James v. United States Department of Defense et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Dayle James, as the Personal )
Representative of the Estate of )
Charlie Thomas James, Jr., ) 3:18-cv-00028 JWS
)
Plaintiff, ) ORDER FROM CHAMBERS
)
vs. ) [Motions at Docket 12 & 17]
)
)
United States Department of Defense, )
and U.S. Army, )
)
)
Defendants. )
)
I. MOTIONS PRESENTED
Plaintiff moved for summary judgment at docket 12. Defendants United States
Department of Defense and the U.S. Army (jointly “Defendant”) filed an opposition and
cross motion for summary judgement at docket 16. Defendant filed the same opposition
and cross motion for summary judgement again at docket 17. Plaintiff filed a combined
opposition/reply at docket 20. Defendant filed a reply at docket 21. Oral argument was
not requested and would not aid the court.
II. BACKGROUND
Charlie Thomas James, Jr. (“Charlie”) was killed in an accident which happened
on March 13, 2015, when an Army “Stryker” vehicle was being loaded onto a rail car
and its brakes failed. Plaintiff brought this lawsuit seeking information pertinent to his
wrongful death lawsuit, which is also pending in this court (“James Lawsuit”).1 Only
1Case No. 3:17-cv-046 JWS.
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one defendant remains in the James Lawsuit, General Dynamics Land Systems, Inc.
(“General Dynamics”). Plaintiff’s counsel has expressed his intent to join the United
States as a defendant in the James Lawsuit,2 but has not yet done so.
Plaintiff’s counsel made a Freedom of Information Act (“FOIA”) request to
Defendant on March 7, 2017, which set out five specific questions.3 The Army
responded with answers to the questions on April 6, 2017.4 On May 23, 2017, Plaintiff’s
attorney made a second FOIA request in which he asked the Army to provide “copies of
any Army reports, memoranda or similar documents reflecting the results of any
investigation into [Charlie’s death] including any inspection and testing of the brakes on
the subject Stryker and any investigation into the cause of the brake failure, and any
persons or entities that might be responsible for the brake failure.”5 The Army
responded on June 14, 2018, stating that the investigation had been conducted by
OSHA, referred Plaintiff’s lawyer to that organization, and said that the referral to OSHA
was its final response.6
Having seen discovery responses from General Dynamics in the James Lawsuit,
indicating that the Army had been involved in investigating the accident, Plaintiff’s
lawyer renewed his FOIA request on July 25, 2018, asking for “all documents
concerning the inspection of the Stryker involved in [Charlie’s] death, including all
memos, emails, reports and similar documents regarding any inspection of the accident
2Id. at doc. 55.
3Doc. 12-1.
4Doc. 12-2.
5Doc. 12-3.
6Doc. 12-4.
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vehicle both pre and post accident.”7 The initial response was a letter advising that the
request was being referred to the U.S. Army Pacific Command-U.S.Army Alaska.8
Hearing nothing further, Plaintiff’s lawyer made a follow-up inquiry on January 2,
2018.9 Thereafter, on April 2, 2018, the Army responded by providing a redacted copy
of its AR15-6 investigation report and redacted sworn statement from three soldiers.
The response also advised that other documents were being withheld. The response
advised that the redactions and withholding of documents were done pursuant to the
FOIA privacy exemption, 5 U.S.C. § 552 (b)(6) and the FOIA deliberative process
exemption, 5 U.S.C. § 552 (b)(5). Attached to the response was a log of withheld
materials listing categories of materials withheld and references to the pertinent
exemptions for each category.10 Copies of the redacted sworn statements are at
docket 12-9. A copy of the redacted AR15-6 report with attachments is found at
docket12-10.
Plaintiff’s attorney then asked for reconsideration of the decision to withhold
information saying: “We need the names and last known addresses of the persons who
gave statements and signed and created the documents. Unless the [James Lawsuit] is
settled we will have to take depositions of those personnel and thus require their names
and last known addresses.”11 With respect to the documents being withheld, Plaintiff’s
counsel asserted that to determine whether the invocation of the deliberative process
exemption was appropriate, he needed more information. In particular, he asked for the
type of document and its date, and as to documents which were communications, the
7Doc. 12-5.
