United States District Court, N.D. California
For Theresa Cameranesi, Judith Liteky, Plaintiffs: Duffy Carolan, LEAD ATTORNEY, Davis Wright Tremaine LLP, San Francisco, CA; Peter Kent Spriggs, PRO HAC VICE, Tallahassee, FL.
For U.S. Department of Defense, U.S. Army Training and Doctrine Command, Defendants: Ann Marie Reding, LEAD ATTORNEY, United States Attorney's Office, Northern District of California, San Francisco, CA.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
PHYLLIS J. HAMILTON, United States District Judge.
This is an action for declaratory and injunctive relief brought under the Freedom of Information Act, 5 U.S.C. § 552 (" FOIA" ). The parties' cross-motions for summary judgment came on for hearing before this court on February 13, 2013. Plaintiffs appeared by their counsel Duffy Carolan and Kent Spriggs, and defendants appeared by their counsel Ann Marie Reding. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS plaintiffs' motion and DENIES defendants' motion as follows.
THE FREEDOM OF INFORMATION ACT
" Congress enacted FOIA to overhaul the public-disclosure section of the Administrative Procedures Act."
Milner v. Dep't of Navy, __U.S. __, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011);
see also Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (discussing Congress' creation of FOIA). Congress recognized that no statute effectively provided for disclosure to the public by the " hundreds of [governmental] departments, branches and agencies which are not clearly responsible to the people."
SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1119 (9th Cir. 1976). Congress believed that " the public as a whole has a right to know what its Government is doing." Id. (quoting S.Rep. No. 813, 89th Con., 1st Sess. 5 (1965)).
Congress enacted FOIA to " clos[e] the loopholes which allow agencies to deny legitimate information to the public."
U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150 (1989), 109 S.Ct. 2841, 106 L.Ed.2d 112 (citations and quotations omitted). FOIA's purpose was thus to " ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (quotations omitted). Accordingly, FOIA mandates a " strong presumption in favor of disclosure."
U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). " [D]isclosure, not secrecy is the dominant objective of the act."
Rose, 425 U.S. at 361.
However, Congress also contemplated that some information can legitimately be kept from the public through the invocation of certain exemptions to disclosure.
Yonemoto v. Department of Veterans Affairs, 686 F.3d 681, 687 (9th Cir. 2012); see Tax Analysts, 492 U.S. at 150-51 (agency must disclose records to " any person" unless the records may be withheld pursuant to one of the enumerated exemptions listed in § 552(b));
see also Lion Raisins, Inc. v. U.S. Dep't of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004)
(Supreme Court's broad interpretation of FOIA requires full agency disclosure except where specifically exempted).
FOIA includes nine statutory exemptions. See 5 U.S.C. § 552(b)(1)-(9). These statutory exemptions " must be narrowly construed."
Lion Raisins, 354 F.3d at 1079 (quoting John Doe Agency, 493 U.S. at 152);
see also Milner, 131 S.Ct. at 1265-66 (FOIA strongly favors openness and " broad disclosure" with narrowly construed exceptions). Moreover, even when material falls within one of FOIA's nine exemptions, an agency must disclose " any reasonably segregable portion of a record . . . after deletion of the portions which are exempt." 5 U.S.C. § 552(b). An agency invoking an exemption bears the burden of proving that it applies. Yonemoto, 686 F.3d at 688.
Plaintiffs Theresa Cameranesi and Judith Liteky seek access to information regarding students and instructors at the Western Hemisphere Institute for Security Cooperation (" WHINSEC" ), which is operated by the U.S. Department of Defense (" DOD" ) and was formerly known as the U.S. Army School of the Americas (" SOA" ). Originally established by the U.S. Army in 1946 as the Latin American Training Center, SOA was run by the United States Army and housed at Fort Benning, Georgia. It trained military leaders from countries throughout the Western Hemisphere in combat and various counter-insurgency techniques.
See Bourgeois v. Peters, 387 F.3d 1303, 1306 (11th Cir. 2004).
