Jaber v. U.S. Dep't of Def.

• Decision Date: 01 February 2018
• Docket Number: Case No. 1:16–cv–00742 (TNM)
• Citation: 293 F.Supp.3d 218
• Parties: Faisal BIN ALI JABER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

293 F.Supp.3d 218

Faisal BIN ALI JABER, et al., Plaintiffs,

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

Case No. 1:16–cv–00742 (TNM)

United States District Court, District of Columbia.

Signed February 1, 2018

Kelly Brian McClanahan, National Security Counselors, Rockville, MD, for Plaintiffs.

Amy E. Powell, Department of Justice, Raleigh, NC, Elizabeth J. Shapiro, Stephen McCoy Elliott, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District JudgeAt issue in this case are Freedom of Information Act requests for information related to a 2012 drone strike in Yemen. Plaintiffs Faisal Bin Ali Jaber, a citizen of Yemen, and Edward Pilkington, a member of the news media, submitted the requests at issue in this case to various components of the Department of Defense, the Department of Justice, the Department of State, and the Department of the Treasury. Before this court are the Defendants' motion for summary judgment and the Plaintiffs' cross-motion for partial summary judgment. Because each Defendant has sufficiently demonstrated the appropriateness of its Glomar response and the adequacy of its search for responsive records not implicated by that response, the Defendants' motion for summary judgment will be granted and the Plaintiffs' cross-motion for partial summary judgment will be denied.

I. BACKGROUND

According to Plaintiffs' amended complaint, the Defendants possess or control records pertaining to a drone strike carried out on August 29, 2012, in or near the Yemeni village of Khashamir. Am. Compl. at ¶¶ 5, 7, 9–11. The attack allegedly killed three men whose identities are unknown but who, according to sources not clearly identified in the amended complaint, were members of al–Qaeda. Id. at ¶ 12. In addition, the amended complaint alleges that the attack killed Salem and Waleed bin Ali Jaber, civilians who had spoken out against Al–Qaeda. Id.

The Plaintiffs submitted six FOIA requests to the Defendants between February 9 and February 12, 2016. Id. at ¶¶ 18, 32, 62, 81, 88, 101. The request to the Office of the Secretary of Defense and Joint Staff ("OSD/JS")¹ included twelve categories of records:

1. Any and all records, including emails, pertaining to the 29 August 2012 drone strike ("the strike") or the people killed by it;

2. Any and all records, including emails, pertaining to legal opinions or memoranda referring to the strike or the people killed by it;

3. Any and all records, including emails, pertaining to any subsequent investigations (whether by the Executive Branch, Congress, or a foreign government) into the strike;

4. Any and all records, including emails, describing the reason the three unknown men were targeted for attack;

5. Any and all correspondence, including emails and records documenting oral or telephonic conversations, involving Department of Defense ("DOD") officials and the governments of Yemen and/or Germany (including courts) pertaining to the strike or the people killed by it;

6. Any and all records, including emails, pertaining to Congressional interest in the strike or the people killed by it;

7. Any and all records, including emails, pertaining to Mr. bin Ali Jaber's litigation in Germany regarding Ramstein Air Base and/or the case Bin Ali Jaber v. United States;

8. Any and all records, including emails, pertaining to the actual or potential disbursement or allocation of funds to Yemen for purposes of making compensation payments to Mr. bin Ali Jaber and/or his family;

9. Any and all records, including emails, pertaining to the compensation payments made by the government of Yemen to Mr. bin Ali Jaber and/or his family;

10. Any and all records, including emails, pertaining to Mr. bin Ali Jaber's visit to the United States and the meetings he had while here;

11. Any and all records, including emails, pertaining to Mr. bin Ali Jaber or the people killed by the strike (searching by individual names) which are not described above[;] and

12. Any and all records identified or referenced in records responsive to Items 1–11 above which are not otherwise independently responsive to those Items.

Id. at ¶ 18. The requests submitted to the FOIA Coordinator at Ramstein Air Base, the Department of State ("State"), the Office of Information Policy ("OIP"), the Federal Bureau of Intelligence ("FBI"), and the Department of the Treasury ("Treasury") were "functionally equivalent ..., with agency-specific modifications."² Id. at ¶¶ 32, 62, 81, 88, 101.

