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Judicial Watch • 113534426-CIA-Herrington-Decl-MSJ



Page 1: 113534426-CIA-Herrington-Decl-MSJ

Category:Legal Document

Number of Pages:16

Date Created:September 14, 2012

Date Uploaded to the Library:July 14, 2015

Tags:Herrington, 113534426, MSJ1, Decl, Osama, Bigelow, laden, Defense, Freedom, Pentagon, Secretary, filed, plaintiff, request, document, records, department, FOIA, office, Washington, CIA

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Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page UNITED STATES DISTRICT COURT
Defendants. 12-cv-00049-RBW
Pursuant U.s.C. 1746, Mark Herrington, hereby declare under penalty
perjury that the following true and correct: Associate Deputy General Counsel the Office General Counsel
(OGC) the United States Department Defense (DoD). OGC provides legal advice
the Secretary Defense and other leaders within the DoD. responsible for, among other
things, overseeing Freedom ofInformation Act (FOIA) litigation involving DoD. have held current position since March 2007. duties include coordinating searches across DoD
ensure thoroughness, reasonableness, and consistency.
The statements this declaration are based upon personal knowledge and
upon review information available official capacity. Specifically, the
OGC counsel assigned this case.
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Administrative Background August 2011, Plaintiff sent FOIA request DoD seeking records related meetings and communications between DoD and filmmaker Kathryn Bigelow, Mr. Mark
Boal, Ms. Megan Ellison, employees Annapurna Pictures, concerning planned film
regarding the killing Osama Bin Laden. See FOIA request attached hereto Ex.
DoD acknowledged receipt the request August 22,2011, and advised
Plaintiff that, due unusual circumstances, could not process the request within days. See
Aug. 22, 2011 letter attached hereto Ex. Plaintiff filed suit this case January 12,
2012. DoD completed reasonable search and produced responsive records Plaintiff May
18,2012. The release from DoD was 153 pages length, including 16-page transcript ofa
background interview with Mark Boal and Kathryn Bigelow. DoD produced additional
responsive records Plaintiff August 24,2012..
Purpose this Declaration
The purpose this declaration respond challenges from Plaintiff
regarding certain redactions taken from the records released response their request.
Specifically, Plaintiff challenges DoD withholdings under b(3) and b(6) that appear pages
140 and 153 DoDs May 18,2012 production. These two pages the transcript are attached
hereto Ex.
Justification for Withholding Identifying Information
About DoD Personnel Under FOIA Exemptions and
Exemption permits the government withhold information that specifically
exempted from disclosure statute. U.S.C. 130b authorizes the withholding
personally identifying information regarding ... any member the armed forces assigned
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page overseas unit ... routinely deployable unit. Exemption permits the government
withhold information about individuals when the disclosure such information would
constitute clearly unwarranted invasion personal privacy. DoD has policy, which has
been upheld every court decision date, withhold personally identifying information
those members DoD who are the military rank Colonel (06) below and the rank
GS-15 below. exception this rule allows the names those personnel who routinely
deal with the press public released.
From information made available official capacity, and from the
context pages 140 and 153 DoDs May 18,2012 production (as well the context ofthe
document which those pages belong), the redactions page 140 are, order, (1) first and
last name DoD individual suggested Mark Boal someone wanted talk to; (2)
rank and last name different DoD individual identified Mark Boal; (3) last name full
name, such Smith, John Smith, third DoD individual suggested the Under Secretary Defense, Mike Vickers, someone Mark Boal could talk to; and (4) the last name the
third individuaL The redaction page 153 the rank and last name the third individual
redacted from page 140 i.e., the person Mike Vickers identified for Mark Boal talk to.
have confirmed that the names the DoD personnel mentioned the relevant pages are
persons assigned routinely deployable units whose military rank Colonel (06) below
and GS-15 below and who not routinely deal with the press the public. This
information therefore meets the criteria withheld pursuant U.S.C. 130b and
Exemption (b)(3). have further determined that this information was properly withheld under
Exemption (b)(6) its release would constitute clearly unwarranted invasion the personal
privacy these individuals. These individuals have legitimate privacy interest their
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
identities that would threatened their names were publicly disclosed, and there
discernable public interest having this information disclosed. Specifically, the public release these individuals names would not shed any light how DoD performs its duties. declare under penalty perjury the laws the United States America that
the foregoing true and correct the best knowledge and information.
Dated this 14th day September, 2012, Washington, DC. Herrington, Esq.
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page lIHIHXH
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
-F- 37Lf
