Monday, April 22, 2013
Re: Records concerning "names, ranks, branches, countries of origin, lists of courses taken or taught, and/or dates and years in attendance of students, instructors, and guest instructors," as well "the military units" of students and instructors at DOD's Western Hemisphere Institute for Security Cooperation Disposition: Granting plaintiff's motion for summary judgment; denying defendant's motion for summary judgment
- Exemption 3: The court finds that the defendant is not entitled to withhold information pursuant to Exemption 3 because Section 1083 of the National Defense Authorization Act of 2010 does not qualify as a withholding statute. Section 1083 provides that the Secretary of Defense shall release "the entire name, including the first, middle, and surnames, with respect to each student and instructor at the Western Hemisphere Institute for Security Cooperation," unless the Secretary of Defense waives this requirement upon determination that this waiver would be in the "national interest." The court determines that this statute does not qualify as an Exemption 3 statute because "it does not provide any specific criteria for withholding information." Instead, it gives the Secretary of Defense "unbounded discretion to disclose or withhold . . . in the 'national interest,' but provides no guidance whatsoever for the exercise of that discretion." The court notes that "Congress did not want the exemption to be triggered by every statute that in any way gives administrators discretion to withhold documents from the public." "On the contrary, Congress intended exemption from the FOIA to be a legislative determination and not an administrative one." In other words, "a statute qualifies as a withholding statute under Exemption 3 where 'Congress ha[s] itself made the basic decision, and ha[s] left to the administrator only the task of implementation.'"
- Exemption 6: The court finds that the defendant is not entitled to withhold "a listing of names of students and instructors, plus home countries, military units, and classes taken or taught at WHINSEC" pursuant to Exemption 6 because the "use of the information is indicative of the public interest in disclosure and in knowing what the government is up to . . . [and] . . . [w]hen balanced against the relatively weak showing of privacy, the interest of U.S. citizens is at least as strong." The court analyzes the names and military units of the students and instructors, the only information that the defendant seeks to withhold, under the "similar files" provision in Exemption 6. The court notes that the plaintiffs have demonstrated that there is a significant public interest in the requested information given the "extensive media coverage, editorials, and scholarly works." In analyzing the privacy interests, the court notes that no individual was promised confidentiality, prior to 2004 the defendant had routinely released this information without objection, Section 1083 of the National Defense Authorization Act of 2010 provided for disclosure of this information, and the identities of the participants were not routinely kept secret. The court concludes that the defendant's showing is too speculative in nature and, "'[t]he legislative history is clear that Exemption 6 was directed at threats to privacy interest more palpable than mere possibilities.'"
Updated August 6, 2014