Wash. Post Co. v. Special Inspector Gen. for Afg. Reconstruction

Decision Date15 September 2020
Docket NumberCivil Action No. 18-2622 (ABJ)
Citation486 F.Supp.3d 141
Parties WASHINGTON POST COMPANY, Plaintiff, v. SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION, Defendant.
CourtU.S. District Court — District of Columbia

Charles D. Tobin, Matthew E. Kelley, Ballard Spahr LLP, Washington, DC, for Plaintiff.

Sophie Kaiser, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

This Freedom of Information Act ("FOIA") case involves a request for records made by the Washington Post Company (the "Post") to the Special Inspector General for Afghanistan Reconstruction ("SIGAR"), the federal agency charged with auditing and supervising the U.S. reconstruction efforts in Afghanistan. After several battles concerning the pace of production, SIGAR eventually produced hundreds of responsive records, but it redacted some material made pursuant to various FOIA exemptions. It also declined to produce several documents in full under FOIA exemptions. The Post contests a large portion of the withholdings, see generally Compl. [Dkt. # 1], and both parties have now moved for summary judgment. See generally Def.’s Mot. for Summ. J. [Dkt. # 19] ("Def.’s Mot."); Def.’s Mem. in Supp. of Def.’s Mot. [Dkt. # 19-1] ("Def.’s Mem."); Pl.’s Cross-Mot. for Summ. J. [Dkt. # 22] ("Pl.’s Cross-Mot."); Pl.’s Cross-Mem. in Supp. of Pl.’s Mot. [Dkt. # 22-1] ("Pl.’s Cross-Mem."). For the following reasons, both parties’ motions will be granted in part and denied in part.

BACKGROUND

SIGAR is an independent organization – not located within a larger federal agency – that was established by the National Defense Authorization Act in 2008. Declaration of Michael A. Hubbard [Dkt. # 19-4] ("Hubbard Decl.") ¶ 4. It is a law enforcement and auditing agency that has "audit and investigatory authority over all reconstruction programs and operations in Afghanistan that are supported with U.S. dollars, regardless of the agency involved." Id. ¶¶ 4–5. Its mission is "to prevent and detect waste, fraud, and abuse in U.S.-funded reconstruction programs and operations in Afghanistan," which it accomplishes, in part, through its Lessons Learned Program ("LLP"), which aims to extract lessons from the reconstruction experience and makes recommendations to Congress and federal agencies on ways to improve the reconstruction efforts. Id. ¶¶ 6–7.

The Learned Lesson Program involves reviewing documents in the possession of other federal agencies and conducting interviews with "hundreds of individuals with direct and indirect knowledge of U.S. reconstruction programs." Id. ¶¶ 8–9. According to the agency, these interviews are "not simply histories of what has happened in Afghanistan reconstruction," but they are used to help SIGAR "make actionable recommendations to Congress and the Executive Branch agencies, including on law enforcement matters such as ways to deter and prevent waste, fraud, and abuse." Supplemental Declaration of Michael A. Hubbard [Dkt. # 24-1] ("Supp. Hubbard Decl.") ¶¶ 6–7.

On March 23, 2017, Craig Whitlock, a Washington Post reporter, submitted a FOIA request to SIGAR that sought "full, unedited transcripts and complete audio recordings of all interviews conducted for the Lessons Learned program, regardless of whether they were labeled as ‘on the record,’ or if the interviewee was granted anonymity, or if they were cited in a particular report or not." Ex. A to Compl. [Dkt. # 1-1] ("Request") at 1 (emphasis in original). The request also sought expedited processing and a fee waiver. Id. at 2. The next day, Whitlock sent an email to SIGAR asking it to confirm it received the request. See Ex. 1 to Def.’s Mem. [Dkt. # 19-2] ("Confirm. Email") at 1.

SIGAR's Public Information Manager acknowledged receipt of the request on April 17, 2017, and informed Whitlock that the request for expedited processing had been approved. See Ex. 1 to Def.’s Mem. [Dkt. # 19-2] at 1. On May 15, 2017, SIGAR invoked its right to an extension of at least ten days due to the volume of material requested. See Ex. 2 to Def.’s Mem. [Dkt. # 19-3] at 1. On May 31, 2017, SIGAR informed Whitlock that it required an additional thirty-days and that he "ha[d] the right to appeal any adverse determination(s) ... should [he] wish to do so." Ex. 1 to Answer [Dkt. # 9-1].

