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Sharif Mobley v. Department of Justice

June 8, 2012

SHARIF MOBLEY,
PLAINTIFF,
v.
DEPARTMENT OF JUSTICE,
DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Sharif Mobley is a United States citizen currently imprisoned in Yemen. He believes that the United States had a role in his seizure and detention, and submitted a request pursuant to the Freedom of Information Act ("FOIA") and the Privacy Act ("PA") to the defendant Department of Justice for records relating to him or his incarceration. The defendant identified fourteen records and associated electronic drafts of certain of those records responsive to the plaintiff's FOIA/PA request, but withheld thirteen of these documents (and the drafts) citing statutory exemptions that allow the defendant to withhold information relating to national security and privilege. The fourteenth document, which was discovered after the onset of litigation, was determined to be partially non-classified and, after partial redaction, was released to the plaintiff. The defendant now moves for summary judgment, arguing that its response to the plaintiff's FOIA/PA request was fully consistent with its obligations and that the documents were properly withheld under applicable FOIA exemptions. The Court agrees. Accordingly, the defendant's motion for summary judgment is GRANTED.

I. BACKGROUND

Plaintiff Sharif Mobley, a United States citizen and resident of New Jersey, is currently imprisoned in Yemen. Compl. ¶ 3. Although the details surrounding the plaintiff's initial arrest are unclear, the plaintiff indicates that he is "facing a capital trial for allegedly murdering a prison guard in an attempted escape," and his "defense to this charge relies on his ability to produce evidence of the United States government's role in his arrest and incarceration." Pl.'s Notice, ECF No. 14, at 1; see also id., Ex. 1, Decl. of Cori Crider, ¶¶ 8, 10 (noting efforts by plaintiff's defense counsel to obtain information "regarding the US role in Mr. Mobley's unlawful seizure and shooting on January 26, 2010").

In an effort to obtain information that could help lead to his exoneration, on July 22, 2010, the plaintiff submitted to the defendant's Office of Legal Counsel ("OLC") a FOIA and Privacy Act request for records pertaining to his seizure and detention in Yemen and the role of the U.S. government in his and others' situations. Compl. ¶ 6. Specifically, the plaintiff seeks records "relating to . . . Mr. Mobley's abduction [in] Yemen . . . , U.S. agencies' involvement in that disappearance, U.S. agencies' interrogation of Mr. Mobley . . . in Yemen, and the wider pattern of U.S.-sponsored sweeps and proxy detention in Yemen from January 2010." Decl. of Paul P. Colborn, ECF No. 23, ¶ 7 ("Colborn Decl."); see also id., Ex. 1, Pl.'s FOIA Request dated July 22, 2010; Def.'s Statement of Material Facts, ECF No. 26, ¶ 1. The plaintiff's FOIA request further sought "all records in any way relating to, pertaining to, or mentioning himself by any and all persons or entities, including all persons acting on behalf of the United States." Colborn Decl., Ex. 1, Pl.'s FOIA Request dated July 22, 2010, at 2. The plaintiff then set forth sixteen categories of "further requests" that were "made to elucidate the sorts of records in the likely possession of the target agencies." Id. at 2-5. The vast majority of those sixteen categories pertained directly to plaintiff or his family members, but two of the categories were broader and sought records containing more general information about U.S. government policy. See id. at 4 (Request Nos. 6, 8).

On September 13, 2010, the defendant acknowledged receipt of the plaintiff's request. Compl. ¶ 7. Seven months later, on April 8, 2011, the defendant informed the plaintiff by letter that it had identified thirteen records responsive to his request, but was withholding all thirteen documents in their entirety under FOIA exemption 1, 5 U.S.C. § 552(b)(1), which exempts from disclosure documents pertaining to national defense or foreign policy, and eleven documents in their entirety under FOIA exemption 5, citing the deliberative process and attorney-client privileges. Colborn Decl., ¶ 8. The defendant did not invoke any Privacy Act exemptions to justify its withholding determinations, nor did it provide any identifying information about the withheld records. Compl. ¶ 9.