In 1990, the School of the Americas Watch (" SOA Watch" ), a non-profit advocacy organization, was formed for the purpose of raising awareness of activities of SOA and in response the 1989 killing of six Jesuit priests, their housekeeper and her 16-year-old daughter in El Salvador, after it came to light that a majority of the individuals implicated in the murders were soldiers who had been trained at SOA. SOA Watch contends that the SOA bolstered military dictatorships by training their leaders how to kill, torture, and otherwise suppress their citizens. See id. Plaintiffs Theresa Cameranesi and Judith Liteky helped form the School of the Americas Watch San Francisco Research Group, a local adjunct of SOA Watch.
In 2000, SOA was replaced by WHINSEC, also located at Ft. Benning. See National Defense Authorization Act for Fiscal Year 2001, P.L. 106-398, § 911, 114 Stat. 1654, 2000 HR 4205, codified at 10 U.S.C. § 2166. WHINSEC provides professional education and training to eligible military, law enforcement, and civilian personnel of nations of the Western Hemisphere. In addition to foreign nationals, U.S. military, civilian, and contractor personnel attend WHINSEC as students or work as instructors.
The bill establishing WHINSEC also provided for the creation of a 14-member " Board of Visitors," composed of members of the Senate and House Armed Services Committees; representatives from the State Department, U.S. Southern Command, U.S. Northern Command, the U.S. Army Training and Doctrine Command (" TRADOC" ); and six members designated by the Secretary of Defense (including persons from academia and the religious and human rights communities). Id. § 2166(e). The Board is tasked with inquiring into the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of WHINSEC, and with reporting to the Secretary of Defense as to whether the curriculum complies with U.S. laws and regulations, is consistent with U.S. policy goals toward Latin America and the Carribean, and adheres to U.S. doctrine. Id.
According to the Declaration of Lee A. Rials, a Department of the Army employee and a Public Affairs Specialist for WHINSEC, the Board's annual report in the years since 2002 has shown that WHINSEC is performing its missions in an excellent manner, legally, morally, and ethically. In addition, since Fiscal Year (" FY" ) 2005, the DOD has provided Congress (in classified format) names and other data for all WHINSEC students and instructors.
Beginning in approximately 1994, the DOD disclosed to SOA Watch the names of SOA students and instructors dating back to 1946. Thereafter, through FY 2004, the DOD routinely disclosed upon request the names of the students attending SOA/WHINSEC, and their countries of origin. From these disclosures, SOA Watch created a data base containing the names, countries of origin, and courses taught or taken by the students and instructors. This database contains more than 60,000 names, covering the period 1946 to 2004, when the government stopped its practice of publicly disclosing this information. Using the prior disclosures, SOA Watch has created reports linking names from the data base to human rights abuses described in various governmental and media documents.
Plaintiffs contend that the analysis and review of the human rights records of SOA and WHINSEC graduates provided by SOA Watch, and other nonprofits such Amnesty International, based on the prior disclosures, has been utilized by members of Congress seeking to make decisions about the school and other foreign policies.
Plainiffs also assert that this information is relevant to the analysis of whether and to what effect the government is vetting individual officers and noncommissioned officers prior to admitting them to WHINSEC, and monitoring military units for human rights certification in accordance with the 1997 Foreign Operations Appropriations Act, which requires that U.S. assistance be denied to military " units" if the Secretary of State has credible evidence of human rights abuses by that unit, and successive amendment to the Defense Appropriations Act, extending the same restrictions to training assistance to foreign military. 
WHINSEC opened in late 2001. After that date, DOD continued to disclose the names of students and instructors, as it had with SOA. According to plaintiffs, many members of Congress expressed the view that until a student at WHINSEC could be tied to a human rights violation, they were inclined to support the renamed school. In response, the San Francisco Research Group of SOA Watch took the names of WHINSEC graduates and instructors previously disclosed by DOD and matched those names with human rights reports prepared by the U.S. Department of State and other groups. The group's findings, which documented five cases where individuals were allowed to attend WHINSEC despite existing human rights records, were presented to the office of U.S. Rep. Jim McGovern. Plaintiffs assert that it was soon after this report to Rep. McGovern's office that DOD first reversed its longstanding practice of releasing the names of SOA and WHINSEC attendees.
