HARRY M. SCHMIDT, Plaintiff, v. UNITED STATES AIR FORCE, Defendant.
No. 06-3069
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
Thursday, 20 September, 2007
E-FILED 09:20:17 AM Clerk, U.S. District Court, ILCD 3:06-cv-03069-JES-CHE # 17 Page 1 of 31
JEANNE E. SCOTT, U.S. District Judge:
This matter is before the Court on cross motions for summary judgment. Defendant‘s Motion for Summary Judgment (d/e 6); Plaintiff‘s Cross-Motion for Summary Judgment (d/e 8). In 2006, Major Harry M. Schmidt of the Illinois Air National Guard filed a two-count Complaint (d/e 1) against the United States Air Force, seeking declaratory relief and damages pursuant to the Privacy Act,
BACKGROUND
Major Schmidt is a graduate of the U.S. Naval Academy. In 2001,
In March 2002, the 170th Fighter Squadron was deployed to Southwest Asia in support of Operation Enduring Freedom. Operation Enduring Freedom included military operations in Afghanistan and was begun in response to the terrorist attacks of September 11, 2001. Major William Umbach served as the deployed Squadron Commander.
On April 17, 2002, Major Schmidt and Major Umbach were flying a mission, during which Umbach was acting as the flight lead. At the same time, unbeknownst to Schmidt and Umbach, members of the Canadian Light Infantry were conducting a nighttime live-fire exercise at a firing range at the former headquarters of Osama Bin Laden, an area known as Tarnak Farms. Major Schmidt and Major Umbach reported that they observed surface to air fire in the Tarnak Farms’ area. Major Schmidt believed that Major Umbach had been engaged by a surface to air weapon system. As a result, Major Schmidt declared that he was engaging the ground target in “self-defense” and dropped a laser guided bomb on the source of the
The Air Force investigated the friendly-fire incident and, in September 2002, initiated criminal charges under the Uniform Code of Military Justice (UCMJ) against Major Schmidt and Major Umbach. Beginning in September 2002, Major Schmidt was represented by Lieutenant Colonel Clayton Moushon, Staff Judge Advocate at the 183rd Fighter Wing. Major Schmidt also retained a civilian attorney, Charles Gittins, to aid in his defense. A public hearing/investigation pursuant to Article 32 of the UCMJ was held during January 2003. See
In March 2003, the Article 32 Investigating Officer submitted his report to the Commander of the Eighth Air Force, General Bruce Carlson, recommending that the criminal charges against Major Schmidt and Major Umbach be dismissed. See Plaintiff‘s Reply Brief in Support of Cross-Motion for Summary Judgment (d/e 16), Pl. Ex. 17. General Carlson determined that the charges should be disposed of through the non-judicial
After approximately one year of additional proceedings, Colonel Odom informed Lieutenant Colonel Moushon that the Air Force was still amendable to disposing of the charges without a trial. Lieutenant Colonel Moushon proposed a resolution that involved an administrative letter of reprimand, rather than non-judicial punishment under Article 15, and a joint press release announcing the settlement. Odom Dec., ¶ 8. According
According to Lieutenant Colonel Moushon, Major Schmidt was not adverse to disposing of the case in an Article 15 proceeding as long as certain conditions were met. Plaintiff‘s Response to Motion for Summary Judgment (d/e 7), Pl. Ex. 2, Declaration of Lieutenant Colonel Clayton W. Moushon (Moushon Dec.), ¶ 7. Moushon avers that the terms upon which Major Schmidt would agree to a disposition by non-judicial punishment were as follows: (1) Major Schmidt would agree to accept non-judicial proceedings as offered in June 2003; (2) at the completion of the non-judicial proceedings, the court-martial charges would be dismissed with prejudice; (3) Major Schmidt would execute a Letter of Intent to accept a non-flying position in the Illinois Air National Guard; (4) the Convening
At some point in June 2004, Major Schmidt formally requested that General Carlson allow him to change his decision to proceed to court-martial and to accept Article 15 punishment. General Carlson granted Schmidt‘s request. At that point, the Public Affairs office issued a press release. Defendant‘s Motion for Summary Judgment, Govt Ex. 7, Declaration of Major Denise A. Kerr (Kerr Dec.), ¶ 7. Major Denise Kerr, the Chief of Public Affairs for Headquarters Eighth Air Force, asserts that the Public Affairs office “did not receive a significant number of inquiries” after this press release. Id. Kerr believes that this was due to the fact that, first, the Public Affairs office had already provided the press with a thorough explanation of the non-judicial punishment process and, second, the press release announced only that the non-judicial proceedings would commence.
