National Inst. of Milit. v. U.S. Dept. of Defense

• Decision Date: 16 December 2005
• Docket Number: No. CIV.A. 04-312(RBW).,CIV.A. 04-312(RBW).
• Citation: 404 F.Supp.2d 325
• Parties: NATIONAL INSTITUTE OF MILITARY JUSTICE, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, Defendant.
• Court: U.S. District Court — District of Columbia

404 F.Supp.2d 325

NATIONAL INSTITUTE OF MILITARY JUSTICE, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, Defendant.

No. CIV.A. 04-312(RBW).

United States District Court, District of Columbia.

December 16, 2005.

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Mark H. Lynch, Phillip E. Dube, Covington & Burling, Washington, DC, for Plaintiff.

Claire M. Whitaker, Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

WALTON, District Judge.

The plaintiff has filed this lawsuit alleging that the defendant impermissibly withheld documents requested pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Complaint ("Compl.") ¶ 1. Currently before the Court are the parties' cross-motions for summary judgment.¹ For the reasons set forth below, this Court grants in part, and denies in part, both parties' motions.

I. Background

The facts in this case are not largely in dispute and are the following. On November 13, 2001, the President of the United States issued a Military Order authorizing the establishment of military commissions to try suspected terrorists. Pl.'s Mem. at 3 (citing 66 Fed.Reg. 57,833 (Nov. 16 2001)). Section 4 of this Order directed the Secretary of the Department of Defense ("Secretary") to issue regulations to implement the President's Military Order. Id. Pursuant to this provision, the Secretary began the process of promulgating regulations to establish the military commissions. And, on July 1, 2003, the Secretary published in the federal register the final rules establishing the procedures for conducting the military commissions. Id. (citing 68 Fed.Reg. 39,374 (July 1, 2003)). According to the plaintiff, the Department of Defense ("DoD"), during the internal drafting process of the regulations, received comments and advice from non-agency attorneys and the general public on the draft regulations. Id. at 3-4. These comments form the basis of the plaintiff's FOIA request that is at issue in this case.

The plaintiff, the National Institute for Military Justice ("NIMJ"), is a nonprofit corporation that provides information to the public about military justice. Compl. ¶ 3. On October 3, 2003, the plaintiff submitted a request pursuant to the FOIA for

all written or electronic communications that the Department (including the Secretary and General Counsel) has either sent to or received from anyone (other than an officer or an employee of the United States acting in the course of his or her official duties) regarding the President's November 13, 2001 Military Order, the Secretary's Military Commission Orders, and the Military Commission Instructions. This requests includes but is not limited to suggestions or comments on potential, proposed, or actual terms of any of those Orders or Instructions and any similar, subsequent, superseding or related Orders or Instructions, whether proposed or adopted.

Compl. ¶ 5. Upon receipt of the plaintiff's FOIA request, the defendant directed it to two offices of the Secretary likely to have documents responsive to the request — (1) the Correspondence and Directives Division of a support organization, the Washington Headquarters Services, and (2) the Office of the General Counsel. Def.'s Mem. at 2. The search in the Office of the General Counsel was focused primarily in the Office of Military Commissions and the Office of the Deputy General Counsel. Id. On November 18, 2003, the defendant made an "interim" response to the plaintiff's request that resulted in the release of some, but not all, of the requested documents.² Compl. ¶ 6. The plaintiff administratively appealed the defendant's response, id. ¶ 7, and on February 26, 2004, after the defendant failed to timely respond to the appeal, id. ¶ 8, the plaintiff commenced the action that is presently before this Court. After an initial round of summary-judgment briefing in this case commenced, the defendant undertook a new search for responsive documents. Def.'s Mem. at 3. This new search was conducted in more offices than the previous search and used different search criteria, which resulted in a much broader search for responsive documents. Id. Specifically, this expanded search included searches of: (1) the files of the Legal Counsel; (2) the correspondence files of the General Counsel; (3) the files of the Deputy Secretary of Defense; (4) the files of the Under Secretary of Defense for Policy; (5) the files of the Office of Detainee Affairs; and (6) the files of the Office of Public Inquiries and Analysis. Id. at 3. Moreover, former employees were contacted who might have knowledge of the location of potentially responsive documents. Id. This search resulted in the discovery of thousands of pages of responsive documents, which, to the extent the defendant claims is permissible under the FOIA, have been released. Id. at 4.

On March 9, 2005, the defendant filed a second motion for summary judgment along with an index produced pursuant to Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973), which provides the defendant's justifications for withholding all or part of 87 documents. Def.'s Mem., Ex. 11 (Vaughn index). In the papers currently before the Court, the defendant contends that it has properly withheld all or part of these documents pursuant to FOIA exemptions (b)(3), (b)(5), and (b)(6), and that its search was adequate to discover all responsive documents. Id. at 4-6. Accordingly, the defendant argues that it is entitled to summary judgment. The plaintiff, however, contends that the defendant's search was not adequate, and that many of the documents that were discovered have been improperly withheld under exceptions (b)(3) and (b)(5). Pl.'s Mem. at 1-2.

II. Standard of Review

(A) Federal Rule of Civil Procedure 56(c)

This Court will grant a motion for summary judgment under Rule 56(c) if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). When ruling on a motion for summary judgment, this Court must view the evidence in the light most favorable to the non-moving party. VoteHemp, Inc. v. Drug Enforcement Admin., 237 F.Supp.2d 55, 59 (D.D.C.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, the non-moving party cannot rely on "mere allegations or denials ... but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted); see also Fisher v. Nat'l Institutes of Health, 934 F.Supp. 464, 467-68 (D.D.C.1996) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

(B) Summary Judgment in FOIA Cases

The "`burden is on the agency' to show that the requested material falls within a FOIA exemption." Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (quoting 5 U.S.C. § 552(a)(4)(B)). Agencies typically submit affidavits and a Vaughn index to satisfy this burden, which sets forth a description of each withheld document, the exemption claimed for withholding the document, and reasons supporting the application of the exemption to the withheld material. Vaughn, 484 F.2d at 827; King v. U.S. Dep't of Justice, 830 F.2d 210, 219 (D.C.Cir.1987); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir. 1983). This index must be sufficiently detailed to allow a court to determine whether the claimed exemptions apply to the withheld documents. Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C.Cir.1996). Moreover, a court may rely on affidavits provided by an agency in granting summary judgment "if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These statements by the agency "cannot support summary judgment if they are `conclusory, merely reciting statutory standards, or if they are too vague or sweeping.'" King, 830 F.2d at 219 (citations omitted). While the District of Columbia Circuit has not defined what constitutes a conclusory statement, it has concluded that "where no factual support is provided for an essential element of the claimed privilege or shield, the label `conclusory' is surely apt." Senate of the Commonwealth of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir.1987) (emphasis in original). In addition, "[w]hile an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith." Gutman v. U.S. Dep't of Justice, 238 F.Supp.2d 284, 290 (D.D.C. 2003). Thus, to determine whether a court should grant summary judgment in a FOIA action, the court must determine whether undisputed material facts, as shown by exhibits, affidavits, and/or the Vaughn index, show that each requested document has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001); Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C.Cir.1980).

As already noted, the defendant contends that it has properly withheld responsive documents pursuant to FOIA exemptions (b)(3), (b)(5), and (b)(6), and that its search was adequate. Def.'s Mem. at 4. On the other hand, the plaintiff takes exception to each of the defendant's positions.³ Pl.'a Mem. at 1-2. The Court will address the plaintiff's challenges in turn.

III. Legal Analysis

(A) The Defendant's Search

The plaintiff first argues that its "FOIA request has been infected by...