Bloche v. Department of Defense ( 2020 )

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
:
M. GREGG BLOCHE and :
JONATHAN H. MARKS, :
:
Plaintiffs, : Civil Action No.: 07-2050 (RC)
:
v. : Re Document No.: 127
:
DEPARTMENT OF DEFENSE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S SECOND RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
This suit arising under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, began
in 2007, when Plaintiffs M. Gregg Bloche and Jonathan H. Marks sought records from multiple
federal agencies concerning the involvement of medical professionals in designing and
implementing interrogation tactics. Presently before the Court is a second renewed motion for
partial summary judgment brought by one of the defendants in this suit, the United States Army
(“Army”), in relation to one document. 1 See Def. Second Renewed Mot. for Partial Summ. J.
(“Def. Mot.”), ECF No. 127; Def. Mem. of P. & A. in Supp. of Second Renewed Mot. for Partial
Summ. J. (“Def. Mem.”), ECF No. 127-1. On May 14, 2020, the Court granted in part a motion
for partial summary judgment for all documents related to Army and multiple other federal
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Most of Plaintiffs’ claims relating to other federal agencies have been resolved or are in the
process of being resolved. See Status Rep., ECF No. 128; Def. Mem, ECF No. 127-1. The
present document at issue, Army 79, is the only contested document that remains in dispute for
Army and is the only document discussed in this opinion. For these reasons, this opinion does
not discuss the other defendant agencies involved in this suit.
agencies, except with respect to Army 79, for which the motion was denied. See Bloche v. Dep’t
of Def. (Bloche IV), No. 07-cv-2050, 2020 WL 2496897 (D.D.C. May 14, 2020). 2 For the
reasons that follow, the Court finds that Army has now provided adequate justification for the
claimed exemption for Army 79. Therefore, the Court grants the renewed motion for partial
summary judgment. 3
II. LEGAL STANDARD
The purpose of FOIA “is to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors accountable to
the governed.” NLRB. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA requests
thus provide individuals with the opportunity to obtain access to federal agency records, except
to the extent that such records are protected from public disclosure by one of nine exemptions.
See 5 U.S.C. § 552(a)(3), (a)(4)(B), (b), (c); see also NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 136 (1975); Judicial Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735, 738 (D.C. Cir. 2017).
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be
granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see, e.g., Alyeska
2
The Court refers to the May 2020 opinion as Bloche IV to distinguish it from the three previous
opinions in the same suit. See Bloche v. Dep’t of Def. (Bloche III), 414 F. Supp. 3d 6 (D.D.C.
2019); Bloche v. Dep’t of Def. (Bloche II), 370 F. Supp. 3d 40 (D.D.C. 2019); Bloche v. Dep’t of
Def. (Bloche I), 279 F. Supp. 3d 68 (D.D.C. 2017).
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Plaintiffs did not file a response to Defendants’ motion presently before the Court, however,
Defendants still carry the burden to demonstrate the applicability of the claimed exemptions. See
Bloche IV, 2020 WL 2496897, at *2 n.4; Dutton v. U.S. Dep’t of Justice, 302 F. Supp. 3d 109,
126 n.6 (D.D.C. 2018); see also Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C.
Cir. 2016) (“[A] motion for summary judgment cannot be ‘conceded’ for want of opposition.”).
The Court thus addresses in full the updated justifications for the claimed exemptions submitted
by Defendants.
2
Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988) (concluding that
unsubstantiated claims of factual controversies cannot defeat a summary judgment decision in a
FOIA case). FOIA cases are typically resolved through summary judgment because in FOIA
cases there is rarely any factual dispute, instead, these cases center on how the law is applied to
the records at issue. See Pinson v. U.S. Dep’t of Justice, 236 F. Supp. 3d 338, 352 (D.D.C. 2017)
(quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)) (“FOIA
cases typically and appropriately are decided on motions for summary judgment.”); see also
Gray v. Southwest Airlines Inc., 33 Fed. Appx. 865, 869 n.1 (9th Cir. 2002) (citing Schiffer v.
FBI, 78 F.3d 1405, 1409 (9th Cir. 1996)). Accordingly, in a FOIA suit, summary judgment is
appropriate “if no material facts are genuinely in dispute and the agency demonstrates ‘that its
search for responsive records was adequate, that any exemptions claimed actually apply, and that
any reasonably segregable non-exempt parts of records have been disclosed after redaction of
exempt information.’” Prop. of the People, Inc. v. Office of Mgmt. and Budget, 330 F. Supp. 3d
373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181
(D.D.C. 2017)).
In a FOIA suit, the court shall determine a motion for summary judgment de novo. See 5
U.S.C. § 552(a)(4)(B); Life Extension Found., Inc. v. Internal Revenue Serv., 915 F. Supp. 2d
174, 179 (D.D.C. 2013). Therefore, when assessing non-disclosure decisions in a FOIA action,
the court may solely rely on “affidavits or declarations if they describe ‘the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.’” Life Extension Found., 915 F.
