Cox v. Dep't of Justice

• Decision Date: 26 November 2020
• Docket Number: 17-CV-3329 (RRM) (RLM)
• Citation: 504 F.Supp.3d 119
• Parties: Douglas COX, Plaintiff, v. DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

504 F.Supp.3d 119

Douglas COX, Plaintiff,

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

17-CV-3329 (RRM) (RLM)

United States District Court, E.D. New York.

Signed November 26, 2020

Filed November 30, 2020

Douglas Craig Cox, CUNY School of Law, Long Island City, NY, for Plaintiff.

Amy Powell, DOJ/Civil Division, Raleigh, NC, for Defendants.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Plaintiff Douglas Cox brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, claiming that defendants Department of Justice ("DOJ"), Federal Bureau of Investigation ("FBI"), Department of Defense ("DOD"), Office of the Director of National Intelligence ("ODNI"), and Department of State ("State" or "State Department"), (collectively, "the Agencies"), are improperly withholding records responsive to Cox's FOIA requests for records relating to the Senate Select Committee on Intelligence's ("SSCI") Study of the Central Intelligence Agency's Detention and Interrogation Program ("SSCI Report"). The Agencies now move to dismiss Cox's complaint with respect to his requests for versions of the SSCI Report, arguing that the report is not an agency record subject to FOIA. The Agencies also move for summary judgment with respect to Cox's remaining requests, arguing that they have, among other things, properly withheld documents pursuant to FOIA exemptions. For the reasons set forth below, the Agencies’ motion to dismiss is denied and the Agencies’ motion for summary judgment is granted in part and denied in part.

BACKGROUND

I. FOIA

FOIA requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules .., shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Under this provision,

the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.

5 U.S.C. § 552(a)(4)(B).

In any FOIA case, the Court must bear in mind that FOIA was drafted to promote disclosure of governmental information. See Fed. Labor Relations Auth. v. U.S. Dep't of Veterans Affairs , 958 F.2d 503, 508 (2d Cir. 1992) ("In interpreting FOIA, it must be remembered that the statute seeks to permit access to official information long shielded unnecessarily from public view, and was intended to establish a general philosophy of full agency disclosure." (internal quotation marks and citations omitted)). At the same time, the statute enumerates exemptions, which serve "to protect specified confidentiality and privacy interests." N.L.R.B. v. Robbins Tire & Rubber Co. , 437 U.S. 214, 220–21, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). These exemptions are the primary means by which an agency may avoid production of records subject to FOIA; "unless the requested material falls within one of these nine statutory exemptions, FOIA requires that records and material in the possession of federal agencies be made available on demand to any member of the general public." Id. at 221, 98 S.Ct. 2311. If a requestor believes an agency improperly withheld records subject to disclosure under FOIA, the requestor "may seek an order of production from a district court, which will review the matter de novo , placing the burden on the agency to defend its non-disclosure decisions." Main St. Legal Servs., Inc. v. Nat'l Sec. Council , 811 F.3d 542, 544 (2d Cir. 2016) (citing 5 U.S.C. § 552(a)(4)(B) ).

A. Relevant Exemptions

FOIA exemption one exempts from disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 551(b)(1).

FOIA exemption five exempts from disclosure matters that are "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 exemption incorporates all normal civil discovery privileges, including the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege." Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enf't Agency , 811 F. Supp. 2d 713, 734–35 (S.D.N.Y. 2011) (quotation marks omitted), amended on reconsideration (Aug. 8, 2011).

