Whitlock v. U.S. Department of Defense

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CRAIG WHITLOCK,

Plaintiff, Case No. 20-cv-3246 (JMC)

v.

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Craig Whitlock, a reporter for The Washington Post, made thirteen Freedom of

Information Act (FOIA) requests for records related to a federal corruption and bribery

investigation. ECF 20-1 at 6.1 Defendants—the U.S. Department of Defense and the U.S.

Department of the Navy—withheld many of the responsive records pursuant to FOIA Exemptions

5, 6, 7(A), 7(B), and 7(C). Id. The parties cross-move for summary judgment. ECF 20; ECF 23.

The sole disputed issue is whether the agency properly withheld responsive records pursuant to

Exemptions 7(A) and 7(B). See ECF 23-1 at 1 n.1. Because the agency has not justified its

Exemption 7(A) and 7(B) withholdings but has demonstrated that it is entitled to summary

judgment on the remaining (undisputed) issues, the Court will GRANT Whitlock’s cross-motion

for summary judgment and GRANT IN PART AND DENY IN PART Defendants’ motion for

summary judgment.

1

Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by

omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to

documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the

top of each page.

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I. BACKGROUND

The following facts are not in dispute. Beginning in the early 1990s, Glenn Defense Marine

Asia (GDMA) served as the husbanding agency for the U.S. Navy, providing logistical support to

military vessels throughout Asia. ECF 20-3 at 3 ¶ 4. At one point, GDMA held government

contracts worth more than $196 million. Id. In 2013, a federal investigation (the “GDMA

investigation”) revealed that the company’s owner, Leonard Francis, had paid millions of dollars

in bribes and gifts to Navy service members and employees in exchange for confidential

information. Id. at 3 ¶ 5.

Francis pled guilty to fraud and bribery charges in 2015. Id. at 8 ¶ 7. Federal prosecutors

have since charged more than 30 individuals in connection with the GDMA investigation. Id. at 8–

9 ¶ 7. At the time of summary judgment briefing, eight former naval officers were awaiting trial

in USA v. Newland, et al., No. 3:17-CR-623 (S.D. Cal.). See id. The court planned to conduct

Francis’s sentencing after the conclusion of that trial. Id. The U.S. Attorney’s Office for the

Southern District of California had also referred nearly 700 individuals to military adjudication

authorities. Id. at 9 ¶ 9. The Navy’s Consolidated Disposition Authority (CDA) is responsible for

reviewing those referrals and formulating disciplinary recommendations. Id. The CDA “will not

conclude its work until such time as the Department of Justice determines that it will not refer

additional individuals to Navy for final disposition and closes the GDMA criminal investigation.”

Id. at 10 ¶ 12.

Whitlock is an investigative reporter for The Washington Post who covers national security

issues, including the GDMA investigation. ECF 1 ¶¶ 2, 16. He filed a number of FOIA requests

seeking Navy records related to the GDMA investigation; thirteen of those requests are at issue in

this case. See ECF 20-2; ECF 23-4. The Navy searched for and identified roughly 18,000 pages of

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records responsive to Whitlock’s requests. See ECF 20-2 ¶¶ 4, 9, 14, 19, 24, 29, 34, 43, 48, 53, 58,

63. It withheld around 1,500 pages of those records in part and approximately 16,500 pages in full,

invoking FOIA Exemptions 5, 6, 7(A), 7(B), and 7(C). Id. ¶¶ 5, 10, 15, 20, 25, 30, 35, 39, 44, 49,

54, 59, 64. Whitlock appealed each of the Navy’s adverse decisions, and the Navy denied those

appeals. See ECF 20-3 at 11–24 ¶¶ 17–145.

Whitlock filed this suit, claiming that the agency had violated the Freedom of Information

Act, 5 U.S.C. § 552. ECF 1. Defendants moved for summary judgment, arguing that the agency

complied with the FOIA by performing adequate searches for responsive records and appropriately

withholding documents pursuant to Exemptions 5, 6, 7(A), 7(B), and 7(C). See ECF 20. Whitlock

cross-moved for summary judgment, challenging only the Navy’s2 Exemption 7(A) and 7(B)

withholdings. See ECF 23-1. He does not contest whether the Navy conducted adequate searches,

or whether it appropriately withheld records under Exemptions 5, 6, and 7(C). See id. at 1 n.1. The

parties’ motions are fully briefed and the Court is prepared to rule. See ECF Nos. 20, 23, 24, 26,

27, 28.

II. LEGAL STANDARD

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). A court will grant a motion for

summary judgment 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). A material

fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a motion for summary judgment, “[t]he

evidence is to be viewed in the light most favorable to the nonmoving party and the court must

2

For ease of reference, the Court refers—as do the parties—to both Defendants as “the Navy.”

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draw all reasonable inferences” in that party’s favor. Talavera v. Shah, 638 F.3d 303, 308 (D.C.

Cir. 2011). “When parties file cross-motions for summary judgment, each motion is viewed

separately, in the light most favorable to the non-moving party, with the court determining, for

each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Howard

Town Ctr. Dev., LLC v. Howard Univ., 267 F. Supp. 3d 229, 236 (D.D.C. 2017).

In FOIA cases, it is the defending agency’s burden to prove it has complied with its

obligations under the statute. DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). To satisfy that

burden, the “agency must prove that each document that falls within the class requested either has

been produced, is unidentifiable[,] or is wholly exempt from the Act’s inspection requirements.”

Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980). A court may rely on the agency’s “relatively

detailed and non-conclusory” affidavits or declarations to resolve a FOIA case, SafeCard Servs.,

Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), if they “describe the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith,” Military Audit Project v. Casey, 656

F.2d 724, 738 (D.C. Cir. 1981).

III. ANALYSIS

Whitlock does not dispute that the Navy’s searches were adequate or that it properly

withheld records pursuant to Exemptions 5, 6, and 7(C). See ECF 23-1 at 1 n.1; ECF 26 at 1. The

Court must nonetheless independently evaluate whether the agency is entitled to summary

judgment. See Alexander v. FBI, 691 F. Supp. 2d 182, 193 (D.D.C. 2010), aff’d, 456 F. App’x 1

(D.C. Cir. 2011). Because the Navy has met its burden, the Court enters summary judgment for

the government as to those issues.

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Whitlock challenges the Navy’s decision to withhold records pursuant to two FOIA

exemptions: 7(A) and 7(B). See ECF 23. Because the Navy has failed to justify those withholdings,

the Court will grant Whitlock’s cross-motion for summary judgment and order the Navy to

produce records that it withheld pursuant only to those exemptions.

A. Uncontested Issues

The Navy moves for summary judgment, arguing that its searches were adequate, and that

it properly withheld records pursuant to FOIA exemptions 5, 6, and 7(C). See ECF 23. Whitlock

does not dispute these claims. See ECF 23; ECF 26 at 1. The burden nonetheless remains on the

Navy to demonstrate that summary judgment is warranted, and the Court must “determine for itself

whether the record and any undisputed material facts justify granting summary judgment.”

Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (quoting Grimes v. District

of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)); but see Dutton v. DOJ,

302 F. Supp. 3d 109, 126 n.6 (D.D.C. 2018) (concluding, in FOIA case where plaintiffs objected

to only some of defendant’s withholdings, that “[s]ince plaintiffs have not presented facts that

would give rise to a genuine dispute of material fact concerning the invocation of Exemptions 1,

3, 5, 7(A), and 7(D), there is no dispute for the Court to adjudicate, and the requirements of Rule

56 have been satisfied.”). The Court assesses each of the Navy’s arguments in turn and concludes

that summary judgment is appropriate.

1. Search adequacy

Under the FOIA, agencies have “an obligation . . . to conduct an adequate search for

responsive records.” Edelman v. SEC, 172 F. Supp. 3d 133, 144 (D.D.C. 2016). A search is

adequate if it is “reasonably calculated to uncover all relevant documents.” Valencia-Lucena v.

U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). To prove its search was adequate, the

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agency may rely on “[a] reasonably detailed affidavit, setting forth the search terms and the type

of search performed, and averring that all files likely to contain responsive materials . . . were

searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Such 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., 926 F.2d

at 1200.

The Navy has submitted a declaration from Lieutenant Commander Ann Oakes, an attorney

for the U.S. Navy Office of the Judge Advocate General. ECF 20-3 (Oakes Declaration). The

Oakes Declaration explains that “[r]ecords of the GDMA investigation and any disposition of

alleged misconduct are maintained in four locations,” and that after receipt of each of Whitlock’s

requests, the Navy identified which of those four locations housed responsive records and retrieved

any records for review. Id. at 11–24 ¶¶ 16, 21, 31–32, 40–41, 52–53, 57, 66, 75, 84, 101, 110, 124,

135, 140. Whitlock does not dispute these facts. See generally ECF 23. The Court therefore finds

that the Oakes Declaration provides a “reasonably detailed” description of the agency’s searches,

Oglesby, 920 F.2d at 68, and that those searches were “reasonably calculated” to find the records

Whitlock sought, Valencia-Lucena, 180 F.3d at 325. The Navy is entitled to summary judgment

on the question of search adequacy.

2. Exemption 5

Exemption 5 of the FOIA protects “inter-agency or intra-agency memorandums or letters

that 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). This exemption “incorporates the traditional privileges that the Government

could assert in civil litigation against a private litigant,” including attorney-client, work product,

and deliberative process privileges. Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008). To

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establish that it properly withheld a record under Exemption 5, an agency must show that (1) at

least one of those privileges applies to the materials in question, and (2) “it is reasonably

foreseeable that release of those materials would cause harm to an interest protected by that

privilege.” Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 361 (D.C. Cir. 2021).

Here, the Navy relies on the deliberative process privilege. A document is protected by the

deliberative process privilege if it is both “predecisional and deliberative.” Amadis v. Dep’t of

State, 971 F.3d 364, 370 (D.C. Cir. 2020). A document is predecisional if it is “generated before

the adoption of an agency policy,” and deliberative if it “reflect[s] the give-and-take of the

consultative process” leading up to that decision. Id. Exemption 5 therefore “shelters documents

reflecting advisory opinions, recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated.” Nat’l Ass’n of Home Builders v.

