The opinion of the court was delivered by: GREEN
Presently pending is the defendant's Motion for Summary Judgment. Upon consideration of this motion, the plaintiffs' opposition, the defendant's reply, the plaintiffs' Notice of Recent authorities and the defendant's response thereto, and after reviewing the withheld documents which were submitted for in camera review pursuant to this Court's Orders of September 27 and November 12, 1996, the motion will be denied in part and granted in part. Disclosure will be ordered as set out in this opinion.
This FOIA suit stems from research that the Department of the Army conducted into a potential vaccine for the HIV virus, which causes AIDS. In 1991 and early 1992, researchers at the Walter Reed Army Institute of Research ("WRAIR"), led by Lieutenant Colonel ("Lt.Col.") Robert Redfield, M.D., Chief of the Department of Retroviral Research, reported to Congress and published in well-known medical publications that, based on certain clinical trials, a vaccine known as gp160 appeared to have salutary effects on persons infected with HIV. See Ten Years of AIDS: Hearing before the Subcomm. on Health and the Environment, Comm. on Energy and Commerce ("Ten Years of AIDS Hearing"), 102d Cong., 1st Sess. 96 (June 6, 1991) (testimony of Lt.Col. Redfield) ("the individuals that have been immunized appear not to have a fall in their CD4 cells as opposed to historical controls"); AIDS Research Opportunities: Hearing before the Subcomm. on Health and the Environment of the Comm. on Energy and Commerce ("AIDS Research Opportunities Hearing"), 102d Cong., 2d Sess. 95 (testimony of Lt.Col. Redfield) ("I am part of the research team that may, in fact, provide a treatment for all people with early HIV infection."); Robert R. Redfield, et al., A Phase I Evaluation of the Safety and Immunogenicity of Vaccination with Recombinant gp160 in Patients with Early Human Immunodeficiency Virus Infection, New England J. of Med. (June 13, 1991), reprinted in AIDS Research Opportunities Hearing, supra, at 83-90; see also AIDS Research Opportunities Hearing, supra, at 81 (Feb. 24, 1992) (testimony of Colonel ("Col.") Donald Burke, M.D., Director, Division of Retrovirology, WRAIR) ("we showed unequivocally that vaccine therapy with gp160 was safe and that it did indeed boost the natural levels of antibodies and cellular immunity").
Dr. Redfield described the imitative at the Defense Department's Walter Reed Army Medical Center:
Well, the long-term goals of the Defense Department have been trying to develop a vaccine for treatment and prevention, and for a great--actually, about a century ago the concept of using vaccines as therapeutic was actually originated.
What we attempted to do at Walter Reed over the last several years was to see if you could modify the immune response of patients that are chronically infected to boost it so maybe they can control it better by actually using an AIDS vaccine to treat. And next week, there is also that original Phase I feasibility trial that will be published, and, in fact, it is feasible. You can actually use a vaccine in an individual with a chronic infection and change the entire immune response and defense that they have against that virus, and it is safe. At present, it is intriguing because the individuals that have been immunized appear not to have a fall in their CD4 cells as opposed to historical controls.
Ten Years of Aids Hearing, supra, at 96.
Lt.Col. Redfield's prediction of a potential breakthrough in the war on AIDS aroused extraordinary interest in Congress, in the news media and in the medical community. See, e.g., AIDS Conference to Unleash Research Covering Vaccines and Gene Therapy, Wall. St. J., at B4 (July 15, 1992) ("Dr. Redfield has been testing vaccines as a type of immune therapy in people who are infected with the AIDS virus. This spring he forecast that his data will show the treatments lower virus levels and stabilize infection-fighting immune cells."); Multiple Mutating HIV Strains Stymie Researchers Seeking a Vaccine for AIDS, Wall St. J., at B6 (May 26, 1992) ("Robert Redfield, a researcher at Walter Reed Army Medical Center in Washington will soon have 600 volunteers enrolled in his studies of AIDS vaccines as immune-boosters. He is testing such vaccines not for purposes of prevention but as treatment for people who are already HIV-infected."); Bernie Ankey, U.S. Medicine Interviews Robert R. Redfield, U.S. Medicine, at 8 (April 1992) (Dr. Redfield: "I personally believe it holds the key to converting HIV infection to a prolonged, subclinical disease within my lifetime."); 137 Cong.Rec. S17663 (Nov. 22, 1991) (statement of Sen. Dodd) ("Last summer, the distinguished New England Journal of Medicine published the first results of a study conducted by Dr. Robert Redfield of Walter Reed. . . . [These interim test results] give us some reason for hope that we can develop a way to effectively help HIV infected people maintain their immune system function and stay healthy or at least stay healthy for a longer period of time.").
