Whitlock v. DOD, No. 20-3246, 2025 WL 721876 (D.D.C. Mar. 6, 2025) (Cobb, J.)

Whitlock v. DOD, No. 20-3246, 2025 WL 721876 (D.D.C. Mar. 6, 2025) (Cobb, J.)

Re:  Requests for records concerning federal corruption and bribery investigation

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

• Litigation Considerations:  The court relates that “[t]he Navy moves for summary judgment, arguing that its searches were adequate, and that it properly withheld records pursuant to FOIA exemptions 5, 6, and 7(C).”  “[Plaintiff] does not dispute these claims.”  “The burden nonetheless remains on the Navy to demonstrate that summary judgment is warranted, and the Court must ‘determine for itself whether the record and any undisputed material facts justify granting summary judgment.’”  “The Court assesses each of the Navy’s arguments in turn and concludes that summary judgment is appropriate.”
   
• Litigation Considerations, Adequacy of Search:  “The Navy is entitled to summary judgment on the question of search adequacy.”  “The Navy has submitted a declaration from . . . an attorney for the U.S. Navy Office of the Judge Advocate General.” “The . . . Declaration explains that ‘[r]ecords of the [Glenn Defense Marine Asia (“GDMA”)] investigation and any disposition of alleged misconduct are maintained in four locations,’ and that after receipt of each of [plaintiff’s] requests, the Navy identified which of those four locations housed responsive records and retrieved any records for review.”  “[Plaintiff] does not dispute these facts.”  “The Court therefore finds that the . . . Declaration provides a ‘reasonably detailed’ description of the agency’s searches . . . and that those searches were ‘reasonably calculated’ to find the records [plaintiff] sought . . . .”
   
• Exemption 5, Deliberative Process Privilege:  “Because the Navy has demonstrated that these records are predecisional and deliberative, and that their disclosure would harm the interest protected by the deliberative process privilege, [the court finds that] the Navy properly withheld these records under Exemption 5 and is entitled to summary judgment on that issue.”  The court relates that “[t]he Navy argues that the following documents are subject to the deliberative process privilege and are protected by Exemption 5:  ‘Emails containing discussions between Naval Criminal Investigative Service (NCIS) counsel, the Navy Office of the General Counsel (OGC), and [the Navy’s Consolidated Disposition Authority (“CDA”)] regarding whether certain individuals should be allowed access to sensitive information . . . ;’ ‘CDA recommendations as to disposition of alleged misconduct, draft dispositions, and references to said drafts, as well as the CDA’s recommendation with respect to disposition of misconduct in [one] case . . . ;’ [and] ‘Deliberation notes of Board of Inquiry members . . . .’”  The court finds that “[t]hese documents are predecisional because they were created antecedent to the Navy’s decisions to grant or deny certain individuals access to GDMA investigation records (vetting records) or to take disciplinary action against certain individuals (disposition records and BOI notes).” “The documents are also deliberative because they represent discussions between agency employees (vetting records) . . . ; CDA recommendations that may or may not have been adopted (disposition records) . . . ; and information recorded by members of the Board of Inquiry as they deliberated (BOI notes) . . . .”  “[Defendant’s] Declaration demonstrates that ‘it is reasonably foreseeable that release of those materials would cause harm to an interest protected by that privilege.’”  “Disclosing vetting records ‘would impair open, frank discussions between NCIS, OGC and the CDA on whether an individual would be granted access to the GDMA investigation.’”
   