The amended complaint alleges that the Air Force and Treasury informed Plaintiffs that no responsive documents could be found. Id. at ¶¶ 37, 44, 49. The OSD/JS, State, the OIP, and the FBI acknowledged the FOIA requests but did not provide final responses. Id. at ¶¶ 22, 64, 83, 91; Answer at ¶ 16. On April 20, 2016, after the time to respond had elapsed and Plaintiffs had exhausted their administrative remedies, Plaintiffs filed a fifteen-count complaint. See Compl. at ¶¶ 26, 39, 55, 74, 84, 93, 102. Plaintiffs filed an amended complaint on May 23, 2016, also containing fifteen counts. The complaint alleged records denial by the Air Force and Treasury; constructive records denial by the OSD/JS, State, the OIP, and the FBI; denial of expedited processing by the OSD/JS, State, the FBI, and Treasury; constructive denial of expedited processing by the Air Force; failure to refer by DOD; denial of news media designation by State and Treasury; and denial of a public interest fee waiver by State.

At a hearing on June 6, 2016, the Defendants indicated their intention to provide a Glomar response covering certain aspects of Plaintiffs' FOIA requests and to process and produce any responsive documents not covered by the Glomar response. Tr. of Proceedings, pages 66, 97–98. On July 29, 2016, Defendants provided the following joint Glomar response:

Defendants cannot confirm or deny the existence of any records that would tend to confirm one way or the other any U.S. government role in an alleged "29 August 2012 drone strike." However, the Government will conduct searches for responsive records that would not tend to confirm one way or the other any U.S. government role in an alleged "29 August 2012 drone strike," such as documents pertaining to Mr. Jaber's litigation in Germany and the United States, as well as Mr. Jaber's visit to the United States.

Memo. ISO Mot. Dismiss at 6. OIP identified 140 pages of responsive records not covered by the Glomar response, produced 107 pages in part, and withheld 33 pages in full. Id. State identified 43 responsive documents not covered by the Glomar response, produced 41 documents in full or in part, and withheld 2 documents in full. Id. DOD identified 1,197 pages of responsive records not covered by the Glomar response and produced 1,072 pages of non-exempt materials. Id.

After issuing their Glomar response and making these productions, Defendants filed a motion for summary judgment, arguing that they had satisfied their FOIA obligations by issuing a partial Glomar response, conducting reasonable searches for responsive records not covered by the Glomar response, and producing the non-exempt documents identified by their searches. Plaintiffs opposed, challenging the scope and justification of the Glomar response and the adequacy of the Defendants' searches. They also filed a cross-motion for partial summary judgment, arguing that there is no genuine dispute of material fact as to the inadequacy of the searches conducted by the Air Force, Treasury, and State. These motions are now before me.

II. LEGAL STANDARD

To prevail on a motion for summary judgment, a 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) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Celotex Corp v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). FOIA requires federal agencies to "disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions." Judicial Watch, Inc. v. FBI , 522 F.3d 364, 365–66 (D.C. Cir. 2008) ; see also 5 U.S.C. § 552(a)(3)(A) (records sought must be "reasonably describe[d]"). Thus, a FOIA defendant is entitled to summary judgment if it demonstrates that there is no genuine dispute as to whether "each document that falls within the class requested, either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." See Weisberg v. Dep't of Justice , 627 F.2d 365, 368 (D.C. Cir. 1980). The "vast majority" of FOIA cases are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011).

To show that unproduced documents are exempt from FOIA, an agency may file "affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King v. Dep't of Justice , 830 F.2d 210, 217 (D.C. Cir. 1987). Although courts review the applicability of FOIA exemptions de novo , they give "substantial weight to detailed agency explanations" of national security concerns related to the release of information. Id. "[I]f the fact of the existence or nonexistence of agency records falls within a FOIA exemption," a defendant may issue a Glomar response, declining to confirm or deny the existence of requested records. Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007) ; see also Phillippi v. CIA , 546 F.2d 1009, 1011 (D.C. Cir. 1976) (allowing CIA to refuse to confirm or deny the existence of records related to any interest it had in the activities of the Hughes Glomar Explorer when the agency determined doing so would implicate the National Security Act's protection of information pertaining to intelligence sources and methods). An agency issuing a Glomar response must explain in as much detail as possible why it cannot confirm...