979 F. Supp. 2d 35
D.D.C.2013Background
- Roger G. Charles, a journalist, filed a FOIA request to AFIP/OAFME for autopsy and body-armor-related records concerning U.S. servicemembers killed in Iraq/Afghanistan (2006–2007); agency initially failed to respond and Charles sued.
- Defendants identified responsive records (including preliminary and final autopsy reports) but withheld them under FOIA Exemptions 2, 5, and 6; litigation produced multiple summary-judgment rounds and narrowed the dispute.
- Court previously held defendants failed to justify Exemption 6 for redacted final autopsy reports (ordered produced) but concluded Exemption 5 applied to preliminary autopsy reports as predecisional/deliberative drafts.
- The remaining issue was segregability: whether factual material in the preliminary autopsy reports could be reasonably segregated or whether producing them (given the disclosed finals) would reveal deliberative processes.
- Defendants submitted a declaration (Col. Tremaine) and a comparison chart showing substantive differences between preliminary and final reports and described a multi-phase peer-review process that transforms preliminaries into finals.
- The Court concluded defendants met their burden that factual material in preliminary drafts is non-segregable because comparison to the produced final reports would reveal internal deliberations; thus preliminaries may be withheld in full under Exemption 5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redacted preliminary autopsy reports contain reasonably segregable, producible factual information or may be withheld in full under FOIA Exemption 5 | Charles: he seeks only "purely factual" data (e.g., whether projectile fragments were recovered) and defendants have not specifically shown which facts would reveal deliberations; defendants' showing is conclusory | Defendants: preliminaries are draft, predecisional documents subject to the deliberative-process privilege; comparison of preliminaries with final reports (which will be produced) would reveal editorial decisions and deliberations, so factual material is non-segregable | Court: Agrees with defendants—preliminaries are non-segregable drafts; producing them would reveal deliberative process; Exemption 5 permits withholding in full; defendants met burden, so summary judgment for defendants on this issue |
Key Cases Cited
- Russell v. Dep’t of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982) (drafts may be withheld where comparison with final version would reveal deliberative process)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (factual material must be produced unless inextricably intertwined with exempt deliberative material)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (court must make specific segregability findings)
- Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067 (D.C. Cir. 1993) (agency bears burden to justify withholding entire documents)
- Edmonds Inst. v. U.S. Dep’t of Interior, 460 F. Supp. 2d 63 (D.D.C. 2006) (draft facts may be non-segregable when disclosure would expose editorial judgment)
- Carter, Fullerton & Hayes, LLC v. FTC, 637 F. Supp. 2d 1 (D.D.C. 2009) (upholding withholding of drafts where justification showed non-segregability)
- Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (in camera review unnecessary when agency affidavits meet non-segregability burden)