Because one above the law!
August 9,2011
OSD/JS FOIA Requester Service Center
Office Freedom Information
1155 Defense Pentagon
Washington, 20301-1155
Re: Freedom Information Act Request
Dear Freedom Infonnation Officer:
Pursuant the provisions ofthe Freedom ofInformation Act (FOIA), U.S.C.
552, Judicial Watch, Inc. hereby requests that the Department Defense produce the
following within twenty (20) business days: Any and all records ofcommunication between any officer, official
employee the Department Defense and Ms. Kathryn Bigelow, the director upcoming film regarding the killing Osama bin Laden tentatively titled,
Killing bin Laden. Any and all records communication between any officer, official
employee the Department Defense and Mr. Mark Boat, the writer the
aforementioned film. Any and all records communication between any officer, official
employee the Department Defense and Ms. Megan Ellison and/or any other
officer employee Annapurna Pictures, the financiers the film. Any and all records concerning, regarding related the upcoming film
regarding the killing Osama bin Laden, including all related records
communication between any officer, official employee the Department
Defense and any other individual, entity government agency.
The time frame for this request January 2011 through August 2011. call your attention President Obamas January 21, 2009 Memorandum
425 Third St., SW. Suite 800. Washington, 20024 -Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email:
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Department Defense
August 2011
concerning the Freedom Information Act, which states:
All agencies should adopt presumption favor
disclosure, order renew their commitment the
principles embodied FOIA ...The presumption
disclosure should applied all decisions involving
The memo further provides that The Freedom Information Act should
administered with clear presumption: the case doubt, openness prevails.
Nevertheless, any responsive record portion thereof claimed exempt
from production under FOIA, please provide sufficient identifying information with
respect each allegedly exempt record portion thereof allow assess the
propriety the claimed exemption. Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973).
cert. denied, 415 U.S. 977 (1974). addition, any reasonably segregable portion ofa
responsive record must provided, after redaction ofany allegedly exempt materiaL
U.S.C. 552(b).
For purposes this request, the term record shall mean: (1) any written,
printed, typed material ofany kind, including without limitation correspondence,
memoranda, notes, messages, fetters, cards, facsimiles, papers, forms, telephone
messages, diaries, schedules, calendars, chronological data, minutes, books, reports,
charts, lists, ledgers, invoices, worksheets, receipts, returns, computer printouts, printed
matter, prospectuses, statements, checks, statistics, surveys, affidavits, contracts,
agreements, transcripts, magazine newspaper articles, press releases; (2) any
electronically, magnetically, mechanically stored material any kind, including
without limitation all electronic mail e-mail; (3) any audio, aural, visual, video
records, recordings, representations any kind; (4) any graphic materials and data
compilations from which information can obtained; and (5) any materials using other
means preserving thought expression.
Judicial Watch also hereby requests waiver both search and duplication fees
pursuant U.S.C. 552(a)(4)(A)(ii)(II) and (a)(4)(A)(iii). Judicial Watch entitled waiver ofsearch fees under U.S.C. 552(a)(4)(A)(ii)(lI) because member
the news media Cj. National Security Archive Department o/De/ense, 880 F.2d 1381,
1387 (D.C. Cir. 1989)(defining news media within FOIA context). Judicial Watch has
also been recognized member the news media other FOIA litigation. See, e.g.,
Judicial Watch, Inc. U.S. Department ofJustice, 133 Supp.2d (D.D.C. 2000);
and, Judicial Watch, Inc. Department 0/Defense, 2006 U.S. Disi. LEXIS 44003,
(D.D.C. June 28.2006). Judicial Watch regularly obtains information about the
Freedom Infonnation Act. Pres. Mem. January 21,2009,74 Fed. Reg. 4683.
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Department Defense
August 9,2011
operations and activities government through FOIA and other means, uses its editorial
skills turn this infonnation into distinct works, and publishes and disseminates these
works the public. intends likewise with the records receives response
this request.
Judicial Watch also entitled complete waiver both search fees and
duplication fees pursuant U.S.C. 552(a)(4XAXiii). Under this provision, records:
shall furnished without any charge charge
reduced below the fees established under clause (ii)
disclosure the information the public interest
because likely contribute significantly public
understanding the operations activities government
and not primarily the commercial interest the
requester. U.S.C. 552(a)(4)(A)(iii). addition, records are not produced within twenty (20) business days, Judicial
Watch entitled complete waiver search and duplication fees under Section 6(b) the OPEN Government Act of2007, which amended FOIA U.S.C.
Judicial Watch 501(c)(3), not-for-profit, educational organization, and,
definition. has commercial purpose. Judicial Watch exists educate the public
about the operations and activities government, well increase public
understanding about the importance ethics and the rule law government. The
