McGrady v. Winter ( 2009 )


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  •                         UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    )
    JACKSON L. MCGRADY,                 )
    )
    Plaintiff,        )
    )
    v.                             )       Civil Action No. 06-752 (GK)
    )
    )
    Ray Mabus,1                         )
    Secretary of the Navy,              )
    and                                 )
    DEPARTMENT OF THE NAVY,             )
    )
    Defendants.          )
    ____________________________        )
    AMENDED MEMORANDUM OPINION
    Plaintiff Jackson L. McGrady brings this action, pro se,2
    against Defendant Ray Mabus, Secretary of the Navy, and Defendant
    Department   of   the    Navy   (“Navy”),    pursuant   to   the   Freedom   of
    Information Act (“FOIA”), 
    5 U.S.C. § 552.3
    1
    Pursuant to Fed. R. Civ. P. 25(d), Secretary of the Navy
    Ray Mabus is automatically substituted as Defendant for former
    Secretary of the Navy Donald C. Winter.
    2
    Plaintiff may be pro se but his pleadings were as clear,
    well-written, and well-reasoned as those submitted by most
    practicing lawyers. There is some documentary evidence to suggest
    that he is a lawyer. See Pl.’s Mot., Ex. 2.
    3
    Plaintiff has also filed a related suit against the same
    Defendants. See Civil Action No. 05-1651. In that case, Plaintiff
    filed suit challenging Defendants’ denial of his request to convene
    a Special Selection Board after he was not selected for promotion
    to Lieutenant Colonel.
    This matter is now before the Court on Defendants’ Motion for
    Summary Judgment [Dkt. No. 7] and Plaintiff’s Cross-Motion for
    Summary Judgment [Dkt. No. 8].   Upon consideration of the Motions,
    Oppositions, Replies, the entire record herein, and for the reasons
    stated below, Defendants’ Motion is denied and Plaintiff’s Cross-
    Motion is granted.
    I.   Background4
    In the Navy, a Selection Board determines which officers
    should be promoted.   After the Board meets, it releases a public
    statement listing the officers selected for promotion.     It also
    releases statistics on the selected officers, including their
    occupational specialties and educational background.
    During such proceedings, Selection Board members use Master
    Brief Sheets to aid their promotion determinations.     The Master
    Brief Sheets include “key personnel data and a summary of an
    officer’s entire performance evaluation record.”5   Defs.’ Opp’n at
    4
    Unless otherwise noted, the facts set forth herein are
    undisputed and drawn from the parties’ Statements of Undisputed
    Material Facts submitted pursuant to Local Civil Rule 7(h) and the
    parties’ summary judgment papers.
    5
    A Master Brief Sheet is available for each officer in the
    Marine Corps.   It is generated by the Optical Digital Imaging
    Records Management System. Using this system, officers may access
    their own Master Brief Sheets. The personnel data on the Master
    Brief Sheets includes the officer’s occupational specialty and
    education level. The performance evaluation data includes Value
    Distribution Markings and Comparative Assessments.     The Value
    Distribution Markings are ratings made by a reviewing officer,
    ranging   from  unsatisfactory   to  outstanding.     Comparative
    -2-
    7.   At the conclusion of the proceedings, the President of the
    Selection Board chooses a “sampling” of the Master Brief Sheets of
    officers selected and not selected for promotion, as those “most
    representative of the Board’s deliberations and recommendations.”
    
