McGrady v. Winter

• Court: District Court, District of Columbia
• Decided: July 22, 2009
• Docket: Civil Action No. 2006-0752
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) JACKSON L. MCGRADY, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-752 (GK) ) ) Ray Mabus,1 ) Secretary of the Navy, ) and ) DEPARTMENT OF THE NAVY, ) ) Defendants. ) ____________________________ )

MEMORANDUM OPINION

Plaintiff Jackson L. McGrady brings this action, pro se,2

against Defendant Ray Mabus, Secretary of the Navy, and Defendant

Department of the Navy (“Navy”), pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552.3

1 Pursuant to Fed. R. Civ. P. 25(d), Secretary of the Navy Ray Mabus is automatically substituted as Defendant for former Secretary of the Navy Donald C. Winter. 2 Plaintiff may be pro se but his pleadings were as clear, well-written, and well-reasoned as those submitted by most practicing lawyers. There is some documentary evidence to suggest that he is a lawyer. See Pl.’s Mot., Ex. 2. 3 Plaintiff has also filed a related suit against the same Defendants. See Civil Action No. 05-1651. In that case, Plaintiff filed suit challenging Defendants’ denial of his request to convene a Special Selection Board after he was not selected for promotion to Lieutenant Colonel. This matter is now before the Court on Defendants’ Motion for

Summary Judgment [Dkt. No. 7] and Plaintiff’s Cross-Motion for

Summary Judgment [Dkt. No. 8]. Upon consideration of the Motions,

Oppositions, Replies, the entire record herein, and for the reasons

stated below, Defendants’ Motion is denied and Plaintiff’s Cross-

Motion is granted.

I. Background4

In the Navy, a Selection Board determines which officers

should be promoted. After the Board meets, it releases a public

statement listing the officers selected for promotion. It also

releases statistics on the selected officers, including their

occupational specialties and educational background.

During such proceedings, Selection Board members use Master

Brief Sheets to aid their promotion determinations. The Master

Brief Sheets include “key personnel data and a summary of an

officer’s entire performance evaluation record.”5 Defs.’ Opp’n at

4 Unless otherwise noted, the facts set forth herein are undisputed and drawn from the parties’ Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h) and the parties’ summary judgment papers. 5 A Master Brief Sheet is available for each officer in the Marine Corps. It is generated by the Optical Digital Imaging Records Management System. Using this system, officers may access their own Master Brief Sheets. The personnel data on the Master Brief Sheets includes the officer’s occupational specialty and education level. The performance evaluation data includes Value Distribution Markings and Comparative Assessments. The Value Distribution Markings are ratings made by a reviewing officer, ranging from unsatisfactory to outstanding. Comparative

-2- 7. At the conclusion of the proceedings, the President of the

Selection Board chooses a “sampling” of the Master Brief Sheets of

officers selected and not selected for promotion, as those “most

representative of the Board’s deliberations and recommendations.”

Id. at 8-9. These are known as Sampled Master Brief Sheets. Id.

The Sampled Master Brief Sheets are stored in a limited access

database and are used only during Special Selection Board

proceedings. A Special Selection Board is convened only when the

Secretary of the Navy determines that there was an “administrative

error” or “material unfairness” during a particular Selection Board

proceeding. At a Special Selection Board proceeding, the records

of the individual in question are compared with the Sampled Master

Brief Sheets. The Sampled Master Brief Sheets “provide the Special

Selection Board with ‘a relative base [which indicates] which

eligible officers, in the opinion of a majority of the members of

the board, [were] fully qualified for promotion.’” Id. at 10

(internal quotation marks and citations omitted).

On September 28, 2005, Plaintiff wrote the Commandant of the

United States Marine Corps requesting information relating to

Selection Boards that met in 2004 and 2005. Specifically, he

requested the following three items: (1) redacted copies of all

Master Brief Sheets of the officers recommended for promotion by

Assessments are ratings on an alphabetical scale that are assessed in relation to other officers. Defs.’ Opp’n at 7 & nn.2-4.

