United States District Court, D. Alaska
Dayle James, as the Personal Representative of the Estate of Charlie Thomas James, Jr., Plaintiff,
v.
United States Department of Defense, and U.S. Army, Defendants.
ORDER FROM CHAMBERS [MOTIONS AT DOCKET 12 &
17]
JOHN
W. SEDWICK SENIOR JUDGE.
I.
MOTIONS PRESENTED
Plaintiff
moved for summary judgment at docket 12. Defendants United
States Department of Defense and the U.S. Army (jointly
“Defendant”) filed an opposition and cross motion
for summary judgement at docket 16. Defendant filed the same
opposition and cross motion for summary judgement again at
docket 17. Plaintiff filed a combined opposition/reply at
docket 20. Defendant filed a reply at docket 21. Oral
argument was not requested and would not aid the court.
II.
BACKGROUND
Charlie
Thomas James, Jr. (“Charlie”) was killed in an
accident which happened on March 13, 2015, when an Army
“Stryker” vehicle was being loaded onto a rail
car and its brakes failed. Plaintiff brought this lawsuit
seeking information pertinent to his wrongful death lawsuit,
which is also pending in this court (“James
Lawsuit”).[1] Only one defendant remains in the James
Lawsuit, General Dynamics Land Systems, Inc. (“General
Dynamics”). Plaintiff's counsel has expressed his
intent to join the United States as a defendant in the James
Lawsuit, [2] but has not yet done so.
Plaintiff's
counsel made a Freedom of Information Act
(“FOIA”) request to Defendant on March 7, 2017,
which set out five specific questions.[3] The Army
responded with answers to the questions on April 6,
2017.[4] On May 23, 2017, Plaintiff's attorney
made a second FOIA request in which he asked the Army to
provide “copies of any Army reports, memoranda or
similar documents reflecting the results of any investigation
into [Charlie's death] including any inspection and
testing of the brakes on the subject Stryker and any
investigation into the cause of the brake failure, and any
persons or entities that might be responsible for the brake
failure.”[5] The Army responded on June 14, 2018,
stating that the investigation had been conducted by OSHA,
referred Plaintiff's lawyer to that organization, and
said that the referral to OSHA was its final
response.[6]
Having
seen discovery responses from General Dynamics in the James
Lawsuit, indicating that the Army had been involved in
investigating the accident, Plaintiff's lawyer renewed
his FOIA request on July 25, 2018, asking for “all
documents concerning the inspection of the Stryker involved
in [Charlie's] death, including all memos, emails,
reports and similar documents regarding any inspection of the
accident vehicle both pre and post
accident.”[7] The initial response was a letter advising
that the request was being referred to the U.S. Army Pacific
Command-U.S.Army Alaska.[8]
Hearing
nothing further, Plaintiff's lawyer made a follow-up
inquiry on January 2, 2018.[9] Thereafter, on April 2, 2018, the
Army responded by providing a redacted copy of its AR15-6
investigation report and redacted sworn statement from three
soldiers. The response also advised that other documents were
being withheld. The response advised that the redactions and
withholding of documents were done pursuant to the FOIA
privacy exemption, 5 U.S.C. § 552 (b)(6) and the FOIA
deliberative process exemption, 5 U.S.C. § 552 (b)(5).
Attached to the response was a log of withheld materials
listing categories of materials withheld and references to
the pertinent exemptions for each category.[10] Copies of the
redacted sworn statements are at docket 12-9. A copy of the
redacted AR15-6 report with attachments is found at
docket12-10.
Plaintiff's
attorney then asked for reconsideration of the decision to
withhold information saying: “We need the names and
last known addresses of the persons who gave statements and
signed and created the documents. Unless the [James Lawsuit]
is settled we will have to take depositions of those
personnel and thus require their names and last known
addresses.”[11] With respect to the documents being
withheld, Plaintiff's counsel asserted that to determine
whether the invocation of the deliberative process exemption
was appropriate, he needed more information. In particular,
he asked for the type of document and its date, and as to
documents which were communications, the “name, rank
and title of the sender and recipient.”[12]
Plaintiff's lawyer also asked that if a privilege were
claimed, that the specific privilege and specific facts
supporting the privilege be disclosed.[13] The Army
responded by denying the request for information identifying
the various individuals pursuant to the privacy exemption and
attaching another copy of the log of withheld
materials.[14]
In
connection with its response to Plaintiff's motion,
Defendant indicated that it would produce portions of two
email chains which were among the four documents originally
withheld in their entirety. The first email chain
“constituted communications between United States Army
Alaska staff members concerning the Stryker vehicle and
incident.”[15] The redacted portions were
“withheld because they contain personal recommendations
of USARAK staff and are exempt under the provisions of
FOIA.”[16]
The
second email chain consisted of communications between USARAK
lawyers “concerning the Stryker vehicle, potential
courses of action, and discussions in anticipation of
litigation.”[17] The redacted portions “are being
withheld because they contain attorney-client communications
and are exempt under the provisions of
FOIA.”[18]
Defendant
maintains that the entirety of the other two documents must
be withheld. One consists of communications between lawyers
which “reflect answers and information in response to
questions raised by attorneys regarding the Stryker
vehicle.”[19] The second being withheld in its
entirety is a printout regarding information “requested
12 May 2015 by Chief, Legal Assistance Office to the ASARAK
Attorney Adviser, and clearly marked ‘For Official Use
Only: Litigation/Attorney Work Product.' This record is a
memorandum of the observations of the Attorney at the March
24, 2018 observation at the accident
scene.”[20] The reason given for withholding these
two documents is that they qualify for protection as
attorney-client communications and as part of
“pre-decisional materials written as part of the
decision making process of the agency
Army.”[21]
Defendant
also prepared a “Vaughn index.” The index appears
in the record at docket 17-5.