Supp. 2d at 179 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981));
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see also Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C.
Mar. 1, 2019). “Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears ‘logical’ or ‘plausible.’” Scudder v. Cent. Intelligence Agency, 254 F.
Supp. 3d 135, 140 (D.D.C. 2017) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d
937, 941 (D.C. Cir. 2013) (internal citations omitted)). However, exemptions are to be
“narrowly construed.” Bloche II, 370 F. Supp. 3d at 50 (quoting Morley v. Cent. Intelligence
Agency, 508 F.3d 1108, 1115 (D.C. Cir. 2007)). Accordingly, an agency must do more than
provide “summary statements that merely reiterate legal standards or present ‘far-ranging
category definitions for information.’” Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice, 955 F. Supp. 2d 4, 13 (D.D.C 2013) (quoting King v. U.S. Dep’t of Justice, 830
F.2d 210, 221 (D.C. Cir. 1987)).
III. ANALYSIS
Plaintiffs do not challenge the present motion. Even so, the Court will review Army’s
updated justification as the burden nevertheless falls on the agency to establish the applicability
of the FOIA exemption. See Winston & Strawn, 843 F.3d at 505. In Bloche IV, this Court
analyzed updated exemption justifications for forty-seven Army documents still in dispute. 2020
WL 2496897, at *4. One document, Army 79, was the only document not updated in the
provided Vaugh index to specify in particularity why nondisclosure was appropriate. See id. at
*12 (“The justification for Army 79 still conflates the deliberative process and attorney client
privileges, borrowing language from both applicable standards, leaving it unclear which
privilege applies to which portions of the record.”). In response to Bloche IV, Army has updated
its justification for nondisclosure and confirmed that the deliberative process privilege and the
attorney-client privilege both apply to the redacted portions of the document. See Def. Mem. at
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3–7. Army also affirms that it has fulfilled its obligation to disclose all reasonably segregable
non-exempt material with respect to Army 79. In support of the second renewed motion for
partial summary judgment, Army submitted a second Declaration of Major Nicole M. Kim,
which also includes an attached redacted copy of Army 79. See Def. Mem. Ex. A (“Second Kim
Decl.”), ECF No. 127-2; Def. Mem. Ex. A1, ECF No. 127-2. The Court briefly outlines the
applicable legal standards before turning to the updated justification.
1. Exemption 5
Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Exemption 5 is routinely interpreted broadly and encompasses
both statutory privileges and privileges frequently recognized by case law. See, e.g., United
States v. Webster Aircraft Corp., 465 U.S. 792, 802 (1984) (“Exemption 5 simply incorporates
civil discovery privileges.”); see also Martin v. Office of Special Counsel, 819 F.2d 1181, 1185
(D.C. Cir. 1987) (incorporating all civil discovery rules into FOIA Exemption (b)(5)).
Exemption 5 thus “incorporates the traditional privileges that the Government could assert in
civil litigation against a private litigant”—including, as relevant here, both “the deliberative
process privilege,” Brown v. Dep’t of State, 317 F. Supp. 3d 370, 375 (D.D.C. 2018) (quoting
Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (internal quotation mark and citation
omitted)), and the attorney-client privilege, Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,
566 F.2d 242, 252 (D.C. Cir. 1977).
2. Deliberative Process Privilege
The deliberative process privilege is intended to protect the “decision-making processes
of government agencies.” Sears, 421 U.S. 132 at 150. More specifically, the deliberative
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process privilege is primarily designed to encourage open and frank discussions on matters of
policy, to protect against premature disclosure of policies that are being deliberated, and to
prevent public confusion that may result from disclosure of reasons and rationales that were not
ultimately the grounds for an agency’s action. See U.S. Dep’t of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (stating that the deliberative process privilege
“enhance[s] the quality of agency decisions” (internal quotation marks omitted)); Russell v.
Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). To qualify for the privilege, the
document must be both predecisional and deliberative. See Prop. of the People, Inc., 330 F.
Supp. 3d at 382. A communication is predecisional if it is antecedent to the adoption of an
agency policy. See Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C. Cir.
1991). Likewise, a communication is deliberative if it is “a direct part of the deliberative process
in that it makes recommendations or expresses opinions on legal or policy matters.” See Vaughn
v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). Furthermore, the document in question must
“bear on the formulation or exercise of agency policy-oriented judgment.” Petroleum Info. Corp.
v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (emphasis in original).
3. Attorney-Client Privilege
The attorney-client privilege protects “communications from attorneys to their clients if
the communications ‘rest on confidential information obtained from the client.’” Tax Analysts v.
Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997) (quoting In re Sealed Case, 737 F.2d
94, 99 (D.C. Cir. 1984)). For the privilege to apply, “an agency must demonstrate that the
document it seeks to withhold 1) involves ‘confidential communications between an attorney and
his client’ and 2) relates to a ‘legal matter for which the client has sought professional advice.’”
