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Bloche v. Department of Defense

United States District Court, District of Columbia

October 29, 2019

DEPARTMENT OF DEFENSE, et al., Defendants.



         Granting in Part and Denying in Part Defendants' Renewed Motion for Partial Summary Judgment; Granting in Part and Denying in Part Defendants' Motion for Partial Summary Judgment; Denying Plaintiffs' Cross-Motion for Partial Summary Judgment


         This suit arising under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, began in 2007, when Plaintiffs M. Gregg Bloche and Jonathan H. Marks sought records from multiple federal government entities concerning the involvement of medical professionals in designing and implementing interrogation tactics. Presently before the Court are two sets of motions. First, three Defendant agencies, (1) the Department of the Navy (“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”), renew their motion for summary judgment.[1] See ECF No. 110. For the reasons set forth below, the Court grants in part and denies in part this motion.

         Second, separately before the Court are cross-motions for summary judgment concerning six other Defendant agencies: (1) the United States Army (“Army”); (2) the Office of the Director of National Intelligence (“ODNI”);[2] (3) the United States Special Operation Command (“SOCOM”); (4) the Defense Intelligence Agency (“DIA”); (5) the United States Central Command (“CENTCOM”); and (6) the Joint Task Force Guantanamo (“JTF-GTMO”).[3] See ECF Nos. 96, 97.[4] Each of these Defendant agencies conducted its own search in response to Plaintiffs' FOIA requests, and the adequacy of Defendants' searches are not at issue.[5] What is at issue in these cross-motions is the application of FOIA exemptions to withhold in full or in part the documents produced by the agencies. For reasons that the Court will detail below after addressing Defendants' renewed motion for summary judgment, see ECF No. 110, the Defendant agencies involved in the pending cross-motions for summary judgment, see ECF Nos. 96, 97, have provided adequate justification for some, but not all of their claimed exemptions. The Court thus grants in part and denies in part Defendants' motion for partial summary judgment and denies Plaintiffs' cross-motion for partial summary judgment.


         Congress enacted FOIA to permit citizens to discover “what their government is up to.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J. dissenting)). FOIA requires the agency to disclose records located in response to a valid FOIA request, unless material in the records falls within one of FOIA's nine statutory exemptions. 5 U.S.C. § 552(b); see also Judicial Watch, Inc. v. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Pinson v. U.S. Dep't of Justice, 236 F.Supp.3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). In general, summary judgment is appropriate when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). In a FOIA suit, “summary judgment is appropriate if there are no material facts 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, Inc. v. Office of Mgmt. and Budget, 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017)).

         A court addressing a motion for summary judgment in a FOIA suit is to review the matter de novo. See 5 U.S.C. § 552(a)(4)(B); Life Extension Found., Inc. v. Internal Revenue Serv., 915 F.Supp.2d 174, 179 (D.D.C. 2013). The reviewing court may grant summary judgment based on the record and agency declarations if “the agency's supporting declarations and exhibits describe the requested 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.'” Pronin v. Fed. Bureau of Prisons, No. CV 17-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation omitted)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Scudder v. Cent. Intelligence Agency, 254 F.Supp.3d 135, 140 (D.D.C. 2017) (quoting Judicial Watch, 715 F.3d at 941 (internal citations omitted)). But exemptions are to be “narrowly construed.” Bloche II, 370 F.Supp.3d at 50 (quoting Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1115 (D.C. Cir. 2007)). An agency cannot justify its withholding by providing “[c]onclusory and generalized allegations of exemptions, ” Morley, 508 F.3d at 1114-15 (internal citations omitted), and an agency must do more than provide “summary statements that merely reiterate legal standards or present ‘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)).


         The sole issue in Defendants' renewed motion for summary judgment, as noted previously, is Defendants' application of FOIA exemptions. This Court's March 2019 memorandum opinion and order denied summary judgment with respect to nine documents, directing Defendants both to produce these documents for in camera review and to provide supplementary justification. The majority of these documents were withheld in full or in part pursuant to Exemption 5's deliberative process privilege, [6] see 5 U.S.C. § 552(b)(2), and two were withheld pursuant to Exemption 7(E), which permits an agency to withhold information related to “techniques and procedures for law enforcement investigations and prosecutions, ” id. § 552(b)(7).[7] The Court will address each of these exemptions (deliberative process privilege for Defendant OASD-HA and 7(E) for Defendant Navy) in turn. Because it finds that Defendant OASD-HA has justified its invocation of FOIA Exemption 5 for all but one of its withheld documents and that Defendant Navy has justified its invocation of FOIA Exemption 7(E) for both of its partially withheld documents, the Court will grant in part and deny in part Defendants' renewed motion for summary judgment.

