                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ROGER G. CHARLES,             )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 09-199 (RWR)
                              )
OFFICE OF THE ARMED FORCES    )
MEDICAL EXAMINER, et al.,     )
                              )
     Defendants.              )
______________________________)

                    MEMORANDUM OPINION AND ORDER

     Plaintiff Roger Charles, a retired Marine Corps captain and

journalist, brings this action against the Office of the Armed

Forces Medical Examiner (“OAFME”), the Armed Forces Institute of

Pathology (“AFIP”), and the Department of Defense (“DOD”)

alleging a violation of the Freedom of Information Act (“FOIA”),

5 U.S.C. § 552, and the Administrative Procedure Act, 5 U.S.C.

§ 706, arising out of Charles’s request for documents related to

whether any service member’s deaths may have resulted from bullet

wounds in torso areas that are usually covered by body armor.

The parties have cross-moved for summary judgment, disputing

whether FOIA exemptions apply to the documents Charles seeks.

Because preliminary autopsy reports were exempt from disclosure

under Exemption 5, but the defendants did not demonstrate that

they disclosed all reasonably segregable material, the

defendants’ motion for summary judgment as to the preliminary
                                -2-

autopsy reports will be denied without prejudice.     Because the

defendants’ justifications for withholding the final autopsy

reports and in-theater medical records are not supported by the

defendants’ affidavits or current law, Charles’s motion for

summary judgment will be granted as to these materials.

                            BACKGROUND

     Rogers is a veteran, a journalist, and the editor of Defense

Watch, an online journal published by the Soldiers for the Truth

Foundation.   Pl.’s Third Cross Mot. for Summ. J. (“Pl.’s Mot.”),

Pl.’s Stmt. of Undisputed Material Facts in Supp. of Pl.’s Third

Cross-Mot. for Summ. J. (“Pl.’s Stmt.”) ¶ 1.     Charles is

investigating the effectiveness of the body armor that the United

States military issues to its troops.    Charles v. Office of the

Armed Forces Med. Exam’r, 730 F. Supp. 2d 205, 208 (D.D.C. 2010).

“Having learned of reports and data suggesting that the body

armor may not provide sufficient protection for American troops

in combat, the plaintiff began gathering empirical information in

an attempt to verify these reports.”     Id.   To further his

investigation, Charles submitted a FOIA request in October 2008

to the DOD’s AFIP, which was directed to the OAFME.1     Defs.’

Third Mot. for Summ. J. (“Defs.’ Mot.”), Defs.’ Stmt. of Material


     1
       At the relevant time, Captain Craig T. Mallak was the
Armed Forces Medical Examiner for the DOD. In that capacity,
Captain Mallak oversaw the Armed Forces Medical Examiner System
(“AFMES”). “The AFMES is the only medical examiner system for
the [DOD].” Defs.’ Mot., Captain Craig T. Mallak Decl. ¶ 1.
                                  -3-

Facts Not in Dispute (“Defs.’ Stmt.”) ¶ 1; Compl., Ex. E (Letter

from Catherine M. With, Major, U.S. Army & Legal Counsel, AFIP,

to Roger G. Charles (Sept. 10, 2008) at 1).    Charles requested

records that “analyze fatal wounds from bullets that were

inflicted on military service members wearing body armor in Iraq

and Afghanistan between January 1, 2006 and December 31, 2007,

and analyze the relationship between personal body armor and

lethal torso injuries sustained by such service members.”    Defs.’

Stmt. ¶ 2.   “As of January 30, 2009, the AFIP had neither

produced any documents nor provided any estimate of when it might

respond.”    Charles, 730 F. Supp. 2d at 209; see also Defs.’ Mot.,

Captain Craig T. Mallak Decl. (“Mallak Decl.”) ¶ 17.     Charles

filed his complaint for injunctive relief in February 2009.

     AFIP does not maintain a searchable central records system.

Thus, Captain Mallak convened a meeting of his colleagues to

determine whether the Armed Forces Medical Examiner System

(“AFMES”) and AFIP possessed any records responsive to Charles’s

request.    Mallak Decl. ¶ 20.   The defendants identified 103

autopsy files and 18 body armor description sheets.    Pl.’s Stmt.

16; Defs.’ Stmt. ¶¶ 3, 6.   The autopsy files included

“information such as preliminary and final autopsy reports,

autopsy photographs, body diagrams, CT scans, medical records and

death certificates.”   Charles, 730 F. Supp. 2d at 209.    The

responsive body armor description sheets “contained written
                                  -4-

descriptions of wounds and wound patterns and notations of

possible links between injuries sustained while wearing personal

protective equipment and resulting wound patterns.     Further, some

or all of the eighteen responsive records indicated that the body

armor under examination was not perfectly intact upon inventory.”

