370 F. Supp. 3d 40
D.C. Cir.2019Background
- Plaintiffs (Bloche and Marks) filed FOIA requests seeking documents about medical professionals' roles in interrogation policies and practices in the 2000s; three DoD components (Navy, OASD-HA Policy, OASD-HAGC) produced searches and withheld material under FOIA exemptions.
- The parties filed cross-motions for partial summary judgment; adequacy of searches is not disputed—disputes focus on asserted FOIA exemptions and segregability.
- Major contested exemptions: Exemption 5 (deliberative process privilege), Exemption 1 (classified national-security material), Exemption 7(E) (law-enforcement techniques), and Exemption 6 (personal privacy).
- The court found many Exemption 5 claims sufficiently justified (draft regulations, internal deliberations, draft talking points and responses to media/Congress), but identified seven specific documents where justifications were inadequate.
- The Navy’s Exemption 1 claim for parts of an interrogation log (Navy 42) was sustained; Navy’s Exemption 7(E) claims for interrogation memoranda (Navy 35/38) were rejected as insufficiently supported and ordered for in camera submission.
- The court ordered supplemental submissions: in camera review and/or more detailed affidavits/Vaughn entries for certain documents, and required OASD-HA to provide a segregability declaration and to re-review withheld material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deliberative process privilege (Exemption 5) over drafts, internal comments, and talking points | Withholdings are overbroad; drafts adopted in final versions should be disclosed | Many documents are pre-decisional and deliberative; privilege protects candid internal deliberations | Granted for most claimed documents as sufficiently justified; seven documents identified where explanations were inadequate and ordered for in camera review or supplemental justification |
| Segregability of non-privileged factual material | Agencies failed to show they released all reasonably segregable material | Agencies point to redactions/releases in Vaughn indexes | Navy and OASD-HAGC met burden; OASD-HA failed to submit segregability declaration -> must re-review, produce segregable material, and file declaration |
| Exemption 1 (classified information) for interrogation log (Navy 42) | Plaintiffs contest partial classification/redaction | Navy asserts Secret classification under Exec. Order 13526; disclosures would reveal intelligence sources/methods harming national security | Navy’s affidavit was sufficiently detailed and plausible; partial withholding under Exemption 1 sustained |
| Exemption 7(E) (law-enforcement techniques) for NCIS memoranda (Navy 35/38) | Plaintiffs argue memoranda discuss interrogation policy and should be disclosed | Navy claims documents reveal nonpublic techniques/procedures risking circumvention | Navy’s justification was conclusory (no nexus to specific law-enforcement duty or risk of circumvention shown); court ordered in camera submission and further justification |
| Exemption 6 (privacy) for domain portions of government email addresses | Plaintiffs: domain reveals agency and is public-interest relevant | Agencies: domain portions withheld to protect privacy | Agencies did not show domain strings are "similar files" or a substantial privacy interest; court ordered updated justification or disclosure |
Key Cases Cited
- FBI v. Abramson, 456 U.S. 615 (broad FOIA disclosure policy)
- NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (FOIA disclosure aims)
- Loving v. Dep't of Def., 550 F.3d 32 (deliberative-process privilege principles)
- Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (purpose of deliberative process privilege)
- Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242 (Vaughn index/detail requirement)
- Wolf v. CIA, 473 F.3d 370 (agency affidavits need be plausible)
- Nat'l Sec. Archive v. CIA, 752 F.3d 460 (pre-decisional/deliberative draft guidance)
- Am. Civil Liberties Union v. Dep't of Def., 628 F.3d 612 (weight accorded agency affidavits in national security FOIA)