Osen LLC v. U.S. Cent. Command, 969 F.3d 102 (2d Cir. 2020) (Wesley, J.)

Osen LLC v. U.S. Cent. Command, 969 F.3d 102 (2d Cir. 2020) (Wesley, J.)

Re:  Requests for records concerning terrorist attacks on American service members in Iraq

Disposition:  Vacating in part, reversing in part, and remanding district court's grant in part and denial in part of parties' cross-motions for summary judgment

• Exemption 1 & Waiver:  The Court of Appeals for the Second Circuit holds that "[t]he district court erred in finding that [United States Army Central ('ARCENT')'s] FOIA Production triggered the official disclosure doctrine and operated as a waiver of [United States Central Command ("CENTCOM")'s] Exemption 1 rights to withhold images showing [Explosively Formed Penetrator ("EFP")] damage from terrorist attacks from which similar images have never been disclosed to the public."  The court relates that "ARCENT has its own FOIA staff and procedures, and it handles FOIA requests independently from CENTCOM."  "As relevant to this appeal, [the requester] challenged CENTCOM's withholdings under Exemption 1 of classified images that show damage caused by EFPs in these terrorist attacks – specifically, the 'strike points' where an EFP penetrated an armored vehicle."  "[The requester] relied on several past DoD disclosures of images of EFP damage to argue that CENTCOM waived its right to withhold similar EFP damage images from other attacks under the official disclosure doctrine."  With regard to the specificity prong of the waiver analysis, the court finds that "[i]mages of strike points from one EFP attack are 'as specific as' images of strike points from another EFP attack."  "Each set of images conveys the same level and type of details across various attacks: that an explosive weapon penetrated an armored vehicle and caused damage to the vehicle and its passengers at a certain point in time and at a certain location."  "Both the Prior CENTCOM Disclosures and ARCENT's FOIA Production included images of EFP strike points from terrorist attacks."  "[The requester] requests the same information from CENTCOM with respect to the remaining withheld images showing EFP damage of the attacks forming the subject of [the requester's] lawsuits."  "There is no principled distinction between ARCENT's FOIA Production – which the district court found constituted a waiver – and the Prior CENTCOM Disclosures – which the district court concluded did not – either from the other or from the remaining withheld images."  "Each of the disclosed and withheld images are equally specific; they tell the same stories, but about different attacks."  "The only way in which some of the Prior CENTCOM Disclosures are less specific than ARCENT's FOIA Production and the images CENTCOM withheld is that they neither contextualize, nor identify, the attack which caused the EFP damage displayed in the image."  "This lack of context is not uniform, however, as demonstrated by the DoD press conference slide deck, which identified the location and date of the attack that caused the damage seen in the photographs."  "Thus, the specificity prong of our analysis provides no basis to distinguish between the prior disclosures that the district court found did not waive Exemption 1, and the prior disclosures that the district court found did."  "Rather, all the prior disclosures upon which Osen relies satisfy the specificity prong . . . ."  With regard to the matching prong of the waiver analysis, the court held that "[the] matching prong is dispositive in this case."  "Images of damage from one EFP attack do not match images of damage from another EFP attack, and for that reason, none of the prior disclosures upon which [plaintiff] relies triggers the official disclosure doctrine for additional images from other attacks." 
  
  Circuit Judge Menashi writes separately to concur with the majority, but to note that "the court appropriately cautions that 'disclosure by one component of an Executive department or agency does not automatically implicate the official disclosure doctrine for another component of the same department or agency.'"  Judge Menashi notes that "CENTCOM did not challenge this holding on appeal."  However, Judge Menashi cautions that "[b]ecause the FOIA's provisions for disclosure and withholding apply to a subcomponent independent of its relationship with another subcomponent of the same or of a different parent agency, . . . it would be anomalous to conclude that the subcomponent's authority to withhold records depends on the independent decisions of another entity also considered an 'agency' under the statute."
   
• Exemption 1:  The Court of Appeals for the Second Circuit also holds that "CENTCOM's withholdings under Exemption 1 are appropriate, unless Exemption 1 has already been waived with respect to specific information about the specific attack at issue through prior official disclosure of strike point images from that attack."  The court finds that "[defendant's] determination that disclosure of even an individual image of EFP damage from a single attack can pose a risk to national security by evidencing vulnerabilities of military armor is both logical and plausible."  "So too is his explanation that a disclosure of a substantial number of images could pose a significantly greater risk to national security than disclosure of just a handful."  "Accordingly, neither [the court] nor the district court are in any position to deem these approximately 500 pages of images improperly withheld as classified."