Am. Civil Liberties Union v. DOD, No. 04-4151, 2017 WL 237645 (S.D.N.Y. Jan. 18, 2017) (Hellerstein, J.)

Am. Civil Liberties Union v. DOD, No. 04-4151, 2017 WL 237645 (S.D.N.Y. Jan. 18, 2017) (Hellerstein, J.)

Re: Request for photographs taken at Abu Ghraib prison and other military detention facilities in Iraq and Afghanistan by U.S. Army personnel between 2003 and 2005, which depict individuals apprehended and detained abroad after September 11, 2001

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

• Litigation Considerations, Pleadings: The court responds to defendant's "argu[ment] that judicial review of 'national security judgments' is precluded entirely, and that the Secretary's certification alone is sufficient to trigger exemption[,]" and finds that "that is not the law." The court explains that "[d]eference with respect to national security issues may limit the scope of judicial review, but it does not preclude judicial review." "And no matter what the degree of deference, judicial review cannot occur unless the Government describes why, 'with reasonably specific detail,' disclosure of documents should not be required." Additionally, the court finds that "[t]he Government's argument ["that the standard of review should not be de novo, the standard for FOIA cases, but 'arbitrary and capricious,' the standard of review under the Administrative Procedure Act"] is misplaced." "It has not identified a single case in which a court applied the arbitrary and capricious standard when reviewing an agency's invocation of a FOIA exemption."
   
• Exemption 3: "Because the Government has not provided reasonably specific detail as to why the photographs fall within Exemption 3, [the court] cannot determine whether the Government's invocation of Exemption 3 is logical or plausible." The court first "reject[s] the Government's argument that the [Protected National Security Documents Act ("PNSDA")] precludes judicial review." The court finds that, "[a]s a threshold matter, the PNSDA is an exemption statute within the meaning of FOIA Exemption 3." The court relates that "the PNSDA 'establishes particular criteria for withholding' because a 'protected document' under the PNSDA must be (a) a photograph; (b) that was taken within a particular time period and 'relates to the treatment of individuals engaged, captured, or detained after September 11, 2011, by the Armed Forces of the United States in operations outside of the United States'; and (c) was the subject of a certification issued by the Secretary of Defense stating that 'disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.'" The court also notes that "Exemption 3 also states that if the statute was 'enacted after the date of enactment of the OPEN FOIA Act of 2009,' then it must 'specifically cite[ ]' to Exemption 3." "The OPEN FOIA Act of 2009 amended FOIA Exemption 3 to include this very requirement: that any statute exempting documents from disclosure under Exemption 3 specifically cite to Exemption 3, but only if that statute was enacted after Exemption 3 was amended to include this requirement." "This provision of Exemption 3 does not apply here because the PNSDA was enacted on the same date as the OPEN FOIA Act of 2009, not after it." However, responding to defendant's "argu[ment] that the PNSDA should operate independently of FOIA, with a judicial role limited to asking only if the [Secretary of Defense] certificate is authentic[,]" the court finds that "[t]he PNSDA does not repeal any provision of FOIA." "Rather, through its use of the phrase 'notwithstanding any other provision of the law to the contrary,' Congress stylized the PNSDA as creating an exception to FOIA for certain materials."
  
  The court then finds that "[t]here has been no adequate judicial review of the Government's invocation of Exemption 3." "None has been possible because the Government has failed to provide the Court with the criteria it used to withhold the mass of photographs from disclosure." "First, the Government has not provided any meaningful information as to how it sorted the photographs into categories." Specifically, "it has not disclosed the parameters used to define each category, the criteria used to determine whether a photograph fell into one category or another, or how many categories or photographs there were." "Second, the Government has not adequately explained the relationship between the various levels of review." "It remains unclear whether the reviewers from each level used the same or different criteria, and whether they reached the same or different conclusions with respect to categorization and the potential for harm upon release." "In short, the Government has not provided any information regarding the criteria it applied to reach the conclusion that release of each withheld photograph would endanger Americans deployed outside the United States."
   

• Exemption 7(F): The court "decline[s] to reverse [its] prior holding, affirmed by the Second Circuit, that the photographs at issue are not exempt under Exemption 7(F)." The court relates that "[t]he Government, arguing for a change of view, cites Elec. Privacy Info. Ctr. v. US. Dep’t of Homeland Sec. (“EPIC”), 777 F.3d 518 (D.C. Cir. 2015), a distinguishable case." "In that case, the D.C. Circuit held that the term 'any individual' in Exemption 7(F) should be given a 'broad interpretation,' not limited to the Government's ability to 'specifically identify the individuals who would be endangered.'" The court finds that "the [Secretary of Defense] certification is vague and unlimited as to who is endangered: 'citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.'" "This vast and amorphous group clearly does not satisfy the standard described by the Second Circuit, nor would it likely satisfy the standard adopted by the D.C. Circuit in EPIC."