Kansas, State of, v. United States Department of Defense

Filing 31

MEMORANDUM AND ORDER granting in part and denying in part 21 Motion for Summary Judgment. See Order for details. Signed by District Judge Daniel D. Crabtree on 03/21/2018. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

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

Plaintiff,
v.

Case No. 16-4127-DDC-KGS

UNITED STATES DEPARTMENT OF
DEFENSE,
Defendant.
____________________________________

MEMORANDUM AND ORDER
When reviewing whether an agency fulfills its duties in response to a Freedom of
Information Act (“FOIA”) request, the court must ensure the agency faithfully adheres to the
delicate balance FOIA aims to achieve. On one hand, FOIA desires “to ensure an informed
citizenry, vital to the functioning of a democratic society, needed to check against corruption[,]
and to hold governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978). So, courts must construe FOIA requests broadly to favor disclosure.
Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). But FOIA’s disclosure
requirements have their limits. FOIA does not require agencies to conduct an exhaustive search
of every record they possess. Trentadue v. FBI, 572 F.3d 794, 797 (10th Cir. 2009). And FOIA
allows agencies to withhold certain types of information. See 5 U.S.C. § 552(b).
Here, Kansas—the plaintiff—asked the United States Department of Defense—the
defendant—to produce documents about President Obama’s plan to close the military detention

center in Guantanamo Bay (“GTMO”). When defendant did not comply with plaintiff’s request
immediately, plaintiff filed this suit. See Doc. 1. Defendant since has produced more than 2,000
pages of documents about GTMO’s closure. Defendant now moves for summary judgment,
arguing that its response achieves the balance FOIA desires (Doc. 21). Plaintiff argues that the
court should deny the motion because defendant has conducted an insufficient search, withheld
documents impermissibly, and produced insufficient information to fulfill one of plaintiff’s
requests.
For reasons explained below, the court grants defendant’s motion in part and denies it in
part. After reviewing the parties’ submissions, the court concludes that no genuine dispute of
material fact exists that defendant failed its FOIA obligations except for five documents, which
the court will review in camera to determine if defendant properly withheld some information.
After discussing the facts governing this motion, the court explains its reasoning.
I.

Facts
The following facts are uncontroverted or, where controverted, are stated in the light

most favorable to plaintiff, the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
Background
GTMO is a U.S. Naval base on the island of Cuba. In 2002, the U.S. government began
detaining combatants captured in the Middle East. The base has been the source of controversy
and 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 U.S.
mainland. Exec. Order No. 13,492, 74 Fed. Reg. 4,897, 4,898 (Jan. 22, 2009). Soon after that
order, defendant tasked the Office of Detainee Policy (“ODP”) to lead this research. The ODP is
a department within the Office of the Undersecretary of Defense and is the lead office within

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defendant for detainee policy. When ODP began working on the GTMO closure plan, it required
all employees to save emails about that plan in a separate folder in their email boxes and place
any documents about the closure plan in a designated folder on the ODP’s shared drive.
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:
(a) the implementation of [President Obama’s Executive Order], concerning the
disposition of individuals detained at [GTMO] and the closure of the detention
facilities located there;
(b) the transfer or potential transfer to the United States mainland of individuals
currently detained at [GTMO];
(c) site visits to military bases or detention facilities in Kansas or any other State
as part of, or related to, an effort to find a facility to house individuals currently
detained at [GTMO];
(d) the modification or construction of any military base or federal or state-owned
prison, penitentiary, or other detention facility for the purpose of housing
individuals currently detained at [GTMO];
(e) any assessment of the suitability of any location at Fort Leavenworth, Kansas,
or elsewhere within the State of Kansas, as a site for potentially housing
individuals currently detained at [GTMO];
(f) surveys or questionnaires regarding potential transfer sites on the United States
mainland for individuals currently detained at [GTMO];
(g) any expenditures of funds related to (a) through (f), including any travel or
personnel costs related to surveying potential transfer sites on the United States
mainland for individuals currently detained at [GTMO]; [and]
(h) the legal basis for any violation of the funding restrictions Congress has
imposed [preventing the federal government from spending money on activities
related to GTMO’s closure].
Doc. 1-1 (FOIA Request) at 2–3. The parties made two modifications to plaintiff’s request.
First, plaintiff agreed to change (a) so that it included only information about the possible
relocation of GTMO detainees to Kansas. Doc. 1-3 (FOIA Modification Email) at 2. Second,
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plaintiff agreed to modify (g) so that it included only information about expenditures defendant
incurred traveling to and surveying potential GTMO detainee relocation sites. Id. Shortly after
the parties agreed to these modifications, President Obama released his GTMO closure plan.
Defendant did not comply with plaintiff’s request immediately. So, on July 22, 2016,
plaintiff filed this suit, claiming that defendant had a duty under FOIA to release the information
plaintiff sought. After plaintiff filed this suit, defendant initially produced a one-page document
addressing plaintiff’s modified request (g). On November 15, 2016, defendant provided nonclassified system documents responsive to plaintiff’s request. After that, defendant released the
responsive classified documents on a rolling basis, delivering the last set of documents in March
2017. In all, defendant has produced more than 2,000 pages of responsive documents.
Search Process
As noted above, before defendant received plaintiff’s FOIA request, the ODP had
segregated emails and documents about GTMO’s closure. When defendant began searching for
the information that plaintiff had requested, defendant determined that ODP was the only agency
with relevant information because it led President Obama’s GTMO closure plan development.
And it coordinated all communications between the relevant governmental agencies. So,
defendant concluded, any information stored outside ODP would duplicate information it
possessed.
Three ODP employees then began the search process. They started in ODP’s shared
drive and the emails ODP had saved when it started the GTMO closure project. They also
searched ODP’s classified and unclassified system using the search terms “Kansas, Colorado,
Charleston, Florence, Leavenworth, Brig, BOP, USDB, CONUS, and closure.” Doc. 22-1

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(Herrington Decl.) ¶ 8.1 Finally, they scanned 20 paper documents that ODP had produced
during the GTMO closure project. Id. ¶ 9. After redacting what ODP thought it should
withhold, defendant released the documents to plaintiff.
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 a summary judgment motion 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). Defendant meets its burden if it provides specific, non-conclusory
affidavits that are consistent with the record and submitted in good faith. Hull v. IRS, U.S. Dep’t
of Treasury, 656 F.3d 1174, 1177–78 (10th Cir. 2011).
III.

