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Bigwood v. United States Department of Defense

United States District Court, D. Columbia

August 14, 2015

JEREMY BIGWOOD, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE and CENTRAL INTELLIGENCE AGENCY, Defendants

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          For JEREMY BIGWOOD, Plaintiff: Zachary J. Wolfe, LEAD ATTORNEY, GEORGE WASHINGTON UNIVERSITY, Washington, DC; Anjana Samant, PRO HAC VICE, Pamela Carol Spees, CENTER FOR CONSTITUTIONAL RIGHTS, New York, NY; Barbara C. Moses, SETON HALL UNIVERSITY SCHOOL OF LAW, Newark, NJ.

         For UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants: Kathryn Celia Davis, Nathan Michael Swinton, Thomas David Zimpleman, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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         REPORT AND RECOMMENDATION

         G. Michael Harvey, United States Magistrate Judge.

         On February 24, 2015, this case was referred to the undersigned for full case management. Currently ripe for resolution are defendants' motion for summary judgment and plaintiff's motion for leave to file a sur-reply to defendants' motion for summary judgment. Upon a thorough review of the parties' briefs and the entire record herein,[1] the undersigned recommends that defendants' motion for summary judgment be granted, and that plaintiff's motion for leave to file a sur-reply to defendants' motion for summary judgment be denied.

         I. BACKGROUND

         Plaintiff in this case is Jeremy Bigwood, a freelance investigative journalist. Pl.'s Suppl. Facts ¶ 1; Compl. ¶ 16. Defendants are two Executive Department agencies -- the Department of Defense's (" DOD" ) Southern Command (" Southcom" ) and the Central Intelligence Agency (" CIA" ). Id. ¶ ¶ 17, 19; 5 U.S.C. § 552(f)(1). Southcom is a joint command within the DOD comprised of, inter alia, members of the United States Army, Navy, Air Force, Marine Corps, and Coast Guard. Compl. ¶ 19. It is " responsible for providing contingency planning, operations, and security cooperation for Central and South America including Honduras." Id. This action arises out of plaintiff's requests to Southcom and the CIA, pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., in which plaintiff sought information about the June 28, 2009, coup d'é tat in Honduras. Pl.'s Facts ¶ 2; Compl. ¶ ¶ 1, 2. This Report and Recommendation only addresses plaintiff's FOIA requests to Southcom, as plaintiff no longer opposes defendants' motion for summary judgment concerning plaintiff's FOIA requests to the CIA. Pl.'s Facts ¶ ¶ 19-27; Pl.'s Opp. at 1.

         In plaintiff's first FOIA request to Southcom, submitted on July 1, 2009, plaintiff sought:

all records relating to the coup against Honduras' President Manuel Zelaya including,

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but not limited to: a. any observations or reports about the activities of the Honduran Armed Forces with respect to the coup--as well as the coup itself; b. any records of the passage of the kidnapped president through any military bases, such as Soto Cano--which has a significant U.S. presence; c. any reports about the coup d'é tat before it actually took place; and d. inter-agency communications to and from [Southcom], as U.S. officers in Honduras may have been informing other U.S. government entities about the coup.

Compl. ¶ 23 (internal quotation marks omitted). Plaintiff asked that his FOIA request receive expedited processing. Id. ¶ 24. On November 29, 2010, Southcom sent plaintiff an " interim response," confirming receipt of plaintiff's July 2009 FOIA request and acknowledging that Southcom had, on November 24, 2010, granted plaintiff's request for expedited processing. Pl.'s Suppl. Facts ¶ 2; Compl. ¶ 32. On February 7, 2011, plaintiff submitted a written administrative appeal to Southcom, requesting review of Southcom's failure to make a determination regarding his FOIA request. Pl.'s Suppl. Facts ¶ 3; Compl. ¶ ¶ 37, 38. On February 10, 2011, Southcom accepted plaintiff's letter of administrative appeal. Pl.'s Suppl. Facts ¶ 3; Compl. ¶ ¶ 37, 39. Southcom never responded to the administrative appeal. Compl. ¶ ¶ 37, 39.

         In his second FOIA request to Southcom, submitted on July 8, 2009, plaintiff " requested all records, from May 1, 1979, relating to Honduran Army General Romeo Vá squez Velá squez,[2] including, but not limited to, any biographical sketches of him." Pl.'s Facts ¶ 2; Compl. ¶ 43. Plaintiff again asked that his FOIA request receive expedited processing. Compl. ¶ 44. On December 16, 2010, Southcom sent plaintiff another " interim response," confirming receipt of plaintiff's second FOIA request and granting plaintiff a fee waiver, but not addressing plaintiff's request for expedited processing. Id. ¶ 49; Pl.'s Suppl. Facts ¶ 2. On February 7, 2011, plaintiff submitted a written administrative appeal to Southcom, seeking review of Southcom's failure to make a determination as to his second FOIA request. Pl.'s Suppl. Facts ¶ 3; Compl. ¶ ¶ 52, 53. On February 10, 2011, Southcom accepted plaintiff's letter of administrative appeal. Compl. ¶ ¶ 52, 54. Southcom never responded to plaintiff's administrative appeal. Id.

