WP Co. LLC v. DOD, No. 21-01025, 2022 WL 4119769 (D.D.C. Sept. 9, 2022) (Mehta, J.)

WP Co. LLC v. DOD, No. 21-01025, 2022 WL 4119769 (D.D.C. Sept. 9, 2022) (Mehta, J.)

Re:  Request for seven years of records mentioning applications for foreign employment of retired military personnel, including all approvals and denials of such requests

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

• Exemption 6:  “The court finds Defendants’ rationales with respect to applicants’ privacy interests unconvincing when confronted with the public’s strong interest in disclosure.”  “Thus, the balancing test weighs in favor of disclosure of the withheld names, pay information, and security clearances.”  The court relates that “Defendants’ rationale for drawing the identity-disclosure line at the O-6/O-7 rank, at least in this context, is unconvincing.”  “Underlying the distinction is the view that General and Flag Officers, because they must be appointed and confirmed, ‘arguably have opened themselves up to increased public scrutiny,’ whereas lower-ranked personnel are not ‘public figures by virtue of their military service.’”  The court finds that “[a]dmittedly, retired personnel have some privacy interest in the non-disclosure of their identities.”  “The privacy interest of lower-level retired personnel may be more substantial than someone just below the level of General and Flag Officers.”  “The privacy interests of someone so situated cannot be deemed categorically greater than someone of higher rank just because the latter category of officers requires presidential nomination and Senate confirmation.”  “These scenarios do not lend themselves to categorical analyses.”  “And then there is the public interest.”  “The court agrees with [plaintiff] that there is a strong public interest in knowing what former military personnel have been granted constitutional approval to work for and be compensated by a foreign government.”  “Defendants also apparently agree that there is a strong public interest, for in their view that interest tipped in favor of disclosure for more senior retired members.”  “Given that acknowledgement, the court cannot permit a categorical approach to withholding the names of applicants ranked O-6 or lower.”  “The privacy interests of all persons in that category does not decidedly tip in favor of non-disclosure, given the strength of the public interest in disclosure.”
  
  “The court also finds that Defendants have struck an improper balance under Exemption 6 by withholding all pay information of applicants ranked O-7 or higher.”  The court relates that “[plaintiff] . . . argue[s] . . . that such privacy interests are diminished because retired senior military officials are subject to recall and had to make public financial disclosures when they were active, . . . but the court need not decide whether those factors weaken the privacy interest.”  “When considering the public interest, it is apparent that disclosure would not result in a ‘clearly unwarranted invasion of personal privacy.’”  “A public interest exists where the public ‘can more easily determine’ how an agency carries out its statutory mandate.”  “That standard is met here.”  “First, disclosing compensation information would permit the public to understand to what extent the amount of income from a foreign government factors into the approval process.”  “The court also agrees with [plaintiff] that ‘the public has a compelling interest in understanding the extent of influence that foreign powers may have over America’s former military leaders.’”  “The strength of the public interest in disclosure is clear, and it outweighs an applicant’s privacy interest in their foreign-employment income.”  The court holds that “DOD and the State Department therefore shall release the income information it has withheld from the released records.”
  
  “The court is likewise not convinced that information about security-clearance levels, if revealed, would constitute a ‘clearly unwarranted invasion of privacy.’”  “The applicant’s privacy interest in such information is not ‘particularly strong.’”  “First, it is reasonable to assume that security clearances are generally correlated with rank, such that disclosing that a retired General or Flag Officer has a Top Secret security clearance would hardly invade the applicant’s personal privacy interest.”  “Second, the information is not inherently personal but is a status attendant to performance of one’s official duties.”  “Clearance information therefore only minimally implicates a ‘personal privacy’ interest.”  “And, third, it is difficult to conceive of how disclosure of one's security-clearance level would embarrass or invite unwarranted intrusions.”  “On the other side of the balance, the public has an interest in knowing the extent to which an applicant's security clearance is a factor in approving or rejecting foreign employment.”  “As a result, the court will order the release of withheld security clearances information.”
   
• Exemption 7(C):  The court relates that “[t]he Air Force invoked Exemption 7(C) to withhold the name and rank of individuals contained in a report prepared in connection with an investigation against a military officer alleged to have violated a federal statute.”  “It is unclear to the court how this record relates to [plaintiff’s] request for foreign-employment-application information.”  “In any event, [plaintiff] does not specifically contest this withholding.”  “And the appearance of a person’s name in a law-enforcement record carries heightened privacy interests if the person has not been publicly identified.”  “The court therefore affirms the withholding of information pursuant to Exemption 7(C).”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “the parties contest the Army’s and Navy’s withholding of certain internal memoranda pertaining to applications for foreign employment.”  “The 127 pages withheld by the Army were prepared by an Attorney-Advisor and were directed to the Army Personnel Records Division.”  “The Army memoranda address the ‘legal sufficiency of [foreign government employment] requests for the purpose of the decision-maker deciding whether or not to approve the application.’”  “The Navy memoranda are similar.”  “They were drafted by Judge Advocates to advise the Commandant of the Marine Corps ‘as to whether it is legally advisable to support the applications for foreign government employment.’”  “The branches rely on Exemption 5 for their withholdings, asserting that they are covered by both the attorney-client and deliberative process privileges.”  The court further relates that “[plaintiff] contends that the branches have failed to show that the memoranda are confidential and based on information provided by the client.”  “Because the court agrees with the latter contention, it need not reach the former.”  The court finds that “the legal memoranda withheld by the Army and the Navy are based upon information provided by the applicants, not the military branch ‘client.’”  “The information submitted by retired servicemembers necessarily comes from third parties ‘seek[ing] a ruling from the [a]gency.’”  “Defendants offer no factual support for the assertion that the memoranda contain ‘facts originating from agency personnel.’”  “The court therefore rejects Defendants’ invocation of Exemption 5 to withhold the entirety of the legal memoranda at issue.”  “They are not protected in full by the attorney-client privilege.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “[plaintiff] concedes that the deliberative process privilege applies to the withheld memoranda.”  “Its only dispute is the extent to which factual information held from the memoranda is segregable.”  The court finds that “Defendants’ efforts to provide a ‘detailed justification’ fall short.”  “Defendants’ declarants suggest that facts within the memoranda can be segregated.”  “Yet the declarants still say that the ‘factual references . . . are inextricably intertwined with legal analysis and deliberative, pre-decisional discussion.’”  “But they do not explain why that is so.”  “Indeed, neither declarant says that they conducted the usual ‘line-by-line review’ to determine whether any factual material can be segregated.”  “The court therefore orders Defendants to release any reasonably segregable factual material from the memoranda.”
   
• Litigation Considerations, Adequacy of Search:  “The court finds the parties’ dispute [regarding the adequacy of the search] not yet ripe for review.”  “The court will permit the State Department to complete its production before assessing the adequacy of its search.”