Protect Our Defenders et al v. Defense et al
Filing
52
ORDER granting in part and denying in part 37 Motion for Summary Judgment for the reasons in the attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 7/12/2019. (Bryan, Kelsey)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PROTECT OUR DEFENDERS and
CONNECTICUT VETERANS LEGAL
CENTER
Plaintiffs,
:
:
:
:
:
v.
:
:
DEPARTMENT OF DEFENSE and
:
DEPARTMENT OF HOMELAND SECURITY :
Defendants.
:
3:17-cv-02073 (VLB)
July 12, 2019
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. 37]
Plaintiffs Protect Our Defenders (“POD”) and Connecticut Veterans Legal
Center (“CVLC”) (collectively “Plaintiffs”) brought suit under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of records withheld
and redacted by Defendants Department of Defense (“DOD”) and Department of
Homeland Security (“DHS”) (collectively “Defendants”).
[Dkt. 1 (Compl.)].
Plaintiffs claim Defendants failed to conduct an adequate records search and
withheld and redacted documents which did not fall within the asserted
exemptions from disclosure under the FOIA. Before the Court now is Defendants’
Motion for Summary Judgment, [Dkt. 37] seeking an order that their records
search was adequate and that they properly withheld and redacted information
requested by Plaintiffs. For the following reasons, Defendants’ Motion is granted
in part and denied in part.
I.
Background
All facts recited below are asserted in the Complaint [Dkt. 1], the parties’
1
Local Rule 56(a) Statements [Dkts. 37-2, 40-1], and the summary judgment
briefing and substantiated by admissible evidence filed as exhibits. The Court
presents the facts in the light most favorable to the nonmoving party—here,
Plaintiffs—after drawing all reasonable inferences in their favor. Sologub v. City
of New York, 202 F.3d 175, 178 (2d Cir. 2000).
Plaintiffs submitted three requests for records to Defendants pursuant to
the Freedom of Information Act.1 [Dkt. 37-2 (Defs.’ L. R. 56(a)1 Statement) at ¶ 6].
Five branches of the armed forces—the Air Force, Army, and Navy and Marine
Corps within the DOD, and the Coast Guard within DHS—conducted searches
and issued responses to the requests. Id. at ¶ 10. Defendants detailed their
efforts in declarations and Vaughn indices attached to the motion for summary
judgment. Id. ¶ 11. Defendants produced certain documents, some of which
were redacted, and withheld other documents.
The parties discussed the materials redacted and withheld and present the
following discovery disputes for the court to resolve: first, whether the search
for documents responsive to Item #7 of the Second Request was legally
adequate; second, whether Defendants’ properly withheld information protected
by privilege under Exemption 5; and third, whether Defendants’ properly withheld
biographies and redacted from disclosed documents the names of personnel at
1
The July 6, 2017 Requests (the “First Requests”) to all relevant DOD and DHS
components concerned the Military Whistleblower Protection Act (“MWPA”). Id. at
¶ 7. The July 14, 2017 Requests (the “Second Requests”) to all relevant DOD and
DHS components concerned the “Military Justice System.” Id. at ¶ 8. The August
23, 2017 Requests (the “Third Requests”) to all relevant DOD components
concerned the Boards for Correction of Military Records (“BCMRs”). Id. at ¶ 9.
2
the rank of Colonel and below under Exemption 6. Id. at ¶ 1; [Dkt. 40-1 (Plfs.’ Rule
56(a) Statement) at ¶1].
A. Response to Second Request Item #7
Item #7 of the Second Requests sought information regarding the Air Force
“race and discipline working group” (the “Working Group” or “Group”), referred
to by Plaintiffs as the “Air Force’s diversity team.”2 [Dkt. 37-2 at ¶ 12; Dkt. 48-10
at p. 3 ¶ 5]. Three Air Force offices3 were involved in the Working Group—the
Headquarters Office, the Secretary’s Office, and the JAG Office.4 Id. at ¶¶ 24-25.
The Headquarters Office served as the lead office for the study and generation of
written work for the Working Group, with the Group’s Study Director and Lead
Data Analyst assigned to that office. [Dkt. 48-10 at ¶ 5]. The Working Group
2
The Request reads: “7. Any and all information regarding the creation and
performance of the Air Force’s diversity team. Such information includes, but is
not limited to:
a. If and when the diversity team was created.
b. The names of the members who are on the diversity team.
c. The qualifications of each member of the diversity team.
d. Any findings by the diversity team.
e. Any recommendations by the diversity team.
f. Whether witnesses were called to testify in front of the diversity team.”
[Dkt. 37-2 at ¶¶ 14-15].
3
Defendants provide full names and corresponding acronyms for the three offices.
See [Dkt. 37-1 at 5-6]. The names and acronyms are cumbersome, and the Court
therefore assigns shorthand names for each.
They are as follows: the
Headquarters Air Force Diversity and Inclusion, Manpower, Personnel, and
Services (“HAF/A1DV”), referred to in this decision as the “Headquarters Office”;
the Secretary of the Air Force for Manpower and Reserve Affairs (“SAF/MR”),
referred to in this decision as the “Secretary’s Office”; and the Air Force Judge
Advocate General (“AF/JA”), referred to in this decision as the “JAG Office.”
4
The Study Director from the Headquarters Office, the initial lead from the JAG
Office, and the advisor, Equal Opportunity Subject Matter Expert, from the
Secretary’s Office took the lead in creating the Working Group. [Dkt. 37-10 (Jones
Suppl. Decl.) ¶ 5].
3
convened from April 2016 to June 2016. [Dkt. 37-2 at ¶ 47; Dkt. 48-10 (Jones
Second Suppl. Decl.) at ¶ 5]. The Declarations of Colonel Jones, currently, and
at all relevant times, the Chief of the Headquarters Office, provide background
regarding the Working Group, relevant file systems, and search efforts
concerning Item #7. [Dkt. 37-2 at ¶¶ 14-15].
The Headquarters Office was deemed most likely to have responsive
documents based on its role in the Working Group. [Dkt. 48-10 at ¶¶ 5, 7]. Air Force
personnel conducted initial searches of the Headquarters Office shared network
drive using search terms5 in February and March 2018. [Dkt. 37-2 at ¶ 16; see also
Dkt. 40-1 at ¶ 16; Dkt. 21 (3.12.2018 Status Report) at 9]. The Deputy Director of the
Analyses Foundation & Integration Division—the office responsible for leading,
carrying out, reviewing, and ensuring the analytic integrity of studies conducted
throughout the Air Force—searched email records. [Dkt. 37-2 at ¶¶ 17-19; Dkt. 378 (Jones Decl.) at ¶ 6]. The initial searches produced the “Talking Paper on Air
Force Military Justice System Diversity Efforts” (the “Talking Paper”), which relates
to the creation and performance of the Working Group. [Dkt. 37-2 at ¶ 20; Dkt. 4810 at ¶ 6].
On April 16, 2018, the Air Force Legal Operations Agency requested
supplemental searches for additional records relating to the creation of the Group
and its work on court martials. [Dkt. 37-2 at ¶ 21-22; Dkt. 48-10 at ¶ 4]. The
5
Defendants represent that they used the search terms “race” and “justice,”
though an earlier status update from the parties states that Defendants used the
search phrase “race and justice.” [Dkt. 37-2 at ¶ 16; Dkt. 40-1 at ¶ 16; Dkt. 21
(3.12.2018 Status Report) at 9].
4
Headquarters Office conducted supplemental searches between May 22, 2018 and
June 18, 2018. Id. at ¶ 30; [Dkt. 37-10 at ¶ 7]. Those conducting the searches did
not use the provided agreed upon search terms.6 See [Dkt. 37-2 at ¶¶ 22-23]. They
unilaterally limited the scope of the search after determining that the terms were
overly broad. [Dkt. 48-10 at 10].
The member of the Working Group who was familiar with its formation and
performance, and knowledgeable about Headquarters Office files, determined that
the Headquarters Office shared network drive was the most likely location to have
responsive records and searched the locations on the shared drive mostly likely to
contain such records. [Dkt. 48-10 at ¶ 7; Dkt. 37-2 at ¶ 31; Dkt. 37-10 at ¶ 7]. The
member also reviewed emails in his/her account from April through June 2016, the
time period during which the Group convened. [Dkt. 37-2 at ¶¶ 40-41; Dkt. 37-10 at
¶ 8].
