342 F. Supp. 3d 62
D.C. Cir.2018Background
- Carol Rosenberg and the Miami Herald requested under FOIA emails General John F. Kelly sent to senior DOD officials about Joint Task Force Guantánamo (JTF‑GTMO); DOD produced 548 pages with numerous redactions invoking Exemptions 1, 3, 5, 6, and 7(E).
- The produced records were mainly routine weekly operational updates from General Kelly and related internal correspondence (2013–2016).
- DOD defended redactions with declarations (Brig. Gen. McCubbin; Michael Droz) and a Vaughn index; plaintiffs challenged most redactions and sought in camera review of a sample.
- The court conducted an in camera review, applied the FOIA Improvement Act’s "foreseeable harm" standard, and evaluated each asserted exemption and segregability.
- Rulings: the court upheld withholdings under Exemptions 3, 6, and 7(E) and certain classified material under EO 13,526 §1.4(g); it denied summary judgment for DOD on Exemption 5 and on classified material withheld under EO 13,526 §§1.4(a), (b), and (c), permitting DOD to supplement its declarations (including possible classified ex parte material).
- The court ordered limited disclosures: two items were officially acknowledged and must be released (May 15, 2013 hunger‑strike tally; a June 13, 2015 detainee transfer to Oman), and set a schedule for supplemental briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Exemption 5 (deliberative process) and "foreseeable harm" showing | Plaintiffs: DOD must show specific, foreseeable harm for each withheld category; broad assertions are insufficient | DOD: categorical treatment is permissible where records are of the same type and a general showing of harm suffices | Court: Denied DOD summary judgment on Exemption 5; agency may proceed categorically but must supplement declaration to explain foreseeable harm by category; some specific redactions questioned (e.g., pure opinion on judicial rulings) |
| Classification under Exemption 1 / EO 13,526 (§1.4(a), (b), (c), (g)) | Plaintiffs: DOD failed to show disclosure would reasonably be expected to damage national security; some redactions duplicate public disclosures | DOD: affidavit connects withheld operational, health, movement, and vulnerabilities info to plausible national security harms | Court: Upheld classifications under §1.4(g); denied summary judgment for §1.4(a), (b), (c) pending more detailed/supplemental (possibly classified) justification; found two items officially acknowledged and must be released |
| Exemption 6 (privacy of personnel and detainees) | Plaintiffs: public interest outweighs privacy for detainee info and some personnel descriptions; some similar info previously released | DOD: substantial privacy interests for personnel and detainees; disclosure would be a clearly unwarranted invasion | Court: Granted DOD summary judgment under Exemption 6; privacy interests outweigh public interest for withheld personnel and detainee identifying/medical info |
| Exemption 7(E) (law‑enforcement techniques/guidelines) for enteral‑feeding/hunger‑strike protocols | Plaintiffs: force‑feeding procedures are not law‑enforcement guidelines and should be disclosed; BOP policies are public | DOD: detailed JTF‑GTMO procedures differ from BOP and disclosure would enable circumvention and endanger staff | Court: Granted DOD summary judgment under Exemption 7(E); withheld procedures are nonpublic and disclosure could reasonably be expected to risk circumvention |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (defines deliberative process privilege for Exemption 5)
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (agency need only a plausible explanation to justify classification under Exemption 1)
- Larson v. Dep't of State, 565 F.3d 857 (D.C. Cir. 2009) (courts defer to agency expertise on national security harms)
- ACLU v. U.S. Dep't of Def., 628 F.3d 612 (D.C. Cir. 2011) (official acknowledgment doctrine for overcoming Exemption 1)
- Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015) (requires categories to characteristically support exemption elements)
- Pinson v. Dep't of Justice, 313 F. Supp. 3d 88 (D.D.C. 2018) (approving Exemption 7(E) withholding of use‑of‑force techniques where disclosure risks circumvention)