-3- the Fiscal Year 2004 and 2005 Lieutenant Colonel Selection Boards,

(2) redacted copies of all Master Brief Sheets of the officers not

recommended for promotion by the 2004 and 2005 Lieutenant Colonel

Selection Boards, and (3) a copy of the precepts6 from the Fiscal

Year 2004 and 2005 Lieutenant Colonel Selection Boards. The

request included both Master Brief Sheets and Sampled Master Brief

Sheets.7

In a letter dated October 5, 2005, Defendants informed

Plaintiff that his request could not be processed within the

prescribed time period and advised him that this result could be

treated as an appealable adverse determination. On October 13,

2005, Plaintiff filed an appeal.

Before the appeal could be resolved, Defendants informed

Plaintiff that they had reached a decision partially denying his

request. In a letter dated November 17, 2005, Defendants informed

Plaintiff that the Board precepts he requested were publicly

available on a Marine Corps Promotion Branch website.

6 A precept is a document that “provides the selection board with specific instructions regarding how the selection board should be conducted,” “as well as the substantive information to be considered.” Defs.’ Opp’n at 6, 27 (internal citations omitted). It “includes factors that board members can and cannot consider in making their selection decisions.” Pl.’s Mot. at 4. 7 Unless otherwise specified, the term “Master Brief Sheets” is used herein to refer to both Master Brief Sheets and Sampled Master Brief Sheets.

-4- The letter also stated that although Defendants had located

the Master Brief Sheets that Plaintiff requested, they could not be

released because they were “proceedings,” exempted under 5 U.S.C.

§ 552(b)(3), and their release was prohibited under 10 U.S.C. §

618(f).8

In a letter dated January 4, 2006, Plaintiff filed an

administrative appeal. On February 23, 2006, Defendants denied the

appeal. Plaintiff filed his pro se Complaint in this Court on

April 25, 2006.

8 After the parties completed briefing on the pending Motions, Congress repealed 10 U.S.C. § 618(f) and replaced it with 10 U.S.C. § 613a. Section 618(f) had stated that “proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board.” 10 U.S.C. § 618(f). The newly enacted Section 613a states that “proceedings of a selection board convened under section 611 of this title may not be disclosed to any person not a member of the board.” Congress passed the new statute on October 17, 2006 as part of the National Defense Authorization Act for Fiscal Year 2007. Pub. L. No. 109-364, § 547, 120 Stat. 2216 (2006); Defs.’ Notice of Supplemental Authority (Oct. 29, 2008) [Dkt. No. 16].

Briefing on the present Motions was completed on September 25, 2006. Apart from Defendants’ Notice of Supplemental Authority, neither party has submitted any briefing on the issue of whether the changes to the statute impact the issues in this case, although the relevant language of both statutes appears to be identical. When a statute is enacted after the events in issue and Congress has not “expressly prescribed the statute’s proper reach,” a court must “determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). Because the statutes are substantively similar and therefore do not substantively alter the parties’ rights, it is clear that 10 U.S.C. § 613a does not have retroactive effect. Accordingly, the relevant statute in this case is 10 U.S.C. § 618(f).

-5- II. Standard of Review

FOIA “requires agencies to comply with requests to make their

records available to the public, unless the requested records fall

within one or more of nine categories of exempt material.” Oglesby

v. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing

5 U.S.C. §§ 552(a), (b)).

In a FOIA case, the district court conducts a de novo review

of the government’s decision to withhold requested documents under

any of the statute’s nine exemptions. 5 U.S.C. § 552(a)(4)(B). An

agency that withholds information pursuant to a FOIA exemption

bears the burden of justifying its decision. Petroleum Info. Corp.

v. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)

(citing 5 U.S.C. § 552(a)(4)(B)).

In a FOIA case, a court may award summary judgment solely on

the basis of information provided in affidavits or declarations

when they (1) “describe the documents and the justifications for

nondisclosure with reasonably specific detail;” (2) “demonstrate

that the information withheld logically falls within the claimed

exemption;” and (3) “are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981).

III. Analysis

-6- FOIA “mandates a strong presumption in favor of disclosure.”

