UN1T1:1) STATES DISTRICT CoURT
FoR THE D!STRICT oF CoLUMBIA

JUDICIAL WATCH, lNC.
Plaintiff,

Civil Case N0. 12-1182 (RJL)

FILED

SEP 19 2013

Cterk, U.S. District &

w CWFTS fur the District 
MEMORAN UM OPINION

(seprember\§§, 2013) [Dkrs. ##10,14]

V.

DEPARTMENT OF THE NAVY

§S§/§§\_/S\JS

Defendant.

Plaintiff]udicial Watch Inc. ("Judicial Watch" or "plaintiff") filed the instant

action against the Department of the Navy ("Navy" or "defendant") on July 18, 2012,
challenging the Navy’s redaction of documents produced in response to plaintiff"s
Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), request for records and
communications related to any funeral ceremony held for Osama bin Laden prior to his
burial at sea on the USS Carl Vinson on May 2, 2011. See Compl. [Dkt. #l]. Before
the Court are the parties’ cross-motions for summary judgment Upon consideration of
thc parties’ pleadings, relevant laW, and the entire record in this case, the Court GRANTS
defendant’s Motion for Summary Judgment [Dl<t. #10] and DENIES plaintiffs

Cross-l\/lotion for Summary Judgment [Dkt. #14].

BACKGROUND
Judicial Watch, a non-profit organization that promotes government
accountability, submitted a FOIA request to the Navy on March 20, 2()12, seeking two
categories of documents: (l) all records used or relied on during any funeral ceremony for
Osama bin Laden’s burial at sea on the USS Carl Vinson; and (2) any communications
between government officials regarding any such funeral ceremony. See Decl. of
Lieutenant General Curtis M. Scaparrotti ("Scaparrotti Decl.") [Dkt. #lO-l] 1] 3. The
Navy conducted a search for responsive records which located no documents from the
first category and ten documents from the second category. Ia’. 11 4. Specifically, the
Navy located ten emai1 chains, totaling 31 pages, regarding preparation for and execution
of ()sama bin Laden’s burial at sea. la’. After conducting a line-by-line review of the
responsive documents, the Navy redacted certain information before producing the
documents to plaintiff in November 2012. Id. The redactions were made pursuant to
FOIA Exemptions 1, 3, 5, and 6. Id.; see 5 U.S.C. § 552(b)(1), (3), (5), (6).
STANDARD 0F REVIEW
"FOIA cases are typically and appropriately decided on motions for summary

judgment." judicial Wazch, Inc. v. DOD, l2-CV-49 RC, 2013 WL 4536118, at *4
(D.D.C. Aug. 28, 2013). Under Federal Rule of Civil Procedure 56, summary judgment
is appropriate where the pleadings, stipulations, affidavits, and admissions in a case show

"that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter oflaw." Fed. R. Civ. P. 56(a), (c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The court may accept as true factual assertions in the
moving party’s declarations unless the opposing party submits its own declarations or
documentary evidence to the contrary. Neal v, Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992). The court must accept as true the evidence of, and draw "all justifiable
inferences" in favor of the party opposing summary judgment. Anderson v. Lz'berly
Lobby, Inc., 477 U.S. 242, 255 (l986). A genuine issue exists only where "the evidence
is such that a reasonable jury could return a verdict for the nonmoving party." Ia’. at 248.
In the FOIA context, the government must demonstrate the absence of a genuine

dispute regarding the adequacy of its search for or production of responsive records.

Nat 'l Whz`stleblower Cir. v. U.S. Dep’t ofHeall‘h & Human Servs., 849 F. Supp. 2d 13,
21-22 (D.D.C. 20l2). Because of the information asymmetry between FOIA plaintiffs
and the government, courts require the government to provide a detailed description of
any information withheld under any of the FOIA exemptions enumerated in 5 U.S.C. §
552(b). Oglesby v. U.S. Dep’t ofArmy, 79 F.3d ll72, ll78 (D,C. Cir. 1996). The
government typically presents its justification for withholding certain information in a
declaration or affidavit referred to as a "Vaughn index" after the case of Vcmghn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973). Such a justification is presumed to be submitted in good

faith. See SafeCa/'d Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991).

ANALYSIS

Judicial Watch claims that the Navy improperly redacted information from
Documents 4, 8, and 9, pursuant to FOIA Exemption 1. See Pl.’s Cross-Mot. for Summ.
J. [Dkt. #14] at 1~2. 1 disagree. Because the redactions were proper and necessary to
prevent disclosure of sensitive operational details and to protect our national security,
defendant’s 1\/iotion for Summary Judgment must be GRANTED and plaintiff’ s
Cross-l\/Iotion for Summary Judgment must be DENIED. How so?