    Id. at 8-9
    .    These are known as Sampled Master Brief Sheets.         
    Id.
    The Sampled Master Brief Sheets are stored in a limited access
    database   and    are   used   only   during    Special   Selection   Board
    proceedings.     A Special Selection Board is convened only when the
    Secretary of the Navy determines that there was an “administrative
    error” or “material unfairness” during a particular Selection Board
    proceeding.    At a Special Selection Board proceeding, the records
    of the individual in question are compared with the Sampled Master
    Brief Sheets. The Sampled Master Brief Sheets “provide the Special
    Selection Board with ‘a relative base [which indicates] which
    eligible officers, in the opinion of a majority of the members of
    the board, [were] fully qualified for promotion.’” 
    Id. at 10
    (internal quotation marks and citations omitted).
    On September 28, 2005, Plaintiff wrote the Commandant of the
    United States Marine Corps requesting information relating to
    Selection Boards that met in 2004 and 2005.               Specifically, he
    requested the following three items:           (1) redacted copies of all
    Master Brief Sheets of the officers recommended for promotion by
    Assessments are ratings on an alphabetical scale that are assessed
    in relation to other officers. Defs.’ Opp’n at 7 & nn.2-4.
    -3-
    the Fiscal Year 2004 and 2005 Lieutenant Colonel Selection Boards,
    (2) redacted copies of all Master Brief Sheets of the officers not
    recommended for promotion by the 2004 and 2005 Lieutenant Colonel
    Selection Boards, and (3) a copy of the precepts6 from the Fiscal
    Year 2004 and 2005 Lieutenant Colonel Selection Boards.                   The
    request included both Master Brief Sheets and Sampled Master Brief
    Sheets.7
    In    a    letter   dated   October    5,   2005,   Defendants   informed
    Plaintiff that his request could not be processed within the
    prescribed time period and advised him that this result could be
    treated as an appealable adverse determination.               On October 13,
    2005, Plaintiff filed an appeal.
    Before the appeal could be resolved, Defendants informed
    Plaintiff that they had reached a decision partially denying his
    request.       In a letter dated November 17, 2005, Defendants informed
    Plaintiff that the Board precepts he requested were publicly
    available on a Marine Corps Promotion Branch website.
    6
    A precept is a document that “provides the selection board
    with specific instructions regarding how the selection board should
    be conducted,” “as well as the substantive information to be
    considered.” Defs.’ Opp’n at 6, 27 (internal citations omitted).
    It “includes factors that board members can and cannot consider in
    making their selection decisions.” Pl.’s Mot. at 4.
    7
    Unless otherwise specified, the term “Master Brief Sheets”
    is used herein to refer to both Master Brief Sheets and Sampled
    Master Brief Sheets.
    -4-
    The letter also stated that although Defendants had located
    the Master Brief Sheets that Plaintiff requested, they could not be
    released because they were “proceedings,” exempted under 
    5 U.S.C. § 552
    (b)(3), and their release was prohibited under 
    10 U.S.C. § 618
    (f).8
    In    a   letter   dated   January   4,   2006,   Plaintiff   filed   an
    administrative appeal. On February 23, 2006, Defendants denied the
    appeal.    Plaintiff filed his pro se Complaint in this Court on
    April 25, 2006.
    8
    After the parties completed briefing on the pending
    Motions, Congress repealed 
    10 U.S.C. § 618
    (f) and replaced it with
    10 U.S.C. § 613a. Section 618(f) had stated that “proceedings of
    a selection board convened under section 611(a) of this title may
    not be disclosed to any person not a member of the board.” 
    10 U.S.C. § 618
    (f).     The newly enacted Section 613a states that
    “proceedings of a selection board convened under section 611 of
    this title may not be disclosed to any person not a member of the
    board.” Congress passed the new statute on October 17, 2006 as part
    of the National Defense Authorization Act for Fiscal Year 2007.
    Pub. L. No. 109-364, § 547, 
    120 Stat. 2216
     (2006); Defs.’ Notice of
    Supplemental Authority (Oct. 29, 2008) [Dkt. No. 16].
    Briefing on the present Motions was completed on September 25,
    2006.   Apart from Defendants’ Notice of Supplemental Authority,
    neither party has submitted any briefing on the issue of whether
    the changes to the statute impact the issues in this case, although
    the relevant language of both statutes appears to be identical.
    When a statute is enacted after the events in issue and Congress
    has not “expressly prescribed the statute’s proper reach,” a court
    must “determine whether the new statute would have retroactive
    effect, i.e., whether it would impair rights a party possessed when
    he acted, increase a party’s liability for past conduct, or impose
    new duties with respect to transactions already completed.”
    Landgraf v. USI Film Prods., 
    511 U.S. 244
    , 280 (1994). Because the
    statutes are substantively similar and therefore do not
    substantively alter the parties’ rights, it is clear that 10 U.S.C.
    § 613a does not have retroactive effect. Accordingly, the relevant
    statute in this case is 
    10 U.S.C. § 618
    (f).
    -5-
    II.    Standard of Review
    FOIA “requires agencies to comply with requests to make their
    records available to the public, unless the requested records fall
    within one or more of nine categories of exempt material.” Oglesby
    v. Dep’t of the Army, 
    79 F.3d 1172
    , 1176 (D.C. Cir. 1996) (citing
    
    5 U.S.C. §§ 552
    (a), (b)).
    In a FOIA case, the district court conducts a de novo review
    of the government’s decision to withhold requested documents under
    any of the statute’s nine exemptions.   
    5 U.S.C. § 552
    (a)(4)(B).   An
    agency that withholds information pursuant to a FOIA exemption
    bears the burden of justifying its decision. Petroleum Info. Corp.
    v. Dep’t of the Interior, 
    976 F.2d 1429
    , 1433 (D.C. Cir. 1992)
    (citing 
    5 U.S.C. § 552
    (a)(4)(B)).
    In a FOIA case, a court may award summary judgment solely on
    the basis of information provided in affidavits or declarations
    when they (1) “describe the documents and the justifications for
    nondisclosure with reasonably specific detail;” (2) “demonstrate
    that the information withheld logically falls within the claimed
    exemption;” and (3) “are not controverted by either contrary
    evidence in the record nor by evidence of agency bad faith.”
    Military Audit Project v. Casey, 
    656 F.2d 724
    , 738 (D.C. Cir.
    1981).
    III.    Analysis
    -6-
    FOIA “mandates a strong presumption in favor of disclosure.”
    Multi Ag Media LLC v. Dep’t of Agriculture, 
    515 F.3d 1224
    , 1227
    (D.C. Cir. 2008) (internal quotation marks omitted).          Nonetheless,
    an agency may withhold information that falls within one of the
    statute’s nine enumerated exemptions. August v. FBI, 
    328 F.3d 697
    ,
    699 (D.C. Cir. 2003).     These exemptions were “designed to protect
    those legitimate governmental and private interests that might be
    harmed by release of certain types of information.”       
    Id.
     (internal
    quotation marks omitted).     Because the statute favors disclosure,
    the exemptions “must be narrowly construed.”       Multi Ag Media LLC,
    
