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Biddle v. DOD, No. 23-1380, 2024 WL 4188510 (D.D.C. September 13, 2024) (Kelly, J.)

Date

Biddle v. DOD, No. 23-1380, 2024 WL 4188510 (D.D.C. September 13, 2024) (Kelly, J.)

Re:  Request for “‘records pertaining to Algorithmic Warfare Cross-Functional Team’s use of Google technology, software or hardware,’” from January 1, 2017 to March 6, 2018

Disposition:  Denying defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

  • Exemption 3: The court relates that “the Department relies on 10 U.S.C. § 130e, which permits the withholding of ‘critical infrastructure security information.’” “But the Department’s affidavit is not ‘furnished with sufficient information’ for the Court to decide summary judgment ‘in a meaningful fashion.’”  “It has provided almost no specific information about the 5,000 pages it seeks to withhold for the Court to determine whether they are in fact ‘critical infrastructure security information’ and qualify for Exemption 3 withholding.”  “One specific shortcoming with the Department’s affidavit worth highlighting is that it does not explain to what ‘critical infrastructure’ the withheld records relate.” “To qualify as ‘critical infrastructure security information,’ the information at issue must, ‘if disclosed . . . reveal vulnerabilities in Department of Defense critical infrastructure.’”  “The closest the Department comes is asserting that the information ‘individually or in the aggregate, would enable an adversary to identify capabilities and vulnerabilities in the Department’s approach to artificial intelligence development and implementation.’”  “The Court is left to wonder how ‘the Department’s approach to artificial intelligence development and implementation’ qualifies as ‘critical infrastructure’ under the statute.”  “Indeed, an ‘approach’ is not usually considered ‘infrastructure.’”  “In addition, revealing ‘capabilities’ – rather than ‘vulnerabilities’ – does not appear to move the needle under the statute.” “In any event, the Department offers no ‘specific information’ on this point ‘sufficient to place the documents within th[is] exemption category.’”

    “Aside from whether the Department’s ‘approach to artificial intelligence development and implementation’ should be considered ‘critical infrastructure,’ the Department’s affidavit is deficient in showing that its withholdings qualify as ‘critical infrastructure security information’ in other ways.”  “For example, the affidavit fails to explain how the disclosure of the withheld information would reveal any alleged ‘vulnerabilities’ in the critical infrastructure.”
     
  • Litigation Considerations, Summary Judgment & Waiver of Exemptions in Litigation:  “[T]he Court notes that the Department invokes other FOIA exemptions, including Exemptions 4, 5, and 6, but does not attempt to justify its withholdings under them, instead reserving the right to do so at another other time, presumably through another motion.”  “While the Court appreciates the Department’s desire to avoid the administrative burden of reviewing documents for more exemptions, the piecemeal assertion of different exemptions ‘undermines FOIA’s purpose to promote efficient, prompt, and full disclosure of information and the interest of judicial economy.’”  “Indeed, district courts retain the discretion to find a defendant’s invocation of FOIA exemptions forfeited if they are not raised timely.”  “The Court will not exercise its discretion to do so here, given the potentially important national security interests at stake.”  “Still, the Court advises the Department that when it files its renewed motion, it must address any additional FOIA exemptions it wishes to invoke.”
Court Decision Topic(s)
District Court opinions
Exemption 3
Litigation Considerations, Summary Judgment
Litigation Considerations, Wavier of Exemptions in Litigation
Updated October 17, 2024