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Physicians for Human Rights v. U.S. Dep't of Defense

December 30, 2009

PHYSICIANS FOR HUMAN RIGHTS, PLAINTIFF,
v.
U.S. DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard D. Bennett United States District Judge

MEMORANDUM OPINION

Plaintiff Physicians for Human Rights, a non-profit human rights group, filed the present action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522 et seq., seeking to compel Defendants, the Department of Defense ("DOD") and its components, the Defense Intelligence Agency ("DIA"), United States Special Operations Command ("USSOCOM"), and United States Central Command ("CENTCOM"), to reveal documentary information relating to a mass gravesite at Dasht-e-Leili, Afghanistan, where Taliban fighters are alleged to be buried.*fn1

Currently pending are the parties' cross-motions for summary judgment. The parties' submissions have been reviewed and a hearing was conducted on November 4, 2009. For the reasons explicated below, this Court issues the following memorandum and order.

BACKGROUND

According to media reports, in late 2001, several thousand Taliban fighters surrendered to the Northern Alliance after a battle in Konduz, Afghanistan. See Pl.'s Exs. 3-6. Northern Alliance soldiers under the command of General Abdul Rashid Dostum then crammed the surrendered Taliban fighters into sealed cargo containers and transported them 200 miles to a Northern Alliance prison at Sheberghan, a city in northern Afghanistan. Id. Approximately one thousand of the Taliban prisoners are alleged to have died of asphyxiation during the journey, and their bodies were allegedly buried in a mass grave in nearby Dasht-e-Leili in December of 2001. Id.

Plaintiff Physicians for Human Rights ("PHR") is a non-profit organization of health care professionals devoted to the investigation of alleged human rights violations. Compl. ¶ 3. In January and February of 2002, PHR conducted on-the-ground forensic investigations of the gravesite at Dasht-e-Leili and subsequently issued a report summarizing their findings. Pl.'s Ex. 1. Throughout 2002, news sources reported on the underlying events and PHR's investigations into the mass gravesite. Pl.'s Exs. 3-6. PHR notes that while there is no indication that the U.S. military was involved in the deaths, U.S. military personnel were reportedly in the region at the time and investigated the circumstances surrounding the gravesite. Compl. ¶¶ 6, 9-12. PHR cites a Newsweek magazine article from 2002, which quotes Department of Defense spokesman Lt. Col. Dave Lapan as saying that United States Central Command ("CENTCOM") had "looked into [the alleged killings] and found no evidence of participation or knowledge or presence" by American forces. Pl.'s Ex. 3, at 6. The article also notes that the Pentagon had asked the commander of the Fifth Special Forces Group, Col. John Mulholland, to look into the container deaths. Col. Mulholland reportedly confirmed that large numbers of Taliban prisoners had died on the journey to Sheberghan, but that Special Forces had determined that their deaths had resulted from wounds and disease. Id. at 7.

On June 21, 2006, PHR submitted a FOIA request to the United States Department of State ("State Department"), the Department of Defense ("DOD"), the Department of the Air Force, the Department of the Army, CENTCOM, and the Central Intelligence Agency ("CIA"), which included requests for nine specific categories of records. Pl.'s Ex. 2. PHR's petition seeks documents relating to, inter alia, the deaths of the Taliban prisoners, the mass graves, and the investigations conducted by the U.S. military into the underlying events. Id. On April 26, 2007, after the FOIA deadline passed without receiving any documents, PHR submitted an administrative appeal to the DIA, USSOCOM, and CENTCOM,*fn2 but no response was given to the appeal. Pl.'s Ex. 8. On August 6, 2007, DOD released to PHR six documents it deemed responsive. Pl.'s Ex. 9.

PHR filed a complaint in the U.S. District Court for the District of Columbia on February 19, 2008, alleging that the DOD and three of its components, DIA, USSOCOM, and CENTCOM, were in violation of their obligations under FOIA. Defendants answered the Complaint on April 28, 2008, and PHR provided Defendants with additional time to complete their searches. The DOD, the State Department and the CIA have since provided approximately 60 documents to PHR, some of which were redacted, and all of which originated with the DOD. Pl.'s Mot. Summ. J. at 6.

On October 3, 2008, Defendants filed the pending Motion for Summary Judgment (Paper No. 15) with several supporting affidavits, and on November 17, 2008, PHR filed its Cross Motion for Summary Judgment (Paper No. 16). After obtaining a time extension, Defendants filed its Reply brief along with several supplemental affidavits that aim to clarify and correct any alleged inadequacies in the description of its actions taken in response to the FOIA request. (Paper No. 20.) On June 19, 2009, the present case was reassigned to the undersigned United States District Judge. (Paper No. 25.) This Court conducted a hearing on November 4, 2009.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. A court is obligated to consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986).

