UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
WILLIAM MCMICHAEL, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2119 (RMC)
)
UNITED STATES DEPARTMENT OF )
DEFENSE, )
)
Defendant. )
)
MEMORANDUM OPINION
William McMichael, a journalist, complains that the United States Department of
Defense improperly responded to his requests for information from the United States Strategic
Command. The initial request asked for records from a specific Inspector General investigation
into misconduct allegations concerning a specific Navy captain. To each of three requests,
USSTRATCOM neither confirmed nor denied that any records existed. The Court finds that
DOD’s response was improper and remands for reconsideration.
I. FACTS
The following facts are not in dispute. On March 27, 2011, Mr. McMichael, on
behalf of Navy Times,1 submitted a request under the Freedom of Information Act, 5 U.S.C. §
1
At the time of the requests, Mr. McMichael was a journalist with Navy Times. Pl. Mem. [Dkt.
13], McMichael Decl. [Dkt. 13-2] ¶ 1. “Navy Times is an independent journalistic organization
that reports on matters of public concern involving the U.S. military.” Pl. Mem., Pl. Resp. Def.
Statement Material Facts [Dkt. 13-1] ¶ 10. Mr. McMichael is now a journalist with News
Journal in Wilmington, Delaware. McMichael Decl. at 1.
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552, to United States Strategic Command (“USSTRATCOM”)2 for access to and a copy of the
“Inspector General investigation into a complaint of an allegedly abusive command climate
within the command’s J4 created by Captain William Powers [sic] from October 2008 to March
2010.” Exs. to McMichael Decl., Ex. F. Captain Power served as USSTRATCOM’s Director of
Logistics (J4) during this time.3 See Exs. to McMichael Decl, Ex. C (formal complaint). In a
letter issued on April 4, 2011, by Vice Admiral Cecil D. Haney, USSTRATCOM denied Mr.
McMichael’s request pursuant to 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”) neither
confirming nor denying the existence of “such records.”4 See id., Ex. G.
Mr. McMichael filed an administrative appeal on April 11, 2011, to the Defense
Freedom of Information Policy Office. See Def. Mot. [Dkt. 10], Statement of Material Facts
[Dkt. 10-1] (“DOD Facts”) ¶ 3. By letter dated May 13, 2011, the FOIA Appellate Authority for
the Office of the Secretary of Defense, William E. Brazis, Deputy Director of Administration
and Management, affirmed the denial of his request. See id. ¶ 4; Exs. to McMichael Decl., Ex.
H.
2
“USSTRATCOM integrates and coordinates the necessary command and control capability to
provide support with the most accurate and timely information for the President, the Secretary of
Defense, other National Leadership and regional combatant commanders.” Pl. Mem., Exs. to
McMichael Decl. [Dkt. 13-3], Ex. Q.
3
Although the parties disagree about the significance of Captain Power’s position as J4 Director,
it is not disputed that he held a position of responsibility. The J4 Director is “charged with
planning, coordinating and executing logistics functions of supply, mobility, maintenance,
engineering, sustainment and munitions management in support of command missions.” See Exs.
to McMichael Decl., Ex. R. The position also requires direction and oversight of approximately
49 people. See Def. Reply [Dkt. 18] at 3.
4
A response that neither confirms nor denies the existence of requested records is called a
“Glomar” response, named for a secret government ocean vessel, the Hughes Glomar Explorer.
See Phillippi v. CIA, 546 F.2d 1009, 1010–11 (D.C. Cir. 1976) (a case brought under FOIA in
which the plaintiff requested documents concerning the Hughes Glomar Explorer from the CIA).
2
Mr. McMichael submitted two additional FOIA requests on April 11, 2011, again
on behalf of Navy Times. The first requested “access to and a copy of the U.S. Strategic
Command Inspector General investigation into a complaint of an abusive command climate in
the command’s J4 from October 2008 to March 2010.” Exs. to McMichael Decl., Ex. I. The
second FOIA request asked for:
access to and a copy of the record of payment or payments made to
an unknown private firm for the transcription of interviews made
during a U.S. Strategic Command Inspector General investigation
into a complaint of an abusive command climate in the command’s
J4 from October 2008 to March 2010. Such expenditures are not
classified and are a matter of public record. Please include all
relevant information including the amount or amounts of such
payments; the dates the payments were made; the specific reason
for each payment, such as the number of hours of transcription
each payment covered; and for what specific purpose the [sic] were
made.
