Whitlock v. U.S. Department of Defense

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CRAIG WHITLOCK,

Plaintiff, Case No. 20-cv-3246 (JMC)

v.

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This Court previously ordered Defendants, the U.S. Department of Defense and U.S.

Department of the Navy, to produce certain documents it had categorically withheld under

Exemptions 7(A) and 7(B) of the Freedom of Information Act (FOIA). ECF 31; ECF 32.1 Now,

for the first time, Defendants argue that those same documents should be withheld under

Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F). ECF 36-1 at 7–8. Defendants say that they failed

to assert those exemptions in their summary judgment papers because of “an apparent

miscommunication” between agency counsel and Assistant United States Attorneys. Id. at 7.

Defendants move for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), asking

that they be allowed to reprocess their records for information subject to these additional

exemptions. ECF 36. On reply, Defendants argue that they would be entitled to the same relief

under Rule 54(b). ECF 41 at 3.

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. 1 Plaintiff Craig Whitlock, a reporter for The Washington Post and the FOIA requester who

filed this case, indicated that he opposed Defendants’ motion for relief from judgment only in part.

See ECF 36-1 at 9 n.3. Whitlock agreed that Defendants should have the opportunity to reprocess

records for information subject to Exemptions 1, 6, 7(C), 7(D) (to the extent that Defendants seek

to withhold information that “could reasonably be expected to disclose the identity of a

confidential source,” see 5 U.S.C. § 552(b)(7)(D)), and 7(F). ECF 36-1 at 9 n.3. The Court

therefore granted Defendants’ motion to the extent that it was unopposed, and otherwise held the

motion in abeyance pending full briefing from both parties. Apr. 29, 2025 Minute Order.

In his opposition, Whitlock indicated that he no longer opposes Defendants’ motion as to

Exemption 3, to the extent that Defendants seek to withhold information prohibited from

disclosure by 18 U.S.C. § 2510, et seq. ECF 38 at 1–2 n.1. Exemption 3 protects certain

information “specifically exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3), and

18 U.S.C. § 2510 prohibits the disclosure of intercepted communications (i.e. communications

intercepted as the result of a wiretap). See Lam Lek Chong v. DEA, 929 F.2d 729, 732–33 (D.C.

Cir. 1991). The Court will therefore GRANT Defendants’ motion for relief from judgment,

ECF 36, as to Exemption 3 withholdings based on 18 U.S.C. § 2510. (Defendants do not assert

any other grounds for withholding information under Exemption 3. See ECF 36-2 ¶ 13; ECF 41.)

Whitlock opposes Defendants’ motion for relief from judgment as to Exemptions 5, 7(D)

(as to information furnished by a confidential source that would not reveal the source’s identity),

and 7(E). ECF 38. For the reasons explained below, the Court will GRANT IN PART and DENY

IN PART those portions of Defendants’ motion. The Court will allow Defendants to reprocess

records for information that is subject to Exemption 7(E), which protects information that “would

disclose techniques and procedures for law enforcement investigations or prosecutions, or would

2 disclose guidelines for law enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). However,

Defendants may not now attempt to withhold records under Exemption 5, which covers records

that would be protected by attorney-client, work product, or deliberative process privilege. See

Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008). And as to Exemption 7(D), which

protects two categories of information—information that could reveal the identity of a confidential

source and information furnished by a confidential source—Defendants may not now attempt to

withhold records that fall only into the second category (i.e. information furnished by a

confidential source that would not identify the source). See 5 U.S.C. § 552(b)(7)(D).

I. LEGAL STANDARD

The parties dispute whether Rule 60(b) or Rule 54(b) is the appropriate vehicle for

considering Defendants’ motion. See ECF 41 at 3; ECF 46. The Court need not resolve this dispute

today. Although courts “have more flexibility in applying Rule 54(b)” than Rule 60(b), the facts

of this case demand the same result under either standard. Lemmons v. Georgetown Univ. Hosp.,

241 F.R.D. 15, 22 (D.D.C. 2007) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)).

A. Rule 60(b)(6)

“Rule 60(b) was intended to preserve ‘the delicate balance between the sanctity of final

judgments . . . and the incessant command of the court’s conscience that justice be done in light of

all the facts.’” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)

(quoting Bankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970), cert. denied,

399 U.S. 927 (1970)). It allows a court, “[o]n motion and just terms,” to “relieve a party or its legal

representative from a final judgment [or] order” for any “reason that justifies relief.” Fed. R. Civ.

