Leopold v. DOD, No. 14-30, 2024 WL 4332566 (D.D.C. Sept. 27, 2024) (Moss, J.)

Leopold v. DOD, No. 14-30, 2024 WL 4332566 (D.D.C. Sept. 27, 2024) (Moss, J.)

Re:  Requests concerning Guantanamo Bay detention facility (“GMTO”)

Disposition:  Denying defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Procedural Requirements, Searching for Responsive Records; Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The court relates that “[t]he parties first dispute the adequacy of the searches the Department conducted in response to [plaintiff’s] request for ‘artist renderings of enteral feedings of GTMO detainees from January 2002 through the present.’”  “The Court agrees with [plaintiff] that the Department has not met its burden to demonstrate the adequacy of its search.”  “The Court agrees that the Department’s description of its search does not provide a sufficient basis for the Court to grant the Department’s motion for summary judgment.”  “To be sure, the Department provided the search terms used for the initial August 2020 electronic search.”  “But the Department failed to provide search terms for any of the other searches, nor did it identify the files searched for any of the searches.”  “And the Department did not explain the type of search – i.e., physical, electronic, or both – that [two offices] each conducted.”  “If more reason were needed to deny the Department summary judgment on this issue, although none is, the Court also notes that the Department at no point ‘aver[s] that all files likely to contain responsive materials (if such records exist) were searched.’”
  
  Next, the court finds that, “[u]nlike the Department’s search for artists’ renderings, which failed to identify any responsive records, the Department contends that its search for videos of enteral feedings identified so many potentially responsive records that it would be unduly burdensome for the Department to sort through that footage to identify responsive videos, particularly since any such videos ‘would almost certainly be classified and exempt from disclosure in their entirety.’”  Regarding aspects of a search for certain records that defendant did conduct, the court notes that “the Department conducted a further search to try to address certain issues [plaintiff] had raised.”  “[Plaintiff’s] suggestion that the Department search ‘Combat Camera’s electronic files,’ the ‘Detainee Administration section,’ and the ‘computer server’ where ‘still images created by Combat Camera’ were placed, . . . were addressed by the Department’s latest search.”  “But although the Department did endeavor to respond to [plaintiff’s] challenges to its original search, it did not do everything that [plaintiff] urged.”  “Specifically, it does not appear that the Department’s renewed search included ‘offices and files related to detainee litigation and in detainees’ habeas files,’ . . . or ‘the electronic files of J-3 (Operations),’ . . . .”  “As a result, there remains the question of whether the Department’s updated search ‘was reasonably calculated to uncover all relevant documents,’ . . . in light of the Department’s failure to search these two areas [plaintiff] identified.”  However, the court finds that “[plaintiff] has failed to offer anything beyond speculation to support this challenge to the sufficiency of the Department’s supplemental search, nor does he point to any specific office or record system that the Department should have searched, which is likely to contain videos not otherwise identified by the Department’s search.”  “[Plaintiff’s] other challenge to the Department’s supplemental search – that the Department should have but did not search the J-3 file system – fares better.”  “To raise this theory above the speculative level, [plaintiff] once again relies on declarations submitted by the Department in other FOIA litigation.”  “One such declaration, . . . explains that, at a prior time, ‘Combat Camera was under the purview of the J-3, and since that time Combat Camera was transferred to the control of the Joint Detention Group, and consequently has now been set up as a separate office under JTF-GTMO.’”  “The declaration also explains that certain images at issue in that FOIA case, relating to media of specific detainees, ‘were found in the J-3 file system, possibly as a remnant of the time when the Combat Camera was under the purview of J-3.’”  “[Plaintiff] contends that this declaration ‘raises substantial doubt’ as to the sufficiency of the search, . . . particularly in light of the fact that the footage discussed in that declaration appears to overlap with the media [plaintiff] seeks . . . .”  “The Court agrees.”  “[Plaintiff] has provided sufficient reason, beyond ‘[m]ere speculation,’ to question whether the search should have included J-3 files, . . . and the Department has not provided an answer on that score.”  “Even in its redoubled efforts to respond to [plaintiff’s] search, the Department does not state that it searched the J-3 files for potentially responsive materials, nor does it explain why it failed to do so.”
  