With the exception of the one responsive email identified, the resulting
responsive documents concerned the performance of the Working Group. [Dkt. 4810 at ¶ 8].
Other members involved in the formation of the Working Group—including
the initial and final JAG Office leads, [Dkt. 37-10 at ¶ 11-12; Dkt. 37-2 at ¶ 50-57], and
the Special Assistant to the Secretary’s Office, [Dkt. 37-2 at ¶ 59-62]—were asked
to conduct a limited search of their email accounts for emails specifically relating
to the Group’s formation.7 Id. at ¶ 9; [Dkt. 37-2 at ¶ 42]. The Secretary’s Office also
6
Plaintiffs requested use of the following search terms: “diversity,” “diversity
team,” “inclusion,” “diverse backgrounds,” “inclusive,” or “demographics.” [Dkt.
37-2 at ¶¶ 22-23].
7
Defendants’ Rule 56(a) Statement represents that the JAG leads were not asked
for emails regarding the Group’s performance “because that was not AF/JA’s role;
5
determined that it did not have responsive records on its shared drive. [Dkt. 37-2
at ¶ 60].
Colonel Jones’s Second Supplemental Declaration claims that “[a]ll USAF
personnel involved in the searches identified relevant locations based on their
expertise and knowledge of USAF records and recordkeeping[]” and “concluded
that there were no other locations reasonably likely to have responsive records.”
[Dkt. 48-10 at ¶ 11].
B. Exemption 5 Withholdings
DOD withheld documents and information claiming deliberative process and
attorney client privilege under Exemption 5. Id. at ¶ 91. Exemption 5 disputes
remain as to four documents—9-E, 9-G, 9-H, and 9-I.8 [Dkt. 48 at 9].
C. Exemption 6 Withholdings
Plaintiffs seek Staff Judge Advocate (“SJA”) biographies from each
component. [Dkt. 37-2 at ¶ 63]. Defendants withheld these biographies under
Exemption 6, which protects information in personnel and medical files and similar
files when disclosure would constitute a clearly unwarranted invasion of privacy.
Plaintiffs seek the biographies in full and dispute the extent to which they are
considered private, treated as confidential, and distributed to non-DOD personnel.
[Dkt. 40-1 at ¶¶ 64-65, 67-68, 72, 79, 85].
it was instead the role of HAF/A1DV.” [Dkt. 37-2 at ¶ 58]. However, the source cited
for that contention does not state that the JAG Office had no role in the Group’s
performance. See [Dkt. 37-10 at ¶ 7].
8
After Plaintiffs filed their Opposition to the Motion for Summary Judgment,
Defendants withdrew Exemption 5 claims on 7 of documents (Exs. 9-A, 9-B, 9-C, 9D, 9-F, 9-G, and 9-I) and produced those documents to Plaintiffs for the first time
or with revised redactions on December 10, 2018. [Dkt. 48 at 9].
6
Defendants also withheld personal identifying information of government
and military personnel at the rank of Colonel (O-6) and below pursuant to
Exemption 6. [Dkt. 37-2 at ¶¶ 86-89]. Plaintiffs argue that they are entitled to
identifying information for individuals at the rank of Colonel.
II.
Standard of Review
“FOIA was enacted to promote honest and open government and to assure
the existence of an informed citizenry to hold the governors accountable to the
governed.” Grand Cent. P’ship., Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)
(quotation marks omitted). FOIA reflects “a general philosophy of full agency
disclosure,” Dep’t of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quotation marks
omitted), and “adopts as its most basic premise a policy strongly favoring public
disclosure of information in the possession of federal agencies,” Halpren v. F.B.I.,
181 F. 3d 279, 286 (2d Cir. 1999).
“The agency must disclose its records ‘unless its documents fall within one
of the specific, enumerated exemptions set forth in the Act.’” Associated Press
v. United States Dep’t of Defense, 554 F.3d 274 (2d Cir. 2009) (quoting Wood v.
F.B.I., 432 F.3d 78, 82-83 (2d Cir. 2005)).
“In keeping with the policy of full
disclosure, the exemptions are narrowly construed with doubts resolved in favor
of disclosure.” Halpren, 181 F.3d at 287 (quotation marks omitted).
“As with all motions for summary judgment, summary judgment in a FOIA
case is appropriate only when the . . . materials submitted to the Court show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Serv. Women’s Action Network v. Dep’t of Def., 888
7
F. Supp. 2d 231, 240 (D. Conn. 2012) (quotation marks omitted) (hereinafter
“SWAN I”). “In order to prevail on a motion for summary judgment in a FOIA case,
the defending agency has the burden of showing that its search was adequate
and that any withheld documents fall within an exemption to FOIA.” Carney v.
United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). That burden
remains with the agency when seeking to justify redaction of identifying
information.
Associated Press, 554 F.3d at 284.
“Redaction, however, is
‘expressly authorized by FOIA,’ which indicates that Congress ‘recognized that
the policy of informing the public about the operation of its Government can be
adequately served in some cases without unnecessarily compromising individual
interests in privacy.’” Id. (quoting United States Dep’t of State v. Ray, 502 U.S.
164, 174 (1991)).
To sustain its burden, the agency may rely on “[a]ffidavits or declarations
supplying facts indicating that the agency has conducted a thorough search and
giving reasonably detailed explanations why any withheld documents falls within
an exemption.” Carney, 19 F.3d at 812. “Affidavits submitted by an agency are
accorded a presumption of good faith; accordingly, discovery relating to the
agency’s search and the exemptions it claims for withholding records generally
is unnecessary if the agency’s submissions are adequate on their face. When this
is the case, the district court may forgo discovery and award summary judgment
on the basis of the affidavits.” Id. (quotation marks and citations omitted). The
good faith presumption, however, only applies to agency affidavits that are nonconclusory and “reasonably detailed.” Halpren, 181 F.3d at 295.
8
III.
Discussion
Defendants move for summary judgment on each of the three contested
issues, arguing that as a matter of law (1) their search for information responsive
to Item #7 was adequate, (2) withholdings pursuant to Exemption 5 are proper, and
(3) withholdings pursuant to Exemption 6 are proper. [Dkt. 37 (Mot. Summ. J.); Dkt.
37-1 (Mot. Summ. J. Mem.)]. Plaintiffs argue that Defendants have not met their
burden and summary judgement is not appropriate. [Dkt. 40 (Opp’n Mem.)].
A. Adequacy of Air Force Search of Records Responsive to Second
Request Item #7
To prevail on summary judgment when the adequacy of an agency’s search
is at issue, “the defending agency must show beyond material doubt that it has
conducted a search reasonably calculated to uncover all relevant documents.”
Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). To meet this burden, agency
declarations “should provide reasonably detailed information about the scope of
the search and the search terms or methods employed” and “must also aver that
all files likely to contain responsive materials (if such records exist) were
searched.” SWAN I, 888 F. Supp. 2d at 244-45. “If . . . the record leaves substantial
doubt as to the sufficiency of the search, summary judgment for the agency is not
proper.” New York Times Co. v. United States Dep’t of Defense, 499 F. Supp. 2d
501, 517 (S.D.N.Y. 2007) (quoting Campbell v. United States Dep’t of Justice, 164
F.3d 20, 27 (D.C. Cir. 1998)).
In Item #7 of their Second Request, Plaintiffs sought information regarding
the creation and performance of the “Air Force’s diversity team”—including when
it
was
created,
names
and
qualifications
9
of
members,
findings
and
recommendations of the team, and whether any witnesses were called to testify. 9
[Dkt. 37-2 at ¶ 12]. In their Opposition Memorandum, Plaintiffs argue that the Air
Force failed to adequately explain its relevant file systems and its method of
searching, and that the Air Force ignored portions of Plaintiffs’ request when
conducting the searches. [Dkt. 40 at 9]. Defendants argue that the evidence
establishes that DOD properly discharged its FOIA obligations in searching for and
responding to Item #7 of Plaintiff’s Second Request.
Defendants provide three declarations from Colonel Jones establishing
Defendants’ efforts to search for records responsive to Item #7. See [Dkt. 37-8 (Ex.
5 Jones Decl.); Dkt. 37-10 (Ex. 7 Suppl. Jones Decl.); Dkt. 48-10 (Ex. 21 Second
Suppl. Jones Decl.)].
Defendants’ provided the Second Supplemental Jones
Declaration, which provides notable additional detail regarding the file systems and
searches, with their Reply Memorandum, after submission of Plaintiffs’ Opposition.
