Charles v. Office of the Armed Forces Medical Examiner ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ROGER G. CHARLES, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-199 (RWR)
)
OFFICE OF THE ARMED FORCES )
MEDICAL EXAMINER, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Roger Charles, a retired Marine Corps captain and
journalist, brings this action against the Office of the Armed
Forces Medical Examiner (“OAFME”), the Armed Forces Institute of
Pathology (“AFIP”), and the Department of Defense (“DOD”)
alleging a violation of the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, and the Administrative Procedure Act, 5 U.S.C.
§ 706, arising out of Charles’s request for documents related to
whether any service member’s deaths may have resulted from bullet
wounds in torso areas that are usually covered by body armor.
The parties have cross-moved for summary judgment, disputing
whether FOIA exemptions apply to the documents Charles seeks.
Because preliminary autopsy reports were exempt from disclosure
under Exemption 5, but the defendants did not demonstrate that
they disclosed all reasonably segregable material, the
defendants’ motion for summary judgment as to the preliminary
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autopsy reports will be denied without prejudice. Because the
defendants’ justifications for withholding the final autopsy
reports and in-theater medical records are not supported by the
defendants’ affidavits or current law, Charles’s motion for
summary judgment will be granted as to these materials.
BACKGROUND
Rogers is a veteran, a journalist, and the editor of Defense
Watch, an online journal published by the Soldiers for the Truth
Foundation. Pl.’s Third Cross Mot. for Summ. J. (“Pl.’s Mot.”),
Pl.’s Stmt. of Undisputed Material Facts in Supp. of Pl.’s Third
Cross-Mot. for Summ. J. (“Pl.’s Stmt.”) ¶ 1. Charles is
investigating the effectiveness of the body armor that the United
States military issues to its troops. Charles v. Office of the
Armed Forces Med. Exam’r, 730 F. Supp. 2d 205, 208 (D.D.C. 2010).
“Having learned of reports and data suggesting that the body
armor may not provide sufficient protection for American troops
in combat, the plaintiff began gathering empirical information in
an attempt to verify these reports.” Id. To further his
investigation, Charles submitted a FOIA request in October 2008
to the DOD’s AFIP, which was directed to the OAFME.1 Defs.’
Third Mot. for Summ. J. (“Defs.’ Mot.”), Defs.’ Stmt. of Material
1
At the relevant time, Captain Craig T. Mallak was the
Armed Forces Medical Examiner for the DOD. In that capacity,
Captain Mallak oversaw the Armed Forces Medical Examiner System
(“AFMES”). “The AFMES is the only medical examiner system for
the [DOD].” Defs.’ Mot., Captain Craig T. Mallak Decl. ¶ 1.
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Facts Not in Dispute (“Defs.’ Stmt.”) ¶ 1; Compl., Ex. E (Letter
from Catherine M. With, Major, U.S. Army & Legal Counsel, AFIP,
to Roger G. Charles (Sept. 10, 2008) at 1). Charles requested
records that “analyze fatal wounds from bullets that were
inflicted on military service members wearing body armor in Iraq
and Afghanistan between January 1, 2006 and December 31, 2007,
and analyze the relationship between personal body armor and
lethal torso injuries sustained by such service members.” Defs.’
Stmt. ¶ 2. “As of January 30, 2009, the AFIP had neither
produced any documents nor provided any estimate of when it might
respond.” Charles, 730 F. Supp. 2d at 209; see also Defs.’ Mot.,
Captain Craig T. Mallak Decl. (“Mallak Decl.”) ¶ 17. Charles
filed his complaint for injunctive relief in February 2009.
AFIP does not maintain a searchable central records system.
Thus, Captain Mallak convened a meeting of his colleagues to
determine whether the Armed Forces Medical Examiner System
(“AFMES”) and AFIP possessed any records responsive to Charles’s
request. Mallak Decl. ¶ 20. The defendants identified 103
autopsy files and 18 body armor description sheets. Pl.’s Stmt.
16; Defs.’ Stmt. ¶¶ 3, 6. The autopsy files included
“information such as preliminary and final autopsy reports,
autopsy photographs, body diagrams, CT scans, medical records and
death certificates.” Charles, 730 F. Supp. 2d at 209. The
responsive body armor description sheets “contained written
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descriptions of wounds and wound patterns and notations of
possible links between injuries sustained while wearing personal
protective equipment and resulting wound patterns. Further, some
or all of the eighteen responsive records indicated that the body
armor under examination was not perfectly intact upon inventory.”
