Osen LLC v. United States Central Command

Background

Osen LLC, described in the opinion as a law firm, represents hundreds of U.S. service members killed or injured in terrorist attacks in Iraq and members of their families. Osen files lawsuits against Iran seeking compensation for injuries from attacks that its clients believe Iran was ultimately responsible for. To support those lawsuits, Osen submitted hundreds of Freedom of Information Act (FOIA) requests to United States Central Command for records about attacks on American service members.

Central Command produced thousands of pages but withheld or redacted some information under FOIA exemptions. After the parties narrowed their dispute, the only remaining issue was whether Central Command could withhold “Vehicle Information”: the types of military vehicles identified in records, photographs and graphics beyond the portions showing the points of impact, text describing vehicle battle damage, and related information appearing in materials previously marked unclassified. The information concerned vehicles damaged by improvised explosive devices using explosively formed penetrators.

Both parties filed renewed motions for summary judgment. The court also reviewed a public declaration and a classified declaration from Major General David S. Doyle, Central Command’s Chief of Staff and an official authorized to classify information.

Prior Disclosures and Estoppel Arguments

Osen argued that Central Command could not withhold the Vehicle Information because similar information had been disclosed in earlier related proceedings. The court rejected that argument. Under the official-disclosure doctrine, an agency cannot use the classified-information exemption for specific information that it officially disclosed, but the previously disclosed information must match the information being sought and concern the same subject.

The court explained that disclosures about some explosively formed-penetrator attacks did not waive the exemption for information about different attacks. The prior disclosures therefore did not prevent Central Command from withholding the Vehicle Information sought in this case. The court also stated that Central Command could not withhold information that had already been produced to Osen; the parties agreed that previously released images or information would not be redacted again.

The court separately rejected Osen’s collateral-estoppel argument because the earlier ruling about the size of explosively formed penetrators involved a different matching question. It also rejected Osen’s judicial-estoppel argument, finding no inconsistent position by Central Command: the command could maintain that earlier, more limited redactions protected national security for particular reasons while now arguing that fuller redactions were necessary for other reasons.

FOIA Exemption 1

FOIA generally requires disclosure of agency records, but Exemption 1 permits withholding information that is authorized under an executive order to remain secret in the interest of national defense or foreign policy and is properly classified under that order.

The court held that Central Command’s public declaration described its reasons with reasonable specificity. Major General Doyle stated that photographs and text about damaged vehicles could reveal the vulnerabilities and capabilities of U.S. military equipment, the types of vehicles most vulnerable to explosively formed penetrators, and how those weapons had successfully penetrated vehicle armor. He explained that adversaries could combine the withheld information with information already released to improve attacks against U.S., coalition, and partner-nation forces and equipment.

The court also found that the information logically fell within the classification criteria in Executive Order 13,526. Major General Doyle had determined, based on his review and official experience, that the Vehicle Information was properly classified at the SECRET level. Central Command’s classification guide specifically covered information such as the cause and location of damage to U.S. tactical vehicles, the effects of improvised explosive devices, the angle of attack, and the effectiveness of vehicle armor. The court concluded that this information could reveal exploitable vulnerabilities and the effectiveness of weapons used against U.S. military systems.

The court gave substantial weight to the agency’s declarations, including the classified declaration it reviewed privately. It found Central Command’s explanation logical and plausible and found no contrary evidence or evidence of bad faith that undermined the agency’s position. The court also held that the agency could change its classification and redaction standards after reassessing threats. The fact that similar information had been disclosed earlier did not make the current withholdings unlawful, particularly because Central Command identified changed threat conditions and stated that the vehicles remained in use by coalition and partner forces.

Disposition

The court granted Central Command’s motion for summary judgment and denied Osen’s motion for summary judgment. Central Command was not required to produce the Vehicle Information in response to Osen’s requests. The order preserved the parties’ agreement that images or information already released to Osen would not be redacted. The parties were directed to report within seven days whether the case could be closed or whether disputes over specific document redactions remained, and the clerk was directed to close the pending motions.