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Voice of San Diego v. Naval Crim. Investigative Serv., No. 22-834, 2024 WL 4471146 (S.D. Cal. Oct. 8, 2024) (Robinson, J.)

Date

Voice of San Diego v. Naval Crim. Investigative Serv., No. 22-834, 2024 WL 4471146 (S.D. Cal. Oct. 8, 2024) (Robinson, J.)

Re:  Request for records concerning investigations into deaths of twenty individuals who allegedly died by suicide in 2020 and 2021 while serving in Navy and Marine Corps, in San Diego area

Disposition:  Granting defendants’ renewed motion for summary judgment; denying plaintiffs’ renewed cross-motion for summary judgment

  • Litigation Considerations, Vaughn Index/Declaration:  The court relates that “[i]n its prior Order, the Court denied Defendants’ motion for summary judgment because the initial Vaughn index and supporting declarations were insufficiently detailed to permit Plaintiffs to challenge, or the Court to evaluate, NCIS’s application of the exemptions to the withheld information.”  “Following NCIS’s substantial revisions, the Court finds it appropriate to take NCIS’s Vaughn index at ‘face value,’ as to all but the five records that have been withheld in full.”  “On the whole, the Vaughn Index now contains sufficiently specific, detailed entries for the Court to perform the balancing test under Exemption 7(C).”  “Indeed, with the benefit of the more detailed explanations and the Court’s guidance, the Parties independently have halved the number of items in dispute.”
     
  • Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The court relates that “Defendants have applied the same two exemptions to each of the 56 entries in the Vaughn Index that were either partially redacted or withheld in full:  Exemptions 7(C) and 6.”  The court also notes that, “[h]ere, Defendants have withheld five records entirely ‘[b]ecause the withheld pages consist of exempt images’ and ‘no segregable non-exempt material (e.g., white background space) would be meaningful.’” “As the Court indicated at the hearing, the Court found that in camera review of the five withheld records was appropriate in this case and granted Plaintiffs’ request for in camera review.”  “The Court now has conducted a thorough in camera review and concludes that Defendants properly applied Exemptions 6 and 7(C) to the withheld materials for the reasons set forth below.”

    The court first finds that “[it] previously determined that all the records at issue were compiled for law enforcement purposes – a conclusion Plaintiffs do not challenge.” “Accordingly, the lower threshold for Exemption 7(C) governs.”

    Next, the court relates that “[Defendant] explains that NCIS applied Exemptions 6 and 7(C) to protect the privacy interests of three types of people:  (1) the deceased servicemembers, (2) their surviving next of kin and family members, and (3) third parties.”  “NCIS has asserted these privacy interests with respect to twelve categories of records:  (1) mental health information; (2) medical information; (3) toxicology results; (4) intimate/sexual information; (5) arrest/law enforcement information; (6) substance use information; (7) performance evaluation; (8) disciplinary record information; (9) suicide note/journal entries; (10) images/screenshots; (11) webs searches; and (12) internet use/social media information.” “Many items on the Vaughn Index fall into more than one of these categories.”  “Below, the Court groups these twelve categories into five broader categories, evaluates the privacy interests asserted with respect to the five categories, and balances any nontrivial privacy interests against the public interest in disclosure.”

    For the first category, the court relates that “Defendants have categorized twenty of the items in the Vaughn Index as pertaining to private ‘mental health information,’ which ‘may identify a specific mental health condition or struggle of the deceased servicemember, or may relay specific treatment information directly from their mental health records.’”  “As to these twenty records, Defendants variously assert privacy interests on behalf of the deceased individuals, their families, and third parties.”  “[T]he Court finds that the public interests, minimal or nonexistent as they are, do not outweigh the significant privacy interests here.”  “The redacted medical and mental health information and toxicology results reveal little-to-nothing about the Navy’s activities and conduct.”  “Rather, the information discloses the medical and mental health information of specific, known servicemembers who committed suicide.” “Disclosing the requested information would invade the moderate privacy interests of the deceased servicemembers in their own medical and mental health treatment history and toxicology results; the substantial privacy interests of their surviving family members and next of kin in controlling the dissemination of potentially stigmatizing and embarrassing information about their loved ones’ personal lives; and the substantial privacy interests of third parties whose identities remain discernable and who have substantial interests in not being associated with a law enforcement investigation and in not being contacted by members of the press or the public.”  “Additionally, the Court agrees with Defendants that disclosure of the information at issue could discourage other families and witnesses from cooperating with NCIS’s investigations and even may discourage servicemembers from seeking necessary medical treatment for fear their information might be disclosed to well-meaning investigative journalists postmortem.”  Of note, [t]he Court has no trouble in finding that the deceased servicemembers retain a privacy interest in their medical history records and mental health treatment records that, while diminished, is greater than de minimis.”  “These same privacy interests necessarily extend to summaries of treatment records and interviews with medical personnel describing the treatment a deceased servicemember received.”  “Similarly, the Court finds that the deceased servicemembers retain a privacy interest in their toxicology results, which analyses were conducted in conjunction with final life-saving treatments or their autopsies.”  “Finally, to the extent Plaintiffs are suggesting that the Navy has engaged in misconduct by failing to prevent these suicides, . . . Plaintiffs have failed to offer any evidence to substantiate their vague allusions.”

