E.G. v. Dep't of the Air Force
E.G. v. Dep't of the Air Force
Opinion of the Court
Plaintiff E.G. filed this action against the defendant U.S. Department of the Air Force ("Air Force") under the Freedom of Information Act ("FOIA"),
I. BACKGROUND
The plaintiff testified in the Board proceedings from June 23 to the 25, 2015, which were held to determine if SSgt. Broome should be retained in the Air Force. The Board decided to retain SSgt. Broome. The plaintiff filed a FOIA request with the Air Force shortly thereafter, seeking all documents pertaining to the Board proceedings. The Air Force granted the plaintiff's request in part, releasing only a copy of her testimony at the Board proceedings and denying the remainder of her request. The Air Force initially claimed that FOIA Exemption 5 and 6 preclude the release of further information, but after a subsequent appeal by the plaintiff, conceded that only Exemption 6 applied to the records
*234II. LEGAL STANDARDS
a. Summary Judgment
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a). As applied to a FOIA case, an agency defendant may be entitled to summary judgement if it demonstrates that (1) no material facts are in dispute, (2) it has conducted an adequate search for responsive records, and (3) each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. Miller v. U.S. Dep't of Justice ,
An agency claiming an exemption to FOIA bears the burden of establishing the exemption applies. Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill ,
b. Exemption 6
FOIA Exemption 6 protects against the disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
III. ANALYSIS
The plaintiff claims that the documents pertaining to the Board proceedings do not fall under Exemption 6, because the information is not "personnel, medical or similar" files.
*235a. Exemption 6
This Court determines de novo if any agency has properly withheld information under a FOIA exemption. See Mead Data Cent., Inc. v. U.S. Dep't of Air Force ,
i. Are the records personnel or similar files?
The Air Force argues that the requested records are personnel files, as administrative discharge proceedings are a personnel process overseen by the personnel office, and the records of the Board proceedings are maintained in a file system governed by the Air Force Personnel Center Privacy Act. ECF No. 14-4, at 2. The plaintiff argues that, per AFI 36-2608, Military Personnel Records System (26 October 2015), an airman's Military Personnel Record contains only administrative discharge proceeding records if the process results in discharge; Broome was retained, therefore the Board proceedings are not part of his personnel file.
Alternatively, the Air Force contends that whether or not the requested records are actually personnel files, they are similar enough to be covered by U.S.C. Section 552(b)(6) (exempting "personnel and medical files and similar files"). The Air Force claims that all the records relate to SSgt. Broome, and thus may not be released. ECF No. 14-4, at 2. The plaintiff disagrees, arguing that the requested records are not similar to personnel files, but are akin to a trial record; further, the information contained in the records is not solely about Broome, but also about the actions of counsel and the legal advisor to the proceedings.
Exemption 6 is broad, as it applies to "detailed Government records on an individual which can be identified as applying to that individual." Wash. Post Co. ,
The administrative discharge proceeding records are files covered by Exemption 6. They are detailed government records about SSgt. Broome that, if released, would be identified as applying to him. The plaintiff is correct that the administrative discharge proceedings mirror the judicial process; however, it is still an administrative process
ii. Would the release of the records constitute a clearly unwarranted invasion of personal privacy?
The D.C. Circuit has laid out a clear test for determining the personal and public interests at stake, and for weighing the two:
To establish that the release of information contained in government files would result in a clearly unwarranted invasion of privacy, the court first asks whether disclosure would compromise a substantial, as opposed to a de minimis , privacy interest. If a significant privacy interest is at stake, the court then must weigh that interest against the public interest in the release of the records in order to determine whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy. The public interest to be weighed against the privacy interest in this balancing test is the extent to which disclosure would serve the core purposes of the FOIA by contributing significantly to public understanding of the operations or activities of the government. Thus, unless a FOIA request advances the citizens' right to be informed about what their government is up to, no relevant public interest is at issue.
Nat'l Ass'n of Home Builders ,
1. SSgt. Broome's Privacy Interest
The Air Force argues that SSgt. Broome has a substantial privacy interest in the records, as they are among his employment records, and they relate to allegations of sexual assault that would be embarrassing to SSgt. Broome if released. The plaintiff argues that because the records are not personnel files, no substantial privacy interest exists; further, because SSgt. Broome has posted about the proceedings on social media, he has forfeited any expectations of privacy regarding the Board proceedings.
Congress intended to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Wash. Post Co. ,
SSgt. Broome arguably has a "strong interest in not being associated unwarrantedly with alleged criminal activity." Stern v. Fed. Bureau of Investigation ,
The Air Force contends that SSgt. Broome retains a recognized privacy interest in the records because they are part of his employment records. In Stern , the D.C. Circuit recognized "that an employee has at least a minimal privacy interest in his or her employment history and job performance evaluations."
Lastly, the affidavits show that it was not Broome, but Broome's friends and family, who posted about the outcome of the proceedings on social media. ECF No. 20-5, at 2. While more detailed posts may have militated against a finding of Broome retaining a strong privacy interest in the files, the actual posts are not provided and it is unclear what exactly they disclosed. The outcome of the proceedings was made public by these filings and by the fact that Broome remains in the Air Force-therefore, a post indicating the Board's decision is not enough to find that Broome forfeited any expectation of privacy concerning the proceedings.
It is clear that Broome has greater than a de minimis privacy interest in the files. That privacy interest will now be compared with the public's interest in the files.
