MEMORANDUM OPINION AND ORDER
This matter comes before the Court on defendant’s motion for summary judgment. The action concerns a request made by the plaintiff, Major Sandra Fortson, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for documents in possession of the defendants, Francis J. Harvey, 1 and the United States Department of the Army (collectively “defendants” or “Army”), pertaining to an equal opportunity (“EO”) complaint made by the plaintiff against her supervisors. The defendants released a substantial portion of the material responsive to plaintiffs FOIA request, but determined that some of the responsive material is not releasable. The defendants have moved for summary judgment based on their determination that some of the documents withheld are not “agency records” under FOIA, and that the remaining documents are subject to two FOIA exemptions. Upon consideration of defendants’ motion, plaintiffs opposition, defendants’ reply, plaintiffs surreply, the motion hearing, and the entire record in this case, the Court finds that defendants’ motion should be GRANTED in part and DENIED in part.
I. BACKGROUND
The documents that plaintiff seeks in her FOIA request were created or compiled by Colonel Denise Vowell, the Chief Trial Judge of the U.S. Army Trial Judiciary, during her investigation into an equal opportunity complaint (“EO complaint”) that the plaintiff filed against her supervisors. Declaration of Lieutenant Colonel Robin N. Swope (“Swope Deck”) attached to Defs. MSJ, p. 3. Brigadier General Michael J. Marchand, the U.S. Army Legal Services Agency (“USALSA”) commander, appointed Colonel Vowell to investigate plaintiffs EO complaint pursuant to Army Regulation 15-6. Id. Colonel Vowell interviewed witnesses and collected *15 written witness statements during the investigation. Id. The investigation culminated with Colonel Vowell’s Report of Investigation (“ROI” or “report”), which she submitted to General Marchand for his approval. Id.
In her FOIA request, plaintiff specifically sought all documents related to Colonel Vowell’s investigation, including complete copies of the ROI, the witness statements, and all written notes and documented interviews and conversations regarding the investigation. Compl. ¶ 5. In response to plaintiffs FOIA request, defendants released 446 pages of unredacted records and thirty four pages of partially redacted records. Swope Decl., p. 4. The documents withheld by the defendants can be categorized as follows: (1) the notes Colonel Vowell produced during her investigation; (2) the portion of the ROI report submitted by Colonel Vowell that General Marchand did not approve; and (3) witness statements taken by Colonel Vowell during the investigation of plaintiffs EO complaint. For the following reasons, the Court finds that the Army properly withheld Colonel Vowell’s notes and the ROI report. However, the Court finds that the witness statements were improperly withheld, and must therefore be disclosed.
I. ANALYSIS
Plaintiff asks this Court to order defendants to disclose certain requested records. The defendants moved for summary judgment on grounds that Colonel Vowell’s notes are not “agency records;” that portions of the ROI report are exempt from disclosure under 5 U.S.C. § 552(b)(5) (“deliberative process privilege” or “exemption 5”); and that the witness statements are exempt from disclosure under 5 U.S.C. § 552(b)(6) (“similar files exemption” or “exemption 6”). Defs. MSJ, pp. 2-8. Summary judgment is appropriate in cases where there is no genuine dispute as to any material fact, and where the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In a FOIA case, an agency is entitled to summary judgment where it demonstrates that documents are not subject to FOIA’s disclosure requirements.
Exxon Corp. v. F.T.C.,
A. Colonel Vowell’s Personal Notes are Not “Agency Records” Under FOIA.
The defendants withheld 256 pages of responsive documents based on their determination that these documents are Colonel Vowell’s “personal records” and not “agency records” subject to disclosure. Swope Deck, p. 5. Federal district courts cannot compel an agency to disclose documents, unless those documents constitute “agency records” under FOIA.
See 5
U.S.C. § 552(a)(4)(B);
Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice,
Plaintiff contends that the notes are “agency records” because the Army requires its investigators to keep copies of all personal notes produced during an EO investigation. Pl.’s Opp., p. 6. The defen
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dants accurately observe, however, that the Army’s guidelines for these investigations establish advisory rather than binding procedures for conducting administrative investigations. Defs. Reply, p. 7. Moreover, the use and storage of the notes weigh in favor of finding that the notes were Colonel Vowell’s personal records as well. Colonel Vowell did not submit the notes to the approving authority for consideration during the investigation and therefore they were not relied upon by another party. Swope Decl., p. 5. Indeed, she stored the notes in manila file folders labeled “Investigating Officer correspondence with SF” and “rough notes,” and relied on them only to refresh her own memory.
