United States District Court, District of Columbia
M. GREGG BLOCHE and JONATHAN H. MARKS, Plaintiffs,
DEPARTMENT OF DEFENSE, et al., Defendants.
Document No. 52, 61
MEMORANDUM OPINION DENYING PLAINTIFFS' MOTION FOR
PARTIAL SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR PARTIAL JUDGMENT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
case arising under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, Plaintiffs M.
Gregg Bloche and Jonathan H. Marks seek documents from
multiple federal government entities related to the role of
medical professionals in the design and implementation of
interrogation tactics in the early to mid-2000s. Presently
before the Court are cross-motions for summary judgment with
respect to three Defendant agencies' responses to
Plaintiffs' FOIA requests-those agencies being (1) the
Department of the Navy, (2) the Office of the Assistant
Secretary of Defense for Health Affairs (“OASD-HA
Policy”), and (3) the Department of Defense's
Office of the Deputy General Counsel for Personnel and Health
Policy (“OASD-HAGC”). Each of these three agencies
performed its own search in response to Plaintiffs'
requests, and Plaintiffs do not challenge the sufficiency of
those searches. Plaintiffs have for years, however, tussled
with these agencies over the propriety of several FOIA
exemptions that the agencies have asserted to withhold many
responsive documents in full or in part. As the Court will
explain below, the agencies have established that many of
their claimed exemptions are proper-but not all. Where the
agencies have fallen short, the Court concludes that summary
judgment in neither side's favor is appropriate at this
juncture. The Court instead orders that the agencies produce
the documents at issue for in camera review and
provide more specific justifications for the asserted claims,
to which Plaintiffs will have an opportunity to respond.
Defendants' motion is thus granted in part and denied in
part, and Plaintiffs' motion is denied, though in part
“sets forth a policy of broad disclosure of Government
documents in order ‘to ensure an informed citizenry,
vital to the functioning of a democratic society.'”
FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978)); see also Judicial Watch, Inc. v. U.S.
Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017)
(“Congress enacted FOIA to give the public
‘access to official information long shielded
unnecessarily from public view.'” (quoting
Nat'l Ass'n of Criminal Def. Lawyers v. U.S.
Dep't of Justice Exec. Office for U.S. Attorneys,
829 F.3d 741, 744 (D.C. Cir. 2016))). “The Act requires
government agencies to make information available upon
request, unless the information is protected by one of nine
statutory ‘exemptions.'” Judicial
Watch, 847 F.3d at 738 (quoting NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 136 (1975)); see
also 5 U.S.C. § 552(b).
cases typically and appropriately are decided on motions for
summary judgment.” Prop. of the People, Inc. v.
Office of Mgmt. and Budget, 330 F.Supp.3d 373, 380
(D.D.C. 2018) (quoting Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). To be
entitled to summary judgment, the movant must “show
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). “A ‘material' fact is one
capable of affecting the substantive outcome of the
litigation.” Pinson v. Dep't of Justice,
313 F.Supp.3d 88, 105 (D.D.C. 2018). A dispute is genuine if
there is sufficient evidence for a reasonable jury to return
a verdict for the nonmovant. Id.
these principles to the FOIA context, a government agency is
“entitled to summary judgment if no material facts are
genuinely in dispute and the agency demonstrates ‘that
its search for responsive records was adequate, that any
exemptions claimed actually apply, and that any reasonably
segregable non-exempt parts of records have been disclosed
after redaction of exempt information.'” Prop.
of the People, 330 F.Supp.3d at 380 (quoting
Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172,
181 (D.D.C. 2017)). “This burden does not shift even
when the requester files a cross-motion for summary judgment
because the Government ultimately has the onus of proving
that the documents are exempt from disclosure, while the
burden upon the requester is merely to establish the absence
of material factual issues before a summary disposition of
the case could permissibly occur.” Id.
(internal quotation marks omitted) (quoting Hardy v.
