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Connell v. U.S. S. Command, No. 18-1813, 2020 WL 6287467 (D.D.C. Oct. 27, 2020) (Moss, J.)


Connell v. U.S. S. Command, No. 18-1813, 2020 WL 6287467 (D.D.C. Oct. 27, 2020) (Moss, J.)

Re:  Request for records concerning "'conference call made on or about January 24, 2018 between Admiral Kurt Tidd and Harvey Rishikof'"

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

  • Exemption 3:  "The Court will . . . grant summary judgment in favor of the Southern Command with respect to the redaction of personally identifying information from the twenty-three records at issue."  The court relates that "[h]ere, the Southern Command relies on 10 U.S.C. § 130b(a)(1), which provides that, 'notwithstanding [the FOIA],' the Secretary of Defense may 'authorize to be withheld from disclosure to the public personally identifying information regarding (1) any member of the armed forces assigned to an overseas unit, a sensitive unit, or a routinely deployable unit.'"  "The statute defines 'personally identifying information' to mean 'the person's name, rank, duty address, and official title and information regarding the person's pay.'"  "It defines 'overseas unit' to mean 'a unit that is located outside the United States and its territories.'"  The court finds that "[h]ere, the Southern Command has established that it was authorized to redact the names of individuals assigned to the unit in Guantanamo Bay."
  • Exemption 6:  The court holds that, largely, "[it] lacks the necessary information to engage in the balancing of 'the private interest involved . . . against the public interest,' which FOIA requires."  "[T]he Court first concludes that the withheld 'names, email addresses, phone numbers, or fax numbers of junior personnel,' . . . are 'similar files' to the 'personnel and medical files' that are explicitly referenced in Exemption 6."  Second, "[g]iven Plaintiff's express concession, the Court will enter summary judgment in favor of the Southern Command with respect to any Exemption 6 redactions relating to military personnel below the rank of Major, Lieutenant Colonel, or Colonel."  "Because Southern Command seeks to withhold only personal information identifying low-level employees, which it apparently defines as officers 'at the military rank of Captain/Colonel (O-6) or below and at the rank of GS-15 or below,' . . . this leaves a relatively narrow area of dispute."  "Even as narrowed in this manner, however, the Court cannot decide on the present record whether the privacy interests at issue here are outweighed by the public's interest in disclosure."  "The possibility that the publicly available information might not include the individuals at issue here, and the conclusory assertion that none of the redactions pertain to individuals with policymaking authority, does not satisfy the Southern Command's burden on summary judgment."  "Among other things, the Court needs to know whether their names are, in fact, publicly available on the Southern Command website and the basis for Zimmerman's conclusion that none held policymaking positions."  "Beyond these deficiencies, the Southern Command has yet to demonstrate that the line between policymaking and non-policymaking officials is dispositive."  "[T]he Court cannot rest its decision, without more, on a declarant’s unexplained and unsupported assurance that none of these officers performed any policymaking functions."
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 6
Updated November 20, 2020