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International Counsel Bureau v. United States Dep't of Defense

July 12, 2010

INTERNATIONAL COUNSEL BUREAU AND PILLSBURY, WINTHROP, SHAW, PITTMAN, LLP, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF DEFENSE, DEFENDANT.



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

MEMORANDUM OPINION

International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP (collectively "ICB") bring this action against the United States Department of Defense pursuant to the Freedom of Information Act, 5 U.S.C. § 552, seeking records pertaining to four individuals detained at Guantanamo Bay Naval Base. The Court previously granted in part and denied in part the parties' cross-motions for summary judgment, and ordered the Department to conduct an additional search for responsive records. See Int'l Counsel Bureau v. Dep't of Def., 657 F. Supp. 2d 33 (D.D.C. 2009). The Department has now done so, and the parties have filed renewed motions for summary judgment as to the adequacy of the Department's new search, and as to the propriety of the Department's decision to withhold records under FOIA exemptions 1, 2, 3, and 6. For the reasons detailed below, the Court will grant in part and deny in part both motions.

BACKGROUND

In March 2008, ICB 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 ("detainees"). See Am. Compl. ¶¶ 1-2, 4. ICB requested, among other things,

[a]ny 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 [of the four detainees].

Compl., Ex. A at 1-2.

The Defense Department searched its records and located fifty-nine photographs, forty-five videos and one audiotape responsive to plaintiffs' request. See Int'l Counsel Bureau, 657 F. Supp. 2d at 36. The Department withheld these records in their entirety, relying on exemptions 1, 2, 3, and 6 to FOIA's general rule of disclosure. See id. The Department also determined that it would be impractical to segregate any non-exempt information from the records. See id. at 36-37. The Department moved for summary judgment, and ICB moved for partial summary judgment.*fn1

The Court granted in part and denied in part both parties' motions. The Court first concluded that the Department's search for responsive materials was inadequate. For example, the Department "did not search records maintained by Defense Department components other than those within Joint Task Force-Guantanamo." Id. at 39. Nor, apparently, had it searched "records of the... Detainees other than those documenting housing, care, feeding or security." Id. Accordingly, the Court ordered the Department to conduct an additional search. Id. at 40-41.

The Court also concluded that it could not evaluate the propriety of the Department's withholdings on the record before it. The Department's Vaughn index, the Court found, was "inadequate," as it failed to "subdivide the document[s] under consideration into manageable parts cross-referenced to the relevant portion of the government's justification." Id. at 42 (internal quotation marks omitted). And the Department's declarations did not cure these deficiencies, as they did "not explain with the necessary detail how a particular exemption supports the Department's decision to withhold a responsive document." Id. Thus, the Court concluded that it could not "fairly assess the propriety of the exemption claims because there is a dearth of reasonably specific detail about how the exemptions apply to the documents as a whole." Id. (internal quotation marks omitted). Instead, the Court instructed the Department that if it "wishes to maintain its exemption claims, it must supplement its Vaughn submission." Id.

The Department has now conducted a new search of its records. It has also offered several declarations -- some new, and some submitted with its previous motion for summary judgment -- as well as a new Vaughn index. In the latter, the Department identifies responsive records consisting of forty-seven photographs, forty-five videos, and five audiotapes.*fn2 See Def.'s Renewed Mot. for Summ. J. ("Def.'s Mot.") [Docket Entry 36], at 2; Def.'s Reply in Supp. of Renewed Mot. ("Def.'s Reply") [Docket Entry 42], Ex. 4 (Corrected Second Vaughn Index ("Vaughn Index")). Both parties have filed renewed motions for summary judgment addressing whether the Department's new search was adequate, and whether the Department is justified in withholding the records.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Thus, the non-moving party cannot rely on mere speculation or compilation of inferences to defeat a motion for summary judgment. See Hutchinson v. Cent. Intelligence Agency, 393 F.3d 226, 229 (D.C. Cir. 2005). Nor can the non-moving party rely on hearsay statements or conclusory statements with no evidentiary basis to establish a genuine issue of material fact. See Assoc. of Flight Attendants v. Dep't of Transp., 564 F.3d 462, 465 (D.C. Cir. 2009). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Moreover, a moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. See Celotex, 477 U.S. at 322; see also Anderson, 477 U.S. at 252 (summary judgment appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]").

FOIA requires federal agencies to release all records responsive to a proper request except those protected from disclosure by any 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 also 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. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted); accord Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). 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); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).

DISCUSSION

I. Adequacy of the Department's Search

To establish that its search was adequate, "the defending agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents." Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation marks omitted). The agency must 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), and must describe the structure of the file systems searched, see Church of Scientology v. Internal Revenue Serv., 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 (internal quotation marks omitted). But "such ...


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