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Bloche v. Department of Defense

United States District Court, District of Columbia

September 18, 2017

M. GREGG BLOCHE, M.D. and JONATHAN H. MARKS, Plaintiffs,
v.
DEPARTMENT OF DEFENSE; COUNTERINTELLIGENCE FIELD ACTIVITY; DEFENSE ADVANCE RESEARCH PROJECTS AGENCY; DEFENSE INTELLIGENCE AGENCY; UNITED STATES DEPARTMENT OF THE ARMY; DEPARTMENT OF THE NAVY; UNITED STATES AIR FORCE; CENTRAL INTELLIGENCE AGENCY; and OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Defendants.

          INSTITUTE FOR PUBLIC REPRESENTATION Georgetown University Law Center Attorneys for Plaintiffs

          UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch Attorneys for Defendant Air Force

          ADERSON BELLEGARDE FRANCOIS, ESQ.

          ELIZABETH J. SHAPIRO, AUSA KRISTINA ANN WOLFE, AUSA SUSAN K. ULLMAN, AUSA

          MEMORANDUM-DECISION AND ORDER

          FREDERICK J. SCULLIN, JR. DISTRICT JUDGE.

         I. INTRODUCTION

         Pending before the Court are Plaintiffs' motion for partial summary judgment against Defendant United States Air Force and Defendant United States Air Force's cross-motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[1] See Dkt. Nos. 38, 43.

         II. BACKGROUND

         Plaintiffs are bioethics experts who have written about the ethical issues that arise from the participation of healthcare personnel in the interrogation of military prisoners and other detainees. See Dkt. No. 38 at 2. Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., Plaintiffs submitted four separate requests for information concerning the government's use of interrogation tactics that medical professionals designed and implemented. Plaintiffs sent these requests to United States Department of Defense, Counterintelligence Field Activity, Defense Advanced Research Projects Agency, Defense Intelligence Agency, Department of the Army, Department of the Navy, United States Air Force, Central Intelligence Agency, and the Office of the Director of National Intelligence (collectively, "Defendant Agencies").

         Specifically, Plaintiffs' first request, dated June 26, 2006, "sought records addressing the duties and roles of healthcare personnel involved in interrogations, the policies for healthcare personnel involved in interrogations, the contents of specifically identified videoconferences regarding interrogation strategies, and the legality or ethics of using healthcare personnel in interrogations." See Dkt. No. 38-1 at ¶ 4.

         Plaintiffs' second request, dated July 3, 2006, "sought contracts between the [Defendant Agencies] and healthcare personnel involved in interrogations, as well as records relating to the contracts." See Id. at ¶ 5.

         Plaintiffs' third request, dated July 3, 2006, "sought records addressing the use of foreign nationals to assist United States personnel with interrogations, as well as records addressing the legality, ethics, and effectiveness of specific interrogation techniques and programs." See Id. at ¶ 6.

         Plaintiffs' fourth request, dated July 10, 2016, "sought records addressing research on how government employees, United States service-members, military prisoners, and other detainees responded to certain interrogation techniques; methods of interrogation identified in the document entitled 'KUBARK Counterintelligence Interrogation' and any material pertaining to that document; and the legality or ethics of conducting research on certain interrogation techniques." See Id. at ¶ 7.

         Plaintiffs received no documents in response to their requests. See Dkt. No. 1 at ¶¶ 14-31. Accordingly, Plaintiffs filed suit on November 13, 2007, seeking to compel Defendant Agencies to respond to their FOIA requests. On February 11, 2008, the Court (Kennedy, J.) ordered Defendant Agencies to process and release documents responsive to Plaintiffs' FOIA requests on a rolling basis. See Dkt. No. 7. Defendant Agencies complied. Relevant to the pending motions, Defendant United States Air Force (hereinafter "Defendant") reviewed a total of 1, 472 pages of responsive documents and released 148, either in full or in part, to Plaintiffs. See Dkt. No. 38 at 5.

