Charles v. Office of the Armed Forces Medical Examiner
2013 WL 1224890, 2013 U.S. Dist. LEXIS 43257, 935 F. Supp. 2d 86 (2013)
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Rule of Law:
Under the Freedom of Information Act (FOIA), an agency cannot withhold records under the personal privacy exemption (Exemption 6) based on speculative harm to surviving family members when all personally identifying information has been redacted. While the deliberative process privilege (Exemption 5) may protect preliminary reports, the agency bears the burden of demonstrating with specificity that non-exempt factual information is not reasonably segregable.
Facts:
- Roger Charles, a journalist and retired Marine, was investigating the effectiveness of body armor issued to U.S. military personnel.
- Charles had learned of reports suggesting that the body armor might not be providing sufficient protection to troops in combat.
- In October 2008, Charles submitted a Freedom of Information Act (FOIA) request to the Department of Defense (DOD).
- The request sought records analyzing fatal bullet wounds sustained by service members in Iraq and Afghanistan between 2006 and 2007 to determine the relationship between body armor and lethal torso injuries.
- The DOD's Armed Forces Institute of Pathology (AFIP) identified 103 responsive autopsy files, which included preliminary and final autopsy reports, and 18 body armor description sheets.
- The agency initially decided to withhold all of the identified records in their entirety.
- Charles subsequently narrowed the scope of his request and explicitly agreed to the redaction of all personal identifying information from the records sought.
Procedural Posture:
- In February 2009, Roger Charles filed a complaint for injunctive relief against the Department of Defense (DOD) and its sub-agencies in the U.S. District Court for the District of Columbia.
- The parties filed cross-motions for summary judgment, during which Charles narrowed his request.
- In August 2010, the court denied the DOD's motion and granted Charles's in part, finding the agency's search for records was inadequate and ordering supplemental briefing on exemptions.
- In October 2010, the DOD again moved for summary judgment, asserting FOIA Exemptions 2, 5, and 6.
- Following a Supreme Court decision that abrogated the legal basis for the Exemption 2 claim, the court denied both parties' motions without prejudice in September 2011.
- The DOD then filed a third motion for summary judgment, relying only on Exemptions 5 and 6, and Charles filed a third cross-motion for summary judgment, leading to the present opinion.
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Issue:
Under the Freedom of Information Act, does either the deliberative process privilege (Exemption 5) or the personal privacy exemption (Exemption 6) justify the Department of Defense's withholding of preliminary and final autopsy reports concerning the effectiveness of military body armor, particularly when all personally identifying information has been redacted from the final reports?
Opinions:
Majority - Judge Roberts
No. Neither exemption justifies the wholesale withholding of the requested records. Regarding Exemption 6 (personal privacy), once all personally identifying information is redacted from the final autopsy reports and medical records, there is no more than a de minimis privacy interest at stake for the families of the deceased. The government's claim that families might suffer emotional distress is too speculative to constitute a 'clearly unwarranted invasion of personal privacy,' as the possibility they could identify a specific redacted report is remote. Regarding Exemption 5 (deliberative process), while the preliminary autopsy reports qualify as predecisional, the government failed to meet its burden of showing that non-exempt factual material within those reports is not reasonably segregable. The agency's conclusory affidavits were insufficient to justify withholding the preliminary reports in their entirety.
Analysis:
This decision reinforces the high burden agencies face when attempting to withhold documents under FOIA exemptions. It significantly clarifies the application of survivor privacy under Exemption 6, distinguishing the speculative harm from redacted text-based records from the more direct privacy invasion of death-scene images at issue in National Archives and Records Admin. v. Favish. The ruling establishes that an agency cannot create a privacy harm through its own notification policies to justify withholding otherwise disclosable records. For Exemption 5, the case underscores the judiciary's demand for specific, detailed justifications for non-segregability, preventing agencies from using conclusory statements to withhold entire documents that may contain releasable factual information.
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