As laid out below, the Court concludes that the totality of Defendants’ submissions
sufficiently describes the file systems and searches but that those searches were
inadequate.
1.
Description of Files and Searches
Defendants first confirmed with Plaintiffs that the “the Air Force’s diversity
team” was meant to refer to the Working Group identified in the “Talking Paper on
Air Force Military Justice System Diversity Efforts” (the “Talking Paper”). [Dkt. 4810 at p. 3 ¶ 5]. Three Air Force offices were involved in the Working Group: the
9
See supra at footnote 2 for the full text of the request.
10
Headquarters Office,10 the Secretary’s Office,11 and the JAG Office.12 [Dkt. 37-2 at
¶¶ 24-25]. The Group convened for 90 days, between April and June 2016. [Dkt.
48-10 at p. 3 ¶ 5]. The Headquarters Office served as the lead for the study and
generation of written work for the Group, with the Group Study Director and Lead
Data Analyst both assigned to the Headquarters Office. Id. at ¶ 5. As a result,
Defendants determined that it was the most likely office to have responsive
documents. Id. at ¶¶ 5, 7.
Colonel Jones’s declarations explain that the Air Force has a decentralized
file management system, with each organization managing and maintaining its own
files. [Dkt. 48-10 at ¶ 3]. Each organization has a shared network drive with an
Electronic Records Management folder containing the organization’s official
records. Id. Personnel within each organization also have access to and may store
records on a personal drive, the H drive, which requires a Common Access Card
(“CAC”) to access.
Id.
This file system, along with former Working Group
members’ personal knowledge, led Defendants to conclude that responsive
documents would most likely reside on the Headquarters Office shared network
drive. Id.
Air Force personnel have an email account controlled at the local
organizational level. [Dkt. 37-2 at ¶¶ 34-35]. They receive a new email account, and
lose access to their old account, when they have a permanent change of station
10
The Headquarters Air Force, Diversity and Inclusion, Manpower, Personnel, and
Services Office (“HAF/A1DV”).
11
The Secretary of the Air Force for Manpower and Reserve Affairs Office
(“SAF/MR”).
12
The Air Force Judge Advocate General Office (“AF/JA”).
11
(“PCS”). Id. at ¶¶ 37-38. Unless an individual creates a back up of his/her emails
to another medium prior to a PCS, he/she will lose all emails from the earlier
account. Id. at ¶ 39.
Considered in their entirety, the Court concludes that Defendants did not
adequately describe their filings systems and searches, as required to allow the
Court to determine whether the relevant locations were searched, for the reasons
described below. See El Badrawi v. Dep’t of Homeland Security, 583 F. Supp. 2d
285, 300 (D. Conn. 2008) (“[T]his court, other courts in this Circuit, and the D.C.
Circuit, have all held that affidavits describing a search must detail files searched
and the general scheme of the agency file system. . . .
Without at least an
elementary description of the general scheme of an agency’s file system, a FOIA
requester has no basis upon which to dispute an agency’s assertion that any
further search is unlikely to disclose additional relevant information.” (internal
citations, quotation marks, and brackets omitted)).
Headquarters Office personnel and the Deputy Director of the Air Force
Analyses Foundation & Integration Division conducted an initial search of their
emails and the Headquarters Office shared network drive in late February and early
March 2018. [Dkt. 37-2 at ¶¶ 16-20; Dkt. 37-8 at ¶ 6; Dkt. 48-10 at ¶ 6]. Defendants
represent that they used the search terms “race” and “justice,” though an earlier
status update from the parties states that Defendants did not use these individual
terms, but rather used the search phrase “race and justice” which would
necessarily yield fewer results. Id. at ¶ 16; Dkt. 40-1 at ¶ 16; Dkt. 21 (3.12.2018
Status Report) at 9]. It is unclear what search terms were used and it is also unclear
12
what folders on the Headquarters Office shared network drive were searched using
the terms.
Supplemental searches were conducted between May and June 2018. [Dkt.
37-2 at ¶¶ 30; Dkt. 37-10 at ¶ 7].
The Headquarters Office Chief of Strategic
Communications, a former member of the Working Group familiar with its formation
and performance and knowledgeable about the Headquarters Office files, searched
the locations on the shared network drive most likely to contain responsive
records. [Dkt. 48-10 at ¶ 7; Dkt. 37-2 at ¶ 31; Dkt. 37-10]. That individual determined
that use of the supplemental search terms provided by Plaintiffs13 would lead to
overinclusive results. [Dkt. 48-10 at 10]. Specifically, according to Colonel Jones’s
declaration, use of the search terms would have returned records from not only the
Headquarters Office Working Group, but many other Air Force organizations that
were part of the larger USAF Diversity and Inclusion team, such as the civilian and
military Equal Opportunity programs, the Air Force Personnel Center, which
conducts its own demographics studies, and Development Teams, which conduct
barrier analyses on career fields and processes.
Id.
Defendants provide no
explanation for why the search terms could not have been used on a more limited
set of folders if, as Colonel Jones’s declarations indicate, former working group
members were able to identify the relevant locations. Additionally, Defendants do
not explain why they failed to propose alternative search terms rather than abandon
them altogether.
13
The provided search terms include “diversity,” “diversity team,” “inclusion,”
“diverse backgrounds,” “inclusive,” or “demographics.” Id. at ¶ 10.
13
The Court took considerable effort to piece together the information in the
three declarations of Colonel Jones regarding the searches. Even doing so, the
Court was unable to discern a clear structure of the drives, folders, and files that
Defendants did and did not search. The declarations explain that each office has a
separate shared network drive, that each individual has access to a private H drive,
and that each individual has an email account for each position which he/she loses
access to upon a PCS. See [Dkt. 48-10 at ¶ 10]. They do not, however, explain what
folders within the shared network drive the former group members identified and
searched or why use of the recommended, or any, search terms was unworkable.
2.
Adequacy of Searches
Based on the information Defendants do provide, the Court concludes that
Defendants’ searches were not reasonably calculated to uncover all responsive
materials.
First, while Colonel Jones declares that the Headquarters Office and
Secretary’s Office searched their shared network drives, Defendants provide no
indication that the JAG Office searched its shared network drive. Defendants do
not provide a satisfactory explanation for this. Even though the Headquarters
Office led efforts to create Group work product, the possibility that members saved
responsive documents to their respective office shared network drives is not out
of the question.
The Secretary’s Office searched its drive and confirmed it
contained no responsive documents. The JAG Office should have done the same.
Second, Colonel Jones’s declarations explain that five former members of
the Working Group searched their emails—the Study Director, Chief of Strategic
14
Communications of the Headquarters Office, the initial and final JAG Office leads,
and the Special Assistant to the Secretary’s Office. Defendants do not explain why
the rest of the former Group members were not asked to search their emails as
well. According to the Talking Paper, there were nineteen members of the Working
Group, and yet only four searched their emails for responsive documents. It is
entirely possible that members of the Working Group outside of the office leads
communicated via email regarding the Working Group and may have responsive
emails as a result. While it is possible that any number of those former members
will have had a PCS at this point and may no longer have access to their emails
from the relevant time period, Defendants did not explore this potential source of
responsive documents to find out.
Finally, as Plaintiffs point out, see [Dkt. 40 at 10-11], the searches of those
members who did search their emails did not cover the full relevant time period.
The Study Director was asked to search emails from between January 2016 and
May 5, 2016, despite the fact that the Group met through June 2016.
Id.
Additionally, the JAG Office final lead limited his/her search for records to those
relating to the formation of the Working Group—he/she had no such documents
because he/she was not a part of the Working Group during the formation period—
and did not search for emails from the time he/she was involved in the performance
of the Group. See [Dkt. 37-10 at ¶¶ 11-12].
The Court agrees that Defendants improperly limited the searches of the
Study Director and the JAG Office final lead, which should have included emails
relating to the performance, in addition to the creation, of the Working Group.
15
Defendants contend that the Headquarters Office personnel had already searched
the relevant files and located the documents relating to the Working Group’s
performance. See [Dkt. 48 at 3-4; Dkt. 48-10 at ¶¶ 7-9]. Because of this, apparently,
the Study Director was tasked with identifying emails relating only to the Group’s
creation. See [Dkt. 48 at 3-4; Dkt. 37-10 at ¶¶ 7-9; Dkt. 48-10 at ¶ 9]. Identification
of certain responsive documents related to the Group’s performance, however,
does not necessarily mean that there are no additional documents concerning the
Group’s performance in other locations. It is reasonable to believe that the Study
Director, and potentially other Working Group members, had emails about not only
the Group’s formation but also its performance unique from those records saved
on the shared network drive or in another member’s email records. Defendants
have not provided a legitimate reason to believe otherwise.
