Osen LLC v. United States Central Command

969 F.3d 102

• Court: Court of Appeals for the Second Circuit
• Decided: August 10, 2020
• Docket: 19-1577
• Status: Published

Opinion

19-1577 Osen LLC v. United States Central Command UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________

August Term 2019

(Argued: March 16, 2020 | Decided: August 10, 2020)

Docket No. 19-1577

OSEN LLC,

Plaintiff-Appellee,

v.

UNITED STATES CENTRAL COMMAND,

Defendant-Appellant. ______________

Before: WESLEY, CARNEY, MENASHI, Circuit Judges.

Appeal from a judgment of the Southern District of New York (Failla, J.), denying in part United States Central Command’s (“CENTCOM”) motion for summary judgment. Osen LLC (“Osen”) brought this action under the Freedom of Information Act (“FOIA”) seeking military investigation records from terrorist attacks that occurred in Iraq between 2004 and 2011. Applying the official disclosure doctrine, the district court found that CENTCOM could not withhold certain classified images contained in those records, because another component of the Department of Defense (“DoD”) had previously disclosed that information. We disagree. Although similar images from other, unrelated terrorist attacks have been produced in the past, no component of DoD has ever disclosed images of the attacks for which Osen seeks records in this case. CENTCOM therefore did not waive its right to withhold the images that Osen requested under the official disclosure doctrine. Further, because we must give substantial weight to CENTCOM’s position that disclosure of those classified images will pose a risk to national security, we find that CENTCOM properly withheld the images at issue under the first exemption from FOIA production. Accordingly, we VACATE the judgment in part and REVERSE the decision of the district court. We REMAND so that the district court may enter an order and judgment consistent with this opinion. Judge Menashi concurs in a separate opinion. _________________

MICHAEL J. RADINE (Gary M. Osen, on the brief), Osen LLC, Hackensack, NJ, for Plaintiff-Appellee.

ANDREW E. KRAUSE, Assistant United States Attorney (Christopher Connolly, Assistant United States Attorney, on the brief), for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY, for Defendant- Appellant. _________________

WESLEY, Circuit Judge:

Osen LLC (“Osen”) has filed a large number of lawsuits on behalf of United

States servicemembers and their families against Iran and various Iranian and

Western financial institutions. Osen’s clients were injured or killed in terrorist

attacks that occurred in Iraq between 2004 and 2011; their lawsuits allege that Iran

and the defendant financial institutions helped fund, train, and support terrorists

responsible for those attacks.

2 To meet its burden of proving Iran’s responsibility for the terrorist attacks

at issue, Osen sought military investigation records from Department of Defense

(“DoD”) entities, including United States Central Command (“CENTCOM”).

Specifically, Osen sought to confirm the types of explosive weapons used in each

attack, reasoning that, if the weapons were too sophisticated for Iraqi terrorists to

have manufactured themselves, this demonstrated the terrorists’ affiliation with

Iran, and by extension, Iran’s causal role in the servicemembers’ injuries.

Osen brought this action under the Freedom of Information Act (“FOIA”),

5 U.S.C. § 552, arguing that, in response to its request for these military

investigation records, CENTCOM improperly withheld, under various FOIA

exemptions, documents and information to which Osen believed it was entitled.

Upon cross-motions for summary judgment, the United States District Court for

the Southern District of New York (Failla, J.) determined in relevant part that

CENTCOM could not withhold certain classified images because another

component of DoD had already officially disclosed the information that those

images conveyed.

CENTCOM appealed. For the reasons stated below, we reverse the district

court’s decision.

3 BACKGROUND

Osen is a New Jersey-based law firm that represents hundreds of United

States servicemembers and the families of United States servicemembers injured

or killed in terrorist attacks that occurred in Iraq between 2004 and 2011. On behalf

of these clients Osen has sued the Islamic Republic of Iran and various Iranian and

Western financial institutions for allegedly funding, training, and supporting the

terrorists responsible for those devastating attacks.

To show that the attacks were committed by Iranian-backed terrorists, Osen

intends to argue that the weapons used in the attacks were more sophisticated and

destructive than the types of weapons terrorists in Iraq would or could have

otherwise obtained themselves, thereby suggesting Iran provided the weapons.

One such weapon is called an Explosively-Formed Penetrator (“EFP”)—an

explosive device that the terrorists used to penetrate armored vehicles and maim

the servicemembers inside. Military investigation records contain information

and details about weapons used in terrorist attacks. Osen therefore submitted a

FOIA request to CENTCOM, seeking “reporting or investigative documents”

related to 92 terrorist attacks involving the use of EFPs. J.A. 20–23.

4 CENTCOM is “one of nine combatant commands of the United States armed

forces; it directs and enables military operations and activities with allies and

partners” within, among other areas, the Middle East. J.A. 118. CENTCOM

produced six unclassified documents in response to Osen’s FOIA request. Osen

thereafter submitted 168 additional FOIA requests to CENTCOM related to

numerous different EFP attacks.

One type of record that Osen requested from CENTCOM is called an Army

Regulation (“AR”) 15-6 investigation report, created by the Army after an incident

in which a servicemember is wounded or killed in action. As relevant here, after

an EFP attack in Iraq, the military investigates the attack scene, takes pictures of

the damaged armored vehicle, and records those images along with its findings in

the AR 15-6 investigation report, thus memorializing the damage from the attack.

CENTCOM conducted database searches and found 36 responsive AR 15-6

investigation reports. CENTCOM cannot, however, produce AR 15-6 reports

“without the approval of a properly designated release authority” from the Army.

