Dayton Newspapers, Inc. v. U.S. Dept. of Navy

• Decision Date: 18 May 1999
• Docket Number: No. C-3-95-328.,C-3-95-328.
• Citation: 109 F.Supp.2d 768
• Parties: DAYTON NEWSPAPERS, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

109 F.Supp.2d 768

DAYTON NEWSPAPERS, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants.

No. C-3-95-328.

United States District Court, S.D. Ohio, Western Division.

May 18, 1999.

Robert Perry Bartlett, Jr., David Reid, Coolidge Wall Womsley & Lombard, Dayton, OH, for Plaintiffs.

Greg Gordon Lockhart, U.S. Attorney's Office, Dayton, OH, Edward S. White, JAGC, Maria Chapa, JA, C.R. Donovan, Office of Judge Advocate General, Dept. of Navy, General Litigation Div., Alexandria, VA, for Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT (DOC. #36), INSOFAR AS IT SEEKS TO PREVENT THE DISCLOSURE OF COURT-MARTIAL MEMBERS' QUESTION-NAIRES; TERMINATION ENTRY.

RICE, Chief Judge.

This litigation arises from the Plaintiffs' attempt to obtain information from the United States government pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. After exhausting their administrative remedies, the Plaintiffs filed the present lawsuit, seeking a variety of computer records, military court-martial files, and military court documents. In a lengthy September 12, 1996, Decision and Entry, the Court resolved most of the issues raised by the Plaintiffs' FOIA requests. (Doc. # 26). With respect to certain issues, however, the Court reasoned that it needed a more detailed factual record before addressing the Defendants' claimed FOIA exemptions. Consequently, the Court directed the Defendants to submit a Vaughn index setting forth a variety of information.

After reviewing the index, the Court filed a September 8, 1997, Decision and Entry, addressing the previously unresolved issues. (Doc. # 38). In so doing, the Court ruled upon the majority of the Plaintiffs' FOIA requests. With respect to one discrete issue, however, the Court found itself still unable to resolve the parties' dispute, based upon the existing record. That issue concerns the extent to which the FOIA compels disclosure of questionnaires completed by military court-martial members, whom the Court has found to be analogous to civilian jurors. In particular, the Defendants' Vaughn index did not enable the Court to ascertain the privacy interests implicated by the individual questionnaire responses. As a result, the Court directed the Defendants to produce the court-martial members' questionnaires for an in camera inspection. The completed questionnaires subsequently were filed under seal on October 8, 1997. (Doc. # 41).

As a means of analysis, the Court briefly will reiterate the law governing the Plaintiffs' FOIA request for disclosure of the questionnaires.¹ The Court then will review the questionnaires and identify what information, if any, is subject to release under the FOIA.

I. The Law of the Freedom of Information Act

The FOIA "seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). "[T]he strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." United States Dept. of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). This burden remains on the agency "when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document." Id.

Although the FOIA creates a presumption of disclosure, the Act also contains nine exemptions, which allow government agencies to withhold certain information. In its September 12, 1996, Decision and Entry, the Court concluded that the exemption set forth in 5 U.S.C. § 552(b)(7)(C) might apply to the information contained in the court-martial members' questionnaires. (Doc. # 26 at 50). That exemption allows the government to withhold "(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy."² The applicability of Exemption 7(C) depends upon a balancing of the public and private interests to determine whether the withheld information should be disclosed. (Doc. # 26 at 26).

The privacy interest implicated by the FOIA is "the individual interest in avoiding disclosure of personal matters." U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 762, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). "An invasion of privacy occurs when disclosure would subject a person to embarrassment, harassment, physical danger, disgrace, or loss of employment or friends." Kilroy v. National Labor Relations Bd., 633 F.Supp. 136 (S.D.Ohio 1985), aff'd, 823 F.2d 553, 1987 WL 38055 (6th Cir.1987) (unpublished decision). Notably, a privacy interest may exist even though private information has been made public, particularly if the information may have been "wholly forgotten." Reporters Committee, 489 U.S. at 769, 109 S.Ct. 1468, citing Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

The only relevant public interest to be weighed against an individual'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." United States Dept. of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994), quoting Reporters Committee, 489 U.S. at 775, 109 S.Ct. 1468 (Emphasis in original). In other words, the basic purpose of the FOIA is "to open agency action to the light of public scrutiny," and to allow citizens to "be informed about what their government is up to." Reporters Committee, 489 U.S. at 772-773, 109 S.Ct. 1468. Thus, whereas information "that sheds light on an agency's performance of its statutory duties" would serve FOIA's core purpose, that purpose "is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." Id. at 773, 109 S.Ct. 1468.

In its September 12, 1996, Decision and Entry, the Court recognized that when the public interest in disclosure of withheld information is actually or virtually nonexistent, even a very slight privacy interest will justify non-disclosure. Doc. # 26 at 29, citing Federal Labor Relations Authority, 510 U.S. 487, 114 S.Ct. 1006, 127 L.Ed.2d 325 ("Because a very slight privacy interest would suffice to outweigh the [virtually non-existent] public interest, we need not be exact in our quantification of the privacy interest."). Simply put, something will outweigh nothing every time. (Id.).

II. The First Amendment and Access to Juror Questionnaires

In fourteen records provided to the Plaintiffs, Defendant Navy has redacted questionnaires completed by the court-martial members (Counts Two and Five). Both parties have asserted that these court-martial members are analogous to civilian jurors (Doc. # 18, p. 8; Doc. # 23, p. 8), and the Court previously agreed that the same types of interests are involved. (Doc. # 26 at 48). Therefore, in identifying and balancing the relevant interests, the Court cited First Amendment case law developed in relation to civilian jurors. (Id.).

In so doing, the Court recognized that the First Amendment right of access to public trials requires voir dire proceedings to be open to the public, unless a juror requests the opportunity to answer specific questions privately, and the court determines that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Doc. # 26 at 48, citing Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); see id. at 516, 104 S.Ct. 819 (Stevens, J., concurring) ("The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth."). As this Court previously noted, the right of access to criminal trials "permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government." Doc. # 26 at 49, quoting Globe Newspaper Co. v. Superior Court for County of Norfolk, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Consequently, the Court reasoned that court-martial members' questionnaires are presumably subject to public review, along with other aspects of trial court proceedings.

The Court also reasoned that the public interests underlying the First Amendment and the FOIA are closely aligned. Both provisions contribute significantly to public understanding of the operations or activities of the government, open agency action to public scrutiny, and allow citizens to be informed about what their government is up to. (Doc. # 26 at 49). As a result, the Court determined that the holding of Press-Enterprise, which concerned the petitioner's request for the release of a complete transcript of the voir dire proceedings, would appear to govern similar requests made under the FOIA. (Id.). In reaching this conclusion, the Court also recognized the District Court's ruling in Application of Washington Post, No. 92-301, 1992 WL 233354, at *4 (D.D.C.1992). In that case, the court conducted a First Amendment analysis and held that completed jury questionnaires must be provided to the media, with only "intensely personal information" redacted.³

While recognizing that juror questionnaires typically are subject to public inspection, this Court also noted that some of the information contained therein may be sufficiently private so as to outweigh the relevant public interest. Consequen...