Rosenberg v. DOD, No. 17-00437, 2020 WL 1065552 (D.D.C. Mar. 5, 2020) (Mehta, J.)

Rosenberg v. DOD, No. 17-00437, 2020 WL 1065552 (D.D.C. Mar. 5, 2020) (Mehta, J.)

Re:  Request for emails sent by retired Marine Corps General John F. Kelly pertaining to Joint Task Force Guantánamo ("JTF-GTMO")

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part and denying in part plaintiff's renewed motion for summary judgment and partial reconsideration

• Exemption 1:  The court holds that "DOD may not withhold information pertaining to the number of hunger strikers and force-fed detainees at Guantánamo Bay between March 19, 2013, and December 2, 2013."  The court relates that "DOD withheld information pertaining to detainee health and hunger strikes, wherein General Kelly 'discuss[es] in broad and specific terms detainees' mental, physical, and emotional health, as well as the measures . . . being developed or taken to ensure their wellbeing,' . . . and identifies 'the number of hunger strikers' and 'the impact . . . the strike is having on detainees' health' . . . ."  While the court previously supported the agency's invocation of Exemption 1 for such records, the court finds that "[r]econsideration is warranted here."  "In their previous motion, Plaintiffs cited to a Miami Herald database that tracked the daily number of hunger strikers and instances of force-feeding between March and December 2013."  "[Plaintiff's] new declaration confirms, and DOD does not dispute, that '[e]very single data point in [the database] was obtained directly from an official in the Department of Defense who was authorized to disclose publicly the number of hunger strikers and forced feedings.'"  "This additional information constitutes a 'change in the court's awareness of the circumstances,' . . . which 'might reasonably be expected to alter the conclusion reached by the court' . . . ."  "The flexible threshold for interlocutory reconsideration is therefore satisfied."  "On the merits, DOD contends that disclosure is unwarranted because Plaintiffs have not demonstrated that there is an exact match between the information requested and information that has been officially disclosed."  "That argument is easily disposed of."  "DOD has withheld these records on the grounds that they identify 'the number of hunger strikers' and enteral feeders at Guantánamo Bay."  "The majority of these records are dated between the spring and winter of 2013 . . . — the same timeframe during which the government routinely disclosed official tallies of hunger strikes."
  
  Additionally, the court finds that defendant may withhold certain information concerning "detainees' movements to third countries" "'detailing the 'reactions of the detainees upon learning of their transfer.'"  DOD's supplemental declaration "confirm[ed] that this information has been withheld not because it is itself classified, but because 'it is too intertwined with other withheld information that is properly and currently classified.'"  "Contrary to Plaintiffs' contentions, [defendant's declaration] explains, with sufficient specificity, that this information cannot be segregated because it 'is part of a larger discussion regarding detainee movements' and is generally discussed 'within the context of how the news of their transfer is or could impact detainee operations' and future transfers."  "In addition, based on the court's in camera review . . . , the court confirms that the information is indeed too intertwined with other properly classified information to be segregated."
  
  The court also grants summary judgment as to "12 records [withheld] pursuant to section 1.4(c), which allows classification of information that 'pertains to . . . intelligence activities (including covert action), intelligence sources or methods, or cryptology.'"  "The court originally denied summary judgment to DOD, but upon further review, the court finds that "[defendant's supplemental] declaration spells out, in significant detail, how the withheld information in each record pertains to intelligence activities, sources, or methods, and how release of that information would reasonably be expected to cause damage to the national security."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "Defendant's Motion is granted as to all categories of information except the Facilities Management category and Record 199."  The court first finds that "the information 'plausibl[y]' qualifies under Exemption 5, . . . and may be withheld so long as the agency has demonstrated its release is anticipated to cause reasonably foreseeable harm to an exemption-protected interest."  The court explains that "[i]n the government's new declaration, [defendant] states that the records reflect General Kelly's consideration of 'various options in relation to the military commission's temporary order.'"  "[Defendant] acknowledges that DOD erroneously made inconsistent redactions of General Kelly's thoughts, but states that the DOD maintains that the remaining redactions should be upheld."  "In addition, [defendant] states that although not every record in this category explicitly contemplates a course of action, all of the withheld records are part of that deliberative process."  The court agrees with defendant that "his opinions were part of a broader deliberative process in which he was 'was considering various options in relation to the military commission's temporary order.'"  "The court has reviewed in camera a sample of these records, and agrees that each record conveys information bearing on the agency's decisionmaking process."
  
