Judicial Watch, Inc. v. U.S. Dep't of Def.

• Citation: 963 F.Supp.2d 6
• Decision Date: 28 August 2013
• Docket Number: Civil Action No. 12–cv–49 (RC).
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, and Central Intelligence Agency, Defendants.
• Court: U.S. District Court — District of Columbia

963 F.Supp.2d 6

JUDICIAL WATCH, INC., Plaintiff,

v.U.S. DEPARTMENT OF DEFENSE, and Central Intelligence Agency, Defendants.

Civil Action No. 12–cv–49 (RC).

United States District Court, District of Columbia.

Aug. 28, 2013.

Christopher Alan Fedeli, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Marcia Berman, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, District Judge.

In researching the film that became Zero Dark Thirty, two filmmakers spoke with government officials about the search for Osama Bin Laden and the raid on his compound in Abbottabad, Pakistan. The Central Intelligence Agency arranged for the filmmakers to meet with four of its officers who played a role in planning the raid. A Department of Defense official offered to introduce them to a U.S. Navy SEAL who was also involved in the planning. The filmmakers were told the full name of the Navy SEAL, and the first names of the CIA officers.

Judicial Watch, a non-profit organization that promotes government accountability, submitted a Freedom of Information Act (“FOIA”) request for all records of CIA and Department of Defense communications with the filmmakers. The agencies produced most of those records, some of which were redacted in places, and withheld others, primarily on the grounds of attorney-client privilege. Judicial Watch does not challenge the withholdings. The only redactions that it challenges are the names of the SEAL and the CIA officers.

Judicial Watch concedes that the names of those individuals would normally be exempt from disclosure. But the organization argues that the government placed their names in the public domain by revealing them to the filmmakers, and now must provide that information to anyone who requests it. Under the law of this circuit, a FOIA requester who would prevail on that argument must identify “specific information in the public domain that duplicates that being withheld.” Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C.Cir.1993). Judicial Watch cannot do so, because the general public does not know the names that the organization would uncover here. Because the government has withheld the names pursuant to a concededly valid FOIA exemption and has not placed them in the public domain, its motion for summary judgment will be granted.

I. BACKGROUND

In August 2011, Judicial Watch sent Freedom of Information Act requests to the Central Intelligence Agency and the Department of Defense, seeking all records of communications with Kathryn Bigelow and Mark Boal, respectively the director and screenwriter of “an upcoming film ... tentatively titled, ‘Killing bin Laden.’ ” Judicial Watch also requested all records of communications with “Megan Ellison and/or any other officer or employee of Annapurna Pictures, the financiers of the film” and “all records concerning, regarding or related to the upcoming film” itself. The time frame for the request was January 1, 2011 through August 9, 2011. Decl. of Martha M. Lutz, Information Review Officer, Director's Area, Central Intelligence Agency (Sept. 14, 2012) (“Lutz Decl.”), Ex. A (FOIA Request from Judicial Watch (Aug. 9, 2011)), at 1; Decl. of Mark H. Herrington, Associate Deputy General Counsel, Department of Defense (Sept. 14, 2012) (“Herrington Decl.”), Ex. A (FOIA Request from Judicial Watch (Aug. 9, 2011)), at 1. Both agencies replied that they would be unable to respond to the request within twenty days, as FOIA requires. 5 U.S.C. § 552(a)(6); Lutz Decl., Ex. B (Letter from Susan Viscuso, Information and Privacy Coordinator, CIA (Aug. 16, 2011)); Herrington Decl., Ex. B (Letter from Paul J. Jacobsmeyer, Chief, Office of Freedom of Information, Department of Defense (Aug. 22, 2011)).

Judicial Watch filed this suit in January 2012. In May of that year, the Department of Defense produced 153 pages of responsive records, Herrington Decl. at ¶ 4, while the CIA produced sixty-seven responsive documents and withheld twenty-seven, primarily on the grounds of attorney-client privilege, Lutz Decl. at ¶ 9. Both agencies produced additional responsive records that August. Herrington Decl. at ¶ 4; Lutz Decl. at ¶ 9.

