Cizek v. DOD, No. 23-0023, 2024 WL 4332111 (D.D.C. Sept. 27, 2024) (Berman Jackson, J.)

Cizek v. DOD, No. 23-0023, 2024 WL 4332111 (D.D.C. Sept. 27, 2024) (Berman Jackson, J.)

Re:  Request for memorandum concerning plaintiff’s claims that he had been subject of reprisal for protected whistleblower communications

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

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court relates that “Defendant invoked the deliberative process privilege with respect to ‘sections 5 through 8 [of the Memorandum, which] contain the investigator’s personal analysis, opinions, and review of the Air Force’s Investigative Plan, their Report of Investigation (ROI), and the subject interviews the Air Force conducted.’”  “The Court finds that the information withheld in sections five through eight falls within the scope of the deliberative process privilege.”  “The content of the Memorandum is clearly predecisional, as the Memorandum was generated before a decision was made on plaintiff’s request for reconsideration of the ROI, and it conveyed findings and recommendations to [Whistleblower Reprisal Investigations Directorate] management, the group responsible for making a final determination.”  “The information withheld in these sections also satisfies the deliberative prong because the agency’s declarant has shown, and that analysis was supported by in camera review, that the Memorandum was generated as part of an internal decision-making process, and that the redacted material is not purely factual, but ‘recommendatory in nature,’ offering ‘the personal opinions of the [investigator]’ regarding how leadership should make a final decision with respect to plaintiff’s request.”
  
  However, the court finds that “[t]here is nothing in the record of this particular case to support a finding that release of the observations section of the Memorandum would chill OIG investigators from being candid in their analyses and recommendations in the future.”  “To the contrary, since it is already publicly known from the investigator himself that his recommendation fell on deaf ears, the withholding of the detailed reasoning that formed the basis for that recommendation might have more of a chilling effect on future investigations than the release of the information would.”  “In sum, the onus is on the agency to explain, with particularity, why disclosure would ‘actually impede’ future deliberations.”  “Because the agency has not done so, it must produce the redacted portions of sections 5, 6, 7, and 8 of the Memorandum, except to the extent that names and personally identifying information of witnesses were withheld under Exemptions 6 and 7(C) . . . .”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The court notes that “[t]he agency has also withheld information contained in responsive records on personal privacy grounds pursuant to FOIA Exemptions 7(C) and 6.”  “Defendant invoked Exemptions 6 and 7(C) to withhold ‘third parties’ names, particular testimony, and identifying personal knowledge of plaintiff’ in sections 7 and 8 of the Memorandum.”  “Because defendant withheld personal information from an OIG Memorandum that was ‘compiled in conjunction with its performance of its audit and investigative functions,’ . . . the Court agrees that the Memorandum was compiled for law enforcement purposes under Exe[m]ption 7(C).”  “The OIG was not performing general ‘surveillance or oversight of the performance of duties of its employees,’ but rather conducting ‘an inquiry as to an identifiable possible violation of law,’ i.e., retaliation against a whistleblower.”  “Even if the disclosure of the Memorandum in its entirety would serve this public interest, this interest does not require revealing the names or other specific pieces of information – such as duty assignments at a particular time – that would serve to reveal the identities of DoD military personnel at or below the rank of colonel who provided testimony in this case.”  “It is well-established that lower-level government employees in general have a privacy interest in their identities.”  “And it is generally accepted in this circuit that the public interest in the identities of low-level employees does not usually outweigh the individuals’ privacy rights, as they are not typically decision-makers such that disclosure of their names would shed light on ‘what the government does.’”  “Under these circumstances, the Court finds that the plaintiff has not identified a public interest that outweighs the privacy interests supporting the limited redactions of personally identifying information in this case.”