Bloche v. DOD, No. 07-2050, 2019 WL 5580099 (D.D.C. Oct. 29, 2019) (Contreras, J.)

Bloche v. DOD, No. 07-2050, 2019 WL 5580099 (D.D.C. Oct. 29, 2019) (Contreras, J.)

Re:  Request for records concerning involvement of medical professionals in designing and implementing interrogation tactics

Disposition:  Granting in part and denying in part two defendants' renewed motion for summary judgment; granting in part and denying in part six defendants' motion for partial summary judgment; denying plaintiff's cross-motion for partial summary judgment

• Exemption 5, Deliberative Process Privilege:  Regarding OASD-HA Policy, first, the court holds that "OASD-HA Policy has now adequately justified its privilege claim for almost all of the challenged OASD-HA Policy documents."  Regarding one "memo and proposed amendments offered by PHR . . . withheld in full under Exemption 5's deliberative process privilege," "discussing proposed amendments to DOD detainee healthcare policies," the court finds that "OASD-HA Policy has not provided enough explanation about its relationship with . . . a non-agency actor, for the Court to assess whether OASD-HA Policy may properly rely on the 'consultant corollary' exception to Exemption 5."  "[U]ntil the agency clarifies the context in which [the non-agency actor] was asked to provide this information and the relationship between the organization and the agency in the delivery of advice, Defendants' justification is insufficient to demonstrate 'that any exemptions claimed actually apply.'"  Second, regarding handwritten notes on a draft which the court previously found was correctly withheld in full, the court holds that "[r]egardless of whether the notes were created to edit the draft or to participate in further deliberations about the draft, the agency's declaration attesting that the notes reference particular pages of the draft, . . . and the Court's in camera review of the notes establish that they are the opinions of the writer regarding particular pages of the draft."  "As such, OASD-HA Policy has amply specified the notes' relationship to the draft and, by extension, how they contributed to a drafting 'process by which governmental decisions and policies are formulated.'"  Third, the court finds several emails withholdable "[b]ecause these communications were antecedent to any policy decision by ASD(HA) and written by individuals without decision-making authority, and because they operated to 'facilitate or assist development of the agency's final position on the relevant issue' . . . ."
  
  Regarding the Department of the Army, concerning drafts and discussions surrounding agency manuals, "the Court grants Defendants' motion for summary judgment with respect to all of their deliberative process privilege claims, with the exception of [certain] documents . . . ."  Regarding the records appropriately withheld, the court relates that "[b]y indicating the context (development of the agency's position concerning the FM) for which the material was produced, Army has amply '"identif[ied the decisionmaking process" to which the withheld documents contributed.'"  Specifically regarding emails at issue, "Army details between which parties the emails were sent, establishes that the emails contain opinions and recommendations, and discusses the relationship between the email and a particular policy development process, thereby adequately supporting its invocation of the privilege."  However, the court finds that "Army's other privilege claims are insufficiently supported."  "Army never identifies or describes which decisionmakers were targeted, nor does it state what sorts of concerns or points of clarification were involved with any particularity."  "Without more to contextualize the agency's development of and subsequent reliance on – or lack thereof – the reasoning in these documents, the Court cannot be certain that these documents entail predecisional 'formulation or exercise of . . . policy-oriented judgment.'"  Additionally, "[b]ecause Army cannot locate unredacted versions of . . . four documents, it 'relies on its prior Exemption 5 determination,' reached in 2008, 'for purposes of this motion.'"  "The problem with this reliance, however, is that the agency has not 'describe[d] the requested documents and "the justifications for nondisclosure with reasonably specific detail."'"
  
  Regarding SOCOM, the court finds that "[w]ithout more specificity about the decisionmaking timeline and context, however, SOCOM has failed to carry its burden concerning application of the privilege."  "SOCOM has not explained how, exactly, the comments from 2003 contributed to the agency's deliberative process concerning a final position on the relevant issue."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "Army has adequately justified its application of the privilege."  "Because the attorney-client privilege 'protects communications from attorneys to their clients if the communications "rest on confidential information obtained from the client,"' . . . and this was a communication in which an Army attorney conveyed her position on 'legal concerns' regarding an agency position to an agency client, Army has established that this is the sort of communication that the privilege protects."
   
• Exemption 5, Attorney Work-Product:  The court holds that "[defendant's] statements suffice to establish that [a certain] document qualifies for work product privilege."  The court relates that defendant "redacted portions of [an] email chain [which] involve 'agency counsel's legal opinions and recommendations regarding the possibility of criminal prosecutions as a result' of the investlitiigation."  The court finds that Army has pointed to a specific investigative proceeding, involving a specific individual in the Army, concerning 'the possibility of criminal prosecutions as a result of the investigation.'"  "It has further stated that the redacted portions reflect the agency counsel's communications regarding the possible criminal prosecutions, establishing that the counsel knew of the 'real possibility' of litigation at the time that he wrote."  "But similar specificity is lacking for [other documents]."  "Rather than identify a particular investigative proceeding, Army relies on generalities coupled with the statement that '[c]ounsel anticipated the possibility of litigation.'"  "But there is a difference between 'possible litigation,' . . . and the 'foreseeable litigation' that the law demands to claim the privilege . . . ."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  Regarding OASD-HA Policy, the court holds that "the supplemental materials submitted discharge [OASD-HA Policy's] obligation" because "[t]he agency has further averred that it conducted a 'line-by-line review of OASD-HA Policy's records' and determined that it 'released all reasonably segregable information.'"
  
