UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

______________________________________________________ M. G R EG G BLOCHE, M.D. and JONATHAN H. MARK S, P laintif f s,
v. 1 : 07-CV-2050 ( F JS) DEP A RTMENT OF DEF ENSE; COUNTERINTELLIG ENCE F IELD ACTIVITY; DEF ENSE ADVANCE RESE ARCH P ROJECTS AG ENCY; DEF ENSE INTELLIG ENCE AG ENCY; UNITED STATES DEP A RTMENT OF THE ARMY; DEP A RTMENT OF THE NAVY; UNITED STATES AIR F ORCE; CENTRAL INTELLIG ENCE AG ENCY; and OF F ICE OF THE DIRECTOR OF NATIONAL INTELLIG ENCE, Def e ndants.

______________________________________________________ AP P EARANCES OF COUNSEL INSTITUTE F OR P U BLIC A DERSON BELLEG ARDE F RANCOIS, ESQ. REP R ESENTATION Georg etown University

L aw Center 600 New J e r sey

Avenue, NW Suite 312 W ashing ton, D.C. 20001 Attorney s for Plaintiffs UNITED STATES DEP A RTMENT ELIZ ABETH J. SHAP IRO, AUSA OF JUSTICE K RISTINA ANN WOLF E, AUSA Civil Division, F ederal Prog rams SUSAN K . ULLMAN, AUSA B ranch 20 Massachusetts Avenue, NW Suite 7000 W ashing ton, D.C. 20530 Attorney s for Defendant Air F o r ce SCULLIN, Senior JudgeMEMORANDUM-DECISION AND ORDER I. INTRODUCTION Pending before the Court are Plaintiffs' motion for partial summary judg ment ag a inst Defendant United States Air F orce and Defendant United States Air F orce' s cross-motion for partial summary judg ment pursuant to Rule 56 of the F ederal Rules of Civil Procedure. 1 See Dkt. Nos. 38, 43.

II. BACK G ROUND Plaintiffs are bioethics ex perts who have written about the ethical issues that arise from the participation of healthcare personnel in the interrog ation of military prisoners and other detainees. See Dkt. No. 38 at 2. Pursuant to the F r eedom of I n f ormation Act (" F OI A" ), 5 U.S.C. § 552 et seq. , Plaintiffs submitted four separate requests for information concerning the g overnment' s use of interrog ation tactics that medical professionals desig ned and implemented. Plaintiffs sent these requests to United States Department of Defense, Counterintellig e nce F ield Activity , Defense Advanced Research Projects Ag ency , Defense I ntellig ence Ag ency , Department of the Army , Department of the Navy , United States Air F orce, Central I ntellig ence Ag ency , and the Office of the Director of National I

ntellig ence (collectively , " Defendant Ag e ncies" ).

1 Plaintiffs have also filed a motion for partial summary judg ment ag ainst Defendant Department of the Navy

and two units of Defendant Department of Defense, i.e. , the Office of the Assistant Secretary

of Defense for Health Affairs and the Office of the Assistant Secretary of Defense for Health Affairs, Office of the General Counsel. See Dkt. No. 52. Defendants Department of the Navy

and Department of Defense collectively cross-moved for partial summary judg ment. See Dkt. No. 61. I n lig ht of the parties' representation that the Court' s decision reg a

rding the cross-motions of Plaintiffs and Defendant United States Air F orce will serve as a " bellweather" for the remainder of this litig a tion, seeDkt. No. 38 at 2; Dkt. No. 72, this Memorandum-Decision and Order addresses only these " bellweather" motions. -2-Specifically , Plaintiffs' first request, dated J une 26, 2006, " soug ht records addressing the duties and roles of healthcare personnel involved in interrog a tions, the policies for healthcare personnel involved in interrog ations, the contents of specifically identified videoconferences reg arding interrog ation strateg ies, and the leg ality or ethics of usinghealthcare personnel in interrog ations." See Dkt. No. 38-1 at ¶ 4. Plaintiffs' second request, dated J uly 3, 2006, " soug h t contracts between the [ Defendant Ag encies] and healthcare personnel involved in interrog ations, as well as records relating to the contracts." See id. at ¶ 5. Plaintiffs' third request, dated J uly 3, 2006, " soug ht records addressing the use of foreig

n nationals to assist United States personnel with interrog ations, as well as records addressing the leg ality , ethics, and effectiveness of specific interrog ation techniques and programs." See id. at ¶ 6. Plaintiffs' fourth request, dated J uly 10, 2016, " soug h t records addressing research on how g o vernment employ e es, United States service-members, military prisoners, and other detainees responded to certain interrog ation techniques; methods of interrog ation identified in the document entitled ' KUB A RK Counterintellig ence I nterrog ation' and any

material pertaining

to that document; and the leg ality

or ethics of conducting

research on certain interrog ation techniques." See id. at ¶ 7. Plaintiffs received no documents in response to their requests. See Dkt. No. 1 at ¶¶ 14-31. According ly , Plaintiffs filed suit on November 13, 2007, seeking to compel Defendant Ag encies to respond to their F OI A requests. On F ebruary 11, 2008, the Court (Kennedy , J .) ordered Defendant Ag encies to process and release documents responsive to Plaintiffs' F OI A requests on a rolling basis. See Dkt. No. 7. Defendant Ag encies complied. Relevant to the pending motions, Defendant United States Air F orce (hereinafter " D efendant" ) reviewed a total of 1,472 pag es of responsive
-3-documents and released 148, either in full or in part, to Plaintiffs. S ee Dkt. No. 38 at 5. On March 2, 2011, Plaintiffs moved for partial summary judg ment, arguing that Defendant unlawfully

withheld documents responsive to their F OI A requests. See id. Plaintiffs' orig inal motion relied on a Vaughn I ndex and declarations that Defendant had supplied in September 2008. See id. B efore responding to Plaintiffs' motion, Defendant agreed to re-review all responsive documents and its ex emption decisions. See Dkt. No. 39 at ¶ 4. After doing so, Defendant responded to Plaintiffs' motion by cross-moving for partial summary judg ment, arg

uing that all of its
ex emption decisions were appropriate. See Dkt. No. 43-1 at 1-2. Defendant supplied an updated Vaughn I ndex with corresponding declarations and represented that it had made several additional disclosures. See id. at 4; see also Dkt. Nos. 43-3, 43-4, 43-5, 43-6, 43-7, 43-8. B oth parties filed responses. See Dkt. Nos. 43, 51. F urthermore, the parties jointly filed an update that specified the documents that they

still disputed. See Dkt. No. 59; see also Dkt. No. 68 (providing an additional update). Plaintiffs subsequently filed a supplemental memorandum with commentary about Defendant' s most recent release of responsive documents, see Dkt. No. 71, prompting Defendant to move to strike the supplemental memorandum, see Dkt. No. 73. Plaintiffs do not challeng e the adequacy of Defendant' s search for documents responsive to their requests. S

e e Dkt. No. 43-1 at 7 n.2. The principal issue before the Court is whether Defendant properly

redacted or withheld disputed documents under F O I A Ex emption 5. See Dkt. No. 59 at 1; see also 5 U.S.C. § 552(b)(5). F urthermore, Plaintiffs arg ue that Defendant failed to release attachments (to emails or memoranda) of responsive documents and that Defendant did not properly seg reg ate and disclose non-ex empt material. See Dkt. No. 59 at 2-3.

