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Charles v. Office of the Armed Forces Medical Examiner

August 13, 2010

ROGER G. CHARLES, PLAINTIFF,
v.
OFFICE OF THE ARMED FORCES MEDICAL EXAMINER ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos. 16, 20

MEMORANDUM OPINION DENYING THE DEFENDANTS'MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff brings suit against the Office of the Armed Forces Medical Examiner ("OAFME"), the Armed Forces Institute of Pathology ("AFIP") and the Department of Defense ("DOD") alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. For the reasons discussed below, the court denies the defendants' motion for summary judgment and grants in part and denies in part the plaintiff's cross-motion for summary judgment.

II. BACKGROUND

A. Factual History

The plaintiff is a retired veteran, editor of the journal DefenseWatch and vice-chairman of the non-profit organization, Soldiers for the Truth. Compl. ¶ 7. He is investigating the effectiveness of the body armor that the U.S. military issues to its service members. Id. ¶ 5.

Having learned of reports and data suggesting that the body armor may not provide sufficient protection for American troops in combat, the plaintiff began gathering empirical information in an attempt to verify these reports. Id. ¶¶ 4-5. On October 28, 2008, the plaintiff filed a FOIA request with the AFIP and the OAFME seeking documents related to whether any service member's deaths may have resulted from bullet wounds in torso areas, which are usually covered by body armor. Id. ¶ 27; Pl.'s Cross-Mot. for Summ. J. & Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Cross-Mot.") at 1. Specifically, the plaintiff sought the following information for the period between January 1, 2006 and December 31, 2007:

1. Any documents characterizing whether the personal body armor worn by soldiers in Iraq and/or Afghanistan performed according to specification in stopping bullets and/or shrapnel. . . . .

5. Any documents characterizing and/or analyzing fatal wounds from bullets and/or shrapnel that were inflicted on soldiers wearing personal body armor in Iraq and/or Afghanistan.

6. Any documents illustrating, summarizing and/or characterizing the point of entry of any bullets and/or shrapnel that caused fatal wounds in soldiers wearing personal body armor in Iraq and/or Afghanistan.

8. Any reports characterizing and/or analyzing the relationship between personal body armor and lethal torso injuries sustained by soldiers in Iraq and/or Afghanistan.

9. Any documents concluding that a soldier in Irag [sic] and/or Afghanistan died because that soldier's personal body armor failed to stop a ballistic device, such as a bullet or shrapnel. . . . .

Compl., Ex. A. As of January 30, 2009, the AFIP had neither produced any documents nor provided any estimate of when it might respond. Id. ¶ 30.

B. Procedural History

The plaintiff filed a complaint in this court on February 3, 2009. See generally id. In April 2009, counsel for both parties held discussions to clarify the scope of the plaintiff's FOIA request. Decl. of Capt. Craig T. Mallak ("Mallak Decl.") ¶¶ 18, 19. Following those discussions, Captain Craig T. Mallak of the Armed Forces Medical Examiner Systems ("AFMES"), a subordinate organization within the AFIP and OAFME, convened a meeting to determine whether the AFIP or the AFMES possessed any documents responsive to the plaintiff's inquiry. Id. ¶¶ 1, 20. Captain Mallak identified two AFMES sources containing documents that fell within the scope of the plaintiff's request. Id. ¶ 22.

The first source consisted of the AFMES's autopsy files for fallen service members. Id. ¶ 23. The AFMES ran a database query for the autopsy files of service members who died from bullet wounds during the period between January 1, 2006 and December 31, 2007 while likely wearing body armor. Id. The query excluded the files of service members who suffered bullet wounds in the head or neck. Id. This search returned 103 autopsy files containing information such as preliminary and final autopsy reports, autopsy photographs, body diagrams, CT scans, medical records and death certificates. Id. Although the AFMES determined that these 103 autopsy files contained information responsive to the plaintiff's FOIA request, the AFMES nonetheless declined to release this information, id. ¶¶ 23, 26, ...


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