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O'Keefe v. United States Dep't of Defense

November 30, 2006


The opinion of the court was delivered by: Trager, J.


Pro se plaintiff Daniel J. O'Keefe ("O'Keefe") brings this action pursuant to the Freedom of Information Act ("FOIA") seeking disclosure of redacted portions of documents produced by the defendant, the United States Department of Defense (the "DOD"), released in response to his FOIA request. O'Keefe also requests an in camera review of a one-page memorandum withheld in its entirety. O'Keefe further alleges the existence of additional responsive records and seeks their disclosure. The DOD claims that the redacted portions of the released documents were exempt from disclosure under FOIA Exemptions 3, 5, 6 and 7(C) and that no additional responsive records exist. The DOD now moves for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), or in the alternative, for summary judgment under Rule 56.


In March 2004, O'Keefe requested under FOIA "all documents, records, notes and papers related to or used in the investigation and disposition" of a complaint he filed with the Department of Defense Inspector General in August 2002. Pl.'s Aff. in Opp'n. to Def.'s Mot. for Dismissal or, in the Alternative, for Summ. J. ("Pl.'s Opp'n") ¶ 16. In his complaint, O'Keefe alleges misconduct on the part of his commanding officers on several occasions in August, 2002. Id. ¶¶ 4-9, 12.

According to O'Keefe, the first of these incidents occurred on August 14, 2002 when Staff Sergeant Julianne Mazak ("SSG Mazak"), O'Keefe's immediate supervisor, requested that he sign two Developmental Counseling Forms*fn1 stating that he had failed to meet the Army Over Weight and Body Fat Standards. Pl.'s Opp'n, Ex. A. O'Keefe did not immediately sign the forms but, rather, stated his desire to review the forms and possibly consult with an attorney. Id. Later that same day, he was called into a meeting where another superior officer, Chief Warrant Officer II Victor Diaz ("CW2 Diaz"), attempted to compel O'Keefe to sign the forms and accused him of insubordination and refusing to follow a direct order.*fn2 Id. ¶ 5. O'Keefe requested a copy of the body fat calculation worksheet, any related documents, and a consultation with an attorney, but otherwise remained silent. Id. ¶ 5, Ex. B.

O'Keefe further alleges that CW2 Diaz directed O'Keefe into a "high pressure, intimidating meeting," instructed him that he had no right to talk to a lawyer and ordered him to sign the forms. Pl.'s Opp'n ¶ 5, Ex. B. Upon leaving this meeting, O'Keefe signed the forms after indicating in writing that he disagreed with the information therein and that he was signing under duress. Id. ¶ 7, Ex. B. Before submitting the signed forms, O'Keefe was led to a fourth meeting in which Chief Warrant Officer V Joe Okabayashi ("CW5 Okabayashi") made "statements similar to Chief Diaz's" and informed O'Keefe he had no right to an attorney. Id., Ex. B. At the conclusion of this meeting, O'Keefe left the signed documents in the custody of CW5 Okabayashi. Id. ¶ 7, Ex. B.

On August 16, 2002, SSG Mazak gave O'Keefe two written notices, one accusing him of insubordinate conduct and the other accusing him of failing to obey an order, for his conduct in the aforementioned meetings. Pl.'s Opp'n ¶¶ 8, 9. The second of these notices asserted that SSG Mazak had informed O'Keefe many times that his right to seek counsel for any reason would not be denied. Id. That same day, O'Keefe wrote a letter to Joseph Schmitz, Inspector General of the Department of Defense, in which he denied any disrespect and complained that the charges against him were retaliatory in nature. Id. ¶ 8, Ex. B.

O'Keefe further asserts that on September 13, 2002, SSG Mazak gave O'Keefe a negative performance evaluation and ordered him to sign his name to ten blank sheets of paper onto which the finalized evaluation would later be photocopied. Id. ¶ 12. After objecting, O'Keefe signed one sheet of paper and notified SSG Mazak that she did not have his consent to photocopy any information upon that sheet. Id.

On December 4, 2002, O'Keefe complained of these events in a telephone conversation with Col. Georgette T. Hassler, Deputy Inspector General ("Col. Hassler"). Id. ¶ 13. At her request, O'Keefe sent a letter to Col. Hassler describing the events of September 13, 2002. Id. Col. Hassler conducted an investigation and authored a report, which was completed on March 21, 2003. The report concluded that O'Keefe's allegations were unsubstantiated. Id. Ex. F.

On March 7, 2004, O'Keefe filed a FOIA request for all documents relating to his August 16, 2002 complaint. Pl.'s Opp'n ¶ 16, Ex. G. By letter dated April 16, 2004, the DOD OIG Freedom of Information Act & Privacy Act Office ("OIG FOIA/PA Office") acknowledged receipt of O'Keefe's FOIA request. Decl. of John R. Crane ("Crane Decl.") ¶ 8. That same day, the OIG FOIA/PA Office requested that the Deputy Inspector General for Inspections and Policy, the Director for Internal Operations Directorate, the Director of Hotline and the Director for Investigations of Senior Officials search for and copy any documents related to the investigation of O'Keefe's complaint. Crane Decl. ¶ 10, Ex. C.