Defendants represent that the JAG Office final lead was not asked for such
records because “that was not AF/JA’s role.” [Dkt. 37-2 at ¶ 58]. Colonel Jones’s
declaration does not directly support this explanation. See [Dkt. 40-1 at ¶ 58].
Colonel Jones’s second supplemental declaration does explain that the
Headquarters Office “served as the primary lead for the study and generated any
written work for the group.” [Dkt. 48-10 at ¶ 5]. But no declaration provides a
reasonable explanation for why this eliminates the possibility that Working Group
members from other offices may have emails or other records regarding the
Group’s performance.
Defendants’ searches were not reasonably calculated to discover all
responsive documents because the JAG Office did not search its shared network
16
and because only four of the Group’s nineteen members searched their emails, and
at least two of those that did search imposed an inappropriately limited time period.
Colonel Jones’s generalized statement that “[a]ll USAF personnel involved in the
searches identified relevant locations based on their expertise and knowledge of
USAF records and recordkeeping[]” and “concluded that there were no other
locations reasonably likely to have responsive records” does not diminish the fact
that the detailed explanation of the searches conducted reveals multiple
deficiencies. [Dkt. 48-10 at ¶ 11]. Accordingly, Defendants’ motion for summary
judgment on the adequacy of its search for records responsive to Item #7 is
DENIED. Defendants are ORDERED to conduct the additional searches necessary
to make a reasonable effort to locate all documents responsive to Plaintiffs’ Second
Request Item #7.
B. Exemption 5
Exemption 5 protects records that are “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than
an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). In other words,
“[a]gency documents which would not be obtainable by a private litigant in an
action against the agency under normal discovery rules (e.g., attorney-client, workproduct, executive privilege) are protected from disclosure under Exemption 5.”
Grand Cent. P’ship v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999) (quoting Providence
Journal Co. v. United States Dep’t of the Army, 981 F.2d 552, 557 (1st Cir. 1992)).
This exemption encompasses attorney-client privilege as well as the deliberative
process privilege, which is part of the executive privilege. See id. The Second
17
Circuit has explained that Exemption 5 was:
designed to safeguard and promote agency decisionmaking
processes in at least three ways: It serves to assure that subordinates
within an agency will feel free to provide the decisionmaker with their
uninhibited opinions and recommendations without fear of later being
subject to public ridicule or criticism; to protect against premature
disclosure of proposed policies before they have been finally
formulated or adopted; and to protect against confusing the issues
and misleading the public by dissemination of documents suggesting
reasons and rationales for a course of action which were not in fact
the ultimate reasons for the agency’s action.
Id. (quoting Providence Journal Co., 981 F.2d at 557) (internal quotation marks
omitted).
Accordingly, prior case law examining the exemption “focuses on
documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.” Brennan Ctr. for Justice at New York Univ. Sch. of Law v. United
States Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012) (hereinafter “Brennan Ctr.”)
(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
Defendants claim deliberative process privilege and/or attorney-client
privilege with respect to all or part of four documents—Exhibits 9-E, 9-G, 9-H, and
9-I. [Dkt. 48 at 9-10]. To prevail on its motion, Defendants’ declarations and Vaughn
indices must provide “reasonably detailed explanations why any withheld
documents fall within an exemption.” Carney, 19 F.3d at 812.
1.
Deliberative Process Privilege
A document must be both “predecisional” and “deliberative” to qualify for
the deliberative process privilege. Grand Cent. P’ship, 166 F.3d at 482. A document
is predecisional when it is “prepared in order to assist an agency decisionmaker in
arriving at his decision.” Id. (quoting Hopkins v. United States Dep’t of Hous. and
18
Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)). A document is “deliberative” when it is
“actually related to the process by which policies are formulated.” Id. (quoting
Hopkins, 929 F.2d at 84)).
The privilege protects “recommendations, draft
documents, proposals, suggestions, and other substantive documents which
reflect the personal opinions of the writer rather than the policy of the agency.” Id.
(quoting Ethyl Corp. v. United States Envtl. Prot. Agency, 25 F.3d 1241, 1248 (4th
Cir. 1994)). The privilege “focuses on documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Id. (quoting Hopkins, 929
F.2d at 84-85) (internal quotation marks and brackets omitted).
Even if a document is “predecisional” and “deliberative,” it falls outside the
scope of Exemption 5 protection “when the document is more properly
characterized as an opinion or interpretation which embodies the agency’s
effective law and policy, in other words, its working law[.]” Brennan Ctr., 697 F.3d
at 195 (quoting Sears, 421 U.S. at 153) (internal quotation marks and brackets
omitted). In other words, a document claimed to be exempt must be disclosed “if
it closely resembles that which FOIA affirmatively requires to be disclosed: ‘final
opinions . . . made in the adjudication of cases,’ ‘statements of policy and
interpretations which have been adopted by the agency and are not published in
the Federal Register,’ and ‘ administrative staff manuals and instructions to staff
that affect a member of the public.’” Id. (quoting 5 U.S.C. § 552(a)(2)(A)-(C)). “The
exemption, ‘properly construed, calls for disclosure of all opinions and
interpretations which embody the agency’s effective law and policy, and the
19
withholding of all papers which reflect the agency’s group thinking in the process
of working out its policy and determining what its law shall be.’” Id. (quoting Sears,
421 U.S. at 152) (internal quotation marks omitted).
Plaintiffs’ Opposition argues that the withheld information in 7 disputed
documents (Exhibits 9-A, 9-B, 9-C, 9-D, 9-F, 9-G, 9-H) is “working law” which
Exemption 5 does not protect. [Dkt. 40 at 17, 19-20]. With their Reply, Defendants
withdrew certain redactions and submitted revised redactions for the remaining
documents. See [Dkt. 48 (Reply & Exs.)]. Defendants maintain redactions which
Plaintiffs originally disputed in only two documents (Exhibits 9-G, and 9-I).
Plaintiffs did not seek leave to file a sur-reply and the Court therefore does not
know whether Plaintiffs object to the remaining redactions or whether Defendants’
removal of a significant portion of the redactions remedies Plaintiffs’ concerns.
The Court will consider the remaining redactions to each document still potentially
in dispute in turn.
i.
Exhibit 9-E
Defendants assert and argue the appropriateness of Exemption 5 redactions
to Exhibit 9-E.
Plaintiffs’ Opposition does not address these redactions.
Accordingly, the Court considers Plaintiffs to have withdrawn any objections to the
Exemption 5 redactions to Exhibit 9-E, but will address them briefly nonetheless.
Exhibit 9-E is an email chain from April 1 and 2, 2016 with the subject line
“RE: Board’s Authority to Correct IG Records.” [Dkt. 48-6 (Ex. 9-E)]. Defendants
have redacted information from the first and second emails in time. Id. The first
email is from Air Force personnel, addressed to multiple recipients, the unredacted
20
portions of which provide facts concerning a specific case before the Air Force
Board for Correction of Military Records. Id. The unredacted portions request that
the recipients “advise when [they] have an opportunity” regarding “the authority of
[their] respective Boards to correct IG [Inspector General] records.” Id. at 2. The
first response to that request is redacted in full.
The Declaration of Rita Sono states that “the withheld information relates to
varying opinions and advice about how to approach different issues affecting the
Air Force Board for Correction of Military Records,” characterizing the responses
as predecisional “preliminary assessments[.]” [Dkt. 48-11 (Sono Decl.) at ¶ 6]. The
Vaughn Index characterizes the withheld information as “Government deliberation”
regarding policies surrounding the AFBCMR’s authority to correct Inspector
General records. [Dkt. 37-7 at PDF p. 39]. Specifically, they “relate[] to Department
of Defense personnel’s varying positions and opinions about the appropriate
methodology for handling cases that involve correcting Inspector General
records.” [Dkt. 48 at 10; see also Dkt. 48-11 at PDF p. 7-8].
