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Case TitleROSENBERG et al v. UNITED STATES DEPARTMENT OF DEFENSE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv00437
Date Filed2017-03-10
Date ClosedOpen
JudgeJudge Amit P. Mehta
PlaintiffCAROL ROSENBERG
PlaintiffMIAMI HERALD MEDIA COMPANY
Case DescriptionMiami Herald reporter Carol Rosenberg submitted a FOIA request to the Department of Defense for emails sent by John Kelly, then commander of Southern Command, to Lisa Monaco, Homeland Security advisor to then President Obama. Rosenberg also requested expedited processing. The agency denied Rosenberg's request for expedited processing. Rosenberg then filed suit.
Complaint issues: Failure to respond within statutory time limit, Expedited processing, Litigation - Attorney's fees

DefendantUNITED STATES DEPARTMENT OF DEFENSE
DefendantDEPARTMENT OF DEFENSE
1000 Defense Pentagon
Washington, DC 20301-1000
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Opinion/Order [27]
FOIA Project Annotation: Ruling in a case brought by Miami Herald reporter Carol Rosenberg for emails sent by then SOUTHCOM Commander Gen. John Kelly to Lisa Monaco, then Assistant to President Obama for Homeland Security and Counterterrorism, pertaining to issues concerning the Guantanamo Bay detention center, Judge Amit Mehta becomes the first district court judge in the D.C. Circuit to substantively consider the impact of the codification of the foreseeable harm standard in the FOIA Improvement Act of 2016. Chiding the Justice Department's Office of Information Policy for its failure to update its FOIA Guide to reflect the 2016 amendments, Mehta explained that he found only two cases " Edelman v. SEC, 239 F. Supp. 3d 45 (D.D.C. 2017), in which Judge Randolph Moss discussed the impact of the codification of the foreseeable harm standard in passing, and Ecological Rights Foundation v. FEMA, 2017 WL 5972702 (N.D. Cal. Nov. 30, 2017), which provided a more detailed examination of the agency's burden of proof in analyzing the applicability of the foreseeable harm standard " addressing the issue at all. Mehta rejected the Defense Department's claim that the statutory codification of the foreseeable harm standard had virtually no effect on an agency's burden of proof, but rather than deny the agency's deliberative process privilege claims, he sent the case back to the agency to give it a chance to supplement its affidavits. Rosenberg, who has covered SOUTHCOM and Guantanamo Bay for the Miami Herald for years, made the request for Kelly's emails after he became a potential candidate for a national security position in the Trump administration. As a result, she asked for expedited processing, which the agency denied. However, the agency eventually provided her with 256 email records and 92 attachments, totaling 548 pages. The agency redacted or withheld records under Exemption 1 (national security), Exemption 3 (other statutes), Exemption 5 (privileges), Exemption 6 (invasion of privacy), and Exemption 7(E) (investigative method or techniques). Rosenberg did not challenge the denial of expedited processing or the adequacy of the search but did question the agency's exemption claims. Rosenberg argued that by citing nothing beyond the elements of the deliberative process privilege, the agency had failed to assess the impact of the 2016 codification of the foreseeable harm standard while DOD contended that the codification "does not require an agency to go through the superfluous exercise of showing how each disclosure would harm its deliberative process, especially where, as here, the agency's declaration explains that disclosing any of General Kelly's 'routine consultations with senior DOD and White House officials. . . about ongoing operational issues at [Guantanamo Bay]' would impede open discussion of these issues." Based on the statutory language, as well as the analysis from the court in Ecological Rights Foundation v. FEMA, Mehta pointed out that "to satisfy the 'foreseeable harm' standard, DOD must explain how a particular Exemption 5 withholding would harm the agency's deliberative process. DOD may take a categorical approach " that is, group together like records " but in that case, it must explain the foreseeable harm of disclosure of each category." Mehta pointed out that he was "unmoved by Defendant's argument that a more specific foreseeable-harm analysis would be duplicative. . .In DOD's view, [a] general explanation is all that is required, 'particularly where the nature of these documents is explained in detail.' To be sure, the agency's declaration provides sufficiently detailed descriptions of the nature and substance of withheld communications about JTF-GTMO operations between General Kelly and senior DOD officials. Indeed, the declaration provides that these communications run the gamut [of] discussions. . ." However, Mehta observed that "pointing out the breadth and variety of these categories of deliberative discussions only serves to undermine Defendant's argument that it has satisfied its statutory obligation." Agreeing with the agency that discussions on sensitive topics were probably privileged, Mehta added that "absent more detail from the agency, the court can less readily agree with the notion that disclosure of other, seemingly more benign, categories of withheld deliberative information. . .would reasonably result in the same level of harm to the exemption-protected interest." Adopting the kind of functional categorical approach sometimes used under Exemption 7(A) (interference with ongoing investigation or proceeding), Mehta noted that "the court does not read the statutory 'foreseeable harm' requirement to go so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings. A categorical approach will do. But the court agrees with Plaintiffs that the government must do more than perfunctorily state that disclosure of all the withheld information " regardless of category or substance " 'would jeopardize the free exchange of information between senior leaders within and outside of the [DOD].'" Based on his in camera review of a sampling of the withheld documents, Mehta ruled on Rosenberg's contention that some exemption claims were either based on bad faith efforts to conceal embarrassing information or that some withheld exchanges were neither predecisional nor deliberative. He rejected Rosenberg's claim of bad faith but agreed that an instance in which Kelly was expressing his opinion on the merits of a military commission about a female guard "is not directed towards decision-making as to law or policy, and that such material is not subject to the deliberative process privilege." Rosenberg also challenged some of the agency's Exemption 1 claims. Rosenberg argued that information about detainee health could not be withheld because it had already entered the public domain. Rejecting her claim that information about forced-feeding had already been officially acknowledged, Mehta observed that "rather than demonstrate that the 'information requested' is 'as specific as the information previously released,' Plaintiffs have merely identified facts relating to hunger strikes and enteral feeding from a variety of sources " some 'official' but most not " 'in the hopes that such information collectively is "as specific as" and "matches" the information that has been withheld.' But Plaintiffs' approach is unavailing." Mehta agreed with Rosenberg that information about a prisoner-release to Oman had been officially acknowledged and should be disclosed. Mehta accepted the agency's claims of Exemption 6 and Exemption 7(E). Rosenberg argued that because policies of the Bureau of Prisons pertaining to hunger strikes and forced-feeding were publicly available, DOD's policies should be disclosed as well. Mehta disagreed. He pointed out that "the information withheld from the record details the differences between BOP policy and the policy employed at JTF-GTMO; the policies and procedures in force at JTF-GTMO for hunger strikes and enteral feeding thus are not publicly available. Plaintiffs cannot seek disclosure of JTF-GTMO's policies based on another agency's public disclosure of its policies."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 1 - Harm to national security, Exemption 6 - Personnel, medical, similar file, Exemption 7(E) - Investigative methods or techniques, Exemption 7(E) - Unknown to public
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-03-101COMPLAINT against UNITED STATES DEPARTMENT OF DEFENSE ( Filing fee $ 400 receipt number 0090-4872828) filed by CAROL ROSENBERG, MIAMI HERALD MEDIA COMPANY. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Civil Cover Sheet, # 5 Certificate Rule LCvR 7.1, # 6 Summons, # 7 Summons, # 8 Summons)(Schulz, David) (Entered: 03/10/2017)
2017-03-10Case Assigned to Judge Amit P. Mehta. (md) (Entered: 03/13/2017)
2017-03-132LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MIAMI HERALD MEDIA COMPANY. (md) (Entered: 03/13/2017)
2017-03-133SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 03/13/2017)
2017-04-124NOTICE of Appearance by Daniel J. Halainen on behalf of UNITED STATES DEPARTMENT OF DEFENSE (Halainen, Daniel) (Entered: 04/12/2017)
2017-04-175RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/28/2017. Answer due for ALL FEDERAL DEFENDANTS by 4/27/2017. (Schulz, David) (Main Document 5 replaced on 4/18/2017) (jf). (Entered: 04/17/2017)
2017-04-176RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General March 27, 2017. (Schulz, David) (Entered: 04/17/2017)
2017-04-177RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF DEFENSE served on 3/27/2017 (Schulz, David) (Entered: 04/17/2017)
