Charles v. Office of the Armed Forces Medical Examiner , 979 F. Supp. 2d 35 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________________
)
ROGER G. CHARLES, )
)
Plaintiff, ) Civ. No. 09-0199 (KBJ)
)
v. )
)
OFFICE OF THE ARMED FORCES MEDICAL )
EXAMINER, ARMED FORCES INSTITUTE OF )
PATHOLOGY, AND THE UNITED STATES )
DEPARTMENT OF DEFENSE, )
)
Defendants. )
___________________________________________ )
MEMORANDUM OPINION
This Freedom of Information Act (“FOIA”) matter is now more than four years
old. It began when Plaintiff Roger Charles (“Charles” or “Plaintiff”), a journalist and
former Marine Corps officer, undertook to research the effectiveness of the body armor
that the Department of Defense (“DOD”) issues to military personnel in combat zones.
See Charles v. Office of the Armed Forces Med. Exam’r (“Charles II”), No. 09-199,
2013 WL 1224890, at *1 (D.D.C. Mar. 27, 2013). 1 Charles submitted a FOIA request to
the Armed Forces Institute of Pathology (“AFIP”) seeking certain autopsy and medical
records for soldiers killed in combat. When the agency failed to respond, Charles filed
the instant FOIA lawsuit against the AFIP, the DOD, and the Office of the Armed
Forces Medical Examiner (“OAFME”). [ECF No. 1.] Over the next three years,
Defendants claimed to be exempt from having to produce documents and materials in
1
Charles is the editor of the online publication Defense Watch. Charles II, 2013 WL 1224890, at *1.
1
response to Charles’s FOIA inquiry for various reasons, and two different federal
judges reviewed and ruled upon aspects of Defendants’ exemption arguments in relation
to cross-motions for summary judgment that the parties filed regarding the FOIA claim.
See Charles II, 2013 WL 1224890 (Roberts, J.); Charles v. Office of Armed Forces
Med. Exam’r (“Charles I”), 730 F. Supp. 2d 205 (D.D.C. 2010) (Urbina, J.).
Consequently, by 2013, only one narrow issue remained in this case: whether
Defendants, who had invoked FOIA Exemption 5 to withhold redacted “preliminary”
autopsy reports in their entirety, have adequately established that the factual
information that such records contain is not reasonably segregable from the exempted
material.
For the reasons that follow, and after consideration of the prior rulings and the
entire record in this matter, this Court concludes that Defendants have sufficiently
demonstrated that the factual material contained in the preliminary autopsy reports is
not reasonably segregable and that, therefore, Defendants are entitled to withhold these
reports in their entirety pursuant to FOIA Exemption 5. Accordingly, the Court
construes Defendants’ most recent filing regarding segregability [ECF No. 59] as a
renewed motion for summary judgment with respect to the Exemption 5 issue, and so
construed, GRANTS Defendants’ summary judgment motion as it relates to the
preliminary autopsy reports. A separate order that permits Defendants to withhold the
preliminary autopsy reports in their entirety under FOIA Exemption 5 accompanies this
memorandum opinion.
2
I. BACKGROUND
In October of 2008, Charles requested that the AFIP produce a certain set of
pathology records for deceased military personnel pursuant to the FOIA; specifically,
documents that
[1] 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
[2] analyze the relationship between personal body armor and lethal
torso injuries sustained by such service members.
Charles II, 2013 WL 1224890, at *1 (record citation and internal quotation marks
omitted). The AFIP did not respond to Charles’s FOIA request; instead, that agency
forwarded the request to the OAFME. Id. Charles initiated this lawsuit in February of
2009, after “the AFIP had neither produced any documents nor provided any estimate of
when it might respond.” Id. (citation omitted).
