Khatchadourian v. Def. Intelligence Agency

• Citation: 453 F.Supp.3d 54
• Decision Date: 19 March 2020
• Docket Number: Case No. 1:16-cv-311-RCL/DAR
• Parties: Raffi KHATCHADOURIAN, Plaintiff, v. DEFENSE INTELLIGENCE AGENCY, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

453 F.Supp.3d 54

Raffi KHATCHADOURIAN, Plaintiff,

v.DEFENSE INTELLIGENCE AGENCY, et al., Defendants.

Case No. 1:16-cv-311-RCL/DAR

United States District Court, District of Columbia.

Signed March 19, 2020

MEMORANDUM OPINION

Royce C. Lamberth, United States District Court Judge

This action arises from the production and retention of records pursuant to plaintiff Raffi Khatchadourian's request for disclosure of records held by the Defense Intelligence Agency ("DIA") under the Freedom of Information Act ("FOIA"). Defendants DIA and Department of Defense ("DOD") filed for summary judgment (ECF No. 64) in August of 2018. In April of 2019, Mr. Khatchadourian filed a summary judgment motion (ECF No. 78) as well as a motion for in camera review (ECF No. 79).

Plaintiff argues that (1) DIA narrowly construed his request in contravention of FOIA; (2) DIA's search was inadequate; (3) defendants' Vaughn Index and declarations are facially inadequate and conclusory; (4) defendants' inconsistencies and conclusory justifications for withholdings under Exemption 1 preclude summary judgment in defendants' favor; (5) defendants' inconsistencies and conclusory justifications for withholdings under Exemption 3 preclude summary judgment in defendants' favor; (6) defendants do not demonstrate that the deliberative process applies to any of DIA's Exemption 5 withholdings; (7) defendants' conclusory justifications for DIA's Exemption 7 withholdings preclude summary judgment in favor of defendants, and (8) defendants do not meet their burden to show that they properly segregated non-exempt information from otherwise exempt records. As a remedy for these alleged problems, plaintiff moves for in camera review of a select number of records, which defendants argue is inappropriate.

The Court referred all pending motions to Magistrate Judge Deborah A. Robinson in February of 2018. In February of 2020, Magistrate Judge Robinson issued a Report & Recommendation (ECF No. 87) finding that (1) DIA properly construed the scope of Plaintiff's request; (2) DIA's search was adequate; (3) defendants' Vaughn Index and declarations are not facially inadequate; (4) defendants demonstrate that all records withheld under Exemption 1 contain classified information, but do not adequately explain how DIA segregated non-exempt information from such records; (5) defendants demonstrate that some records include information properly withheld under Exemption 3, but do not adequately explain how DIA segregated non-exempt information from such records; (6) defendants do not demonstrate that the deliberative process applies to any of DIA's Exemption 5 withholdings, nor do defendants adequately explain how DIA segregated non-exempt information from such records, and (7) DIA properly invoked Exemption 7 for the sole record it withheld under this exemption. Magistrate Judge Robinson recommended that defendants' motion for summary judgment be granted as to (1) the adequacy and scope of DIA's search for responsive records; (2) the overall adequacy of defendants' Vaughn Index and associated declarations; and (3) defendants' Exemption 7 withholdings. She recommended that plaintiff's motion for summary judgment be denied as to those issues but granted as to all public news article records withheld under Exemption 3 and 10 U.S.C. § 424 (meaning that defendants' motion for summary judgment should be denied as to that issue). The report further recommends denying without prejudice defendants' motion for summary judgment as to (1) defendants' exemptions 1,3, and 5 withholdings to allow supplementation of the record with respect to segregability; (2) defendants' Exemption 3 withholdings to allow supplementation of the record with respect to V-106 and all records identified as lacking under 10 U.S.C. § 424 ; and (3) defendants' Exemption 5 withholdings to allow supplementation of the record with respect to the deliberative process privilege. Finally, Magistrate Judge Robinson recommended that plaintiff's motion for in camera review be denied.¹

Upon consideration of the underlying motions, the report, plaintiff's objection to the report (ECF No. 89), defendants' response to that objection (ECF No. 90), and plaintiff's reply (ECF No. 91), the Court will adopt the report in its entirety. Plaintiff's objections are without merit. Defendants never filed any objection to the report, and they ask the Court to adopt the report in its entirety. As explained below, the Court will GRANT IN PART AND DENY IN PART plaintiff's and defendants' motions for summary judgment. The Court will GRANT defendants' motion for summary judgment and DENY plaintiff's motion for summary judgment with respect to (1) the adequacy and scope of DIA's search for responsive records; (2) the overall adequacy of defendants' Vaughn Index and associated declarations; and (3) defendants' Exemption 7 withholdings. With respect to Exemption 1, the Court will ORDER defendants to supplement the record regarding the segregability analysis. With respect to Exemption 3, the Court will ORDER defendants to supplement the record with respect to V-106 and all other records withheld under 10 U.S.C. § 424 on the basis of "revealing DIA functions." The Court will further ORDER defendants to supplement the record regarding the Exemption 3 segregability analysis. With respect to Exemption 5, the Court will ORDER defendants to supplement the record regarding the deliberative process privilege. The Court will further ORDER defendants to supplement the record regarding the Exemption 5 segregability analysis. Finally, the Court will DENY plaintiff's motion for in camera review.