    Next, the court relates that “Defendants have categorized five of the items in the Vaughn Index as pertaining to ‘intimate/sexual information,’ which ‘includes information about – or conveyed during the course of – a decedent or a third-party witness's intimate romantic or sexual relationship.’”  “Within these five items, Defendants have asserted privacy interests on behalf of the deceased servicemembers, their families, and third parties.”  The court finds that, “[a]s discussed above, the fact of death diminishes, but does not eliminate, an individual’s privacy interests.”  “While the Court is unaware of a Ninth Circuit decision expressly holding that deceased individuals have privacy interests in their own criminal records, the Court is mindful that ‘[t]he mention of an individual’s name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.’”  “Additionally, at least one court has concluded that ‘[d]eceased defendants never convicted of a crime retain a reputational interest in keeping information concerning their prosecutions out of the public eye.’”  “In light of these guiding principles and the absence of arguments or evidence from Plaintiffs that the law enforcement contacts here are already known to the general public, the Court agrees with Defendants that disclosure of these records would implicate measurable privacy interests the decedents retain in their criminal histories and prior encounters with law enforcement.”  Also, “[t]he Court agrees with Defendants that the surviving family members and next of kin have significant privacy interests in the records containing ‘arrest/law enforcement information’ and ‘‘substance use information.’”  “Release of records concerning such stigmatizing and potentially embarrassing topics as the decedents’ encounters with law enforcement and use of an illicit substance foreseeably could result in both additional anguish and unwanted attention for the individual’s surviving family members.” Additionally, the court finds that, “[u]ndoubtedly, records revealing third parties’ knowledge of, participation in, or desire to participate in using illegal or controlled substances implicates substantial privacy concerns.”  Regarding the public interest, the court finds that “Plaintiffs have not shown the requisite ‘nexus’ between the requested information and the public interest they claim the information will advance.”  “Enabling the public to trawl through a decedent’s past to offer their own speculation as to why a decedent committed suicide is not a cognizable public interest under FOIA.”  “[T]he Court would find that the moderate privacy interests of the decedents and the significant privacy interests of their families and of third parties in the highly personal information linked to specific decedents far outweigh any public interest in ‘understanding’ the warning signs these specific decedents exhibited.”  “In sum, the Court finds that the deceased individuals, their families, and the implicated third parties have nontrivial privacy interests in the records at issue that are not outweighed by the public interests Plaintiffs have identified.”

    Regarding “a ‘performance evaluation’ that ‘consists of information from the decedent’s military performance evaluation,’” the court again finds that “the fact of death diminishes, but does not eliminate, an individual’s privacy interests.”  “Because comments evaluating an individual’s performance and descriptions of the way an individual was professionally disciplined are matters that individuals – dead or alive – ‘ordinarily would not wish to make known about himself or herself,’ the Court finds that the deceased servicemembers . . . retain nontrivial privacy interests in their performance evaluation and personnel records that are more than de minimis.”  “As above, neither the Court nor the Parties have identified any authorities addressing whether surviving family members have privacy interests in records disclosing a loved one’s performance evaluation or military disciplinary history.” “Just as the Court found that the family members had privacy interests in records containing law enforcement information and substance use information . . . , so too, the Court finds that surviving family members and next of kin have nontrivial privacy interests in the performance evaluation and disciplinary records of their deceased loved ones.”  “Releasing records concerning stigmatizing and potentially embarrassing topics, like the decedent’s subpar performance review or disciplinary actions taken against the decedent, foreseeably could result in both additional anguish and unwanted attention for the decedents’ surviving family members.”  “Here, the Court again finds that Plaintiffs have failed to show the requisite ‘nexus’ between the requested information and the public interests they claim the information will advance.”  “The Court and Defendants are left to speculate as to how knowing that the decedent received an average score of, for example, 3 out of 5 reveals any interaction between the decedent’s military service and his mental health or otherwise discloses a ‘warning sign.’”  “The public’s interest in understanding the circumstances surrounding the decedents’ deaths has been adequately served by the disclosures that have been made.”

