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Watch v. Dep't of the Army

December 12, 2006


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 30, 31, 33




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"). Claiming that documents sought are properly withheld under Exemption 5 of FOIA, the defendant moved for summary judgment. The court granted in part and denied in part the defendant's motion, deferred ruling as to certain documents that the defendant had failed to produce for in camera review, and ordered the defendant to produce these documents to the court for review. Mem. Op. (May 31, 2006). Having conducted this review, the court now rules that the defendant properly classified documents CE4431, CE5352-CE5385, CE5554, and CE6755-CE6756 under Exemption 5 and grants the defendant's motion for summary judgment as to these documents.

Meanwhile, intervenor Kellogg Brown & Root ("KBR"), moves for reconsideration of this court's May 31, 2006 order requiring the defendant to turn over certain documents containing communications between KBR and the defendant. KBR claims that the defendant failed to provide these documents to KBR to review. Thus, KBR argues, it did not have an opportunity to assert exemptions prior to the court's ruling. Upon examining these documents, KBR claims that they include confidential business information protected from disclosure under Exemption 4 of FOIA. KBR requests that the court reconsider its previous order pursuant to Federal Rule of Civil Procedure 54(b). Because the interests of justice weigh in favor of reconsideration, the court grants the intervenor's motion. The court has reexamined these documents and now rules that they are properly withheld under Exemption 4. Accordingly, the court issues a revised order authorizing the defendant to withhold those documents under FOIA Exemption 4.


After the United States-led invasion of Iraq in March 2003, the Army awarded a no-bid oil well firefighting contract to KBR, a subsidiary of Halliburton Company. 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 implicate a conflict of interest and sent two FOIA requests to the defendant to corroborate its theory. Id. at 1-2 (citing Michael Shanyerson, Oh! What a Lucrative War, VANITY FAIR, APRIL 2005, at 138).*fn2 After receiving no response by February of the following year, the plaintiff filed the instant lawsuit. Compl. ¶ 5. On March 19, April 19, and December 13, 2004, the defendant provided the plaintiff with documents in response to its request, withholding 1,312 pages in full from production and withholding in part 4,819 pages of documents. Def.'s Mot for Summ. J. ("Def.'s Mot."); Pl.'s Mot. at 4.

Pursuant to a joint stipulation reached by the parties in April 2005, the plaintiff limited its claims to documents withheld under Exemptions 5 and 6. Accordingly, 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 documents withheld pursuant to Exemption 5 for in camera review. 11. On May 31, 2006, the court denied the defendant's motion for summary judgment as to several documents and ordered the defendant to produce these documents to the plaintiff. Mem. Op. (May 31, 2006) at 9-14. The court also ordered the defendant to produce documents that the defendant previously had not provided to the court for in camera review and granted the defendant's motion for summary judgment with regard to documents falling within Exemption 5.*fn3 Id. at 14-15.

On June 6, 2006, the defendant produced most of the documents previously withheld for in camera review. The defendant continued to withhold certain documents claiming that two of them were misnumbered and did not exist and that it could not find an unredacted version of a third document. Def.'s Resp. to the Ct.'s May 31, 2006 Order ("Def.'s Resp. to Ct.'s Order") at 1-2.

On June 9, 2006, intervenor KBR filed a motion for the court to reconsider its May 31, 2006 order with regard to documents CE567-CE576 and CE6610-CE6619. Intervenor's Mot. for Recons. of May 31, 2006 Order ("Intervenor's Mot.") at 1. Specifically, KBR claims that these documents, which are communications between KBR employees and the defendant, contain confidential commercial and financial information that is protected from production under Exemption 4. Id. KBR claims that, "for reasons that are unclear," the defendant did not previously provide these documents for KBR "to ascertain whether they contained confidential, proprietary, or trade secret information of the kind that required application of the Exemption 4." Id. at 3. As a result, KBR argues that it was unable to raise any exceptions before the court's in camera review. Id. Instead, the Army objected to these documents only under Exemption 5 and provided these documents for KBR to review only after the court issued its May 31, 2006 ruling ordering disclosure. Id. With its motion, KBR filed a declaration by Christopher Heinrich, Vice President of the Legal Department for the Government Infrastructure Division of KBR. Intervenor's Mot., Ex. A ("Heinrich Decl."). In his declaration, Heinrich attests to the confidential nature of these documents and the reason KBR provided them to the defendant. Heinrich Decl. ¶ 3-5.

On June 12, 2006, the defendant notified the court that the defendant had decided to disobey the court's May 31, 2006 order and not produce the documents at issue in KBR's motion to reconsider.*fn4 Def.'s Notice of Partial Produc. of Docs. at 1. On June 19, 2006, the plaintiff filed an opposition to KBR's motion for reconsideration. Pl.'s Opp'n to Intervenor KBR's Mot. for Recons. ("Pl.'s Opp'n") at 1. The defendant responded to the plaintiff's opposition on May 28, 2006. Def.'s Resp. to Pl.'s Opp'n at 1. KBR filed a reply to the plaintiff's opposition on June 29, 2006. Intervenor's Reply Pl.'s Opp'n ("Intervenor's Reply") at 1. The court now addresses both the defendant's motion for summary judgment with regard to the documents that it initially failed to produce for in camera review and the intervenor's motion for the court to reconsider its May 31, 2006 order.


A. The Court Grants the Defendant's Motion for Summary Judgment as to the Remaining Documents Withheld Under Exemption 5

1. Legal Standard for Summary Judgment in FOIA Proceedings

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. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). FOIA confers jurisdiction on the federal district courts to order the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial review of an agency's response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency may meet this burden by providing the requester with ...

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