The opinion of the court was delivered by: Reggie B. Walton United States 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.*fn1 For the reasons set forth below, this Court grants in part, and denies in part, both parties' motions.
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.*fn2 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.
(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 (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 (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).
(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. Dep't of the 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. Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987); Weisberg v. 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. 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. 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. 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.*fn3 Pl.'a Mem. at 1-2. The Court will address the plaintiff's challenges in turn.
(A) The Defendant's Search
The plaintiff first argues that its "FOIA request has been infected by either bad faith or incompetence" and thus, the defendant has a heavier burden to carry in establishing that it has complied with the requirements of the FOIA. Pl.'s Mem. at 11.The plaintiff advances two examples to illustrate this point. First, the plaintiff opines that the defendant failed to initially include comments from non-agency lawyers as responsive to its FOIA request. Id. The plaintiff suggests that this was inexcusable, and cannot simply be attributed to inadvertence or oversight, since those documents were clearly responsive to its request. Id. As support for its position, the plaintiff directs the Court to the acknowledgment and praise made by the Secretary at a press conference concerning the advice and comments provided by these attorneys. Id. at 12. According to the plaintiff, the defendant's failure to produce these documents demonstrates an "indifference to the commands of FOIA," and shows that the delay in the release of these documents is indefensible. Id. at 13-14. Second, the plaintiff posits that there are inconsistences between the defendant's decision to release certain documents while failing to release others. Id. at 14-15. Specifically, the plaintiff directs the Court to instances where the defendant released documents containing comments from the general public, but withheld documents containing the views of non-agency attorneys. Id. Moreover, the plaintiff notes that the defendant released three documents containing the views of non-agency attorneys, but withheld documents containing the views of other such attorneys. Id. These inconsistencies, the plaintiff opines, demonstrate that the defendant's response to the plaintiff's FOIA request was made in bad faith. Id. at 14-16. The defendant contends, however, that based on the affidavits presented to the Court and the evidence in the record, there has been no showing of bad faith, inconsistency, or incompetence on its part. Def.'s Opp'n at 2-3. This Court agrees with the defendant's positions for the reasons set forth below.
The plaintiff's first challenge to the defendant's failure to account for allegedly responsive documents in its initial FOIA search is essentially an attack on the adequacy of the defendant's search based on a claim that it was conducted in bad faith.*fn4 The FOIA requires an agency defendant to show "beyond material doubt" that it has conducted a search reasonably calculated to uncover all relevant documents. Weisberg, 705 F.2d at 1351. As the District of Columbia Circuit has made clear, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Id. (quoting Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam) (emphasis in original)). "The adequacy of an agency's search is measured by a 'standard of reasonableness' and is 'dependent upon the circumstances of the case.'" Id. (quoting McGehee v. CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983); Founding Church of Scientology v. NSA, 610 F.2d 824, 834 (D.C. Cir. 1979)). To establish that an agency has conducted an adequate search, the government may rely on affidavits, as long as they are "reasonably detailed . . . setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1980)); see also Weisberg, 705 F.2d at 1351 ("The government may rely upon affidavits to show it has conducted a reasonable search, as long as they are 'relatively detailed and nonconclusory and . . . submitted in good faith.'") (quoting Goland v. CIA, 607 F.2d 339, 367, 369 (D.C. Cir. 1979)). Moreover, it is well-settled in this Circuit that subsequent disclosure of documents initially withheld does not alone establish bad faith. E.g., Public Citizen v. Dep't of State, 276 F.3d 634, 645 (D.C. Cir. 2002); Gutman, 238 F. Supp. 2d at 291.