In April of 2009, following discussions between counsel for both parties, Captain
Craig T. Mallak, who was the Armed Forces Medical Examiner for the DOD at that
time, convened a meeting “to determine whether the AFIP or the [Armed Forces
Medical Examiner System (“AFMES”)] possessed any documents responsive to
[Charles’s] inquiry.” Charles I, 730 F. Supp. 2d at 209. After this meeting, the
Department of Defense identified 103 autopsy files and 18 body armor description
sheets that were responsive to Plaintiff’s FOIA request. Charles II, 2013 WL 1224890,
at *2. The autopsy files contained “information such as preliminary and final autopsy
reports, autopsy photographs, body diagrams, CT scans, medical records and death
certificates.” Charles I, 730 F. Supp. 2d at 210. The body armor description sheets
contained “written descriptions of wounds and wound patterns and notations of possible
3
links between injuries sustained while wearing personal protective equipment and
resulting wound patterns.” Id. (record citation and quotation marks omitted).
Nevertheless, “[a]lthough 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.” Charles II, 2013 WL 1224890, at *2 (record citation omitted).
In October of 2009, Defendants moved for summary judgment, arguing that the
search for records responsive to Mr. Charles’s FOIA request was adequate and that the
records had been properly withheld. Id. at *2. Charles cross-moved for summary
judgment, and he also narrowed his FOIA request. Id. Rather than continuing to seek
documents analyzing “fatal wounds” that “service members wearing body armor” had
sustained, for example, Charles sought a narrower subset of documents, including:
(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:
(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.
4
Charles I, 730 F. Supp. 2d at 210 (record citation omitted). 2 Charles also limited his
FOIA request to make clear that he was willing to accept copies of records with redacted
personal identifying information. Id. 3
Upon receiving Charles’s revised FOIA request, Defendants determined that
none of the records that Defendants previously had identified in response to Charles’s
initial FOIA request were responsive to Plaintiff’s revised FOIA request. Id. at 210-11.
In reply, Charles “protested the defendants’ apparent reversal on the question of
whether they possess any responsive documents.” Id. at 211. The Court granted in part
Charles’s cross-motion for summary judgment on the grounds that Defendants’
unfruitful search for responsive records was “unreasonable” and “inadequate,” id. at
213, and ordered the parties to produce additional submissions on the potential
applicability of any FOIA exemptions in light of Charles’s narrowed request. Id. at
213, 217.
Thereafter, Defendants determined that they possessed material responsive to
Charles’s revised FOIA request. Charles II, 2013 WL 1224890, at *3 (noting that,
2
This quoted text first appeared in Charles’s opposition to Defendant’s first motion for summary
judgment (see Pl.’s Cross–Mot., ECF No. 20, at 9) and does not reflect the precise language of
Charles’s revised FOIA request (see id., Ex. 12, “Letter Dated November 9, 2009,” ECF No. 20-15
(notifying the agency of Charles’s narrowed FOIA inquiry)). However, the parties have referred to
Charles’s revised FOIA request using the above-quoted language throughout this litigation, and the
Court noted previously in the course of this action that any differences between the quoted language
and Charles’s actual request are immaterial. See Charles I, 730 F. Supp. 2d at 211 n.1.
3
Charles’s revised request specifically accepted the following redactions:
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 [IBA] system or
that indicate or suggest specific improvements to body armor.
Charles II, 2013 WL 1224890, at *2, n.3 (emphasis in original). Any reference to responsive materials
in this opinion is meant to refer to the materials in this redacted form.
5
among the responsive materials in Defendants’ possession, were “82 autopsy reports
and associated documents and 7 body armor description sheets”). However, Defendants
filed a second motion for summary judgment in October of 2010, asserting that all of
the responsive records were being properly withheld pursuant to FOIA Exemptions 2, 5,
and 6. Charles II, 2013 WL 1224890, at *2. 4 Charles again cross-moved for summary
judgment, id., but the Court denied both parties’ summary judgment motions without
prejudice due to a change in the controlling law. (Minute Orders of Sept. 1, 2011.) 5
In October of 2011, Defendants filed a third motion for summary judgment.
