The N.Y. Times Co. v. Dep't of Def.

THE NEW YORK TIMES COMPANY and CAROL ROSENBERG, Plaintiffs, v. DEPARTMENT OF DEFENSE, Defendant.

No. 19 Civ. 5779 (GBD)

United States District Court, S.D. New York

August 25, 2021

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, District Judge:

Plaintiffs The New York Times Company and New York Times reporter Carol Rosenberg bring this action under the Freedom of Information Act (“FOIA”) against the United States Department of Defense (the “Government” or “Defendant”) seeking the disclosure of “the command and investigation report, ” which details the government's reasons for reprimanding and relieving Rear Admiral John Ring from his post as Commander of Joint Task Force Guantanamo Bay. The parties have cross-moved for summary judgment. Plaintiffs' motion is DENIED. Defendant's motion for summary judgment is GRANTED.

I. FACTUAL BACKGROUND^[1]

This Freedom of Information Act case involves just one responsive record, the command investigation report of Rear Admiral John C. Ring (the “Ring Report”).

In April 2018, Rear Admiral Ring assumed command of Joint Task Force Guantanamo Bay (“JTF-GTMO”). (Pls.' Opp'n and Cross-Mot. for Summ. J., (“Pls.'s Opp'n”), ECF No. 46 at 2.) Approximately one year later. Rear Admiral Ring was relieved of his command. (Id. at 3.) On May 1, 2019, Plaintiffs, who had previously reported on United States Southern Command and JTF-GTMO, submitted a FOIA request seeking “a copy of the command investigation report of Rear Adm. John C Ring.” (See Compl., ECF No. 1, ¶ 9; Answer, ECF No. 11, ¶ 9.) The Ring Report is the written record of an “investigation into various allegations of misconduct committed by Rear Admiral John C. Ring, Commander JTF-GTMO, ” which was conducted by United States Southern Command. (Declaration of Michael Droz dated October 21, 2020 (“Droz Deci.”), ECF No. 42, ¶ 6.) The Ring Report compiles statements and evidence from witnesses with knowledge of Rear Admiral Ring's potential misconduct. The investigating officer (whose factual findings, opinions, and recommendations are included in the Ring Report) was Rear Admiral Sean S. Buck. (Droz Deci ¶ 11.) The final decisionmaker (who made the final determinations on the investigation) was Admiral Craig S Faller, Commander United States Southern Command. (Id.) The Ring Report concluded, among other things that Rear Admiral Ring “prioritized mission accomplishment at the inadvertent expense of protecting national security information during his command of JTF-GTMO.'' (Ring Report, ECF Nos. 40-1, 40-2 at ¶ 005.) Thus, the Ring Report recommends that Rear Admiral Ring be relieved of his command. (Id. at 109-110.)

On September 13, 2019, the Department of Defense produced a redacted copy of the Ring Report to Plaintiffs. (Declaration of Anthony J. Sun dated October 20, 2020 (“Sun Deci.”), ECF No. 40, ¶ 3.) After discussion between the parties, the Department of Defense re-processed the Ring Report and removed some redactions that had been previously applied. Id. The Department of Defense has redacted information in the Ring Report pursuant to FOIA Exemptions 1, 3, 5, 6, and 7. There is no dispute between the parties that the Government has performed an adequate search of its records; however, Plaintiffs do contend that the Government has failed to provide adequate justification for the remaining redactions in the Ring Report. Plaintiffs ask this Court to undertake a full in camera review of the Ring report or order the Government to provide additional public details to support their redactions. (Pls.' Opp'n at 2.)

