Protect Our Defenders v. DOD, No. 17-02073, 2020 WL 978836 (D. Conn. Feb. 28, 2020) (Bryant, J.)

Protect Our Defenders v. DOD, No. 17-02073, 2020 WL 978836 (D. Conn. Feb. 28, 2020) (Bryant, J.)

Re:  Request for certain diversity records

Disposition:  Denying defendant's motion for reconsideration of court's grant in part and denial in part of defendant's motion for summary judgment

• Exemption 6:  The court relates that "Defendants argue that reconsideration is required as to Exemption 6 because the Court did not consider [certain] controlling law or data."  The court finds that "[n]one of [defendant's] arguments are supported by citation to caselaw or data that is controlling but was overlooked by the Court nor does Defendant show manifest injustice."  Of note, the court relates that "Defendants curiously argue that they did not address whether the records at issue are 'similar files' under Exemption 6 in their motion for summary judgment because Plaintiffs did not raise the issue in opposition to Defendants' motion for summary judgment."  The court finds that "Defendants do not cite any authority for the proposition that waiver can be defensively asserted by the Government in the FOIA context where the Government has otherwise failed to establish all elements of the asserted exemption."
   
• Exemption 5, Deliberative Process Privilege:  "Even on reconsideration, [defendant's] supplemental declaration posits no supporting details explaining when, to whom, and under what circumstances the report [at issue] was provided to [Office of the Secretary of Defense] ["for consideration of whether there should be changes in these policies or practices"]."  Moreover, the court finds that "Defendants do not explain why this evidence could not have been submitted earlier but rather rely on the fact that [the] original declaration was 'not a model of clarity.'"  "It is Defendants' responsibility to be clear and to accept the consequences of its failure to meet its burden by doing so."  "Defendant cites no law to support the position that the court should reconsider this matter because the original factual support was lacking."
   
• Litigation Considerations, In Camera Inspection:  "The Court denies Defendants' request for in camera review as moot."