J.A. 124, 152. It therefore referred the 36 responsive reports to United States Army

Central (“ARCENT”)—the Army unit that conducted those investigations—to

determine whether to produce the reports to Osen. ARCENT is “an operational-

5 level Army force that exercises administrative control of all U.S. Army forces in

the Middle East.” J.A. 123. ARCENT has its own FOIA staff and procedures, and

it handles FOIA requests independently from CENTCOM. Osen also submitted

separate FOIA requests to ARCENT, which were related to its lawsuits against

Iran but which Osen does not challenge in this action.

After Osen “receiv[ed] what [it] felt was insufficient production” from

CENTCOM, J.A. 104, Osen filed a complaint in federal district court to obtain

additional and lesser-redacted records under FOIA. During the district court

proceedings, CENTCOM and ARCENT each produced several thousands of pages

of documents in response to Osen’s first and subsequent FOIA requests, including

14 of the 36 AR 15-6 investigation reports that CENTCOM referred to ARCENT.

Unable to resolve Osen’s remaining challenges to still-unproduced

documents, the parties eventually filed cross-motions for summary judgment. The

district court found that ARCENT’s FOIA production to Osen of images showing

EFP strike damage from a terrorist attack related to Osen’s lawsuits operated as a

waiver with respect to CENTCOM’s right to withhold similar images from all

other terrorist attacks. The district court therefore ordered CENTCOM “to

produce the redacted photographs of EFP strikes” from all the attacks at issue.

6 Special App. 32. CENTCOM appealed and claims the order covers “more than 500

pages of classified photographs from numerous distinct attacks.” Appellant Br.

13.

DISCUSSION

This case requires us to determine whether CENTCOM waived its right to

withhold classified information from FOIA production under the official

disclosure doctrine, and if not, whether CENTCOM properly invoked the first

exemption from production under FOIA to withhold the requested information as

classified. We review de novo a district court’s decision on summary judgment in

a FOIA case. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009).

“The mandate of [] FOIA calls for broad disclosure of Government records.”

CIA v. Sims, 471 U.S. 159, 166 (1985). It generally provides that “each agency, upon

any request for records . . . shall make the records promptly available to any

person.” 5 U.S.C. § 552(a)(3)(A).

FOIA does not compel the disclosure of all agency information, however.

There are nine exemptions to FOIA’s general rule of production, pursuant to

which agencies can withhold certain categories of documents or information.

See id. § 552(b)(1)–(9). Only the first exemption is relevant here. Exemption 1

7 excludes from disclosure material that is “(A) specifically authorized under

criteria established by an Executive order to be kept secret in the interest of

national defense or foreign policy and (B) are in fact properly classified pursuant

to such Executive order.” Id. § 552(b)(1). In other words, Exemption 1 protects

information about national security that is classified as secret pursuant to an

Executive order.

Pursuant to Executive Order 13,526, information can be classified as secret

if “its unauthorized disclosure could reasonably be expected to cause identifiable

or describable damage to the national security . . . and it pertains to” certain

categories of information including “military plans, weapons systems, or

operations,” and “vulnerabilities or capabilities of systems, installations,

infrastructures, projects, plans, or protection services relating to the national

security.” Classified National Security Information, Exec. Order No 13,526

§§ 1.2(2), 1.4(a), (g), 75 Fed. Reg. 707, 709 (Dec. 29, 2009).

As relevant to this appeal, Osen challenged CENTCOM’s withholdings

under Exemption 1 of classified images that show damage caused by EFPs in these

terrorist attacks—specifically, the “strike points” where an EFP penetrated an

armored vehicle. J.A. 105. Osen relied on several past DoD disclosures of images

8 of EFP damage to argue that CENTCOM waived its right to withhold similar EFP

damage images from other attacks under the official disclosure doctrine, which we

discuss at length below. 1

The district court divided the prior disclosures into two categories: (1) the

“Prior CENTCOM Disclosures” and (2) ARCENT’s FOIA disclosures in this case

(to which we refer as “ARCENT’s FOIA Production”). Special App. 15, 19.

The Prior CENTCOM Disclosures included (1) CENTCOM’s FOIA

production in a different case of “clear and close up” EFP strike photographs from

a separate and unrelated terrorist attack; (2) a DoD press conference in which

agency representatives discussed the dangers of EFPs using an accompanying

slide deck with images of EFP damage; (3) a CNN video which displayed “a close-

1 Osen also challenged CENTCOM’s decision to withhold information about EFP size under Exemption 1; CENTCOM’s redactions to names that Osen claimed identified terrorists under Exemption 6 (i.e., information withheld for privacy reasons, see 5 U.S.C. § 552(b)(6)); and the AR 15-6 investigation reports CENTCOM referred to ARCENT that ARCENT had not yet produced. The district court found that CENTCOM waived Exemption 1 under the official disclosure doctrine with respect to the withheld EFP size information. Separately, the district court found that CENTCOM satisfied the requirements to redact names under Exemption 6. Finally, the district court did not find anything awry with CENTCOM’s referrals to ARCENT of the AR 15-6 investigation reports. CENTCOM does not challenge the district court’s order as to EFP size information on appeal, nor does Osen challenge the district court’s order as to CENTCOM’s name redactions or the ARCENT referrals; these decisions are therefore not before us for review. 9 up picture of an EFP strike” that DoD released to the media; and (4) CENTCOM’s

other disclosures in this case, which Osen argues often reveal EFP strike points.

Id. at 15–16.

With respect to this category of disclosures, the district court accorded

substantial weight to the declaration of CENTOM’s Chief of Staff, Major General

Terry Ferrell, that “[e]ach individual photograph showing the penetration of

armor by EFPs that has been withheld . . . reveals information about the

vulnerabilities of American war-fighting equipment.” J.A. 156. The district court

also accepted CENTCOM’s argument that “each attack presents its own specific,

individualized factual scenario,” and, accordingly, found that prior disclosure of

information about one attack does not “categorically waive” the right to withhold

information under Exemption 1 for other attacks. Special App. 18.

