Khatchadourian v. Def. Intel. Agency, No. 16-311, 2022 WL 971206 (D.D.C. Mar. 31, 2022) (Lamberth, J.)

Khatchadourian v. Def. Intel. Agency, No. 16-311, 2022 WL 971206 (D.D.C. Mar. 31, 2022) (Lamberth, J.)

Re:  Request for records concerning WikiLeaks disclosure

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for partial summary judgment

• Litigation Considerations:  "After this Court denied summary judgment . . . the DIA took the opportunity for a 'renewed review of the full universe of documents withheld under Exemptions 1, 3, and 5.'"  "[Plaintiff] argues that this extensive rehaul of the process, far from indicating DIA's commitment to FOIA compliance, is evidence of bad faith."  "Here, defendants engaged in an unprompted second-round review and produced these documents on their own accord."  "[Plaintiff's] argument is not just unsupported by the record in this case."  "It would also create the perverse incentive against subsequent disclosure by agencies that the D.C. Circuit has instructed this Court to avoid."
  
  "[Plaintiff] asks the Court to order defendants to reprocess the documents again because defendants redacted the names of IRTF senior leadership."  "While the records here have the names of . . . IRTF senior leadership . . . redacted, defendants have since admitted that these men were IRTF Chief, IRTF Deputy, and IRTF Director, respectively."  "[Plaintiff] argues that 'persist[ing]' to redact these names on the record is bad faith."  "But defendants have disclosed this information on the record, and none of [Plaintiff's] cited cases require an agency to reprocess documents yet again to unredact specific names when they have already admitted to plaintiff the exact information plaintiff seeks."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[Previously] this Court held that defendants 'met their burden to show that the records withheld under Exemption 1 contain classified information' but submitted only a 'conclusory' segregability analysis that was insufficient to demonstrate adequate segregability."  "[Defendants] renewed explanation and Vaughn Index is sufficiently detailed enough to fulfill their segregability burden."  "Defendants declared in each entry of their Vaughn Index when no 'reasonably segregable non-exempt portion of the document could be released.'"  "These individualized declarations are 'sufficient to establish that [the agency] fulfilled its obligation to segregate' when combined with 'sufficiently detailed' justifications for withholdings."  "[T]wo members of DIA's staff have filed sworn affidavits including extensive explanations of the multiple level, line-by-line review of each document."  "With these new explanations of process, defendants fulfilled their segregability requirements."
  
  "[Plaintiff] notes documents where the subject line has been released . . . and points to the 'peculiar' inconsistency of withholding some subject lines and not others without a "particularized showing.'"  "But, as defendants note, '[t]here is no requirement to parse a document with such particularity in a Vaughn Index that it address the rationale for withholding each sentence.'"  "And, to this Court, releasing some subject lines and not others indicates properly individualized segregability determinations, as opposed to blanket decisions."
  
  "[F]or Exemption 3 defendants declared 'that [they] conducted a line-by-line review for segregable information' . . . and detailed in their Vaughn Index when no further information could be segregated."  "[T]his Court finds that defendants have fulfilled their segregability requirements for Exemption 3.
  
  "As to the records withheld under § 424, defendants attest that the only information withheld under § 424 are: employee names and contact information; office names, symbols, and similar information; web addresses from certain internal DIA networks; names of countries or agencies with which DIA shares intelligence; information that would tend to reveal the number of personnel and resources tasked to IRTF; information regarding upcoming focus areas for IRTF personnel; and information regarding the IRTF office space, building access, finances."  "This Court agrees that each of these categories of information, if disclosed, would 'reveal DIA's organizational structure' and so are appropriately withheld."
  
  Similarly, the Plaintiff argued "that the Vaughn Index 'does not contain any information about what the subject line contains or explain how release of that subject line, alone, would jeopardize 'intelligence sources and methods.'"  "But [plaintiff] point[s] to no requirement that defendants parse each document with such specificity."  "In any matter, defendants explain that 'the subject line of [V-048] relates to the Government's assessment of the release of information from a partner agency's intelligence database, with respect to then-ongoing Iraq negotiations' and was properly withheld as 'related to intelligence sources and methods.'"  "And while he buries it in a footnote, there is in fact evidence of good faith here: [plaintiff] notes that other documents . . . have only portions of subject lines redacted . . . with other words disclosed."  "This indicates that defendants undertook an individualized segregability analysis."
  
  "Now, like for Exemptions 1 and 3 above, defendants have provided significant detail about their segregability process as to Exemption 5."  "This detail and the two-level review process described fulfill defendants' segregability obligations for Exemption 5, just as it did for the previous two Exemptions."
   
