Rosenberg v. DOD, No. 17-00437, 2018 WL 4637363 (D.D.C. Sept. 27, 2018) (Mehta, J.)

Rosenberg v. DOD, No. 17-00437, 2018 WL 4637363 (D.D.C. Sept. 27, 2018) (Mehta, J.)

Re:  Request for emails to senior DOD officials sent by retired Marine Corps General John F. Kelly relating to Joint Task Force Guantánamo

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

• Exemption 5, Deliberative Process Privilege:  The court relates that "Plaintiffs' primary challenge to DOD's Exemption 5 withholdings relates to the FOIA Improvement Act's codification of the 'foreseeable harm' standard."  "Because Defendant has failed to satisfactorily show that the categories of information withheld under Exemption 5 would result in reasonably foreseeable harm to its deliberative process, the court denies Defendant's motion as to this exemption."  "[T]he court does not read the statutory 'foreseeable harm' requirement to go so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings."  "A categorical approach will do."  "But the court agrees with Plaintiffs that the government must do more than perfunctorily state that disclosure of all the withheld information – regardless of category or substance – 'would jeopardize the free exchange of information between senior leaders within and outside of the [DOD][.]'"  Additionally, in light of "inconsistent redactions across these records," "the court will give the government a subsequent opportunity to explain why the records fall within Exemption 5's ambit in its supplemental declaration."
   

• Exemption 1:  First, "[t]he court declines Plaintiffs' invitation to second guess the government's judgment that releasing information about detainee conduct within JTF-GTMO would imperil the national security."  "The agency's declaration . . . 'offer[s] the "little proof or explanation" necessary to show that, if released,' the withheld information '"reasonably could be expected to result in damage to the national security."'"  Second, "[t]he court easily rejects Plaintiffs' related assertion that the release of similar information to that withheld here somehow lessens the risk of harm to the national security resulting from disclosure of information relating to detainee health and the controversial enteral feeding program."  "'[T]he fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods and operations.'"  Also, the court finds that "Plaintiffs fail to show that any of the information identified has been disclosed in a manner that allows them to overcome the agency's invocation of Exemption 1."  Third, "the court cannot discern, even affording due deference to the agency on national security matters as required, a logical connection between the disclosure of detainees' reactions to transfer orders and a risk to the national security."  Fourth, the court finds that "the agency has satisfactorily shown that disclosure of . . . information about the composition of the guard force and interactions between guards and detainees . . . reasonably could be expected to 'provide those who seek to harm the United States with critical information regarding our operations, our policies – and how they change dependent on certain factors – and our vulnerabilities.'"  Fifth, the court finds that release of information which "'describ[es] detainees' health, behavior, and conditions in the context of these proceedings; logistical and operational issues related to the detainees and the facilities; and operational responses to proceedings and orders that touch on classified subject matter[,]'" "could 'permit[ ] the details of [the detainees'] detention to become widely known to hostile forces abroad that are still engaged with deployed forces.'"  Sixth, the court finds that "[m]erely identifying information as 'discussions of congressional matters related to JTF-GTMO operations' and asserting that its disclosure would harm the national security is inadequate, even under Exemption 1."  Seventh, the court finds that "[t]he agency's declaration fails to show that the redacted information in Record 273 was provided to the United States explicitly 'to be held in confidence.'"  "It is no doubt formalistic to require the government to confirm a fact that the court might reasonably infer, but the requirements of Exemption 1 are clear."  Eighth, the court finds that "[t]he information about the detention of enemy combatants at JTF-GTMO readily satisfies the 'foreign component' requirement of classifiable 'intelligence.'"  "But without more information, the court cannot conclude that the information withheld involves intelligence 'activities,' 'sources,' or 'methods.'"
   

• Exemption 3:  "On the basis of the agency declaration, the court is satisfied that the information was properly redacted under Exemption 3 and therefore grants summary judgment in favor of Defendant as to these withholdings."  The court relates that "[a]ccording to the agency's declaration, the information redacted from Record 272 is 'withheld under the specific authority of 10 U.S.C. § 130b,' . . . which authorizes the withholding from disclosure to the public 'personally identifying information regarding . . . any member of the armed forces assigned to an overseas unit, a sensitive unit, or a routinely deployable unit[.]'"  "Specifically, the redacted information in Record 272 'specifically identif[ies] the names, office affiliations, contact information, and titles of covered personnel that are assigned to routinely deployable units.'"
   

• Exemption 6:  "The court . . . grants summary judgment in favor of DOD as to its Exemption 6 withholdings."  First, "[t]he court . . . agrees with DOD that disclosing information about personnel actions taken by DOD as to the individual targeted by those actions would constitute an unwarranted invasion of the employee's personal privacy."  Also, the court finds that "Plaintiff has not shown that disclosure of this information would actually shed light on those unrelated issues; therefore, any general interest in learning more about the manner in which personnel actions are 'handled' at JTF-GTMO does not overcome the privacy interest in the nondisclosure of information kept in an employee's personnel file."  Second, "the court agrees with Defendant that the public availability of certain detainee information – here, the detainee numbers of two detainees, detainee numbers from 2002 through 2006, and a chart tracking detainee weight during hunger strikes – does not lessen the privacy interest of the detainees as to the more general medical information withheld here, nor mandate its disclosure."  "The court recognizes that there is significant public interest in the withheld information, as disclosure of the information could assist the public in learning more about the government's treatment and care of detainees at JTF-GTMO."  "Although it is a close call, on balance, the court concludes that the public's general interest in obtaining information about the treatment of JTF-GTMO detainees does not outweigh the substantial privacy interests of the detainees in nondisclosure of their personally identifying information."
   

• Exemption 7(E):  "The court . . . grants summary judgment in favor of Defendant as to its Exemption 7(E) withholdings."  The court finds that "the information withheld . . . details the manner in which guards are to engage in the 'inherently contentious and confrontational process of enteral feeding' of JTF-GTMO detainees."  "[T]he information redacted . . . falls within Exemption 7(E)'s ambit because its disclosure would raise significant security concerns for those guards implementing the enteral feeding procedures, thus rendering the 'law enforcement techniques and procedures' and 'guidelines' spelled out in the document ineffective."
   

• Litigation Considerations, "Reasonably Segregable" Requirements:  "The court is satisfied that the agency has complied with its segregability responsibility[.]"  "The agency's declaration affirms that the pages produced to Plaintiffs 'were reviewed line-by-line to identify information exempt from disclosure for which a discretionary waiver of exemption could be applied.'"