901 F.3d 125
2d Cir.2018Background
- ACLU submitted a FOIA request (2003) seeking detainee photographs taken by U.S. forces in Afghanistan/Iraq; litigation followed after no timely response.
- District court ordered production and directed release with redactions; government repeatedly invoked FOIA exemptions and later identified additional photos.
- Congress enacted the Protected National Security Documents Act (PNSDA) in 2009, permitting the Secretary of Defense to certify photographs taken 9/11/2001–1/22/2009 as nondisclosable if disclosure would endanger U.S. citizens or personnel.
- Secretaries issued certifications/renewals (2009, 2012, 2015); courts reviewed adequacy of the certifications and the Government’s factual showing about harm.
- District court repeatedly found Government submissions insufficient (faulting sampling, delegation, and lack of individualized explanation) and ordered disclosure; the Second Circuit reversed, holding the 2015 certification and supporting declarations adequate to justify withholding under the PNSDA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judicial review of PNSDA certifications is limited or de novo | ACLU: PNSDA is a FOIA-withholding statute subject to de novo review; Secretary must justify endangerment for each photo | DoD: PNSDA either precludes review or qualifies as FOIA Exemption 3 limiting review to certification, time period, and subject-matter | Court: Even under de novo review, Government met its burden; no need to decide scope of review for PNSDA generally |
| Whether the Government provided sufficiently specific factual support for withholding | ACLU: Submissions lacked meaningful detail on categorization, sampling, delegation, and individualized harms | DoD: Declarations (OGC review, Joint Staff, commanders’ recommendations) described a multi-layered, individualized process and plausibly linked release to endangerment | Held for DoD: Declarations were reasonably specific, logical, and plausible to support withholding |
| Whether Secretary needed to review each photograph personally or certify each photo individually | ACLU: Certification must be individualized to each photograph; Secretary must show he personally reviewed or set precise delegation standards | DoD: Secretary may rely on a robust, documented multi-level review by qualified subordinates and commanders; individualized assessment may be by staff on his behalf | Court: Secretary need not personally inspect every photo; reasonable delegation and staff review sufficed to support individualized certification |
| Whether photographs could alternatively be withheld under FOIA Exemption 7(F) | ACLU: Even if PNSDA applies, FOIA Exemption 7(F) should not permit withholding absent stronger showing | DoD: PNSDA and the national-security showing overlap with harms contemplated by Exemption 7(F) | Court: Declined to decide Exemption 7(F) because PNSDA withholding was dispositive |
Key Cases Cited
- Am. Civil Liberties Union v. Dep’t of Justice, 681 F.3d 61 (2d Cir.) (disclosure presumption and use of agency declarations in national-security FOIA cases)
- Long v. Office of Pers. Mgmt., 692 F.3d 185 (2d Cir.) (de novo review of FOIA summary judgment)
- Wilner v. Nat’l Sec. Agency, 592 F.3d 60 (2d Cir.) (need for reasonably detailed agency declarations)
- N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir.) (standard that agency justification be logical and plausible)
- Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (U.S.) (strong presumption in favor of judicial review)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (U.S.) (national security and foreign relations do not eliminate judicial role)