American Civil Liberties Union et al v. Department of Defense et al

Filing 582

ORDER AND OPINION GRANTING SUMMARY JUDGMENT TO PLAINTIFF re: 568 CROSS MOTION for Summary Judgment filed by Veterans for Peace, Veterans for Common Sense, Physicians for Human Rights, American Civil Liberties Union, Center for Constitutional Rights, Inc., 564 EIGHTH MOTION for Summary Judgment filed by Department of Defense, Department of the Army. For the foregoing reasons, plaintiffs' motion is granted and the Government's motion is denied. (Signed by Judge Alvin K. Hellerstein on 1/18/2017) (cla)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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AMERICAN CIVIL LIBERTIES UNION, et al.,

ORDER AND OPINION
GRANTING SUMMARY
JUDGMENT TO PLAINTIFF

Plaintiffs,
04 Civ. 4151 (AKH)
-againstDEPARTMENT OF DEFENSE, et al.,
Defendants.

USDCSDNY
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ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiffs seek release under the Freedom of Information Act of a cache of
photographs taken at the Abu Ghraib prison and other military detention facilities in Iraq and
Afghanistan by U.S. Army personnel between 2003 and 2005, which depict individuals
apprehended and detained abroad after September 11, 2001. The Government resists production.
Both plaintiffs and the Government move for summary judgment, the eighth such motion in this
case.
This Court has previously ordered these photographs, or similar photographs, to
be produced. Similar photographs have been published widely, without apparent.repercussions.
Nevertheless, the Government resists production and certifies, through a certification issued by
Secretary of Defense Ashton Carter dated November 7, 2015, that production of these
photographs would endanger the lives of Americans deployed outside the United States.
In 2005, when over 140,000 American troops in Iraq were fully deployed and
suffering casualties daily, General Richard B. Myers, Chairman of the Joint Chiefs of Staff,
urged this Court not to order the release of the Abu Ghraib photographs. General Myers stated in

his declaration that release of the photographs would endanger Americans in Iraq and
Afghanistan by "inciting violence and riots against American troops and coalition forces."
Myers Deel., Dkt. No. 115. Nevertheless, I ordered that the important values of both FOIA and
judicial review of the executive's duty to carry out the will of Congress required disclosure of the
photographs. Am. Civil Liberties Union v. Dep't of Def, 389 F. Supp. 2d 547 (S.D.N.Y. 2005).
The Second Circuit affirmed. Am. Civil Liberties Union v. Dep't of Def, 543 F.3d 59 (2d Cir.
2008).
Now, eleven years later, facing a different enemy in Iraq, with far fewer troops
deployed, serving in an advisory rather than combat capacity, and with many fewer civilians
deployed, the position of Secretary Carter, the current Secretary of Defense, remains unchanged:
publication of additional photographs, he has certified, will endanger Americans deployed
outside the United States.
The issues that I must decide are whether, as required by the Protected National
Security Documents Act ("PNSDA"), 1 Secretary Carter's certification was based on an
individualized review of the photographs at issue, and whether the Government has made clear
to the Court the criteria and factual bases upon which the Secretary concluded that disclosure of
each such photograph would endanger the safety of Americans deployed outside the United
States. Resolutions of those questions are necessary to determine whether the Government has
satisfied its burden to show that the photographs are exempt from production under the Freedom
oflnformation Act ("FOIA"), 5 U.S.C. § 552. For the reasons discussed in this opinion, I hold

1

Section 565 of the Department of Homeland Security Appropriations Act, 2010, Pub. L. 11183, Title V, § 565, Oct. 28, 2009, 123 Stat. 2184-85.
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that Secretary Carter's certification is not a sufficient basis to withhold production of the
photographs. Summary judgment for plaintiffs is granted.
Background
This litigation has its origin in FOIA requests filed by plaintiffs thirteen years ago,
on October 7, 2003, seeking records related to the treatment of individuals apprehended abroad
after September 11, 2001, and held by the United States at military bases or detention facilities
outside the United States. See Compl., Dkt. No. 1 (June 2, 2004). Plaintiffs' requests have
resulted in substantial waves of production by the Department of Defense ("DoD''), the Central
Intelligence Agency ("CIA"), and other government agencies. As reflected by scores of orders, I
have conducted public and in camera proceedings to regulate the Government's obligation to
produce under FOIA. I have granted requests and overseen substantial productions, but I have
also upheld exceptions to FOIA and overseen redactions to guard against breaches of national
security. See generally, Am. Civil Liberties Union v. Dep't of Def, 339 F. Supp. 2d 501
(S.D.N.Y. 2004); Am. Civil Liberties Union v. Dep't of Def, 389 F. Supp. 2d 547 (S.D.N.Y.
2005) ("ACLU I"); Am. Civil Liberties Union v. Dep't of Def, No. 04 CIV. 4151(AKH),2006
WL 1638025 (S.D.N.Y. June 9, 2006); Am. Civil Liberties Union v. Dep't of Def, No. 04 CIV.
4151 (AKH), 2006 WL 1722574 (S.D.N.Y. June 21, 2006); Am. Civil Liberties Union v. Dep't of

Def, 543 F.3d 59 (2d Cir. 2008) ("ACLU II"), vacated, 558 U.S. 1042 (2009); Am. Civil
Liberties Union v. Dep't of Def, 40 F. Supp. 3d 377 (S.D.N.Y. 2014) ("ACLU III"), vacated and
remanded (2d Cir. Jan. 6, 2016).
One category of documents has been the subject of repeated motion practice:
photographs taken by U.S. personnel of enemy combatants in U.S. custody at the Abu Ghraib
prison in Iraq. The Government's first motion for summary judgment in 2005 asked to exempt