         A. Defendant OASD-HA Policy

         1. Exemption 5 - The Deliberative Process Privilege

         Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters that 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). The Supreme Court and the D.C. Circuit have construed Exemption 5 to exempt documents “normally privileged in the civil discovery context.” Sears, 421 U.S. at 149; see also Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). Exemption 5 thus “incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant”-including, as relevant here, “the deliberative process privilege.” Brown v. Dep't of State, 317 F.Supp.3d 370, 375 (D.D.C. 2018) (quoting Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (internal quotation mark and citation omitted)); see also Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006).

         The deliberative process privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Loving, 550 F.3d at 38 (quoting U.S. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)). It aims to “prevent injury to the quality of agency decisions, ” Sears, 421 U.S. at 151, and “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, ” Klamath Water Users Protective Ass'n, 532 U.S. at 8-9. The privilege thus balances the merits of transparency against the concern that agencies will be “forced to operate in a fishbowl.” Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).

         For the deliberative process privilege to apply, the record must “bear on the formulation or exercise of agency policy-oriented judgment.” Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). To qualify, the record at issue must be both predecisional and deliberative. See Prop. of the People, 330 F.Supp.3d at 382. To be predecisional, a record must be antecedent to the adoption of an agency policy. See Access Reports v. U.S. Dep't of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). Although “the term ‘deliberative' does not add a great deal of substance to the term ‘pre-decisional, '” it essentially means “that the communication is intended to facilitate or assist development of the agency's final position on the relevant issue.” Nat'l Sec. Archive v. Cent. Intelligence Agency, 752 F.3d 460, 463 (D.C. Cir. 2014).

         Moreover, the agency bears the burden of showing that the privilege properly applies. See Dillon v. U.S. Dep't of Justice, No. 17-1716, 2019 WL 249580, at *8 (D.D.C. Jan 17, 2019) (citing Prop. of the People, 330 F.Supp.3d at 380). In order to meet its burden, the agency must offer a “relatively detailed justification” of its application of the privilege. 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)). “An agency may rely on detailed affidavits, declarations, a Vaughn index, in camera review, or a combination of these tools.” Elec. Frontier Found. v. U.S. Dep't of Justice, 57 F.Supp.3d 54, 59 (D.D.C. 2014) (quoting Comptel v. Fed. Commc'n Comm'n, 910 F.Supp.2d 100, 111 (D.D.C. 2012)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Dillon, 2019 WL 249580, at *8 (quoting Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (internal quotation marks and citation omitted)).

         2. Defendant's Claims of Deliberative Process Privilege

         At issue here are five documents, OASD-HA Policy 28-35, 659, 758-59, 761-62, and 765-66, for which Defendant OASD-HA Policy did not previously provide “sufficiently detailed justifications” for its application of FOIA exemptions. Bloche II, 370 F.Supp.3d at 53. As this Court previously explained, the contested documents fall into two categories: first, agency policy documents and associated discussions and, second, possible communications with outside entities. Id. at 51. “[B]oth of these categories of documents fall within the scope of the deliberative process privilege-as long as each particular privilege claim is properly supported by the ‘relatively detailed justification' that FOIA requires.” Id. (quoting Mead Data Cent., Inc., 566 F.2d at 251). For the following reasons, OASD-HA Policy has now adequately justified its privilege claim for almost all of the challenged OASD-HA Policy documents, but it has not established that the privilege properly applies to OASD HA Policy 28-35.