IL LEGAL STANDARD

A. The Freedom of Information Act and Summary Judgment

FOIA requires "broad disclosure of Government records.” CIA v. Sims, 471 U.S. 159, 166 (1985). When requested, the Government must disclose any document that does not fall within one of FOIA's nine exemptions. See Dep I of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7 (2001). "An agency withholding documents responsive to a FOIA request bears the burden of proving the applicability of claimed exemptions.” ACLU v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir.2012). "Affidavits or declarations . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden.” Id. at 69 (quoting Carney v. U.S. Dep 't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)). "In the national security context, ... [a court] must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.” ACLU, 681 F.3d at 69 (quoting Wolf v. CIA. 473 F.3d 370, 374 (D.C. Cir. 2007)) (emphasis in original).

"FOIA cases are generally and most appropriately resolved on motions for summary judgment.” Families for Freedom v. U.S. Customs & Border Prot., 797 F.Supp.2d 375, 385 (S.D.N.Y. 2011). Summary judgment is granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A district court considering a FOIA claim "may grant summary judgment in favor of an agency ‘on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)); see also Garcia v. U.S. Dep't of Justice, Office of Info. & Privacy, 181 F.Supp.2d 356, 366 (S.D.N.Y. 2002) (“If the agency's submissions are facially adequate, summary judgment is warranted unless the plaintiff can make a showing of bad faith on the part of the agency or present evidence that the exemptions claimed by the agency should not apply.”). Thus, “if the agency's submissions are adequate on their face . . . the district court may forgo discovery and award summary judgment on the basis of affidavits.^-' Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (internal quotations omitted). On the other hand, "[s]ummary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption.” Nat. Res. Def. Council, Inc. v. U.S. Dep '(of Interior, 36 F.Supp.3d 384, 398 (S.D.N.Y. 2014) (quoting N. Y Times Co. v. U.S. Dep't of Def., 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007)).

III. THE DEPARTMENT OF DEFENSE PROPERLY WITHHELD CLASSIFIED PORTIONS OF THE RING REPORT

The Government invokes five FOIA exemptions that are challenged by the Plaintiffs: (i) FOIA Exemption 1, which covers records that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” if the records “are in fact properly classified” as such, 5 U.S.C. § 552(b)(1); (ii) FOIA Exemption 3, which covers material “specifically exempted disclosure by statute, ” id. § 552(b)(3); (iii) FOIA Exemption 5, covering “inter-agency or intra-agency memorandums or letter which would not be available by law to a party ... in litigation with the agency, ” id. § 552(b)(5); (iv) FOIA Exemption 6, covering the disclosure of personnel, medical, or similar files, "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, ” id. § 552(b)(6); and (v) FOIA Exemption 7, covering “records or information compiled for law enforcement purposes, ” id. § 552 (b)(7).

A. FOIA Exemption 1

FOIA Exemption 1 shields from disclosure 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). Under Executive Order 13, 526, information may be categorized as “classified” if (i) "an original classification authority is classifying the information”; (ii) "the information is owned by, produced by or for, or is under the control of the United States Government”; (iii) “the information falls within one or more of' eight categories enumerated in section 1.4 of the Executive Order, including "intelligence sources or methods''; and (iv) “the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.” 75 Fed. Reg. 707 (Dec. 29. 2009).

The Government invoked Exemption 1 in redacting certain portions of the Ring Report and avers that the withheld information falls into sections 1.4(a) and (c) of the Executive Order. (Droz Deci. ¶ 5.) Section 1.4(a) covers military plans, weapons systems, or operations. 75 Fed. Reg. 707. Section 1.4(c) relates to intelligence activities (including covert action), intelligence sources or methods, or cryptology. Id. The Plaintiffs challenge the Government's redactions and argue that the exemption has been "over-applied.” (Pls.' Opp'n at 6-12.) For example. Plaintiffs claim that the Government is applying Exemption 1 to withhold information about a “drug deal” mentioned in the Ring Report and that such a deal has “no apparent connection to ‘military plans, weapons systems, or operations.'” (Id. at 7.)

While Plaintiffs' argument is facially intriguing, the Government's explanations, provided in both public and classified declarations, are reasonably “detailed and specific” and support the determination that the...