International Counsel Bureau v. United States Department of Defense
864 F. Supp. 2d 101
D.D.C.2012Background
- ICB sues DoD under FOIA for records concerning four Guantanamo detainees.
- Court previously resolved cross-motions for summary judgment in 2009 and 2010.
- Court ordered DoD to search USCENTCOM files using an alternate detainee name spelling and to provide Vaughn-indexed justifications.
- DoD supplemented declarations and a revised Vaughn index; ICB seeks withheld videorecordings and four additional FCE videos.
- Court orders in camera review of a representative sample and an additional search for the alias Abu Khallaad; rulings on exemptions and search adequacy remain partial.
- Final order directs DoD to produce three videorecordings for in camera inspection by a deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 2 allows full withholding of videorecordings | ICB contends Exemption 2 does not apply to these videos. | Department asserts Exemption 2 (High 2) covers the records. | Exemption 2 does not justify full withholding. |
| Whether Milner supersedes the High/Low 2 distinction | ICB relies on Milner to invalidate high2 logic. | Department maintains exemption logic under prior practice. | Court rejects high2/low2 split and denies summary judgment on this basis. |
| Whether in camera review is appropriate for withheld videos | ICB argues for in camera review due to inconsistent submissions. | Agency submissions may allow summary judgment without in camera review. | In camera review ordered for three representative videos. |
| Adequacy of Department's search, including alias Abu Khallaad | ICB asserts search missed alias Abu Khallaad and other responsive records. | ISN-based search was adequate; alias search uncertain for ISN videos. | Partial denial; additional USCENTCOM search for Abu Khallaad ordered; prior FCE search deemed adequate. |
| Segregability and remaining exemptions | ICB contends information could be segregated. | Department asserts non-segregability due to context and security concerns. | Court denies summary judgment on segregability and exemptions; further proceedings required. |
Key Cases Cited
- Milner v. U.S. Dep't of the Navy, 131 S. Ct. 1259 (2011) (limits the scope of FOIA Exemption 2 (High 2 vs Low 2))
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy of FOIA searches depends on reasonable methods, not perfection)
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (detailed, non-conclusory declarations support summary judgment on exemptions)
- Spirko v. U.S. Postal Serv., 147 F.3d 992 (D.C. Cir. 1998) (in camera review appropriate when necessary to resolve exemption claims)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (in camera review and de novo determination considerations in FOIA)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (establishes Vaughn index requirements for withholding rationales)
- Rothschild v. Dep't of Energy, — (—) ((not used; omitted due to lack of official reporter citation))