A sixteen-page transcript of a background interview with Kathryn Bigelow and Mark Boal (collectively, “the filmmakers”) was among the documents that the Department of Defense produced. Herrington Decl. at ¶ 4. Names mentioned by either Mark Boal or Michael Vickers, the Under Secretary of Defense for Intelligence, were redacted from five places in the transcript. The first three redactions occurred in the following exchange:

Mark Boal: I'll take [NAME REDACTED] or someone like that.

Michael Vickers: Well the basic idea is they'll make a guy available who was involved from the beginning as a planner; a SEAL Team 6 Operator and Commander.

Mark Boal: Are you talking about [NAME REDACTED]?

Michael Vickers: A guy name[d] [NAME REDACTED]. And so, he basically can probably give you everything you would want or would get from Adm[.] Olson or Adm[.] McRaven.

Id., Ex. C (Transcript of Background Interview (July 15, 2011)) (“Background Interview”), page numbered DoD 140. The redacted names are, in order of appearance, (1) the first and last name of a member of the Department of Defense, (2) the rank and last name of another member of the Department of Defense, and (3) the last name followed by the full name—as in “Smith, John Smith”—of a third member of the Department of Defense. Id. at ¶ 7. After the filmmakers expressed their pleasure at this arrangement, Under Secretary Vickers went on:

And so, he'll speak for operators and he'll speak for senior military commanders, because the[y're] all the same tribe and everything, and so you should get most of what you need from him. Now, again the reason Adm[.] Olson and Adm[.] McRaven didn't want to talk is this command conflict of interest. And then with [NAME REDACTED] the only thing we ask is that you not reveal his name in any way as a consultant, because again, it's the same thing, he shouldn't be talking out of school, this at least, this gives him one step removed and he knows what he can and can't say, but this way at least he can be as open as he can with you and it ought to meet your needs and give you lots of color.

Background Interview, page numbered DoD 140. At the end of the interview, Under Secretary Vickers asked “So should I have [NAME REDACTED] reach out to you?” Id., page numbered DoD 153. These redactions are, respectively, the last name of the individual that he mentioned earlier, and the rank and last name of that same person. Herrington Decl. at ¶ 7. The three individuals whose names have been redacted were all assigned to routinely deployable units. Id.

Among the documents produced by the Central Intelligence Agency were two internal email chains that contained the names of undercover CIA officers who played a role in planning the Bin Laden operation and later met with the filmmakers. Lutz Decl. at ¶¶ 12, 14–15. The first and last name of one such officer was redacted from the first email chain, and the first names of that officer and three others were redacted from the second chain. Id. at ¶¶ 14–15. The CIA explains that “when the meetings with the filmmakers took place at the CIA Headquarters, the guidance provided to the officers who were ... in sensitive positions was that they should provide the filmmakers with their true first names only.” Id. at ¶ 12; see also id. at ¶ 14 (“To my knowledge, the only redacted information in this email that may have been shared with the filmmakers during the meetings was the first name of one of the officers who is in the email chain's distribution line. This email also contains that officer's last name, but ... it is my understanding that the officer was instructed not to provide his last name to the filmmakers.”); id. at ¶ 15 (“The redacted information in these two paragraphs reflects the true first names of four CIA officers who met with the filmmakers.... As noted above, it is my understanding that these officers' true first names most likely would have been shared with the filmmakers during the meetings.”).

Judicial Watch now challenges the government's authority to withhold the full name and rank of the Navy SEAL mentioned by Under Secretary Vickers and the first names of the four CIA officers who met with the filmmakers. See Pl.'s Br. at 6. The parties have filed cross-motions for summary judgment on the question.

II. LEGAL STANDARD

A. The Freedom of Information Act

FOIA was enacted so that citizens could discover “what their government is up to.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, 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, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). FOIA therefore “seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). FOIA “is broadly conceived,” Mink, 410 U.S. at 80, 93 S.Ct. 827, and its “dominant objective” is “disclosure, not secrecy,” U.S. Dep't of Def. v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Rose, 425 U.S. at 361, 96 S.Ct. 1592).

An agency may withhold information responsive to a FOIA request only if the information falls within an enumerated statutory exemption. 5 U.S.C. § 552(b). These “exemptions are ‘explicitly exclusive,’ ” U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136,...