  Regarding the Army, the court finds that "there are two fundamental problems with Army's reliance on these submissions to establish that it has satisfied its segregability burden."  "First and foremost, this declaration addresses the nine wholly withheld documents with specificity, yet it never discusses Army's review of the other documents to which it applied FOIA exemptions."  "Nor does Army's first declaration include any statement that Army has released all segregable information."  Second, "the Court cannot pinpoint which documents are referenced in Army's second declaration, which makes it impossible to identify with certainty which documents [defendant] re-reviewed in his segregability analysis."
   
• Exemption 7, Threshold & Exemption 7(E):  Regarding two memoranda concerning interrogation tactics, the court finds that "the agency has cleared Exemption 7(E)'s threshold requirement" because "[defendant's] description establishes an adequate connection between the records at issue and NCIS's law enforcement duties."  Additionally, regarding one document, the court finds that defendant's "[d]eclaration provides particularized details concerning aspects of the withheld eleven-page memorandum, such as details regarding 'timing of demands' and 'physical and psychological indicators,' disclosure of which it asserts could 'reasonably be expected to risk circumvention of the law because current and future military detainees could use the information to evade interrogation.'"  "Contrary to Plaintiffs' argument, the law does not demand that Defendants identify a particular law that would be evaded; rather, FOIA asks only that the agency 'demonstrate logically how the release of the requested information might create a risk of circumvention of the law.'"  "But the agency's justification falls below even the low bar of 7(E) for the [other] memorandum" because "Navy has failed to provide in its supplemental filings . . . adequate details . . . about what kinds of information the document contains."  "That said, an assertion made by a law enforcement agency invoking Exemption 7(E) is entitled to deference, . . . and the Court's in camera review of the document indicates that the partial redaction is appropriate in order for Navy to shield particular details of its interrogation strategy."
   
• Litigation Considerations, Vaughn Index/Declaration:  Regarding Army, the court holds that "[b]ecause neither Army's declarations nor its Vaughn Index adequately indicate which [Exemption 5] privilege applies to which portions of the document, it has not in fact 'sufficiently demonstrated' that its withholdings are proper pursuant solely to the deliberative process privilege."  Specifically, the court finds that "Army's submissions simultaneously invoke attorney-client privilege, without specifying the portions of the document covered by either privilege or stating that all the redacted material is protected by the deliberative process privilege and the attorney-client privilege."
  
  Regarding DIA, "the Court agrees with Plaintiffs."  "Neither the declaration provided nor DIA's Vaughn Index, . . . indicates which portions of the document were redacted pursuant to which privilege."  "It is easy to intuit which portions were redacted pursuant to Exemption 3, yet this is not the case for Exemptions 1 and 5, which – on the information provided – may have been applied to distinct parts of the document."  "Until DIA clarifies whether it applied Exemption 1 and Exemption 5 to the same or different portions of [the withheld document], it is premature for the Court to draw conclusions as to whether the document is properly withheld."
  
  Regarding JTF-GTMO, "because the Court cannot link up the justifications and exhibit provided to an identifiable document that remains contested, it cannot determine the propriety of JTF-GTMO's redactions on these Bates numbered pages."
   
• Exemption 1:  The court holds that "CENTCOM has satisfied what FOIA requires."  The court relates that "Plaintiffs do not argue that the challenged information is improperly classified, but rather contest the sufficiency of CENTCOM's justifications."  "Plaintiffs assert that 'CENTCOM does not make clear how each' of the 'particular documents' at issue 'would in fact harm national security if released' . . . ."  "In particular, Plaintiffs contest CENTCOM's repeated reliance on a 'blanket statement' that these documents could provide '"invaluable insight into interrogation operations," without explaining how or why.'"  "The Court agrees that CENTCOM's justifications are terse."  "Contrary to Plaintiffs' contentions, however, its submissions are sufficiently detailed to establish that the withheld portions logically and plausibly fall within Exemption 1's protections for classified material."  "The titles of each of the documents contextualize CENTCOM's justifications . . . ."  "The Court is hard-pressed to say how CENTCOM could explain 'how or why' release of the documents would harm national security interests, . . . with any greater specificity, without risking disclosure of the classified techniques themselves."  "Nor do Plaintiffs suggest what, exactly, is missing from the CENTCOM submission, beyond resting on the allegation that it is too conclusory and repetitive."
   
• Exemption 7(E):  "[E]ven taking into account Exemption 7(E)'s low bar, the Court agrees that JTF-GTMO's justification is wanting."  "[T]he conclusory language provided does little more than restate the applicable legal standard."  "Although JTF-GTMO does mention the 'guard force' and 'government strategies for ensuring the security of detention and interrogation operations,' it does not include any further details, such as whether the information pertains to personnel, timing, reliability, or other matters entirely."  "And this lack of any further information means that the Court can only speculatively connect the dots to determine how release of the redaction could create the 'chance of a reasonably expected risk' of circumvention of the law."