  Turning to the foreseeable harm, the court finds that "[t]he degree of detail necessary to substantiate a claim of foreseeable harm is context-specific."  Regarding discussions concerning detention operations, the court credits defendant's statement that disclosure would "'inhibit[ ] officials from' engaging in 'frank discussions about the[se] issues and exploring alternatives going forward,' which, in turn, would make it 'less likely' for senior leadership 'to gain the full and necessary understanding' of these issues and would 'hamper agency decision-making about [these] crucial military operational issues.'"  The court finds that that description of foreseeable harm "provides more than adequate detail and context to satisfy the agency's heightened burden."  The court finds that "[a]n agency taking a categorical approach does indeed have an obligation to 'group together like records,' so that the court can be sure that the records in that category all present similar risks of harm to an exemption-protected interest, . . . but there is no reason a record cannot fall into multiple categories."  As to the effect of the passage of time, the court finds that "these are communications among the highest levels of leadership at DOD and the White House about highly sensitive operational issues at Guantánamo."  "Given the sensitivity of this information, the court can readily see how its release would prospectively harm agency decisionmaking, notwithstanding the fact that the records are now more than six years old."  Regarding the foreseeable harm which would result from the release of discussions concerning detainee health, the court finds adequate defendant's statement that disclosure "'would harm the agency's deliberative decision-making process by prematurely revealing the details of the consultative process on sensitive issues like detainee health and enteral feeding, thereby inhibiting the Commander of SOUTHCOM from engaging in open and frank discussions about vital issues related to detainees' health and well-being'" and that "because senior officials require the 'unguarded views and recommendations of military leadership' to make 'informed decisions about questions related to detainee health,' release of this information and its attendant chilling effect is likely to result in 'less informed and poorer quality decisions' about these issues."  Regarding the foreseeable harm which would result from the disclosure of discussions of detainee movements, the court credits defendant's statement that "'weighing options and commenting on any potential difficulties is crucial to arriving at proper conclusions about how to implement detainee movements,' and disclosure of this information and its correspondent chilling effect would risk diminishing the free flow of information necessary to this process."  Regarding the foreseeable harm which would result from the disclosure of defendant's detainee communications policy, the court finds adequate defendant's statement that 'disclosure of these records would reasonably be expected to harm the agency's decision-making on this important policy issue' because officials would be 'less open in discussing [their] views, opinions, and recommendations with the knowledge that that deliberative discourse will be released to the public.'"  "This, in turn, would reasonably be expected to result in poorer quality decisions."  Regarding discussions concerning how to respond to court or commission rulings, the court finds adequate defendant's foreseeable harm statements that "[i]f those discussions are subject to public disclosure and thus available to the personnel under discussion,' . . . 'a manager will be much less likely to openly discuss [similar] performance issues and sensitive personnel matters' in the future."  "Disclosure will consequently harm agency decisionmaking on personnel issues by causing senior decision-makers to be 'less informed.'"  "Additionally, disclosure could 'lead to confusion about the actual reasons and rationales for personnel actions through the release of agency discussions that may not be the ultimate grounds for action.'"  Additionally, regarding the withholding of the discussions concerning how to respond to court or commission rulings, the court notes that "[p]laintiffs offer only one counterargument."  "Because DOD 'has not invoked the attorney-client privilege or work-product privileges that would seem to more naturally capture records implicating the sort of litigation harm identified' . . . Plaintiffs argue, 'the government's concern about harm to deliberations about an agency's position in pending litigation does not appear to be presented here.'"  "That argument is easily rejected."  "The deliberative-process privilege is a separate privilege from the attorney-client and work-product privileges, and the release of deliberative discussions may harm an agency's deliberative process regardless of whether the information is also protected by these other privileges."  Regarding one remaining "catch-all" category, the court finds that "[w]ith the exception of Record 199, the court finds that DOD has satisfied the foreseeable harm standard as to these records."
  
  "DOD has not carried its burden as to Record 199, however."  "The agency's declarations simply provide too little detail on the information withheld in this record, stating only that 'Record 199 contains General Kelly’s opinion on an issue raised by a senior official' . . . ."  But it "never asserts that release of the information contained in Record 199 is likely to chill these sorts of communications or otherwise harm the agency's decisionmaking process."  Similarly, regarding the foreseeable harm in the disclosure of records concerning facilities management, the court finds that defendant's statement that disclosure would cause "'injury to the agency's decision-making' by chilling officials' willingness to discuss maintenance and facilities issues . . . fails to connect the harm in a 'meaningful way to the information withheld.'"  Specifically, the court finds that defendant "nowhere explains why disclosure of this seemingly humdrum information is 'likely' – as opposed to merely conceivable – to make [officials] feel less free to convey his views on these matters in the future."  Regarding discussions concerning personnel management, the court finds that "[defendant's] declaration adequately identifies the harms that are reasonably foreseeable to result from disclosure of this category of information."  The court relates that defendant stated that "'[i]f those discussions are subject to public disclosure and thus available to the personnel under discussion,' . . . 'a manager will be much less likely to openly discuss [similar] performance issues and sensitive personnel matters' in the future."  "Disclosure will consequently harm agency decisionmaking on personnel issues by causing senior decision-makers to be 'less informed.'"  "Additionally, disclosure could 'lead to confusion about the actual reasons and rationales for personnel actions through the release of agency discussions that may not be the ultimate grounds for action.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he court is satisfied that the agency has complied with its segregability responsibility as to this information."  The court finds that "Plaintiffs have not identified any reason to doubt DOD's statement that it has the reviewed the withheld records 'line-by-line to identify information exempt from disclosure for which a discretionary waiver of exemption could be applied,' making '[e]very effort' to 'segregate releasable material from exempt material,' . . . nor has the court's in camera review identified any reason to question DOD's attestation."