Bloche v. Dep't of Def.

• Decision Date: 29 October 2019
• Docket Number: Civil Action No.: 07-2050 (RC)
• Citation: 414 F.Supp.3d 6
• Parties: M. Gregg BLOCHE and Jonathan H. Marks, Plaintiffs, v. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

414 F.Supp.3d 6

M. Gregg BLOCHE and Jonathan H. Marks, Plaintiffs,

v.DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No.: 07-2050 (RC)

United States District Court, District of Columbia.

Signed October 29, 2019

Aderson Bellegarde Francois, Georgetown University Law Center, Washington, DC, for Plaintiff.

Elizabeth J. Shapiro, Kristina Ann Wolfe, Susan K. Ullman, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS' RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This suit arising under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, began in 2007, when Plaintiffs M. Gregg Bloche and Jonathan H. Marks sought records from multiple federal government entities concerning the involvement of medical professionals in designing and implementing interrogation tactics. Presently before the Court are two sets of motions. First, three Defendant agencies, (1) the Department of the Navy ("Navy"); (2) the Office of the Assistant Secretary of Defense for Health Affairs ("OASD-HA Policy"); and (3) the Department of Defense's Office of the Deputy General Counsel for Personnel and Health Policy ("OASD-HAGC"), renew their motion for summary judgment.¹ See ECF No. 110. For the reasons set forth below, the Court grants in part and denies in part this motion.

Second, separately before the Court are cross-motions for summary judgment concerning six other Defendant agencies: (1) the United States Army ("Army"); (2) the Office of the Director of National Intelligence ("ODNI");² (3) the United States Special Operation Command ("SOCOM"); (4) the Defense Intelligence Agency ("DIA"); (5) the United States Central Command ("CENTCOM"); and (6) the Joint Task Force Guantanamo ("JTF-GTMO").³ See ECF Nos. 96, 97.⁴ Each of these Defendant agencies conducted its own search in response to Plaintiffs' FOIA requests, and the adequacy of Defendants' searches are not at issue.⁵ What is at issue in these cross-motions is the application of FOIA exemptions to withhold in full or in part the documents produced by the agencies. For reasons that the Court will detail below after addressing Defendants' renewed motion for summary judgment, see ECF No. 110, the Defendant agencies involved in the pending cross-motions for summary judgment, see ECF Nos. 96, 97, have provided adequate justification for some, but not all of their claimed exemptions. The Court thus grants in part and denies in part Defendants' motion for partial summary judgment and denies Plaintiffs' cross-motion for partial summary judgment.

II. LEGAL STANDARD

Congress enacted FOIA to permit citizens to discover "what their government is up to." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting EPA v. Mink , 410 U.S. 73, 105, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (Douglas, J. dissenting)). FOIA requires the agency to disclose records located in response to a valid FOIA request, unless material in the records falls within one of FOIA's nine statutory exemptions. 5 U.S.C. § 552(b) ; see also Judicial Watch, Inc. v. Dep't of Def. , 847 F.3d 735, 738 (D.C. Cir. 2017) ; NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Pinson v. U.S. Dep't of Justice , 236 F. Supp. 3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009) ). In general, summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In a FOIA suit, "summary judgment is appropriate if there are no material facts 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.’ " Prop. of the People, Inc. v. Office of Mgmt. and Budget , 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA , 232 F. Supp. 3d 172, 181 (D.D.C. 2017) ).

A court addressing a motion for summary judgment in a FOIA suit is to review the matter de novo . See 5 U.S.C. § 552(a)(4)(B) ; Life Extension Found., Inc. v. Internal Revenue Serv. , 915 F. Supp. 2d 174, 179 (D.D.C. 2013). The reviewing court may grant summary judgment based on the record and agency declarations if "the agency's supporting declarations and exhibits describe the requested documents and ‘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.’ " Pronin v. Fed. Bureau of Prisons , No. CV 17-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019) (quoting Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation omitted)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Scudder v. Cent. Intelligence Agency , 254 F. Supp. 3d 135, 140 (D.D.C. 2017) (quoting Judicial Watch, Inc. v. U.S. Dept. of Defense , 715 F.3d 937, 941 (D.C. Cir. 2013) (internal citations omitted)). But exemptions are to be "narrowly construed." Bloche II , 370 F. Supp. 3d at 50 (quoting Morley v. Cent. Intelligence Agency , 508 F.3d 1108, 1115 (D.C. Cir. 2007) ). An agency cannot justify its withholding by providing "[c]onclusory and generalized allegations of exemptions," Morley , 508 F.3d at 1114–15 (internal citations omitted), and an agency must do more than provide "summary statements that merely reiterate legal standards or present ‘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) ).

III. DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT

The sole issue in Defendants' renewed motion for summary judgment, as noted previously, is Defendants' application of FOIA exemptions. This Court's March 2019 memorandum opinion and order denied summary judgment with respect to nine documents, directing Defendants both to produce these documents for in camera review and to provide supplementary justification. The majority of these documents were withheld in full or in part pursuant to Exemption 5's deliberative process privilege,⁶ see 5 U.S.C. § 552(b)(2), and two were withheld pursuant to Exemption 7(E), which permits an agency to withhold information related to "techniques and procedures for law enforcement investigations and prosecutions," id. § 552(b)(7).⁷ The Court will address each of these exemptions (deliberative process privilege for Defendant OASD-HA and 7(E) for Defendant Navy) in turn. Because it finds that Defendant OASD-HA has justified its invocation of FOIA Exemption 5 for all but one of its withheld documents and that Defendant Navy has justified its invocation of FOIA Exemption 7(E) for both of its partially withheld documents, the Court will grant in part and deny in part Defendants' renewed motion for summary judgment.

A. Defendant OASD-HA Policy

1. Exemption 5 – The Deliberative Process Privilege

Exemption 5 of FOIA protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The Supreme Court and the D.C. Circuit have construed Exemption 5 to exempt documents "normally privileged in the civil discovery context." Sears , 421 U.S. at 149, 95 S.Ct. 1504 ; see also Martin v. Office of Special Counsel , 819 F.2d 1181, 1184 (D.C. Cir. 1987). Exemption 5 thus "incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant"—including, as relevant here, "the deliberative process privilege." Brown v. Dep't of State , 317 F. Supp. 3d 370, 375 (D.D.C. 2018) (quoting Loving v. Dep't of Def. , 550 F.3d 32, 37 (D.C. Cir. 2008) (internal quotation mark and citation omitted)); see also Baker & Hostetler LLP v. U.S. Dep't of Commerce , 473 F.3d 312, 321 (D.C. Cir. 2006).

The deliberative process privilege protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Loving , 550 F.3d at 38 (quoting U.S. Dep't of the Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) ). It aims to "prevent injury to the quality of agency decisions," Sears , 421 U.S. at 151, 95 S.Ct. 1504, and "rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news," Klamath Water Users Protective Ass'n , 532 U.S. at 8–9, 121 S.Ct. 1060. The privilege thus balances the merits of transparency against the concern that agencies will be "forced to operate in a fishbowl." Petroleum Info. Corp. v. U.S. Dep't of the Interior , 976 F.2d 1429, 1434 (D.C. Cir. 1992).

For the...