Khatchadourian v. Def. Intelligence Agency
| Decision Date | 31 March 2022 |
| Docket Number | Case No. 1:16-cv-311-RCL |
| Parties | Raffi KHATCHADOURIAN, Plaintiff, v. DEFENSE INTELLIGENCE AGENCY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Adam Alexander Marshall, KatieLynn Boyd Townsend, Reporters Committee for Freedom of the Press, Washington, DC, for Plaintiff.
Antonia Marie Konkoly, Christopher Robert Healy, U.S. Department of Justice, Civil Division, Robin Frances Thurston, Democracy Forward Foundation, Washington, DC, Spencer Elijah Wittmann Amdur, American Civil Liberties Union Foundation, Immigrant Rights Project, San Francisco, CA, for Defendants Defense Intelligence Agency, Department of Defense.
This case involves plaintiff Raffi Khatchadourian's Freedom of Information Act ("FOIA") request for disclosure of records held by the Defense Intelligence Agency ("DIA"), a component of the Department of Defense. Previously, this Court granted defendants’ motion for summary judgment on some counts but denied on others so that defendants could supplement the record concerning their segregability obligations under Exemptions 1, 3, and 5, and provide additional explanation for certain withholdings under Exemptions 3 and 5. Khatchadourian v. Def. Intel. Agency (Khatchadourian I ), 453 F. Supp. 3d 54, 97 (D.D.C. 2020). Now, defendants have produced an updated Vaughn Index and segregability explanation and renew their motion for summary judgment. Defs.’ Renewed Mot. for Summ. J. ( ), ECF No. 119. Khatchadourian cross-moves for partial summary judgment, Pl.’s Renewed Mot. for Summ. J. ("Pl.’s Mot."), ECF No. 126, arguing that defendants’ subsequent disclosures indicate bad faith and that numerous records remain improperly withheld. Both parties filed replies. Defs.’ Reply, ECF No. 132; Pl.’s Reply, ECF No. 134. Upon consideration of the parties’ filings, the relevant law, and the record herein, the Court will GRANT defendants’ motion for summary judgment and DENY Khatchadourian's motion for partial summary judgment.
The background of this case has been detailed in a previous memorandum opinion. See Khatchadourian I , 453 F. Supp 3d at 63–65. Defendant DIA is a component of the Department of Defense with a mission to "collect, analyze, and provide intelligence on the military capabilities of foreign military forces." Id. at 63 (quoting Decl. of Alesia Williams in Supp. of Defendants’ Mot. for Summ. J. ("Williams Decl.") ¶ 3, ECF No. 64-1). In 2010, the Secretary of Defense convened the Information Review Task Force ("IRTF") within the DIA to conduct "a damage assessment of one of the largest unauthorized leaks of U.S. government information in history"—the WikiLeaks disclosure. Id. at 64–65. The IRTF completed a final report in 2011 that provided a detailed analysis of the government information systems impacted by the leak. Id. at 65.
Plaintiff Khatchadourian is a journalist seeking to report on the WikiLeaks disclosure. Id. at 63. On February 16, 2012, he submitted a FOIA request to the DIA seeking three things:
See id. at 64 ; Pl.’s Statement of Material Facts ¶ 36, ECF No. 126-2. After receiving an unsatisfactory response from defendants, Khatchadourian filed his complaint in this case on February 22, 2016. Compl., ECF No. 1.
After litigation commenced, defendants conducted an additional search and identified 850 responsive records. Khatchadourian , 453 F. Supp. 3d at 65. Defendants withheld portions of the records under Exemptions 1, 3, 5, 6, and 7. Id. Both parties moved for summary judgment. See ECF Nos. 64 & 78.
On the first round of summary judgment, the Court granted defendants’ motion for summary judgment with respect to the adequacy and scope of defendants’ search, the overall adequacy of the Vaughn Index, and defendants’ Exemption 7 withholdings. Khatchadourian , 453 F. Supp. 3d at 96.1 The Court found that "the records withheld under Exemption 1 contain classified information," and were properly withheld. Id. at 81. The Court also found that most records under Exemption 3 were properly withheld, except for document V-106 and other documents withheld pursuant to 10 U.S.C. § 424, where the court required more information. Id. at 87. But the Court identified issues with defendants’ segregability analysis and Exemption 5 withholdings. Id. The Court:
See id. at 96–97.