P. 60(b)(6). Courts grant such relief only under “extraordinary circumstances.” BLOM Bank SAL

3 v. Honickman, 145 S. Ct. 1612, 1619 (2025). Although Rule 60(b) cannot “be employed simply to

rescue a litigant from strategic choices that later turn out to be improvident,” the D.C. Circuit has

held that reconsideration under 60(b)(6) is appropriate “[w]hen a party timely presents a previously

undisclosed fact so central to the litigation that it shows the initial judgment to have been

manifestly unjust.” Good Luck Nursing Home, 636 F.2d at 577.

B. Rule 54(b)

Rule 54(b) provides that a court may revise an interlocutory order (i.e. an order that

resolves only some of the claims in a case) “at any time before the entry of a judgment adjudicating

all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). District courts have

“broad discretion” to hear motions for reconsideration under Rule 54(b), Univ. of Colo. Health at

Mem’l Hosp. v. Burwell, 164 F. Supp. 3d 56, 62 (D.D.C. 2016) (quoting Isse v. Am. Univ., 544 F.

Supp. 2d 25, 29 (D.D.C. 2008)), but will revise interlocutory orders only “as justice requires,”

Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011). For

example, a court may grant a 54(b) motion to account for new law or evidence or to correct its

own clear error. See Univ. of Colo. Health at Mem’l Hosp., 164 F. Supp. 3d at 62. “[M]otions for

reconsideration are not vehicles for either reasserting arguments previously raised and rejected by

the Court or presenting arguments that should have been raised previously with the Court.” Pfeiffer

v. U.S. Dep’t of Energy, No. 20-cv-2924, 2023 WL 4405158, at *2 (D.D.C. July 7, 2023). It is the

moving party’s burden to demonstrate that “reconsideration is appropriate and that harm or

injustice would result if reconsideration were denied.” U.S. ex rel. Westrick v. Second Chance

Body Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012).

4 II. ANALYSIS

To facilitate the “efficient, prompt, and full disclosure of information” required by FOIA,

courts generally require the government to assert all FOIA exemptions at the same time. Maydak

v. U.S. Dep’t of Just., 218 F.3d 760, 764 (D.C. Cir. 2000) (quoting Senate of P.R. v. U.S. Dep’t of

Justice, 823 F.2d 574, 580 (D.C. Cir. 1987)). If the government could “raise its FOIA exemption

claims one at a time,” there would be no end to FOIA litigation. Id. However, the D.C. Circuit has

carved out narrow exceptions to this general rule. When the government fails to invoke an

exemption due to “pure human error” (rather than strategic litigation choices) and disclosure would

either compromise national security or “endanger the safety and privacy of third parties,” courts

will allow the government to belatedly assert new exemptions. Maydak, 218 F.3d at 767; August

v. Fed. Bureau of Investigation, 328 F.3d 697, 701 (D.C. Cir. 2003). “The law does not require

that third parties,” or the nation’s security, “pay for the Government’s mistakes.” August, 328 F.3d

at 701.

Here, the government failed to press additional exemptions in their summary judgment

papers due to attorney error: “an apparent miscommunication” between agency counsel and

Assistant United States Attorneys. ECF 36-1 at 7. Whitlock agrees, quite reasonably, that

Defendants should have the opportunity to assert exemptions that implicate national security and

third-party privacy interests: Exemptions 1, 3 (via 18 U.S.C. § 2510), 6, 7(C), 7(D) (as to

information that could reveal the identity of a confidential source), and 7(F).2 See ECF 38 at 1.

2 Exemption 1 protects records classified pursuant to Executive order. 5 U.S.C. § 552(b)(1). Exemption 3 applies to certain information “specifically exempted from disclosure by statute.” § 552(b)(3). Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” § 552(b)(6). Exemption 7(C) applies to law enforcement records whose disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C). Exemption 7(D) protects law enforcement records that could reveal the identity of a confidential source, and information furnished by a confidential source. § 552(7)(D). And Exemption 7(F) covers law enforcement records whose disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” § 552(b)(7)(D). 5 However, Whitlock argues that Exemptions 5, 7(D) (as to information provided by a confidential

source that does not itself reveal the source’s identity), and 7(E) have no bearing on national

security or third parties’ privacy, and therefore Defendants should not be allowed the opportunity

to belatedly invoke them. Id. at 5–7. The Court considers those contested issues below.

A. Exemption 5

Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would

not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). This exemption “incorporates the traditional privileges that the Government could

assert in civil litigation against a private litigant,” including attorney-client, work product, and

deliberative process privileges. Loving, 550 F.3d at 37 (quoting Baker & Hostetler LLP v. U.S.

Dep’t of Com., 473 F.3d 312, 321 (D.C. Cir. 2006)). On their face, “[n]one of these privileges

implicate the national security or privacy considerations” that usually warrant relief. Shapiro v.

