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Case TitleSchwartz v. Department of Defense et al
DistrictEastern District of New York
CityBrooklyn
Case Number1:2015cv07077
Date Filed2015-12-11
Date ClosedOpen
JudgeJudge Allyne R. Ross
PlaintiffMattathias Schwartz
Case DescriptionMattathias Schwartz, a writer with The New Yorker, submitted FOIA requests to the intelligence agencies for records concerning courtroom proceedings at Guantanamo Bay. None of the agencies except for the Defense Department responded to Schwartz's requests. The Defense Department located 98 pages and disclosed them with redactions made under Exemption 4 (confidential business information), Exemption 6 (invasion of privacy), and Exemption 7(A) (interference with ongoing investigation or proceeding). Schwartz appealed DOD's decision, but after it failed to respond, Schwartz filed suit against all the agencies.
Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

DefendantDepartment of Defense
DefendantDepartment of Navy
DefendantNational Security Agency
DefendantFederal Bureau of Investigation
DefendantCentral Intelligence Agency
DefendantOffice of the Director of National Intelligence
Documents
Docket
Complaint
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Opinion/Order [28]
FOIA Project Annotation: A federal court in New York has ruled that neither the CIA, the Department of Defense, nor the Office of the National Director of Intelligence have shown that they conducted an adequate search for records concerning an incident during proceedings of the military commissions in Guantanamo when the audio available to the press and public attending the commission hearings was cut off for 40 seconds without the direction of the judge. Judge Allyne Ross rejected the Defense Department's claim that a security presentation was protected by Exemption 7(F) (harm to a person) but found that the CIA properly withheld records, or issued a Glomar response, under Exemption 1 (national security) and Exemption 3 (other statutes). Freelance journalist Mattathias Schwartz requested records concerning the incident from various intelligence agencies for an article he was writing about the military commissions. By the time of the court's ruling, Schwartz challenged the agencies' searches and only a handful of exemption claims. Ross noted that ONDI's was insufficient because it only indicated the agency had searched offices "most likely" to have records, pointing out that [the agency's affidavit] "is thus facially inadequate because it does not state that all locations likely to have responsive records were searched." Ross faulted ONDI's affidavit for failing to adequately describe the methods used for the search. She observed that "absent any understanding of the file system utilized by the office and the relationship of the two searched files to this file system, there is no basis to find that ODNI's search of the Office of the General Counsel was reasonably likely to produce records responsive to plaintiff's request." Although DOD's search yielded more than 500 pages of records, Ross found the agency's description of its search also fell short. Ross indicated that "the result of the search is irrelevant to determine whether it was adequately conducted. [The agency's affidavit] describes the second search so generally that the court can only infer that certain unnamed individuals in various offices may have conducted some unidentified searches of some unidentified files using some unidentified method." As to the CIA's affidavit, she noted that it "fails to describe the CIA's methodology in a manner that would allow summary judgment to be granted in the CIA's favor." Ross rejected DOD's Exemption 7(F) claim that a security presentation, which was created for security training, was related to national security. She pointed out that "the DOD has in no way suggested that the information redacted has any specific link to national security. Further, the Second Circuit has been clear that Exemption 7(F) cannot be used by agencies as an end-run around established procedures for classification of material that poses a risk to national security and so courts should closely scrutinize an agency's claim that non-classified national security information was compiled for law enforcement purposes." She upheld the redactions made by the CIA under Exemption 1, noting that "it is plausible that even 'superficially innocuous' information relating to the [past detention] program must be kept secret in order to preserve the efficacy of the CIA's future intelligence-gathering efforts." Schwartz focused his challenge on five bullet points the agency had redacted. Ross found four of them were appropriate, but pointed out that the agency's explanation that the fifth bullet point "included" information about intelligence was insufficient. Ross observed that "but 'includes' is not specific enough: [the agency's affidavit] states that the withheld information as a whole 'includes' information that relates to the capture, transfer, and interrogation of detainees, but [it] nowhere states that each redaction contains this information." Ross approved the agency's use of a Glomar response concerning records about the 40 second audio gap. She noted that disclosure of the records would infer that the agency was somehow involved in the incident. She pointed out that "if the CIA has records responsive to plaintiff's request, it would be logical to infer that the CIA has some role in the interruption of the feed, which the CIA asserts is a classified factâ€"and which certainly constitutes an intelligence method." Schwartz argued that records disclosed by DOD had confirmed the role of the CIA in monitoring the audio interruption. But Ross observed that "the facts that the plaintiff points to, if true, would indicate only that the CIA is a classification authority that has an interest in monitoring proceedings at Guantanamoâ€"not that the CIA has in fact done so." She added that "the distinction between official disclosure by the government and 'publicly available information' seems to elide the plaintiff. Plaintiff argues that the CIA's showing is inadequate because relevant information is 'publicly available.' [However], the fact that information is publicly available does not contravene the CIA's showing that it is properly classified."