In July 1992, Lt.Col. Redfield made a presentation to the Eighth International AIDS Conference in Amsterdam which was widely interpreted as a bold assertion that there had been statistically significant decreases in the amount of HIV in the blood of those patients who received the gp160 vaccine as opposed to those in a control group. As were his previous public statements, Redfield's Amsterdam presentation was widely covered by the media. See, e.g., At AIDS Talks, Hope is Weighed Down by the Hard Reality, N.Y. Times, at 1, 15 (July 26, 1992) ("Dr. Robert R. Redfield, of Walter Reed Army Medical Center in Washington, said patients receiving the vaccine had lower amounts of H.I.V. and a reduced rate of decline of one of the monitoring tests of the immune system."); Richard A. Knox, New Problems, New Hopes at AIDS Parley, Bost. Globe (July 26, 1992) ("'There is no doubt in my mind that next year we will be on first base in terms of showing that human HIV infection can ultimately be a self-limited disease that never proceeds to immune system collapse,' Dr. Robert Redfield of the Walter Reed Army Institute for Research in Maryland said in an interview. 'I think AZT was a bunt down the foul line.'"); 257 Science, at 605 (July 31, 1992) ("Robert Redfield of the Walter Reed Army Institute of Research claimed that he's reduced the amount of HIV in the blood cells of infected people who have been treated for two years with a vaccine made from the HIV surface protein gp160."). In the same article, the Boston Globe reported on the Army's program and the pressure for its expansion:
The U.S. Army is spending $ 15 million on a trial in progress of GP-160 compared with a dummy vaccine in 600 H.I.V.-infected patients. Studies so far, which indicate GP-160 is apparently harmless are generating pressure by AIDS activists and doctors to let the experimental vaccine be tried in a bigger group, perhaps 2,000 HIV-infected volunteers while waiting for definitive evidence.
"Can we let the next three years go by without some kind of wider acceptance to GP-160?" said Dr. Calvin Cohen of Boston, research director of the Community Research Initiative of New England. "Clinical researchers like me need to meet with the Food and Drug Administration and try to make it happen."
Knox, New Problems, New Hopes at AIDS Parley, supra.
On September 18, 1992, Senator Sam Nunn introduced Amendment No. 3094 to the bill that became the 1993 National Defense Authorization Act. This amendment provided $ 20 million for further testing of gp160:
Mr. President, I offer this amendment that would add $ 20 million for AIDS and research at the Department of Defense medical research facilities.
This amendment would provide for the third phase of testing for a new vaccine which has shown great promise as a way of delaying the onset of the deadly implications of the AIDS virus. This advantage is now seen in stage 2 testing in Walter Reed Medical Center. According to Army medical experts, phase 2 has shown that the vaccine should go to phase 3 as soon as possible.
This research and other fine medical work at Walter Reed are excellent examples of our military research facilities which can and are helping to solve the problems that are important and crucial to civilian society.
Mr. President, I urge adoption of the amendment on behalf of myself and Senator Warner, and I also say former Senator Russell Long has brought this matter to our attention.
Mr. President, in the case of this kind of research, time literally means saving the lives of people now sick with this deadly disease. The sooner we get these tests completed, the better off so many people in our Nation will be.
138 Cong.Rec. S14156, S14159-60 (Sept. 18, 1992), reprinted at 1992 WL 229956 (Cong.Rec.).
The $ 20 million rider to the Defense authorization act set off a firestorm of debate in the scientific research community because it circumvented the normal process for federal funding of scientific and medical research. See Jon Cohen, Did Political Clout Win Vaccine Trial for MicroGeneSys ?, 258 Science, at 211 (Oct. 9, 1992). Bernadine Healy, the director of the National Institutes of Health (NIH), commented that it was unprecedented for Congress to direct research to a specific experiment. Id. And, as it had before, this development in the testing of gp160 received significant press coverage. See, e.g., Lobbyists and Drug Tests, The Wash. Post, Oct. 28, 1992, at A24, reprinted at 1992 WL 2159626; Lawmakers' Approval of $ 20 Million for Aids Vaccine Tests Draws Protest, The Courier-Journal, Oct. 26, 1992, reprinted at 1992 WL 7863278 ("several scientists said it was extremely rare for lawmakers to appropriate money for testing a specific treatment"); Scientists Protest AIDS Vaccine Trials, Houston Chron. (Oct. 26, 1992), reprinted at 1992 WL 11453801 ("The federal government's top scientists are angrily protesting a recent decision by Congress to bypass medical researchers and approve $ 20 million for human trials of an experimental AIDS vaccine."); AIDS Vaccine Decision Disputed Government Scientists Say Congress Was Out of Line, The Kansas City Star, Oct. 26, 1992, reprinted at 1992 WL 6474184 (same); AIDS Research Bill Angers Scientists