A democracy requires accountability and accountability requires transparency.1
Over the past five years the military has seen a significant increase in both the media’s and general public’s interest in criminal prosecutions taking place within the military. In the Army alone, the prosecutions of Brigadier General Jeffrey Sinclair, Private First Class Bradley Manning, and Sergeant Bowe Bergdahl are just three examples of courts-martial generating such interest. While Rule for Courts-Martial (R.C.M.) 806 gives members of the military and the civilian public the ability to access courts-martial proceedings, it also gives military judges wide latitude to control who is present in the courtroom and to decide whether the proceedings will be open or closed.2 This has resulted in significant frustration on the part of the media who feel the military is frequently impeding their ability to report on the judicial proceedings.3 At times, such frustration has resulted in the media resorting to litigation in an attempt to open up courts-martial proceedings.4 It has also led to an increase in the media’s use of the procedures available to them under the Freedom of Information Act (FOIA) to gain access to relevant information when the court does not make such records or proceedings public.5 Examples of this can be seen in reporter David Phillips’s use of the FOIA to gather information for his Pulitzer Prize winning piece Other Than Honorable,6 multiple FOIA requests by media outlets for information relevant to the Staff Sergeant Robert Bales case,7 and Judicial Watch’s litigation against the Obama administration regarding access to documents relevant to the Sergeant Bowe Bergdahl case.8
This increased reliance on the FOIA by the media and the public means that a greater number of Army practitioners are going to find themselves involved in responding to such requests. However, unlike many federal agencies where FOIA requests are handled by individuals in full-time positions dedicated to FOIA practice, Army practitioners reviewing such requests will often have little experience dealing with this complex area of law.9 When this lack of experience is combined with significant media interest and the short deadlines set by the FOIA, the risk of mistakes is high. This article will provide practitioners with the information necessary to quickly develop an understanding of the FOIA, the FOIA’s exemptions, and best practices for handling FOIA requests related to criminal proceedings.
The purpose of the FOIA is to allow any person to request and obtain, without explanation or justification, existing, identifiable, and unpublished agency records on any topic.10 Once such a request is made, an agency has twenty days to determine if the information requested is exempt from disclosure by one of the nine exemptions, and, if it isn’t, release the requested information to the requestor.11 In short, the act is meant to encourage accountability in government by allowing the citizenry to access information held by the government that serves it.12
In the spirit of encouraging accountability, executive departments have been directed to approach the handling of FOIA requests with a presumption in favor of disclosure.13 This sentiment is echoed in the Department of Defense Freedom of Information Act Manual (DoDM 5400.07) which states that “[i]nformation responsive to a FOIA request will be withheld only if the DoD Component reasonably foresees that disclosure would harm an interest protected by one or more of the FOIA exemptions or disclosure is prohibited by law.”14 Likewise, Army Regulation (AR) 25–55 states that “records not specifically exempt from disclosure under the Act shall, upon request, be made readily available to the public in accordance with rules promulgated by competent authority, whether or not the Act is invoked.”15 It is extremely important for judge advocates practicing in this area to not only understand this presumption, but also keep it at the forefront of their analysis of FOIA related issues.
The FOIA exempts nine categories of records from disclosure.16 This article focuses on six of these nine exemptions—Exemptions 1 through 3 and 5 through7. Exemptions 4, 8, and 9 will not be discussed as their relevance to courts-martial is limited.17
As an initial matter, it is important for readers to understand that even if an exemption applies to requested information, it does not necessarily mean the information must be withheld.18 This is because the FOIA provides agencies “discretionary release authority” for information protected by Exemptions 2, 5, and 7—except 7(c). Discretionary release authority means that agencies can release information even if an exemption applies so long as there is no foreseeable harm from such a release.19 This standard came into existence on 19 March 2009, when then Attorney General Eric Holder issued a memorandum stating that “an agency should not withhold information simply because it may do so legally,” but rather must apply the “foreseeable harm standard” for denials.20 Therefore, judge advocates handling FOIA requests must understand that it is often not enough to merely determine whether an exemption applies to the requested information. Rather, once they determine that an exemption applies, they must consider the “foreseeable harm” of such a release. If there is no foreseeable harm and the applicable exemption is 2, 4, or 7—except 7(c)—the information should be released regardless of the exemption.21 It is important to note, however, that information protected from disclosure under Exemptions 1, 3, 4, 6, and 7(c) are not subject to discretionary release.22 Practitioners need only consider discretionary release when dealing with Exemptions 2, 5, or 7, except 7(c).23
Exemption 1 excludes from release “records properly classified in the interest of national defense or foreign policy purposes as secret under criteria established by an executive order.”24 The current executive order in effect is Executive Order 13526.25 Only documents properly classified as Confidential, Secret, or Top Secret qualify for Exemption 1.26 Documents marked For Official Use Only, Limited Distribution, or Controlled Unclassified Information do not qualify under exemption 1.27
Before relying on this exemption “it must be determined whether the information is properly classified in accordance with the Executive Order at the time the FOIA request is made.”28 Therefore, judge advocates who are considering using Exemption 1 as the basis for redacting information must coordinate with the appropriate officials on their staff to determine if the document was properly classified or if it should be declassified.29
