Connell v. U.S. S. Command
| Decision Date | 27 October 2020 |
| Docket Number | Civil Action No. 18-1813 (RDM) |
| Parties | JAMES G. CONNELL, III, Plaintiff, v. UNITED STATES SOUTHERN COMMAND, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff James G. Connell, III, seeks records from Defendant United States Southern Command ("Southern Command"), a component of the Department of Defense, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. The requested records relate to a conversation between Admiral Kurt Tidd and Harvey Rishikof, the then-Convening Authority for Military Commissions, prior to Rishikof's removal from that role. In responding to Plaintiff's FOIA request, the Southern Command withheld portions of the responsive records pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(5), (b)(6) 7(E), and 7(F). The Southern Command now moves for summary judgment, arguing that these withholdings were appropriate, and Plaintiff cross-moves for partial summary judgment, asserting that the Southern Command improperly withheld portions of the redacted records.
For the reasons explained below, the Court will GRANT in part and DENY in part the Southern Command's motion for summary judgment and will DENY Plaintiff's cross-motion for partial summary judgment.
Plaintiff, a defense attorney, submitted a FOIA request to the Southern Command on May 18, 2018, seeking "all documents relating to a conference call made on or about January 24, 2018 between Admiral Kurt Tidd and Harvey Rishikof," including "any notes, calendar entries, agendas, read-aheads, and all other materials relating to the call." Dkt. 1 at 4. Plaintiff avers that, at the time of the call, Harvey Rishikoff was "the Convening Authority for Military Commissions . . . and the Director of the Office of the Convening Authority for Military Commissions," Dkt. 18-1 at 3 (SUMF ¶ 3), and, as such, was responsible for deciding "whether or not to accept plea deals from the alleged 9/11 conspirators," id. at 2-3; id. at 4 (SUMF ¶¶ 3-4). Plaintiff alleges that, "[s]hortly after this phone call, Mr. Rishikof and Mr. Harvey Brown, Mr. Rishikof's legal advisor, were fired by the Secretary of Defense . . . , James N. Mattis, under unusual and suspect circumstances." Id. at 2. Plaintiff further contends that "[o]ne of the topics of the phone call [was] aerial imagery of Guantanamo Bay" and that this topic of conversation was "articulated as one of the bases for the firing." Id.; see also id. at 5-7 (SUMF ¶¶ 6, 12).
On May 24, 2018, the Southern Command issued an "interim-response" explaining that it would not be able to comply with FOIA's statutory 20-day deadline because there existed "(a) the need to search for and collect records from a facility geographically separated from this office; and/or (b) the need for consultation with one or more other agencies or [Department of Defense] components having a substantial interest in either the determination or the subject matter of the records." Dkt. 1 at 8. The response further noted that the Southern Command could not provide Plaintiff "an estimated completion date" at that time. Id.
On August 1, 2018, Plaintiff initiated this action, Dkt. 1, and, after the Southern Command answered the complaint, Dkt. 4, the Court held a status conference. At thatconference, held on October 2, 2018, the Southern Command represented that it would provide Plaintiff with materials responsive to his request later that month. Dkt. 5 at 1-2. The Southern Command's unclassified search for materials responsive to Plaintiff's request "yielded 1611 pages of emails and 731 pages of attachments," and its classified search identified up to "1097 pages of emails and 510 pages of attachments." Dkt. 20 at 5 (Droz Decl. ¶ 10). These documents were reviewed for responsiveness, and "132 pages of emails (containing 187 Records) and 5 attachments" were ultimately deemed responsive. Id. The Southern Command then performed "an initial line by line review to determine what, if any information, needed to be withheld under FOIA," after which the Southern Command's "FOIA office did a second line by line review." Id. Finally, the Southern Command "sent the records to the [Department of Defense] Security Classification/Declassification Review Team for a line by line classification review before final production to the Plaintiff." Id. (Droz Decl. ¶ 11).
