Osen LLC v. U.S. Cent. Command

375 F.Supp.3d 409

OSEN LLC, Plaintiff,

v.UNITED STATES CENTRAL COMMAND, Defendant.

17 Civ. 4457 (KPF)

United States District Court, S.D. New York.

Signed March 22, 2019

William Adam Friedman, Michael Jacob Radine, Osen LLP, Hackensack, NJ, for Plaintiff.

Andrew Edward Krause, United States Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Osen LLC ("Osen" or "Plaintiff") brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against United States Central Command ("CENTCOM" or "Defendant"); Osen seeks documents regarding attacks on American servicemembers in Iraq from 2004 to 2011. Osen believes these materials will assist with lawsuits that it has filed on behalf of American servicemembers injured and killed in Iraq. Defendant has disclosed various documents in response to Plaintiff's FOIA claims, but the parties dispute Defendant's withholding of a limited set of information. After winnowing the dispute down to an even more limited set of issues through the briefing in this case, Defendants have moved for summary judgment, and Plaintiff has cross-moved for summary judgment. For the reasons that follow, Defendant's motion is granted as to the remaining withholdings pursuant to FOIA's sixth exemption and denied as to the remaining withholdings pursuant to FOIA's first exemption. Conversely, Plaintiff's motion is granted as to the latter and denied as to the former.

BACKGROUND¹

A. Factual Background

1. The Parties

Osen LLC is a law firm with offices in Hackensack, New Jersey, and New York City. (Compl. ¶ 8). It describes itself as "primarily represent[ing] victims of international terrorism." (Id. ). In the case for which Osen seeks documents, Osen describes its work as "represent[ing] hundreds of U.S. service members and family members of U.S. service members killed or injured in Iraq by Iranian-backed terrorists (the ‘Clients’)." (Id. at ¶ 2). Osen states that it has "brought several lawsuits on behalf of its Clients against Iran and several Iranian and Western financial institutions that it alleges helped Iran fund, train, and otherwise support the terrorists who injured Osen LLC's Clients." (Id. ).

This dispute concerns FOIA requests that Osen issued to CENTCOM in furtherance of these litigation efforts. CENTCOM is one of nine combatant commands of the United States armed forces. (Ferrell Decl. ¶ 2). CENTCOM directs and oversees military operations within its area of operations ("AOR"), which includes 20 countries in the Middle East, Central and South Asia. (Id. ). The sections that follow detail Plaintiff's requests and Defendant's responses.

2. Plaintiff's FOIA Requests

On November 15, 2016, Plaintiff requested records regarding 92 attacks on U.S. servicemembers in Iraq that occurred between 2004 and 2011. (Ferrell Decl. ¶ 4). The records largely concerned information related to attacks involving Explosively Formed Penetrators ("EFPs"), a particular type of improvised explosive device ("IED"). (Id. ). The requests also sought information related to the involvement of what Plaintiff describes as "Shi’a terrorist groups, called the ‘Special Groups' by the U.S. military, which were backed by Iran and its Lebanese terror proxy, Hezbollah." (Pl. Br. 1). In response, on December 12, 2016, CENTCOM provided six unclassified documents from the Combined Information Data Network Exchange ("CIDNE") database, a CENTCOM recordkeeping system. (Ferrell Decl. ¶ 5). Throughout 2016 and into June of 2017, Plaintiff submitted 168 additional FOIA Requests to CENTCOM, one for each servicemember injured in the attacks for which Plaintiff sought records. (Id. at ¶ 4; Friedman Decl., Ex. 3). CENTCOM has released 7,749 pages of records to Plaintiff. (Ferrell Decl. ¶ 9). Plaintiff did not challenge the adequacy or sufficiency of CENTCOM's document searches, but instead challenged (i) the failure to release certain records that CENTCOM referred to U.S. Army Central ("ARCENT") for FOIA processing, and (ii) CENTCOM's application of FOIA exemptions to withhold certain responsive records. (Id. at ¶ 10).

a. The ARCENT Referrals

In February, 2017, Plaintiff requested Army Regulation 15-6 ("AR 15-6") reports for all 168 servicemembers from CENTCOM and the Army. (Friedman Decl. ¶ 17).² CENTCOM does not, as a general rule, conduct AR 15-6 investigations; they are conducted by component commands or subordinate units that are not required to submit their reports to CENTCOM headquarters. (Ferrell Decl. ¶¶ 12-13). CENTCOM located 36 full or partial AR 15-6 investigation reports and referred these documents to ARCENT to conduct its own independent FOIA review. (Id. at ¶¶ 14-15). ARCENT is a command that exercises administrative control of U.S. Army forces in the Middle East and Central Asia; it has its own FOIA staff and FOIA procedures; and it handles FOIA requests independently of CENTCOM. (Id. at ¶ 16). ARCENT conducted the AR 15-6 investigations, created the reports, and is responsible for providing notifications to servicemembers' primary next of kin. (Id. at ¶ 17). By June 12, 2018, ARCENT has processed and released 15 of the 36 records to Plaintiff and stated that it would release an additional eight by the end of that month. (Supp. Ferrell Decl. ¶ 4). CENTCOM states that it does not have authority to release AR 15-6 reports without release authority from the U.S. Army. (Id. at ¶ 7).

