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Tunnell v. U.S. Department of Defense

United States District Court, N.D. Indiana, Fort Wayne Division

September 30, 2016



          Susan Collins, United States Magistrate Judge

         Plaintiff Harry Tunnell (“Tunnell”), a U.S. military historian and retired U.S. Army Colonel, filed a four-count complaint against Defendant U.S. Department of Defense (“DoD”) on September 11, 2014, alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq.[1] (DE 1). The parties have since resolved Counts One, Two, and Four of their dispute. (DE 23). The remaining count, Count Three, concerns three DoD training videos featuring interviews and footage of U.S. military personnel deployed to Iraq and Afghanistan as part of the 5th Brigade, 2nd Infantry Division, known as the “Stryker Brigade, ” of which Tunnell was the commander. Although the DoD initially refused to disclose the videos in their entirety, it has since agreed to release the videos in redacted form to blur or disguise the names and identities of the military personnel depicted therein. Tunnell, however, claims that the videos should be released in unredacted form.

         Now before the Court is a motion for summary judgment (DE 29), together with a brief in support (DE 30), asserting that the proposed redactions are warranted under Exemption 6 of the FOIA and that judgment as a matter of law should be entered in the DoD's favor. Tunnell has filed a brief in opposition to the motion (DE 36) and a supporting affidavit (DE 39), and the DoD has timely replied (DE 42). Accordingly, the motion is now ripe for ruling.

         For the following reasons, the DoD's motion for summary judgment will be GRANTED.


         “The [FOIA] was enacted to facilitate public access to Government documents.” U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (citation omitted). “[T]he core purpose of the FOIA is to expose what the government is doing . . . .” Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1124 (7th Cir. 2003). “[T]he strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.” Ray, 502 U.S. at 173 (citations omitted); see also U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989); U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

         There are nine exemptions to a government agency's obligation to disclose documents in response to a FOIA request. 5 U.S.C. § 552(b). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (alteration in original) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). “Consistent with the [FOIA]'s goal of broad disclosure, these exemptions have been consistently given a narrow compass.” Tax Analysts, 492 U.S. at 151 (citations omitted); see also FBI v. Abramson, 456 U.S. 615, 630 (1982) (“FOIA exemptions are to be narrowly construed . . . .”).

         The particular exemptions at issue in this dispute are Exemptions 3 and 6. Exemption 3 addresses material specifically exempted from disclosure by a statute other than § 552(b). 5 U.S.C. 552(b)(3). Exemption 6 authorizes the withholding of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

         “Congress' primary purpose in enacting Exemption 6 was to protect individuals from injury and embarrassment that can result from the unnecessary disclosure of personal information.” U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 599 (1982). “The redaction procedure is . . . expressly authorized by FOIA.” Ray, 502 U.S. 164, 173. “Congress thus recognized that the policy of informing the public about the operation of its Government can be adequately served in some cases without unnecessarily compromising individual interests in privacy.” Id. “[The] burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document.” Id.

         “A district court may grant summary judgment to the government in a FOIA case only if the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed.” Patterson v. I.R.S., 56 F.3d 832, 836 (7th Cir. 1995) (citations and internal quotation marks omitted).


         Tunnell served as the sole commander of the Stryker Brigade from the time of its creation in April 2007 until its deactivation in July 2010.[3] (DE 39 ¶¶ 7, 17; DE 39-7). Now retired, Tunnell is a U.S. Army-certified military historian who has authored two history books for the U.S. Army. (DE 39 ¶¶ 5, 10). He is frequently consulted by historians working on official and unofficial histories of various military matters. (DE 39 ¶ 11).

         Tunnell seeks unredacted versions of the following three videos: (1) 5/2 ID (SBCT) Discussion of a Commander's Role in Exercising Command and Control; (2) Operation Opportunity Hold: 5/2 SBCT Operations During Enduring Freedom; and (3) Operation Blowfish: Decision Making Exercise. (DE 39-3). The three videos were prepared at Tunnell's stateside base, Joint Base Lewis-McChord near Tacoma, Washington, for training purposes for the Stryker Brigade's deployment to and operation in Afghanistan. (DE 39 ¶¶ 6-7). The videos “contain interviews of United States military personnel discussing military tactics, techniques and procedures regarding U.S. combat operations in Iraq and Afghanistan, as well as brief video footage of armed forces on active duty in Afghanistan.”[4] (DE 30-1 ¶ 3). Tunnell contends that the release of the unredacted videos is necessary “to serve the historical record and essential to creating a military history not only of the Stryker Brigade but [of] the War in Afghanistan in general.” (DE 36 at 2 (citing DE 39 ¶¶ 9, 12-16)).