The declaration and Vaughn Index, along with the unredacted portions of the
email, provide the date, names, subject, content and purpose of the email and
convince the Court that the withheld information is protected by the deliberative
process privilege. According to the declaration and Vaughn Index, the redacted
content provides opinions of multiple individuals regarding the handling of
requests to correct records, but does set out agency practice or procedure which
would constitute working law and therefore require disclosure. Because these
opinions are part of a process of determining an ultimate practice or policy, they
21
are predecisional and deliberative and thus protected by Exemption 5.
ii.
Exhibit 9-G
Exhibit 9-G is an email chain from April 29, 2014 to May 1, 2014 with the
subject line “RE: PLEASE READ!! GREEN TAGS.” [Dkt. 48-8 (Ex. 9-G)]. The email
chain addresses requirements for advisories submitted by personnel in order for a
case to be processed as a Green Tag. Id. The initial email sets out the requirements
and several scenarios for processing of a case if those requirements are or are not
met. Id. at 2-3. Defendants withheld two limited portions of a response to that initial
email, one of which is immediately preceded by the phrase, “I’d recommend a.”
See id. at 1. The unredacted portions of the email indicate that it concerns followup considerations regarding the original guidance. Id.
Plaintiffs’ Opposition took issue specifically with the redactions to the
bottom of page 3 and extending to page 5, contending that those portions include
instructions to staff regarding the AFBCMR Green Tag program policy. [Dkt. 40 at
24-25]. Defendants have lifted those redactions. [Dkt. 48-4]. With respect to the
other redactions to the email chain, Plaintiffs argued that Defendants’ claims that
the email “includes deliberative discussions on specific AFBCMR procedural
requirements” is overly broad and sweeping and fails to specify the role the
document played in the agency’s consultative process and whether it reflects the
views of the author rather than the policy of the agency. [Dkt. 40 at 25].
The Sono Declaration, which Defendants filed with their Reply after Plaintiffs’
Opposition, represents that the redacted portions of the email chain include
preliminary “opinions and advice” regarding how to address issues affecting the
22
Air Force Board for Correction of Military Records. [Dkt. 48-11 at ¶ 6]. The Vaughn
Index entry characterizes the withheld portions as “[d]eliberative discussions”
concerning specific AFBCMR procedural requirements. [Dkt. 37-7 (McIntosh Decl.,
Ex. E) at PDF p. 33]
Specifically, they include “opinions and recommendations”
regarding “how to implement a new advisory template, as well as, [sic] what
procedural changes should be created in order to provide adequate feedback to
offices that write advisory opinions.” [Dkt. 48-11 at PDF p. 8].
Defendants removed a significant portion of their redactions to Exhibit 9-E
and provided a more detailed explanation in the Sono Declaration, which is entitled
to a presumption of good faith, of the nature of the portions that remain redacted.
Defendants’ description of the withheld content—opinions and recommendations
concerning implementation of new templates and procedural changes to a
feedback system—is sufficient to establish that the redactions are protected by
Exemption 5’s deliberative process privilege. The unredacted portions of the email
convey that the redacted ideas and opinions are not accepted policies or working
law of the agency, but predecisional and deliberative. Thus, they are not subject to
disclosure under FOIA.
iii.
Exhibit 9-I
Exhibit 9-I is the Talking Paper documenting the Working Group’s findings
and recommendations. See [Dkt. 48-9 (Ex. 9-I2)]. The Government has withheld
only the section under the heading “Recommendations.” See id. at 2. The Vaughn
Index explains that a “lower-level Air Force official” authored the report. [Dkt. 4811 (Sono Decl., Ex. 1) at PDF p. 9]. It further states that personnel did not brief the
23
report to senior Air Force or DOD leaders and that the Air Force did not adopt the
recommendations.
Id.
The Sono Declaration reiterates these facts without
elaboration. [Dkt. 48-11 at ¶ 6].
Plaintiffs argue that Defendants fail to establish that the withheld portion is
predecisional and deliberative.
First, Plaintiffs suggest that Colonel Jones’s
characterization of the Talking Paper as a finalized document describing the
Group’s recommendations to justify withholding a draft version of the Talking
Paper undermines Defendants’ argument that it is preliminary. [Dkt. 40 at 30-21].
Plaintiffs further speculate without citing any facts in support that the Talking Paper
recommendations may still have been informally or partially adopted, and thus
constitute working law, despite having not been officially briefed or adopted by
senior Air Force officials. Id.
The Second Circuit has indicated that a report is necessarily predecisional if
the individual or group responsible for the report lacks any authority to take final
agency action and those with authority have not adopted it. See Hopkins v. United
States Dep’t of Hous. & Urban Dev., 929 F.2d 81, 85 (2d Cir. 1999) (“[B]ecause HUD
inspectors themselves lack any authority to take final agency action, their reports
are necessarily predecisional.”). Here, the working group and the “lower-level Air
Force official” who prepared the report clearly did not have authority to implement
their “Recommendations,” as indicated by the title of the section alone. Nothing
suggests that the Working Group established a formal or informal policy regarding
these issues, but only that the Group convened to deliberate and provide input
regarding the handling of them. Indeed, the Talking Paper states that its purpose
24
is to “[p]rovide an overview of steps that could be taken to address potential
implications of unconscious bias in the USAF military justice system.” [Dkt. 48-9
at 2]. As such, the Court agrees that the section is predecisional. Finally, as
intimated above, there is nothing in the record establishing any of the
recommendations were adopted.
The Court is not convinced, however, that the “Recommendations” section
is deliberative. Defendants have not indicated what specific agency decision the
Talking Paper recommendations correlate to or verified that the Talking Paper
precedes a decision to which it relates—even if that decision has not yet been made
by those with authority to do so. See Grand Cent. P’ship, 166 F.3d at 482 (noting
that “a document will be considered predecisional if the agency can also (i)
pinpoint the specific agency decision to which the document correlates and (ii)
verify that the document precedes, in temporal sequence, the decision to which it
relates.” (internal brackets and quotation marks omitted)). Nor have Defendants
indicated how the Talking Paper “bear[s] on the formulation or exercise of policyoriented judgment.”
Id.
Thus, it is not clear that the Talking Paper
recommendations are more than “merely peripheral to actual policy formation.” Id.
(explaining that “the privilege does not protect a document which is merely
peripheral to actual policy formation”). Defendants represent that the Talking
Paper was never presented to senior Air Force officials.
So what concrete
deliberative decision-making process the Working Group and its Talking Paper
were a part of is somewhat a mystery.
As the Supreme Court explained in NLRB v. Sears Roebuck, the deliberative
25
process privilege rests “on the policy of protecting the decision making processes
of government agencies . . . and [the cases] focus on documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.”
421 U.S. at 150
(internal citations and quotation marks omitted). Defendants have not provided the
Court with sufficient information to determine whether the withheld information in
the Talking Paper is part of any real governmental decision making process rather
than simply an exercise which went nowhere.
Defendants have not justified
protection of the withheld information sufficient under Exemption 5 and their
motion for summary judgment on this issue is DENIED. See Carney, 19 F.3d at 812.
2.
Attorney Client Privilege
Exemption 5 also encompasses the attorney-client privilege. “The attorneyclient privilege protects communications (1) between a client and his or her
attorney (2) that are intended to be, and in fact were, kept confidential (3) for the
purpose of obtaining or providing legal assistance.” Brennan Ctr., 697 F.3d at 207
(citation omitted).
“The attorney-client privilege protects most confidential
communications between government counsel and their clients that are made for
the purpose of obtaining or providing legal assistance.” Id. (citation omitted). As
with the deliberative process privilege, “the attorney-client privilege may not be
invoked to protect a document adopted as, or incorporated by reference into, an
agency’s policy.” Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 360 (2d
Cir. 2005).
i.
Exhibit 9-H
26
Defendants withheld Exhibit 9-H in its entirety under the attorney-client
privilege. [Dkt. 48-10 at ¶ 5]. The Sono Declaration states, “The record relates to
legal advice from the Administrative Law Division of the Air Force Office of the
Judge Advocate General to the Air Force Board for the Correction of Military
Record about specific questions the Board raised about how to process certain
applications.” Id. The supplemental Vaughn Index indicates the same. [Dkt. 48-11
at PDF p. 9]. Defendants represent that “[t]he document was written by a member
of the Administrative Law Division, Office of The Judge Advocate General, Air
Force Headquarters, in response to the AFBCMR’s request for a review and opinion
regarding the Military Whistleblower Protect Act.” [Dkt. 37-1 at 38-39]. They further
explain that it “responds to specific factual questions from the agency to its
attorney about how to process certain applications, not how to address a
hypothetical fact pattern.” [Dkt. 48 at 11].