Id. (internal citations and quotation marks omitted). Although
the defendants identified the records as responsive to Charles’s
request, they decided to withhold all of the records in their
entirety under FOIA exemptions. Defs.’ Stmt. ¶ 7.
In October 2009, the defendants moved for summary judgment
arguing that their search for responsive records was adequate and
that all of the records responsive to Charles’s request were
properly withheld. Id. ¶ 8. Charles filed a cross-motion for
summary judgment and an opposition in which he narrowed the scope
of his FOIA request to seek only:
(a) [Armed Forces Medical Examiner Tracking System]
body armor descriptions sheets, related to body armor
worn by a soldier killed in Iraq or Afghanistan between
January 1, 2006 and December 31, 2007, which indicate
that the body armor was not intact upon receipt for
inventory, and
(b) autopsy reports and associated documents[2]:
2
Under the heading “autopsy reports and associated
documents,” Charles sought the production of “final autopsy
reports, preliminary autopsy reports, body diagrams, CT Scans,
[and] in-theater medical records.” Pl.’s Opp’n & Cross-Mot. for
Summ J., Mem. in Supp. of Pl.’s Opp’n & Cross-Mot. for Summ. J.
at 9 n.7; see also Defs.’ Stmt. ¶ 9. “In-theater medical records
are forms completed by military service personnel in-theater,
describing the treatment that a service member received for his
or her ultimately fatal wound(s).” Mallak Decl. ¶ 47.
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(1) indicating that a soldier killed in Iraq or
Afghanistan between January 1, 2006 and
December 31, 2007 suffered a fatal gunshot wound
in an area likely covered by the front or rear
ceramic insert plates of that soldier’s body
armor, and/or
(2) commenting, discussing or indicating that the
body armor worn by a soldier killed in Iraq or
Afghanistan between January 1, 2006 and
December 31, 2007 did not prevent a fatal wound,
or was penetrated by a bullet.
Pl.’s Stmt. ¶ 19; Charles, 730 F. Supp. 2d at 210. Charles also
limited his request to copies of the responsive records with
certain information redacted, such as all personal identifying
information.3 The defendants re-reviewed their records and
determined that none of the records responsive to Charles’s
initial request were responsive to Charles’s narrowed request.
Charles, 730 F. Supp. 2d at 211. In response, Charles “protested
the defendants’ apparent reversal on the question of whether they
possess any responsive documents.” Id.3
Specifically, Charles suggested that the following
information be redacted:
all personal identifying information, information
regarding dates of attack and unit numbers, the
location of any wounds or wound patterns, the location
of any damage to body armor, the entry, exit point or
trajectory of bullets, the identification of any need
to improve a specific aspect of body armor worn by
military service personnel or the disclosure of
information that will identify specific locations of
vulnerability in the [Interceptor Body Armor] system or
that indicate or suggest specific improvements to body
armor.
Pl.’s Stmt. ¶ 20.
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On August 13, 2010, Judge Urbina issued a Memorandum Opinion
and Order denying the defendants’ motion for summary judgment and
granting in part Charles’s cross-motion for summary judgment.
Id. at 217-18. As an initial matter, Judge Urbina found that
Charles’s second FOIA request rendered his initial request moot.
Id. at 213. Next, Judge Urbina held that the defendants’ search
for records responsive to Charles’s second request was
unreasonable and inadequate. Id. at 213-17. Finally,
Judge Urbina ordered the parties to submit supplemental briefing
on whether any FOIA exemptions applied to the redacted versions
of the documents Charles seeks under his narrowed request. Id.
at 217-18.
In October 2010, the defendants again moved for summary
judgment. In their motion, the defendants admitted to possessing
records responsive to Charles’s narrowed request. They stated
that they had identified 82 autopsy reports and associated
documents and 7 body armor description sheets. Pl.’s Stmt.
¶¶ 25-26. However, the defendants stated that they were
withholding the records under FOIA Exemptions 2, 5, and 6.
Defs.’ Stmt. ¶ 17. Charles again filed a cross-motion for
summary judgment. In March 2011, the Supreme Court decided
Milner v. Department of Navy, 131 S. Ct. 1259 (2011). Milner
abrogated Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670
F.2d 1051, 1056 (D.C. Cir. 1981), which had held that “Exemption
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2 should also cover any ‘predominantly internal’ materials, whose
disclosure would ‘significantly ris[k] circumvention of agency
regulations or statutes[.]’” Milner, 131 S. Ct. at 1263 (first
alteration in original) (footnote omitted) (quoting Crooker, 670
F.2d at 1056-57, 1074). In light of the intervening change in
controlling law, Judge Urbina denied both motions for summary
judgment without prejudice. See Minute Orders entered on
Sept. 1, 2011.