Exemption 2 excludes from release records that are “related solely to the internal personnel rules and practices of an agency.”30 It is important to note here that AR 25–55 has not been updated since 1 November 1997. This is significant because AR 25–55 states that “[t]his exemption has two profiles, high b2 and low b2.”31 In 2011, the Supreme Court of the United States overturned thirty years of case law when it issued its opinion in Milner v. Department of the Navy,32 and removed “high b2” from the interpretation of this exemption, holding that in order for records to qualify for Exemption 2 they must relate solely to the agency’s internal personnel rules and practices.33 This ruling created a new three part test which must be satisfied for information to fit within Exemption 2. The three parts of the test are: (1) the information must be related to personnel rules and practices, (2) the information must relate solely to those personnel rules and practices, and (3) the information must be internal.34 This is a significant narrowing of Exemption 235 and it is extremely important for judge advocates handling these issues to understand this and disregard the guidance provided by AR 25–55 as it is no longer in line with the law.
Exemption 3 “incorporates into FOIA certain nondisclosure provisions that are contained in other federal statutes.”36 This information is allowed to be withheld provided the statute either “(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.”37 Additionally, “for any statute enacted after October 28, 2009, in order to qualify as an Exemption 3 statute under this paragraph, it must cite to section (b)(3) of the FOIA.”38 One example of this is “10 U.S.C. § 130b, which allows withholding of information on personnel of overseas, sensitive, or routinely deployable units.”39 Additionally, DODM 5400.07 also provides a list of statutes which meet the requirements of Open FOIA Act of 2009.40
This exemption applies to “inter-agency and intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with an agency.”41 This statute has been construed by the courts to “exempt those documents and only those documents normally privileged in the civil discovery context.”42 As such, this exemption is extremely broad, “encompassing both statutory privileges and those commonly recognized by case law.”43 As a practical matter though, this exemption typically encompasses three types of privileges, which are: (1) the deliberative process privilege, (2) the attorney work-product privilege, and (3) the attorney-client privilege.44
The deliberative process privilege has its basis in the desire to “prevent injury to the quality of agency decisions.”45 “In concept, this privilege protects not merely documents, but also the integrity of the deliberative process itself where the exposure of that process would result in harm.”46 There are two requirements that must be met for the deliberative process privilege to apply. First, “the communication must be predecisional, i.e. ‘antecedent to the adoption of an agency policy.’”47 Second, “the communication must be deliberative, i.e. ‘a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.’”48 “A document is ‘predecisional’ if it is generated before the adoption of an agency policy.”49 To be deliberative, the document must “reflect the give-and-take of the consultative process.”50 When considering this, judge advocates must analyze closely the honest nature of the documents and the role they played in the agency’s deliberations.51 Examples of documents considered to fall under this exemption are listed in AR 25–55.52 They include nonfactual portions of staff papers, after action reports, situation reports containing staff evaluations, advice, opinions, or suggestions, Inspector General reports, and planning, programming, and budgetary information involved in defense planning and the resource allocation process.53
The exemption also traditionally covers the attorney-work product privilege.54 Under the attorney work-product privilege, the exemption is not limited to civil proceedings, but also extends to administrative proceedings and to criminal matters.55 While this only applies when the attorney is working on products in cases where litigation is probable, it is not necessary that the litigation has actually begun.56 The test for this is whether litigation is reasonably regarded as inevitable under the circumstances, as such it is not sufficient that litigation is merely conceivable.57 The key for this exemption to apply is that the document was created at least in part because of the prospect of litigation.58
The Attorney-Client Privilege is the third privilege traditionally incorporated into Exemption 5.59 This privilege is not limited to litigation, but “it fundamentally applies to facts divulged by a client to his attorney” and the opinions given by an attorney to his client based upon those facts.60 This privilege would apply to judge advocates and their commanders in accordance with AR 27–26, Rule 1.13, because judge advocates represent the Army “through its officers, employees or members in their official capacity.”61
Exemption 6 applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”62 There is a two-prong test to decide whether information possessed by the government falls under this exemption. First, and often the most difficult, is a determination whether the records meet the definition of personnel, medical, or similar files.63 Second, if this definition is met, the “agency must engage in a balancing test to consider the intrusion into personal privacy that would occur from release of the records, weighed against the interest of the public in disclosure of the requested materials.”64
The key to understanding this exemption is understanding the definition of the term “similar files.” In U.S. Department of State v. Washington Post Co., the Supreme Court found that Congress intended similar files to include any information that “applies to a particular individual.”65 As a result, similar files constitute any record that “contains personal information about an identified individual.”66 Based on this definition the courts have ruled items such as personnel files, emails, and performance appraisals exempt under Exemption 6.67 However, this exemption cannot be claimed if federal law requires disclosure, nor can it be claimed if the individual whose information is contained in the records consents to the disclosure.68
If there is a privacy interest identified, the next step in the analysis is to balance the privacy interest against the public’s interest in the information. When making this determination practitioners should keep in mind that a particular requestor’s intent is irrelevant. Rather, the “only relevant public interest under FOIA is the extent to which disclosure of the information sought would shed light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to.”69 In practice, this often means low level employee information is protected from disclosure, while disclosure of information pertaining to more senior personnel is fairly common.70 Therefore, when handling these situations practitioners must closely consider who the information pertains to before making a determination regarding disclosure.