Judicial Watch, Inc. v. U.S. Postal Service, 297 F. Supp. 2d 252, 267 (D.D.C. 2004) (quoting
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Mead Data Cent., 566 F.2d at 252). If the communications suggest that “the Government is
dealing with its attorneys as would any private party seeking advice to protect personal
interests,” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980), then
a court may infer confidentiality. Even then, a court should narrowly construe the attorney-client
privilege, which “protects only those disclosures necessary to obtain informed legal advice
which might not have been made absent the privilege.” Id. at 862 (quoting Fisher v. United
States, 425 U.S. 391, 403 (1976)). For example, courts in this district have found that an agency
must identify the client whose confidentiality is in question to maintain this claim as a privilege.
See Electronic Privacy Info. Ctr. v. Dep’t of Justice, 584 F. Supp. 2d 65, 79–80 (D.D.C. 2008)
(declining to apply the attorney-client privilege when declaration failed to indicate “what agency
or executive branch entity is the client for the purposes of the attorney-client privilege”).
4. Army 79
The Court previously found that Army had insufficiently explained the basis of its claim
for Army 79 because it conflated the deliberative process and attorney-client privileges in an
unclear manner. Bloche IV, 2020 WL 2496897 at *12. The Court explained the real
consequences of this uncertainty: “The two privileges often overlap, yet they are not identical:
attorney-client privilege covers the underlying factual material associated with an attorney’s
provision of legal advice, whereas the” deliberative process privilege does not permit
withholding of the underlying facts unless disclosure would indirectly reveal the protected
portions of the document. Id. at *11 (quoting Bloche III, 414 F. Supp. 3d at 49). The Court thus
directed “Army to submit an updated justification for Army 79 at which point it will determine
whether the claim of either one or both of the privileges is adequate.” Id. at *12.
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Army 79 is a one-page email from an attorney in the Army’s Office of General Counsel
(“OGC”) to the assistant deputy for health policy for Assistant Secretary of the Army. Def.
Mem. Ex. A1; Def. Mem. at 8–9; Second Kim Decl. ¶ 6. The email involves an exchange
between the attorney and the assistant with respect to health policy recommendations for
modifying two entries on Army’s comment matrix regarding a predecisional draft of Department
of Defense Instruction (“DoDI”). See Def. Mem. Ex. A1; Def. Mem. at 9. Army argues that
“Army 79 is predecisional because it is antecedent to the finalization of the DoDI, which was
issued on June 6, 2006, nearly a year after the Army attorney sent the email . . . .” Def. Mem. at
9. Army further contends that Army 79 is deliberative because “the Army attorney provided the
opinions and recommendations contained within the email to assist the Army in developing its
recommendations . . . with respect to the draft DoDI.” Id. Additionally, Army clarifies that “the
assistant deputy for health policy sought legal advice from an Army attorney . . . and [the
document] contain[s] the Army attorney’s legal advice and recommendations.” Id. at 10.
The added detail pertaining to Army 79 satisfies the requirements for both the
deliberative process privilege and the attorney-client privilege. First, Army has appropriately
updated its justification for the deliberative process privilege because it has clarified how the
document is both predecisional and deliberative. Second, Army has sufficiently updated its
justification for the attorney-client privilege because it has demonstrated that the document
involves a confidential communication regarding legal advice between the Army attorney and
the assistant deputy. The updated justification closely resembles other justifications the Court
has already determined are sufficient. See Bloche IV, 2020 WL 2496897, at *12 (“The added
detail and clarifications with respect to documents . . . satisfy the Court that the [deliberative
8
process and the attorney-client] privileges are properly claimed.”). The Court thus finds the
application of the overlapping claims proper for Army 79.
5. Segregability
FOIA requires an agency invoking an exemption to disclose any reasonably segregable,
non-exempt information. See Prop. of the People, Inc., 330 F. Supp. 3d at 380 (quoting
Competitive Enter. Inst., 232 F. Supp. 3d at 181); see also 5 U.S.C. § 552(b). “To meet its
burden on segregability, a government agency usually must submit a sufficiently detailed
Vaughn Index for each document and an affidavit or declaration stating that it has released all
segregable material.” Bloche II, 370 F. Supp. 3d at 55 (internal citations omitted). In the Second
Kim Declaration, Major Kim confirms that she conducted a line-by-line review of Army 79 and
has “released all reasonably segregable non-exempt information in the document.” Second Kim
Decl. ¶ 9. The Court is thus satisfied that Army has released all reasonably segregable non-
exempt information.
IV. CONCLUSION
For the forgoing reasons, Defendant’s second renewed motion for partial summary
judgment, ECF No. 127, is GRANTED with respect to Army 79. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: July 27, 2020 RUDOLPH CONTRERAS
United States District Judge
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