-4-III. DISCUSSION

A. Standard of r eview

" A defendant is entitled to summary judg ment in a F OI A case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record, which is located, was either produced to the plaintiff or is exempt from disclosure." Judicial W

a tch, Inc. v. U.S. Dep'

t of Treasury , 796 F . Supp. 2d 13, 23 (D.D.C. 2011) (" Judicial W

atch-Treasury " ) (citing W eisberg v. U.S. Dep'

t of Justice , 627 F .2d 365, 368 (D.C. Cir. 1980)). The g overnment ag ency has the burden to demonstrate that the documents the plaintiff requested are ex e mpt from disclosure. See Assassination Archives & Research Ctr. v. Central Intelligence Agency , 334 F .3d 55, 57 (D.C. Cir. 2003) (citation omitted). Since the ag ency is in the unique position of " [ p] ossessing both the burden of proof and all the evidence," the ag ency must provide the court and the challeng ing party " a measure of access without ex posing the withheld information," which would " compromis[ e] its orig inal withholding s." J udicial W atch, Inc. v. Food & Drug Admin. , 449 F .3d 141, 146 (D.C. Cir. 2006) (" Judicial W atch-FDA " ). Therefore, " [ t] o enable the Court to determine whether documents properly were withheld, the ag e ncy must provide a detailed description of the information withheld throug h the submission of a so-called ' Vaug hn I ndex ,' sufficiently

detailed affidavits or declarations, or both." Hussain v. United States Dep' t of Homeland Sec. , 674 F . Supp. 2d 260, 267 (D.D.C. 2009) (citations omitted). The Vaughn I ndex

" serves three important functions that help restore a healthy adversarial process[
. ] " Judicial WatchFDA , 449 F .3d at 146. I n that reg ard, the Vaughn I ndex

" forces the g overnment to analy z e carefully

any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the ex emption, and it enables the adversary sy stem to operate by
-5-g iving the requester as much information as possible, on the basis of which he can present his case to the trial court." Id. (quoting Keys v. U.S. Dep' t of Justice , 830 F .2d 337, 349 (D.C. Cir. 1987)). The Vaughn I n dex and declarations must " describe the documents and ' the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld log ically falls within the claimed ex emption, and are not controverted by either contrary

evidence in the record nor by

evidence of ag ency

bad faith.' " 2 Judicial W

atch-Treasury , 796 F . Supp. 2d at 23-24 (quoting Larson v. Dep'

t of State , 565 F .3d 857, 862 (D.C. Cir. 2009) (citing Miller v. Casey , 730 F .2d 773, 776 (D.C. Cir. 1984))) (other citations omitted). W hen decidingwhether summary judg ment is appropriate in the F OI A contex t, a court is required to view the facts in the lig ht most favorable to the F O I A requester. See Burka v. United States Dep'

t of Health & Human Servs. , 87 F .3d 508, 514 (D.C. Cir. 1996) (citations omitted); Steinberg v. United States Dep' t of Justice , 23 F .3d 548, 551 (D.C. Cir. 1994) (stating that " [ t] he standard g overning a g rant of summary judg ment in favor of an ag ency that claims it has fully discharg ed its F OI A disclosure oblig ations is well established[ : . . .] the ag ency must show, viewing

2 Plaintiffs assert that Defendant cannot rely on its newly

submitted Vaughn I ndex and disclosures, which ex panded on or chang ed some of the ex e mption claims reg arding withheld or redacted documents. See Dkt. No. 46 at 4. However, this arg u ment is dising enuous because the parties ag reed that, after Plaintiffs submitted their motion for partial summary judg ment, Defendant would " review all of its previous withholding s to determine if any additional information [ could] be released," update its Vaughn I n dex , and provide new declarations. See Dkt. No. 39 at ¶ 4. Thus, there is no bad faith involved as Plaintiffs appear to sug g est. F urthermore, the Court has discretion to allow Defendant to assert new ex emption claims, especially when there is no prejudice to Plaintiffs. See Shapiro v. U.S. Dep' t of Justice , Civil Action No. 13-555, 2016 W L3023980, *6 (D.D.C. May 25, 2016) (allowingthe defendant to assert some Ex emption 5 claims on a motion for reconsideration due, in larg e part, to the lack of prejudice to the plaintiff). I n this case, Plaintiffs had notice that Defendant would supplement its Vaughn I n dex and declarations and have responded according ly
. Thus, the Court will rely on Defendant' s updated Vaughn I ndex and declarations when deciding these cross-motions. -6-the facts in the lig ht most favorable to the requester, that there is no g enuine issue of material fact"

(citation omitted)). However, " [a] g ency affidavits are accorded a presumption of g ood faith, which cannot be rebutted by ' purely speculative claims about the ex istence and discoverability of other documents.' " SafeCard Servs., Inc. v. Sec. Exch. Comm' n , 926 F .2d 1197, 1200 (D.C. Cir. 1991) (quoting [ G round Saucer W atch, Inc. v. CIA , 692 F .2d 770, 771 (D.C. Cir. 1981)] ).

B. Exem ption 5 claim s 1. Legal principles F OI A Ex emption 5 allows g overnment ag encies to withhold, i.e. , not make available to the public, " inter-ag ency

or intra-ag ency

memorandums or letters which would not be available by law to a party other than an ag ency

in litig ation with the ag ency ," 5 U.S.C. § 552(b)(5), i.e., deliberative, predecisional memorandum, attorney -client communications, and attorney work product. " I f a document requested throug h F OI A ' would be " routinely " or " normally " disclosed [ in civil discovery ] upon a showing of relevance,' it must also be disclosed under F OI A[ .] " Burka , 87 F .3d at 516 (quoting Grolier , 462 U.S. at 26, 103 S. Ct. at 2213-14) (footnote omitted). I n other words, Ex e mption 5 covers " ' those documents, and only those documents, normally privileg ed in the civil discovery contex t[ .] ' " Loving v. Dep' t of Defense , 550 F .3d 32, 37 (D.C. Cir. 2008) (quotation omitted). W hether the deliberative process, attorney -client, or attorney

work-product privileg e applies depends on the content of each document and the role it play s in the decisionmakingprocess. Therefore, " when an ag ency seeks to withhold information it must provide a relatively detailed justification, specifically identify ing the reasons why a particular ex emption is relevant and
-7-correlating those claims with the particular part of a withheld document to which they apply ." Mead Data Cent., Inc. v. United States Dep' t of Air Force , 566 F .2d 242, 251 (D.C. Cir. 1977) (citations omitted). " W ithout a sufficiently specific affidavit or Vaughn I ndex , a court cannot decide, one way or the other, a deliberative process[ , attorney -client, or attorney work-product] privileg e claim." Judicial W

a tch, Inc. v. United States Postal Serv. , 297 F . Supp. 2d 252, 259-60 (D.D.C. 2004) (" Judicial W

atch-Postal Service " ) (citation omitted). Therefore, " [ a] n ag ency cannot meet its statutory burden of justification by conclusory

alleg ations" but instead " must show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the F OI A." Mead Data Cent. , 566 F .2d at 258 (citation omitted).