Exemption 7 applies to law enforcement investigations.71 While the term “law enforcement” may sound straight forward, case law shows that applying the law enforcement exemption can be extremely complex, particularly in a military context. This is because the definition of what constitutes a law enforcement investigation is broad and often includes items one would not typically consider part of a law enforcement investigation. In applying this exemption, practitioners must always consider the purpose behind it—to protect documents from disclosure where such disclosure “would jeopardize criminal or civil investigations and cause harm to persons involved in matters concerning law enforcement.”72 Keeping that purpose in mind is critical when balancing FOIA’s presumption in favor of disclosure against the organization’s need for effective law enforcement investigations.
The harms that may be considered in a disclosure analysis under Exemption 7 are enumerated as six sub-exemptions.73 To withhold the information “a federal government agency must usually now establish that one of the enumerated harms ‘could reasonably be expected’ to occur if the information is disclosed.”74
In practice, there is a two part analysis to determine if Exemption 7 applies. First, a practitioner will need to consider whether the information requested falls within the definition of a law enforcement investigation. Under AR 25–55, paragraph 1–409, a law enforcement investigation is defined as “an investigation conducted by a command or agency for law enforcement purposes relating to crime, waste, or fraud, or for national security reasons. Such investigations may include gathering evidence for criminal prosecutions and for civil or regulatory proceedings”75 Whether or not a requested item meets the definition of a law enforcement investigation often turns on why the information was gathered.76 From the perspective of a judge advocate, this definition can apply to multiple types of requested information. For example, courts have held that AR 15–6 Investigations,77 Judge Advocate Professional Responsibility Branch Investigations,78 Security Clearance Investigations,79 and Serious Incident Reports submitted to the Army by private security contractors in Iraq80 can all be considered law enforcement investigations. In contrast, “[r]ecords created to conduct ‘general monitoring,’ and similar employee files, are not considered law enforcement records.”81 In making these decisions, courts focused on whether the purpose of the investigation was to “focus directly on specifically alleged illegal acts, illegal actions of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.”82
If it is determined the documents meet the definition of law enforcement records, the second step is to determine whether any of the six sub-exemptions apply. As stated above, these sub-exemptions were created in order to prevent the harmful disclosure of law enforcement information.83 While most of the exemptions are straight forward, two in particular—exemptions 7(c) and 7(f)—have generated a significant volume of case law and require detailed analysis before they can be claimed.
Exemption 7(c) prevents the disclosure of information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.84 While similar to Exemption 6, Exemption 7(c) protects the privacy interest of an individual and affords an even greater privacy protection.85 When considering whether to apply this exemption, the courts have adopted a two-part balancing test. First, it must be determined whether there is a privacy interest in the information.86 If there is, the second part of the analysis is to balance that privacy interest against the public interest favoring disclosure.87
The definition of a privacy interest has been interpreted broadly and encompasses an individual’s control of information concerning his person.88 As a result, information such as names, addresses, and other personally identifying information has been held to fall under the purview of this exemption.89 The rationale behind this is the fact that the “mere mention of an individual’s name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.”90 In fact, this exemption is so broad that it can even be claimed by the next of kin of a deceased individual.91
Once a privacy interest has been identified, the second part of the analysis is to balance that interest against the public interest favoring disclosure.92 However, in analyzing this, the Supreme Court has held the public interest is limited to FOIA’s basic purpose, shedding “light on an agency’s performance of its statutory duties.”93 In these situations, courts have been fairly consistent in holding that investigations into wrongdoing can trump the employee’s privacy interest, stating “[d]isclosure of the information related to ‘an agency investigation serves the public interest to the extent that it sheds light on the agency’s performance of its official duties.’”94 Courts have held that the higher the rank or the more prominent position an individual holds in a department, the greater the public interest in disclosure.95 In contrast, lower-level employees typically have a greater privacy interest absent significant public interest in the case.96 Because of this, it is important for judge advocates to consider both the level of interest in the requested information and the relative seniority of the individual involved in the investigation when considering whether to apply Exemption 7(c).
