Bigwood v. U.S. Dep't of Def.

• Decision Date: 25 September 2015
• Docket Number: Civil Action No. 11–cv–0602 (KBJ)
• Citation: 132 F.Supp.3d 124
• Parties: Jeremy Bigwood, Plaintiff, v. United States Department of Defense and Central Intelligence Agency, Defendants.
• Court: U.S. District Court — District of Columbia

132 F.Supp.3d 124

Jeremy Bigwood, Plaintiff,

v.United States Department of Defense and Central Intelligence Agency, Defendants.

Civil Action No. 11–cv–0602 (KBJ)

United States District Court, District of Columbia.

Signed September 25, 2015

Zachary J. Wolfe, George Washington University, Washington, DC, Anjana Samant, Pamela Carol Spees, New York, NY, Barbara C. Moses, Seton Hall University School of Law, Newark, NJ, for Plaintiff.

Kathryn Celia Davis, Nathan Michael Swinton, Thomas David Zimpleman, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE

KETANJI BROWN JACKSON, United States District Judge

This action arises out of requests that plaintiff Jeremy Bigwood ("Plaintiff") submitted to the Department of Defense's Southern Command ("Southcom") and the Central Intelligence Agency ("CIA") (collectively, "Defendants"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, in which Plaintiff sought information about the June 28, 2009, coup d'état in Honduras. On January 28, 2014, Defendants moved for summary judgment on Plaintiff's complaint, asserting that they conducted an adequate search and turned over all responsive records, except those that they properly withheld under the applicable FOIA exemptions. (Defs.' Mot. for Summ. J., ECF No. 25, at 6.)¹ In his opposition brief, Plaintiff conceded the CIA's motion for summary judgment (Pl.'s Mem. of Law in Opp'n to Mot. for Summ. J. by DOD, ECF No. 28, at 7), leaving at issue in this matter only the adequacy of Southcom's search for documents responsive to Plaintiff's FOIA requests and its invocation of FOIA exemptions. After this motion became ripe upon the filing of Defendants' reply on April 1, 2014 (ECF No. 33), Plaintiff filed a motion seeking leave to file a sur-reply (ECF No. 34). On February 24, 2015, this Court referred this matter to a Magistrate Judge for full case management.

Before this Court at present is the Report and Recommendation (ECF No. 42) that the assigned Magistrate Judge, G. Michael Harvey, has filed regarding Defendants' motion for summary judgment and Plaintiffs' motion for leave to file a surreply. The Report and Recommendation reflects Magistrate Judge Harvey's opinions that this Court should grant Defendants' motion for summary judgment and deny Plaintiff's motion for leave to file a surreply. (Id. at 1–2.) Specifically, Magistrate Judge Harvey finds that Southcom's search for responsive records was adequate (id. at 15–25); that it appropriately invoked FOIA Exemptions 1 and 7(E) to withhold responsive material (id. at 25–30); and that it produced all reasonably segregable non-exempt information (id. at 30–33). He also recommends that this Court deny Plaintiff's request that the undersigned conduct an in camera review of the material that Southcom withheld under Exemptions 1 and 7(E), finding that doing so would be an unnecessary expenditure of judicial resources under these circumstances. (Id. at 37–38.) Finally, Magistrate Judge Harvey recommends that this Court deny Plaintiff's motion for leave to file a sur-reply because the proposed sur-reply does not address matters that Southcom raised for the first time in its reply brief. (Id. at 38.)

The Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (Id. at 39.) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (Id. at 40.) Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. LCvR 72.3(b). As of this date—over a month after the Report and Recommendation was issued—no objections have been filed.

This Court has reviewed Magistrate Judge Harvey's report and agrees with its careful and thorough analysis and conclusions. Thus, the Court will ADOPT the Report and Recommendation in its entirety. Accordingly, Defendants' Motion for Summary Judgement will be GRANTED; and Plaintiff's Motion for Leave to File a Sur-reply will be DENIED.

A separate Order accompanies this Memorandum Opinion.

REPORT AND RECOMMENDATION

G. Michael Harvey, United States Magistrate Judge

On February 24, 2015, this case was referred to the undersigned for full case management. Currently ripe for resolution are defendants' motion for summary judgment and plaintiff's motion for leave to file a sur-reply to defendants' motion for summary judgment. Upon a thorough review of the parties' briefs and the entire record herein,¹ the undersigned recommends that defendants' motion for summary judgment be granted, and that plaintiff's motion for leave to file a sur-reply to defendants' motion for summary judgment be denied.