Id., Ex. J. Vice Admiral Haney denied these requests with Glomar responses, by separate letters
issued on May 23, 2011. Id., Exs. K & L. Mr. McMichael appealed on May 24, 2011, and
Deputy Director Brazis affirmed Vice Admiral Haney’s determination by individual letters dated
July 12, 2011. Id., Exs. M & N; DOD Facts ¶¶ 7-8. Mr. McMichael filed suit on November 29,
2011. See Compl. [Dkt. 1].
While admitting these facts, Mr. McMichael adds the following additional
background information, which is uncontested. A number of USSTRATCOM employees knew
that the IG conducted an investigation into allegations of an abusive environment in the J4
command under Captain Power. See McMichael Decl. ¶¶ 2-9; Exs. to McMichael Decl., Exs. A-
E. A USSTRATCOM employee reported that the investigation generated over 1,000 pages of
testimony and more than $6,000 in transcription fees. See Exs. to McMichael Decl., Exs. A & B.
That same employee provided Navy Times with a copy of a formal complaint sent to
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USSTRATCOM. See id., Ex. C. A different USSTRATCOM employee informed Mr.
McMichael that the investigation included an estimated 30 witnesses and lasted more than eight
months but closed with no action taken. See McMichael Decl. ¶ 5. Still two additional
employees of USSTRATCOM confirmed that a formal investigation occurred and that the nature
and existence of the investigation were well known within the command. See id. ¶¶ 8-9. After
completing his tour as J4 Director at USSTRATCOM, Captain Power became the Commanding
Officer at the United States Naval Supply Systems Command’s Fleet Logistics Center Puget
Sound. See Exs. to McMichael Decl., Ex. S. As a reporter, Mr. McMichael previously has used
FOIA to receive redacted reports into alleged misconduct by high-ranking Navy personnel. See,
e.g., id., Ex. O.
II. LEGAL STANDARDS
A. Motion to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient to “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citation omitted). Although a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is “plausible on its face.” Id. at 570.
A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.” Id. at 555. But a court need not accept as true legal conclusions set forth in a complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion under Rule 12(b)(6), a court
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may consider the facts alleged in the complaint, documents attached to the complaint as exhibits
or incorporated by reference, and matters about which the court may take judicial notice. Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
B. Motion for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted 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); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
against a party who “after adequate time for discovery and upon motion . . . 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.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “[t]he mere
existence of a scintilla of evidence” in support of its position. Id. at 252.
FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.
Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, the Court may award summary judgment
solely on the basis of information provided by the department or agency in affidavits or
declarations when the affidavits or declarations 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,
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656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir.
1973). An agency must demonstrate that “each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s
inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation
mark and citation omitted).
III. ANALYSIS
FOIA requires public disclosure of government records, subject to nine listed
exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).
USSTRATCOM answered each of Mr. McMichael’s three FOIA requests with a Glomar
response, neither admitting nor denying the existence of responsive records regarding an IG
investigation into Captain Power, an IG investigation of the same allegations against an
unspecified person, and records of payment for transcription of related investigative interviews.
A Glomar response is appropriate when “to answer the FOIA inquiry would cause harm
cognizable under a[ ] FOIA exception—in other words, in cases in which the existence or
nonexistence of a record is a fact exempt from disclosure under a FOIA exception.” Int’l
Counsel Bureau v. CIA, 774 F. Supp. 2d 262, 266 (D.D.C. 2011) (alteration in original) (internal
quotation mark and citation omitted); see also Wolf, 473 F.3d at 374. In invoking its Glomar
response, USSTRATCOM relied on FOIA Exemption 7(C), which allows an agency to withhold
from disclosure information “compiled for law enforcement purposes” that “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
Accordingly, the question presented is whether Exemption 7(C), which allows
nondisclosure of certain records, also allows a Glomar response to Mr. McMichael’s FOIA
requests. In other words, is the very existence or nonexistence of the IG investigation a fact that
is exempt from disclosure or, under these specific circumstances, must USSTRATCOM perform
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the normal record-by-record review, redaction, decision-to-withhold (if any), and support its
decisions in court? Compare Phillippi, 546 F.2d at 1013 (“When the Agency's position is that it
can neither confirm nor deny the existence of the requested records, there are no relevant
documents for the court to examine other than the affidavits which explain the Agency's
refusal.”), with Vaughn, 484 F.2d at 827 (requiring “a system of itemizing and indexing” the
relevant documents by the government for the opposing counsel and the court to review when it
relies on an exemption to withhold disclosure). The question of disclosure of the existence or
nonexistence of the IG investigation is a distinct question from disclosure of the content of the
records. See People for the Ethical Treatment of Animals v. Nat'l Insts. of Health Dep’t of
Health & Human Servs., 853 F. Supp. 2d 146, 155 (D.D.C. 2012) (“So, the question the Court
must resolve at this point is not whether the documents need to be produced but whether merely
acknowledging their existence invades an interest that the FOIA exemptions were designed to
protect.”), aff'd in part, No. 12-5183, 2012 WL 5896791 (D.C. Cir. Nov. 2, 2012). The Court
only decides the validity of DOD’s Glomar response and makes no decision on the applicability
of any FOIA exemption to disclosure of any specific record, in whole or in part.