Critics Say Congress Went Too Far When Approving Trials on Humans For Vaccine, L.A. Daily News, Oct. 26, 1992, reprinted at 1992 WL 8197562 (same); Approval of AIDS Drug Trial Protested: Researchers Claim They Were Bypassed, The Raleigh News & Observer, Oct. 26, 1992, reprinted at 1992 WL 80334415 (same); Federal Scientists Fuming Over $ 20 Million AIDS Appropriation, The Sacramento Bee, Oct. 26, 1992, reprinted at 1992 WL 9779290 (same); $ 20 Million for AIDS Creates Furor, The S.F. Chron., Oct. 26, 1992, reprinted at 1992 WL 6286748 (same); Congressional AIDS Measures Worry Public Health Advocates, Med. & Health, Oct. 26, 1992, reprinted at 1992 WL 2790128 (discussing "earmark[of] $ 20 million of the defense budget for Phase III clinical trials of experimental AIDS vaccine gp160"); Jon Cohen, Lobbying for an AIDS Trial, 258 Science, at 536 (Oct. 23, 1992) (same); AIDS Drug Trial is Result of Lobbying, NIH Charges, Wall St. J., Oct. 20, 1992, at B5, reprinted at 1992 WL-WSJ 631178 (same); Old-fashioned Lobbying Wins Funding For Human Tests of New AIDS Drug, The Baltimore Evening Sun, Oct. 20, 1992, at A14, reprinted at 1992 WL 9543586 (same); Lobbyist Wins Trial for AIDS Drug, Chicago Sun-Times, Oct. 20, 1992, at 29, reprinted at 1992 WL 3491765 (same); AIDS Vaccine Goes Political, The Cleveland Plain Dealer, Oct. 20, 1992, at 4A (same); Lobbyist Gets Congress to Fund Research for Rebuffed AIDS Vaccine, Portland Oregonian, Oct. 20, 1992, at A12, reprinted at 1992 WL 7357733 (same); Lobbying in Senate Gets AIDS Drug Rushed to Testing, The Seattle Times, at A2, reprinted at 1992 WL 5052966 (same); Ex-Senator's Lobbying for AIDS Drug Assailed, St. Louis Post-Dispatch, Oct. 20, 1992, at 9A, reprinted at 1992 WL 3561935.
At approximately the same time that Congress awarded millions of dollars in taxpayer funds for testing the gp160 vaccine at Walter Reed, allegations surfaced that Lt.Col. Redfield had distorted the results of his research. In mid-October 1992, a memo from the previous August, which had criticized Redfield's methodology and his conclusions, was obtained by the press. See Statement of William F. McCarthy (Dec. 7, 1992), attachment 3 to Plaintiffs' Ex. G; Phyllida Brown, Memo Suggests U.S. Army HIV Vaccine Oversold, New Scientist, at 8 (October 24, 1992) ("Claims for a vaccine therapy that the U.S. Army is testing in HIV-positive patients may have been exaggerated, according to data in an internal memo obtained by New Scientist."). Thus, the debate about the gp160 testing, which had been raging within the military medical research community for several months, became public. Id.
Dr. McCarthy's criticism was not the only challenge to Lt.Col. Redfield's conclusions and methodology. In a memorandum to Col. Burke (Redfield's supervisor), Major ("Maj.") Craig W. Hendrix, M.D., the Director of the HIV Program in the Air Force and Col. R. Neal Boswell, M.D., the Associate Chief of the Division of Medicine in the Air Force complained about "the problem of misleading or, possibly, deceptive presentations by Dr. Redfield, which overstate the GP160 phase I data." Memorandum of Oct. 21, 1992, at P1, attachment 2 to Plaintiffs' Ex. G. This memorandum indicates that Redfield's presentations had been subjected to severe and substantial criticism within the military medical research community since at least late July 1992 when Dr. Maryanne Vahey "first questioned Dr. Redfield's Amsterdam talk." Id. P1. Maj. Hendrix and Col. Boswell described the Amsterdam presentation as "the most serious example of potential scientific misconduct." Id.
Noting that the scientific credibility of the military medical research was at risk, the two senior military doctors who authored the memorandum described their concerns in no uncertain terms:
Last week, at the 32nd Annual ICAAC meeting in Anaheim, CA, Dr. Redfield again presented data in an incomplete and misleading fashion, despite assurances to the MMCARR
in several recent meetings that he understood his past presentations to be in error and that he would refrain from repeating that error. If these actions are an intentional deception, it is an error of the most serious kind in science that betrays the trust of colleagues, patients and sponsors.
In their memorandum, the authors set forth in detail their evidence of "potential scientific misconduct." That evidence included:
Overselling the GP160 phase I data may date back as early as the New England Journal of Medicine publication (N Engl J Med 1991: 324:1677-84). Oral presentations of the phase I continuation data over the last year and a half have repeatedly shown only a few selected "home run" patients. The data from the entire study group has not been well represented by these selected patients. Data analysis has been either sloppy or, possibly, deceptive with use of inappropriately chosen "control" groups, unorthodox statistical methods that abuse the data to come up with the desired CD4 trend conclusions, failure to include appropriately performed analyses that fail to support the desired conclusion and badgering of statisticians and colleagues by Dr. Redfield, sometimes successfully, to agree to data analyses against their better professional judgment.