Id. (internal citations and quotation marks omitted).     Although

the defendants identified the records as responsive to Charles’s

request, they decided to withhold all of the records in their

entirety under FOIA exemptions.    Defs.’ Stmt. ¶ 7.

     In October 2009, the defendants moved for summary judgment

arguing that their search for responsive records was adequate and

that all of the records responsive to Charles’s request were

properly withheld.   Id. ¶ 8.   Charles filed a cross-motion for

summary judgment and an opposition in which he narrowed the scope

of his FOIA request to seek only:

     (a) [Armed Forces Medical Examiner Tracking System]
     body armor descriptions sheets, related to body armor
     worn by a soldier killed in Iraq or Afghanistan between
     January 1, 2006 and December 31, 2007, which indicate
     that the body armor was not intact upon receipt for
     inventory, and
     (b) autopsy reports and associated documents[2]:


     2
       Under the heading “autopsy reports and associated
documents,” Charles sought the production of “final autopsy
reports, preliminary autopsy reports, body diagrams, CT Scans,
[and] in-theater medical records.” Pl.’s Opp’n & Cross-Mot. for
Summ J., Mem. in Supp. of Pl.’s Opp’n & Cross-Mot. for Summ. J.
at 9 n.7; see also Defs.’ Stmt. ¶ 9. “In-theater medical records
are forms completed by military service personnel in-theater,
describing the treatment that a service member received for his
or her ultimately fatal wound(s).” Mallak Decl. ¶ 47.
                                -5-

          (1) indicating that a soldier killed in Iraq or
          Afghanistan between January 1, 2006 and
          December 31, 2007 suffered a fatal gunshot wound
          in an area likely covered by the front or rear
          ceramic insert plates of that soldier’s body
          armor, and/or
          (2) commenting, discussing or indicating that the
          body armor worn by a soldier killed in Iraq or
          Afghanistan between January 1, 2006 and
          December 31, 2007 did not prevent a fatal wound,
          or was penetrated by a bullet.

Pl.’s Stmt. ¶ 19; Charles, 730 F. Supp. 2d at 210.     Charles also

limited his request to copies of the responsive records with

certain information redacted, such as all personal identifying

information.3   The defendants re-reviewed their records and

determined that none of the records responsive to Charles’s

initial request were responsive to Charles’s narrowed request.

Charles, 730 F. Supp. 2d at 211.     In response, Charles “protested

the defendants’ apparent reversal on the question of whether they

possess any responsive documents.”    Id.




     3
       Specifically, Charles suggested that the following
information be redacted:
     all personal identifying information, information
     regarding dates of attack and unit numbers, the
     location of any wounds or wound patterns, the location
     of any damage to body armor, the entry, exit point or
     trajectory of bullets, the identification of any need
     to improve a specific aspect of body armor worn by
     military service personnel or the disclosure of
     information that will identify specific locations of
     vulnerability in the [Interceptor Body Armor] system or
     that indicate or suggest specific improvements to body
     armor.
Pl.’s Stmt. ¶ 20.
                                 -6-

     On August 13, 2010, Judge Urbina issued a Memorandum Opinion

and Order denying the defendants’ motion for summary judgment and

granting in part Charles’s cross-motion for summary judgment.

Id. at 217-18.    As an initial matter, Judge Urbina found that

Charles’s second FOIA request rendered his initial request moot.

Id. at 213.    Next, Judge Urbina held that the defendants’ search

for records responsive to Charles’s second request was

unreasonable and inadequate.   Id. at 213-17.    Finally,

Judge Urbina ordered the parties to submit supplemental briefing

on whether any FOIA exemptions applied to the redacted versions

of the documents Charles seeks under his narrowed request.      Id.

at 217-18.

     In October 2010, the defendants again moved for summary

judgment.    In their motion, the defendants admitted to possessing

records responsive to Charles’s narrowed request.    They stated

that they had identified 82 autopsy reports and associated

documents and 7 body armor description sheets.    Pl.’s Stmt.

¶¶ 25-26.    However, the defendants stated that they were

withholding the records under FOIA Exemptions 2, 5, and 6.

Defs.’ Stmt. ¶ 17.   Charles again filed a cross-motion for

summary judgment.    In March 2011, the Supreme Court decided

Milner v. Department of Navy, 131 S. Ct. 1259 (2011).       Milner

abrogated Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670

F.2d 1051, 1056 (D.C. Cir. 1981), which had held that “Exemption
                                 -7-

2 should also cover any ‘predominantly internal’ materials, whose

disclosure would ‘significantly ris[k] circumvention of agency

regulations or statutes[.]’”   Milner, 131 S. Ct. at 1263 (first

alteration in original) (footnote omitted) (quoting Crooker, 670

F.2d at 1056-57, 1074).   In light of the intervening change in

controlling law, Judge Urbina denied both motions for summary

judgment without prejudice.    See Minute Orders entered on

Sept. 1, 2011.