         On June 20, 2011, Southcom produced 66 documents consisting of 272 pages in response to plaintiff's requests. Pl.'s Suppl. Facts ¶ 5. On July 7, 2011, Southcom produced an additional five documents consisting of 26 pages. Defs.' Facts ¶ 5. Upon review of these initial productions, plaintiff asserted that DOD had failed to produce responsive documents and had over-redacted the documents it did produce. Pl.'s Opp. at 1. In response, while maintaining that it had conducted an adequate search for responsive records, Southcom agreed to conduct a second search to address plaintiff's concerns. Defs.' Facts ¶ 6. Following the second search for documents, Southcom produced 88 additional documents consisting of 784 pages on September 26, 2013. Pls.' Suppl. Facts ¶ 7; Bloom Decl. ¶ 12.

         On March 23, 2011, plaintiff filed the present action, challenging Southcom's response to his FOIA requests on two bases: he contends that Southcom's searches for responsive documents were inadequate,

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and that Southcom inappropriately invoked several FOIA exemptions to withhold responsive documents. Pl.'s Opp. at 11, 26. On January 28, 2014, defendants filed a motion for summary judgment on the grounds that they had conducted an adequate search and had turned over all records responsive to plaintiff's requests, except those properly withheld under the applicable FOIA exemptions. Defs.' Mot. at 6. On April 8, 2014, pursuant to Fed.R.Civ.P. 7(b) and Local Rule 7, plaintiff filed a motion for leave to file a surreply to respond to arguments raised in defendants' April 1, 2014, reply brief in support of their motion for summary judgment.

         On September 8, 2014, Judge Ketanji Brown Jackson ordered defendants to submit a supplemental Vaughn index, denied defendants' motion for summary judgment without prejudice, and denied plaintiff's motion for leave to file a sur-reply as moot. Order, Sept. 8, 2014. Pursuant to the Court's September 8, 2014, Order, defendants filed a supplemental Vaughn index on September 22, 2014. Subsequently, defendants' motion for summary judgment and plaintiff's motion for leave to file a sur-reply were deemed renewed and were referred to the undersigned for a Report and Recommendation on February 24, 2015. Both motions are now ripe for consideration.

         II. LEGAL STANDARDS

         In enacting FOIA in 1966, Congress provided a means " to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." ACLU v. United States DOJ, 655 F.3d 1, 5, 398 U.S.App.D.C. 1 (D.C. Cir. 2011) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). However, recognizing the need to balance this public interest with the " legitimate governmental and private interests [that] could be harmed by release of certain types of information," Congress enumerated nine FOIA exemptions that permit agencies to withhold information from disclosure. United Techs. Corp. v. United States DOD, 601 F.3d 557, 559, 390 U.S.App.D.C. 136 (D.C. Cir. 2010) (internal quotations omitted); see 5 U.S.C. § 552(b). " These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal citations and quotations omitted).

          In order to obtain information through FOIA, a requester must file a request for production with the appropriate agency. See generally 5 U.S.C. § 552(a). If a FOIA petitioner wishes to challenge the agency's response, the petitioner must first exhaust his or her administrative remedies. Only then can the petitioner file a civil action challenging the agency's response to his or her request. See id. 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677, 359 U.S.App.D.C. 380 (D.C. Cir. 2004).

          " FOIA cases typically and appropriately are decided on motion for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007)). Summary judgment is appropriate if the pleadings on file, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In the FOIA context, a district court reviewing a motion for summary judgment must conduct a de novo review of the record, and the responding federal agency bears the burden of proving that it has complied with its obligation under FOIA. 5 U.S.C. § 552(a)(4)(B); see also In Def. of Animals v. Nat'l Insts. of Health, 543 F.Supp.2d 83, 92 (D.D.C. 2008). Specifically, the court must " ascertain whether the agency has

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sustained its burden of demonstrating that the documents requested are not agency records or are exempt from disclosure under the FOIA." See 5 U.S.C. § 552(a)(4)(B); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57, 357 U.S.App.D.C. 217 (D.C. Cir. 2003) (internal quotations omitted). The court must analyze all underlying facts and inferences in the light most favorable to the FOIA requester. See Willis v. United States DOJ, 581 F.Supp.2d 57, 65 (D.D.C. 2008).

          In general, a FOIA requester may challenge the adequacy of the agency's search for responsive records, the adequacy of the agency's application of FOIA exemptions to his or her request, or both.[3] A court assesses the adequacy of the federal agency's search for responsive records by applying a reasonableness test. Campbell v. United States DOJ, 164 F.3d 20, 27, 334 U.S.App.D.C. 20 (D.C. Cir. 1998). The adequacy of a FOIA search is generally determined by the appropriateness of the methods used to carry out the search, and not by the actual search results. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315, 354 U.S.App.D.C. 230 (D.C. Cir. 2003). The agency must make " a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested," and it " cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68, 287 U.S.App.D.C. 126 (D.C. Cir. 1990). That said, the agency's search for records need not be exhaustive, but merely reasonable. Id. The proper inquiry is not whether there might exist additional documents possibly responsive to a request, but whether the agency conducted a search reasonably calculated to uncover relevant documents. Id.; see also Iturralde, 315 F.3d at 315.

