War Horse News, Inc. v. U.S. Dep't of the Navy

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WAR HORSE NEWS, INC., et al, Plaintiffs, v. U.S. DEPARTMENT OF THE NAVY, et al., Defendants.

Civil Action No. 22-cv-03303 (TSC)

United States District Court, District of Columbia

September 30, 2024

MEMORANDUM OPINION

TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

In this Freedom of Information Act (“FOIA”) suit Plaintiffs War Horse News, Inc. (“War Horse”) and Thomas J. Brennan seek information contained in a Marine Corps database for reporting and tracking officer misconduct and substandard performance cases. Plaintiffs sued the Department of the Navy (“Navy”) and Headquarters U.S. Marine Corps (“HMC”) for failure to produce documents responsive to their FOIA request. Defendants moved for judgment on the pleadings or, in the alternative, for summary judgment on the grounds that Plaintiffs' request did not adequately describe the records sought and, in any event, Defendants properly withheld all records in the database at issue. Defs.' Mot. for J. on the Pleadings or Summ. J. (“HMC MSJ”), ECF No. 21. Plaintiffs cross-moved for summary judgment, arguing that their request was adequate, that Defendants failed to identify and produce segregable information, and that the claimed exemptions are inapplicable. Pls.' Cross-Mot. for Summ. J. and Opp'n to HMC MSJ (“Pls.' Cross-MSJ”), ECF No. 28.

Having considered the record and the parties' briefing, the court will DENY Defendants' motion and GRANT in part Plaintiffs' cross-motion for the reasons below. This matter will be remanded to the Navy and HMC for further findings as to segregability.

I. BACKGROUND

The following background is taken from the parties' declarations. Defendants submitted two declarations from Katherine J. Estes, a Marine Corps Attorney Advisor who leads the Marine Corps' Military Personnel Law Branch. Decl. of Katherine J. Estes (“Estes Decl.”) ¶ 1, ECF No. 21-1; see also Suppl. Decl. of Katherine J Estes (“2nd Estes Decl.”) ¶ 1, ECF No. 351. Estes served 26 years on active duty and has led the Military Personnel Law Branch since 2019. Estes Decl. ¶ 2. In her current role she supervises the processing of Marine Corps officer misconduct and promotion cases; her office is responsible for providing legal advice on military personnel law matters to, among others, the Commandant of the Marine Corps (its highest-ranking officer who serves on the Joint Chiefs of Staff) and his principal uniformed legal advisor, the Staff Judge Advocate to the Commandant. Id. ¶¶ 2, 14; see also Pls.' Cross-MSJ at 2 n.1. Because the Secretary of the Navy relies on the Commandant's recommendations when reviewing promotions for Marine Corps officers and the Commandant in turn relies on the Military Personnel Branch, Estes's office is responsible for identifying and tracking officers with potentially adverse information; ensuring efficient and accurate processing of officer misconduct and substandard performance cases; and advising the Commandant regarding officer promotion and assignment issues. 2nd Estes Decl. ¶ 3.

Plaintiffs submitted four declarations, the first by Plaintiff Brennan, a veteran enlisted Marine and the founder and Executive Director of War Horse. See Decl. of Thomas J. Brennan (“Brennan Decl.”) ¶¶ 1-2, ECF No. 28-3. Don M. Christensen, a retired Air Force Colonel with 23 years of experience as a military prosecutor, defense attorney, and judge submitted Plaintiffs' second declaration. Decl. of Don M. Christensen (“Christensen Decl.”) ¶ 1, ECF No. 28-5. Plaintiffs' third declaration is by Robert G. Bracknell, a retired Marine Corps Lieutenant Colonel with 22 years of experience as a Marine Corps officer and lawyer with firsthand experience and knowledge of the database at issue. Decl. of Robert Bracknell (“Bracknell Decl”) ¶¶ 1-3, ECF No. 30-2. Counsel for Plaintiffs David Nordlinger submitted a final declaration authenticating several exhibits that assisted the court in resolving the pending motions. See Decl. of David Nordlinger (“Nordlinger Decl.”) ¶¶ 4-7, ECF No. 28-7.

A. Plaintiff's FOIA Request

War Horse is a nonprofit newsroom focusing on veterans and the military. Brennan Decl. ¶ 2. Brennan is a combat-wounded former enlisted Marine who served in Iraq and Afghanistan during the Iraq War. Id. ¶¶ 3-8. He earned a degree in journalism following his medical retirement from the Marines and a Masters in investigative journalism from Columbia in 2015. Id. ¶ 9. Brennan founded War Horse to address the gap between veterans, military families, and the communities they serve; to correct a dearth of reporting on veterans' affairs; and to hold military leaders to account. Id. ¶ 11.