Norton, 309 F.3d 26, 39 (D.C. Cir. 2002) (quoting Petroleum Info. Corp. v. U.S. Dep’t of Interior,

976 F.2d 1429, 1433 (D.C. Cir. 1992)).

The Navy argues that the following documents are subject to the deliberative process

privilege and are protected by Exemption 5:

• Emails containing discussions between Naval Criminal Investigative

Service (NCIS) counsel, the Navy Office of the General Counsel

(OGC), and the CDA regarding whether certain individuals should be

allowed access to sensitive information (collectively, “vetting

records”), responsive to FOIA DON-NAVY-2018-005865. ECF 20-3

at 33.

• CDA recommendations as to disposition of alleged misconduct, draft

dispositions, and references to said drafts, as well as the CDA’s

recommendation with respect to disposition of misconduct in the case

of Heedong Choi3 (collectively, “disposition records”), responsive to

FOIA DON-NAVY-2019-008474. Id. at 40.

3

Heedong Choi is a U.S. Navy Captain who accepted improper gifts from and conspired with Leonard Francis.

ECF 20-3 at 8 ¶ 6(j).

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• Deliberation notes of Board of Inquiry4 members (“BOI notes”),

responsive to FOIA DON-NAVY-2019-005803. Id. at 38.

ECF 20-1 at 14–15. These documents are predecisional because they were created antecedent to

the Navy’s decisions to grant or deny certain individuals access to GDMA investigation records

(vetting records) or to take disciplinary action against certain individuals (disposition records and

BOI notes). See ECF 20-3 at 25–26 ¶¶ 149–52. The documents are also deliberative because they

represent discussions between agency employees (vetting records), see ECF 20-3 at 33; CDA

recommendations that may or may not have been adopted (disposition records), see id. at 40; and

information recorded by members of the Board of Inquiry as they deliberated (BOI notes), id.

at 38.

The Oakes Declaration demonstrates that “it is reasonably foreseeable that release of those

materials would cause harm to an interest protected by that privilege.” Reps. Comm. for Freedom

of the Press, 3 F.4th at 361. Disclosing vetting records “would impair open, frank discussions

between NCIS, OGC and the CDA on whether an individual would be granted access to the

GDMA investigation.” ECF 20-3 at 25 ¶ 150. It is important that “the individuals making the

vetting decisions . . . know that their internal discussions would not be publicly disclosed,

especially because the individuals being vetted included Navy flag officers, senior officials and

members of their professional community.” Id. Similarly, disclosing disposition recommendations

“would impair open, frank discussions on matters of policy between subordinates and superiors.”

Id. at 25 ¶ 151. The disciplinary process relies on subordinates’ ability “to present a range of

options for the decision-making process, and if they are discouraged from doing so due to the

potential of unwanted publicity, frank discussion as to appropriate discipline will be limited.” Id.

4

Boards of inquiry “receive evidence and make findings and recommendations as to whether an officer . . . should be

retained on active duty.” 10 U.S.C. § 1182(a).

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And finally, disclosing the BOI notes “would discourage note-taking to memorialize evidence

presented or analyze information.” Id. at 26 ¶ 152. If BOI members feared their handwritten notes

would be published, “they would be inclined only to record notes that would be palatable to the

public, rather than notes that support their memory or thought process.” Id.

Because the Navy has demonstrated that these records are predecisional and deliberative,

and that their disclosure would harm the interest protected by the deliberative process privilege,

the Navy properly withheld these records under Exemption 5 and is entitled to summary judgment

on that issue.

3. Exemption 7(C)

The Navy withheld a number of documents either in whole or in part pursuant to

Exemption 7(C), or pursuant to both Exemptions 6 and 7(C). Both exemptions “seek to protect the

privacy of individuals identified in certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C.

Cir. 2011). Exemption 6 provides that an agency need not produce “personnel and medical files

and similar files the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects “records or information compiled for law

enforcement purposes,” to the extent that their disclosure “could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). As the Court explains

below, there is no dispute that the information here was “compiled for law enforcement purposes.”

Id. “Because Exemption 7(C)’s privacy language is broader than the comparable language in

Exemption 6, [the Court] confine[s] its analysis to Exemption 7(C)” where the Navy invokes both

exemptions. People for the Ethical Treatment of Animals v. Nat’l Institutes of Health, 745 F.3d

535, 541 (D.C. Cir. 2014) (PETA).

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The Navy withheld, pursuant to Exemption 7(C), “the identity and contact information of

(1) individuals below the rank of O6 or GS-15, who NCIS vetted for access to the GDMA

investigation or who served as board members or were involved with the administrative BOI

proceedings; and (2) subjects below the rank of O6 referred to a BOI, who the Navy retained in

naval service.”5 ECF 20-1 at 25; see ECF 20-3 at 30 ¶¶ 174–76. Whitlock does not dispute that, as

a factual matter, these records were “compiled for law enforcement purposes”: investigating

criminal offenses and preparing for “potential . . . civil or criminal sanction by the Navy.”

