Schwartz v. DOD, No. 15-7077, 2017 WL 78482 (E.D.N.Y. Jan. 6, 2017) (Ross, J.)

Schwartz v. DOD, No. 15-7077, 2017 WL 78482 (E.D.N.Y. Jan. 6, 2017) (Ross, J.)

Re: Request for records concerning government's rules for monitoring, interrupting, and censoring proceedings of military commissions at Guantanamo Bay

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

• Litigation Considerations, Adequacy of Search: The court holds that "all three agencies have supported their motions for summary judgment with declarations that fall short of FOIA's requirements, so summary judgment cannot be granted in defendants' favor." First, the court finds that ONDI's declaration "does not state that all files likely to contain responsive records were searched, nor does it describe ODNI's search methodology." The court explains that "[a]n agency must search all offices likely to have responsive records; it does not suffice for an agency to search only the locations 'most likely' for responsive documents to be located." Additionally, the court explains that "[it] is left with questions about the relationship between the files searched and the rest of the Office of General Counsel's file system that bear on the adequacy of the search[.]" Second, the court finds that DOD's "declaration is patently insufficient to support DOD's motion for summary judgment." "First, [DOD's] declaration contains no statement indicating 'that all files likely to contain responsive materials . . . were searched[.]'" "[DOD']s declaration also fails because it provides no explanation of DOD's search methodology, let alone a description of 'what records were searched, by whom, and in what manner,' as the FOIA requires." Third, the court finds that "[u]nlike ODNI and DOD, the CIA has submitted a declaration that 'aver[s] that all files likely to contain responsive materials . . . were searched.'" "[The CIA's] declaration, however, fails to describe the CIA's methodology in a manner that would allow summary judgment to be granted in the CIA's favor[]" because it "does not contain 'the search terms and the type of search performed,' . . . and does not explain 'what records were searched, by whom, and in what manner,' . . . required in order for the court to assess the search's reasonableness."
   
• Exemption 7(F): The court holds that a partially withheld "DOD[] powerpoint presentation is not a 'record[ ] or information compiled for law enforcement purposes,' so exemption 7(F) does not apply." The court notes that "DOD does not assert that any of the redacted information relates to the military commissions, any other DOD operations at Guantanamo Bay, or any identifiable undertaking by the DOD to prevent risks to national security." Instead, the court relates that "DOD is arguing that the presentation was prepared for a law enforcement purpose because it was created to maintain the physical security of an office that is in turn charged with maintaining physical security at Guantanamo." The court finds that "this link is too attenuated." The court finds that no "direct link between the withheld information and any law enforcement purpose" has been established by DOD.
   
• Exemption 3: The court "agree[s] with the CIA with respect to four of the five redactions: [defendant's declarant's] declaration, though brief, provides sufficient information for the court to determine that it is logical and plausible that these four redactions relate to intelligence sources or methods." The court relates that "[t]he CIA asserts that its withholdings are authorized by the National Security Act, 50 U.S.C. § 3024, which instructs the Director of National Intelligence to protect certain information from disclosure including, as relevant here, 'intelligence sources and methods.'" The court finds that "[defendant's declarant's] declaration provides a 'contextual description . . . of the documents subject to redaction.'" "[Defendant's declarant] then provides three non-conclusory statements that explain with 'reasonable specificity,' . . . that the redacted information relates to intelligence sources and methods." "Taken together, [defendant's declarant's] statements explain that the withheld classified information relates to the capture, transfer, and interrogation of detainees within the CIA's RDI program." "It is certainly logical that the details of this program, which involves CIA's capture, transfer, and interrogation of detainees, constitute a classified intelligence 'method' – after all, one of the primary purposes of interrogation of detainees is to gather foreign intelligence." Responding to plaintiff's arguments, the court finds that "the CIA's assertion that the withheld information is substantively different than publicly available information is entitled to deference." Additionally, the court finds that "[a]n agency's decision to declassify documents cannot be used to prove that those documents were initially improperly withheld." "This is because an agency should not be 'penalize[d] . . . for voluntarily reevaluating and revising its FOIA withholdings.'" However, "[w]ith respect to [one] redaction, [the court] agree[s] with plaintiff that [defendant's declarant's] declaration is insufficient." The court explains that "it appears that 'the rationale given for exemption is . . . inconsistent with the released portions of the document.'"
   
• Exemption 3, Glomar: The court holds that "[t]he CIA has properly invoked the Glomar doctrine, 'tether[ed]' to FOIA exemption 3." The court "find[s] that [defendant's declarant's] declaration meets the CIA's burden." First, the court finds that "[h]er declaration explains that if the CIA were required to disclose the existence or non-existence of records relating to the means by which any original classifying authority can monitor or interrupt the Guantanamo audio feed, such confirmation could indicate that the CIA has previously interrupted the feed or that the CIA lacks the capacity to do so." "This makes logical sense." "If the CIA has records responsive to plaintiff's request, it would be logical to infer that the CIA has some role in the interruption of the feed, which the CIA asserts is a classified fact – and which certainly constitutes an intelligence method." Responding to plaintiff's arguments, the court finds that "[p]laintiff points to no official prior disclosure of the existence or non-existence of the records he seeks here[]" and "[t]he fact that information is publicly available does not contravene the CIA's showing that it is properly classified." Second, the court finds that "[defendant's declarant] explains that disclosure of the fact that the CIA either has or does not have records relating to security officers at Guantanamo would reveal the relationship that the CIA has with the Office of Military Commissions, if any." "[Defendant's declarant] then states that the relationship that CIA has with the Office of Military Commissions, if any, is an intelligence source or method that is properly classified." Responding to plaintiff's arguments, the court finds that "even if the CIA has exceeded its authority by involving itself in law enforcement proceedings at Guantanamo, it may properly classify documents based on this involvement."