On October 29, 2018, the Southern Command released its redacted response to Plaintiff. Dkt. 5 at 2. On October 16, 2019, Defendant moved for summary judgment, Dkt. 14, and on November 11, 2019, Plaintiff responded and cross-moved for summary judgment, Dkt. 18; Dkt. 19. The Southern Command then moved, with Plaintiff's consent, for leave to file a supplemental declaration from Michael Droz, the Deputy Director of the Operations Directorate for the Southern Command, and a revised Vaughn index. Dkt. 16; Dkt. 16-1 (Ex. A). The Southern Command explained that the supplemental declaration would "explain further the agency's search for responsive documents and expand on the rationale for redacting documents under FOIA Exemptions (b)(1), (b)(3), (b)(5), (b)(6), and (b)(E)." Dkt. 16 at 1. The Southern Command also noted that it had "discover[ed] that certain record numbers associated with the various FOIA exemptions [were] not entirely correct[]" in its first Vaughn Index, and it thereforesought leave to replace the index. Id. at 1-2. The Southern Command "incorporate[d] by reference the 'Supplemental Droz Declaration' and 'Revised Vaughn Index' in support of its [earlier-filed] motion for summary judgment" and represented that "[t]he legal principles supporting Defendant's invoked FOIA exemptions, as argued in the motion for summary judgment, remain[ed] unchanged." Id. at 2. The Court granted Defendant's motion. Minute Order (Nov. 12, 2020). Plaintiff cross-moved for summary judgment on November 11, 2019. Dkt. 19. Defendant responded to that cross-motion and supported its cross-motion with the Declaration of Commander Delicia Gonzales Zimmerman of Southern Command. Dkt. 23; Dkt. 23-1. Plaintiff has not filed a reply in support of his cross-motion for summary judgment.
The Freedom of Information Act is premised on the notion that "an informed citizenry" is "vital to the functioning of a democratic society [and] needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act embodies a "general philosophy of full agency disclosure." U.S. Dep't of Def. v. FLRA, 510 U.S. 487, 494 (1994) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (1976)). The law, accordingly, requires that agencies produce responsive records unless those records fall within one of nine exclusive statutory exemptions. Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011); .Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011).
"[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Under Federal Rule of Civil Procedure 56(a), the moving party bears the burden of showing "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 action, the agency may meet its burden by submitting declarations that are "relatively detailed and non-conclusory." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation and citation omitted), and an index of the information withheld, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973).
To prevail on summary judgment, an agency that has withheld records must offer supporting declarations and exhibits that "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 agency bad faith.'" Pronin v. Fed. Bureau of Prisons, No. 17-1807 (TJK), 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)); see also Vaughn, 484 F.2d at 827-28. The Court will grant summary judgment based on those declarations only if they "afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." King v. U.S. Dep't of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987).
The Southern Command moves for summary judgment with respect to its withholdings pursuant to Exemptions (b)(1), (b)(3), (b)(5), (b)(6), 7(E), and 7(F). Dkt. 14. Plaintiff, in turn, "does not challenge [the] redactions under Exemption[s] (b)(1), (b)(5), 7(E), and 7(F). Dkt. 18-1 at 9. The Court will, accordingly, enter partial summary judgment in favor of the Southern Command with respect to the undisputed withholdings.
This, then, leaves two disputed groups of withholdings: (1) those made pursuant to FOIA Exemption (b)(3) and 10 U.S.C. § 130b and (2) those made pursuant to FOIA Exemption (b)(6). The Court will consider these withholdings in turn.
The Southern Command argues that it properly redacted personal identifying information from 23 records pursuant to Exemption (b)(3) and 10 U.S.C. § 130b. Dkt. 20 at 6-7 (Droz Decl. ¶ 15).1 Plaintiff offers no argument regarding these withholdings but simply asserts (without explanation) that the Southern Command "improperly withheld [information] in accordance with 10 U.S.C. § 130(b)." Dkt. 18-1 at 1. Because the legal sufficiency of an opponent's position is not so easily conceded on summary judgment, see Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505-08 (D.C. Cir. 2016), the Court will reach the merits of the Southern Command's argument.
FOIA Exemption (b)(3) permits an agency to...
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