Wash. Post Co. v. Special Inspector Gen. for Afg. Reconstr., No. 18-2622, 2020 WL 5530308 (D.D.C. Sept. 15, 2020) (Berman Jackson, J.)

Wash. Post Co. v. Special Inspector Gen. for Afg. Reconstr., No. 18-2622, 2020 WL 5530308 (D.D.C. Sept. 15, 2020) (Berman Jackson, J.)

Re:  Request for "'full, unedited transcripts and complete audio recordings of all interviews conducted for the [Special Inspector General for Afghanistan Reconstruction ("SIGAR")] Lessons Learned program'"

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

• Litigation Considerations, Standing:  The court holds that "[t]he record fully supports a finding that the FOIA request was made on behalf of The Washington Post."  "The FOIA request was sent on company letterhead bearing the company name in its signature font at the top of the page along with its address."  "It is signed [by a] 'Staff writer,' reflecting that he authored the letter in his capacity as a Post employee."  "The body of the letter also indicates that [the staff writer] was acting as an agent of the publication . . . ."  "These records confirm that the initial FOIA request was made on behalf of the Washington Post, and it, therefore, has standing to bring this case."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[b]ecause SIGAR failed to fulfill its obligations under FOIA to inform [plaintiff] of the reasons for its determinations and the grounds for any withholdings, [plaintiff] was not in a position to initiate the administrative appeal that is generally required before a suit can be brought."  "So it would not be appropriate as a jurisprudential matter to deny plaintiff relief on this record; therefore, defendant's motion [for] summary judgment on exhaustion grounds will be denied . . . ."  The court explains that defendant's two email responses "state[] that the agency was continuing to review documents" and "both emails fail to notify [plaintiff] of any right to appeal a determination."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that "SIGAR eventually did produce all relevant documents and, therefore, the allegations in the complaint concerning the timeliness of SIGAR's production are now moot."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "[defendant's] description of the search satisfies the Court that the search was reasonably calculated to uncover all relevant documents."  The court relates that "[defendant] explains that after in-person and electronic discussions with [plaintiff's staff writer] regarding the scope of [plaintiff's] request, [defendant] began working with SIGAR's General Counsel to determine where responsive records were most likely to be located."  "They determined that because the request pertained to the Lessons Learned Program [("LLP")], the responsive records were most likely to be found in LLP's files, which are kept in digital form."  "The Director of LLP then 'instructed his staff . . . to search their digital files for all transcripts, audio recordings, and records of interview [("ROIs")] . . .,' and a search was conducted manually by LLP staff."
   
• Exemption 1:  "[T]he only question left for the Court is whether the declaration and the State Department's Vaughn Index adequately explain why Stein, as the classifier, believes the information withheld could reasonably be expected to result in a specific level of damage to national security."  "Based on a review of these records, the Court concludes that Stein’s explanation is too vague and conclusory to satisfy the test."  "The declaration itself is devoid of reasons for withholding documents under Exemption 1."  "And the State Department's Vaughn Index uses identical boilerplate language to justify each Exemption 1 withholding without addressing the specific harm to national security that would flow from the release of any particular document in whole or in part . . . ."
   
• Exemption 7, Threshold:  "[T]he Court concludes that SIGAR is properly characterized as a law enforcement agency – one that is not only charged with assisting with criminal prosecutions, but also investigating and reporting on maintaining safety and stability in Afghanistan."  "In addition, the Court finds that the Lessons Learned Program, while not necessarily operating in pursuit of a criminal investigation, operates in a manner to help serve the law enforcement goals of the agency as a whole."
   
• Exemption 7(C):  Regarding the privacy interests at stake, "[t]he Court finds that these facts show that the informants [whose names were withheld] not only agreed to be interviewed with the understanding that their identities would be kept private, but that many could face serious consequences if their identities were revealed."  "For these reasons, the Court finds that SIGAR has supported its position that the interviewees have a significant privacy interest in remaining anonymous."  Additionally, "[defendant] has identified the harm that third parties identified in ROIs could plausibly face as a result of being named in the records of a law enforcement agency in Afghanistan, and the Court finds that SIGAR has articulated a substantial privacy interest in keeping their identities private."  Regarding the public interests at stake, the court finds that "[w]hile the requests made to SIGAR directly advanced the right of the public to be informed about what its government is doing overseas, that interest has been largely served by the release of the substantive information contained in the ROIs, and it is not enough to outweigh the privacy interests that led to the limited excision of the names of the interviewees and third parties whose names were mentioned."  However, the court finds that "[i]t is apparent from the material provided to the Court that some of the names were those of public officials, including high ranking public officials, and therefore, it is not clear that the privacy interests outweigh the public interests in every case."  "For these reasons, the agency must supplement its declaration."
  
  Additionally, the court finds that "[w]hile SIGAR has justified its redaction of certain categories of identifying information, it has not provided sufficient information to support its redaction of 'unique interview codes' assigned to informant interviews, the location of informant interviews, or its withholding of eight audio recordings that the agency has purportedly determined would reveal the identities of the informants through their voices."  "SIGAR's reliance on Exemption 7(C) is not supported by the record."  "Similarly, SIGAR has not supported its insistence on withholding the audio recordings in full on the grounds that the Post would be able to identify interviewees by their voices."
   
