Osen LLC v. U.S. Cent. Command

OSEN LLC, Plaintiff, v. UNITED STATES CENTRAL COMMAND, Defendant.

18-CV-6069 (BCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 30, 2019

OPINION AND ORDER

BARBARA MOSES, United States Magistrate Judge.

Plaintiff Osen LLC (Osen) brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, against United States Central Command (CENTCOM), seeking unredacted copies of documents related to attacks on American military personnel in Iraq between 2004 and 2011. Now before the Court are the parties' cross-motions for summary judgment, which turn on the narrow issue of whether CENTCOM properly relied on FOIA Exemption 6, which applies to information that "would constitute a clearly unwarranted invasion of personal privacy" if disclosed, 5 U.S.C. § 552(b)(6), when it redacted the names and photographs of foreign nationals suspected to be malign actors.

For the reasons set forth below, CENTCOM's motion (Dkt. No. 21) will be granted in part, Osen's cross-motion (Dkt. No. 26) will be denied, and the Court will leave the case open for the parties to resolve certain limited outstanding issues discussed below.

I. BACKGROUND

A. Factual Background

Osen is a law firm, with offices in New Jersey and New York, "that primarily represents victims of international terrorism." Compl. (Dkt. No. 9) ¶ 12. Osen "represents hundreds of U.S. service members and family members of U.S. service members" who were "killed or injured in terrorist attacks while serving in Iraq," alleging "that these attacks were committed by Iranian- backed terrorists, and that Iran and its corporate enablers are responsible" for its clients' injuries. Id. ¶ 2. Osen has filed "several lawsuits against Iran and several Iranian and Western financial institutions that it alleges helped Iran fund, train, and otherwise support the terrorists" who allegedly injured Osen's clients. Id.

Osen has also filed several lawsuits in this District against various agencies of the U.S. government, including CENTCOM,¹ seeking the disclosure of government records to assist it in showing "that Iran was responsible for the attacks in which [its clients] were injured." Compl. ¶ 3. See also Osen LLC v. United States Cent. Command, No. 1:17-cv-04457-KPF (S.D.N.Y.); Osen LLC v. Office of Foreign Assets Control of the U.S. Dep't of Treasury, No. 1:18-cv-03511-JPO (S.D.N.Y.); Osen LLC v. U.S. Dep't of Commerce, Bureau of Industry and Security, No. 1:18-cv-06066-PGG (S.D.N.Y.); Osen LLC v. U.S. Dep't of State, No. 1:18-cv-06070-JSR (S.D.N.Y.); Osen LLC v. Office of Foreign Assets Control of the U.S. Dep't of Treasury, No. 1:19-cv-00405-AJN (S.D.N.Y.); and Osen LLC v. United States Cent. Command, No. 1:19-cv-06867-KPF (S.D.N.Y.).

On December 27, 2017 and April 6, 2018, Osen submitted the two sets of FOIA requests at issue in this case. Compl. ¶¶ 7, 25, 31, & Exs. A, C. Those requests sought disclosure of 32 weekly reports from General David Petraeus (the then-commander of U.S. and allied forces in Iraq) to Secretary of Defense Robert Gates in 2007 and 2008, 37 Significant Activities (SIGACT) Reports from 2004 through 2009, and 13 other military or intelligence reports. Id. Exs. A, C.

B. Procedural Background

Osen filed its complaint on July 5, 2018, seeking a declaration that "CENTCOM is obligated to provide it with copies of the records sought," and an injunction compelling CENTCOM to provide the same records. Compl. ¶¶ 34-41. Osen alleges, and CENTCOM does not deny, that CENTCOM failed to make a timely "determination" in response to Osen's requests, Compl. ¶ 10, thereby permitting Osen to file suit "without exhausting [its] administrative appeal remedies." Id. (quoting Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 182 (D.C. Cir. 2013)). On August 13, 2018, CENTCOM filed its answer. (Dkt. No. 12.) On August 16, 2018, the parties consented to the jurisdiction of the assigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. No. 13.) On September 26, 2018, the Court held an initial case management conference and put in place a briefing schedule for the parties to file their anticipated cross-motions for summary judgment. (Dkt. No. 16.)