Multi Ag Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1227

(D.C. Cir. 2008) (internal quotation marks omitted). Nonetheless,

an agency may withhold information that falls within one of the

statute’s nine enumerated exemptions. August v. FBI, 328 F.3d 697,

699 (D.C. Cir. 2003). These exemptions were “designed to protect

those legitimate governmental and private interests that might be

harmed by release of certain types of information.” Id. (internal

quotation marks omitted). Because the statute favors disclosure,

the exemptions “must be narrowly construed.” Multi Ag Media LLC,

515 F.3d at 1227 (internal quotation marks omitted).

In the present case, Defendants claim that three FOIA

exemptions apply: Exemptions 3, 5, and 6.

A. FOIA Exemption 3

FOIA Exemption 3 permits an agency to withhold information

“specifically exempted from disclosure by statute . . . provided

that such statute (A) requires that the matters be withheld from

the public in such a manner as to leave no discretion on the issue,

or (B) establishes particular criteria for withholding or refers to

particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).

When the government alleges that it may withhold information

pursuant to Exemption 3, “the sole issue for decision is the

existence of a relevant statute and the inclusion of withheld

material within that statute’s coverage.” Goland v. CIA, 607 F.2d

-7- 339, 350 (D.C. Cir. 1987). A statute qualifies as a withholding

provision when it is “the product of congressional appreciation of

the dangers inherent in airing particular data” and it

“incorporate[s] a formula whereby the administrator may determine

precisely whether the disclosure in any instance would pose the

hazard that Congress foresaw.” Wisconsin Project on Nuclear Arms

Control v. Dep’t of Commerce, 317 F.3d 275, 280 (D.C. Cir. 2003).

Defendants argue that they must withhold the information

Plaintiff requests because it is “specifically exempted from

disclosure” by 10 U.S.C. § 618(f). Defs.’ Mot. at 8-9. Section

618(f) stated that “proceedings of a selection board convened under

section 611(a) of this title may not be disclosed to any person not

a member of the board.” 10 U.S.C. § 618(f).

Defendants argue that Master Brief Sheets and Sampled Master

Brief Sheets are “proceedings” and are therefore protected by the

statute. See Defs.’ Mot. at 9-10. They contend that both types of

information are “proceedings” because they “are a tool used during

the promotion board process because they summarize important

information regarding an officer’s past performance, an integral

part of determining which officers are best qualified for

promotion.” Id. at 10.

In response, Plaintiff concedes that if the requested

information constituted a proceeding, Defendants could properly

withhold it. Pl.’s Mot. at 5. Plaintiff argues, however, that the

-8- requested information is not within the purview of 10 U.S.C. §

618(f) because it is not a “proceeding” within the meaning of the

statutory term. Plaintiff makes two specific claims: first, the

term’s plain meaning indicates that none of the requested

information is a proceeding, and second, Defendants’ actual

practices indicate that Master Brief Sheets and Sampled Master

Brief Sheets are not “proceedings.”

1. Defendants’ Interpretation of the Statutory Term “Proceedings” Is Entitled to Chevron Deference

In the absence of a definition of the term in the statute

itself, Defendants rely upon Black’s Law Dictionary to supply one.

Defendants contend that the term “proceedings” refers to “[a]n act

or step that is part of a larger action.” Defs.’ Mot. at 10

(quoting Black’s Law Dictionary 1241 (8th ed. 2004)). Defendants

argue that because Congress did not define the term in the statute,

the term is ambiguous, and the agency’s definition should apply.

See Defs.’ Opp’n at 20 (arguing that the agency’s interpretation is

entitled to deference pursuant to Chevron U.S.A, Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984)).

The Supreme Court has “long recognized that considerable

weight should be accorded to an executive department’s construction

of a statutory scheme it is entrusted to administer.” Chevron, 467

U.S. at 844. In accordance with this principle, a court must apply

a two-part test to determine whether the agency’s interpretation is

entitled to deference. Id. at 843. A court first must determine

-9- if the “statute is silent or ambiguous with respect to the specific

issue before it.” Id.; see also INS v. Aguirre-Aguirre, 526 U.S.

415, 424 (1999). If it is, then a court must determine “whether

the agency’s answer is based on a permissible construction of the

statute.” Chevron, 467 U.S. at 843. If the agency’s

interpretation is “reasonable,” then it is entitled to deference.

Sierra Club v. EPA, 536 F.3d 673, 677 (D.C. Cir. 2008).

