Voice of San Diego v. Naval Crim. Investigative Serv., No. 22-834, 2023 WL 8704727 (S.D. Cal. Dec. 15, 2023) (Robinson, J.)

Voice of San Diego v. Naval Crim. Investigative Serv., No. 22-834, 2023 WL 8704727 (S.D. Cal. Dec. 15, 2023) (Robinson, J.)

Re:  Request for records concerning investigation by Naval Criminal Investigative Service (“NCIS”) into deaths of twenty individuals who allegedly died by suicide in 2020 and 2021 while serving in the Navy and Marine Corps in the San Diego area

Disposition:  Granting in part and denying in part without prejudice defendants’ motion for summary judgment; denying without prejudice plaintiffs’ cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court relates that “Plaintiffs do not dispute that Defendants conducted an adequate search for responsive documents.”  Moreover, the court finds that “[defendant’s] declaration details Defendant NCIS’s search for responsive records and establishes it as sufficiently thorough.”  “The Court therefore grants Defendants’ Motion for Summary Judgment as to the adequacy of their search.”

• Exemption 6; Exemption 7(C); Litigation Considerations, Vaughn Index/Declaration:  The court relates that “Defendants have applied the same two exemptions to each of the 118 entries in the Vaughn Index that were either partially redacted or withheld in full:  Exemptions 6 and 7(C).”  “Here, Plaintiffs concede that all the records at issue were compiled for law enforcement purposes.”  “Accordingly, the lower threshold for Exemption 7(C) governs.”
  
  Regarding the privacy interests at stake, the court relates that “[defendant] explains in her declarations that NCIS applied Exemptions 6 and 7(C) to protect the privacy interests of three types of people:  (1) the deceased servicemembers, (2) their surviving next of kin and family members, and (3) third parties.”  The court analyzes defendant’s Vaughn Index and finds that “Defendants’ Vaughn Index falls short . . . for two reasons.”  “First, the document descriptions in the Index largely fail to ‘describe [each withheld document’s] contents to the extent possible.’”  “For example, for [one] entry . . . the document description simply states that the redacted information includes ‘3rd party names, phone number, sensitive information concerning deceased individual.’”  “This description is patently insufficient:  There are no details regarding the type of third party involved (servicemember, private citizen, hospital employee, etc.).”  “As Defendants acknowledged at the hearing, there are varying degrees of applicable privacy interests with respect to third parties.”  “The document description for [another] entry . . . is deficient for an additional reason:  There are no details from which the Court could conclude, or Plaintiffs could challenge, that the information concerning the deceased is ‘sensitive’ (intra-family conflict, sexual history, etc.).”  “Although Defendants represented at the hearing that they could not disclose more information ‘without sacrificing the privacy interest in the process,’ . . . [defendant’s] supplemental declaration undercuts their argument.”  “In that declaration, she divulged additional details regarding several of the records appearing in the Vaughn Index without sacrificing the privacy interests of the individuals concerned.”  “The second reason the Vaughn Index and . . . Declarations overall fail to meet the Ninth Circuit’s standards . . . is that they fail to offer ‘a particularized explanation of why each document falls within the claimed exemption.’”  “Here, NCIS applies Exemptions 6 and 7(C) to 97 records for which three different types of privacy interests are asserted, either alone or in combination.”  “NCIS, however, offers nearly identical explanations for each withholding.”  “The explanation varies only to the extent that additional privacy interests are asserted.”  “For example, for [one instance], NCIS asserts that releasing the information would be an ‘unwarranted invasion of a third[-]party individual’s privacy, the deceased individuals’ privacy, and the family’s privacy and would expose the information to the public where it could be adversely exploited.’”  The court finds that “government agencies have an ‘independent and meaningful burden’ to ‘“identify specific harms to the relevant protected interests that it can reasonably foresee would actually ensue from disclosure of the withheld materials” and “connect[ ] the harms in [a] meaningful way to the information withheld.”’”  “Defendants’ explanations for the redactions and withholdings in the Vaughn Index are boilerplate and conclusory.”  “For each entry, NCIS identifies the generalized harm that exposure of the information to the public could lead to the information being ‘adversely exploited’ but fails to explain why the individuals whose interests are implicated have nontrivial privacy interests in the information at issue and how those privacy interests foreseeably could be ‘adversely exploited’ if the information being withheld were disclosed.”  “Nor do the few general paragraphs regarding the privacy interests at stake that are provided in [its] Supplemental Declaration save Defendants.”  “Although [defendant] offers some additional details regarding records discussed in [the] Declaration, the explanations fail to address the reasonably foreseeable harm to the asserted privacy interests were the specific information withheld to be disclosed.”  “As they currently stand, Defendants’ materials are insufficient to support withholding under Exemptions 6 and 7(C).”  “Accordingly, Defendants are ordered to provide a further supplemental Vaughn Index and supporting declarations that are specific, nonconclusory, and address the concerns the Court has set forth regarding the FOIA exemptions asserted for withholding information.” 
  
  The court finds that “it is worth noting that Plaintiffs’ proffered public interest appears inadequate, at a minimum, with respect to certain entries pertaining to third parties.”  “In their briefing, Plaintiffs offer several formulations of the public interest at stake, the thrust of which appears to be that the public has an interest in ‘understanding how the military does or does not address the mental health issues of at-risk servicemembers.’”  “Defendants’ terse descriptions for many of the records at issue suggest that substantial privacy interests are at stake.”  “While the Court cannot perform the balancing of privacy and public interests at this time, the Court harbors doubts that Plaintiffs have met their burden of demonstrating that the public’s interest would be advanced by the disclosure of certain information.”  “While the Court agrees that the public has an interest in ‘understanding how the military investigates deaths by suicides,’ . . . Plaintiffs do not even attempt to explain how disclosure of intimate details, such as a third party’s sexual history with the decedent, would advance ‘the only relevant public interest in the FOIA balancing analysis’ – ‘the extent to which disclosure of the information sought would shed light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to.”’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements & In Camera Inspection:  The court relates that “Plaintiffs argue that Defendants continue to offer only conclusory statements and sweeping generalizations to justify their withholdings rather than the required particularized explanation as to why non-exempt information could not be segregated.”  “The Court agrees.”  “As Defendants note, there is evidence that they have acted in good faith in their dealings with this Court and Plaintiffs:  they re-reviewed disputed records and released additional pages to Plaintiffs as a result of those secondary reviews.”  “The descriptions of the withheld documents remain insufficiently detailed, however, and the explanations for the withholdings fail to provide particularized explanations establishing that all reasonably segregable portions of each challenged document have been segregated and disclosed.”  “Due to the inadequacy of the Vaughn Index and supporting declarations overall, the Court lacks sufficient information to grant summary judgment on the issue of segregability as to these records.”  “For that same reason, the Court denies Plaintiffs’ request for an in camera review at this time.”  “Should Defendants fail to provide an adequate Vaughn Index and supporting declarations in response to the Court’s Order, the Court will entertain a renewed request for in camera review.”
   
• Mootness and Other Grounds for Consideration:  The court relates that, “[f]inally, Defendants seek partial summary judgment as to the [one set of third party] records because Plaintiff . . . failed to exhaust his administrative remedies when NCIS initially declined to produce materials from the death investigation related to [the] servicemember [whose records are at issue].”  “Plaintiffs represent in their cross-Motion for Summary Judgment that they are no longer seeking access to [that] file.”  The court holds that “[a]s Defendants acknowledge, although Plaintiffs ultimately received the [third party] records, the First Amended Complaint does not seek disclosure of those records.”  “The Court will not grant summary judgment on a claim that does not appear in the operative complaint.”