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Judicial Watch, Inc. v. United States Department of Defense

United States District Court, District of Columbia

March 28, 2017

JUDICIAL WATCH, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         The plaintiff, Judicial Watch, Inc., filed this civil case, alleging that the defendants, the United States Department of Defense (the “DOD”) and the Central Intelligence Agency (the “CIA”), violated the Freedom of Information Act (the “FOIA”), 5 U.S.C. § 552 (2012), “by failing to search for and produce all records responsive to [its] request or demonstrate that the requested records are lawfully exempt from production.” Complaint (“Compl.”) ¶¶ 11, 16. Currently before the Court are the Defendants' Motion for Summary Judgment (“Defs.' Mot.”), ECF No. 13, and the Plaintiff's Cross-Motion for Summary Judgment (“Pl.'s Mot.”), ECF No. 16. After carefully considering the parties' submissions, the Court concludes for the following reasons that it must grant the defendants' motion for summary judgment and deny the plaintiff's cross-motion for summary judgment.[1]

         I. BACKGROUND[2]

         On May 1, 2011, former “President Obama announced to the American people and to the world that the United States has conducted an operation that killed Osama bin Laden, the leader of al Qaeda, and a terrorist who's responsible for the murder of thousands of innocent men, women, and children.” Defs.' Mot., Exhibit (“Ex.”) A (Declaration of Antoinette B. Shiner Information Review Officer for the Litigation Information Review Office CIA (“Shiner Decl.”)) ¶ 6 (internal quotation marks omitted). Four and a half years later, the plaintiff submitted identical FOIA requests to the CIA and the DOD, seeking

[a]ny and all documents, records, and/or communications concerning, regarding, or related to memoranda drafted by Stephen W. Preston, former [CIA] General Counsel; Mary B. DeRosa, former National Security Council Legal Adviser; Jeh C. Johnson, former Pentagon General Counsel; and then-Rear Admiral James W. Crawford III, former Joint Chiefs of Staff Legal Adviser, regarding options, authority, rationale, details, analysis, legal factors, policy concerns, opinions, and conclusions for the search, raid, capture, and/or killing of Osama bin Laden in 2011. Relevant documents, records, and/or communications include, but are not limited to:
a. A memorandum written by former Pentagon General Counsel Jeh C. Johnson concerning any violation of Pakistani sovereignty in seeking, capturing, and/or killing Osama bin Laden in 2011;
b. A memorandum written by former [CIA] General Counsel Stephen W. Preston regarding when the administration must alert congressional leaders about the raid, capture, and/or killing of Osama bin Laden in 2011;
c. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa concerning a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture and/or killing of Osama bin Laden in 2011;
d. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa regarding plans for detaining Osama bin Laden in the event of his capture;
e. A memorandum written by former Joint Chiefs of Staff Legal Adviser then-Rear Admiral James W. Crawford III regarding options and/or plans for Osama bin Laden's burial.

Compl. ¶ 6.

         On February 24, 2016, the plaintiff brought this action alleging that, as of that date, the defendants had not “(i) produce[d] the requested records or demonstrate[d] that the requested records are lawfully exempt from production; (ii) notif[ied] [it] of the scope of any responsive records [the d]efendants intend[ed] to produce or withhold and the reasons for any withholdings; or (iii) inform[ed] [it] that it may appeal any adequately specific, adverse determination.” Id. ¶ 9. Early in this litigation, “[the p]laintiff agreed to limit its FOIA request[s] to the five alleged memoranda specifically identified in the FOIA request[s] and in sub-paragraphs 6(a)-(e) of the Complaint, ” Defs.' Facts ¶ 2; Pl.'s Facts ¶ I.2, and the “[d]efendants agreed to produce releasable portions of the memoranda by or before June 13, 2016, ” Pl.'s Facts ¶ II.1. “By [a] letter dated June 13, 2016, [the d]efendants informed [the p]laintiff that they had located and finished processing [the] five responsive memoranda[, but] were withholding the five memoranda in their entirety pursuant to FOIA Exemptions 1, 3, and 5 . . . .” Defs.' Facts ¶ 3.

         The defendants now move for summary judgment, asserting that they are entitled to judgment as a matter of law because the five requested memoranda are privileged and protected from disclosure under several FOIA Exemptions. See Defs.' Mem. at 3. In addition to opposing the defendants' motion for summary judgment, the plaintiff also cross moves for summary judgment, arguing that the defendants have not satisfied their burden of proving that the FOIA exemptions invoked are applicable to the withheld responsive documents and that the “[d]efendants should be ordered to release all reasonably segregable, non-classified portions of the memoranda.” Pl.'s Opp'n at 2.

         II. STANDARD OF REVIEW

         The Court must grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[I]n ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006) (citation omitted).

         FOIA cases are typically resolved on motions for summary judgment. See Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents [requested by the FOIA requester] are exempt from disclosure.” Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under the FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly[, or partially, ] exempt [from disclosure].'” Students Against Genocide, 257 F.3d at 833 (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         III. ANALYSIS

         The issue before the Court is whether the defendants have properly withheld the five requested memoranda in their entirety pursuant to Exemptions 1, 3, and 5 of the FOIA. Congress amended the FOIA resulting in its current version in 1966, with the objective of promoting “full agency disclosure.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 754 (1989). When an agency receives a request for records that reasonably describes such records, the agency must make those records available to the requester. See id. at 754-55. Although there are nine expressly delineated exemptions from compelled disclosure, the dominant objective of the act is nonetheless disclosure, not secrecy. See Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (1976). The Supreme Court has explained this basic purpose of the FOIA as providing a way for citizens to “know what their government is up to.” Reporters Comm., 489 U.S. at 773. Thus, courts must narrowly construe the statutory exemptions when determining if records requested under the FOIA should be disclosed. See Rose, 425 U.S. At 361.[3]

         A. FOIA Exemptions

         1. Exemption 5

         Exemption 5 of the FOIA allows the government to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption “has been interpreted as protecting against disclosure [of] those documents normally privileged in the civil discovery context.” Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004) (citing EPA v. Mink, 410 U.S. 73, 91 (1973)). And, it therefore protects from disclosure those documents shielded by the presidential communications privilege, the deliberative process privilege, see id., and the attorney-client privilege, see Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977), all ...


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