B. Vaughn index

In Vaughn v. Rosen , the D.C. Circuit held that agencies must provide more than "conclusory and generalized allegations of exemptions," but rather "relatively detailed analysis in manageable segments" explaining the basis for their claimed exemptions. 484 F.2d 820, 826 (D.C. Cir. 1973). Consistent with this obligation, an agency will use a " Vaughn index" and/or a " Vaughn affidavit" to outline its claimed exemptions. A district court may grant summary judgment to an agency based on its affidavits only if they provide a "reasonable specificity of detail rather than merely conclusory statements" supporting the agency's withholding of records. Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999). "While there is no set form for a Vaughn index, the agency should describe the documents with as much information as possible without thwarting the exemption's purpose" and "provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Navigators Ins. Co. v. Dep't of Justice , 155 F. Supp. 3d 157, 171 n.13 (D. Conn. 2016). Given its purpose, the Second Circuit has explained that a Vaughn affidavit should provide a "fact-specific justification that either (a) would permit appellant to contest the affidavit in adversarial fashion, or (b) would permit a reviewing court to engage in effective de novo review of the [withheld] information." Halpern v. F.B.I. , 181 F.3d 279, 293 (2d Cir. 1999). The level of specificity required also depends in part on the exemption claimed. For instance, "[u]nder Exemption 1, it makes sense to require itemized descriptions of documents and/or redactions in the government's Vaughn affidavits since these descriptions are likely to have a direct bearing on the types of information contained in the document that are subject to redaction." Halpern , 181 F.3d at 297.

C. Partial Disclosures

Finally, FOIA provides, "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). "This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible ‘record’ for FOIA purposes." F.B.I. v. Abramson , 456 U.S. 615, 626, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). That said, agencies need not disclose non-exempt information that is "inextricably intertwined" with exempt information. See Hopkins v. U.S. Dep't of Hous. & Urban Dev. , 929 F.2d 81, 85 (2d Cir. 1991). Information is "inextricably intertwined" where "disclosure would compromise the confidentiality of [exempt] information that is entitled to protection." Id. (citation and internal quotation marks omitted); see also Am. Civil Liberties Union v. United States Dep't of Justice , 252 F. Supp. 3d 217, 227 (S.D.N.Y. 2017). A district court is required to "make specific findings of segregability regarding the documents to be withheld."

Color of Change v. United States Dep't of Homeland Sec. , 325 F. Supp. 3d 447, 455 (S.D.N.Y. 2018) (quoting Sussman v. U.S. Marshals Serv. , 494 F.3d 1106, 1117 (D.C. Cir. 2007) ); see also Hopkins , 929 F.2d at 85 (remanding for district court to make specific findings as to whether factual data could be segregated in record withheld pursuant to exemption five deliberative process privilege). Although it is the agencies’ burden to establish that they properly segregated information, "[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material." Sussman , 494 F.3d at 1117 ; see also Navigators Ins. Co. , 155 F. Supp. 3d at 174.

II. Relevant Facts

The facts below are drawn from Cox's complaint, as well as documents and declarations submitted by the parties. Unless otherwise noted, the facts are undisputed.

A. The SSCI Report

In March 2009, the SSCI informed the Central Intelligence Agency ("CIA") that it planned to review the CIA's former detention and interrogation program. (Declaration of Antoinette B. Shiner ("Shiner Decl.") (Doc. No. 52-2), Attachment 1 ("Higgins Decl.") ¶ 10.) To this end, the SSCI requested access to CIA documents regarding the program. (Higgins Decl. ¶ 10.) According to former CIA Director of Congressional Affairs Neal Higgins, "Due to the volume and the highly sensitive and compartmented nature of the classified information at issue, the CIA determined that in order to properly safeguard classified equities, the SSCI's review of Agency records would need to take place at CIA facilities." (Id. )

1. June 2009 Letter

In a June 2, 2009, letter, the SSCI wrote to then-CIA Director Leon Panetta regarding the planned review of records at the CIA. (Higgins Decl., Ex. D ("June 2009 Letter"); see also Plaintiff's Brief in Opposition ("Opp.") (Doc. No. 52-10), Ex. N (same).) The letter outlined "procedures and understandings" under which the SSCI and its staff would conduct its review. (June 2009 Letter at 1.) The letter discussed the documents that would be provided, protections for computers used by SSCI staff, and – most significantly, for the purposes of the instant action – SSCI's control over notes, documents, reports,...