         a. OASD HA Policy 28-35

         OASD HA Policy 28-35 is an email chain from 2008 along with an attached information memo (“info memo”) discussing proposed amendments to DOD detainee healthcare policies. Second Herrington Decl. ¶ 8; see also Defs.' Mem. P. & A. Supporting Renewed Mot. 12-13. The info memo discusses proposed amendments to DoDI 2310.08E and 2310.01E that were offered by a representative from the group Physicians for Human Rights (“PHR”). Second Herrington Decl. ¶ 8. PHR's specific proposed text is appended to the info memo produced by the agency. Id. PHR submitted this material in response to the Assistant Secretary of Defense for Health Affair's (“ASD(HA)'s”) desire for input regarding a potential amendment to these policies. Id. Exemption 5 was not applied to the email chain, but the attached info memo and proposed amendments offered by PHR are withheld in full under Exemption 5's deliberative process privilege. Id. Defendants justify this withholding as authorized by the “consultant corollary” exception to Exemption 5's general rule that a record must be an “interagency or intra-agency communication, ” 5 U.S.C. § 552(b)(5), to qualify as privileged. Defs.' Mem. P. & A. Supporting Renewed Mot. 13-14. Under the consultant corollary, “records of communications between an agency and outside consultants qualify as ‘intra-agency' for purposes of Exemption 5 if they have been ‘created for the purpose of aiding the agency's deliberative process.'” 100Reporters LLC v. U.S. Dep't of Justice, 248 F.Supp.3d 115, 146 (D.D.C. 2017) (quoting Pub. Citizen v. U.S. Dep't of Justice, 111 F.3d 168, 170 (D.C. Cir. 1997) (emphasis in original)); see also Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mex., 740 F.3d 195, 201 (D.C. Cir. 2014) (“This Court has also interpreted the phrase ‘intra-agency' in Exemption 5 to go beyond the text and include U.S. agency records authored by non-agency entities if those records were solicited by a U.S. agency in the course of its deliberative process.” (citing McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331, 336 (D.C. Cir. 2011)). Defendants offer that this is just such a communication: “PHR's proposed amendments and the subsequent ‘info memo' summarizing PHR's proposals were created to aid the ASD(HA)'s deliberations regarding possible amendment of the detainee healthcare policies and not to solicit a benefit at the expense of a competitor.” Defs.' Mem. P. & A. Supporting Renewed Mot. 14.

         In challenging this withholding, Plaintiffs primarily contest the vagueness of OASD-HA Policy's description of the document and the attachments. See, e.g., Pls.' Mem. P. & A. Opp'n Defs.' Renewed Mot. Partial Summ. J. (“Pls.' Mem. P. & A. Opp'n”) 15 (“Even if one assumes (as Defendants imply but do not make clear) that the attached memo to the email chain contains not just PHR recommendations but comments by DoD personnel on the amendments, Defendants still have not explained how disclosure would inhibit full and frank exchange of views.”). Plaintiffs also suggest that this communication was not predecisional because the policies were issued in 2006, yet the dialogue regarding proposed amendments occurred in 2008, such that the document was not “generated before the adoption of an agency policy” in the way that the deliberative process privilege requires. Pls.' Mem. P. & A. Opp'n 14 (quoting Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980)).

         Neither party's argument is entirely persuasive. In contesting the predecisional status of the document, Plaintiffs misconstrue the relevant policymaking timeline. Here, as Defendants note, the policy deliberations concerned whether to amend the policy in 2008. An agency may deliberate about potential changes to a policy before concluding that there should be no amendment, and the privilege may still apply so long as the agency establishes the role that the documents at issue played in the deliberative process. Accord Nat'l Sec. Archive v. Cent. Intelligence Agency, 752 F.3d 460, 463 (D.C. Cir. 2014) (“There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still pre-decisional and deliberative.”). Because OASD-HA Policy's supplemental declaration specifies how opinions were generated in deliberation about a specific policy proposal that predated a final policy determination, it establishes that the document was part of a policy-oriented decisionmaking process in the manner required to invoke Exemption 5.