8Doc. 12-6
9Doc. 12-7.
10Doc. 12-8.
11Doc. 12-11.
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“name, rank and title of the sender and recipient.”12 Plaintiff’s lawyer also asked that if a
privilege were claimed, that the specific privilege and specific facts supporting the
privilege be disclosed.13 The Army responded by denying the request for information
identifying the various individuals pursuant to the privacy exemption and attaching
another copy of the log of withheld materials.14
In connection with its response to Plaintiff’s motion, Defendant indicated that it
would produce portions of two email chains which were among the four documents
originally withheld in their entirety. The first email chain “constituted communications
between United States Army Alaska staff members concerning the Stryker vehicle and
incident.”15 The redacted portions were “withheld because they contain personal
recommendations of USARAK staff and are exempt under the provisions of FOIA.”16
The second email chain consisted of communications between USARAK lawyers
“concerning the Stryker vehicle, potential courses of action, and discussions in
anticipation of litigation.”17 The redacted portions “are being withheld because they
contain attorney-client communications and are exempt under the provisions of FOIA.”18
Defendant maintains that the entirety of the other two documents must be
withheld. One consists of communications between lawyers which “reflect answers and
information in response to questions raised by attorneys regarding the Stryker
12Id.
13Id.
14Doc. 12-12.
15Declaration of Kristen MH Coyne, doc. 17-3 at ¶ 10. a.
16Id.
17Doc. 17-3 at ¶ 10. b.
18Id.
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vehicle.”19 The second being withheld in its entirety is a printout regarding information
“requested 12 May 2015 by Chief, Legal Assistance Office to the ASARAK Attorney
Adviser, and clearly marked ‘For Official Use Only: Litigation/Attorney Work Product.’
This record is a memorandum of the observations of the Attorney at the March 24, 2018
observation at the accident scene.”20 The reason given for withholding these two
documents is that they qualify for protection as attorney-client communications and as
part of “pre-decisional materials written as part of the decision making process of the
agency Army.”21
Defendant also prepared a “Vaughn index.” The index appears in the record at
docket 17-5.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”22 The
materiality requirement ensures that “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”23 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”24 However, summary
judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
19Doc. 17-3 at ¶ 10. d.
20Id.
21Id.
22Fed. R. Civ. P. 56(a).
23Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
24Id.
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party will bear the burden of proof at trial.”25 Because facts in FOIA cases are rarely in
dispute, “[m]ost FOIA cases are resolved by the district court on summary judgment.”26
IV. DISCUSSION
A. Principles of FOIA Case Law
FOIA requires public access to government information to further an open and
well functioning democracy, especially where access might be “needed to check against
corruption and to hold the governors accountable to the governed.”27 “The statute
provides public access to official information ‘shielded unnecessarily’ from public view
and establishes a ‘judicially enforceable public right to secure such information from
possibly unwilling official hands.’”28 FOIA mandates full agency disclosure unless
information is exempted under one of FOIA’s nine statutory exemptions. Because
FOIA’s purpose is to encourage disclosure, its exemptions are narrowly construed.29
An agency bears the burden of justifying application of FOIA exemptions.30
Reasonably detailed, non-conclusory affidavits meet this burden. Affidavits must
include a ‘Vaughn index’ “identifying the documents withheld, the FOIA exemptions
claimed, and a particularized explanation of why each document falls within the claimed
exemption.”31 The particularized explanation should disclose “as much information as
25Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
26Animal Legal Defense Fund v. FDA, 836 F.3d 987, 989 (9th Cir. 2016).
27John Doe Agency v. John Doe Corp., 493 U.S. 146,152 (1989) (quoting NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
28Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quoting Dept. of Air
Force v. Rose, 425 U.S. 352,361 (1976).
29Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988).
305 U.S.C. § 552(a)(4)(B).
31Lion Raisins Inc. v. Dep’t of Agriculture, 354 F.3d 1072, 1082 (9th Cir. 2004) (overruled
on other grounds by Animal Legal Defense Fund, supra, n. 26.)