Id.
at 5-6; Pl.’s Opp., p. 8. Accordingly, the Court finds that the purpose for which the notes were created, the degree of integration of the notes in the Army’s general filing system, and the extent to which other Army personnel used the notes to evaluate the EO complaint all support a finding that the notes were for personal convenience and therefore are not “agency records.”
See, e.g., Bureau of Nat’l Affairs, Inc.,
B. Non-Disclosed Portions of Colonel Vowell’s Investigative Report are “Pre-Decisional” and Properly Exempted Under Exemption 5.
Pursuant to the “deliberative process privilege,” 5 U.S.C. § 552(b)(5), the defendants withheld certain draft material and the excerpt of Colonel Vowell’s report that General Marchand did not approve. Swope Decl., p. 7; PL’s Opp., p. 6. To determine whether a document is protected by the deliberative process privilege, our Circuit Court looks to whether the document is “pre-decisional.”
Coastal States Gas Corp. v. Dep’t of Energy,
Plaintiff argues that the Army Regulation 15-6 investigation of the EO claim does not qualify as a deliberative process because Colonel Vowell’s superiors must either accept or reject her factual findings rather than engage in a discussion of legal and policy matters. PL’s Opp., p. 5. The Court disagrees. The report was designed for Colonel Vowell to relay her findings and recommendations to General Marchand, who would make the ultimate decision regarding plaintiffs EO complaint. Swope Deck, p. 3. The non-disclosed portions of the report reflect elements of the decision-making process because they contain Colonel Vowell’s investigative findings and/or recommendations that were submitted to General Marchand for his approval. The disclosure of this type of information could chill an investigating officer’s willingness to engage
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in an open discussion with their superior officers with respect to their findings of fact and recommendations when investigating EO complaints.
See Formaldehyde Inst.,
C. The Witness Statements Compiled by Colonel Vowell During Her Investigation of Plaintiffs EO Complaint Were not Properly Withheld under Exemption 6.
The Army withheld certain witness statements compiled by Colonel Vowell based on its determination that these records are within the purview of FOIA exemption 6. Swope Deck, p. 8-9; Defs. MSJ, pp. 7-8. They argue that disclosing these statements would unfairly invade the witnesses’ privacy rights because the statements were made by the plaintiffs peers and subordinates and that releasing these statements may jeopardize the witnesses’ promotional opportunities, favorable personnel evaluations, or create an otherwise hostile work environment. Defs. MSJ, pp. 7-8; Defs. Reply, p. 8; Swope Deck p. 9. The Court disagrees.
Exemption 6 permits the government 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 phrase “similar files” has been broadly defined to include the witness statements at issue because the phrase encompasses “any government records on an individual which can be identified as applying to that individual.”
See U.S. Dep’t of State v. Washington Post Co.,
In this case, the Army has not demonstrated that the witnesses’ individual privacy interests outweigh the public interest in disclosing the information. The witnesses’ privacy interest in their statements is minimal, particularly when the government has already released the names of those persons who gave statements to Colonel Vowell during the investigation of the plaintiffs EO complaint.
See
Pb’s Surreply, p. 2. The potential harm in disclosing the statements advanced by the Army (e.g., unfavorable personnel evaluations and work place harassment) is pure speculation and therefore an insufficient basis for withholding the statements.
See Dep’t of the Air Force v. Rose,
ORDER
For the reasons set forth herein, it is, this 15th day of March, 2005, hereby
ORDERED that the defendants’ motion for summary judgment [# 7] is GRANTED in part and DENIED in part; and it is further
ORDERED that defendants release the witness statements at issue in this case that were previously withheld.
SO ORDERED.
Notes
. Former Secretary of the Army, Thomas White, was originally named in this action. The Court has replaced Mr. White with his successor, Francis J. Harvey, because Mr. White resigned during the pendency of this action. Fed. R. Civ. P. 25(d)(1).