         That said, without more clarity about PHR's relationship to the agency in generating the material, this Court cannot determine the propriety of applying the deliberative process privilege-which, again, only applies to “inter-agency or intra-agency” documents. 5 U.S.C. § 552(b)(5). The problem is that OASD-HA Policy has not provided enough explanation about its relationship with PHR, a non-agency actor, for the Court to assess whether OASD-HA Policy may properly rely on the “consultant corollary” exception to Exemption 5. It is true, as Defendants point out, that the involvement of an entity outside of the agency in generating a document does not necessarily bar the application of the privilege. See Defs.' Mem. P. & A. Supporting Renewed Mot. 14. But there are limitations on when an agency can rely on this exception. Critically, an agency can invoke the consultant corollary only if the “outside consultant did not have its own interests in mind.” Pub. Emps. for Envtl. Responsibility, 740 F.3d at 201-02. Here, the agency received PHR's proposal after the ASD(HA) “asked his staff to meet with th[e] [PHR] representative to get their views for his consideration.” Second Herrington Decl. ¶ 8. Without more detail that OASD-HA Policy fails to provide, this statement does not discharge OASD-HA Policy's burden to establish that the PHR “consultant function[ed] just as an [agency] employee would be expected to do”-and not as an advocate representing “an interest of its own, or the interests or any other client, when it advise[d] the agency.” McKinley, 647 F.3d at 336 (quoting Klamath Water Users Protective Ass'n, 532 U.S. at 12). In fact, Plaintiffs characterize PHR's recommendations not as a neutral proposal, but rather as a “proposal from a human rights group, ” Pls.' Mem. P. & A. Opp'n 15, that would ostensibly represent its own interests in providing such a proposal. In some respects, the relationship sounds more like an interested advocacy group commenting on a proposed agency policy (as happens routinely during proposed rulemaking) than it does an agency consultant providing internal advice. Thus, until the agency clarifies the context in which PHR was asked to provide this information and the relationship between the organization and the agency in the delivery of advice, Defendants' justification is insufficient to demonstrate “that any exemptions claimed actually apply.” Prop. of the People, Inc., 330 F.Supp.3d at 380 (quoting Competitive Enter. Inst., 232 F.Supp.3d at 181).

         b. OASD-HA Policy 659

         OASD 659 is an undated single page of handwritten notes by an unknown author that was located alongside a draft investigation report with the title, “Medical Issues Relevant to Interrogation and Detention Operations.” Second Herrington Decl. ¶ 9. The agency withheld the draft investigation report, OASD-HA Policy 660-690, in full under Exemption 5, and this Court previously found the draft to be privileged. Id.; see Bloche II, 370 F.Supp.3d at 53-54 (finding it “clear that the draft was part of a policy-oriented decisionmaking process, ” such that it was privileged). Defendants equate the handwritten notes to marginal comments in a draft document that were “presumably either helping to edit the draft or writing down excerpts from the report to participate in further deliberations.” Second Herrington Decl. ¶ 9. Plaintiffs contest this designation, arguing that that the agency's withholding of the document is unjustified because OASD-HA cannot specify whether the notes were editorial comments or excerpts from the report, such that the agency has not indicated the document's role in the deliberative process. Pls.' Mem. P. & A. Opp'n 16. This argument about the function of the notes, however, is wrong-headed. Regardless of whether the notes were created to edit the draft or to participate in further deliberations about the draft, the agency's declaration attesting that the notes reference particular pages of the draft, see Second Herrington Decl. ¶ 8, and the Court's in camera review of the notes establish that they are the opinions of the writer regarding particular pages of the draft. As such, OASD-HA Policy has amply specified the notes' relationship to the draft and, by extension, how they contributed to a drafting “process by which governmental decisions and policies are formulated.” Loving, 550 F.3d at 38 (quoting Klamath Water Users Protective Ass'n, 532 U.S. at 8). Given that the draft is properly withheld in full pursuant to Exemption 5, it is logical that the notes are also properly withheld pursuant to that same privilege claim. Thus, the agency has adequately justified its application of the privilege here.

         c. OASD-HA Policy 758-59, 761-62, and 765-66

         Plaintiffs' final deliberative process challenge concerns OASD-HA Policy 758-59, 761-62, and 765-66, which involve the same policy proposal and associated agency communications. Defendants' supplemental declaration provides specificity about the documents that was lacking in its prior submissions. See Bloche II, 370 F.Supp.3d at 54. OASD-HA Policy 765-66 is a “request from the Army” seeking approval from the ASD(HA) “regarding the Army's proposed plan for handling a personnel matter under the provisions of DoDI 2310.08E, ” including “the Army's rationale for approving the request.” Second Herrington Decl. ¶ 11. OASD-HA Policy 758-59 and 761-62 are email communications concerning the Army's Request. Id. ¶ 10. OASD- HA Policy 761-62 consists of the ASD(HA) military assistant's email seeking “a recommendation from Health Affairs staff members on whether to grant” the Army's request, and OASD-HA Policy 758-59 is the reply email that contains the recommendation provided by these staff members. Id. Plaintiffs contend that this additional detail is not enough, contesting the use of the term “personnel-related matter” as “an extraordinarily vague and broad term that provides no specificity about the nature of the matter or how it related to decision-making policy.” Pls.' Mem. P. & A. Opp'n 16-17.

