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Judicial Watch • Opinion JW v Navy

Opinion JW v Navy

Opinion JW v Navy

Page 1: Opinion JW v Navy


Number of Pages:7

Date Created:September 19, 2013

Date Uploaded to the Library:February 20, 2014

Tags:scaparrotti, Lieutenant, Osama, Judgment, laden, redacted, Exemption, summary, EXECUTIVE, motion, ACLU, order, documents, Pentagon, government, watch, National, filed, document, judicial, EPA, IRS, ICE, CIA

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Plaintiff, 	Civil Case No. 12-1182 (RJL) 
SEP 2013 
Clf:rk u.s. o 
 net Bankruptc
Courts for the District Columbla 
(September, 2013) [Dkts. ##10,14) 
Plaintiff Judicial Watch Inc. ("Judicial Watch" "plaintiff') filed the instant 
action against the Department the Navy ("Navy" "defendant") July 18, 2012, challenging the Navy's redaction documents produced response plaintifrs Freedom lnformation Act, U.S.C.  552 ("FOIA"), request for records and 
communications related any funeral ceremony held for Osama bin Laden prior his 
burial sea the USS Carl Vinson May 2011. See Compl. [Dkt. #1]. Before 
the Court are the parties' cross-motions for summary judgment. Upon consideration 
the parties' pleadings, relevant law, and the entire record this case, the Court GRANTS 
defendant's Motion for Summary Judgment [Dkt. #10] and DENIES plaintiffs 
Cross-Motion for Summary Judgment [Dkt. #14]. 