As Defendants correctly argue, the term “proceedings” is

ambiguous because Congress did not define it in the statute.

Accordingly, it is necessary to apply the second prong of the

Chevron test and determine whether the agency’s definition of

“proceedings” is reasonable.

Here, Defendants used Black’s Law Dictionary to provide the

definition of “proceedings.” Plaintiff instead proposes two

definitions from Webster’s Third New International Dictionary as

preferable alternatives: “a particular way of doing or

accomplishing something” or “an official account (as in a book of

minutes).” Pl.’s Mot. at 8-9.

Black’s Law Dictionary is a well known legal reference

dictionary which is widely relied upon by attorneys and courts.

See,e.g., Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532

(2009) (using Black’s Law Dictionary to define the term

“affidavit”); Karsner v. Lothian, 532 F.3d 876, 887 (D.C. Cir.

2008) (using Black’s Law Dictionary to define the term “award”).

-10- In evaluating the choice between Black’s Law Dictionary and

Webster’s Third New International Dictionary, it is clear that

Defendants’ choice of one of the definitions used in Black’s is

reasonable, and therefore is entitled to deference.

2. Master Brief Sheets Do Not Fall Within Defendants’ Definition of Proceedings

Even under Defendants’ definition, however, a Master Brief

Sheet is not a “proceeding.” To be considered a proceeding under

the Black’s Law Dictionary definition employed by Defendants,

Master Brief Sheets would need to be an “act or step.” They are

not. They are simply a compilation of data, and a tool, albeit a

very important one, used by Selection Boards.9 Plaintiff correctly

states that “deliberation about the import of the data contained

within the Master Brief Sheets could be a ‘step in the proceeding’

9 Defendants cite to several cases to bolster their claim that Master Brief Sheets are “proceedings.” Defs.’ Mot. at 10-11. One such case is In re England, 375 F.3d 1169 (D.C. Cir. 2004). Neither party contests the case’s holding that “[d]isclosure of selection board proceedings in civil discovery would certainly undermine, if not totally frustrate, the purpose of Section 618(f).” Id. at 11 (quoting In re England, 375 F.3d at 1178). Nor does either party contest that the information requested by the plaintiffs in that case -- testimony of Selection Board members about the Selection Board proceedings -- constituted part of the “proceeding.” While In re England affirms propositions on which both parties agree, it does not address the issue of what is encompassed in the term “proceedings” and therefore provides no support for Defendants’ argument that Master Brief Sheets are “proceedings.”

-11- but the Master Brief Sheet itself cannot be.” Pl.’s Mot. at 8.10

Master Brief Sheets are plainly factual material.11

Accordingly, under the definition employed by Defendants

themselves, Master Brief Sheets are not “proceedings” and therefore

do not fall within the scope of Section 618(f).

3. Defendants’ Past Practices Demonstrate that Master Brief Sheets Are Not Proceedings

Plaintiff also alleges that Master Brief Sheets are not

“proceedings” because Defendants already make public similar types

of information, thereby acting inconsistently with the position

they are taking in this litigation. Pl.’s Mot. at 15-19.

10 Defendants argue that the information withheld in Miller v. Dep’t of the Navy, 383 F. Supp. 2d 5 (D.D.C. 2005), rev’d on other grounds, 476 F.3d 936 (D.C. Cir. 2007), is analogous to the information at issue in the present case. At issue in Miller was information redacted from a report by an inspector general. Id. at 7-8. The inspector general had been charged with reviewing whether the Selection Board’s decision was “materially unfair” because one of the Selection Board members had conducted himself improperly during deliberations. Id. This review would have required the inspector general to examine the content of the Selection Board’s deliberations, and thus the court noted in a footnote that the plaintiff had “provided the court with no reason” to conclude that the requested information was not subject to withholding pursuant to Exemption 3. See id. at 17 n.3. In contrast, the information requested in this case does not involve the content of deliberations. 11 As the Government states in its Opposition, “a District Court considering a FOIA action has ‘an affirmative duty to consider the segregability issue sua sponte.’” Defs.’ Opp’n at 31 (citing Trans-Pacific Policing Agreement v. U.S. Customs Service, 177 F.3d 1022, 1028 (D.C. Cir. 1999)). Here, the Court is simply segregating out what is purely factual data from the opinions, conversations, and deliberations that are protected under Section 618(f).