(Defs.’ Third Mot. for Summ. J., ECF No. 41, at 1.) In this motion, Defendants no
longer relied on Exemption 2, and instead argued that the responsive documents they
possessed—i.e., 82 final autopsy reports, 42 preliminary autopsy reports, CT scans,
body diagrams, and in-theater medical records—were being properly withheld pursuant
to FOIA Exemptions 5 and 6. Charles II, 2013 WL 1224890, at *3. During subsequent
negotiations, Charles relinquished his request for CT scans, body diagrams, and body
armor description sheets, so that the litigation ultimately concerned only the redacted
preliminary and final autopsy reports and in-theater medical records. 6 Even so,
4
FOIA Exemption 2 permits a governmental agency to withhold records responsive to a FOIA request
where the records “relate[] solely to the internal personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2). FOIA Exemption 5, which is often referred to as the “deliberative process privilege”
under the circumstances presented here, permits a governmental agency to withhold records responsive
to a FOIA request where the records include “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.” Id.§ 552 (b)(5). And FOIA Exemption 6 permits a governmental agency to withhold records responsive to
a FOIA request where the records include “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.” Id. § 552 (b)(6).
5
In March 2011, the Supreme Court issued its opinion in Milner v. Dep’t of Navy, which clarified the
scope of FOIA Exemption 2. 131 S. Ct. 1259, 179 L. Ed. 2d 268 (2011).
6
Charles no longer sought “the CT scans and body diagrams because he agree[d] that they contain only
information that . . . could be redacted from the records.” Charles II, 2013 WL 1224890, at *3 n.5.
Additionally, the parties notified the Court on December 19, 2011, that they had “resolved any dispute
6
Defendants maintained that all such records were properly withheld because the
redacted final autopsy reports and in-theater medical records were exempt under FOIA
Exemption 6 and the redacted preliminary autopsy reports were exempt under FOIA
Exemption 5. Id. at *4, *7. Charles cross-moved for summary judgment, arguing that
these FOIA Exemptions do not apply. Id. at *3.
In an Opinion and Order issued March 27, 2013 (“Charles II”), the Court held
that Defendants failed to invoke Exemption 6 properly regarding the 82 redacted final
autopsy reports and in-theater medical records and ordered Defendants to produce
copies of these records. Id. at *9 n.12. With respect to the additional set of 42
preliminary autopsy reports that were responsive to Plaintiff’s request, however, the
Court held that Defendants had properly invoked FOIA Exemption 5. Id. at *3 n.4.
Specifically, the Court concluded that the preliminary autopsy reports meet Exemption
5’s “predecisional” and “deliberative” requirements because the preliminary autopsy
reports “are drafts of the final autopsy reports” that were “created before the final cause
and manner of death [were] determined” and reflect the “tentative view of the meaning
of evidence discovered during an autopsy.” Id. at *5-6 (record citations omitted).
Having determined that Exemption 5 applies to the redacted preliminary autopsy
reports, the Court next turned to the question of segregability. Id. at *6. Defendants
argued that the factual parts of the preliminary autopsy reports are inextricably linked
to the exempted material when the preliminary autopsy reports are compared with the
final autopsy reports, and thus the preliminary autopsy reports can be withheld in their
entirety under Exemption 5. (Defs.’ Mem. in Supp. of Defs.’ Third Mot. for Summ. J.,
regarding the body armor description sheets that are responsive to Plaintiff’s narrowed . . . request.”
(Parties’ Joint Notice, ECF No. 48, at 1.)
7
ECF No. 41-1, at 21-22 (stating that “factual information is often added, altered, or
deleted from these records before the autopsy report is finalized, such that comparison
of a preliminary autopsy report, body diagrams, and final autopsy report would reveal
the agency’s decisionmaking process.”).) But when the Court reviewed what the
Defendants had submitted on the issue of whether the factual content in the preliminary
autopsy report was reasonably segregable from the exempted matter, it concluded that
the Defendants had made “conclusory statement[s]” about the non-segregable nature of
the preliminary autopsy reports in a manner that did not permit a reasoned segregability
determination. See Charles II, 2013 WL 1224890, at *6 (“[D]efendants 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.”).
