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Kan. v. DOD, No. 16-4127, 2018 WL 1412066 (D. Kan. Mar. 21, 2018) (Crabtree, J.)

Wednesday, March 21, 2018

Kan. v. DOD, No. 16-4127, 2018 WL 1412066 (D. Kan. Mar. 21, 2018) (Crabtree, J.)

Re: Request for records concerning President Obama's plan to close military detention center in Guantanamo Bay

Disposition: Granting in part and denying in part defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "[T]he court finds that defendant has met its FOIA obligations to conduct an adequate search."  The court first finds that "Plaintiff's request does not specify where in defendant's many offices to search."  "And defendant has explained that [the Office of Detainee Policy ("ODP")] is the only department likely to possess files relevant to plaintiff's request because it led the effort to close GTMO."  "Other agencies, defendant explains, likely have no additional information."  "The court thus concludes FOIA only requires defendant to search ODP."  Second, "the court rejects plaintiff's argument that the employees conducting the search rendered the search process inadequate."  The court explains that "Plaintiff's assertion that these employees would know nothing about GTMO detainees transferring to the U.S. mainland contradicts – without evidentiary support – defendant's affidavit that ODP 'is the lead office of [defendant's] policy regarding detainees generally.'"   Finally, "[t]he court concludes FOIA does not require defendant to search again, using [the additional search terms proposed by plaintiff]."  The court finds that one of the proposed search terms "is extremely broad" and the others "are not terms unique to the GTMO closure process."
  • Exemption 5, Deliberative Process Privilege:  The court first finds that, "because plaintiff's request expressly focused on information created before President Obama released his GTMO closure plan[,] [a]ny responsive documents are, by definition, predecisional[.]"  The court then considers individual documents and finds that, as to two cost-related documents, "Defendant's affidavit just explains that the costs considered might reveal its deliberative process without elaborating."  "[T]he court needs more information to decide if defendant properly exempted this information."  Additionally, regarding a document which "redacts the name of an agency or person – it's unclear from the document which it is – who was involved in planning a survey visit to a potential GTMO replacement site[,]" the court finds that "[it] currently lacks sufficient information to decide if the identity of the unknown actor will reveal the deliberative process."  The court explains that "Defendant claims the identity of the persons or agencies involved with a decision can show an agency's deliberation process."  "But defendant never elaborates on how disclosing this name could reveal defendant's deliberation process."

However, "[t]he court . . . finds that defendant's use of the deliberative process privilege for [a documents containing a "'discussion about answers to questions regarding costs of military commissions'"] is proper."  The document "involves '"the give-and-take" the deliberative process privilege seeks to protect' because it captured a deliberation about how to answer questions."  The court finds similarly regarding a document which "contains 'public affairs guidance and draft questions and answers about closure plan[]'" because "[t]he public affairs guidance is deliberative because it reflects agency discourse about what public statements the agency should make."  Also, the court finds that "Exemption 5 protects an agency's cost estimation[]" "[a]nd [certain] charts[, which the court finds were properly withheld,] involve cost estimations because they list costs for closing GTMO – an event that hasn't occurred yet."  Additionally, the court finds that "[r]evealing a discussion about the GTMO closure plan might hamper frank internal discussion[]" and, therefore, "[t]he court . . . concludes that Exemption 5 protects [a] document [containing such a discussion] from disclosure."  Also, regarding "an information memo, [containing] . . . a 'discussion of three options for transferring detainees[,]'" the court finds that "Exemption 5 protects memos that discuss how an agency might proceed on a project."  Finally, "[t]he court . . . rejects plaintiff's argument that the court should deny defendant's motion based on plaintiff's strong need for the information."  The court finds that "plaintiff's need for the information plays no role in the court's determination whether defendant has discharged its FOIA obligations."

  • Exemptions 7(E) & 7(F):  "[T]he court agrees with plaintiff[]" that "[l]aw enforcement costs do not implicate the harms 7(E) and 7(F) are designed to protect."  "Costs, without copious amounts of detail, cannot disclose law enforcement techniques, procedures, or guidelines in a way that could allow someone to circumvent the law."  "Nor would the disclosure of costs put anyone's life or physical safety in danger."  However, "the court concludes that defendant properly redacted this information under Exemption 5."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "Defendant . . . has satisfied its general burden to produce segregable, non-exempt information."  The court finds that "plaintiff has not adduced sufficient evidence to overcome the presumption that defendant properly produced the reasonably segregable non-exempt information – except for five documents[.]"


Adequacy of Search
District Court
Exemption 5
Exemption 7E
Exemption 7F
Litigation Considerations
Updated July 3, 2018