The defendants now move a third time for summary judgment.
The defendants no longer rely on Exemption 2 to withhold
responsive records. However, the defendants “continue to
withhold the preliminary and final autopsy reports, CT scans,
body diagrams, and in-theater medical records that are responsive
to Plaintiff’s narrowed request” under Exemptions 5 and 6.
Defs.’ Stmt. ¶ 19.4 The defendants further assert that the
records are properly withheld in their entirety and that any
responsive, non-exempt information in the records is not
4
In his opposition and cross-motion for summary judgment,
Charles asserts that the 7 responsive body armor description
sheets have not yet been disclosed. Pl.’s Mot., Mem. in Supp. of
Pl.’s Opp’n to Defs.’ Third Mot. for Summ. J. & Pl.’s Third
Cross-Mot. for Summ. J. at 2. The defendants do not dispute this
contention. See Pl.’s Stmt. ¶ 27 (stating that the “[d]efendants
have refused to produce any of the 7 body armor description
sheets”); Defs.’ Mot., Defs.’ Third Stmt. of Genuine Issues ¶ 27
(agreeing that the fact in paragraph 27 of the Plaintiff’s
Statement of Undisputed Material Facts is “undisputed”). Because
the defendants do not argue that the body armor description
sheets are being withheld under a FOIA exemption, the responsive
sheets will be ordered to be disclosed.
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reasonably segregable. Defs.’ Mot., Mem. in Supp. of Defs.’
Third Mot. for Summ. J. (“Defs.’ Mem.”) at 2. Charles cross-
moves for summary judgment arguing that the defendants cannot
properly withhold the responsive body armor description sheets
and autopsy files and associated documents5 under Exemptions 5
and 6. Pl.’s Mot., Mem. in Supp. of Pl.’s Opp’n to Defs.’ Third
Mot. for Summ. J. & Pl.’s Third Cross-Mot. for Summ. J. (“Pl.’s
Mem.”) at 2-3.
DISCUSSION
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.
2009). The moving party has the initial burden “of informing the
district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (internal quotation marks omitted). The
moving party is then entitled to summary judgment “against a
5
However, Charles no longer requests the CT scans and body
diagrams because he agrees that they contain only information
that Charles agreed could be redacted from the records. Pl.’s
Mem. at 7 n.6, 9 n.7, 10 n.8, 18 n.15.
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party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Id. at
322. “In considering a motion for summary judgment, [the court
should draw] all ‘justifiable inferences’ from the evidence . . .
in favor of the nonmovant.” Cruz-Packer v. District of Columbia,
539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). In a FOIA case,
“[a]gency affidavits are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(internal quotation marks omitted). An agency is entitled to
summary judgment in a FOIA case if it demonstrates that no
material facts are in dispute and that all requested information
has either been produced, is unidentifiable, or exempt from
disclosure. See Students Against Genocide v. Dep’t of State, 257
F.3d 828, 833 (D.C. Cir. 2001).6
Under the FOIA, agencies must comply with requests to make
their records available to the public unless the requested
information is exempted by clear statutory language. 5 U.S.C.
§ 552(a), (b); Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172,
6
Charles does not dispute that the defendants’ search was
adequate.
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1176 (D.C. Cir. 1996). Section 552(b) provides nine statutory
exemptions to disclosure. See 5 U.S.C. § 552(b). In light of
the “strong presumption in favor of disclosure[,]” U.S. Dep’t of
State v. Ray, 502 U.S. 164, 173 (1991), these exemptions are to
be construed as narrowly as possible to maximize access to agency
information, which is one of the overall purposes of the FOIA,
Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). A district
court must review de novo an agency’s decision to withhold
records. 5 U.S.C. § 552(a)(4)(B).
The agency bears the burden to demonstrate that the
documents requested are exempt from disclosure, see Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.
2003), since the party requesting disclosure cannot know the
precise contents of the documents withheld, Vaughn, 484 F.2d at
823-24. “To provide an effective opportunity for the requesting
party to challenge the applicability of an exemption and for the
court to assess the exemption’s validity, the agency must explain
the specific reason for nondisclosure.” Island Film, S.A. v.
Dep’t of the Treasury, 869 F. Supp. 2d 123, 132 (D.D.C. 2012).
