experts carefully reviewed the information
set forth in the records identified in DIA’s Vaughn Index line-by-line to determine
whether DIA could make any discretionary disclosures by segregating and
releasing non-exempt information. Based on the recommendation of the subject
matter experts, I have determined that all reasonably segregable non-exempt
information has been released to the plaintiff and that no additional information
may be segregated in any meaningful way without disclosing sensitive information.
ECF No. 64-1 4 63. DIA withheld approximately 497 records in full, the majority of which
included Exemption 1 as a basis for their nondisclosure. See Vaughn Index; Amended Vaughn
Index. Relying on Johnson, DIA argues that “[n]o more was required” beyond this single
paragraph. ECF No. 84 at 17. Plaintiff contends that this paragraph is insufficient because there
is no “individualized segregability analysis with respect to any record, hampering the Court’s
ability to evaluate whether Defendants have segregated and released all non-exempt
information.” ECF No. 78-1 at 27.
Magistrate Judge Robinson found that defendants failed to demonstrate an adequate
segregability analysis for these records, explaining:
[T]he conclusory nature of DIA’s Vaughn Index and Declarations, combined with
internal communications suggesting that an inadequate segregability analysis took
place, leads the undersigned to recommend that summary judgment be denied with
respect to DIA’s Exemption | withholdings. Courts in this Circuit have indeed held
that an agency satisfied its burden in cases where the agency “conducted a line-by-
line review and disclosed all reasonably segregable non-exempt information[.]”
Sack v. Cent. Intelligence Agency, 49 F. Supp. 3d 15, 23 (D.D.C. 2014); see also
Johnson, 310 F.3d at 776. In these cases, however, agencies offered more detail
beyond such assertions to enable judicial review of whether records could be
segregated. In Johnson, the agency submitted “a comprehensive Vaughn index,
describing each document withheld, as well as the exemption under which it was
withheld.” 310 F.3d at 776. In Sack, “the Agency’s descriptions of the documents
withheld and justifications for the withholdings [were] sufficiently detailed[.]” 49
F. Supp. 3d at 23; see also ViroPharma Inc. v. Dep’t of Health & Human Servs.,
839 F. Supp. 2d 184, 195 (D.D.C. 2012) (finding segregability satisfied with “line-
by-line review” in addition to “sufficiently detailed Vaughn index and declarations
enumerating the reasons why each document was properly withheld”). The only
case where a court in this Circuit suggested that a “line-by-line analysis” could,
“[a]t a minimum,” be sufficient was one in which the court determined that the lack
of a line-by-line review demonstrated the insufficiency of the agency’s analysis.
33
Perry-Torres v. U.S. Dep’t of State, 404 F. Supp. 2d 140, 144 (D.D.C. 2005). In
other words, the court in Perry-Torres held that a line-by-line analysis was
necessary, not that it was sufficient as DIA effectively urges here. See id.
While DIA provided a paragraph explaining that “experts” reviewed all records
“line-by-line[,]” there is no information elsewhere in the Williams Declaration or
Vaughn Index that explain with any specificity, much less “reasonable
specificity[,]” how the agency undertook its segregability analysis. Williams
Declaration § 63; Johnson, 310 F.3d at 776. As discussed, DIA has sufficiently
demonstrated that V-318 contains information exempt under Exemption 1 because
the Vaughn Index describes the harm associated with disclosure and explains that
the information was classified. While DIA’s Vaughn Index is sparse, DIA’s
declarations provide further context for DIA’s conclusion that the record contains
classified information. By contrast, DIA’s Vaughn Index and Declarations are both
sparse with respect to segregability. DIA has not explained whether V-318, an
undated, untitled “Document Log” contains any “non-exempt portions of a
document .. . inextricably intertwined with exempt portions[,]” or whether the
entire record consists only of exempt information. Mead Data Cent., Inc., 566 F.2d
at 260. DIA’s “conclusory” Vaughn Index and Declarations are insufficient. Stolt-
Nielsen Transp. Grp. Ltd., 534 F.3d at 734.
This problem is compounded by a DIA FOIA analyst’s repeated concern that “the
blanket use of B1 and B3 is being used incorrectly.” Townsend Declaration Exhibit
33. While these communications are insufficient to demonstrate bad faith or
contradictory evidence with respect to DIA’s Exemption 1 holdings as a whole, it
suggests that DIA’s segregability analysis may not have been adequate. Notably,
while DIA took great pains to identify the records identified by the FOIA analyst,
Defendants do not explain the process by which DIA applied a segregability
analysis in any of its reprocessing. See Defendants’ Interrogatory Responses at 4-
6. At the very least, DIA has not adequately explained its segregability analysis.
The undersigned therefore recommends that Plaintiff and Defendants’ motions for
summary judgment be denied without prejudice with respect to all Exemption 1
withholdings pending a determination of whether the records are segregable. See
Sussman, 494 F.3d at 1116 (“Before approving the application of a FOIA
exemption, the district court must make specific findings of segregability regarding
the documents to be withheld.”).
ECF No. 87 at 31-33.
Defendants never filed an objection to the report, and they ask this Court to adopt
Magistrate Judge Robinson’s recommendation in its entirety. See ECF No. 90 at 1.
The Court also agrees with Magistrate Judge Robinson’s analysis and will therefore order
defendants to supplement the record with respect to the segregability issue.
34
E. In Camera Review is Inappropriate.
Courts have “broad discretion’ to decide whether in camera review is necessary.”
100Reporters LLC, 248 F. Supp. 3d at 166 (citation omitted). In camera review is “‘particularly
appropriate when either the agency affidavits are insufficiently detailed to permit meaningful
review of exemption claims or there is evidence of bad faith on the part of the agency,’ when the
number of withheld documents is relatively small, or ‘when the dispute turns on the contents of
the withheld documents, and not the parties’ interpretations of those documents.’” Hall v. Cent.