3

photographs taken by Sergeant Joseph Darby at Abu Ghraib ("Darby photographs") on the
ground that production would compromise the privacy of the individuals depicted in the
photographs. See 5 U.S.C. § 552(b)(6), (b)(7)(C). After I conducted an in camera review of all
the Darby photographs and ordered redactions of all personal characteristics, the Government
changed its position and instead invoked FOIA Exemption 7(F), which exempts from production
records compiled for law enforcement purposes to the extent that disclosure "could reasonably
be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b )(7)(F).
Relying on declarations of the commanding general of American forces in Iraq and the Chief of
Staff of all U.S. armed forces, the Government argued that publication of the Darby photographs
would incite violence against American troops and Iraqi and Afghan personnel and civilians, and
that redactions would not avert the danger. The Government further argued that terrorists would
use the re-publication of the photographs, under order of a U.S. court, as a pretext for further acts
of terrorism.
I denied the Government's motion, held that none of the FOIA exemptions
applied, and ordered the Darby photographs to be produced. ACLU I, 389 F. Supp. 2d at 579. I
held that because of the redactions, the Government's concern about unwarranted invasions of
privacy lacked merit. Id. at 571. As to Exemption 7(F), I allowed the Government's late
argument, and denied its applicability on the merits. I held that a general threat to an unspecified
group of individuals was not enough to justify withholding under Exemption 7(F), that FOIA
favored production, and that this policy underlying FOIA outweighed a generalized concern that
individuals might be exposed to increased risk of harm. "The terrorists in Iraq and Afghanistan,"
I ruled, "do not need pretexts for their barbarism; they have proven to be aggressive and
pernicious in their choice of targets and tactics. They have driven exploding trucks into groups

4

of children at play and men seeking work; they have attacked doctors, lawyers, teachers, judges
and legislators as easily as soldiers. Their pretexts for carrying out violence are patent
hypocrisies, clearly recognized as such except by those who would blur the clarity of their own
vision." Id. at 576. Accordingly, I ordered the Government to produce the Darby photographs.
The Government appealed. After a third party published the Darby photographs,
the Government withdrew its appeal as to those photographs. See Order, Dkt. No. 184, at 2
(April I 0, 2006). The Government continued its appeal, however, against 29 additional
photographs and one further batch that the Government identified after the record closed, and
which I ordered should be governed by my underlying order. Amer. Civil Liberties Union v.

Dep't. of Def, 04 Civ. 4151(AKH),2006 WL 1638025 (S.D.N.Y. June 9, 2006); 2006 WL
1722574 (S.D.N.Y. June 21, 2006).
The Second Circuit affirmed. ACLU II, 543 F.3d 59 (2d Cir. 2008). The Second
Circuit ruled that Exemption 7(F) for law enforcement records that could reasonably be expected
to endanger "any individual" did not apply to the photographs because the exemption, "by
conditioning its application on a reasonable expectation of danger to an individual, excludes
from consideration risks that are speculative with respect to any individual," such as the risk that
release of the photographs might endanger "a group so vast as to encompass all United States
troops, coalition forces, and civilians in Iraq and Afghanistan." Id. at 71. The Second Circuit
also affirmed my rulings on the privacy exemptions. It reviewed the in camera proceedings, and
was satisfied that "all identifying characteristics of the persons in the photographs" had been
redacted. Id. at 85.
On April 23, 2009, the Government informed this Court that in light of the
Second Circuit's decision, in addition to the photographs previously identified, it was
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"processing for release a substantial number of other images contained in Army CID reports"
that were also responsive to plaintiffs' initial FOIA request. See Barcelo Deel. Ex. B, Dkt. No.
458 (Apr. 1, 2011). The Government represented that all photographs would be released by May
28, 2009.

However, following a public statement by President Obama on May 13, 2009,
made in response to the Prime Minister oflraq's request that the photographs not be produced,
the Solicitor General filed a petition for a writ of certiorari seeking review of the Second
Circuit's opinion. While the petition for certiorari was pending, in response to continuing
pressure on the President by the Prime Minister of Iraq, Congress passed the Protected National
Security Documents Act. Pub. L. No. 111-83, 123 Stat. 2142. The PNSDA provided a temporal
and qualified exception to the Government's obligation to produce the photographs under FOIA:
Notwithstanding any other provision of the law to the contrary, no
protected document, as defined in subsection (c), shall be subject to
disclosure under section 552 of title 5, United States Code, or any other
proceeding under that section. PNSDA § 565(b).
Under the PNSDA, a "protected document" must:
(a) be a "photograph" that "relates to the treatment of individuals engaged,
captured, or detained after September 11, 2001, by the Armed Forces of the
United States in operations outside of the United States," id. §
565(c )( 1)(B)(ii);
(b) have been created "on September 11, 2001 through January 22, 2009,"
id. § 565(c)(l)(B)(i); and
(c) be a record "for which the Secretary of Defense has issued a
certification, as described in subsection (d), stating that disclosure of that
record would endanger citizens of the United States, members of the United
States Armed Forces, or employees of the United States Government
deployed outside the United States." Id. § 565(c)(l)(A).
Subsection (d), in turn, provides:

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The Secretary of Defense shall issue a certification if the Secretary of
Defense determines that disclosure of that photograph would endanger
citizens of the United States, members of the United States Armed Forces,
or employees of the United States Government deployed outside the United
States. Id. § 565(d)(l).
The statute further provides that any such certification "shall expire 3 years after the date on
which the certification" - or a renewed certification if the original certification has expired - is
issued by the Secretary of Defense. Id. § 565(d)(2). Finally, the PNSDA provides for direct
Congressional oversight of any certification issued under the PNSDA, by requiring the Secretary
to provide "timely notice" to Congress when he issues a certification or a renewal certification
pursuant to the PNSDA. Id. § 565(d)(4).
In November 2009, shortly after the passage of the PNSDA, then-Secretary of
Defense Robert Gates signed a certification exempting the photographs then at issue in this
litigation. 2 On the basis of the Gates certification, the Supreme Court granted the Government's
petition for certiorari, vacated the Second Circuit's judgment upholding this Court's September
2005 disclosure order, and remanded the action for further consideration in light of the PNSDA
and the Gates certification. See Dep 't of Def v. Am. Civil Liberties Union, 558 U.S. 1042
(2009). The Second Circuit, in turn, remanded the case to me.
The parties again cross-moved for partial summary judgment based on the
adequacy of Secretary's certification. On July 21, 2011, after oral argument on the motions, I
denied plaintiffs' motion and granted the Government's motion, and upheld Secretary Gates'
certification. See Dkt. No. 469. Without specifically ruling what standard of review should
apply, I found that it was clear from the record that "Secretary Gates had a rational basis for his

2

It is unclear to the Court whether the photographs certified by Secretary Gates in 2009 are the
exact same set of photographs that Secretary Carter certified in 2015.