When considering “whether the existence of agency records vel non fits a FOIA
exemption, courts apply the general exemption review standards established in non-Glomar
cases.” Wolf, 473 F.3d at 374; see also Int’l Counsel Bureau, 774 F. Supp. 2d. at 267. The
threshold inquiry in determining the applicability of Exemption 7(C) is whether the documents
sought were “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). A record is
compiled for law enforcement purposes when it “focus[es] directly on specifically alleged illegal
acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or
criminal sanctions.” Rural Hous. Alliance v. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974).
7
When a military investigation may result in a finding of a violation of law or regulation, records
compiled pursuant to such investigation are for law enforcement purposes. See Lurie v. Dep’t of
the Army, 970 F. Supp. 19, 36 (D.D.C. 1997) (finding that records concerning an informal Army
investigation into alleged misconduct by command personnel were compiled for law
enforcement purposes). Mr. McMichael does not dispute that the records he seeks, if they exist,
were compiled for law enforcement purposes because the IG investigation concerned
“allegations of misconduct, which, if proven to be true, would have constituted violations of [law
and regulations].” Def. Mot., Def. Mem. [Dkt. 10-2] at 8.
Once it is established that records were compiled for law enforcement purposes,
the legal standard for withholding them, in whole or in part, under 7(C) is that “the privacy
interest at stake outweighs the public’s interest in disclosure.” Nation Magazine, Wash. Bureau
v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995) (citing Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989)). “[I]ndividuals have an obvious
privacy interest cognizable under Exemption 7(C) in keeping secret the fact that they were
subjects of a law enforcement investigation.” Id. at 894. At the same time, law enforcement
records pertaining to a specific individual may “be cloaked with the public interest if the
information would shed light on agency action.” Quiñon v. FBI, 86 F.3d 1222, 1231 (D.C. Cir.
1996) (citation omitted).
Captain Power has a legitimate interest in keeping private the record of any
investigation into allegations of an abusive command climate. See Stern v. FBI, 737 F.2d 84, 92
(D.C. Cir. 1984) (“[I]ndividuals have a strong interest in not being associated unwarrantedly with
alleged criminal activity.”). But Captain Power’s status as a federal employee with leadership
responsibilities diminishes his privacy interest. See id. at 92-94 (distinguishing between low-
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level and high-level employees when applying the Exemption 7(C) balancing test); see also
Providence Journal Co. v. Dep’t of Army, 981 F.2d 552, 568 (1st Cir. 1992) (“[A] federal
government employee investigated for criminal misfeasance relating to the performance of
official duties generally possesses a diminished privacy interest.”). Additionally, Mr.
McMichael presented evidence that some number of USSTRATCOM employees were aware of
the investigation and its subject. See McMichael Decl. ¶¶ 2-9; Exs. to McMichael Decl., Exs. A-
E. Captain Power himself informed some of those under his command about the investigation
and its outcome.5 See McMichael Decl. ¶ 7; id., Exs. to McMichael Decl., Ex. E. Although this
fact does not eliminate his privacy interest, it diminishes it to a limited extent. See Kimblerin v.
Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (concluding that a statement to the press by
the subject of the investigation “undoubtedly does diminish his interest in privacy” although it
did not eliminate his privacy interest “in avoiding disclosure of the details of the investigation”).