Prior to Defendants’ Reply filings, Plaintiffs argued that the document
constitutes general policy guidance that must be affirmatively disclosed. [Dkt. 40
at 28].
Requests for advice from counsel regarding processing of specific
applications based on specific sets of facts, rather than generally applicable
guidance, however, is not working law subject to disclosure. The Sono Declaration
and supplemental Vaughn Index entry indicate that the withheld document
included advise from counsel to the AFBCMR “regarding specific questions the
Board raised about how to process certain applications.”
[Dkt. 48-11 at 9].
Protection of the specific request and legal advice provided serves “the principal
rationale behind the attorney-client privilege—to promote open communication
27
between attorneys and their clients so that fully informed legal advice may be
given.” Nat’l Council of La Raza, 411 F.3d at 360. Defendants’ description of the
advice provided by counsel gives no indication that it is an authoritative
interpretation within the
agency.
See id.
Accordingly, the Court holds that
Exemption 5 protects Exhibit 9-H.
C. Exemption 6
Defendants argue that they properly withheld and redacted the following
information pursuant to Exemption 6: (1) withholding by all components of SJA
biographies; (2) redaction of Colonels/Captains’ (Rank O-6) and their civilian
equivalents’ names in all responses to the First and Third Requests and in Air
Force’s response to the Second Requests; and (3) redaction of names of the
members of the Air Force race and discipline Working Group. [Dkt. 37-1 at 20].
Exemption 6 protects information about individuals in “personnel and
medical files and similar files” when the disclosure of such information “would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
In determining whether identifying information may be withheld pursuant to
Exemption 6, the Court must (1) “determine whether the identifying information is
contained in ‘personnel and medical files and similar files’” and (2) “balance the
public need for the information against the individual’s privacy interest in order to
assess whether disclosure would constitute a clearly unwarranted invasion of
personal privacy.” Associated Press, 554 F.3d at 291.
1.
“Personnel and Medical Files and Similar Files”
Defendants admit that the redacted documents are not personnel or medical
28
files, but argue that they “contain information sufficient to bring them within the
broad reading that courts have given to the ‘similar files’ language in Exemption
6.” [Dkt. 37-1 at 21].
Based upon a review of the legislative history of FOIA, the Supreme Court
held in United States Department of State v. Washington Post Co. that the term
“similar files” is to be interpreted broadly, rather than narrowly, explaining that
Exemption 6 was enacted “to protect individuals from the injury and
embarrassment that can result from the unnecessary disclosure of personal
information.” 456 U.S. 595, 599-603 (1982). The personnel, medical, and similar
files aspect of the exemption is not meant to serve as a limiting factor. Id. at 600;
see also Wood, 432 F. 3d at 87 n.6. Instead, “the ‘clearly unwarranted invasion of
personal privacy’ language . . . holds Exemption 6 ‘within bounds.’” Washington
Post Co., 456 U.S. at 600.
“[T]he primary concern of Congress in drafting Exemption 6 was to provide
for the confidentiality of personal matters.” Id. at 599-600. Thus, “the exemption
was intended to cover detailed Government records on an individual which can be
identified as applying to that individual.” Id. at 602 (quoting H.R. Rep. No. 1497 89th
Cong., 2nd Sess., 11 (1966), U.S. Code Cong. & Admin. News 1966, pp. 2428)
(internal brackets omitted).
In other words, “[w]hen disclosure of information
which applies to a particular individual is sought from Government records, courts
must determine whether the release of the information would constitute a clearly
unwarranted invasion of a person’s privacy.” Id. “Information unrelated to any
particular person presumably would not satisfy the threshold test.” Id. at 602 n.4.
29
Based on this interpretation, the Washington Post Court held that the
requested passport and citizenship information of two individuals “presumably
would be found in files containing much of the same kind of information” as
medical and personnel files and, therefore, qualified as “similar files.” Id. at 60002. Similarly, the Supreme Court previously held that case summaries of Air Force
Academy’s honor and ethics hearings are “similar files” because “they related to
the discipline of cadet personnel” and, most significantly, because “the disclosure
of these summaries implicates similar privacy values” as personnel files, for
“identification of disciplined cadets a possible consequence of even anonymous
disclosure could expose the formerly accused men to lifelong embarrassment,
perhaps disgrace, as well as practical disabilities, such as loss of employment or
friends.” Dep’t of Air Force v. Rose, 425 U.S. 352, 376-77 (1976).
In the Second Circuit, whether documents constitute “similar files” requires
consideration of “whether the personal information is contained in a file similar to
a medical or personnel file.” Wood, 432 F.3d at 86. Thus, the court asks “whether
the records at issue are likely to contain the type of personal information that would
be in a medical or personnel file.” Id. Such information generally includes “place
of birth, date of birth, date of marriage, employment history,” and other “identifying
information,” though not necessarily “intimate” information.
Id. (quoting
Washington Post, 456 U.S. at 600-01). The question then becomes whether the
document at issue contains such information.
Following this analysis, the Second Circuit has held that administrative files
documenting investigation into an individual’s conduct qualify as “similar files” for
30
purposes of Exemption 6. Perlman, 312 F.3d 100, 106 (2d Cir. 2002) (holding that
“[t]he [Report of Investigation] is a ‘detailed Government record’ replete with
identifying information regarding Virtue and his alleged misconduct” and thus
constitutes a “similar file” under Exemption 6); Wood, 432 F.3d at 87 (recognizing
that “the records at issue are highly detailed and contain personal information
about the subjects of the investigation—the Connecticut FBI agents accused of
misrepresenting search warrant information”). Similarly, the Second Circuit in
American Immigration Lawyers Association v. Executive Office for Immigration
Review, acknowledged that there was no dispute that the records of complaints
against immigration judges were “similar files,” satisfying the first step of
Exemption 6. 830 F.3d 667, 673 (2d Cir. 2016). In Cook v. National Archives and
Records Administration, the Second Circuit applied the test to records of requests
for archived presidential and vice-presidential materials submitted to the National
Archives and Records Administration (“NARA”) by or on behalf of former President
George W. Bush and former Vice-President Richard B. Cheney. 758 F.3d 168, 174
(2d Cir. 2014). The court concluded that they qualified as similar files because
“they reveal what archived materials were sought from NARA, who sought those
materials, and the general research topics and fields of interest of particular
requestors” and thus “contain information about specific persons that can be
identified as applying to those persons[.]” Id.
The SJA biographies Defendants seek to withhold generally include, inter
alia, the SJA’s name, assigned duties, prior duty history, awards and decorations,
published works, family status, and preservice employment. [Dkt. 40-1 at ¶ 64].
31
These biographies include personal information along the lines of that found in a
personnel file and the Court therefore concludes that they are “similar files” for the
purposes of Exemption 6.
The more challenging question is whether the DOJ’s blanket redaction of
names of DOD employees at the rank of Colonel and below (and the civilian
equivalents) in all produced documents, including those involved in the Working
Group and Talking Paper, is justified under Exemption 6. Defendants invoke a DOD
standard Exemption 6 practice of redacting names of low-level employees—those
at the O-6 rank and below. [Dkt. 37-1 at 28-29; Dkt. 37-5 (Ex. 2, Herrington Decl.) at
¶ 5 (citing O’Keefe v. DoD, 463 F. Supp. 2d 317, 327 (E.D.N.Y. 2006))]. Accordingly,
Defendants withheld names, initials, phone numbers, email addresses, social
security
numbers,
signatures,
and
other
claimed
personally
identifiable
information of government and military personnel from their responses to the First
and Third Requests claiming application of Exemption 6. [Dkt. 37-2 at ¶¶ 86-89].
In 2008, the D.C. Circuit explained, “While th[e] definition of ‘similar files’
appears to be all encompassing, it does have limits. For example, information that
‘merely identifies the names of government officials who authored documents and
received documents’ does not generally fall within Exemption 6.” Aguirre v. S.E.C.,
551 F. Supp. 2d 33, 53 (D.C. Cir. 2008). Accordingly, the court held that the names
of SEC employees referenced in documents (mostly emails) concerning the
plaintiff’s employment, merit pay increase, and termination were improperly
redacted. Id. at 55. Courts within the Second Circuit have also rejected a blanket
rule for redaction of names. See, e.g., Nat’l Day Laborer Org. Network v. U.S.