“To enable the Court to determine whether documents properly were
withheld, the agency must provide a detailed description of the
information withheld through the submission of a so-called
‘Vaughn Index,’ sufficiently detailed affidavits or declarations,
or both.” Hussain v. U.S. Dep’t of Homeland Sec., 674 F. Supp.
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2d 260, 267 (D.D.C. 2009). Whatever form the agency’s
description takes, the description must be detailed and specific.
See Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566
F.2d 242, 251 (D.C. Cir. 1977); Island Film, 869 F. Supp. 2d at
132 (“Conclusory statements and generalized claims of exemption
are insufficient to justify withholding.”).
If the agency affidavits and Vaughn index “‘contain
reasonable specificity of detail rather than mere
conclusory statements,’” then a plaintiff must point
either to contradictory evidence in the record or
provide independent evidence of agency bad faith to
demonstrate that the agency improperly invoked an
exemption. Williams v. FBI, 69 F.3d 1155, 1159 (D.C.
Cir. 1995) (quoting Gallant v. NLRB, 26 F.3d 168, 171
(D.C. Cir. 1994)).
Island Film, 869 F. Supp. 2d at 132.
I. PRELIMINARY AUTOPSY REPORTS
The defendants argue that “the preliminary autopsy
reports . . . that are responsive to Plaintiff’s narrowed
request” are properly withheld because they are protected by the
deliberative process privilege. Defs.’ Mem. at 18. The
defendants assert that the records “contain preliminary medical
findings used by AFMES professionals in creating final autopsy
reports and, as such, do not constitute the government’s final
analysis and determinations as to cause of death.” Id. Charles
counters that the redacted records are not protected by the
deliberative process privilege because Charles is seeking factual
information, which is not protected by the privilege. Pl.’s Mem.
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at 18-19. He further contends that at least the factual aspects
of the reports are reasonably segregable and should be disclosed.
Id. at 19.
A. Exemption 5
Exemption 5 of the FOIA excludes from mandatory disclosure
“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). The
exemption exempts documents “normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149 (1975). Exemption 5 “covers intra-agency memoranda that
would routinely be shielded from discovery in private litigation
because of the government’s executive privilege, which protects
the deliberative or policymaking processes of government
agencies.” Access Reps. v. Dep’t of Justice, 926 F.2d 1192, 1194
(D.C. Cir. 1991) (citing EPA v. Mink, 410 U.S. 73, 89 (1973))
(internal quotation marks omitted); Sears, 421 U.S. at 149 &
n.16). “Exemption 5 is to be construed ‘as narrowly as
consistent with efficient Government operation.’” Petroleum
Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1434
(D.C. Cir. 1992) (quoting Mink, 410 U.S. at 87).
An agency invoking the exemption has the burden to show that
the responsive record is “predecisional” and “deliberative.” Id.A document is predecisional if “it was generated before the
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adoption of an agency policy[.]” Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is
deliberative if “it reflects the give-and-take of the
consultative process.” Id.The exemption thus covers recommendations, draft
documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the
writer rather than the policy of the agency. Documents
which are protected by the privilege are those which
would inaccurately reflect or prematurely disclose the
views of the agency, suggesting as agency position that
which is as yet only a personal position.
Id. “[F]actual information generally must be disclosed[.]”
Petroleum Info, 976 F.2d at 1434. However, factual material may
be withheld where “disclosure ‘would expose an agency’s
decisionmaking process in such a way as to discourage candid
discussion within the agency and thereby undermine the agency’s
ability to perform its functions.’” Quarles v. Dep’t of the
Navy, 893 F.2d 390, 392 (D.C. Cir. 1990) (quoting Dudman
Communic’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568
(D.C. Cir. 1987)).
The defendants argue that the preliminary autopsy reports
are draft documents that “represent merely preliminary steps
toward arriving at the agency’s final determination as to cause
of death.” Defs.’ Mem. at 20-21. “Preliminary autopsy reports
are drafted before toxicology results and/or all information or
material from in theater are received, and thus, they reflect
only a tentative view of the meaning of evidence discovered
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during an autopsy.” Defs.’ Mot., Third Decl. of Craig T. Mallak
(“3d Mallak Decl.”) ¶ 12. They are also “created before the
final cause and manner of death are determined by AFMES.” Mallak
Decl. ¶ 37. As such, “[t]he information in a preliminary autopsy
report can be, and often is, altered in the final autopsy
report[,]” and may reflect a different cause of death
determination than the final autopsy report reflects. See 3d
Mallak Decl. ¶ 12. Thus, Captain Mallak concluded that
disclosing the preliminary reports may “inhibit AFMES personnel
from freely expressing [their] initial opinions about the cause
and manner of death.” Id. ¶ 12.