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certifications and that I could not second guess-it." Hr'g Tr., Dkt. No. 474, at 36:6-8 (July 20,
2011 ). I stated that, "by reason of my familiarity with the case," I had effectively conducted a de
nova review of Secretary Gates's decision, had found that there was a rational basis for it, and

would not "opine" as to whether "there is or is not a danger in the battlefield because of the
disclosure of pictures of this sort." Id. at 23:21-24:2.
I ruled that the legislative history of the statute, especially statements by Senators
Lieberman and Graham who sponsored the bill, made clear that the PNSDA was passed in order
"to provide authorizing legislation to support the President's determination that these images
should not be disclosed." Id. at 37:16-19. President Obama had made this determination in
response to a request from the Prime Minister of Iraq that the United States government not
publish the photographs for fear that their publication would fuel insurrection and make it
impossible to have a functioning government. Id. at 34:7-23. In light of that history, I upheld
Secretary Gates' certification.
Under the PNSDA, the Gates certification was set to expire on November 13,
2012. Several days before expiration, Secretary of Defense Leon E. Panetta issued a
certification, virtually identical to the 2009 Gates certification. The parties once again moved for
partial summary judgment upholding and impeaching the 2012 Panetta certification. I granted
plaintiffs' motion in part. I first resolved whether the PNSDA qualified as an exemption statute
under FOIA Exemption 3, which protects from disclosure documents that are "specifically
exempted from disclosure by statute," provided that certain conditions are met. I held that " [t ]he
PNSDA is an exemption (3) statute, since it provides criteria for the withholding of certain
documents from the public under FOIA[.]" ACLU Ill, 40 F. Supp. 3d at 382. Accordingly,
"[t]he agency asserting the exemption [from FOIA] bears the burden of proof, and all doubts as

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to the applicability of the exemption must be resolved in favor of disclosure." Id. at 383 (internal
quotation marks omitted). I then rejected the Government's argument that the Panetta
certification, standing alone, satisfied the Government's burden to show why the photographs at
issue could be withheld.
The Government's review of the photographs leading up to the 2012 Panetta
certification began approximately three months prior to the scheduled expiration of the 2009
certification. One attorney, Megan Weis, a deputy general counsel in the Army Office of the
General Counsel, carried out the review. She began by gathering and reviewing all the
photographs subject to the 2009 certification. She then placed the photographs into three
categories and "created a representative sample of five to ten photographs in each category to
provide to senior military commanders for their review and judgment of the risk from public
disclosure of each category." Weis Deel., Dkt. No. 530, if 8 (Dec. 19, 2014). Factors for
creating the three categories included the "extent of any injury suffered by detainee, whether
U.S. service members were depicted, and the location of detainee in the photograph." Id.
Weis then sent the samples of five to ten photographs from each category to three
high level generals, who each reviewed the samples and recommended recertifying all the
photographs. Id.

ifif 9-12. Weis then provided DoD's General Counsel with the representative

sample, the Generals' recommendations, a draft renewal of the certification, and a CD containing
all of the photographs. Id. ,-i 13. The DoD General Counsel met with Secretary of Defense
Panetta, and discussed whether to renew the certification. Panetta then signed the draft
certification prepared by Weis. Id
I held that the Government had not satisfied its burden. The Panetta certification
was "expressed in conclusory fashion, and relate[d] to all the photographs at issue-likely

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hundreds or thousands." It "track[ed] the language of the statute, without providing any specific
explanation for why the Secretary certified the photographs, except to state that based on the
recommendations of certain senior military officials, the Secretary determined that the
photographs met the criteria of the statute." ACLU Ill, 40 F. Supp. 3d at 383. Noting that
Congress enacted the PNSDA against the "background norm of broad disclosure of Government
records," and that Congress was aware that FOIA "provided for de nova judicial review of
agency invocations of FOIA exceptions," I held that "the PNSDA should be read as providing
for judicial review of the basis for the Secretary of Defense's certification." Id at 387-88.
Finally, after noting that the "condition provided by the PNSDA for withholding disclosure is
that each individual photograph, if disclosed, alone or with others" would endanger Americans
abroad, I held that "the government, to invoke the PNSDA, must prove that the Secretary of
Defense considered each photograph individually." Id at 389-90. I then gave the Government
the opportunity to supplement the record by submitting documents and affidavits explaining the
factual basis for withholding the documents under the Panetta certification.
In response, the Government supplemented the record with additional declarations
and renewed its motion for summary judgment. By order dated February 18, 2015, I found that
the Government had not met its burden, and provided criteria that it could use if it wished again
to supplement the record. Regarding the Government's burden, I stated that the Government
"must make the Secretary's factual basis for concluding that disclosure would endanger U.S.
citizens, Armed Forces, or government employees clear to the Court," and "[a]t minimum, the
submission must describe the categories of objectionable content contained in the photographs,
identify how many photographs fit into each category, and specify the type of harm that would
result from disclosing such content." Order Clarifying Instructions for Defendants' Submissions

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("February I8, 20I5 Order"), Dkt. No. 543, at 2 (Feb. I8, 20I5). Without such information,
'judicial review is impossible, and judicial review is fundamental to FOIA and the APA." Id at
3. In the event the Government feared its submission, by itself, would endanger Americans
deployed abroad, I encouraged the Government to present any supplementary information in
camera. Id.
Regarding individualized review, I held:
[T]he Secretary is required, at a minimum, to explain the terms of his
delegation so it is the Secretary, and not any subordinate, who takes
responsibility for his knowing and good faith Certification that release of a
particular photograph would result in the harm envisioned. In order to make
such a Certification, the Secretary must demonstrate knowledge of the
contents of the individual photographs rather than mere knowledge of his
commanders' conclusions. Id. at 2.
The Government declined to submit additional declarations. I entered judgment for
plaintiffs but stayed the order for 60 days to allow the Government to appeal. Order Granting
Judgment for Plaintiffs, Dkt. No. 549 (Mar. 20, 2015). The Government filed a timely appeal.
Following briefing of the appeal, the 2012 Panetta certification expired and, on
November 7, 2015, Secretary of Defense Ashton Carter issued a new certification. On motion by
the Government, the Second Circuit vacated the prior judgment and remanded the case to me,
noting that the Carter certification and the process that led to it might have "the potential to
obviate many of the issues cited by the district court in granting relief." Corrected Mandate, Dkt.
No. 558 (Jan. 6, 20I6).
The Carter certification - the current, extant certification - is the subject of this
opinion and order. The process leading to the Carter certification began six months before the
Panetta certification expired. According to a declaration submitted by Liam M. Apostol, an
associate deputy general counsel in the DoD's Office of General Counsel, an unnamed attorney