         On March 2, 2011, Plaintiffs moved for partial summary judgment, arguing that Defendant unlawfully withheld documents responsive to their FOIA requests. See Id. Plaintiffs' original motion relied on a Vaughn Index and declarations that Defendant had supplied in September 2008. See Id. Before responding to Plaintiffs' motion, Defendant agreed to re-review all responsive documents and its exemption decisions. See Dkt. No. 39 at ¶ 4. After doing so, Defendant responded to Plaintiffs' motion by cross-moving for partial summary judgment, arguing that all of its exemption decisions were appropriate. See Dkt. No. 43-1 at 1-2. Defendant supplied an updated Vaughn Index with corresponding declarations and represented that it had made several additional disclosures. See Id. at 4; see also Dkt. Nos. 43-3, 43-4, 43-5, 43-6, 43-7, 43-8. Both parties filed responses. See Dkt. Nos. 43, 51. Furthermore, the parties jointly filed an update that specified the documents that they still disputed. See Dkt. No. 59; see also Dkt. No. 68 (providing an additional update). Plaintiffs subsequently filed a supplemental memorandum with commentary about Defendant's most recent release of responsive documents, see Dkt. No. 71, prompting Defendant to move to strike the supplemental memorandum, see Dkt. No. 73.

         Plaintiffs do not challenge the adequacy of Defendant's search for documents responsive to their requests. See Dkt. No. 43-1 at 7 n.2. The principal issue before the Court is whether Defendant properly redacted or withheld disputed documents under FOIA Exemption 5. See Dkt. No. 59 at 1; see also 5 U.S.C. § 552(b)(5). Furthermore, Plaintiffs argue that Defendant failed to release attachments (to emails or memoranda) of responsive documents and that Defendant did not properly segregate and disclose non-exempt material. See Dkt. No. 59 at 2-3.

         III. DISCUSSION

         A. Standard of review

         "A defendant is entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record, which is located, was either produced to the plaintiff or is exempt from disclosure." Judicial Watch, Inc. v. U.S. Dep't of Treasury, 796 F.Supp.2d 13, 23 (D.D.C. 2011) ("Judicial Watch-Treasury") (citing Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980)). The government agency has the burden to demonstrate that the documents the plaintiff requested are exempt from disclosure. See Assassination Archives & Research Ctr. v. Central Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (citation omitted). Since the agency is in the unique position of "[p]ossessing both the burden of proof and all the evidence, " the agency must provide the court and the challenging party "a measure of access without exposing the withheld information, " which would "compromis[e] its original withholdings." Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006) ("Judicial Watch-FDA"). Therefore, "[t]o enable the Court to determine whether documents properly were withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called 'Vaughn Index, ' sufficiently detailed affidavits or declarations, or both." Hussain v. United States Dep't of Homeland Sec., 674 F.Supp.2d 260, 267 (D.D.C. 2009) (citations omitted). The Vaughn Index "serves three important functions that help restore a healthy adversarial process[.]" Judicial Watch-FDA, 449 F.3d at 146. In that regard, the Vaughn Index

"forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court."

Id. (quoting Keys v. U.S. Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). The Vaughn Index and declarations must "describe the documents and '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.'"[2] Judicial Watch-Treasury, 796 F.Supp.2d at 23-24 (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citing Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984))) (other citations omitted).

         When deciding whether summary judgment is appropriate in the FOIA context, a court is required to view the facts in the light most favorable to the FOIA requester. See Burka v. United States Dep't of Health & Human Servs., 87 F.3d 508, 514 (D.C. Cir. 1996) (citations omitted); Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (stating that "[t]he standard governing a grant of summary judgment in favor of an agency that claims it has fully discharged its FOIA disclosure obligations is well established[: . . .] the agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact" (citation omitted)). However, "[a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting [Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)]).

         B. Exemption 5 claims

         1. Legal principles

         FOIA Exemption 5 allows government agencies to withhold, i.e., not make available to the public, "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency, " 5 U.S.C. § 552(b)(5), i.e., deliberative, predecisional memorandum, attorney-client communications, and attorney work product. "If a document requested through FOIA 'would be "routinely" or "normally" disclosed [in civil discovery] upon a showing of relevance, ' it must also be disclosed under FOIA[.]" Burka, 87 F.3d at 516 (quoting Grolier, 462 U.S. at 26, 103 S.Ct. at 2213-14) (footnote omitted). In other words, Exemption 5 covers "'those documents, and only those documents, normally privileged in the civil discovery context[.]'" Loving v. Dep't of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (quotation omitted).