2. Public Interest
The Air Force recognizes a "cognizable public interest in records relating to how the military responds to sexual assault," ECF No. 14, at 14, but found that interest to be negligible because the release of a single proceeding would not illustrate how the agency executes its mission. ECF No. 14-4, at 2. The plaintiff points to several examples of alleged Air Force misconduct that supposedly demonstrate the Board proceedings were "just a sham conducted for the purpose of saying the Air Force is taking sexual assault seriously." ECF No. 20, at 5. The plaintiff claims the release of the records will serve the public interest of "keeping victims informed of, and confident in, the legitimacy of proceedings in which they participate," ECF No. 20-3, at 5, and would assist her in lobbying Congress to "preclude military legal advisors (or judges) from ordering victims to be interviewed by counsel against their will." ECF No. 20-3, at 6.
The relevant public interest to be weighed against SSgt. Broome's privacy interest is "the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." U.S. Dep't of Def. v. Fed. Labor Relations Auth. ,
The plaintiff's argument that a public interest in these files exists is muddled. She alleges that the Air Force acted in bad faith by (1) initially refusing to provide her with a copy of a Military Protective Order (MPO) against SSgt. Broome before eventually providing it to her; (2) initially refusing to permit the plaintiff's counsel from representing her at the Board proceedings and attempting to exclude him from attending the proceedings; (3) inappropriately ordering the plaintiff to interview with SSgt. Broome's counsel; and (4) limiting the plaintiff's role in the proceedings to that of a witness and not informing her immediately of the outcome of the proceedings. The plaintiff also argues that the Air Force's reluctance to alter her travel plans to the proceedings so she could avoid flying with SSgt. Broome's family and friends demonstrates the agency's "hostility and retaliation." ECF No. 20-3, at 4. The plaintiff appears to believe these allegations would support a release of the entirety of the Board proceeding records, which would illustrate the Air Force's "sham" proceedings. ECF No. 20, at 2.
The plaintiff does not explain exactly what evidence, besides her declaration restating the allegations, supports most of these assertions-and a review of the exhibits is not convincing. Several of the plaintiff's accusations are that the Air Force initially refused to do something (see accusations (1), (2), and (4) above) but the plaintiff's requests were eventually granted. It is unclear how other accusations relate to the Board proceedings at all, such as the travel arrangements and the outcome notification. Further, the release of the requested records would not illustrate the decision-making process behind such decisions. Even if these mere assertions were taken as truth, it is not clear that these events would prove the proceedings were conducted in bad faith. Rather, myriad explanations could exist for many of the plaintiff's allegations. In the absence of additional sufficient evidence, there is little "counterweight on the FOIA scale" for the Court to balance against SSgt. Broome's privacy interest. Favish ,
The Court also finds merit in the Air Force's argument that, in this case, the release of a singular proceeding would not substantially serve the public interest. In Kimberlin v. DOJ , the P.C. Circuit considered the "rank of the public official involved and the seriousness of the misconduct alleged" when holding that the public interest in the DOJ's investigation of a single lower-level staff attorney's potential misconduct was not sufficient to outweigh the attorney's personal privacy interest.
In sum, the plaintiff has not met her burden to set out in clear terms how the release of the Board proceeding records would serve the public interest and contribute significantly to the public's understanding of the Air Force's operations. SSgt. Broome's substantial privacy interest outweighs the public interest in the records* disclosure, demonstrating that the disclosure of the records would constitute an unwarranted invasion of privacy against SSgt. Broome. As such, the Air Force properly declined under Exemption 6 to release these documents in response to the plaintiff's FOIA request.
b. 'Routine Use' Argument
Alternatively, the plaintiff argues that the records must be disclosed to her as a "routine use" per the Privacy Act, U.S.C. § 552a(b)(3), and AFI 51-201, ¶ 7.24, Administration of Military Justice, which provides that "administrative discharge proceedings may be disclosed as a routine use to victims and witnesses of a crime...." The plaintiff argues that, as a victim of sexual assault who was asked to testify as a witness, she has a right to the records. The Air Force disagrees with the plaintiff's reading of AFI 51-201, arguing that the regulation simply requires the same balancing test as Exemption 6.
The Privacy Act states that agencies may disclose records for a "routine use," U.S.C. § 552a(b)(3), defined as "a purpose that is compatible with the purpose for which it was collected." U.S.C. § 552(a)(7). The routine use of the records in any system covered by the Privacy Act, such as the records at issue, must be published in the Federal Register. U.S.C. § 552a(e)(4)(D). Therefore, the routine use exception consists of two prongs: "compatibility" and "publication." Doe v. U.S. Dep't of Justice ,
AFI 51-201, ¶ 7.24, is broader than the plaintiff states in her pleadings. It calls for exceptions to the Privacy Act, such as the "routine use" exception, to be treated similarly to exemptions under FOIA. It requires that "[v]ictims and witnesses ... be provided as much relevant information as possible, consistent with the privacy rights of the accused."
IV. CONCLUSION
For the aforementioned reasons, the Air Force's motion for summary judgment will be GRANTED . This case will be DISMISSED . A separate Order consistent with this Memorandum Opinion shall issue this date.
It is SO ORDERED.
During this case, the Air Force initially claimed in its Answer that Exemption 5 would apply to two legal reviews they understood to be sought by the plaintiff; the plaintiff clarified in later pleadings that she is only seeking records regarding the Board proceedings and not the legal reviews, thus making any analysis of Exemption 5 unnecessary.
The Court notes that AFI 51-201 clearly distinguishes between trials and administrative discharge proceedings. The regulation states that it applies to "cases where allegations against a suspect are disposed of other than by trial..." and goes on to mention, specifically, "records and information related to ... administrative discharge proceedings...." AFI 51-201, ¶ 7.24.
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