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[22] The materiality
requirement ensures that “[o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.”[23] Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[24] However, summary judgment is mandated
“against a 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.”[25] Because facts in FOIA
cases are rarely in dispute, “[m]ost FOIA cases are
resolved by the district court on summary
judgment.”[26]
IV.
DISCUSSION
A.
Principles of FOIA Case Law
FOIA
requires public access to government information to further
an open and well functioning democracy, especially where
access might be “needed to check against corruption and
to hold the governors accountable to the
governed.”[27] “The statute provides public
access to official information ‘shielded
unnecessarily' from public view and establishes a
‘judicially enforceable public right to secure such
information from possibly unwilling official
hands.'”[28] FOIA mandates full agency disclosure
unless information is exempted under one of FOIA's nine
statutory exemptions. Because FOIA's purpose is to
encourage disclosure, its exemptions are narrowly
construed.[29]
An
agency bears the burden of justifying application of FOIA
exemptions.[30]Reasonably detailed, non-conclusory
affidavits meet this burden. Affidavits must include a
‘Vaughn index' “identifying the
documents withheld, the FOIA exemptions claimed, and a
particularized explanation of why each document falls within
the claimed exemption.”[31] The particularized explanation
should disclose “as much information as possible
without thwarting the claimed exemption's
purpose.”[32] If there are particularized
explanations, “substantial weight [should be given] to
an agency's declarations regarding the application of a
FOIA exemption.”[33] “If, however, the
court finds the affidavits or testimony submitted too
generalized to establish eligibility for an exemption, it
may, in its discretion, proceed to examine the disputed
documents in camera for a first-hand determination of their
exempt status.”[34]
Defendant
invoked 5 U.S.C. § 552(b)(6), the “personal
privacy” exemption, to support redaction of the names
and other personal identifying information of personnel who
gave sworn statements or worked on investigative,
maintenance, or inspection reports. Personal privacy is
implicated if the request affects “the individual's
control of information concerning his or her person, or
constitutes a ‘public intrusion' long deemed
impermissible under the common law and in our cultural
traditions. Disclosures that would subject individuals to
possible embarrassment, harassment, or the risk of
mistreatment constitute nontrivial intrusions into
privacy.”[35] The government carries the burden of
proving a non-trivial privacy interest.
Defendant
redacted or did not produce some documents relying on the
“deliberative process” exemption found in 5
U.S.C. § 552(b)(5). The “deliberative
process” exemption permits non-disclosure of
“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.”[36] This
provision shields “those documents, and only those
documents, normally privileged in the civil discovery
context.”[37] “A predecisional document is a
part of the ‘deliberative process', if the
disclosure of the materials would expose an agency's
decision making process in such a way as to discourage candid
discussion within the agency and thereby undermine the
agency's ability to perform its
functions.”[38] The government agency must segregate and
disclose “any reasonably segregable portion of a
record”[39] that is being withheld under a FOIA
exemption.
Defendant
asserts that Plaintiff's purpose in seeking disclosure is
to obtain information relevant to the James Lawsuit and that
such a purpose is not appropriate in a FOIA lawsuit. Two
cases principally relied upon by Defendant are readily
distinguishable from the situation before this court. As
Plaintiff points out, those cases involved enforcement
actions by a federal agency.[40] Another case relied upon by
Defendant involved a FOIA request seeking information that
would assist a defendant in a criminal prosecution. The
appellate court wrote: “We hold that in criminal cases
[FOIA] does not extend the scope of discovery permitted under
Rule 16.”[41] That case is easily distinguished from
the case at bar. The other cases cited by Defendant are also
distinguishable.
The
real issue emanating from Plaintiff's purpose in seeking
information that relates to the James Lawsuit is whether
Plaintiff has provided an adequate basis for seeking the
information relating to the actions of the Army personnel
involved in the Stryker incident. The Ninth Circuit has
explained:
When a FOIA requester alleges a public interest ‘in
showing that responsible officials acted negligently or
otherwise improperly in the performance of their duties'
Favish, 541 U.S. at 174, we are guided by the
Supreme Court's decisions in Ray and
Favish. In Ray, the FOIA requesters argued
the identities of the Haitian returnees was necessary for
‘ascertaining the veracity of the interview
reports.' 502 U.S. at 179. The Court rejected this
argument, holding that [w]e generally accord Government
records and official conduct a presumption of
legitimacy,' and that requesters had presented no
evidence to overcome this presumption. Id.
Ray expressly reserved the question of ‘[w]hat
sort of official misconduct might be sufficient to identify a
genuine public interest in the disclosure. The Court
subsequently answered that question in Favish,
holding that where ‘the public interest being asserted
is to show that responsible officials acted negligently or
otherwise improperly in the performance of their duties'
then ‘the requester must establish more than a bare
suspicion' in order to overcome the presumption of
legitimacy accorded to official conduct.' 541 U.S. at
174. Rather, ‘the requester must produce evidence that
would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.'
Id.[42]
B.
Propriety of Withholding of ...