The United States Marine Corps has been told by U.S. Federal District Court Judge for the District of Columbia Gladys Kessler that it must release Master Brief Sheets used in its Selection Board Proceedings. The Marine Corps had tried to withhold the material pursuant to FOIA exemptions 3, 5, and 6 but lost on all three exemption claims.
Judge Kessler found that 10 U.S.C. Section 618(f) was indeed an exemption 3 statute that covered Marine Selection Board Proceedings. However, the Master Brief Sheets did not, according to the Court, fall within the government's own definition of a proceeding--the sheets are merely a tool used by a selection board during the proceeding. Thus, exemption 3 did not protect the material.
The Marines next tried to block release pursuant to the deliberative process privilege of exemption 5. However, the Court found the Master Brief Sheets were not deliberative. The Court also found that the "Sampled" Master Brief Sheets (sheets specifically chosen by the Marine Corps) also were not deliberative or pre-decisional. Therefore, exemption 5 did not protect the material from disclosure.
Finally, the Marines made an assault on disclosure by claiming that the material was protected pursuant to the personal privacy exemption 6. However, as the plaintiff specifically said he did not want personal identifying information the Court found that the government had not established that the release of the redacted material would be a "clearly unwarranted invasion of privacy," and exemption 6 did not apply.
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