II

from that office collected all the photographs and reviewed each. Apostol Deel., Dkt. No. 566, ii

5 (Feb. 26, 2016). The Government does not disclose the number of photographs. The attorney
sorted the photographs into categories according to what they depicted, and then sorted them
again based on the perceived likelihood of harm from publication. The attorney performed this
sorting "on behalf of the Secretary." Id. According to the Government, "[t]he purpose of this
sorting was to ensure that a true representative sample that contained the full spectrum of what
the full group of photographs depicted would be created for the Secretary's review." Id.
However, the Government has not disclosed the definitions or parameters of the categories, the
criteria used to sort th~ photographs into those categories, or the criteria used, if any, for
determining the likelihood of harm upon production.
This first review was then followed by a second-level review by commissioned
officers, also unnamed, from the office of the Joint Staff, Deputy Director for Special
Operations, Counterterrorism and Detainee Operations ("Joint Staff 137''). This second review
was also conducted "on behalf of the Secretary."

Id.~

6. The second review, like the first, was

of each photograph, and the photographs were again sorted based on the likelihood of harm from
production. The purpose of the second review was to "assess whether the initial sorting of the
photographs would ensure a true representative sample." Id. However, no reason is given why
the first review was deficient or needed to be improved, and the Government has not explained
when, if at all, the second-level reviewers were made privy to the first-level reviewer's
determinations. Nor has the Government disclosed the criteria by which the second-level
reviewers conducted their review and sort, or whether the criteria they used differed in any
respect from those used in the first-level review.

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A third-level review was then conducted by four new attorneys, three from the
Department of Defense's Office of General Counsel and one uniformed attorney from the
Department of the Army. Again "on behalf of the Secretary," the four attorneys reviewed the
combined work product of the previous two reviews to assess the likelihood of harm from
publication. The Government has not disclosed the criteria used by the four attorneys. They
reviewed the "combined work product" of the first two reviews, but it is unclear whether their
review was de novo or in any way built on or deferred to the first two reviews. Id.

~

7. After the

third review, the "attorneys coordinated with the Joint Staff J37 officers and uniformed attorneys
from the Office of the Legal Counsel to the Chairman of the Joint Chiefs of Staff to reach a final
consensus." Id. It remains unclear what coordination occurred, who participated, or how a final
consensus was reached.
This process led to a recommendation to Secretary Carter: 198 photographs
should be released, and the rest, an unspecified number, should be kept secret. A "representative
sample" of the remaining photographs was then created. The Government does not disclose the
size of the sample, whether the sample was broken down by category, the criteria used to create
the sample, or why the third-level reviewers concluded that the photographs should not be
released. The sample was then sent to four high ranking generals: General Lloyd J. Austin,
Commander of U.S. Central Command; General David M. Rodriguez, Commander of U.S.
Africa Command; Major General Jeffrey S. Buchanan, Commander of U.S. Forces- Afghanistan;
and General Joseph F. Dunford, Chairman of the Joint Chiefs of Staff. Each general, after
reviewing the sample, recommended that the entire set be certified as likely, if published, to
endanger Americans deployed outside the United States. Id.

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10-18.

Finally, the generals' recommendations, the 198 photographs recommended for
release, and the representative sample of the remaining photographs were given to Secretary
Carter. Id.~ 19. On November 7, 2015, Secretary of Defense Ashton Carter, acting according to
the recommendations and pursuant to the PNSDA, certified the entire set of photographs, other
than the 198, as properly withheld from publication. Id. On February 5, 2016, the Government
released the 198 photographs. Id. The Apostol Declaration does not disclose what kind of
review Secretary Carter made, whether he examined photographs beyond the sample, whether he
looked at any of the 198 photographs ultimately released, or whether he applied any specific
criteria in conducting his review other than accepting the generals' recommendation.
The Carter certification states that as to each photograph, public disclosure would
cause harm to Americans deployed abroad based "[u]pon the recommendations of the Chairman
of the Joint Chiefs of Staff, the Commander of the U.S. Central Command, the Commander of
U.S. Africa Command, and the Commander, U.S. forces -Afghanistan and after a review of
each photograph by my staff on my behalfT.]" Apostol Deel. Ex. 1 (Nov. 7, 2015). The
certification provides no other basis for withholding the photographs at issue.

The Pending Cross-Motions for Summary Judgment
The Government offers three arguments in support of its motion. First, it
maintains its position, asserted in prior briefing, that because the photographs are "protected
documents" as defined under the PNSDA, the Court's role is solely limited to determining
"whether the Secretary issued a certification and the documents otherwise satisfy the PNSDA."
Second, it argues that even if broader judicial review of the certification is permitted, the Court
must apply the deferential "arbitrary and capricious" standard of the Administrative Procedure
Act. The Government contends that it has easily satisfied this standard because the Secretary's

14

process for issuing the certification was reasonable and because it complied with this Court's
prior ruling that the Secretary of Defense consider "each photograph individually, not
collectively." ACLU Ill, 40 F. Supp. 3d at 389. Third, the Government continues to argue a
proposition that I rejected and which the Second Circuit affirmed, see ACLU I, 389 F. Supp. 2d
at 574-78; ACLU II, 543 F.3d at 66-83, namely, that the photographs are exempt under FOIA
Exemption 7(F), which exempts materials "compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or information ... could
reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. §
552(b )(7)(F).
Plaintiffs argue that the Government failed to comply with this Court's prior
orders in two key respects. First, plaintiffs argue that Secretary Carter failed to make an
individualized determination as to each photograph because he merely relied on the
recommendation of the generals, who themselves only reviewed a sample of the photographs.
Second, plaintiffs argue that there is no support in the record for the Secretary's assertion that
release of the photographs would endanger Americans deployed outside the United States. The
record, plaintiffs argue, does not identify the categories into which photographs were sorted, the
number of images in each category, the total number of photographs examined, any description
of the subject matter depicted in the photographs, or the criteria that were used to determine that
release of the photographs would endanger Americans deployed outside the United States.