Notably, the Court not only highlighted the deficiency of the Defendants’
segregability showing, it also offered a solution: that “[D]efendants 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.” Id. But because Defendants had not yet made such a showing, the Court
denied without prejudice Defendants’ motion for summary judgment regarding the
application of Exemption 5 to justify withholding the preliminary autopsy reports in
their entirety and ordered Defendants to “file by April 29, 2013[,] a supplemental
memorandum, with supporting affidavits, declarations, or a Vaughn index, that
8
demonstrates that the responsive preliminary autopsy reports were properly withheld in
their entirety and that the defendants are not withholding nonexempt, reasonably
segregable portions of the reports.” Id. at *10 [hereinafter “the March 27th Order”].
On April 19, 2013, Defendants moved both to stay the Court’s requirement that
the 82 redacted final autopsy reports and in-theater medical records had to be produced,
and to extend the deadline for “submit[ting] supplemental materials in support of their
Exemption 5 withholdings.” (Defs.’ Mot., and Mem. in Supp., for a Stay Pending
Appeal, and for an Extension of Time to Submit Supplemental Materials in Supp. of
Exemption 5 Withholdings, ECF No. 50, at 1.) Charles objected to both requests,
noting “that four years of litigation over [Plaintiff’s] FOIA request is long enough[.]”
(Pl.’s Opp’n to Defs.’ Mot., and Mem. in Supp., for a Stay Pending Appeal, and for and
Extension of Time to Submit Supplemental Materials in Supp. of Exemption 5
Withholdings, ECF No. 51, at 3.) This Court granted Defendants’ motion to stay
pending appeal the portion of the March 27th Order that required disclosure of the final
autopsy reports and related records. (Mem. Opinion and Order of May 9, 2013, ECF
No. 57, at 4.) 7 This Court also granted Defendants an extension of time, until May 24,
2013, to file supplemental materials in support of the Exemption 5 withholdings.
(Minute Order of May 9, 2013.)
On May 24, 2013, Defendants submitted the following in response to the Court’s
order regarding the Exemption 5 issue: (1) a supplemental memorandum in support of
their contention that the preliminary autopsy reports are non-segregable and thus can be
7
As a condition of the stay, the Court ordered Defendants to “petition the Court of Appeals for
expedited consideration of the appeal within ten days of filing a notice of appeal”; “produce all
documents not subject to any appeal within thirty days of entry of final judgment”; and “notify the
Court as soon as a decision regarding whether to file an appeal has been made.” (Id.)
9
withheld in their entirety under FOIA Exemption 5 (see Defs.’ Opening Supplemental
Br. in Supp. of Withholding Prelim. Autopsy Reports in their Entirety Pursuant to FOIA
Exemption 5, ECF No. 59 (“Defs.’ Br.”)); (2) the declaration of Colonel Ladd A.
Tremaine, M.D., the DOD’s current Armed Forces Medical Examiner (see Defs.’ Br.,
Ex. 1, Decl. of Ladd A. Tremaine, ECF No. 59-1 (“Tremaine Decl.”)); and (3) a chart
that purports to compare the redacted preliminary and final autopsy reports (see Defs.’
Br., Ex. 2, ECF No. 59-2 (“Chart”)). 8 Plaintiff filed a response to the Defendants’
supplemental submissions on June 7, 2013, and Defendants filed their reply submission
on June 14, 2013. The outstanding question at present is a narrow one; specifically,
whether Defendants have now sufficiently established the non-segregability of the
redacted preliminary autopsy reports such that these materials can be withheld in their
entirety under FOIA Exemption 5.
