American Civil Liberties Union v. Department of Defense

Background

The American Civil Liberties Union and the American Civil Liberties Union Foundation, together referred to as the ACLU, sued the Department of Defense, Central Intelligence Agency, Department of Justice, and Department of State under the Freedom of Information Act (FOIA). The request sought records concerning a U.S. military operation carried out on January 29, 2017, in al Ghayil, Yemen.

In a January 27, 2020 decision, the court resolved most of the parties’ competing motions for summary judgment. It denied the ACLU’s motion and granted the defendants’ motion, except as to two documents: CENTCOM/027–030 and JS/057–058. Those documents were redacted copies of military orders from the Joint Staff to the U.S. Central Command concerning operations supporting the Shabwah offensive approved by the President. The ACLU argued that the government might previously have publicly acknowledged some or all of the redacted information. The defendants responded that the redacted material contained more specific operational information, including details about the mission’s parameters and approval period.

Because the existing record did not allow the court to assess the parties’ arguments meaningfully, the court ordered the defendants to submit the two documents for secure private review. The defendants did so on February 13, 2020.

Legal standard

FOIA Exemption One protects records that are authorized under executive-order criteria to remain secret in the interest of national defense or foreign policy and are properly classified under that executive order. Official government disclosure can waive that protection, but the disclosure must be as specific as the requested information, match it, and have been made publicly through an official and documented disclosure. Similar information or even substantial overlap is not enough; the information previously disclosed and the information withheld must present the same information about the same subject.

Ruling

After reviewing the documents, the court held that each had been properly redacted. The redacted information concerned the mission’s parameters, the time span of the approval, and other operational matters. The court found that this information did not match and was clearly more specific than any information previously disclosed by the government that the ACLU identified. Releasing it would reveal information that had not been officially acknowledged and could harm U.S. national security or foreign relations.

Judge Paul A. Engelmayer granted the defendants’ motion for summary judgment and denied the ACLU’s motion for summary judgment with respect to CENTCOM/027–030 and JS/057–058. The clerk was directed to close the case.