Theo Karantsalis has sued the Navy over its decision to withhold records pertaining to a jet crash report on an incident that happened 40 years ago. The fact that this case has gotten this far is testament to the fact that the discretionary release policy espoused by the Department of Justice is largely ignored among many agencies -- the documents at issue are being withheld pursuant to Exemption 5 -- if there was ever a case where discretionary disclosure, at least for part of the records, is appropriate, it's here.
The complaint can be found here: Download Navy_complaint
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.
Posted by: Jim Hogan | September 27, 2012 at 08:30 AM