Dr. Redfield's professional peers sought specific action from Col. Burke:
They also raised their "serious concern" regarding Lt.Col. Redfield's connection to a non-profit organization called "Americans for a Sound AIDS Policy" or "ASAP," which had lobbied Members of Congress for gp160 finding at the same time that Redfield was a member of ASAP's Advisory Board. The memorandum's authors alleged that ASAP's President, Shepherd Smith, had attempted to influence Dr. Vahey, the doctor who had assisted Redfield in analyzing the "viral load" of the patients receiving the vaccine and who later criticized his Amsterdam presentation:
Smith also contacted Dr. Vahey prior to her 31 AUG 92 presentation of the GP160 phase I data which was to be the first public presentation of the data in a non-selective, appropriately analyzed fashion. According to Dr. Vahey, Mr. Smith had intimate knowledge of the GP160 phase I data and offered detailed suggestions for how Dr. Vahey should present the incomplete data with the control groups, coincidentally as Dr. Redfield had done in Amsterdam, to favor further development of the vaccine. He also insisted that she needed to know of the increasing pressures on her due to: (1) the millions of dollars at stake, (2) Army-NIH vaccine competition, and (3) upcoming congressional testimony on GP160 vaccine studies. We are suspicious of Mr. Smith's access to GP160 data, his involvement at the most basic level of data analysis on this study, and his motivations in raising issues of financial and congressional pressure which are scientifically immaterial and have, on the surface, the appearance of a very gross impropriety.
Two days after Col. Boswell and Maj. Hendrix submitted their memorandum to Col. Burke, the "Institute Review Committee's Subcommittee on Potential Scientific Misconduct in GP160 Phase I Immunotherapy Study" convened to consider the subject matter of that memorandum. See Meeting Minutes, attachment 1 to Plaintiff's Ex. G. The subcommittee "agreed that the information presented by Dr. Redfield seriously threatened his credibility as a researcher and had the potential to negatively impact AIDS research funding as a whole. His allegedly unethical behavior created false hope and could result in premature deployment of the vaccine." Id. at 2.
On October 22, 1992, the Army convened an informal investigation pursuant to Army Regulation ("AR") 15-6 ("AR 15-6 informal investigation"). See Memorandum for Colonel Harry G. Dangerfield, U.S. Army Medical Research and Development Command, attached as Plaintiffs' Opp. at Ex. N. Major General ("MG") Richard T. Travis, commander of the U.S. Army Medical Research and Development Command, appointed Col. Dangerfield to "investigate the facts and circumstances surrounding alleged scientific misconduct associated with the Army HIV Program" and charged him with "determining whether any Command personnel acted in violation of Federal law or Army regulation." Id. ; Declaration of Charles H. Bowers, FOIA Officer, Office of the Surgeon General, Department of the Army ("Bowers Decl.") P6. The AR 15-6 informal investigation generated widespread media coverage. See, e.g., U.S. Investigates AIDS Researcher, N.Y. Times, Nov. 5, 1992, at A28; Officials Investigate Researcher in Connection With AIDS Vaccine, Portland Oregonian, Nov. 5, 1992), at B4 Jon Cohen, Army Investigates Researcher's Report of Clinical Trial Data, 258 Science, at 1568 (Dec. 4, 1992), reprinted at 1992 WL 11304481; Susan Katz Miller, Is Congress Backing the Wrong AIDS Vaccine?, New Scientist, at 11 (Nov. 14, 1992); CBS, Transcript from the CBS Evening News at 4-5 (Nov. 11, 1992), attached to Plaintiff's Opp. at Ex. P.
On February 22, 1993, Col. Dangerfield completed his AR 15-6 informal investigation, concluding that the "evidence does not support the allegations of scientific misconduct." Memorandum for Major General Richard T. Travis, Commander, U.S. Army Medical Research and Development Command ("Dangerfield Report"), at section iv (Findings), P1. In section v of his report, Col. Dangerfield recommended that no adverse actions be taken and that "in fairness to Lt.Col. Redfield, the HIV Research Program, the Army and scientific community, a press release correcting the record is warranted." Id. at section v (Recommendations), P2.
MG Travis reviewed Col. Dangerfield's investigation, neither approving it nor disapproving it. See id. at section viii (Action by Appointing Authority), P1; Bowers Decl. P8. Finding it to be incomplete, see Dangerfield Report at section viii, P2, MG Travis appointed Col. Garland McCarty to "continue an informal investigation [into] the facts and circumstances surrounding the participation of personnel in the Retrovirology Division at Walter Reed Army Institute of Research in an organization known as 'Americans for a Sound AIDS Policy.'" Memorandum for Colonel Garland E. McCarty, U.S. Army Medical Department Center and School, at P1 (Mar. 9, 1993), attached to Plaintiffs' Opp. at Ex. T.
