ACLU v. DOD, No. 04-4151, 2014 WL 3242307 (S.D.N.Y. Aug. 27, 2014) (Hellerstein, J.)

ACLU v. DOD, No. 04-4151, 2014 WL 3242307 (S.D.N.Y. Aug. 27, 2014) (Hellerstein, J.)

Re: Request for photographs depicting prisoners at Abu Ghraib prison and other sites

Disposition: Granting in part plaintiff's motion for partial summary judgment; denying defendant's motion for partial summary judgment

• Exemption 3:  The court holds "that Secretary Panetta's certification," which is required by the Protected National Security Documents Act (PNSDA) in order to make certain photos "exempt from disclosure for a three-year" period, "is not sufficient to prevent publication of redacted photographs" because "[i]t was conclusory as to all, when it should have been focused on each separate photograph as the PNSDA requires."  The court notes that "[t]he PNSDA is an exemption (3) statute, since it provides criteria for the withholding of certain documents from the public under FOIA and it was enacted before the OPEN FOIA Act of 2009."  Despite the similarities in the certifications, the court notes that "Secretary of Defense Panetta's certification of November 9, 2012, was issued under different circumstances from the 2009 certification of Secretary Gates."  The court finds that the "plain language refers to the photographs individually—'that photograph'—and therefore requires that the Secretary of Defense consider each photograph individually, not collectively" and this "is supported by the way the Supreme Court has read FOIA."  The court finds that "counsel are directed to attend a conference . . . to address whether the government intends to submit additional evidence into the record or to produce redacted versions of the photographs."