32
Immigration & Customs Enf’t, 811 F. Supp. 2d 713, 746 (S.D.N.Y. 2011) (“It is not the
case that any mention of a federal employee’s name may be withheld. Such a
blanket rule would fail both the threshold test—as to the type of file or record or
information in which such information is found—and the balancing test of privacy
versus public interests.”); Families for Freedom v. U.S. Customs & Border
Protection, 797 F. Supp. 2d 375, 397-98 (S.D.N.Y. 2011) (explaining that “[w]hile the
privacy right protected by FOIA was not intended to turn upon the label of the file
which contains the damaging information, nor is it the case that every slip of paper
on which a name is written warrants protection,” and holding that the documents
at issue cannot be withheld under Exemption 6 because “[n]either document
contains any personal or identifying information apart from the names of the
authors, recipients, and persons identified[.]”).
Other decisions, however, seem to disregard the threshold question or else
interpret the holding of Washington Post so expansively as to apply to the
appearance of any name of a federal employee regardless of the type of file in which
it is included. See, e.g., Am. Oversight v. U.S. Gen. Servs. Admin., 311 F. Supp. 3d
327, 346 (D.C. Cir. 2018) (“Certainly, an individual’s name constitutes information
that applies to a particular individual, . . . and therefore may be subject to protection
under Exemption 6[.]” (internal citations and quotation marks omitted)); Tokar v.
United States Department of Justice, 304 F. Supp. 81, 88-89, 93-96 (D.C. Cir. 2018)
(holding that the “similar files” category “has been interpreted to include personal
information in public records,” including names in a list of candidates for
independent corporate monitors under Foreign Corrupt Practices Act); Walston v.
33
United States Dep’t of Defense, 238 F. Supp. 3d 57, 66 (D.C. Cir. 2017) (explaining
that Exemption 6 “permits exemption of not just files but bits on personal
information, such as names and addresses, the release of which would create a
palpable threat to privacy”) (internal quotation marks and brackets omitted); Seife
v. United States Dep’t of State, 298 F. Supp. 3d 592, 623-24 (S.D.N.Y. 2018) (“The
emails at issue here [concerning ‘on background’ briefings and conferences] are
‘similar files’ under Exemption 6” because “[t]hey contain the names and email
addresses of agency officials, and, thus, can be identified as applying to those
individuals.”).
Such an interpretation of Washington Post, which Defendants would have
this Court follow,14 is unwarranted.
The Supreme Court explained that the
exemption “was intended to cover detailed Government records on an individual
which can be identified as applying to that individual.” Washington Post, 456 U.S.
14
The case cited by Defendants in support of the DOD practice of redacting names
of personnel at rank O-6 and below, O’Keefe v. United States Department of
Defense, falls short of the mark here. 463 F. Supp. 2d 317, 326 (E.D.N.Y. 2006).
Before acknowledging the privacy interests of low-level DOD employees in their
identities, the O’Keefe Court held that a report by United States Central Command
(“USCENTCOM”) related to O’Keefe’s complaints to the DOD Inspector General
against his commanding officers is an administrative investigative record and thus
a “similar file.” Id. Thus, the court only performed the balancing test, recognizing
the nominal value of the personally identifying information of the low rank nondecision-making investigative personnel because it first concluded that the record
at issue was a “similar file.” The same goes for Vietnam Veterans of Am. Conn.
Greater Hartford Chapter 120 v. Dep’t of Homeland Sec., in which the court held
that redaction of the names of low-level DOD officials in “separation packets,”
essentially personnel records, of all of the service members discharged on the
basis of a personality disorder was appropriate. 8 F. Supp. 3d 188, 230-31 (D. Conn.
2014). That interest balancing analysis said nothing about the threshold
requirement because it was abundantly clear that the “separation packets” were
qualifying personnel records.
34
at 602 (emphasis added) (internal brackets omitted). A general training memo or
talking paper concerning data on agency discrimination is not a record “on an
individual.” They are records unrelated to a specific person that include names of
personnel who worked on the agency matter.
The fact that agency work is
attributed to a specific individual does not convert the record of that work to a
“similar file.” The Second Circuit has not endorsed such an overly expansive
approach and this Court declines to follow it, instead applying the Second Circuit’s
test in Cook and Wood.
Defendants argue that redaction of employee names is warranted under
Cook because each document is maintained in a government file and applies to a
particular individual—contains personal information identifiable to a particular
person, that is, names. [Dkt. 37-1 at 21-22]. But the Cook Court did not find the
records to be “similar files” simply because they included names of specific
individuals. Rather, it relied on the fact that they were “detailed records containing
personal information identifiable to former officials and their representatives.”
Cook, 758 F.3d at 175. So too in Perlman and Wood the Second Circuit relied on
the detailed nature of the personal information included in the records—
information of a similar nature and level of detail as that included in personnel and
medical records—in holding they qualified as “similar files.” Wood, 432 F.3d at 87
(“[T]he records at issue are highly detailed and contain personal information about
the subjects of the investigation.”); Perlman, 312 F.3d at 106 (“The ROI clearly is a
‘detailed Government record’ replete with identifying information[.]” (quoting
Washington Post, 456 U.S. at 602)); see also Associated Press v. United States
35
Dep’t of Defense, 554 F.3d 274, 291 (2d Cir. 2009) (“Since the redacted [personal
letters sent to two detainees] at issue apply to the detainees whose family members
seek protection, those records are ‘similar files’ within the meaning of Exemption
6.”).
In Wood, the court held that personal information relating to individuals other
than the subject of the investigation—third party witnesses or investigators—
included in an investigative file warranted application of the balancing analysis
under Exemption 6. 432 F.3d at 87 (“To the extent that the district court interpreted
Exemption 6 to apply only to personal information relating to the subject of an
investigation, this was error.”).
One could argue that protection of private
information, potentially even just names, of third parties included in the
investigative file suggests that that information alone results in categorization as a
“similar file.” However, the Wood Court first required that the record fall into the
“medical and personnel files and similar files” category before application of the
balancing analysis to any and all personal or private information included in that
record. Id. (holding that “any personal information contained in files similar to
medical and personnel files, including the type of highly detailed records found in
investigative files, is subject to the balancing analysis under Exemption 6”). Thus,
it was not the inclusion of the investigator and witness names that qualified the
record as a “similar file,” but its “highly detailed” nature and inclusion of “personal
information about the subjects of the investigation” which then allowed for
consideration of the interests for and against disclosure of the third-party
identifying information. Id.
36
In addition to countless records which the Court does not have, Defendants
filed as exhibits a handful of documents with redactions of employee names
claiming protection under Exemption 6. See [Dkt. 48-2 (Ex. 9-A2); Dkt. 48-3 (Ex. 9B2); Dkt. 48-4 (Ex. 9-C2); Dkt. 48-5 (Ex. 9-D2); Dkt. 48-6 (Ex. 9-E2); Dkt. 48-7 (Ex. 9F2); Dkt. 48-8 (Ex. 9-G2); Dkt. 48-9 (Ex. 9-I2)]. Defendants made no arguments as to
why each of those documents qualifies as a “similar record” other than the fact
that each contains identifying information of individual employees—e.g., names
and email addresses. See [Dkt. 37-1 at 21]. The Court’s review of the orientation
manuals, emails addressing Inspector General record corrections, or the Working
Group Talking Paper, did not reveal any information that would qualify them as
“similar files.”
They do not include citizenship or passport information.
See
Washington Post, 456 U.S. at 602. They are not investigative files. Wood, 432 F.3d
at 87. They are not detailed records of requests for records which could reveal
private information about an identifiable individual. Cook, 758 F.3d at 175. As far
as the Court can discern, they include no information identifiable to any individual
other than names and contact information. These documents cannot be swept up
into Exemption 6 protection simply because they identify those government
employees who authored or were involved in the manuals, emails, or Working
Group Talking Paper.
To conclude otherwise would render useless the FOIA
statute’s specification that Exemption 6 apply to “medical and personnel files and
similar files.”
This is not to say that some other FOIA provision may permit the redaction
of identifying details in records otherwise lacking in personal information. See 5
37
U.S.C. § 552(a)(2)(E) (“To the extent required to prevent a clearly unwarranted
invasion of personal privacy, an agency may delete identifying details when it
makes available or publishes an opinion, statement of policy, interpretation, staff
manual, instruction, or copies of records referred to in subparagraph (D).”); United
States Dep’t of State v. Ray, 502 U.S. 164, 174, 174 n.9 (1991). The Court only goes
so far as to conclude that Defendants have failed to satisfy the threshold
requirement with respect to their second and third categories of Exemption 6
redactions—employee
and
Working
Group
member
names
and
contact
information. Accordingly, Defendants’ motion for summary judgment as to these
withholdings is DENIED.