Exemption 7(f) prohibits the disclosure of information that could “reasonably be expected to endanger the life or physical safety of any individual.”97 To qualify under Exemption 7(f), the agency must show that the release of this information would cause “specific threats to particular individuals arising out of law enforcement investigations.”98 The key to understanding this, however, is to understand that the term “any individual” as used in the statute is not unlimited, and agencies that seek to claim this exemption cannot claim it based solely on speculative risk to a broad group of individuals.99 Rather, the agency needs to state clearly how the disclosure could “reasonably be expected to endanger the life or physical safety” of the individuals it claims to be protecting.100 Likewise, it is extremely important to understand that when considering this exemption, courts have deferred to agency judgment about the likelihood of harm, so long as the agency’s evaluation is reasonable.101 Judge advocates considering making use of Exemption 7(f) should make sure they are able to succinctly articulate both the group that is likely to be harmed by the release of the information, and how likely the harm is to occur.102
Along with the increase in media attention to matters within the military has come an increase in the use of the FOIA by the media. As a result, many chiefs of administrative law and brigade judge advocates will find themselves dealing with an increasing number of FOIA requests during their time in those roles. In many cases, the material requested will deal with highly sensitive cases which means scrutiny not just from division and corps level staff judge advocates, but also from the Office of the Judge Advocate General (OTJAG). What follows is a list of best practices to ensure the success of practitioners who find themselves in such a position.
The Role of the Initial Denial Authority
First, it is important to remember that while a commanding general is typically the approval authority for the majority of the actions coming out of a unit, that general does not have the authority to decide what is, and is not, releasable under the FOIA for criminal cases. This is because OTJAG Administrative Law Division and Criminal Law Division are the Initial Denial Authorities (IDAs) for the release of administrative and criminal legal records.103 Likewise, the Commander, U.S. Army Criminal Investigation Command (CID), is the IDA for both CID and military police reports.104 Therefore, the practitioner’s role when dealing with such high-visibility requests is to coordinate with the local FOIA Officer for the collection of the requested records and to conduct a legal review of the records proposed for release to ensure the legal sufficiency of any release or redaction.105 The legal review, along with “the original FOIA request, two copies of the requested information (with one copy clearly indicating which portions are recommended for withholding, and which portions, if any, have already been released), a copy of the interim response acknowledging receipt and notifying the requestor of the referral to the IDA, and a cover letter containing a telephone point of contact will be forwarded to the IDA.”106
In practice, this means that the practitioner will likely be the main point of contact for multiple higher headquarters as they begin to process such FOIA requests. If the case arose out of an AR 15–6 investigation, the practitioner will likely deal primarily with OTJAG Administrative Law and, once the criminal process commences, OTJAG Criminal Law. If, on the other hand, the case arose out of a criminal investigation the practitioner will deal with CID and OTJAG. Given the amount of file sharing that will need to occur for this process, ensuring proper organization and naming conventions for electronic files on the share drive is be essential. Likewise, maintaining separate file folders for redacted and un-redacted documents will help prevent accidental disclosure. Perhaps the best analogy for how to organize this process is to treat the documents like a discovery file. Taking such an approach will minimize the risk of mistakes as well as ensure proper organization.
Prep the Battlefield
Perhaps one of the most difficult parts of dealing with FOIA requests related to courts-martial garnering significant media interest will be avoiding development of an “us versus them” mentality on the part of the chain of command. In these situations, stress and scrutiny can be high. The temptation to delay or deny disclosure of documents will exist. It is incumbent on the attorney to remind those in the chain of command that FOIA has a presumption in favor of disclosure.107 As stated by the DoD, “[i]nformation responsive to a FOIA request will be withheld only if the DoD Component reasonably foresees that disclosure would harm an interest protected by one or more of the FOIA exemptions or disclosure is prohibited by law.”108 This is an important point that practitioners must make clear to their commanders in order to avoid the litigation that may be sparked by the unnecessary denial of a high visibility request. Therefore, it is important for practitioners to sit down with commanders early and explain the FOIA to them, as well as the consequences of withholding information.109
Be Proactive in the Process
Those who have served as brigade judge advocates know that the best way to ensure you are kept in the loop on issues is to build strong relationships with the primary players in the brigade prior to issues arising. This means getting out of your office on a regular basis to visit the commanders and staff section leaders to “kick over stones” and stay informed. The same holds true for FOIA practice. Having strong relationships with commanders and brigade staff will ensure that you get the assistance and information needed when FOIA requests arrive.