The district court explained that the Prior CENTCOM Disclosures that

concerned EFPs generally or general vulnerabilities of armored vehicles were “too

broad” to constitute official disclosures of individual attacks, and that the Prior

CENTCOM Disclosures with images of EFP damage from other attacks were “too

narrow” to constitute official disclosure of the attacks at issue here. Id. at 18–19.

10 Thus, the district court concluded that the Prior CENTCOM Disclosures did not

compel production of withheld images of EFP damage from other attacks.

With respect to ARCENT’s FOIA Production, however, the district court

found that ARCENT “provide[d] specific photographs connected to a specific

attack, with dates and detailed location information” that was at issue in Osen’s

lawsuits. 2 Id. at 21. According to the district court, ARCENT’s FOIA Production

“provide[d] the precise type of information that General Ferrell suggests would

reveal vulnerabilities through an official disclosure”; the district court therefore

interpreted ARCENT’s FOIA Production as suggesting that ARCENT “made a

determination that this type of material does not pose a risk to national security.”

Id. The district court concluded that the images in ARCENT’s FOIA Production

constituted a subject matter waiver under the official disclosure doctrine and

“require[d] disclosure of any similar photographs of EFP strikes withheld by

CENTCOM.” Id.

2This finding states the obvious. A photograph necessarily memorializes a specific event, frozen in time. Given that fact, it is somewhat confusing how the district court concluded that the photographs ARCENT produced were any different in this respect from other photographs that DoD has produced. 11 I. Official Disclosure Doctrine

Under the official disclosure doctrine, an agency may not invoke

Exemption 1 “to prevent public disclosure when the government has officially

disclosed the specific information being sought.” Hudson River Sloop Clearwater, Inc.

v. Dep't of Navy, 891 F.2d 414, 421 (2d Cir. 1989) (emphasis in original). The official

disclosure doctrine prohibits an agency from withholding “even properly

classified information once the Agency itself has officially disclosed it.” Wilson v.

CIA, 586 F.3d 171, 186 (2d Cir. 2009).

The test we articulated in Wilson is a “strict” one: “Classified information

that a party seeks to obtain or publish is deemed to have been officially disclosed

only if it (1) ‘[is] as specific as the information previously released,’ (2) ‘match[es]

the information previously disclosed,’ and (3) was ‘made public through an official

and documented disclosure.’” Id. (alterations in original) (quoting Wolf v. CIA, 473

F.3d 370, 378 (D.C. Cir. 2007)) (citing Hudson River Sloop Clearwater, 891 F.2d at 421).

All three prongs of the Wilson test must be met before an agency will be deemed

to have officially disclosed classified information.

Neither we nor the D.C. Circuit (from where the official disclosure doctrine

originates) has delineated what a FOIA plaintiff must establish to satisfy the first

12 or second prong of the Wilson test. 3 Rather, much of the caselaw refers to and

analyzes whether “the specific information” has already been produced by the

government, as that phrase is used (including in Hudson River Sloop Clearwater) to

describe a disclosure that triggers the official disclosure doctrine generally, rather

3 The third prong of the Wilson test is not at issue in this case. CENTCOM does not challenge the official nature of any of the disclosures upon which Osen relies in arguing that CENTCOM waived its Exemption 1 rights. Accordingly, for purposes of this decision, we assume that each of the prior disclosures upon which Osen relies is an “official” disclosure under the third prong of the Wilson test. CENTCOM also does not challenge the district court’s finding that any waiver by ARCENT also applies to CENTCOM. As is relevant to that finding, CENTCOM referred to ARCENT the FOIA decision of whether to produce records that contain EFP strike point images. Though CENTCOM did not refer the decision on whether to produce every document that Osen sought, or even the majority of Osen’s requests, CENTCOM and ARCENT nevertheless displayed a telling level of coordination and deference with respect to the decision of whether to disclose this type of information to Osen in this case. As we discuss further below, there is no difference in the character of EFP strike point images across terrorist attacks, regardless of who is the custodian of those images. In other words, it is logical in this case that ARCENT’s disclosure could implicate the official disclosure doctrine for CENTCOM with respect to EFP strike point images, even though each DoD subcomponent has its own FOIA staff and procedures. This might not be the case in a factually distinct scenario. As the concurrence suggests, disclosure by one component of an Executive department or agency does not automatically implicate the official disclosure doctrine for another component of the same department or agency. Cf. 5 U.S.C. § 551(1) (defining “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency”). Because neither party has briefed this issue, we decline to comment further, other than to caution against extrapolating from or taking this point out of context, because what constitutes an “agency” under FOIA need not but may be the equivalent of the government entity itself, depending on the facts of the case. 13 than examining whether information is “as specific as” a prior disclosure, as that

phrase is used in the Wilson test.

This case demands a more granular approach. We must parse out the first

two prongs of the Wilson test to determine whether the official disclosure doctrine

properly applies to compel the broad finding of waiver that Osen advances and

that the district court found.

The phrase “the specific information” logically covers the first two prongs

of the Wilson test: “the specific information” refers to information that is both “as

specific as” and “matches” information previously disclosed. Each serves a

distinct purpose. If information is as specific as but does not match previously

disclosed information, it cannot be “the specific information.” The same is true for

information that matches a prior disclosed subject but is more or less specific than

information previously disclosed; it also does not constitute “the specific

information” warranting application of the official disclosure doctrine. Thus, the

specificity and matching prongs work together to form the crux of the official

disclosure doctrine: “disclosure of similar information does not suffice; instead,

the specific information sought by the plaintiff must already be in the public

domain by official disclosure.” Wolf, 473 F.3d at 378 (emphasis in original).