The defendants’ evidence shows that the preliminary autopsy
reports are drafts of the final autopsy reports. Charles has
cited no contradictory evidence in the record, or provided any
evidence of bad faith, to undermine the agency’s assessment that
disclosure of the preliminary reports would inhibit candor in
future reports and would disclose the agency’s decisionmaking
process. Because this assessment is entitled to deference and
the agency has provided evidence to show that preliminary reports
are protected under the deliberative process privilege, the
agency properly invoked Exemption 5 to protect the preliminary
autopsy reports.
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B. Segregability
An agency must disclose “[a]ny reasonably segregable
portion” of an otherwise exempt record. 5 U.S.C. § 552(b). An
agency cannot withhold non-exempt portions of a document unless
they “are inextricably intertwined with exempt portions.” Mead
Data, 566 F.2d at 260. An agency is presumed to have complied
with its obligation to disclose non-exempt portions of the
record. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117
(D.C. Cir. 2007). However, a “district court must make specific
findings of segregability regarding the documents to be
withheld.” Id. at 1116. The agency has the burden to
demonstrate that it disclosed all reasonably segregable material.
To meet its burden, “the withholding agency must supply ‘a
relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to
which they apply.’” King v. U.S. Dep’t of Justice, 830 F.2d 210,
224 (D.C. Cir. 1987) (quoting Mead Data, 566 F.2d at 251).
Here, the defendants assert that the preliminary autopsy
reports are properly withheld in their entirety. Defs.’ Mem. at
22. Charles argues that the factual material in the preliminary
autopsy reports is reasonably segregable from the predecisional
and deliberative material in the reports and thus, should be
disclosed. The defendants contend that the factual information
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in the preliminary reports is properly withheld because
“[f]actual information is often added, altered, or deleted from
these records before the autopsy report is finalized, such that
comparison of a preliminary autopsy report . . . and final
autopsy report would reveal the agency’s decisionmaking process.”
Defs.’ Mem. at 21-22. However, the defendants do not provide
evidence supporting this contention. Moreover, the defendants
failed to provide a sufficiently detailed description of the
information withheld, and a detailed justification correlating
the claim that a comparison of the preliminary and final autopsy
reports would disclose the agency’s decisionmaking process with a
description of the reports and the factual material they contain.
For instance, the defendants could have demonstrated that the
factual information in the preliminary autopsy reports could be
easily compared with the final reports to determine what
information was originally contained in the reports and what
information the agency ultimately concluded was correct. See
Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048-49 (D.C.
Cir. 1982) (finding that Exemption 5 applies where “a simple
comparison between the pages sought and the official document
would reveal what material supplied by subordinates senior
officials judged appropriate for” the agency’s “official
statement concerning the history of herbicide use in the Vietnam
conflict” “and what material they judged inappropriate”).
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Instead, the defendants submitted an affidavit that contains the
conclusory statement that the “preliminary autopsy reports,
including any factual material contained in them, are
predecisional and deliberative.” 3d Mallak Decl. ¶ 12. Because
“generalized claims of exemption are insufficient to justify
withholding[,]” Island Film, 869 F. Supp. 2d at 132, the
defendants’ motion for a judgment that there was no reasonably
segregable information in the preliminary autopsy reports will be
denied without prejudice.
II. FINAL AUTOPSY REPORTS AND IN-THEATER MEDICAL RECORDS
The defendants contend that they “properly withheld,
pursuant to Exemption 6, the responsive preliminary and final
autopsy reports, . . . and in-theater medical records, in their
entirety.” Defs.’ Mem. at 10. Charles argues that Exemption 6
is inapposite because he does not seek any personally identifying
information. Pl.’s Mem. at 10.
Exemption 6 of the FOIA provides that an agency may 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 threshold inquiry is
whether the requested information is contained in a type of file
covered by the exemption. Wash. Post Co. v. U.S. Dep’t of Health
& Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982). If the
responsive records are contained within personnel, medical or
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similar files, then the court “must determine whether disclosure
would constitute a clearly unwarranted invasion of personal
privacy.” Id. (internal quotation marks omitted).