Additionally, practitioners must also build strong working relationships with their command’s FOIA Office. On installations where there are multiple general courts-martial convening authorities (GCMCAs) there will likely be multiple FOIA offices,110 while smaller installations may only have a single point of contact.111 As a result, practitioners need to determine early on who handles their FOIA requests and introduce themselves. A prior relationship will help facilitate the flow of information once a request comes in, and will minimize the likelihood of miscommunication during the stress of processing a request.
Ensure the Scope of the Request Is Understood
This may sound simple, but as attorneys we understand clarity is often lost as soon as someone tries to describe the scope of a search in writing. Under AR 25–55, paragraph 1–507, a proper request is defined as one in which the requestor provides “a description of the desired records, that enables the government to locate the records with a reasonable amount of effort.”112 While this definition is somewhat vague, it nonetheless requires the agency to offer assistance to the requestor “in identifying the records sought and in reformulating the request.”113 Therefore, it is extremely important that practitioners review the request to ensure they understand its scope. They must keep in mind that it is not their interpretation of the scope of the request that controls, but rather the intent of the requestor. As a result, if there is any uncertainty regarding what the requestor is asking for, they should work with the FOIA Office to contact the requestor for clarity. For example, a requestor may fail to use proper court-martial terminology, substituting jury for panel members or grand jury for Article 32. In such cases, practitioners should contact the requestor to determine the actual scope of the request. Taking such action will help to avoid conflict with the requestor and unnecessary duplication of work.114
Is It Really Classified?
As discussed earlier, documents “properly classified as Confidential, Secret, or Top Secret qualify for Exemption 1 protection.”115 However, before “relying upon Exemption 1 . . . it must be determined whether the information is properly classified in accordance with the Executive Order at the time the FOIA request is made.”116 Therefore, when dealing with classified information it is extremely important that practitioners have the appropriate officials review the materials prior to invoking this exemption in order to determine whether the information is still properly classified or whether it can be declassified and released.117 Additionally, when dealing with requests related to courts-martial, practitioners must consider the regularly changing classification levels of items that are typically requested, such as rules of engagement, battlefield video footage, and other internal documents. Therefore, it is important that practitioners give themselves adequate time to both identify these documents and determine their classification level, as well as determine if documents that aren’t suitable for a total release can be redacted sufficiently for a partial release.
After reading this, some practitioners may bristle at the thought of individual citizens and the media having the right to access records concerning the activities of the military. Some may argue that distributing this information has the potential to harm military interests or prosecutions. However, as the FOIA makes clear, a civilian’s right to this information does exist and it is important for ensuring government transparency and accountability.118 Failure to appreciate this concept can lead to conflict, litigation, and a perception on the part of the public that the military has something to hide. For this reason, practitioners handling FOIA requests for criminal cases must approach their role in the process with a mindset that favors disclosure over the instinctive desire to “protect” a particular prosecution.
While handling FOIA requests can be nerve-racking and time consuming, it doesn’t have to be. By establishing a basic understanding of the requirements of the FOIA before the requests are received, the practitioner can be confident they understand the general rules under which they will be operating. Additionally, establishing relationships early with the individuals involved in processing these requests will go a long way towards reducing processing times and stress. Finally, building systems that organize the information into coherent, searchable formats will help to eliminate confusion and prevent accidental disclosure or non-disclosure. In the end, if these recommendations are followed, the practitioner can be confident in their ability to handle a FOIA request at any level. TAL
1. Memorandum on the Freedom of Information Act, Pub. Papers (Jan. 21, 2009), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/presidential-foia.pdf [hereinafter Presidential Memo].
2. Manual for Courts-Martial, United States, R.C.M. 803 (2016).
3. Aaron Mackey, Military Courts Continue to Stymie Public Access, 37 The News Media and the Law 13 (2013), https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2013/military-courts-continue-st.
4. An example of this can be seen in The Center for Constitutional Rights v. United States where the C.A.A.F. held it lacks jurisdiction over challenges brought by journalists or the public seeking to open Court-Martial records or proceedings. Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013).
5. Mackey, supra note 3. One of the chief complaints of media have regarding having to use of the FOIA to access information related to courts-martial is that the 20 day response period allowed to the government for responding to requests results in lag, making any information they receive untimely.
