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

• Citation: 342 F.Supp.3d 62
• Decision Date: 27 September 2018
• Docket Number: Case No. 17-cv-00437 (APM)
• Parties: Carol ROSENBERG, et al., Plaintiffs, v. U.S. DEPARTMENT OF DEFENSE, Defendant.
• Court: U.S. District Court — District of Columbia

342 F.Supp.3d 62

Carol ROSENBERG, et al., Plaintiffs,

v.U.S. DEPARTMENT OF DEFENSE, Defendant.

Case No. 17-cv-00437 (APM)

United States District Court, District of Columbia.

Signed September 27, 2018

David A. Schulz, Ballard Spahr LLP, New York, NY, for Plaintiffs.

Daniel J. Halainen, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

Plaintiffs Carol Rosenberg, a reporter for the Miami Herald , and the Miami Herald Media Company bring this action against Defendant United States Department of Defense ("DOD") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs seek disclosure of emails to senior DOD officials sent by retired Marine Corps General John F. Kelly—then Commander of the U.S. Southern Command ("SOUTHCOM")—relating to Joint Task Force Guantánamo ("JTF-GTMO"), a military task force based at the U.S. Naval Station at Guantánamo Bay, Cuba.

After Plaintiffs filed this lawsuit, DOD conducted a search for responsive emails and located 256 email records and 92 attachments, totaling 548 pages. DOD released 548 pages to Plaintiffs, some in full and some with redactions. To justify its redaction and withholding of information from these documents, Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E). In response, Plaintiffs contest Defendant's redactions as unjustified.

Based upon the court's in camera inspection of a representative sampling of the records produced to Plaintiffs, and for the reasons described below, the court finds that Defendant properly withheld information under Exemptions 3, 6, and 7(E). However, the court also finds that Defendant has not properly justified withholding other information under Exemptions 1 and 5. Accordingly, the court grants in part and denies in part Defendant's Motion for Summary Judgment and Plaintiffs' Motion for Summary Judgment.

II. BACKGROUND

A. Statutory Framework

"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). Because of FOIA's critical role in promoting transparency and accountability, "[a]t all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’ " Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ). FOIA requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person," 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions, see id. § 552(b) ; Vaughn v. Rosen , 484 F.2d 820, 823 (D.C. Cir. 1973). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Nat'l Sec. Counselors v. CIA , 320 F.Supp.3d 200, 208–09 (D.D.C. 2018) (alteration in original) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). Moreover, "[e]ven when an exemption applies, the agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record’ after removing the exempt material and must note the ‘amount of information deleted, and the exemption under which the deletion is made.’ " Bartko v. U.S. Dep't of Justice , 898 F.3d 51, 62 (D.C. Cir. 2018) (second alteration in original) (quoting 5 U.S.C. § 552(b) ).

In 2016, President Obama signed into law the FOIA Improvement Act of 2016, which amended the FOIA in various ways. See Pub. L. No. 114-185, 130 Stat. 538. As relevant here, the Act codified the "foreseeable harm" standard established in 2009 by then Attorney General Holder for defending agency decisions to withhold information. See S. Rep. No. 114-4, at 3 & n.8 (2015) (citing Office of Att'y Gen., Memorandum for Heads of Executive Departments and Agencies, Subject: Freedom of Information Act (Mar. 19, 2009) ); S. Rep. No. 114-4, at 7–8. Pursuant to the "foreseeable harm" standard, the Department of Justice would "defend an agency's denial of a FOIA request only if (1) the agency reasonably fores[aw] that disclosure would harm an interest protected by one of [FOIA's] statutory exemptions, or (2) disclosure [were] prohibited by law." U.S. Dep't of Justice, Guide to the Freedom of Information Act 25 (2009 ed.), https://www.justice.gov/archive/oip/foia_guide09/procedural-requirements.pdf (internal quotation marks omitted). By codifying this standard, Congress sought to establish a "presumption of openness" in FOIA. See H.R. Rep. No. 114-391, at 9 (2016); S. Rep. No. 114-4, at 3, 7.

Accordingly, as amended by the FOIA Improvement Act, the statutory text now provides that: "An agency shall ... withhold information under this section only if [ ] (I) the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption described in [ 5 U.S.C. § 552(b) ]; or (II) disclosure is prohibited by law[.]" 5 U.S.C. § 552(a)(8)(A). Stated differently, pursuant to the FOIA Improvement Act, an agency must release a record—even if it falls within a FOIA exemption—if releasing the record would not reasonably harm an exemption-protected interest and if its disclosure is not prohibited by law.¹ The "foreseeable harm" standard—and its applicability to DOD's discretionary redactions—plays a central role in the parties' disputes in this matter.