Standard of Review
1. The PNSDA is an Exemption Statute within the Meaning of FOIA

Exemption 3
As a threshold matter, the PNSDA is an exemption statute within the meaning of
FOIA Exemption 3. See ACLU 111, 40 F. Supp. 3d at 382. That exemption permits the

15

Government to withhold documents from disclosure that are "specifically exempted from
disclosure by statute," provided that statute either "requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue" or "establishes particular criteria
for withholding or refers to types of matters to be withheld." 5 U.S.C. § 552(b)(3). 3 Here, the
PNSDA "establishes particular criteria for withholding" because a "protected document" under
the PNSDA must be (a) a photograph; (b) that was taken within a particular time period and
"relates to the treatment of individuals engaged, captured, or detained after September 11, 2011,
by the Armed Forces of the United States in operations outside of the United States"; and (c) was
the subject of a certification issued by the Secretary of Defense stating that "disclosure of that
record would endanger citizens of the United States, members of the United States Armed
Forces, or employees of the United States Government deployed outside the United States."
PNSDA § 565(c)(l).
Nevertheless, the Government argues that the PNSDA should operate
independently of FOIA, with a judicial role limited to asking only if the Carter certificate is
authentic. Under the Government's proposed approach, the Court would be precluded from
considering FOIA at all, and could not review the Government's invocation of a statutory
exemption.
There is nothing in the PNSDA that supports the Government's argument.
Congress may not supersede FOIA through subsequently passed legislation unless it does so

3

Exemption 3 also states that if the statute was "enacted after the date of enactment of the OPEN
FOIA Act of 2009," then it must "specifically cite[]" to Exemption 3. The OPEN FOIA Act of
2009 amended FOIA Exemption 3 to include this very requirement: that any statute exempting
documents from disclosure under Exemption 3 specifically cite to Exemption 3, but only if that
statute was enacted after Exemption 3 was amended to include this requirement. This provision
of Exemption 3 does not apply here because the PNSDA was enacted on the same date as the
OPEN FOIA Act of2009, not after it. See H.R. 2892, 11 lth Cong. (2009).
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expressly. As the Supreme Court has held, "FOIA is a structural statute, designed to apply
across-the-board to many substantive programs ... and it is subject to the provision, governing
all of the Administrative Procedure Act of which it is a part, that a 'subsequent statute may not
be held to supersede or modify this subchapter ... except to the extent that it does so expressly.'"

Church ofScientology of California v. IR.S., 792 F.2d 146, 149 (D.C. Cir. 1986) (quoting 5
U.S.C. § 559). More simply, FOIA's provisions cannot be "sub silentio repealed" by subsequent
statutes. Id.
The PNSDA does not repeal any provision of FOIA. Rather, through its use of
the phrase "notwithstanding any other provision of the law to the contrary," Congress stylized
the PNSDA as creating an exception to FOIA for certain materials. Courts have identified other
statutes containing similar "notwithstanding" clauses as FOIA Exemption 3 statutes. See, e.g.,

Newport Aeronautical Sales v. Dep't ofAir Force, 684 F.3d 160, 165 (D.C. Cir. 2012) (holding
that statute beginning with the phrase "notwithstanding any other provision of law" "readily
qualifies as an Exemption 3 statute."); O'Keefe v. US. Dep't of Def, 463 F. Supp. 2d 317, 325
(E.D.N.Y. 2006) (same).
Additionally, courts "generally presume that Congress is knowledgeable about
existing law pertinent to legislation it enacts." Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
184-85 (1988). This is particularly so with FOIA. When it passed the PNSDA, "Congress was
aware that [the Supreme] Court had construed FOIA as creating a background norm of 'broad
disclosure of Government records."' ACLU III, 40 F. Supp. 3d at 387 (quoting CIA. v. Sims,
471 U.S. 159, 166 (1985)). The PNSDA's legislative history indicates that Congress had no
intent to "change FOIA, in its basic construct." 155 Cong. Rec. S5650, S5672 (statement of Sen.
Graham). That construct provides for de novo judicial review of an agency's invocation of a

17

FOIA exemption. 5 U.S.C. § 552(a)(4)(B). In fact, the PNSDA itselfrefers to "proceedings"
brought under FOIA - such as this one - but does nothing to disturb FOIA's requirement that
courts apply de novo review in such proceedings. PNDSA § 565(b).
More broadly, there is also a "strong presumption that Congress intends judicial
review." Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986). There is
nothing in the legislative record to suggest that when passing the PNDSA, Congress intended to
depart from both "the specific policies underlying FOIA and the general presumption of judicial
review." ACLU Ill, 40 F. Supp. 3d at 388. Judicial review under FOIA is the norm, even when
reviewing certifications made under the PNSDA. I therefore reject the Government's argument
that the PNSDA precludes judicial review.

2. A District Court Must Review an Agency's Invocation of a FOIA Exemption
De Novo and the Government Must Provide the Court with Sufficient
Information to Conduct that Review
"FOIA clearly contemplates judicial review of agency decisions to withhold
information." Halpern v. F.B.I., 181F.3d279, 287 (2d Cir. 1999). FOIA provides that upon an
agency's invocation of a FOIA exemption, the "court shall determine the matter de novo" and
that "the burden is on the agency to sustain its action" of withholding production. 5 U.S.C. §
552(a)(4)(B). As the Second Circuit has explained, FOIA establishes a "general, firm
philosophy of full agency disclosure." A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138, 141 (2d
Cir. 1994). It "provided de novo review by federal courts so that citizens and the press could
obtain agency information wrongfully withheld. De novo review was deemed essential to
prevent courts reviewing agency action from issuing a meaningless judicial imprimatur on
agency discretion." Id.
This "essential" de novo review should strike "a proper balance between
plaintiffs' right to receive information on government activity in a timely manner and the
18

government's contention that national security concerns prevent timely disclosure or
identification." Am. Civil Liberties Union v. Dep't of Def, 339 F. Supp. 2d 501, 504 (S.D.N.Y.
2004). Navigating this fundamental tension between two competing, legitimate interests is one
of the judiciary's most important functions with respect to FOIA, and courts have grappled with
it for decades.
When the documents at issue pertain to national security, and in particular when
the Government asserts that release of the documents may jeopardize national security, the Court
must give a certain degree of deference to the executive branch, which is tasked with protecting
our national security. See, e.g., ACLU I, 389 F. Supp. 2d at 564 ("Clearly, the need for such
deference is particularly acute in the area of national security."); Am. Civil Liberties Union v.
Dep't of Def, 723 F. Supp. 2d 621, 627 (S.D.N.Y. 2010) (noting that judicial review of a CIA
Director's affirmation is "limited and deferential."). Indeed, both the Supreme Court and the
Second Circuit have made clear that "it is bad law and bad policy to second-guess the predictive
judgments made by the government's intelligence agencies regarding whether disclosure of
[information] would pose a threat to national security." Am. Civil Liberties Union v. Dep't of
Justice, 681F.3d61, 70-71 (2d Cir. 2012) (internal quotation marks omitted).
This rule of deference is subject to an important qualification. Deference is not
owed to the executive unless the executive provides the Court with enough information to permit
the Court to carry out its own duty of judicial review. Specifically, the Government "'must
supply the courts with sufficient information to allow [the courts] to make a reasoned
determination that they were correct' in withholding certain materials." Nat'! Immigration
Project of Nat'! Lawyers Guild v. US. Dep 't of Homeland Sec., 868 F. Supp. 2d 284, 291