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possible without thwarting the claimed exemption’s purpose.”32 If there are
particularized explanations, “substantial weight [should be given] to an agency’s
declarations regarding the application of a FOIA exemption.”33 “If, however, the court
finds the affidavits or testimony submitted too generalized to establish eligibility for an
exemption, it may, in its discretion, proceed to examine the disputed documents in
camera for a first-hand determination of their exempt status.”34
Defendant invoked 5 U.S.C. § 552(b)(6), the “personal privacy” exemption, to
support redaction of the names and other personal identifying information of personnel
who gave sworn statements or worked on investigative, maintenance, or inspection
reports. Personal privacy is implicated if the request affects “the individual’s control of
information concerning his or her person, or constitutes a ‘public intrusion’ long deemed
impermissible under the common law and in our cultural traditions. Disclosures that
would subject individuals to possible embarrassment, harassment, or the risk of
mistreatment constitute nontrivial intrusions into privacy.”35 The government carries the
burden of proving a non-trivial privacy interest.
Defendant redacted or did not produce some documents relying on the
“deliberative process” exemption found in 5 U.S.C. § 552(b)(5). The “deliberative
process” exemption permits non-disclosure of “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency.”36 This provision shields “those documents, and
32Wiener v. FBI, 943 F.2d 972, 979 (9th Cir.1991) (quoting King v. U.S. Dept. of Justice,
830 F.2d 210, 224 (D.C. Cir. 1987)).
33Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012).
34Church of Scientology of Calif, v. U.S. Dep't of Army, 611 F.2d 738, 742 (9th Cir.
1979), overruled on other grounds by Animal Legal Def. Fund, supra, n. 26.
35Cameranesi v. U. S. Dept. of Defense, 856 F.3d 626, 638 (9th Cir. 2017) (internal
quotations and citations omitted).
365 U.S.C. § 552(b)(5).
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only those documents, normally privileged in the civil discovery context.”37 “A
predecisional document is a part of the ‘deliberative process’, if the disclosure of the
materials would expose an agency’s decision making process in such a way as to
discourage candid discussion within the agency and thereby undermine the agency's
ability to perform its functions.”38 The government agency must segregate and disclose
“any reasonably segregable portion of a record”39 that is being withheld under a FOIA
exemption.
Defendant asserts that Plaintiff’s purpose in seeking disclosure is to obtain
information relevant to the James Lawsuit and that such a purpose is not appropriate in
a FOIA lawsuit. Two cases principally relied upon by Defendant are readily
distinguishable from the situation before this court. As Plaintiff points out, those cases
involved enforcement actions by a federal agency.40 Another case relied upon by
Defendant involved a FOIA request seeking information that would assist a defendant in
a criminal prosecution. The appellate court wrote: “We hold that in criminal cases
[FOIA] does not extend the scope of discovery permitted under Rule 16.”41 That case is
easily distinguished from the case at bar. The other cases cited by Defendant are also
distinguishable.
The real issue emanating from Plaintiff’s purpose in seeking information that
relates to the James Lawsuit is whether Plaintiff has provided an adequate basis for
37NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
38Lahr, 569 F.3d at 979-80 (quoting Assembly of State of Calif. v. U.S. Dept. Of
Commerce, 968 F.2d 916, 920 (9th Cir. 1992)).
395 U.S.C. § 552(b).
40NLRB v. Robbins Tire & Rubber Co. 437 U.S. 214, 241-243 (1978); Shannahan v. IRS,
672 F.3d 1142, 1149-1151;
41United States v. U.S. Dist. Court, 717 F.2d 478, 480 (9th Cir. (1983).
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seeking the information relating to the actions of the Army personnel involved in the
Stryker incident. The Ninth Circuit has explained:
When a FOIA requester alleges a public interest ‘in showing that
responsible officials acted negligently or otherwise improperly in the
performance of their duties’ Favish, 541 U.S. at 174, we are guided by the
Supreme Court’s decisions in Ray and Favish. In Ray, the FOIA
requesters argued the identities of the Haitian returnees was necessary
for ‘ascertaining the veracity of the interview reports.’ 502 U.S. at 179.
The Court rejected this argument, holding that [w]e generally accord
Government records and official conduct a presumption of legitimacy,’ and
that requesters had presented no evidence to overcome this presumption.