• Exemption 7(C):  The court holds that “[t]he Navy is entitled to summary judgment as to its Exemption 7(C) withholdings.”  The court finds that “there is no dispute that the information here was ‘compiled for law enforcement purposes.’”  “‘Because Exemption 7(C)’s privacy language is broader than the comparable language in Exemption 6, [the Court] confine[s] its analysis to Exemption 7(C)’ where the Navy invokes both exemptions.”  The Navy withheld, pursuant to Exemption 7(C), ‘the identity and contact information of (1) individuals below the rank of O6 or GS-15, who NCIS vetted for access to the GDMA investigation or who served as board members or were involved with the administrative BOI proceedings; and (2) subjects below the rank of O6 referred to a BOI, who the Navy retained in naval service.’” “[Defendant’s] Declaration establishes that the privacy interests here are compelling, while the public interest in disclosing this information is relatively weak.”  “First, ‘[d]isclosing the identifying information of individuals vetted for access to sensitive information would necessarily subject those individuals to inquiries or harassment by the media and the general public.’”  “The public, on the other hand, ‘has little interest in knowing the identities of the[se] professionals,’ because their identities ‘do not shed light on the government processes at issue.’”  “Second, disclosing the identities of individuals ‘below the rank of O6 referred to a BOI, who the Navy retained in naval service,’ . . . would ‘constitute a clearly unwarranted invasion of personal privacy in cases where the conduct was merely alleged and not formally adjudicated[]’ . . . .”  “‘Courts have repeatedly recognized the “substantial” privacy interest held by “the targets of law-enforcement investigations in ensuring that their relationship to the investigations remains secret.”’” Additionally, the court finds that “[plaintiff] has not proffered any such public interest.”  “Furthermore, while the public does have an interest ‘in knowing who the public servants are that were involved in the governmental wrongdoing, in order to hold the governors accountable to the governed[]’ . . . that interest is weaker when it comes to low-ranking public officials . . . .”  “Because the Navy has withheld only the identities of ‘subjects below the rank of O6[]’ . . . and because [plaintiff] does not assert any public interest in these individuals’ identities, . . . the Court finds that the privacy interests here outweigh the public interest in disclosure.”
   
• Exemption 6:  The court relates that “[t]he Navy withheld one set of documents pursuant to Exemption 6 only:  ‘some references to uncharged/unproven misconduct[]’ . . . .”  “For much the same reasons articulated above, the Court finds that the private interests implicated here satisfy even Exemption 6’s more rigorous standard and outweigh the public interest in disclosure.”  “Of particular concern, ‘disclosure of the[se individuals’] identities, contact information, and unsubstantiated allegations of misconduct may unfairly harm their public reputation and subject them to harassment and retaliation.’”  “While [defendant’s] Declaration and Vaughn index are not entirely clear on this point, the Court shares [plaintiff’s] understanding that the Navy has withheld only records for personnel below the rank of O6 pursuant to this exemption.”  “The balancing test here therefore overlaps with the Exemption 7(C) analysis described above.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “[defendant’s] Declaration demonstrates that the Navy complied with that requirement for records withheld under FOIA Exemptions 5, 6, and 7(C):  ‘the Navy conducted a line-by-line segregability analysis with respect to each request’ and ‘released all information not covered by an exemption.’” “The Navy did not conduct a segregability analysis with respect to records withheld in full under Exemptions 7(A) and 7(B).”  “Instead, it represents that it withheld those records on a categorical basis.”
   
• Exemption 7(A):  The court relates that “[t]he Navy withheld in full five categories of documents pursuant to Exemptions 7(A) and 7(B): complete evidence packages, summarized evidence packages, interview transcripts, fitness reports, and investigative materials.”  “The Navy also withheld the following records in part, pursuant only to Exemption 7(A): ‘Names and ranks of subjects of investigation, in response to [a FOIA request];’ ‘Court documents pertinent to an individual other than the subject of the board of inquiry . . . ;’ ‘Dates, locations, and certain descriptions of alleged misconduct . . . .’”  “The Navy identified two categories of ‘pending or reasonably anticipated’ enforcement proceedings: the criminal proceedings in the Southern District of California, and ‘the anticipated Navy internal proceedings for any additional individuals that federal prosecutors refer to the Navy . . . including, possibly, the current criminal defendants.’”  “The Court takes judicial notice of the fact that the [related] Southern District of California prosecutions . . . were terminated on May 30, 2024, and none of the defendants have appealed.”  “That leaves ‘the anticipated Navy internal proceedings for any additional individuals that federal prosecutors refer to the Navy.’” “Given the amount of time that has passed since the agency submitted its declaration and the new developments in the relevant criminal prosecutions, it is not entirely clear to the Court whether the CDA’s enforcement work continues.”  “However, even assuming that further CDA enforcement proceedings are ‘reasonably anticipated,’ Defendants’ arguments would still fail because they have not shown how disclosing these records ‘could reasonably be expected to interfere with’ CDA proceedings.”  “The Court turns first to the documents the Navy withheld in full pursuant to Exemption 7(A), and then to the records withheld in part.”
  