  “Separate from the question of whether the Department has identified the universe of all potentially responsive videos, the Court must consider what obligations the Department has to review each potentially responsive video to determine whether it, in fact, contains responsive images.” “That is, having located the correct universe of virtual ‘file cabinets’ that might contain response material, is it now required to review each file contained in each of the thousands of ‘file cabinets’ it has identified?”  “[T]he Court is not yet persuaded that the Department lacks even partial inventories that might assist it in narrowing the universe of electronic files that it would need to view in order to respond, in a reasonable manner, to Plaintiff’s FOIA request.”  “To be sure, [defendant’s] declaration must be ‘accorded a presumption of good faith,’ . . . but that presumption extends only as far as the declaration goes, and, here, [defendant] does not dispute that some ‘incomplete indices’ do in fact exist.”  “To the extent those indices might help identify electronic files that are likely to include responsive material, they would lessen the burden that the Department invokes in declining to review the files.”  “And those indic[]es might provide an avenue for the Department to provide at least a less-than-perfect response to [plaintiff’s] FOIA request.” “In any event, without additional information, the Court cannot conclude that the absence of an ‘exhaustive inventory’ – as opposed to a ‘partial inventory’ – supports granting summary judgment in the Department’s favor.”  “In further considering the burdensomeness of the search the Department contends it must undergo to determine which videos are responsive, it is useful to divide the universe of potentially responsive videos into two categories:  the ‘physical media,’ identified in the first search the Department conducted, and the ‘digitized media[,] identified during the updated JTFGTMO search.’”  “The Court begins with the latter category . . . .”  “In making its case for why it would be an unreasonable burden to view all 28,000 videos, however, the Department notes that it did have a way to isolate from the 28,000 videos those videos that it believed were more likely to contain responsive images.”  “[Defendant’s] declaration explains that the Department selected the 400 videos it deemed ‘more likely to be responsive’ based on ‘file names, partial index comments, [and] folder names’ that indicated those files ‘were related to enteral feeding.’”  “That assertion is at odds with the Department’s contention that the only way to whittle down the entire universe of potentially responsive electronic media it has identified is to view every single piece of media.”  “The Department, moreover, does not indicate how many hours it would take to review the remainder of the 400 more-likely-responsive videos.”  “Finally, the Department provides no response to [plaintiff’s] contention that the agency could use the ‘names and/or ISNs of detainees subjected to enteral feeding or the dates of the enteral feedings’ to narrow the universe down further.” “Turning then to the physical media that the Department identified in its first search, the Department contends that viewing even this smaller universe of media would be so unreasonably burdensome that the Department should not be required to undertake that task.” “The Court . . . is once again left with insufficient information reasonably to gauge the length of time – and the effort – that would be required to review the relevant media to identify responsive material.”  “At a minimum, the [defendant’s] declaration is unclear, and it does not account for any shortcuts that might help expedite the review.”  “With all this in mind, the Court is unpersuaded that the only way for the Department to respond to [plaintiff’s] request is to watch every one of the 28,000 electronically stored videos, and every one of the MiniDVs, VHS tapes, compact discs, and floppy discs it has identified as containing potentially responsive material.”  “But, at the same time, the Court has little doubt that an effort to identify the potentially responsive material with even a fair degree of accuracy would involve an enormous – albeit not yet quantified – effort.”  “One final piece, however, is necessary for the Court to decide whether further efforts are required.”  “As explained above, the Court cannot assess whether a burden is unreasonable without evaluating whether the effort is likely to yield any meaningful results.”
  
  “As the above analysis reflects, the Court is persuaded that the process of locating the media that shows ‘enteral feedings of Guantanamo Bay detainees’ would require an enormous effort.”  “But beyond that general understanding, the Court cannot determine on the basis of the present record whether the effort is one that can be accomplished in a year or five years.”  “The Court cannot discern, for example, whether partial indices could shorten the process and whether other DOD components might be available to assist with the digitization process and, indeed, might already be in the process of digitizing and indexing some of the materials at issue.”
   
• Exemption 1; Exemption 3; Exemption 6; Exemption 7(E):  The court relates that “[t]he Department contends that even if it were able to identify the responsive videos, they would be exempt from disclosure under FOIA Exemptions 1, 3, 6 and 7(E).”  “[Defendant] offers three reasons why videos depicting enteral feedings ‘would be’ properly classified . . . .”  “First, [defendant] explains that ‘[c]ertain force protection information is classified because release would cause serious damage to national security by reducing the effectiveness of force protection measures at JTF-GTMO and other detention facilities and expose U.S. personnel, as well as detainees, to the risk of harm.’”  “Second, [defendant] explains that videos of enteral feedings would be properly classified because it may contain ‘close-up images of detainees and former detainees that clearly identify the faces of the individuals’ which ‘is properly classified SECRET.’”  “Finally, [defendant] explains that ‘[r]elease of videos that clearly identif[y] detainees being restrained while being enterally fed, as well as receiving medical care while restrained, would exacerbate the world’s perception of detainees in U.S. custody.’”  The court finds that “[t]he Department’s contention that all the media that [plaintiff] seeks would be classified finds some support, moreover, in experience to date and in the nature of the request itself.”  “[O]f the 35 videos located to date, all have been withheld pursuant to Exemption 1 – without objection.”  “It bears note, moreover, that [plaintiff’s] request is targeted at precisely the material that the Department asserts would be classified:  he seeks ‘all media’ that records ‘enteral feedings of Guantanamo Bay detainees[]’ . . . .”  “This is not a case, in other words, in which a subset of the material the requester seeks is arguably classified; rather, he seeks the very material that, according to the Department, ‘reasonably could be expected to result in damage to the national security, . . . and the original classification authority is able to identify or describe the damage.’”  However, “[o]n the present record, the Court can only conclude that it seems likely that most, if not all, of the videos at issue could be withheld under FOIA Exemption 1.”  “A more complete showing would be required, however, to permit the Court to conclude with confidence, as the Department urges, that the entirety of each and every one of the videos would, in fact, be classified or otherwise exempt from disclosure.”  “It is . . . possible that conducting a further sampling from the 400 videos already deemed ‘more likely to be responsive’ would assist the Court in determining whether the Department is correct that all of the media at issue would be classified.”
   