Id. Ray expressly reserved the question of ‘[w]hat sort of official
misconduct might be sufficient to identify a genuine public interest in the
disclosure. The Court subsequently answered that question in Favish,
holding that where ‘the public interest being asserted is to show that
responsible officials acted negligently or otherwise improperly in the
performance of their duties’ then ‘the requester must establish more than
a bare suspicion’ in order to overcome the presumption of legitimacy
accorded to official conduct.’ 541 U.S. at 174. Rather, ‘the requester
must produce evidence that would warrant a belief by a reasonable
person that the alleged Government impropriety might have occurred.’
Id.42
B. Propriety of Withholding of Documents and Redactions
The first issue to consider is whether Plaintiff has provided an adequate basis for
seeking the requested information given that it relates to the James Lawsuit. The three
redacted sworn statements already provided by Defendant show that the Stryker
involved in the accident had a compromised brake system due to its inability to maintain
adequate air pressure.43 Defendant provided a redacted copy of the maintenance and
inspection worksheet for the February 15, 2015, inspection of the Stryker.44 After the
accident the air brake actuater was replaced on April 28, 2015.45 On that same date
numerous faults and deficiencies not listed on the February maintenance report were
42Camarenesi, 856 F. 3d at 640.
43Doc. 12-9.
44Doc. 12-10 at p. 21.
45Id. at pp. 22-23.
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noted.46 Taken together these facts are enough evidence to warrant a belief that the
Stryker was negligently maintained by Army personnel.
The court now turns to the redaction of the names and refusal to provide the
current location of the Army personnel who gave the three sworn statements and
performed maintenance work and inspections and prepared reports. If the information
is provided, Plaintiff’s lawyer will attempt to speak to and perhaps depose the
individuals. This implies Defendant would constitute harassment and would embarrass,
shame and stigmatize the individuals.47 Speaking to a witness or even taking a witness
deposition certainly does not constitute an intrusion “long deemed impermissible under
the common law and in our cultural traditions.“48 Of course, providing the names and
locations does mean the individuals lose total control of their privacy, but in a context
wherein the individuals may have information relating to the death of another individual,
the intrusion does not rise to such a level that the names and locations must be kept
secret. This is especially so, because the individuals may have information tending to
show that the Army is responsible for the death. Defendant suggests that giving
information about a wrongful death would embarrass, shame or stigmatize a witness in
the circumstances here. A better description of the impact on the individuals is that
disclosure would inconvenience them. Defendant also argues that the media would
take an interest in the wrongful death lawsuit which could subject the individuals to
additional intrusions on their privacy. That argument is entirely speculative. Moreover,
in a Federal Tort Claims Act lawsuit, the government, not the individual government
employee, would be the named defendant.
Defendant also points out that the level of an employee in an agency hierarchy
should be considered. Generally that means that the lower the individual’s position, the
46Id. at pp. 22-23.
47Doc. 21 at p. 8.
48Church of Scientology, supra n.34.
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stronger his or her privacy interest. The court agrees that often will be the case.
However, in the case at bar, there are no higher level persons who would have the
relevant information. The names and current locations of the employees must be
produced.
Plaintiff accepts that three of the four sets of documents which Defendant has
withheld fall within in the deliberative process exemption, but contends that the email
chain among staff members–eight emails dated between 4/29 and 5/4--should be
disclosed. Plaintiff argues that Defendant has not provided sufficient information to
show that they are part of the deliberative process nor to show that they do not contain
segregable information which should be disclosed. Whatever the state of affairs before
Defendant agreed to produce segregable information from this email chain, the court
now has the benefit of Kristine MH Coyne’s declaration.49 Ms. Coyne avers that the
redacted portions “contain the personnel recommendations of USARK staff”.50 This is a
particularized explanation. It is entitled to substantial weight.51 It is enough to persuade
the court that the redacted information is part of the deliberative process. The
redactions in this email chain are appropriate.
49Doc. 17-3.
50Id. at ¶ 10.a.
51Shannahan, 672 F.3d at 1148.
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V. CONCLUSION
For the reasons above, the motion at docket 12 is granted in part and denied in
part and the motion at docket 17 is granted in part and denied in part: Defendant shall
provide Plaintiff with the names and current location of those persons whose identifying
information was redacted; Defendant is not required to provide any additional
documents to Plaintiff.
DATED: October 10, 2018.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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