Exemption 6 applies only “when the documents disclose
information attributable to an individual.” Arieff v. U.S. Dep’t
of Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983). “All information
which ‘applies to a particular individual’ is covered by
Exemption 6, regardless of the type of file in which it is
contained.” Wash. Post, 690 F.2d at 260 (quoting U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 602 (1982)). Medical
records may be withheld under Exemption 6. Prison Legal News v.
Lappin, 780 F. Supp. 2d 29, 41 (D.D.C. 2011) (citing Bast v. U.S.
Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981)). Each
autopsy report contains information that applies to a particular
individual, and Charles does not dispute that the autopsy reports
are “similar files” that may be subject to Exemption 6. Cf.
Badhwar v. U.S. Dep’t of the Air Force, 829 F.2d 182, 185-86
(D.C. Cir. 1987) (implying that an autopsy report may be properly
withheld under Exemption 6). Thus, the medical records and
autopsy reports meet Exemption 6’s threshold criterion.
“Exemption 6 ‘tilt[s] the balance (of disclosure interests
against privacy interests) in favor of disclosure,’ and creates a
‘heavy burden’ for an agency invoking Exemption 6.” Lardner v.
Dep’t of Justice, 638 F. Supp. 2d 14, 23-24 (D.D.C. 2009)
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(alteration in original) (quoting Morley v. CIA, 508 F.3d 1108,
1128 (D.C. Cir. 2007)). To determine whether disclosure would
cause a clearly unwarranted invasion of personal privacy, courts
consider whether disclosure would invade privacy, and if so, the
seriousness of that invasion and the public interest in
disclosing the information. Then they balance the individual
privacy interests against the public interests. Wash. Post, 690
F.2d at 260. “Exemption 6 is designed to protect personal
information in public records, even if it is not embarrassing or
of an intimate nature[.]” Nat’l Ass’n of Retired Fed. Employees
v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989). To properly
withhold records under the exemption, the agency must establish
that disclosure of the responsive records “would compromise a
substantial, as opposed to de minimis, privacy interest.” Id. at
874. On the other side of the balance, the requestor bears the
burden of articulating a significant public interest, Schwaner v.
Dep’t of the Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010), and of
showing that disclosure would advance that interest, Harrison v.
Exec. Office for U.S. Attorneys, 377 F. Supp. 2d 141, 147 (D.D.C.
2005). The only relevant public interest under the FOIA is the
extent to which disclosure “advances the citizens’ right to be
informed about what their government up to[.]” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002)
(internal quotation marks omitted). As such, there is no public
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interest in disclosure that reveals “little or nothing about an
agency’s own conduct.” U.S. Dep’t of Justice v. Reporters Comm.
for Freedom of Press, 489 U.S. 749, 773 (1989).
The defendants assert that the deceased service members’
family members have significant privacy concerns in not being
confronted with the “vivid details of the last moments of a
military service member’s life[,]” Defs.’ Mem. at 12 (citing
Decl. of George W. Casey (“Casey Decl.”) ¶¶ 5, 26-27, 31; 3d
Mallak Decl. ¶ 14; Mallak Decl. ¶¶ 33, 47). The defendants
further assert that redacting personal information from the
records before disclosing them will not spare the family members
anguish because the DOD has a policy to notify the family members
before information related to a service members’s death is
publicly released even in a redacted form, Casey Decl ¶ 14, and
that notification will cause the family members anguish and
grief, id. ¶¶ 29-30. Charles retorts that after personal
information is redacted from the records, it will be impossible
to determine the particular individual to whom the record
pertains. Pl.’s Mem. at 11-12. He also argues that the
defendants cannot insulate themselves from complying with the
FOIA by arguing that their own notification regulations will
invade the family members’ personal privacy. Id. at 16-17. The
defendants respond that the privacy interest at stake does not
stem from the public’s knowledge of personal information about a
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particular individual. Instead, citing National Archives and
Records Administration v. Favish, 541 U.S. 157 (2004), the
defendants assert that the privacy interest here stems from
families not having “the most intimate details of their loved
one’s death and autopsy . . . in the public domain.” Mem. in
Opp’n to Pl.’s Third Cross-Mot. for Summ. J. & Reply in Supp. of
Defs.’ Third Mot. for Summ. J. at 4.
In Favish, the Supreme Court held that a decedent’s family
members have privacy interests in death-scene photographs and
those interests are properly considered under FOIA Exemption
7(C).7 The decedent’s family asserted that they had personal
privacy interests in being “shielded by the exemption to secure
their own refuge from a sensation-seeking culture for their own
peace of mind and tranquility, not for the sake of the deceased.”