a. Deliberative process privilege The deliberative process privileg e " covers ' documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by

which g overnmental decisions and policies are formulated[ .] ' " Dep' t of Interior v. Klamath W ater Users Protective Ass' n , 532 U.S. 1, 8 (2001) (quoting Sears, Roebuck & Co. , 421 U.S., at 150, 95 S. Ct. 1504). " The privileg e' s rational is that advice and information would not flow freely within an ag ency if such consultative information were open to public scrutiny ." Judicial W a tch-Postal Service , 297 F . Supp. 2d at 258 (citations omitted) (stating that " Ex e mption 5 . . . allows ag ency staffers to provide decisionmakers with candid advice without fear of public scrutiny " ). I n sum, the deliberative process privileg e functions " to prevent injury to the quality of ag ency

decisions." Nat'

l Labor Relations Bd. v. Sears, Roebuck &

Co. , 421 U.S. 132, 151 (1975). To invoke the deliberative process privileg e, an ag ency must show that an alleg edly ex empt
-8-document is both " ' predecisional' and ' deliberative.' " Access Reports v. Dep' t of Justice , 926 F .2d 1192, 1194 (D.C. Cir. 1991) (citations omitted). Material is " predecisional if ' it was g enerated before the adoption of an ag ency policy [ .] ' " Judicial W

atch-FDA , 449 F .3d at 151 (quoting [ Coastal States Gas Corp. v. Dep'

t of Energy , 617 F .2d 854,] 866 [ (D.C. Cir. 1980)] ). However, " the
ex emption does not ' turn[ ] on the ability of an ag e ncy

to identify

a specific decision in connection with which a memorandum is prepared.' " Access Reports , 926 F .2d at 1196 (quoting [ Sears , 421 U.S. at 151] ) (other citation omitted). Rather, " [ t] o satisfy the predecisional element, the ag ency need only ' identify [ ] the decisionmaking process ' to which the withheld documents contributed." Elec. Frontier Found. v. United States Dep' t of Justice , 890 F . Supp. 2d 35, 52 (D.D.C. 2012) (quoting [ A ccess Reports , 926 F .2d at 1196] ). F urthermore, " [t] he identity of the parties to the [ document] is important; a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff ex plaining the reasons for a decision already made." Coastal States Gas Corp. v. Dep' t of Energy , 617 F .2d 854, 868 (D.C. Cir. 1980). A " deliberative" document is one that is " a direct part of the deliberative process in that it makes recommendations or ex presses opinions on leg a l or policy matters." V

aughn v. Rosen , 523 F .2d 1136, 1144 (D.C. Cir. 1975). To be characteriz ed as deliberative, the document must " r eflect the g ive and take of the deliberative process[ .] " Pub. Citizen, Inc. v. Office of Mgmt. & Budget , 598 F .3d 865, 876 (D.C. Cir. 2010) (citation omitted). I n other words, deliberative documents are those

" ' reflecting

advisory opinions, recommendations and deliberations comprising part of a process by which g overnmental decisions and policies are formulated.' " Sears, Roebuck & Co. , 421 U.S. at 150 (quotation omitted). Althoug h " [ p] urely factual material usually

cannot be withheld under
-9-Ex e mption 5," it can be where " it reflects an ' ex ercise of discretion and judg ment calls' " and where its ex p osure would enable the public to ex amine an ag ency ' s deliberative processes. Ancient Coin Collectors Guild v. United States Dep' t of State , 641 F
. 3d 504, 513 (D.C. Cir. 2011) (citation omitted); see also Petroleum Info. Corp. v. United States Dep' t of Interior , 976 F
. 2d 1429, 1435 (D.C. Cir. 1992) (stating that, " [ t] o fall within the deliberative process privileg e, materials must bear on the formulation or ex ercise of ag ency policy -oriented judgment " (citations omitted)). Protecting factual material created in a discretionary way " protect[ s] the process by which policy

is formulated." Petroleum Info. Corp. , 976 F .2d at 1431 (citations omitted); see also Formaldehyde Inst. v. Dep'

t of Health & Human Servs. , 889 F
. 2d 1118, 1123-24 (D.C. Cir. 1989) (stating that

" [ t] he pertinent issue . . . is what harm, if any , the [ d ocument' s] release would do to [ an ag ency ' s] deliberative process" )
. 3

3 Plaintiffs raise the preliminary argument that Defendant has improperly asserted the deliberative process privileg e for documents that " w ere not involved in the process of formulating ag ency

policy within the meaning of the privileg e." See Dkt. No. 46 at 8-9. Specifically , Plaintiffs arg ue that Defendant redacted a number of documents related to training ag ency employ ees. See id. at 9 (citing AF 5, AF 13, AF 18, AF 19-AF 20, AF 37, AF 83-AF 84, and AF 191). Even if the Court were to ag ree that training

materials are not " policy " p e r se , Plaintiffs' proposed definition of the deliberative process privileg e is unduly narrow and ignores numerous cases in which the courts have stated that the deliberative process privileg e applies to the process of formulating g overnment " decisions" as well as g overnment " policies." See, e.g., Dep' t of Interior v. Klamath W

ater Users Protective Ass' n. , 532 U.S. 1, 9 (2001) (stating that the " deliberative process [ privileg e] covers ' documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which g overnmental decisions and p olicies are formulated' " (emphasis added) (quoting Sears, Roebuck & Co. , 421 U.S., at 150, 95 S. Ct. 1504)); Ctr. for Biological Diversity v. Norton , 336 F . Supp. 2d 1149, 1152 (D.N.M. 2004) (rejecting a similar argument that the deliberative process privileg e did not apply to the documents withheld involving a " scientific decision" rather than a decision that involved the formulation of g overnment policy (citations omitted)); Davis v. City of New Y ork , No. 10 Civ. 0699, 2011 W L1742748, *6 (S.D.N.Y. May 5, 2011) (stating that " whether training materials can be considered a policyor d ecision in the contex t of the deliberative process privileg e is an issue of first impression" (emphasis added)). (continued...) -10-b. Attorney-client privilege

" The attorney -client privileg e protects confidential communications from clients to their attorney s made for the purpose of securing leg al advice or services. . . . The privileg e also protects communications from attorney s to their clients if the communications ' r e st on confidential information obtained from the client.' . . ." Tax Analysts v. Internal Revenue Serv. , 117 F .3d 607, 618 (D.C. Cir. 1997) (internal quotation and other citation omitted). " I n the F OI A contex t, the ag ency is the ' c lient' and the ag ency ' s lawy ers are the ' attorney s' for the purposes of attorney -client privileg e ." Judicial W

atch-Treasury , 796 F . Supp. 2d at 33 (citation omitted). To invoke the privileg e , a defendant " ' must show that the withheld document (1) involves confidential communications between an attorney and his client and (2) relates to a leg al matter for which the client has soug ht professional advice.' " Id. (quoting W ilderness Soc'

y v. U.S. Dep'

t of the Interior , 344 F . Supp. 2d 1, 16 (D.D.C. 2004)). " However, the attorney -client privileg e does not g ive the ag ency the ability

' to withhold a document merely because it is a communication between the ag ency and its lawy ers.' " Cuban v. Sec. Exch. Comm' n , 744 F . Supp. 2d 60, 78 (D.D.C. 2010), on reconsideration in part , 795 F . Supp. 2d 43 (D.D.C. 2011) (quoting [ Judicial W atch, Inc. v. U.S. Postal Serv. , 297 F . Supp. 2d 252, 267 (D.D.C. 2004)] ). Rather, the defendant ag e ncy must show that it intended " that the information [ it] provided to its lawy ers . . . [ was] confidential and was not