In the context of an action filed under the Freedom of Information Act, a district court reviewing a motion for summary judgment conducts a de novo review of the record, and the responding federal agency bears the burden of proving that it has complied with its obligations under the Act. 5 U.S.C. § 552(a)(4)(B). To prevail on summary judgment, an agency must demonstrate "that it has conducted a search reasonably calculated to uncover all relevant information, which either has been released to the requester or is exempt from disclosure." Thomas v. HHS, Food & Drug Admin., 642 F. Supp. 2d 5, 8 (D.D.C. 2009) (internal citations omitted). On the other hand, in opposing a motion for summary judgment or cross-moving for summary judgment, a FOIA plaintiff cannot simply rest upon conclusory statements, but must instead "set forth 'affirmative evidence' showing a genuine issue for trial." Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (quoting Laningham v. U.S. Navy, 813 F.2d 1236, 1241, 259 U.S. App. D.C. 115 (D.C. Cir. 1987)).

To meet its burden at summary judgment, an agency may rely upon declarations and Vaughn indexes*fn3 to describe, in reasonable detail, the nature of its search and the withheld material, and to explain why such material falls within the claimed FOIA exemptions. See Kidd v. DOJ, 362 F. Supp. 2d 291, 294 (D.D.C. 2005). Through the submission of appropriate affidavits, an agency must show "beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. DOJ, 705 F.2d 1344, 1351, 227 U.S. App. D.C. 253 (D.C. Cir. 1983). In addition, an agency "bears [the] burden of demonstrating that . . . all information that falls within the class requested either has been produced, is unidentifiable, or is exempt from disclosure." Cole v. DOJ, Civ. Act. No. 05-674, 2006 U.S. Dist. LEXIS 69418, 2006 WL 2792681, at *1 (D.D.C. Sept. 27, 2006) (citation omitted).

ANALYSIS

In resolving the pending cross-motions for summary judgment this Court must address (1) whether Defendants conducted reasonably adequate searches for responsive documents under FOIA; and (2) whether Defendants properly withheld information under the claimed FOIA exemptions.

I. Adequacy of Defendants' Searches for Responsive Documents

To comply with its search responsibilities under FOIA, a government agency must "show beyond material doubt 'that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" People for the American Way Found. v. National Park Service, 503 F. Supp. 2d 284, 292 (D.D.C. 2007) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68, 287 U.S. App. D.C. 126 (D.C. Cir. 1990)). "The adequacy of an agency's search is measured by a standard of reasonableness, and is dependent upon the circumstances of the case." Weisberg, 705 F.2d at 1351 (internal citations and quotations omitted). An agency will not be granted summary judgment "if a review of the record raises substantial doubt, particularly in view of 'well defined requests and positive indications of overlooked materials.'" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326, 336 U.S. App. D.C. 386 (D.C. Cir. 1999) (quoting Founding Church of Scientology v. Nat'l Sec. Agency, 610 F.2d 824, 837, 197 U.S. App. D.C. 305 (D.C. Cir. 1979)). However, there is no requirement under FOIA that an agency's search be exhaustive, for "the issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry v. Block, 684 F.2d 121, 128, 221 U.S. App. D.C. 347 (D.C. Cir. 1982) (per curiam) (emphasis in original). See Meeropol v. Meese, 790 F.2d 942, 952-53, 252 U.S. App. D.C. 381 (D.C. Cir. 1986) ("[A] search is not unreasonable simply because it fails to produce all relevant material; no [large] search . . . will be free from error.").

PHR claims that Defendants' declarations are insufficiently detailed and therefore insufficient to sustain their burden of proof with respect to the adequacy of their searches. In addition, they contend that Defendants' searches were unduly restrictive because they: (1) failed to contact certain individuals who are alleged to have made statements regarding government investigations into the underlying events; (2) did not conduct a search for responsive documents in Afghanistan; and (3) used flawed search terms and conducted a search that was too limited in its temporal scope. PHR submits that because of such incompliance, the Defendants should be compelled to conduct new searches and to submit new affidavits in support thereof. Pl.'s Reply at 15.

A. Sufficiency of Defendants' Declarations

To sustain its burden on summary judgment, an agency may rely upon affidavits to demonstrate the adequacy of its search. An agency's submissions will be relied upon if they are found to be "relatively detailed, nonconclusory, and submitted in good faith." Greenberg v. U.S. Dept. of Treasury, 10 F. Supp. 2d 3, 12-13 (D.D.C. 1998) (citing Steinberg v. DOJ, 23 F.3d 548, 551, 306 U.S. App. D.C. 240 (D.C. Cir. 1994)). Courts generally expect affidavits to describe, at minimum, the search methods employed and the files targeted. See Ferranti v. BATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) ("[a]ffidavits that include search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient"). Agency affidavits that bear sufficient detail are presumed to be in good faith, and are to be taken at face value and relied upon without further investigation during a court's de novo review. This presumption can only be rebutted with clear evidence of bad faith, and not by "purely speculative claims about the existence and discoverability of other documents." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S. App. D.C. 324 (D.C. Cir. 1991) (internal quotations omitted).