Discussion
Defendant asks the court to grant summary judgment against plaintiff’s claim, arguing

that it has complied fully with its FOIA obligations. Plaintiff opposes this request for three
reasons. First, plaintiff argues that defendant conducted an inadequate search. Second, plaintiff
asserts that defendant improperly exempted certain portions of the documents it released. And
last, plaintiff argues that defendant has failed to produce adequate information to satisfy its
request for information about the expenditures defendant incurred surveying possible GTMO

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Mark H. Herrington serves as Associate Deputy General Counsel in defendant’s Office of General Counsel.
Herrington Decl. ¶ 1. He oversees and coordinates defendant’s FOIA responses, including this one. Id. ¶ 2.

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detainee relocation sites. The court addresses these arguments in the next three subsections,
below.
A.

The Adequacy of the Search

Plaintiff first quarrels with the adequacy of defendant’s search. When assessing the
adequacy of an agency’s search, a court must focus on the search process—not the search results.
FBI, 572 F.3d at 797. “The reasonableness of an agency’s search turns on ‘the likelihood that it
will yield the sought-after information, the existence of readily available alternatives, and the
burden of employing those alternatives.’” Id. at 798 (quoting Davis v. DOJ, 460 F.3d 92, 105
(D.C. Cir. 2006)). To establish that it conducted a reasonable search, the agency must explain
that it searched all files likely to have relevant information and that further investigation would
prove unduly burdensome. Knight v. FDA, 938 F. Supp. 710, 716 (D. Kan. 1996). And the
agency must describe the type of search it conducted, including any search terms it used. Id.
Here, defendant only searched ODP—the agency leading the GTMO closure plan. When
it conducted its search, ODP used three of its employees. They started their search by looking in
a folder on ODP’s shared drive where ODP had centralized all documents about GTMO’s
closure. They also asked other ODP employees to move all emails they saved about GTMO’s
closure to a folder created in response to plaintiff’s FOIA request. Finally, they electronically
searched ODP’s system using the search terms “Kansas, Colorado, Charleston, Florence,
Leavenworth, Brig, BOP, USDB, CONUS, and closure.” Herrington Decl. ¶ 8.
Plaintiff takes exception to two aspects of defendant’s search: where defendant searched
and how it searched. Doc. 27 at 17. The court addresses these arguments, below.

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1.

The Search Location

To satisfy its FOIA obligations, an agency need not search every place responsive records
might exist; instead, the agency only needs to search those places that are reasonably likely to
yield relevant records. See Knight, 938 F. Supp. at 716. In Knight, plaintiff sought information
from the FDA about himself relating to a Pepsi extortion and tampering hoax. Id. at 712. The
FDA responded, explaining that its Office of Criminal Investigations (“OCI”) had discovered
just two responsive documents. Id. at 713. When searching for the documents plaintiff
requested, OCI looked through a database of witnesses to, victims of, and subjects of
investigations it conducted. Id. at 714. Then it looked through its paper files for a file on Pepsi
and did a keyword search through its electronic files using the terms “Pepsi,” “PepsiCo,” and
“Pepsi tampering.” Id. Last, it emailed OCI officials asking if they had any information about
plaintiff or the Pepsi investigation. Id. OCI explained by affidavit that only OCI was likely to
have the relevant files because that office “ʻwas the component of the FDA responsible for
carrying out investigations of potentially criminal violations, and all of the tampering
investigations were potentially criminal matters.’” Id. at 713 (quoting the agency’s affidavit).
Defendant filed a summary judgment motion asking the court to find that it fully had
complied with FOIA’s obligations. Id. at 716. Plaintiff opposed this motion, arguing that
defendant’s search was inadequate. Id. Specifically, plaintiff argued that an adequate search
required defendant to search outside the OCI. Id. Judge Crow disagreed, concluding that
“ʻ[t]here is no requirement that an agency search every record system,’” particularly when “the
request does not specifically state the place of search.” Id. (quoting Oglesby v. U.S. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Instead, Judge Crow held, all an agency must do is
explain that no other department is likely to have relevant information. Id. Judge Crow

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concluded that the OCI’s affidavit satisfied that standard and thus found that it conducted an
adequate search. Id. at 716–71.
Here, the court is faced with a similar situation. Plaintiff’s request does not specify
where in defendant’s many offices to search. See FOIA Request at 1. And defendant has
explained that ODP is the only department likely to possess files relevant to plaintiff’s request
because it led the effort to close GTMO. Herrington Decl. ¶ 6. Other agencies, defendant
explains, likely have no additional information. Id. The court thus concludes FOIA only
requires defendant to search ODP.
Plaintiff argues it is implausible that one small office handled the entire GTMO closure
plan. But plaintiff never identifies any evidence in the record that creates a genuine issue about
the summary judgment facts. Indeed, defendant has explained that while other agencies helped
with the closure plan, ODP was the hub. Id. It oversaw all communications about the project—
both within and outside defendant. Id. While it’s possible that other information may reside in
another department’s system, FOIA does not require an agency to search everywhere—only
those places reasonably likely to have relevant information. Knight, 938 F. Supp. at 716. Since
ODP coordinated the entire GTMO closure effort, it is the only place likely to have relevant
information. The court thus rejects plaintiff’s argument that defendant must search places
outside ODP.
2.

