N.Y. Times Co. v. DOD, No. 19-5779, 2021 WL 3774410 (S.D.N.Y. Aug. 25, 2021) (Daniels, J.)
N.Y. Times Co. v. DOD, No. 19-5779, 2021 WL 3774410 (S.D.N.Y. Aug. 25, 2021) (Daniels, J.)
Re: Request for "'the command and investigation report,'" which details government's reasons for reprimanding and relieving the former Commander of Joint Task Force Guantanamo Bay
Disposition: Denying plaintiff's motion for summary judgment; granting defendant's motion for summary judgment
- Exemption 1: "After considering the public [defendant] declarations and reviewing the classified submissions in camera, [the] Court finds that Exemption 1 applies to the withheld information." The court finds that "the Government's explanations, provided in both public and classified declarations, are reasonably 'detailed and specific' and support the determination that the information has been properly withheld." "[Defendant's] Declaration explains that the redacted information pertains to 'certain aspects of detention operations (namely physical security) at Guantanamo Bay' and information related to 'intelligence personnel and methods.'" "[Defendant] further explains that 'the public disclosure of [the redacted] information could harm national security by enabling transnational terrorists to circumvent security and/or intelligence methods employed in detention camps.'" "Specifically, revelation of the redacted material would show 'vulnerabilities that bad actors could exploit, including the detainees at Guantanamo Bay, that would undermine the very nature of those operations.'" Regarding "Plaintiffs claim that the Government is applying Exemption 1 to withhold information about a 'drug deal' mentioned in the Ring Report and that such a deal has 'no apparent connection to "military plans, weapons systems, or operations,"'" the court finds that "[defendant's] Supplemental . . . Declaration explains that the 'drug deal' referred to in the . . . Report is a military slag term connoting 'the acquisition of materi[a]l in a roundabout or unofficial manner,' rather than a reference to illegal or illicit activity by a servicemember." "Thus, this phrase is related to 'military plans, weapons systems, or operations' within the meaning of Section 1.4(a) of the Executive Order."
- Exemption 3: The court holds that "the responsive records are exempt from disclosure under Exemption 3." The court relates that "[h]ere, the Government invokes 10 U.S.C. § 130b as the applicable qualifying statute." "In relevant part, that statute authorizes the Secretary of Defense to, inter alia, withhold 'from disclosure to the public personally identifying information regarding . . . any member of the armed forces assigned to an overseas unit.'" "Personally identifying information is defined by the statute as 'the person's name, rank, duty address, and official title and information regarding the person's pay.'" "And the term 'overseas unit' is defined as 'a unit that is located outside the United States and its territories.'" "There is no dispute that 10 U.S.C. § 130b qualifies as a withholding statute under Exemption 3." The court finds that "Plaintiffs have provided no reason to doubt the detailed and specific statements provided in [defendant's] declarations." "Indeed, '[t]he [Government] has stated as much detail publicly in this case as it reasonably could without revealing sensitive information, and presented further specifics in camera.'" Regarding plaintiff's specific objections, the court finds that "[l]ength of service and mobilization dates are particularly revelatory information, and it is not hard to fathom that an interested individual could use such information in conjunction with other public information to identify a particular servicemember." Additionally, "[defendant's] Declaration makes clear that those pages were withheld in their entirety because they 'consist of a legal memorandum that discusses classified information and refers to specific personnel.'"
- Exemption 5, Deliberative Process Privilege & Exemption 5, Other Considerations: The court holds that "the redacted information in the . . . Report is exempt from disclosure under Exemption 5." The court finds that "[defendant's] Declaration establishes that the information withheld was predecisional." Additionally, the court finds that "[defendant's] Declaration makes clear that the information redacted in the findings of fact is deliberative." "The redaction in finding of fact 1 'describes the decision-making process regarding the handling of certain classified materials,' which is the very subject of the investigation into [the former Commander of Joint Task Force Guantanamo Bay's] conduct." "Similarly, the redactions in finding of fact 2 reflect an individual's subjective belief about the decision-making process." "Accordingly, the Court is able to 'pinpoint [the] agency decision or policy to which the document contributed.'"
"Likewise, the Court credits the Government's explanation that disclosure of this material would cause foreseeable harm to the Department of Defense's deliberative process." "[Defendant's] Declaration elucidates the potential harms disclosure could cause including, (i) witnesses being less likely to report and cooperate in investigations, (ii) the Government being hindered in its efforts to protect classified information if security concerns are not raised, (iii) the quality and integrity of investigations being compromised if witnesses, subjects, and investigators feel they cannot be fully candid, and perhaps most persuasive, (iv) foreign adversaries could potentially gain insight into the military's investigative process and gain information about military officers."
- Exemption 7(E): The court relates that "[t]he Government has invoked Exemption 7(E) to withhold 'certain aspects of the physical security of the detention camps at Guantanamo Bay and certain information security processes at JTF-GTMO.'" "The Government contends that the 'release of this information would both enable circumvention of physical security measures at Guantanamo and consequentially result in the disclosure of classified information related to detention operations in a manner that would harm national security.'" "This information falls squarely within the purpose of Exemption 7(E)." "'Exemption 7(E) sets a relatively low bar for the agency to justify withholding' that [defendant's] Declaration and classified declarations submitted for in camera review have sufficiently cleared."
- Litigation Considerations, In Camera Inspection: "Because the Government has provided declarations that 'contain reasonable specificity of detail,' it is unnecessary for [the] Court to conduct a full in camera review of the . . . Report."