     The defendants now move a third time for summary judgment.

The defendants no longer rely on Exemption 2 to withhold

responsive records.   However, the defendants “continue to

withhold the preliminary and final autopsy reports, CT scans,

body diagrams, and in-theater medical records that are responsive

to Plaintiff’s narrowed request” under Exemptions 5 and 6.

Defs.’ Stmt. ¶ 19.4   The defendants further assert that the

records are properly withheld in their entirety and that any

responsive, non-exempt information in the records is not


     4
       In his opposition and cross-motion for summary judgment,
Charles asserts that the 7 responsive body armor description
sheets have not yet been disclosed. Pl.’s Mot., Mem. in Supp. of
Pl.’s Opp’n to Defs.’ Third Mot. for Summ. J. & Pl.’s Third
Cross-Mot. for Summ. J. at 2. The defendants do not dispute this
contention. See Pl.’s Stmt. ¶ 27 (stating that the “[d]efendants
have refused to produce any of the 7 body armor description
sheets”); Defs.’ Mot., Defs.’ Third Stmt. of Genuine Issues ¶ 27
(agreeing that the fact in paragraph 27 of the Plaintiff’s
Statement of Undisputed Material Facts is “undisputed”). Because
the defendants do not argue that the body armor description
sheets are being withheld under a FOIA exemption, the responsive
sheets will be ordered to be disclosed.
                                -8-

reasonably segregable.   Defs.’ Mot., Mem. in Supp. of Defs.’

Third Mot. for Summ. J. (“Defs.’ Mem.”) at 2.   Charles cross-

moves for summary judgment arguing that the defendants cannot

properly withhold the responsive body armor description sheets

and autopsy files and associated documents5 under Exemptions 5

and 6.   Pl.’s Mot., Mem. in Supp. of Pl.’s Opp’n to Defs.’ Third

Mot. for Summ. J. & Pl.’s Third Cross-Mot. for Summ. J. (“Pl.’s

Mem.”) at 2-3.

                            DISCUSSION

     Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”   Fed. R. Civ.

P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009).   The moving party has the initial burden “of informing the

district court of the basis for its motion, and identifying those

portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of

a genuine issue of material fact.”    Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (internal quotation marks omitted).   The

moving party is then entitled to summary judgment “against a



     5
       However, Charles no longer requests the CT scans and body
diagrams because he agrees that they contain only information
that Charles agreed could be redacted from the records. Pl.’s
Mem. at 7 n.6, 9 n.7, 10 n.8, 18 n.15.
                                    -9-

party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”      Id. at

322.       “In considering a motion for summary judgment, [the court

should draw] all ‘justifiable inferences’ from the evidence . . .

in favor of the nonmovant.”      Cruz-Packer v. District of Columbia,

539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).       In a FOIA case,

“[a]gency affidavits are accorded a presumption of good faith,

which cannot be rebutted by purely speculative claims about the

existence and discoverability of other documents.”      SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(internal quotation marks omitted).       An agency is entitled to

summary judgment in a FOIA case if it demonstrates that no

material facts are in dispute and that all requested information

has either been produced, is unidentifiable, or exempt from

disclosure.      See Students Against Genocide v. Dep’t of State, 257

F.3d 828, 833 (D.C. Cir. 2001).6

       Under the FOIA, agencies must comply with requests to make

their records available to the public unless the requested

information is exempted by clear statutory language.      5 U.S.C.

§ 552(a), (b); Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172,



       6
       Charles does not dispute that the defendants’ search was
adequate.
                                -10-

1176 (D.C. Cir. 1996).   Section 552(b) provides nine statutory

exemptions to disclosure.   See 5 U.S.C. § 552(b).   In light of

the “strong presumption in favor of disclosure[,]” U.S. Dep’t of

State v. Ray, 502 U.S. 164, 173 (1991), these exemptions are to

be construed as narrowly as possible to maximize access to agency

information, which is one of the overall purposes of the FOIA,

Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).    A district

court must review de novo an agency’s decision to withhold

records.    5 U.S.C. § 552(a)(4)(B).

     The agency bears the burden to demonstrate that the

documents requested are exempt from disclosure, see Assassination

Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.

2003), since the party requesting disclosure cannot know the

precise contents of the documents withheld, Vaughn, 484 F.2d at

823-24.    “To provide an effective opportunity for the requesting

party to challenge the applicability of an exemption and for the

court to assess the exemption’s validity, the agency must explain

the specific reason for nondisclosure.”   Island Film, S.A. v.