The Search Process

Next, plaintiff argues that defendant’s search process was flawed. Specifically, plaintiff
discusses two aspects of defendant’s search: the employees who searched ODP’s system and
defendant’s search terms.

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Plaintiff argues that the employees who searched ODP’s files were self-interested and
would lack knowledge about GTMO detainees transferring to the U.S. mainland. Doc. 27 at 17.
But plaintiff never supports its assertions. See Al-Turki v. DOJ, 175 F. Supp. 3d 1153, 1169 (D.
Colo. 2016) (“If the plaintiff can ‘offer nothing more than opinion and speculation’ regarding the
content of the government’s sworn declarations, he ‘does not undermine the deference normally
accorded to an agency.’” (quoting Carter v. NSA, 962 F. Supp. 2d 130, 140 (D.D.C. 2013)
(internal bracket omitted))). Plaintiff’s assertion that these employees would know nothing
about GTMO detainees transferring to the U.S. mainland contradicts—without evidentiary
support—defendant’s affidavit that ODP “is the lead office of [defendant’s] policy regarding
detainees generally.” Herrington Decl. ¶ 5. And plaintiff speculates—once again without
evidentiary support—that the employees searched ODP’s files poorly because they were selfinterested. So, the court rejects plaintiff’s argument that the employees conducting the search
rendered the search process inadequate.
Plaintiff also argues that—in addition to the search terms ODP used to search its
system—it should have used the terms “transfer,” “survey,” and “detain.” Doc. 27 at 17. FOIA
only requires agencies to use search terms that target responsive documents. Looks
Filmproduktionen GmbH v. CIA, 199 F. Supp. 3d 153, 168 (D.D.C. 2016) (holding that an
agency need not use plaintiff’s suggested search terms because they were “extremely broad and
would likely produce a greater number of unresponsive documents than the more targeted search
terms employed by the agency”). Here, “detain” is extremely broad because ODP leads
defendant’s policy formulation on detainees. Herrington Decl. ¶ 5. Any search for the word
“detain” thus likely would produce a vast load of unresponsive documents. And defendant has
explained that “transfer” and “survey” are not terms unique to the GTMO closure process, which

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is why defendant chose not to use those terms. Herrington Decl. ¶ 8. The court concludes FOIA
does not require defendant to search again, using these additional search terms. And the court
finds that defendant has met its FOIA obligations to conduct an adequate search.
B.

Exemptions

FOIA allows agencies to withhold certain types of information. See 5 U.S.C. § 552(b).
But the court must construe FOIA’s exemptions narrowly. Integrity Comm., 501 F.3d at 1226.
And the agency should disclose any non-exempt information that won’t reveal exempt
information. Id.
To prove that an agency properly exempted information, it can submit affidavits that
justify why the information is exempt. Hull, 656 F.3d at 1177. If the court cannot conclude with
“reasonable certainty” that the agency properly exempted the documents, it can order defendant
to produce a Vaughn index,2 or submit the contested documents for in camera review. Id. at
1178. The Tenth Circuit has instructed, however, that “ʻan in camera review should not be
resorted to as a matter of course, simply on the theory that “it can’t hurt.”’” Id. (quoting Quiñon
v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996)).
Here, defendant invoked five of FOIA’s exemptions: 1, 5, 6, 7(E), and 7(F). Plaintiff
only challenges defendant’s use of 5, 7(E), and 7(F). Below, the court first describes what these
three exemptions protect. Then, it addresses plaintiff’s arguments against defendant’s uses of
these exemptions.
1.

Description of the Exemptions

The court discusses 7(E) and 7(F) together because they are related to each other. But it
begins with Exemption 5.

2

A Vaughn index looks like and functions as a privacy log does in civil litigation. It lists each withheld (or
partially withheld) document and explains why the agency withheld the information. Hull, 656 F.3d at 1178 n.2.

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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. Integrity Comm., 501 F.3d at 1227.
The “predecisional” quality is the easy part and, of course, not at issue here. A document
is predecisional if it is created to help the decisionmaker arrive at a decision, while a
postdecisional document explains why the agency made a decision. Id. Here, the documents
plaintiff requested were produced before President Obama reached his final decision in February
2016. So, all documents produced in plaintiff’s FOIA request are predecisional.
The harder question to answer is whether a particular document is deliberative. The term
“deliberative” encompasses “ʻadvisory opinions, recommendations[,] and deliberations
compromising part of a process by which governmental decisions and policies are formulated.’”
Id. at 1226 (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001)). In contrast, purely factual, investigative material falls outside the deliberative process
privilege’s scope. Id. at 1227.
But some factual material will “ʻso expose the deliberative process within an agency’”
that a court must consider it “deliberative.” Id. (quoting Mead Data Cent., Inc. v. U.S. Dep’t of
Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)). This occurs when the factual content “would
reveal deliberative information by allowing the public to easily infer [deliberative information]
from [the factual content],” or the facts are “inextricably intertwined with deliberative material.”

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Id. at 1229. For example, the deliberative process privilege protects unreleased drafts of purely
factual materials because the public “could simply compare the contested draft documents
prepared by lower-level [agency] personnel to the final documents adopted by the agency in
order ‘to reconstruct the predecisional judgments of the administrator.’” Id. at 1228 (quoting
Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1122 (9th Cir. 1988)). And the
deliberative process privilege protects an agency’s factual summary of publicly available
information because “disclosure would reveal ‘what advice as to [the] importance and
unimportance of facts the Administrator received, and how much of it he accepted.’” Id. at 1229
(quoting Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974)).
As a guide to applying this rule, the court must be attentive to FOIA’s two policy
justifications for withholding predecisional, deliberative information. See id. at 1226. First,
withholding this information allows government officials to communicate candidly during the
decision-making process. Id. And second, this exemption protects the agency from sending
mixed signals through the “premature disclosure of proposed policies” that an agency may not
institute, or reasons for an agency’s decision that it ultimately declines to adopt. Id.
b.