ECF 20-1 at 20–21; see ECF 20-3 at 27–28 ¶¶ 159–62; ECF 23-1 (not disputing this issue); see

also Kimberlin v. DOJ, 139 F.3d 944, 947 (D.C. Cir. 1998) (“[A]n agency’s investigation of its

own employees is for law enforcement purposes . . . if it focuses directly on specifically alleged

illegal acts . . . which could, if proved, result in civil or criminal sanctions.”). The only remaining

question is whether disclosure “could reasonably be expected to constitute an unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To resolve that question, the Court must

“balance the privacy interests that would be compromised by disclosure against the public interest

5

Specifically, the Navy withheld the following documents under this exemption, either in whole or in part:

• Names/ranks of individuals vetted for access to information, in response to FOIA DON-NAVY-2018-

005865. ECF 20-3 at 33.

• Names, ranks, community designators, genders, assignments/positions, email addresses, phone and fax

numbers, and/or signatures of the accused and third persons, in response to FOIA DON-NAVY-2019-

000104, FOIA DON-NAVY-2019-005803, FOIA DON-NAVY-2019-008474, and FOIA DON-NAVY-

2020-001121. Id. at 35, 38, 41, 43.

• Personnel records, fitness reports, and photographs, in response to FOIA DON-NAVY-2019-000104, FOIA

DON-NAVY-2019-005803, and FOIA DON-NAVY-2020-001121. Id. at 35, 38, 43.

• References to uncharged/unproven misconduct, in response to FOIA DON-NAVY-2019-005803. Id. at 38.

• Deliberative materials of the Board of Inquiry in response to FOIA DON-NAVY-2019-005803. Id. at 38.

• Summarized evidence package, containing interview transcripts and other investigative materials, in response

to FOIA DON-NAVY-2019-008474, id. at 40, as well as investigative material and transcripts of interviews

in response to FOIA DON-NAVY-2019-005803, id. at 38.

• Interview transcript of Adrian Jansen, debrief interview with Leonard Francis, and interview transcripts of

other subjects, in response to FOIA DON-NAVY-2020-001121. Id. at 43.

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in release of the requested information.” Roth v. DOJ, 642 F.3d 1161, 1174 (D.C. Cir. 2011)

(quoting Davis v. DOJ, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).

The Oakes Declaration establishes that the privacy interests here are compelling, while the

public interest in disclosing this information is relatively weak. First, “[d]isclosing the identifying

information of individuals vetted for access to sensitive information would necessarily subject

those individuals to inquiries or harassment by the media and the general public.” ECF 20-3 at 30

¶ 175; see Computer Pros. for Soc. Resp. v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996)

(holding that Exemption 7(C) protects “persons who are not the subjects of the investigation [but

who] may nonetheless have their privacy invaded by having their identities and information about

them revealed in connection with the investigation.”). The public, on the other hand, “has little

interest in knowing the identities of the[se] professionals,” because their identities “do not shed

light on the government processes at issue.” Id.; see Brown v. EPA, 384 F. Supp. 2d 271, 279

(D.D.C. 2005) (“[T]he D.C. Circuit has time and again rejected the suggestion that the disclosure

of names in government investigative files can somehow provide insight into the workings of the

government.”).

Second, disclosing the identities of individuals “below the rank of O6 referred to a BOI,

who the Navy retained in naval service,” ECF 20-1 at 25, would “constitute a clearly unwarranted

invasion of personal privacy in cases where the conduct was merely alleged and not formally

adjudicated,” ECF 20-3 at 26 ¶ 156.6 “Courts have repeatedly recognized the ‘substantial’ privacy

interest held by ‘the targets of law-enforcement investigations in ensuring that their relationship to

6

The portion of the Oakes Declaration that addresses Exemption 7(C) does not clearly articulate the private interest

in withholding these individuals’ identities. See ECF 20-3 at 30 ¶ 176 (describing private interest in withholding

identities of individuals “with only a professional or tangential link to the case”—which would seem to refer to third

party individuals, like those vetted for access to the GDMA investigation, rather than those accused of misconduct).

However, because Exemptions 6 and 7(C) overlap significantly, the Court looks instead to the section of the Oakes

Declaration that addresses Exemption 6—which does provide a satisfying description of the private interest at stake

for individuals accused of misconduct. See id. at 26 ¶ 156.

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the investigations remains secret.’” PETA, 745 F.3d at 541 (quoting Roth, 642 F.3d at 1174). The

plaintiff “bears the burden of showing (1) that ‘the public interest sought to be advanced is a

significant one, an interest more specific than having the information for its own sake,’ and (2)

that the information he seeks ‘is likely to advance that interest.’” Roth, 642 F.3d at 1174–75

(quoting Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004)). Whitlock has not

proffered any such public interest. See ECF 23-1; Smith v. Sessions, 247 F. Supp. 3d 19, 27

(D.D.C. 2017) (concluding that plaintiff who failed to oppose government’s motion for summary

judgment, “ha[d] not met his burden to articulate a public interest sufficient to outweigh any

individual’s privacy interest”). Furthermore, while the public does have an interest “in knowing

who the public servants are that were involved in the governmental wrongdoing, in order to hold

the governors accountable to the governed,” Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984), that

interest is weaker when it comes to low-ranking public officials, see Kimberlin, 139 F.3d at 949

(holding that court may consider “the rank of the public official involved” to determine whether

Exemption 7(C) withholding was appropriate). Because the Navy has withheld only the identities

of “subjects below the rank of O6,” ECF 20-1 at 25, and because Whitlock does not assert any

public interest in these individuals’ identities, see generally ECF 23-1, the Court finds that the

privacy interests here outweigh the public interest in disclosure. The Navy is entitled to summary

judgment as to its Exemption 7(C) withholdings.