         Whether the deliberative process, attorney-client, or attorney work-product privilege applies depends on the content of each document and the role it plays in the decisionmaking process. Therefore, "when an agency seeks to withhold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Cent., Inc. v. United States Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (citations omitted). "Without a sufficiently specific affidavit or Vaughn Index, a court cannot decide, one way or the other, a deliberative process[, attorney-client, or attorney work-product] privilege claim." Judicial Watch, Inc. v. United States Postal Serv., 297 F.Supp.2d 252, 259-60 (D.D.C. 2004) ("Judicial Watch-Postal Service") (citation omitted). Therefore, "[a]n agency cannot meet its statutory burden of justification by conclusory allegations" but instead "must show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA." Mead Data Cent., 566 F.2d at 258 (citation omitted).

         a. Deliberative process privilege

         The deliberative process privilege "covers 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated[.]'" Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting Sears, Roebuck & Co., 421 U.S., at 150, 95 S.Ct. 1504). "The privilege's rational is that advice and information would not flow freely within an agency if such consultative information were open to public scrutiny." Judicial Watch-Postal Service, 297 F.Supp.2d at 258 (citations omitted) (stating that "Exemption 5 . . . allows agency staffers to provide decisionmakers with candid advice without fear of public scrutiny"). In sum, the deliberative process privilege functions "to prevent injury to the quality of agency decisions." Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).

         To invoke the deliberative process privilege, an agency must show that an allegedly exempt document is both "'predecisional' and 'deliberative.'" Access Reports v. Dep't of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991) (citations omitted). Material is "predecisional if 'it was generated before the adoption of an agency policy[.]'" Judicial Watch-FDA, 449 F.3d at 151 (quoting [Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854');">617 F.2d 854, ] 866 [(D.C. Cir. 1980)]). However, "the exemption does not 'turn[] on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.'" Access Reports, 926 F.2d at 1196 (quoting [Sears, 421 U.S. at 151]) (other citation omitted). Rather, "[t]o satisfy the predecisional element, the agency need only 'identify[] the decisionmaking process' to which the withheld documents contributed." Elec. Frontier Found. v. United States Dep't of Justice, 890 F.Supp.2d 35, 52 (D.D.C. 2012) (quoting [Access Reports, 926 F.2d at 1196]). Furthermore, "[t]he identity of the parties to the [document] is important; a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854');">617 F.2d 854, 868 (D.C. Cir. 1980).

         A "deliberative" document is one that is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). To be characterized as deliberative, the document must "reflect the give and take of the deliberative process[.]" Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010) (citation omitted). In other words, deliberative documents are those "'reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Sears, Roebuck & Co., 421 U.S. at 150 (quotation omitted). Although "[p]urely factual material usually cannot be withheld under Exemption 5, " it can be where "it reflects an 'exercise of discretion and judgment calls'" and where its exposure would enable the public to examine an agency's deliberative processes. Ancient Coin Collectors Guild v. United States Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (citation omitted); see also Petroleum Info. Corp. v. United States Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (stating that, "[t]o fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment" (citations omitted)). Protecting factual material created in a discretionary way "protect[s] the process by which policy is formulated." Petroleum Info. Corp., 976 F.2d at 1431 (citations omitted); see also Formaldehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1123-24 (D.C. Cir. 1989) (stating that "[t]he pertinent issue . . . is what harm, if any, the [document's] release would do to [an agency's] deliberative process").[3]