  Regarding the documents withheld in full, the court finds that “[t]he Navy has failed to satisfy the third requirement for categorical withholdings because it has not ‘explain[ed] to the court how the release of each category would interfere’ with future CDA enforcement action.”  “Again, the Navy withheld five categories of documents in full – complete evidence packages, summarized evidence packages, interview transcripts, fitness reports, and investigative materials.”  “[Defendant’s] Declaration states generally that ‘[d]ocuments in these categories were comprised of information concerning specific targets, witnesses, and details of alleged misconduct that, if public, would be damaging . . . [to] future CDA actions’; that ‘disclosure would hinder the CDA’s ability to control any further investigation into future referred subjects, enable potential targets to elude detection or suppress or fabricate evidence, or prematurely reveal the strategy of the CDA’s case to those who might not yet know their actions are under scrutiny’; and that ‘release would reveal key insights of the investigators and prosecutors to those under prosecution, which would assuredly hinder the government's ability to hold those individual[s] responsible.’”  “[Defendant’s] declaration . . . does not explain how disclosing each category of documents (evidence packages, or interview transcripts, or fitness reports) would interfere with future CDA enforcement proceedings.”  “It simply lumps all five categories under the same blanket statement – which would seem to defeat the purpose of enumerating those five categories at all.”  “The agency has therefore failed to appropriately justify its Exemption 7(A) categorical withholdings.”
  
  Regarding the documents withheld in part, the court finds that “[t]he Navy fails to defend these partial withholdings in its briefing.”  “[Defendant’s] Declaration adds little:  it states that the Navy ‘applied Exemption 7A to partial withholdings of dates, locations, and specific descriptions of alleged misconduct,’ but does not explain how disclosure of that material in particular would interfere with future CDA enforcement proceedings.”  “[Plaintiff] is therefore entitled to summary judgment as to records withheld in part pursuant to only Exemption 7(A).”
   
• Exemption 7(B):  The court holds that “[b]ecause the Navy has failed to demonstrate that disclosing these documents would, more probably than not, seriously interfere with the fairness of CDA enforcement proceedings, [plaintiff] is entitled to summary judgment as to the Navy’s Exemption 7(B) withholdings.”  “For the reasons discussed [in the context of Exemption 7(A)], the only pending adjudications on which the Navy could rely are future CDA enforcement actions.”  “But even assuming that those proceedings meet the first prong of Exemption 7(B)’s test, the Navy has not met the second prong.”  “[Defendant’s] Declaration states only that ‘[t]he release of the information [withheld pursuant to Exemption 7(B)] will compromise the objectivity . . . of U.S. service members named to a Board of Inquiry or court martial.’”  “But the mere fact that a pool of potential jurors (or here, Board of Inquiry members) might be exposed to publicity about a case – ‘even per[v]asive, adverse publicity’ – does not satisfy Exemption 7(B)’s high standard.”  “And regardless, [defendant’s] Declaration makes no attempt to ‘explain to the court how the release of each category’ of withheld documents would interfere with CDA enforcement proceedings.”  “The Navy's Exemption 7(B) categorical withholdings therefore suffer from the same flaw as its Exemption 7(A) categorical withholdings.”