Becker v. Dep’t of the Navy, No. 24-152, 2026 WL 2350079 (D.D.C. Aug. 13, 2026) (Boasberg, C.J.)

Becker v. Dep’t of the Navy, No. 24-152, 2026 WL 2350079 (D.D.C. Aug. 13, 2026) (Boasberg, C.J.)

Re: Request for records concerning plaintiff’s international homicide case

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Waiver and Discretionary Disclosure, Waiver:  “The Court evaluates each [application of Exemption 5] in turn but first addresses [plaintiff’s] overarching argument as to Exemption 5 – ‘that this Court should preclude the Navy’s use of [the exemption] in instances where [he] already has an unredacted copy of the document’ (presumably through discovery in his criminal case).”  “The mere fact, however, that certain records may already be in his possession does not answer the antecedent question of whether Defendant has properly invoked the exemption.”  “The Court therefore declines Plaintiff’s invitation.”
   
• Exemption 5, Deliberative Process Privilege, Attorney Work Product Privilege, Attorney-Client Privilege:  First, the court relates that “[d]efendant invokes [the deliberative process] privilege for all 126 records – 79 withheld in full and 47 withheld in part.”  “Those records consist of ‘memoranda, a country law study of Belgium, outlines of the incident and the investigation into the death of [plaintiff’s spouse], letters regarding U.S. jurisdiction in Plaintiff’s criminal case, attorney summaries of facts, legal issues, and evidence, a summary of foreign criminal jurisdiction process comparison under various Status of Forces Agreements (SOFAs), a timeline of relevant events in Plaintiff’s criminal case, email correspondence, information papers, a printout of tasking regarding a Navy response to a congressional inquiry related to jurisdictional issues in Plaintiff’s criminal case, attorney working notes, a draft internal public affairs document, and draft summaries, timelines, and comparisons of jurisdictional processes prescribed by different SOFAs.’”  “As Defendant explains, the decision underlying those withholdings was whether the Navy would assert ‘[j]urisdiction in Plaintiff’s criminal case.’”  “The Court’s in camera review confirms that all 126 records indeed relate to that decision.”  “Whether they all check the ‘predecisional’ and ‘deliberative’ boxes is a closer question.”  “On the predecisional score, Defendant represents that its ‘final [jurisdictional] decision [was] made on January 2, 2018.’”  “Yet the Court’s in camera review revealed that 27 records bear dates after January 2 or otherwise contain retrospective language placing their creation after the Navy’s final determination.”  “Any such records that clearly post-date or provide a post hoc account of the decision cannot, by definition, be predecisional.”  “Defendant therefore does not prevail as to those 27 records or select pages therein.” “Plaintiff, for his part, points to an absence of dates in the Vaughn Index for ten records.”  “Dates are not, however, the only way to establish chronology.” “Indeed, eight other records lack dates, but their consultative language indicates that they predate the decision.” “Up next is whether those 99 are ‘deliberative’ in that they contain ‘recommendations or . . . opinions on legal or policy matters.’” “The privilege accordingly protects ‘recommendations, draft documents, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.’”  “Here, Defendant avers that the records ‘constitute nonfinal opinions and recommendations of attorneys to agency principals in preparation of the decision to assert U.S. [j]urisdiction in Plaintiff’s criminal case.’”  “The Court’s in camera review corroborates that characterization:  all 99 records broadly consist of individual officials’ and departments’ interpretations of DoD policy, recommendations as to whether the Navy should exercise jurisdiction in Plaintiff’s case, and the analyses and considerations informing those recommendations.”  “Still, even where the deliberative-process privilege is met, it may not attach ‘where there is reason to believe the documents sought may shed light on government misconduct.’”  “[Plaintiff] invokes that exception here, arguing that ‘all documents related to’ the Navy’s jurisdictional decision ‘should be released as they are potential evidence of government misconduct.’”  “His theory of misconduct?”  “That Navy officials willfully ignored his constitutional rights by ceding jurisdiction to Belgium.”  “Without wading too far into what the misconduct exception requires, the issue for Plaintiff here is that the records do not evidence willful ignorance of his rights.”  “The Court’s conclusion that the deliberative-process privilege applies to 99 of the 126 records therefore remains.”  “The journey for those 99 would ordinarily stop here, as the FOIA inquiry typically ends once any single exemption is established.”  “But the Court proceeds on a somewhat longer route:  it next considers the other bases for withholding as to all 126 records because the necessity of segregation (discussed below in Section III.C) depends in part on the applicable exemptions.”
  
