UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT BALES, :
:
Plaintiff, : Civil Action No.: 18-2779 (RC)
:
v. : Re Document Nos.: 12
:
UNITED STATES DEPARTMENT :
OF STATE, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This is a Freedom of Information Act (“FOIA”) case brought by Robert Bales, a former
member of the U.S. Military who is currently serving a life sentence after having been convicted
by court-martial for the 2012 murders of sixteen Afghan civilians. See United States v. Bales,
No. ARMY 20130743, 2017 WL 4331013 (A. Ct. Crim. App. Sept. 27, 2017) (affirming Bales’s
conviction), aff’d, 77 M.J. 268 (C.A.A.F. 2018), cert denied, 138 S. Ct. 2692 (2018). At this
stage of the litigation, the Department of State (“the Department” or “the Government”) asks the
Court to rule that it properly responded to a FOIA request from Bales when it refused to confirm
or deny the existence of records (a so-called “Glomar response”) relating to visas requested by or
issued to seven Afghan witnesses who testified at the Plaintiff’s court-martial.
I. FACTUAL BACKGROUND
On September 18, 2018, Plaintiff, acting through his attorney, submitted a FOIA request
to the Department seeking “travel records and biometric data/evidence related to Afghan
witnesses the U.S. Army and the [State Department] brought to the United States in the Army’s
court-martial” which was held on a base in the state of Washington in 2013. Compl. Ex. 1
(“FOIA Request”) at 1, ECF No. 1-2; see also Def.’s Mot. for Summ. J., Ex. 1, Decl. of Eric F.
Stein (“Stein Decl.”) ¶ 6, ECF No. 12-2. The request sought two categories of records. The first
was “Travel records pertaining to the seven Afghan witnesses,” including visas, passports,
related documents or endorsements, and any correspondence between the Department and the
military or between the Department and the Government of the Islamic Republic of Afghanistan.
FOIA Request at 2–3. The second category was biometric data, including DNA samples or iris
scans, that pertained to the witnesses. Id. at 4–6. On November 28, 2018 the Plaintiff filed this
lawsuit attempting to compel the Department’s compliance with its obligations under FOIA. See
Compl., ECF No. 1.
On April 11, 2019, the Department gave Plaintiff a partial response and explained “that it
could not disclose any visa records, including whether any visa records exist relative to a
particular individual, because these records are confidential under . . . the Immigration and
Nationality Act [(“INA”)], 8 U.S.C. § 1202(f), and Plaintiff’s request did not include
authorization from the subjects of the request.” Joint Status Report of 5/6/2019, ECF No. 9.
Two weeks later, the Department informed the Plaintiff that it had not located any documents
responsive to those parts of his request that did not relate to information protected under Section
1202(f). Id. The parties conferred over the following months and it was determined that
Plaintiff would only be challenging the Glomar response he received in connection with the visa
records, not any other part of the response. Joint Status Report of 7/3/2019, ECF No. 11.
The Department moved for summary judgment, arguing that its Glomar response was
valid under FOIA Exemptions 3 and 6. Mem. of L. in Supp. of Def.’s Mot. for Summ. J. (“MSJ
Br.”), ECF No. 12-1. Plaintiff opposed this motion. Mem. in Opp’n to Def.’s Mot. for Summ. J
(“Opp’n”), ECF No. 13, but did not file a cross-motion for summary judgment, as would be
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typical in a FOIA case. 1 The Department replied, and the motion is now ripe for decision.
Reply in Supp. of Def.’s Mot. for Summ. J. (“Reply”), ECF No. 14.
II. LEGAL FRAMEWORK
FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to
ensure an informed citizenry, vital to the functioning of a democratic society.’” FBI v.
Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214 (1978)). The Act mandates release of properly requested federal agency records, unless the
materials fall squarely within one of nine statutory exemptions. Milner v. Dep't of Navy, 562 U.S.
562, 565 (2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir.
2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)). Additionally, FOIA “requires that even if some
materials from the requested record are exempt from disclosure, any ‘reasonably segregable’
information from those documents must be disclosed after redaction of the exempt information
unless the exempt portions are ‘inextricably intertwined with exempt portions.’” Johnson v.