    Regarding “‘suicide note/journal entries’ that ‘consist of the decedent’s suicide note or journal entries,’” “[t]he Court has no trouble in concluding that the decedents and their surviving family members have the strongest privacy interests in both the suicide note . . .  and the journal entries . . . .”  “The ‘requested suicide note would intrude not only into the memory of a deceased loved one, but more specifically into the intimate and private relationship’ between the decedent and her family members.”  “Similarly, the writings of a decedent ‘in the days leading up to her suicide’ are ‘likely to contain personal information,’ . . . like ‘entries related to possible suicidal ideations’ and ‘notes apologizing to family members[]’ . . . .”  “The decedent and their families have the ‘strongest personal-privacy interest’ in such matters.” “Third parties also have strong privacy interests in the journal entries describing their relationship with the decedent.” “Disclosure of these entries reasonably could allow their identification within their smaller communities, subjecting them to ‘unwarranted pain, embarrassment, or stigma,’ . . . either from the content of the comments or the connection to the suicide investigation.”  “The Court recognizes that [certain] journal entries . . . span ‘a period of a few months’ and consist of more than just words of farewell.”  “While the strongest privacy interests inhere in the suicide note and goodbye notes, the other journal entries still reveal the decedent’s private thoughts and opinions on a variety of topics, including her religious beliefs, personal struggles, relationships with others, and workplace issues.”  “The decedent and her surviving family members retain significant interests in these private reflections, as do the third parties about whom the decedent has written.”  “Plaintiffs speculate that the suicide note and journal entries would reveal the ‘decedent’s experience in the military and how that experience may have contributed to the person’s death.’”  “Following the Court’s in camera review, the Court declines to confirm or deny Plaintiffs’ suspicions but notes that even if the Court were to confirm such suspicions, a ‘glimpse into the general level of pressure that came with’ the decedent’s military service ‘would not “contribut[e] significantly to public understanding of the operations or activities” of the Navy[]’ . . . .”  “As above, the Court concludes that enabling the public to comb through the decedent’s private reflections and farewell notes in search of ‘warning signs’ is not a cognizable public interest under FOIA.”

    Finally, regarding “a ‘web search’ that ‘consists of quotations from the decedent’s private internet searches,” “the Court finds that the decedents and their families retain privacy interests in the decedents’ private web searches and the URLs of specific pages of websites accessed . . . .”  “Although the websites accessed, obviously, are public, the fact that the decedent searched specific terms or accessed a specific web page is not, and never was, public information.”  “As with the medical information, law enforcement information, and substance use information, decedents retain measurable interests in preventing disclosure of potentially stigmatizing and embarrassing matters that they ‘ordinarily would not wish to make known about himself or herself,’ such as illicit drug use.”  “For much the same reasons, the Court finds that measurable privacy interests inhere in the private messages that a decedent exchanged with his former teacher on Snapchat.”  “Such messages were not publicly available . . . , and further, the third party who sent and received messages, as well as the third parties merely mentioned in those messages, have the strongest privacy interests in avoiding disclosure of their private communications with the decedent and in avoiding being associated publicly with a law enforcement investigation.”  “While the decedents’ social media posts and social media account information, which were publicly available at one time, present a closer question, the Court finds that the decedents retain nontrivial privacy interests in such information, as do their families.”  “[T]he decedents did not voluntarily thrust themselves into the spotlight by publicizing the fact of their cooperation with law enforcement or by otherwise involving themselves publicly in an ongoing investigation.”  “The social media information at issue here is only in the Navy’s possession because the decedents committed suicide while in the federal government’s employ.”  “Further, although the issue of the rising incidence of suicide in the military is receiving considerable publicity, as Plaintiffs highlighted in their briefing, Plaintiffs have not shown that the specific information disclosed in the social media posts and through the social media account information has received the same level of attention.”  The court also notes that “here, Defendants have redacted the specific social media usernames and handles that would link the decedents to those online profiles but have disclosed the websites through which the decedents created an account.” “This limited disclosure appears to strike the proper balance.”  Regarding the public interest, the court finds that, “[f]irst, the Navy collected the records regarding the decedents’ web searches and social media activities during the investigations, so disclosure of the records will not reveal what the Navy knew before the decedents committed suicide.” “Plaintiffs do not explain how revealing one decedent’s mindset or exposing ‘warning signs’ in one decedent’s public comments contributes to the public’s understanding of what the Navy is doing to address the incidence of suicide within its ranks or how the Navy investigates those suicides.”  “No more do Plaintiffs attempt to explain how disclosure of the decedents’ personal social media usernames and handles will shed any light on the Navy’s operations or activities.”  “Indeed, the Court can conceive of no use this information would serve except to enable Plaintiffs and the public to locate the accounts at issue and to scour their content.”  “As the Court previously explained, ‘courts have been skeptical of recognizing a public interest in this “derivative” use of information, which is indirect and speculative.’”  “In sum, as with all of the other categories of information Plaintiffs have requested, they have not shown a significant public interest in disclosure of the decedents’ social media account information, private internet messages, or social media posts.”
Court Decision Topic(s)
District Court opinions
Exemption 6
Exemption 7(C)
Exemption 7, Threshold
Litigation Considerations, Vaughn Index/Declarations
Updated November 22, 2024