    515 F.3d at 1227
     (internal quotation marks omitted).
    In   the   present   case,   Defendants   claim   that    three   FOIA
    exemptions apply: Exemptions 3, 5, and 6.
    A.   FOIA Exemption 3
    FOIA Exemption 3 permits an agency to withhold information
    “specifically exempted from disclosure by statute . . . provided
    that such statute (A) requires that the matters be withheld from
    the public in such a manner as to leave no discretion on the issue,
    or (B) establishes particular criteria for withholding or refers to
    particular types of matters to be withheld.” 
    5 U.S.C. § 552
    (b)(3).
    When the government alleges that it may withhold information
    pursuant to Exemption 3, “the sole issue for decision is the
    existence of a relevant statute and the inclusion of withheld
    material within that statute’s coverage.”      Goland v. CIA, 607 F.2d
    -7-
    339, 350 (D.C. Cir. 1987).            A statute qualifies as a withholding
    provision when it is “the product of congressional appreciation of
    the    dangers     inherent     in     airing     particular      data”    and     it
    “incorporate[s] a formula whereby the administrator may determine
    precisely whether the disclosure in any instance would pose the
    hazard that Congress foresaw.”             Wisconsin Project on Nuclear Arms
    Control v. Dep’t of Commerce, 
    317 F.3d 275
    , 280 (D.C. Cir. 2003).
    Defendants argue that they must withhold the information
    Plaintiff     requests     because    it   is   “specifically      exempted      from
    disclosure” by 
    10 U.S.C. § 618
    (f).              Defs.’ Mot. at 8-9.         Section
    618(f) stated that “proceedings of a selection board convened under
    section 611(a) of this title may not be disclosed to any person not
    a member of the board.”        
    10 U.S.C. § 618
    (f).
    Defendants argue that Master Brief Sheets and Sampled Master
    Brief Sheets are “proceedings” and are therefore protected by the
    statute.     See Defs.’ Mot. at 9-10.         They contend that both types of
    information are “proceedings” because they “are a tool used during
    the    promotion   board    process     because    they     summarize     important
    information regarding an officer’s past performance, an integral
    part    of    determining     which    officers     are   best    qualified       for
    promotion.”      
    Id. at 10
    .
    In    response,   Plaintiff      concedes     that    if   the     requested
    information constituted a proceeding, Defendants could properly
    withhold it.     Pl.’s Mot. at 5.       Plaintiff argues, however, that the
    -8-
    requested information is not within the purview of 
    10 U.S.C. § 618
    (f) because it is not a “proceeding” within the meaning of the
    statutory term.        Plaintiff makes two specific claims: first, the
    term’s   plain       meaning   indicates      that   none   of   the    requested
    information     is    a   proceeding,    and    second,     Defendants’    actual
    practices indicate that Master Brief Sheets and Sampled Master
    Brief Sheets are not “proceedings.”
    1.        Defendants’ Interpretation of the Statutory Term
    “Proceedings” Is Entitled to Chevron Deference
    In the absence of a definition of the term in the statute
    itself, Defendants rely upon Black’s Law Dictionary to supply one.
    Defendants contend that the term “proceedings” refers to “[a]n act
    or step that is part of a larger action.”                   Defs.’ Mot. at 10
    (quoting Black’s Law Dictionary 1241 (8th ed. 2004)).                  Defendants
    argue that because Congress did not define the term in the statute,
    the term is ambiguous, and the agency’s definition should apply.
    See Defs.’ Opp’n at 20 (arguing that the agency’s interpretation is
    entitled to deference pursuant to Chevron U.S.A, Inc. v. Natural
    Resources Defense Council, Inc., 
    467 U.S. 837
     (1984)).
    The Supreme Court has “long recognized that considerable
    weight should be accorded to an executive department’s construction
    of a statutory scheme it is entrusted to administer.” Chevron, 
    467 U.S. at 844
    .     In accordance with this principle, a court must apply
    a two-part test to determine whether the agency’s interpretation is
    entitled to deference.         
    Id. at 843
    .     A court first must determine
    -9-
    if the “statute is silent or ambiguous with respect to the specific
    issue before it.”       Id.; see also INS v. Aguirre-Aguirre, 
    526 U.S. 415
    , 424 (1999).        If it is, then a court must determine “whether
    the agency’s answer is based on a permissible construction of the
    statute.”       Chevron,      
    467 U.S. at 843
    .          If    the    agency’s
    interpretation is “reasonable,” then it is entitled to deference.
    Sierra Club v. EPA, 
    536 F.3d 673
    , 677 (D.C. Cir. 2008).
    As Defendants correctly argue, the term “proceedings” is
    ambiguous because Congress did not define it in the statute.
    Accordingly, it is necessary to apply the second prong of the
    Chevron test and determine whether the agency’s definition of
    “proceedings” is reasonable.
    Here, Defendants used Black’s Law Dictionary to provide the
    definition   of    “proceedings.”             Plaintiff     instead       proposes      two
    definitions from Webster’s Third New International Dictionary as
    preferable     alternatives:        “a        particular         way    of     doing     or
    accomplishing something” or “an official account (as in a book of
    minutes).”     Pl.’s Mot. at 8-9.
    Black’s      Law   Dictionary       is    a   well   known        legal   reference
    dictionary which is widely relied upon by attorneys and courts.
    See,e.g., Melendez-Diaz v. Massachusetts, 
    129 S.Ct. 2527
    , 2532
    (2009)   (using     Black’s     Law      Dictionary         to     define      the     term
    “affidavit”); Karsner v. Lothian, 
    532 F.3d 876
    , 887 (D.C. Cir.
    2008) (using Black’s Law Dictionary to define the term “award”).
    -10-
    In   evaluating     the   choice   between   Black’s   Law   Dictionary   and
    Webster’s Third New International Dictionary, it is clear that
    Defendants’ choice of one of the definitions used in Black’s is
    reasonable, and therefore is entitled to deference.
    2.   Master Brief Sheets Do Not Fall Within Defendants’
    Definition of Proceedings
    Even under Defendants’ definition, however, a Master Brief
    Sheet is not a “proceeding.”        To be considered a proceeding under
    the Black’s Law Dictionary definition employed by Defendants,
    Master Brief Sheets would need to be an “act or step.”             They are
    not.       They are simply a compilation of data, and a tool, albeit a
    very important one, used by Selection Boards.9 Plaintiff correctly
    states that “deliberation about the import of the data contained
    within the Master Brief Sheets could be a ‘step in the proceeding’
    9
    Defendants cite to several cases to bolster their claim
    that Master Brief Sheets are “proceedings.” Defs.’ Mot. at 10-11.
    One such case is In re England, 
    375 F.3d 1169
     (D.C. Cir. 2004).
    Neither party contests the case’s holding that “[d]isclosure of
    selection board proceedings in civil discovery would certainly
    undermine, if not totally frustrate, the purpose of Section
    618(f).” Id. at 11 (quoting In re England, 
    375 F.3d at 1178
    ). Nor
    does either party contest that the information requested by the
    plaintiffs in that case -- testimony of Selection Board members
    about the Selection Board proceedings -- constituted part of the
    “proceeding.” While In re England affirms propositions on which
    both parties agree, it does not address the issue of what is
    encompassed in the term “proceedings” and therefore provides no
    support for Defendants’ argument that Master Brief Sheets are
    “proceedings.”
    -11-
    but the Master Brief Sheet itself cannot be.”       Pl.’s Mot. at 8.10
    Master Brief Sheets are plainly factual material.11
    Accordingly,   under   the   definition   employed   by   Defendants
    themselves, Master Brief Sheets are not “proceedings” and therefore
    do not fall within the scope of Section 618(f).
    3.   Defendants’ Past Practices Demonstrate that Master
    Brief Sheets Are Not Proceedings
    Plaintiff also alleges that Master Brief Sheets are not
    “proceedings” because Defendants already make public similar types
    of information, thereby acting inconsistently with the position
    they are taking in this litigation.      Pl.’s Mot. at 15-19.
    10
    Defendants argue that the information withheld in Miller
    v. Dep’t of the Navy, 
    383 F. Supp. 2d 5
     (D.D.C. 2005), rev’d on
    other grounds, 
    476 F.3d 936
     (D.C. Cir. 2007), is analogous to the
    information at issue in the present case. At issue in Miller was
    information redacted from a report by an inspector general. Id. at
    7-8. The inspector general had been charged with reviewing whether
    the Selection Board’s decision was “materially unfair” because one
    of the Selection Board members had conducted himself improperly
    during deliberations. Id. This review would have required the
    inspector general to examine the content of the Selection Board’s
    deliberations, and thus the court noted in a footnote that the
    plaintiff had “provided the court with no reason” to conclude that
    the requested information was not subject to withholding pursuant
    to Exemption 3. See id. at 17 n.3. In contrast, the information
    requested in this case does not involve the content of
    deliberations.
    11
    As the Government states in its Opposition, “a District
    Court considering a FOIA action has ‘an affirmative duty to
    consider the segregability issue sua sponte.’” Defs.’ Opp’n at 31
    (citing Trans-Pacific Policing Agreement v. U.S. Customs Service,
    