19

(S.D.N.Y. 2012) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 861 (D.C.
Cir. 1980)).
Here, the Government argues that judicial review of "national security
judgments" is precluded entirely, and that the Secretary's certification alone is sufficient to
trigger exemption. But that is not the law. Deference with respect to national security issues may
limit the scope of judicial review, but it does not preclude judicial review. And no matter what
the degree of deference, judicial review cannot occur unless the Government describes why,
"with reasonably specific detail," disclosure of documents should not be required. Miller v.
Casey, 730 F.2d 773, 776 (D.C. Cir. 1984). See also Coastal States Gas Corp. v. Dep't of
Energy, 617 F.2d 854, 861 (D.C. Cir. 1980) (denying agency invocation of FOIA exemption

where "the agency has failed to supply us with even the minimal information necessary to make
a determination.").
The Government's burden is clear. "Summary judgment is warranted on the basis
of agency affidavits when the affidavits describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith. Ultimately, an agency's justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible." Wilner v. Nat'/ Sec. Agency, 592 F.3d
60, 73 (2d Cir. 2009) (internal quotation marks and citations omitted). The Government must
provide an accounting of how it reached its conclusion, so that the court has "an adequate
foundation to review" whether the Government has satisfied its burden. Campbell v. United
States Dep't ofJustice, 164 F.3d 20, 30 (D.C. Cir. 1998). Once the court is "satisfied that the

proper procedures have been followed and that the information logically falls into the exemption

20

claimed," the Government has met its burden. Gardels v. Cent. Intelligence Agency, 689 F.2d
1100, 1104 (D.C. Cir. 1982).

3. The Administrative Procedure Act's "Arbitrary and Capricious" Standard
of Review Does not Apply But, Even if it Did, the Government Must Still
Articulate a Rational Basis for Its Invocation of an Exemption
The Government argues that the standard of review should not be de nova, the
standard for FOIA cases, but "arbitrary and capricious," the standard of review under the
Administrative Procedure Act ("AP A") for review of final determinations of administrative
agencies. See 5 U.S.C. § 706. Under the latter standard of review, a reviewing court may
overturn an agency action only if the agency's decision is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." Id
The Government's argument is misplaced. It has not identified a single case in
which a court applied the arbitrary and capricious standard when reviewing an agency's
invocation of a FOIA exemption. That is because, as the Supreme Court has explained, "[ u ]nlike
the review of other agency action that must be upheld if supported by substantial evidence and
not arbitrary or capricious, the FOIA expressly places the burden 'on the agency to sustain its
action' and directs the district courts to 'determine the matter de novo. '" US. Dep't ofJustice v.

Reporters Comm. For Freedom ofPress, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. §
552(a)(4)(B).
The question before the Court is not whether the Department of Defense acted
arbitrarily or capriciously in reviewing the photographs and preparing the certification for
Secretary Carter's signature. Rather, it is whether the Government has satisfied its burden to
show that the photographs qualify as "protected documents" under the PNSDA, so that they may
be withheld under FOIA Exemption 3. That inquiry is subject to de nova review. See A.

Michael's Piano, Inc. v. F. T.C., 18 F.3d 138, 144 (2d Cir. 1994) ("Conducting a de nova review
21

we must determine whether the FTC met its burden of proving that the documents withheld
pursuant to Exemption 3 fell within the scope of [the exemption statute].").
Furthermore, even under the arbitrary and capricious standard of review, the
Government is not excused from articulating a rational basis for its action. Under the AP A, a
"court must be satisfied from the record that 'the agency ... examine[ d] the relevant data and
articulate[d] a satisfactory explanation for its action.' Further, the agency's decision must reveal
'a rational connection between the facts found and the choice made.'" Islander E. Pipeline Co.,
LLC v. McCarthy, 525 F.3d 141, 151 (2d Cir. 2008) (quoting Motor Vehicle Mfrs. Ass'n of US.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Accordingly, regardless whether
the Court conducts an "arbitrary and capricious" review or a de novo review, the Government, at
a bare minimum, must disclose the criteria upon which it based its decision that release of the
photographs would endanger Americans deployed outside the United States.

Discussion
1. Summary Judgment for Plaintiffs is Proper Because The Government Has
Failed to Disclose the Criteria For Concluding That The Photographs, If

Released, Would Endanger Americans Deployed Outside the United States
There has been no adequate judicial review of the Government's invocation of
Exemption 3. None has been possible because the Government has failed to provide the Court
with the criteria it used to withhold the mass of photographs from disclosure. This is true
regardless of whether I conduct de novo review or apply the AP A's "arbitrary and capricious"
standard of review.
In prior orders, the Government was instructed to provide "evidence supporting
the Secretary of Defense's determination that there is a risk of harm, and evidence that the
Secretary of Defense considered whether each photograph could be safely released." ACLU Ill,
40 F. Supp. 3d at 390. The Government was instructed to "indicate the criteria used to
22

categorize the pictures or to select the samples from each category." February 18, 2015 Order, at
2. The Government was instructed to "describe the categories of objectionable content contained
in the photographs, identify how many photographs fit into each category, and specify the type
of harm that would result from disclosing such content." Id. at 3. The Government was
instructed to "make the Secretary's factual basis for concluding that disclosure would endanger
U.S. citizens, Armed Forces, or government employees clear to the Court" because, "without
such a record, judicial review is impossible, and judicial review is fundamental to FOIA and the
APA." Id

The Government has not complied with these instructions. 4 As a result, I cannot
review whether it has satisfied its burden under FOIA, as I am required to do under the statute.
Thus, summary judgment for plaintiffs is appropriate.
First, the Government has not provided any meaningful information as to how it
sorted the photographs into categories. It asserts that its sorting process resulted in a "true
representative sample that contained the full spectrum of what the full group of photographs
depicted," Apostol Deel.

