Case Detail

FOIA Project Annotation: A federal court in Indiana has ruled that the Defense Department may blur the identities of military personnel appearing in three training videos requested by Harry Tunnell under Exemption 6 (invasion of privacy). Tunnell, a military historian, was the sole commander of the Stryker Brigade, which served in Iraq and Afghanistan, from April 2006 until July 2010 when the unit was deactivated. He requested three videos of the Stryker Brigade recorded at Joint Base Lewis-McChord. The Defense Department initially withheld the records under Exemption 3 (other statutes), citing 10 U.S.C. § 130(a), which allows the agency to withhold certain technical data with military applications. The decision was upheld on administrative appeal. After Tunnell filed suit, DOD agreed to disclose the videos with the identities of military personnel blurred, citing Exemption 6 as the basis for its claim. Tunnell objected, arguing that photographs of the brigade's personnel had been published previously and that blurring identities would diminish the usefulness of the videos as part of the historical record. In court, Tunnell initially questioned the agency's decision to change its exemption claim. The court pointed out that both exemptions had been alluded to in the agency's memo denying Tunnell's request, explaining that "the fact that the DoD cited only the first of the two reasons in the memo when initially withholding the videos does not doom its defense of this case in federal court." DOD argued that a memo written shortly after 9/11finding that the identities of deployable troops should not normally be disclosed reflected the agency's current policy as well. Tunnell claimed the troops in the video were no longer deployable, but the court pointed out that "the [agency's memo] explains how the recent rise of domestic supporters of terrorism presents a security risk to anyone who was involved in operations in Iraq and Afghanistan." Finding that Exemption 6 allowed DOD to blur the images, the court rejected Tunnell's argument that the agency had waived any privacy in the images by previously publishing pictures of brigade members. Contrasting the difference in the images, the court noted that "the videos at issue contain live interviews with military personnel discussing military tactics, techniques, and procedures relating to U.S. combat operations in Iraq and Afghanistan. In contrast, the printed history of the Stryker Brigade contains photographs of military personnel [contained] in media packets primarily related to the U.S. military's role in the governance, reconstruction, and development of Afghanistan, and as such, are not of the same inflammatory nature as the training videos, which feature military strategies."
Issues: Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2014-09-11	1	PRO SE COMPLAINT with 3 copies of summons forms against U.S. Department of Defense (Filing fee $400.00; Receipt #INN1004811), filed by Harry Tunnell.(lhc) (Entered: 09/11/2014)
2014-09-11	2	Summons Issued as to U.S. Department of Defense. NOTE:The attached document is accessible by court personnel only. Summons forms that were electronically submitted to the court for issuance will be returned to counsel via e-mail. (lhc) (Entered: 09/11/2014)
2014-09-11	3	SUMMONS Returned Executed by Harry Tunnell. U.S. Department of Defense (US Attorney) served on 9/11/2014, answer due 11/10/2014. (lhc) (Entered: 09/11/2014)
2015-01-23		Magistrate Judge Susan L Collins added. Magistrate Judge Roger B Cosbey no longer assigned to case. (mr) (Entered: 01/23/2015)
2015-02-03	4	MOTION for Entry of Default as to U.S. Department of Defense by Plaintiff Harry Tunnell. (lhc) (Entered: 02/04/2015)
2015-02-04	5	OPINION AND ORDER DENYING 4 MOTION for Clerks Entry of Default as to U.S. Department of Defense filed by Harry Tunnell. Signed by Judge Jon E DeGuilio on 2/4/2015. (lns) (Entered: 02/05/2015)
2015-02-13	6	Summons Issued as to U.S. Attorney and U.S. Department of Justice. NOTE: The attached document is accessible by court personnel only. (lns) (Entered: 02/13/2015)
2015-02-13	7	SUMMONS Returned Executed by Harry Tunnell. U.S. Attorney served on 2/13/2015, answer due 4/14/2015. (lns) (Entered: 02/13/2015)
2015-03-03	8	SUMMONS Returned Executed by Harry Tunnell. U.S. Attorney General served on 2/24/2015. (lns) (Entered: 03/03/2015)
2015-04-14	9	NOTICE of Appearance by Abizer Zanzi - AUSA on behalf of U.S. Department of Defense (Zanzi - AUSA, Abizer) (Entered: 04/14/2015)
2015-04-14	10	NOTICE of Appearance by Deborah M Leonard - AUSA on behalf of U.S. Department of Defense (Leonard - AUSA, Deborah) (Entered: 04/14/2015)
2015-04-14	11	ANSWER to Complaint (Defendant's Answer and Affirmative Defenses to Complaint for Injunctive Relief) by U.S. Department of Defense.(Zanzi - AUSA, Abizer) (Entered: 04/14/2015)
2015-05-18	12	NOTICE of Hearing: Rule 16 Preliminary Pretrial Conference set for 6/17/2015 10:30 AM in US District Court - Fort Wayne before Magistrate Judge Susan L Collins. (mr) (Entered: 05/18/2015)