Intelligence Agency, 881 F. Supp. 2d 38, 74 (D.D.C. 2012) (quoting Quinon v. Fed. Bureau of
Investigation, 86 F.3d 1222, 1228 (D.C. Cir. 1996)). Plaintiff argues that in light of defendants’
insufficient justifications, bad faith, and contradictory evidence in the record, limited in camera
review of sixty-six records is appropriate. ECF No. 79-1 at 2-7.
Magistrate Judge Robinson found that in camera review was not warranted in this case,
explaining:
[In camera review would be burdensome and inappropriate because there is no
bad faith or contradictory evidence in the record. Moreover, while sixty-six records
is “relatively small” considering the 850 records at issue here, these sixty-six
records are not all “short in length.” Quinon, 86 F.3d at 1228 (quoting Carter v.
U.S. Dep’t of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987)); see, e.g., Amended
Vaughn Index at 72 (V-534) (describing a fifty-page slide deck). A reviewing court
without the specialized knowledge of an agency such as DIA would also have no
basis to determine which information within hundreds of pages could be made
public without posing serious harm to national security.
The undersigned recommends that the court order Defendants to supplement their
Vaughn Index and associated declarations to provide the “reasonable specificity”
necessary to enable judicial review with respect to segregability. Johnson, 310 F.3d
at 776. To the extent that Defendants determine that such “reasonable specificity”
would lead to the disclosure of classified information, the undersigned recommends
that Defendants be allowed to submit a declaration in camera similar to the
procedure outlined in Hayden. Id.; see Hayden, 608 F.2d at 1383. If DIA chooses
this path, the undersigned recommends that the court order DIA to release to
Plaintiff as much of its justifications as possible. See Hayden, 608 F.2d at 1385
(affirming in camera affidavit procedure because it “created ‘as complete a public
35
record as is possible’”) (citation omitted). In the interim, the undersigned
recommends that Defendants’ motion for summary judgment be denied without
prejudice as to their Exemption 1 withholdings pending a determination of whether
all fully withheld records are segregable and whether all partially released records
are further segregable.
ECF No. 87 at 34-35.
The Court agrees with this analysis. Plaintiff objects, but as explained above, plaintiff has
not been able to demonstrate bad faith or contradictory evidence. Jn camera review would be
extremely burdensome, and such an extreme measure is simply not warranted in this case. The
Court will therefore deny plaintiff's motion for in camera review.
IV. For Defendants Invocation of Exemption 3, Some Records Withheld Contain
Information That Would Reveal DIA Functions, and Most Records Withheld Contain
Information Relating to Intelligence Sources and Methods, But Defendants Fail to
Demonstrate an Adequate Segregability Analysis.
Exemption 3 protects from disclosure any information “specifically exempted from
disclosure by statute.” 5 U.S.C. § 552(b)(3). To qualify under Exemption 3, a statute “(i) requires
that the matters be withheld from the public in such a manner as to leave no discretion on the
issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters
to be withheld.” Jd. § 552(b)(3)(A). Two such statutes are relevant here. 10 U.S.C. § 424
exempts from disclosure of “the organization or any function of” the DIA as well as “the number
of persons employed by or assigned or detailed to” the DIA and the “name, official title,
occupational series, grade, or salary of any such person.” § 424(a). 50 U.S.C. § 3024 states, in
relevant part, that the Director of National Intelligence “shall protect intelligence sources and
methods from unauthorized disclosure.” § 3024(i)(1).
An agency invoking Exemption 3 must meet two requirements. See Cent. Intelligence
Agency v. Sims, 471 U.S. 159, 167-68 (1985). First, the invoked statute must qualify as an
36
exempting statute under Exemption 3. See id. Second, the withheld material must be the kind of
material covered by the statute. See id. Just as with Exemption 1, a court “must accord
substantial weight to an agency’s affidavit” or declaration. Am. Civil Liberties Union, 628 F.3d at
619 (holding that deference is owed under Exemptions 1 and 3 in the national security context).
An agency will be entitled to summary judgment if the agency submits an affidavit or declaration
which “describes the justifications for withholding the information with specific detail,
demonstrates that the information withheld logically falls within the claimed exemption, and is
not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.” Jd.
(citation omitted). The justifications will be upheld if “logical” or “plausible.” Wolf, 473 F.3d at
375 (citations omitted). Plaintiff does not dispute that both statutes can form the basis of an
exemption under Exemption 3. See ECF No. 78-1 at 38. Plaintiff contends, however, that the two
statutes “are being expansively interpreted and improperly asserted in this case.” Id.
A. Defendants Demonstrate That Some Records Withheld Pursuant to 10 U.S.C. §
424 Contain Information That Would Reveal DIA Functions.
10 U.S.C. § 424 protects from disclosure:
(1) the organization or any function of an organization of the Department of
Defense named in subsection (b); or
(2) the number of persons employed by or assigned or detailed to any such
organization or the name, official title, occupational series, grade, or salary of any
such person.
10 U.S.C. § 424(a). The law is an exempting statute under Exemption 3 which covers DIA. Sack
v. Cent. Intelligence Agency, 53 F. Supp. 3d 154, 174 n. 17 (D.D.C. 2014); 10 U.S.C. §
424(b)(1). Plaintiff does not dispute that DIA may rely on this law to protect the “names, office
affiliations, phone numbers, secure system email addresses, and other contact information of
DIA personnel as well as web addresses on secure networks.” ECF No. 78-1 at 39. Plaintiff takes
37
issue with DIA’s attempt to shield from disclosure information about DIA’s “functions,” which,
to plaintiff, are outside the scope of 10 U.S.C. § 424. Jd. In response, defendants argue that 10
U.S.C. § 424(a)(1) covers “functions of the DIA.” ECF No. 84 at 21.
