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E.G. v. Department of Air Force

United States District Court, District of Columbia

March 22, 2018

E.G., Plaintiff,
v.
Department of the Air Force, Defendant.

          MEMORANDUM OPINION

          Royce C. Lamberth United States District Judge.

         Plaintiff E.G. filed this action against the defendant U.S. Department of the Air Force ("Air Force") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking all records from an Administrative Discharge Board (the "Board") proceeding where the plaintiff testified that Air Force Staff Sergeant John M. Broome sexually assaulted her. Before the Court is the Air Force's motion for summary judgment. Upon consideration of the motion, the opposition and reply thereto, the attachments and affidavits filed in support of each party's arguments, and the entire record of this case, the Court GRANTS the defendant's motion. The Court explains its reasoning in the analysis below.

          I. BACKGROUND

         The plaintiff testified in the Board proceedings from June 23 to the 25, 2015, which were held to determine if SSgt. Broome should be retained in the Air Force. The Board decided to retain SSgt. Broome. The plaintiff filed a FOIA request with the Air Force shortly thereafter, seeking all documents pertaining to the Board proceedings. The Air Force granted the plaintiffs request in part, releasing only a copy of her testimony at the Board proceedings and denying the remainder of her request. The Air Force initially claimed that FOIA Exemption 5 and 6 preclude the release of further information, but after a subsequent appeal by the plaintiff, conceded that only Exemption 6 applied to the records[1]-still, the Air Force declined to release any further records to the plaintiff. One year after this denial, the plaintiff filed this lawsuit. The issue before this court is whether the Board proceeding records fall under FOIA Exemption 6, and thus were properly withheld by the Air Force.

         II. LEGAL STANDARDS

         a. Summary Judgment

         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ, Pro. 56(a). As applied to a FOIA case, an agency defendant may be entitled to summary judgement if it demonstrates that (1) no material facts are in dispute, (2) it has conducted an adequate search for responsive records, and (3) each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. Miller v. U.S. Dep't of Justice, 872 F.Supp. 2d, 18 (D.D.C. 2012) (citing Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980)).

         An agency claiming an exemption to FOIA bears the burden of establishing the exemption applies. Fed Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979). An agency satisfies that burden by submitting affidavits that "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted).

         b. Exemption 6

         FOIA Exemption 6 protects against the disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Thus, Exemption 6 requires an agency to prove both the nature of the files and that the files' disclosure "would constitute a clearly unwarranted invasion of personal privacy." U.S. Dep't of State v. Wash Post Co., 456 U.S. 595, 599-603 (1982). The second step is to balance "the protection of an individual's right to privacy" against "the preservation of the public's right to government information." Wash. Post Co., 456 U.S. at 599. The "public interest" weighed is limited to the "core purpose" for which Congress enacted the FOIA, i.e., to "shed ... light on an agency's performance of its statutory duties." U.S. Dep 't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). With Exemption 6, however, "the presumption in favor of the disclosure is as strong as can be found anywhere in the Act." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002).

         III. ANALYSIS

         The plaintiff claims that the documents pertaining to the Board proceedings do not fall under Exemption 6, because the information is not "personnel, medical or similar" files. 5 U.S.C. § 552(b)(6). Alternatively, she argues that the records should be released as a "routine use" under Air Force Instruction (AFI) 51-201, para. 7.24. The Plaintiff believes the Board proceedings were a sham, and thus the requested information was wrongfully withheld. The Air Force denies these claims, and argues that SSgt. Broome has a substantial privacy in these records that, if released, would violate Exemption 6. Lastly, the Air Force contends that the records are not segregable as they relate entirely to SSgt. Broome; the plaintiff does not argue for partial release of the records. The Court holds that the records of the Board proceedings do fall under Exemption 6, and are excluded from disclosure under FOIA; additionally, the "routine use" language cited by the plaintiff is an extension of FOIA and that claim also fails on the same grounds.

         a. Exemption 6

         This Court determines de novo if any agency has properly withheld information under a FOIA exemption. See Mead Data Cent, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). The agency claiming the exemption must establish that the exemption applies. Fed. Open Mkt. Comm., 443 U.S. at 352. Exemption 6 protects against the disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The Court will first determine if the Board proceeding records are personnel or similar files which qualify for the exemption. Then, the Court will determine if their release would constitute a clearly unwarranted invasion of privacy by determining the substantiality of SSgt. Broome's privacy interest in the records, see Nat'l Ass ...


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