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

• Decision Date: 30 September 2021
• Docket Number: Civil Action 18-2622 (ABJ)
• Parties: WASHINGTON POST COMPANY, Plaintiff, v. SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION, Defendant.
• Court: U.S. District Court — District of Columbia

WASHINGTON POST COMPANY, Plaintiff,
v.
SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION, Defendant.

Civil Action No. 18-2622 (ABJ)

United States District Court, District of Columbia

September 30, 2021

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

On March 23, 2017, Craig Whitlock, a reporter from plaintiff Washington Post Company (the “Post”), submitted a Freedom of Information Act (“FOIA”) request to the Special Inspector General for Afghanistan Reconstruction (“SIGAR”), the federal agency charged with auditing and supervising the U.S. reconstruction efforts in Afghanistan. Compl. [Dkt. # 1]; see also 5 U.S.C. § 552 et seq. Plaintiff sought records relating to SIGAR's Lessons Learned Program (“LLP”), specifically the “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] (“FOIA Request”) at 1 (emphasis in original).

Plaintiff filed the instant lawsuit on November 14, 2018, and by June of 2019, SIGAR had processed the FOIA request and produced hundreds of responsive records. See Status Report (June 17, 2019) [Dkt. # 15]. But it redacted some material and declined to produce other documents in full under various FOIA exemptions, and the parties filed cross motions for summary

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judgment. See Def.'s Mot. for Summ. J. [Dkt. # 19] (“Def.'s First Mot.”); Pl.'s Cross Mot. for Summ. J. [Dkt. # 22] (“Pl.'s First Cross Mot.”). The Court granted both motions in part and denied both in part, and it directed the defendant to provide additional information to justify withholdings that remained in dispute. See Wash. Post Co. v. Special Inspector Gen. for Afghanistan Reconstruction, 486 F.Supp.3d 141 (D.D.C. Sept. 2020); see also Sept. 15, 2020 Order [Dkt. # 27] (“Sept. 2020 Order”); Sept. 15, 2020 Mem. Op. [Dkt. # 28] (“Sept. 2020 Mem. Op.”). Pending before the Court are the parties' renewed cross motions for summary judgment, and the matter has been fully briefed.^[1]

BACKGROUND

The background of this case was laid out in detail in the Court's previous opinion. See Wash. Post Co., 486 F.Supp.3d at 148-50 (discussing the history of SIGAR, the purposes of the Lessons Learned Program, the parties' communications concerning the FOIA request, and the initial production of responsive documents). Therefore, the Court will only summarize the facts pertaining to the remaining issues.^[2]

SIGAR is an independent organization established by the National Defense Authorization Act in 2008. See Declaration of Michael A. Hubbard [Dkt. # 19-4] (“First Hubbard Decl.”) ¶ 4; see also Pub. L. No. 110-181. It has “audit and investigatory authority over all reconstruction programs and operations in Afghanistan that are supported with U.S. dollars, regardless of the

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agency involved, ” First Hubbard Decl. ¶¶ 4-5, and its mission is “to prevent and detect waste, fraud, and abuse in U.S.-funded reconstruction programs and operations in Afghanistan.” Id. ¶ 6. SIGAR utilized the Lessons Learned Program (“LLP”) to review the reconstruction experience and make recommendations to Congress and federal agencies on ways to improve reconstruction efforts. Id. ¶¶ 6-7.

To produce the Lessons Learned reports, SIGAR relied on interviews with “hundreds of individuals with direct and indirect knowledge of U.S. reconstruction programs, ” First Hubbard Decl. ¶¶ 8 - 9; and it is the content of these intervi ews - as well as n o t es an d recor d s of i n t ervi ew s (“ROIs”) - that plaintiff seeks from defendant. See FOIA Request. When it processed the FOIA request, SIGAR produced only a portion of the responsive records, and plaintiff filed the instant complaint.^[3] See Compl. It sought declaratory and injunctive relief ordering SIGAR to produce the remaining materials and challenging SIGAR's withholding of certain documents or portions of documents. Id. at 14.