While courts in this Circuit routinely consider whether information would reveal names
of or information related to employees of organizations protected under the second prong of
Section 424, no court in this Circuit appears to have considered the exact meaning of “the
organization or any function of any organization” under the first prong. See, e.g., Fi reedom
Watch, Inc. y. Nat’l Sec. Agency, 197 F. Supp. 3d 165, 174 (D.D.C. 2016) (holding that the
agency could properly withhold “names or contact information”). Based on the parties’ briefings,
Magistrate Judge Robinson’s research, and the Court’s own research, only one case presents this
issue. See Hamdan vy. U.S. Dep’t of Justice, 797 F.3d 759, 776 (9th Cir. 2015). In Hamdan, as
here, DIA withheld “the names of the governments with which the DIA shares intelligence.” Jd.
at 777; ECF No. 64-1 458 (noting that DIA withheld information concerning “[t]he countries
that DIA shares specific intelligence with”). The Ninth Circuit reasoned that reading the first
prong of Section 424 to include “only information about DIA personnel would effectively read
the first prong out of the statute” because the second prong effectively protects that information.
See Hamdan, 797 F.3d at 776. Taken in context with the other provisions of Section 424, the
Ninth Circuit concluded that “functions of any organization” includes information like “policies”
but not the underlying activities themselves. Jd. The Court finds this reasoning persuasive. The
overall purpose of Section 424 is to protect from disclosure how an intelligence agency such as
DIA is structured. The first prong accomplishes this goal by protecting the policies by which
DIA operates. The second prong accomplishes this goal by protecting the names and identifying
details of DIA’s employees.
38
Magistrate Judge Robinson determined that defendants had demonstrated that some
records withheld under Section 424 contain information that would reveal DIA functions,
explaining:
Here, “the countries that DIA shares specific intelligence with” qualifies as a
“function” under Section 424(a)(1) because it is a general policy affecting how DIA
is structured. Williams Declaration 58. For the same reason, it is permissible for
DIA to withhold information about the other government agencies with which DIA
shares information. See id. DIA’s withholding of information “which would reveal
DIA’s organizational structure” also falls squarely within Section 424(a)(1). See
Vaughn Index at 39 (V-008). So too does DIA’s withholding of “[e]mail addresses
and computer links from a secure network” because that information concerns how
DIA configures its technology infrastructure. See Vaughn Index at 51 (V-040).
Defendants therefore demonstrate that these records contain information properly
withheld under Section 424.
DIA also indicated for numerous records that the agency withheld information
because it “would reveal DIA functions” without providing meaningful context
about what particular DIA function the information would reveal. See, e.g., Vaughn
Index at 67 (V-056); Supplemental Williams Declaration { 31 (“clarify[ing] that
[DIA] has properly withheld information relating to sensitive functions of the
DIA”). The undersigned is concerned that, with the number of exemptions claimed
under Section 424 and the stated justification that the information “would reveal
DIA functions,” that Section 424 is being interpreted expansively here.’ Plaintiff
points to one example. In a partial released record, DIA withheld some news
coverage collected by the Congressional and Public Affairs Liaison in the form of
a slide presentation. See Townsend Declaration Exhibit 30, at 77. What a daily
news roundup primarily reveals is not the function of DIA’s Congressional and
Public Affairs Liaison, but the carrying out of a function. The name of the Liaison
may be properly withheld under Section 424(a)(2). See id. at 75. However, to the
extent the agency withheld specific news coverage because it would reveal the
DIA’s functions under Section 424(a)(1), this was in error because disclosure of the
coverage the Liaison collected would not reveal DIA functions. See Vaughn Index
at 288 (V-278) (noting that the agency withheld information in part because it
“would reveal DIA functions”). To the extent the agency withheld other, public
news articles based on the same rationale, the undersigned recommends that
Plaintiff's motion be granted for that withheld information.
For other withholdings under Section 424(a)(1), the undersigned has no “specific
detail” to determine whether this information concerned a function or merely
concerned the carrying out of a function. Am. Civil Liberties Union, 628 F.3d at
619; see, e.g., Vaughn Index at 67 (V-056). If Section 424 precluded disclosure of
5 DIA withheld all but twenty records under Exemption 3, the vast majority of which included this same
justification. See Vaughn Index at 809.
39
records which, in revealing the carrying out of a function, incidentally revealed the
nature of a function, DIA and other intelligence agencies could withhold nearly all
records they possess, something that Congress surely did not intend in enacting
Section 424. For all information withheld because it “would reveal DIA
functions[,]” the undersigned recommends that Defendants be ordered to
supplement the Vaughn Index to further explain the basis of their withholdings.
ECF No. 87 at 38-39.
The Court agrees with this analysis. Plaintiff does not appear to object to Magistrate
Judge Robinson’s finding that certain documents were properly withheld under Section 424,
meaning that he waived the right to contest that determination. Defendants never filed an
objection to the report, and they ask this Court to adopt Magistrate Judge Robinson’s
recommendation in its entirety. See ECF No. 90 at 1. This means that defendants do not object to
providing more detail for certain documents. The Court also agrees with Magistrate Judge
Robinson’s analysis and will therefore order that for all documents withheld on the basis of
“revealing DIA functions,” defendants must supplement the record to further explain the basis of
their withholdings.
B. Defendants Demonstrate That Most Records Withheld Pursuant to 50 U.S.C. §
3024(i) Contain Information Relating to Intelligence Sources and Methods or
Information Which Could Lead to Disclosure of Such Methods.
