Bloche v. Dep't of Def.

• Decision Date: 29 March 2019
• Docket Number: Civil Action No.: 07-2050 (RC)
• Citation: 370 F.Supp.3d 40
• Parties: M. Gregg BLOCHE and Jonathan H. Marks, Plaintiffs, v. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

370 F.Supp.3d 40

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 March 29, 2019

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

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

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

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

I. INTRODUCTION

In this case arising under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Plaintiffs M. Gregg Bloche and Jonathan H. Marks seek documents from multiple federal government entities related to the role of medical professionals in the design and implementation of interrogation tactics in the early to mid-2000s. Presently before the Court are cross-motions for summary judgment with respect to three Defendant agencies' responses to Plaintiffs' FOIA requests—those agencies being (1) the Department of the 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").¹ Each of these three agencies performed its own search in response to Plaintiffs' requests, and Plaintiffs do not challenge the sufficiency of those searches. Plaintiffs have for years, however, tussled with these agencies over the propriety of several FOIA exemptions that the agencies have asserted to withhold many responsive documents in full or in part. As the Court will explain below, the agencies have established that many of their claimed exemptions are proper—but not all. Where the agencies have fallen short, the Court concludes that summary judgment in neither side's favor is appropriate at this juncture. The Court instead orders that the agencies produce the documents at issue for in camera review and provide more specific justifications for the asserted claims, to which Plaintiffs will have an opportunity to respond. Defendants' motion is thus granted in part and denied in part, and Plaintiffs' motion is denied, though in part without prejudice.²

II. LEGAL STANDARD

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, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (quoting NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) ); see also Judicial Watch, Inc. v. U.S. Dep't of Def. , 847 F.3d 735, 738 (D.C. Cir. 2017) ("Congress enacted FOIA to give the public ‘access to official information long shielded unnecessarily from public view.’ " (quoting Nat'l Ass'n of Criminal Def. Lawyers v. U.S. Dep't of Justice Exec. Office for U.S. Attorneys , 829 F.3d 741, 744 (D.C. Cir. 2016) ) ). "The Act requires government agencies to make information available upon request, unless the information is protected by one of nine statutory ‘exemptions.’ " Judicial Watch , 847 F.3d at 738 (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ); see also 5 U.S.C. § 552(b).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Prop. of the People, Inc. v. Office of Mgmt. and Budget , 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Defs. of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009) ). To be entitled to summary judgment, the movant must "show[ ] 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." Pinson v. Dep't of Justice , 313 F.Supp.3d 88, 105 (D.D.C. 2018). A dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmovant. Id.

Applying these principles to the FOIA context, a government 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.’ " Prop. of the People , 330 F.Supp.3d at 380 (quoting 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 because the Government ultimately has the onus of proving that the documents are exempt from disclosure, while the burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur." Id. (internal quotation marks omitted) (quoting Hardy v. Bureau of Alcohol, Tobacco, Firearms and Explosives , 243 F.Supp.3d 155, 162 (D.D.C. 2017) ).

To meet its burden, the agency may "rely on declarations that are reasonably detailed and non-conclusory." Pinson , 313 F.Supp.3d at 106. Such declarations 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. U.S. Drug Enf't Agency , 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) ). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Wolf v. CIA , 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting Gardels v. CIA , 689 F.2d 1100, 1105 (D.C. Cir. 1982) ). But exemptions must also be "narrowly construed." Morley v. CIA , 508 F.3d 1108, 1115 (D.C. Cir. 2007). Agencies "cannot justify ... 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) ).

III. ANALYSIS

In this case, the adequacy of the Defendants' searches is not at issue—as the Court noted above. Instead, Plaintiffs dispute only the validity of certain FOIA exemptions that Defendants have claimed. The majority of Plaintiffs' challenges relate to Defendants' invocations of the deliberative process privilege, which falls within the ambit of FOIA Exemption 5. See 5 U.S.C. § 552(b)(5). The Court therefore begins its analysis below with a discussion of that exemption. The Court then addresses three more discrete issues concerning: (1) Exemption 1, which permits the withholding of certain classified information relating to national defense or foreign policy, see id. § 552(b)(1) ; (2) Exemption 7(E), which permits the withholding of information related to "techniques and procedures for law enforcement investigations or prosecutions," id. § 552(b)(7) ; and (3) Exemption 6, which permits the withholding of information that "would constitute a clearly unwarranted invasion of personal privacy," id. § 552(b)(6).

A. Exemption 5 – The Deliberative Process Privilege

FOIA Exemption 5 permits agencies to withhold "inter-agency or intra-agency memorandums or letters that would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). The exemption thus " ‘incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant’—including the presidential communications privilege, the attorney-client privilege, the work product privilege, and the deliberative process privilege." Loving v. Dep't of Def. , 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting Baker & Hostetler LLP v. U.S. Dep't of Commerce , 473 F.3d 312, 321 (D.C. Cir. 2006) ).

Relevant here is the deliberative process privilege, which protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. at 38 (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) ). The privilege exists "to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among those who make them within the Government." Klamath , 532 U.S. at 9, 121 S.Ct. 1060 (citations omitted). The privilege "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." Id. at 8–9, 121 S.Ct. 1060.

"To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment." Prop. of the People , 330 F.Supp.3d at 382 (quoting Petroleum Info. Corp. v. U.S. Dep't of Interior , 976 F.2d 1429, 1435 (D.C. Cir. 1992) ). A document qualifies if it is both pre-decisional and deliberative. E.g., Judicial Watch, Inc. v. FDA , 449 F.3d 141, 151 (D.C. Cir. 2006). "Pre-decisional" communications are those that, unsurprisingly, "occurred before any final agency decision on the relevant matter." Nat'l Sec. Archive v. CIA , 752 F.3d 460, 463 (D.C. Cir. 2014). "[T]he term ‘deliberative’ does not add a great deal of substance to the term ‘pre-decisional,’ " but it "in essence" means "that the communication is intended to facilitate or assist development of the agency's final position on the relevant issue." Id.

1. Defendants' Claims of Deliberative Process Privilege

Here, all three Defendant organizations have cited the deliberative process...