         Although the Court agrees that “personnel-related matter” is an imprecise designation in the abstract, when the phrase is read in context, the agency has provided additional specificity and related the matter to a particular deliberative process. The declaration provided gives enough detail for the Court to draw the conclusion that the “personnel-related matter arose under the provisions of DoD's detainee healthcare policy - DoDI 2310.08E - and stems from a request from the Army seeking the ASD(HA)'s approval of the Army's proposed plan for handling the matter.” Defs.' Reply Supporting Renewed Mot. Partial Summ. J. 8 (citing Second Herrington Decl. ¶¶ 10-11). Because these communications were antecedent to any policy decision by ASD(HA) and written by individuals without decision-making authority, and because they operated to “facilitate or assist development of the agency's final position on the relevant issue, ” Nat'l Sec. Archive, 752 F.3d at 463, OASD-HA Policy has shown that the emails in OASD-HA Policy 758-59 and 761-62 qualify for the privilege. Moreover, the agency's supplemental discussion establishes that OASD-HA Policy 765-66, the text of the Army's initial request, also qualifies. This text contains “the Army's rationale” and “proposed plan” and is thus precisely the sort of document “seek[ing] a decision” that Exemption 5 protects in order to encourage uninhibited inter-agency dialogue. Second Herrington Decl. ¶ 11.

         d. Segregability

         Before approving the agency's invocation of the privilege with respect to OASD-HA Policy OASD-HA Policy 659, 758-59, 761-62, and 765-66, however, this Court must also “make specific findings of segregability regarding the documents to be withheld.”[8] Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citations omitted); see also 5 U.S.C. § 552(b). This analysis is especially critical for the deliberative process privilege, which “does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must.” Loving, 550 F.3d at 38 (citation omitted). The agency may meet its segregability burden with a combination of a Vaughn Index and an affidavit or declaration establishing with “reasonably specificity” that it released all segregable material. See Bloche II, 370 F.Supp.3d at 55 (citing Johnson v. Exec. Office of U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)).

         Here, as described above, OASD-HA Policy has provided supplementary material in the form of a declaration that details the agency's withholdings. The agency has further averred that it conducted a “line-by-line review of OASD-HA Policy's records” and determined that it “released all reasonably segregable information.” Second Herrington Decl. at ¶ 12. Plaintiffs contend that this statement is not enough, arguing that the withholding of draft documents in full suggests that OASD-HA Policy did not release non-exempt, factual information. Pls.' Mem. P. & A. Opp'n at 17-18. But this bare allegation does not overcome the “presumption” that the agency “complied with the obligation to disclose reasonably segregable material.” Sussman, 494 F.3d at 1117 (citing Boyd v. U.S. Marshalls Serv., 475 F.3d 381, 391 (D.C. Cir. 2007)). Nor do Plaintiffs provide any evidence of an “alleged Government impropriety” that might overcome this presumption. Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Thus, the supplemental materials submitted discharge the agency's obligation, and the agency may withhold OASD-HA Policy 695, 758-59, 761-62, and 765-66 pursuant to Exemption 5's deliberative process privilege.[9]

         B. Defendant Navy

         The sole remaining issue in Defendants' renewed motion for summary judgment is Defendant Navy's application of Exemption 7(E) to withhold information in two documents, Navy 35 and Navy 38. See Defs.' Mem. P. & A. Supporting Renewed Mot. 5-7. Both of these documents “pertain to detainee interrogation operations at the United States Naval Base, Guantanamo Bay, Cuba.” Id. at 7 (citing id. Ex. B, Declaration of Lieutenant Peter Tyson Marx, JAGC, USN (“Marx Decl.”) ¶ 7a-b, ECF No. 110-3). For the reasons forth below, Navy has justified its invocation of Exemption 7(E) for the withheld portions of Navy 35 and Navy 38.

         1. Exemption 7(E)

         FOIA Exemption 7(E) permits an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). An agency seeking to apply Exemption 7(E) must, accordingly, make two showings. First, to demonstrate that the “records or information” were “compiled for law enforcement purposes, ” id., the agency must establish both “a rational nexus between the investigation and one of the agency's law enforcement duties” and a “connection between an individual or incident and a possible security risk or violation of federal law, ” Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 40 (D.C. Cir. 2011) (quoting Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). Second, Exemption 7(E) requires the agency to “demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. U.S. Dep't of Justice, 943 F.2d 248, 251 (D.C. Cir. 1993). These requirements must be met in a nonconclusory fashion, yet there is a “relatively low bar for the agency to justify withholding.” Blackwell, 646 F.3d at 42.

