Rudometkin v. United States, No. 23-5180, 2025 WL 1634729 (D.C. Cir. June 10, 2025) (Edwards, S.J.)

Rudometkin v. United States, No. 23-5180, 2025 WL 1634729 (D.C. Cir. June 10, 2025) (Edwards, S.J.)

Re: Request for certain records concerning nomination, selection, and appointment of specific individual to Chief Trial Judge of the Military Commissions Trial Judiciary

Disposition:  Affirming in part, reversing and remanding in part, district court’s grant of government’s renewed motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit “note[s] that, in their briefs to this court, [the requester] and Amicus have not challenged the adequacy of the Government’s search for responsive records.” “As such, [the requester] has forfeited that challenge.”
   

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations: The Court of Appeals for the District of Columbia Circuit holds that “[the requester] has not meaningfully challenged the Government’s claim that the records at issue are covered by Exemption 5’s deliberative-process privilege.”  “He has thus forfeited such a challenge due to his failure to offer any non-cursory argument on the issue in his briefs before [the] court.”

  The court relates that “[the requester] contends that a ‘government misconduct’ exception exists for claims of privilege under Exemption 5.” The court finds that, “[f]irst, [the court has] made clear that there is no controlling precedent recognizing a government misconduct exception to Exemption 5.”  “Second, [the court has] explained that contrary to Exemption 7 – which excludes disclosure of information that would constitute an unwarranted invasion of privacy and involves balancing various interests such as the interest in exposing government misconduct – ‘[n]o such balancing or consideration of public interest is called for under Exemption 5.’” “Accordingly, [the court] reject[s] [the requester’s] claim that allegations of government misconduct can overcome Exemption 5’s deliberative-process privilege.”
  
  Additionally, “[o]n the basis of the record before us, [the court] find[s] that the Government has met the foreseeable harm standard . . . .” The court finds that, “[i]n this case, the records relate to discussions and deliberations concerning a particularly sensitive personnel decision – the selection of a Chief Trial Judge by the Secretary of Defense with input from subordinates – which ‘make[s] the foreseeability of harm [from disclosure] manifest.’”  “Specifically, the release of recommendations, drafts, and other documents that would reveal internal discussions about the candidates, why the candidates were or were not selected, and the criteria for their selection, plainly would impair candid discussions of candidates and the selection process going forward, given that the successful candidate will have power and authority to affect the interests of the people involved in the selection process.” “‘[T]he sensitivity of the context in which these [communications] arose as well as their subject matter, and the need for confidentiality in discussions of’ the selection of a high-ranking position in the military ‘provide the particularized context for a finding of foreseeable harm.’”  “Although the Government’s declarations may take on the flavor of the boilerplate and generic assertions of foreseeable harm that we have rejected (i.e., bare assertions of chill to future internal discussions), . . . the manifest nature of the harm in this case from the disclosure of the contested documents confirms that the Government’s claims are not exaggerated.”

• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing & Foreseeable Harm Showing:  The Court of Appeals for the District of Columbia Circuit holds that “[the government] has not yet satisfied FOIA’s segregability requirement.”  “[The court] therefore reverse[s] and remand[s] on the segregability issue.”  “The court’s decision in [Leopold v. DOJ, 94 F.4th 33 (D.C. Cir. 2024)] controls the results here.”  “[The government] attested in [its] declarations that [it] had conducted a line-by-line review of the documents, and determined that there was no further reasonably segregable information and that the non-exempt portions of the record were segregated from the exempt portions.”  “Absent from [those] declarations, however, is a statement that the Government reviewed the exempt portions of the documents to assess ‘whether any information could be segregated and released without causing a foreseeable harm to the agency.’”  “Instead, the Government considered segregability as to only ‘non-exempt portions’ and ‘exempt portions of the records,’ without addressing foreseeable harm.”  “But Leopold requires independent consideration of whether any portion of a document, although exempt, could be segregated and released without causing foreseeable harm.”  “Moreover, the District Court’s findings on segregability suffer from a similar flaw.” “Specifically, the court concluded that the Government disclosed ‘all reasonably segregable nonexempt information.’” “Yet, by not addressing whether the Government demonstrated that exempt information could not be segregated and disclosed without causing foreseeable harm, the District Court’s decision fails the test prescribed by Leopold.”
  
  “The Government claims that [the requester] forfeited any segregability argument by failing to contest segregability before the District Court.”  “The Government is mistaken.”  “[The court has] made it clear that the District Court ‘has the obligation to consider the segregability issue sua sponte, regardless of whether it has been raised by the parties’ and have ‘many times remanded in cases where the district court had failed to rule on segregability.’”  “Therefore, if the record from the District Court does not confirm that exempt information could not be segregated and disclosed without causing foreseeable harm, then the record is not adequate to support the Government’s claim of compliance with FOIA’s segregability requirement.”