    177 F.3d 1022
    , 1028 (D.C. Cir. 1999)). Here, the Court is simply
    segregating out what is purely factual data from the opinions,
    conversations, and deliberations that are protected under Section
    618(f).
    -12-
    First, Plaintiff claims that Master Brief Sheets cannot be
    withheld because precepts, which are similar to Master Brief
    Sheets, are made publicly available on the Internet by Defendants.
    Id. at 15-16.    Precepts, like Master Brief Sheets, are provided to
    members of the Selection Board.             Precepts, like Master Brief
    Sheets, are used by Board members during their deliberations.                If
    precepts may be released then, according to Plaintiff, Master Brief
    Sheets may be released as well.
    Defendants respond that precepts are distinguishable from
    Master   Brief   Sheets    because    Selection    Boards     use    them    for
    “direction   regarding    their   duties    as   well   as   their   oaths    of
    confidentiality.” Defs.’ Opp’n at 27. Therefore, Defendants claim
    precepts are “fundamentally different from the ‘materials and other
    information’ that the board utilized in making its promotion
    recommendations.”    Id.    Defendants also state that a precept is
    “issued in order to instruct each selection board on the manner in
    which to proceed,” whereas a Master Brief Sheet contains “key
    personnel data and a summary of each officer’s entire performance
    record.”   Id.   (internal punctuation and citations omitted).
    The distinctions cited by Defendants do not demonstrate any
    meaningful difference between precepts and Master Brief Sheets.
    Precepts, like Master Brief Sheets, are part of the Selection Board
    proceedings in that they provide information that shapes the
    conclusions reached by the Board.           For example, they state the
    -13-
    number of officers that a Selection Board may select for promotion
    and the selection standard that the Board shall employ.                          Pl.’s
    Mot., Ex. 6.       Specifically, a precept might require a Board to
    refrain from considering the marital status of an officer, but to
    “give due consideration to the needs of the Marine Corps for
    officers with particular skills.”               Id.
    If anything, the distinctions cited by Defendants suggest that
    precepts are more likely to be considered “proceedings” than are
    Master Brief Sheets.12       Unlike Master Brief Sheets, precepts do not
    simply provide a set of underlying facts.                    Instead, they directly
    influence the process used by the Selection Board by determining
    the “manner in which to proceed.”               Thus, given that the Navy does
    not   consider    precepts    to   be     “proceedings”         and    permits   their
    release,    the   agency     has   not    offered       any    rational   basis    for
    disclosing them and refusing to disclose Master Brief Sheets which
    contain nothing but factual material.
    Second, Plaintiff argues that Defendants do not treat Master
    Brief Sheets as “proceedings” because they release Master Brief
    Sheets     to   individual    officers      and       make    public   some   of   the
    information that appears on them, such as occupational specialty
    12
    Defendants’ argument that Master Brief Sheets contain “key
    personnel data” is not relevant to the analysis of whether Master
    Brief Sheets are non-disclosable proceedings under FOIA Exemption
    3 and 
    10 U.S.C. § 618
    (f). Instead, the disclosure of data that
    could be considered private is relevant to the analysis under
    Exemption 6. See infra III.C.
    -14-
    and education level.      If Master Brief Sheets and information
    contained in them are released in some circumstances, Plaintiff
    argues, then Defendants cannot claim that Section 618(f) bars their
    release in the circumstances presented in this case.
    In   response,   Defendants    contend   that   two   sets   of   Navy
    regulations specifically prohibit the release of Master Brief
    Sheets.   The first, MCO P1400.31B, ¶ 4001 (2006), states that
    “Board presidents are charged to brief the members and recorders of
    the board . . . that proceedings, deliberations, materials, and any
    other information pertaining to the board are not releasable except
    as authorized by the Secretary of the Navy, the Secretary of
    Defense, or the President.”    (emphasis added by Defendants).         The
    second, Department of Army Memo 600-2 ¶ 6.g. (1999), states that
    “Board members will not disclose statistical analyses, details of
    the board proceedings, or specifics pertaining to selection or non-
    selection of individual officers unless authorized to do so by
    proper authority.”    (emphasis added by Defendants).
    These regulations do not prevent release of Master Brief
    Sheets and Sampled Master Brief Sheets for two reasons.            First,
    Defendants concede that these two regulations are aimed not at
    regulating disclosure by the agency as a whole, but instead at
    preventing disclosure by individual Board members.            See Defs.’
    Opp’n at 22 (“This strict confidentiality imposed on board members
    prohibits them from disclosing how they used the information
    -15-
    provided in making their decisions to promote certain officers.”)
    (emphasis added).    It is self-evident that disclosure by Board
    members presents issues distinct from official disclosure by the
    agency. If a Selection Board were to determine that one particular
    officer should not be promoted, for example, the agency would have
    a compelling interest in preventing dissenting Board members from
    voicing their disagreement with the result.
    Second, the regulations are not coextensive with Section
    618(f). If they were coextensive with Section 618(f), then neither
    “materials” nor “any other information pertaining to the board”
    could be released.     In actuality, however, the Navy releases
    several different types of information considered at Selection
    Board meetings.     See Pl.’s Mot., Exh. 7 (released information
    includes the average “time in service,” “age,” and educational
    level of the officers selected for promotion).     Additionally, as
    discussed supra, the Navy makes precepts publicly available, even
    though precepts contain detailed information about the structure
    and criteria employed in Selection Board proceedings.      Precepts
    clearly “pertain[]” to the Board.     Given that these two types of
    information are released, Section 618(f) and the regulations cannot
    be coextensive.   As a result, the regulations do not prevent the
    release of Master Brief Sheets and Sampled Master Brief Sheets.
    -16-
    For these reasons, Master Brief Sheets are not “proceedings”
    and are not barred from release by FOIA Exemption 3 and 
    10 U.S.C. § 618
    (f).
    B.    FOIA Exemption 5
    FOIA Exemption 5 permits an agency to withhold “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).         This Exemption incorporates the
    “deliberative       process     privilege,”        which     “covers    documents
    reflecting advisory opinions, recommendations and deliberations
    comprising part of a process by which governmental decisions and
    policies are formulated.” Dep’t of Interior v. Klamath Water Users
    Protective Ass’n, 
    532 U.S. 1
    , 8-9 (2001) (quoting NLRB v. Sears,
    Roebuck & Co., 
    421 U.S. 132
    , 150 (1975) (internal quotation marks
    omitted)); see also Public Citizen, Inc. v. Office of Mgmt. &
    Budget, ___ F.3d ___, 
    2009 WL 1709216
    , at *7 (D.C. Cir. June 19,
    2009).      In    addition,     the   privilege     covers       information   that
    “reflect[s] the personal opinions of the writer rather than the
    policy of the agency.”          Morley v. CIA, 
    508 F.3d 1108
    , 1127 (D.C.
    Cir. 2007) (internal quotation marks and punctuation omitted).
    When the information at issue is “[f]actual material that does not
    reveal    the    deliberative    process,”    it    is     not   protected.     
    Id.
    (quoting Paisley v. CIA, 
    712 F.2d 686
    , 698 (D.C. Cir. 1983).
    -17-
    To invoke the deliberative process privilege, an agency must
    show that the requested material meets two requirements: it must be
    “both ‘predecisional’ and ‘deliberative.’” Public Citizen, 
    2009 WL 1709216
    , at *7; see also In re Sealed Case, 
    121 F.3d 729
    , 737 (D.C.
    Cir. 1997).   Material is predecisional if “it was generated before
    the adoption of an agency policy.”      Judicial Watch, Inc. v. Food &
    Drug Admin., 
    449 F.3d 141
    , 151 (D.C. Cir. 2006) (quoting Coastal
    States Gas Corp. v. Dep’t of Energy, 
    617 F.2d 854
    , 866 (D.C. Cir.
    1980)).    To be predecisional, a “court must first be able to
    pinpoint an agency decision or policy to which these documents
    contributed.”   Morley, 
    508 F.3d at 1127
    .