         b. Attorney-client privilege "The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. . . . The privilege also protects communications from attorneys to their clients if the communications 'rest on confidential information obtained from the client.' . . ." Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997) (internal quotation and other citation omitted). "In the FOIA context, the agency is the 'client' and the agency's lawyers are the 'attorneys' for the purposes of attorney-client privilege." Judicial Watch-Treasury, 796 F.Supp.2d at 33 (citation omitted). To invoke the privilege, a defendant "'must show that the withheld document (1) involves confidential communications between an attorney and his client and (2) relates to a legal matter for which the client has sought professional advice.'" Id. (quoting Wilderness Soc'y v. U.S. Dep't of the Interior, 344 F.Supp.2d 1, 16 (D.D.C. 2004)). "However, the attorney-client privilege does not give the agency the ability 'to withhold a document merely because it is a communication between the agency and its lawyers.'" Cuban v. Sec. Exch. Comm'n, 744 F.Supp.2d 60, 78 (D.D.C. 2010), on reconsideration in part, 795 F.Supp.2d 43 (D.D.C. 2011) (quoting [Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.Supp.2d 252, 267 (D.D.C. 2004)]). Rather, the defendant agency must show that it intended "that the information [it] provided to its lawyers . . . [was] confidential and was not disclosed to a third party." Id. (citation omitted).

         c. Attorney work-product privilege

         The attorney work-product privilege protects "documents and tangible things that [an attorney] prepare[s] in anticipation of litigation or for trial[.]" Fed.R.Civ.P. 26(b)(3). To qualify under this privilege, an attorney must have prepared or obtained the document "because of" the threat of litigation, i.e., "the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." In re: Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (citations omitted). The "mere possibility" of litigation is not enough to invoke the privilege. Coastal States Gas Corp., 617 F.2d at 865. In that regard, "if an agency were entitled to withhold any document prepared by any person in the Government with a law degree simply because litigation might someday occur, the policies of the FOIA would be largely defeated." Id.

         d. Segregability

         The FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt[.]" 5 U.S.C. § 552(b). "It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., 566 F.2d at 260 (D.C. Cir. 1977) (footnote omitted). Nonetheless, "[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material." Sussman v. United States Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citation omitted). Such a presumption may be overcome by a "quantum of evidence, " which means that the plaintiff must, at least, "'produce evidence that would warrant a belief by a reasonable person'" that segregable material exists. Id. (quotation omitted). "[A]n agency may satisfy its segregability obligations by (1) providing a Vaughn index that adequately describes each withheld document and the exemption under which it was withheld; and (2) submitting a declaration attesting that the agency released all segregable material." Muttitt v. Dep't of State, 926 F.Supp.2d 284, 302 (D.D.C. 2013) (citing Loving v. Dep't of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that "the description of the document set forth in the Vaughn index and the agency's declaration that it released all segregable material" is "sufficient for [the segregability] determination")) (other citation omitted).

         e. Analysis of Defendant's exemption claims

         The parties have agreed that their dispute involves only the following documents as to Exemption 5: AF5, AF7-AF8, AF9-AF10, AF13, AF14, AF18, AF19-AF20, AF21-AF23, AF26-AF27, AF27a-AF27b, AF28, AF29, AF30-AF32, AF37, AF47-AF55, AF74-AF75, AF76-AF77, AF83-AF84, AF86-AF87, AF174, AF191, AF197-AF199, AF205-AF209, AF300-AF303, AF316-AF319, AF331-AF394.[4] Furthermore, the parties dispute whether Defendant has released all reasonably segregable information in the following documents: AF3-AF4, AF26-AF27a, AF27b, AF28-AF33, AF57-AF59, AF65-AF70, AF78, AF86-AF88, AF90-AF127, AF197-AF233, AF323-AF324, AF366-AF394, AF398-AF414, AF417-AF418, AF425-AF426, and AF429.

         The Court will address each of these disputed documents in turn.

         AF3-AF4. The document itself is an internal memorandum, the subject of which is "Review of Detainee Abuse Reports, " the purpose of which is to "[p]rovide SG/SG2 with a review of the specific medical findings in the reports." See Dkt. No. 38-2 at 6, AF3. The redacted material includes the majority of the discussion section, the recommendation, and the title of one of the documents that was an attachment. See Id. at 6-7, AF3-AF4.

         In its declaration, Defendant asserts that "[t]he redacted information reveals the author's recommendations to superiors concerning appropriate/best case training scenarios, as well as his opinion on the current training methods for Behavioral Science Consultation Teams (BSCTS)." See Dkt. No. 43-3 at 3. Plaintiffs generally ...


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