6. David Philipps, Other Than Honorable, The Colorado Springs Gazette (May 19, 2013), http://cdn.csgazette.biz/soldiers/day1.html. Philipps made extensive use of the FOIA to gather information regarding Soldiers who had previously deployed to combat, were suffering from PTSD, and accepted Chapter 10 discharges in lieu of facing Courts-Martial for post-deployment misconduct.
7. Project on Government Oversight, Application of FOIA in Army Case Leaves Much to be Desired (July 1, 2015), http://www.pogo.org/blog/2015/07/foia-army-robert-bales.html.
8. Judicial Watch Sues Department of Defense to Obtain “Initial Report” of U.S. Army Review of Sgt. Bowe Bergdahl’s Disappearance (March 25, 2015), https://www.judicialwatch.org/press-room/press-releases/judicial-watch-sues-department-of-defense-to-obtain-initial-report-of-u-s-armys-review-of-sgt-bowe-bergdahls-disappearance/.
9. Lieutenant Colonel Craig E. Merutka, Street FOIA: Nuts, Bolts, and Loose Change, Army Law., Dec. 2008, 49.
10. Wendy Ginsberg, Cong. Research Serv., R41933, The Freedom of Information Act (FOIA), Background, Legislation, and Policy Issues (2014).
11. Bradley Pack, Note: FOIA Frustration: Access to Government Records Under the Bush Administration, 46 Ariz L. Rev. 815, 817 (Winter 2004)..
12. Presidential Memo, supra note 1.
13. Id. This fact was made clear in then President Obama’s Freedom of Information Act Memorandum in which he stated that “[a]ll Agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA.
14. U.S. Dep’t of Def., Mem. 5400.07, DoD Freedom of Information Act (FOIA) Program (Jan. 1997), 17 [hereinafter DoDM 5400.07].
15. U.S. Dep’t of Army, Reg. 25-55, The Department of the Army Freedom of Information Act Program para 1-501 (1 Nov. 1997) [hereinafter AR 25-55].
16. 5 U.S.C. § 552(b).
17. Id. Exemption (b)(4) covers trade secrets, Exemption (b)(8) governs records related to the regulation or supervision of financial institutions, and Exemption (b)(9) governs geological and geophysical information and data.
18. Merutka, supra note 9, at 53.
19. U.S. Dep’t of Justice, Office of Information and Privacy, Freedom of Information Act Guide (Dec. 8, 2014), Discretionary Disclosure, [hereinafter DoJ FOIA Guide, Discretionary Disclosure].
20. Memorandum from Eric Holder, U.S. Attorney Gen., to Heads of Exec. Dep’ts and Agencies, subject: Concerning the Freedom of Information Act (March 19, 2009), available at https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf [hereinafter Holder Memo]. This memo stated that the DOJ would defend an agency’s denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interested protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.
21. The foreseeable harm standard was codified in the FOIA Improvement Act of 2016. Foreseeable Harm exists only if the “agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subjection (b)” or “disclosure is prohibited by law.” The FOIA Improvement Act of 2016, Public Law 114-185 (2016).
22. DoJ FOIA Guide, Discretionary Disclosure, supra note 19.
23. DoJ FOIA Guide, Discretionary Disclosure, supra note 19.
24. 5 USC § 552(b)(1).
25. U.S. Dep’t of Justice, Office of Information and Privacy, Freedom of Information Act Guide (Aug. 7, 2013), Exemption 1, [hereinafter DoJ FOIA Guide, Exemption 1].
26. Merutka, supra note 9, at 54.
27. DoDM 5400.07, supra note 14, at 32.
29. In many cases the unit possessing the information will not be the original classification authority. In such cases it is extremely important that the individuals handling the FOIA request reach out to the original classification authority to ensure proper action is taken to either keep the information classified or declassify it. Id.
30. 5 USC § 552(b)(2).
31. AR 25-55, supra note 15, para 3-200. AR 25-55 defines high b2 as those records containing or constituting statutes, release, regulation orders, manuals, directives, and instructions the release of which would allow circumvention of these records thereby substantially hindering the effective performance of a significant function of the DOD. Low b2 is defined as those that are trivial and housekeeping in nature for which there is no legitimate public interest of benefit to be gained by release and it would constitute an administrative burden to process the request.
32. Milner v. Department of the Navy, 562 U.S. 562 (2011).
33. U.S. Dep’t of Justice, Office of Information and Privacy, Freedom of Information Act Guide (Mar. 5, 2013), Exemption 2, 11 [hereinafter DoJ FOIA Guide, Exemption 2].