The parties’ accounts of what transpired next differ. According to Colonel Odom, the counterproposal that he presented to Lieutenant Colonel Moushon did not mention a press release. Odom Dec., ¶ 9. Odom asserts that there were no further discussions regarding a press release, although he does not identify a time frame. Id. Odom contends that at no time was he aware that Major Schmidt would not accept non-judicial punishment if the resolution was to be made public, either in whole or in part. Id.
According to Major Schmidt, the Air Force‘s initial offer for alternative disposition included a waiver by Schmidt of his rights under the Privacy Act as it related to a press release regarding the Tarnak Farms’ case. Schmidt Dec., ¶ 18. Schmidt asserts that he was uncomfortable giving the Air Force complete control over press releases in his case because he feared that the Air Force‘s press releases would be biased in an effort to place full responsibility for the Tarnak Farms’ incident on Schmidt. Id. Schmidt avers that he discussed this concern with Lieutenant Colonel Moushon and requested that the settlement contain provisions for a joint press release. Id.
According to Lieutenant Colonel Moushon, in negotiating the
Lieutenant Colonel Moushon asserts that he understood Colonel Odom‘s concerns, but disagreed with Odom‘s opinion that an unconditional waiver of the Privacy Act was required. Moushon Dec., ¶ 9. Moushon
Lieutenant Colonel Moushon asserts that, after he forwarded the proposed settlement to Colonel Odom, he received a telephone call from Odom, who stated that the concept of a joint press release was not acceptable to the Air Force. Moushon Dec., ¶ 10. Moushon asked Colonel Odom to clarify this position so that Moushon could pass it along to Major Schmidt. On June 21, 2004, Colonel Odom sent an e-mail to Lieutenant Colonel Moushon regarding the settlement discussions. Plaintiff‘s Response
Finally, the USAF can‘t agree to do a joint press release. We can certainly work together on the wording, but the AF is going to release a brief statement and cannot agree to do it jointly with the defense. All it will say is that Maj Schmidt requested that the Convening Authority allow him to reconsider his earlier rejection of nonjudicial punishment, the C/A had agreed to allow such action by Maj Schmidt, Art. 15 punishment was imposed and Maj Schmidt‘s future duties with the IL ANG [Illinois Air National Guard] will not involve flying aircraft for the remainder of his career.
Id., ¶ 3. The e-mail further provided as follows: “The only requested changes [sic] to Maj Schmidt‘s memo . . . is to strike the word ‘joint’ from para 4 concerning the press release. The revised Schmidt memo is attached.” Id., ¶ 5; see also id., p. 5 (revised Schmidt Memorandum).
On June 22, 2004, Major Schmidt signed a document titled “Memorandum for Lt. Gen. Bruce Carlson.” Defendant‘s Motion for Summary Judgment, Govt Ex. 1. The Memorandum detailed Major Schmidt‘s understanding that he would be assigned to a non-flying position for the remainder of his military service. The Memorandum expressly stated as follows: “I hereby waive my rights under the Privacy Act as it relates to a press release announcing the conclusion of this case.” Id., ¶ 4. This
On June 24, 2004, the Air Force issued a press release relating to Schmidt‘s case. Plaintiff‘s Response to Motion for Summary Judgment, Pl. Ex. 16. The press release stated that Major Schmidt had requested to
Major Schmidt‘s non-judicial punishment hearing was closed to the public. On July 1, 2004, Major Schmidt made a personal presentation to General Carlson. On July 5, 2004, General Carlson issued his decision imposing non-judicial punishment. The text of the punishment is filed under seal in this case. Sealed Exhibits (d/e 13), Govt Ex. B. After Carlson‘s decision was issued, and Schmidt was notified, the Public Affairs office issued another press release. Kerr Dec., ¶ 8. The press release, dated July 6, 2004, is filed under seal in this case. Sealed Exhibits (d/e 13), Govt Ex. A. It states that discipline had been imposed and quotes portions of General Carlson‘s decision. Id. Additionally, the complete text of the reprimand was placed on the Eighth Air Force‘s Tarnak Farms’ web site. Moushon Dec., ¶ 21; Schmidt Dec., ¶ 26. This web site is available to the public. See Answer (d/e 4), p. 7, ¶ 51.