Issues: Adequacy - Search, Exemption 1 - Harm to national security, Determination - Glomar response, Exemption 7(F) - Harm to safety of any person
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-12-111COMPLAINT against All Defendants filing fee $ 400, receipt number 0207-8234120 Was the Disclosure Statement on Civil Cover Sheet completed -YES,, filed by Mattathias Schwartz. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons DOD, # 3 Proposed Summons NAVY, # 4 Proposed Summons NSA, # 5 Proposed Summons FBI, # 6 Proposed Summons CIA, # 7 Proposed Summons ODNI, # 8 Exhibit A, # 9 Exhibit B, # 10 Exhibit C, # 11 Exhibit D, # 12 Exhibit E, # 13 Exhibit F, # 14 Exhibit G, # 15 Exhibit H, # 16 Exhibit I, # 17 Exhibit J, # 18 Exhibit K, # 19 Exhibit L, # 20 Exhibit M, # 21 Exhibit N, # 22 Exhibit O, # 23 Exhibit P, # 24 Exhibit Q) (Manes, Jonathan) (Entered: 12/11/2015)
2015-12-112NOTICE of Appearance by Jonathan Matthew Manes on behalf of Mattathias Schwartz (notification declined or already on case) (Manes, Jonathan) (Entered: 12/11/2015)
2015-12-11Case assigned to Judge Allyne R. Ross and Magistrate Judge Roanne L. Mann. Please download and review the Individual Practices of the assigned Judges, located on our website . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) (Entered: 12/14/2015)
2015-12-113Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Navy summons, # 2 NSA summons, # 3 FBI summons, # 4 CIA summons, # 5 ODNI summons) (Bowens, Priscilla) (Entered: 12/14/2015)
2015-12-144In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf . You may withhold your consent without adverse substantive consequences . Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 12/14/2015)
2015-12-145This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) (Entered: 12/14/2015)
2016-03-086Consent MOTION for Extension of Time to File by Central Intelligence Agency, Department of Defense, Department of Navy, Federal Bureau of Investigation, National Security Agency, Office of the Director of National Intelligence. (Soloveichik, Layaliza) (Entered: 03/08/2016)
2016-03-08ELECTRONIC ORDER granting, on consent 6 Motion for Extension of Time to File until April 9, 2016. Ordered by Chief Mag. Judge Roanne L. Mann on 3/8/2016. (Maynard, Pat) (Entered: 03/08/2016)
2016-03-287SUMMONS Returned Executed by Mattathias Schwartz. Central Intelligence Agency served on 2/18/2016, answer due 4/18/2016; Department of Defense served on 2/18/2016, answer due 4/18/2016; Department of Navy served on 2/18/2016, answer due 4/18/2016; Federal Bureau of Investigation served on 2/18/2016, answer due 4/18/2016; National Security Agency served on 2/18/2016, answer due 4/18/2016; Office of the Director of National Intelligence served on 2/18/2016, answer due 4/18/2016. (Manes, Jonathan) (Entered: 03/28/2016)
2016-04-088NOTICE of Appearance by Amy Powell on behalf of All Defendants (aty to be noticed) (Powell, Amy) (Entered: 04/08/2016)
2016-04-089ANSWER to 1 Complaint,, by All Defendants. (Attachments: # 1 Exhibit A - Hearing Transcript) (Powell, Amy) (Entered: 04/08/2016)
2016-04-1110SCHEDULING ORDER: Initial Conference set for 4/25/2016 at 11:30 AM in Courtroom 13C South before Chief Mag. Judge Roanne L. Mann. SEE ATTACHED MANDATORY REQUIREMENTS FOR CONFERENCE . Ordered by Chief Mag. Judge Roanne L. Mann on 4/11/2016. (Maynard, Pat) (Entered: 04/11/2016)
2016-04-1311NOTICE of Appearance by James J. Schwartz on behalf of All Defendants (notification declined or already on case) (Schwartz, James) (Entered: 04/13/2016)
2016-04-2112NOTICE by Mattathias Schwartz of Law Student Intern Appearance (Stephen Stich) (Manes, Jonathan) (Entered: 04/21/2016)
2016-04-22ELECTRONIC ORDER re 12 Notice Law Student Intern Appearance Form filed by Mattathias Schwartz. SO-ORDERED. Ordered by Chief Mag. Judge Roanne L. Mann on 4/22/2016. (Maynard, Pat) (Entered: 04/22/2016)