14 There is no exhaustive list of factors a court must consider under either

prong. We also acknowledge that at times these prongs blend together, likely

because it is rare to encounter a scenario in which the result is different under each.

But delineating between the specificity and matching prongs of the Wilson test in

this case demonstrates two major flaws in the district court’s analysis. First, there

is no meaningful difference between the Prior CENTCOM Disclosures and

ARCENT’s FOIA Production. Second, images of EFP damage from different

terrorist attacks do not convey the same information such that disclosure of images

from one attack constitutes a blanket waiver for images of other attacks under the

official disclosure doctrine.

A. Specificity

Generally, for information to be “as specific as” that which was previously

disclosed, there cannot be any “substantive differences between the content of the

[publicly] released government documents and the withheld information.” Am.

Civ. Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 620–21 (D.C. Cir. 2011)

(“ACLU v. DOD”). For example, prior disclosure of “general descriptions” does

not waive Exemption 1 for withheld documents that are more “specific and

particular” and that “would reveal far more . . . than the previously released

15 records.” Id. at 621 (citation omitted). Thus, specificity concerns the quality or

kind of information about a particular topic that has been produced to the public.

Images of strike points from one EFP attack are “as specific as” images of

strike points from another EFP attack. Each set of images conveys the same level

and type of details across various attacks: that an explosive weapon penetrated an

armored vehicle and caused damage to the vehicle and its passengers at a certain

point in time and at a certain location.

Both the Prior CENTCOM Disclosures and ARCENT’s FOIA Production

included images of EFP strike points from terrorist attacks. Osen requests the

same information from CENTCOM with respect to the remaining withheld images

showing EFP damage of the attacks forming the subject of Osen’s lawsuits. There

is no principled distinction between ARCENT’s FOIA Production—which the

district court found constituted a waiver—and the Prior CENTCOM Disclosures—

which the district court concluded did not—either from the other or from the

remaining withheld images. Each of the disclosed and withheld images are

equally specific; they tell the same stories, but about different attacks. 4

4On appeal, Osen also relies on several other DoD disclosures that the district court did not explicitly consider. Those additional disclosures do not change the outcome on

16 The only way in which some of the Prior CENTCOM Disclosures are less

specific than ARCENT’s FOIA Production and the images CENTCOM withheld is

that they neither contextualize, nor identify, the attack which caused the EFP

damage displayed in the image. This lack of context is not uniform, however, as

demonstrated by the DoD press conference slide deck, which identified the

location and date of the attack that caused the damage seen in the photographs.

Thus, the specificity prong of our analysis provides no basis to distinguish

between the prior disclosures that the district court found did not waive

Exemption 1, and the prior disclosures that the district court found did. Rather,

all the prior disclosures upon which Osen relies satisfy the specificity prong of the

Wilson test.

B. Matching

That does not end the inquiry. Next, we must consider Wilson’s matching

prong, under which “a plaintiff asserting a claim of prior disclosure must bear the

initial burden of pointing to specific information in the public domain that appears

appeal. They are either fairly characterized as general disclosures about the vulnerabilities of armored vehicles or the effectiveness of EFPs (which—as the district court suggested—would be too broad to trigger the official disclosure doctrine) or they are additional images of EFP attack damage, which have the same effect as the images of EFP damage that the district court did explicitly consider. 17 to duplicate that being withheld.” Wolf, 473 F.3d at 378 (emphasis added) (quoting

Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). 5

Although we have questioned whether the matching prong “require[s]

absolute identity,” 6 we have repeatedly acknowledged that Wilson is a “precise

and strict test,” under which we have explained that even a “substantial overlap”

between the requested information and previously disclosed information is not

5 In explaining the origin of the official disclosure doctrine, a panel of this Court in New York Times Co. v. U.S. Department of Justice, 756 F.3d 100, 120 n.19 (2d Cir. 2014), noted in dicta that, although “Wilson remains the law of this Circuit,” “a rigid application of it may not be warranted in view of its questionable provenance.” To briefly recount that history, our Circuit adopted the official disclosure doctrine from a line of D.C. Circuit cases, the first of which relied in part on a district court decision and never articulated a “matching” requirement. Id. Thus, the New York Times panel expressed skepticism with overly relying on the matching prong of the Wilson test. Osen has only urged us not to apply a more rigid version of the Wilson test than is warranted. Ultimately—as we recognized in New York Times—Wilson remains the law in this Circuit. Until it is overturned en banc or by the Supreme Court, we will continue to apply Wilson. In fact, this case demonstrates how each prong can serve a distinct purpose in determining whether an agency has disclosed “the specific” information at issue, thus triggering application of the official disclosure doctrine. Wilson, 586 F.3d at 186 (emphasis in original) (quoting Hudson River Sloop Clearwater, 891 F.2d at 421). 6 By contrast, the D.C. Circuit appears to “insist[] on exactitude” under the matching prong, in recognition of “the Government’s vital interest in information relating to national security and foreign affairs.” Wolf, 473 F.3d at 378 (citations omitted); accord ACLU v. DOD, 628 F.3d at 621 (citation omitted). Under this interpretation, the fact that a “FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed,” N.Y. Times, 756 F.3d at 120, is a feature, not a bug, of the official disclosure doctrine, because it prevents a FOIA requester from accessing undisclosed national security information. 18 enough to establish waiver. N.Y. Times v. CIA, 965 F.3d 109, 116, 119 (2d Cir. 2020).