I. BACKGROUND

Plaintiff in this case is Jeremy Bigwood, a freelance investigative journalist. Pl.'s Suppl. Facts ¶ 1; Compl. ¶ 16. Defendants are two Executive Department agencies—the Department of Defense's ("DOD") Southern Command ("Southcom") and the Central Intelligence Agency ("CIA"). Id. ¶¶ 17, 19; 5 U.S.C. § 552(f)(1). Southcom is a joint command within the DOD comprised of, inter alia, members of the United States Army, Navy, Air Force, Marine Corps, and Coast Guard. Compl. ¶ 19. It is "responsible for providing contingency planning, operations, and security cooperation for Central and South America including Honduras." Id. This action arises out of plaintiff's requests to Southcom and the CIA, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., in which plaintiff sought information about the June 28, 2009, coup d'état in Honduras. Pl.'s Facts ¶ 2; Compl. ¶¶ 1, 2. This Report and Recommendation only addresses plaintiff's FOIA requests to Southcom, as plaintiff no longer opposes defendants' motion for summary judgment concerning plaintiff's FOIA requests to the CIA. Pl.'s Facts ¶¶ 19–27; Pl.'s Opp. at 1.

In plaintiff's first FOIA request to Southcom, submitted on July 1, 2009, plaintiff sought:

all records relating to the coup against Honduras' President Manuel Zelaya including, but not limited to: a. any observations or reports about the activities of the Honduran Armed Forces with respect to the coup—as well as the coup itself; b. any records of the passage of the kidnapped president through any military bases, such as Soto Cano—which has a significant U.S. presence; c. any reports about the coup d'état before it actually took place; and d. inter-agency communications to and from [Southcom], as U.S. officers in Honduras may have been informing other US government entities about the coup.

Compl. ¶ 23 (internal quotation marks omitted). Plaintiff asked that his FOIA request receive expedited processing. Id. ¶ 24. On November 29, 2010, Southcom sent plaintiff an "interim response," confirming receipt of plaintiff's July 2009 FOIA request and acknowledging that Southcom had, on November 24, 2010, granted plaintiff's request for expedited processing. Pl.'s Suppl. Facts ¶ 2; Compl. ¶ 32. On February 7, 2011, plaintiff submitted a written administrative appeal to Southcom, requesting review of Southcom's failure to make a determination regarding his FOIA request. Pl.'s Suppl. Facts ¶ 3; Compl. ¶¶ 37, 38. On February 10, 2011, Southcom accepted plaintiff's letter of administrative appeal. Pl.'s Suppl. Facts ¶ 3; Compl. ¶¶ 37, 39. Southcom never responded to the administrative appeal. Compl. ¶¶ 37, 39.

In his second FOIA request to Southcom, submitted on July 8, 2009, plaintiff "requested all records, from May 1, 1979, relating to Honduran Army General Romeo Vásquez Velásquez,² including, but not limited to, any biographical sketches of him." Pl.'s Facts ¶ 2; Compl. ¶ 43. Plaintiff again asked that his FOIA request receive expedited processing. Compl. ¶ 44. On December 16, 2010, Southcom sent plaintiff another "interim response," confirming receipt of plaintiff's second FOIA request and granting plaintiff a fee waiver, but not addressing plaintiff's request for expedited processing. Id. ¶ 49; Pl.'s Suppl. Facts ¶ 2. On February 7, 2011, plaintiff submitted a written administrative appeal to Southcom, seeking review of Southcom's failure to make a determination as to his second FOIA request. Pl.'s Suppl. Facts ¶ 3; Compl. ¶¶ 52, 53. On February 10, 2011, Southcom accepted plaintiff's letter of administrative appeal. Compl. ¶¶ 52, 54. Southcom never responded to plaintiff's administrative appeal. Id.

On June 20, 2011, Southcom produced 66 documents consisting of 272 pages in response to plaintiff's requests. Pl.'s Suppl. Facts ¶ 5. On July 7, 2011, Southcom produced an additional five documents consisting of 26 pages. Defs.' Facts ¶ 5. Upon review of these initial productions, plaintiff asserted that DOD had failed to produce responsive documents and had over-redacted the documents it did produce. Pl.'s Opp. at 1. In response, while maintaining that it had conducted an adequate search for responsive records, Southcom agreed to conduct a second search to address plaintiff's concerns. Defs.' Facts ¶ 6. Following the second search for documents, Southcom produced 88 additional documents consisting of 784 pages on September 26, 2013. Pls.' Suppl. Facts ¶ 7; Bloom Decl. ¶ 12.

On March 23, 2011, plaintiff filed the present action, challenging Southcom's response to his FOIA requests on two bases: he contends that Southcom's searches for responsive documents were inadequate, and that Southcom inappropriately invoked several FOIA exemptions to withhold responsive documents. Pl.'s Opp. at 11, 26. On January 28, 2014, defendants filed a motion for summary judgment on the grounds that they had conducted an...