Khatchadourian v. DIA, No. 16-311, 2020 WL 1309941 (D.D.C. Mar. 19, 2020) (Lamberth, J.)

Khatchadourian v. DIA, No. 16-311, 2020 WL 1309941 (D.D.C. Mar. 19, 2020) (Lamberth, J.)

Re:  Request for certain records concerning Information Review Task Force ("IRTF") which conducted damage assessment of unauthorized leaks of U.S. government information

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment; denying plaintiff's motion for in camera inspection

• Procedural Requirements, Searching for Responsive Records:  The court holds that defendants conducted an adequate search.  First, the court finds that defendants properly construed plaintiff's request.  The court explains that "[t]he first prong requested '[a]ny documents relevant to' the scope and creation of the IRTF, whereas the second request was more limited to records 'generated by the IRTF.'"  "The difference in wording would lead a reasonable person to conclude that the scope of the first prong is broader than the scope of the second prong."  Second, the court finds that DIS conducted an adequate search.  The court finds that "DIA's search methodology . . . was reasonably calculated to uncover the foundational documents for the IRTF, and it was reasonable to hone in on the emails of those most involved with the creation of the IRTF and on the time frame when decisions about the IRTF's creation were made."  "The search terms were also appropriate."  Third, the court finds that "[b]ecause Plaintiff sought records 'generated by the IRTF,' it was reasonable to conduct a search of these databases without a search of the email repositories of the IRTF's constituent members."  Fourth, the court rejects plaintiff's contention that defendants did not follow-up on clear leads.  The court explains that "DIA was under no obligation to search office and non-email records of IRTF senior leadership" because "plaintiff provides nothing more than pure speculation that their non-email records would result in responsive, non-duplicative documents."  Regarding several other leads suggested by plaintiff, the court "finds that these are not clear leads" because "Plaintiff provides nothing more than speculation to show that searching these locations would uncover responsive documents."
   
• Exemption 1:  The court finds that "defendants have sufficiently demonstrated that records withheld under Exemption 1 are classified."  The court finds that "[a]lthough a DIA FOIA analyst initially believed that some of the records withheld under Exemption 1 were unclassified, those records were later reprocessed, and DIA determined that those records actually were classified."  The court finds that "there is no dispute that DIA's declarant has expressly stated that all of the information withheld under Exemption 1 has been classified because releasing the information could reasonably be expected to cause serious or grave harm to national security."  Responding to plaintiff's arguments, "the Court concludes that plaintiff has not shown evidence of bad faith."  The court finds that "DIA is entitled to reprocess records and change its mind about what is classified."  "Punishing DIA for double-checking its records would only hinder the agency's incentive to take another look at its records in subsequent cases."  "Plaintiff also argues that errors in DIA's production are evidence of bad faith."  "Specifically, plaintiff suggests that inconsistent applications of redactions demonstrates bad faith."  'It is important to note, however, that the agency reviewed the slide deck twice."  "When it was reviewed for the second time (three years later), FOIA exemptions were applied differently."  "This is bound to happen when large numbers of records are reviewed three years apart, and it is insufficient to show bad faith."  "Essentially, although there is evidence of some minor mistakes, plaintiff has been unable to show that these mistakes amount to bad faith."  Additionally, the court "finds nothing in any of plaintiff's filings . . . that would show contradictory evidence."
  
  However, "[t]he Court . . . agrees with [the magistrate judge's] analysis and will therefore order defendants to supplement the record with respect to the segregability issue."  The court relates that the magistrate judge found that "'[w]hile DIA provided a paragraph explaining that "experts" reviewed all records "line-by-line[,]" there is no information elsewhere in [defendant's] Declaration or Vaughn Index that explain with any specificity, much less "reasonable specificity[,]" how the agency undertook its segregability analysis.'"
   
