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Mark G. Wonders v. John M. Mchugh Secretary

September 11, 2012


The opinion of the court was delivered by: Robert L. Wilkins United States District Judge



Plaintiff Mark G. Wonders, who is proceeding pro se, brings this action seeking documents from the United States Army pursuant to the Freedom of Information Act. Both parties have filed motions for summary judgment. (Docs. 7, 12.) For the reasons set forth below, the Court will grant the Army's motion.


Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of material fact exists if the evidence, viewed in the light most favorable to the non-movant, "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. A non-moving party, however, must provide more than "a scintilla of evidence" in support of its position; the quantum of evidence must be such that a jury could reasonably find for the non-moving party. Id. at 252.

Here, both parties have moved for summary judgment. Thus, the Court must analyze the Defendant's motion while viewing the facts in the light most favorable to Wonders and, alternatively, analyze Wonders' motion while viewing the facts in the light most favorable to the Defendant. See Johnson v. District of Columbia, 528 F.3d 969, 973-78 (D.C. Cir. 2008).

For purposes of summary judgment in a FOIA case, the agency's decision to withhold information from a requester is subject to de novo review by the district court. 5 U.S.C. § 552 (a)(4)(B).


A. Wonders' FIOA Request and the Army's Response Plaintiff was employed as a Public Affairs Specialist at the United States Army Aviation Center of Excellence in Fort Rucker, Alabama. According to his complaint, Wonders made several "serious" ethics charges against an attorney who was then practicing in the Judge Advocate General's ("JAG") office at Fort Rucker. The nature of those charges is unclear, but it appears that the charges relate to her handling of Wonders' prior FOIA requests and possibly to her handling of his prior employment/EEO complaints. (See Doc. 12-3, Def.'s Summ J. Ex. B, Anderson Decl. ¶ 5;Doc. 6, Pl.'s Summ. J. Br. at p. 2.) As will be discussed more fully below, the gist of the complaints is that the attorney made misrepresentations during his employment/EEO proceedings, she either did or threatened to violate an arbitrator's ruling and she withheld information from the Plaintiff and his attorney.

On March 23, 2011, theArmy Professional Responsibility Branch ("PRB") informed Wonders that it had completed its "review" of his allegations and assured him that all "credible allegations" of attorney professional misconduct are throughly investigated and disciplinary actions taken, if warranted. (Doc. 12-3, Def.'s Summ J. Ex. A, Garrett Decl. at enclosure 2)(hereafter "Garrett Decl.") Pursuant to the Privacy Act, however, the Army explained that it was prohibited from disclosing the results of that review. (Id.)

In response, Wonders filed a FOIA request seeking "any and all documents generated by [his] 17 February and 24 February 2011 charges of professional misconduct made against" the attorney, including "all notes and findings" relating to the ethics charges. (Garrett Decl. at enclosure 3.) The Army responded that it could not confirm or deny the existence of the requested records due to privacy concerns; however, the Army took the position that if such records existed they would be exempt from disclosure under FOIA Exemptions 5 (deliberative process), 6 (personnel or medical records) and 7 (law enforcement records). (Id. at enclosure 4.)

Wonders administratively appealed the denial of his request. As a basis for his appeal he explained that the attorney's actions "directly impacted [his] career, health and well being." (Garrett Decl. at enclosure 5.) He also contended that he was within his rights to possess the requested information. (Id.)

Denying his appeal, the Army's Office of General Counsel explained that the PRB had properly withheld theresults of the review from Wonders. Further, Professional Responsibility records are considered sensitive and the Army concluded that Wonders had only demonstrated a private, not public, interest in the documents, which could not overcome the attorney's protected privacy interests. (Garrett Decl. at enclosure 6.)

In his complaint initiating this lawsuit, Wonders asks the Court to compel the Army to release "any and all information directly relating to the [February 17 and 24, 2011] complaints,*fn2 including notes, complete investigative reports and findings, along with any and all related correspondence." (Compl. at ECF p. 1.) Wonders contends that disclosure of the documents is warranted in the "interest of justice" and because the attorney's actions have "directly impacted [his] health, family and financial well-being." (Id.) Wonders attached a letter to his complaint that indicates he needs to obtain the requested information in order to "verify [his] position" and prevent "further actions against him by Fort Rucker officials." (Id. at p. 4.)

B. PRB Investigations of Ethical Complaints In support of its FOIA response, the Army primarily relies on the declaration of James Garrett who is the Chief of the JAG PRB. (Garrett Decl. ¶ 1.) The PRB is responsible for overseeing the professional responsibility program for attorneys in the Army's JAG office. As such, the PRB assists the Judge Advocate General in exercising his statutory and regulatory responsibilities to regulate lawyers, who are licensed by one or more states to practice law. (See Garrett Decl. ¶ 2.) JAG attorneys are subject to the restrictions, licencing requirements, and sanctions imposed by their state bar(s), as well as Army restrictions and sanctions. (Id.)

When the PRB receives an ethics complaint about a JAG lawyer, a PRB supervisor reviews the complaint to determine if it is "credible"; that is, whether the "information received provides a reasonable belief that a violation occurred." (Garrett Decl. ¶ 6; Garrett Decl. at enclosure 1, p. 15.) If the complaint is not credible, "a copy of any response to the complaint, with all associated documentation, will be retained in accordance with applicable filing regulations." (Id. at p. 15.) According to Garrett, just because the PRB receives a complaint and reviews the allegations in the complaint, "does not mean that any documentation was created." (Garrett Decl. ¶ 11.)

"Credible" complaints that "raise a substantial question as to a lawyer's honesty, trustworthiness, or fitness as a lawyer . . . will be informally investigated by means of a preliminary screening," which involves obtaining witness statements, making findings, making legal evaluations and making recommendations. (Garrett Decl. ¶¶ 4, 7; Garrett Decl. at enclosure 1, p. 15.) The results are forwarded to and considered by the PRB Chief, the Judge Advocate General Chief or his Deputy, and possibly a Professional Responsibility Committee.

Ultimately the Judge Advocate General makes a decision concerning the proper response to the complaint.

PRB investigatory records include documents relating to "specific, credible allegations of professional misconduct against agency attorneys, which may result in civil or criminal sanctions, or adverse administrative action." (Garrett Decl. ΒΆ 7.) These "investigation records are maintained in a system of records filed by the name of the attorney against whom allegations are made and contain: allegations, information and records relating to attorney representation of individual clients and the Army, statements, comments, factual analysis, judgmental analyses, legal analyses, options, ...

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