         2. Defendant's Application of Exemption 7(E)

         a. Navy 35 and Navy 38

         Navy 35 is a six-page memorandum dated January 31, 2001, from the Naval Criminal Investigative Service (“NCIS”) Director to the Navy General Counsel that was “attached to a one-page memorandum from the Navy General Counsel to the Assistant Secretary of Defense (Special Operations & Low Intensity Conflict) dated February 4, 2003, with the subject line ‘Proposed Alternative Approach to Interrogations.'” Marx Decl. ¶ 7a. This one-page memorandum has been released in full to Plaintiffs, id., and only the redactions in the six-page memorandum itself are presently contested.

         Navy 38 is an eighteen-page document that partially overlaps with the material contained in Navy 35. See Marx Decl. ¶ 7b. Specifically, Navy 38 consists of the same one-page “Proposed Alternative Approach to Interrogations” memorandum and the same six-page memorandum contained in Navy 35. Id. Navy 38 additionally includes an eleven-page appendix entitled “Special Recommendations for Interrogators of Al-Qa'ida Detainees at Guantanamo Bay, Cuba.” Id. This appendix is partially withheld under Exemption 7(E). Id. ¶ 7b(2).

         Navy offers that the information contained in both Navy 35 and Navy 38 “readily meets the threshold requirement of Exemption 7”-that the materials were “compiled for law enforcement purposes, ” 5 U.S.C. § 553(b)(7)(E)-because it was “compiled to assist” NCIS “agents and other law enforcement personnel carry out their investigatory mission.” Marx Decl. ¶ 7b(1). Navy further states that disclosure of the redacted portions of the six-page memorandum appearing in both Navy 35 and Navy 38 would reveal “psychological and strategic approaches to interviewing detainees that are not generally known to the public.” Id. ¶ 7b(2). The agency paints a dim picture of public disclosure, warning that the information, if revealed, “could reasonably be expected to risk circumvention of the law because current and future military detainees could use the information to evade interrogation, ” thereby “significantly lower[ing] the effectiveness of these interviewing techniques” in ways that “could lead to unreliable information being obtained from interview subjects” in the future. Id. The agency offers additional discussion of the withheld information in Navy 38, which consists of “detailed psychological strategies and techniques designed to build rapport with Al Qa'ida detainees . . . that are not generally known to the public, ” and the release of which the agency warns could compromise future interrogations “because current and future military detainees could use the information to evade interrogation.” Id. ¶ 7b(3). For this document, Navy also offers further specification, noting that the document contains “details” concerning personnel, timing, the “reliability of certain kinds of information, ” and “psychological and physical indicators” for the interviewer to note. Id.

         Plaintiffs make three arguments concerning the agency's application of 7(E). First, Plaintiffs question “what law enforcement purpose is involved.” Pls.' Mem. P. & A. Opp'n 10. Second, Plaintiffs contend that Navy has not established “exactly what laws would purportedly be circumvented” if the psychological techniques and strategies discussed in the withheld portions of the documents were released. Id. Finally, Plaintiffs contend that Navy's asserted harms are baseless because “some (if not all) of the[] techniques have either been changed or rendered unlawful” in the “intervening years, ” such that public disclosure of the techniques cannot lead to a present-day risk of circumvention. Id.

         Based on the supplementary declaration and in camera review of the agency's withholdings, Navy has the better argument on all three fronts. For one, the agency has cleared Exemption 7(E)'s threshold requirement. NCIS, which is located within the Department of the Navy, is “the civilian federal law enforcement agency uniquely responsible for investigating felony crime, preventing terrorism, and protecting secrets” for the U.S. Navy and U.S. Marine Corps. Marx Decl. ¶ 7b(1). NCIS is tasked with a “counterterrorism mission” and “is responsible for detecting, deterring, and disrupting terrorism worldwide through a wide array of investigative and operational capabilities.” Id. As part of this mission, the agency has operated alongside “other law enforcement agencies” to “engage[] in investigatory activities related to the September 11, 2001, terrorist attacks, and the individuals detained at the United States Naval Base at Guantanamo Bay, Cuba.” Id. As Defendants argue, the NCIS mission centers on matters of counterterrorism and national security, which courts in this Circuit have found to fall within “the realm of law enforcement purposes sufficient to justify withholding based on Exemption 7.” See Defs.' Mem. P. & A. Supporting Renewed Mot. (citing Am. Civil Liberties Union of S. Cal. v. U.S. Citizenship & Immigration Servs., 133 F.Supp.3d 234, 242 (D.D.C. 2015) (citations omitted)); see also Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 862 (D.C. Cir. 1989) (reading the term “law enforcement” as “encompassing the enforcement of national security laws as well”); Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982) (concluding that there must be a connection between the “activities that give rise to the documents sought” and “enforcement of federal laws or . . . the maintenance of national security”).

