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September 25, 2012

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Jim Hogan

It should be noted that the Navy used the aircraft witness statement privilege when invoking Exemption 5 on this information. This privilege, which has been litigated at the Supreme Court, helps to protect the process by which the government obtains very critical safety-related information. As a former military aviator, I recognize the importance of ensuring confidentiality in the aircraft accident investigation process in order to obtain information that, potentially, could save lives. Therefore, the bar for making a discretionary release of privileged information of this type is much higher, I would think, than the bar for the deliberative process privilege. Also, I contend that this is not a case of "the discretionary release policy espoused by the Department of Justice" being "largely ignored" by the Navy. As the Navy clearly states (see Exhibit 9 of the complaint), the discretionary release policy was considered by the appellate authority during the appellate process. To assume that a policy is ignored because the conclusion is not what one thinks it should be is fallacious reasoning.

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