Rosenberg v. U.S. Dep't of Def.

442 F.Supp.3d 240

Carol ROSENBERG, et al., Plaintiffs,

v.U.S. DEPARTMENT OF DEFENSE, Defendant.

Case No. 17-cv-00437 (APM)

United States District Court, District of Columbia.

Signed March 5, 2020

David A. Schulz, Ballard Spahr LLP, New York, NY, for Plaintiffs.

Leslie Cooper Vigen, Rebecca Michelle Kopplin, Daniel J. Halainen, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

This action arises from a Freedom of Information Act ("FOIA") request submitted by Plaintiffs Carol Rosenberg and Miami Herald Media Company to the United States Department of Defense ("DOD"). Plaintiffs seek the disclosure of emails sent by retired Marine Corps General John F. Kelly pertaining to the Joint Task Force Guantánamo ("JTF-GTMO"), a military task force based in Guantánamo Bay, Cuba. DOD initially refused Plaintiffs' request for expedited processing, and Plaintiffs filed the instant lawsuit on March 10, 2017. After an initial round of summary judgment briefing, the court found that DOD had not properly justified withholding certain responsive information under Exemptions 1 and 5 of FOIA. The parties' renewed cross-motions for summary judgment and Plaintiffs' motion for partial reconsideration are now before the court. For the reasons set forth below, the court grants in part and denies in part Defendant's Motion for Summary Judgment and grants in part and denies in part Plaintiffs' Cross-Motion for Summary Judgment and Partial Reconsideration.

II. BACKGROUND

A. Rosenberg's FOIA Request

For the better part of two decades, Plaintiff Rosenberg, a reporter for the Miami Herald, has reported extensively on the U.S. Southern Command ("SOUTHCOM")—a component of DOD responsible for American military operations in Central America, South America, and the Caribbean—including the Guantánamo Bay detention center. Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 7, 10. Rosenberg's reporting covered, among other things, General Kelly's career during the years he oversaw operations at Guantánamo. Id.

Shortly after the 2016 presidential election, Rosenberg sent a FOIA request to DOD seeking: "[A]ll emails by the former [SOUTHCOM] commander retired Marine Gen. John F. Kelly to Lisa Monaco [the former Assistant to President Obama for Homeland Security and Counterterrorism] or those that also copied her on his correspondence." Compl., Ex. A, ECF No. 1-1. The DOD denied Rosenberg's request for expedited processing and did not respond to her administrative appeal. See Compl. ¶¶ 12–20.

B. Procedural Background

After Plaintiffs filed this lawsuit on March 10, 2017, see generally Compl., DOD produced to Plaintiffs 256 emails and 92 attachments totaling 548 pages, and invoked FOIA Exemptions 1, 3, 5, 6, and 7(E) for various withholdings, see Third Joint Status Report, ECF No. 15, ¶¶ 3–4. DOD filed a motion for summary judgment in October 2017, see Def.'s Mot. for Summ. J., ECF No. 18 [hereinafter Def.'s First Mot.]. The motion was supported by the declaration of Brigadier General Todd J. McCubbin, the Reserve Deputy Director of SOUTHCOM, see id. , Decl. of Todd J. McCubbin, ECF No. 18-2 [hereinafter McCubbin Decl.], as well as a Vaughn Index, see id. , Ex. 4 [hereinafter Vaughn Index ]. Plaintiffs filed a cross-motion for summary judgment the following month, see Pls.' Cross-Mot. for Summ. J., ECF No. 19, Mem. in Supp. of Cross-Mot., ECF No. 19-1 [hereinafter Pls.' First Mot.]. Plaintiffs also asked the court to conduct an in camera review of a representative sample of the documents at issue, see id. at 42–43, which the court agreed to do, see Minute Order, Aug. 22, 2018.¹ Briefing in the matter completed in January 2018, see Pls.' Reply in Further Supp. of Pls.' First Mot., ECF No. 24 [hereinafter Pls.' First Reply].

The court entered a Memorandum Opinion and Order on September 27, 2018, finding that DOD had appropriately invoked FOIA Exemptions 3, 6, and 7(e). See Mem. Op. & Order, ECF No. 27 [hereinafter Mem. Op.], 33–43. The court denied DOD's motion as to most Exemption 1 withholdings and all Exemption 5 withholdings, see id. at 9–33, as explained in greater detail below. The court afforded DOD an opportunity to provide supplemental declarations to support its withholdings under both exemptions. Id.

