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McGrady v. Mabus

July 22, 2009

JACKSON L. MCGRADY, PLAINTIFF,
v.
RAY MABUS,*FN1 SECRETARY OF THE NAVY, AND DEPARTMENT OF THE NAVY, DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

AMENDED MEMORANDUM OPINION

Plaintiff Jackson L. McGrady brings this action, pro se,*fn2 against Defendant Ray Mabus, Secretary of the Navy, and Defendant Department of the Navy ("Navy"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.*fn3

This matter is now before the Court on Defendants' Motion for Summary Judgment [Dkt. No. 7] and Plaintiff's Cross-Motion for Summary Judgment [Dkt. No. 8]. Upon consideration of the Motions, Oppositions, Replies, the entire record herein, and for the reasons stated below, Defendants' Motion is denied and Plaintiff's Cross-Motion is granted.

I. Background*fn4

In the Navy, a Selection Board determines which officers should be promoted. After the Board meets, it releases a public statement listing the officers selected for promotion. It also releases statistics on the selected officers, including their occupational specialties and educational background.

During such proceedings, Selection Board members use Master Brief Sheets to aid their promotion determinations. The Master Brief Sheets include "key personnel data and a summary of an officer's entire performance evaluation record."*fn5 Defs.' Opp'n at 7. At the conclusion of the proceedings, the President of the Selection Board chooses a "sampling" of the Master Brief Sheets of officers selected and not selected for promotion, as those "most representative of the Board's deliberations and recommendations." Id. at 8-9. These are known as Sampled Master Brief Sheets. Id.

The Sampled Master Brief Sheets are stored in a limited access database and are used only during Special Selection Board proceedings. A Special Selection Board is convened only when the Secretary of the Navy determines that there was an "administrative error" or "material unfairness" during a particular Selection Board proceeding. At a Special Selection Board proceeding, the records of the individual in question are compared with the Sampled Master Brief Sheets. The Sampled Master Brief Sheets "provide the Special Selection Board with 'a relative base [which indicates] which eligible officers, in the opinion of a majority of the members of the board, [were] fully qualified for promotion.'" Id. at 10 (internal quotation marks and citations omitted).

On September 28, 2005, Plaintiff wrote the Commandant of the United States Marine Corps requesting information relating to Selection Boards that met in 2004 and 2005. Specifically, he requested the following three items: (1) redacted copies of all Master Brief Sheets of the officers recommended for promotion by the Fiscal Year 2004 and 2005 Lieutenant Colonel Selection Boards, (2) redacted copies of all Master Brief Sheets of the officers not recommended for promotion by the 2004 and 2005 Lieutenant Colonel Selection Boards, and (3) a copy of the precepts*fn6 from the Fiscal Year 2004 and 2005 Lieutenant Colonel Selection Boards. The request included both Master Brief Sheets and Sampled Master Brief Sheets.*fn7

In a letter dated October 5, 2005, Defendants informed Plaintiff that his request could not be processed within the prescribed time period and advised him that this result could be treated as an appealable adverse determination. On October 13, 2005, Plaintiff filed an appeal.

Before the appeal could be resolved, Defendants informed Plaintiff that they had reached a decision partially denying his request. In a letter dated November 17, 2005, Defendants informed Plaintiff that the Board precepts he requested were publicly available on a Marine Corps Promotion Branch website.

The letter also stated that although Defendants had located the Master Brief Sheets that Plaintiff requested, they could not be released because they were "proceedings," exempted under 5 U.S.C. § 552(b)(3), and their release was prohibited under 10 U.S.C. § 618(f).*fn8

In a letter dated January 4, 2006, Plaintiff filed an administrative appeal. On February 23, 2006, Defendants denied the appeal. Plaintiff filed his pro se Complaint in this Court on April 25, 2006.

II. Standard of Review

FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. §§ 552(a), (b)).

In a FOIA case, the district court conducts a de novo review of the government's decision to withhold requested documents under any of the statute's nine exemptions. 5 U.S.C. § 552(a)(4)(B). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision. Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)).

In a FOIA case, a court may award summary judgment solely on the basis of information provided in affidavits or declarations when they (1) "describe the documents and the justifications for nondisclosure with reasonably specific detail;" (2) "demonstrate that the information withheld logically falls within the claimed exemption;" and (3) "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

III. Analysis

FOIA "mandates a strong presumption in favor of disclosure." Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). Nonetheless, an agency may withhold information that falls within one of the statute's nine enumerated exemptions. August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003). These exemptions were "designed to protect those legitimate governmental and private interests that might be harmed by release of certain types of information." Id. (internal quotation marks omitted). Because the statute favors disclosure, the exemptions "must be narrowly construed." Multi Ag Media LLC, 515 F.3d at 1227 (internal quotation marks omitted).

In the present case, Defendants claim that three FOIA exemptions apply: Exemptions 3, 5, and 6.

A. FOIA Exemption 3

FOIA Exemption 3 permits an agency to withhold information "specifically exempted from disclosure by statute... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3).

When the government alleges that it may withhold information pursuant to Exemption 3, "the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1987). A statute qualifies as a withholding provision when it is "the product of congressional appreciation of the dangers inherent in airing particular data" and it "incorporate[s] a formula whereby the administrator may determine precisely whether the disclosure in any instance would pose the hazard that Congress foresaw." Wisconsin Project on Nuclear Arms Control v. Dep't of Commerce, 317 F.3d 275, 280 (D.C. Cir. 2003).

Defendants argue that they must withhold the information Plaintiff requests because it is "specifically exempted from disclosure" by 10 U.S.C. ยง 618(f). Defs.' Mot. at 8-9. Section 618(f) stated that "proceedings of a selection board convened under section 611(a) of this title may not be ...


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