Rudometkin v. United States ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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DAVID J. RUDOMETKIN, )
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Plaintiff, )
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v. ) Civil Action No. 20-cv-2687 (TSC)
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UNITED STATES OF AMERICA, )
)
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Defendant. )
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MEMORANDUM OPINION
Defendant in this FOIA case has supplemented the record with respect to the
search and certain withheld information and renewed its motion for summary judgment.
See Mem. Op. and Order (“Mem. Op. 1”), ECF No 43 (granting partial summary
judgment). Plaintiff has cross-moved for summary judgment. For the reasons
explained below, Defendant’s motion will be GRANTED, and Plaintiff’s motion will be
DENIED.
A. Adequacy of the Search
Defendant has now produced sufficient evidence to enable an examination of its
search for responsive records. See Mem. Op. 1 at 5-6 (finding no factual record to
support summary judgment). Plaintiff had requested from the Office of the Secretary of
Defense (OSD) “copies of any communications concerning the nomination, selection,
and appointment of [Colonel] Douglas K. Watkins to the Chief Trial Judge of the
Military Commissions Trial Judiciary.” Mem. Op. 1 at 1. In Defendant’s supplemental
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declaration, Associate Deputy General Counsel Mark H. Herrington explains the
process that resulted in Colonel Watkins’ selection and describes the search performed
by the attorney who was “involved in the entire process” and “had access to the
locations of all the documents related to [Plaintiff’s] request.” Second Herrington
Decl., ECF No. 48-3 ¶ 5. The documents “were stored in the shared drive of electronic
records in [the] Office of General Counsel [“OGC”] in a folder” under the attorney’s
name and “in his email account.” Id. The attorney’s search “for items identified as
relating to the Chief Judge and Colonel Watkins,” id., located the records that were
released to Plaintiff on May 3, 2021. See Mem. Op. 1 at 3. Herrington attests that the
released records “encompassed all records responsive to Plaintiff’s request within the
Office of the Secretary of Defense.” Id.
Plaintiff disputes neither the description of the search nor its reasonableness
given “the very specific nature of the [FOIA] request and the singular location where
the documents were held.” Def.’s Renewed Mot. for Summ. J., ECF No. 48 at 3; see
generally Pl.’s Reply to Def’s Counsel (Mr. Herrington) Decl. and Cross Mot. for
Summ. J. (“Pl.’s Opp’n”), ECF No. 51. Therefore, the court will grant Defendant’s
motion on its defense of the search.
B. Improper Withholdings
The court concluded that Defendant had improperly withheld certain information
under FOIA Exemption 5 based on the deliberative process privilege and the attorney-
client privilege. Mem. Op. 1 at 8-11. In response, Defendant has released to Plaintiff
all the Bates pages listed in the Vaughn Index as Documents 2, 9 and duplicate
Document 30, see Second Herrington Decl. ¶ 6, the partial releases of which were found
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to be improper, see Mem. Op. at 9-10. In addition, Defendant has withdrawn “its
assertion of attorney-client privilege as to any records but maintains that the relevant
emails and memoranda from OGC attorneys and the Secretary remain pre-decisional
deliberative process privileged[.]” Second Herrington Decl. ¶ 7; see also id. ¶ 10
(explaining that “the emails and memoranda are also deliberative, as they represent the
opinions, advice, analysis and recommendations conveyed by senior government
attorneys during the decision-making process”). Herrington notes that the court
previously approved all other Exemption 5 redactions as deliberative process material,
id. ¶¶ 8-10 (citing Mem. Op. 1 at 7-9), and accounts for the remaining documents
containing Exemption 5 redactions, see id. ¶ 9. The withheld material consists of “the
direct recommendations from subordinates to either the Office of General Counsel or
Secretary of Defense,” pre-decisional “draft copies of those deliberative documents,”
and duplicate pages. Def.’s Mot. at 4-6 (citing Second Herrington Decl. ¶ 9(C), 9(D),
9(E), 9(G)); see Vaughn Index, Docs. 3, 5, 6, 11, 12, 13, 14-19, 21, 23, 24, 26.
Plaintiff “challenges all of [Defendant’s] Exemption 5 privilege as improper
under the FOIA Improvement Act.” Pl.’s Opp’n at 1. In addition, Plaintiff “raises a
colorable claim there is evidence of government misconduct in the nomination and
selection” of Colonel Watkins as Chief Judge “that merits records being un-redacted
and fully disclosed.” Pl.’s Opp’n at 1. Plaintiff’s claims, discussed next in reverse
order, are unavailing.
1. Misconduct Claim
Plaintiff premises his cross-motion for summary judgment on the alleged
misconduct. See Opp’n and Cross-Mot. at 3-5, citing Decl. of David J. Rudometkin,
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ECF No. 51-1. But as concluded previously, the misconduct allegation is irrelevant to
the Exemption 5 analysis. See Mem. Op. 1 at 8-9. The privilege cases upon which
Plaintiff relies, see Opp’n at 3-4, are inapposite because they are not FOIA cases. In
one such case, the D.C. Circuit crystallized the distinction, noting that the need
“characteristic of the deliberative process privilege is not an issue in FOIA cases
because the courts have held that the particular purpose for which a FOIA plaintiff
seeks information is not relevant in determining whether FOIA requires disclosure.” In
re Sealed Case, 121 F.3d 729, 738, n.5 (D.C. Cir. 1997).