The Air Force asserts that an internal legal review was conducted prior to the disclosures at issue. On June 18, 2003, the Air Force conducted a
Brigadier General Harding, the Staff Judge Advocate, asserts that he was aware that the Public Affairs office had received several standing requests for information about Major Schmidt‘s case. Defendant‘s Motion for Summary Judgment, Govt Ex. 6, Declaration of Brigadier General Richard C. Harding (Harding Dec.), ¶ 10. Harding believed that, under Air Force regulations, the Commander, through the Public Affairs office and with the advice of the Staff Judge Advocate, should provide media releasable
According to Taylor, the FOIA office did not receive any requests for information concerning the outcome of Major Schmidt‘s non-judicial punishment proceedings. Taylor Dec., ¶ 7. Taylor asserts, however, that he was aware that the Public Affairs office had received standing requests for information about the case. Taylor believed that, under Air Force regulations, the Commander, through the Public Affairs office, should provide media releasable information without forcing representatives of the media to go through FOIA channels. Id. According to Taylor, his opinion remained that the FOIA required the release of this information as set forth in his June 2003, legal review. Id., ¶ 8. Taylor did not prepare another memorandum, but discussed the matter with Brigadier General Harding, who agreed with Taylor‘s position. Harding further noted that a press release was permissible based on the fact that Schmidt “had executed an unconditional waiver of his rights under the Privacy Act as it related to a
After General Carlson determined Schmidt‘s punishment, Harding and Taylor “advised the Public Affairs office that a press release discussing the punishment General Carlson had imposed was permissible and assisted them in preparing it.” Taylor Dec., ¶ 8. Harding and Taylor also provided a copy of the full text of Major Schmidt‘s punishment to the Public Affairs office to be distributed to the media who had filed standing information requests in Schmidt‘s case and posted the text of the punishment on the web site that the Air Force maintained relating to the Tarnak Farms’ incident. Id.; Harding Dec., ¶ 13.
Major Schmidt asserts that the public release of his reprimand has caused him to be denied opportunities for post-military employment. In April 2006, Schmidt filed the instant Complaint. Schmidt claims that the Air Force violated the Privacy Act by disclosing information from his personnel records, specifically the text of his reprimand, on the Tarnak Farms’ internet site (Count 1) and by providing information regarding the content of his reprimand to the press and to family members of the Canadian servicemembers (Count 2). By Text Order, dated January 9,
ANALYSIS
Summary judgment is appropriate when “the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The Privacy Act prohibits federal agencies, including military departments, from disclosing an individual‘s “record” that is contained in a
A District Court in the Northern District of Illinois has identified the “key elements of a cause of action under the Privacy Act for damages for disclosure” as follows:
(1) agency disclosure (by any means of communication); (2) to an individual or another agency; (3) of a “record” contained in a “system of records“; (4) which is unauthorized by the individual; (5) which is not within an exception; (6) an adverse effect on the individual, which contains two components (I) an adverse standing component and (ii) a casual nexus between the disclosure and the adverse effect; and (7) that the agency action be in a manner which was “intentional” or “willful.”
A. WAIVER
The Air Force asserts that the disclosure of Major Schmidt‘s reprimand fell within the scope of the
An example of a
Privacy Act Release statement is: “I hereby authorize Air Force officials to disclose any information about me, whether or not protected by thePrivacy Act ,Freedom of Information Act , or any Air Force regulations or instructions, to (specific news organization or person) in response to (his/her) interest in my case.
Defendant‘s Motion for Summary Judgment, Govt Ex. 2, p. 113.
After General Carlson‘s decision was issued, the Public Affairs office issued a press release, dated July 6, 2004, stating that discipline had been imposed and quoting portions of the reprimand. Kerr Dec., ¶ 8; Sealed Exhibits, Govt Ex. A. This disclosure arguably falls within the scope of Schmidt‘s
B. PRIVACY ACT EXCEPTION
The only potentially applicable
As the Supreme Court has recognized, the
It is undisputed that Major Schmidt‘s reprimand is a part of his personnel record. Major Schmidt does not dispute the Air Force‘s assertion that there were continuing requests for information relating to his case. See Defendant‘s Motion for Summary Judgment, p. 13, Undisputed Material Fact No. 42; Plaintiff‘s Opposition to Defendant‘s Motion for Summary Judgment (d/e 7), p. 2-6, Responses to Defendant‘s Assertions of Undisputed Material Fact (failing to address Defendant‘s Undisputed Material Fact No. 42). Schmidt does not challenge the adequacy of these requests to trigger disclosure under the
The commander, through public affairs and with the advice of the staff judge advocate, should provide media releasable information without forcing representatives of the news media representatives to go through
FOIA channels. This requires the staff judge advocate to provide advice in a timely manner. Media representatives can request information underFOIA , completely bypassing public affairs.FOIA channels take longer than public affairs due to administrative procedures.