War Horse's investigative reporting aims to shed light on the military and military justice system, raise awareness of systemic issues impacting service members, and to call for change where required. Id. ¶ 2. Its reporting has led to multiple changes in military policy and federal law, including provisions barring the wrongful distribution of revenge porn under the Uniform Code of Military Justice. Id. ¶¶ 12, 14, 17; see also 10 U.S.C. § 917a. Brennan submitted the FOIA request at issue as part of a yearlong investigation into the military justice system and its lack of accountability in the officer corps. Brennan Decl. ¶ 2; see also id. ¶¶ 19, 21-22.

Brennan's FOIA request to HMC in June 2022 sought records contained in the Officer Disciplinary Notebook Management System (“ODNMS”), described in detail in the following section:

I seek a full copy of the Officer Disciplinary Notebook Management System (ODNMS) database. Releasable information should also include all edit histories to ODNMS entries and contain all ODNMS records since inception. The location, use, and description of the ODNMS can be found here: https://thewarhorse.org/ wp-content/uploads/2022/04/ ODNMS-Users-Guide- 10-Jan- 14.pdf.

Compl. ¶ 22, ECF No. 1 & Ex. A, ECF No. 1-2 (the Complaint contains the only full copy of Plaintiffs' FOIA request); see also Estes Decl. ¶ 5, Ex. A at 3, ECF No. 21-2. The link directs to a 52-page slide deck titled “ODNMS User's Guide, Headquarters Marine Corps, Judge Advocate Division, Updated January 2014.” Nordlinger Decl. ¶ 4, Ex. 2 (“User Guide”), ECF No. 28-8. The User Guide provides step-by-step instructions and guidance explaining how to enter new cases into the ODNMS and update pending cases. Bracknell Decl. ¶¶ 10, 13. The User Guide was previously available to the public. Nordlinger Decl. ¶ 4. HMC's declarant states that the User Guide “is no longer current” and was removed from public access after an April 2022 update to the software used to maintain the current version of the ODNMS. 2nd Estes Decl. ¶ 38.

B. Officer Disciplinary Notebook Management System

The ODNMS is the Marine Corps' internet-based database for reporting and tracking officer misconduct and substandard performance cases. HMC MSJ at 1-2; see also Marine Corps Order 5800.16, Changes 1-7, Volume 15 (“MCO 5800.16”) ¶ 010405 (Aug. 8, 2018), https://perma.cc/TC9E-5FU9.^[1] Its development, current form, and uses are described below. At the outset, the court notes that the ODNMS is distinct from the “Wolverine” database maintained by Marine Corps prosecutors to track their cases. Pls.' Cross-MSJ at 2. The ODNMS instead allows the Marine Corps to “administratively track the development” of misconduct or substandard performance cases. 2nd Estes Decl. ¶ 24.

i. Development

A version of the ODNMS has existed in some form since the 1990s and evolved over time. Estes Decl. ¶ 20. Marine Corps guidelines in 2003 began requiring senior officers to establish an internal case tracking system for all reported officer misconduct and to review it at least monthly. Id. Marine Corps personnel used a software program referred to as the Officer Disciplinary Notebook Management System to comply with that directive. Id. at ¶ 21. When an incident reported in the system was adjudicated and the case closed, the system entry would reflect that closure and closed cases were eventually transferred to a “separate archive file in Lotus Notes software program.” Id. HMC states that the archive “at that time”-presumably the early 2000s-contained cases dating back to approximately 1993. Id.

The Marine Corps sought to upgrade this system beginning in 2011, and by 2014 new internal regulations required staff judge advocates to report and track officer misconduct and substandard performance cases in an updated Officer Disciplinary Notebook Management System, rather than the internal spreadsheets the Marine Corps previously used. Id. at ¶ 22. This version was replaced in April 2022 by the Officer Disciplinary Notebook Management System 2.0 (“ODNMS 2.0”). Id. at ¶ 23. Approximately 10 years' worth of officer misconduct, substandard performance, and promotion entries were migrated to the new Officer Disciplinary Notebook Management System 2.0. Id. It therefore appears that “all ODNMS records since inception,” Estes Decl. ¶ 5, Ex. A at 3, may be found in at least three repositories: (1) an archive file in Lotus Notes that dates back to approximately 1993, (2) internal spreadsheets spanning approximately 2003 to 2011, and (3) the current, continually updated, ODNMS 2.0 that contains misconduct and substandard performance cases from 2012 to the present.

ii. Current Format

Data in ODNMS 2.0 is organized within individual case entries. 2nd Estes Decl. ¶ 4. These case entries are “akin to a personnel folder assigned to an officer for whom there is an allegation of misconduct and/or substandard performance.” Id. ¶ 7. As of February 2024, ODNMS 2.0 contained more than 4,400 misconduct substandard performance, and promotion case entries. Estes Decl. ¶ 24.^[2] Approximately 533 of those cases are active. 2nd Estes Decl. ¶ 33.^[3] A case entry is...