3 (...continued) Nonetheless, " [ n] ot every minor question that is contemplated by an ag ency

or employ ee thereof, and the way

that question is answered, can be considered an agency policy or decision." Davis , 2011 W L1742748, at *6. Some materials can be characteriz ed as minor and therefore not qualify for the privileg e, e .g. , deliberations concerning the best practices for training on how to use Microsoft W ord. However, Plaintiffs' categ o rical approach to training materials is not justified. Therefore, the Court finds that predecisional and deliberative documents made to create training

materials may , under certain circumstances, fall within the ambit of Ex emption 5' s deliberative process privileg e. -11-disclosed to a third party
. " Id. (citation omitted).
c. Attorney work-product privilege The attorney

work-product privileg e protects " documents and tang ible thing s that [ an attorney ] prepare[ s] in anticipation of litig ation or for trial[ .] " F ed. R. Civ. P. 26(b)(3). To qualify under this privileg e, an attorney must have prepared or obtained the document " b ecause of" the threat of litig ation, i.e. , " the lawy er must at least have had a subjective belief that litig ation was a real possibility , and that belief must have been objectively reasonable." In re: Sealed Case , 146 F .3d 881, 884 (D.C. Cir. 1998) (citations omitted). The " mere possibility " of litig ation is not enoug h to invoke the privileg e. Coastal States Gas Corp. , 617 F .2d at 865. I n that reg ard, " if an ag ency were entitled to withhold any document prepared by

any person in the Government with a law deg ree simply because litig ation mig ht someday occur, the policies of the F OI A would be larg ely defeated." Id.
d. Segregability The F O I A requires that " [ a] ny reasonably seg reg able portion of a record shall be provided to any person requesting

such record after deletion of the portions which are ex empt[ .] " 5 U.S.C. § 552(b). " I t has long been a rule in this Circuit that non-ex empt portions of a document must be disclosed unless they

are inex tricably intertwined with ex empt portions." M ead Data Cent. , 566 F .2d at 260 (D.C. Cir. 1977) (footnote omitted). Nonetheless, " [ a] g encies are entitled to a presumption that they

complied with the oblig ation to disclose reasonably seg reg able material." Sussman v. United States Marshals Serv. , 494 F .3d 1106, 1117 (D.C. Cir. 2007) (citation omitted).
-12-Such a presumption may be overcome by

a " quantum of evidence," which means that the plaintiff must, at least, " ' produce evidence that would warrant a belief by a reasonable person' " that seg reg able material ex ists. Id. (quotation omitted). " [ A] n ag ency may satisfy its seg reg ability oblig ations by (1) providing a Vaughn index that adequately describes each withheld document and the ex emption under which it was withheld; and (2) submittinga declaration attesting that the ag ency released all seg

reg able material." Muttitt v. Dep' t of State , 926 F . Supp. 2d 284, 302 (D.D.C. 2013) (citing Loving v. Dep' t of Def. , 550 F .3d 32, 41 (D.C. Cir. 2008) (stating that " the description of the document set forth in the Vaughn index and the ag ency ' s declaration that it released all seg reg able material" is " sufficient for [ the seg reg ability ] determination" )) (other citation omitted).

e. Analysis of Defendant's exem ption claim s The parties have ag

r e e d that their dispute involves only the following documents as to Ex e mption 5: AF 5, AF 7 -AF 8, AF 9-AF 10, AF 13, AF 1 4, AF 1 8 , AF 19-AF 20, AF 21-AF 23, AF 26- AF 27, AF 2 7a-AF 27b, AF 2 8, AF 29, AF 30-AF 32, AF 37, AF 47-AF 55, AF 74-AF 7 5, AF 76-AF 77, AF 83-AF 84, AF 86-AF 87, AF 174, AF 191, AF 197-AF 199, AF 205-AF 209, AF 300-AF 303, AF 316- AF 319, AF 331-AF 394. 4 F urthermore, the parties dispute whether Defendant has released all reasonably

seg reg able information in the following documents: AF 3 -AF 4, AF 26-AF 27a, AF 27b, AF 28-AF 33, AF 57-AF 59, AF 65-AF 70, AF 7 8, AF 86-AF 88, AF 90-AF 1 27, AF 197-AF 233, AF 323- AF 324, AF 366-AF 394, AF 3 98-AF 414, AF 417-AF 4 18, AF 425-AF 4 26, and AF 429. The Court will address each of these disputed documents in turn.

4 The parties orig inally

included AF 143 and AF 170 in this list; however, Defendant has since released those documents in their entirety
. See Dkt. No. 71. -13-AF 3-AF 4
. The document itself is an internal memorandum, the subject of which is " Review

of Detainee Abuse Reports," the purpose of which is to " [ p] r ovide SG/SG2 with a review of the specific medical finding s in the reports." See Dkt. No. 38-2 at 6, AF 3 . The redacted material includes the majority

of the discussion section, the recommendation, and the title of one of the documents that was an attachment. See id. at 6-7, AF 3-AF 4. I n its declaration, Defendant asserts that " [ t] he redacted information reveals the author' s recommendations to superiors concerning appropriate/best case training scenarios, as well as his opinion on the current training methods for B ehavioral Science Consultation Teams (B SCTS)." See Dkt. No. 43-3 at 3. Plaintiffs g enerally argue that Defendant' s justification is " implausible." See Dkt. No. 38 at 28. B ased on Defendant' s description, the Court finds that the redacted portions of this document reflect the " g ive and take of the deliberative process[ .] " Pub. Citizen, Inc. , 598 F .3d at 876. Therefore, the Court concludes that Defendant properly redacted material on AF 3-AF 4. AF 5 and AF 13
. 5 The " Purpose" of this document is " SMMAC pre-brief for decision on web-based training

options." See Dkt. No. 38-2 at 8. I n its declaration, Defendant describes the redacted material as " edits and recommendations concerning Power Point training material for personnel involved in detainee operations." See Dkt. No. 43-3 at 4. B ased on this description, the Court finds that Defendant properly redacted the information as deliberations reg a rding the formulation of trainingmaterials. AF 7-AF 8
. This document is entitled " B ackg round Paper on AF MS Position for Army

5 These documents are identical and contain nearly identical justifications for their redactions. See Dkt. No. 38-2 at 8, 16; Dkt. No. 43-3 at 4-5. -14-B ehavioral Science Consultation Teams (B SCT)." See Dkt. No. 38-2 at 10. The redacted portions

fall under the heading s " Ethical I ssues," " Policy I ssues," and " Recommendations." See id. Defendant, in its declaration, states that the " redacted material discusses the status and content of draft DoDD for B SCTs and lists topics that the draft reg ulations do not address." See Dkt. No. 43-3 at ¶ 6(c)(4). Plaintiffs arg ue that Defendant has failed to " provide any information as to what decision-makingprocess was involved or what role the document play ed in the process." See Dkt. No. 46 at 12. Althoug hDefendant' s description is not overly detailed, it sufficiently indicates that the document discusses topics related to creation of a DoDD (Department of Defense Directive). Thus, the Court concludes that the document is predecisional, reflecting the process of formulating a DoDD, and deliberative, reflecting the recommendations and the g ive and take of forming policy
. Therefore the Court concludes that Defendant' s redactions were proper. AF 9-AF 10 . This document is entitled " B ullet B a ckg r ound Paper on Detainee Health Teams in Detainee Operations." S ee Dkt. No. 38-2 at 12. The redacted portions fall under the heading s

" B ackg round," " Discussion," and " Recommendations." See id. Defendant states in its declaration that the redacted material discusses questions raised by other

commands/offices reg arding whether the current policies were being followed and the current status of those recommendations which would make chang es. The redactions also include subordinates' recommendations to senior leadership concerning oversig ht of the detainee health team operations prog ram. See Dkt. No. 43-3 at ¶ 6(c)(4). Plaintiffs arg ue that the mere mentioning of current policy is " not itself predecisional and

-15-deliberative." See Dkt. No. 46 at 13 (citing E.B. v. N.Y . City Bd. of Educ. , 233 F .R.D. 289, 292 (E.D.N.Y. 2005)). Plaintiffs also arg ue that the location of the redacted information " appears" and

" sug g e sts" that Defendant is redacting factual information that does not fall within the ex emption. See id.