U.S. Dep’t of Just., No. 13-cv-555, 2016 WL 3023980, at *5 (D.D.C. May 25, 2016). Exemption

5 protects the government’s (waivable) privileges and interests, not those of innocent third parties.

And Defendants do not explain how releasing this Exemption 5 material would implicate national

security or public safety. See ECF 36-1 (no discussion of Exemption 5 or related privileges);

ECF 41 at 6 (no discussion of national security or public safety as to Exemption 5). Defendants’

sole argument in their opening brief is that “attorney-client privilege and the attorney work product

doctrine . . . serve important interests”—but that is true of every FOIA exemption. ECF 41 at 6–7.

Courts have declined to allow the government an Exemption 5 “do-over” even in the context of

sensitive agency deliberations, see Citizens for Resp. & Ethics in Washington v. United States

Dep’t of Just., 45 F.4th 963, 978–79 (D.C. Cir. 2022), and the presidential communications

privilege, see Jud. Watch, Inc. v. U.S. Dep’t of Energy, 319 F. Supp. 2d 32, 34–35 (D.D.C. 2004).

6 If the government could belatedly invoke new FOIA exemptions just because they served

“important interests,” surely those cases would have come out the other way. And even setting

aside the question of national security or third-party privacy or safety interests, Defendants have

offered no other compelling explanation for why “justice requires” Rule 54(b) reconsideration, or

why this case presents the sort of “extraordinary circumstances” necessary for Rule 60(b)(6) relief.

For the first time on reply, Defendants state, almost in passing, that “[u]ndersigned counsel

has recently been informed for the first time that over fifty Navy members and personnel have

open personnel proceedings” connected to these events. ECF 41 at 5–6. And elsewhere, they

remark that disclosure is appropriate so long as “the internal deliberations about the investigation

and bringing charges or analysis of the government’s evidence and witnesses is protected.” Id.

Even setting aside the fact that courts generally disregard arguments made for the first time on

reply, the Court finds this passage of Defendants’ reply nearly impossible to parse. First, one could

speculate that disclosing otherwise privileged materials may undermine ongoing personnel

proceedings, which would be very concerning to the Court—but that is not the argument

Defendants have made. Instead, they argue that ongoing personnel proceedings “increase[] the

need for weighing privacy interests against public interest with care.” Id. at 5. That suggests that

Defendants are making a point not about Exemption 5, but about a FOIA exemption that protects

personnel privacy—for example, Exemptions 6 or 7(C). See 5 U.S.C. § 552(b)(6) (protecting

“personnel and medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy”); § 552(b)(7)(C) (protecting law enforcement records

whose disclosure “could reasonably be expected to constitute an unwarranted invasion of personal

privacy”). Defendants will already have the opportunity to reprocess records on those bases.

Second, even if Defendants had argued that disclosing records protected by attorney-client or

7 work-product privilege would undermine ongoing personnel proceedings, they must still explain

how that would threaten national security or personal privacy, or otherwise be so harmful or unjust

as to warrant relief from judgment. They have not done so. See ECF 41 at 5–6. Third, if Defendants

are seeking relief from judgment because of new factual developments—i.e. new personnel

proceedings that have been initiated since summary judgment briefing—that would itself be the

subject of a motion for relief, not an ambiguous reference in a reply brief.

In sum, the Court finds no basis to permit Defendants to reprocess these records and invoke

(or attempt to invoke) Exemption 5, because Defendants have not sufficiently explained how

releasing these records would compromise national security, infringe on third parties’ privacy or

safety, or otherwise be harmful or unfair. Defendants’ bare assertion that “attorney-client privilege

and the attorney work product doctrine . . . serve important interests,” absent any other cogent

explanation, see id. at 6, is insufficient to warrant relief under either Rule 54(b) or Rule 60(b)(6).

B. Exemption 7(D)

Exemption 7(D) protects “records or information compiled for law enforcement purposes”

that could reasonably be expected to disclose two categories of information: (1) “the identity of a

confidential source,” or (2) “information furnished by a confidential source.” 5 U.S.C. § 552(b)(7).

Whitlock agrees that Defendants should be given the opportunity to reprocess records for and

attempt to withhold information that falls into the first category. ECF 38 at 6. However, he argues

that Defendants should not be allowed to assert Exemption 7(D) as to information that falls only

into the second category—information that was furnished by a confidential source but would not

itself reveal the source’s identity—because disclosing that information does not compromise

third-party privacy interests. See id.

8 Defendants offer no reason why disclosing Exemption 7(D) information that falls only into

the second category would compromise national security, infringe on third parties’ privacy or

safety, or otherwise be harmful or unjust. See ECF 41 at 6. Instead, they contend that “Whitlock’s

objection to the application of Exemption 7(D) risks harm to confidential sources of information

through their identification,” because sources who are identified could be subject to retaliation or

other unwanted contact. Id. (emphasis added). But Whitlock agrees that Defendants should have

the chance to assert Exemption 7(D) as to information that would reveal a confidential source’s

identity, and the Court has already granted Defendants’ Rule 60(b) motion as to that information.