-12- First, Plaintiff claims that Master Brief Sheets cannot be

withheld because precepts, which are similar to Master Brief

Sheets, are made publicly available on the Internet by Defendants.

Id. at 15-16. Precepts, like Master Brief Sheets, are provided to

members of the Selection Board. Precepts, like Master Brief

Sheets, are used by Board members during their deliberations. If

precepts may be released then, according to Plaintiff, Master Brief

Sheets may be released as well.

Defendants respond that precepts are distinguishable from

Master Brief Sheets because Selection Boards use them for

“direction regarding their duties as well as their oaths of

confidentiality.” Defs.’ Opp’n at 27. Therefore, Defendants claim

precepts are “fundamentally different from the ‘materials and other

information’ that the board utilized in making its promotion

recommendations.” Id. Defendants also state that a precept is

“issued in order to instruct each selection board on the manner in

which to proceed,” whereas a Master Brief Sheet contains “key

personnel data and a summary of each officer’s entire performance

record.” Id. (internal punctuation and citations omitted).

The distinctions cited by Defendants do not demonstrate any

meaningful difference between precepts and Master Brief Sheets.

Precepts, like Master Brief Sheets, are part of the Selection Board

proceedings in that they provide information that shapes the

conclusions reached by the Board. For example, they state the

-13- number of officers that a Selection Board may select for promotion

and the selection standard that the Board shall employ. Pl.’s

Mot., Ex. 6. Specifically, a precept might require a Board to

refrain from considering the marital status of an officer, but to

“give due consideration to the needs of the Marine Corps for

officers with particular skills.” Id.

If anything, the distinctions cited by Defendants suggest that

precepts are more likely to be considered “proceedings” than are

Master Brief Sheets.12 Unlike Master Brief Sheets, precepts do not

simply provide a set of underlying facts. Instead, they directly

influence the process used by the Selection Board by determining

the “manner in which to proceed.” Thus, given that the Navy does

not consider precepts to be “proceedings” and permits their

release, the agency has not offered any rational basis for

disclosing them and refusing to disclose Master Brief Sheets which

contain nothing but factual material.

Second, Plaintiff argues that Defendants do not treat Master

Brief Sheets as “proceedings” because they release Master Brief

Sheets to individual officers and make public some of the

information that appears on them, such as occupational specialty

12 Defendants’ argument that Master Brief Sheets contain “key personnel data” is not relevant to the analysis of whether Master Brief Sheets are non-disclosable proceedings under FOIA Exemption 3 and 10 U.S.C. § 618(f). Instead, the disclosure of data that could be considered private is relevant to the analysis under Exemption 6. See infra III.C.

-14- and education level. If Master Brief Sheets and information

contained in them are released in some circumstances, Plaintiff

argues, then Defendants cannot claim that Section 618(f) bars their

release in the circumstances presented in this case.

In response, Defendants contend that two sets of Navy

regulations specifically prohibit the release of Master Brief

Sheets. The first, MCO P1400.31B, ¶ 4001 (2006), states that

“Board presidents are charged to brief the members and recorders of

the board . . . that proceedings, deliberations, materials, and any

other information pertaining to the board are not releasable except

as authorized by the Secretary of the Navy, the Secretary of

Defense, or the President.” (emphasis added by Defendants). The

second, Department of Army Memo 600-2 ¶ 6.g. (1999), states that

“Board members will not disclose statistical analyses, details of

the board proceedings, or specifics pertaining to selection or non-

selection of individual officers unless authorized to do so by

proper authority.” (emphasis added by Defendants).

These regulations do not prevent release of Master Brief

Sheets and Sampled Master Brief Sheets for two reasons. First,

Defendants concede that these two regulations are aimed not at

regulating disclosure by the agency as a whole, but instead at

preventing disclosure by individual Board members. See Defs.’

Opp’n at 22 (“This strict confidentiality imposed on board members

prohibits them from disclosing how they used the information

-15- provided in making their decisions to promote certain officers.”)