Judicial Watch, non-profit organization that promotes government accountability, submitted FOIA request the Navy March 20, I2, seeking two 
categories documents: all records used relied during any funeral ceremony for 
Osama bin Laden's burial sea the USS Carl Vinson; and (2) any communications 
between government officials regarding any such funeral ceremony. See Deel. 
Lieutenant General Curtis Scaparrotti ("Scaparrotti Deel.") [Dkt. 0-1] The 
Navy conducted search for responsive records which located documents from the 
first category and ten documents from the second category. Id. Specifically, the 
Navy located ten email chains, totaling pages, regarding preparation for and execution Osama bin Laden's burial sea. Id. After conducting line-by-line review the 
responsive documents, the Navy redacted certain information before producing the 
documents plaintiff November 2012. Id. The redactions were made pursuant FOIA Exemptions and Id.; see U.S.C.  552(b)( l), (3), (5), (6). 
"FOIA cases are typically and appropriately decided motions for summary judgment." Judicial Watch, Inc. DOD, 12-CV-49 RC, 2013 4536 118, 
(D.D.C. Aug. 28, 3). Under Federal Rule Civil Procedure 56, summary judgment appropriate where the pleadings, stipulations, affidavits, and admissions case show "that there genuine dispute any material fact and the movant entitled judgment matter law." Fed. Civ. 56(a), (c); see also Celotex Corp. 
Catrett, 477 U.S. 317, 322 (1986). The court may accept true factual assertions the moving party's declarations unless the opposing party submits its own declarations 
documentary evidence the contrary. Neal Kelly, 963 F.2d 453, 456 (D.C. Cir. 
1992). The court must accept true the evidence of, and draw "all justifiable 
inferences" favor the party opposing summary judgment. Anderson Liberty 
lobby, Inc., 477 U.S. 242, 255 (1986). genuine issue exists only where "the evidence such that reasonable jury could return verdict for the nonmoving party." Id. 248. the FOIA context, the government must demonstrate the absence genuine dispute regarding the adequacy its search for production responsive records. 
Nat Wh;stleblower Ctr. US. Dep Health Human Servs., 849 Supp. 13, 21-22 (D.D.C. 2012). Because the information asymmetry between FOIA plaintiffs and the government, courts require the government provide detailed description any information withheld under any the FOIA exemptions enumerated U.S.C.  552(b). Oglesby US. Dep Army, F.3d 1172, 1178 (D.C. Cir. 1996). The government typically presents its justification for withholding certain information declaration affidavit referred "Vaughn index" after the case Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973). Such justification presumed submitted good faith. See SafeCard Servs., Inc. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). 
Judicial Watch claims that the Navy improperly redacted information from Documents and pursuant FOIA Exemption See PI. Cross-Mot. for Summ. [Dkt. 14] 1-2. disagree. Because the redactions were proper and necessary prevent disclosure sensitive operational details and protect our national security, defendant's Motion for Summary Judgment must GRANTED and plaintiffs Cross-Motion for Summary Judgment must DENIED. How so? 
FOIA was enacted that citizens could discover "what their government to.'' U.S. Dep'tJustice Reporters Comm.for Freedom the Press, 489 U.S. 749, 773 1989). Recognizing "that public disclosure not always the public interest," however, the FOIA statute "provides that agency records may withheld from disclosure under any one the nine exemptions defined U.S.C.  552(b)." Ba/ridge Shapiro, 455 U.S. 345, 352 (1982). FOIA Exemption applies information that "(A) specifically authorized under criteria established Executive Order kept secret the interest national defense foreign policy and (B) [is] fact properly classified pursuant such Executive order." U.S.C.  552(b)( l). Our Circuit has sustained redaction under this exemption upon the government's plausible assertion that the redacted information properly classified. See ACLUv. DOD, 628 F.3d 612, 625 
(D.C. Cir. 2011); Morley CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007). 
Pursuant FOIA Exemption the Navy redacted classified information regarding the military's preparation for and execution Osama bin Laden's burial sea from Documents and See Scaparrotti Deel. 16, 21-22. The Navy has provided logical and plausible assertion, through the Declaration Lieutenant General Scaparrotti, that the redacted information properly classified under Executive Order 13526, Fed. Reg. 707 (Dec. 29, 2009). Lieutenant General Scaparrotti the Director the Joint Staff the Pentagon. See Scaparrotti Deel. original classification authority who has served the United States Armed Forces for over years. See id. His declaration adequately describes the information redacted from Documents and and offers logical and plausible explanation why disclosure poses threat our national security. See id. 16, 21-22, 24-27. 
Information may only classified under Executive Order 13526 "unauthorized 
disclosure the information reasonably could expected result damage the 
national security." Exec. Order No. 13526  1.1 (a)(4). this case, Lieutenant General 
Scaparrotti reviewed the ten responsive documents and determined portions them 
properly classified under two sections Executive Order 13526:  1.4(a), which protects 
military plans, weapons systems, operations, and  1.4( d), which concerns foreign 
relations foreign activities. See Scaparrotti Deel. 1-2, 
Lieutenant General Scaparrotti declaration thoroughly outlines the information 
redacted from Documents and well the potential consequences its 
disclosure our national security. Id. 16, 21-22, 24-27. Osama bin Laden's burial sea involved military personnel and was carried out military vessel with military equipment the context highly sensitive, overseas operation. Id. The information redacted from Documents and includes sensitive information about timing, personnel, procedures, and protocols. Id. 16, 21-22. such, disclosure could harm our national security compromising military operational secrets that could used thwart future operations. Id. 24. There also plausible reason believe that disclosing the redacted information could harm our national security inciting al-Qai 'da members retaliate against United States citizens and interests. See id. 25-26. the past, al-Qai 'da has attempted recruit and incite violence claiming that Osama bin Laden, its former leader and founder, did not receive appropriate Islamic burial. Id. 25. Reasonably analogous disclosures, including erroneous report Newsweek that American soldiers had desecrated the Koran, have led widespread violence and anti-American protests the Middle East. Id. 26. sum, Lieutenant General Scaparrotti's assertion that disclosure the redacted information poses potential threat national security easily crosses the logical and plausible threshold recently affirmed our Circuit. See Judicial Watch DOD, 715 F.3d 937, 943 (D.C. Cir. 2013). 
Finally, conclude that defendant has properly withheld the headings the ten responsive documents, which were added the documents during processing response plaintiff's FOIA request. See Scaparrotti Deel. Because these headings post-date the Navy's search for documents response plaintiff's FOIA request, they are definition nonresponsive. addition, the headings are protected under the attorney work-product prong ofFOIA Exemption see U.S.C.  552(b)(5), which protects information "normally privileged the civil discovery context," U.S. Dep Justice 
Julian, 486 U.S. (1988). 
Thus, for all the foregoing reasons, the Court GRANTS defendant's Motion for Summary Judgment and DENIES plaintiffs Cross-Motion for Summary Judgment. Order consistent with this decision accompanies this Memorandum Opinion.