Accuracy in Media v. DOD, No. 14-1589, 2022 WL 17250196 (D.D.C. Nov. 28, 2022) (Sullivan, J.)

Accuracy in Media v. DOD, No. 14-1589, 2022 WL 17250196 (D.D.C. Nov. 28, 2022) (Sullivan, J.)

Re:  Requests for records concerning 2012 attack on United States Embassy in Benghazi, Libya

Disposition:  Adopting magistrate judge’s report and recommendation; granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiffs’ cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court adopts the Magistrate Judge’s determination “that DOD is entitled to a presumption of good faith as to the adequacy of its search because ‘it submitted a “reasonably detailed” declaration . . . that sufficiently ‘explain[ed] how the searches for responsive records were conducted.’”  The court notes that “Plaintiffs are attempting to cast doubt on DOD’s search by questioning the reliability of former Secretary Panetta’s testimony to a House Select Committee.”  That testimony concerned the underlying substance of the incident itself.  “Plaintiffs’ misgivings about that testimony are, at most, ‘“[h]azy allegations of administrative malfeasance,” which “may sound incriminating” but are not the “concrete, specific challenges to the sufficiency of [an agency’s] search [required by the Court] in order to deny the agency summary judgment.”’”  “Plaintiffs therefore have failed to meet their burden to produce ‘countervailing evidence’ of DOD’s alleged bad faith in conducting its FOIA search.”  Additionally, the court finds that “Plaintiffs’ ‘speculati[on] about the existence and discoverability of the [other potentially responsive documents] within the DIA fails.”
   
• Exemption 1:  The court relates that “Plaintiffs . . . challenge [the Magistrate Judge’s] conclusion that DOD appropriately withheld in full 12 pages of maps containing ‘the numbers and locations of ships, submarines, response forces, and aircraft surrounding Benghazi, Libya’; the ‘numbers of military personnel located in particular countries during that time’; and ‘the transit time required for each available asset to reach Benghazi.’”  The court relates that “Plaintiffs do not dispute that DOD classified the maps pursuant to Sections 1.4(a), 1.4(d), and 1.4(g) of Executive Order 13,526.”  “They instead object that disclosure is appropriate because the information in DOD’s records ‘implicate[s] no national security interest.’”  “To support this argument, Plaintiffs cite an affidavit from [a] retired Admiral . . . .”  “The Court will not consider this evidence, though.”  “The declarant ‘merely states his opinion, instead of any facts, about current national security risks,’ . . . and affidavits consisting of ‘conclusory opinions’ are insufficient on motions for summary judgment . . . .”  “However, even if it were appropriate for the Court to weigh this evidence, Plaintiffs’ assertion would fail.”  “[The] Retired Admiral[‘s] . . . ‘opinion about the nature of current or future military assets is limited at best’ because he is currently retired and does not know DOD’s current national security concerns.”  “DOD, by contrast, has explained that ‘[e]ven with the passage of time, how DOD’s forces are positioned at a particular time could provide potentially damaging and/or threatening insight to adversaries regarding DoD’s interests, intent and potential operations.’”  The court relates that “Plaintiffs also object to the R. & R. because the information they requested is already publicly available through a map published by the Congressional Research Service (‘CRS’) and another map they created.”  The court finds that “[t]he maps Plaintiffs cite do not meet [the] standard because ‘the information requested’ does not ‘match the information previously disclosed.’”  “CRS map shows only the distances between Benghazi and other locations in the Mediterranean region.”  “Plaintiffs’ map provides only their estimates of travel times to Benghazi from other locations in the Mediterranean region.”  “Neither map details all of the information Plaintiffs asked for in their FOIA requests, such as the official positions of the military assets or the types of assets at those locations.”
   
• Exemption 3:  “[T]he Court adopts the R. & R. as to the redaction of the CIA IG files.”  “The court relates that “[t]he CIA has invoked two exempting statutes to protect portions of the IG files from disclosure:  Section 6 of the Central Intelligence Agency Act of 1949 . . . and Section 102A(i)(1) of the National Security Act of 1947.”  The court largely finds that it “need not consider these objections as Plaintiffs have not made any argument or cited any law to support these bare points.”
   
• Exemption 7(A):  The court holds that “[the] Magistrate Judge . . . recommended denying Defendants’ Motion for Summary Judgment with respect to the FBI’s Glomar response because the agency failed to provide a ‘logical’ or ‘plausible’ explanation as to why ‘acknowledging the existence of any 302 report would necessarily reveal the existence of specific 302 reports.’”  “Defendants filed a Notice stating that that the FBI ‘no longer intends to maintain its prior Glomar assertion’ and will now ‘conduct a search for responsive records that would have been covered by the Glomar assertion.’”  “Because of the FBI’s changed position, the Court need not evaluate the R. & R.’s recommendation as to the Glomar response.”
   
• Litigation Considerations, Discovery:  The court denies plaintiffs’ request for discovery.  The court notes that “[plaintiffs] claim that DOD made certain misrepresentations to Congress and the public, which establish the agency’s bad faith and therefore support their discovery request.”  “However, as the Court explained . . . , Plaintiffs have not demonstrated that DOD acted in bad faith or otherwise raised a question about DOD’s good faith in responding to the FOIA requests at issue in this case.”