fl 5, but it has not disclosed the parameters used to define each category,

the criteria used to determine whether a photograph fell into one category or another, or how
many categories or photographs there were.
Second, the Government has not adequately explained the relationship between
the various levels of review. It remains unclear whether the reviewers from each level used the

4

The Government, had it wanted to comply, could have done so in camera, as it did with the
photographs covered by my earlier decision. See ACLU I, 389 F. Supp. 2d at 568. It could have
exhibited the entire set of withheld photographs ex parte, and explained the criteria by which the
photographs were sorted, a sample was created, and by which the Secretary or his delegates
reached the conclusion that release of the photographs would endanger Americans deployed
abroad.
23

same or different criteria, and whether they reached the same or different conclusions with
respect to categorization and the potential for harm upon release. The second-level review is
described as "independent" from the first-level review, but was conducted "for the same
purpose." Apostol

Deel.~

6. The Government states that the third-level reviewers assessed the

"combined work product" of the prior two reviews, but it is unclear whether that review deferred
to prior findings or was conducted de novo. The third-level review team then "coordinated" with
the second-level review team and with attorneys from the Office of the Legal Counsel to the
Chairman of the Joint Chiefs of Staff "to reach a final consensus," but no further details are
provided regarding how the "final consensus" was reached. Id

~

7. A "representative sample"

of the photographs to be withheld was then prepared for the generals' review, but no further
information regarding that sample was provided. Id

~

8. Based on this scant information, it is

impossible to know how this tiered review process yielded the recommendations that Secretary
Carter adopted.
In short, the Government has not provided any information regarding the criteria
it applied to reach the conclusion that release of each withheld photograph would endanger
Americans deployed outside the United States. The Government concluded that 198
photographs could be released, but we do not know what distinguishes those photographs from
all the others, nor do we know how many photographs the Government seeks to withhold. No
matter how many levels of administrative review took place, the Government may not rely on a
process that the Court is unable to review.
Under FOIA, the Government's submission must be "sufficiently detailed to
permit meaningful review of the claim of exemption." Larson v. Dep 't of State, 565 F.3d 857,
862 (D.C. Cir. 2009). Withholding may be warranted when "the affidavits describe the

24

justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith." Id. (emphases added). Because
the Government has not provided reasonably specific detail as to why the photographs fall within
Exemption 3, I cannot determine whether the Government's invocation of Exemption 3 is logical
or plausible.
Nor can I assess whether there is in fact a "rational connection between the facts
found and the choice made." State Farm, 463 U.S. at 43 (citation omitted). The generals, for
example, concluded that the photographs "would be used to fuel distrust, encourage insider
attacks against U.S. military forces, and incite anti-U.S. sentiment across the region." Apostol
Deel. if 10. But they did not explain what it was about the photographs that would produce these
results. Without knowing the relationship between the substance of the photographs and the
specific endangerment referred to in the PNSDA, the Court cannot discharge its Article III duty
of judicial review.
It is not as if relevant criteria cannot be applied. Relevant factors might include

the type and extent of injury suffered by a detainee, the presence or absence in the photograph of
Americans potentially responsible for the injury, the environment depicted in the photograph,
and other like considerations. Since many photographs have been publicly disseminated, albeit
not under Government sponsorship, the Government should compare those photographs with
those covered by the Carter certification, and consider whether there have been previous
episodes of violence caused by the released photographs. The Government should also consider
the fact that the U.S. troop presence in Iraq has declined significantly, from over 100,000 in 2009
when the PNSDA was enacted, to approximately 5,000 today. The scope of operations has also

25

significantly narrowed. In ACLU III, I observed that "three years is a long time in war, the news
cycle, and the international debate over how to respond to terrorism." ACLU III, 40 F. Supp. 3d
at 384. Seven years is even longer. And while President Obama's desire to withhold these
photographs in 2009 was animated by his desire to bolster the government of the Prime Minister
of Iraq, that is not now the statutory consideration for withholding publication.
I take seriously the level of deference owed to the executive branch in the realm
of national security decision making. The record of this long-pending lawsuit, and the many
orders and decisions that I have issued, reflects that deference. As I noted at oral argument,
"whenever the executive has articulated a reason, I have deferred to him." Hr' g Tr. at 28: 14-23
(May 11, 2016). My complaint is that the executive has failed to articulate the reasons
supporting its conclusion that release of the photographs would endanger Americans deployed
abroad.
In Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944), the Supreme
Court sanctioned the government's internment of Japanese-Americans during World War II.
Justice Murphy, who dissented, agreed with the majority that in judging military action, "it is
necessary only that the action have some reasonable relation to the removal of the dangers of
invasion, sabotage and espionage." Id. at 235 (Murphy, J., dissenting). However, as Justice
Murphy noted, the report prepared by General De Witt, who ordered the internment, and upon
which the government based its "military necessity" argument, contained "no reliable evidence"
that Japanese-Americans were in fact disloyal. Id. Similarly, Justice Jackson dissented because
he concluded that he could not judge whether General De Witt's measures were reasonably
expedient based on the evidence before him: "How does the Court know that these orders have a
reasonable basis in necessity? No evidence whatever on that subject has been taken by this or

26

any other court. There is sharp controversy as to the credibility of the De Witt report. So the
Court, having no real evidence before it, has no choice but to accept General De Witt's own
unswom, self-serving statement, untested by any cross-examination, that what he did was
reasonable." Id at 245 (Jackson, J., dissenting). But, Justice Jackson commented, once the court
sanctions the order, the "principle then lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent need." Id at 246.
Today, portions of Iraq have been overrun by ISIS, a barbaric terrorist
organization whose pernicious campaign of public beheadings, enslavement, and indiscriminate
killings of people it considers apostates are indisputable proof that its members, like many other
terrorists that the United States has fought in Iraq and Afghanistan, "do not need pretexts for
their barbarism." ACLU I, 389 F. Supp. 2d at 576. To give in to fear of our enemies, their
propaganda, or their blackmail, is to surrender some of our dearest held values. Twelve years
after this litigation began, and now fifteen years since the devastating attacks of September 11, it
remains the case that "our nation does not surrender to blackmail, and fear of blackmail is not a
legally sufficient argument to prevent us from performing a statutory command." Id at 575. It
is to that end that we have the Freedom of Information Act. The Secretary's methodologies and
criteria, whether by himself or through delegation, must be disclosed. Until then, there cannot be
judicial review. A submission that precludes judicial review cannot be the basis for a
withholding under FOIA.

