Military Must Release Bullet-Wound Records

     (CN) – The Department of Defense failed to show that a veteran’s FOIA request for records of soldiers who suffered fatal bullet wounds while wearing body armor would “shock” troops’ families, a federal judge ruled.
     Retired Marine Corps Capt. Roger Charles is investigating whether U.S. troops were provided inadequate body armor. Charles is editor of Soldiers for the Truth Foundation’s online journal Defense Watch.
     He submitted a FOIA request to the Pentagon’s Armed Forces Institute of Pathology in October 2008, seeking records on bullet wounds to armored troops killed in Iraq and Afghanistan between January 2006 and December 2007.
     The request was directed to then-Office of the Armed Forces Medical Examiner Capt. Craig T. Mallak.
     By January 30, 2009, the institute had not produced any documents nor estimated of when it might respond. He filed a complaint for injunctive relief in February 2009, alleging violations of the Freedom of Information and Administrative Procedure Acts.
     He claimed that troops were “being sent into harm’s way with substandard ballistic protection from small arms fire,” and that the Pentagon had recalled more than 16,000 sets of body armor.
     Charles claims the Pentagon identified 103 autopsy files and 18 body armor description sheets, but withheld then all, citing FOIA exemptions 2, 5, and 6.
     The defendants sought summary judgment in October 2009.
     Charles filed a cross-motion for summary judgment and an opposition, narrowing his FOIA request to records related to (a) body armor not intact upon receipt for inventory, (b) wounds in areas likely covered by ceramic insert plates, and (c) armor that did not prevent a fatal wound or was penetrated by a bullet.
     He also asked that all personal identifying information be redacted.
     Though the defendants claimed that none of the records responsive to Charles’s first request responded to his narrowed one, former Senior U.S. District Judge Ricardo Urbina denied the defendants’ motion and partially granted Charles’s cross-motion on Aug. 13, 2010.
     The parties then refiled their motions, both of which Urbina denied.
     After the parties moved a third time for summary judgment, U.S. District Judge Richard Roberts last week denied the defendants’ motion as to the preliminary autopsy reports and granted Charles’s motion as to the final ones.
     “[T]he 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,” Roberts wrote. “Instead, the defendants submitted an affidavit that contains the conclusory statement that the ‘preliminary autopsy reports, including any factual material contained in them, are pre-decisional and deliberative.’ Because ‘generalized claims of exemption are insufficient to justify withholding[,]’ the defendants’ motion for a judgment that there was no reasonably segregable information in the preliminary autopsy reports will be denied without prejudice.”
     FOIA Exemption 6 does not justify withholding the records, Roberts ruled.
     “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,'” Roberts wrote. “However, without demonstrating that 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. 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.’ 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.”
     Roberts ordered the Office of the Armed Forces Medical Examiner et al. to release 89 responsive records and file a memorandum showing they properly withheld them by April 29.

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