Rather, there must be enough of an overlap in subject matter between disclosed

and withheld records to fairly say that the two records “match”—in other words,

that they present the same information about the same subject. See Match,

Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary

/match (defining “match” to include “to put in a set possessing equal or

harmonizing attributes” and “to cause to correspond”); see also Fitzgibbon v. CIA,

911 F.2d 755, 766 (D.C. Cir. 1990) (noting that a “prior disclosure waiver would not

operate on information pertaining to a time period later than the date of the

publicly documented information” because “the fact that information resides in

the public domain does not eliminate the possibility that further disclosures can

cause harm to intelligence sources, methods and operations” (citations omitted)).

Matching, by comparison to specificity, is therefore a question of what topics have

already been produced to the public.

Wilson’s matching prong is dispositive in this case. 7 Images of damage from

one EFP attack do not match images of damage from another EFP attack, and for

7Both parties seem to agree that this case turns on the matching prong. For example, CENTCOM summarized its appellate argument as follows: “because each EFP attack

19 that reason, none of the prior disclosures upon which Osen relies triggers the

official disclosure doctrine for additional images from other attacks.

Take, for example, images of strike points and damage from Attack A and

Attack B. Attacks A and B happened in different years, at separate locations, and

involved different models of an armored vehicle. Each set of EFP strike point

images provides the same kind and type of information about the attack it

memorialized. But the images from Attack A say nothing about what happened

during Attack B, and vice versa. In other words, the subject matter, facts, and

details conveyed by one set of images are unique to that attack and are different

from the subject matter, facts, and details conveyed by the other set of images—

the information does not match.

Each of the prior disclosures at issue contains images of strike points from

EFP attacks. Each disclosure reveals information about the vulnerabilities with

which General Ferrell expressed concern in his affidavit—whether it be the date

and location of the attack, the type of armor penetrated, the fact that an armored

presents a distinct set of factual circumstances, photographs of damage to American military equipment from one EFP attack do not ‘match’ photographs of damage to different American military equipment from different EFP attacks.” Appellant’s Br. 2. Osen responded in its own brief employing the “matching” terminology as well. 20 vehicle was hit by an EFP, or how and where that vehicle was damaged. But each

disclosure says nothing about the attacks that the other disclosures depict. More

importantly, the prior disclosures say nothing about the attacks from which

images of EFP damage have never been disclosed.

Accordingly, each set of images effects an Exemption 1 waiver as to the same

information about the specific attack to which they relate (as the district court

found and as CENTCOM concedes); but none effects a blanket subject-matter

waiver of Exemption 1 for all images of EFP damage from every terrorist attack

across the board. The district court erred in finding that ARCENT’s FOIA

Production triggered the official disclosure doctrine and operated as a waiver of

CENTCOM’s Exemption 1 rights to withhold images showing EFP damage from

terrorist attacks from which similar images have never been disclosed to the

public.

The district court’s justifications for its conclusion were that “CENTCOM

d[id] not address distinctions between what ARCENT has disclosed and the

information withheld,” Special App. 20, and that ARCENT “[e]vidently . . . made

a determination that this type of material does not pose a risk to national security,”

id. at 21. But the district court found that CENTCOM’s explanation that each EFP

21 strike represents a unique factual scenario was sufficient to justify CENTCOM’s

withholdings in light of the Prior CENTCOM Disclosures. Because there is no

meaningful difference between the Prior CENTCOM Disclosures and ARCENT’s

FOIA Production, there was no need for CENTCOM separately to address the

ARCENT production. The outcome for each category should have been the same.

Further, whether information is or is not properly classified plays no

independent role in the official disclosure doctrine analysis. The relevant

considerations are the three prongs of the Wilson test—which together determine

whether additional disclosure of information will, as the Government contends,

harm national security. See ACLU v. DOD, 628 F.3d at 625 (“The ‘officially

acknowledged’ test recognizes that even if information exists in some form in the

public domain that does not mean that official disclosure will not cause harm

cognizable under a FOIA exemption.” (citation omitted)). Even though General

Ferrell acknowledged that ARCENT is “the [DoD] component best able to

determine whether to disclose the records,” J.A. 151, ARCENT’s reasons for

disclosing the records is a separate consideration from whether the information

that was disclosed waived Exemption 1 under the official disclosure doctrine. The

22 concern is whether additional disclosure would provide meaningfully different

information such that production would cause harm. 8

In that vein, ARCENT’s FOIA Production does not contradict General

Ferrell’s declaration that a large disclosure of all such images will pose a unique

risk to national security that smaller, isolated productions of the same type of

images do not. ARCENT disclosed a small number of images that pertain to a

single attack; it did not produce images of EFP damage en masse. What matters as

it relates to waiver is the lack of any identifiable distinction between ARCENT’s

FOIA Production and the other disclosed images. And, more importantly, there

is no basis in the record to support the district court’s dispositive finding that

ARCENT has deemed this entire category of military records as not posing a risk

to national security and therefore ordering their production, other than the fact of

the ARCENT production itself.

8 Even if “ARCENT ha[d] made a determination that this type of material does not pose a risk to national security,” Special App. 21, the specificity and matching prongs of the Wilson test require us to look at the specific information that has been disclosed previously—not presumed policy judgments underlying those disclosures—to establish waiver. See ACLU v. DOD, 628 F.3d at 621. The legitimacy of those types of policy judgments is considered when determining whether an entity has appropriately claimed an exemption. See Discussion § II, infra. 23 Thus, the district court erred in holding that ARCENT’s FOIA Production

waived Exemption 1 as to the other images of EFP damage that CENTCOM

withheld as classified. As the district court recognized with respect to the Prior

CENTCOM Disclosures, an official disclosure of EFP strike point images waives

Exemption 1 only as to the same information about the same attack that those

images memorialize. That same disclosure does not constitute a subject matter

waiver for all images of EFP damage across all terrorist attacks.