" Even after a path has been cut by an ag ency , ' it is the very

process of debating , shaping , and chang ing a . . . policy

that needs candor, vig orous to-and-fro, and freedom of ex pression.' " Judicial W atch, Inc. v. United States Dep' t of Homeland Sec. , 841 F . Supp. 2d 142, 162 (D.D.C. 2012) (quoting Sierra Club v. U.S. Dep' t of Interior , 384 F . Supp. 2d 1, 16 (D.D.C. 2004)) (other citation omitted). Thus, contrary

to Plaintiffs' argument, redaction of material that discusses how the current policy is implemented and potential recommendations for chang es are properly characteriz ed as predecisional and deliberative. F urthermore, Plaintiffs' assertion that Defendant has impermissibly redacted factual information are without foundation and are insufficient to rebut Defendant' s statements in its declaration. See SafeCard Servs., Inc. , 926 F .2d 1197 at 1200 (holding that

" [ a] g ency affidavits are accorded a presumption of g ood faith, which cannot be rebutted by ' purely speculative claims about the ex istence and discoverability of other documents' " (quotation omitted)). Therefore, the Court finds that Defendant' s redactions were proper. AF 14 . I n its declaration, Defendant states that " [ t] h e redacted material is a staff summary sheet including a draft sy

nopsis of [ a] DoD Directive on Medical Support for Detainee Operations. The redacted material also contains the Air F orce Assistant Surg eon General' s opinions and recommendations on the draft directive to SAF /MR." See Dkt. No. 43-3 at 5. Defendant' s description clearly

satisfies the requirement that this document includes predecisional and deliberative information. Therefore, the Court finds that Defendant properly redacted information
-16-from this document. AF 18 . Defendant redacted one sentence in this document under the heading

" Recommendation," see Dkt. No. 38-2 at 21; and Defendant states in its declaration that it " contains the author' s recommendation reg arding appropriate training of personnel assig ned to B SCT duties[ ,] " see Dkt. No. 43-3 at 5. Althoug h Defendant' s declaration lacks some detail, the contex t of the entire document describes an operating training prog ram; thus, it is likely that the recommendation included predecisional and deliberative discussions reg arding how to implement such training
. See Coastal States Gas Corp. , 617 F .2d at 866 (ex plaining that " [ d] ocuments which are protected by the privileg e are those which would inaccurately r e flect or prematurely disclose the views of the ag ency , sug g e sting as ag ency position that . . . is as y et only a personal position" ). Therefore, the Court finds that Defendant properly redacted this sentence from AF 18. AF 19 and AF 20 . These two documents are entitled " Talking Paper on Health Affairs Policy Memorandum on Training for Health Care Providers in Detainee Operations" and " Talking Paper on Proposed Policy Memorandum on Training for Health Care Providers in Detainee Operations." See Dkt. No. 38-2 at 22-23. The redacted portions are in the " Purpose" and

" Recommended Action" sections. See id. Defendant states in its declaration that the " redacted material discusses policy

formation and provides recommendations with respect to training for health care providers in detainee operations. This recommendation comments upon and evaluates a sister service' s training format, identify ing potential problems and improvement areas." See Dkt. No. 43-3 at 5. 6 Plaintiffs reiterate their arg ument that recommendations concerning training do not

6 Defendant further represents that the redacted information in AF 19 and AF 20 is identical, thus the reason for apply ing the ex emption is the same. See Dkt. No. 43-3 at 5.

-17-qualify for deliberative process protection. See Dkt. No. 46 at 13. F urthermore, Plaintiffs assert that the conclusory

statement that the redactions discuss " policy formation" does not indicate the decision making process involved or what role the documents play e d in that process. See id. at 13- 14. As recounted above, the deliberative process privileg e may protect deliberative and predecisional discussions reg a rding the creation of training materials if they

reflect major decisions or policy . Determining how Defendant is g oing to train its medical professionals to interrog ate detainees is a major policy decision. F urthermore, the privileg e protects " documents and other materials that would reveal ' advisory opinions, recommendations, and deliberations comprising part of a process by

which g o vernmental decisions and policies are formulated.' " In re Sealed Case , 121 F .3d 729, 737 (D.C. Cir. 1997) (quotation and other citations omitted). Defendant has alleg ed that the redactions reflect deliberations reg arding recommendations for improving the training prog ram. However, part of Defendant' s declaration does not describe deliberative information. The declaration states that the " r e c ommendation comments upon and evaluates a sister service' s training format, identify

ing potential problems and improvement areas." See Dkt. No. 43-3 at ¶ 6(c)(12). Commenting on another ag e ncy ' s training format is not deliberative, but rather ex planatory . The declaration' s description does not reflect the " g ive and take of the deliberative process[ .] " Pub. Citizen, Inc. , 598 F .3d at 876. Althoug h information that compares the sister service' s training prog ram to Defendant' s own training prog ram mig ht possibly be described as deliberative, Defendant has not made this showing
. See Mead Data Cent. , 566 F
. 2d at 256 (stating that

" [ e] x emption five is intended to protect the deliberative process of g overnment and not just deliberative material" (citation omitted)).
-18-According ly , the Court orders Defendant to release any material contained in AF 19 and AF 20 that discusses the sister service' s training prog ram. AF 21-AF 2 3 . This document is entitled " B ullet B ackg round Paper on B ehavioral Science Consultation Team (B SCT) I ssues." S ee D kt. No. 38-2 at 24-26. The only portions that Defendant did not redact are the title and the word " Recommendations" on the final pag e. See id. I n its declaration, Defendant states that the

three-pag e bullet backg round paper is being withheld in its entirety because it contains opinions and recommendations concerning B SCT issues. The author of this document uses it to point out issues/problems concerning all aspects of the prog

ram, including training , leadership, structure, and policy . The author further uses this document to sug g est potential fix es. See Dkt. No. 43-3 at 5. Plaintiffs arg ue that Defendant' s declaration " does not ex plain what decisionmakingprocess was involved or what role the documents play ed in that process." See Dkt. No. 46 at 14. Courts recog niz e that " [ a ] g encies are, and properly should be, eng ag ed in a continuing process of ex amining their policies" a nd should be " wary

of interfering

with this process." Sears, Roebuck &

Co. , 421 U.S. at 151 n.18. As stated before, " [e] v en after a path has been cut by an ag ency , ' it is the very

process of debating , shaping , and chang ing a . . . policy that needs candor, vig orous to-and-fro, and freedom of ex pression.' " Judicial W

a tch, Inc.-Homeland Security , 841 F
. Supp. 2d at 162 (quoting S ierra Club v. U.S. Dep'

t of Interior , 384 F
. Supp. 2d 1, 16 (D.D.C. 2004)) (other citation omitted). Defendant ex plicitly states that it used this document to discuss the propriety of all aspects of the B SCT prog ram and to discuss possible chang es in policy . Plaintiffs' g e neric arg

ument ig nores Defendant' s declaration and the contex t of the document. I t is self-evident

-19-that discussing chang es in the B SCT prog ram was the " decision-makingprocess . . . involved" and

the " r ole the documents play ed in that process" was to put the author' s sug g estions on paper. Since the document contains points that are critical to Defendant' s internal deliberations about whether, where, and how to advance the B SCT prog ram, it is part of the deliberative process by which Defendant decided how to proceed. See Sierra Club v. United States Dep' t of Interior , 384 F . Supp. 2d 1, 19 (D.D.C. 2004) (statingthat " [ a] memo making recommendations or presenting options reflects the essence of internal deliberations that Ex emption 5 was desig ned to protect" (citation omitted)). I n addition, Plaintiffs arg ue that Defendant must seg reg ate and release portions of this document discussing ex isting policy
. See Dkt. No. 46 at 14. The title of this document,