On April 6, 1993, Col. McCarty completed his investigation, including therewith all of Col. Dangerfield's investigation and exhibits. See Bowers Decl. P9. Col. McCarty made specific findings and recommendations, all of which MG Travis approved. Id. ; Report of Proceedings by Investigating Officer, DA Form 1574 ("McCarty Report"), at section viii) (Action by Appointing Authority), attached to Plaintiffs' Opp. at Ex. T. In his findings, McCarty concluded that ASAP had probably received scientific information that was not widely disseminated. See McCarty Report at section iv (Findings), P7. In one of the two recommendations publicly disseminated, he recommended that relationship between Walter Reed and ASAP be terminated. See id. at section v (Recommendations), P4.
Like Redfield's presentations of the gp160 data, the debate within the military medical research community and the allegations of scientific fraud, the results of the Army's inquiry, including criticism of it, was reported by the media. See, e.g., Jon Cohen, Army Clears Redfield--but Fails to Resolve Controversy, 261 Science, at 924 (Aug. 13, 1993), reprinted at 1993 WL 12231028; Phyllida Brown, Anger Over 'Selective Data' on HIV Therapy, New Scientist, at 4 (July 17, 1993); AIDS Vaccine Cover-up Alleged, MarketLetter (Aug. 9, 1993), reprinted at 1993 WL 2827289.
On July 5, 1994, Plaintiffs Peter Lurie, M.D., and the Public Citizen Health Research Group requested the disclosure of records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1994), regarding the McCarty and Dangerfield informal investigations. See Compl. P6. Their FOIA request specifically described the records they sought:
The full unredacted versions (with all attachments) of the reports of Colonel Henry (sic) Dangerfield on the GP160 AIDS vaccine trial and Colonel Garland McCarty on the relationship between the Armed Forces researchers and Americans for a Sound AIDS Policy (ASAP).
Public Citizen letter of July 5,1994, attached to Plaintiff's Opp. at Ex. Y
On September 14, 1994, the Army released some of the records that the plaintiffs requested, but withheld others (or portions of others) based on an assertion of FOIA Exemptions 5 (deliberative process), 6 (personal privacy) and 7(C) (law enforcement records). See MG Thomas R. Tempel, Acting Deputy Surgeon General, letter of Sept. 14, 1991, attached to Plaintiffs' Opp. at Ex. AA; Bowers Decl. PP3 & 12-14, attached to Defendant's Motion for Summary Judgment at Ex. 1; Compl. P7. In particular, the Army withheld portions of McCarty's findings and recommendations, while releasing all of Dangerfield's. Other records, such as witness statements submitted by Dr. Hendrix, Dr. Boswell and Dr. McCarthy were heavily redacted. On the other hand, the majority of Dr. Redfield's statement was released.
(1) a declaration that the Army's refusal to disclose the records was unlawful;
(2) a court order directing the defendant to disclose the requested records;
(3) an award of costs and reasonably attorneys' fees; and
(4) such other relief as this Court may deem just and proper.
The defendant later moved for summary judgment, submitting an index under Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564. However, because the Vaughn index and the Bowers Declaration were insufficiently detailed and too conclusory in nature to afford an adequate review of the claimed exemptions, the Court directed the Army to submit the withheld documents, in unredacted form, for in camera review. See Order of Sept. 27, 1996; Order of Nov. 12, 1996. The Court has now reviewed each document in light of the exemptions claimed by the Army and rules as described below.
A. The Freedom of Information Act.
FOIA's core purpose is to shed light on the operation of government. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773, 109 S. Ct. 1468, 1481-82, 103 L. Ed. 2d 774 (1989). This purpose is effectuated by "facilitating public access to Government documents," Department of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 547, 116 L. Ed. 2d 526 (1991), and by "piercing the veil of administrative secrecy and  opening agency action to the light of public scrutiny." Id., 112 S. Ct. at 547 (quoting Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976)); see also McCutchen v. Department of Health and Human Servs., 308 U.S. App. D.C. 121, 30 F.3d 183, 184 (D.C.Cir. 1994).
Nonetheless, FOIA does not provide unfettered access to government files and papers. McCutchen, 30 F.3d at 184. Nine categories of documents are exempt from disclosure. 5 U.S.C. §§ 552(a)(2), (b); see Reporters Committee, 489 U.S. at 755, 109 S. Ct. 1402 at 1412; Beck v. Department of Justice, 302 U.S. App. D.C. 287, 997 F.2d 1489, 1490 (D.C.Cir. 1993). The agency makes the original determination regarding the applicability of the FOIA exemptions to the particular request, 5 U.S.C. § 552(a)(6)(A), but "the primary interpretative responsibilities rest on the judiciary." Association of Retired R.R. Workers, Inc. v. United States R.R. Retirement Bd., 265 U.S. App. D.C. 183, 830 F.2d 331, 334 (D.C.Cir. 1987). The agency bears the burden to demonstrate that a claimed exemption applies, 5 U.S.C. § 552(a)(4)(B); see McCutchen, 30 F.3d at 185, and courts are to interpret the exemptions narrowly and de novo, recognizing that "disclosure, not secrecy, is the dominant objective" of FOIA's statutory scheme. Rose, 425 U.S. at 361 & 379, 96 S. Ct. at 1599 & 1607; see also Reporters Committee, 489 U.S. at 755, 109 S. Ct. at 1472.