EOUSA, 310 F.3d 771, 776 (D.C. Cir. 2002) (citing 5 U.S.C. § 552(b) and Mead Data Cent., Inc.
v. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). Exemptions must be “narrowly
construed,” and “conclusory and generalized allegations of exemptions are unacceptable.” Prop.
of the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018)
(quoting Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir. 2007).
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“FOIA cases are routinely decided based on cross-motions for summary judgment.” Jordan v.
U.S. Dep’t of Labor, 273 F. Supp. 3d 214, 245 n.37 (D.D.C. 2017). With this in mind, the
Department urges the Court to construe Plaintiff’s Opposition to its motion as a cross-motion for
summary judgment, despite the fact that Plaintiff did not style its filing as such. Reply at 1 n.1.
Because the Court finds that the Department is entitled to summary judgment, the status of
Plaintiff’s filing is immaterial. To the extent that it would be appropriate for the Court to view
the Opposition as a cross-motion for summary judgment, the motion would be denied.
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“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). An agency is entitled to
summary judgment if no material facts are genuinely in dispute and the agency demonstrates
“that its search for responsive records was adequate, that any exemptions claimed actually apply,
and that any reasonably segregable non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181
(D.D.C. 2017). “This burden does not shift even when the requester files a cross-motion for
summary judgment”—and this Plaintiff has not—“because ‘the Government ultimately has the
onus of proving that the documents are exempt from disclosure.’” Hardy v. ATF, 243 F. Supp.
3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v.
FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
To carry its burden, the agency must provide “a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of the withheld document to which they apply.” Elec. Privacy
Info. Ctr. v. DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S.
Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). The agency “cannot justify its
withholdings on the basis of summary statements that merely reiterate legal standards or offer
‘far-ranging category definitions for information,’” Citizens for Responsibility & Ethics in Wash.
v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13 (D.D.C. 2013) (quoting King v. U.S. Dep't of
Justice, 830 F.2d 210, 221 (D.C. Cir. 1987)), but it “may rely on declarations that are reasonably
detailed and non-conclusory,” Pinson v. U.S. Dep’t of Justice, 245 F. Supp. 3d 225, 239 (D.D.C.
2017); see also Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (requiring that, to
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support summary judgment, agency affidavits must “demonstrate that the information withheld
logically falls within the claimed exception, and . . . not [be] controverted by either contrary
evidence in the record nor by evidence of agency bad faith” (quoting Miller v. Casey, 730 F.3d
773, 776 (D.C. Cir. 1984) (quotation omitted))). While a reviewing court should “respect the
expertise of an agency,” Hayden v. NSA / Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979),
courts review an agency’s decision to withhold records de novo. Pinson, 245 F. Supp. 3d at 239.
“Glomar responses are an exception to the general rule that agencies must acknowledge
the existence of information responsive to a FOIA request and provide specific, non-conclusory
justifications for withholding that information.” Am. Civil Liberties Union v. CIA (“ACLU”),
710 F.3d 422, 426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178
(D.C. Cir. 2011)). An agency can only give a Glomar response “when confirming or denying the
existence of records would itself ‘cause harm cognizable under a[] FOIA exception.’” Id.
(quoting Roth, 642 F.3d at 1178) (internal quotations omitted). To apply this rule and determine
whether the very existence of records fits in a FOIA exemption, “courts apply the general
exemption review standards established in non-Glomar cases.” Id. (quoting Wolf v. CIA, 473
F.3d 370, 374 (D.C. Cir. 2007)). “Ultimately,” whether or not the plaintiff’s argument is based
on public disclosure, an agency’s justification for invoking a Glomar response or any FOIA
exemption “is sufficient if it appears ‘logical’ or ‘plausible.’” Id. at 427 (quoting Wolf, 473 F.3d
at 374–75).
The exemptions at issue in this case are Exemptions 3 and 6. Exemption 3 allows the
government to withhold information “specifically exempted from disclosure by statute,” if such
statute either “requires that the matters be withheld from the public in such a manner as to leave
no discretion on the issue” or “establishes particular criteria for withholding or refers to
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particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Here, the Government relies
on section 1202(f) of the INA, 8 U.S.C. § 1202(f), which says that records “pertaining to the
issuance or refusal of visas or permits to enter the United States shall be considered
confidential.” See MSJ Br. at 1. Exemption 6 prevents disclosure of “personnel and medical
files and similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6).