50 U.S.C. § 3024(i)(1) protects “intelligence sources and methods from unauthorized _
disclosure.” As plaintiff concedes, this statute is a qualifying statute under Exemption 3. See
| Leopold v. Cent. Intelligence Agency, 380 F. Supp. 3d 14, 28 (D.D.C. 2019) (“Leopold IP’); ECF
No. 78-1 at 38. Courts in this Circuit construe § 3024(i) broadly to protect information that
“relates to intelligence sources and methods” and information which “can reasonably be
expected to lead to unauthorized disclosure of intelligence sources and methods.” Leopold II,
380 F. Supp. 3d at 28 (citations and internal quotation marks omitted).
40
Plaintiff points to several examples of withholdings which, according to plaintiff, could
not conceivably contain information “related to intelligence sources and methods” or “lead to the
unauthorized disclosure of intelligence sources and methods.” See id. First, plaintiff contends
that a record concerning the “Financial Impact” of the IRTF does not relate to or reveal DIA’s
intelligence practices. ECF No. 78-1 at 40 (citing Vaughn Index at 706 (V-822, 823)). Second,
plaintiff argues that an unclassified “Public Affairs Announcement” could not relate to or reveal
DIA’s intelligence practices. Jd. at 37-38 (citing Vaughn Index at 604 (V-601)). Third and lastly,
plaintiff maintains that public news articles could not relate to or reveal DIA’s intelligence
practices. Jd. at 38.
Magistrate Judge Robinson found that most of the records at issue do contain information
relating to intelligence sources and methods or information that could lead to disclosure of such
methods, explaining:
Plaintiffs objections arise from a false premise: “Defendants cannot withhold non-
secret information under 50 U.S.C. § 3024(i)[.]” Id. Defendants can. See Leopold
IT, 380 F. Supp. 3d at 28. 50 U.S.C. § 3024 is a “near-blanket FOIA exemption”
which covers public and non-public information because “bits and pieces of data
may aid in piecing together bits of other information even when the individual piece
is not of obvious importance in itself.” Leopold v. Cent. Intelligence Agency, 106
F. Supp. 3d 51, 57-58 (D.D.C. 2015) (“Leopold I”) (citing Whalen v. U.S. Marine
Corps, 407 F. Supp. 2d 54, 59 n. 5 (D.D.C. 2005); see also Cent. Intelligence
Agency v. Sims, 471 U.S. 159, 178 (1985)). Under the law, the undersigned owes
DIA “considerable deference” to determine whether information “relates to
intelligence sources and methods” and information which “can reasonably be
expected to lead to unauthorized disclosure of intelligence sources and methods.”
Leopold I,106 F. Supp. 3d at 57-58 (citations and internal quotation marks omitted).
In this context, a record assessing the financial impact of the IRTF could reveal
information about DIA’s intelligence sources and methods. Courts in this Circuit
have routinely come to similar conclusions about the financial information of
intelligence agencies. See id. at 58 (holding that disclosure of CIA expenditures
“could shed light on the funds that were available for particular activities, which
could, in turn, divulge the agency’s capabilities and priorities”); Halperin v. Cent.
Intelligence Agency, 629 F.2d 144, 150 (D.C. Cir. 1980) (holding that disclosure of
“rates and total fees paid to attorneys is that such information could give leads to
41
information about covert activities that constitute intelligence methods”);
Aftergood v. Cent. Intelligence Agency, 355 F. Supp. 2d 557, 562 (D.D.C. 2005)
(holding that “intelligence budget information ‘relates to intelligence methods,
namely the allocation, transfer and funding of intelligence programs’”) (citation
omitted). Notwithstanding the fact that a Deputy IRTF Chief already testified about
the overall cost of IRTF and broad categories of spending, any further level of detail
would “shed light on the funds that were available for particular activities, which
could, in turn, divulge the agency’s capabilities and priorities.” See Townsend
Declaration, Exhibit 4, at 163-64; Leopold I, 106 F. Supp. 3d at 58.
DIA’s withholding of public news articles DIA collected is within the scope of 50
U.S.C. § 3024(i) as well because, while collection of a single news article “is not
of obvious importance in itself[,]” a pattern of collecting particular news sources or
particular types of stories could reveal a method of collecting intelligence. Leopold
I, 106 F. Supp. 3d at 58. While DIA disclosed some of its collected news items to
Plaintiff, the undersigned must give “considerable deference” to DIA’s stated
justification and choices in determining which news items to withhold. Jd.
Though DIA enjoys a “near-blanket FOIA exemption” under which courts grant
DIA “considerable deference[,]” the undersigned has no basis to determine whether
a “Public Affairs Announcement” meets even the low bar under 50 U.S.C. §
3024(i). See id. at 57-58 (citation omitted). DIA provides no real information about
what the announcement contains. If, as the title of the document implies, DIA
affirmatively released the document to the public, it stands to reason that DIA
would ensure that it would not relate to or reveal DIA’s intelligence practices. As
previously discussed, the public nature of information does not mean it cannot be
protected under 50 U.S.C. § 3024(i). Still, the nature of the record indicates that
DIA might have taken precautions to ensure that it does not relate to or reveal
intelligence sources or methods. Without more, the undersigned cannot
recommend summary judgment for Defendants for this withholding. The
undersigned recommends that Defendants be ordered to supplement their Vaughn
Index for this withholding. Defendants demonstrate that all other records withheld
under Exemption 3 and 50 U.S.C. § 3024() contain information that “relates to
intelligence sources and methods” or information which “can reasonably be
expected to lead to unauthorized disclosure of intelligence sources and methods.”
Leopold Il, 380 F. Supp. 3d at 28.
ECF No. 87 at 40-42.
The Court agrees with this analysis. Plaintiff objects, arguing that financial information
was improperly withheld. As the IRTF Chief testified, however, information beyond the overall
cost of the IRTF and broad categories of spending would divulge information protected under
Section 3024(i). This is supported by Vaughn Index entries for V-822 and 823. Plaintiff also
42
maintains that DIA should not be able to withhold slides in V-287 containing information about
public news media articles; however, plaintiff has been again been unable to show why the
Vaughn Index is insufficient to warrant withholding this information. Therefore, plaintiffs
objections regarding Section 3024(i) are without merit.
