Charles v. Office of Armed Forces Med. Exam'r

• Decision Date: 13 August 2010
• Docket Number: Civil Action No. 09-0199 (RMU)
• Citation: 730 F.Supp.2d 205
• Parties: Roger G. CHARLES, Plaintiff, v. OFFICE OF The ARMED FORCES MEDICAL EXAMINER et al., Defendants.
• Court: U.S. District Court — District of Columbia

730 F.Supp.2d 205

Roger G. CHARLES, Plaintiff,

v.OFFICE OF The ARMED FORCES MEDICAL EXAMINER et al., Defendants.

Civil Action No. 09-0199 (RMU).

United States District Court,

District of Columbia.

Aug. 13, 2010.

Jonas R. McDavit, Andrew M. Genser, Michael J. Gulliford, Kirkland & Ellis LLP, New York, NY, for Plaintiff.

Michelle Renee Bennett, Tamra Tyree Moore, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICARDO M. URBINA, District Judge.

Denying the Defendants' Motion for Summary Judgment; Granting in Part and Denying in Part the Plaintiff's Cross-Motion for Summary Judgment

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff brings suit against the Office of the Armed Forces Medical Examiner ("OAFME"), the Armed Forces Institute of Pathology ("AFIP") and the Department of Defense ("DOD") alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. For the reasons discussed below, the court denies the defendants' motion for summary judgment and grants in part and denies in part the plaintiff's cross-motion for summary judgment.

II. BACKGROUND

A. Factual History

The plaintiff is a retired veteran, editor of the journal Defense Watch and vice-chairman of the non-profit organization, Soldiers for the Truth. Compl. ¶ 7. He is investigating the effectiveness of the body armor that the U.S. military issues to its service members. Id. ¶ 5. Having learned of reports and data suggesting that the body armor may not provide sufficient protection for American troops in combat, the plaintiff began gathering empirical information in an attempt to verify these reports. Id. ¶¶ 4-5. On October 28, 2008, the plaintiff filed a FOIA request with the AFIP and the OAFME seeking documents related to whether any service member's deaths may have resulted from bullet wounds in torso areas, which are usually covered by body armor. Id. ¶ 27; Pl.'s Cross-Mot. for Summ. J. & Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Cross-Mot.") at 1. Specifically, the plaintiff sought the following information for the period between January 1, 2006 and December 31, 2007:

1. Any documents characterizing whether the personal body armor worn by soldiers in Iraq and/or Afghanistan performed according to specification in stopping bullets and/or shrapnel.

....

5. Any documents characterizing and/or analyzing fatal wounds from bullets and/or shrapnel that were inflicted on soldiers wearing personal body armor in Iraq and/or Afghanistan.

6. Any documents illustrating, summarizing and/or characterizing the point of entry of any bullets and/or shrapnel that caused fatal wounds in soldierswearing personal body armor in Iraq and/or Afghanistan.

....

8. Any reports characterizing and/or analyzing the relationship between personal body armor and lethal torso injuries sustained by soldiers in Iraq and/or Afghanistan.

9. Any documents concluding that a soldier in Irag [sic] and/or Afghanistan died because that soldier's personal body armor failed to stop a ballistic device, such as a bullet or shrapnel.

...

Compl., Ex. A. As of January 30, 2009, the AFIP had neither produced any documents nor provided any estimate of when it might respond. Id. ¶ 30.

B. Procedural History

The plaintiff filed a complaint in this court on February 3, 2009. See generally id. In April 2009, counsel for both parties held discussions to clarify the scope of the plaintiff's FOIA request. Decl. of Capt. Craig T. Mallak ("Mallak Decl.") ¶¶ 18, 19. Following those discussions, Captain Craig T. Mallak of the Armed Forces Medical Examiner Systems ("AFMES"), a subordinate organization within the AFIP and OAFME, convened a meeting to determine whether the AFIP or the AFMES possessed any documents responsive to the plaintiff's inquiry. Id. ¶¶ 1, 20. Captain Mallak identified two AFMES sources containing documents that fell within the scope of the plaintiff's request. Id. ¶ 22.

The first source consisted of the AFMES's autopsy files for fallen service members. Id. ¶ 23. The AFMES ran a database query for the autopsy files of service members who died from bullet wounds during the period between January 1, 2006 and December 31, 2007 while likely wearing body armor. Id. The query excluded the files of service members who suffered bullet wounds in the head or neck. Id. This search returned 103 autopsy files containing information such as preliminary and final autopsy reports, autopsy photographs, body diagrams, CT scans, medical records and death certificates. Id. Although the AFMES determined that these 103 autopsy files contained information responsive to the plaintiff's FOIA request, the AFMES nonetheless declined to release this information, id. ¶¶ 23, 26, invoking the FOIA statutory disclosure exemptions concerning internal agency materials, privileged intra-agency information and personal privacy, id. ¶ 27 (citing 5 U.S.C. §§ 552(b)(2), (5)-(6)).