2. The Government's Individualized Reviews, However Ample, Are Legally
Insufficient Unless the Criteria of Delegation and Review Are Set Out
Plaintiffs continue to argue that the review process leading up to the Carter
certification was not sufficiently individual as to each photograph. On its face, the Carter
certification differs from the Panetta certification in that instead of referring to "a collection of

27

photographs" and to "these photographs," it refers to "each photograph" and to a "review of each
photograph by my staff on my behalf." Additionally, the Apostol Declaration makes clear that at
each of the first three levels of review, each photograph was reviewed individually. Plaintiffs
argue that this is insufficient because even though each photograph was in fact individually
reviewed at several points in the process, the Secretary relied upon the recommendation of the
four generals, who reviewed only a sample of the photographs.
When previously analyzing the PNSDA, I found that because the plain language
of the statute refers to photographs individually ("that photograph"), the statute requires the
Secretary of Defense to consider "each photograph individually, not collectively." ACLU Ill, 40
F. Supp. 3d at 389.
However, I also have consistently stated that the Secretary need not personally
review each photograph. The Secretary may delegate the individual reviews, for"[ f]ederal
agency officials may subdelegate their decision-making authority to subordinates absent
evidence of contrary congressional intent." US. Telecom Ass'n v. FCC, 359 F.3d 554, 566
(D.C. Cir. 2004). This is logical. Courts should not require an agency head to "personally
familiarize himself' with all evidence related to a decision he is responsible for, or else
"government would become impossible." Nat'! Nutritional Foods Ass'n v. Food & Drug Admin.,

US. Dep't of Health, Ed & Welfare, 491F.2d1141, 1146 (2d Cir. 1974).
The PNSDA, however, makes the Secretary personally responsible for the
certification as to each photograph. He may delegate the work to his staff, but he must establish
the criteria to be utilized in categorizing the photographs and assessing the likely harm upon
release. He must also "explain the terms of his delegation so it is the Secretary, and not any

28

subordinate, who takes responsibility for his knowing and good faith Certification that release of
a particular photograph would result in the harm envisioned." February 18, 2015 Order, at 2.
The Secretary has failed to sufficiently explain the terms of his delegation. As
discussed above, the Government has not disclosed the criteria by which the Secretary's staff
categorized the photographs and concluded that some, but not all, the photographs should be
released. Additionally, the four generals, who were the individuals ultimately responsible for
executing the Secretary's delegation of decision-making authority, only reviewed a sample of the
photographs. This disconnect between the staff that conducted the individual reviews and the
generals who made the final recommendation to the Secretary is further indication that the
Secretary's certification does not comply with the requirements of the PNDSA.

3.

The Photographs are Not Exempt Under Exemption 7(F)
Separate and apart from the Carter certification issued pursuant to the PNSDA,

the Government also contends that the photographs are exempt under Exemption 7(F), which
protects "records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information ... could reasonably be
expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). The
Government first raised this argument in 2005 with respect to specific photographs taken by
American military personnel at Abu Ghraib prison in Iraq. I rejected the argument, and the
Second Circuit affirmed that decision.
I ruled that Exemption 7(F) was animated by a desire to "protect individuals
involved in law enforcement investigations and trials, as officials and as private citizens
providing information and giving testimony," but that the purpose of FOIA as a whole was to
"advance[] values important to our society, transparency, and accountability in government.''

29

ACLU I, 389 F. Supp. 2d at 576. The task of the court was to balance the goals of the statute at
large against the specific exemption, "not to defer to our worst fears, but to interpret and apply
the law." Id I held that "the core values that Exemption 7(F) was designed to protect are not
implicated by the release of the Darby photographs, but that the core values of FOIA are very
much implicated." Id at 578. Accordingly, I held that the Darby photographs, the photographs
then at issue, should be released.
On appeal, the Second Circuit affirmed, see ACLU II, 543 F.3d at 66-83, holding
that Exemption 7(F) extends only to documents that could "reasonably be expected to endanger
the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F) (emphasis added). The
Second Circuit reviewed the text of the exemption, its legislative history, and its prior
application. In light of the presumption that FOIA exemptions be "narrowly construed," the
Second Circuit concluded that the term "any individual" does not include "individuals identified
solely as members of a group so large that risks which are clearly speculative for any particular
individuals become reasonably foreseeable for the group." ACLU II, 543 F.3d at 67. Rather, "an
agency must identify at least one individual with reasonable specificity and establish that
disclosure of the documents could reasonably be expected to endanger that individual." Id at 71.
As a result, Exemption 7(F) did not extend to a group "so vast as to encompass all United States
troops, coalition forces, and civilians in Iraq and Afghanistan." Id.
The Government, arguing for a change of view, cites Elec. Privacy Info. Ctr. v.
US. Dep't of Homeland Sec. ("EPIC"), 777 F.3d 518 (D.C. Cir. 2015), a distinguishable case. In
that case, the D.C. Circuit held that the term "any individual" in Exemption 7(F) should be given
a "broad interpretation," not limited to the Government's ability to "specifically identify the
individuals who would be endangered." Id. at 520. The Government was concerned in EPIC

30

that release of a protocol for shutting down wireless networks in critical emergencies, such as a
terrorist bombing, would enable terrorists to disable the protocol and "freely use wireless
networks to activate ... improvised explosive devices," thereby endangering individuals in the
vicinity of the bomb threat. Id. at 521-22. The danger was sufficiently specific, and the zone of
endangerment was sufficiently concrete, to justify application of Exemption 7(F). By contrast,
the Carter certification is vague and unlimited as to who is endangered: "citizens of the United
States, members of the United States Armed Forces, or employees of the United States
Government deployed outside the United States." This vast and amorphous group clearly does
not satisfy the standard described by the Second Circuit, nor would it likely satisfy the standard
adopted by the D.C. Circuit in EPIC
Thus, I decline to reverse my prior holding, affirmed by the Second Circuit, that
the photographs at issue are not exempt under Exemption 7(F).

Conclusion
For the foregoing reasons, plaintiffs' motion is granted and the Government's
motion is denied.
SO ORDERED.
Dated:

January _IK;.017
New York, New York

31