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Charles v. Office of Armed Forces Medical Examiner

United States District Court, District Circuit

October 2, 2013

ROGER G. CHARLES, Plaintiff,
v.
OFFICE OF THE ARMED FORCES MEDICAL EXAMINER, ARMED FORCES INSTITUTE OF PATHOLOGY, AND THE UNITED STATES DEPARTMENT OF DEFENSE, Defendants

MEMORANDUM OPINION

Ketanji Brown Jackson, United States District Judge

This Freedom of Information Act (“FOIA”) matter is now more than four years old. It began when Plaintiff Roger Charles (“Charles” or “Plaintiff”), a journalist and former Marine Corps officer, undertook to research the effectiveness of the body armor that the Department of Defense (“DOD”) issues to military personnel in combat zones. See Charles v. Office of the Armed Forces Med. Exam’r (“Charles II”), No. 09-199, 2013 WL 1224890, at *1 (D.D.C. Mar. 27, 2013).[1] Charles submitted a FOIA request to the Armed Forces Institute of Pathology (“AFIP”) seeking certain autopsy and medical records for soldiers killed in combat. When the agency failed to respond, Charles filed the instant FOIA lawsuit against the AFIP, the DOD, and the Office of the Armed Forces Medical Examiner (“OAFME”). [ECF No. 1.] Over the next three years, Defendants claimed to be exempt from having to produce documents and materials in response to Charles’s FOIA inquiry for various reasons, and two different federal judges reviewed and ruled upon aspects of Defendants’ exemption arguments in relation to cross-motions for summary judgment that the parties filed regarding the FOIA claim. See Charles II, 2013 WL 1224890 (Roberts, J.); Charles v. Office of Armed Forces Med. Exam’r (“Charles I”), 730 F.Supp.2d 205 (D.D.C. 2010) (Urbina, J.). Consequently, by 2013, only one narrow issue remained in this case: whether Defendants, who had invoked FOIA Exemption 5 to withhold redacted “preliminary” autopsy reports in their entirety, have adequately established that the factual information that such records contain is not reasonably segregable from the exempted material.

For the reasons that follow, and after consideration of the prior rulings and the entire record in this matter, this Court concludes that Defendants have sufficiently demonstrated that the factual material contained in the preliminary autopsy reports is not reasonably segregable and that, therefore, Defendants are entitled to withhold these reports in their entirety pursuant to FOIA Exemption 5. Accordingly, the Court construes Defendants’ most recent filing regarding segregability [ECF No. 59] as a renewed motion for summary judgment with respect to the Exemption 5 issue, and so construed, GRANTS Defendants’ summary judgment motion as it relates to the preliminary autopsy reports. A separate order that permits Defendants to withhold the preliminary autopsy reports in their entirety under FOIA Exemption 5 accompanies this memorandum opinion.

I. BACKGROUND

In October of 2008, Charles requested that the AFIP produce a certain set of pathology records for deceased military personnel pursuant to the FOIA; specifically, documents that

[1] 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
[2] analyze the relationship between personal body armor and lethal torso injuries sustained by such service members.

Charles II, 2013 WL 1224890, at *1 (record citation and internal quotation marks omitted). The AFIP did not respond to Charles’s FOIA request; instead, that agency forwarded the request to the OAFME. Id. Charles initiated this lawsuit in February of 2009, after “the AFIP had neither produced any documents nor provided any estimate of when it might respond.” Id. (citation omitted).

In April of 2009, following discussions between counsel for both parties, Captain Craig T. Mallak, who was the Armed Forces Medical Examiner for the DOD at that time, convened a meeting “to determine whether the AFIP or the [Armed Forces Medical Examiner System (“AFMES”)] possessed any documents responsive to [Charles’s] inquiry.” Charles I, 730 F.Supp.2d at 209. After this meeting, the Department of Defense identified 103 autopsy files and 18 body armor description sheets that were responsive to Plaintiff’s FOIA request. Charles II, 2013 WL 1224890, at *2. The autopsy files contained “information such as preliminary and final autopsy reports, autopsy photographs, body diagrams, CT scans, medical records and death certificates.” Charles I, 730 F.Supp.2d at 210. The body armor description sheets contained “written descriptions of wounds and wound patterns and notations of possible links between injuries sustained while wearing personal protective equipment and resulting wound patterns.” Id. (record citation and quotation marks omitted). Nevertheless, “[a]lthough 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.” Charles II, 2013 WL 1224890, at *2 (record citation omitted).

In October of 2009, Defendants moved for summary judgment, arguing that the search for records responsive to Mr. Charles’s FOIA request was adequate and that the records had been properly withheld. Id. at *2. Charles cross-moved for summary judgment, and he also narrowed his FOIA request. Id. Rather than continuing to seek documents analyzing “fatal wounds” that “service members wearing body armor” had sustained, for example, Charles sought a narrower subset of documents, including:

(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:
(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 ...

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