particular records requested herein are sought part ofJudicial Watchs ongoing efforts document the operations and activities ofthe federal government and educate the
public about these operations and activities. Once Judicial Watch obtains the requested
records, intends analyze them and disseminate the results its analysis, well
the records themselves, special written report. Judicial Watch will also educate the
public via radio programs, Judicial Watchs website, and/or newsletter, among other
outlets. also will make the records available other members the media
researchers upon request. Judicial Watch has proven ability disseminate information
obtained through FOIA the public, demonstrated its long-standing and
continuing public outreach efforts.
Given these circumstances. Judicial Watch entitled public interest fee
waiver both search costs and duplication costs. Nonetheless, the event our request
for waiver search and/or duplication costs denied, Judicial Watch willing pay $350.00 search and/or duplication costs. Judicial Watch requests that
contacted before any such costs are incurred, order prioritize search and duplication
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Department Defense
August 2011 effort facilitate record production within the statutory time limit. Judicial
Watch willing accept documents electronic format (e.g. e-mail .pdfs). When
necessary. Judicial Watch will also accept the rolling production ofdocuments. you not understand this request any portion thereof, you feel you
require clarification this request any portion thereof, please contact immediately 202-646-5172 look forward receiving the
requested documents and waiver both search and duplication costs within twenty
(20) business days. Thank you for your cooperation.
Senior Investigator
Judicial Watch
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
WASHINGTON, 20301-1155
AUG 2011
Ref: II-F-1374
Mr. Sean Dunagan
Judicial Watch
425 Third St.
Suite 800
Washington, 20024
Dear Mr. Dunagan:
This interim response your August 2011, Freedom Information Act
(FOIA) request for records pertaining communications between any officer, official
employee the Department Defense and Ms. Kathryn Bigelow, Mr. Mark Boal, Ms.
Megan Ellison, any officer employee Annapurna Pictures. Also any records
concerning the upcoming film regarding the killing Osama bin Laden, including all
related records communication between any officer, official employee the
Department Defense and any other individual, entity government agency. You have
requested records from January 2011 through August 11. Your request was
received August 18,2011 and assigned FOIA case number II-F-1374.
Regarding your request, interpreting that part the request that asks for
records communication between the Department Defense and Bigelow, Mr.
Boal, Ellison and officers employee Annapurna Pictures asking for records
concerning the subject upcoming film regarding the killing Osama bin laden
tentatively titled, Killing bin Laden. you are doubt aware, this Office
responsible for responding requests for records held the Office ofthe Secretary
Defense (OSD) and the Joint Staff and, therefore, are only able answer your request pertains those entitles and not for the entire Department Defense. understand
that you have additionally submitted this request directly to. the Department the Navy.
You have also requested waiver both search and duplication fees pursuant U.S.c. 552(a)(4)(A)(ii)(II) and (a)(4)(A)(iii) member the news media.
support this request you state that the disclosure this information will contribute
significantly public understanding ofthe operations activities the government and not primarily the commercial interest the requester. individual primarily engaged disseminating information means person
whose primary activity involves publishing otherwise disseminating information the
public. Representatives the news media would normally qualify individuals
primarily engaged disseminating information. Other persons must demonstrate that
their primary activity involves publishing otherwise disseminating information the
public. You state that Judicial Watch 1(c)(3), not-for-profit, educational
organization, and, definition, has commercial purpose. Internet search
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
revealed that Judicial Watch conservative, non-partisan educational foundation that
promotes transparency, accountability and integrity government, politics and the law
and that you fulfill your educational mission through litigation, investigations, and public
outreach. These activities not demonstrate that the primary activity Judicial Watch publishing disseminating information. not find that you would qualify
representative the news media, although you have demonstrated the ability
disseminate information support your investigative, legal and judicial activities. have determined that you should placed the other category for fee
purposes you have indicated that you not seek access these records for
commercial purposes. you know, the other fee category affords you two hours
search time and 100 pages duplication free charge. You have agreed pay fees
the amount $350 the event that your request for waiver search and duplication
costs denied.
Concerning your request for fee waiver the basis that disclosure the
requested information the public interest because likely contribute
significantly public understanding the operations activities the government.
