Navy Can’t Freeze Out Journalist, Judge Says

     WASHINGTON (CN) – A journalist deserves confirmation as to whether the U.S. Strategic Command is investigating a Navy captain for creating an abusive command climate, a federal judge ruled.
     Navy Times journalist William McMichael submitted his first request on March 27, 2011, under the Freedom of Information Act. He sought a copy of the “Inspector General investigation into a complaint of an allegedly abusive command climate” created by Capt. William Powers while he was serving as J4 Director from October 2008 to March 2010.
     In response to this, and two subsequent requests, Strategic Command refused to confirm or deny existence of the records.
     U.S. District Judge Rosemary Collyer said McMichael had successively used the Freedom of Information Act in the past to obtain such records about “alleged misconduct by high-ranking Navy personnel.”
     While awaiting a response, McMichael spoke with multiple employees who both confirmed the investigation and provided him with a hard copy of an official complaint against Powers and his allegedly abusive command style.
     These employees informed McMichael that the investigation generated 1,000 pages of testimony, cost $6,000 in transcription fees and took more than eight months. The Nave nonetheless took no action against Powers, who completed his tour as J4 d director and became the commanding officer at the U.S. Naval Supply Systems Command’s Fleet Logistics Center Puget Sound.
     Refusing to acknowledge the existence of an item requested under the Freedom of Information Act (FOIA) is known as a Glomar response, named after the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.
     Judge Collyer said she looked only at whether the Defense Department’s Glomar response to McMichael is legitimate.
     “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,” she wrote.
     To invoke Glomar, the government relied on an FOIA exemption that allows information to be withheld if it is “compiled for law enforcement purposes.”
     Neither party disputes that the alleged misconduct was a violation of the law, but the legal standard for withholding law-enforcement records require “that the privacy issue at stake outweighs the public’s interest in disclosure.”
     While Captain Powers “has a legitimate interest in keeping private the record of any investigation into allegations of a abusive command climate,” the fact that he is “a federal employee with leadership responsibilities diminishes his privacy interest,” according to the ruling.
     The public has a “strong interest” in knowing whether the government “is carrying out its official duties” and investigating allegations against an abusive commander, Collyer added.
     Claims of privacy are further weakened by the “equally apparent” fact that a number of employees knew “the identity of the person under investigation,” she wrote.
     Collyer remanded the case back to the Department of Defense to perform a Freedom of Information Act analysis of the records.

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