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State, ex rel. Schmidt v. United States Department of Defense

United States District Court, D. Kansas

July 23, 2018

STATE OF KANSAS, ex rel. DEREK SCHMIDT, in his official capacity as Attorney General of the State of Kansas, Plaintiff,


          Daniel D. Crabtree United States District Judge

         In this 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. at 29.

         Defendant 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.

         I. Background

         The 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.

         GTMO is 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. 22, 2009).

         On 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.

         The 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.

         II. Legal Standard

         Summary 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).

         III. Discussion

         Here, 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.

         A. Exemption 5

         Exemption 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. Integrity ...

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