United States District Court, D. Kansas
STATE OF KANSAS, ex rel. DEREK SCHMIDT, in his official capacity as Attorney General of the State of Kansas, Plaintiff,
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
lawsuit, the State of Kansas and the United States Department
of Defense disagree whether the latter adequately responded
to Kansas's Freedom of Information Act
(“FOIA”) request. In general terms, the State of
Kansas-the plaintiff-asked the Department of Defense for its
files arising from President Obama's plan to close the
Guantanamo Bay detention center (“GTMO”). On July
12, 2017, the Department of Defense-the defendant-filed a
motion for summary judgment. It argued that defendant fully
had complied with FOIA's mandate. Eight months later, the
court entered its preliminarily Order on that motion. Doc.
31. In that Order, the court ordered defendant to submit five
documents for in camera inspection so that the court
could determine whether FOIA exempted those documents from
disclosure. They are: unclassified documents 18, 100, 129,
141, and classified document 234. Id. at 29-30. The
court explained that it would issue a supplemental ruling
once it conducted its in camera review. Id.
complied with the court's Order. And the court, having
reviewed the five central documents, is ready to decide the
only remaining issues in the case. For reasons explained
below, the court grants defendant's motion in part and
denies it in part. The court concludes that defendant
improperly redacted unclassified documents 18, 129, 141, and
classified document 234. But it properly withheld the
information in unclassified document 100.
court provided a more detailed version of the facts in its
original Order. See Doc. 31 at 2-4. So, the court
merely summarizes the facts essential to the current issues.
a U.S. Naval base on the island of Cuba that houses
combatants captured in the Middle East. In 2009, President
Obama signed an Executive Order directing defendant to
research the feasibility of closing GTMO and transferring
detainees to, among other places, the United States mainland.
Exec. Order No. 13, 492, 74 Fed. Reg. 4, 897, 4, 898 (Jan.
December 16, 2015, plaintiff sent defendant a FOIA request.
Plaintiff asked defendant to produce information created
between December 26, 2013, and December 16, 2015, about the
GTMO closure plan. When defendant delayed releasing the
responsive documents, plaintiff filed this suit. See
Doc. 1. Eventually, defendant released all the documents
sought by plaintiff's request but redacted portions of
many of them, citing FOIA's exemptions. Then, defendant
moved for summary judgment, arguing that it had complied
fully with FOIA's obligations.
court granted that motion in part and denied it in part.
Importantly, for this Order, the court explained that it did
not have enough information to decide if defendant properly
withheld unclassified documents 18, 100, 129, 141, and
classified document 234. The court ordered defendant to
provide the court with unclassified documents 18, 100, 129,
and 141 because the court could not decide whether those
documents contained cost estimations-which FOIA protects-or
raw data used when defendant deliberated its options-which
FOIA does not protect. Doc. 31 at 20. And it ordered
defendant to produce classified document 234 because it could
not discern if a name defendant had redacted would reveal
defendant's deliberative process. Id. The court
also allowed defendant an opportunity to file a supplemental
affidavit further explaining its justifications for exempting
these documents. The court also provided plaintiff the chance
to respond to that supplemental affidavit. Id. at
30. The court advised that it would delay its final judgment
on defendant's motion until after it reviewed the
documents. On April 4, 2018, defendant delivered the
documents to the court. See Doc. 32. It
simultaneously filed its supplemental affidavit. Doc. 32-1.
Plaintiff filed its response two weeks later. Doc. 33.
judgment is appropriate if the moving party demonstrates that
“no genuine dispute [about] any material fact”
exists and that it “is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). When applying this
standard, the court views the evidence and draws inferences
in the light most favorable to the non-moving party.
Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010). To prevail on summary judgment in a FOIA case,
“the defending agency has the burden of showing that
its search was adequate and that any withheld documents fall
within an exemption to FOIA.” Whitson v. U.S.
Forest Serv., 253 F.Supp.3d 1133, 1139 (D. Colo.),
reconsidered and reversed on other grounds by 264
F.Supp.3d 1096 (D. Colo. 2017). A defendant meets its burden
if it submits, in good faith, specific, non-conclusory
affidavits that are consistent with the record. Hull v.
IRS, U.S. Dep't of Treasury, 656 F.3d 1174, 1177-78
(10th Cir. 2011).
the court only must decide whether defendant properly invoked
Exemption 5 under FOIA. The court first considers the type of
information protected by Exemption 5. Then, the court
analyzes whether Exemption 5 protects the documents the court
reviewed in camera.
5 protects documents that normally are privileged in the
civil discovery context. NLRB v. Sears Roebuck &
Co., 421 U.S. 132, 149 (1975). Here, defendant invoked
the “deliberative process privilege” when it
withheld information under Exemption 5. This privilege
exempts documents “that reflect how government
decisions are made.” Stewart v. U.S. Dep't of
Interior, 554 F.3d 1236, 1239 (10th Cir. 2009). To
qualify for this privilege, the document must be (1)
predecisional and (2) deliberative. Trentadue v.