  “Defendant’s Vaughn Index . . . brand[s] . . . 34 records as attorney work product . . . .”  “As an initial note, certain records appear to have been decoupled from related materials, obscuring the involvement of agency lawyers in those records.”  “Having pieced them together through its in camera review, however, the Court is satisfied that all 34 were prepared by or for counsel.”  “Now, were these 34 prepared ‘because of the prospect of litigation’?”  “To that end, Defendant maintains that the records were prepared ‘in anticipation or furtherance of the criminal prosecution of Plaintiff.’”  “To be sure, the Court found that all the records more precisely concern the antecedent question of whether Defendant would exercise jurisdiction over [plaintiff].” “While the records do not suggest that agency officials anticipated litigation over that jurisdictional decision itself, DoD officials were undoubtedly contemplating jurisdiction with the eventuality of [plaintiff’s] criminal prosecution in mind – be it in the United States or Belgium.”  “That is sufficient to pass the ‘because of’ test here.”  “The attorney-work-product privilege accordingly applies to all 34 records, including 14 of the 27 records not protected under deliberative process . . . .”  “At this point, 13 records therefore remain unshielded.”
  
  “The Navy invokes the privilege for 100 records, largely the same mix of ‘memoranda notes, email correspondence, executive summaries, and timelines’ discussed above.”  “It explains that those records were written by agency ‘attorneys and judge advocates’ and ‘include legal opinions and recommendations to military, departmental, service, and secretariat leadership in anticipation and furtherance’ of [plaintiff’s] prosecution.”  “The Court has little difficulty concluding that the records it reviewed – principally emails exchanged between attorneys and memoranda shared by judge advocates with senior Navy personnel – were developed with an expectation of confidentiality.”  “Defendant stumbles, however, on the second requirement:  that they remained confidential.”  “Nowhere does the Navy represent that the confidentiality of those communications has been preserved.”  “That alone renders its burden unsatisfied.”  “The Court thus cannot assure itself, on a record-by-record basis, what information has and has not remained confidential.”  “The privilege, then, is unavailable to Defendant.”  “In sum, Exemption 5 protects 113 of the 126 disputed records – under the deliberative-process and/or attorney-work-product privileges.”
  
  “[Plaintiff] takes one final bite at the apple, maintaining that the public interest favors disclosure of all records.”  “As Defendant correctly observes, however, the public-interest doctrine upon which he relies applies only to Exemptions 6 and 7(C).”
   
• Exemption 7(E): The court relates that “[t]he threshold inquiry is whether the records were ‘compiled for [a] law enforcement purpose[ ].’”  “Defendant explains that the records here were ‘compiled to document the criminal investigation and prosecution of an alleged extraterritorial crime by a service member.’”  “That plainly constitutes a law-enforcement purpose and thus clears the threshold.” “The second requirement is that the records reveal law-enforcement techniques, procedures, or guidelines not generally known to the public.”  “The Navy proffers three theories as to why the records here implicate techniques, procedures, and guidelines.”  “First, the records contain information such as the ‘location’ of the crime in Plaintiff’s case, ‘the other jurisdiction involved, the state of the investigation, and the ability of [Defendant] to effectively prosecute.’”  “Second, jurisdictional decisionmaking itself constitutes a law-enforcement procedure.”  “Third, the withholdings implicate Defendant's ‘allocation of resources for law-enforcement investigations.’”  “Plaintiff does not challenge these assertions, reserving his objections for the public-knowledge and circumvention requirements (discussed below).”  “But those requirements come into play only if it is established that the records indeed implicate techniques, procedures, or guidelines in the first instance, so the Court must address that threshold issue.”  “Defendant’s theories do not quite make that case.”  “As to the first, the purported information – location, jurisdictions involved, state of the investigation, etc. – is described at too high a level of generality to fit, without more, the operational mold discussed above.”  “The second theory strays even further:  the bare act of deciding which sovereign will exercise criminal jurisdiction is not a tactical measure.”  “And although the Second Circuit has understood ‘guidelines’ to encompass ‘resource allocation,’ . . . Defendant’s description sheds no light on what those resources are.”  “Having now completed its in camera review, however, the Court is satisfied that nine of the remaining 13 records . . . implicate law-enforcement techniques and procedures.”  “The records contain information regarding specific investigative steps taken by Belgium and its foreign-relations interactions with the Navy.”  “Although this may not fall squarely within the box of paradigmatic tools and methodologies discussed in the cases above, the Court finds it sufficient here – particularly where that material implicates national-security considerations.”  “Four records . . . , however, do not clear the bar, as they lack discussion of Belgium’s investigations or dealings with the Navy.”  “The Court will thus order Defendant to release those four to Plaintiff.”
  