541 U.S. at 166. In a sworn declaration, the decedent’s sister
described the horror and devastation caused when another
photograph of the decedent was leaked to the press. She stated
that the photograph gave her nightmares and that releasing more
photographs would cause her family to become “the focus of
conceivably unsavory and distasteful media coverage.” Id. at 167
7
Exemption 7(C) exempts from disclosure “records or
information compiled for law enforcement purposes . . . to the
extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy[.]” 5 U.S.C.
§ 552(b)(7).
-22-
(internal quotation marks omitted). The Court explained that
there is a cultural tradition of respecting burial rites. Id. at
168 (“Family members have a personal stake in honoring and
mourning their dead and objecting to unwarranted public
exploitation that, by intruding upon their own grief, tends to
degrade the rites and respect they seek to accord to the deceased
person who was once their own.”). This right is protected in the
common law, which allows families to control “the body and death
images of the deceased[.]” Id. Assuming that Congress
legislated with this backdrop in mind, the Court held “that FOIA
recognizes surviving family members’ right to personal privacy
with respect to their close relative’s death-scene images.” Id.
at 170.
The defendants insist that a similar privacy interest exists
in this case. Courts have recognized that under Exemption 6,
“close relatives of a deceased person retain a certain amount of
privacy interests after the decedent has passed away.” Mobley v.
CIA, Civil Action Nos. 11-2072, 11-2073 (BAH), 2013 WL 452932, at
*40 (D.D.C. Feb. 7, 2013). However, “the Supreme Court’s holding
in [Favish] was limited to ‘surviving family members’ right to
personal privacy with respect to their close relative’s
death-scene images.’” Id. (quoting Favish, 541 U.S. at 170).
Also, in Favish, the Court was considering whether the
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photographs were exempt from disclosure under Exemption 7(C), not
Exemption 6.8
The defendants have not demonstrated that Favish should be
applied in this different context. For instance, the defendants
have not shown that family members would be able to discern which
redacted records relate to their deceased family member, unlike
how such identification was possible with the photographs at
issue in Favish.9 The defendants still allege that releasing the
autopsy reports will “disrupt any peace of mind [surviving family
members] have been able to achieve by forcing them to relive
their loved one’s death in graphic detail, and likely subject
them to unwanted intrusions or harassment from the media.”
Mallack Decl. ¶¶ 39, 47. However, without demonstrating that
8
“[B]ecause Exemption 7(C) permits withholding of such
records if disclosure would constitute an ‘unwarranted’ invasion
of personal privacy, while Exemption 6 requires a ‘clearly
unwarranted’ invasion to justify nondisclosure, ‘Exemption 7(C)
is more protective of privacy than Exemption 6’ and thus
establishes a lower bar for withholding material.” Am. Civil
Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C.
Cir. 2011) (quoting U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 496
n.6 (1994)); see also Reporters Comm. for Freedom of Press, 489
U.S. at 756 (explaining that the privacy interests covered under
Exemption 7(C) are broader than those covered by Exemption 6).
9
Casey states in his declaration that there is a “distinct
possibility that Families can be identified even from redacted
autopsies[.]” Casey Decl. ¶ 33. However, this conclusory
statement is insufficient for the agency to meet its burden to
show that the records are properly withheld under Exemption 6.
See Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F.
Supp. 2d 13, 23 (D.D.C. 2011) (citing McGehee v. CIA, 697 F.2d
1095, 1102 (D.C. Cir. 1983)).