Exemption 7(E) and 7(F)

Exemption 7 allows an agency to withhold “records or information compiled for law
enforcement purposes,” but only if disclosure would create a danger enumerated in the statute. 5
U.S.C. § 552(b)(7). Here, defendant fears that revealing some of the records would create two
dangers: (a) the danger that the records “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law” (Exemption 7(E)); and (b) the danger that the records “could

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reasonably be expected to endanger the life or physical safety of any individual” (Exemption
7(F)). Id. § 552(b)(7)(E), (F).
2.

Plaintiff’s Arguments Against Defendant’s Uses of Exemptions

Having reviewed the types of materials protected by Exemptions 5, 7(E), and 7(F), the
court now turns to plaintiff’s arguments why defendant incorrectly used them. Plaintiff’s
arguments against defendant’s use of the exemptions fall into two categories. First, plaintiff
broadly attacks defendant’s use of the exemptions. Second, plaintiff attacks specific uses of the
exemptions. The court begins with plaintiff’s global attacks on the exemptions and then, turns to
plaintiff’s complaints of specific uses of the exemptions.
a.

Global Issues

Plaintiff raises three general issues about defendant’s uses of the exemptions. First,
plaintiff argues that defendant must disclose any documents withheld under the deliberative
process privilege because it is a qualified privilege and plaintiff has demonstrated a great need
for the information. Second, plaintiff argues that defendant failed its FOIA duty to produce
segregable, non-exempt information. And last, plaintiff contends that defendant’s broad use of
Exemption 5 undermines FOIA’s policies. The court addresses these three arguments separately,
below.
i.

Qualified Privilege

Plaintiff argues that the court should deny defendant’s motion because the summary
judgment facts prove plaintiff has overcome defendant’s use of the deliberative process
privilege. Defendant responds, asserting that plaintiff cannot overcome defendant’s privilege
because, under FOIA, the deliberative process privilege is absolute. The available persuasive
authority sides with defendant. So does the court.

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To support its argument that the deliberative process privilege is a qualified privilege,
plaintiff directs the court to In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). But In re Sealed
Case is a much different case. There, a grand jury had subpoenaed the White House to produce
documents for an investigation into the former Secretary of Agriculture. Id. at 735. The White
House redacted many documents, claiming in part that the deliberative process privilege
protected the documents from exposure. Id. The prosecutor filed a motion to compel,
challenging the White House’s use of this privilege. Id. In it, the prosecutor argued that the
grand jury’s need for the documents overcame the White House’s need for privacy. Id. at 736.
The district court agreed with the White House but never evaluated the grand jury’s need for the
documents. Id.
The government appealed and the D.C. Circuit reversed. Id. The Circuit began by
providing a broad overview of executive privilege, including the deliberative process privilege.
Id. The court of appeals also explained that “[t]he deliberative process privilege is a qualified
privilege and can be overcome by a sufficient showing of need.” Id. at 737. Because the
government could overcome this privilege, the district court erred by failing to evaluate the
grand jury’s need for the information. Id. at 740. But the Circuit also explained that “[t]his
characteristic of the deliberative process privilege is not an issue in FOIA cases because the
courts have held that the particular purpose for which a FOIA plaintiff seeks information is not
relevant in determining whether FOIA requires disclosure.” Id. at 737 n.5; see also Sears,
Roebuck & Co., 421 U.S. at 149 n.16 (“However, it is not sensible to construe [FOIA] to require
disclosure of any document which would be disclosed in the hypothetical litigation in which the
private party’s claim is the most compelling.”).

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Here, plaintiff has asserted a FOIA claim. It is not a grand jury subpoenaing documents.
So, plaintiff’s need for the information plays no role in the court’s determination whether
defendant has discharged its FOIA obligations. See Judicial Watch, Inc. v. U.S. Dep’t of
Homeland Sec., 841 F. Supp. 2d 142, 162 (D.D.C. 2012) (“First, [plaintiff] appears to argue that
the deliberative process privilege is a qualified privilege and can be overcome by a showing of
sufficient need. While this is an accurate statement of law, [plaintiff] conveniently omits an
important proviso—namely, that this characteristic of the deliberative process privilege is not an
issue in FOIA cases.” (internal citations and bracket omitted)). The court thus rejects plaintiff’s
argument that the court should deny defendant’s motion based on plaintiff’s strong need for the
information.
ii.

Segregable Information

Plaintiff argues that defendant never properly segregated and produced non-exempt
information. FOIA requires the responding agency to produce “[a]ny reasonably segregable
portion of a record . . . after deletion of the portions which are exempt . . . .” 5 U.S.C. § 552(b).
So, the act requires reviewing courts to analyze whether the agency provided all segregable
portions of the record. Integrity Comm., 501 F.3d at 1230 (remanding a FOIA case, in part
because the district court refused to evaluate whether the agency properly produced the
segregable portions of the responsive documents).
“Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007). But “[t]he quantum of evidence required to overcome that presumption is not clear.”
Id. In a different context, the Supreme Court has required a FOIA plaintiff, to defeat a summary
judgment motion, to provide “evidence that would warrant a belief by a reasonable person that

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the alleged Government impropriety might have occurred.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 174 (2004) (holding that under Exemption 7(C), which allows an agency
to withhold a document connected with a law enforcement investigation to protect someone’s
privacy, a plaintiff may override that exemption by showing government misconduct).
Although no Tenth Circuit case addresses the appropriate standard to apply here, the
court believes the Tenth Circuit—if presented with this issue—would apply the same standard
the D.C. Circuit uses to determine whether plaintiff has overcome the presumption that
defendant disclosed reasonably segregable material. See Sussman, 494 F.3d at 1117 (applying
the Favish standard to determine if the government sufficiently justified its segregation process).
Indeed, the Favish standard matches the traditional standard courts utilize at summary judgment.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that summary judgment
is inappropriate when a “reasonable jury could return a verdict for the nonmoving party”).
Here, plaintiff has not adduced sufficient evidence to overcome the presumption that
defendant properly produced the reasonably segregable non-exempt information—except for five
documents discussed later. In its affidavit, defendant explained, “All of the documents addressed
herein have been carefully reviewed for reasonable segregation of non-exempt information, and,
following a line-by-line review, it has been determined that no further segregation of meaningful
information in the withheld documents can be made without disclosing information warranting
protection under the law.” Herrington Decl. ¶ 28. Plaintiff illuminates no part of the record—
except for the five documents discussed below—that would create doubt in a reasonable person’s
mind that defendant failed its FOIA obligation to segregate non-exempt information. Defendant
thus has satisfied its general burden to produce segregable, non-exempt information.