II. DISCUSSION
Before this Court are the parties’ supplemental submissions in support of, and in
opposition to, a finding of non-segregability regarding the redacted preliminary autopsy
reports for the purpose of Defendants’ motion for summary judgment on the Exemption
5 issue. The Court adopts as law of the case the previous rulings that (a) Defendants
failed to invoke FOIA Exemption 6 properly in regard to the final autopsy reports and
therefore such reports must be produced, and (b) Defendants properly invoked
8
Defendants submitted the chart presumably in lieu of a Vaughn index. The untitled document has four
columns and appears to display, with respect to each paired grouping of preliminary and final autopsy
reports: (1) a file number; (2) a Bates stamp number; (3) a “Description of Differences Between
Redacted Preliminary and Final Autopsy Reports”; and (4) the “[Number] of Days Between Preparation
of Preliminary and Final Autopsy Reports.”
10
Exemption 5 in regard to preliminary autopsy reports. 9 As noted above, the only
remaining summary judgment issue is whether Defendants have met their burden of
demonstrating that they may withhold the preliminary autopsy reports in their entirety
under FOIA Exemption 5 because there is no reasonably segregable material in the
records at issue.
A. Legal Landscape
1. Segregability
The FOIA makes clear that the fact that a responsive document fits within an
applicable exemption does not automatically entitle the keeper of such material to
withhold the entire record. That is, even when an agency has properly invoked a FOIA
exemption with respect to responsive material, “[a]ny reasonably segregable portion of
a record shall be provided to any person requesting such record after deletion of the
portions which are exempt[.]” 5 U.S.C. § 552(b)(9); see also Hamilton Sec. Grp. Inc. v.
Dep’t of Hous. & Urban Dev., 106 F. Supp. 2d 23, 33 (D.D.C. 2000) aff’d pur curiam,
No. 00-5331, 2001 WL 238162 (D.C. Cir. Feb. 23, 2001) (“[P]urely factual material
that is segregable from opinion material is generally not protected.”). Thus, it is clear
beyond cavil that factual portions of responsive records must be produced unless the
factual parts “are inextricably intertwined with exempt portions.” Wilderness Soc’y v.
U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C.2004) (quoting Mead Data Cent.,
Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).
9
See Pepper v. United States, 131 S. Ct. 1229, 1250-51, 179 L. Ed. 2d 196 (2011) (noting that the law
of the case “doctrine posits that when a court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same case” unless “the court is convinced that its
prior decision is clearly erroneous and would work a manifest injustice” (citations, alterations, and
internal quotation marks omitted)).
11
If an agency seeks to withhold a responsive document in its entirety on the basis
of a FOIA exemption, the agency bears the burden of demonstrating that the non-
exempt portions of the document are so inextricable from the exempt portions that
document is not reasonable segregable. See Army Times Publ’g Co. v. Dep’t of Air
Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993). To meet its burden in this regard, the
agency must “provide[] a detailed justification and not just conclusory statements.”
Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (citation and internal quotation
marks omitted); see also Wilderness Soc’y, 344 F. Supp. 2d at 19 (noting that it is not
sufficient for the agency merely to present “a blanket declaration that all facts are so
intertwined” as to not be reasonably segregable). Furthermore, in order to approve the
application of a FOIA exemption, the Court “must make specific findings of
segregability regarding the documents to be withheld.” Sussman v. U.S. Marshals
Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (citations omitted).
2. Draft Records and the Segregability Standard
The D.C. Circuit has evaluated the segregability of requested records for FOIA
purposes when the request involves drafts of released final documents. In Russell v.