4. Exemption 6

Exemption 6 of the FOIA provides that an agency need not produce “personnel and medical

files and similar files the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” 5 U.S.C. § 552(b)(6). In this jurisdiction, Exemption 6 applies not only to “files,” but to

any piece of personal information, such as a name or address, the release of which would “create[ ]

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a palpable threat to privacy.” Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C.

Cir. 1987). To determine whether an agency has appropriately withheld such information, the

Court “must balance the private interest involved (namely, the individual’s right of privacy)

against the public interest (namely, the basic purpose of the [FOIA], which is to open agency action

to the light of public scrutiny).” Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005).

The Navy withheld one set of documents pursuant to Exemption 6 only: “some references

to uncharged/unproven misconduct,” in response to FOIA DON-NAVY-2019-008474. ECF 20-3

at 40. For much the same reasons articulated above, the Court finds that the private interests

implicated here satisfy even Exemption 6’s more rigorous standard and outweigh the public

interest in disclosure. See Citizens for Resp. & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1091 n.2

(D.C. Cir. 2014) (CREW) (explaining that Exemption 7(C) “provides broader privacy protection

than Exemption 6 and thus establishes a lower bar for withholding material.”). As the Oakes

Declaration explains, “[t]he Navy determined that the disclosure of some allegations of misconduct

would constitute a clearly unwarranted invasion of personal privacy in cases where the conduct

was merely alleged and not formally adjudicated.” ECF 20-3 at 26 ¶ 156. Of particular concern,

“disclosure of the[se individuals’] identities, contact information, and unsubstantiated allegations

of misconduct may unfairly harm their public reputation and subject them to harassment and

retaliation.” ECF 20-3 at 40. While the Oakes Declaration and Vaughn index are not entirely clear

on this point, the Court shares Whitlock’s understanding that the Navy has withheld only records

for personnel below the rank of O6 pursuant to this exemption. ECF 23-1 at 1 n.1; see generally

ECF 26 (failing to rebut this statement). The balancing test here therefore overlaps with the

Exemption 7(C) analysis described above. See supra Part III.A.3. Individuals accused of

misconduct have some private interest in protecting their identities. See PETA, 745 F.3d at 541.

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Whitlock does not assert any public interest in disclosing these individuals’ identities, see

generally ECF 23-1, and any public interest would nonetheless be diminished because the Navy

has withheld only the identities of relatively low-ranked officials, see Kimberlin, 139 F.3d at 949.

The Court therefore concludes that the privacy interests here outweigh the public interest in

disclosure and will enter summary judgment for the Navy.

B. Contested Issues

1. Segregability

The FOIA requires agencies to produce “[a]ny reasonably segregable portion of a

record . . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). The Oakes

Declaration demonstrates that the Navy complied with that requirement for records withheld under

FOIA Exemptions 5, 6, and 7(C): “the Navy conducted a line-by-line segregability analysis with

respect to each request” and “released all information not covered by an exemption.” ECF 20-3

at 31 ¶¶ 177, 180. Whitlock claims that the Navy “performed no segregability analysis,” ECF 23-1

at 6, but the Oakes Declaration says otherwise as to Exemptions 5, 6, and 7(C)—and “[a]gencies

are entitled to a presumption that they complied with the obligation to disclose reasonably

segregable material,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).

Whitlock has given the Court no reason to believe that the Navy failed to produce segregable

material with respect to its Exemption 5, 6, and 7(C) withholdings.

The Navy did not conduct a segregability analysis with respect to records withheld in full

under Exemptions 7(A) and 7(B). ECF 20-3 at 31 ¶¶ 178–79. Instead, it represents that it withheld

those records on a categorical basis. See id. The Court takes up those withholdings below.

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2. Contested Withholdings

The parties cross-move for summary judgment on the propriety of the Navy’s

Exemption 7(A) and 7(B) withholdings. ECF 20-1 at 21–23; ECF 23-1 at 2–6. These exemptions

protect “records or information compiled for law enforcement purposes,” if their disclosure “could

reasonably be expected to interfere with enforcement proceedings” (Exemption 7(A)) or “would

deprive a person of a right to a fair trial or an impartial adjudication” (Exemption 7(B)). 5 U.S.C.

§ 552(b)(7)(A–B). As explained above, see supra Part III.A.3, there is no dispute that the records

at issue in this case were compiled for law enforcement purposes—namely, investigating criminal

offenses and preparing for “potential . . . civil or criminal sanction by the Navy.” ECF 20-1 at 20–

21; see ECF 20-3 at 27 ¶¶ 159–62.

The Navy withheld in full five categories of documents pursuant to Exemptions 7(A) and

7(B): complete evidence packages, summarized evidence packages, interview transcripts, fitness

reports, and investigative materials. ECF 20-1 at 22; see ECF 20-3 at 28 ¶ 164.7 The Navy also

withheld the following records in part, pursuant only to Exemption 7(A):

• Names and ranks of subjects of investigation, in response to FOIA

DON-NAVY-2018-005865. ECF 20-3 at 33.

• Court documents pertinent to an individual other than the subject of

the board of inquiry, in response to FOIA DON-NAVY-2019-000104.

Id. at 35.

• Dates, locations, and certain descriptions of alleged misconduct, in

response to FOIA DON-NAVY-2019-008474. Id. at 40.

7

As a result, the Navy withheld the following records:

• 4,625 pages responsive to FOIA DON-NAVY-2019-000525. ECF 20-2 ¶ 15.