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iii.

Defendant’s Broad Use of Exemption 5

Plaintiff next argues that defendant improperly invoked Exemption 5 because it broadly
asserted this exemption. Plaintiff contends that this broad use of Exemption 5 created two
problems. First, plaintiff argues that defendant invoked Exemption 5 broadly to hide that it
actively was planning to move GTMO detainees to the U.S. mainland. This effort to hide its
activities, plaintiff argues, undermines FOIA’s goals. This argument is farfetched. Nothing
suggests that defendant tried to hide its plan to move GTMO detainees to the U.S. mainland.
Indeed, President Obama issued a public executive order directing defendant to research plans to
move GTMO detainees to the continental United States. And later, he published a plan to close
GTMO. The summary judgment facts establish the information defendant withholds under
Exemption 5 is deliberative material that it produced before it reached a final decision.
Exemption 5 protects this kind of information—except for five documents described later in this
Order. See Integrity Comm., 501 F.3d at 1226. So, plaintiff fails to create a genuine issue of
material fact that defendant has abused this exemption to hide its plans to move GTMO
detainees.
Second, plaintiff argues that defendant’s use of a broadly based Exemption 5 response
creates a genuine issue whether defendant properly could assert this exemption at all. Doc. 27 at
20. But this assertion, without more, cannot preclude summary judgment against plaintiff’s
FOIA claim. See Al-Turki, 175 F. Supp. 3d at 1170 (“If the plaintiff can ‘offer nothing more
than opinion and speculation’ regarding the content of the government’s sworn declarations, he
‘does not undermine the deference normally accorded to an agency.’” (quoting Carter, 962 F.
Supp. 2d at 140 (internal bracket omitted))). And the court would expect Exemption 5 to apply
to at least some of the documents plaintiff requested because plaintiff’s request expressly

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focused on information created before President Obama released his GTMO closure plan. Any
responsive documents are, by definition, predecisional. The only question remaining is whether
the document is deliberative. As the court explains below, defendant has justified adequately
that the documents it withheld are deliberative—except for five documents. The court thus
rejects plaintiff’s arguments that defendant failed to justify its exemptions generally.
b.

Individual Documents

Plaintiff challenges several documents defendant exempted. Specifically, plaintiff
challenges unclassified documents 129, 165, and 193 and classified documents 77, 78, 101B,
104B, 234, and 241.3 In the next subsections, the court discusses each document in turn and
evaluates defendant’s justifications for withholding each.
i.

Unclassified Document 129 (Bates 333)

Defendant withheld document 129 under Exemption 5 because it contains “analysis
regarding costs of military commissions.” Doc. 22-1 (Vaughn Index) at 27. Plaintiff describes
the document as one analyzing costs from 2014. Defendant argues that it took those costs into
consideration when making projections about GTMO’s closure and “which costs to consider in
that analysis or the estimates used in those calculations, are as essential to the deliberative
process as the recommendations themselves.” Herrington Decl. ¶ 19. The court finds this
explanation insufficient.
The Tenth Circuit has disapproved of agencies withholding facts “simply because it
reflects a choice as to which facts to include in a document . . . .” Integrity Comm., 501 F.3d at

3
While plaintiff’s enumerated list in its Opposition brief is not a complete list of plaintiff’s issues with
defendant’s withholdings, the court has reviewed the entire Vaughn Index and determined that plaintiff’s list fairly
represents the different justifications defendant invokes. Where necessary, the court identifies documents like the
ones plaintiff specifically discusses in its brief.

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1229. This is so because “ʻ[a]nyone making a report must of necessity select the facts to be
mentioned. . . .’” Id. (quoting Playboy Enters., Inc. v. DOJ, 677 F.2d 931, 935 (D.C. Cir. 1982)).
The Tenth Circuit feared that allowing an agency to claim every document with facts as
deliberative could justify withholding almost anything. Id. To be sure, instances exist where an
agency’s factual compilation would reveal its deliberative process. See, e.g., Montrose, 491 F.2d
at 68 (holding that Exemption 5 protected a factual summary of a publicly available record). But
an agency must explain why “the only new information which disclosure of [factual] summaries
would provide [plaintiff] concerns the mental processes of the agency.” Id. (emphasis added).
Here, the court cannot determine on the current record whether the disclosure of which costs
defendant considered would reveal only information about its deliberative process, like in
Montrose. So, the court cannot grant summary judgment against this aspect of plaintiff’s claim.
Reilly v. United States EPA, 429 F. Supp. 2d 335 (D. Mass. 2006), guides the court’s
decision here. In Reilly, plaintiff asked the EPA for documents about a new regulation it had
enacted for mercury emissions from power plants. Id. at 336. The EPA withheld some
documents, arguing that the deliberative process privilege applied. Id. at 336–37. Specifically,
defendant argued that Exemption 5 protected the results and inputs of a computer model the EPA
had run. The EPA ran the model several times, but only released a few results and the inputs that
produced those results. Id. at 338. The unreleased results and the inputs that led to them, the
EPA argued, would reveal which variables the EPA deemed important and thus were
deliberative. Id. at 349.
While recognizing the decision was a close one, the court concluded that FOIA required
the EPA to release all the models it had run. Id. at 352. The court reasoned that the models
generated “raw data” and thus were investigative tools. Id.; see also EPA v. Mink, 410 U.S. 73,