(emphasis added). It is self-evident that disclosure by Board

members presents issues distinct from official disclosure by the

agency. If a Selection Board were to determine that one particular

officer should not be promoted, for example, the agency would have

a compelling interest in preventing dissenting Board members from

voicing their disagreement with the result.

Second, the regulations are not coextensive with Section

618(f). If they were coextensive with Section 618(f), then neither

“materials” nor “any other information pertaining to the board”

could be released. In actuality, however, the Navy releases

several different types of information considered at Selection

Board meetings. See Pl.’s Mot., Exh. 7 (released information

includes the average “time in service,” “age,” and educational

level of the officers selected for promotion). Additionally, as

discussed supra, the Navy makes precepts publicly available, even

though precepts contain detailed information about the structure

and criteria employed in Selection Board proceedings. Precepts

clearly “pertain[]” to the Board. Given that these two types of

information are released, Section 618(f) and the regulations cannot

be coextensive. As a result, the regulations do not prevent the

release of Master Brief Sheets and Sampled Master Brief Sheets.

-16- For these reasons, Master Brief Sheets are not “proceedings”

and are not barred from release by FOIA Exemption 3 and 10 U.S.C.

§ 618(f).

B. FOIA Exemption 5

FOIA Exemption 5 permits an agency to withhold “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.” 5 U.S.C. § 552(b)(5). This Exemption incorporates the

“deliberative process privilege,” which “covers documents

reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and

policies are formulated.” Dep’t of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1, 8-9 (2001) (quoting NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks

omitted)); see also Public Citizen, Inc. v. Office of Mgmt. &

Budget, ___ F.3d ___, 2009 WL 1709216, at *7 (D.C. Cir. June 19,

2009). In addition, the privilege covers information that

“reflect[s] the personal opinions of the writer rather than the

policy of the agency.” Morley v. CIA, 508 F.3d 1108, 1127 (D.C.

Cir. 2007) (internal quotation marks and punctuation omitted).

When the information at issue is “[f]actual material that does not

reveal the deliberative process,” it is not protected. Id.

(quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983).

-17- To invoke the deliberative process privilege, an agency must

show that the requested material meets two requirements: it must be

“both ‘predecisional’ and ‘deliberative.’” Public Citizen, 2009 WL

1709216, at *7; see also In re Sealed Case, 121 F.3d 729, 737 (D.C.

Cir. 1997). Material is predecisional if “it was generated before

the adoption of an agency policy.” Judicial Watch, Inc. v. Food &

Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.

1980)). To be predecisional, a “court must first be able to

pinpoint an agency decision or policy to which these documents

contributed.” Morley, 508 F.3d at 1127.

Material is deliberative if “it reflects the give-and-take of

the consultative process.” Judicial Watch, 449 F.3d at 151

(internal citations and quotation marks omitted). It must also

“reflect[] advisory opinions, recommendations, and deliberations

comprising part of a process by which governmental decisions and

policies are formulated, [or] the personal opinions of the writer

prior to the agency’s adoptions of a policy.” Public Citizen, 2009

WL 1709216, at *7 (quoting Taxation With Representation Fund v.

IRS, 646 F.2d 666, 677 (D.C. Cir. 1981)); see also Defs.’ Opp’n at

13 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).

One key factor is whether disclosing the requested information

would “inhibit candor in the decision-making process.” Army Times

Pub. Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C. Cir.

-18- 1993) (citing Petroleum Info. Corp., 976 F.2d at 1435). If

documents “neither make recommendations for policy change nor

reflect internal deliberations on the advisability of any

particular course of action, they are not predecisional and

deliberative.” Public Citizen, 2009 WL 1709216, at *7. Documents

that were once predecisional and deliberative but now reflect an

agency’s “formal or informal policy on how it carries out its

responsibilities” are considered part of the agency’s “working law”

and are not covered by the deliberative process privilege. Id.;

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980) (“[E]ven if the document is predecisional at the

time it is prepared, it can lose that status if it is adopted,

formally or informally, as the agency position on an issue.”).

1. Master Brief Sheets Are Not Deliberative in Nature

Master Brief Sheets are clearly predecisional because they are

“generated” prior to the promotion determinations and are used

during the Selection Board proceedings as a tool for the Selection

Board.