    Material is deliberative if “it reflects the give-and-take of
    the   consultative   process.”   Judicial   Watch,   
    449 F.3d at 151
    (internal citations and quotation marks omitted).          It must also
    “reflect[] advisory opinions, recommendations, and deliberations
    comprising part of a process by which governmental decisions and
    policies are formulated, [or] the personal opinions of the writer
    prior to the agency’s adoptions of a policy.” Public Citizen, 
    2009 WL 1709216
    , at *7 (quoting Taxation With Representation Fund v.
    IRS, 
    646 F.2d 666
    , 677 (D.C. Cir. 1981)); see also Defs.’ Opp’n at
    13 (quoting Vaughn v. Rosen, 
    523 F.2d 1136
    , 1144 (D.C. Cir. 1975)).
    One key factor is whether disclosing the requested information
    would “inhibit candor in the decision-making process.”       Army Times
    Pub. Co. v. Dep’t of Air Force, 
    998 F.2d 1067
    , 1071 (D.C. Cir.
    -18-
    1993) (citing Petroleum Info. Corp., 
    976 F.2d at 1435
    ).                        If
    documents “neither make recommendations for policy change nor
    reflect    internal    deliberations      on   the       advisability    of    any
    particular    course   of   action,     they   are      not   predecisional    and
    deliberative.”     Public Citizen, 
    2009 WL 1709216
    , at *7.              Documents
    that were once predecisional and deliberative but now reflect an
    agency’s “formal or informal policy on how it carries out its
    responsibilities” are considered part of the agency’s “working law”
    and are not covered by the deliberative process privilege.                    Id.;
    Coastal States Gas Corp. v. Dep’t of Energy, 
    617 F.2d 854
    , 866
    (D.C. Cir. 1980) (“[E]ven if the document is predecisional at the
    time it is prepared, it can lose that status if it is adopted,
    formally or informally, as the agency position on an issue.”).
    1.     Master Brief Sheets Are Not Deliberative in Nature
    Master Brief Sheets are clearly predecisional because they are
    “generated” prior to the promotion determinations and are used
    during the Selection Board proceedings as a tool for the Selection
    Board.
    For the deliberative prong, the central question is not
    whether the information at issue bears a causal connection to a
    final     determination,    but    is    rather      whether     the    requested
    information      independently    “reflects”      the    deliberative    process
    itself.    See Public Citizen, 
    2009 WL 1709216
    , at *8 (“Only those
    portions of a predecisional document that reflect the give and take
    -19-
    of the deliberative process may be withheld.”) (internal citations
    omitted).    Defendants contend that because the Master Brief Sheets
    are so “inextricably connected to the deliberative material,” they
    are deliberative in nature and their release would “cause harm to
    the agency’s deliberations.”     Defs.’ Opp’n at 16 (citing Wolfe v.
    Dep’t of Health & Human Servs., 
    839 F.2d 768
    , 774 (D.C. Cir.
    1998)).
    Master Brief Sheets are used as a tool in the decision-making
    process, and serve as an important factor in the final promotion
    decision.     However, they reveal only the data used during the
    process, not the substance of the deliberations.            See Public
    Citizen, 
    2009 WL 1709216
    , at *9 (“[A]gencies must disclose those
    portions of predecisional and deliberative documents that contain
    factual     information   that   does    not   inevitably   reveal   the
    government’s deliberations.”) (internal citations and quotation
    marks omitted).    Defendants’ own definition of Master Brief Sheets
    suggests that they contain no information about the content of
    Selection Board proceedings, but rather provide only facts that are
    used during the proceedings.       Defs.’ Opp’n at 7 (“Master Brief
    Sheets contain key personnel data and a summary of an officer’s
    entire performance evaluation record.”).          Thus, they are not
    deliberative in nature because they do not “make[] recommendations
    or express[] opinions” on the issue of a particular officer’s
    fitness for promotion.     Vaughn, 523 F.2d at 1144.
    -20-
    In addition, it is unlikely that candor would be inhibited
    during Selection Board proceedings because releasing Master Brief
    Sheets reveals no information about the content of Board members’
    deliberations, or about the weight that a particular fact was given
    in a decision on any individual officer.
    Finally, even if Master Brief Sheets were to satisfy the two
    prongs of the deliberative process inquiry, Exemption 5 covers only
    “memorandums or letters.”         Master Brief Sheets are neither.         They
    are data.      Therefore, they are not protected by Exemption 5.
    For these reasons, Exemption 5 does not apply to Master Brief
    Sheets.
    2.        Sampled Master Brief Sheets Are Not Deliberative in
    Nature13
    Defendants also argue that the Sampled Master Brief Sheets --
    as   opposed     to    Master   Brief   Sheets   alone14   --   present   unique
    considerations.         The President of the Board selects a sampling
    after he “compares, evaluates, and analyzes” the Master Brief
    Sheets and identifies those that are representative of the entire
    body of officers selected for promotion.            The Sampled Master Brief
    Sheets are then stored in a confidential database for use in the
    event that the Navy holds Special Selection Board proceedings.
    13
    It has come to the Court’s attention that there was an
    error in this heading; it is corrected herein.
    14
    See supra note 7.
    -21-
    First, Defendants correctly argue that the Sampled Master
    Brief Sheets are predecisional because “they are antecedent to any
    decision by the Navy regarding promotions.”   Defs.’ Opp’n at 15.15
    Second, Defendants contend that because this process requires
    the president to “exercise[] his judgment,” the Sampled Master
    Brief Sheets are deliberative in nature.    Id.   The Sampled Brief
    Sheets are not protected by the deliberative process privilege for
    three reasons.
    First, the Sampled Master Brief Sheets are not deliberative.
    As our Court of Appeals has stated, the “first step in determining
    whether disclosure would harm the deliberative process is to
    examine the context in which the materials are used.”      Wolfe, 839
    F.2d at 774.     In determining whether the deliberative process
    privilege applies,   the inquiry must be conducted “in light of the
    policies and goals that underlie” the privilege.”    Id.
    In this case, although Defendants may be correct that the
    process by which the President of the Selection Board selects the
    Sampled Master Brief Sheets does require deliberation, the sampling
    process itself is not the relevant deliberation for analysis.
    Defendants have asserted the deliberative process privilege not
    because they have an interest in protecting the sampling process,
    but because they seek to protect the promotion process.       Defs.’
    Opp’n at 15 (“[T]he sampled Master Brief Sheets are predecisional
    15
    Plaintiff does not seem to contest this.
    -22-
    because they are antecedent to any decision by the Navy regarding
    promotions.”) (emphasis added).
    The sampling process has no impact on the officer selection
    proceedings, and samples do not reveal anything more about the
    deliberative process than the current practice of releasing the
    names and basic statistical information of officers selected for
    promotion.      It would distort the purpose of the deliberative
    process privilege -- to protect the consultations that precede
    decisions on important legal or policy matters -- if tangential
    deliberations    could   be   used   as     a    bootstrap   for   withholding
    information that otherwise is not protected by the privilege.
    Second, disclosing the samples will not inhibit dialogue or
    discourage candor at future Selection Board proceedings because
    they reveal no information about individual Board members and no
    substantial information about the content of the deliberations.
    Third, Sampled Master Brief Sheets, like Master Brief Sheets,
    are not “memorandums or letters.”               Therefore, like Master Brief
    Sheets, they are not protected by Exemption 5.
    C.   FOIA Exemption 6
    Defendants assert FOIA Exemption 6 as their third basis for
    withholding the requested information.             This Exemption permits an
    agency to withhold “personnel and medical files and similar files
    the disclosure of which would constitute a clearly unwarranted
    invasion of personal privacy.”        
    5 U.S.C. § 552
    (b)(6).        The Supreme
    -23-
    Court has held that Exemption 6 was “intended to cover detailed
    Government records on an individual which can be identified as
    applying to that individual.”   Dep’t of State v. Wash. Post Co.,
    
