Charles v. Office of the Armed Forces Med. Examiner, No. 09-1999, 2013 WL 1224890 (D.D.C. Mar. 27, 2013) (Roberts, J.)

Re: Request for records "related to whether any service member's deaths may have resulted from bullet wounds in torso areas that are usually covered by body armor" Disposition: Granting defendant's motion with regard to applicability of Exemption 5 to preliminary autopsy reports, but ordering defendant to provide more information regarding the segregability of factual material within the reports; denying defendant's motion for summary judgment with regard to application of Exemption 6 to non-identifying final autopsy reports and in-theater medical records

• Exemption 5 & Segregability:  The court holds that the preliminary autopsy reports are properly protected under Exemption 5 and the deliberative process privilege.  The court finds that "[t]he defendants' evidence shows that the preliminary autopsy reports are drafts of the final autopsy reports."  Noting that the plaintiff has not offered any contrary evidence, the court determines that "disclosure of the preliminary reports would inhibit candor in future reports and would disclose the agency's decisionmaking process."  However, the court is not persuaded that no reasonably segregable information could be released. The court remarks that defendants did not provide evidence to support their contention that "comparison of a preliminary autopsy report . . . and final autopsy report would reveal the agency's decisionmaking process."

• Exemption 6:  Plaintiff did not seek any personally identifying information contained in the requested autopsy reports.  The court finds and plaintiff does not dispute, that the final autopsy reports meet the threshold requirement of Exemption 6 in that that they are 'similar files' that apply to a particular individual.  However, the court finds that the redacted autopsy reports will not invade the personal privacy of the survivors.  In so ruling, the court denied the defendant's argument that the relatives of the deceased soldiers have a privacy right similar to that asserted in Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157 (2004).  The court distinguishes Favish, noting that it applied to "death-scene images," and that it involved the applicability of Exemption 7(C), not Exemption 6.  As the court notes, "''Exemption 7(C) is more protective of privacy than Exemption 6', and thus establishes a lower bar for withholding material.'"  The court also notes that "defendants have not demonstrated that Favish should be applied in this different context.  For instance, the defendants have not shown that family members would be able to discern which redacted records relate to their deceased family member, unlike how such identification was possible with the photographs at issue in Favish."  Finally, the court indicates that even if the individuals could be identified, "the defendants have not demonstrated that the information in the records would 'shock the sensibilities of surviving kin.'"  The court goes on to note that "there is a significant public interest in disclosure" because "the information will advance the public's right to be informed about what their government is doing with respect to body armor issued to service members." Accordingly, finding no significant privacy interest, the court states that Exemption 6 does not justify withholding the final autopsy reports and in-theater medical records.