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93 (1973) (“Exemption 5 . . . requires different treatment for material reflecting deliberative or
policy-making matters on the one hand, and purely factual, investigative matters on the other.”),
superseded by statute on other grounds, Pub. L. No. 93-502, 88 Stat. 1561 (1974). The court
acknowledged that the public might draw inferences about the EPA’s deliberative process from
the inputs it chose. Reilly, 429 F. Supp. 2d at 352. But the court concluded that protecting this
information would amplify Exemption 5’s power in a way that would nullify FOIA’s disclosure
goal. Id.; see also Integrity Comm., 501 F.3d at 1229 (rejecting the idea that the deliberative
process privilege protects “factual material simply because it reflects a choice as to which facts
to include in a document”).
Here, the court cannot conclude on this summary judgment record that the factual
information in document 129 is unlike the models in Reilly. Defendant’s affidavit just explains
that the costs considered might reveal its deliberative process without elaborating. This
information might consist of raw data that defendant considered in its debate about the estimated
cost to close GTMO, thus preventing defendant from shielding it with the deliberative process
privilege. See Reilly, 429 F. Supp. 2d at 352. But it might instead contain a factual summary
like the one in Montrose where “the only new information which disclosure of [factual]
summaries would provide [plaintiff] concerns the mental processes of the agency.” Montrose,
491 F.2d at 68. In short, the court needs more information to decide if defendant properly
exempted this information.
The information also could consist of cost estimates, which Exemption 5 protects. See
Quarles v. Dep’t of Navy, 893 F.2d 390, 392–93 (D.C. Cir. 1990). As the D.C. Circuit
explained, “[C]ost estimates . . . are far from fixed” and “derive from a complex set of
judgments—projecting needs, studying prior endeavors[,] and assessing possible suppliers.” Id.

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at 392–93. In contrast, the deliberative process privilege does not protect estimates made where
the estimator followed a strict set of guidelines and made few subjective guesses. See id.
(differentiating the cost estimates used by the Navy to predict the expense of building new naval
bases with property appraisals because “[the appraisals] seem to involve fewer judgment calls
than estimates of what construction will cost”); see also Petroleum Info. Corp. v. U.S. Dep’t of
Interior, 976 F.2d 1429, 1438 (D.C. Cir. 1992) (holding that the deliberative process privilege
does not protect acreage estimates of federal land because “it does not appear to involve the
breadth of discretion, and the wide range of considerations, the many forecasts and ‘judgment
calls’ involved in making the cost projections in Quarles”). Here, while the withheld document
could contain estimates and assumptions that defendant made when projecting costs, the court
cannot conclude with reasonable certainty that the documents contain that kind of information.
So, the court concludes, it must review the document in camera to determine whether it is
properly subject to Exemption 5 within 14 days of the court entering this Order. See Hull, 656
F.3d at 1178 (instructing courts to order in camera review of any document if they “cannot
conclude with reasonable certainty that the agency properly exempted the document”).
The court also orders defendant to produce unclassified documents 18 (Bates No. 57)
(withholding a document with costs defendant considered when formulating estimates), 100
(Bates No. 153–56) (withholding slides comparing costs), and 141 (Bates No. 421–24)
(withholding a chart comparing costs) for in camera inspection within 14 days of the court
entering this order. Like document 129, the court cannot decide if these documents contain raw
data or estimates and assumptions.
Also, if defendant wishes, it can submit and file a supplemental affidavit to support its
decision to apply Exemption 5. Defendant must confine any supplementation it chooses to

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provide to the issues discussed in this Order. See Wisdom v. U.S. Tr. Program, 232 F. Supp. 3d
97, 130 (D.D.C. 2017) (denying an agency’s motion for summary judgment in part and ordering
the agency to “offer further detail to support its cited exemptions or turn over more material”).
Defendant must submit this supplemental affidavit within 14 days of the court entering this
Order. Once defendant submits its supplemental affidavit, plaintiff has 14 days to file a response
to the supplemental affidavit. The court will not allow a reply.
ii.

Unclassified Document 165 (Bates 572–76)

Defendant withheld document 165 because it contains a “discussion about answers to
questions regarding costs of military commissions.” Doc. 22-1 (Vaughn Index) at 32. The
deliberative process privilege protects this type of communication. Email discussions between
agency officials about how to answer a FOIA request are deliberative. See Competitive Enter.
Inst. v. EPA, 232 F. Supp. 3d 172, 187 (D.D.C. 2017) (holding that the deliberative process
privilege protected emails between agency officials because they reflected “ʻthe give-and-take’
the deliberative process privilege seeks to protect”). Here, the Vaughn index establishes that
document 165 involves “ʻthe give-and-take’ the deliberative process privilege seeks to protect”
because it captured a deliberation about how to answer questions. Id. Plaintiff has not produced
contradictory evidence or even evidence that defendant has used this justification in bad faith.
This differs from the information document 129 might contain because a discussion about what
costs to use essentially equates to drafts of factual material, which Exemption 5 protects. See
Nat’l Wildlife Fed’n, 861 F.2d at 1122 (holding that Exemption 5 protects drafts of factual
compilations because the public could “reconstruct the predecisional judgments of the
administrator” who ultimately releases the factual summary). The court thus finds that
defendant’s use of the deliberative process privilege for document 165 is proper.

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iii.