" B ackg round Paper," indicates that it may contain some discussion of ex isting policy . Defendant has failed to ex plain why it did not seg reg ate and release such information if it ex ists. Therefore, the Court orders Defendant to seg reg a te those parts of AF 21-AF 23, if any , that discuss ex isting policy from the remainder of the document and release those parts of AF 2 1-AF 23 that discuss said
ex isting policy
. AF 26-AF 2 7a, AF 27b
. This document depicts the slides from a PowerPoint presentation entitled " Review of Detainee Abuse Reports." S ee Dkt. No. 38-2 at 29. Defendant asserts that the attorney -client privileg e protects this document. S ee Dkt. No. 43-3 at 9. Defendant' s declaration
ex plains that an ag ency

attorney analy z ed several detainee abuse reports and another attorney analy z ed the Hippocratic Oath. See id. Plaintiffs contend that Defendant' s admission that the PowerPoint presentation discusses the Hippocratic Oath proves that the document contains at least some factual information that is not privileg ed; and, therefore, Defendant must seg reg ate and release
-20-that factual information. Since these slides are a communication from an attorney to his client, they

are privileg ed only insofar as they rest on confidential information obtained from the client. Defendant, in its declaration, offers no ex

planation as to what confidential client communication underlies these slides. Althoug h it is possible that the detainee abuse reports themselves are confidential, Defendant does not make such an assertion. Moreover, information reg arding the Hippocratic Oath is not derived from confidential information from the client but is rather " g enerally applicable leg al advice" that does not normally " rest . . . on the factual particularities convey ed in a ty pical confidential communication by a client." Am. Immigration Council v. United States Dep' t of Homeland Sec. , 905 F . Supp. 2d 206, 223 (D.D.C. 2012) (finding that the attorney -client privileg e did not apply

to slides that communicated only g eneral leg al advice). Therefore, the Court orders Defendant to release AF 26-A27a, AF 27b in their entirety
. AF 28-AF 2 9 . Defendant withheld this entire document, which it describes as a " [ two] pag e draft memorandum providing draft guidance from the SG to unnamed recipients (not a final draft). I t contains draft gu idance on policy and procedures for medical support for detainee operations." See Dkt. No. 43-3 at 5. Plaintiffs arg ue that the vag ue description of this document in Defendant' s declaration does not " specifically

identify a decision-making

process, nor does it provide any indication of what role the document play e d

in that process." See Dkt. No. 46 at 10. F urthermore, Plaintiffs assert that, at a minimum, Defendant must release any part of the document that has since become final ag ency policy
. S ee id. at 11. Defendant, on the other hand, contends that its description in its declarations

-21-is sufficient to carry its burden under the law. 7 See Dkt. No. 43-1 at 13; see also Dkt. No. 51 at 9-

10.

" W ithout a sufficiently specific affidavit or Vaughn I n dex , a court cannot decide, one way or the other, a deliberative process privileg e claim." Judicial W atch-U.S. Postal Service , 297 F . Supp. 2d at 260 (citations omitted). Therefore, " [ a ] n ag ency cannot meet its statutory burden of justification by

conclusory alleg ations" but instead " must show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the F OI A ." M ead Data Cent. , 566 F .2d at 258 (citation omitted). I n this case, Defendant merely labels this document " draft guidance for policy and procedures for medical support detainee operations." See Dkt. No. 43-3 at 5. There is no factual basis to support Defendant' s claim. See Senate of Puerto Rico v. United States Dep' t of Justice , 823 F .2d 574, 585 (D.C. Cir. 1987) (stating that " it is enoug h to observe that where no factual support is provided for an essential element of the claimed privileg e or shield, the label

' conclusory ' is surely

apt" ) ; see also Founding Church of Scientology of W ash., D.C., Inc. v. Nat'

l Sec. Agency , 610 F .2d 824, 830 (D.C. Cir. 1979) (stating that " ' c onclusory and g eneraliz ed alleg a tions of ex e mptions' are unacceptable" ( f ootnote omitted)). F urthermore, " [ w] hen identifying a document as a draft, the defendant must indicate whether the draft was ' (1) " adopted formally or informally , as the ag ency position on an issue;" or (2) " used by the ag ency

in its dealing s with the public." ' " Citizens for Responsibility & Ethics in W a sh. v. Nat'l Archives & Records Admin. , 583 F
.

7 Defendant arg

ues that its new declaration ex plains that AF 28-AF 29 " discuss[ es] ' the role of phy sicians in military missions and the relations to the Hippocratic Oath' and ' contain[ s] the Air F orce Surg eon General' s opinions and recommendations for decision-makers.' " See Dkt. No. 43-1 at 13. Defendant cites its declaration, but the declaration does not include these quoted phrases. See Dkt. No. 43-3 at 5. I t appears that Defendant abandoned this claimed justification in its reply

brief, which simply restates what is actually said in the declaration. See Dkt. No. 51 at 9. -22-Supp. 2d 146, 164-65 (D.D.C. 2008) (quoting Judicial W atch II , 297 F
. Supp. 2d at 261). Defendant has done neither and, therefore, has not met its burden. According ly , the Court orders that Defendant release AF 28-AF 29 in its entirety
. AF 30-AF 3 2 . Defendant withheld this document in its entirety . I ts declaration describes the document as draft versions of a document prepared by the Air F orce Surg eon General for then unnamed parties in which he analy z e s various policy memoranda reg a

rding medical support of detainee operations, to include both DoD and Air F orce policies. The Surg eon General selected key

facts to present from a larg er body of facts, such that release would reveal the deliberative process. The withheld documents include handwritten notes as well as tracked changes and applicable discussions. See Dkt. No. 43-3 at 5-6. Defendant' s description of this document is nearly identical to its description in AF 28-AF 29 and merely labels the document a " draft" without sufficiently describingthe propriety

of its claimed
ex emption. Therefore, the Court orders Defendant to release document AF 30-AF 32 in its entirety
. AF 37 . Defendant withheld this document in its entirety because it " contain[ s] questions and concerns voiced by

the Chief, Ex peditionary Medical Skills Division and the Chief Consultant for I nternal Medicine Services reg arding the development of policy for online trainingfor B SCTs." See Dkt. No. 43-3 at 6. B ased on this description, the Court concludes that the document is deliberative and predecisional and that Defendant properly withheld it. AF 47-AF 5 5 . Defendant withheld these documents in their entirety . I n its declaration, Defendant states that these documents " include discussions and advice g iven by the L eg al Advisor to the Surg eon General and the Chief Consultant for I nternal Medicine Services concerning L aw of

-23-Armed Conflict (L OAC) issues raised by the clients involving medical involvement in detainee operations." See Dkt. No. 43-3 at 9. Defendant' s description of these documents insufficiently invokes the attorney -client privileg e. Defendant fails to describe with any particularity

whether these discussions were meant to be confidential and the purpose for which the clients soug ht the attorney ' s advice. Therefore, the Court orders Defendant to release documents AF 47-AF 55 in their entirety
. AF 74-AF 7 5 . Defendant withheld this document in its entirety and describes it as a " draft which includes edits and notes reg arding B SCTs[ ,] . . . cover[ ing ] issues such as the leadership structure of B SCT, B SCT composition, security clearances, and training
. " See Dkt. No. 43-3 at 7. Plaintiffs contend that Defendant' s description reveals that this document concerns current policy , not the formulation of new policy
. See Dkt. No. 46 at 16. The Court ag rees; Defendant' s description of this document indicates that it is merely a draft document describing pre-ex isting policy . To the ex tent that there are notes reg arding the formulation of this document, they may be privileg e d; however, it is not clear at all, from Defendant' s description, whether Defendant should have seg reg ated factual information from information that is deliberative. Therefore, the Court orders Defendant to release document AF 74-AF 75 with appropriate redactions, i.e., seg reg ating factual information from deliberative information, redacting the deliberative information and releasing the factual information. AF 76-AF 7 7 . According

to Defendant, the redacted portions of this document " discuss[ ] potential additions, clarifications, and areas of concern reg arding the B SCT prog ram and policy ." See Dkt. No. 43-3 at 7. F urthermore, Defendant redacted information discussing its " concerns with policy recommendation of others." See id. Althoug h Defendant does not provide much detail
-24-reg arding the role the document play ed in formulating policy , it is clear that these comments represent the sort of g ive-and-take that the deliberative process privileg e was meant to protect. Therefore, the Court finds that Defendant has properly redacted portions of this document. AF 83-AF 8 4 . I n its declaration, Defendant states that " [ t] hese emails were withheld in full because they

