Nat’l Pub. Radio v. U.S. Cent. Command, No. 23-55062, 2024 WL 3066048 (9th Cir. June 20, 2024) (per curiam)

Nat’l Pub. Radio v. U.S. Cent. Command, No. 23-55062, 2024 WL 3066048 (9th Cir. June 20, 2024) (per curiam)

Re:  Request for records concerning 2004 friendly-fire incident during Iraq War that resulted in death of two Marines and an Iraqi civilian interpreter, as well as numerous casualties

Disposition:  Reversing in part and affirming in part district court’s grant of government’s motion for summary judgment

• Litigation Considerations, Adequacy of Search; Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the Ninth Circuit holds that “[the United States Central Command (“CENTCOM”)] provided reasonably detailed, nonconclusory declarations . . . , which we presume to be in good faith.”  “These declarations stated that the Secret Internet Protocol Router Network (‘SIPR’) Content Manager (‘CM’) was the location where responsive records were most likely to be found, and that ‘[t]here are no other databases which would likely contain responsive records.’”  “CENTCOM’s search of SIPR resulted in release of the 85-page report of the Judge Advocate General (‘JAG’) (‘JAGMAN Report’).”  “However, the record contains ‘positive indications of overlooked materials,’ and the JAGMAN Report indicates that a search of another record system might uncover documents sought.”  “Here, [the requester] points to types of documents that were likely created to investigate one of the worst friendly-fire incidents in Marine Corps’ modern history.”  “Given the evidence in the record of overlooked materials, [CENTCOM’s] statement that SIPR CM ‘is the location responsive records from Iraq during the time period requested would most likely be’ leaves substantial doubt as to the adequacy of CENTCOM’s search.”  However, the court finds that “[the requester] has not shown that CENTCOM was required to search physical locations or records from the U.S. Marine Corps Forces, Central Command (‘MARCENT’).”  “[CENTCOM’s] Declarations explain that CENTCOM does not maintain service component records (such as MARCENT) unless they are joint records stored on SIPR CM.”  “[The requester] did not produce any evidence that CENTCOM otherwise has possession or control of MARCENT records, and therefore they are not ‘agency records’ within the meaning of FOIA.”  “Similarly, [the requester] has not raised substantial doubt as to CENTCOM’s obligation to search physical locations.”  “[The requester] has not presented any information that undermines the statements made in [CENTCOM’s] Declarations that all responsive records were digitized.”  “Because the record raises substantial doubt as to the adequacy of CENTCOM’s search as it relates to NIPR, the district court erred in granting summary judgment.”  “Therefore, [the court reverses] the district court’s grant of summary judgment to the extent it found [CENTCOM] was not required to perform additional searches or search NIPR.”  “[The court affirms] the district court’s grant of summary judgment as it relates to physical locations and MARCENT records.”
  
  Circuit Judge Ikuta writes separately to dissent in part.  Judge Ikuta states that “[t]he majority primarily relies on a declaration . . . , which states that ‘[w]hen a Marine is killed or injured during an operation’ documents such as the PCRs, SIRs and condolence records are sent by email on NIPR.”  “But [CENTCOM’s] declarations clarify that CENTCOM did not start preserving email communications from high ranking personnel until 2011 to 2012, and emails from lower ranking personnel were destroyed after 10 years.”  “Therefore, any search of NIPR for emails relating to the 2004 incident would have been futile.”  “The majority also relies on a 2017 U.S. Marine Corps Forces, Central Command (MARCENT) declaration which states that MARCENT searched for documents transmitted via ‘shared drives’ and ‘portals’ of NIPR.”  “But there is no evidence in the record that CENTCOM transmitted documents via shared drives or portals in NIPR in 2004, or that any documents might now be found there.”  “Finally, [the requester] has not presented any information indicating that a 2004 Central Joint Task Force-7 report could be found on NIPR, and has not raised a genuine dispute about [CENTCOM’s] good faith declaration that there are no places other than SIPR that are likely to contain responsive records.”