• Litigation Considerations, In Camera Inspection:  "The Court will . . . deny plaintiff's motion for in camera review."  The court finds that "plaintiff has not been able to demonstrate bad faith or contradictory evidence" and [i]n camera review would be extremely burdensome, and such an extreme measure is simply not warranted in this case."
   
• Exemption 3 & Litigation Considerations, "Reasonably Segregable" Requirements:  First, the court finds that defendants properly withheld certain documents under Exemption 3 in conjunction with 10 U.S.C. § 424, however "[t]he court will . . . order that for all documents withheld on the basis of 'revealing DIA functions,' defendants must supplement the record to further explain the basis of their withholdings."  The court finds that "Plaintiff does not appear to object to [the magistrate judge's] finding that certain documents were properly withheld under Section 424, meaning that he waived the right to contest that determination."  'Defendants never filed an objection to the report, and they ask this Court to adopt [the magistrate judge's] recommendation in its entirety."  "This means that defendants do not object to providing more detail for certain documents."  The court relates that the magistrate judge found that "'[f]or [certain] withholdings under Section 424(a)(1), the undersigned has no "specific detail" to determine whether this information concerned a function or merely concerned the carrying out of a function."  Second, the court finds that "plaintiff's objections regarding Section 3024(i) are without merit."  The court finds that "information beyond the overall cost of the IRTF and broad categories of spending would divulge information protected under Section 3024(i)."  "Plaintiff also maintains that DIA should not be able to withhold [certain] slides . . . containing information about public news media articles; however, plaintiff has been again been unable to show why the Vaughn Index is insufficient to warrant withholding this information."  However, the court agrees with the magistrate judge's recommendation that "Defendants be ordered to supplement their Vaughn Index for [certain] withholding[s]."  Finally, "[t]he Court . . . agrees with [the magistrate judge's] analysis and will . . . order defendants to supplement the record with respect to the segregability issue."  The magistrate judge found that "'[t]here is no information in [defendants'] Declaration or Vaughn Index that explain with "reasonable specificity" how the agency undertook its segregability analysis for its Exemption 3 withholdings.'"
   
• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement, Deliberative Process Privilege & Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "defendants still cannot properly invoke Exemption 5 without further supplementation of the record."  First, Court agrees with [the magistrate judge's] analysis" that "'Defendants . . . demonstrate that the records withheld under Exemption 5 were "interagency or intra-agency" records.'"  "'Given the nature of Plaintiff's requests, it should be no surprise that a large quantity of records were "internal DoD intra-agency communications or inter-agency communications among members of the IRTF task force."'"  Second, "[t]he Court . . . agrees with [the magistrate judge's] analysis and finds that defendants have only shown that one record is predecisional."  The court relates that the magistrate judge found that "'DIA does not explain which harm each record addressed, and whether the information in each record was primarily retrospective or forward-looking.'"  "'With one exception discussed below, the "broad and opaque" justification for all records withheld under Exemption 5 precludes any finding that these records are predecisional."  The court relates that the magistrate judge did find that "'DIA indicated that [one report is] an "IRTF Interim Report."'"  "'The Interim Report here necessarily predated the Final Report, so it was clearly "generated before the adoption of an agency policy."'"  However, "[t]he Court . . . agrees with [the magistrate judge's] analysis and . . . finds that defendants failed to show that the documents withheld under Exemption 5 were deliberative."  The court relates that the magistrate judge found that "'DIA's justifications fail to sufficiently describe each "individual document and the role it plays in the administrative process."'"  The court also agrees with the magistrate judge that "'[b]ased on the conclusory nature of Defendants' segregability analysis, Defendants do not meet their burden to demonstrate that DIA has provided all "reasonably segregable" non-exempt information to Plaintiff.'"
   
• Exemptions 6 and 7(C):  "The Court will . . . grant summary judgment for the defense on this issue."  The court relates that "[the magistrate judge] found that because plaintiff does not challenge defendants' use of Exemption 7(C), summary judgment should be granted for the defense on this issue."