On November 21, 2018, DOD filed a renewed motion for summary judgment with respect to its Exemption 5 withholdings and certain Exemption 1 withholdings. See Def.'s Renewed Mot. for Summ. J., ECF No. 31, Mem. of P&A, ECF No. 31-1 [hereinafter Def.'s Renewed Mot.]. In support of its renewed motion, DOD submitted a supplemental declaration from John Mulkeen, a deputy stationed in the SOUTHCOM Office of Operations Directorate. See id. , Decl. of John Mulkeen, ECF No. 31-2 [hereinafter Mulkeen Decl.]. DOD also submitted ex parte a classified and sealed supplemental declaration. See Def.'s Renewed Mot. at 2–3. Plaintiffs filed a renewed cross-motion for summary judgment and a motion for partial reconsideration on January 4, 2019. See Pls.' Renewed Cross-Mot. for Summ. J. & Partial Recons., ECF No. 34, Mem. in Opp'n to Def.'s Renewed Mot. & in Supp. of Pls.' Renewed Cross-Mot., ECF No. 34-1 [hereinafter Pls.' Renewed Mot.]. Briefing concluded on March 8, 2019. See Pls.' Reply in Supp. of Pls.' Renewed Mot., ECF No. 43 [hereinafter Pls.' Renewed Reply].

III. LEGAL STANDARD

"Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press , 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ). As a general matter, "[i]n FOIA cases, an agency defendant may be entitled to summary judgment if it can demonstrate that (1) no material facts are in dispute, (2) it has conducted an adequate search for responsive records, and (3) each responsive record that it has located has either been produced to the plaintiff, is unidentifiable, or is wholly exempt from disclosure." Mattachine Soc'y of Wash., D.C. v. U.S. Dep't of Justice , 267 F. Supp. 3d 218, 223 (D.D.C. 2017) (citing Weisberg v. U.S. Dep't of Justice , 705 F.2d 1344, 1350–51 (D.C. Cir. 1983) ).

If an agency invokes a FOIA exemption to withhold information, it must, by declaration or otherwise, "describe the [withheld] documents and the justifications for nondisclosure with reasonably specific detail" and "demonstrate that the information withheld logically falls within the claimed exemption." Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice , 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Judicial Watch, Inc. v. U.S. Dep't of Def. , 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).

IV. DISCUSSION

The parties' remaining disputes center on the applicability of Exemptions 1² and 5. The court addresses each in turn.

A. Exemption 1

FOIA Exemption 1 precludes disclosure of documents that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]" 5 U.S.C. § 552(b)(1). DOD invoked Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) (" EO 13,526")—the relevant Executive Order governing the classification of national security information—as the basis for its redaction of various records produced to Plaintiffs. See Def.'s Renewed Mot. at 5–6. EO 13,526 provides that information may be classified if, among other things, the information "reasonably could be expected to result in damage to the national security." EO 13,526 § 1.1(a).

DOD withheld information pertaining to four categories of information that EO 13,526 deems to be classified: (1) "military plans, weapons systems, or operations," id. § 1.4(a); (2) "foreign government information," id. § 1.4(b); (3) "intelligence sources or methods," id. § 1.4(c); and certain (4) "vulnerabilities or capabilities" relating to national security, id. § 1.4(g). DOD now renews its motion for summary judgment with respect to its withholdings under the two remaining disputed categories: (1) "military plans, weapons systems, or operations"; and (2) "intelligence sources or methods."

1. Section 1.4(a): Military plans, weapon systems, or operations

DOD withheld under EO 13,526 § 1.4(a) records concerning "operational details about JTF-GTMO, particularly detention operations." McCubbin Decl. ¶ 19. Only two subcategories of these records—records pertaining to detainee health and records regarding detainee movements—are still in dispute.

a. Detainee Health

DOD withheld information pertaining to detainee health and hunger strikes, wherein General Kelly "discuss[es] in broad and specific terms detainees' mental, physical, and emotional health, as well as the measures ... being developed or taken to ensure their wellbeing," McCubbin Decl. ¶ 23, and identifies "the number of hunger strikers" and "the impact ... the strike is having on detainees' health," id. ¶ 26. In their initial motion for summary judgment, Plaintiffs sought release on the grounds that much of the information—including the number of hunger strikers—had been officially disclosed. See Mem. Op. at 21–22. Plaintiffs also...