b. The FOIA Exemptions

In the 7,749 pages of documents released by CENTCOM, Plaintiff has challenged redactions on approximately 900 pages. (Ferrell Decl. ¶¶ 23-24). CENTCOM redacted information relating to five categories: (i) convoy operations; (ii) counter-IED equipment; (iii) EFP design, composition, and placement and explosive ordinance disposal ("EOD") techniques; (iv) EFP penetration of armor; and (v) identification of individuals. (Id. , Ex. 2 (" Vaughn Index") (Dkt. # 31-2) ).³

The first four categories are redacted on the basis of FOIA's first exemption, which protects classified information. (Ferrell Decl. ¶¶ 26-40). CENTCOM states that providing information on the convoy operations would risk providing adversaries with information that would allow them more effectively to plan attacks on American troops. (Id. at ¶¶ 32-33). The second category concerns information relating to the use of Counter Remote Controlled Electronic Warfare ("CREW") equipment. (Id. at ¶¶ 34-35). CENTCOM argues that disclosure of information on this subject could help adversaries defeat this equipment. (Id. ). The third category relates to details regarding the design, placement, and deployment of EFPs, and CENTCOM argues that disclosure of this information could reveal how to combine these factors to increase the lethality of these weapons. (Id. at ¶¶ 36-37). CENTCOM also withheld information regarding the operations of engineers in EOD teams, as CENTCOM stated that it would potentially expose EOD teams to greater risks. (Id. at ¶ 38). The largest category of withholdings consists of material relating to how EFPs and IEDs penetrated the armor on American vehicles. (Id. at ¶ 39). CENTCOM has withheld photographs of damage to vehicles, because CENTCOM argues that the photographs would reveal detailed information about the vulnerabilities of military vehicles. (Id. at ¶ 40).

The final category of information is withheld pursuant to FOIA's sixth exemption, which restricts the disclosure of information that would be an unwarranted intrusion on personal privacy. (Ferrell Decl. ¶¶ 41-42). CENTCOM has redacted the names of foreign nationals who were captured on the battlefield, were interrogated in connection with EFP attacks, were suspected of involvement in EFP attacks, or provided information to the U.S. government and its agents. (Id. at ¶ 43). In addition, CENTCOM has withheld their telephone numbers, email addresses, biometric information, familial relationships, and other descriptive information that could lead to their identification. (Id. ). CENTCOM states that exposure of such information could result in a number of potentially serious harms to these individuals, and there is no general public interest in the disclosure of this information. (Id. at ¶¶ 44-45). CENTCOM states that it has gone through the records, and has segregated and disclosed any information that can be disclosed. (Id. at ¶¶ 46-47).

Plaintiff states that the redactions are internally inconsistent and lists pages that redact information that is released elsewhere. (Friedman Decl., Ex. 4-6). The Court will address these purported inconsistencies, and Plaintiff's other challenges to the withholdings, in greater detail infra.

B. Procedural Background

Plaintiff filed its Complaint in this action on June 13, 2017. (Dkt. # 1). On November 9, 2017, the Court endorsed a joint letter from the parties setting a schedule for further document processing in an attempt to resolve any remaining disputes between the parties. (Dkt. # 22). The parties could not resolve their disputes fully, however, and on January 18, 2018, the Court approved a schedule for the parties to file cross-motions for summary judgment. (Dkt. # 26).

On April 24, 2018, Defendant moved for summary judgment, and on May 29, 2018, Plaintiff cross-moved for summary judgment. (Dkt. # 29-31, 32-41). On June 12, 2018, Defendant filed a reply memorandum of law in further support of its motion for summary judgment, and on June 26, 2018, Plaintiff filed its reply in further support of its motion for summary judgment. (Dkt. # 42-43, 44-46).

Through the parties' helpful briefing in this case, the issues in dispute have narrowed. In its opposition brief and cross-motion, Plaintiff limited its requested releases to five categories:

1. All photographs showing EFP damage to vehicles; 2. All indications that copper was used in an EFP and the size of the EFP; 3. All information identifying (a) terrorist groups, (b) leaders of terrorist groups, (c) admitted criminals, (d) public figures, and (e) already

...