    456 U.S. 595
    , 602 (1982) (quoting H.R. Rep. No. 1497, 89th Cong.,
    2d Sess. 11) (internal quotation marks omitted).
    Because the Exemption requires an agency to demonstrate that
    disclosure would be “clearly unwarranted,” courts must “tilt the
    balance (of disclosure interests against privacy interests) in
    favor of disclosure.” Morley, 
    508 F.3d at 1127
     (quoting Wash. Post
    Co. v. Dep’t of Health & Human Servs., 
    690 F.2d 252
    , 261 (D.C. Cir.
    1982) (internal quotation marks omitted)).    Such strong language
    creates a “heavy burden” for Defendants.   
    Id.
     (quoting Wash. Post
    Co., 
    690 F.2d at 261
    ).    Under Exemption 6, “the presumption in
    favor of disclosure is as strong as can be found anywhere in
    [FOIA].”   
    Id.
     (quoting Wash. Post Co., 
    690 F.2d at 261
    ).
    To succeed on a claim pursuant to Exemption 6, an agency must
    first identify a privacy interest.       See Defs.’ Opp’n at 23;
    Consumers’ Checkbook, Ctr. for the Study of Servs. v. Dep’t of
    Health and Human Servs., 
    554 F.3d 1046
    , 1051 (D.C. Cir. 2009)
    (“[P]hysicians have a substantial privacy interest in the total
    payments they receive from Medicare for covered services.”); see
    also Judicial Watch, 
    449 F.3d at 153
    . If the requested information
    has no link to a specific individual, no privacy interest is
    implicated.   Citizens for Envtl. Quality, Inc. v. Dep’t of Agric.,
    -24-
    