See ECF 38 at 6; Apr. 29, 2025 Minute Order (“The Court therefore GRANTS IN PART

Defendants’ motion to the extent that is unopposed by Plaintiff - specifically, the motion is granted

with respect to Exemptions 1, 6, 7(C), and 7(F), and Exemption 7(D) with respect to the identity

of a confidential source.” (emphasis added)). Defendants do not explain (nor can the Court

comprehend) how information that falls only into the second category—information furnished by

a confidential source that does not itself reveal the identity of a confidential source—could

possibly risk disclosing the identity of a confidential source.

By failing to offer any argument as to the second category of Exemption 7(D) information,

Defendants have now forfeited this issue twice over—first at summary judgment, and again in

their reconsideration papers. Absent any argument from Defendants, the Court agrees with

Whitlock that, under any standard, Defendants should not be given a second opportunity to assert

Exemption 7(D) as to information furnished by a confidential source that does not reveal the

source’s identity.

9 C. Exemption 7(E)

Exemption 7(E) protects “records or information compiled for law enforcement purposes”

that “would disclose techniques and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if

such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.

§ 552(b)(7)(E). Defendants argue that disclosing this material could “compromis[e] non-public

law enforcement techniques whose use protects the public,” and “risk[] degradation of those

techniques as others under investigation in the future could alter their criminal activities to evade

or misdirect law enforcement, thereby decreasing public safety.” ECF 41 at 7. Because Defendants

have explained how disclosing this material would “jeopardize the safety . . . of third parties”—

members of the public who are protected by these law enforcement techniques—the Court finds it

appropriate (under either Rule 60(b) or Rule 54(b)) to allow Defendants the opportunity to assert

Exemption 7(E). August, 328 F.3d at 698; see Nat’l Pub. Radio, Inc. v. Fed. Bureau of

Investigation, 539 F. Supp. 3d 1, 8 (D.D.C. 2021) (granting reconsideration as to Exemption 7(E)

because government demonstrated that disclosure “would risk endangering members of the

public”); Shapiro, 2016 WL 3023980, at *5 (allowing government to belatedly invoke

Exemption 7(E) where records “implicate[d] third-party interests—including public safety . . . that

are potentially as weighty as the interests implicated by the national security and privacy

exemptions”). Members of the public “bear no responsibility for the Government’s litigation

strategy,” and “[t]he law does not require that third parties pay for the Government’s mistakes”—

especially when it comes to those third parties’ safety. August, 328 F.3d at 701.

10 D. Unidentified Exemptions

Defendants suggest that they may want to assert further, unidentified exemptions in the

future. See ECF 36-2 ¶ 5. That would require Defendants to file a further motion for relief from

judgment. The Court cannot opine on the merits of a motion that is not before it.

Finally, Defendants ask the Court (for the first time on reply) to defer ruling on whether

the government is entitled to relief from judgment, allow the government to attempt to assert

exemptions as to particular records, and then decide whether Defendants are entitled to relief from

judgment based on those individual withholdings. See ECF 41 at 5–6. “Rather than ruling on

ideas,” say Defendants, “the Court should wait for a record providing sufficient information.” Id.

at 5. That is circular. The threshold question, before the Court considers whether any individual

record falls within the ambit of any particular FOIA exemption (and the parties expend yet more

resources briefing those issues), is whether Defendants are entitled to relief from judgment such

that they should have the opportunity to attempt to assert those exemptions at all. Defendants ask

the Court to bypass that threshold question, presumably to allow them to bolster their briefing. But

Defendants are the moving party—the party seeking an unusual second bite at the apple. If

Defendants believe that concrete examples would strengthen their arguments, now was the time to

present them.

* * *

For the foregoing reasons, Defendants’ motion for relief from judgment, ECF 36, is

GRANTED IN PART and DENIED IN PART. Defendants may reprocess records the Court

previously ordered disclosed, see ECF 32, and attempt to assert the following Exemptions: 1, 3

(via 18 U.S.C. § 2510), 6, 7(C), 7(D) (as to information that could reasonably be expected to

disclose the identity of a confidential source), 7(E), and 7(F). Defendants may not attempt to

11 withhold information that would be subject only to Exemption 5 and/or Exemption 7(D) (as to

information that was furnished by a confidential source but would not itself reveal the source’s

identity).

SO ORDERED.

__________________________ JIA M. COBB United States District Judge Date: July 8, 2025