Judicial Watch, Inc. v. Dep't of Def., 847 F.3d 735 (D.C. Cir. Feb. 7, 2017) (Pillard, J.)

Judicial Watch, Inc. v. Dep't of Def., 847 F.3d 735 (D.C. Cir. Feb. 7, 2017) (Pillard, J.)

Re: Request for records concerning transfer of five Guantanamo Bay prisoners to Qatar in exchange for release of American soldier captured in Afghanistan

Disposition: Affirming district court's grant of defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege: The Court of Appeals for the District of Columbia Circuit "[s]ee[s] no reason to disturb the district court's judgment that [a memorandum written by the Assistant Secretary of Defense regarding the Guantanamo Bay detainees] was a privileged deliberative document, [and] affirm[s]." First, the court notes that "[the requester] does not dispute that, when the [memorandum] was drafted, it was both predecisional and deliberative[,]" but instead "contends that the Secretary of Defense 'expressly adopted' the [memorandum] when he signed [certain] letters to Congress[.]" The court relates that "[the requester] characterizes the Secretary's signing and sending the letters as a ratification of the cover memo's reasoning." The court finds that "[t]hat does not necessarily follow." "The Secretary might have relied on the memo's reasoning in deciding to take the action it recommended, but it is also possible that he did not." The court notes that "[the requester] points to [defendant's declarant's] statement that it is 'common for the Secretary of Defense not to endorse a cover memo[ ], if he proceeds to sign the correspondence submitted beneath the cover memo[ ].'" "But, [the court also notes that,] taking into account the Secretary's common practices, [defendant's declarant] concluded that signing the correspondence submitted beneath the [memorandum] was not an 'endorse[ment]' of the memo's analysis." "[The court] therefore cannot treat the memo as a decisional document subject to disclosure."