The Department of Defense has successfully defended its invocation of FOIA Exemption 5 on documents pertaining to recommendations made to the President concerning a military court martial's death sentence. Plaintiff was convicted of felony murder at Ft. Hood, Texas and was sentenced him to death. However, under the rules, the final decision on the death sentence is decided by the President. The military made a recommendation to the President. Plaintiff sought documents relating to the recommendation, and certain of the documents were subsequently withheld by Defendant pursuant to FOIA Exemption 5.
By the time the case got to Judge Ellen S. Huvelle of the District Court for the District of Columbia, only four documents were at issue. Judge Huvelle found that the four documents were all protected by FOIA exemption 5. Three by the Presidential Communications Privilege and one by the Deliberative Process Privilege. Judge Huvelle specifically found the documents were not similar to presentence reports that had been found not subject to any Exemption 5 withholdings in U.S. Department of Justice v. Julian, 486 U.S. 1 (1988).
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