C. Defendants Fail to Demonstrate an Adequate Segregability Analysis For Records
Withheld Pursuant to Exemption 3.
The segregability analysis for Exemption 3 is the same as for Exemption 1, which was
explained in Section III(D). Like with Exemption 1, Magistrate Judge Robinson found that
defendants did not demonstrate an adequate segregability analysis for records withheld under
Exemption 3. She explained:
... Defendants’ segregability analysis is lacking for Exemption 3 for the same
reasons that the segregability analysis is lacking for Exemption 1. There is no
information in the Williams Declaration or Vaughn Index that explain with
“reasonable specificity” how the agency undertook its segregability analysis for its
Exemption 3 withholdings. Johnson, 310 F.3d at 776; Williams Declaration { 63.
Based on the conclusory nature of Defendants’ segregability analysis combined
with evidence that DIA used “blanket” applications of Exemption 3, Defendants do
not meet their burden to demonstrate that they have provided all “reasonably
segregable” non-exempt information to Plaintiff. See Townsend Declaration
Exhibit 33; 5 U.S.C. § 552(b). The undersigned therefore recommends that
Plaintiff's and Defendants’ motions for summary judgment be denied without
prejudice with respect to all Exemption 3 withholdings pending a determination of
whether all fully withheld records are segregable and whether all partially released
records are further segregable. See Sussman, 494 F.3d at 1116 (“Before approving
the application of a FOIA exemption, the district court must make specific findings
of segregability regarding the documents to be withheld.”).
It is neither necessary nor appropriate to grant in camera review to determine
whether Defendants have met their segregability burden. As discussed, there is no
evidence of bad faith or contradictory evidence with respect to any withholding. In
light of the large number of records withheld under Exemption 3, the proper course
is to order DIA to provide the “reasonable specificity” necessary to enable judicial
review with respect to segregability. Johnson, 310 F.3d at 776. The undersigned
therefore recommends the same process for Exemption 3 as for Exemption 1.
ECF No. 87 at 42-43.
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Defendants never filed an objection to the report, and they ask this Court to adopt
Magistrate Judge Robinson’s recommendation in its entirety. See ECF No. 90 at 1. The Court
also agrees with Magistrate Judge Robinson’s analysis and will therefore order defendants to
supplement the record with respect to the segregability issue.
V. For Exemption 5, Although the Records Withheld Are Inter or Intra-Agency
Communications, Defendants Fail to Demonstrate That They Are Predecisional or
Deliberative, and Defendants Fail to Demonstrate an Adequate Segregability Analysis.
FOIA’s Exemption 5 exempts from disclosure any “interagency or intra-agency” records
which would otherwise be exempted from discovery in the context of civil litigation. See 5
U.S.C. § 552(b)(5). A record qualifies as exempt only if: “(1) its source is a government agency,
and (2) it falls ‘within the ambit of a privilege against discovery under judicial standards that
would govern litigation against the agency that holds it.” Am. Oversight v. U.S. Dep't of Health
& Human Servs., 380 F. Supp. 3d 45, 52 (D.D.C. 2019) (quoting U.S. Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)).
The first requirement under Exemption 5—that the communication be “inter or intra-
agency”—“‘is no less important than the second.” Klamath, 532 U.S. at 9. With limited
exceptions, the record must originate from an agency, defined as “each authority of the
Government of the United States, [which] includes any executive department, military
department, Government corporation, Government controlled corporation, or other establishment
in the executive branch of the Government . . ., or any independent regulatory agency[.]” Jd.
(quoting 5 U.S.C. § 552(f)) (internal quotation marks omitted).
The second requirement is that that the information must fit within a recognized
privilege. See Am. Oversight, 380 F. Supp. 3d at 52. Defendants invoke the deliberative process
privilege, which:
44
... Serves to assure that subordinates within an agency will feel free to provide the
decisionmaker with their uninhibited opinions and recommendations without fear
of later being subject to public ridicule or criticism; to protect against premature
disclosure of proposed policies before they have been finally formulated or
adopted; and to protect against confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales for a course of action
which were not in fact the ultimate reasons for the agency’s action.
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
A record protected under this privilege must be both “predecisional” and “deliberative.”
Id. A record is predecisional if it was “generated before the adoption of an agency policy[.]” /d.
A reviewing court’s task is not merely to determine the date of a decision and then the date of a
relevant record to determine whether it is predecisional. Sierra Club v. U.S. Dep’t of Interior,
384 F. Supp. 2d 1, 16 (D.D.C. 2004) (holding that such an approach is “simplistic”). A record
generated after one decision can be the basis of another, future decision. See id. Alternatively, a
record post-dating a decision may still reflect predecisional information if it “recounts pre-
decisional deliberations.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., No. 04-1625 PLF,
2006 WL 6870435, at *7 (D.D.C. Dec. 22, 2006) (citation omitted). Whether a record is
predecisional depends on a record’s context relative to particular agency decisions or series of
decisions. See Conservation Force v. Jewell, 66 F. Supp. 3d 46, 61 (D.D.C. 2014). It is the
agency’s burden to “pinpoint” a particular decision or “sub-decision” which the record informed.
Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citation omitted);
100Reporters LLC, 248 F. Supp. 3d at 153. An agency cannot merely point to an “umbrella
process” if there are “subsidiary decisions” that a record informs. /00Reporters LLC, 248 F.
Supp. 3d at 153.
A record is deliberative if it “reflects the give-and-take of the consultative process.”
Coastal States Gas Corp., 617 F.2d at 866. This covers “recommendations, draft documents,
45
proposals, suggestions” and other documents that would “inaccurately reflect or prematurely
disclose” the agency’s views. Jd. Material that is “purely factual” cannot generally be withheld
unless it reflects “exercise of discretion and judgment calls.” Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (citation omitted). The distinction
between “purely factual” information and information reflecting agency deliberation is not
always clear. Jd.; see Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 243 F.