After the parties filed their cross motions for summary judgment, the Court ordered defendant to deliver the documents that had been withheld pursuant to Exemption 5 for in camera inspection. See Min. Order (June 2, 2020). On September 15, 2020, the Court granted judgment in favor of the agency with respect to its withholdings under Exemptions 7(A), 7(E), and 7(F), but it found that more information was needed with respect to Exemptions 1, 3, 5, 6, and 7(C). Sept. 2020 Order at 1-2.

Specifically, the Court ordered that to justify the withholdings under Exemption 1, the State Department must provide “a more fulsome explanation of how the redacted information could

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logically be expected to result in a threat to national security.” Wash. Post Co., 486 F.Supp.3d at 158.

With respect to Exemption 3, it held that the State Department must “submit a supplemental declaration indicating who made the FOIA determinations with respect to the National Security Act in this case, and whether that person had the authority to do so.” Wash. Post Co., 486 F.Supp.3d at 168.

As to Exemption 5, the Court stated that SIGAR must provide supplemental information regarding its reliance on the deliberative process privilege. Wash. Post Co., 486 F.Supp.3d at 170-71.

In connection with Exemptions 6 and 7(C), the Court ruled generally that interviewees who spoke with an understanding that their identities would not be disclosed and 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 that the privacy interest outweighed the public interest in their identity. Id. at 162. However, SIGAR was ordered to “supplement its declaration indicating whether each individual whose identity is being protected could be properly characterized as a ‘private citizen' at the time of the interview and/or the events described during the interview, and whether the interviewee or individual named falls within the proper scope of the exemptions.” Id. at 163. As to the unique interviewee codes, the interview locations, and the audio recordings that were withheld, SIGAR was told to “either supplement its pleadings with additional information explaining how those pieces of data would tend to identify interviewees, or provide the data, including all reasonably segregable portions of the audio recordings.” Id. at 163- 64.

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The Court noted that it did not need to reach the question of SIGAR's withholdings of personally identifying information under Exemption 3 pursuant to section 7(b) of the Inspector General Act of 1978, as amended, (“IG Act”), 5 U.S.C. app. 3 § 7(b), pursuant to 10 U.S.C. § 130b as to SIGAR or as to the United States Special Operations Command (“USSOCOM”), or under Exemption 7(D), given its findings with respect to Exemption 7(C). Wash. Post Co., 486 F.Supp.3d at 166-67. The Court observed in a footnote, though, that its findings under Exemption 7(C) did not apply to “on the record” interviews:

To the degree that SIGAR is withholding the names of individuals who submitted to interviews “on the record” . . . the Court's analysis does not apply. Despite knowing the interviews could be off the record - as is supported by the Hubbard declaration - these interviewees chose to be interviewed without any privacy protection. For that reason, if SIGAR has redacted or withheld information that an interviewee has given permission to keep on the record, it must produce that information to plaintiff.

Id. at 161 n.10.

The Court ordered defendant to complete its review, produce documents, and identify and justify any remaining withholdings by October 30, 2020. Min. Order (Sept. 24, 2020). Defendant provided some of the previously withheld records by that date, including some information it had redacted pursuant to Exemption 5 from nearly forty ROIs. See Joint Status Report (Nov. 10, 2020) [Dkt. # 30].^[4]

The parties subsequently renewed their cross motions, and in the process of preparing its submission, defendant determined it could release four additional records. See Def.'s SOF ¶ 19, citing Fourth Decl. of Michael A. Hubbard [Dkt. # 32-2] (“Fourth Hubbard Decl.”) ¶ 5.

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LEGAL STANDARD

In a FOIA case, the district court reviews the agency's decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

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 (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 (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 (1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson, 477 U.S. at 247-48. A dispute is “genuine” only if a reasonable fact-finder...