• 2,657 pages responsive to FOIA DON-NAVY-2020-000481. Id. ¶ 30.

• An undisclosed number of pages responsive to FOIA DON-NAVY-2020-003840. Id. ¶¶ 38–39.

• 21 pages responsive to FOIA DON-NAVY-2020-003844. Id. ¶ 44.

• An undisclosed number of pages responsive to FOIA DON-NAVY-2020-004324. Id. ¶ 49.

• 917 pages responsive to FOIA DON-NAVY-2020-005240. Id. ¶ 54.

• 969 pages responsive to FOIA DON-NAVY-2020-005242. Id. ¶ 59.

• 3,480 pages responsive to FOIA DON-NAVY-2020-007209. Id. ¶ 64.

15

The Navy did not withhold any documents in part pursuant to Exemption 7(B).

a. Exemption 7(A)

“[T]o withhold documents pursuant to Exemption 7(A), an agency must show . . . that

their disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings

that are (3) pending or reasonably anticipated.” Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C.

Cir. 1993) (emphasis omitted). The Navy identified two categories of “pending or reasonably

anticipated” enforcement proceedings: the criminal proceedings in the Southern District of

California, and “the anticipated Navy internal proceedings for any additional individuals that

federal prosecutors refer to the Navy . . . including, possibly, the current criminal defendants.”

ECF 26 at 2–3; see ECF 20-3 at 8–10 ¶¶ 7, 12.

The Court takes judicial notice of the fact that the Southern District of California

prosecutions, USA v. Newland et al., were terminated on May 30, 2024, and none of the defendants

have appealed. See 3:17-CR-623 (S.D. Cal.); Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d

1220, 1222 (D.C. Cir. 2005) (explaining that court may take judicial notice of facts in the public

record, including the record of another judicial proceeding). Disclosure cannot reasonably be

expected to interfere with enforcement proceedings that have concluded. CREW, 746 F.3d at 1097

(holding that agency could not invoke Exemption 7(A) where criminal defendants had been

sentenced and their criminal cases closed while litigation was underway, because “[t]he proceeding

must remain pending at the time of [the court’s] decision, not only at the time of the initial FOIA

request”).8

8

It is unclear whether the Navy also relies on Leonard Francis’s criminal case to justify its Exemption 7(A)

withholdings. See ECF 20-3 at 8–9 ¶ 7 (referencing pending Francis sentencing). At the time of summary judgment

briefing, Francis was awaiting sentencing in the Southern District of California. See id. The Court takes judicial notice

that Francis has since been sentenced and his criminal cases have been terminated, and that Francis has filed an appeal.

See ECF Nos. 443 & 448, 3:13-CR-3781-1 (S.D. Cal); ECF Nos. 433 & 439, 3:13-CR-3782 (S.D. Cal.); ECF Nos.

16

That leaves “the anticipated Navy internal proceedings for any additional individuals that

federal prosecutors refer to the Navy.” ECF 26 at 3. The Oakes Declaration provides that, “[i]f the

Department of Justice refers additional individuals to Navy, the CDA will be the final disposition

authority for those cases,” and that “[t]he CDA will not conclude its work until such time as the

Department of Justice determines that it will not refer additional individuals to Navy for final

disposition and closes the GDMA criminal investigation.” ECF 20-3 at 10 ¶ 12. Given the amount

of time that has passed since the agency submitted its declaration and the new developments in the

relevant criminal prosecutions, it is not entirely clear to the Court whether the CDA’s enforcement

work continues. See CREW, 746 F.3d at 1098–99 (noting the court’s “considerable uncertainty

about whether a criminal investigation in fact continues to this day” given that more than 30

months had passed since agency submitted its declaration, and remanding to the district court to

“clarify whether a related investigation is in fact ongoing”). However, even assuming that further

CDA enforcement proceedings are “reasonably anticipated,” Defendants’ arguments would still

fail because they have not shown how disclosing these records “could reasonably be expected to

interfere with” CDA proceedings. The Court turns first to the documents the Navy withheld in full

pursuant to Exemption 7(A), and then to the records withheld in part.

Documents withheld in full. Generally, an agency that seeks to withhold a document under

one of the FOIA’s exemptions must “provide the requestor with a description of each document

403 & 408, 3:13-CR-4287-1 (S.D. Cal.). “For purposes of Exemption 7(A), a pending appeal of a criminal conviction

qualifies as an ongoing law enforcement proceeding.” Adionser v. DOJ, 811 F. Supp. 2d 284, 298 (D.D.C. 2011),

aff’d in part, No. 11-5093, 2012 WL 5897172 (D.C. Cir. Nov. 5, 2012); cf. CREW, 746 F.3d at 1097 (holding that

Exemption 7(A) holdings were unjustified where both sentencing hearings and appeals had concluded). But the Navy

makes no attempt to explain how disclosure of the requested documents could “reasonably be expected to interfere

with” Francis’s case. The Oakes Declaration says nothing about Francis in its discussion of Exemption 7(A). See ECF

20-3 at 28–29 ¶¶ 163–67. The declaration states that disclosure “would prejudice . . . [the] federal criminal trials as

well as any accountability actions to be taken by the CDA”—but Francis did not go to trial (he pled guilty in 2015)

and could not be subject to any CDA accountability action (he was not a Navy employee). Id. at 28 ¶ 167. Thus, even

if the Navy did intend to rely on the Francis sentencing and subsequent appeal to justify its Exemption 7(A)

withholdings, that argument could not succeed.