Department of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982), the D.C. Circuit
addressed a FOIA request for a preliminary draft of an official Air Force manuscript
regarding the use of Agent Orange and other herbicides during the Vietnam War. After
noting that the Air Force had already disclosed the final manuscript and that appellant’s
apparent motivation for seeking the draft was “to probe behind the official Air Force
history,” the Russell Court found that the preliminary draft was properly withheld
under the deliberative privilege provisions of FOIA Exemption 5. Id. at 1047. Without
12
explicitly referencing “segregability,” the Court explained that the requested portions of
the preliminary draft could be entirely withheld largely because of the “complex system
of editorial review” that gave rise to the final publication. Id. The agency’s
deliberative process would be implicated, the Court reasoned, because production of
any portion of the draft would permit “a simple comparison between the [draft] and the
official document,” and such comparison “would reveal what material . . . senior
officials judged appropriate for the history and what material they judged
inappropriate.” Id. at 1047-49; cf. Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976
F.2d 1429, 1435 (D.C. Cir. 1992) (emphasizing that “[t]o the extent that predecisional
materials, even if ‘factual’ in form, reflect an agency’s preliminary positions or
ruminations about how to exercise discretion on some policy matter, they are protected
under Exemption 5”).
Applying the logic of Russell, judges in this circuit have found that similar draft
documents do not contain reasonably segregable material, and thus are properly
withheld in their entirety. See, e.g., Carter, Fullerton & Hayes, LLC v. FTC, 637 F.
Supp. 2d 1, 6 (D.D.C. 2009) (finding that Defendant sufficiently justified withholding
certain draft documents in their entirety); Edmonds Inst. v. U.S. Dep’t of Interior, 460
F. Supp. 2d 63, 71 (D.D.C. 2006) (rejecting Plaintiff’s argument that the responsive
documents contained segregable factual information because the material at issue
contained information that was “considered for but not utilized in” subsequent agency
reports). These courts have reasoned that, even though preliminary drafts may indeed
contain “factual” information, the ultimate decision to include or exclude facts and
information in the final product reflects the deliberations of agency decisionmakers,
13
which would be improperly exposed upon comparison of the preliminary and final
versions. See Edmonds, 460 F. Supp.2d at 71 (concluding that, if “information that was
considered for inclusion in the [final report] but ultimately did not make its way into”
the final report was disclosed, the agency’s “editorial judgment” would be revealed).
Thus, it is well established that draft documents containing factual information can be
considered non-segregable for FOIA purposes and can be “properly withheld in full”
where “revelation of the facts themselves, or more specifically, what the [final] author
decided and selected as pertinent facts or information, would expose the deliberative
process.” Carter, 637 F. Supp. 2d at 6 (record citation and quotation marks omitted).
B. Analysis
Relying primarily on Russell, Defendants in the instant case maintain that they
have met their non-segregability burden because “any information in the preliminary
autopsy reports that could arguably be viewed as factual is nonetheless protected by the
deliberative process privilege.” (Defs.’ Br. at 2.) This is because, in the Defendants’
view, “when compared with information in the final autopsy reports,” disclosure of the
preliminary autopsy reports “would reveal the decisionmaking process of AFMES in
conducting forensic pathology investigations and reaching final, official determinations
as to cause and manner of death.” (Id. at 7.)
As an initial matter, this Court agrees with Defendants that Russell’s reasoning
appears fully applicable to the responsive records at issue. First, it is undisputed, and
this Court has already found, that the AFMES’s preliminary autopsy reports are drafts
that eventually are transformed into final autopsy reports regarding deceased service
members such as the ones that have already been ordered disclosed. See Charles II,
14
2013 WL 1224890 at *6. As Colonel Tremaine’s declaration states, the preliminary
autopsy report is “essentially the first rough draft” of the final autopsy report.
(Tremaine Decl. ¶ 11.)