B. The Standard of Review .
Summary judgment is appropriate in FOIA cases when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Petroleum Info. Corp. v. Department of the Interior, 298 U.S. App. D.C. 125, 976 F.2d 1429, 1433 (D.C.Cir. 1992); Alyeska Pipeline Serv. v. EPA, 272 U.S. App. D.C. 355, 856 F.2d 309, 314 (D.C.Cir. 1988). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255, 106 S. Ct. at 2513. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (citation omitted). "When an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption, summary judgment in favor of the FOIA plaintiff is appropriate." Petroleum Info. Corp., 976 F.2d at 1433.
C. The Motion for Summary Judgment
The Army has moved for summary judgment as to its withholding of portions of 26 records.
Of those records, the defendant has invoked Exemptions 5 (deliberative process),
6 (personal privacy) and 7(C) (law enforcement records) to justify nondisclosure for each record, save two. For those two records, the Army has claimed only Exemption 6 for Document No. 3 (the McCarty Investigation Report), and it only claims Exemptions 5 and 6 as to Document No. 78 (Lt.Col. Redfield memorandum dated Nov. 17, 1992).
After briefly outlining the general principles of law applicable to the exemptions claimed, those principles are applied to each document withheld.
1. Exemption 5 - Deliberative Process
Exemption 5 of FOIA protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption encompasses all documents that are shielded from civil discovery, including those that are protected by the "deliberative process" privilege. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29 (1975); Petroleum Info. Corp., 976 F.2d at 1433. Its purpose is to shelter "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB, 421 U.S. at 150, 95 S. Ct. at 1516 (internal quotation and citation omitted).
Like all FOIA exemptions, this exemption must be construed as narrowly as is consistent with the efficient operation of the agency. Mapother v. Department of Justice, 303 U.S. App. D.C. 249, 3 F.3d 1533, 1537 (D.C.Cir. 1993); Army Times Publishing Co. v. Department of Air Force, 302 U.S. App. D.C. 432, 998 F.2d 1067, 1069 (D.C.Cir. 1993). The deliberative process privilege, therefore, protects only those documents that are both predecisional and deliberative. EPA v. Mink, 410 U.S. 73, 88, 93 S. Ct. 827, 836, 35 L. Ed. 2d 119 (1973). To determine whether a document is predecisional, a court must examine whether it was prepared "'to assist an agency decisionmaker in arriving at his decision,' rather than to support a decision already made." Petroleum Info. Corp., 976 F.2d at 1434 (quoting Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S. Ct. 1491, 44 L. Ed. 2d 57 (1975)). The material sought must be "antecedent to the adoption of an agency policy." Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C.Cir. 1978). An agency is not obligated to demonstrate a specific final decision, but must only establish "what deliberative process is involved and the role played by the documents in the course of that process." Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C.Cir. 1980). The agency must provide sufficient information about its decisionmaking process to establish that the document withheld was actually a part of that process. Senate of Puerto Rico v. Department of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 586 (D.C.Cir. 1987); Bristol-Meyers Co. v. FTC, 194 U.S. App. D.C. 99, 598 F.2d 18, 28 n.20 (D.C.Cir. 1978). Merely claiming that a record was part of its decisionmaking process is not enough. SafeCard Serv. v. SEC, 288 U.S. App. D.C. 324, 926 F.2d 1197, 1204 (D.C.Cir. 1991); see Coastal States Gas Corp., 617 F.2d at 868.
While not always determinative, the deliberative nature of a document is frequently determined through the "simple test that factual material must be disclosed but advice and recommendations may be withheld." Wolfe v. Department of Health and Human Services, 268 U.S. App. D.C. 89, 839 F.2d 768, 774 (D.C.Cir. 1988) (en banc). This fact/opinion distinction cannot be applied mechanically because Exemption 5 protects from disclosure predecisional materials, even though factual, if disclosure of that material would "reveal an agency's or official's mode of formulating or exercising policy-implicating judgment." Petroleum Info. Corp., 976 F.2d at 1435.
The agency is required to make a "segregability" determination, see 5 U.S.C. § 552(b), stating that "all reasonably segregable" non-exempt (i.e, factual) information has been disclosed to a requester unless the "non-exempt portions of a document . . . are inextricably intertwined with exempt portions." Krikorian v. Department of State, 299 U.S. App. D.C. 331, 984 F.2d 461, 466 (D.C.Cir. 1993); see also Church of Scientology v. Department of Justice, 30 F.3d 224, 229 (1st Cir. 1994); Army Times Publishing Co., 998 F.2d at 1068; PHE, Inc. v. Department of Justice, 299 U.S. App. D.C. 223, 983 F.2d 248, 252 (D.C.Cir. 1993).