Supp. 3d 155, 164-65 (D.D.C. 2017). Courts in this Circuit therefore apply a “functional”
approach to determine the applicability of the privilege in which “the legitimacy of withholding
does not turn on whether the material is purely factual in nature or whether it is already in the
public domain, but rather on whether the selection or organization of facts is part of an agency’s
deliberative process.” Hardy, F. Supp. 3d at 164 (quoting Ancient Coin Collectors Guild, 641
F.3d at 513 (D.C.-Cit. 2011)):
To prove that a record meets this requirement, an agency must establish “(1) what
deliberative process is involved, (2) the role played by the documents in issue in the course of
that process, and (3) the nature of the decision-making authority vested in the office or person
issuing the disputed documents], and the positions in the chain of command of the parties to the
documents.” Hardy, 243 F. Supp. 3d at 168 (citations and internal quotation marks omitted).
A. The Withheld Documents Are Inter or Intra-Agency Communications.
Plaintiff argues that defendants fail to meet the first threshold requirement for Exemption
5 because “it is not clear whether some withheld records, like emails, are even inter- or intra-
agency, as Defendants fail to identify the author (or even agency) sender or recipient(s).” ECF
No. 78-1 at 43. Defendants counter that the Williams Declaration provides that all records
withheld pursuant to Exemption 5 were “internal DoD intra-agency communications or inter-
46
agency communications among members of the IRTF task force.” ECF No. 84 at 22 (quoting
ECF No. 64-1 4 60).
Magistrate Judge Robinson found that the documents are inter or intra-agency
communications, explaining:
While Defendants do not identify the author of each record, Defendants nonetheless
demonstrate that the records withheld under Exemption 5 were “interagency or
intra-agency” records. 5 U.S.C. § 552(b)(5). Given the nature of Plaintiffs
requests, it should be no surprise that a large quantity of records were “internal DoD
intra-agency communications or inter-agency communications among members of
the IRTF task force.” Williams Declaration { 60. For example, in correspondence
with DIA, Plaintiff indicated that his first request encompassed, inter alia, emails
that were “[i]ntra-ITRF ... [t]o, from, or including DoD components{, and t]o, from
or including any person at the Department of Justice[.]” Williams Declaration {
60. It also stands to reason that the IRTF database, the central repository for records
for an inter-agency taskforce, would primarily include inter or intra-agency
communications. The undersigned therefore finds that Defendants satisfy the first
threshold requirement for records withheld under Exemption 5, that the records be
“inter or intra-agency[.]” See 5 U.S.C. § 552(b)(5).
ECF No. 87 at 46-47.
The Court agrees with this analysis. Plaintiff appears to have abandoned his argument
regarding this issue. See generally ECF No. 89. This means that he has waived the right to
contest Magistrate Judge Robinson’s findings.
B. Except for One Record, Defendants Do Not Demonstrate that Any Records
Withheld Under Exemption 5 Are Predecisional.
The mission of the IRTF was to assess the impact of WikiLeaks disclosures. See, e.g.,
Vaughn Index at 75 (V-064). The Vaughn Index repeats the same rationale for every Exemption
5 withholding except for two records: “This document contains comments and recommendations,
and its content speaks to the deliberative process regarding the impact assessment of the
47
unauthorized disclosure of information resulting from leaked documents.” 6 See, e.g., Vaughn
Index at 45 (V-034). Defendants maintain that the information contained within all records
withheld under Exemption 5 were “created prior to the final report and prior to any decision or
decisions on actions to remedy damage resulting from the unauthorized disclosures based on the
IRTF’s assessments.” See ECF No. 64-1 4 60. Taking the Williams Declaration and Vaughn
Index together, DIA claims that there were two decisions which these records informed: the final
assessment itself and subsequent remedial measures taken by the Government.
Magistrate Judge Robinson found that only one record was predecisional. She explained:
... Defendants fail to meet their burden to show that all records withheld under
Exemption 5 are predecisional. There are two “umbrella” decisions that DIA
identifies: the Final Report itself and “decisions on actions to remedy damage
resulting from the unauthorized disclosures based on the IRTF’s assessments.”
100Reporters LLC, 248 F. Supp. 3d at 153; Williams Declaration § 60. Given the
number and types of decisions the IRTF had to make in creating the Final Report
and making recommendations for future actions, Defendants’ “broad and opaque
description of the deliberative process involved” is insufficient. Trea Senior
Citizens League v. U.S. Dep’t of State, 923 F. Supp. 2d 55, 68 (D.D.C. 2013) The
record indicates that there were numerous “sub-decision[s]” that DIA made.
100Reporters LLC, 248 F. Supp. 3d at 153 (holding that agency “failed to point to
subsidiary decisions that fall underneath the nebulous umbrella process it has
purported to identify”). For each record withheld, the decision it informed was
either forward-looking, backward-looking, or both. See Williams Declaration { 60.
Moreover, the types of harm that the DIA assessed and its actions to remedy are
numerous. The IRTF analyzed, inter alia, damage to U.S. intelligence sources,
relationships with foreign intelligence agencies, and numerous other potential
harms. See Williams Declaration Jf 34-55. DIA does not explain which harm each
record addressed, and whether the information in each record was primarily
retrospective or forward-looking. With one exception discussed below, the “broad
and opaque” justification for all records withheld under Exemption 5 precludes any
finding that these records are predecisional.’ Trea Senior Citizens League, 923 F.
Supp. 2d at 68.
© Those two records are V-013 and V-850. See Vaughn Index, Amended Vaughn Index. Plaintiff does not appear to
challenge V-013.