Dep’t of the Treasury, 869 F. Supp. 2d 123, 132 (D.D.C. 2012).

“To enable the Court to determine whether documents properly were

withheld, the agency must provide a detailed description of the

information withheld through the submission of a so-called

‘Vaughn Index,’ sufficiently detailed affidavits or declarations,

or both.”   Hussain v. U.S. Dep’t of Homeland Sec., 674 F. Supp.
                               -11-

2d 260, 267 (D.D.C. 2009).   Whatever form the agency’s

description takes, the description must be detailed and specific.

See Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566

F.2d 242, 251 (D.C. Cir. 1977); Island Film, 869 F. Supp. 2d at

132 (“Conclusory statements and generalized claims of exemption

are insufficient to justify withholding.”).

     If the agency affidavits and Vaughn index “‘contain
     reasonable specificity of detail rather than mere
     conclusory statements,’” then a plaintiff must point
     either to contradictory evidence in the record or
     provide independent evidence of agency bad faith to
     demonstrate that the agency improperly invoked an
     exemption. Williams v. FBI, 69 F.3d 1155, 1159 (D.C.
     Cir. 1995) (quoting Gallant v. NLRB, 26 F.3d 168, 171
     (D.C. Cir. 1994)).

Island Film, 869 F. Supp. 2d at 132.

I.   PRELIMINARY AUTOPSY REPORTS

     The defendants argue that “the preliminary autopsy

reports . . . that are responsive to Plaintiff’s narrowed

request” are properly withheld because they are protected by the

deliberative process privilege.    Defs.’ Mem. at 18.   The

defendants assert that the records “contain preliminary medical

findings used by AFMES professionals in creating final autopsy

reports and, as such, do not constitute the government’s final

analysis and determinations as to cause of death.”      Id.   Charles

counters that the redacted records are not protected by the

deliberative process privilege because Charles is seeking factual

information, which is not protected by the privilege.     Pl.’s Mem.
                                 -12-

at 18-19.    He further contends that at least the factual aspects

of the reports are reasonably segregable and should be disclosed.

Id. at 19.

     A.      Exemption 5

     Exemption 5 of the FOIA excludes from mandatory disclosure

“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).   The

exemption exempts documents “normally privileged in the civil

discovery context.”    NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

149 (1975).    Exemption 5 “covers intra-agency memoranda that

would routinely be shielded from discovery in private litigation

because of the government’s executive privilege, which protects

the deliberative or policymaking processes of government

agencies.”    Access Reps. v. Dep’t of Justice, 926 F.2d 1192, 1194

(D.C. Cir. 1991) (citing EPA v. Mink, 410 U.S. 73, 89 (1973))

(internal quotation marks omitted); Sears, 421 U.S. at 149 &

n.16).    “Exemption 5 is to be construed ‘as narrowly as

consistent with efficient Government operation.’”   Petroleum

Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1434

(D.C. Cir. 1992) (quoting Mink, 410 U.S. at 87).

     An agency invoking the exemption has the burden to show that

the responsive record is “predecisional” and “deliberative.”     Id.

A document is predecisional if “it was generated before the
                               -13-

adoption of an agency policy[.]”     Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).     It is

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

consultative process.”   Id.

      The exemption thus covers recommendations, draft
      documents, proposals, suggestions, and other subjective
      documents which reflect the personal opinions of the
      writer rather than the policy of the agency. Documents
      which are protected by the privilege are those which
      would inaccurately reflect or prematurely disclose the
      views of the agency, suggesting as agency position that
      which is as yet only a personal position.

Id.   “[F]actual information generally must be disclosed[.]”

Petroleum Info, 976 F.2d at 1434.     However, factual material may

be withheld where “disclosure ‘would expose an agency’s

decisionmaking process in such a way as to discourage candid

discussion within the agency and thereby undermine the agency’s

ability to perform its functions.’”    Quarles v. Dep’t of the

Navy, 893 F.2d 390, 392 (D.C. Cir. 1990) (quoting Dudman

Communic’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568

(D.C. Cir. 1987)).

      The defendants argue that the preliminary autopsy reports

are draft documents that “represent merely preliminary steps

toward arriving at the agency’s final determination as to cause

of death.”   Defs.’ Mem. at 20-21.    “Preliminary autopsy reports

are drafted before toxicology results and/or all information or

material from in theater are received, and thus, they reflect

only a tentative view of the meaning of evidence discovered
                                -14-

during an autopsy.”   Defs.’ Mot., Third Decl. of Craig T. Mallak

(“3d Mallak Decl.”) ¶ 12.   They are also “created before the

final cause and manner of death are determined by AFMES.”   Mallak

Decl. ¶ 37.   As such, “[t]he information in a preliminary autopsy

report can be, and often is, altered in the final autopsy

report[,]” and may reflect a different cause of death

determination than the final autopsy report reflects.   See 3d

Mallak Decl. ¶ 12.    Thus, Captain Mallak concluded that

disclosing the preliminary reports may “inhibit AFMES personnel

from freely expressing [their] initial opinions about the cause

and manner of death.”   Id. ¶ 12.