• Procedural Requirements, Responding to FOIA Requests; Litigation Considerations, Jurisdiction:  The court relates that “[h]aving considered the adequacy of the Department’s search in response to [plaintiff’s] FOIA requests, the Court now considers [plaintiff’s] separate claim that the Department has engaged in a pattern and practice of violating the FOIA by failing to provide estimated dates of completion to FOIA requesters.”  “Before addressing the merits, the Court must first consider whether it has jurisdiction to consider the claim.”  “First, the factual premise of [defendant’s] argument is incorrect.”  “The Court has yet to conclude that the Department has completed its searches for responsive material.”  “In short, the question whether the Department has completed the process of searching for and releasing non-exempt responsive records remains in dispute, and that dispute is sufficient to establish an ongoing dispute regarding the Department’s statutory obligation to provide [plaintiff] with an estimated date on which it will complete action on at least one of his requests.”  “Second, the legal premise of the Department’s mootness argument is also incorrect.”  “In a pattern or practice case, like this one, a claim for future injunctive relief is not rendered moot simply because the agency has complied with the FOIA request at issue in the litigation.”  “Rather, under the voluntary cessation doctrine, ‘[a] controversy may remain to be settled,’ as long as the agency ‘is free to return to [its] old ways.’”  “The Court is, accordingly, satisfied that it has Article III jurisdiction to consider [plaintiff’s] request for declaratory and injunctive relief.”
  
  “The Court must consider a second jurisdictional issue, however, which neither party addresses.”  “The jurisdictional allegations set forth in [plaintiff’s] Complaint premise the Court’s statutory jurisdiction on a single source:  5 U.S.C. § 552(a)(4)(B).”  “That section vests the district courts with jurisdiction ‘to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.’”  “Notably, [plaintiff] does not bring suit under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., or the Mandamus Act, 28 U.S.C. § 1361, nor does he seek to invoke general federal question jurisdiction, 28 U.S.C. § 1331.”  “The question the Court must confront, then, is whether this limited grant of jurisdiction authorizes the federal courts to grant declaratory or injunctive relief enforcing 5 U.S.C. § 552(a)(7)(B)(ii), a provision that does not bear directly on the withholding or release of covered records.”  “Here, [plaintiff] seeks an injunction that would apply to all requesters, and not just himself.”  “The legislative history of § 552(a)(4)(B) casts further doubt on whether § 552(a)(4)(B) was intended to vest district courts with jurisdiction to enforce § 552(a)(7)(B)(ii).”  “In particular, a Senate Report from 1974 explains that Congress intended ‘the judicial review provisions [to] apply to requests for information under subsections (a)(1) and (a)(2) of section 552 as well as under subsection (a)(3).’” “Section 552(a)(7)(B)(ii), in turn, was not enacted until years later, . . . and it is far from clear that Congress intended § 552(a)(4)(B), which grants the district courts with jurisdiction to redress the improper ‘withholding [of] agency records,’ to apply to a later-adopted provision, which does not require the release of agency of records but, rather, merely requires agencies to keep requesters apprised of the ‘estimated date on which the agency will complete action on the request[]’ . . . .” “Because neither party has addressed whether this Court has statutory jurisdiction to issue an injunction compelling –[defendant] to comply with § 552(a)(7)(B)(ii) in processing future FOIA requests received from [plaintiff] or others, the Court will refrain from reaching any firm conclusions at this time.”  “[I]t bears note that the Court does not intend to suggest a view on the merits of this claim – one way or the other – and thus the parties should not assume that statutory jurisdiction is the only remaining hurdle that they face.”