7 The lack of dates for many records compounds the problem. While not fatal in and of itself to Defendants’
Exemption 5 withholdings, dates are obviously helpful to situate these records relative to any agency decision. The
following records were withheld under Exemption 5 and are marked “undated”: V-34, V-165, V-494, V-496, V-497,
V-498, V-510, V-573, V-580, V-585, V-604, V-605, V-628, V-637, V-638, V-640, V-641, V-646, V-647, V-654,
V-607, V-669, V-670, V-674, V-705, V-778, V-807, V-817, V-827, V-828, V-829, V-830, V-831, V-840, and V-
850. See Vaughn Index; Amended Vaughn Index.
48
For two records, DIA provides more detail. First, “DIA withheld an operational
assessment aimed at assisting the DoD in addressing questions relating to the
subject matter of the report, as well as conclusions and observations in response to
the questions posed.” Amended Vaughn Index at 343 (V-850). While V-850
relates to “decisions on actions to remedy damage resulting from the unauthorized
disclosures based on the IRTF’s assessments[,]” Defendants’ explanation is lacking
because they do not identify the particular sub-decision that V-850 informed. See
Williams Declaration J 60; /00Reporters LLC, 248 F. Supp. 3d at 153. Second,
DIA indicated that V-778 is an “IRTF Interim Report.” See Amended Vaughn
Index at 292. The Interim Report here necessarily predated the Final Report, so it
was clearly “generated before the adoption of an agency policy.” See Nat'l Sec.
Archive v. Cent. Intelligence Agency, 752 F.3d 460, 463 (D.C. Cir. 2014) (holding
that a draft of an official C.I.A. history of the Bay of Pigs qualified under Exemption
5) (citation omitted). With this one exception, Defendants therefore fail to
demonstrate that DIA records withheld under Exemption 5 were predecisional.
ECF No. 87 at 47-49.
Plaintiff does not appear to object to this aspect of the report, meaning that he has waived
the right to contest the one document that Magistrate Judge Robinson deemed predecisional.
Defendants never filed an objection to the report, and they ask this Court to adopt Magistrate
Judge Robinson’s recommendation in its entirety. See ECF No. 90 at 1. The Court also agrees
with Magistrate Judge Robinson’s analysis and finds that defendants have only shown that one
record is predecisional. As explained below, however, that one record is not deliberative,
meaning that defendants still cannot properly invoke Exemption 5 without further
supplementation of the record.
C. Defendants Do Not Demonstrate that Any Records Withheld Under Exemption 5
Are Deliberative.
To justify its Exemption 5 withholdings, Defendants also offer blanket explanations of
how the withheld records are deliberative in nature. DIA explains that all withheld records were
“internal government communications, analyses, and recommendations, such as memoranda,
desk notes, talking points, briefing slides, daily updates, and emails[.]” ECF No. 64-1 4 60. Each
49
record “concerned the IRTF’s interim analyses and assessments of the harm to national security
resulting from unauthorized disclosures, which was all done prior to issuing the final report.” Jd.
With the exception of the two records previously identified, each withholding in the Vaughn
Index reflects DIA’s conclusion that each record “contains comments and recommendations, and
its content speaks to the deliberative process regarding the impact assessment of the
unauthorized disclosure of information resulting from leaked documents.” See, e.g., Vaughn
Index at 45 (V-034).
Magistrate Judge Robinson found that the records withheld under Exemption 5 were not
deliberative, explaining:
For every withholding under Exemption 5, DIA’s justifications fail to sufficiently
describe each “individual document and the role it plays in the administrative
process.” Coastal States Gas Corp., 617 F.2d at 867. One conclusory paragraph
in a declaration and another conclusory paragraph repeated hundreds of times in a
Vaughn Index will not do. Defendants do not satisfy any of the three criteria for
protection under Exemption 5. See Hardy, 243 F. Supp. 3d at 168.
First, Defendants do not provide a “precisely tailored” description of what decision-
making process is involved for each record. Coastal States Gas Corp., 617 F.2d at
868; see also Hardy, 243 F. Supp. 3d at 175 (holding that “[m] erely including the
word ‘analysis’ in a document’s description is insufficient” to demonstrate what
deliberative process is involved); Elec. Frontier Found. v. U.S. Dep’t of Justice,
826 F. Supp. 2d 157, 168 (D.D.C. 2011) (holding that “vague references” to
“deliberations” in the course of agency negotiations “fail[ed] to identify a specific
deliberative process to which the withheld [material] contributed). As previously
discussed, Defendants do not “pinpoint” the particular decision to determine that
the records at issue are predecisional. Senate of P.R., 823 F.2d at 585. Defendants’
conclusory justifications also frustrate review as to whether these records informed
deliberations regarding particular decisions.
Second, DIA does not explain the “function and significance of the document[s] in
the agency’s decisionmaking process.” Trea Senior Citizens League, 923 F. Supp.
2d at 68 (citations omitted). DIA merely explains that each record withheld
contains “comments and recommendations . . . regarding the impact statement[.]”
See, e.g., Vaughn Index at 45 (V-034). DIA does not explain what role each record
played with respect to the impact statement. It stands to reason that each of the
“memoranda, desk notes, talking points, briefing slides, daily updates, and emails”
withheld under Exemption 5 informed agency decision-making in distinct ways.
50
Williams Declaration { 60. Defendants’ “cursory explanations” do not explain
how. Trea Senior Citizens League, 923 F. Supp. 2d at 69.
Third, DIA does not identify “the identities, positions, and job duties of the authors
and recipients of the withheld documents.” Elec. Frontier Found., 826 F. Supp. 2d
at 170. The undersigned has none of this “critical” information for any record. Jd.;
see also Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)
(“A key feature . . . is the relation between the author and recipients of the
document.”). DIA only states that the withheld records “were either internal DoD
intra-agency communications or inter-agency communications among members of
the IRTF task force[.]” Williams Declaration | 60. Courts in this Circuit require
more context so that a reviewing court can determine whether a record reflects a
deliberative “give-and-take” process or instead reflects “the denouement of the
decisionmaking.” Access Reports, 926 F.2d at 1195 (distinguishing between the
deliberative nature of communications “from a senior to a junior” and “from a
junior to a senior”), The roles and identities of the authors and recipients are totally
lacking here. Therefore, the undersigned recommends that Defendants be ordered
to supplement the Vaughn Index to further explain how the records withheld under
Exemption 5 are predecisional and deliberative.
