Wash. Post Co. v. Special Inspector Gen. for Afghanistan Reconstruction, No. 18-2622, 2021 WL 4502106 (D.D.C. Sept. 30, 2021) (Berman Jackson, J.)
Wash. Post Co. v. Special Inspector Gen. for Afghanistan Reconstruction, No. 18-2622, 2021 WL 4502106 (D.D.C. Sept. 30, 2021) (Berman Jackson, J.)
Re: Request for records concerning Lessons Learned Program ("LLP") created by Special Inspector General for Afghanistan Reconstruction ("SIGAR")
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Exemption 1: The court relates that "[it] previously held that the agency satisfied the first three prongs of [Section 1.1 of Executive Order 13,526], but failed the fourth because its declarant, as the classifier, was unable to identify any specific harm to national security that could arise from the release of a particular document in whole or in part." The court finds that "[u]nlike the first Vaughn Index, the supplement addresses each document in detail describing both its contents as well as why the material was withheld." "[T]he Court concludes that the supplemental Vaughn Index contemplates the particular harm to national security that could reasonably be threatened by the release of the withheld information." The court relates that plaintiff "questions whether some of the remaining redactions correspond to the explanations provided." In response, the court explains that "[n]otwithstanding plaintiff's objections, given the logic and the specificity of the State Department's declarations, the presumption of good faith to which they are entitled, . . . the deference accorded to withholdings premised on national security concerns, and the lack of any evidence of bad faith on the part of the agency, the Court will grant defendant's renewed motion with respect to Exemption 1."
- Exemption 7(D): The court relates that "[it] already held that SIGAR had satisfied the predicate requirement under Exemption 7 that the records were compiled for law enforcement purposes." The court finds that "[t]he Vaughn Index is not particularly helpful; it contains a nearly identical explanation for every withholding: that the informant 'requested that his/her identity remain confidential and SIGAR provided express assurances of confidentiality." However, the court relates that "[i]n the fifth declaration, [SIGAR's FOIA Officer] supplies more details: '[i]f the non-attribution box was checked "yes" then that informant requested confidentiality.'" "He added, 'I am aware that for SIGAR, an inspector general and law enforcement organization, when an informant requests that his or her name not be used without permission, that request is considered mandatory.'" The court finds that "[i]n light of these representations, for each record where the 'off the record,' 'on background,' or 'non-attribution' box was checked, defendant has provided sufficient information to support the use of Exemption 7(D) to shield the informants' identifying information to the extent that was necessary." "Also, for those [Records of Interviews ("ROIs")] that bear no name and are coded to a separate list, defendant has provided sufficient evidence to show that these interviewees received an express assurance of confidentiality." "The D.C. Circuit has upheld withholdings under Exemption 7(D) for an agency's 'standard practice of identifying confidential informants' with such codes." "Therefore, the Court will grant summary judgment in favor of the defendant with respect to any identifying information in these ROIs." "Since there is nothing in the supplemental Vaughn Index or declarations that would establish that any interviewee who agreed to speak 'on the record' received an express assurance of confidentiality, and defendant is not arguing that there are circumstances that might support an implied assurance of confidentiality, defendant has failed to justify the withholding of any 'on the record' ROI or associated audio recording under the specific terms of Exemption 7(D), and the Court will grant summary judgment for plaintiff on that issue."
- Exemptions 6 & 7(C): The court relates that "the parties have each moved for summary judgment on the question of whether identifying information in the 'on the record' ROIs can be withheld under Exemption 7(C)." First, regarding third parties named in the interviews the court holds that "Defendant emphasizes that '[u]nwitting third parties are especially deserving of protection because it is unlikely they were aware they had been named or what information had been said about them,' . . . and the Court agrees. Defendant has adequately explained the harm associated with releasing this information. . . and courts in this district have recognized that the public interest in knowing the identities of third parties, even high-ranking officials, rarely outweighs such privacy interests." "Therefore, the Court will grant summary judgment for defendant for this category of withholdings regardless of the third party's status."