BACKGROUND

Plaintiff Raffi Khatchadourian is a journalist seeking to report on the release of United States military secrets by the website Wikileaks. Complaint (ECF No. 1) ¶ 4. Defendant DIA, as a component of DOD, has a mission "to collect, analyze, and provide intelligence on the military capabilities of foreign military forces[.]" Declaration of Alesia Y. Williams in Support of Defendants' Motion for Summary Judgment (ECF No. 64-1) ¶ 3. On July 28, 2010, the Secretary of Defense convened the Information Review Task Force ("IRTF") to conduct a damage assessment of one of the largest unauthorized leaks of U.S. government information in history. Id. ¶ 5. In its final report (completed on June 15, 2011), the IRTF provided a detailed analysis of the U.S. government information systems impacted by the leak. Id. This assessment contained classified information, including (among other things) highly specific and detailed information regarding military plans and operations, clandestine intelligence relationships with other countries, intelligence sources and methods, and an assessment of the potential harm that the disclosures posed to U.S. and coalition forces.

On February 16, 2012, plaintiff submitted a FOIA request to DIA seeking:

1) Any documents relevant to the creation, scope, structure, and responsibilities of the Information Review Task Force ...

2) Any conclusions, reports, or assessments (provisional and/ or final) that have been generated by the IRTF.

3) Records of all previous FOIA requests for information pertinent to the IRTF.

Khatchadourian Declaration Exhibit 1 (ECF No. 78-5) at 4.

On September 12, 2013, DIA identified six records responsive to plaintiff's request.² Defendants' Statement of Material Facts (ECF No. 64) ¶ 3. Of the six records, one was withheld in full, two were released in full, and three were released in part. Id. Plaintiff appealed DIA's initial response on November 12, 2013. Id. ¶ 5. Plaintiff filed his complaint on February 22, 2016. See ECF No. 1. Between July 18, 2016 and October 25, 2016, DIA provided additional responsive records in several batches in response to plaintiff's 2013 appeal. ECF No. 64-1 ¶ 13.

During the pendency of this litigation, in response to plaintiff's assertion that he expected the first prong of his request to have included a search of DIA's email system, DIA began to design a search protocol to locate responsive email records. Id. ¶¶ 15-16. DIA and plaintiff worked together through several rounds of searches, narrowing the scope of potentially responsive emails to be reviewed from 1.8 million to 118,000, then from 118,000 to 18,000. Id. ¶¶ 15-18. DIA then used two 300-email samples to determine the extent to which the 18,000 emails contained responsive records. Id. ¶¶ 15-19, 21. DIA indicated that 2-4% of the emails would be responsive and nonduplicative. Id. ¶¶ 20, 22. DIA abandoned this process in mid-2017 and elected to use its own, unilaterally designed email search protocol. Id. ¶ 25. This protocol was limited to six search terms, searched within the email accounts of six people, and was restricted to a thirty-six-day period during which the IRTF was being "stood up." Id. ¶¶ 27-29. DIA also searched through "a newly identified computer database." Id. ¶ 30. This search yielded potentially responsive records consisting of 1,750 emails and 650 records from the database. Id. ¶ 31. Upon processing, DIA indicated that only five of those emails were responsive with an additional seven responsive attachments. ECF No. 50 at 3.

Plaintiff also made a second request to DIA on October 20, 2015 seeking all processing notes and communications regarding his first request and his appeal of DIA's initial response to it. ECF No. 64-1 ¶ 10. DIA answered plaintiff's second request on June 16, 2016, identifying thirty-three records, twelve of which were released in full, and twenty-one of which were released in part. Id. ¶ 12.

Including disclosures made after the litigation commenced, DIA has identified 850 responsive records, totaling over 5,000 pages. See id. at 38-809 ("Vaughn Index"); Amended Vaughn Index (ECF No. 75-1) (updating Vaughn Index for "Part 2" only). Of the responsive records which DIA identified, the agency withheld portions of or the entirety of certain records under Exemptions 1, 3, 5, 6, and 7. See Vaughn Index at...