         On March 24, 2015, the DoD denied Tunnell's initial request for the videos. (DE 39-3). In doing so, the DoD cited FOIA Exemption 3, which pertains to material specifically exempted by statute. (DE 39-3). Specifically, the DoD relied on 10 U.S.C § 130(a), which establishes authority to withhold from public disclosure certain technical data with military application. (DE 39-3; DE 39-4). Internally, the DoD relied on a memorandum penned by Thomas Rudd, Protection Division Chief (the “Rudd Memorandum”), that recommended withholding the training videos for two reasons. First, the videos “would provide an adversary enhanced understanding of U.S. military Tactics, Techniques, and Procedures (TTP) as well as insight into the thought processes of U.S. military leaders, ” the result of which “would be an increased potential of both the threat and success of enemy attacks against U.S. and U.S. trained forces.” (DE 39-4 ¶ 2). Second, the videos “could be used by an adversary to identify and target current/former military and/or DoD affiliated personnel, ” elaborating that “[s]ince at least July of 2014 extremist forums have called for attacks against military and civilian[s] who are involved in the war on terror.” (DE 39-4 ¶ 3).

         Tunnell administratively appealed the DoD's decision to withhold the training videos. (DE 39-5). On October 5, 2015, his request was again denied in its entirety; the denial was documented in a “Memorandum for Record” penned by John Johnson, Director of Training, Army Staff (the “Johnson Memorandum”). (DE 39-6). Johnson explained in his Memorandum that the videos should not be released due to “operational security reasons” and that the Rudd Memorandum “accurately reflects our position that information in the requested videos would provide an adversary enhanced understanding of U.S. operations, equipment and unit capabilities.” (DE 39-6).

         Tunnell filed the instant suit on September 11, 2014, asserting that the DoD's failure to disclose the videos violated the FOIA. (DE 1). Subsequent to Tunnell's filing suit, the DoD, in an effort to settle the case, agreed to release the videos on the condition that the names and identities of military personnel depicted therein be redacted. (DE 30-1 ¶ 4; DE 39 ¶ 23). Specifically, the DoD proposes to blur the names and faces and to alter the voices of individuals appearing in the videos so that the names and identities of all military personnel are withheld.[5] (DE 30 at 3). To support its proposed redaction, the DoD produces the Declaration of Christina Asuncion, the FOIA Manager at Joint Base Lewis-McChord in Washington, who in turn cites to the Rudd Memorandum and the Johnson Memorandum as the DoD's rationale and support for the proposed redactions. (DE 30-1).

         Tunnell opposes any redaction of the videos; he argues that redaction frustrates his purpose as a military historian to document a history of the Stryker Brigade and of the War in Afghanistan. (DE 39 ¶¶ 9, 11-16). He contends that a variety of published resources, including publications by the U.S. Army, have shown identifiable military personnel without redaction. (DE 39 ¶¶ 24 to DE 31). To illustrate this point, Tunnell points to the following publications:

(1) In November 2014, the U.S. Army published “Strykers in Afghanistan, ” a 93-page document accounting the official history of the Stryker Brigade, which is available online at StrykersInAfghanistan.pdf (last visited Sept. 15, 2016). (DE 39-1). The names and images of military personnel depicted in the official history are not redacted. (DE 39-1; DE 39-2).
(2) The U.S. Army issued two press releases about the Stryker Brigade in which the names and images of soldiers were not redacted. (DE 39-7; DE 39-8).
(3) In 2007, the U.S. Army published an article about the Stryker Brigade without redaction, disclosing the identities of the soldiers in the photo credits, which is available online at TakesCenterStage/ (last visited Sept. 15, 2016). (DE 39-11).
(4) While the Stryker Brigade was operating in Afghanistan, military publications such as Combat Camera Weekly: Afghanistan Edition were disseminated which did not redact names, ranks, ...

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