34. Id. at 12-13.
35. Id. at 13.
36. U.S. Dep’t of Justice, Office of Information and Privacy, Freedom of Information Act Guide (Aug. 13, 2015), Exemption 3, 1 [hereinafter DoJ FOIA Guide, Exemption 3].
38. DoDM 5400.07, supra note 15, at 18.
39. Merutka, supra note 9, at 55.
40. DoDM 5400.07, supra note 14, at 18.
41. 5 USC § 552(b)(5).
42. U.S. Dep’t of Justice, Office of Information and Privacy, Freedom of Information Act Guide (May 7, 2014), Exemption 5, 1 [hereinafter DoJ FOIA Guide, Exemption 5]. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)).
43. DoJ FOIA Guide, Exemption 5, supra note 42, at 2.
44. DoJ FOIA Guide, Exemption 5, supra note 42, at 3.
45. DoJ FOIA Guide, Exemption 5, supra note 42, at 13. Specifically, three policy purposes constitute the basis for this privilege (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are actually adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency action.
46. DoJ FOIA Guide, Exemption 5, supra note 42, at 14 (quoting Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d. 1114, 1119 (9th Cir. 1988)).
47. DoJ FOIA Guide, Exemption 5, supra note 42, at 15 (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d. 504, 513 (D.C. Cir. 2011)).
48. DoJ FOIA Guide, Exemption 5, supra note 42, at 15 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1143 (D.C. Cir. 1975)).
49. DoJ FOIA Guide, Exemption 5, supra note 42, at 16 (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)).
50. DoJ FOIA Guide, Exemption 5, supra note 42, at 26 (quoting Coastal States Gas Corp. v. DOE, 617 F.2d 854, 867 (D.C. Cir. 1980)).
51. DoJ FOIA Guide, Exemption 5, supra note 42.
52. AR 25-55, supra note 15.
54. Hickman v. Taylor, 329 U.S. 495, 509-510 (1947). See also DoJ FOIA Guide, Exemption 5, supra note 42, at 46.
55. Schoeman v. FBI, 573 F.Supp. 2d. 119, 143 (D.D.C. 2009). See also DoJ FOIA Guide, Exemption 5, supra note 42, at 46.
56. Margolin v. Nasa, No. 09-00421, 2011 U.S. Dist. Lexis 40882, 24-25). See also DoJ FOIA Guide, Exemption 5, supra note 42, at 47.
57. McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331 (D.C. Cir. 2011). See also DoJ FOIA Guide, Exemption 5, supra note 42, at 49.
58. DoJ FOIA Guide, Exemption 5, supra note 42, at 50 (quoting Maine v. U.S. Dep’t of the Interior, 298 F.3d 60, 67 (1st Cir. 2002)).
59. DoJ FOIA Guide, Exemption 5, supra note 42.
60. Vento v. IRS, 714 F.Supp. 2d 137, 151 (D.D.C. 2010). See also DoJ FOIA Guide, Exemption 5, supra note 42, at 58.
61. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers, Rule 1.13, (1 May 1992) [hereinafter AR 27-26].
62. 5 USC 552(b)(6).
63. 110 Am. Jur. Trials 367 §23 (2008).
65. COL(R) Richard R. Huff & Lieutenant Colonel Craig E. Merutka, Freedom of Information Act Access to Personal Information Contained In Government Records: Public Property or Protected Information?, Army Law., January 2010, at 3, (quoting U.S. Department of State v. Washington Post Co., 456 U.S. 595 (1982)).
66. Id. at 3. An identified individual can also include someone not named in the information, but easily identifiable from the context of the information contained in the record. See also Judicial Watch v U.S. DOJ, 41 F Supp. 3d. 39 (D.D.C. 2014).
67. Id. at 6. This article presents an in depth analysis of the information exempt from release under Exemption 6.
68. 110 Am. Jur. Trials, supra note 63.
69. United American Financial, Incorporated v. Potter, 531 F Supp. 2d 29, 43 (D.D.C. 2008).
70. Huff & Merutka, supra note 65, at 7-8.
71. 5 USC 552(b)(7).
72. 110 Am. Jur. Trials, supra note 63.
73. 5 U.S.C. 552(b)(7).
The following are the sub-exemptions listed under the FOIA: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.
74. 110 Am. Jur. Trials, supra note 63.
75. AR 25-55, supra note 15, para 1-409. Curiously the DOD FOIA Guide does not provide a definition for what constitutes a law enforcement investigation.
76. 110 Am. Jur. Trials, supra note 63. The Agency requesting this exemption “is required to establish that the information was compiled for criminal, civil, or other law enforcement purposes.” Id.
