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Schwaner v. Dep't of the Army

March 17, 2010

JACK A. SCHWANER, PLAINTIFF,
v.
DEPARTMENT OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. For the reasons discussed below, the Court denies the former and grants the latter.

I. BACKGROUND

In November 2008, plaintiff submitted a request under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to the Department of the Army ("the Army"), to the attention of the Commander of Fort Eustis, an Army facility in Newport News, Virginia. See Compl. at 1. He sought the following information:

(1) - List of all Ait Students in regular Army status.

(2) - in Ranks of E-2 through E-4.

(3) - Names of Ait Student personnel.

(4) - Full Military addresses of Ait Student personnel, by Company if possible.

(5)- This FOIA request pertains to Ait student personnel who are presently in a "nondeployable status[.]"

Id., Ex. A (November 7, 2008 FOIA Request). The Army acknowledged receipt of plaintiff's request, and notified him that it referred his request to the Initial Denial Authority for a release determination. Id., Ex. B (December 19, 2008 letter from N.K. Donnelly, Director, Information Management, Freedom of Information Office, Fort Eustis, Virginia). The Commander, United States Human Resources Command, "serves as the Initial Denial Authority for all FOIA/Privacy Act requests relating to active duty personnel records." Mem. in Supp. of Def.'s Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. ("Def.'s Mem."), Decl. of Kathleen Vaughn-Burford ("Vaughn-Burford Decl.") ¶ 2.

The Army denied plaintiff's request in full, Vaughn-Burford Decl. ¶¶ 8-11, and explained its rationale as follows:

At this time, lists of military personnel cannot be released. Recent guidance from the Department of Defense (DOD) has advised this Command to withhold from public release the names and other personal identifiers of active duty personnel. Increased security awareness demanded in times of national emergency concurrent with the heightened interest in the personal privacy of Army personnel has required that restrictions be imposed on the release of information. Therefore, the information requested is exempt from disclosure under Exemption 6 of the FOIA.

Id., Attach. 3 (February 25, 2009 letter from C. Eldon Mullis, Colonel, U.S. Army, Chief of Staff). Although "[t]he letter informed plaintiff of his right to appeal and the method by which he could do so," plaintiff has not submitted an appeal either to the Freedom of Information Office at Fort Eustis or ...


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