17

being withheld, and an explanation of the reason for the agency’s nondisclosure.” Oglesby v. U.S.

Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). However, an agency may “categorically”

withhold documents pursuant to Exemption 7(A) if it (1) “define[s] its categories functionally,”

(2) “conduct[s] a document-by-document review” to assign documents to the proper category, and

(3) “explain[s] to the court how the release of each category would interfere with enforcement

proceedings.” CREW, 746 F.3d at 1098. When it comes to the third prong, the Court “gives

deference to an agency’s predictive judgment of the harm that will result from disclosure of

information.” Id. However, “it is not sufficient for the agency to simply assert that disclosure will

interfere with enforcement proceedings; ‘it must rather demonstrate how disclosure’ will do so.”

Id. (quoting Sussman, 494 F.3d at 1114).

The Navy has failed to satisfy the third requirement for categorical withholdings because

it has not “explain[ed] to the court how the release of each category would interfere” with future

CDA enforcement action. Id. (emphasis added) (quoting Bevis v. Dep’t of State, 801 F.2d 1386,

1389–90 (D.C. Cir. 1986)). Again, the Navy withheld five categories of documents in full—

complete evidence packages, summarized evidence packages, interview transcripts, fitness

reports, and investigative materials. ECF 20-1 at 22; see ECF 20-3 at 28 ¶ 164. The Oakes

Declaration states generally that “[d]ocuments in these categories were comprised of information

concerning specific targets, witnesses, and details of alleged misconduct that, if public, would be

damaging . . . [to] future CDA actions”; that “disclosure would hinder the CDA’s ability to control

any further investigation into future referred subjects, enable potential targets to elude detection or

suppress or fabricate evidence, or prematurely reveal the strategy of the CDA’s case to those who

might not yet know their actions are under scrutiny”; and that “release would reveal key insights

of the investigators and prosecutors to those under prosecution, which would assuredly hinder the

18

government’s ability to hold those individual responsible.” ECF 20-3 at 28–29 ¶¶ 164, 167. But

these general statements do not comply with the D.C. Circuit’s requirement to “explain to the court

how the release of each category would interfere” with future CDA enforcement action. CREW,

746 F.3d at 1098 (emphasis added). Compare the Oakes Declaration to, for example, the

government’s declaration in Manning v. DOJ, 234 F. Supp. 3d 26 (D.D.C. 2017), where the court

upheld the government’s Exemption 7(A) withholdings. Id. at 37. In Manning, the FBI

categorically withheld certain documents because—like the Navy—it feared their release would

jeopardize enforcement proceedings. Id. at 36. But the Manning declaration walked through each

category of withheld documents and explained, in some detail, how disclosing that particular

category could interfere with enforcement proceedings. See ECF 12-1 at 20–25, Manning v. DOJ,

No. 15-CV-1654 (D.D.C. 2017). Disclosing “confidential source statements,” for example, could

subject sources to retaliation or intimidation and therefore chill the FBI’s investigation. Id.

Disclosing “exchange of information between FBI and other law enforcement,” on the other hand,

could “reveal the scope and focus of the investigation” and tip off persons of interest. Id. These

are distinct explanations, tailored to each category of withheld documents. The Oakes Declaration,

by contrast, does not explain how disclosing each category of documents (evidence packages, or

interview transcripts, or fitness reports) would interfere with future CDA enforcement

proceedings. It simply lumps all five categories under the same blanket statement—which would

seem to defeat the purpose of enumerating those five categories at all. The agency has therefore

failed to appropriately justify its Exemption 7(A) categorical withholdings. See CREW, 746 F.3d

at 1098.

Documents withheld in part. As noted above, the Navy withheld the following records in

part pursuant to Exemption 7(A) only:

19

• Names and ranks of subjects of investigation, in response to FOIA

DON-NAVY-2018-005865. ECF 20-3 at 33.

• Court documents pertinent to an individual other than the subject of

the board, in response to FOIA DON-NAVY-2019-000104. Id. at 35.

• Dates, locations, and certain descriptions of alleged misconduct, in

response to FOIA DON-NAVY-2019-008474. Id. at 40.9

The Navy fails to defend these partial withholdings in its briefing. See ECF 20-1 at 22–23

(discussing only Exemption 7(A) categorical withholdings); ECF 26 at 2–3 (same). The Oakes

Declaration adds little: it states that the Navy “applied Exemption 7A to partial withholdings of

dates, locations, and specific descriptions of alleged misconduct,” but does not explain how

disclosure of that material in particular would interfere with future CDA enforcement proceedings.

See ECF 20-3 at 28 ¶ 165. And the declaration says nothing at all about why the Navy withheld

names and ranks of subjects of investigation (in response to FOIA DON-NAVY-2018-005865)

and court documents pertinent to individuals other than the subject of the board of inquiry (in

response to FOIA DON-NAVY-2019-000104) under Exemption 7(A). See id. at ECF 20-3 at 28–

29 ¶¶ 163–67. Whitlock is therefore entitled to summary judgment as to records withheld in part

pursuant to only Exemption 7(A).

b. Exemption 7(B)

“Exemption 7(B) requires a showing ‘(1) that a trial or adjudication is pending or truly

imminent; and (2) that it is more probable than not that disclosure of the material sought would

seriously interfere with the fairness of those proceedings.’” Chiquita Brands Int’l, Inc. v. SEC, 805

F.3d 289, 294 (D.C. Cir. 2015) (quoting Wash. Post Co. v. DOJ, 863 F.2d 96, 102 (D.C.