2.
Balancing Privacy Rights and Public’s Interest – SJA Bios
Once the threshold requirement is satisfied, “[t]he balancing analysis for
FOIA Exemption 6 requires that we first determine whether disclosure of the files
would compromise a substantial, as opposed to de minimis, privacy interest,
because if no significant privacy interest is implicated FOIA demands disclosure.”
Long v. Office of Pers. Mgmt., 692 F.3d 185, 191 (2d Cir. 2012) (quoting Multi Ag
Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008)). This bar is low,
however, requiring “only a measurable interest in privacy to trigger the application
of the disclosure balancing tests.” Id. (quoting Fed. Labor Relations Auth. V. United
States Dep’t of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992)).
The analysis is context specific. For instance, “[n]ames and other identifying
information do not always present a significant threat to an individual’s privacy
interest.” Id. (quoting Wood, 432 F.3d at 88)). Whether disclosure of names is a
38
significant or de minimis threat depends upon the characteristics revealed and the
consequences likely to ensue. Id. at 192. Additionally, “[i]t is not uncommon for
courts to recognize a privacy interest in a federal employee’s work status (as
opposed to some more intimate detail) if the occupation alone could subject the
employee to harassment or attack.” Id.
The SJA biographies include their names, work history, honors and awards,
family information, and other specifics.
At least some of that information is
personal and akin to that which is included in a personnel file. The individuals have
more than a de minimis privacy interest in such information.
Once a privacy interest is established, it “must be weighed against the public
interest that would be advanced by disclosure.” Id. “The only public interest
cognizable under FOIA is the public ‘understanding of the operations or activities
of the government.’” Id. (quoting United States Dep’t of Justice v. Reporters Comm.
for Freedom of Press, 489 U.S. 749 (1989)).
Plaintiffs argue that Defendants have not carried their burden of showing
that disclosure of the SJA biographies15—including the SJAs’ names, rank, and
professional and educational background—is a clearly unwarranted invasion of
personal privacy or would subject them to annoyance or harassment. [Dkt. 40 at
36-41]. Plaintiffs argue that SJAs are high-ranking military attorneys whose roles,
and in most cases biographies, are public. Id. Plaintiffs contend that SJAs “play
the key role in the military justice system’s prosecutorial decision-making[,]”
15
Plaintiffs decided not to pursue Coast Guard SJA biographies following a “useful
conversation” with Coast Guard counsel. See [Dkt. 40 at 36 n.4]. Thus, only the
Air Force, Army, Navy, and Marine SJA biographies are at issue. Id. at 36.
39
advising whether the convening authority should enter into a pretrial agreement,
approving use of expert witnesses, and approving any adjudged sentence. Id.
(citing [Dkt. 40-2 (Ex. 1, Christensen Decl.) at ¶¶ 5, 15-16]). They contend that SJAs
names are often read into the public record during court martial proceedings,
included in official press releases, published in appellate decisions, and credited
in published opinions and academic works. Id. at 37. Thus, Plaintiffs argue that
the information included in the biographies related to the SJAs’ job functions16
should be disclosed so that the public can determine “whether those functionally
determining whether sexual assault and other violations of the Uniform Code of
Military Justice should be prosecuted are qualified to do so.” [Dkt. 40 at 42].
Defendants argue that the SJAs have a great privacy interest in their
biographies, including the more private family and history information as well as
their work status, disclosure of which “could subject such individuals to
annoyance or harassment in their private lives.” [Dkt. 37-1 at 26 (quoting Dkt. 37-5
(Ex. 2, Herrington Decl.) at ¶ 6)]. Defendants contend that SJAs are not necessarily
senior officials and are not responsible for convening court-marshals, but advise
the base or command authority responsible for convening court marshals. [Dkt.
37-9 (Ex. 6, Hartsell Decl.) at ¶ 28].
Thus, they argue that disclosure of the
biographies does nothing to satisfy public understanding of government
operations or activities. [Dkt. 37-1 at 26-27].
The Court recognizes Plaintiffs’ stated interest in disclosure of the
16
Plaintiffs do not object to redaction of purely personal information, such as
hometown or family status, but do object to the characterization of preservice
employment as personal. [Dkt. 40 at 39].
40
professional information in the SJA biographies for purposes of evaluating those
involved in making prosecutorial decisions and thus the process of making such
decisions. This is a legitimate interest. The Court notes, however, that one’s
credentials are unlikely to shed much light on prosecutorial discretion misconduct
based in unconscious bias. Where one went to law school or what positions one
held will not particularly illuminate whether that individual harbors bias or
discriminatory tendencies.
While recognizing the limited public interest in disclosure, the Court agrees
that the SJAs have a privacy interest in the personal information in their
biographies. Courts have recognized “a privacy interest in a federal employee’s
work status (as opposed to come more intimate detail) if the occupation alone
could subject the employee to harassment or attach.” Long, 692 F.3d at 192. For
instance, courts have recognized that employees who worked on regulatory
approval of a controversial drug, see Judicial Watch, Inc. v. FDA, 449 F.3d 141, 15253(D.C. Cir. 2006), and law enforcement agents who participated in an investigation,
Wood, 432 F.3d at 86-89, have such an interest. In Long, the Second Circuit held
that “the federal employees in both the sensitive agencies [including DOD] and the
sensitive occupations have a cognizable privacy interest in keeping their names
from being disclosed wholesale.” Id. 692 F. 3d at 188-89, 191 n.7. The Long Court
recognized DOD’s practice of withholding employee names as a security measure
following the September 11 attacks with the aim of making it as difficult as possible
for adversaries to attack DOD personnel, as well as the concern that disclosure
would permit targeting of individual federal employees and their families outside
41
the workplace. Id. This Court agrees that the SJAs, as DOD employees have a
legitimate privacy interest in their identities given their sensitive positions.
While the SJAs have a considerable privacy interest in their identities, the
public interest in disclosure of SJAs’ qualifications warrants disclosure of their
professional information apart from their names. “Because exemption 6 seeks to
protect government employees from unwarranted invasions of privacy, it makes
sense that FOIA should protect an employee’s personal information, but not
information related to job function.” Cowdry Ecker & Murphy LLC v. United States
Dep’t of Interior, 511 F. Supp. 2d 215, 219 (D. Conn. 2007); see also Sims v. Cent.
Intelligence Agency, 642 F.2d 562, 575 (D.C. Cir. 1980) (“Exemption 6 was
developed to protect intimate details of personal and family life, not business
judgments and relationships.). An SJA’s legal credentials and professional history
are related to his/her job function. Those credentials led each SJA to the position
he/she currently holds and informs the performance of his/her duties.
Such
information is not akin to a social security number, medical history, or duty station
information which would give away the individual’s physical location, see Long,
692 F.3d at 196-97, and is not “the type of information that a person would ordinarily
not wish to make known about himself or herself.” Associated Press, 554 F.3d at
292. Rather, this information is the type that is frequently circulated, bearing on
professional credibility and qualification.
The Court concludes that the SJAs have a relatively low privacy interest in
their professional information included in the biographies which Is outweighed by
the public’s interest in disclosure.
Accordingly, Defendants are ORDERED to
42
produce the SJA biographies with purely personal information redacted, including
the SJA’s names but not their pre-service employment history.
IV.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment is
GRANTED in part and DENIED in part.
The Court DENIES Defendants’ motion for summary judgment on the
adequacy of the search for records responsive to Item #7 of the Second
Requests. Defendants are ORDERED to conduct the additional searches laid out
supra at Section III.A.2.
The Court GRANTS Defendants’ motion for summary judgment as to the
applicability of Exemption 5 to Exhibits 9-E, 9-G, and 9-H, but DENIES summary
judgment as to Exhibit 9-I.
Finally, the Court DENIES Defendants’ motion for summary judgment as to
the applicability of Exemption 6 for each of the three categories of documents.
Defendants are ORDERED to produce to Plaintiffs the SJA biographies with only
purely personal information redacted.
Defendants are further ORDERED to
reproduce the other two categories of documents without the improper
Exemption 6 redactions, unless Defendants intend to assert a different basis for
those redactions.
IT IS SO ORDERED.
/s/
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 12, 2019
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