  “Plaintiff argues that ‘the rationale [Defendant] used to attempt to cede jurisdiction is already in the public record,’ citing media reporting about his case.”  “That argument, however, confuses public knowledge of [plaintiff’s] prosecution with knowledge regarding the investigative techniques and procedures employed by Defendant.”  “Exemption 7(E) contemplates the latter.”  “Having reviewed the records, the Court is satisfied that the particulars of Defendant’s decisionmaking reflected in the nine records are not generally known to the public.”
  
  Regarding the final requirement, “that ‘disclosure ‘could reasonably be expected to risk circumvention of the law,’” the court finds that “[d]efendant here explains that disclosure would ‘enable criminals to predict and influence’ its jurisdictional decisionmaking – e.g., by selectively disclosing information to investigators or meddling with witnesses.”  “Plaintiff refutes this assertion by stating that ‘there is no Navy decision-making to influence’ because, in his rendering, ‘it is the position and policy of the United States to not cede jurisdiction over Service members to a foreign country when the United States has primary jurisdiction.’” “[Plaintiff’s] interpretation of Navy policy, however, does not have any bearing on this inquiry and, in any event, the Court is satisfied that Defendant’s assertions ‘logically’ demonstrate how disclosure of the withheld information could create such a risk, thereby clearing the ‘relatively low’ hurdle.”
  
  “[Plaintiff] takes one final bite at the apple, maintaining that the public interest favors disclosure of all records.”  “As Defendant correctly observes, however, the public-interest doctrine upon which he relies applies only to Exemptions 6 and 7(C).”
   
• Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  The court finds that, “[t]o be sure, the Navy’s rationale is wanting in some respects.”  “Its reliance on a single explanation for all 126 records approximates the ‘boilerplate’ rationale our Circuit cautions against.”  “On the other hand, it is a more concrete account of foreseeable harm than the ‘wholly generalized,’ . . . assertions rejected by courts in other cases.”  “Here, by contrast, Defendant zeroes in on jurisdictional determinations specifically, names certain international agreements implicated (i.e., SOFAs), and explains why disclosure would impair agency dialogue.”  “Courts in this district have, moreover, recognized that the degree of explanation necessary to establish foreseeable harm exists on something of a spectrum.”  “On one end, where the sensitivity of the deliberations is obvious, ‘a simple statement illustrating why the privilege applies and identifying the harm likely to result from release may be enough.’”  “[U]pon its review, the Court finds that disclosure of detailed jurisdictional deliberations could plausibly yield the harms Defendant cites.”  “This same logic satisfies its burden as to the 14 records for which the attorney-work-product privilege solely applies.”  “As to the foreseeability of harm for Exemption 7(E), Defendant re-asserts the same risks here as it does for the circumvention-of-law requirement.”  “That explanation passes muster, too, for the reasons explained above.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court finds that, “[f]irst, Defendant is correct that records protected as attorney work product do not require segregation, since ‘the work-product doctrine simply does not distinguish between factual and deliberative material.’”  “Next, for the 88 generally protected records that remain, the Court confirms Defendant’s view that non-substantive information falls outside of the segregability requirement.”  “Any such items here – including the ‘TAB C’ heading [plaintiff] identifies, other signposting, email greetings, and the like – need not undergo segregation analysis.” “Defendant’s contention that it conducted a ‘careful line-by-line analysis,’ however, does not carry the day.” “To be sure, agencies enjoy a presumption that their segregability obligations have been satisfied, and courts often accept declarations that records were reviewed ‘line-by-line.’”  “The Court may, however, undertake its own in camera review out of ‘an abundance of caution.’”  “It does so here.”  “[T]he Court . . . concludes that certain statements of fact contained in the remaining 88 records are reasonably segregable.”  “The Court accordingly orders that Defendant release any (1) factual background concerning [plaintiff’s] case that was disclosed during his criminal proceedings or is otherwise public information; (2) quotations and non-interpretive descriptions of DoD or NATO policy; and (3) non-interpretive descriptions of caselaw.”