The fundamental purpose of Exemption 5 is to protect the agency's decisionmaking process. Thus, while opinions and recommendations contained in a memorandum or other document are protected, "a report does not become part of the deliberative process merely because it contains only those facts which the person making the report thinks material. If this were not so, every factual report would be protected as part of the deliberative process." Playboy Enterpr. v. Department of Justice, 219 U.S. App. D.C. 343, 677 F.2d 931, 935 (D.C.Cir. 1982). Similarly, material is not protected merely because the choice of facts reflects the declarant's viewpoint. See, e.g., Wayland v. NLRB, 627 F. Supp. 1473, 1476-77 (M.D.Tenn. 1986).
Witness statements obtained in the course of an agency investigation are subject to withholding under FOIA's Exemption 5, provided such statements otherwise satisfy the criteria of Exemption 5. United States v. Weber Aircraft Corp., 465 U.S. 792, 798, 104 S. Ct. 1488, 1492, 79 L. Ed. 2d 814 (1984) (statements of Air Force witnesses "are unquestionably 'intra-agency memorandums or letters'"); Badhwar v. Department of the Air Force, 264 U.S. App. D.C. 397, 829 F.2d 182, 184 (D.C. Cir. 1987). However, absent a promise of confidentiality or some other privilege, facts contained in statements by agency witnesses are subject to disclosure. See Weber Aircraft, 465 U.S. at 799, 104 S. Ct. at 1492 (approving application of the privilege set forth in Machin v. Zuckert, 114 U.S. App. D.C. 335, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896, 11 L. Ed. 2d 124, 84 S. Ct. 172 (1963), under Exemption 5 of FOIA); Badwhar, 829 F.2d at 184-85 (deciding between disclosure and nondisclosure turns upon whether material is obtained based on a promise of confidentiality or "otherwise reflects 'deliberations or recommendations as to policies that should be pursued.'") (quoting Machin, 316 F.2d at 339); Martin v. Office of Special Counsel, MSPB, 260 U.S. App. D.C. 382, 819 F.2d 1181, 1186 (D.C.Cir. 1987) (facts protected as "work product"); Wayland, 627 F. Supp. at 1476-77 (M.D.Tenn. 1986) ("witness statements [are not] inextricably intertwined with deliberative material merely because the choice of facts reported or questions asked necessarily reveal the reporter's viewpoint").
Witness statements, like those withheld by the Army here, raise Exemption 5 questions where the witnesses include among their version of the facts their opinions and recommendations. Unless the factual portions cannot be reasonably segregated from the opinions or where disclosure would otherwise reveal the agency's deliberative process, the facts must be disclosed under FOIA. EPA v. Mink, 410 U.S. at 87-89, 93 S. Ct. at 837; National Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1118 (9th Cir. 1988); Wolfe, 839 F.2d at 774; Weber Aircraft Corp. v. United States, 688 F.2d 638, 645 (9th Cir. 1982), rev'd on other grounds, 465 U.S. 792, 798, 104 S. Ct. 1488, 1492, 79 L. Ed. 2d 814 (1984); Montrose Chemical Corp. v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63, 71 (D.C.Cir. 1974); see Providence Journal Co. v. Department of the Army, 981 F.2d 552, 568-69 (1st Cir. 1992). Of course, the agency still carries the burden to demonstrate that the opinion or recommendation played a definite role in the agency's deliberations, Coastal States, 617 F.2d at 868, because the deliberative process is inapplicable to material that could not reasonably be said to reveal the agency's policymaking judgment. Petroleum Info. Corp., 976 F.2d at 1429.
2. Exemption 6 - personal privacy
Exemption 6 permits the withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6). The primary purpose of Exemption 6 is to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information. Department of State v. Washington Post Co., 456 U.S. 595, 599, 102 S. Ct. 1957, 1960, 72 L. Ed. 2d 358 (1982). Exemption 6 does not, of course, protect against every intrusion of a person's privacy only those that are "clearly unwarranted." Rose, 425 U.S. at 382, 96 S. Ct. at 1608-09.
To fall within the scope of the protection of Exemption 6, the records sought "must first satisfy the threshold requirement of being a 'similar file.'" New York Times Co. v. NASA, 287 U.S. App. D.C. 208, 920 F.2d 1002, 1004 (D.C.Cir. 1990) (en banc). This threshold is minimal and includes information that "applies to a particular individual." Washington Post Co., 456 U.S. at 602, 102 S. Ct. at 1961; see New York Times Co. v. NASA, 920 F.2d at 1006. The Supreme Court has consistently rejected a narrow interpretation of this provision. Washington Post Co., 456 U.S. at 600, 102 S. Ct. at 1960-61. Purely personal details pertaining to government employees, such as personal addresses, e.g., Federal Labor Relations Authority v. Dep't of the Treasury Fin. Mgt. Serv., 280 U.S. App. D.C. 236, 884 F.2d 1446, 1453 (D.C.Cir. 1989), cert. denied, 493 U.S. 1055, 110 S. Ct. 864 (1990); National Assoc. of Retired Federal Employees v. Horner, 279 U.S. App. D.C. 27, 879 F.2d 873, 879 (D.C.Cir. 1989), cert. denied, 494 U.S. 1078, 108 L. Ed. 2d 936, 110 S. Ct. 1805 (1990), evaluation reports, e.g., Ripskis v. Department of Housing and Urban Development, 241 U.S. App. D.C. 8, 746 F.2d 1, 3-4 (D.C.Cir. 1984), and employment applications, e.g., Core v. United States Postal Serv., 730 F.2d 946, 948 (4th Cir. 1984), fall within the scope of the files protected under Exemption 6.
