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International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP v. United States Dep't of Defense

September 25, 2009


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiffs International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP, bring this action against the United States Department of Defense pursuant to the Freedom of Information Act, 5 U.S.C. 552 et seq., seeking records pertaining to four individuals detained at Guantanamo Bay Naval Base, Cuba. Plaintiffs pursue two FOIA requests. The first seeks medical records on behalf of Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari. The second seeks video, photographic and other recorded documents depicting Fawzi Khaled Abdullah Fahad Al Odah, Khalid Abdullah Misha'al Al Mutairi, Al Rabiah or Al Kandari. Now before the Court are the defendant's motion for summary judgment and the plaintiffs' motion for partial summary judgment and for Rule 56(f) discovery. At issue is whether the scope of the government's search for records was adequate and whether the government properly withheld the records it did find.*fn1


In March 2008, plaintiffs submitted a FOIA request to the Defense Department seeking records of four Kuwaiti citizens detained at Guantanamo: Fawzi Khaled Abdullah Fahad Al Odah, Khalid Abdullah Misha'al Al-Mutairi, Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari ("Kuwaiti Detainees"). See Am. Compl. ¶¶ 1-2, 4. Plaintiffs requested any recording, including any image, photograph, picture, film, drawing, painting, video, videotape, tape recording, audiotape, CD, or DVD, depicting or reflecting the image, likeness, voice, audible action, or any other aspect or activity of any [Kuwaiti Detainee].

Compl., Ex. A at 1.

Following a search of its records, the Defense Department located fifty-nine photographs, forty-five videos and one audiotape responsive to plaintiffs' request. See Def.'s Mem. of P. & A. in Supp. of its Mot. for Summ. J. ("Def.'s Mem.") at 2; Def.'s Mem., Ex. 1, Decl. of Brig. General Rafael O'Ferrall re: Imagery ("O'Ferrall Decl.") ¶ 7-9. The Department withheld these records in their entirety, citing four exemptions to FOIA's general rule of disclosure. See O'Ferrall Decl. ¶ 11. The Department also determined that it would be impractical to segregate any non-exempt information from the exempt information. See id. ¶ 34.

The Defense Department has moved for summary judgment with respect to the adequacy of its search for records, the propriety of the claimed exemptions and the efficacy of its segregability determination. In support, it has submitted a Vaughn index, the O'Ferrall Declaration and the Declaration of Rear Admiral David M. Thomas, Jr.*fn2 Plaintiffs challenge the Department's motion for summary judgment, contending that the Department's submissions are inadequate to satisfy its burden under FOIA. Plaintiffs instead conclude that the Court should grant summary judgment in their favor; in the alternative, they request discovery under Rule 56(f).


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that 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); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).


I. Adequacy of the Defense Department's Search for Responsive Records

To prevail on summary judgment when the adequacy of an agency's search is at issue, "the defending agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents." Morely v. Central Intelligence Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotations omitted). The agency is required to set forth the search terms used and the search conducted, see Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990), as well as to describe the structure of the file systems searched, see Church of Scientology v. Internal Revenue Service, 792 F.2d 146, 150-51 (D.C. Cir. 1986), aff'd, 484 U.S. 9 (1987). In adjudicating these issues, the court "may be warranted in relying upon agency affidavits." Morley, 508 F.3d at 1116. But reliance is only appropriate where the affidavits are "relatively detailed and non-conclusory, and . . . submitted in good faith." SafeCard Servs., Inc. v. Securities & Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation omitted).

Plaintiffs challenge the Defense Department's motion for summary judgment as to the scope of the Department's search, the search terms used, and the Department's description of its ...

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