Savage v. Dep't of the Navy, No. 19-2983, 2021 WL 4078669 (D.D.C. Sept. 8, 2021) (Berman Jackson, J.)

Savage v. Dep't of the Navy, No. 19-2983, 2021 WL 4078669 (D.D.C. Sept. 8, 2021) (Berman Jackson, J.)

Re:  Request for report and accompanying documents concerning plaintiff's Equal Opportunity complaint

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

• Exemption 5, Deliberative Process Privilege & Other Considerations:  First, the court finds that "the record supports a finding that the investigating officer's Report was both deliberative and predecisional."  "The Report was generated in advance of the Vice Admiral's Final Endorsement, and it included the author's findings and recommendations."  "The fact that some of the investigating officer's proposed findings were accepted, while others were modified or rejected, reveals that the Report did not 'communicate[ ] a policy on which the agency ha[d] settled.'"  "Instead, it was part of the process through which the agency debated, internally, how to respond to plaintiff's allegations of discrimination, and it was therefore deliberative, an example of the 'give-and-take of the consultative process.'"
  
  However, regarding defendant's foreseeable harm showing, the court also finds that "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 portions of the report identified in the Vaughn index as 'Findings of fact and opinions from the Investigating Officer which were not adopted by the Final Endorser' which were redacted on the grounds that they were subject to the deliberative process privilege."  The court explains that defendant "does not explain why release of the particular information in this case would chill others within the Navy from being candid in the future."
   
• Exemption 7, Threshold:  The court finds that "[i]nvestigations into racial discrimination – especially when conducted in response to specific complaints by a particular individual and identifying particular perpetrators – have a law enforcement purpose."  The court also finds that "the agency was not performing general 'surveillance or oversight of the performance of duties of its employees,' but rather conducting a tailored 'investigation[ ] which focus[ed] directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.'"
   
• Exemption 7(C):  The court finds that "[t]he privacy interest in this case is clear:  individuals were named in the report in connection with allegations of racial bias and harassment."  "Given plaintiff’s efforts to use his own case to draw public attention to the important issue of discrimination in the military, the investigation has received coverage in the military press and elsewhere."  The court relates that "Plaintiff argues that the individual privacy interests are outweighed by the public interest in disseminating information regarding 'racial discrimination and the abuse of authority by public officials.'"  "He asserts that 'the public "may have an interest in knowing that a government investigation itself is comprehensive, that the report of an investigation released publicly is accurate, that any disciplinary measures imposed are adequate, and that those who are accountable are dealt with an appropriate manner."'"  "But [the court finds that] those significant interests can be fulfilled without revealing the names of every individual involved in this case."  "Therefore, while the Court finds that there is a legitimate public interest in exploring whether the Navy mishandled allegations of bias, it does not outweigh the privacy interests supporting the limited redactions of personally identifying information in this case."  "Revealing the personally identifying information at issue is not necessary to advance the public interest."