          To demonstrate that a search for documents was reasonable at the summary judgment phase, a federal agency may submit " reasonably detailed" affidavits or declarations that describe the search performed. Schoenman v. FBI, 764 F.Supp.2d 40, 45 (D.D.C. 2011). The affidavits or declarations may be submitted by an individual who either participated in the search or coordinated the search. See Ctr. for Int'l Envtl. Law v. Office of U.S. Trade Representative, 237 F.Supp.2d 17, 23 (D.D.C. 2002); see also SafeCard Servs. v. Sec. Exch. Comm'n, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991). In compliance with the reasonableness standard, these affidavits " must . . . set [ ] forth the search terms and the type of search performed, and aver [ ] that all files likely to contain responsive materials (if such records exist) were searched." Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890, 315 U.S.App.D.C. 177 (D.C. Cir. 1995). If the agency can make that showing, then the burden shifts to the plaintiff to provide evidence sufficient to raise " substantial doubt" about the adequacy of the agency's search. Iturralde, 315 F.3d at 314 (quoting Valencia--Lucena v. U.S. Coast Guard, 180 F.3d 321, 326, 336 U.S.App.D.C. 386 (D.C. Cir. 1999)).

          A FOIA requester may also challenge the adequacy of the agency's application of FOIA exemptions to his or her request. See ACLU v. United States DOD, 628 F.3d 612, 617, 393 U.S.App.D.C. 384 (D.C. Cir. 2011). The agency bears the burden of demonstrating that its response, whether it withheld

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information in whole or in part, was appropriate. Id. at 619. That burden is satisfied through the submission of an affidavit or declaration and, if necessary, a Vaughn index.[4] Am. Immigration Lawyers Ass'n v. Dep't of Homeland Sec., 852 F.Supp.2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827-28, 157 U.S.App.D.C. 340 (D.C. Cir. 1973)). A court may award summary judgment based solely upon the information provided in affidavits or declarations when those affidavits or declarations " describe 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." Larson v. Dep't of State, 565 F.3d 857, 862, 385 U.S.App.D.C. 394 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776, 235 U.S.App.D.C. 11 (D.C. Cir. 1984)). Provided that the agency affidavits or declarations are " relatively detailed and non-conclusory," they are accorded " a presumption of good faith," which 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 Servs., 926 F.2d at 1200 (internal citations and quotations omitted).

         III. ANALYSIS

         Plaintiff challenges both the adequacy of Southcom's search for documents responsive to his two FOIA requests and Southcom's application of two of the six FOIA exemptions that were at issue -- Exemptions 1 and 7(E).[5] See Pl.'s Opp. at 11, 29, 33-34. Plaintiff's challenges will be addressed in turn below. Thereafter, the Court will address plaintiff's motion for leave to file a sur-reply to defendant's motion for summary judgment.

         A. Southcom Conducted an Adequate Search in Response to Plaintiff's FOIA Requests

         According to plaintiff, Southcom is not entitled to summary judgment because Southcom's electronic and manual searches for responsive records were inadequate. Pl.'s Opp. at 12-22. To support the reasonableness of its searches, Southcom submitted two declarations of Major Lisa R. Bloom to explain the steps taken to comply with plaintiff's FOIA requests. Major Bloom manages the operations of Southcom's FOIA Office and supervised Southcom's searches for records responsive to plaintiff's FOIA requests. Bloom Decl.

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¶ 1. In her first declaration, Major Bloom describes the process of Southcom's searches as follows:

At the direction of my FOIA team, [Southcom] personnel search Agency records systems under their control to identify documents and other information which may be responsive to individual requests. Subject matter experts within [Southcom] then determine whether responsive records or portions thereof should be withheld under any applicable statutory FOIA or Privacy Act exemptions. Upon completion of the search and redaction process, the records are forwarded to my office for review.

Id.

         According to Major Bloom, " a series of discussions between DOD and Plaintiff established that the appropriate time period for the search was from May 1, 2009 through April 21, 2011." Id. ¶ 7. Southcom selected the following search terms for its initial search based on its communications with plaintiff:

         Coups/Coups d'é tats;

Zelaya;
Honduras 2009;
Elections 2009;
Zelaya's Arrest;
Zelaya Resignation;
Military Activities/Zelaya;
Court Decisions/Zelaya;
Manuel Zelaya; [6]
Zelaya Exile;
Zelaya Oust;
Zelaya Arrest;
Zelaya Removal;
Honduras Coups;
Romeo Vasquez;
CHOD Vasquez; and
General Vasquez.

         Id. Southcom identified the following six subcomponents as likely to contain responsive records based on the nature of ...


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