Osen LLC v. U.S. Cent. Command, No. 19-6867, 2023 WL 5664734 (S.D.N.Y. Sept. 1, 2023) (Cronan, J.)

Osen LLC v. U.S. Cent. Command, No. 19-6867, 2023 WL 5664734 (S.D.N.Y. Sept. 1, 2023) (Cronan, J.)

Re:  Request for records concerning attacks against American servicemembers stationed in Iraq

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

• Exemption 1; Waiver and Discretionary Disclosure, Waiver; Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that “Plaintiff argues that Defendant may not redact the Vehicle information by relying on the fact – which Defendant does not deny . . . – that Defendant would not have redacted such information had these requests been made at the time of those litigated in [two earlier cases], and that Defendant actually did release similar information at that time.”  First, regarding plaintiff’s waiver theory underlying its argument, the court relates that “[r]elying on past disclosures of information about some [explosively formed penetrators (“EFPs”)] attacks, Plaintiff asks the Court to order production of records containing information about different EFP attacks.”  “But that ‘information does not match,’ because ‘each disclosure says nothing about the attacks that the other disclosures depict.’”  “Consequently, ‘an official disclosure of EFP strike point images waives Exemption 1 only as to the same information about the same attack that those images memorialize.’”  “Under that rule, as Defendant recognizes, it cannot ‘withhold vehicle information that has previously been produced under FOIA.’”  “But because under [the earlier, related case] the disclosure of information about an EFP attack triggers a waiver of Exemption 1 only as to ‘the same information about the same attack,’ Defendant’s past disclosure of similar vehicle information relating to different attacks plainly does not preclude it from redacting the Vehicle Information that Plaintiff seeks in this case.”  Additionally, the court finds that “though the Court must consider how the prior production of similar information bears on whether Defendant may withhold the Vehicle Information under Exemption 1, Plaintiff errs in suggesting that waiver is the legal doctrine that governs the relevance of Defendant’s prior production to its present withholdings.”  “[W]hether Defendant properly invoked Exemption 1 as to the Vehicle Information depends on its ability to logically and plausibly articulate why that withheld information was exempt from disclosure.”  “[T]he volume of voluntary disclosures of similar information mounted, ‘the less compelling this position’ – that is, Defendant’s justification for its withholdings – ‘will become.’”  “[I]t is obviously relevant to the propriety of Defendant’s invocation of Exemption 1, which depends on whether the agency can present a compelling justification for its redactions.”
  
  Second, regarding plaintiff’s estoppel arguments, the court finds that “collateral estoppel applies only if, among other elements, ‘the identical issue was raised in a previous proceeding.’”  “And [the earlier, related case’s] holding as to EFP size is not identical to any issue raised in this litigation:  whether the EFP size information Defendant redacted matched prior disclosures is simply a different question from whether the Vehicle Information matches any information in prior disclosures.”  “The holding in [the earlier case] that different information did match does not prevent Defendant from litigating whether the Vehicle Information matches in this case.”  Additionally, the court relates that “Plaintiff has not shown that Defendant, ‘the party against whom the estoppel is asserted[,] took an inconsistent position in a prior proceeding.’”
   
• Exemption 1:  The court finds that defendant properly invoked Exemption 1.  “As an initial matter, the Court finds that the publicly filed Unclassified . . . Declaration describes Defendant’s justification for withholding the Vehicle Information ‘with reasonably specific detail.’”  “That declaration first explains that . . . American national security would be threatened by the release of ‘specific details of how EFPs were able to effectively penetrate the armor on American military vehicles, as well as the types of vehicles and locations that were most vulnerable to penetration.’”  “[Defendant] then explains how adversaries could capitalize on this information to harm the national security of the United States and its allies.”  “The Unclassified . . . Declaration then describes how such details would be revealed were the Vehicle Information to be produced to Plaintiff.”  “Furthermore, the Unclassified . . . Declaration explains that Defendant changed its standards for redaction for such materials in 2020 because it assessed that merely redacting strike point images, while still disclosing the Vehicle Information, would reveal ‘information about the location(s) of the battle damage on the targeted/damaged vehicle, as well as the types of vehicles and locations most vulnerable to EFPs.’”
  
