Judicial Watch, Inc. v. U.S. Department of Defense
963 F. Supp. 2d 6
D.D.C.2013Background
- Judicial Watch filed FOIA requests (Aug. 2011) to the CIA and DoD for records of communications with filmmakers Kathryn Bigelow and Mark Boal about the Bin Laden raid; suit filed Jan. 2012 after delayed agency responses.
- DoD and CIA produced responsive records with redactions; plaintiff does not challenge most withholdings but challenges five redacted names (full name/rank of a Navy SEAL and first names of four CIA officers who met the filmmakers).
- Agencies say the withheld names are protected by Exemption 3: 10 U.S.C. § 130b(a) (service members in routinely deployable units) and 50 U.S.C. § 3507 (CIA personnel nondisclosure).
- Judicial Watch contends the names entered the public domain because the agencies disclosed them to the filmmakers, so FOIA exemptions no longer apply.
- The government contends disclosure to private parties does not waive Exemption 3 absent a showing that the specific information is already publicly available; the court considered D.C. Circuit public-domain doctrine.
- Court concluded the names have not been publicly disclosed or preserved in the public domain and thus remain exempt; government summary judgment granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 3 withholding is waived because agencies disclosed names to filmmakers | Disclosure to filmmakers placed names in public domain or constituted an unconditional waiver allowing FOIA release | Disclosure to private parties does not waive exemption unless the specific information is already in the public domain; some disclosures were limited or not publicized | No waiver; Exemption 3 applies because names are not "truly public" and plaintiff failed to point to public-domain duplicates |
| Burden for proving public-domain waiver | Plaintiff says showing disclosure to private third party suffices | Government says plaintiff must identify specific public records duplicating withheld information | Plaintiff bears burden to identify specific public-domain material and failed to meet it |
| Applicability of Ninth Circuit test (Watkins) that nonrestricted disclosures to third parties waive exemptions | Plaintiff urges adopting Watkins approach | Court declines to adopt Watkins; follows D.C. Circuit requiring public-domain showing | Watkins test not applied; D.C. Circuit public-domain rule governs |
| Whether disclosure purpose (e.g., to assist filmmaking) affects public-domain analysis | Plaintiff argues disclosures made for a non-governmental purpose should count as public | Court: disclosure purpose alone doesn't convert non-public disclosures into public-domain material under D.C. Circuit precedent | Purpose of disclosure irrelevant; must be publicly preserved or otherwise accessible |
Key Cases Cited
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (FOIA's purpose and limits)
- Public Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir.) (requester must identify specific public information duplicating withheld material)
- Cottone v. Reno, 193 F.3d 550 (D.C. Cir.) (public-domain doctrine; recorded trial material in public record)
- Students Against Genocide v. Dep’t of State, 257 F.3d 828 (D.C. Cir.) (information must be "truly public" and preserved in a permanent public record)
- Davis v. U.S. Dep’t of Justice, 968 F.2d 1276 (D.C. Cir.) (information must have entered and remain in public domain)
- Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189 (9th Cir.) (third-party disclosure waiver test — not adopted by D.C. Cir.)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir.) (discussion of "official acknowledgment")
- Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16 (D.C. Cir.) (public-domain rationale)
- Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir.) (burden allocation for public-domain showing)
- Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55 (D.C. Cir.) (public-domain doctrine yields little new information)