On March 1, 2011, plaintiffs served a FOIA request on DOD and TRADOC, seeking access to " all documents that contain the names, ranks, branches, countries of origin, lists of courses taken or taught, and/or dates and years in attendance of
students, instructors, and guest instructors" at WHINSEC from FY 2005-2010, including " documents known as 'Student List,' 'Instructor List,' and 'Guest Instructor List.'"
On March 22, 2011, plaintiffs added a request for information about the military units of those attending WHINSEC, but also clarified that the request for " all documents" should be interpreted to mean simply " sufficient records to allow [plaintiffs] to learn the names, ranks, branches, countries of origin, lists of courses taken or taught, and the dates and years in attendance of students, instructors, and guest instructors at WHINSEC" for FY 2005-2010.
On April 5, 2011, TRADOC responded to the FOIA request with some responsive records. Along with the letter, TRADOC sent what it referred to as " the responsive records, located from the record search." TRADOC indicated that portions of the records had been redacted, that " the FOIA exemption that prohibits the information disclosure is cited," and that the decision is considered " a partial denial of [the] FOIA request." The only FOIA exemption cited in the letter was Exemption 6, which exempts from disclosure matters that are " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The letter asserted that " [t]here is no discretion in release of information/records that qualify for withholding pursuant to [Exemption 6]."
According to plaintiffs, TRADOC's letter was accompanied by a disk containing 19 .pdf files that had apparently been converted from an Excel format. None of the 19 files contained any names of WHINSEC students or instructors or their military units. Plaintiffs contend that many of the files were transmitted without any indentifying information or title, such that it was not possible to know what the information purported to represent.  Plaintiffs contend that aside from a complete denial of access to the names and military units of the students and instructors -- the substance of the request -- other information requested was sometimes provided and sometimes withheld or missing from the files produced.
On May 11, 2011, plaintiffs filed an administrative appeal of TRADOC's partial denial of their request. In their appeal, plaintiffs claimed that TRADOC's invocation of Exemption 6 was not appropriate because the public's interest in disclosure of the names and units of WHINSEC students and instructors outweighs the privacy interests, if any, of those individuals in their names and units.
Plaintiffs also asserted that TRADOC had failed to provide an index to the withheld records, as required under
Vaughn v. Rosen, 484 F.2d 820, 157 U.S.App. D.C. 340 (D.C. Cir. 1973) (" Vaughn index" ). A Vaughn index " identifies each document withheld and the statutory exemption claimed for each document, and sets forth 'a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption."
Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1089, 1092 n.1 (9th Cir. 1997) (quoting Wiener v. FBI,
943 F.2d 972, 977
(9th Cir. 1991)). The purpose of the index is to " afford the . . . requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding."
King v. U.S. Dep't of Justice, 830 F.2d 210, 218, 265 U.S.App. D.C. 62 (D.C. Cir. 1987). 
On June 8, 2011, DOD denied the appeal, reasserting FOIA Exemption 6, but also citing for the first time Exemption 3, which exempts from disclosure matters that are " specifically exempted from disclosure by statute" if that statute either " requires that matters be withheld from the public" or " establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). DOD claimed that Exemption 3 warranted withholding the information, based on the requirement in § 1083 of the National Defense Authorization Act that DOD disclose the information, and the provision that allows the Secretary to waive that requirement if warranted by the " national interest."
On February 6, 2012, plaintiffs filed the present action against DOD and TRADOC, seeking an order enjoining defendants from withholding the names and assigned military units of students, instructors, and guest instructors at WHINSEC for the fiscal years 2005-2010. Each side now seeks summary judgment.
Plaintiffs argue that DOD cannot meet its heavy burden of proof under FOIA to justify withholding the information plaintiffs have requested. DOD contends that it properly withheld the requested information pursuant to Exemption 3 and Exemption 6 of FOIA.
A. Legal Standard
A party may move for summary judgment on a " claim or defense" or " part of . . . a claim or defense." Fed.R.Civ.P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id.
FOIA cases are typically decided on motions for summary judgment.
Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009);
Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). Because FOIA cases rarely involve issues of disputed fact, the court need not utilize the typical summary judgment standard.
Yonemoto, 686 F.3d at 688; Minier v. Central ...