United States District Court, District of Columbia
M. GREGG BLOCHE, M.D. and JONATHAN H. MARKS, Plaintiffs,
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
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.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, JR. DISTRICT JUDGE.
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. See Dkt. Nos. 38, 43.
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
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.
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.
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.
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.
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
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.
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.
Standard of review
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
"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.'" 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).
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)]).
Exemption 5 claims
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
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).
Deliberative process privilege
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).
invoke the deliberative process privilege, an agency must
show that an allegedly exempt document is both
'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).
"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
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
Attorney work-product privilege
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
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).
Analysis of Defendant's exemption claims
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. 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.
Court will address each of these disputed documents in turn.
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.
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