Unclassified Document 193 (Bates 703–09)

Document 193 contains “public affairs guidance and draft questions and answers about
closure plan.” Doc. 22-1 (Vaughn Index) at 36. It is entitled “Site Survey LA Docs
Attachments: DOD Site Suveys.docx, Congressional Notifications Regarding Site.” Id.
Plaintiff argues that Exemption 5 does not protect Congressional Notifications.
If the only information the court had about document 193 was its title, the court likely
would agree with plaintiff. But the description in the Vaughn Index and defendant’s affidavit
convince the court that defendant properly invoked Exemption 5. The public affairs guidance is
deliberative because it reflects agency discourse about what public statements the agency should
make. See Am. Civil Liberties Union v. U.S. Dep’t of Homeland Sec., 738 F. Supp. 2d 93, 112
(D.D.C. 2010) (holding that the deliberative process privilege protected a talking points memo
because the talking points were “ripe recommendations that are ready for adoption or rejection
by the Department”). And the deliberative process privilege protects the questions and answers
about the closure plan because they are drafts. See Integrity Comm., 501 F.3d at 1228 (citing
National Wildlife Federation, 861 F.2d at 1122, for the rule that the deliberative process
privilege protects drafts). Defendant thus invoked the deliberative process privilege properly for
document 193.
iv.

Classified Documents 77 & 78 (Bates 1362–69)

Plaintiff challenges three exemptions defendant invokes for withholding parts of
documents 77 and 78: Exemptions 5, 7(E), and 7(F). Plaintiff specifically argues that defendant
improperly invoked Exemption 5 because it gave no reason for asserting it. And 7(E) and 7(F)
don’t apply, plaintiff says, because defendant has justified their use improperly.

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Documents 77 and 78 consist of a series of charts. Doc. 22-1 (Vaughn Index) at 51–52.
All but two are entitled “GTMO Closure Major activities list with associated costs.” Id. The
other two are entitled “Summation w/ all comms data preserved.” Id. Defendant invoked
Exemptions 5, 7(E), and 7(F) together for all the charts, arguing that they contain “[l]aw
enforcement records slide[s] detailing costs of detention logistics.” Id.
The court first addresses plaintiff’s argument that defendant never justified its use of
Exemption 5. Plaintiff incorrectly claims that defendant never gave a reason it invoked
Exemption 5. While the Vaughn Index contains no explanation immediately following the words
“(b)(5)”—the statutory designation of Exemption 5—defendant provides its justification,
described above, after it invoked Exemptions 7(E) and 7(F). It is evident this explanation clearly
applies to Exemption 5 as well because defendant grouped these exemptions together.
Defendant simply saved space in the Vaughn Index by giving one explanation for all its
exemptions.
Turning to plaintiff’s arguments about Exemptions 7(E) and 7(F), the court agrees with
plaintiff. Law enforcement costs do not implicate the harms 7(E) and 7(F) are designed to
protect. Costs, without copious amounts of detail, cannot disclose law enforcement techniques,
procedures, or guidelines in a way that could allow someone to circumvent the law. See 5 U.S.C.
§ 552(b)(7)(E). Nor would the disclosure of costs put anyone’s life or physical safety in danger.
See id. § 552(b)(7)(F). Indeed, the court can find no case where a court protected information
about costs under Exemption 7(E) or 7(F). Defendant cited none. In contrast, though, the court
concludes that defendant properly redacted this information under Exemption 5. As discussed
above, Exemption 5 protects an agency’s cost estimation. Quarles, 893 F.2d at 393. And these
charts involve cost estimations because they list costs for closing GTMO—an event that hasn’t

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occurred yet. So, this information falls within Exemption 5’s protection and defendant properly
withheld it.
v.

Classified Document 101B (Bates 1463–65)

Document 101B is an information memo. Doc. 22-1 (Vaughn Index) at 54. Defendant
withheld portions of it because it contained a “discussion on closure plan for detention facility.”
Id. Because the memo is entitled “Information Memo,” plaintiff argues, Exemption 5 does not
apply. But defendant has produced additional evidence that supports its use of this exemption:
the description in the Vaughn Index.
The Vaughn Index entry for this document reveals that the document contains a
discussion of GTMO’s closure. And, as the Tenth Circuit has instructed, Exemption 5 aims, in
part, to promote “ʻopen and frank discussion among those who make [decisions] within the
government’” by withholding internal agency discussion from FOIA’s reach. Integrity Comm.,
501 F.3d at 1226 (quoting Klamath Water Users, 532 U.S. at 8–9); see also Competitive Enter.,
232 F. Supp. 3d at 187 (protecting agency emails that show “ʻthe give-and-take’ the deliberative
process privilege seeks to protect”). Revealing a discussion about the GTMO closure plan might
hamper frank internal discussion. The court thus concludes that Exemption 5 protects document
101B from disclosure.
vi.

Classified Document 104B (Bates 1496–98)

Document 104B is also an information memo, but this memo has a “discussion of three
options for transferring detainees.” Doc. 22-1 (Vaughn Index) at 54. Plaintiff—as it did when
attacking document 101B’s withholding—argues that Exemption 5 cannot protect information
memos. But, as explained in the preceding subsection, Exemption 5 protects memos that discuss
how an agency might proceed on a project. See Competitive Enter., 232 F. Supp. 3d at 187

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(holding that the deliberative process privilege protected emails where agency officials discussed
options for the best response to a FOIA request). And disclosing these options beforehand could
hamper frank and open discussion within an agency and risk disclosing proposed policies never
adopted. See Integrity Comm., 501 F.3d at 1226 (explaining that courts should uphold an
agency’s use of Exemption 5 if the agency can show that either a document’s disclosure could
hamper internal deliberation or a risk exists that the document will confuse the public by
releasing an option the agency never publicly announced). Defendant thus properly withheld
document 104B under the deliberative process privilege.
vii.

Classified Document 234 (Bates 2363–64)

Document 234 redacts the name of an agency or person—it’s unclear from the document
which it is—who was involved in planning a survey visit to a potential GTMO replacement site.
Defendant claims the identity of the persons or agencies involved with a decision can show an
agency’s deliberation process. But defendant never elaborates on how disclosing this name
could reveal defendant’s deliberation process. The court agrees that the identity of those
involved might reveal an agency’s deliberation process, but it cannot conclude on the current
record that disclosing this name will reveal its deliberative process. Indeed, courts sometime
require federal agencies to disclose the identity of all participants in a discussion. See Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (explaining that the
identity of a memo’s recipient and author can be important to decide the propriety of Exemption
5’s use because a subordinate’s memo to a supervisor is more indicative of a predecisional,
deliberative document while a memo from a supervisor is more indicative of a postdecisional
explanation about a decision).