Moreover, much like the complex internal review process that generated the final
manuscript in Russell, see 682 F.2d at 1047-48, Defendants’ supplemental submissions
demonstrate that the internal review process that gives rise to an AFMES final autopsy
report has four complicated phases involving several reviewers. (See Tremaine Decl. ¶
6 (explaining that the generation of a final autopsy report “is a detailed, peer-reviewed,
and quality controlled process that takes place in four phases”).) During the first phase,
a single AFMES forensic pathologist “conducts a comprehensive forensic pathology
investigation,” and creates a record known as “the preliminary autopsy report,” which
“contains the examining physician’s initial anatomical observations, including the
overall condition of the remains; the presence of any previous medical interventions;
the nature, severity, and location of lethal and non-lethal injuries; and a Preliminary
Autopsy Diagnosis (PAD).” (Id., ¶¶ 9, 11.) Then, during the next three phases of the
process, the preliminary autopsy report is systematically reviewed by the initial
pathologist and others—including the Deputy Armed Forces Medical Examiner or the
Armed Forces Medical Examiner himself—and the report is repeatedly subjected to
both augmentation and revision. (Id., ¶¶ 13-14.) It is only after the completion of this
multifaceted and multi-layered review process that the final autopsy report is officially
adopted as AFMES’s “authoritative record of the forensic pathology investigation,”
including the “final determination of the cause and manner of death.” (Id., ¶ 14.) Thus,
Defendants’ contention that preliminary autopsy reports reflect the incomplete findings
15
of single AFMES forensic pathologist at the outset of a staged autopsy review process
is amply supported.
Additionally, to the extent that the lynchpin of the D.C. Circuit’s decision in
Russell was the fact that it was possible to compare the draft and final versions of the
manuscript at issue, and thereby to ascertain the agency’s deliberative process, 682 F.2d
at 1049, so it is here. The Court has already concluded that the final autopsy reports in
the instant case are not exempt from disclosure; therefore, if the preliminary autopsy
reports are also produced, a realistic opportunity for comparison of the draft to the final
exists. And Defendants’ submissions clearly demonstrate that there is, in fact, a
comparison to be made because the preliminary and final autopsy reports can differ
significantly. For example, according to Defendants’ chart, the following differences
can be noted when comparing one redacted preliminary autopsy report to its final
counterpart:
Final and preliminary contain different descriptions of method(s) of
identification
Final contains sections describing identifying marks, medical
intervention, postmortem decomposition, and evidence recovered
during the autopsy; preliminary does not
Final contains results of toxicology tests; preliminary indicates
toxicology is pending
Preliminary indicates remains were reassociated by DNA; final
does not
(Chart, at 2 (discussing file no. 1)). The chart spells out these kinds of differences (to
the extent possible) with respect to each of the numbered files containing bates-stamped
autopsy report comparators. (See generally id.) Moreover, Defendants’ chart also
clearly demonstrates that, as it journeys from the preliminary phase to the final, an
16
AFMES autopsy report can be substantially revised regarding significant matters such
as how a soldier’s remains were initially identified; whether there was evidence of pre-
existent disease; which medical interventions were thought to have been provided prior
to death; and what circumstances were believed to have surrounded the service
member’s passing. (See, e.g., id. at 2, 3, 4 (discussing file nos. 6, 7, 12, and 19).)
Given these demonstrated differences between the preliminary and final autopsy
reports, which Colonel Tremaine’s declaration also emphasizes (see Tremaine Decl. ¶
20), the Court is convinced that Russell’s concern about improper revelation of an
agency’s deliberative process upon comparison of the draft and final documents is also
present here. (See Tremaine Decl., ¶ 20 (“[L]ooking at the redacted preliminary and
final autopsy reports together, and noting their differences, would enable one to glean
some of the substance of AFMES’s deliberations during the forensic pathology
investigation, including its deliberations in reaching final findings and conclusions
regarding cause and manner of death.”).) Consequently, the Court concludes that the
Defendants’ argument that they have properly invoked FOIA Exemption 5 to withhold
the preliminary autopsy reports in their entirety is well founded.