On December 19, 2018, CENTCOM filed its motion, together with a memorandum of law (Def. Mem.) (Dkt. No. 22) and the Kurilla Declaration, attaching a Vaughn index also dated December 19, 2018. (Dkt. No. 23-2.)² Major General Kurilla attested that, after CENTCOM released "nearly 400 pages" of records responsive to Osen's requests, the parties narrowed their dispute to "28 pages from the release on which [plaintiff] is challenging one or more of the items of information being withheld." Kurilla Decl. ¶¶ 6-8. As reflected on its Vaughn index, CENTCOM redacted information on these 28 pages based on two FOIA exemptions: Exemption1, 5 U.S.C. § 552(b)(1) (applicable to properly classified information which the government is authorized to keep "secret in the interest of national defense or foreign policy") and Exemption 6, 5 U.S.C. § 552(b)(6) (applicable to "personnel and medical files," as well as "similar files," the "disclosure of which would constitute a clearly unwarranted invasion of personal privacy"). Kurilla Decl. ¶¶ 11-28, Ex. 2. Under Exemption 6, CENTCOM withheld, among other information, the "[n]ames of persons targeted as, and/or suspected to be, malign actors," as well as "photographs," and "other biographical information" that "could be used to identify such individuals." Kurilla Decl. Ex. 2 §§ 4, 6.

On February 21, 2019, Osen filed its cross-motion for summary judgment, together with a memorandum of law (Pl. Mem.) (Dkt. No. 27) and the declaration of attorney Michael J. Radine (Radine Decl.) (Dkt. No. 28), attaching the "separately-numbered productions CENTCOM produced to Plaintiff that Plaintiff is contesting as including improper redactions" (Exhibits 1-16),³ as well as a number of publicly-available reports and publications (or excerpts thereof) released by CENTCOM and others (Exhibits 17-31), which are discussed in more detail in section II(C)(4) below. Radine Decl. ¶¶ 2-17.

In its cross-motion papers, Osen informed the Court that the parties had resolved all of their disputes except for one: CENTCOM's withholding, under Exemption 6, of "the names and photographs of malign actors." Pl. Mem. at 10.⁴ Osen argues that CENTCOM "has not identified alleged terrorists' reasonable privacy interests," and that any such privacy interests are outweighed by the public's "interest in identifying individuals, groups, and nations responsible for killing U.S.service members in terrorist attacks." Id. at 13, 19. Osen also argues that CENTCOM's Exemption 6 redactions have been "inconsistent, idiosyncratic," and "unsupportable," id. at 7, and that CENTCOM and the Department of Defense have "routinely released" the names of suspected terrorists in prior publications. Id. at 18-19.

On March 20, 2019, CENTCOM filed its reply brief in support of its motion and in opposition to Osen's cross-motion (Def. Reply Mem.) (Dkt. No. 31), together with the supplemental declaration of Major General Kurilla (Supp. Kurilla Decl.) (Dkt. No. 32). Major General Kurilla reported that during the course of this litigation, CENTCOM's FOIA staff had "made additional efforts to evaluate whether" each individual whose name and/or photograph was redacted "was a public figure, a notorious criminal or terrorist whose identity was in the public domain, or deceased, including supplemental searches of open sources of information," and had unredacted several additional names, including several of the specific names at issue in Osen's cross-motion. Supp. Kurilla Decl. ¶¶ 3-5.

On April 4, 2019, Osen filed its reply brief (Pl. Reply Mem.) (Dkt. No. 34). Osen argues that CENTCOM has not sufficiently justified its redactions based on Exemption 6, "particularly given its extensive disclosures elsewhere." Pl. Reply Mem. at 1-6. It also argues that a decision rendered by the Hon. Katherine Polk Failla on March 22, 2019, in a companion case filed by Osen against CENTCOM - which held, in relevant part, that CENTCOM properly relied on Exemption 6 to withhold the names of certain foreign nationals who may have been malign actors involved in attacks on U.S. military personnel - should not compel the same result in this case. See Osen LLC v. United States Cent. Command, 375 F. Supp. 3d 409 (S.D.N.Y. 2019) (Osen I). The Court will address Judge Failla's ruling in Osen I below in section II(B).

II. ANALYSIS

A. Legal Standards

1. FOIA

"FOIA was enacted in order to 'promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 355-56 (2d Cir. 2005) (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)). "FOIA strongly favors a policy of disclosure . . . and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act," which must be narrowly construed. Nat'l Council of La Raza, 411 F.3d at 355-56 (citations omitted). "The government bears the burden of demonstrating that an exemption applies to each item of information it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure." Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir. 2016) (quoting Ctr. for Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir. 2014)). However, "[a]ffidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden," and such affidavits "submitted by an agency are accorded a presumption of good faith." Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009) (quoting Carney...