     The defendants’ evidence shows that the preliminary autopsy

reports are drafts of the final autopsy reports.   Charles has

cited no contradictory evidence in the record, or provided any

evidence of bad faith, to undermine the agency’s assessment that

disclosure of the preliminary reports would inhibit candor in

future reports and would disclose the agency’s decisionmaking

process.   Because this assessment is entitled to deference and

the agency has provided evidence to show that preliminary reports

are protected under the deliberative process privilege, the

agency properly invoked Exemption 5 to protect the preliminary

autopsy reports.
                                   -15-

      B.     Segregability

       An agency must disclose “[a]ny reasonably segregable

portion” of an otherwise exempt record.      5 U.S.C. § 552(b).   An

agency cannot withhold non-exempt portions of a document unless

they “are inextricably intertwined with exempt portions.”      Mead

Data, 566 F.2d at 260.       An agency is presumed to have complied

with its obligation to disclose non-exempt portions of the

record.    Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117

(D.C. Cir. 2007).    However, a “district court must make specific

findings of segregability regarding the documents to be

withheld.”    Id. at 1116.     The agency has the burden to

demonstrate that it disclosed all reasonably segregable material.

To meet its burden, “the withholding agency must supply ‘a

relatively detailed justification, specifically identifying the

reasons why a particular exemption is relevant and correlating

those claims with the particular part of a withheld document to

which they apply.’”    King v. U.S. Dep’t of Justice, 830 F.2d 210,

224 (D.C. Cir. 1987) (quoting Mead Data, 566 F.2d at 251).

      Here, the defendants assert that the preliminary autopsy

reports are properly withheld in their entirety.      Defs.’ Mem. at

22.   Charles argues that the factual material in the preliminary

autopsy reports is reasonably segregable from the predecisional

and deliberative material in the reports and thus, should be

disclosed.    The defendants contend that the factual information
                               -16-

in the preliminary reports is properly withheld because

“[f]actual information is often added, altered, or deleted from

these records before the autopsy report is finalized, such that

comparison of a preliminary autopsy report . . . and final

autopsy report would reveal the agency’s decisionmaking process.”

Defs.’ Mem. at 21-22.   However, the defendants do not provide

evidence supporting this contention.   Moreover, the defendants

failed to provide a sufficiently detailed description of the

information withheld, and a detailed justification correlating

the claim that a comparison of the preliminary and final autopsy

reports would disclose the agency’s decisionmaking process with a

description of the reports and the factual material they contain.

For instance, the defendants could have demonstrated that the

factual information in the preliminary autopsy reports could be

easily compared with the final reports to determine what

information was originally contained in the reports and what

information the agency ultimately concluded was correct.    See

Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048-49 (D.C.

Cir. 1982) (finding that Exemption 5 applies where “a simple

comparison between the pages sought and the official document

would reveal what material supplied by subordinates senior

officials judged appropriate for” the agency’s “official

statement concerning the history of herbicide use in the Vietnam

conflict” “and what material they judged inappropriate”).
                                   -17-

Instead, the defendants submitted an affidavit that contains the

conclusory statement that the “preliminary autopsy reports,

including any factual material contained in them, are

predecisional and deliberative.”      3d Mallak Decl. ¶ 12.    Because

“generalized claims of exemption are insufficient to justify

withholding[,]” Island Film, 869 F. Supp. 2d at 132, the

defendants’ motion for a judgment that there was no reasonably

segregable information in the preliminary autopsy reports will be

denied without prejudice.

II.   FINAL AUTOPSY REPORTS AND IN-THEATER MEDICAL RECORDS

      The defendants contend that they “properly withheld,

pursuant to Exemption 6, the responsive preliminary and final

autopsy reports, . . . and in-theater medical records, in their

entirety.”    Defs.’ Mem. at 10.    Charles argues that Exemption 6

is inapposite because he does not seek any personally identifying

information.   Pl.’s Mem. at 10.

      Exemption 6 of the FOIA provides that an agency may 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 threshold inquiry is

whether the requested information is contained in a type of file

covered by the exemption.   Wash. Post Co. v. U.S. Dep’t of Health

& Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982).         If the

responsive records are contained within personnel, medical or
                               -18-

similar files, then the court “must determine whether disclosure

would constitute a clearly unwarranted invasion of personal

privacy.”   Id. (internal quotation marks omitted).

