Ctr. for Pub. Integrity v. U.S. Dep't of Def.

• Decision Date: 28 August 2020
• Docket Number: Civil Action No. 19-3265(CKK)
• Citation: 486 F.Supp.3d 317
• Parties: CENTER FOR PUBLIC INTEGRITY, Plaintiff v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 317

CENTER FOR PUBLIC INTEGRITY, Plaintiff

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

Civil Action No. 19-3265(CKK)

United States District Court, District of Columbia.

Filed August 28, 2020

Peter Newbatt Smith, Center for Public Integrity, Washington, DC, for Plaintiff.

Amber Richer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This is a Freedom of Information Act ("FOIA") action, in which Plaintiff Center for Public Integrity seeks records from the United States Department of Defense ("DOD") and the United States Office of Management and Budget ("OMB") regarding communications between the DOD and the OMB with the DOD's comptroller concerning the DOD's Ukraine Security Assistance Initiative ("USAI"). Following the Court's grant of a preliminary injunction, Defendants responded to Plaintiff's FOIA requests by processing and producing approximately 292 pages of documents with redactions. Before the Court are Defendants’ [22] Motion for Summary Judgment and Plaintiff's [23] Motion for Summary Judgment. Plaintiff disputes certain redactions under FOIA Exemption 3, which allows for the withholding of information exempted from disclosure by statute; Exemption 5, which protects inter-agency or intra-agency communications which would not be available by law to a party in litigation with the agency; and Exemption 6, which protects information that implicates personal privacy concerns.¹

Upon consideration of the pleadings,² the relevant legal authorities, in camera review of certain documents, and the record for purposes of this motion, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary Judgment and GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Summary Judgment. As to the withholdings under FOIA Exemption 3, the Court concludes that Defendants have shown that the withholdings are appropriate under 10 U.S.C. § 130c, which allows for the withholding of sensitive information of foreign governments. As to the withholdings under FOIA Exemption 5, the Court has determined that Defendants’ withholdings are proper, except as to certain material in documents 44, 63, 64, 54, and 67. And, as to the withholdings under FOIA Exemption 6, the Court concludes that the release of the withheld information—email addresses of agency workers—would clearly constitute an unwarranted invasion of personal privacy.

I. BACKGROUND

Plaintiff is a nonprofit, nonpartisan, non-advocacy, independent journalism organization. Compl., ECF No. 1, ¶ 4. Plaintiff submitted two FOIA requests. On September 25, 2019, Plaintiff requested from the DOD "[a]ll records reflecting any communication between Defense Department acting comptroller Elaine McCusker or other officials within the comptroller's office and employees or officials of the Office of Management and Budget concerning the Ukraine Security Assistance Initiative." Defs.’ Statement of Material Facts as to which There is No Genuine Issue ("Defs.’ Stat."), ECF No. 22-1, ¶ 18. Plaintiff also requested from the DOD "[a]ll records reflecting any communication between Defense Department acting comptroller Elaine McCusker or other officials within the comptroller's office and Secretary of Defense Mark Esper or Deputy Secretary of Defense David Norquist concerning the Ukraine Security Assistance Initiative." Id. And, on September 30, 2019, Plaintiff requested from the OMB "[a]ll records reflecting any communication between officials and employees of the Office of Management and Budget and the office of Defense Department acting comptroller Elaine McCusker or other officials within the comptroller's [office] concerning the Ukraine Security Assistance Initiative." Id. at ¶ 20. Plaintiff requested expedited processing for both FOIA requests.

Defendants acknowledged receipt of the FOIA requests. But, prior to the filing of this lawsuit on October 30, 2019, Defendants did not provide a determination on Plaintiff's requests. On October 31, 2019, Plaintiff filed a Motion for a Preliminary Injunction requesting all responsive, non-exempt information. See ECF No. 4. Ultimately, the Court granted Plaintiff's motion for a preliminary injunction, ordering Defendants to process all responsive documents and to produce all non-exempt information by December 20, 2019. See Nov. 25, 2019 Memorandum Opinion, ECF No. 17, 2.

In keeping with the Court's Order, Defendants processed and produced 292 pages, with redactions, in two productions. Defs.’ Stat., ECF No. 22-1, ¶ 42. Following the first production, Plaintiff filed a motion to enforce the preliminary injunction, arguing that Defendants had violated the Court's preliminary injunction order by improperly withholding information. See ECF No. 19. The Court denied Plaintiff's Motion, explaining that the preliminary injunction applied only to the production of non-exempt information. ECF No. 20. The Court recognized that the issue of disputed exemptions would have to be litigated at a different time. Those disputed exemptions are the issue currently before the Court. Specifically, Plaintiff disputes withholdings under FOIA Exemptions 3, 5, and 6.

On August 6, 2020, the Court issued a Memorandum Opinion requesting in camera review of certain material withheld under FOIA Exemption 5. The Court requested this material because deficiencies in Defendants’ Vaughn index and accompanying declarations prevented the Court from making a responsible de novo determination of the claims of exemption. ECF No. 34. Specifically, the Court requested in camera review of material withheld under Exemption 5 in documents 8, 9, 11, 12, 13, 14, 15, 20, 21, 22, 23, 24, 25, 28, 30, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 51, 52, 53, 54, 56, 60, 63, 64, 66, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 78, 82, 83, 86, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 111. Id.³ For the remaining documents, information provided in Defendants’ Vaughn index and accompanying declarations was sufficient to make a determination on the withholdings.

On August 11, 2020, Defendants provided the Court with the requested material. The Court reviewed the unredacted documents in camera.

II. LEGAL STANDARD

Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." Fed. Bureau of Investigation v. Abramson , 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions." Milner v. Dep't of Navy , 562 U.S. 562, 562, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Ultimately, "disclosure, not secrecy, is the dominant objective of the Act." Rose , 425 U.S. at 361, 96 S.Ct. 1592. For this reason, the "exemptions are explicitly made exclusive, and must be narrowly construed." Milner , 562 U.S. at 565, 131 S.Ct. 1259 (internal quotation marks and citations omitted).

When presented with a motion for summary judgment in this context, the district court must conduct a "de novo" review of the record, which requires the court to "ascertain whether the agency has sustained its burden of demonstrating the documents requested are ... exempt from disclosure under the FOIA." Multi Ag Media LLC v. Dep't of Agriculture , 515 F.3d 1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). "An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag Media , 515 F.3d at 1227 (internal quotation marks omitted). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dep't of Defense , 628 F.3d 612, 619 (D.C. Cir. 2011). "Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State , 641 F.3d 504, 509 (D.C. Cir. 2011). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "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).

III. DISCUSSION

Plaintiff does not challenge the adequacy of Defendants’ search for responsive records to Plaintiff's FOIA requests.⁴ As such, the sole issue before the Court is whether or not Defendants’ withholdings fall under FOIA Exemptions 3, 5, and 6. The Court has reviewed the parties’ supporting Declarations, Defendants’ Vaughn Index, and certain documents in camera. Considering the arguments of the parties, as well as the Court's own review of some of the documents, the Court concludes that Defendants’ withholdings under FOIA Exemptions 3 and 6 are proper. The Court further concludes that Defendants’ withholdings under FOIA Exemption 5 are proper, except as regards material withheld in documents 44, 63, 64, 54, and 67. The Court will explain its reasoning as to the withholdings under each Exemption.

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