Charles asserts that Defendants nevertheless have failed to meet their burden of
establishing true non-segregability. He emphasizes that he seeks only “purely factual”
information, not information regarding the agency’s deliberative process, and that
Defendants have admitted that the preliminary autopsy reports contain such facts. (Pl.’s
Opp’n at 3 (noting that Colonel Tremaine admits in his Declaration that the redacted
preliminary autopsy reports contain information such as “whether a projectile or bullet
fragment was recovered from the body,” and that this is the type of “purely factual”
17
information that Plaintiff seeks through his FOIA request).) Charles further asserts that
even if the Court were to accept Defendants’ arguments regarding the revealing nature
of a comparison between the preliminary and final autopsy reports, Defendants’
submissions are merely “conclusory” and “speculative” in this regard (Pl.’s Opp’n at 7-
10), because “Defendants do not demonstrate what specific, factual information in the
final autopsy report could be compared to what specific information in the preliminary
autopsy reports to reveal Defendants’ decision-making processes” (Pl.’s Opp’n at 2
(emphasis added)).
Plaintiff’s arguments are not persuasive. Defendants’ supplemental submissions
leave no doubt that the preliminary autopsy reports are drafts of the final autopsy
reports that the Court has already ordered produced. Moreover, by establishing that the
facts and information in a preliminary AFMES autopsy report often differ from that of
the final report, Defendants have shown that “factual 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,” Charles II, 2013 WL 1224890, at *6 (record
citation and internal quotation marks omitted), which is all that the Court’s previous
order required. Indeed, taken as a whole, Defendants’ supplemental submissions
successfully demonstrate both the role of the preliminary autopsy report as an early step
in the internal process by which the agency ultimately generates a final autopsy report
and the fact that the various differences between the preliminary and final reports at
issue result from the agency’s internal, deliberative decisionmaking. Under these
circumstances, the Court concludes that a simple comparison would reveal the agency’s
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“editorial judgment,” Edmonds, 460 F. Supp.2d at 71, and to require Defendants to say
more—e.g., to make them flesh out with specificity precisely how a comparison
between the two records would evidence the agency’s deliberations—risks revealing the
very discretionary determinations that FOIA Exemption 5 entitles the agency to protect.
Accordingly, the Court concludes that Defendants have satisfied their burden of
demonstrating the non-segregability of the redacted preliminary autopsy reports for the
purpose of FOIA Exemption 5.
Finally, although neither party has requested in camera review of the redacted
preliminary autopsy reports, the Court notes that such review is frequently undertaken
in FOIA cases in order to assess segregability. See Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578 (D.C. Cir. 1996) (describing the “broad discretion” of
district court judges “in determining whether in camera review is appropriate”). This
Court considered whether to order such review sua sponte in this case; however, it is
the law of this circuit that such review is not appropriate where, as here, the agency has
already met its non-segregability burden. See Am. Civil Liberties Union v. U.S. Dep’t
of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (“When the agency meets its burden by
means of affidavits, in camera review is neither necessary nor appropriate.” (internal
quotation marks omitted) (quoting Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608
F.2d 1381, 1387 (D.C. Cir. 1979)). It is also clear to this Court that when an agency’s
non-segregability argument is based on a comparison of a disputed draft record to the
final document as a whole, it is the agency’s unseen editorial process, rather than any
specific aspect of the draft document’s content, that triggers the agency’s entitlement to
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withhold the draft document in its entirety pursuant to Exemption 5. In such
circumstances, in camera review is unlikely to be especially revealing.
III. CONCLUSION
For the reasons stated above, the Court finds that Defendants’ submissions
sufficiently demonstrate that the preliminary autopsy reports do not contain reasonably
segregable non-exempt information, and the Court is therefore persuaded that the
preliminary autopsy reports may be withheld in their entirety pursuant to FOIA
Exemption 5. An appropriate Order that GRANTS Defendants’ renewed motion for
summary judgment on Exemption 5 grounds accompanies this Memorandum Opinion.
DATE: October 2, 2013
Ketanji Brown Jackson
Ketanji Brown Jackson
United States District Judge
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