Bales v. U.S. Dep't of State
| Decision Date | 06 March 2020 |
| Docket Number | Civil Action No.: 18-2779 (RC) |
| Parties | ROBERT BALES, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
This is a Freedom of Information Act ("FOIA") case brought by Robert Bales, a former member of the U.S. Military who is currently serving a life sentence after having been convicted by court-martial for the 2012 murders of sixteen Afghan civilians. See United States v. Bales, No. ARMY 20130743, 2017 WL 4331013 (A. Ct. Crim. App. Sept. 27, 2017) (affirming Bales's conviction), aff'd, 77 M.J. 268 (C.A.A.F. 2018), cert denied, 138 S. Ct. 2692 (2018). At this stage of the litigation, the Department of State ("the Department" or "the Government") asks the Court to rule that it properly responded to a FOIA request from Bales when it refused to confirm or deny the existence of records (a so-called "Glomar response") relating to visas requested by or issued to seven Afghan witnesses who testified at the Plaintiff's court-martial.
On September 18, 2018, Plaintiff, acting through his attorney, submitted a FOIA request to the Department seeking "travel records and biometric data/evidence related to Afghan witnesses the U.S. Army and the [State Department] brought to the United States in the Army's court-martial" which was held on a base in the state of Washington in 2013. Compl. Ex. 1 ("FOIA Request") at 1, ECF No. 1-2; see also Def.'s Mot. for Summ. J., Ex. 1, Decl. of Eric F. Stein ("Stein Decl.") ¶ 6, ECF No. 12-2. The request sought two categories of records. The first was "Travel records pertaining to the seven Afghan witnesses," including visas, passports, related documents or endorsements, and any correspondence between the Department and the military or between the Department and the Government of the Islamic Republic of Afghanistan. FOIA Request at 2-3. The second category was biometric data, including DNA samples or iris scans, that pertained to the witnesses. Id. at 4-6. On November 28, 2018 the Plaintiff filed this lawsuit attempting to compel the Department's compliance with its obligations under FOIA. See Compl., ECF No. 1.
On April 11, 2019, the Department gave Plaintiff a partial response and explained "that it could not disclose any visa records, including whether any visa records exist relative to a particular individual, because these records are confidential under . . . the Immigration and Nationality Act [("INA")], 8 U.S.C. § 1202(f), and Plaintiff's request did not include authorization from the subjects of the request." Joint Status Report of 5/6/2019, ECF No. 9. Two weeks later, the Department informed the Plaintiff that it had not located any documents responsive to those parts of his request that did not relate to information protected under Section 1202(f). Id. The parties conferred over the following months and it was determined that Plaintiff would only be challenging the Glomar response he received in connection with the visa records, not any other part of the response. Joint Status Report of 7/3/2019, ECF No. 11.
The Department moved for summary judgment, arguing that its Glomar response was valid under FOIA Exemptions 3 and 6. Mem. of L. in Supp. of Def.'s Mot. for Summ. J. ("MSJ Br."), ECF No. 12-1. Plaintiff opposed this motion. Mem. in Opp'n to Def.'s Mot. for Summ. J ("Opp'n"), ECF No. 13, but did not file a cross-motion for summary judgment, as would betypical in a FOIA case.1 The Department replied, and the motion is now ripe for decision. Reply in Supp. of Def.'s Mot. for Summ. J. ("Reply"), ECF No. 14.
FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.'" FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)). The Act mandates release of properly requested federal agency records, unless the materials fall squarely within one of nine statutory exemptions. Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011); Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)). Additionally, FOIA "requires that even if some materials from the requested record are exempt from disclosure, any 'reasonably segregable' information from those documents must be disclosed after redaction of the exempt information unless the exempt portions are 'inextricably intertwined with exempt portions.'" Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir. 2002) (). Exemptions must be "narrowly construed," and "conclusory and generalized allegations of exemptions are unacceptable." Prop. of the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Morley v. CIA, 508 F.3d 1108, 1114-15 (D.C. Cir. 2007).
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). An agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates "that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information." Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017). "This burden does not shift even when the requester files a cross-motion for summary judgment"—and this Plaintiff has not—"because 'the Government ultimately has the onus of proving that the documents are exempt from disclosure.'" Hardy v. ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).
To carry its burden, the agency must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of the withheld document to which they apply." Elec. Privacy Info. Ctr. v. DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). The agency "cannot justify its withholdings on the basis of summary statements that merely reiterate legal standards or offer 'far-ranging category definitions for information,'" Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 955 F. Supp. 2d 4, 13 (D.D.C. 2013) (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 221 (D.C. Cir. 1987)), but it "may rely on declarations that are reasonably detailed and non-conclusory," Pinson v. U.S. Dep't of Justice, 245 F. Supp. 3d 225, 239 (D.D.C. 2017); see also Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (). While a reviewing court should "respect the expertise of an agency," Hayden v. NSA / Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979), courts review an agency's decision to withhold records de novo. Pinson, 245 F. Supp. 3d at 239.
"Glomar responses are an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information." Am. Civil Liberties Union v. CIA ("ACLU"), 710 F.3d 422, 426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)). An agency can only give a Glomar response "when confirming or denying the existence of records would itself 'cause harm cognizable under a[] FOIA exception.'" Id. (quoting Roth, 642 F.3d at 1178) (internal quotations omitted). To apply this rule and determine whether the very existence of records fits in a FOIA exemption, "courts apply the general exemption review standards established in non-Glomar cases." Id. (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). "Ultimately," whether or not the plaintiff's argument is based on public disclosure, an agency's justification for invoking a Glomar response or any FOIA exemption "is sufficient if it appears 'logical' or 'plausible.'" Id. at 427 (quoting Wolf, 473 F.3d at 374-75).
The exemptions at issue in this case are Exemptions 3 and 6. Exemption 3 allows the government to withhold information "specifically exempted from disclosure by statute," if such statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers toparticular types of matters to be withheld." 5 U.S.C. § 552(b)(3). Here, the Government relies on section 1202(f) of the INA, 8 U.S.C. § 1202(f), which says that records "pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential." See MSJ Br. at 1. Exemption 6 prevents disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
The Department argues that Exemptions 3 and 6 are independent grounds on which its Glomar response was proper. This means the Department is entitled to summary judgment if it is correct on either argument. Because the Court finds that Exemption 6 is a proper basis for the...
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