III. ANALYSIS
The Department argues that Exemptions 3 and 6 are independent grounds on which its
Glomar response was proper. This means the Department is entitled to summary judgment if it
is correct on either argument. Because the Court finds that Exemption 6 is a proper basis for the
Department’s Glomar response, it has no occasion to decide whether Exemption 3 might also
provide a proper basis.
Before addressing the Department’s justification for its Glomar response, the Court must
address the Plaintiff’s primary argument, which is that the response he received from the
Department is not truly a Glomar response. Opp’n at 5. It is not a Glomar response, he says,
because “the State Department’s own declaration indicated that documents responsive to [the
Plaintiff’s] request do, in fact, exist.” Id. at 4. This is not the case. The Plaintiff quotes two
paragraphs of the Department’s declaration, id. at 3–4 (quoting Stein Decl. ¶¶ 41–42), in which
the declarant first explains that acknowledging the existence of records would disclose that a visa
had been applied for and then explains that the privacy interests of the Afghan witnesses are “of
paramount importance.” Stein Decl. ¶¶ 41–42. The Plaintiff does not point to any language in
which the Department’s declarant directly acknowledges the existence of records, and, to the
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extent the Plaintiff is relying on inferential reasoning, he does not explain his logic. The
argument that the Department did not produce a Glomar response therefore fails.
Moving on to the Department’s justification, FOIA Exemption 6 guards against
disclosure of “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). There are
three stages to analyzing whether Exemption 6 properly applies. First, the analysis “requires . . .
a determination of whether the document in question qualifies as ‘a personnel, medical, or
similar file.’” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 140 (D.D.C. 2014)
(alteration in original) (quoting Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228
(D.C. Cir. 2008). The term “similar files” is “construed broadly and is ‘intended to cover
detailed Government records on an individual which can be identified as applying to that
individual.’” Gov’t Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 105–06
(D.D.C. 2010) (quoting Dep’t of State v. Wash. Post. Co., 456 U.S. 595, 602 (1982)). Second,
the Court must “determine whether there is a ‘substantial’ privacy interest in preventing the
document[s’] disclosure,” or, in a Glomar case, the information’s disclosure. Judicial Watch, 25
F. Supp. 3d at 140 (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874
(D.C. Cir. 1989)). “[U]se of the word substantial in this [FOIA] context, means less than it
might seem. A substantial privacy interest is anything greater than a de minimis privacy
interest.” Multi Ag Media, 515 F.3d at 1229–30. Third, if a substantial privacy interest has been
identified, then the Court must “determine whether [the records’] disclosure ‘would constitute a
clearly unwarranted invasion of personal privacy’” within the meaning of the statute. Id. at 1228
(quoting 5 U.S.C. § 552(b)(6)). To do this, the Court “balance[s] the privacy interest that would
be compromised . . . against any public interest in the requested information.” Id.; see also
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Sullivan v. Veterans Admin., 617 F. Supp. 258, 260 (D.D.C. 1985) (describing two steps to the
balancing analysis: first, “identify[ing] the nature and magnitude of the various interests
involved” and second, “balancing these competing interests”). To establish a public interest, a
plaintiff must show “that the public interest sought to be advanced is a significant one, an interest
more specific than having the information for its own sake”; and that “the information is likely to
advance that interest.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
For the first stage of this analysis, the Department asserts that Exemption 6 applies to the
fact that responsive visa records either do or do not exist—as is relevant for the Glomar analysis.
See MSJ Br. at 8–9. The Department points to cases in which personal privacy interests in
underlying documents provided a basis for a Glomar response under FOIA Exemptions 6 and 7.
E.g., People for the Ethical Treatment of Animals v. Nat’l Insts. of Health, 745 F.3d 535, 541–44
(D.C. Cir. 2014). The Plaintiff does not challenge this. In part, this is because he fails to address
Exemption 6 in any clear way in his opposition brief. However, while the Court can discern
elements of an argument on subsequent steps of the Exemption 6 analysis, it sees nothing at all
from the Plaintiff on this first question. In light of binding precedents directing that the
Exemption should be read broadly, the Court concludes that the fact of the existence or
nonexistence of visa records is properly covered by Exemption 6.