Bureau of Alcohol, Tobacco, Firearms and Explosives, 243
F.Supp.3d 155, 162 (D.D.C. 2017)).
its burden, the agency may “rely on declarations that
are reasonably detailed and non-conclusory.”
Pinson, 313 F.Supp.3d at 106. Such declarations 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 the withheld document to which they
apply.'” Elec. Privacy Info. Ctr. v. U.S. Drug
Enf't Agency, 192 F.Supp.3d 92, 103 (D.D.C. 2016)
(quoting Mead Data Cent., Inc. v. U.S. Dep't of Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
“Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'” Wolf
v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting
Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.
1982)). But exemptions must also be “narrowly
construed.” Morley v. CIA, 508 F.3d 1108, 1115
(D.C. Cir. 2007). Agencies “cannot justify . . .
withholdings on the basis of summary statements that merely
reiterate legal standards or offer ‘far-ranging
category definitions for information.'”
Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep't of Justice, 955 F.Supp.2d 4, 13 (D.D.C. 2013)
(quoting King v. U.S. Dep't of Justice, 830 F.2d
210, 221 (D.C. Cir. 1987)).
case, the adequacy of the Defendants' searches is not at
issue-as the Court noted above. Instead, Plaintiffs dispute
only the validity of certain FOIA exemptions that Defendants
have claimed. The majority of Plaintiffs' challenges
relate to Defendants' invocations of the deliberative
process privilege, which falls within the ambit of FOIA
Exemption 5. See 5 U.S.C. § 552(b)(5). The
Court therefore begins its analysis below with a discussion
of that exemption. The Court then addresses three more
discrete issues concerning: (1) Exemption 1, which permits
the withholding of certain classified information relating to
national defense or foreign policy, see Id. §
552(b)(1); (2) Exemption 7(E), which permits the withholding
of information related to “techniques and procedures
for law enforcement investigations or prosecutions, ”
id. § 552(b)(7); and (3) Exemption 6, which
permits the withholding of information that “would
constitute a clearly unwarranted invasion of personal
privacy, ” id. § 552(b)(6).
Exemption 5 - The Deliberative Process Privilege
Exemption 5 permits agencies to withhold “inter-agency
or intra-agency memorandums or letters that would not be
available by law to a party . . . in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The exemption thus
“‘incorporates the traditional privileges that
the Government could assert in civil litigation against a
private litigant'-including the presidential
communications privilege, the attorney-client privilege, the
work product privilege, and the deliberative process
privilege.” Loving v. Dep't of Def., 550
F.3d 32, 37 (D.C. Cir. 2008) (quoting Baker &
Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d
312, 321 (D.C. Cir. 2006)).
here is the deliberative process privilege, which protects
“documents reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.” Id. at 38 (quoting Dep't
of Interior v. Klamath Water Users Protective Ass'n,
532 U.S. 1, 8 (2001)). The privilege exists “to enhance
‘the quality of agency decisions,' by protecting
open and frank discussion among those who make them within
the Government.” Klamath, 532 U.S. at 9
(citations omitted). The privilege “rests on the
obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item
of discovery and front page news.” Id. at 8-9.
fall within the deliberative process privilege, materials
must bear on the formulation or exercise of agency
policy-oriented judgment.” Prop. of the
People, 330 F.Supp.3d at 382 (quoting Petroleum
Info. Corp. v. U.S. Dep't of Interior, 976 F.2d
1429, 1435 (D.C. Cir. 1992)). A document qualifies if it is
both pre-decisional and deliberative. E.g.,
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.
Cir. 2006). “Pre-decisional” communications are
those that, unsurprisingly, “occurred before any final
agency decision on the relevant matter.” Nat'l
Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014).
“[T]he term ‘deliberative' does not add a
great deal of substance to the term ‘pre-decisional,
'” but it “in essence” means
“that the communication is intended to facilitate or
assist development of the agency's final position on the
relevant issue.” Id.
Defendants' Claims of Deliberative ...