The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; ORDERING THE DEFENDANT TO PRODUCE CERTAIN DOCUMENTS
The plaintiff, Judicial Watch, Inc., is a nonprofit group seeking documents from the Department of the Army, pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The defendant moves for summary judgment, claiming that the documents withheld are properly classified under Exemption 5 of FOIA. Because the plaintiff demonstrated inaccuracies in the defendant's FOIA assertions, the court previously deferred ruling on the defendant's motion for summary judgment and ordered the government to produce those documents to the court for in camera review. Mem. Op. (Nov. 17, 2005) at 11. Having conducted this review, the court rules that the defendant properly classified the majority of these documents. The court also rules, however, that certain documents fall outside Exemption 5 of FOIA. Accordingly, the court orders the defendant to produce these documents.*fn1 Additionally, the plaintiff failed to produce six documents as part of its in camera submission.*fn2 The court orders the plaintiff to produce these documents for in camera review within 15 days of this order and to show cause why it failed to produce these documents as part of its first in camera production.
After the United States led invasion of Iraq in March 2003, the Army awarded a no-bid oil well firefighting contract to Kellogg, Brown & Root ("KBR"), a Halliburton Co. subsidiary. Vice-President Richard Cheney previously served as Halliburton's Chief Executive Officer and Chairman of the Board. Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 1. The plaintiff theorizes that the Vice-President's past associations with Halliburton present more than a curious coincidence -- that they "raise concerns about the appearance of a conflict of interest or favoritism, particularly since the contract was awarded to KBR without a bidding process and because the contract was not announced to the public until after it had been approved." Id. at 1-2 (citing Michael Shanyerson, Oh! What a Lucrative War, VANITY FAIR, April 2005, at 138). In pursuing additional information from the government to corroborate its theory, the plaintiff sent two FOIA requests to the defendant. First, on April 6, 2003, the plaintiff sought information pertaining to the decision of the U.S. Army to grant an Iraqi oil well firefighting contract to [KBR] . . . [t]he decision to grant the contract to KBR without a bidding process . . . [t]he decision to request KBR to draft and/or "draw up" contingency plans for existing oil well fires in Iraq . . . [and t]he time limit(s) and dollar limit(s) of the contract.
Compl. ¶ 5. Second, on June 16, 2003, the plaintiff sought information pertaining to the decision of the U.S. Army to grant a contract to [KBR] to restart Iraq's oil production leading up to and after the 2003 Iraq war (January 1, 2003 through June 15th, 2003), including but not limited to: Contract costs, deadlines, compensation, spending limits, and bonus scales[, and] Monthly cost overruns, costs per month, itemized reports of all activities billed to the U.S. Government concerning KBR's (or any related subsidiary including the parent company of Halliburton) activities in Iraq between February 1st, 2003 to June 16th, 2003 . . . [and] all information or correspondence related to the replacement of KBR's original contract estimated to happen in or about August 2003.
Id. ¶ 14. Having received no response from the defendant by February of the following year, the plaintiff filed the instant lawsuit. See id. ¶ 5. On March 19, April 19,*fn3 and December 13, 2004, the defendant provided the plaintiff with documents in response to its request. Pl.'s Opp'n at 4; Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 4. The defendant withheld 1,312 pages of documents in full from production and withheld part of 4,819 pages of documents.*fn4 Pl.'s Mot. at 4.
Pursuant to a joint stipulation reached by the parties in April 2005, the plaintiff has limited its claims to documents withheld under Exemptions 5 and 6 of FOIA. As such, the defendant limited its motion for summary judgment to information withheld pursuant to these two exemptions.
On November 17, 2005, the court granted the defendant's motion for summary judgment as to information withheld pursuant to Exemption 6. Mem. Op. (Nov. 17, 2005) at 15. Because of inaccuracies in the defendant's FOIA assertions, the court further ordered the defendant to produce the documents withheld pursuant to Exemption 5 for in camera review. Id. at 11. The court now turns to the defendant's motion for summary judgment as to the documents withheld pursuant to Exemption 5.
A. Legal Standard for Summary Judgment in FOIA Proceeding
Summary judgment is appropriate when "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 a judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. ...