Second, regarding identifying information in "'on the record'" interviews, [t]he court relates that plaintiff "takes issue with the designation of five individuals as 'low-ranking' or 'low level' employees: the former Senior Advisor on Afghanistan and Pakistan to the Under Secretary of Defense for Policy; the former Senior Director for Afghanistan on the National Security Council; the Director for Afghanistan and Pakistan on the National Security Council staff; the former special assistant to NATO's commander in Afghanistan, General Stanley McChrystal; and a senior adviser to the State Department's Special Representative for Afghanistan and Pakistan." The court finds that "[w]hile one can argue that these individuals played roles of importance, plaintiff has not identified evidence in the record that would overcome the presumption of good faith that attaches to the declarations." "All are senior advisers to high-level decisionmakers." "So while these credentialed individuals may outrank many government employees, they were not high-ranking government officials with decision-making authority that can be likened to the agency itself." "The Court has reviewed the Third Vaughn Index, and it does not appear that any of the 'on the record' interviews were given by individuals who were high-ranking government officials at the time of the interview." "Therefore, it need not balance that more diminished private interest against the potentially greater public interest involved because the only ROIs still in question are the ones on the record." The court then finds, regarding the remaining low-level employees, that "[t]he privacy interest is certainly weaker than the interest of an off-the-record informant, but it is not entirely absent." "The agency's declarant explained that most of the on the record speakers were willing to have the information they provided used and shared, but they requested that the information not be attributed to them without permission." "Under those circumstances, and given the lack of any public interest in the disclosure of lower-ranking interviewees' names, any remaining private interest outweighs the public interest."
Third, regarding private individuals and foreign nationals who were interviewed, "[t]he Court held in its previous opinion that 'private' citizens who were interviewed have a legitimate privacy interest in keeping their identities from being disclosed that is not outweighed by the public interest." "Therefore, individuals categorized as private citizens or foreign nationals in defendant's supplemental declaration and Vaughn Index fall under the protection of Exemption 7(C), and the Court will grant summary judgment for SIGAR with regard to those records."
Finally, regarding defendant's withholding of "randomly assigned interview codes and the locations where interviews took place, and its withholding of eight audio recordings in full," the court notes that much of this information was released following the court's last opinion. Concerning the remainder, the court finds that "[t]he remaining audio recording, . . . is associated with [an interview] . . . which plaintiff maintains was designated as 'on the record.'" "The informant was a high-ranking employee at the time of the events discussed, and a low-ranking government employee at the time of the interview." "Because the Court has already determined that the privacy interest in the identity of a low-ranking government employee who gave an interview 'on the record' outweighs the public interest in that information, defendant justifiably withheld Audio No. 10 under Exemption 7(C)." "As to the unique interviewee codes, SIGAR justified withholding the codes that were assigned to informants in lieu of their names: because it 'believes . . . a copy of the master list of interview codes and corresponding informant names may have been removed from SIGAR's offices by a former SIGAR employee,' . . . there is a risk that confidential informants could be identified if the codes were revealed." "Therefore, the reliance on Exemption 7(C) is supported." "Finally, SIGAR reconsidered the withholdings of the interview locations and released the bulk of the withheld information to plaintiff." "Out of hundreds, only the locations for 44 ROIs remain withheld as the 'location information [ ] was so unique that it would immediately identify the informant or, if read in conjunction with the text of the ROI, could reveal the identity of the informant.'" "Each ROI with such unique location data is noted in SIGAR's updated Vaughn index." "For these reasons, the Court will grant summary judgment to defendant as to the unique interviewee codes, the interview locations, and the six audio recordings."
- Exemption 3: "[T]he Court will grant summary judgment in favor of defendant with respect to records withheld under Exemption 3." "In its prior opinion, the Court held that defendant failed to show, pursuant to the requirement in the National Security Act, that the redacted information was withheld at the direction of the Director of National Intelligence, or someone with authority to identify and withhold national intelligence information." The court relates that "[t]he agency has submitted the declaration of . . . the Assistant Secretary of State for the Bureau of Intelligence and Research ("INR") in the State Department." "In her capacity as Assistant Secretary of the INR, she has 'original classification authority and [is] authorized to classify and declassify national security information up to the level of TOP SECRET pursuant to section 1.3 of Executive Order 13426 . . . and the National Security Act.'" "[The Assistant Secretary of the INR] avers that she has reviewed the information withheld pursuant to Exemption 3, and she 'determined that the information is national intelligence information that is protected by the National Security Act.'" "She adds that the State Department located an additional document . . . in the course of her review which should also be withheld as protected by the National Security Act pursuant to Exemption 3." "She specifies that 'the redacted information references intelligence sources and methods, including a reference to the specific means by which intelligence goals may be accomplished.'" "The Court finds that this supplemental declaration is sufficient to satisfy the requirements of Exemption 3." "Although the agency does not explain who made the original choice to redact the information, it has informed the Court that the Assistant Secretary has, in fact, reviewed the specific redactions and supports them." "Therefore, the Court will grant summary judgment in favor of defendant with respect to records withheld under Exemption 3."