Cir. 1988)). For the reasons discussed above, the only pending adjudications on which the Navy

9

The Court need not address records withheld in part pursuant to Exemption 7(A) as well as Exemptions 5, 6 and/or

7(C), given the Court’s finding that the Navy’s Exemption 5, 6, and 7(C) withholdings were proper. See Larson v.

Dep’t of State, 565 F.3d 857, 862–63 (D.C. Cir. 2009) (“[C]ourts may uphold agency action under one exemption

without considering the applicability of the other.”)

20

could rely are future CDA enforcement actions. See supra Part III.B.2.a. But even assuming that

those proceedings meet the first prong of Exemption 7(B)’s test, the Navy has not met the second

prong.

Exemption 7(B) sets an even higher bar for disclosure than 7(A). Exemption 7(A)

“permit[s] records to be withheld if release ‘could reasonably be expected to’ cause a particular

evil,” while “(7)(B) requires that release ‘would’ deprive a person of fair adjudication.” Wash.

Post Co., 863 F.2d at 102 (quoting 5 U.S.C. § 552(b)(7)(A)–(F)). The Oakes Declaration states

only that “[t]he release of the information [withheld pursuant to Exemption 7(B)] will compromise

the objectivity . . . of U.S. service members named to a Board of Inquiry or court martial.”

ECF 20-3 at 29–30 ¶ 171. But the mere fact that a pool of potential jurors (or here, Board of Inquiry

members) might be exposed to publicity about a case—“even per[v]asive, adverse publicity”—

does not satisfy Exemption 7(B)’s high standard. Chiquita Brands Int’l, Inc. v. SEC, 10 F. Supp.

3d 1, 5 (D.D.C. 2013), aff’d, 805 F.3d 289 (D.C. Cir. 2015) (quoting Skilling v. United States, 561

U.S. 358, 384 (2010)). And regardless, the Oakes Declaration makes no attempt to “explain to the

court how the release of each category” of withheld documents would interfere with CDA

enforcement proceedings. CREW, 746 F.3d at 1098 (emphasis added); see ECF 20-3 at 29–30

¶ 171. The Navy’s Exemption 7(B) categorical withholdings therefore suffer from the same flaw

as its Exemption 7(A) categorical withholdings. See supra Part III.B.2.a.

Because the Navy has failed to demonstrate that disclosing these documents would, more

probably than not, seriously interfere with the fairness of CDA enforcement proceedings, Whitlock

21

is entitled to summary judgment as to the Navy’s Exemption 7(B) withholdings.10 See Chiquita

Brands Int’l, Inc., 805 F.3d at 294.

* * *

For the foregoing reasons, Defendants’ motion for summary judgment, ECF 20, is

GRANTED as to the Navy’s Exemption 5, 6, and 7(C) withholdings, as well as the adequacy of

its searches, and is otherwise DENIED. Plaintiff’s cross-motion for summary judgment, ECF 23,

is GRANTED. Defendants are therefore ORDERED to produce the following records withheld

pursuant to Exemptions 7(A) and 7(B):

• Names and ranks of subjects of investigation, in response to FOIA

DON-NAVY-2018-005865. ECF 20-3 at 33.

• Court documents pertinent to an individual other than the subject of

the board, in response to FOIA DON-NAVY-2019-000104. Id. at 35.

• Dates, locations, and certain descriptions of alleged misconduct, in

response to FOIA DON-NAVY-2019-008474. Id. at 40.

• 4,625 pages withheld in full, in response to FOIA DON-NAVY-2019-

000525. ECF 20-2 ¶ 15.

• 2,657 pages withheld in full, in response to FOIA DON-NAVY-2020-

000481. Id. ¶ 30.

• An undisclosed number of pages withheld in full, in response to FOIA

DON-NAVY-2020-003840. Id. ¶¶ 38–39.

• 21 pages withheld in full, in response to FOIA DON-NAVY-2020-

003844. Id. ¶ 44.

• An undisclosed number of pages withheld in full, in response to FOIA

DON-NAVY-2020-004324. Id. ¶ 49.

• 917 pages withheld in full, in response to FOIA DON-NAVY-2020-

005240. Id. ¶ 54.

• 969 pages withheld in full, in response to FOIA DON-NAVY-2020-

005242. Id. ¶ 59.

• 3,480 pages withheld in full, in response to FOIA DON-NAVY-2020-

007209. Id. ¶ 64.

A separate order accompanies this memorandum opinion.

10

Because the Court concludes that the agency failed to substantiate its Exemption 7(A) and 7(B) withholdings, the

Court need not reach Whitlock’s additional argument that the FOIA’s foreseeable harm amendments apply to

Exemptions 7(A) and 7(B), and that the Navy failed to meet the standard established in those amendments. See

ECF 23-1 at 5–6.

22

SO ORDERED.

__________________________

JIA M. COBB

United States District Judge

Date: March 6, 2025

23