The second source that the AFMES searched was the Armed Forces Medical Examiner Tracking System ("AFMETS") database, an inventory and cataloguing system used to record information about the personal effects of fallen service members who arrive at the AFMES for processing. Id. ¶ 24. When a service member's personal effects include body armor, AFMES personnel record the type and condition of the body armor. Id. The AFMES identified eighteen body armor description sheets containing information relevant to the plaintiff's FOIA request. Supplemental Decl. of Capt. Craig T. Mallak ("Supplemental Mallak Decl.") ¶¶ 3-4. Specifically, the eighteen responsive AFMETS records contained "written descriptions of wounds and wound patterns and notations of possible links between injuries sustained while wearing personal protective equipment and resulting wound patterns." Id. ¶ 5. Further, some or all of the eighteen responsive records indicated that the body armor under examination was not perfectly intact upon inventory. Id. ¶ 7. After identifying these responsive documents, the AFMES decided to withhold them under the FOIA's internal agencymaterials exemption. Id. ¶ 6 (citing 5 U.S.C. § 552(b)(2)).

In August 2009, the defendants informed the plaintiff that although they had located responsive documents, they intended to withhold all of those documents under the statutory FOIA exemptions enumerated at 5 U.S.C. §§ 552(b)(2), (5) and (6). Pl.'s Cross-Mot. at 7. On October 23, 2009, the defendants filed their motion for summary judgment, arguing that the statutory FOIA exemptions should apply with respect to the responsive documents pertaining to the plaintiff's October 2008 FOIA request. Defs.' Mot. at 3-5, 13.

In an attempt to reach a compromise and resolve this dispute, the plaintiff submitted a second, more narrow FOIA request on November 9, 2009. Pl.'s Cross-Mot., Ex. 12. The plaintiff drafted his narrowed request to include the particular documents that the defendants had previously found to be responsive to his initial FOIA request, all of which the defendants withheld under the statutory exemptions. Id. Furthermore, the plaintiff agreed in his narrowed request to seek redacted forms of the responsive documents that exclude the service members' personal information and other sensitive data to accommodate the defendants' exemption concerns. Id. at 9 & n. 7; id., Ex. 12. The plaintiff's narrowed request covered the following items:

(a) AFMETS body armor descriptions sheets, related to body armor worn by a soldier killed in Iraq or Afghanistan between January 1, 2006 and December 31, 2007, which indicate that the body armor was not intact upon receipt for inventory, and

(b) autopsy reports and associated documents:

(1) indicating that a soldier killed in Iraq or Afghanistan between January 1, 2006 and December 31, 2007 suffered a fatal gunshot wound in an area likely covered by the front or rear ceramic insert plates of that soldier's body armor, and/or

(2) commenting, discussing or indicating that the body armor worn by a soldier killed in Iraq or Afghanistan between January 1, 2006 and December 31, 2007 did not prevent a fatal wound, or was penetrated by a bullet.

Pl.'s Cross-Mot. at 9 (footnotes omitted).¹

The plaintiff filed his opposition to the defendants' motion for summary judgment and his cross-motion for summary judgment on December 23, 2009. See generally id. Significantly, the plaintiff's cross-motion offered counterarguments to the defendants' claims of statutory FOIA exemptions, but only with respect to the documents sought under the plaintiff's narrowed request. Id. at 13. In other words, while the defendants argue for the applicability of the statutory exemptions in the context of the plaintiff's initial FOIA request, Defs.' Mot. at 13-37, the plaintiff addresses only those exemption argumentswithin the framework of his narrowed request. Pl.'s Cross-Mot. at 13-30.

On January 15, 2010, the defendants filed their reply in support of their motion for summary judgment. Reply in Supp. of Defs.' Mot. ("Defs.' Reply") at 9. In this reply, the defendants state that the AFMES once again reviewed the documents that were responsive to the plaintiff's initial October 2008 FOIA request, but determined that none of those records were responsive to the plaintiff's narrowed request. Defs.' Reply, Ex. 1 ("2d Mallak Decl.") ¶ 4. The plaintiff submitted a reply on January 22, 2010 in which he protested the defendants' apparent reversal on the question of whether they possess any responsive documents. Pl.'s Reply to Defs.' Opp'n to Pl.'s Cross-Mot. ("Pl.'s Reply") at 1, 8. With both motions fully briefed, the court turns now to the parties' arguments and the applicable legal standards.

III. ANALYSIS

A. Legal Standard for Summary Judgment in FOIA Cases

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the...