Your request for waiver fees granted but only applies search records
held the Office the Secretary Defense. this time, are unable make release determination your request within
the 20-day statutory time period there are unusual circumstances which impact our
ability quickly process your request. These unusual circumstances are: (a) the need
search for and collect records from several offices geographically separated from this
Office and (b) the need consult with one more agencies DoD components having substantial interest either the determination the subject matter the records. For
these reasons, your request has been placed our complex processing queue and will worked the order the request was received. matter information, our current
administrative workload approximately 1,300 open requests. apologize for the
anticipated delay responding your request; your continued patience appreciated. you are not satisfied with this action, you may appeal the appellate authority,
the Director Administration and Management, Office the Secretary Defense.
submit your appeal, you should write directly the Defense Freedom Information
Policy Office, ATTN: Mr. James Hogan, 1155 Defense Pentagon, Washington, D.C.
20101-1155. Your appeal should postmarked within calendar days the date
this letter, should cite case number II-F-1374, and should clearly marked Freedom Information Act Appeal.
Sincerely, ~~::::L.:x=-~~
Paul JacoDsmeyer
.---J Chief
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
Transcript from background interview with Marl Boal and Katherine Bigelow
(15 Ju12011)
Mike Vickers
Phil Strub
Mark Boal-
Bob Mehal-
Katherine Bigelow Katherine going somehow figure out how turn disorganized screenplay into terrific
movie and great recreation ofthe events since last talked, just catch you up, speak, what have been doing. took your guidance
and spoke the and had good meeting with Brennan and McDonough and plan follow with
them; and they were forward leaning and interested sharing their point view; command and control; that was great, thank you. met with Acting Director Morrell today Langley and continued talk various people the IC.
MY-This was follow-up? Youve met with him before correct?
MB- Yes correct; this was follow-up. intel stuff going great and pretty well along that, before talked with you; but lets say
between and base that. The stuff, think good shape well, the last leg ofthe
stool obviously DoD. thats what, hopefully can talk about some that here, but wanted
give you sort inside baseball.
One the things had talked about was eventually will going, hopefully going, down SOCOM
and talking somebody down there maybe McRaven whoever-still the horizon.
MY-I have some news for you that front. So, and have you talked Sec Panetta the Director,
MB- Yes.
MY-I know very interested supporting.
MB- Were going have dinner some point, but didnt want interrupt travel plan
BM- Part ofthat discussion was from the last movie.
MV- sorry, what?
BM- Part those discussions, were reference the movie they were planning making.
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page
talk directlY. because its just bad, their just concerned commanders the force and theyre telling
them all the time dont you dare talk anybody, that its just bad example gets out even with
all sorts ofrestrictions and everything. Uh-huh.
someone like that.
MY-Well the basic idea theyll make guy available who was involved from the beginning
planner; SEAL Team Operator and Commander.
MY-A guy
so, basically can probably give you everything you Adm McRaven.
Thats dynamite. the way.
KB- Thats incredible.
MB- This happy.
MV- And so, hell speak for operators and hell speak for senior military commanders, because their all
the same tribe and everything. and you should get most what you need from him. Now, again the
reason Adm Olson and Adm McRaven didnt want talk this command conflict interest. And
only thing ask that you not reveal his name any way consultant,
same thing, shouldnt talking out ofschool. this least, this gives him one
step removed and knows what can and cant say, but this way least can open can
with you and ought meet your needs and give you lots ofcolor.
KB- Fabulous
MB- Thats dynamite.
MV- well put you touch with him have him get touch with you the end ofthis meeting.
And whatever your schedule well make that work, just havent had chance talk with him.
KB- located the Washington area? -iO
Case 1:12-cv-00049-RC Document 16-1 Filed 09/14/12 Page very intense period. Yah; well thank you for taking the time. Well again, with Bome ofthis, provided you dont drop bombs, its repeatable and thats what
attracted some people it. could fly over.... But why would you pull them back the middle ofthe flight? What are you going find out
midnight Sunday? Because, the period that you might there, the limited window, may not available and that sense you could try again, but the other hand, once you drop that ?omb you dont get try
again. And then even you hit him you dont know that you have strategic success and that
ultimately the problem. should
out you or? Ill call him. however you want play it. take your guidance and very grateful. And whats your schedule look like? leave early Wednesday morning and back Los Angeles but could come back ... Because going off AfgbanistanlPakistan Sunday. well try arrange it, ifhes here, before Wednesday; and ifnot well least establish
mechanism where you guys can work out. Okay; thank you, have good weekend. wonderful meeting you.
jjpD 1t;;3