Bigwood v. United States Department of Defense
132 F. Supp. 3d 124
| D.D.C. | 2015Background
- Jeremy Bigwood, a freelance journalist, submitted two FOIA requests to DOD Southern Command (Southcom) in July 2009 seeking records about the June 28, 2009 Honduran coup and materials on General Romeo Vásquez Velásquez.
- Southcom initially produced documents in 2011, and after plaintiff challenged adequacy/redactions, conducted a second search and produced additional documents in 2013 (total ~1,082 pages).
- Plaintiff sued under FOIA contesting (1) adequacy of Southcom’s searches and (2) Southcom’s use of Exemptions 1 and 7(E) to withhold/redact material; plaintiff no longer opposes CIA-related claims.
- Southcom supported summary judgment with declarations from Major Lisa R. Bloom (describing search methodology) and Brig. Gen. Thomas Geary (original classification authority), plus a supplemental Vaughn index.
- The magistrate judge found Southcom’s electronic and manual searches reasonable, its Exemption 1 and 7(E) withholdings justified, denied in camera review as unnecessary, and recommended granting summary judgment and denying leave to file a sur-reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of searches | Bigwood: searches (electronic/manual) were incomplete, insufficiently described, and failed to locate expected documents (emails, cables, SitReps, Soto Cano records). | Southcom: provided detailed declarations of search terms, components searched, timeframes, manual and electronic methods, and performed a second targeted search. | Search adequate: agency bore burden and met it; plaintiff offered no evidence raising substantial doubt. |
| Specificity of search methodology | Bigwood: agency should identify all search terms, Boolean operators, systems/software, and personnel. | Southcom: D.C. Circuit reasonableness standard doesn’t require that level of technical detail; declarations provided required basics. | Reject plaintiff’s demand for microscopic detail; declarations were sufficiently detailed. |
| Exemption 1 (classification) | Bigwood: Vaughn index/declarations were vague; excessive redactions; procedural defects under E.O. 13526 §1.6. | Southcom: supplemental Vaughn, Geary (OCA) declaration, and line-by-line review justify classification and show OCAs reviewed materials; segregability explained. | Withholdings under Exemption 1 sustained; supplemental Vaughn and OCA declaration cure procedural concerns and show proper classification and segregability analysis. |
| Exemption 7(E) (law enforcement / force protection) | Bigwood: redactions under 7(E) overly broad or implausible. | Southcom: withheld Force Protection Condition details and other info that would risk circumvention of security measures; 7(E) standard met (low bar). | Withholdings under Exemption 7(E) sustained as disclosure could risk circumvention of security/law enforcement measures. |
| In camera review & sur-reply | Bigwood: requested in camera review and leave to file sur-reply to address alleged new arguments. | Southcom: supplemental Vaughn and declarations suffice; reply arguments responded to plaintiff’s expert and were not new. | Denied in camera review (no cause; agency submissions adequate); denied leave to file sur-reply (arguments not newly raised). |
Key Cases Cited
- ACLU v. Dep’t of Justice, 655 F.3d 1 (D.C. Cir. 2011) (FOIA’s purpose and deference context for national-security exemptions)
- Milner v. Dep’t of the Navy, 562 U.S. 562 (U.S. 2011) (FOIA exemptions construed narrowly)
- Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must conduct a search reasonably calculated to uncover requested records)
- Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy of search judged by reasonableness of methods, not results)
- Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (requirements for agency declarations describing searches)
- SafeCard Servs. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits presumed in good faith; mere speculation insufficient to defeat summary judgment)
- ACLU v. Dep’t of Defense, 628 F.3d 612 (D.C. Cir. 2011) (deferential review of Exemption 1 classifications)
- Judicial Watch v. Dep’t of Defense, 715 F.3d 937 (D.C. Cir. 2013) (procedural E.O. §1.6 defect cured where OCA attestation provided)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index purpose and requirement)