    602 F. Supp. 534
    , 538 (D.D.C. 1984) (citing Dep’t of Air Force v.
    Rose, 
    425 U.S. 352
    , 380 n.19 (1976)).                  Once the agency has
    identified a privacy interest in withholding the information, it
    must   then   show   that   the   asserted     privacy    interest   outweighs
    “whatever public interest exists in having the names and addresses
    disclosed.”      See Judicial Watch, 
    449 F.3d at 153
    .
    Here, Plaintiff requests only redacted information.                See
    Defs.’ Mot., Ex. C (in his FOIA request, Plaintiff states, “I wish
    to emphasize that I am not seeking personal identifiers of any of
    the    records     and   anticipate     that     you     will   redact   these
    identifiers.”).      Nonetheless, Defendants assert that “[d]espite
    plaintiff’s proposed redactions, protected personal information
    would still be disclosed,” including “the tabulated results of
    performance evaluations spanning the bulk of the subject officers’
    careers.”     Defs.’ Opp’n at 24 & n.13.
    In the absence of any “personal identifiers,” it is highly
    unlikely -- if not impossible -- that disclosure would threaten an
    individual’s privacy interests.         Defendants have not shown that a
    citizen would be able to use the redacted Master Brief Sheets to
    identify any particular individual described. Therefore Defendants
    have not carried their “heavy” burden to show that disclosure would
    cause a “clearly unwarranted” invasion of privacy.
    For this reason, Exemption 6 does not protect the requested
    information in this case.
    -25-
    IV.   Conclusion
    For the reasons set forth above, Defendants’ Motion for
    Summary   Judgment   is   denied,    and    Plaintiff’s   Cross-Motion   for
    Summary   Judgment   is   granted.     An    Order   shall   accompany   this
    Memorandum Opinion.
    /s/
    July 22, 2009                               Gladys Kessler
    United States District Judge
    Copies to: Attorneys of record via ECF
    -26-
    