• Exemption 1:  "Defendants explained that 'revealing the fact that IRTF wrote an entire classified memorandum about WikiLeaks issues with respect to one country may tend to reveal the extent of U.S. vulnerabilities' with respect that country."  "These explanations indicate the possibility of significant harm to national security if released."
  
  "[Plaintiff] first expresses doubt paragraphs under the 'Expected Media Treatment' header are classified because the defendants released a single paragraph under an 'Expected Media Treatment' header that was marked unclassified."  "This argument baffles."  "The fact that the defendants properly released an unclassified portion of the document does not indicate that the portions they withheld are also unclassified."  "Second, [plaintiff] disputes that the paragraphs in question could 'harm [] the national defense or foreign relations of the United States.'"  "But defendants explained that the paragraphs 'tend to reveal, at a granular level, the kinds of news media that the U.S. Government tracks within particular countries, its candid assessments regarding the trustworthiness of or motivations behind the reporting of particular news sources, and other information that would tend to reveal [the government's] sources and methods of collecting and synthesizing intelligence with respect to news media.'"  "This affidavit 'describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith.'"
  
  "Finally, [plaintiff] argues that the harm requirement for classification under Executive Order 13526 is at issue with 'respect to some of the records withheld by [d]efendants due to the dissolution of the government of Afghanistan.'"  "This Court will not 'demand that [defendants] undertake the Sisyphean task of checking that any exemptions properly applied . . . remain valid now.'"  "Plaintiff is more than welcome to file another FOIA request."  "He cannot cut the line 'based on post-response occurrences [that] could create an endless cycle of judicially mandated reprocessing.'"
   
• Exemption 5, Deliberative Process Privilege:  "Instead of identifying two 'umbrella' decisions like before . . . defendants identify a number of smaller decisions with specificity—assessments regarding what information could be shared with other partners, decisions regarding what superiors should say when discussing foreign relations issues, individualized assessments on discrete issues presented to superiors via slide deck, and decisions on how to protect United States vulnerabilities through potential countermeasures."  "The agency has properly pinpointed 'sub-decision[s]' which the record informed . . . and illustrated that these records are predecisional."  "The 'function and significance' in the deliberative process that each document played is now clear."  "[Defendants] explain 'the relation between the author and the recipients of the documents' by indicating when materials went from subordinate officers, who lack decisionmaking authority, to superiors."  "Defendants also now distinguish between talking points, slide decks, internal memoranda, and interagency requests and responses."  "[Plaintiff] argues that defendants failed to establish that records in Category C [assessments by subordinates of foreign policy and military vulnerabilities relating to Wikileaks] are predecisional because defendants do not pinpoint the exact decision in question for each individual record, instead using categories."  "[Plaintiff] seeks a level of specificity not required."  "While the 'deliberative process privilege is [more] dependent upon the individual document and the role it plays in the administrative process' than other exemptions . . . an agency need only 'reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection.'"  "[D]efendants clarified that Category C documents . . . informed five types of decisions . . . .'"  "These identified decisions are specific enough for this Court to conclude that the documents are predecisional."  "The Court need not require defendants disclose the 'particular decisions themselves,' which may reveal the 'very information the agency hopes to protect.'"  [Plaintiff] also demands a 'precisely tailored' explanation for each withheld record under Category C."  "But that is exactly what defendants provide: 'At a minimum, the agency must provide three basic pieces of information in order for the deliberative-process privilege to apply: (1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document's author and recipient.'"  "Those facts are provided for each document here."  "While [plaintiff] may find the explanations provided 'rote' because they apply to both desk notes and more formal memoranda . . . the law does not require more." 
  
  "[Plaintiff] next argues that defendants are improperly withholding a number of 'final' talking points under Exemption 5."  "Defendants explain these were talking points created for internal briefing meetings, not public adoption . . . and so are predecisional and deliberative."  "While [plaintiff] argues that these are not predecisional because they were used [for] the internal meetings and thus adopted . . . he seems to misunderstand the nature of the relevant decision."  "Defendants do[] not argue that the relevant decision was what to say in the internal meeting."  "For example, the Vaughn Index for . . . (one of the records in question) explains that the relevant decision was the 'impact assessment of the unauthorized disclosure of information resulting from leaked documents.'"
  
  "Next, [Plaintiff] challenges . . . 'Finished Intelligence Product' and . . . 'Final Report of the Department of Defense Information Review Task Force.'"  "Non-withstanding the titles of the documents, which the defendants cannot change, they have consistently asserted that these documents are predecisional."  "And, in any event, because these paragraphs of the records in question are withheld in full under Exemptions 1 and 3 . . . they will not bar summary judgment."