Judicial Watch, Inc. v. DOD

Citations: 847 F.3d 735; 2017 WL 490417; 2017 U.S. App. LEXIS 2133Docket: 16-5054

Court: Court of Appeals for the D.C. Circuit; February 6, 2017; Federal Appellate Court

Original Court Document: View Document

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Judicial Watch, Inc. filed a lawsuit against the United States Department of Defense (DOD) for alleged violations of the Freedom of Information Act (FOIA), specifically regarding the withholding of documents related to the Secretary of Defense’s 2014 decision to transfer five Guantanamo Bay detainees to Qatar. The DOD moved for summary judgment, having already released one document but withholding a second: a memo from Assistant Secretary of Defense Michael Lumpkin to Secretary of Defense Chuck Hagel, which the DOD claimed was a privileged deliberative document. The district court agreed with the DOD, ruling that the memo was indeed privileged, and thus ruled in favor of the DOD. Judicial Watch appealed this decision. The court affirmed the district court’s ruling, determining that the memo was properly withheld under the applicable FOIA exemptions.

Additionally, the National Defense Authorization Act for Fiscal Year 2014 allows the Secretary of Defense to transfer Guantanamo detainees under specific conditions, including a determination that the detainee no longer poses a threat to national security. On May 31, 2014, the Secretary authorized the transfer of five detainees to Qatar in exchange for American soldier Bowe Bergdahl, providing classified notices to Congress that detailed his determinations regarding the transfer’s implications for national security.

Judicial Watch submitted a FOIA request for records related to the U.S. Secretary of Defense's decisions regarding five Guantanamo Bay prisoners transferred to Qatar. After the Department of Defense (DOD) objected to the request as overly broad, Judicial Watch narrowed it to include only memos signed by the Secretary before May 31, 2014, that approved the detainee release and any separate determinations made under section 1305(a) of the NDAA. DOD failed to respond timely, prompting Judicial Watch to file a complaint in district court for non-compliance. DOD later acknowledged it was processing the request and ultimately revealed that the only responsive documents were eight classified letters to Congress. One letter was provided with redactions, citing that classified information is exempt from FOIA disclosure. DOD sought summary judgment, asserting that the Lumpkin Memo, which contained recommendations regarding the detainees, was not produced as it was not a signed document by the Secretary and would be exempt as a privileged deliberative document. The district court granted DOD's motion, noting the Lumpkin Memo was responsive but protected under the deliberative process privilege. Judicial Watch appealed this decision. FOIA aims to provide public access to information, requiring disclosure unless protected by specific exemptions.

The government has invoked Exemption 5 of the Freedom of Information Act (FOIA), which permits the withholding of information protected by recognized evidentiary privileges, including the deliberative process privilege. This privilege protects documents that are both 'predecisional' (created before an agency policy is adopted) and 'deliberative' (reflecting the consultative process). The privilege encourages candid internal discussions, preventing employees from self-censoring for fear of public exposure, and avoids confusion from premature disclosure of non-final ideas.

The central issue is whether the Lumpkin Memo is protected by this privilege. Judicial Watch acknowledges that when the memo was drafted, it was indeed predecisional and deliberative. However, it argues that the memo loses its protective status if the agency formally adopts it. For adoption to occur, there must be an express decision by the agency to utilize the document as guidance, rather than vague implications.

Judicial Watch claims that the Secretary of Defense adopted the memo by signing related letters to Congress, but this assertion lacks support in the record. The Secretary did not expressly endorse the memo; he only presented the reasoning found in the congressional letters as his own. The possibility exists that the Secretary relied on the memo's reasoning without formally adopting it. Consequently, the memo cannot be treated as a decisional document subject to disclosure.

Judicial Watch challenges the district court's conclusion regarding the Lumpkin Memo in three unpersuasive arguments. First, Judicial Watch interprets the memo as an official secretarial document based on the district court's characterization of its responsiveness to FOIA requests for signed Secretary of Defense memos and determinations. However, after an in-camera review, it is determined that the memo is neither signed nor a secretarial determination concerning detainees, leading to confusion over the district court's description but agreement with its ruling that the memo is privileged. Second, Judicial Watch cites Mr. Herrington’s assertion that it is typical for the Secretary of Defense not to endorse cover memos when signing associated correspondence. Nevertheless, Herrington clarified that signing the correspondence under the Lumpkin Memo did not imply endorsement of the memo's content. Lastly, Judicial Watch argues that the Secretary must have adopted the Lumpkin Memo to fulfill recordkeeping duties under 44 U.S.C. § 3101. However, compliance only requires preserving the memo and signed letters to Congress, not the production of nondecisional internal documents. Consequently, the court sees no reason to overturn the district court's finding that the Lumpkin Memo is a protected deliberative document and affirms the previous judgment.