Monday, July 29, 2013
Re: Request for records concerning students and instructors at the Western Hemisphere Institute for Security Cooperation Disposition: "The court ordinarily permits each side in a civil action to file only one motion for summary judgment. In this case, however, the court finds that an additional set of crossmotions is warranted, assuming defendants are willing to withdraw their premature appeal. If defendants are not willing to withdraw the appeal, the matter will be stayed until a mandate has issued from the Ninth Circuit."
- Adequacy of the Search: The court finds that, "while in this case the issues of the adequacy of the search and the adequacy of the response have been somewhat conflated in the parties' analysis, they are two distinct issues, which must be further fleshed out in cross-motions for summary judgment." The court notes that, "[t]echnically, the issue of the adequacy of the search was not administratively exhausted, as it was not raised in plaintiffs' appeal." "On the other hand, it evidently was not clear to plaintiffs before they filed the present action that defendants were taking the position that they did not have access to military unit information and were thus unable to provide it." The court states that, "[w]ith regard to the issue of the release of military unit information, defendants' current position—that they do not collect 'unit' information—appears somewhat disingenuous, given that plaintiffs' briefing on the cross-motions revolved around whether defendants could withhold the names and military units under Exemptions 3 and 6." "Defendants' partial denial of plaintiffs' request stated that they were withholding 'personal information,' which certainly suggested both names and military units." Therefore, the court finds that, "even though [it] is ordinarily precluded from ruling on an issue that has not been administratively exhausted, in this case . . . the question of the adequacy of the search should be addressed in further cross-motions for summary judgment [because] [p]laintiffs did raise the issue of the adequacy of the response in the appeal, but defendants did not clearly respond, and plaintiffs did not further pursue it." The court states that, "[d]efendants must do more than simply submit a declaration stating that 'we do not collect unit information.'" The court notes that, "'the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" "'The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.'" "'In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.'"
- Exemptions 3 and 6: In response to defendant's request that the court clarify "the scope of the April 22, 2013 order," which concerned the use of Exemptions 3 and 6, the court clarifies that, "plaintiffs had not specifically argued that the information regarding U.S. military personnel should be released," and, therefore, "the court did not separately address or decide that issue in the order." In the instant action, "defendants request that the court clarify whether it intended to order defendants to release the names of the foreign [Western Hemisphere Institute for Security Cooperation] students, instructors, and guest instructors only, or all WHINSEC students, instructors, and guest instructors, including U.S. military personnel." The court explains that, "because the plaintiffs had not specifically argued that the information regarding U.S. military personnel should be released notwithstanding the DOD regulation and the November 9, 2001 memorandum, the court did not separately address or decide that issue in the order."
Adequacy of Search
Updated August 6, 2014