2017-04-278ANSWER to Complaint by UNITED STATES DEPARTMENT OF DEFENSE.(Halainen, Daniel) (Entered: 04/27/2017)
2017-04-279ORDER: Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before May 12, 2017. See the attached Order for additional details. Signed by Amit P. Mehta on 04/27/2017. (lcapm1) (Entered: 04/27/2017)
2017-04-27Set/Reset Deadlines/Hearings: Joint Status Report due by 5/12/2017. (cdw) (Entered: 04/28/2017)
2017-05-0410Unopposed MOTION for Extension of Time to File Joint Status Report by UNITED STATES DEPARTMENT OF DEFENSE (Halainen, Daniel) (Entered: 05/04/2017)
2017-05-04MINUTE ORDER granting Defendant's 10 Unopposed Motion for Extension of Time to File Joint Status Report. The parties' Joint Status Report shall be due on or before May 19, 2017. Signed by Judge Amit P. Mehta on 05/04/2017. (lcapm1) (Entered: 05/04/2017)
2017-05-04Set/Reset Deadlines/Hearings: Joint Status Report due by 5/19/2017. (cdw) (Entered: 05/08/2017)
2017-05-1911Joint STATUS REPORT by UNITED STATES DEPARTMENT OF DEFENSE. (Halainen, Daniel) (Entered: 05/19/2017)
2017-05-22MINUTE ORDER: Having considered the parties' respective positions concerning processing and production of responsive emails, the court orders Defendant to make a rolling production of responsive records (including redacted records) on June 12, 2017, July 7, 2017, and July 18, 2017. Thereafter, the parties shall meet and confer and notify the court no later than July 25, 2017, how they propose to proceed in this matter. Signed by Judge Amit P. Mehta on 05/22/2017. (lcapm1) (Entered: 05/22/2017)
2017-05-22Set/Reset Deadlines/Hearings: Parties' notice to the Court due by 7/25/2017. (cdw) (Entered: 05/23/2017)
2017-07-1812Unopposed MOTION for Extension of Time to Produce Records by UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 07/18/2017)
2017-07-1913Joint STATUS REPORT by UNITED STATES DEPARTMENT OF DEFENSE. (Halainen, Daniel) (Entered: 07/19/2017)
2017-07-21MINUTE ORDER granting Defendant's 12 Unopposed Motion for Extension of Time nunc pro tunc to July 19, 2017. Signed by Judge Amit P. Mehta on 07/21/2017. (lcapm1) (Entered: 07/21/2017)
2017-07-21MINUTE ORDER: In light of the parties' 13 Second Joint Status Report, the court directs Defendant to complete production on or before August 18, 2017. After production is complete, the court orders the parties to meet and confer and notify the court no later than August 25, 2017, as to how they propose to proceed in this matter. Signed by Judge Amit P. Mehta on 07/21/2017. (lcapm1) (Entered: 07/21/2017)
2017-08-1614MOTION for Extension of Time to Complete Production by UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 08/16/2017)
2017-08-17MINUTE ORDER granting Defendant's 14 Unopposed Motion for Extension of Time to Complete Production. Defendant shall complete production on or before August 25, 2017. After production is complete, the court orders the parties to meet and confer and notify the court no later than September 1, 2017, as to how they propose to proceed in this matter. Signed by Judge Amit P. Mehta on 08/17/2017. (lcapm1) (Entered: 08/17/2017)
2017-09-0115Joint STATUS REPORT by MIAMI HERALD MEDIA COMPANY, CAROL ROSENBERG. (Attachments: # 1 Text of Proposed Order)(Schulz, David) (Entered: 09/01/2017)
2017-09-0516ORDER setting the schedule for further proceedings in this matter: (1) Defendant shall file its Motion for Summary Judgment on or before October 18, 2017; (2) Plaintiffs shall file their Cross-Motion for Summary Judgment and Opposition to Defendant's Motion on or before November 8, 2017; (3) Defendant shall file its Reply and Opposition to Plaintiffs' Motion for Summary Judgment on or before November 22, 2017; and (4) Plaintiffs shall file their Reply on or before December 13, 2017. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 09/05/2017. (lcapm1) (Entered: 09/05/2017)
2017-10-1217Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 10/12/2017)
2017-10-13MINUTE ORDER granting Defendant's 17 Unopposed Motion for Extension of Time. Defendant's Motion for Summary Judgment is now due on or before October 27, 2017; Plaintiffs shall file their Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment on or before November 17, 2017; Defendant's Reply and Opposition to Plaintiffs' Cross-Motion for Summary Judgment shall be filed on or before December 8, 2017; and Plaintiffs' Reply is due on or before December 22, 2017. Signed by Judge Amit P. Mehta on 10/13/2017. (lcapm1) (Entered: 10/13/2017)
2017-10-2718MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Statement of Facts, # 4 Text of Proposed Order)(Halainen, Daniel) (Entered: 10/27/2017)
