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Bloche v. DOD, No. 07-2050, 2017 WL 4174404 (D.D.C. Sept. 18, 2017) (Scullin, S. J.)


Bloche v. DOD, No. 07-2050, 2017 WL 4174404 (D.D.C. Sept. 18, 2017) (Scullin, S. J.)

Re:  Request for records concerning government's use of interrogation tactics that medical professionals designed and implemented

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

  • Exemption 5, Deliberative Process Privilege:  The court finds that defendant appropriately withheld "[an] author's recommendations to superiors concerning appropriate/best case training scenarios, as well as his opinion on the current training methods[,]'" "Power Point training material[,]" a "document discusses topics related to creation of a [Department of Defense Directive]," "'questions raised by other commands/offices regarding whether the current policies were being followed and the current status of those recommendations which would make changes[,]'" "'a draft synopsis of [a] DoD Directive on Medical Support for Detainee Operations[,]'" a "'recommendation regarding appropriate training of [certain] personnel[,]'" "'questions and concerns voiced by the Chief, Expeditionary Medical Skills Division and the Chief Consultant for Internal Medicine Services regarding the development of policy for online training[,]'" a "document 'discuss[ing] potential additions, clarifications, and areas of concern regarding [a] program and policy[,]'" "'opinions as to how to improve operations[,]'" and "a 'Working Copy of Report[.]'"  However, the court finds that a "'recommendation comment[ing] upon and evaluat[ing] a sister service's training format, identifying potential problems and improvement areas[,]'" was not appropriately withheld because "[c]ommenting on another agency's training format is not deliberative, but rather explanatory."  Additionally, regarding a document entitled "'Background Paper,"' the court finds that "[d]efendant has failed to explain why it did not segregate and release . . . information if it exists[]" because the title of the document "indicates that it may contain some discussion of existing policy."  Finally, the court finds that defendant "merely labels [one] document 'draft guidance for policy and procedures for medical support detainee operations'" and holds that "'[a]n agency cannot meet its statutory burden of justification by conclusory allegations[.]'"  The court finds similarly concerning several other documents.
  • Exemption 5, Attorney-Client Privilege:  First, the court holds that "[d]efendant, in its declaration, offers no explanation as to what confidential client communication underlies [certain withheld Power Point] slides."  "Although it is possible that the detainee abuse reports themselves are confidential, Defendant does not make such an assertion."  "Moreover, information regarding the Hippocratic Oath[, which appears on the slides,] is not derived from confidential information from the client but is rather 'generally applicable legal advice' that does not normally 'rest . . . on the factual particularities conveyed in a typical confidential communication by a client.'"  Second, the court finds that "[d]efendant fails to describe with any particularity whether [certain] discussions were meant to be confidential and the purpose for which the clients sought the attorney's advice."
  • Litigation Considerations, Adequacy of Search:  The court holds that "[t]here is no basis to question Defendant's representation that it was unable to locate the responsive attachments."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Adequacy of Search
Updated December 15, 2021