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PUBLIC EDUC. CTR., INC. v. DOD

November 20, 1995

PUBLIC EDUCATION CENTER, INC., Plaintiff,
v.
DEPARTMENT OF DEFENSE, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court is the defendant's Motion for Summary Judgment, filed August 11, 1995 in the above-entitled case. The plaintiff filed an Opposition thereto on August 24, 1995.

 This case arises out of the defendant's decision to withhold certain videotapes and portions of videotapes responsive to the plaintiff's Freedom of Information Act ("FOIA") request seeking copies of videotapes made during the battle involving U.S. armed forces in Mogadishu, Somalia on October 3 and 4, 1993.

 The defendant has moved for summary judgment on the ground that the information withheld falls within Exemption 1 to the FOIA, 5 U.S.C. § 552(b)(1). Upon consideration of the filings by the parties, the classified Supplemental Declaration reviewed in camera by the Court, the entire record herein, the applicable law thereto, and for the reasons set forth below, the defendant's Motion for Summary Judgment shall be granted.

 BACKGROUND

 The plaintiff is a non-profit corporation which operates the National Security News Service, which in turn investigates and reports national security issues. Complaint P 3. On November 4, 1993, the plaintiff filed a FOIA request for "a copy of all videotapes made during the raid by elements from the U.S. Army Ranger battalions and JSOC in Mogadishu, Somalia" on October 3 and 4, 1993. Exh. 1, Passarella Dec. By letter dated December 16, 1993, the U.S. Special Operations Command informed the plaintiff that its FOIA request was denied on the basis that the videotapes were classified pursuant to Executive Order 12,356, section 1.3(a)(1) ("military plans, weapons, or operations") and section 1.3(a)(2) ("vulnerabilities or capabilities of systems, installations, projects, or plans relating to national security"), and therefore, withholding the information was proper under Exemption 1 to the FOIA. Complaint P 6. By letters dated December 20 and 22, 1993, the plaintiff appealed this denial to the Assistant Secretary of Defense for Public Affairs. Id. P 7. By letter dated March 3, 1995, the Principal Deputy Assistant to the Secretary of Defense for Public Affairs responded to the plaintiff's appeal. Exh. 2 to Passarella Dec. Portions of two videotapes responsive to the Plaintiff's FOIA request were placed on one videotape and released to the plaintiff. Redacted portions of the resulting videotape and six other responsive videotapes were withheld as properly classified under Exemption 1. Passarella Dec. at P 8.

 The plaintiff filed the above-captioned action on May 19, 1995, requesting the Court to order the defendant to produce the withheld records to the plaintiff and to award costs and attorneys' fees. The defendant moved for summary judgment on August 11, 1995, proffering several affidavits and a Vaughn index. The Vaughn index identifies withheld sections of the tapes by tape-counter number and, in a corresponding column, generally describes the activity occurring during each tape-counter segment withheld. Additional columns, also corresponding to the discrete tape-counter segments, identify the classification level (as defined in Executive Order 12,356, 3 C.F.R. 166 (1983)) and numbers representing one or more of six categories of justifications for not releasing the information. The Government alleged that the six categories were themselves classified, and identified such categories only by the numbers 1 through 6.

 On August 24, 1995, the plaintiff filed its Opposition to the defendant's Motion for Summary Judgment, arguing for a more specific Vaughn index and more complete public record as to the rationale for withholding the videotapes.

 In its Order of September 6, 1995, the Court ordered the defendant to file a Supplemental Declaration and Vaughn index "further describing the rationales for nondisclosure of the materials requested by the Plaintiffs [sic]," or, in the event that such a Supplemental Declaration is itself classified and exempt from public disclosure on national security grounds, the Court ordered the defendant to file a Memorandum in Support of in camera review of such Supplemental Declaration. In response, the defendant filed a Motion for Leave to Submit a Classified In Camera Declaration (filed Sept. 11, 1995), the plaintiff filed its Response thereto (filed Sept. 20, 1995), and the defendant filed a Reply (filed Sept. 29, 1995).

 On October 2, 1995, the Court ordered the defendant to clarify certain matters and afforded the defendant an additional opportunity to state on the public record the underlying reasons for nondisclosure. Specifically, the Court ordered the defendant to set forth in a supplemental declaration and Vaughn index "whether a statement of the type of rationale (i.e., taping technology, craft technology, or substance of what was taped) for nondisclosure is itself immune from public disclosure, and if not so immune, what the type of rationale in fact is." Oct. 2, 1995 Order at 5. In response, the defendant submitted the Supplemental Declaration of Jack R. Holbein (filed October 6, 1995), which included an additional Vaughn index. The Supplemental Holbein Declaration and index clarified that of the six numbered categories itemizing the rationale for not disclosing the tapes, two of the classified categories identified in the original Vaughn index as numbers 4 and 6, are the type of rationale where the "substance of some information depicted on the tapes" is classified. Supp. Holbein Dec. P 3b; Vaughn index attached to Supp. Holbein Dec., at 4. Of the remaining four classified categories, the Supplemental Declaration stated that "neither the type of rationale nor the rationale itself may be disclosed because both are classified." Supp. Holbein Dec. P 3a.

 Accordingly, on November 6, 1995, the Court ordered the Defendant to "submit for in camera review a supplemental declaration from an individual with personal knowledge that sets forth explicitly, and in non-conclusory terms, the exact rationale for nondisclosure of each tape segment withheld and identified in the original Vaughn index." Nov. 6, 1995 Order at 5. The defendant's counsel submitted the Second Supplemental ...


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