Defense Department Shakes ‘No Easy Day’ Records Request

WASHINGTON (CN) — The Defense Department does not have to produce records related to its handling of classified material allegedly disclosed in a bestseller about the killing of Osama Bin Laden.

Tuesday’s ruling stem from a Freedom of Information Act dispute between the department and the James Madison Project, a Washington-based government watchdog.

It arises from the publication of “No Easy Day: The Firsthand Account of the Mission that Killed Osama Bin Laden,” a memoir by Matt Bissonnette, under the pen name Mark Owen, who participated in the mission.

Bissonnette and his publisher, Penguin Group USA, decided to release the book without first submitting it to the Defense Department for review.

That decision prompted the Pentagon to sue on claims Bissonnette violated nondisclosure agreements and disclosed classified information.

The author and publisher denied those claims. But in August 2016, Bissonnette reached a financial settlement with the Justice Department in which he agreed to forfeit all proceeds from the book and apologized for failing to submit the book for review by authorities before it was published.

As that dispute was raging, the James Madison Project filed a Freedom on Information Act request seeking documents mentioning the book; outlining the extent that Bissonnette was bound by non-disclosure agreements; the extent to which information disclosed in the book remains properly classified; and any legal analysis of the viability of taking legal action against the author and his publisher.

On Wednesday, U.S. District Judge Rosemary Collyer granted the Defense Department’s motion for summary judgment, ruling it performed an adequate search for records responsive to the organization’s FOIA request, and it had properly withheld the records under two exemptions to the Act.

Collyer also held the Pentagon adequately demonstrated that no portions of the exempt records were segregable.

Brad Moss, law partner of James Madison Project founder Mark Zaid,  said in an email “We are disappointed in the Judge’s ruling, as it opens the door for agencies to circumvent the need to provide fact-specific details of their search methodologies in a manner that can be reasonably scrutinized by an impartial third party.

“The ruling effectively renders the details of how a search is conducted as subordinate to the question of good faith of the individual conducting the search if that individual has ‘personal knowledge’ about the documents,” Moss said.

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