     Exemption 6 applies only “when the documents disclose

information attributable to an individual.”   Arieff v. U.S. Dep’t

of Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983).    “All information

which ‘applies to a particular individual’ is covered by

Exemption 6, regardless of the type of file in which it is

contained.”   Wash. Post, 690 F.2d at 260 (quoting U.S. Dep’t of

State v. Wash. Post Co., 456 U.S. 595, 602 (1982)).    Medical

records may be withheld under Exemption 6.    Prison Legal News v.

Lappin, 780 F. Supp. 2d 29, 41 (D.D.C. 2011) (citing Bast v. U.S.

Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981)).     Each

autopsy report contains information that applies to a particular

individual, and Charles does not dispute that the autopsy reports

are “similar files” that may be subject to Exemption 6.    Cf.

Badhwar v. U.S. Dep’t of the Air Force, 829 F.2d 182, 185-86

(D.C. Cir. 1987) (implying that an autopsy report may be properly

withheld under Exemption 6).   Thus, the medical records and

autopsy reports meet Exemption 6’s threshold criterion.

      “Exemption 6 ‘tilt[s] the balance (of disclosure interests

against privacy interests) in favor of disclosure,’ and creates a

‘heavy burden’ for an agency invoking Exemption 6.”   Lardner v.

Dep’t of Justice, 638 F. Supp. 2d 14, 23-24 (D.D.C. 2009)
                               -19-

(alteration in original) (quoting Morley v. CIA, 508 F.3d 1108,

1128 (D.C. Cir. 2007)).   To determine whether disclosure would

cause a clearly unwarranted invasion of personal privacy, courts

consider whether disclosure would invade privacy, and if so, the

seriousness of that invasion and the public interest in

disclosing the information.   Then they balance the individual

privacy interests against the public interests.   Wash. Post, 690

F.2d at 260.   “Exemption 6 is designed to protect personal

information in public records, even if it is not embarrassing or

of an intimate nature[.]”   Nat’l Ass’n of Retired Fed. Employees

v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989).    To properly

withhold records under the exemption, the agency must establish

that disclosure of the responsive records “would compromise a

substantial, as opposed to de minimis, privacy interest.”       Id. at

874.   On the other side of the balance, the requestor bears the

burden of articulating a significant public interest, Schwaner v.

Dep’t of the Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010), and of

showing that disclosure would advance that interest, Harrison v.

Exec. Office for U.S. Attorneys, 377 F. Supp. 2d 141, 147 (D.D.C.

2005).   The only relevant public interest under the FOIA is the

extent to which disclosure “advances the citizens’ right to be

informed about what their government up to[.]”    Nat’l Ass’n of

Home Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002)

(internal quotation marks omitted).   As such, there is no public
                                 -20-

interest in disclosure that reveals “little or nothing about an

agency’s own conduct.”    U.S. Dep’t of Justice v. Reporters Comm.

for Freedom of Press, 489 U.S. 749, 773 (1989).

     The defendants assert that the deceased service members’

family members have significant privacy concerns in not being

confronted with the “vivid details of the last moments of a

military service member’s life[,]” Defs.’ Mem. at 12 (citing

Decl. of George W. Casey (“Casey Decl.”) ¶¶ 5, 26-27, 31; 3d

Mallak Decl. ¶ 14; Mallak Decl. ¶¶ 33, 47).    The defendants

further assert that redacting personal information from the

records before disclosing them will not spare the family members

anguish because the DOD has a policy to notify the family members

before information related to a service members’s death is

publicly released even in a redacted form, Casey Decl ¶ 14, and

that notification will cause the family members anguish and

grief, id. ¶¶ 29-30.     Charles retorts that after personal

information is redacted from the records, it will be impossible

to determine the particular individual to whom the record

pertains.   Pl.’s Mem. at 11-12.   He also argues that the

defendants cannot insulate themselves from complying with the

FOIA by arguing that their own notification regulations will

invade the family members’ personal privacy.    Id. at 16-17.   The

defendants respond that the privacy interest at stake does not

stem from the public’s knowledge of personal information about a
                               -21-

particular individual.   Instead, citing National Archives and

Records Administration v. Favish, 541 U.S. 157 (2004), the

defendants assert that the privacy interest here stems from

families not having “the most intimate details of their loved

one’s death and autopsy . . . in the public domain.”    Mem. in

Opp’n to Pl.’s Third Cross-Mot. for Summ. J. & Reply in Supp. of

Defs.’ Third Mot. for Summ. J. at 4.

     In Favish, the Supreme Court held that a decedent’s family

members have privacy interests in death-scene photographs and

those interests are properly considered under FOIA Exemption

7(C).7   The decedent’s family asserted that they had personal

privacy interests in being “shielded by the exemption to secure

their own refuge from a sensation-seeking culture for their own

peace of mind and tranquility, not for the sake of the deceased.”

541 U.S. at 166.   In a sworn declaration, the decedent’s sister

described the horror and devastation caused when another

photograph of the decedent was leaked to the press.    She stated

that the photograph gave her nightmares and that releasing more

photographs would cause her family to become “the focus of

conceivably unsavory and distasteful media coverage.”   Id. at 167



     7
       Exemption 7(C) exempts from disclosure “records or
information compiled for law enforcement purposes . . . to the
extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy[.]” 5 U.S.C.
§ 552(b)(7).
                               -22-

(internal quotation marks omitted).    The Court explained that

there is a cultural tradition of respecting burial rites.      Id. at

168 (“Family members have a personal stake in honoring and

mourning their dead and objecting to unwarranted public

exploitation that, by intruding upon their own grief, tends to

degrade the rites and respect they seek to accord to the deceased

person who was once their own.”).     This right is protected in the

common law, which allows families to control “the body and death

images of the deceased[.]”   Id.    Assuming that Congress

legislated with this backdrop in mind, the Court held “that FOIA

recognizes surviving family members’ right to personal privacy

with respect to their close relative’s death-scene images.”      Id.

at 170.

     The defendants insist that a similar privacy interest exists

in this case.   Courts have recognized that under Exemption 6,

“close relatives of a deceased person retain a certain amount of

privacy interests after the decedent has passed away.”       Mobley v.

CIA, Civil Action Nos. 11-2072, 11-2073 (BAH), 2013 WL 452932, at

*40 (D.D.C. Feb. 7, 2013).   However, “the Supreme Court’s holding

in [Favish] was limited to ‘surviving family members’ right to

personal privacy with respect to their close relative’s

death-scene images.’”   Id. (quoting Favish, 541 U.S. at 170).

Also, in Favish, the Court was considering whether the
                               -23-

photographs were exempt from disclosure under Exemption 7(C), not

Exemption 6.8

     The defendants have not demonstrated that Favish should be

applied in this different context.    For instance, the defendants

have not shown that family members would be able to discern which

redacted records relate to their deceased family member, unlike

how such identification was possible with the photographs at

issue in Favish.9   The defendants still allege that releasing the

autopsy reports will “disrupt any peace of mind [surviving family

members] have been able to achieve by forcing them to relive

their loved one’s death in graphic detail, and likely subject

them to unwanted intrusions or harassment from the media.”

Mallack Decl. ¶¶ 39, 47.   However, without demonstrating that



     8
       “[B]ecause Exemption 7(C) permits withholding of such
records if disclosure would constitute an ‘unwarranted’ invasion
of personal privacy, while Exemption 6 requires a ‘clearly
unwarranted’ invasion to justify nondisclosure, ‘Exemption 7(C)
is more protective of privacy than Exemption 6’ and thus
establishes a lower bar for withholding material.” Am. Civil
Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C.
Cir. 2011) (quoting U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 496
n.6 (1994)); see also Reporters Comm. for Freedom of Press, 489
U.S. at 756 (explaining that the privacy interests covered under
Exemption 7(C) are broader than those covered by Exemption 6).
     9
       Casey states in his declaration that there is a “distinct
possibility that Families can be identified even from redacted
autopsies[.]” Casey Decl. ¶ 33. However, this conclusory
statement is insufficient for the agency to meet its burden to
show that the records are properly withheld under Exemption 6.
See Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F.
Supp. 2d 13, 23 (D.D.C. 2011) (citing McGehee v. CIA, 697 F.2d
1095, 1102 (D.C. Cir. 1983)).
                               -24-

family members will encounter the disclosed information, and be

able to discern that a redacted report relates to their family

member, the defendants present no more than a mere possibility of

an invasion of personal privacy and that is insufficient to find

that Exemption 6 applies.   See Dep’t of the Air Force v. Rose,

425 U.S. 352, 380 n.19 (1976) (“Exemption 6 was directed at

threats to privacy interests more palpable than mere

possibilities.”); id at 382 (“Exemption 6 does not protect

against disclosure every incidental invasion of privacy[,] only

such disclosures as constitute ‘clearly unwarranted’ invasions of

personal privacy.”).   Furthermore, even if the family members

were able to determine which redacted record pertained to their

deceased family member, the defendants have not demonstrated that

the information in the records would “shock the sensibilities of

surviving kin.”   Badhwar, 829 F.2d at 186.   Thus, the defendants

have not carried their heavy burden of showing more than a de

minimis privacy interest that would justify withholding the

redacted responsive records under Exemption 6.10


     10
       In predicting pain that families would feel on receiving
notice that information about their deceased family members is
being disclosed, the defendants attempt to equate the “pain this
notification process will cause” with the “the pain from which
the Court in N.Y. Times Company v. NASA[, 782 F. Supp. 628
(D.D.C. 1991),] protected surviving family members of the Space
Shuttle Challenger astronauts.” Defs.’ Mem. at 14. New York
Times held that transcripts and recordings of voice
communications aboard the Challenger were properly withheld under
Exemption 6. However, the court found that the family members of
the deceased astronauts had a privacy interest in the recordings
                               -25-

     “If no significant privacy interest is implicated . . . ,

FOIA demands disclosure.”   Horner, 879 F.2d at 874.11   Thus,

because the defendants have not shown that disclosing the


because the recordings contained intimate details: “the sound of
the astronauts’ voices.” Id. at 631. The court explained that
“[w]hat the astronauts said may not implicate privacy
interests[.]” Id. “But how the astronauts said what they did,
the very sound of the astronauts’ words, does constitute a
privacy interest.” Id. The court concluded that the privacy
interest was substantial because releasing the recordings may
cause the Challenger families to “be subjected not just to a
barrage of mailings and personal solicitations, but also to a
panoply of telephone calls from media groups as well as a
disruption of their peace of mind every time a portion of the
tape is played within their hearing.” Id. at 632. As is
discussed above, the defendants have failed to establish that the
families of the deceased service members will be able to identify
which redacted report and record corresponds to their family
members, that the privacy interest in redacted records that do
not contain personally identifying information is more than de
minimis, and that releasing the records will cause the family
members to be unwittingly exposed to the information in the
records and contacted by interested parties.
     11
       In addition, there is a significant public interest in
disclosure. Charles’s own purpose in seeking the information,
namely, to determine whether a military service member “died from
bullets that perforated the front or rear ceramic plate of their
body armor,” Defs.’ Mem. at 15, and whether the body armor
“provide[s] sufficient protection for American troops in combat,”
Charles, 730 F. Supp. 2d at 208, is not relevant in the public
interest inquiry. See Bibles v. Or. Natural Desert Ass’n, 519
U.S. 355, 356 (1997) (per curiam) (“The purposes for which the
request for information is made, we said, have no bearing on
whether information must be disclosed under FOIA.” (internal
quotation marks omitted)). But, as Charles argues, the redacted
records describing the manner and cause of death will “contribute
concrete, factual detail to the growing debate regarding the
adequacy of” the body armor that the government issued to
American troops and implicate whether “the appropriate level of
protection has been achieved.” Pl.’s Mem. at 13-14 (internal
quotation marks omitted). Thus, the information will advance the
public’s right to be informed about what their government is
doing with respect to body armor issued to service members.
                               -26-

redacted final autopsy reports and in-theater medical records

will cause a clearly unwarranted invasion of personal privacy,

Exemption 6 does not justify withholding the records.12

                      CONCLUSION AND ORDER

     Although the defendants properly invoked Exemption 5, they

have not provided sufficient evidence that they properly withheld

the preliminary autopsy reports in their entirety.   Nor have the

defendants properly invoked Exemption 6.   Accordingly, it is

hereby

     ORDERED that the defendants’ third motion [41] for summary

judgment be, and hereby is, DENIED without prejudice as to the

preliminary autopsy reports withheld under Exemption 5, and

DENIED as to the material withheld under Exemption 6.     It is

further

     ORDERED that the plaintiff’s motion [44] for summary

judgment be, and hereby is, GRANTED in part and DENIED in part.

The plaintiff’s motion is denied as to the preliminary autopsy

reports withheld under Exemption 5 and granted as to the material

withheld under Exemption 6.   It is further




     12
       The defendants also allege that the preliminary autopsy
reports are properly withheld under Exemption 6. Redacted
preliminary autopsy reports are not exempt from disclosure under
Exemption 6 for the same reasons that the redacted final autopsy
reports and in-theater medical records are not properly withheld
under the exemption.
                               -27-

     ORDERED that the defendants release by April 29, 2013 the 7

responsive body armor description sheets and the 82 responsive

final autopsy reports and associated in-theater medical records,

all in redacted form.   It is further

     ORDERED that the defendants file by April 29, 2013 a

supplemental memorandum, with supporting affidavits,

declarations, or a Vaughn index, that demonstrates that the

responsive preliminary autopsy reports were properly withheld in

their entirety and that the defendants are not withholding non-

exempt, reasonably segregable portions of the reports.

     SIGNED this 27th day of March, 2013.



                                             /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