After the Court's memorandum opinion, defendants "initiated a 10-month renewed review of the records" at issue in this case. Defs.’ Statement of Material Facts ¶ 1, ECF No. 120. Most of the DIA personnel who participated in the previous FOIA process in this case had left DIA or "shifted to other roles," so defendants instead undertook a "renewed review of the full universe of documents withheld under Exemptions 1, 3, and 5." Id. ¶ 3.
The DIA assigned new subject matter experts ("SMEs") to conduct the first-line review. Id. ¶ 4. For Exemption 1 withholdings, SMEs examined records "line-by-line" to determine whether all portions marked as exempt were properly withheld under Exemption 1 as classified documents. Id. ¶ 6. If a portion of the record withheld under Exemption 1 was labeled unclassified, the SMEs sought to "determine[ ] whether that portion was in fact properly marked unclassified, and if so, whether it contained meaningful information not inextricably intertwined with classified information."2 Id. ¶ 7. If the SMEs determined that there was intelligible, non-inextricably intertwined information, it was marked for potential release to plaintiffs. Id. ¶ 8. Then, DIA and DOJ counsel, "along with FOIA-LIT personnel," reviewed both the records and the SMEs’ notations of segregability determinations. Id. ¶ 9. Second-line reviewers then updated the Vaughn Index. Id. ¶ 10.
For Exemption 3 withholdings, the SMEs on first-line review sought to determine whether "any portion of the withheld information could be released without revealing intelligence sources or methods protected under 50 U.S.C. § 3024(i), or information protected by 10 U.S.C. § 424." Id. ¶ 12. After reviewing the withholdings and deeming them proper, SMEs sought to determine whether there was any intelligible, non-exempt information that could be segregated. Id. ¶ 15. Then, like with Exemption 1, DIA and DOJ counsel reviewed each of the records in a second-line review and updated the Vaughn Index. Id. ¶ 17. Second-line reviewers were in regular contact with SMEs about their determinations. Id.
For withholdings under Exemption 5 and the deliberative process privilege, SMEs added notations "regarding the context of the creation of documents marked as exempt as deliberative, to support the basis for the predecisional and deliberative nature of the documents." Id. ¶ 19. SMEs also examined whether Exemption 5 withholdings were coextensive with other asserted withholdings. Id. ¶ 20. If so, they did not send those portions of the documents for second-line review. Id. ¶ 21. But documents withheld solely under Exemption 5 were sent for a second-line review, similar to Exemptions 1 and 3. Id.
All told, defendants provided supplemental releases for "approximately 287 records" after the renewed review. Pl.’s Statement of Material Facts ¶ 22. The DIA states that the supplemental releases are largely "comprised of unclassified subject headers." Defs.’ Statement of Material Facts ¶ 23. Khatchadourian concedes that "some" unclassified subject headers were produced. Pl.’s Statement of Material Facts ¶ 23.
Defendants’ motion for summary judgment includes a declaration from Steven Tumiski, Chief of Records Management and Information Services for the DIA, who explains in detail the basis behind withholdings under Exemptions 1, 3, and 5. See Decl. of Steven Tumiski ("Tumiski Decl."), ECF No. 119-1. This declaration includes detailed descriptions of individually challenged documents. After Khatchadourian filed his motion for partial summary judgment, defendants filed an additional declaration from the Director of the Information Management and Compliance Office, Brentin Evitt, who provides further explanation about the withholdings that Khatchadourian challenges. See Decl. of Brentin Evitt ("Evitt Decl."), ECF No. 133-1.
The record also includes a declaration from Adam Marshall, senior staff attorney at the Reporters Committee for Freedom of the Press, in support of Khatchadourian's motion for partial summary judgment. See Decl. of Adam Marshall ("Marshall Decl."), ECF No. 126-3. His declaration is comprised of examples of documents disclosed to Khatchadourian after defendants’ renewed review. See id.
Defendants renewed their motion for summary judgment. Defs.’ Mot. 1. They argue that the record before the Court regarding segregability and the Exemption 5 withholdings is "robust," and point to the "meticulous" second look undertaken by the DIA. Id. Since these were the only issues left open after Khatchadourian I , defendants argue summary judgment is warranted. Khatchadourian also moves for partial summary judgment. Pl.’s Mot. First, he...
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