Here, rightly or wrongly, the defendant narrowly construed the plaintiff's initial FOIA request. However, after the parties engaged in discussions and this suit was commenced, the defendant expanded its search for responsive documents, searched in locations not previously searched and utilized different search terms which expanded the scope of the search. While it now seems obvious that the defendant's initial search was inadequate, and it is clear that the defendant could have been more diligent in its initial response to the plaintiff's FOIA request, this does not demonstrate bad faith. As the Eighth Circuit has noted, "[w]hile the discovery of additional documents is evidence that the search was not thorough, such discovery is not conclusive of agency bad faith. It may be indicative of administrative inefficiency, or it may, as in this case, indicate reluctant diligence by the agency under the goad of persistent litigation by a determined plaintiff." Miller v. Dep't of State, 779 F.2d 1378, 1386 (8th Cir. 1986) (internal citations omitted). Such is the case here. Although the agency was not initially diligent, that alone does not demonstrate bad faith, especially in light of the subsequent efforts to search for responsive records once the parties engaged in discussions about the specific type of documents the plaintiff was seeking.*fn5
The plaintiff's second argument - that bad faith is evidenced because there are inconsistencies between released documents and documents that have been withheld - is also meritless. Pl.'s Mem. at 14. The plaintiff avers that some released documents are virtually identical in substance to other documents that have been withheld. For example, the plaintiff points to instances where documents containing the views of the general public or non-agency attorneys were released, but other documents containing the views of other non-agency attorneys were not released. Id. at 14-15. While conceding that the release of documents containing comments from some non-agency attorneys and the general public does not waive the agency's ability to withhold similar documents, the plaintiff opines that the agency must clearly detail why documents containing the comments of one set of attorneys can be released, but documents containing the comments from another set cannot. To support its position, the plaintiff relies on Army Times Publishing Co. v. Dep't of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993). Id. at 16-17. This case simply does not support the plaintiff's contention.
In Army Times, the plaintiff sought to obtain certain information pursuant to the FOIA that had been acquired by the Air Force through telephone surveys conducted by non-agency pollsters hired by the agency to assess military personnel views on working conditions. Id. at 1068-69. The defendant had previously released some of the survey results through news releases. Id. at 1069. The defendant, in denying the plaintiff's FOIA request, claimed that FOIA's Exemption 5 prohibited the release of the withheld information. Id. The district court granted summary judgment to the Air Force. However, on appeal, the District of Columbia Circuit reversed, concluding that because some information from the surveys had been voluntarily produced, the agency could not claim a blanket exemption under the FOIA. Id. at 1071. Thus, to withstand scrutiny, an agency must provide detailed affidavits and/or a Vaughn index indicating why the documents withheld warrant application of Exemption 5, including determinations on segregability. Id.
Here, to the extent the plaintiff claims that bad faith is shown by the defendant's failure to comply with the requirement of Army Times, this argument misses the mark. First, Army Times did not even discuss bad faith, and it is therefore unclear why the plaintiff has relied on it for its bad faith proposition. Rather, Army Times addressed the applicability of Exemption 5, and stands for the proposition that a blanket exemption can not be claimed when part of the requested information has already been released. And, the defendant has complied with the requirements of Army Times. It has provided affidavits and a Vaughn index detailing why particular documents were withheld, and has made segregability determinations. See Def.'s Opp'n, Ex. 2; Ex. 3; Ex. 4. It was the lack of such information that was fatal to the agency's non-production in Army Times.*fn6 Moreover, there is even a more fundamental problem with the plaintiff's reliance on Army Times; it is simply not factually analogous. There, the issue was whether the withholding of portions of survey information was proper when some of that information had already been voluntarily released by the agency. For Army Times to be analogous, the Court would have to be presented with facts that show, for example, that some information regarding Lloyd Cutler's (one of the non-agency attorneys) views had been released by the defendant, while other views expressed in the same or another document by Mr. Cutler were not released. Such is not the case here, as the Court is presented with evidence that documents containing the views from one set of attorneys (those who provided their views in confidence) were withheld, while documents containing the views of a completely separate set of attorneys (those who did not provide their views in confidence) were released. This difference is critical, as the documents themselves are distinguishable. Nonetheless, even if this Court could conclude that the defendant was required to comply with Army Times, but failed to do so, such a finding would not demonstrate bad faith or incompetence.
The Court therefore rejects the plaintiff's contention that the defendant's response to the plaintiff's FOIA request ...