Milner v. DOD, No. 14-1032, 2015 U.S. Dist. LEXIS 93444 (W.D. Wash. July 17, 2015) (Lasnik, J.)

Milner v. DOD, No. 14-1032, 2015 U.S. Dist. LEXIS 93444 (W.D. Wash. July 17, 2015) (Lasnik, J.)

Re: Request for records concerning review or approval by DOD Explosives Safety Board for Navy's planned second Explosives Handling Wharf at Naval Base Kitsap-Bangor

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

• Exemption 3:  The court finds that Exemption 3 was properly applied.  The court relates that "[t]he Department justifies many of the redactions in this case based on 10 U.S.C.     § 130e."  "That statute, which was enacted in 2011, specifically references § 552(b)(3) and authorizes the redaction of 'critical infrastructure security information.'"  The court then addresses plaintiff's three arguments for disclosure and first finds that "[t]he fact that a document reflects explosive safety information regarding a planned storage and handling facility may make it less likely that the information will actually be exploited, but, if it were exploited, havoc would likely ensue."  The court then addresses plaintiff's argument that public comment is required for this statute to be applicable and finds "that the statute contains no notice requirement:  it simply requires the Secretary to balance two interests, presumably based on the information available."  The court last addresses plaintiff's argument that defendant did not make an independent decision regarding the documents at issue in the context of the public interest raised in this specific request.  The court held that "[w]hile § 130e requires the agency to balance the interests in disclosure and secrecy each time a FOIA request encompasses critical infrastructure security information, the agency went through that exercise here."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he Department has not adequately supported its claim of deliberative process privilege for [certain] [d]ocuments."  The court explains that "[t]here is no indication that the redacted materials are anything other than facts 'regarding the operations and locations of various buildings.'"  The court finds that "[t]he simple compilation of information necessary to inform a later decisionmaking process can hardly be described as 'deliberative.'"
   
• Exemption 6:  The court holds that defendant "is not entitled to summary judgment regarding the applicability of Exemption 6 to this information."  The court explains that "[t]he Department must . . . clearly state that only the names and contact information of individuals who are at the military rank of Colonel or below and at a rank of GS-15 or below have been redacted."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "[t]he Department has not met its burden of demonstrating that it conducted a search reasonably calculated to uncover all relevant documents."  The court relates that "[t]he Department argues that it need not search documents that were previously produced in [a related] case challenging the proposed second Explosives Handling Wharf because those records were already available to plaintiff for review."  The court finds that "[t]o the extent the Department seeks a blanket exclusion for all publicly-available documents, the argument is rejected:  the documents are agency records and must, therefore, be made available absent an applicable exemption."