The New York Times Co. v. DOJ, No. 16-6120, 2017 WL 4712636 (S.D.N.Y. Sept. 29, 2017) (Berman, J.)

The New York Times Co. v. DOJ, No. 16-6120, 2017 WL 4712636 (S.D.N.Y. Sept. 29, 2017) (Berman, J.)

Re:  Request for written threat assessments of Guantanamo Bay detainees

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

• Exemption 5, Deliberative Process Privilege:  The court holds that "DOJ argues persuasively (and shows by a preponderance of the evidence) that all of the threat assessments 'fall squarely within the deliberative process privilege.'"  "The Court finds that the threat assessments are 'predecisional and deliberative.'"  The court explains that "[t]he threat assessments were created for the express purpose of advising and assisting the Review Panel 'in carrying out their responsibilities under the [Executive] Order, and were drafted antecedent to any final decisions being made.'"  Additionally, "[t]he threat assessments are 'deliberative' because they are related to the formulation of policy, i.e. they 'includ[e] express advice and recommendations regarding the proper disposition determination for each detainee.'"  Responding to plaintiff's arguments, "[t]he Court finds that . . . nine statements cited by Plaintiffs (taken together or taken individually) do not adopt or incorporate by reference one or more of the threat assessments."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that defendant satisfied its segregability obligation.  The court agrees with defendant's statement that "'the Task Force assessed the universe of information compiled about each detainee, and selected the most prescient issues about which to brief the Review Panel[,]'" and "[d]isclosing factual material within the threat assessments would 'reveal the deliberative process of selection' by demonstrating which facts in the record were 'considered significant.'"
   
• Exemption 1:  The court first notes that, "[h]aving determined that the threat assessments are properly exempt from disclosure (in full) under Exemption 5, . . . it is not necessary to analyze other exemptions."  "The Court nevertheless includes the following analysis of Exemptions 1, 7(B), 7(D), and 7(E) to assist the parties – and the public – in understanding the Court's reasoning as to all of the issues which have been presented in the briefs in this case."  The court then finds defendant's use of Exemption 1 is proper and, specifically, that "Plaintiffs have not met their 'burden of showing specific information in the public domain that duplicates [or matches] the information withheld' by DOJ under Exemption 1."
   
• Exemption 7(B):  The court holds that "[t]he Government has met its burden to show by a preponderance of the evidence that Exemption 7(B) protects against the disclosure of citations to FBI files concerning interviews of third parties[.]"  The court finds that "[b]oth [declarants] confirm in their Declarations that trials or adjudications are ongoing for the six detainees at issue."  Also, the court finds that "Plaintiffs do not dispute that such disclosure 'would furnish access to a document not available under the discovery rules[.]'"
   
• Exemption 7(D):  "The Court finds that DOJ has met its burden to show by a preponderance of the evidence that Exemption 7(D) applies to portions of the threat assessments."  The court explains that, "[w]hen invoking Exemption 7(D), an 'agency['s] burden of proof [is] satisfied by [an] affidavit declaring that . . . assurances of confidentiality are set forth . . . in the source's informant file . . ..'"  The court finds that "[defendant's] Declarations clearly meet this requirement."
   
• Exemption 7(E):  The court holds that "[t]he Government has met its burden of demonstrating by a preponderance of the evidence the applicability of Exemption 7(E)."  The court explains that "[defendant's] Declarations explain that disclosure of database identities and search results would reveal how the FBI investigates suspected terrorists, including 'the number of databases searched, the combinations of databases searched for certain individuals, the information retrieved from those searches, and the ways in which the FBI utilizes that information it obtains from such searches.'"  "'Disclosure of this information . . . would provide individuals with insight into how to avoid detection by knowing what factors would trigger discovery.'"