2016-04-22Email Notification Test - DO NOT REPLY. (Latka-Mucha, Wieslawa) (Entered: 04/22/2016)
2016-04-2513Minute Entry for proceedings held before Chief Mag. Judge Roanne L. Mann:Initial Conference Hearing held on 4/25/2016. For the reasons stated on the record, the Court directs defendants to expedite their searches and to produce responsive documents on a rolling basis. Defendants are directed to promptly complete their searches and, by June 24, 2016, to produce affidavits or declarations from the agencies describing their searches. Requests for a premotion conference are due by July 5, 2016. (Maynard, Pat) Modified on 4/25/2016 (Maynard, Pat). (Entered: 04/25/2016)
2016-06-2414Consent MOTION for Extension of Time to File Responsive Documents With Plaintiff by Central Intelligence Agency, Department of Defense, Department of Navy, Federal Bureau of Investigation, National Security Agency, Office of the Director of National Intelligence. (Schwartz, James) (Entered: 06/24/2016)
2016-06-2915Letter MOTION for Extension of Time to File Requests for a Pre-Motion Conference by Mattathias Schwartz. (Manes, Jonathan) (Entered: 06/29/2016)
2016-06-2916NOTICE of Appearance by David A Schulz on behalf of Mattathias Schwartz (aty to be noticed) (Schulz, David) (Entered: 06/29/2016)
2016-06-29ELECTRONIC ORDER granting, on consent 15 Motion for Extension of Time to File request for pre-motion conference. Ordered by Chief Mag. Judge Roanne L. Mann on 6/29/2016. (Maynard, Pat) (Entered: 06/29/2016)
2016-07-1517Letter Requesting a Pre-Motion Conference by Mattathias Schwartz (Schulz, David) (Entered: 07/15/2016)
2016-07-15ELECTRONIC ORDER granting 14 Motion for Extension of Time to File; 6/29/2016 Electronic Order re Order on Motion for Extension of Time to File. The Court's Electronic Order of 6/29/16 was intended to grant the government's motion dated 6/24/16 (DE #14), on consent, as well as plaintiff's motion (DE #15). Ordered by Chief Mag. Judge Roanne L. Mann on 7/15/2016. (Maynard, Pat) (Entered: 07/15/2016)
2016-07-18SCHEDULING ORDER re 17 Letter filed by Mattathias Schwartz. The court has reviewed the parties' joint pre-motion letter concerning their anticipated cross-motions for summary judgment and determined that a pre-motion conference is not necessary. The court therefore grants the parties permission to bring the motions. The court directs that the motions shall be briefed as follows: defendants' motion and supporting papers shall be served no later than September 23, 2016; plaintiff's cross-motion and opposition to defendants' motion shall be served no later than October 21, 2016; defendants' opposition to plaintiff's motion and reply papers, if any, shall be served no later than November 18, 2016; and plaintiff's reply papers, if any, shall be served no later than December 9, 2016. The fully briefed motion shall be filed in accordance with chambers rules, including courtesy copies for chambers, no later than December 9, 2016. This schedule may be altered only with the permission of the court. So ordered by Judge Allyne R. Ross on 7/18/2016. (Hartz, Lauren) (Entered: 07/18/2016)
2016-08-2418MOTION for Leave to Appear Pro Hac Vice of Hannah Bloch-Wehba Filing fee $ 150, receipt number 0207-8864888. by Mattathias Schwartz. (Attachments: # 1 Affidavit of Hannah Bloch-Wehba In Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificate of Good Standing for District of Columbia Bar, # 3 Exhibit Certificate of Good Standing for State Bar of Texas) (Bloch-Wehba, Hannah) (Entered: 08/24/2016)
2016-08-25ELECTRONIC ORDER granting 18 Motion for Leave to Appear Pro Hac Vice of Hannah Bloch-Wehba. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. Ordered by Chief Mag. Judge Roanne L. Mann on 8/25/2016. (Maynard, Pat) (Entered: 08/25/2016)