• Exemption 7(A):  "The Court will . . . grant summary judgment for SIGAR with regard to its invocation of Exemption 7(A)."  The court relates that "[t]he DEA, which was consulted by SIGAR, has invoked Exemption 7(A) to withhold two sentences from ROIs that discuss 'the strategy of the take down of Bashir Noorzai who was prosecuted and sentenced to life in prison for heroin trafficking,' because 'he is linked to multiple DEA active investigations and cases.'"  "The DEA explains that release of the two sentences, 'would cause harm because targets of active investigations could receive investigative details that would either alert them to efforts directed toward them / or would allow them to analyze pertinent information about counternarcotics investigations.'"  "This information could be used to 'escape prosecution and thwart current investigative efforts.'"
   
• Exemption 7(E):  The court holds that "[s]ummary judgment will be granted for defendant on the withholdings under 7(E)."  The court finds that "[e]ach of the appended declarations explains that the agency withheld portions of ROIs that would reveal specific law enforcement strategies."  "Each declaration also includes potential risks the agency could encounter if the information were to be revealed, including security concerns and a decrease in the efficacy of the law enforcement techniques."  "[Plaintiff] does not contest SIGAR's invocation of Exemption 7(E) as to these records, . . . and given the detailed information included in the declarations, the record is clear that the agencies properly redacted the pertinent information pursuant to Exemption 7(E)."
   
• Exemption 7(F):  The court relates that "[a]s with Exemptions 7(A) and 7(E), [plaintiff] does not dispute that this information [the location of sleeping quarters for DEA agents] is exempt from disclosure."  "And [defendant's] declaration, which states that 'violence is inherent in the drug trade, and the release of the identities and/or locations of agents has resulted in physical attacks, threats, harassment, murder, and attempted murder,' particularly 'in a war zone like Afghanistan,' . . . unquestionably supports the agency's invocation of Exemption 7(F) as it raises a reasonable expectation of danger they could face."
   
• Exemption 3:  The court relates that "Defendant has withheld portions of hundreds of documents and eight documents in their entirety based on three federal statutes: 1) section 7(b) of the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3 § 7(b) ('IG Act'), 2) 10 U.S.C. § 130b, and 3) section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1)."  "As an initial matter, the Court finds that all three statutes are properly invoked as exempting statutes under Exemption 3."  First, the court notes that "[b]ecause the Court has already addressed the redaction of information identifying interviewees and other individuals named in ROIs under Exemption 7(C), it need not consider the legality of the redaction of the same information under Exemption 3."
  
  Second, "[t]he Court finds that the two Stein declarations adequately justify the redactions in particular documents."  "The supplemental Stein declaration provides a document-by-document explanation of the types of information withheld, . . . ('the redacted information relates to intelligence activities and other subjects of national security interest, including the locations of personnel and operational activities[]'), and supplies the detail necessary for the Court to make a determination about the propriety of the agency's invocation of Exemption 3."  "So in that respect, the State Department[] has met its burden."  "But the State Department and SIGAR have overlooked an additional requirement included in the National Security Act:  to show that the redacted information was withheld at the direction of the Director of National Intelligence, or someone with authority to identify and withhold national intelligence information."  "And [defendant's] declarations do not satisfy that burden."  "[I]n order for the State Department to satisfy its burden to justify these redactions under National Security Act, it is required to submit a supplemental declaration indicating who made the FOIA determinations with respect to the National Security Act in this case, and whether that person had the authority to do so."  "Until the Court receives the supplemental submissions, both parties’ motions will be denied without prejudice."
   
• Exemption 5, Deliberative Process Privilege:  The court relates that "SIGAR has invoked Exemption 5 to withhold portions of sixty-three ROIs, which it claims 'contain predecisional, deliberative information that assist[s] in the development of the lessons learned reports.'"  The court finds that "the agency's submissions do not support its reliance on the deliberative process privilege to redact information under Exemption 5 because the showing that the material is 'predecisional' is vague and indistinct from the assertion that it is 'deliberative.'"  The court relates that "[defendant] says that 'a major purpose of the interviews is to obtain information to contribute to a lessons learned report in which SIGAR will make findings, draw conclusions, and make recommendations,' and '[a]ll of the records . . . were generated as part of a continuing process of agency decision making.'"  "But what decision is being made?'  "What policy or action is SIGAR 'considering?'"  "The agency omits any reference to a 'decision' and it simply repeats the phrase 'decision making,' relying on the deliberative nature of the communications to somehow satisfy the first prong of the test as well."  The court finds that "[a]t most, the declaration and Vaughn Index disclose that the redacted factual information might be considered when formulating potential future agency recommendations, might be used in potential future studies within the Lessons Learned program, or might bear on some potential investigation or audit."  "But they say nothing about whether the interviews themselves were conducted, or the reports were generated, in relation to any anticipated SIGAR decision or what role the reports would play in any future decision."  "The Court received the documents in camera, but their review did not resolve the question since the agency supplied no guideposts to be applied to any specific redaction."  "Under those circumstances, the showing is insufficient and defendant is not entitled to summary judgment on this issue."