contain discussions by

the Chief Consultant for I nternal Medicine Services reg arding training requirements for personnel involved in detainee operations. The emails detail various ideas and sug g estions as to what training requirements should be implemented." See Dkt. No. 43-3 at 8. B ased on this description, it is clear that the deliberative process privileg e applies; and, therefore, the Court finds that Defendant properly withheld AF 83-AF 8 4. AF 86-AF 8 7 . I n its declaration, Defendant states that it withheld this document in its entirety " because it contains attorney -client communications concerning advice soug ht by

the Surg eon General' s division from the servicing J udg e Advocate." See D kt. No. 43-3 at 9. Plaintiffs arg ue that this description is too conclusory and fails to show that these discussions were confidential. S

ee Dkt. No. 46 at 24. I ndeed, Defendant' s declaration fails to describe with any particularity

what advice the client soug ht, what facts the attorney was using , and whether the communication was confidential. As recounted above, the attorney -client privileg e applies only to

" [ c] o nfidential disclosures by a client to an attorney

made in order to obtain leg al assistance[ ,] " Fisher v. United States , 425 U.S. 391, 403 (1976) (citations omitted), and to an attorney ' s

" communication [ to the client] based on confidential information provided by the client," Schlefer v. United States , 702 F .2d 233, 245 (D.C. Cir. 1983) (citation omitted). Moreover, " [ i] n a F OI A case,

' [ t] he burden is on the ag ency to demonstrate . . . that the materials sought . . . have not been improperly

withheld.' " P u b Employees for Envtl. Responsibility v. U.S. Envtl. Protection Agency,
-25-211 F . Supp. 3d 227, 231 (D.D. C. 2016) (quoting DOJ v. Tax Analysts , 492 U.S. 136, 142, 109 S.

Ct. 2841, 106 L
. Ed. 2d 112 (1989)). Defendant' s conclusory

declaration is insufficient to meets its burden; and, therefore, the Court orders Defendant to release AF 86-AF 8 7 in its entirety
. AF 174 . Defendant redacted a portion of this document under the deliberative process privileg e because, according to Defendant, the information " is an OSI ag e nt' s direct and unfiltered opinions as to how to improve operations involving poly g raphers, as well as the leadership of deploy ed poly g raphers." See Dkt. No. 43-4 at 5. B ased on Defendant' s description of this document, the Court finds that Defendant properly redacted portions of this document under the deliberative process ex emption. AF 191 . Defendant asserts that this document " is an intra-ag ency email from J anuary 11, 2005, forwarding

a copy of interrog ation training slides." See Dkt. No. 43-7 at 3. Defendant further claims the deliberative process privileg e, the attorney -client privileg e, and the attorney work-product privileg e in the most conclusory of fashions. 8 See id. As recounted above, " [ a] n ag ency cannot

8 I n that reg ard, Defendant states the following : The record is protected under the attorney client privileg e because it is a document related to confidential communications between an attorney and client. The attorney

work product privileg e also applies because the document was prepared by attorney s in reasonable anticipation of litig ation. The record also falls within the pre-decisional, deliberative process privileg e because it provides analy sis, opinions, and recommendations on interrog ation policy
. See Dkt. No. 43-7 at 3. Merely reciting boilerplate languag e is insufficient to justify withholding documents requested (continued...) -26-meet its statutory burden of justification by conclusory

alleg a tions" but instead " must show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the F OI A ." Mead Data Cent. , 566 F .2d at 258 (citation omitted). The Court finds that Defendant has failed to justify

its withholding of this document and, therefore, orders Defendant to release AF 1 9 1 in its entirety
. AF 197-AF 199 . Defendant asserts that this document " is a copy of the 18 J anuary

2005 memorandum sig ned by

all of the Service J udg e Advocate Generals and L eg al Counsel to the Chairman of the J o int Chiefs of Staff." See Dkt. No. 43-7 at 3. Defendant further claims the deliberative process privileg e, the attorney -client privileg e and the attorney work-product privileg e in the most conclusory

of fashions. 9 See id. As with AF 191, Defendant has failed to provide a sufficiently

detailed justification for withholding AF 197-AF 199. Therefore, the Court orders Defendant to release AF 197-AF 199 in its entirety
. AF 205-AF 209 . Defendant withheld these pag es in their entirety . Defendant' s Vaughn I ndex describes these pag es as a " W orking Copy of Report: Air F orce J udg e Advocate I nvolvement in the Development of Department of Defense I nterrog ation Technique Policy ." See Dkt. No. 43-8 at 7. Moreover, Defendant ex

plains in its declaration that this document " is an unsig ned, undated memorandum from the Air F o rce J udg e Advocate outliningAF /J A involvement in the development of DoD interrog ation technique policy ." See Dkt. No. 43-7 at 4. Defendant further ex plains that it

8 (...continued) under the F OI A.

9 Defendant' s statement in its declaration for this document is identical to the statement Defendant makes for AF 191. -27-withheld this document because of the attorney -client privileg e and work-product doctrine. 1 0 See id. Plaintiffs' argu ments to the contrary center on Defendant' s previous justification for withholding the document. See Dkt. No. 38 at 29-30. The Court concludes that Defendant has appropriately
ex plained its reason for withholding this document and, therefore, finds that Defendant properly withheld AF 205-AF 209. AF 300-AF 303 . Defendant states in its declaration that these documents are " SAF /GC email communication with the Secretary of the Air F orce dated May 10, 2004, Subject: I nterrog ation project." See Dkt. No. 43-5 at 3. Defendant further asserts that " [ t] his document contains communication from the Air F orce General Counsel to the Secretary of the Air F orce concerning detainee combatant status and resulting leg al analy sis." See id. The redacted portion of this document is a small section followed by the full tex t of a

W ashington Post a

rticle entitled " Pentag on Approved Toug h er Interrog ations." See Dkt. No. 38-7 at 6. Defendant fails to describe the contex t of the leg al analy sis provided and merely states that this document is " n ot simply a repetition of what is in the article." See Dkt. No. 51 at 22. Althoug hsome of the material in the email may be privileg ed attorney

- client communication, the contex t of the email and the inclusion of the W ashington Post

article g ive the Court pause reg arding w hether Defendant properly seg r eg ated any

factual material or g eneral commentary reg arding the article. Therefore, the Court orders Defendant to seg reg ate and release all the factual material contained in AF 300-AF 303. AF 316-AF 319 . I n its orig inal declaration, Defendant stated that it could not find the

1 0 Clearly , the attorney

work product privileg e does not apply as Defendant makes no mention of any

pending litig ation reg arding this document in its declaration. -28-unredacted copy of this document; therefore, it could not comment on its ex emption. See Dkt. No.

