United States District Court, District of Columbia
C. Lamberth United States District Judge.
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.
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-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
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)).
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).
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).
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
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 ...