2017-11-1719Cross MOTION for Summary Judgment by MIAMI HERALD MEDIA COMPANY, CAROL ROSENBERG (Attachments: # 1 Memorandum in Support of Plaintiffs' Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, # 2 Statement of Facts and Response to Defendant's Statement of Facts, # 3 Declaration of John Langford, # 4 Exhibit A-00 to Langford Decl., # 5 Exhibit PP-1 to Langford Decl., # 6 Exhibit PP-2 to Langford Decl., # 7 Text of Proposed Order)(Schulz, David) (Entered: 11/17/2017)
2017-11-1720Memorandum in opposition to re 18 MOTION for Summary Judgment filed by MIAMI HERALD MEDIA COMPANY, CAROL ROSENBERG. (See Docket Entry 19 to view document). (znmw) (Entered: 11/20/2017)
2017-12-0721MOTION for Extension of Time to File Reply and Opposition to Plaintiffs Cross-Motion for Summary Judgment by UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 12/07/2017)
2017-12-07MINUTE ORDER granting Defendant's 21 Unopposed Motion for Extension of Time. Defendant's Reply and Opposition to Plaintiffs' Cross-Motion for Summary Judgment shall now be due on or before December 15, 2017, and Plaintiffs' Reply shall be due on or before January 5, 2018. Signed by Judge Amit P. Mehta on 12/07/2017. (lcapm1) (Entered: 12/07/2017)
2017-12-1522Memorandum in opposition to re 19 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration, # 2 Statement of Facts)(Halainen, Daniel) (Entered: 12/15/2017)
2017-12-19NOTICE OF ERROR re 22 Memorandum in Opposition; emailed to daniel.j.halainen@usdoj.gov, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. Same document using the (Entered: 12/19/2017)
2017-12-1923REPLY to opposition to motion re 18 MOTION for Summary Judgment , 19 Cross MOTION for Summary Judgment < filed by UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration, # 2 Statement of Facts)(Halainen, Daniel) (Entered: 12/19/2017)
2018-01-0524REPLY to opposition to motion re 19 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by MIAMI HERALD MEDIA COMPANY, CAROL ROSENBERG. (Schulz, David) (Entered: 01/05/2018)
2018-02-0625NOTICE of Change of Address by David A. Schulz (Schulz, David) (Entered: 02/06/2018)
2018-08-22MINUTE ORDER. No later than August 28, 2018, Defendant shall produce the documents identified by Plaintiffs in their 24 Reply (Records 31, 72, 129, 140, 168, 240, 248, 265, 278, 281, 288, 295, 297, 307, 317, 320, 321, 326, 328, 331, and 335) to the court for in camera review. To the extent possible, the government shall segregate records that contain classified information from those that do not. Signed by Judge Amit P. Mehta on 08/22/2018. (lcapm3) (Entered: 08/22/2018)
2018-08-22Set/Reset Deadlines: In-Camera Submission due by 8/28/2018. (zjd) (Entered: 08/22/2018)
2018-08-2826NOTICE of Lodging by UNITED STATES DEPARTMENT OF DEFENSE re Order, (Halainen, Daniel) (Entered: 08/28/2018)
2018-09-2727MEMORANDUM OPINION and ORDER granting in part and denying in part Defendant's 18 Motion for Summary Judgment and Plaintiffs' 19 Cross-Motion for Summary Judgment. The parties shall meet and confer and no later than October 10, 2018, propose a schedule for an additional round of summary judgment briefing. See the attached Memorandum Opinion and Order for details. Signed by Judge Amit P. Mehta on 09/27/2018. (lcapm3) (Entered: 09/27/2018)
2018-09-27Set/Reset Deadlines: Proposed Briefing Schedule due by 10/10/2018. (zjd) (Entered: 09/27/2018)
2018-10-1028Joint STATUS REPORT by UNITED STATES DEPARTMENT OF DEFENSE. (Halainen, Daniel) (Entered: 10/10/2018)
2018-10-11MINUTE ORDER entering the additional briefing schedule proposed in the parties' 28 Joint Status Report. The schedule for further proceedings in this matter is as follows: (1) Defendant's Motion for Summary Judgment is due on or before November 21, 2018; (2) Plaintiffs' Opposition to Defendant's Motion and Cross-Motion for Summary Judgment is due on or before December 19, 2018; (3) Defendant's Reply and Opposition to Plaintiffs' Cross-Motion is due on or before January 10, 2019; and (4) Plaintiffs' Reply in Support of their Cross-Motion for Summary Judgment is due on or before January 24, 2019. With respect to Plaintiffs' request to supplement the record, the court will consider whether to accept such additional evidence when, and if, it is submitted. Signed by Judge Amit P. Mehta on 10/11/2018. (lcapm1) (Entered: 10/11/2018)
2018-10-11Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 11/21/2018. Plaintiff's Opposition and Cross-Motion for Summary Judgment due by 12/19/2018. Defendant's Reply and Opposition due by 1/10/2019. Plaintiff's Reply due by 1/24/2019. (zjd) (Entered: 10/11/2018)
2018-10-1629NOTICE of Change of Address by Daniel J. Halainen (Halainen, Daniel) (Entered: 10/16/2018)
2018-11-2130NOTICE of Lodging Classified Declaration by UNITED STATES DEPARTMENT OF DEFENSE (Halainen, Daniel) (Entered: 11/21/2018)
2018-11-2131MOTION for Summary Judgment (Renewed) by UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Text of Proposed Order)(Halainen, Daniel) (Entered: 11/21/2018)
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