At the second stage, where the Court must find a substantial privacy interest, the
Department points to the Afghan witness’s “privacy interest in [their] own immigration
status[es], including whether [they have] applied for or been granted a visa.” MSJ Br. at 9; see
also Stein Decl. ¶ 41 (“[D]isclosure of the existence or non-existence of such records to a third
party would result in a clearly unwarranted invasion of the subject of the record’s personal
privacy.”). The Plaintiff does not make any argument or cite any caselaw suggesting that
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individuals do not have a privacy right in their immigration status, but simply asserts, without
pointing to any evidence, that the Department is being disingenuous when it says it is attempting
“to protect the privacy rights of individuals applying for permission to enter the United States.”
Opp’n at 5. The Department’s motives are not part of the FOIA analysis, so even if the Plaintiff
is correct that the Department is not genuinely interested in protecting the Afghan witnesses’
privacy, it would not matter. Exemption 6 is implicated because disclosing whether visa records
exist would disclose information “applying to” each Afghan witness. Center for Biological
Diversity v. U.S. Army Corps of Engineers, 405 F. Supp. 3d 127, 143 (D.D.C. 2019) (quoting
Washington Post Co., 456 U.S. at 602).
At the third stage, identifying and balancing the public interest, the Plaintiff has come
closer to putting forward an argument. The Court is able to identify two public interests that he
arguably identifies and claims should offset any privacy interest. The first of these is a national
security argument—he says that the Department is making “an effort to prevent the disclosure of
records that may reflect that Federal Government officials allowed those who might do harm to
American citizens to enter the United States.” Opp’n at 5. Because the Plaintiff is the non-
moving party on the Government’s motion for summary judgment, the Court must view the
evidence in the light most favorable to him and must draw “all justifiable inferences” in his
favor. Ahuruonye v. U.S. Dep’t of Interior, 239 F. Supp. 3d 136, 139–140 (D.D.C. 2017) (citing
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006), and quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)). There is a limit, however, to the inferences the Court can draw.
“The non-moving party . . . cannot rely on ‘mere allegations or denials’” or on “[c]onclusory
allegations unsupported by factual data.” Id. (quoting Burke v. Gould, 286 F.3d 513, 517 (D.C.
Cir. 2002) and Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999)).
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The Plaintiff points to no evidence whatsoever supporting either the notion that the Afghan
witnesses intend to do harm to the United States or the notion that the Government is engaged in
some sort of cover-up to protect them. It is possible that the Plaintiff did not intend for the Court
to read this offhand disparagement of the Government and the witnesses as an argument for a
public interest in disclosing the existence or nonexistence of responsive records, but to the
extend he did so intend it, the argument fails.
The second potential public interest that the Plaintiff arguably identifies is an interest in
his potential exoneration. See Opp’n at 5–6. The D.C. Circuit has said that “FOIA is not a
substitute for discovery in criminal cases or in habeas proceedings,” but has also held that there
is a substantial public interest in exonerations of wrongfully-convicted inmates, at least if they
have been sentenced to death. Roth, 642 F.3d at 1177; id. at 1175–77. Bales faces life
imprisonment, not the death penalty, but the Court will assume without deciding that the public
interest in avoiding unjust convictions extends to those facing this second-most extreme
punishment. That question does not have to be answered because, assuming that a public interest
exists, the Plaintiff would still have to show that “the information” he wants disclosed “is likely
to advance [his] interest” in exoneration, and the Plaintiff cannot do so. Nat’l Archives &
Records Admin., 541 U.S. at 172. The Court fails to see how Bales’s cause would be advanced
by merely receiving an answer as to whether or not the Government has visa records for the
Afghan witnesses. As the Department notes, Reply at 5 n.5, the U.S. Army Court of Criminal
Appeals already rejected the notion that any additional information regarding the Afghan
witnesses would have made any difference at the Plaintiff’s court-martial, because he had
stipulated to such a damning set of facts and had waived the defenses of self-defense, defense of
others, and obedience of orders. Bales, No. ARMY 20130743, 2017 WL 4331013, at *5–6.
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Because the public interest in exoneration of the wrongfully-convicted would not be
advanced if the Department were to disclose whether it had visa records pertaining to the Afghan
witnesses, the Afghan witnesses’ privacy interest in information pertaining to their immigration
status and activities outweighs any public interest in disclosure. This means that the Government
was justified in issuing a Glomar response based on FOIA Exemption 6 and is entitled to
summary judgment.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 6, 2020 RUDOLPH CONTRERAS
United States District Judge
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