FOIA was enacted so that citizens could discover "what their government is up
to." U.S. Dep ’l Juslz'ce v. Reporters Comm. for Freea'om of the Press, 489 U.S. 749, 773
(1989). Recognizing "that public disclosure is not always in the public interest,"
however, the FOIA statute "provides that agency records may be withheld from
disclosure under any one of the nine exemptions defined in 5 U.S.C. § 552(b)." Balrz'dge
v. Shapiro, 455 U.S. 345, 352 (1982). FOIA Exemption 1 applies to information that is
"(A) specifically authorized under criteria established by an Executive Order to be kept
secret in the interest of national defense or foreign policy and (B) [is] in fact properly
classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Our Circuit has
sustained redaction under this exemption upon the government’s plausible assertion that
the redacted information is properly c1assified. See ACLU v. DOD, 628 F.3d 612, 625

(D.C. Cir. 2011); Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007).

Pursuant to FOIA Exemption l, the Navy redacted classified information regarding
the military’s preparation for and execution of Osama bin Laden’s burial at sea from
Documents 4, 8, and 9. See Scaparrotti Decl. {Hl 16, 21-22. The Navy has provided a
logical and plausible asserti0n, through the Declaration of Lieutenant General Scaparrotti,
that the redacted information is properly classified under Executive Order 13526, 75 Fed.
Reg. 707 (Dec. 29, 2009). Lieutenant General Scaparrotti is the Director of the Joint
Staff at the Pentagon. See Scaparrotti Decl. 11 1. He is an original classification
authority who has served in the United States Armed Forces for over 30 years. See z`d.

1111 2, 9. His declaration adequately describes the information redacted from Documents
4, 8, and 9, and offers a logical and plausible explanation as to why disclosure poses a
threat to our national security. See z`a’. 1111 9, 16, 21-22, 24-27.

information may only be classified under Executive Order l3526 if "unauthorized
disclosure of the information reasonably could be expected to result in damage to the
national security." Exec. Order No. l3526 § 1.l(a)(4). In this case, Lieutenant General
Scaparrotti reviewed the ten responsive documents and determined portions of them to be
properly classified under two sections of Executive Order 13526: § 1.4(a), which protects
military plans, weapons systems, or operations, and § 1.4(d), which concerns foreign
relations or foreign activities. See Scaparrotti Decl. w 1~2, 9.

Lieutenant General Scaparrotti’s declaration thoroughly outlines the information

redacted from Documents 4, 8, and 9, as well as the potential consequences of its

disclosure to our national security. Ia’_ 1111 9, 16, 21-22, 24~27. Osama bin Laden’s
burial at sea involved military personnel and was carried out on a military vessel with
military equipment in the context of a highly sensitive, overseas operation. Ia’. 11 9. The
information redacted from Documents 4, 8, and 9 includes sensitive information about
timing, personnel, procedures, and protocols. Id. 1111 16, 21-22. As such, disclosure
could harm our national security by compromising military operational secrets that could
be used to thwart future operations. Id. at 11 24. There is also plausible reason to believe
that disclosing the redacted information could harm our national security by inciting
al-Qai’da members to retaliate against United States citizens and interests. See id. at 1111
25-~26. In the past, al-Qai’da has attempted to recruit and incite violence by claiming
that Osama bin Laden, its former leader and founder, did not receive an appropriate
lslamic burial. Ia’. at 1 25. Reasonably analogous disclosures, including an erroneous
report by Newsweek that American soldiers had desecrated the Koran, have led to
widespread violence and anti-American protests in the Middle East. Id. at 11 26. ln sum,
Lieutenant General Scaparrotti’s assertion that disclosure of the redacted information
poses a potential threat to national security easily crosses the logical and plausible
threshold recently affirmed by our Circuit. See Judicial Watch v, DOD, 715 F.3d 937,
943 (D.C. Cir. 2013).
Finally, 1 conclude that defendant has properly withheld the headings of the ten

responsive documents, which were added to the documents during processing in response

to plaintiffs FOIA request. See Scaparrotti Decl. 11 5. Because these headings post-date
the Navy’s search for documents in response to plaintiffs FOIA request, they are by
definition nonresponsive. 1n addition, the headings are protected under the attorney
work-product prong of FOIA Exemption 5, see 5 U.S.C. § 552(b)(5), which protects
information "normally privileged in the civil discovery context," U.S. Dep ’t of justice v.
Julian, 486 U.S. 1, ll (1988).
CONCLUSION

Thus, for all of the foregoing reasons, the Court GRANTS defendant’s Motion for

Summary Judgment and DENlES plaintiffs Cross-Motion for Summary Judgment. An

Order consistent with this decision accompanies this Memorandum Opinion.

 

United States istrict Judge