II. FOIA Exemption 1

Resolution of Osen’s claim of waiver does not bear on the question of

whether CENTCOM properly invoked Exemption 1 by withholding images of EFP

damage. Although the district court chose not to answer the exemption question

once it found waiver, the court nevertheless made all the factual findings in its

waiver analysis needed to resolve the exemption issue. 9 Cf. Wright v. N.Y. State

Dep’t of Corr., 831 F.3d 64, 76 (2d Cir. 2016).

9 Indeed, in response to the district court’s attention to the merits of the exemption issue, both parties have presented substantial argument in their appellate briefs about the legitimacy of CENTCOM’s national security justifications for its Exemption 1 withholdings. 24 “[A]n agency may invoke a FOIA exemption if its justification ‘appears

logical or plausible.’” Am. Civ. Liberties Union v. Dep’t of Justice, 681 F.3d 61, 69 (2d

Cir. 2012) (“ACLU v. DOJ”) (quoting Wilner, 592 F.3d at 73). “The agency asserting

the exemption bears the burden of proof, and all doubts as to the applicability of

the exemption must be resolved in favor of disclosure.” Wilner, 592 F.3d at 69.

“The agency may meet its burden by submitting a detailed affidavit showing that

the information logically falls within the claimed exemptions.” Id. at 68 (quoting

Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996)).

“Summary judgment is appropriate where the agency 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.’” ACLU v. DOJ, 681 F.3d at 69 (quoting Wilner, 592 F.3d at 73).

“In the national security context, however, we ‘must accord substantial weight to an

agency’s affidavit concerning the details of the classified status of the disputed

record.’” Id. (emphasis in original) (quoting Wolf, 473 F.3d at 374).

25 General Ferrell stated the following about CENTCOM’s decision to

withhold images of EFP damage in his declaration supporting CENTCOM’s

motion for summary judgment:

The largest category of withheld materials consists of photographs, text, and graphics depicting specific details of how EFPs/[Improvised Explosive Devices] were able to effectively penetrate the armor on American military vehicles. CENTCOM has withheld a substantial volume of photographs depicting damage to vehicles caused by EFPs. . . . [P]hotographs of damage to vehicles— while potentially not as revealing if viewed in isolation—are particularly sensitive when taken together with all of the other detailed information contained in the documents that have been released to [Osen]. The publication of these photographs alongside information about the composition of EFPs, the placement of EFPs, the number of EFPs contained in a particular attack array, the distance from EFPs to the affected vehicles, and the height at which EFPs were placed would reveal to American adversaries specific and detailed information about the vulnerabilities of American war-fighting equipment. This type of detailed information is not publicly available in this form or with this level of specificity, and would clearly illustrate the effectiveness of particular types of EFPs and combinations of critical variables.

These considerations are sufficient to warrant the classification of each photograph relating to each individual attack at issue in [Osen’s] FOIA requests. The potential harm is magnified, however, when considering the more than 500 pages containing photographs that [Osen] seeks to have released. Taken together, this trove of valuable information would provide American adversaries with enough material to draw conclusions about areas of vulnerability across multiple attacks, with clear depictions in official government documents to supplement whatever anecdotal information may be

26 available to adversaries based on past deployment of EFPs on the battlefield. Public disclosure of this information reasonably could be expected to cause serious damage to the national security by revealing in considerable and precise detail the vulnerabilities and capabilities of critical military equipment and infrastructure, and it therefore remains properly classified in accordance with Sections l.4(a) and l.4(g) of Executive Order 13,526.

J.A. 131–32 (paragraph numbers omitted).

Osen argues that, because CENTCOM never disclosed the “other detailed

information” that General Ferrell contends makes images of EFP damage

“particularly sensitive,” CENTCOM’s proffered “mosaic argument”—that

innocuous information becomes sensitive when considered alongside other

information in the public sphere—falls short. But this fails to consider the other

justifications for withholding the images that CENTCOM provided through

General Ferrell.

First, General Ferrell declared that the risk to national security is increased

by producing all of the approximately 500 pages of images that CENTCOM is

currently withholding pursuant to Exemption 1, regardless of whether it

withholds the “other detailed information.” Moreover, in his supplemental

affidavit, General Ferrell explained:

27 Each individual photograph showing the penetration of armor by EFPs that has been withheld from CENTCOM’s responses to [Osen’s] FOIA requests reveals information about the vulnerabilities of American war-fighting equipment. CENTCOM would have withheld each of these photographs even if it had been responding to separate FOIA requests from individual requestors on an incident-by- incident basis.

J.A. 156.

As the district court acknowledged, we cannot ignore either of these

declarations. To the contrary, in the national security context, we must give them

substantial weight. See ACLU v. DOJ, 681 F.3d at 69. We have repeatedly found

that it is appropriate to “defer[] to executive [declarations] predicting harm to the

national security, and have found it unwise to undertake searching judicial

review.” Am. Civ. Liberties Union v. Dep’t of Def., 901 F.3d 125, 134 (2d Cir. 2018)

(second alteration in original) (quoting ACLU v. DOJ, 681 F.3d at 70). “[G]iven

‘relative competencies of the executive and judiciary, we believe that it is bad law

and bad policy to “second-guess the predictive judgments made by the

government’s intelligence agencies.”’” Id. (quoting ACLU v. DOJ, 681 F.3d at 70-

71 (quoting Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C.

Cir. 2003))).