The public interest must also be considered. To secure disclosure of requested
information when the government relies on Exemption 7(C), a plaintiff must show that (1) the
public interest is significant—“an interest more specific than having the information for its own
sake”—and (2) “the information is likely to advance that interest.” Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 172 (2004). The Court agrees with Mr. McMichael’s assertion
that the public has a strong interest in knowing whether the IG investigated allegations of an
abusive command climate by the J4 Director. See Pl. Mem. at 9-11. Disclosure of whether the
5
DOD misses the mark with its argument that the information Mr. McMichael seeks has not
been “officially acknowledged” by DOD. See Def. Reply at 9-12. Mr. McMichael does not
claim that DOD “officially acknowledged” the information requested but instead states that
individuals within the J4 Command were aware of and participated in the investigation. See Pl.
Mem. at 9. DOD fails to rebut these facts. Although not determinative, the fact that individuals
in the command knew about the investigation is a consideration for the 7(C) Exemption
balancing test.
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investigation took place will provide insight into what the government is up to, specifically if the
IG’s office is carrying out its official duties. See Reporters Comm. for Freedom of the Press,
489 U.S. at 773 (explaining that the public has an interest in information that “sheds light on an
agency's performance of its statutory duties.”); Lewis v. Dep’t of Justice, 867 F. Supp. 2d 1, 19
(D.D.C. 2011) (“The only public interest relevant for purposes of Exemption 7(C) is one that
focuses on the citizens’ right to be informed about what their government is up to.” (quoting
Davis v. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (alteration in original omitted)
(internal quotation marks omitted)). Further, the public interest in information regarding an
investigation is strengthened when the subject of the investigation is a federal employee in a
leadership position. See Stern, 737 F.2d at 92 (“[W]e agree that the level of responsibility held
by a federal employee, as well as the activity for which such an employee has been censured, are
appropriate considerations for determining the extent of the public's interest in knowing the
identity of that censured employee.”). In the context of a non-responsive Glomar answer, the
Court concludes that Mr. McMichael’s asserted public interest is significant and that the
information he seeks is likely to advance this interest.6
Finally, the Court balances the privacy interest with the public interest.
Balancing Captain Power’s diminished expectation of privacy against the public’s interest in
knowing whether the IG investigated allegations of misconduct, it must be concluded that the
public interest prevails. Particularly where the fact of the IG investigation was known to a
6
The Court rejects DOD’s contention that Mr. McMichael must produce evidence of
government wrongdoing to secure acknowledgment of the existence or nonexistence of the IG
investigation. See Def. Mem. at 12-14. Mr. McMichael has not alleged that USSTRATCOM
acted “negligently or otherwise improperly,” Favish, 541 U.S. at 174, but instead contends that
the public has an “independent interest” in knowing about the investigation itself. See Pl. Mem.
at 9 n.3. Under these circumstances and when the Court only considers the propriety of the
Glomar response, Favish’s heightened evidentiary requirement is inapplicable.
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number of people and the identity of the person under investigation was equally apparent, a
Glomar response cannot satisfy. The Court concludes, on these facts and this Complaint, that a
Glomar response was inappropriate even if the records in question, if they exist, may otherwise
be exempt from disclosure under FOIA Exemptions 7(C) and 6.7
IV. CONCLUSION
DOD’s motion to dismiss, or in the alternative for summary judgment [Dkt. 10]
will be denied without prejudice. The case will be remanded to DOD to perform a FOIA
analysis of the requested documents. In light of the remand, Mr. McMichael’s cross-motion for
summary judgment [Dkt. 13] will also be denied.
Date: December 18, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
7
DOD argues that the requested report is also exempt under 5 U.S.C. § 552(b)(6) (“Exemption
6”) for the first time in this Court. See Def. Mem. at 14. Exemption 6 also requires a balancing
of the private and public interests. See Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007).
Exemption 6, however, requires courts to tilt the balance of interests toward disclosure. Id.
Because the Court concludes that DOD’s Glomar response cannot suffice under Exemption 7(C),
which does not require a balance toward disclosure, the Court need not also consider separately
whether DOD can rely on Exemption 6 to neither confirm nor deny the existence of the
requested documents. See Roth v. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011)
(explaining that Exemption 7(C) is broader than Exemption 6).
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