For the deliberative prong, the central question is not

whether the information at issue bears a causal connection to a

final determination, but is rather whether the requested

information independently “reflects” the deliberative process

itself. See Public Citizen, 2009 WL 1709216, at *8 (“Only those

portions of a predecisional document that reflect the give and take

-19- of the deliberative process may be withheld.”) (internal citations

omitted). Defendants contend that because the Master Brief Sheets

are so “inextricably connected to the deliberative material,” they

are deliberative in nature and their release would “cause harm to

the agency’s deliberations.” Defs.’ Opp’n at 16 (citing Wolfe v.

Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir.

1998)).

Master Brief Sheets are used as a tool in the decision-making

process, and serve as an important factor in the final promotion

decision. However, they reveal only the data used during the

process, not the substance of the deliberations. See Public

Citizen, 2009 WL 1709216, at *9 (“[A]gencies must disclose those

portions of predecisional and deliberative documents that contain

factual information that does not inevitably reveal the

government’s deliberations.”) (internal citations and quotation

marks omitted). Defendants’ own definition of Master Brief Sheets

suggests that they contain no information about the content of

Selection Board proceedings, but rather provide only facts that are

used during the proceedings. Defs.’ Opp’n at 7 (“Master Brief

Sheets contain key personnel data and a summary of an officer’s

entire performance evaluation record.”). Thus, they are not

deliberative in nature because they do not “make[] recommendations

or express[] opinions” on the issue of a particular officer’s

fitness for promotion. Vaughn, 523 F.2d at 1144.

-20- In addition, it is unlikely that candor would be inhibited

during Selection Board proceedings because releasing Master Brief

Sheets reveals no information about the content of Board members’

deliberations, or about the weight that a particular fact was given

in a decision on any individual officer.

Finally, even if Master Brief Sheets were to satisfy the two

prongs of the deliberative process inquiry, Exemption 5 covers only

“memorandums or letters.” Master Brief Sheets are neither. They

are data. Therefore, they are not protected by Exemption 5.

For these reasons, Exemption 5 does not apply to Master Brief

Sheets.

2. Sampled Master Brief Sheets Are Neither Predecisional Nor Deliberative in Nature

Defendants also argue that the Sampled Master Brief Sheets --

as opposed to Master Brief Sheets alone13 -- present unique

considerations. The President of the Board selects a sampling

after he “compares, evaluates, and analyzes” the Master Brief

Sheets and identifies those that are representative of the entire

body of officers selected for promotion. The Sampled Master Brief

Sheets are then stored in a confidential database for use in the

event that the Navy holds Special Selection Board proceedings.

13 See supra note 7.

-21- First, Defendants correctly argue that the Sampled Master

Brief Sheets are predecisional because “they are antecedent to any

decision by the Navy regarding promotions.” Defs.’ Opp’n at 15.14

Second, Defendants contend that because this process requires

the president to “exercise[] his judgment,” the Sampled Master

Brief Sheets are deliberative in nature. Id. The Sampled Brief

Sheets are not protected by the deliberative process privilege for

three reasons.

First, the Sampled Master Brief Sheets are not deliberative.

As our Court of Appeals has stated, the “first step in determining

whether disclosure would harm the deliberative process is to

examine the context in which the materials are used.” Wolfe, 839

F.2d at 774. In determining whether the deliberative process

privilege applies, the inquiry must be conducted “in light of the

policies and goals that underlie” the privilege.” Id.

In this case, although Defendants may be correct that the

process by which the President of the Selection Board selects the

Sampled Master Brief Sheets does require deliberation, the sampling

process itself is not the relevant deliberation for analysis.

Defendants have asserted the deliberative process privilege not

because they have an interest in protecting the sampling process,

but because they seek to protect the promotion process. Defs.’

Opp’n at 15 (“[T]he sampled Master Brief Sheets are predecisional

14 Plaintiff does not seem to contest this.

-22- because they are antecedent to any decision by the Navy regarding

promotions.”) (emphasis added).

