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McMichael v. United States Dept. of Defense

United States District Court, District of Columbia

December 18, 2012

William McMICHAEL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.

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[Copyrighted Material Omitted]

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Lee Levine, Chad R. Bowman, Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Plaintiff.

Tricia D. Francis, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

William McMichael, a journalist, complains that the United States Department of Defense improperly responded to his requests for information from the United States Strategic Command. The initial request asked for records from a specific Inspector General investigation into misconduct allegations concerning a specific Navy captain. To each of three requests, USSTRATCOM neither confirmed nor denied that any records existed. The Court finds that DOD's response was improper and remands for reconsideration.

I. FACTS

The following facts are not in dispute. On March 27, 2011, Mr. McMichael, on behalf of Navy Times, [1] submitted a request under the Freedom of Information Act, 5 U.S.C. § 552, to United States Strategic Command (" USSTRATCOM" ) [2] for access to and a copy of the " Inspector General investigation into a complaint of an allegedly abusive command climate within the command's J4 created by Captain William Powers [sic] from October 2008 to March 2010." Exs. to McMichael Decl., Ex. F. Captain Power served as USSTRATCOM's Director of Logistics (J4) during this time.[3] See Exs. to McMichael

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Decl., Ex. C (formal complaint). In a letter issued on April 4, 2011, by Vice Admiral Cecil D. Haney, USSTRATCOM denied Mr. McMichael's request pursuant to 5 U.S.C. § 552(b)(7)(C) (" Exemption 7(C)" ) neither confirming nor denying the existence of " such records." [4] See id., Ex. G.

Mr. McMichael filed an administrative appeal on April 11, 2011, to the Defense Freedom of Information Policy Office. See Def. Mot. [Dkt. 10], Statement of Material Facts [Dkt. 10-1] (" DOD Facts" ) ¶ 3. By letter dated May 13, 2011, the FOIA Appellate Authority for the Office of the Secretary of Defense, William E. Brazis, Deputy Director of Administration and Management, affirmed the denial of his request. See id. ¶ 4; Exs. to McMichael Decl., Ex. H.

Mr. McMichael submitted two additional FOIA requests on April 11, 2011, again on behalf of Navy Times. The first requested " access to and a copy of the U.S. Strategic Command Inspector General investigation into a complaint of an abusive command climate in the command's J4 from October 2008 to March 2010." Exs. to McMichael Decl., Ex. I. The second FOIA request asked for:

access to and a copy of the record of payment or payments made to an unknown private firm for the transcription of interviews made during a U.S. Strategic Command Inspector General investigation into a complaint of an abusive command climate in the command's J4 from October 2008 to March 2010. Such expenditures are not classified and are a matter of public record. Please include all relevant information including the amount or amounts of such payments; the dates the payments were made; the specific reason for ...

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