-24-
family members will encounter the disclosed information, and be
able to discern that a redacted report relates to their family
member, the defendants present no more than a mere possibility of
an invasion of personal privacy and that is insufficient to find
that Exemption 6 applies. See Dep’t of the Air Force v. Rose,
425 U.S. 352, 380 n.19 (1976) (“Exemption 6 was directed at
threats to privacy interests more palpable than mere
possibilities.”); id at 382 (“Exemption 6 does not protect
against disclosure every incidental invasion of privacy[,] only
such disclosures as constitute ‘clearly unwarranted’ invasions of
personal privacy.”). Furthermore, even if the family members
were able to determine which redacted record pertained to their
deceased family member, the defendants have not demonstrated that
the information in the records would “shock the sensibilities of
surviving kin.” Badhwar, 829 F.2d at 186. Thus, the defendants
have not carried their heavy burden of showing more than a de
minimis privacy interest that would justify withholding the
redacted responsive records under Exemption 6.10
10
In predicting pain that families would feel on receiving
notice that information about their deceased family members is
being disclosed, the defendants attempt to equate the “pain this
notification process will cause” with the “the pain from which
the Court in N.Y. Times Company v. NASA[, 782 F. Supp. 628(D.D.C. 1991),] protected surviving family members of the Space
Shuttle Challenger astronauts.” Defs.’ Mem. at 14. New York
Times held that transcripts and recordings of voice
communications aboard the Challenger were properly withheld under
Exemption 6. However, the court found that the family members of
the deceased astronauts had a privacy interest in the recordings
-25-
“If no significant privacy interest is implicated . . . ,
FOIA demands disclosure.” Horner, 879 F.2d at 874.11 Thus,
because the defendants have not shown that disclosing the
because the recordings contained intimate details: “the sound of
the astronauts’ voices.” Id. at 631. The court explained that
“[w]hat the astronauts said may not implicate privacy
interests[.]” Id. “But how the astronauts said what they did,
the very sound of the astronauts’ words, does constitute a
privacy interest.” Id. The court concluded that the privacy
interest was substantial because releasing the recordings may
cause the Challenger families to “be subjected not just to a
barrage of mailings and personal solicitations, but also to a
panoply of telephone calls from media groups as well as a
disruption of their peace of mind every time a portion of the
tape is played within their hearing.” Id. at 632. As is
discussed above, the defendants have failed to establish that the
families of the deceased service members will be able to identify
which redacted report and record corresponds to their family
members, that the privacy interest in redacted records that do
not contain personally identifying information is more than de
minimis, and that releasing the records will cause the family
members to be unwittingly exposed to the information in the
records and contacted by interested parties.
11
In addition, there is a significant public interest in
disclosure. Charles’s own purpose in seeking the information,
namely, to determine whether a military service member “died from
bullets that perforated the front or rear ceramic plate of their
body armor,” Defs.’ Mem. at 15, and whether the body armor
“provide[s] sufficient protection for American troops in combat,”
Charles, 730 F. Supp. 2d at 208, is not relevant in the public
interest inquiry. See Bibles v. Or. Natural Desert Ass’n, 519
U.S. 355, 356 (1997) (per curiam) (“The purposes for which the
request for information is made, we said, have no bearing on
whether information must be disclosed under FOIA.” (internal
quotation marks omitted)). But, as Charles argues, the redacted
records describing the manner and cause of death will “contribute
concrete, factual detail to the growing debate regarding the
adequacy of” the body armor that the government issued to
American troops and implicate whether “the appropriate level of
protection has been achieved.” Pl.’s Mem. at 13-14 (internal
quotation marks omitted). Thus, the information will advance the
public’s right to be informed about what their government is
doing with respect to body armor issued to service members.
-26-
redacted final autopsy reports and in-theater medical records
will cause a clearly unwarranted invasion of personal privacy,
Exemption 6 does not justify withholding the records.12
CONCLUSION AND ORDER
Although the defendants properly invoked Exemption 5, they
have not provided sufficient evidence that they properly withheld
the preliminary autopsy reports in their entirety. Nor have the
defendants properly invoked Exemption 6. Accordingly, it is
hereby
ORDERED that the defendants’ third motion [41] for summary
judgment be, and hereby is, DENIED without prejudice as to the
preliminary autopsy reports withheld under Exemption 5, and
DENIED as to the material withheld under Exemption 6. It is
further
ORDERED that the plaintiff’s motion [44] for summary
judgment be, and hereby is, GRANTED in part and DENIED in part.
The plaintiff’s motion is denied as to the preliminary autopsy
reports withheld under Exemption 5 and granted as to the material
withheld under Exemption 6. It is further
12
The defendants also allege that the preliminary autopsy
reports are properly withheld under Exemption 6. Redacted
preliminary autopsy reports are not exempt from disclosure under
Exemption 6 for the same reasons that the redacted final autopsy
reports and in-theater medical records are not properly withheld
under the exemption.
-27-
ORDERED that the defendants release by April 29, 2013 the 7
responsive body armor description sheets and the 82 responsive
final autopsy reports and associated in-theater medical records,
all in redacted form. It is further
ORDERED that the defendants file by April 29, 2013 a
supplemental memorandum, with supporting affidavits,
declarations, or a Vaughn index, that demonstrates that the
responsive preliminary autopsy reports were properly withheld in
their entirety and that the defendants are not withholding non-
exempt, reasonably segregable portions of the reports.
SIGNED this 27th day of March, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge