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MacLean v. U.S. Dep't of the Army

March 6, 2007

NORBERT BASIL MACLEAN III, PLAINTIFF,
v.
U.S. DEPARTMENT OF THE ARMY; U.S. DEPARTMENT OF THE AIR FORCE; FRANCIS J. HARVEY, IN HIS (OFFICIAL CAPACITY AS SECRETARY OF THE ARMY; AND U.S. DEPARTMENT OF DEFENSE, DEFENDANTS.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Docs. # 27, 36, 45, 54)

Before the Court are Motions for Summary Judgment filed by Plaintiff (Doc. # 45), as well as all Defendants (Docs. # 27, 36), in this action brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.

I. Background

In 1992, while Plaintiff was serving in the Navy, the Navy convened a general court-martial against him for passing bad checks. See MacLean v. Dep't of Def., Case No. 04cv2425-IEG(JFS) (S.D. Cal.), June 6, 2005 Order Granting Defendants' Motion for Summary Judgment and Denying Plaintiff's Cross-Motion for Summary Judgment ("June 6, 2005 Order"), at 2. Plaintiff pleaded guilty to multiple specifications of writing bad checks, was acquitted on other charges, and was dishonorably discharged. See id.; see also MacLean v. U.S., 454 F.3d 1334, 1335 (Fed. Cir. 2006). According to Plaintiff, during this 1992 case, he "was the victim of illegal military subpoenas designed to skirt the protections afforded by federal privacy laws. Specifically, the U.S. Navy issued at least one dozen illegal subpoenas on civilians, without notice to [Plaintiff] MacLean, that violated MacLean's rights under the federal Right to Financial Privacy Act." (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J. at 1.) These subpoenas were "illegal" because they were issued prior to the convening of his general court-martial. See Flowers v. First Hawaiian Bank, 295 F.3d 966, 973 (9th Cir. 2002) (holding that military subpoena power does not exist prior to the convening of a general court-martial). Defendants do not dispute that those subpoenas were issued prior to the convening of his court-martial, and hence were unauthorized. (Defs.' Mem. Supp. Mot. Summ. J. at 2 n.5.) Over the past several years, Plaintiff has sought unsuccessfully to attack collaterally his conviction.*fn1

In 2004, Plaintiff submitted FOIA requests to the Navy Office of Judge Advocate General ("Navy OJAG") and the Department of Defense ("DoD") seeking "any and all documents that refer, reflect and/or relate to any investigations conducted by the JAG Corps IG in the years 2003 and 2004 regarding Mr. MacLean's case and allegations of illegal subpoenas that were issued in May, June and July 1992 prior to the convening of Mr. MacLean's general court-martial on August 6, 1992." June 6, 2005 Order at 2. Unsatisfied with the responses he received to this FOIA request, Plaintiff filed MacLean v. Dep't of Defense, Case No. 04cv2425-IEG(JFS) (S.D. Cal.), asking the Court (Gonzalez, C.J.) to order production of all requested documents.

On May 10, 2005, Chief Judge Gonzalez heard oral arguments on the parties' cross-motions for summary judgment. Part of the arguments touched on whether Plaintiff could establish a public interest in disclosure of documents related to the unauthorized issuance of subpoenas. Defense counsel stated: "All we have is an allegation of this one incident [i.e., Plaintiff's court-martial] in which there were subpoenas that were issued prior to the convening of the court-martial, and there has been no dispute all along by the Navy that the issuance of the subpoenas before the convening of the court-martial was improper." (Pl.'s January 27, 2006 Req. for Judicial Notice, Ex. 1 (May 10, 2005 hearing transcript), at 6.) Defense counsel further stated:

I mean, is there any practice that [Plaintiff] can show that there were improper subpoenas that were issued on a widespread basis? We don't have any indication of that whatsoever. So, again, we have a situation here where not only is this a long time ago, not only is it something that was a single incident, but another thing to adhere to is that this matter was investigated by the Navy....

And again, I would say that it's [Plaintiff's] trying to create the public interest as opposed to there really being a public interest in the sense of the Freedom of Information Act. (Id. at 9.) The Court then asked Plaintiff's counsel, "Do you agree with the government that this was an isolated incident?" (Id. at 26.) Plaintiff's counsel responded:

We're disadvantaged here because we only know what the government has told us.... So, no, we don't believe it's an isolated incident. We believe that were we to do FOIA. requests to every branch of the military, we could probably discover a lot of incidents of illegal subpoenas being issued.... And in terms of the public interest, ... this case is not just sort of about Mr. MacLean's personal vendetta.

This is really about the public right to know information about what we consider to be serious government misconduct. And it's not an isolated incident. (Id. at 26-27, 33.) In rebuttal, the government disputed this, declaring that "[Plaintiff's] claim about other instances of misconduct is totally speculative." (Id. at 45.) On June 6, 2005, Chief Judge Gonzalez granted the government's motion for summary judgment, basing her ruling, in part, on a finding that the implicated privacy interests outweighed the public interest in disclosure. That ruling has been appealed, and the case is currently pending before the Ninth Circuit.

After the above-quoted exchanges before Chief Judge Gonzalez, Plaintiff conducted research and "discovered separate incidents involving other branches of the U.S. military issuing illegal subpoenas upon civilians." (First Amended Complaint ¶ 10.)

On May 23, 2005, Plaintiff submitted an FOIA request to the Army, addressing it to both the OJAG Criminal Law Division, and the Army Standards of Conduct Office ("SOCO"). (Quinn Decl., Ex. A) Plaintiff's May 23, 2005 FOIA request stated:

I hereby request pursuant to Freedom of Information Act ('FOIA'), ... to be provided the following information on the below listed cases involving the issuance of illegal military subpoenas to civilians: (1) any and all professional responsibility investigations into the Army judge advocates and/or agents of the U.S. Army who issued the illegal subpoenas to civilians; (2) any and all misconduct investigations by the Army Judge Advocate General and/or Army Inspector General into the Army judge advocates and/or agents of the U.S. Army who issued the illegal subpoenas to civilians; (3) any and all ethics investigations into the Army judge advocates and/or agents of the U.S. Army who issued the illegal subpoenas to civilians; and (4) any and all formal and/or informal disciplinary action taken against the Army judge advocates and/or agents of the U.S. Army who issued the illegal subpoenas to civilians:

1) Case of Sergeant Major Marshall Flowers [U.S. Army judge advocates in Hawaii issued illegal subpoenas to civilians for use at a Uniform Code of Military Justice ('UCMJ') article 32 hearing];

2) Case of Specialist Ricky M. Johnson [U.S. Army judge advocate in Germany caused the German government to issue an illegal subpoena for a 'UCMJ article 32' hearing of a German civilian]; and

3) Case of Specialist La-Dell V. Wooten [U.S. Army judge advocates in Germany issued illegal subpoenas for an UCMJ article 32 hearing to civilians in Texas and Germany]

(Id.)

On May 31, 2005, the Army OJAG denied Plaintiff's request, characterizing Plaintiff's request as one seeking records involving allegations of professional misconduct by Army attorneys, and stating that "as a matter of policy to protect the privacy interests of Army personnel, this office does not confirm or deny the existence of the type of records that would respond to your request." (Id., Ex. B.) The Army's response further indicated that even if the records Plaintiff sought existed, they would be exempt from mandatory release under FOIA exemptions 5, 6 and 7(C).... Information is withheld pursuant to FOIA exemption 5 because it is predecisional and deliberative information. Information is withheld pursuant to FOIA exemptions 6 and 7(C) because release of the information would cause a clearly unwarranted invasion of personal privacy for the person concerned. Furthermore, your request for information of 'misconduct investigations by the.... Army Inspector General into the Army judge advocates and/or agents of the U.S. Army who issued the illegal subpoenas to civilians....' encompasses attorney professional responsibility information which could be held by the Inspector General, and is denied for the same reasons. This action constitutes a denial of your request.... (Id.)

By letter dated June 6, 2005, Plaintiff appealed the denial. (Id., Ex. C.) On September 19, 2005, the Army denied Plaintiff's appeal, finding that the refusal to confirm or deny the existence of documents responsive to Plaintiff's FOIA request had been proper under FOIA Exemption 6 (i.e., 5 U.S.C. § 552(b)(6)). (Id., Ex. D.) The Army stated that the professional responsibility investigation records Plaintiff sought were analogous to law enforcement files, and that "an attorney's privacy interest outweighs the public's interest in knowing whether the individual was the subject of any type of misconduct or ethics investigation because such knowledge would shed little light on Government operations." (Id., Ex. D.)

On May 23, 2005, Plaintiff also submitted an FOIA request to the Air Force, identical in substance to the above-quoted Army request, except he requested investigation documents related to the following three cases:

1) Case of Master Sergeant Martha Lawson, U.S. Air Force [U.S. Air Force judge advocates at Andrews Air Force Base, Maryland issued illegal subpoenas to civilians for use at a Uniform Code of Military Justice ('UCMJ') article 32 hearing];

2) Case of Staff Sergeant Marcus William, U.S. Air Force [U.S. Air Force judge advocates at Maxwell Air Force Base, Alabama issued illegal subpoenas to civilians for use at a UCMJ article 32 hearing]; and

3) Major Gregory Russell, U.S. Air Force [U.S. Air Force judge advocates at the U.S. Air Force Academy, Colorado Springs, Colorado issued illegal subpoenas to civilians for use at a UCMJ article 32 hearing].

(Espinal Decl., Ex. A.) On May 25, 2005, the Air Force sent a letter to Plaintiff acknowledging the receipt of the FOIA request and indicating that the request was being processed. (Id., Ex. B.) On June 22, 2005, the Air Force sent Plaintiff another letter stating that the processing of his FOIA request continued. (Id., Ex. C.) On August 15, 2005 and August 23, 2005 (after Plaintiff initiated the current action), two different Air Force departments sent Plaintiff letters indicating that no responsive records were located. (Id., Ex. D & F.) On March 21, 2006, the Air Force sent Plaintiff a letter informing him that during a subsequent search of its records, 77 pages of responsive documents were found. (Id., Ex. G.) The letter further indicated that Plaintiff would receive a redacted version of the documents, due to "Exemptions 2, 5, 6, and 7(C) of the FOIA," along with a "Vaughn index," which is a chart containing a description of the documents, summary of the withheld information and the claimed FOIA exemptions. (Id.; Peterson Decl. I, Ex. B.) Finally, on January 11, 2007, the Air Force released 10 of the previously released 77 documents, with fewer redactions, along with a revised Vaughn index. (Peterson Decl. II, Ex. A & B.)

