Osen LLC v. U.S. Cent. Command, No. 17-4457, 2019 WL 1315937 (S.D.N.Y. Mar. 22, 2019) (Failla, J.)

Osen LLC v. U.S. Cent. Command, No. 17-4457, 2019 WL 1315937 (S.D.N.Y. Mar. 22, 2019) (Failla, J.)

Re:  Request for records concerning attacks on American service members in Iraq from 2004 to 2011

Disposition:  Granting in part any denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 1:  "[T]he Court agrees with Plaintiff that the material already disclosed constitutes a waiver of Exemption 1 by official disclosure."  "Nowhere in its briefing does CENTCOM dispute that a large number of [previous] disclosures contain information on [Explosively Formed Penetrators ("EFP")] size." "In the absence of further explanation for why these redactions are substantively different than the material already disclosed, the Court determines that CENTCOM has officially disclosed the material on EFP size."  The court notes that "[t]he EFP size revealed in the majority of pages through official FOIA disclosures is 'as specific' as the prior disclosures."  "However, the Court does not find that prior disclosures of information regarding EFPs require the disclosure of the photographs of EFP strikes that Plaintiff has requested here."  The court explains that, "[w]hile CENTCOM has certainly revealed the general risks of EFPs, this general disclosure does not overcome Defendant's argument the photographs' level of detail and specificity would reveal new and unexpected weaknesses to adversaries."  "The Court does not find the limited disclosures of photographs of singular instances of EFP strikes in earlier productions to separate FOIA requesters to require their disclosure to [plaintiff] in this case."  "The Court also does not find that disclosure of singular set of photographs requires the disclosure of the broader category of images that Plaintiff requests."  However, the court relates that "CENTCOM does not dispute that [U.S. Army Central ("ARCENT")] has disclosed EFP strike photographs."  Instead, "Defendant argues that ARCENT did not consult with CENTCOM, and CENTCOM would have objected to the level of ARCENT's disclosures."  The court finds that "[w]hile CENTCOM and ARCENT contain separate FOIA staffs, neither is an independent agency."  "Both are DoD components."  "The Court holds that a waiver of an exemption by ARCENT applies to other components of DoD, including CENTCOM."
   
• Exemption 6:  "The Court does not find the public interest would be served by disclosure here, and the privacy interests of the redacted individuals outweigh any claim regarding public interests."  "The Court finds that the remaining redactions of personally identifying information are exempt from disclosure under Exemption 6."  The court relates that defendant withheld "'names and/or other identifying information of third-party individuals, nearly all (if not all) of whom are foreign nationals, who: (i) were captured on the battlefield; (ii) were interrogated in connection with investigations into particular EFP attacks; (iii) were suspected of involvement in particular EFP attacks; and/or (iv) provided information to U.S. government operatives.'"  "The Court determines that the individuals whose identifying information has been redacted have a privacy interest in that information."  "The Court does not find that prior disclosures of names of individuals linked to attacks in Iraq require disclosure of the redacted individuals' names."  "The mere assertion that existing lists of individuals may overlap with the redacted individuals does not demonstrate that CENTCOM has disclosed any names that remain redacted."  "The Court also does not find that disclosure of these names would serve the public interest by advancing 'the core purpose of the FOIA.'"  "The names here may provide additional material connecting Iran to attacks on American soldiers, but it is not clear how the material would add to public understanding of how CENTCOM operates."
   
• Procedural Requirements, Consultations and Referrals:  The court holds that defendant properly referred certain records.  "The Court sees no grounds to conclude that CENTCOM has improperly withheld any relevant documents, rather than merely relying on the 'the agency that originated the record' to make the appropriate determination."