  “Next, the Unclassified . . . Declaration demonstrates that the withheld Vehicle Information ‘logically falls within” Exemption 1.’”  “[Defendant’s declarant] explains in his unclassified declaration that he conducted a ‘personal review of the documents at issue,’ and based on that review, as well as his ‘personal experience as a combat arms officer and commander in combat[ ] and information furnished to [him] in the course of [his] official duties,’ he ‘determined that all of the [V]ehicle [I]nformation . . . meets the classification criteria of Executive Order 13526,’ and thus the Vehicle Information is ‘currently and properly classified at the SECRET level.’”  “[Defendant’s declarant] further notes that, to the extent any of the Vehicle Information was not classified at the time Plaintiff submitted its FOIA requests, ‘in accordance with Executive Order 13526 Section 1.7(d), that information has since been determined to be classified on a document-by-document basis at [defendant’s declarant’s] direction as set forth in the current [United States Central Command Security Classification Guide, Central Command Regulation (‘USCENTCOM SGC, CCR’)] 380-14.’”  “The justification articulated in the Unclassified . . . Declaration demonstrates that the Vehicle Information logically satisfies the criteria under Executive Order 13,526[.]”  “Because American adversaries continue to use EFPs to threaten national security by attacking American vehicles, the Vehicle Information, which identifies how past EFP attacks were able to breach American defenses as well as the types of vehicles and locations on those vehicles most vulnerable to penetration, would educate those adversaries as to how they could similarly breach American and allied defenses in future attacks.”  “This could reasonably be expected to cause identifiable and describable damage to national security.”  “Furthermore, by identifying how past EFP attacks succeeded in damaging American vehicles, the Vehicle Information pertains to the ‘vulnerabilities’ of those vehicles.”  “Thus, the publicly filed Unclassified . . . Declaration demonstrates that the Vehicle Information logically falls within Exemption 1.”  “Further, the Vehicle Information plainly falls within the categories of information classified at the SECRET level pursuant to USCENTCOM SGC, CCR 380-14.”  “As summarized by [defendant’s declarant], who signed and approved the currently applicable version of USCENTCOM SGC, CCR 380-14, . . . that regulation identifies as information classified as SECRET, among others:  ‘cause of damage to a U.S. tactical vehicle and description of IED effects (i.e., ballistic holes, dents, spalling, penetrations, fire, etc.); location(s) of U.S. tactical vehicle damage, to include reference to interior or exterior areas; blast or projectile’s angle of attack/impact, velocity, etc.; and U.S. tactical vehicle speed at time of attack/impact.’”  “Consistent with Executive Order 13,526, such information – which ‘can be conveyed through text, drawings, sketches, photographs, charts, or storyboards’ – ‘could be used to identify exploitable vulnerabilities of U.S. combat systems, or to identify the effectiveness of weapons or munitions used against U.S. combat systems.’”  “Under USCENTCOM SGC, CCR 380-14, documents falling under ‘these categories cannot be classified unless they are “sanitized” of “battle damage” information,’ and Defendant has determined ‘that it is not possible to fully sanitize photographs of all battle damage information, because the redacted photographs still revealed information about the location(s) of the battle damage on the targeted/damaged vehicle, as well as the types of vehicles and locations most vulnerable to EFPs.’”  “Defendant’s application of USCENTCOM SGC, CCR 380-14 to the Vehicle Information, which itself is entirely in line with Executive Order 13,526, thus further demonstrates that the Vehicle Information ‘logically falls within’ Exemption 1.”  “The Classified . . . Declaration provides additional ‘reasonably specific detail’ as to Defendant’s justification for its redactions, as well as information that further corroborates and bolsters the explanation set forth in the Unclassified . . . Declaration for why the Vehicle Information ‘logically falls within’ Exemption 1.”
  
  “Plaintiffs’ attempts to controvert this justification by citing purportedly ‘contrary evidence in the record’ are unpersuasive.”  “Plaintiff's primary argument in this regard relies centrally on the fact that Defendant’s prior productions in [the earlier, related case] have already disclosed considerable information similar to the Vehicle Information that Defendant now seeks to withhold.”  “Plaintiff misunderstands Defendant’s position.”  “Certainly, the logic and plausibility of Defendant’s justification for its present withholdings would be undermined were Defendant to concede that materially indistinguishable information about other attacks can today safely be disclosed, as Plaintiff suggests it does.”  “But Defendant does not concede the propriety of the disclosures in [the earlier, related case] while maintaining that the very same type of information cannot properly be disclosed now.”  “Instead, Defendant has simply changed its position:  while it previously believed that the disclosure of the Vehicle Information did not threaten national security, it now believes that national security is threatened both by the disclosures in [the earlier, related case] – which, having already occurred, cannot be undone – and by those Plaintiff now seeks.”  “In changing circumstances, Defendant has ‘changed its classification standard based on a revised risk assessment and more potent threats.’”  “To be sure, a present willingness to disclose information materially indistinguishable from the Vehicle Information would suggest that Defendant does not actually believe its disclosure would threaten national security, thereby undermining the plausibility of its justification.”  “But the tact that Defendant once held a different view in the past, when circumstances were different, hardly undermines its position today:  Plaintiff presents no authority to support the suggestion that an agency is forbidden from altering what it redacts from FOIA disclosures as changes in the world and in its appreciation of threats to national security alter whether certain information falls within FOIA’s exemptions.”
  
  “Alternatively, Plaintiff attempts to undermine Defendant’s justification for withholding the Vehicle Information by arguing, in essence, that the disclosure of that information would not threaten national security because any information that might be revealed to American adversaries via the disclosure of the Vehicle Information could also be obtained through alternative sources of information already available to the public.”  “The existence of alternative sources of information does not undermine the logic or plausibility of Defendant’s rationale for withholding the Vehicle Information.”  “The mere fact that information can be obtained from multiple sources hardly entails that no relevant differences exist between the value or usefulness of those sources.”  “Plaintiff further suggests that the disclosures already made in response to the requests litigated in [the earlier, related case] themselves constitute an alternative source of information that American adversaries might employ to secure whatever advantage they could otherwise glean from the Vehicle Information.”  “Certainly, a point might be reached at which the information already disclosed becomes so voluminous that no further benefit could he expected from additional disclosure . . . .”  “But [defendant’s declarant], whose declarations are entitled to ‘substantial weight’ before this Court, . . . denies that that point has been reached, insisting instead that the continued disclosure would further threaten national security.”
  
  “Lastly, Plaintiff argues that permitting Defendant to redact the Vehicle information would violate ‘fundamental fairness’ in that ‘what determines whether a Victim, including Gold Star family members of a service member killed in an Attack, gets access to as much information as possible in describing the Attack in which the Victim was injured or family member killed’ would be ‘whether that Victim’s request fell into [two earlier, related cases].’”  “But this argument proves too much.”  “Whenever classification standards change – indeed, whenever any law changes – those governed by the earlier rule will be treated differently than those governed by the changed rule.”  “To be sure, such differences in treatment may be regrettable, but if a change alone violates fundamental fairness, then the law could never change.”  “FOIA does not prohibit changes in classification standards, and Plaintiff has presented no authority holding that it does.”