On July 25, 2005, Plaintiff filed the instant lawsuit, seeking judicial review of the Defendants' responses (or lack thereof) to his FOIA requests. On January 3, 2006, Plaintiff filed his First Amend Complaint ("FAC"), which consists of four Counts. Counts One (against Army) and Two (against Air Force) seek a declaration that Plaintiff was denied his right to a timely determination of his FOIA requests. Count Three (against Army, Air Force and DoD) seeks injunctive relief for the failure of the agencies to provide the requested documents. Count Four seeks to enjoin the Army from its alleged policy to "not confirm or deny the existence" of requested FOIA documents (i.e., a so-called "Glomar" response).*fn2 On January 27, 2006, Plaintiff moved for a preliminary injunction as to Count Four only. (Doc. # 20.) After briefing and a hearing, the Court denied the Motion for Preliminary Injunction on March 23, 2006, holding, inter alia, that Plaintiff had demonstrated a low probability of success on the merits. (Doc. # 32.)

On March 6, 2006, Defendants filed a Motion for Summary Judgment as to all the claims against all Defendants in the FAC, with the exception of Plaintiff's claim against the Air Force in Count Three. (Doc. # 27.) On June 5, 2006, the Air Force filed a Motion for Summary Judgment as to the claim against it in Count Three. (Doc. # 37.)

On December 1, 2006, Plaintiff filed his own Motion for Summary Judgment (Doc. # 45), as well as an opposition to Defendants' Motions (Doc. # 46). In his Opposition, Plaintiff narrowed the issues by stating he "does not challenge the adequacy of the search performed by the DoD and hereby consents to summary adjudication or dismissal of the DoD as a party"; he "voluntarily dismisses Secretary of the Army Francis J. Harvey from this action because he is not a necessary party for the Plaintiff to secure an adequate remedy"; and, he "is no longer seeking the injunction sought in Count IV." (Pl.'s Mem. Opp'n Defs.' Mots. Summ. J. at 1 n.1.)*fn3 In light of this, all claims against Defendants DoD and Secretary Harvey will be dismissed, as well as Plaintiff's claim for injunctive relief in Count Four. Thus, the remaining claims are those contained in Counts One (against Army) and Two (against Air Force), each seeking declaratory relief, and those contained in Count Three against Army and Air Force, seeking injunctive relief.

On January 16, 2007, Defendants filed a reply brief and an opposition to Plaintiff's Motion. On February 5, 2007, Plaintiff filed a reply brief. On February 12, 2007, the Court heard oral arguments.

II. Discussion

A. Legal Standard

"Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved." Nat'l Res. Def. Council v. Dep't of Def., 388 F. Supp. 2d 1086, 1094 (C.D. Cal. 2005) (quoting Mace v. EEOC, 37 F. Supp. 2d 1144, 1146 (E.D. Miss. 1999)). However, "[u]nlike the typical summary judgment analysis, in a FOIA case, we do not ask whether there is a genuine issue of material fact, because the facts are rarely in dispute." Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996); cf. Fiduccia v. DOJ, 185 F.3d 1035, 1040 (9th Cir. 1999) ("Though this is review of a summary judgment, our review in a FOIA summary judgment case is not simply de novo, nor do we ask whether there is a genuine issue of fact in most cases. Instead, in a FOIA case, we first determine whether the district judge had an adequate factual basis for decision, and if not, remand.").

"FOIA gives individuals a judicially-enforceable right of access to government agency documents." Lion Raisins v. Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004) (citing 5 U.S.C. § 552); see also, e.g., Minier, 88 F.3d at 800 ("FOIA entitles private citizens to access government records."). The FOIA provides, inter alia, that: "[E]ach agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A).

"The Supreme Court has interpreted the disclosure provisions of FOIA broadly, noting that the act was animated by a 'philosophy of full agency disclosure.'" Lion Raisins, 354 F.3d at 1079 (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989); Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) ("disclosure, not secrecy, is the dominant objective of the Act")). "FOIA contains nine exemptions, however, which a government agency may invoke to protect certain documents from public disclosure." Minier, 88 F.3d at 800 (citing 5 U.S.C. § 552(b)). "Unlike the disclosure provisions of FOIA, its statutory exemptions 'must be narrowly construed.'" Lion Raisins, 354 F.3d at 1079 (quoting John Doe Agency, 493 U.S. at 152). "Where the government withholds documents pursuant to one of the enumerated exemptions of FOIA, 'the burden is on the agency to sustain its action.'" Id. (quoting 5 U.S.C. § 552(a)(4)(B)). "An agency's refusal to disclose information is subject to de novo review by a district court." Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (citing 5 U.S.C. § ...


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