Document Info

Docket Number: Civil Action No. 2006-0752

Judges: Judge Gladys Kessler

Filed Date: 8/25/2009

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (27)

Miller v. Department of the Navy , 383 F. Supp. 2d 5 ( 2005 )

The Washington Post Company v. United States Department of ... , 690 F.2d 252 ( 1982 )

Trans-Pacific Policing Agreement v. United States Customs ... , 177 F.3d 1022 ( 1999 )

United States Department of State v. Washington Post Co. , 102 S. Ct. 1957 ( 1982 )

Immigration & Naturalization Service v. Aguirre-Aguirre , 119 S. Ct. 1439 ( 1999 )

Chevron U. S. A. Inc. v. Natural Resources Defense Council, ... , 104 S. Ct. 2778 ( 1984 )

Taxation With Representation Fund v. Internal Revenue ... , 646 F.2d 666 ( 1981 )

WI Proj Nuc Arms v. COMM , 317 F.3d 275 ( 2003 )

Morley v. Central Intelligence Agency , 508 F.3d 1108 ( 2007 )

Maryann Paisley v. Central Intelligence Agency , 712 F.2d 686 ( 1983 )

Miller v. Department of Navy , 476 F.3d 936 ( 2007 )

August v. Federal Bureau of Investigation , 328 F.3d 697 ( 2003 )

Multi Ag Media LLC v. Department of Agriculture , 515 F.3d 1224 ( 2008 )

Citizens for Environmental Quality, Inc. v. United States ... , 602 F. Supp. 534 ( 1984 )

Melendez-Diaz v. Massachusetts , 129 S. Ct. 2527 ( 2009 )

Military Audit Project, Felice D. Cohen, Morton H. Halperin ... , 656 F.2d 724 ( 1981 )

Carl Oglesby v. The United States Department of the Army , 79 F.3d 1172 ( 1996 )

Judicial Watch, Inc. v. Food & Drug Administration , 449 F.3d 141 ( 2006 )

Coastal States Gas Corporation v. Department of Energy , 617 F.2d 854 ( 1980 )

National Labor Relations Board v. Sears, Roebuck & Co. , 95 S. Ct. 1504 ( 1975 )

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