ECF No. 87 at 50-51.
Defendants never filed an objection to the report, and they ask this Court to adopt
Magistrate Judge Robinson’s recommendation in its entirety. See ECF No. 90 at 1. The Court
also agrees with Magistrate Judge Robinson’s analysis and therefore finds that defendants failed
to show that the documents withheld under Exemption 5 were deliberative. Therefore,
defendants cannot invoke Exemption 5 without further supplementation of the record. .
D. Defendants Fail to Demonstrate am Adequate Segregability Analysis For
Records Withheld Pursuant to Exemption 5.
The segregability analysis for Exemption 5 is the same as for Exemptions 1 and 3, which
was explained in Section III(D). Like with Exemptions 1 and 3, Magistrate Judge Robinson
found that defendants did not demonstrate an adequate segregability analysis for records
withheld under Exemption 3. She explained:
While there is no evidence of internal debates suggesting that DIA did not conduct
an adequate segregability analysis for its Exemption 5 withholdings, Defendants
51
still do not explain with “reasonable specificity’ how DIA undertook its
segregability analysis for its Exemption 5 withholdings. Johnson, 310 F.3d at 776;
Williams Declaration § 63. Based on the conclusory nature of Defendants’
segregability analysis, Defendants do not meet their burden to demonstrate that
DIA has provided all “reasonably segregable” non-exempt information to Plaintiff.
5 U.S.C. § 552(b). The undersigned therefore recommends that Defendants’
motion for summary judgment be denied without prejudice, and that Defendants be
ordered to supplement their justifications for Exemption 5 withholdings with an
adequate segregability analysis. Further, to the extent that Plaintiff's motion for in
camera review applies to all records, it is equally inappropriate for DIA’s
Exemption 5 withholdings.
ECF No. 87 at 51-52.
Defendants never filed an objection to the report, and they ask this Court to adopt
Magistrate Judge Robinson’s recommendation in its entirety. See ECF No. 90 at 1. The Court
also agrees with Magistrate Judge Robinson’s analysis and will therefore order defendants to
supplement the record with respect to the segregability issue.
VI. Plaintiff Does Not Challenge Defendants’ Invocation of Exemption 7(C).
Exemption 7 protects from disclosure certain records “compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7). DIA previously claimed that Exemption 7(A), applied to certain
records. See ECF No. 84-1 § 32. After further review, DIA determined that information withheld
under 7(A) could be released. See id. DIA still maintains that subsection 7(C) applies to one
record, V-287. Jd. 433. To satisfy the first threshold question of whether the information was
“compiled for law enforcement purposes,” defendants maintain that the information within V-
287 relates to “law enforcement investigations” undertaken by the FBI to determine “possible
violations of Federal criminal laws” stemming from the Wikileaks disclosures. 5 U.S.C. §
552(b)(7); ECF No. 84-1 §§ 32-34. Defendants assert that Exemption 7(C) is satisfied because
disclosure of the information “could reasonably be expected to constitute an unwarranted
52
invasion of privacy” of the Special Agent who pursued the investigation. 5 U.S.C. §
552(b)(7)(C); ECF No. 84-1 9 32-34.
Magistrate Judge Robinson found that because plaintiff does not challenge defendants’
use of Exemption 7(C), summary judgment should be granted for the defense on this issue. She
explained:
Defendants raised these justifications for the first time in their Opposition and
Reply, which included a new, supplemental Declaration. See Defendants’ Reply at
23-24; Supplemental Williams Declaration §{ 32-37. Plaintiff previously objected
to these withholdings on the grounds that DIA’s previous justifications merely
restated the statutory standard. Plaintiff's Memorandum at 42-43. Plaintiff has
subsequently indicated that he “has elected not to challenge Defendants’ one
invocation of Exemption 7(C) in light of the information provided in the
Supplemental Williams Declaration.” Plaintiff's Reply at 5 n.2. In light of
Plaintiff's concession, the undersigned recommends that summary judgment be
granted in favor of Defendants with respect to V-287, the only record currently
withheld pursuant to Exemption 7.
ECF No. 87 at 53.
Plaintiff's objection to the report contains no mention of Exemption 7(C), and the Court
agrees with Magistrate Judge Robinson’s recommendation. The Court will thus grant summary
judgment for the defense on this issue.
CONCLUSION
Based on the foregoing, the Court will GRANT IN PART AND DENY IN PART
plaintiff's and defendants’ motions for summary judgment (ECF Nos. 78 and 64 respectively).
The Court will GRANT defendants’ motion for summary judgment and DENY
plaintiff's motion for summary judgment with respect to (1) the adequacy and scope of DIA’s
search for responsive records; (2) the overall adequacy of defendants’ Vaughn Index and
associated declarations; and (3) defendants’ Exemption 7 withholdings.
53
With respect to Exemption 1, the Court will ORDER defendants to supplement the
record regarding the segregability analysis.
With respect to Exemption 3, the Court will ORDER defendants to supplement the
record with respect to V-106 and all other records withheld under 10 U.S.C. § 424 on the basis of
“revealing DIA functions.” The Court will further ORDER defendants to supplement the record
regarding the Exemption 3 segregability analysis.
With respect to Exemption 5, the Court will ORDER defendants to supplement the
record regarding the deliberative process privilege. The Court will further ORDER defendants to
supplement the record regarding the Exemption 5 segregability analysis.
The Court will DENY plaintiffs motion for in camera review (ECF No. 79).
A separate Order accompanies this Memorandum Opinion.
Date: ay 7 / te to < Kiet. Poulet.
Royce C. Lamberth
United States District Court Judge
54