2. FOIA Improvement Act
In 2016, Congress enacted the FOIA Improvement Act “in part out of concerns
that some agencies were overusing FOIA exemptions that allow, but do not require,
information to be withheld from disclosure.” Reps. Comm. for Freedom of the Press v.
Fed. Bureau of Investigation, 3 F.4th 350, 369 (D.C. Cir. 2021) (citations and
alterations omitted). Congress “was particularly concerned with increasing agency
overuse and abuse of Exemption 5 and the deliberative process privilege.” Id.Therefore, “Congress added the distinct foreseeable harm requirement to foreclose the
withholding of material unless the agency can articulate both the nature of the harm
from release and the link between the specified harm and specific information contained
in the material withheld.” Id.Consequently, for requests submitted after June 30, 2016, id. at 358, an agency
may withhold information under a FOIA exemption only if it “reasonably foresees that
disclosure would harm an interest protected by an exemption” or if “disclosure is
prohibited by law[.]” 5 U.S.C. § 552(a)(8)(A). An agency cannot rely on “mere
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‘speculative or abstract fears,’ or fear of embarrassment,” nor can it satisfy its burden
with “generalized assertions[.]” Reps. Comm. for Freedom of the Press, 3 F.4th at 369
(citation omitted).
Herrington attests that “it is reasonably foreseeable that disclosure” of the
redacted recommendations “would harm the full and free discussion of the nomination
within the agency” since it “is the record of recommendations from the Judge Advocate
General of each of the military services.” Second Herrington Decl. ¶ 11; see accord
Mem. Op. 1 at 8 (citing Defendant’s attestation of foreseeable harm). Herrington adds
that if such information is “made public and conflicted with the ultimate decision, those
officers could suffer negative impacts on their ability to lead and their careers.” Id.
Focusing on the latter, Plaintiff posits that no harm could come from the release
of “discussions made over four years ago . . . about officers who have since retired,
about a 4 year old agency decision.” Pl.’s Opp’n at 2-3. But Defendant has sufficiently
articulated “[a] link between the specified harm,” i.e., the chilling of candid discussions
about future candidates, and the withheld information, i.e., the officers’ solicited
recommendations as part of the decision-making process. Reps. Comm. for Freedom of
the Press, 3 F.4th 350 at 371; see accord Mem. Op. 1 at 8. In other words, Defendant
has “specifically focused on the information at issue” and reasonably explained how
“disclosure of that information would chill future internal discussions.” Machado
Amadis v. United States Dep't of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (internal
quotation marks omitted) (emphases added)). And the “chilling of candid advice is
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exactly what the [deliberative process] privilege seeks to prevent.” 1 Id.C. Record Segregability
An agency must disclose “[a]ny reasonably segregable portion” of an otherwise
exempt record. 5 U.S.C. § 552(b). While an agency is presumed to have complied with
its obligation to disclose non-exempt portions of the record, a “district court must make
specific findings of segregability regarding the documents to be withheld.” Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). The D.C. Circuit “has long
recognized . . . that documents may be withheld in their entirety when nonexempt
portions “‘are inextricably intertwined with exempt portions.’” Juarez v. Dep't of Just.,
518 F.3d 54, 61 (D.C. Cir. 2008) (quoting Mead Data Central, Inc. v. U.S. Dep't of Air
Force, 566 F.2d 242, 260(D.C. Cir. 1977)).
Initially, Herrington attested to having “conducted a page-by-page and line-by-
line review” of all responsive documents and finding “no further reasonably segregable
information” with respect to Exemptions 5 and 6. First Herrington Decl. (“Herrington
Decl.”) ¶ 13, ECF No. 21-3. In the supplemental declaration, Herrington attests to
having conducted a “line by line” review of the current documents and redacting the
deliberative process material. Second Herrington Decl. ¶ 12; see id. ¶ 7 (“All
deliberative process documents were redacted to remove only the exempted portions.”).
Herrington explains that in certain documents such as “the action memo with
recommendations from the General Counsel to the Secretary,” deliberative process
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Plaintiff states “[g]iven that no statute prevents the disclosure of the DoD General Counsel
routing sheets, information memos, such as document 21, or emails, the remaining issue is
whether” Defendant has satisfied the foreseeable harm requirement. Pl.’s Opp’n at 2 (parenthesis
omitted). The statement, to the extent intelligible, presents no genuine issue of material fact with
respect to the Exemption 5 withholdings.
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information “was withheld practically in full because the recommendations could not be
separated from the non-exempt portion of the record.” Id. ¶ 12; see Herrington Decl. ¶
8 (redacted material encompassed “substance of the actual nominations and
accompanying advice and recommendations”). In addition to those “heavily redacted”
documents, Defendant has withheld in full only unsigned draft versions of deliberative
documents containing “edits and notes.” Second Herrington Decl. ¶¶ 7, 10. Defendant
has shown “with reasonable specificity” why those responsive documents could not “be
further segregated,” Armstrong v. Executive Office of the President, 97 F.3d 575, 578
(D.C. Cir. 1996), and the Exemption 6 withholdings of third-party identifying
information are minimal and properly justified. Therefore, the court finds that all
reasonably segregable non-exempt information has been disclosed to Plaintiff.
CONCLUSION
For the foregoing reasons, the court concludes that no genuine dispute remains
and that Defendant, having now fully complied with the FOIA, is entitled to judgment
as a matter of law. A separate order accompanies this memorandum opinion.
Date: July 26, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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