Defendant‘s Motion for Summary Judgment, Govt Ex. 2, p. 113. Thus, the Court turns to an analysis of whether the disclosures fell within the identified exception, i.e. whether the disclosures constitute a clearly
The Supreme Court addressed the sixth
Rose is distinguishable from the instant case in that Schmidt‘s reprimand was released without the redaction of identifying information. The underlying principles set forth in Rose, however, remain applicable. In analyzing
FOIA ‘s “basic policy of ‘full agency disclosure unless information is exempted under clearly delineated statutory language,’ . . . focuses on the citizens’ right to be informed about ‘what their government is up to.’ Official information that sheds light on an agency‘s performance of its statutory duties falls squarely within that statutory purpose.”
Id. at 177-78 (quoting Department of Justice v. Reporters Comm., 489 U.S. 749, 773 (1989); Rose, 425 U.S. at 360-361).
The mostly closely analogous case to the instant one is Chang v. Department of Navy, 314 F.Supp.2d 35 (D. D.C. 2004). Chang was the commander of a naval vessel that was involved in a collision with another ship. Following the collision, Chang was relieved of his command and charged with negligent dereliction of duty. The charges were ultimately resolved in a non-judicial punishment proceeding after which Chang received a punitive letter of reprimand. Id. at 38. The Navy subsequently disclosed the details of Chang‘s non-judicial punishment hearing and his letter of reprimand to the press and members of Congress. Chang filed a
The Chang Court granted summary judgment in favor of the Navy. The Court noted that while an individual has a privacy interest in keeping employment history, job performance evaluations, and information as to disciplinary proceedings confidential, “[t]he public has a competing interest . . . in knowing the identities of disciplined government officials ‘in order to hold the governors accountable to the governed.‘” Chang, 314 F.Supp.2d at 43 (quoting Stern v. F.B.I., 737 F.2d 84, 92 (D.C. Cir. 1984)). The Court recognized that there was significant media attention to the collision and Chang was the vessel‘s commanding officer. The Court determined that the public interest in the information outweighed any privacy interest. The Court expressly rejected Chang‘s assertion that the public interest argument was weakened by the fact that the Navy withheld the names and specific punishments of all of the other officers who were punished as a result of the collision. Id. at 44. In doing so, the Court determined that Chang‘s position as commander of the ship justified the release of his identifying information. Id.
The Eleventh Circuit examined
In the instant case, Schmidt had a privacy interest in keeping the information about his discipline confidential. Also, as Schmidt points out, he was not a senior military official, but rather a major who was the junior officer in the April 17, 2002, mission. However, the competing public interest in disclosure clearly outweighs Schmidt‘s privacy interest. It is undisputed that the friendly-fire incident garnered significant public and media attention. It was a deadly incident, with international effects. Schmidt‘s punishment did not arise out of Schmidt‘s private conduct, but rather related to acts that Schmidt took in carrying out his employment. The release of Schmidt‘s reprimand gave the public, in the United States and around the world, insight into the way in which the United States government was holding its pilot accountable. Thus, considering all of the circumstances, the disclosures at issue were clearly warranted.
Schmidt points to several claimed violations of Air Force instructions and regulations. The evidence submitted by Schmidt reveals that, after the terrorist attacks of September 11, 2001, the Department of Defense added increased scrutiny to its policies regarding the release of private information
Schmidt also highlights the fact that Major Umbach‘s letter of reprimand was not released by the Air Force, despite the fact that Umbach was Schmidt‘s superior, and the Air Force did not redact Schmidt‘s identifying information before releasing the text of his reprimand. The mere fact that the Air Force did not release Umbach‘s letter of reprimand, without more, is irrelevant to the question of its releasability. While the fact that
THEREFORE, for the reasons set forth above, Defendant‘s Motion for Summary Judgment (d/e 6) is ALLOWED, and Plaintiff‘s Cross-Motion for Summary Judgment (d/e 8) is DENIED. All pending motions are denied as moot. This case is closed.
IT IS THEREFORE SO ORDERED.
ENTER: September 20, 2007
FOR THE COURT:
s/ Jeanne E. Scott
JEANNE E. SCOTT
UNITED STATES DISTRICT JUDGE