28 General Ferrell’s determination that disclosure of even an individual image

of EFP damage from a single attack can pose a risk to national security by

evidencing vulnerabilities of military armor is both logical and plausible. See

ACLU v. DOJ, 681 F.3d at 69. So too is his explanation that a disclosure of a

substantial number of images could pose a significantly greater risk to national

security than disclosure of just a handful. Accordingly, neither we nor the district

court are in any position to deem these approximately 500 pages of images

improperly withheld as classified.

The record does not suggest any bad faith on the part of DoD. See id. Indeed,

the district court expressly noted that “[g]iven CENTCOM’s accommodations

during this litigation, as well as its demonstrated willingness to address redactions

where [Osen] points to inconsistencies, . . . [there is] no reason to doubt

CENTCOM’s good-faith efforts . . . or its continued willingness to work with

[Osen] in addressing these disputes.” Special App. 29 n.7.

Nor does the record contradict the General’s conclusions. General Ferrell’s

declaration that a larger production of these types of images would endanger U.S.

armed forces is not inconsistent with the existence of those prior disclosures, as

Osen merely points to a handful of disclosures of images showing EFP damage

29 from different attacks during the relevant time period. The more images of

different attacks that become available to the public, the more adversaries might

learn about the Army’s weaponry, a potential development that CENTCOM

logically posits puts national security at risk. Of course, the more images of

individual attacks that components of DoD voluntarily release on a piecemeal

basis, the less compelling this position will become; but as it stands, CENTCOM’s

reasoning is sound, and entitled to substantial weight in its favor.

Accordingly, CENTCOM’s withholdings under Exemption 1 are

appropriate, unless Exemption 1 has already been waived with respect to specific

information about the specific attack at issue through prior official disclosure of

strike point images from that attack.

CONCLUSION

For the reasons stated above, we VACATE the judgment in part and

REVERSE the decision of the district court. We REMAND so that the district

court may enter an order and judgment consistent with this opinion.

30 MENASHI, Circuit Judge, concurring: I join the opinion of the court in full and write separately to address the district court’s conclusion that, under the official disclosure doctrine, it is not “appropriate to limit a waiver of Exemption 1 to subcomponents of the same agency.” Osen LLC v. U.S. Cent. Command, 375 F. Supp. 3d 409, 422 (S.D.N.Y. 2019).

I agree with the court that CENTCOM did not challenge this holding on appeal. And because the prior disclosures that Osen identifies do not match CENTCOM’s withholdings, we need not resolve this question to reverse the judgment of the district court. Still, the court appropriately cautions that “disclosure by one component of an Executive department or agency does not automatically implicate the official disclosure doctrine for another component of the same department or agency.” Ante at 13 n.3. Indeed, there are strong reasons to doubt the district court’s conclusion that one subcomponent can waive Exemption 1 for another subcomponent of the same agency.

First, the plain text of Exemption 1 permits an agency to withhold information “specifically authorized under … an Executive order to be kept secret in the interest of national defense or foreign policy” that is “in fact properly classified pursuant to such Executive order,” without regard to whether that information has been the subject of prior disclosures. 5 U.S.C. § 552(b)(1). We have therefore explained that an agency may withhold such information despite “widespread public discussion of [the] classified matter,” “statements made by a person not authorized to speak for the [a]gency,” or “release of information by another agency, or even by Congress.” Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009) (emphasis added). The district court assumed that “another agency” must mean a government authority without a common superior short of the President. See Osen, 375 F. Supp. 3d at 422. But the Freedom of Information Act (FOIA) defines “agency” to mean, among other things, “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 551(1) (emphasis added); see id. § 552(f). 1 Courts have applied this definition to conclude, for example, that the Centers for Disease Control and Prevention (CDC), the Public Health Service (PHS), and the National Institute for Occupational Safety and Health (NIOSH)—three subcomponents of the Department of Health and Human Services (HHS)—and the Federal Bureau of Prisons—a subcomponent of the Department of Justice—are each separate agencies for purposes of the FOIA and of the Administrative Procedure Act, which shares the same definition. Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1121 & n.2 (D.C. Cir. 1989); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1239 (10th Cir. 2005).

Because the FOIA’s provisions for disclosure and withholding apply to a subcomponent independent of its relationship with another subcomponent of the same or of a different parent agency, see 5 U.S.C. § 552(a)(3)(A), (8)(A), it would be anomalous to conclude that the subcomponent’s authority to withhold records depends on the independent decisions of another entity also considered an “agency” under the statute. Moreover, because the FOIA defines “agency” without regard to “whether or not it is within or subject to review by

1 “Section 552(f) of [the] FOIA incorporates the definition of ‘agency’ contained in section 551(1) of the APA by reference,” Grand Cent. P’ship. v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999), and “expand[s]” that definition “for FOIA purposes,” 1 KRISTIN E. HICKMAN & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 1.2, at 5 (6th ed. 2019).

2 another agency,” it would conflict with the statutory scheme for courts to engraft onto the FOIA a judge-made doctrine that gives this consideration dispositive weight.

Second, imputing waivers between subagencies that address FOIA requests independently, each with “its own FOIA staff and FOIA procedures,” Osen, 375 F. Supp. 3d at 415, would add unnecessary administrative burden. “There are currently one hundred agencies subject to the FOIA with several hundred offices that process FOIA requests.” 2 In the Department of Defense (DoD) alone, there are nineteen components that “have their own FOIA programs, including a FOIA appellate authority,” and thirteen additional components that “have their own FOIA programs” and a consolidated appellate authority. 3 Requiring each component of the DoD to involve itself in the work of thirty-one other components, on pain of potentially being forced to disclose information that has been

2 Office of Info. Policy, U.S. Dep’t of Justice, Frequently Asked Questions: Where do I send a FOIA request?, https://www.foia.gov/faq.html (last visited July 29, 2020). 3U.S. Dep’t of Def., Manual 5400.07, DoD Freedom of Information Act (FOIA) Program 6-7 (Jan. 25, 2017). These components include the Department of the Army, Department of the Navy, Department of the Air Force, Defense Commissary Agency, Defense Contract Audit Agency, Defense Contract Management Agency, Defense Finance and Accounting Service, Defense Health Agency, Defense Information Systems Agency, Defense Intelligence Agency, Defense Logistics Agency, Defense Security Service, Defense Threat Reduction Agency, Department of Defense Education Activity, National Geospatial-Intelligence Agency, National Reconnaissance Office, National Security Agency/Central Security Service, and Office of the Inspector General of the Department of Defense. Id.