Once it is determined that the information sought is of a type that is subject to protection under Exemption 6, determining whether that information is, in fact, exempt from disclosure requires a balancing of the harm to the individual whose privacy would be breached against the public interest served by disclosure. See Rose, 425 U.S. at 372, 96 S. Ct. at 1604. Through Exemption 6, "Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny.' The device adopted to achieve that balance was the limited exemption, where privacy was threatened, for 'clearly unwarranted' invasions of personal privacy." Id., 96 S. Ct. at 1604 (citations omitted). As with FOIA generally, the fundamental question in evaluating the public interest is whether disclosure would provide a view of the agency's activities, thereby revealing what our "government is up to." Reporters Committee, 489 U.S. at 773, 109 S. Ct. at 1481.
3. Exemption 7(C) - law enforcement records
Exemption 7(C) allows an agency to withhold from disclosure information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C); see, e.g., Reporters Committee, 489 U.S. at 749, 109 S. Ct. at 1468; Nation Magazine v. United States Customs Serv., 315 U.S. App. D.C. 177, 71 F.3d 885, 893 (D.C.Cir. 1995). Material is exempt under Exemption 7(C) if "the privacy interest at stake outweighs the public's interest in disclosure." Nation Magazine, 71 F.3d at 893 (citing Reporters Committee, 489 U.S. 749 at 776, 109 S. Ct. at 1483); Davis v. Department of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1281 (D.C.Cir. 1992). A record is exempt from disclosure not merely because it pertains to an individual but because, after balancing the interests, it is determined that disclosure would result in an unwarranted invasion of personal privacy. Nation Magazine, 71 F.3d at 893-95. Law enforcement records pertaining to a specific individual may "be cloaked with the public interest if the information would shed light on agency action." Quinon v. FBI, 318 U.S. App. D.C. 228, 86 F.3d 1222, 1231 (D.C.Cir. 1996) (quoting Nation Magazine, 71 F.3d at 895).
In contrast to the standard applicable to Exemption 6, the threshold for withholding under Exemption 7(C) is lower. A record, or segregable information contained therein, is protected from disclosure under Exemption 7(C) if it "could reasonably" be expected to constitute an "unwarranted" intrusion. On the other, under Exemption 6 withholding is permitted only if the intrusion "would be clearly unwarranted." Reporters Committee, 489 U.S. at 756, 109 S. Ct. 1473.
To be subject to the protections of Exemption 7(C), the material must have been "compiled for law enforcement purposes." The general internal monitoring by an agency of its own employees is not shielded from public scrutiny under Exemption 7, because "protection of all such internal monitoring under Exemption 7 would devastate FOIA." Stern v. FBI, 237 U.S. App. D.C. 302, 737 F.2d 84 at 89. An agency investigation is considered to be for law enforcement purposes if it "focuses 'directly on specifically alleged illegal acts, illegal actions of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.'" Id. (quoting Rural Housing Alliance v. Department of Agriculture, 162 U.S. App. D.C. 122, 498 F.2d 73, 81 (D.C.Cir. 1974), r'hg denied, 164 U.S. App. D.C. 46, 502 F.2d 1179 (1974)).
The AR 15-6 informal investigations at issue here focused directly on the conduct of Lt.Col. Redfield and other government employees. Upon conducting an investigation and finding a violation of law or regulation, the Army has the option of conducting disciplinary proceedings against active duty military personnel under Title 10, United States Code, including Article 15 (Non-Judicial Punishment) of the Uniform Code of Military Justice, 10 U.S.C. § 815. For both its civilian employees and military members, the Army could pursue administrative action for the violation of Army regulations. See, e.g., DA 600-50 (conflict of interest regulations).
Because the Army has made a colorable claim of a rational law enforcement purpose in connection with both the Dangerfield and McCarty investigations, the Court finds that the records at issue here, the McCarty Investigation Report and certain enclosures thereto (or portions thereof) were compiled for law enforcement purposes. Keys v. Department of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 343 (D.C.Cir. 1987); see Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 421 (D.C.Cir. 1982) (which established the test in this Circuit prior to removal of the "investigatory" threshold requirement in the 1986 FOIA amendments).
D. Identifying the relevant interests.
Although the standard applicable to Exemption 7(C) is different than that applied under Exemption 6, the same balancing formula applies in comparing the public interest with the privacy interest at stake. Of course, the privacy interests cognizable under Exemption 6 are also cognizable under Exemption 7(C). Stern, 237 U.S. App. D.C. 302, 737 F.2d 84 at 91. Under both Exemptions 6 ...