On May 23, 2011, plaintiff's counsel contacted the defendant to confirm that the plaintiff's request was to be processed under both the FOIA and the Privacy Act and to request a list of the withheld records. Id. ¶ 10. The defendant responded that no responsive records in Privacy Act systems of records were located and, further, no description of records that were withheld would be provided on grounds that "it would not be appropriate for [the defendant] to provide such a description because the records are classified." Id. ¶ 11.

On May 31, 2011, the plaintiff filed an administrative appeal to the defendant's Office of Information Policy ("OIP") contesting the defendant's refusal to provide a list of withheld records.*fn1 Id. ¶ 14. Before the defendant issued a decision on the plaintiff's administrative appeal, the plaintiff filed a complaint in this Court, on August 11, 2011, against the defendant pursuant to the FOIA, the Privacy Act, the Federal Declaratory Judgment Act, and the All Writs Act. ECF No. 1.

On October 10, 2011, the defendant moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6), arguing that the plaintiff had failed to allege that the defendant improperly withheld documents responsive to the plaintiff's FOIA/PA request. Def.'s Mot. Dismiss, ECF No. 10. The Court denied this motion on February 27, 2012, holding that the plaintiff's complaint had set forth cognizable claims under FOIA. See Mobley v. Dep't of Justice, No. 11-cv-1437, 2012 WL 604153 (D.D.C. Feb. 27, 2012). The Court then directed the parties to confer on a joint proposed briefing schedule for the defendant's anticipated motion for summary judgment. Order dated Feb. 27, 2012, ECF No. 16.

Following denial of the defendant's motion to dismiss, the defendant uncovered additional documents responsive of the plaintiff's request. Colborn Decl., ¶ 10. The defendant states that "except for one document, [the] newly discovered documents are classified electronic drafts of documents previously identified as responsive." Id. The one new document noted as an exception to the classified responsive documents is an unclassified e-mail exchange between the Department of Justice's Civil Division and OLC. While the email is unclassified, it contained material alleged by the defendant to be protected by the deliberative process privilege and the attorney work product privilege. Consequently, the defendant redacted the privileged information contained in the email exchange and released the redacted document to the plaintiff on March 30, 2012. Id.

On April 2, 2012, the defendant filed a Vaughn index*fn2 regarding the documents that were responsive to the plaintiff's FOIA request but were being withheld pursuant to FOIA exemptions 1 and 5. ECF No. 25. The index provided no details other than the following general descriptions: "[c]lassified document regarding national security matter" (documents 1-3); "[c]onfidential, classified client communication" (documents 4-7); "[c]lassified internal OLC document regarding national security matter with handwritten attorney markings" (documents 8, 11); "[c]opy of Document 8 with handwritten attorney markings" (documents 9, 10); and "[c]opy of Document 11 with handwritten attorney markings (documents 12, 13). Id. The defendant then moved for summary judgment on April 11, 2012, and submitted a classified ex parte, in camera submission in support of its motion. See Government's Notice of Ex Parte, In Camera Filing, ECF No. 27. The Court reviewed the ex parte, in camera submission on June 4, 2012. Following consideration of the information contained in the defendant's ex parte submission, the defendant's motion for summary judgment, as well as the memoranda of law submitted in support and opposition, the Court concludes that the defendant's decision to withhold thirteen responsive documents was proper pursuant to FOIA exemption 1.*fn3 Accordingly, the defendant's motion for summary judgment is GRANTED.

II. STANDARD OF REVIEW

Congress enacted FOIA to promote transparency across the government. See 5 U.S.C. §552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., 775 F. Supp. 2d 174, 179 (D.D.C. 2011) (citing Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)). The Supreme Court has explained that FOIA is "a means for citizens to know 'what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (internal quotations and citations omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

The strong interest in transparency must be tempered, however, by the "legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. Dep't of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992)). Accordingly, Congress has made certain categories of records exempt from disclosure. 5 U.S.C. § 552(b)(1)-(9) and § 552(c)(1)-(3). In light of FOIA's "goal of broad disclosure," these exemptions are "explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy, 131 S.Ct. 1259, 1262, 1265 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Office of Mgmt. and Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). The court may only "enjoin [a federal] agency from withholding agency ...


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