Accompanying their Motion for Summary Judgment, Defendants submitted eight declarations: seven from the DOD and one from the State Department. Of these eight, PHR specifically contests the adequacy of the declarations provided by: (1) the Office of the Deputy Assistant Secretary of Defense for Central Asia (Scott Schless Decl. (Defs.' Ex. C)); (2) USSOCOM, and its service component, U.S. Army Special Operations Command ("USASOC") (Steven A. Hummer Decl. (Defs.' Ex. G)); and (3) the DIA and its two major component directorates, the Directorate for Analysis ("DI") and the Directorate for Human Intelligence ("DH") (Alesia Y. Williams Decl. (Defs.' Ex. E)). Accompanying their Reply brief, Defendants submitted three supplemental declarations that addressed alleged deficiencies in the original declarations. See Supplemental Declaration of Alesia Y. Williams (Defs.' Ex. I); Supplemental Declaration of Jacqueline J. Scott (Defs.' Ex. J); Supplemental Declaration of Steven A. Hummer (Defs.' Ex. K).

i. Declaration Supporting the Search Conducted by the Office of the Deputy Assistant Secretary of Defense for Central Asia

The declaration submitted by Scott Schless, the Principal Deputy to the Deputy Assistant Secretary of Defense of the Office of Central Asia, is sufficiently detailed. Schless Decl. ¶ 1 (Defs.' Ex. C). It provides that in August of 2007, action officers in the Afghanistan directorate searched hard copy files available in the Central Asia Office, and the FOIA Program Manager from the Office of the Deputy Assistant Secretary of Defense for Asia Pacific Security Affairs ("APSA") searched the electronic files of the Office of Central Asia. Id. at ¶ 3. Schless cites the search terms used in the electronic review and describes the two documents that were produced by the electronic search. Id. Because the Schless Declaration is sufficiently detailed, it was not incumbent upon the Defendants to provide a supplemental declaration in support of the search conducted under the supervision of the Office of the Deputy Assistant Secretary of Defense for Central Asia.

ii. Declarations Supporting the Search Conducted by USSOCOM and USASOC

PHR contests the declarations submitted in support of the searches conducted by USSOCOM, and its service component, U.S. Army Special Operations Command ("USASOC"), on the basis that they are impermissibly vague and confusing and "do[] not describe with specificity how the search was conducted, who conducted it, or the process used to identify responsive documents." Pl.'s Reply at 15.

USSOCOM provided two declarations from Brigadier General Steven A. Hummer that thoroughly describe the procedures, locations, and people involved in the searches. See Hummer Decl. (Defs.' Ex. G); Hummer Suppl. Decl. (Defs.' Ex. K). They explain how USASOC conducted hard-copy and electronic searches in its constituent directorates that were deemed likely to contain responsive documents. Moreover, USASOC even broadened its search by referring the request up the chain of command to USSOCOM, which in part, then tasked its four service components to conduct internal searches of their own. Hummer Decl. ¶ 4; Hummer Suppl. Decl. ¶ 2. USSOCOM's supplemental declaration also provides the search terms that were employed to locate responsive documents. Hummer Suppl. Decl. at ¶ 7. In sum, affidavits submitted by USSOCOM and USASOC bear the requisite indicia of thoroughness. See Oglesby, 920 F.2d at 68 (noting that affidavits must be "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").

iii. Declarations Supporting the Search Conducted by DIA and its Two Major Directorates, the Directorate for Analysis ("DI") and the Directorate for Human Intelligence ("DH")

Finally, PHR challenges the declarations submitted by the DIA, which describe the searches conducted by two of its directorates, the Directorate for Analysis ("DI") and the Directorate for Human Intelligence ("DH").

Alesia Y. Williams, the Chief of the FOIA Services Section within the DIA, provided two declarations that explain in sufficient detail the nature and scope of the searches conducted within the DIA. See Williams Decl. (Defs.' Ex. E); Williams Suppl. Decl. (Defs.' Ex. I). The declarations outline the organizational structure and functions of the DIA and its constituent directorates. They explain in detail the processing of PHR's FOIA request and the searches conducted within the DI, the DH, and the Research and Reference Library ("Library")-the directorates deemed reasonably likely to have responsive ...


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