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Charles v. Office of Armed Forces Med. Exam'r

United States District Court, District of Columbia

March 27, 2013

ROGER G. CHARLES, Plaintiff,
v.
OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, et al., Defendants

Page 87

[Copyrighted Material Omitted]

Page 88

For ROGER G. CHARLES, Plaintiff: Andrew M. Genser, Michael J. Gulliford, KIRKLAND & ELLIS LLP, New York, NY.

For OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, UNITED STATES DEPARTMENT OF DEFENSE, ARMED FORCES INSTITUTE OF PATHOLOGY, Defendants: Michelle Renee Bennett, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Tamra Tyree Moore, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division/Federal Programs Branch, Washington, DC.

OPINION

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RICHARD W. ROBERTS, United States District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Roger Charles, a retired Marine Corps captain and journalist, brings this action against the Office of the Armed Forces Medical Examiner (" OAFME" ), the Armed Forces Institute of Pathology (" AFIP" ), and the Department of Defense (" DOD" ) alleging a violation of the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and the Administrative Procedure Act, 5 U.S.C. § 706, arising out of Charles's request for documents related to whether any service member's deaths may

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have resulted from bullet wounds in torso areas that are usually covered by body armor. The parties have cross-moved for summary judgment, disputing whether FOIA exemptions apply to the documents Charles seeks. Because preliminary autopsy reports were exempt from disclosure under Exemption 5, but the defendants did not demonstrate that they disclosed all reasonably segregable material, the defendants' motion for summary judgment as to the preliminary autopsy reports will be denied without prejudice. Because the defendants' justifications for withholding the final autopsy reports and in-theater medical records are not supported by the defendants' affidavits or current law, Charles's motion for summary judgment will be granted as to these materials.

BACKGROUND

Rogers is a veteran, a journalist, and the editor of Defense Watch, an online journal published by the Soldiers for the Truth Foundation. Pl.'s Third Cross Mot. for Summ. J. (" Pl.'s Mot." ), Pl.'s Stmt. of Undisputed Material Facts in Supp. of Pl.'s Third Cross-Mot. for Summ. J. (" Pl.'s Stmt." ) ¶ 1. Charles is investigating the effectiveness of the body armor that the United States military issues to its troops. Charles v. Office of the Armed Forces Med. Exam'r, 730 F.Supp.2d 205, 208 (D.D.C. 2010). " 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. To further his investigation, Charles submitted a FOIA request in October 2008 to the DOD's AFIP, which was directed to the OAFME.[1] Defs.' Third Mot. for Summ. J. (" Defs.' Mot." ), Defs.' Stmt. of Material Facts Not in Dispute (" Defs.' Stmt." ) ¶ 1; Compl., Ex. E (Letter from Catherine M. With, Major, U.S. Army & Legal Counsel, AFIP, to Roger G. Charles (Sept. 10, 2008) at 1). Charles requested records that " analyze fatal wounds from bullets that were inflicted on military service members wearing body armor in Iraq and Afghanistan between January 1, 2006 and December 31, 2007, and analyze the relationship between personal body armor and lethal torso injuries sustained by such service members." Defs.' Stmt. ¶ 2. " As of January 30, 2009, the AFIP had neither produced any documents nor provided any estimate of when it might respond." Charles, 730 F.Supp.2d at 209; see also Defs.' Mot., Captain Craig T. Mallak Decl. (" Mallak Decl." ) ¶ 17. Charles filed his complaint for injunctive relief in February 2009.

AFIP does not maintain a searchable central records system. Thus, Captain Mallak convened a meeting of his colleagues to determine whether the Armed Forces Medical Examiner System (" AFMES" ) and AFIP possessed any records responsive to Charles's request. Mallak Decl. ¶ 20. The defendants identified 103 autopsy files and 18 body armor description sheets. Pl.'s Stmt. 16; Defs.' Stmt. ¶ ¶ 3, 6. The autopsy files included " information such as preliminary and final autopsy reports, autopsy photographs, body diagrams, CT scans, medical records and death certificates." Charles, 730 F.Supp.2d at 209. The responsive body armor description sheets " contained written descriptions of wounds and wound patterns and notations of possible links between

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injuries sustained while wearing personal protective equipment and resulting wound patterns. Further, some or all of the eighteen responsive records indicated that the body armor under examination was not perfectly intact upon inventory." Id. (internal citations and quotation marks omitted). Although the defendants identified the records as responsive to Charles's request, they decided to withhold all of the records in their entirety under FOIA exemptions. Defs.' Stmt. ¶ 7.

In October 2009, the defendants moved for summary judgment arguing that their search for responsive records was adequate and that all of the records responsive to Charles's request were properly withheld. Id. ¶ 8. Charles filed a cross-motion for summary judgment and an opposition in which he narrowed the scope of his FOIA request to seek only:

(a) [Armed Forces Medical Examiner Tracking System] body armor descriptions sheets, related to body armor worn by a soldier killed in Iraq or Afghanistan between January 1, 2006 and December 31, 2007, which indicate that the body armor was not intact upon receipt for inventory, and(b) autopsy reports and associated documents[2]:
(1) indicating that a soldier killed in Iraq or Afghanistan between January 1, 2006 and December 31, 2007 suffered a fatal gunshot wound in an area likely covered by the front or rear ceramic insert plates of that soldier's body armor, and/or(2) commenting, discussing or indicating that the body armor worn by a soldier killed in Iraq or Afghanistan between January 1, 2006 and December 31, 2007 did not prevent a fatal wound, or was penetrated by a bullet.

Pl.'s Stmt. ¶ 19; Charles, 730 F.Supp.2d at 210. Charles also limited his request to copies of the responsive records with certain information redacted, such as all personal identifying information.[3] The defendants re-reviewed their records and determined that none of the records responsive to Charles's initial request were responsive to Charles's narrowed request. Charles, 730 F.Supp.2d at 211. In response, Charles " protested the defendants' apparent reversal on the question of whether they possess any responsive documents." Id.

On August 13, 2010, Judge Urbina issued a Memorandum Opinion and Order denying the defendants' motion for summary judgment and granting in part Charles's cross-motion for summary ...


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