43-5 at 3. However, Defendant subsequently found the document and sent a letter to Plaintiffs stating merely

that it had " determined that the redacted information was properly redacted pursuant to Ex e mption (b)(5)." See Dkt. No. 43-1. Given that Defendant has completely failed to provide any justification for redacting this portion of the document, the Court orders Defendant to release an unredacted copy of AF 316-AF 319. AF 331-AF 394 . Defendant states in its declaration that " [ t] hese are documents that appear to provide an analy sis of international and domestic law, including the UCMJ , federal civil and criminal law, state criminal law, etc. to the W o rking Group as they assessed the various issues related to the interrog ation of detainees prior to preparing their report." See Dkt. No. 43-5 at 3. Defendant asserts the deliberative process privilege and states that these documents " may also qualify for Attorney W ork Product and Attorney Client Privileg e[ .] " See id. Plaintiffs arg ue that Defendant has failed to carry its burden to show that the documents are predecisional and deliberative. See Dkt. No. 46 at 17. Moreover, Plaintiffs point out that Defendant only claims that the documents " appear to provide" analy sis on various issues. See id. However, according to Plaintiffs, " [ a] declaration that is unsure about the characteristics of documents that are, after all, in the ag ency ' s possession cannot satisfy the ag ency ' s burden to justify its nondisclosure." See id. I t is unclear how these documents play ed a role in formulating

any policy based on Defendant' s declaration. Rather, it appears that this document was merely an informational analy sis g iven to the W orking Group. Defendant does not discuss what the W orking Group was working on, nor does it describe how this analy sis play ed a role in any final decision. More importantly , -29-Defendant has failed to ex plain with any

specificity

why it could not disclose some of this document, which clearly

includes purely

factual information. Since Defendant' s description is entirely inadequate, the Court orders Defendant to release AF 331-AF 394 in its entirety
. AF 57-AF 5 9, AF 65-AF 70, AF 78, AF 90-AF 127, AF 197-AF 204, AF 210-AF 233, AF 323- AF 324, AF 398-AF 4 14, AF 417-AF 4 18, AF 4 25-AF 426, AF 429 . Defendant withheld these documents in their entirety . Plaintiffs' only argument in support of their position that Defendant should release these documents is that Defendant has failed to provide sufficiently detailed information in its declarations that " show with ' r easonable specificity ' why the documents cannot be further segr eg a ted." A rmstrong v. Exec. Office of President , 97 F .3d 575, 578 (D.C. Cir. 1996) (citation omitted). Defendant has described the following documents sufficiently to permit the Court to conclude that Defendant released all reasonably seg r eg a ble information. AF 57-AF 59 and AF 65- AF 70 are emails discussing various elements of the B SCT prog ram. See Dkt. No. 43-3 at 6. AF 78 is an email that contains opinions and recommendations reg arding policy discussed at a senior committee meeting
. See id. at 7. AF 90-AF 107 are drafts reg arding CONOPS. S ee id. at 8. AF 108-AF 123 is an email chain discussing chang es to a PowerPoint presentation. See id. AF 1 24- AF 125 summariz e s recommendations reg arding the detainee interrog ation policy and chang es to draft versions of DoDDs and Army Reg ulations. See id. A F 1 27 is leg al advice. AF 323-AF 324 are notes from a working

g roup meeting
. See Dkt. No. 43-5 at 3. AF 398-AF 410 are emails reg a rding various discussions on policy formation. See id. at 4. AF 4 11-AF 414 are comments on a draft document. See id. a t 5. AF 425-AF 426 is an email reg a rding a draft leg al opinion. See id. Defendant, however, has not sufficiently described the following

documents to show that it -30-could not have released seg r eg a ble information. AF 200-AF 201 is a proposed DoD I nterrog ation Policy with forwarding

memorandum. I t is possible that this document contains information that ended up becoming

the ag ency ' s final policy

or discusses some current policy
. See Dkt. No. 43-7 at 3. Defendant describes AF 202-AF 204 as a TalkingPaper " discussing the status of ' Detainee and I nterrog ation I nitiatives.' " See id. at 4. I t is unclear how this document is privileg ed in the first place; but, at minimum, there is the possibility that seg r eg able information ex ists. F urthermore, Defendant' s descriptions of AF 210-AF 231 are inadequate in that they merely g ive a brief description of the document and then conclude that the deliberative process, attorney -client communication, and attorney work-product privileg es apply . I n addition, AF 417-AF 418 is an email reg arding the issuance of a final report; thus, Defendant should release any information related to the final report. See Dkt. No. 43-5 at 5. F inally , A F 429 pertains to edits and comments to a final report; thus, Defendant should disclose this document to the ex tent it incorporated the edits into the final report or the edits merely discuss the contents of the final report. I n sum, the Court orders Defendant to release any seg reg able information contained in AF 200-AF 201, AF 2 02-AF 204, AF 2 10-AF 231, AF 417-AF 418 and AF 429
.

C. Attachm ents w ithheld Plaintiffs arg ue that Defendant has not ex plained its failure to produce missing attachments to documents responsive to Plaintiffs' F OI A requests. See Dkt. No. 38 at 14. Plaintiffs claim that the following records contain attachments that are responsive to their F OI A requests: AF 3, AF 4 , AF 14, AF 196, AF 304, AF 310 a nd AF 312
. Defendant arg

u es that it performed an adequate search of its records and, unfortunately , -31-could not locate the documents listed as attachments in the above-referenced records. See Dkt. No.

51 at 27-28. Thus, according to Defendant, " ' the fact that responsive documents once ex isted does not mean that they

remain in [ its] custody

today or that [ it] had a duty under F OI A to retain the records.' " See id. at 27 (quoting W ilbur v. C.I.A. , 355 F
. 3d 675, 678 (D.C. Cir. 2004) (citing Y eager v. Drug Enforcement Admin. , 678 F .2d 315, 321 (D.C. Cir. 1982) (" A requester is entitled only to records that an ag ency

has in fact chosen to create and retain." ); Miller v. U. S. Dep' t of State , 779 F .2d 1378, 1385 (8th Cir. 1985) (" The fact that a document once ex isted does not mean that it now
ex ists; nor does the fact that an ag ency created a document necessarily imply that the ag ency

has retained it." ))). There is no basis to question Defendant' s representation that it was unable to locate the responsive attachments. Therefore, the Court g rants Defendant' s cross-motion for partial summary judg ment insofar as it pertains to these attachments and denies Plaintiffs' motion reg arding the same.

IV. CONCLUSION Having reviewed the entire file in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, the Court hereby ORDERS that Plaintiffs' motion for partial summary judg ment, see Dkt. No. 38, is G R ANTED in part and DENIED in part ; and Defendant United States Air F orce' s cross-motion for partial summary

judg ment, see Dkt. No. 43, is G RANTED in part and DENIED in part consistent with this Memorandum-Decision and Order; 1 1 and the Court further

1 1 As a result of this Memorandum-Decision and Order, Defendant United States Air F orce must release the following : (continued...) -32-ORDERS that Defendant United States Air F orce' s motion to strike Plaintiffs' additional

memorandum, see Dkt. No. 73, is DENIED as m oot ; and the Court further ORDERS that all Defendants, other than Defendant United States Air F o rce, shall re-review all ex emptions they

have claimed in their pending collective motion for summary judg ment, see Dkt. No. 61, pay

ing close attention to the seg reg ability of factual information and the conclusory

1 1 (...continued) (1) AF 1 9-AF 20 - seg reg ate and release any material that discusses the sister service' s training prog r am (2) AF 2 1-AF 23 - seg reg ate and release any material that discusses ex isting policy (3) AF 2 6 -AF 27a, AF 27b (4) AF 2 8-AF 29 (5) AF 3 0-AF 32 (6) AF 4 7-AF 55 (7) AF 7 4-AF 75 - seg reg ate and release any factual information (8) AF 8 6-AF 87 (9) AF 1 91 (10) A F 197-AF 199 (11) A F 200-AF 201 (12) A F 202-AF 204 (13) A F 210-AF 231 (14) A F 300-AF 303 - seg reg ate and release any factual information (15) A F 316-AF 319 (16) A F 331-AF 394 (17) A F 417-AF 418 (18) A F 429 -33-nature of their declarations. F urthermore, the Court instructs Plaintiffs and all Defendants, other

than Defendant United States Air F orce, to confer and file a list of documents that are still in dispute within thirty

(30) day s of the date of this Memorandum-Decision and Ord er.
IT IS SO ORDERED.
Dated: September 18, 2017 Sy racuse, New York

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