- Exemption 5, Deliberative Process Privilege: The court relates that "SIGAR originally invoked the deliberative process privilege on behalf of the National Security Council ("NSC") for portions of eleven ROIs, and for the first time in its renewed motion for summary judgment, it also invoked the presidential communications privilege for portions of seven of them, . . . though it reduced that number to six in its reply brief." Regarding the eleven ROIs, the court relates that "[it] previously held that SIGAR's withholding of sixty-three ROIs pursuant to the deliberative process privilege was not sufficiently justified by the agency's submissions 'because the showing that the material is "predecisional" is vague and indistinct from the assertion that it is "deliberative."'" The court finds that "SIGAR has now satisfied the predecisional requirement." "For seven of the withheld ROIs, the declarant explains that they were used to inform a specific, forthcoming Lessons Learned Report, called [']Strategy and Planning.[']" "In other words, the ROIs preceded the 'decision' to make the recommendations contained in the report." The court finds similarly regarding the remaining four ROIs. "But [the court finds that] the agency has fallen short of the showing that any ROI was part of the consultative give and take that led to any decision-making embodied in the report." "They were not drafts or memoranda or emails soliciting input or reviewing proposals for what the reports should contain; they were the raw material upon which the reports were based." "Therefore, those portions of those ROIs withheld under the deliberative process privilege may not be withheld on that basis."
Regarding defendant's use of the presidential communications privilege, the court relates that "[defendant] explains that it divided the withheld material into two categories: [the first] which covers '[c]ommunications among and between government officials or staff and between government officials and the President,' and [the second group], which covers '[c]ommunications between Transition officials or staff.'" "SIGAR grouped the withheld material into either, or both, categories in the Exemption 5 Vaughn Indices." "After reviewing the withholdings in camera, the Court finds that some of the material is covered by the presidential communications privilege, and other portions must be disclosed . . . ."
- Litigation Considerations, Foreseeable Harm Requirement: The court relates that "[f]or the withholdings under Exemptions 3, 7(C) and 7(D), the agencies involved did not specifically address foreseeable harm in the declarations." "However, [the court finds that] the foreseeable harm requirement, 5 U.S.C. § 552(a)(8)(B), does not require 'disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).'" "Therefore, the State Department need not supply additional detail since it fully explained the specific threats to national security and foreign policy that were implicated by the ROIs." "And courts in this district have held that 'when invoking Exemption 7(C), an agency need not establish much more than the fact of disclosure to establish foreseeable harm.'" "Similarly, the Court concludes that the fact that express assurances of confidentiality underlie the approved withholdings of identifying information under Exemption 7(D) is sufficient to satisfy the foreseeable harm standard." "The submissions supporting the withholdings under Exemption 1 from the State Department also satisfy the reasonable foreseeability of harm standard. For each record, 'particularized indicia of foreseeable harm' is identified." "Finally, SIGAR has satisfied the foreseeable harm standard for the presidential communications withheld under Exemption 5." "Its declarant explains that the disclosure of such information 'burdens the ability of the President and his advisors to engage in a confidential and frank decision-making process and chills or inhibits their ability to have candid discussions, thus impacting the efficiency of government policy-making.'" "It relied on a similar explanation for the withholding of communications and deliberations involving the president-elect." "The Court finds that, in the context of the presidential communication privilege, this is sufficient."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court relates that "SIGAR reconsidered its withholdings line-by-line." "The State Department also conducted a line-by-line review of the withholdings protected by FOIA Exemption 1." The court finds that "[w]here an agency has conducted a line-by-line review and provided an affidavit in support, it is entitled to the presumption that it has produced the segregable portions."