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Here, the court currently lacks sufficient information to decide if the identity of the
unknown actor will reveal the deliberative process. So, it cannot rule that no genuine issue of
material fact exists whether defendant properly invoked Exemption 5 for document 234. The
court thus orders defendant to produce document 234 for in camera review. With its in camera
production, defendant may also file a supplemental affidavit. Defendant must confine any
supplementation it chooses to provide to the issues discussed in this Order. See Wisdom, 232 F.
Supp. 3d at 130 (ordering an agency to “offer further detail to support its cited exemptions or
turn over more material” when the court denied in part the agency’s motion for summary
judgment). Once defendant files its supplemental affidavit, plaintiff will have 14 days to file a
response. The court will not allow a reply. The court will defer a final ruling on this document
until after its in camera review of the document in a supplemental order on the Motion for
Summary Judgment.
viii.

Classified Document 241 (Bates 2377–79)

Finally, plaintiff argues that defendant improperly supported its use of Exemption 5 to
withhold parts of document 241. Document 241 is a scanned paper document entitled “GTMO
Closure Major activities list with associated costs.” Doc. 22-1 (Vaughn Index) at 74. Like
documents 77 and 78, defendant invoked Exemptions 5, 7(E), and 7(F) together and gives a
single explanation why they apply. Id. The justification, defendant contends, is that document
241 has “[l]aw enforcement records slide[s] detailing costs of personnel and guard force.” Id.
Much like documents 77 and 78, the court concludes that this explanation, which provides
defendant’s rationale for using all the invoked exemptions, is sufficient to justify defendant’s use
of Exemption 5. Because document 241 details the costs associated with closing GTMO, the

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withheld information is an estimated cost that falls within the deliberative process privilege. See
Quarles, 893 F.2d at 392–93.
C.

GTMO Transfer Expenditures

With its last argument, plaintiff contends that the court should deny defendant’s motion
because defendant omitted information about defendant’s travel expenses to survey possible
relocation sites for GTMO detainees, which plaintiff requested. In its response to this request,
defendant provided a one-page chart that lists three locations that defendant surveyed: Fort
Leavenworth, Kansas; Charleston, South Carolina; and Florence, Colorado. Doc. 27-1 at 1.
Defendant lists air fare, per diem, and incidentals for each trip. Id.
Plaintiff claims that defendant has withheld cost data about other locations that it
surveyed. Plaintiff highlights Mr. Herrington’s Declaration, where he explains that defendant
“provided a one-page interim response to [plaintiff’s request for an expenditure report on travel
to possible relocation sites], consisting of a document summarizing [defendant’s] costs incurred
from certain site surveys . . . .” Herrington Decl. ¶ 11 (emphasis added). And, plaintiff argues, a
series of slides defendant produced in this request create a suspicion that defendant considered
other sites.
Defendant has clarified its affidavit and the slides. Its clarification explains that, in the
end, it recommended 13 sites for possible relocation. Doc. 30-1 (Herrington Supp. Decl.) ¶ 4.
But it only surveyed sites at the three locations listed in the chart. Id. So, what Mr. Herrington
meant to say in the original declaration was that though defendant considered other sites, it only
visited the three locations listed in the chart. With this clarification, the court concludes that
defendant has fulfilled its obligation to report GTMO relocation survey expenses. That
defendant considered other sites does not contradict defendant’s assertion that it only traveled to

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three locations. See Hull, 656 F.3d at 1177–78 (holding that summary judgment is proper in a
FOIA case when the record does not contradict the agency’s affidavits and no evidence exists
that the agency acted in bad faith). Defendant thus fulfilled its FOIA obligations to respond to
plaintiff’s request for information about the GTMO relocation survey expenses.
IV.

Conclusion
For reasons explained above, the court grants defendant’s Motion for Summary Judgment

(Doc. 21) in part and denies it in part. The court concludes that defendant fulfilled its duties
under FOIA except for unclassified document 18 (Bates 57), 100 (Bates 153–56), 129 (Bates
333), 141 (Bates 421–24), and classified document 234 (Bates 2363–64). The court lacks
sufficient information to decide if defendant properly exempted the information those documents
contain. So, the court orders defendant to produce unclassified documents 18, 100, 129, 141 and
classified document 234 for in camera review within 14 days of this Order’s entry. Defendant, if
it chooses, also must file a supplemental affidavit within 14 days of this Order’s entry.
Defendant must confine its supplementation to the issues the court raised in this Order. Plaintiff
will have 14 days to respond to defendant’s supplemental affidavit. The court will not allow a
reply. Once the court has the unredacted documents, defendant’s supplemental affidavit, and
plaintiff’s response, the court will issue a supplemental order on the Motion for Summary
Judgment.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion for
Summary Judgment (Doc. 21) is granted in part and denied in part.
IT IS FURTHER ORDERED THAT defendant must produce to the court unclassified
document 18 (Bates 57), 100 (Bates 153–56), 129 (Bates 333), 141 (Bates 421–24), and

29

classified document 234 (Bates 2363–64) for in camera review within 14 days of the court
entering this Order. The court will rule on the applicability of the exemptions at a later date.
IT IS FURTHER ORDERED THAT defendant file a supplemental affidavit
responding to the issues raised in this Order within 14 days of this Order’s entry. Plaintiff must
respond to defendant’s supplemental affidavit within 14 days of defendant filing it. The court
will not allow a reply.
IT IS SO ORDERED.
Dated this 21st day of March, 2018, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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