3 properly classified in the interest of national security, would increase administrative costs significantly and without justification. 4

The FOIA has been criticized for imposing administrative burdens. 5 Justice Scalia, when a law professor, called it “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.” 6 We should not casually compound that burden through judge-made doctrines, such as the official disclosure doctrine, that fail to take account of the legal framework that governs FOIA administration. 7

4One researcher estimated “[t]he total cost of FOIA implementation, among cabinet-level departments from 1975 until 2015,” at $6.3 billion. A.J. Wagner, Essential or Extravagant: Considering FOIA Budgets, Costs and Fees, 34 GOV’T INFO. Q. 388, 393 (2017). “FOIA costs for the year 2015 [alone] amounted to $403 million.” Id. 5See Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 907, 937 (2006) (“Agency efforts to comply with FOIA are expensive …. Disclosure requirements create [additional] costs to government operations and the public in a number of ways [including] by forcing disclosures that actually harm national security.”). 6Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar.-Apr. 1982, at 14, 15. 7 We have previously suggested that the official disclosure doctrine is of “questionable provenance.” N.Y. Times Co. v. DOJ, 756 F.3d 100, 120 n.19 (2d Cir. 2014). But the doctrine ultimately seems to be an application of the requirement that an agency’s justification for invoking Exemption 1 be “logical or plausible.” Wilner v. NSA, 592 F.3d 60, 75 (2d Cir. 2009). It would be neither logical nor plausible for an agency to claim that information has been properly classified in the interest of national security when it has already publicly released the exact same information. For that reason, cases applying the official disclosure doctrine often come down to whether it is logical or plausible that release of the withheld information would reveal something else. See, e.g., N.Y. Times v. CIA, 965 F.3d 109, 122 (2d Cir. 2020) (“It is still ‘logical or plausible’ that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not

4 Third, both the FOIA statute and implementing regulations adopted by the DoD contemplate the potential “need for consultation … with another agency … or among two or more components of [an] agency.” 5 U.S.C. § 552(a)(6)(B)(iii)(III) (emphasis added); see also 32 C.F.R. § 286.7(d)(1) (“[T]he DoD Component initially processing the request should typically consult with all interested DoD Components or other Federal agencies prior to making a release determination.”). It would undermine this scheme if one DoD component’s refusal or failure to consult with another DoD component could waive the second component’s ability to withhold records under Exemption 1.

Observers might assume that subagencies within the same department must follow common policies or share common interests. But “agencies, like nearly all large organizations, are not unitary actors. They are fractured internally.” 8 “Beneath the surface of the administrative state are constant battles, between and within agencies,” and indeed “like the conflict between agencies, subagencies can clash.” 9 When subagencies “share overlapping duties,” as would likely be the case when subagency records contain common information, rivalry is at least as likely as cooperation. 10 So

already officially acknowledged and thereby harm national security interests.”); ACLU v. CIA, 710 F.3d 422, 429 (D.C. Cir. 2013) (“The question before us, then, is whether it is ‘logical or plausible’ for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency ‘at least has an intelligence interest’ in such strikes.”) (internal citation omitted). 8Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 YALE L.J. 1032, 1036 (2011). 9Daniel A. Farber & Anne Joseph O’Connell, Agencies as Adversaries, 105 CAL. L. REV. 1375, 1378, 1405 (2017). 10 Id. at 1405.

5 rather than impose the courts’ assumptions about agency behavior on the FOIA, it would perhaps be more prudent to follow the statutory scheme and to identify each government authority with its own FOIA office as a separate “agency.”

There does not seem to be a principled reason grounded in the statute for a subagency to be able to waive Exemption 1 for another subagency in the same department—when both subagencies address FOIA requests independently—but not for a subagency in another department that similarly handles FOIA requests independently. See Wilson, 586 F.3d at 186. Under such a scheme, a disclosure by the Defense Intelligence Agency (DIA), a DoD component, of a record that was jointly drafted by the CIA and the DIA would not affect the CIA’s ability to withhold the record but would waive the Defense Health Agency’s ability to do so, solely because the Defense Health Agency happens to be a DoD component. That would be an odd result.

Accordingly, the question of whether a subagency’s disclosure waives another subagency’s ability to apply Exemption 1 should be carefully considered when it arises in an appropriate case.11

11This is an open question in our circuit. The D.C. Circuit, meanwhile, has said that while it would avoid “forcing one agency to adopt another’s official disclosure of information common to both,” Marino v. DEA, 685 F.3d 1076, 1082 (D.C. Cir. 2012), that “rule does not apply … where the disclosures are made by an authorized representative of the agency’s parent,” ACLU, 710 F.3d at 429 n.7. While it might make sense that a subagency would be bound by the determination of a superior authority— that is, the disclosure decisions of the HHS Secretary would bind the CDC— the same logic does not apply where the two agencies are coequal, though share a common parent—such as the CDC and the PHS. Cf. N.Y. Times, 965 F.3d at 121 (indicating that a disclosure by the President, but not by an official of the Defense Department, could bind the CIA).