B. Factual Background

Since 2001, Plaintiff Carol Rosenberg has reported extensively on SOUTHCOM—a component of DOD responsible for American military operations in Central America, South America, and the Caribbean—including its operation of the Guantánamo Bay detention center. Compl., ECF No. 1, ¶¶ 7, 10. Rosenberg's reporting also included coverage of General Kelly during his tenure as Commander of SOUTHCOM from November 2012 to January 2016. Id.

Following the presidential election on November 8, 2016, Rosenberg and the Miami Herald published a story reporting that then President-elect Trump had met with General Kelly and was considering him for a national security role in the new administration. Pls.' Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. for Summ. J., ECF No. 19 [hereinafter Pls.' Cross-Mot.], Pls.' Statement of Facts, ECF No. 19-2 [hereinafter Pl.'s Stmt.], ¶ 55; Pls.' Cross-Mot., Decl. of John Langford, ECF No. 19-3 [hereinafter Langford Decl.], Ex. I, ECF No. 19-4. Presuming that General Kelly would soon become a candidate for a national security position in the Trump administration, Rosenberg sent a FOIA request to DOD on November 11, 2016, seeking:

[A]ll emails by the former Southern Command commander retired Marine Gen. John F. Kelly to Lisa Monaco [the former Assistant to President Obama for Homeland Security and Counterterrorism] or those that also copied her on his correspondence.

Compl., Ex. A, ECF No. 1-1 [hereinafter FOIA Request]. In the FOIA Request, Rosenberg cited "the sudden emergence of General Kelly as a potential candidate for a national security job in the Trump administration" as grounds for expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E). FOIA Request at 1. SOUTHCOM acknowledged receipt of Plaintiffs' FOIA request on November 23, 2016, but denied expedited processing on the basis that "a compelling need [was] not demonstrated." Compl., Ex. B, ECF No. 1-2. Rosenberg administratively appealed the denial of expedited processing. Compl., Ex. C, ECF No. 1-3.

During the pendency of the FOIA request, then President-elect Trump selected General Kelly for the position of Secretary of Homeland Security in early December 2016, Pl.'s Stmt. ¶ 57, and the U.S. Senate confirmed General Kelly on January 20, 2017, id. ¶ 59. After six months as Secretary of Homeland Security, General Kelly was named Chief of Staff to President Trump on July 29, 2017. Id. ¶ 62.

C. Procedural Background

Plaintiffs filed this lawsuit on March 30, 2017, challenging the government's failure to expedite processing of the FOIA request and its failure to disclose any responsive documents. See generally Compl. After DOD responded to Plaintiffs' Complaint on April 27, 2017, see Answer, ECF No. 8, the parties negotiated a schedule for DOD to review, process, and produce records, see generally Joint Status Report, ECF No. 11. In a series of rolling productions, DOD produced to Plaintiffs 256 emails and 92 attachments totaling 548 pages, invoking FOIA Exemptions 1, 3, 5, 6, and 7(E) for various redactions and withholdings across the production. See Third Joint Status Report, ECF No. 15, ¶¶ 3–4; see also Def.'s Mot. for Summ. J., ECF No. 18 [hereinafter Def.'s Mot.], Def.'s Statement of Facts, ECF No. 18-3, ¶¶ 6, 8. The responsive email records consist primarily of weekly updates sent by General Kelly to Lisa Monaco and other DOD senior officials about operations at JTF-GTMO, and the remainder are other email correspondence sent between DOD senior officials about General Kelly's weekly reports. The attachments are primarily routine weekly updates on JTF-GTMO sent by General Kelly to DOD senior officials.

After production, DOD moved for summary judgment. See Def.'s Mot. The motion was supported by the declaration of Brigadier General Todd J. McCubbin, the Reserve Deputy Director of SOUTHCOM, see Def.'s Mot., Decl. of Todd J. McCubbin, ECF No. 18-2 [hereinafter McCubbin Decl.], as well as a Vaughn Index, see id. , Ex. 4 [hereinafter Vaughn Index]. McCubbin's declaration explained the scope of the search conducted in response to Plaintiffs' FOIA request and the reasons for DOD's assertion of various FOIA exemptions to redact the records. See generally McCubbin Decl. In further support of its motion for summary judgment, DOD...