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International Counsel Bureau v. United States Dept. of Defense

United States District Court, District of Columbia

December 4, 2012

INTERNATIONAL COUNSEL BUREAU and Pillsbury, Winthrop, Shaw, Pittman, LLP, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.

Ronald A. Schechter, Arnold & Porter LLP, Washington, DC, for Plaintiffs.

Alan R. Burch, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

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 (" FOIA" ), seeking records pertaining to four individuals detained at Guantanamo Bay Naval Base. Several rounds of summary judgment motions have occurred in this case. The only issues remaining involve the Department's withholding of forty-five forced cell extraction (" FCE" ) videos, one video of a detainee receiving a haircut while forcibly restrained, and the adequacy of the Department's search for records. Currently before the Court are renewed motions and cross-motions for summary judgment on those remaining issues. [1] Based upon the

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Court's in camera inspection of three representative videos, the hearing held on July 12, 2012, the several memoranda filed by the parties and the entire record herein, and for the reasons discussed below, the Court concludes that summary judgment shall be granted in its entirety to the Department on all remaining issues.

BACKGROUND

The Court previously issued three opinions resolving the parties' prior cross-motions for summary judgment. See Int'l Counsel Bureau v. U.S. Dep't of Def., 657 F.Supp.2d 33 (D.D.C.2009); Int'l Counsel Bureau v. U.S. Dep't of Def., 723 F.Supp.2d 54 (D.D.C.2010); Int'l Counsel Bureau v. U.S. Dep't of Def., 864 F.Supp.2d 101 (D.D.C.2012). These opinions discuss the background of this case at great length. Hence, that history need not be repeated here. In the last round of summary judgment, the Court granted in part and denied in part both parties' motions on the propriety of withholding the FCE videos from disclosure, directed the Department to conduct an additional search for responsive documents under the name " Abu Khallaad" in U.S. Central Command (" USCENTCOM" ) files, and ordered the Department to produce three representative FCE videotapes for the Court's in camera review. See Int'l Counsel Bureau, 864 F.Supp.2d at 110.

Subsequently, the Department conducted another search for relevant videos at the request of the Department's Office of General Counsel (OGC) after some discrepancies were found between the list of FCE videos and the videos actually received by OGC. Decl. of Caryn L.M. Hargrave ¶ 6 (June 18, 2012), ECF No. 70-3. This search resulted in forty-five FCE videos of one detainee and one additional video of another detainee receiving a haircut.[2] Id. ¶ 6a. The Department also performed an additional search for responsive records under the name " Abu Khallaad." 3d Decl. of Jacqueline J. Scott ¶¶ 1-2 (June 8, 2012), ECF No. 70-2 (" 3d Scott Decl." ). The Court held a hearing on July 12, 2012, deemed the parties' various submissions and arguments as renewed motions and cross-motions for summary judgment, and granted leave to the parties to file supplemental materials.

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.

FOIA requires federal agencies to release all records responsive to a proper

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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, 100 S.Ct. 960, 63 L.Ed.2d 267 (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. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal citation and quotation marks omitted); accord Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 764 (D.C.Cir.2000). The district court may award summary judgment to an agency 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 ...


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