77. Lurie v. Department of the Army, 970 F. Supp. 19 (D.D.C. 1997).
78. Wonder v. McHugh, 2012 WL 3962750 (D.D.C. 2012).
79. Henderson v. Officer of the Director of National Intelligence & Office of Personnel Management, 151 F. Supp. 3d 170 (D.D.C. 2016).
80. L.A. Times v. Department of Defense, 442 F. Supp. 2d. 880 (C.D.Ca. 2006).
81. Huff & Merutka, supra note 65, at 4.
82. Lurie, supra note 77, at 2 (quoting Rural Housing Alliance v. U.S. Department of Agriculture, 498 F 2d 73, 81 (D.C.Cir. 1973)).
83. 110 Am. Jur. Trials, supra note 63.
84. 5 U.S.C. 552(b)(7)(c).
85. Huff & Merutka, supra note 65, at 4.
86. Roth v. U.S. Department of Justice, 642 F 3d. 1174 (D.D.C. 2011).
88. U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 763 (1989).
89. Department of the Air Force v. Rose, 425 U.S. 352 (1975). For a detailed list of cases where this exemption has been applied. See Huff, supra note 65.
90. Lurie, supra note 77, at 37, (Quoting Fitzgibbon v CIA, 911 F.2d 755, 767 (D.C.C. 1990)).
91. National Archives and Records Administration v. Favish, 541 U.S. 157 (2003). The Court held that FOIA recognizes surviving family member’s right to personal privacy with respect to their close relative’s death-scene images.
92. Roth v. U.S. Department of Justice, 642 F 3d. 1174 (D.D.C. 2011).
93. Lurie, supra note 77, at 37, (quoting U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749,773 (1989)).
94. Lurie, supra note 77, at 37 (quoting Providence Journal v. DOA, 981 F 2d. 552, 568 (1992)).
95. Id. at 37.
96. Trentadue v. Integrity Committee, 501 F 3d. 1215 (10th Cir 2007).
97. 5 USC 552(b)(7)(f).
98. American Civil Liberties Union v. Department of Defense, 543 F3d 59, 74 (2d. Cir. 2008).
100. Los Angeles Times Communication v. Department of the Army, 442 F Supp. 2d 880 (C.D. Ca. 2006). In a contrasting ruling the court held agency has met its burden as it had laid out how the information related to SIRs involving contractors, if released, could improve insurgents’ ability to target contractors and US Personnel. This differed with the ruling in ACLU v. DOD as there the DOA claimed too broad of a group to fall under the any individual terms where the Army attempted to withhold photographs of prisoner abuse by government forces in Iraq and Afghanistan.
101. “The test is not whether the court personally agrees in full with the agency’s evaluation of the danger, rather, the issue is whether on the whole record the Agency’s judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the Agency is expert given by Congress a special role.” Gardels v. CIA, 689 F2d. 1100, 1105 (D.D.Cir. 1982).
102. The driving purpose behind this exemption was the protect government agents, witnesses, informants, and others who have participated in law enforcement investigations and proceedings, as well as prevent criminals from being able to us the FOIA to deter or hinder law enforcement investigations “by identifying those involved in such investigations and targeting the involved parties or associates or relatives of those parties.” ACLU, supra note 98, at 80.
103. TJAG Regulation # 25-55, The Office of the Judge Advocate General, U.S. Army, Subject: Office Management Release of Information, (Nov. 30, 2007).
104. 32 CFR 518.16(e)(21).
105. AR 25-55, supra note 15, para 5-104.
107. Presidential Memo, supra note 1.
108. DoD Mem. 5400.07, supra note 14.
109. Informing commanders that attorney’s fees for litigation resulting from improper denials are paid from their Operations and Maintenance Budget will likely be helpful in persuading them to release required information. U.S. Dep’t of Def., 7000.14-R, Financial Management Regulation, vol. 10, ch. 12, sec. 120201 (Jul. 2017).
110. Fort Bragg for instance, has separate FOIA Offices for FORSCOM Headquarters, 18th Airborne Corps, and USASOC, however, if an individual navigated to the Fort Bragg FOIA Page this is not readily apparent. See https://www.bragg.army.mil/index.php/my-fort-bragg/all-services/office-freedom-information-act
111. In contrast, Fort Lee has only one FOIA Office for the entire installation.
112. AR 25-55, supra note 15, para 1-507.
114. Gavin Baker, Best Practices for Agency Freedom of Information Act Regulations, Center for Effective Government (December 2013), https://www.foreffectivegov.org/sites/default/files/info/foia-best-practices-guide.pdf.
115. Merutka, supra note 9, at 54.
116. Merutka, supra note 9, at 54.
117. U.S Dep’t of Def., Reg. 5200.1-R, Information Security Program para. C126.96.36.199 (Jan. 1997).
118. Presidential Memo, supra note 1.