The sampling process has no impact on the officer selection

proceedings, and samples do not reveal anything more about the

deliberative process than the current practice of releasing the

names and basic statistical information of officers selected for

promotion. It would distort the purpose of the deliberative

process privilege -- to protect the consultations that precede

decisions on important legal or policy matters -- if tangential

deliberations could be used as a bootstrap for withholding

information that otherwise is not protected by the privilege.

Second, disclosing the samples will not inhibit dialogue or

discourage candor at future Selection Board proceedings because

they reveal no information about individual Board members and no

substantial information about the content of the deliberations.

Third, Sampled Master Brief Sheets, like Master Brief Sheets,

are not “memorandums or letters.” Therefore, like Master Brief

Sheets, they are not protected by Exemption 5.

C. FOIA Exemption 6

Defendants assert FOIA Exemption 6 as their third basis for

withholding the requested information. This Exemption permits an

agency to withhold “personnel and medical files and similar files

the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The Supreme

-23- Court has held that Exemption 6 was “intended to cover detailed

Government records on an individual which can be identified as

applying to that individual.” Dep’t of State v. Wash. Post Co.,

456 U.S. 595, 602 (1982) (quoting H.R. Rep. No. 1497, 89th Cong.,

2d Sess. 11) (internal quotation marks omitted).

Because the Exemption requires an agency to demonstrate that

disclosure would be “clearly unwarranted,” courts must “tilt the

balance (of disclosure interests against privacy interests) in

favor of disclosure.” Morley, 508 F.3d at 1127 (quoting Wash. Post

Co. v. Dep’t of Health & Human Servs., 690 F.2d 252, 261 (D.C. Cir.

1982) (internal quotation marks omitted)). Such strong language

creates a “heavy burden” for Defendants. Id. (quoting Wash. Post

Co., 690 F.2d at 261). Under Exemption 6, “the presumption in

favor of disclosure is as strong as can be found anywhere in

[FOIA].” Id. (quoting Wash. Post Co., 690 F.2d at 261).

To succeed on a claim pursuant to Exemption 6, an agency must

first identify a privacy interest. See Defs.’ Opp’n at 23;

Consumers’ Checkbook, Ctr. for the Study of Servs. v. Dep’t of

Health and Human Servs., 554 F.3d 1046, 1051 (D.C. Cir. 2009)

(“[P]hysicians have a substantial privacy interest in the total

payments they receive from Medicare for covered services.”); see

also Judicial Watch, 449 F.3d at 153. If the requested information

has no link to a specific individual, no privacy interest is

implicated. Citizens for Envtl. Quality, Inc. v. Dep’t of Agric.,

-24- 602 F. Supp. 534, 538 (D.D.C. 1984) (citing Dep’t of Air Force v.

Rose, 425 U.S. 352, 380 n.19 (1976)). Once the agency has

identified a privacy interest in withholding the information, it

must then show that the asserted privacy interest outweighs

“whatever public interest exists in having the names and addresses

disclosed.” See Judicial Watch, 449 F.3d at 153.

Here, Plaintiff requests only redacted information. See

Defs.’ Mot., Ex. C (in his FOIA request, Plaintiff states, “I wish

to emphasize that I am not seeking personal identifiers of any of

the records and anticipate that you will redact these

identifiers.”). Nonetheless, Defendants assert that “[d]espite

plaintiff’s proposed redactions, protected personal information

would still be disclosed,” including “the tabulated results of

performance evaluations spanning the bulk of the subject officers’

careers.” Defs.’ Opp’n at 24 & n.13.

In the absence of any “personal identifiers,” it is highly

unlikely -- if not impossible -- that disclosure would threaten an

individual’s privacy interests. Defendants have not shown that a

citizen would be able to use the redacted Master Brief Sheets to

identify any particular individual described. Therefore Defendants

have not carried their “heavy” burden to show that disclosure would

cause a “clearly unwarranted” invasion of privacy.

For this reason, Exemption 6 does not protect the requested

information in this case.

-25- IV. Conclusion

For the reasons set forth above, Defendants’ Motion for

Summary Judgment is denied, and Plaintiff’s Cross-Motion for

Summary Judgment is granted. An Order shall accompany this

Memorandum Opinion.

/s/ July 22, 2009 Gladys Kessler United States District Judge

Copies to: Attorneys of record via ECF

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