2016-08-2519NOTICE of Appearance by Hannah Bloch-Wehba on behalf of Mattathias Schwartz (notification declined or already on case) (Bloch-Wehba, Hannah) (Entered: 08/25/2016)
2016-09-2220Consent MOTION for Extension of Time to File Motion for Summary Judgment by Central Intelligence Agency, Department of Defense, Department of Navy, Federal Bureau of Investigation, National Security Agency, Office of the Director of National Intelligence. (Attachments: # 1 Proposed Order) (Schwartz, James) (Entered: 09/22/2016)
2016-09-22ORDER granting 20 Defendants' Consent Motion for Extension of Time. The revised briefing schedule is as follows: Defendants' motion and supporting papers shall be served no later than September 30, 2016; plaintiff's cross-motion and opposition to defendants' motion shall be served no later than October 28, 2016; defendants' opposition to plaintiff's motion and reply papers, if any, shall be served no later than November 18, 2016; and plaintiff's reply papers, if any, shall be served no later than December 9, 2016. The fully briefed motion shall be filed in accordance with chambers rules, including courtesy copies for chambers, no later than December 9, 2016. This schedule may be altered only with the permission of the court. Ordered by Judge Allyne R. Ross on 9/22/2016. (Ranucci, Jessica) (Entered: 09/22/2016)
2016-09-3021MOTION for Summary Judgment by Central Intelligence Agency, Department of Defense, Department of Navy, Federal Bureau of Investigation, National Security Agency, Office of the Director of National Intelligence. Responses due by 10/28/2016 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Rule 56.1 Statement, # 8 Proposed Order) (Schwartz, James) (Entered: 09/30/2016)
2016-10-2822MOTION for Summary Judgment by Mattathias Schwartz. Responses due by 11/18/2016 (Attachments: # 1 Memorandum in Support of Plaintiff's Motion for Summary Judgment, # 2 Declaration of Hannah Bloch-Wehba, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Rule 56.1 Statement, # 15 Proposed Order) (Bloch-Wehba, Hannah) (Entered: 10/28/2016)
2016-11-1823REPLY to Response to Motion re 21 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit F, # 2 Rule 56.1 Statement) (Schwartz, James) (Entered: 11/18/2016)
2016-11-1824MEMORANDUM in Opposition re 22 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit F, # 2 Rule 56.1 Statement) (Schwartz, James) (Entered: 11/18/2016)
2016-12-0925REPLY to Response to Motion re 22 MOTION for Summary Judgment filed by Mattathias Schwartz. (Bloch-Wehba, Hannah) (Entered: 12/09/2016)
2016-12-1326Letter re: courtesy copies to chambers by Central Intelligence Agency, Department of Defense, Department of Navy, Federal Bureau of Investigation, National Security Agency, Office of the Director of National Intelligence (Schwartz, James) (Entered: 12/13/2016)
2016-12-23ORDER: 25 Plaintiff's reply brief refers to a reprocessing of his FOIA request by the CIA that occurred at some point after plaintiff filed 22 his cross-motion for summary judgment. The court requests that plaintiff provides true and correct copies of documents C06579389 and C06579390 as "reprocessed" by the CIA. As communicated to plaintiff's counsel by telephone, the court requests that the documents be provided by Thursday December 29, 2016. Ordered by Judge Allyne R. Ross on 12/23/2016. (Ranucci, Jessica) (Entered: 12/23/2016)
2016-12-2827Letter providing true and correct copies of reprocessed CIA documents by Mattathias Schwartz (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Bloch-Wehba, Hannah) (Entered: 12/28/2016)
2017-01-0628OPINION AND ORDER that plaintiff's 22 Motion for Summary Judgment is denied and defendants' 21 Motion for Summary Judgment is granted in part and denied in part. ( Ordered by Judge Allyne R. Ross on 1/5/2017 ) (Guzzi, Roseann) (Entered: 01/06/2017)
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by FOIA Project Staff