United States District Court, District of Columbia
B. WALTON United States District Judge
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
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,
[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.
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.
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.
STANDARD OF REVIEW
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).
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)).
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.
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 ...