The Defense Hotline*fn3, the only component*fn4 to locate any responsive records, provided the OIG FOIA/PA Office with eight pages of documents it had generated in response to O'Keefe's complaint (the "Hotline Report") and an additional eight pages of documents generated by the United States Central Command (the "USCENTCOM Report"). Crane Decl. ¶ 10. The OIG FOIA/PA Office Initial Denial Authority, Darryl R. Aaron ("IDA Aaron"), released the Hotline Report to O'Keefe in a letter dated May 27, 2004. Crane Decl. ¶ 11, Ex. D. Six of the eight pages contained redacted portions, for which IDA Aaron cited FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), which excludes information in law enforcement records that could constitute an unwarranted invasion of privacy if released. Id. IDA Aaron also notified O'Keefe that the OIG FOIA/PA Office had referred the USCENTCOM Report to the Office of Freedom of Information and Security Review in accordance with DOD FOIA policy, which requires the document originator to make release determinations. Crane Decl. ¶ 12, Ex. D.

By memorandum dated June 17, 2004, the Office of Freedom of Information and Security Review referred the USCENTCOM Report to the originating component, USCENTCOM, for a determination regarding release. Decl. of Jacqueline J. Scott ("Scott Decl.") ¶ 2, Ex. A; Crane Decl. ¶ 13, Ex. F. On June 22, 2004, USCENTCOM received the referral and acknowledged receipt of the request by letter to O'Keefe on the same day. Scott Decl. ¶ 2, Ex. B; Crane Decl. ¶ 14, Ex. G.

O'Keefe appealed the OIG FOIA/PA response by letter dated July 10, 2004. Crane Decl. ¶ 15, Ex. H; Pl.'s Opp'n ¶ 19, Ex. J. On September 16, 2004, John R. Crane ("Crane"), OIG FOIA/PA Office Appellate Authority, acknowledged receipt of the appeal by letter to O'Keefe. Crane Decl. ¶ 16, Ex. I. Crane requested that the Defense Hotline conduct another search of their records, but no additional responsive documents were found. Crane Decl. ¶ 17. On March 10, 2005, Crane notified O'Keefe of his determination that the initial OIG IDA response was appropriate. Crane Decl. ¶ 18, Ex. K; Pl.'s Opp'n ¶ 20, Ex. K. On June 20, 2005, O'Keefe filed this action under FOIA in the Eastern District of New York.

In the course of preparing for this action, the DOD discovered that USCENTCOM had failed to respond to O'Keefe's request regarding the USCENTCOM Report. Scott Decl. ¶ 7. Until providing a supporting declaration for this action, USCENTCOM mistakenly believed that the eight-page Hotline Report, which was already released to O'Keefe, was the same document the eight-page USCENTCOM Report. Scott Decl. ¶ 7.

On March 3, 2006, upon realizing this mistake, USCENTCOM released the USCENTCOM Report to O'Keefe. Scott Decl. ¶ 8. Within this report, seven of the eight pages contained redacted portions, and the eighth page was withheld in its entirety. Scott Decl. ¶ 8. The seven partially redacted pages consisted of a Defense Hotline Completion Report prepared by the USCENTCOM Inspector General ("CCIG") investigating O'Keefe's complaint. Scott Decl. ¶ 9. USCENTCOM based these redactions on 5 U.S.C. §§ 552(b)(3) ("Exemption 3"), which excludes information exempted by other statutes, and 5 U.S.C. §§ 552(b)(6) ("Exemption 6"), which exempts personnel, medical and similar files. Scott Decl. ¶ 8. The additional page, which was entirely withheld, was a memorandum prepared by a US Central Command Deputy Staff Judge Advocate ("CCJA") for the CCIG providing comments and legal advice regarding the Defense Hotline Completion Report. Scott Decl. ¶ 10. USCENTCOM based the exclusion of this document on 5 U.S.C. § 552(b)(5) ("Exemption 5"), which exempts attorney work product and material subject to attorney-client privilege. Scott Decl. ¶ 8.


(1) Freedom of Information Act

"FOIA was enacted to promote honest and open government and to assure the existence of an informed citizenry 'to hold the governors accountable to the governed.'" Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v EPA, 25 F.3d 1241, 1245 (4th Cir. 1994)). To advance the philosophy of "full agency disclosure," the Act is to be construed broadly, and its exemptions are to be read narrowly. Id.

FOIA enumerates nine categories of agency records that are exempt from release. 5 U.S.C. § 552(b). These exemptions are intended to balance the right of the public to know the activities of its government with the government's interest "in keeping certain information private, whether to protect particular individuals or the national interest as a whole." ACLU v. U.S. Dep't of Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989). These exemptions are construed narrowly because "disclosure, not secrecy, is the dominant objective of [FOIA]." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). When an agency's decision to withhold ...

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