On February 23, 2018, the General Counsel for SIGAR informed Whitlock, "[w]e are granting your FOIA request for the audio recordings and transcripts of interviews conducted by our Lessons Learned Program." Ex. B to Compl. [Dkt. # 1-2] ("Feb. 23 Email") at 1. The email explained that the Lessons Learned Program had conducted 410 interviews to date, and that the majority (374) had been completed without audio recordings or transcripts; the interviewer "simply took notes of whatever he or she thought was interesting." Id. Of the thirty-six interviews that were recorded, nineteen were interviews of Afghans that were conducted in Afghanistan through an interpreter and later transcribed for SIGAR. Id. The agency reported that given all of those circumstances, it possessed only seventeen recorded interviews, and only nine of those were transcribed. Id. The General Counsel added "SIGAR is prohibited from law from disclosing the identity of a source who wishes to remain anonymous," citing the Inspector General Act of 1978. Id. The email concluded by asking Whitlock if he was requesting copies of interview notes, which were not explicitly called for in the FOIA request. Id. at 2.

Whitlock promptly responded, "The Washington Post is requesting all records of interviews conducted as part of SIGAR's Lessons Learned Program.... The Post would like all records ... including, but not limited to, transcripts, verbatim transcripts, handwritten and typed notes, records of interviews, audio recordings, video recordings, interview excerpts and interview summaries." Ex. C to Compl. [Dkt. # 1-3] ("Feb. 26 Response").

Thereafter, there were a series of communications between SIGAR and Whitlock, and between the agency and James McLaughlin, a Deputy General Counsel at the Post, in which the Post repeatedly voiced concerns about the completeness and the pace of the production. See Ex. D to Compl. [Dkt. # 1-4] (2/28/18 email from SIGAR to Whitlock); Ex. F to Compl. [Dkt. # 1-5] (4/17/18 McLaughlin letter to SIGAR); Compl. ¶¶ 35, 37–42.

Ultimately, the Post filed suit on November 14, 2018. The complaint alleged that as of that date, SIGAR had produced only: "43 of the 47 ‘on the record’ interviews;" "187 of the 363 ‘on background’ interviews;" and "7 of 17 audio recordings of interviews." Compl. ¶ 43. It sought declaratory and injunctive relief ordering SIGAR to produce the remaining materials and challenging SIGAR's withholding of certain documents. Id. at 14.

After SIGAR answered, [Dkt. #9], the Court established a schedule for the production of the remainder of the requested documents. See Min. Order (Feb. 12, 2019). On June 17, 2019, SIGAR reported to the Court that it had completed production "of all releasable records" to plaintiff. Status Report [Dkt. # 15] ¶ 3.

Defendant filed its motion for summary judgment on August 16, 2019, Def.’s Mot., and plaintiff submitted its cross-motion on September 6, 2019. Pl.’s Cross-Mot. The matter is fully briefed.1 On June 2, 2020, the Court ordered defendant to deliver for in camera inspection the documents that had been withheld pursuant to Exemption 5. See Min. Order (June 2, 2020). The files were delivered on June 8, 2020. See Notice of Delivery for In Camera, Ex Parte Inspection [Dkt. # 26].

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). When the court is presented with cross-motions for summary judgment, it analyzes the underlying facts and inferences in each party's motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Id. at 247–48, 106 S.Ct. 2505. A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505 ; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987).

When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment based on information provided in an agency's affidavits or declarations when they are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and "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). Such affidavits or declarations are "accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard , 926 F.2d at 1200 (citation and internal quotation marks...

To continue reading

Request your trial
2 cases
  • Wash. Post Co. v. Special Inspector Gen. for Afg. Reconstruction
    • United States
    • U.S. District Court — District of Columbia
    • 30 Septiembre 2021
    ...third parties identified in interviews had a legitimate privacy interest in keeping their identities from being disclosed, Wash. Post Co., 486 F.Supp.3d at 160-62, and the privacy interest outweighed the public interest in their identity. Id. at 162. However, SIGAR was ordered to “supplemen......
  • Dale v. U.S. Drug Enf't Agency
    • United States
    • U.S. District Court — District of Columbia
    • 31 Agosto 2022
    ... ... Special Agent & TFO from May 10, 2016 through August 9, ... Washington Post Co. v. Special Inspector Gen. for ... nistan Reconstruction , 486 F.Supp.3d 141, 161 ... (D.D.C. 2020) ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT