Bloche v. Dep't of Def.

• Decision Date: 14 May 2020
• Docket Number: Civil Action No. 07-2050 (RC)
• Citation: 464 F.Supp.3d 73
• Parties: M. Gregg BLOCHE and Jonathan H. Marks, Plaintiffs, v. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

464 F.Supp.3d 73

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 May 14, 2020

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

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ RENEWED 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 is a renewed motion for partial summary judgment brought by three Defendant agencies: (1) the United States Army ("Army"); (2) the Defense Intelligence Agency ("DIA"); and (3) the Joint Task Force Guantanamo ("JTF-GTMO").¹ See Defs.’ Renewed Mot. Summ. J. ("Defs.’ Mot."), ECF No. 121; Defs.’ Mem. in Support Renewed Mot. Summ. J. ("Defs.’ Mem."), ECF No. 121-1. On October 29, 2019, the Court granted in part and denied in part Defendants’ motion for partial summary judgment and directed Defendants to provide updated justifications for their claimed exemptions for a number of documents that remained in dispute. See Bloche v. Dep't of Def. (Bloche III ), 414 F. Supp. 3d 6 (D.D.C. 2019).² For the reasons detailed below, the Defendant agencies have now provided adequate justification for their claimed exemptions for all but one of the documents at issue.³ Therefore, the Court grants the motion for partial summary judgment for all documents related to Army, DIA, and JTF-GTMO except with respect to Army 79, for which the motion is denied.⁴

II. LEGAL STANDARD

FOIA requires agencies 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. U.S. 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) ). 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). In a FOIA suit, summary judgment is appropriate "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, 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) ).

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. 17-cv-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. Dep't of Def. , 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 must do more than provide "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

Plaintiffs do not challenge the present motion. Nevertheless, the Court will review the updated justifications provided by Defendants as it is the agency's burden to establish the applicability of a FOIA exemption. See Winston & Strawn , 843 F.3d at 505. The sole issues in the renewed motion for partial summary judgment relate to Defendants’ application of four FOIA exemptions: Exemption 1, Exemption 3, Exemption 5, and Exemption 7. In ruling on Defendants’ previous motion for partial summary judgment, the Court directed Defendants to provide updated justifications and clarifications with respect to many documents still in dispute. Primarily, the Court asked Defendants to give greater detail and context for the claimed exemptions and to clarify the particular privileges claimed for each portion of remaining challenged documents. The Court's previous order resolved pending matters for the three Defendants currently before the Court except with respect to sixty-nine documents for Army,⁵ one document for DIA,⁶ and four documents for JTF-GTMO.⁷ Bloche III , 414 F. Supp. 3d at 61. The Court deferred ruling on segregability for these remaining documents. Because Defendants have provided updated, and sufficient, justifications for the claimed exemptions on these remaining documents, except for Army 79, and for the reasons set forth below, the Court will grant Defendants’ motion for partial summary judgment for all documents except for Army 79, for which the motion is denied.

A. Army

The remaining documents at issue for Army are most easily analyzed in three groupings: the six documents submitted for in camera review, Army 111, and the forty documents that previously had overlapping privilege claims. Only Exemption 5 is at issue for Army and the two relevant privileges are the deliberative process and attorney-client privileges. The Court also must decide whether Army has fulfilled its obligation to disclose all reasonably segregable non-exempt material with respect to all sixty-nine documents still in play. In support of its renewed motion, Army submitted the Declaration of Major Nicole M. Kim, which includes an attached updated Vaughn Index. Defs.’ Mem. Ex. A ("Kim Decl."), ECF No. 121-2; Defs.’ Mem. Ex. A1 ("Updated Vaughn Index"), ECF No. 121-2.

1. Exemption 5

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." NLRB v. Sears, Roebuck & Co. , 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, both "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)), and the attorney-client privilege, Mead Data Cent., Inc. v. U.S. Dep't of Air Force , 566 F.2d 242, 252 (D.C. Cir. 1977).

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) ). For the deliberative process privilege to apply, the record in question must "bear on the formulation or exercise of agency policy-oriented judgment. " Petroleum Info. Corp. v. U.S. Dep't of Interior , 976 F.2d 1429, 1435 (D.C. Cir. 1992) (emphasis in original). To qualify, the record must be both predecisional and deliberative. See Prop. of the People, Inc. , 330 F. Supp. 3d at 382. To be predecisional, a record must be antecedent to the adoption of an agency policy. See Access Reports v. U.S. Dep't of Justice , 926 F.2d 1192, 1194 (D.C. Cir. 1991). Although "the term ‘deliberative’ does not add a great deal of substance to the term ‘pre-decisional,’ " it essentially means "that the communication is intended to facilitate or assist development of the agency's final position on the relevant issue." Nat'l Sec. Archive v. Cent. Intelligence Agency , 752 F.3d 460, 463 (D.C. Cir. 2014) (citations omitted)

The attorney-client privilege covers "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Cent., Inc. , 566 F.2d at 252. The privilege "protects communications from attorneys to their clients if the communications ‘rest on confidential information obtained from the client.’ " Tax Analysts v. Internal Revenue Serv. , 117 F.3d 607, 618 (D.C. Cir. 1997) (quoting In re Sealed Case , 737 F.2d 94, 99 (D.C. Cir. 1984) ). If the communications suggest that "the...