         This description establishes an adequate connection between the records at issue and NCIS's law enforcement duties. See Blackwell, 646 F.3d at 40 (quoting Campbell, 164 F.3d at 32). Logically, NCIS cannot carry out its law enforcement function with respect to the investigation of individuals detained at the Naval Base in Guantanamo Bay, Cuba, Marx Decl. ¶ 7b(1), without an established approach to interrogation. Based on the titles of the materials and the agency's discussion of them, the documents were drafted to reevaluate the agency's approach to interrogation. Thus, so long as NCIS compiled materials for law enforcement purposes and satisfies the second prong of Exemption 7(E)-discussed next-it may invoke the exemption.

         Although 7(E) sets a low bar, clearing it nonetheless requires more than merely restating the relevant legal standard. Navy's declaration clears the bar for Navy 38: the Marx Declaration provides particularized details concerning aspects of the withheld eleven-page memorandum, such as details regarding “timing of demands” and “physical and psychological indicators, ” disclosure of which it asserts could “reasonably be expected to risk circumvention of the law because current and future military detainees could use the information to evade interrogation.” Id. at ¶ 7b(3). Contrary to Plaintiffs' argument, the law does not demand that Defendants identify a particular law that would be evaded; rather, FOIA asks only that the agency “demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP, 562 F.3d at 1194 (alterations omitted)). The justification provided for Navy 38 establishes a logical chain that connects the information in the documents, in sufficient detail, to make this demonstration with regard to the eleven-page appendix. But the agency's justification falls below even the low bar of 7(E) for the six-page memorandum that appears in both Navy 35 and Navy 38. All that Navy offers is a permutation of the legal standard, made without particularity: the threat that the public release of the document would compromise the effectiveness of the interrogation techniques at issue. See Marx Decl. ¶¶ 7b(2)-(3). What Navy has failed to provide in its supplemental filings are adequate details (of the sort it offered for Navy 38) about what kinds of information the document contains. As such, it has not specified in a nonconclusory way how release of the information “could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).

         That said, an assertion made by a law enforcement agency invoking Exemption 7(E) is entitled to deference, see Campbell, 164 F.3d at 32, and the Court's in camera review of the document indicates that the partial redaction is appropriate in order for Navy to shield particular details of its interrogation strategy. Plaintiffs' third argument concerning timing does not change this conclusion. As Defendants note, the Marx Declaration refers to a risk of evasion for “current and future military detainees” and the potential impact on “future investigations and interviews.” Defs.' Reply Supporting Renewed Mot. 4 (citing Marx Decl. ¶¶ 7b(2)-(3)). Plaintiffs have not pointed to any reason to discredit this statement. Taking this sworn declaration at its word, it appears that the techniques are in fact still in use, and Plaintiffs' contention is unavailing. Thus, Navy may withhold in part Navy 35 and Navy 38 pursuant to FOIA Exemption 7(E).[10]


         As previously stated, also before the Court are cross-motions for summary judgment involving a different set of Defendant agencies-Army, SOCOM, DIA, CENTCOM, and JTF-GTMO-and Plaintiffs' challenge to these agencies' application of FOIA exemptions. See ECF Nos. 96, 97. Sixty nine of the seventy-eight documents contested at this juncture involve Defendant Army. See Pls.' Reply Ex. 1, Updated History of Disputed Docs, ECF No. 101-1.[11]Army invokes various combinations of deliberative process, attorney-client, and attorney work product privilege pursuant to FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), to withhold sixty-nine documents in part or in full, [12] see Pls.' Reply Ex. 1, Updated History of Disputed Docs. 2- 5. The Court begins with the challenges to Army's documents before addressing the exemptions applied by the other four Defendant agencies. For the reasons set forth below, only Defendant CENTCOM has provided sufficient justification for all of the claimed exemptions.

         A. ...

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