2015-05-18	13	MAGISTRATE JUDGE CONSENT FORMS sent to all parties (Standard Track). (mr) (Entered: 05/18/2015)
2015-05-29	14	NOTICE OF REASSIGNMENT OF CASE TO MAGISTRATE JUDGE: The parties having consented pursuant to 28 U.S.C. Section 636(c), this case is referred to Magistrate Judge Susan L Collins for all purposes and is reassigned pursuant to General Order 2007-10 from Magistrate Judge Susan L Collins and Judge Jon E DeGuilio to Magistrate Judge Susan L Collins. (lhc) (Entered: 05/29/2015)
2015-06-05	15	REPORT of Rule 26(f) Planning Meeting. (Zanzi - AUSA, Abizer) (Entered: 06/05/2015)
2015-06-17	16	RULE 16 PRELIMINARY PRETRIAL CONFERENCE held on 6/17/2015 before Magistrate Judge Susan L Collins. Pla appeared pro se. Dft appeared by Atty Deborah Leonard and Major Steve Watkins, Sr. Litigation Attorney. Atty Abizer Zanzi appeared telephonically. Dft requests discovery be stayed and granted 60 days to file dispositive motion. Pla concurs. Dispositive motions to be filed by 9/17/2015. (FTR 1st floor.) (mr) (Entered: 06/17/2015)
2015-09-10	17	MOTION for Extension of Time to File (Defendant's Unopposed Motion for Extension of Time to File Dispositive Motion) by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 09/10/2015)
2015-09-10	18	ENTRY for Magistrate Judge Susan Collins: The 17 Dft's Unopposed Motion for Extension of Time to File Dispositive Motion is granted. Dispositive motions to be filed by 10/19/2015. So Ordered. (mr) (Entered: 09/10/2015)
2015-10-14	19	Second MOTION for Extension of Time to File Dispositive Motion by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 10/14/2015)
2015-10-16	20	ENTRY for Magistrate Judge Susan Collins: The 19 Second Agreed Motion for Extension of Time to File Dispositive Motion is GRANTED. Dispositive motions to be filed by 11/2/2015. So Ordered. (lns) (Entered: 10/16/2015)
2015-10-26	21	Joint STIPULATION to Dismiss Counts I, II and IV of Complaint by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 10/26/2015)
2015-10-30	22	Third MOTION for Extension of Time to File Dispositive Motion by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 10/30/2015)
2015-10-30	23	ENTRY for Magistrate Judge Susan Collins: The joint 21 Stipulation to Dismiss Counts I, II and IV of Complaint is granted. 22 Dft's Third Agreed Motion for Extension of Time is granted. The dispositive motion deadline is extended to and including 11/23/2015. So Ordered. (mr) (Entered: 10/30/2015)
2015-11-18	24	Joint MOTION to Stay Proceedings by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 11/18/2015)
2015-11-19	25	NOTICE of Hearing: Telephonic Hearing on 24 Parties' Joint Motion to Stay Proceedings set for 12/1/2015 at 2:00 PM in US District Court - Fort Wayne before Magistrate Judge Susan L Collins. Court to initiate call. (cc: Plaintiff)(mr) Modified on 11/19/2015 to add cc (mr). (Entered: 11/19/2015)
2015-12-01	26	TELEPHONIC HEARING re 24 Joint Motion to Stay Proceedings held on 12/1/2015 before Magistrate Judge Susan L Collins. Pla appeared pro se. Dft appeared by atty Abizer Zanzi, atty Deborah Leonard, and Maj. Steve Watkins, US Army Legal Services. Parties advise all Counts dismissed except for Count 3. Dft in process of providing Pla with redacted videos as requested in Count 3. Court denies 24 Joint Motion to Stay Proceedings but extends dispositive motion deadline to 2/19/2016 to accommodate Dft time to produce redacted videos. Further telephonic Status Conference set for 1/15/2016 at 11:00 am. Court to initiate call.(FTR 1st floor.) (mr) Modified on 1/15/2016 (mr). (Entered: 12/01/2015)
2016-01-15	27	ENTRY for Magistrate Judge Susan Collins: The telephonic Status Conference set for 1/15/2016 at 11:00 am is RESET for 2/17/2016 at 11:00 am. Court to initiate call. So Ordered.(mr) (Entered: 01/15/2016)
2016-01-25	28	ENTRY for Magistrate Judge Susan Collins: The Court on its own motion RESETS the telephonic Status Conference tor 2/24/2016 at 10:00 AM. Court to initiate the call. So Ordered.(mr) (Entered: 01/25/2016)
2016-02-01	29	MOTION for Summary Judgment by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 02/01/2016)
2016-02-01	30	BRIEF in Support of 29 MOTION for Summary Judgment filed by U.S. Department of Defense. (Attachments: # 1 Exhibit 1)(Zanzi - AUSA, Abizer) (Entered: 02/01/2016)
2016-02-01	31	NOTICE by U.S. Department of Defense re 30 Brief in Support, 29 MOTION for Summary Judgment (Zanzi - AUSA, Abizer) (Entered: 02/01/2016)
2016-02-22	32	ENTRY for Magistrate Judge Susan L Collins: The Status Conference set for February 24, 2016 is VACATED. Plaintiff's Response to 29 Motion for Summary Judgment is due on or before February 29, 2016. So Ordered. (cc: Pla) (lns) Modified on 2/22/2016 to add routing (lns). (Entered: 02/22/2016)
2016-02-23	33	NOTICE of Appearance by James P Fenton on behalf of Harry Tunnell (Fenton, James) (Entered: 02/23/2016)
2016-02-23	34	MOTION for Extension of Time to File Response/Reply as to 30 Brief in Support, 29 MOTION for Summary Judgment by Plaintiff Harry Tunnell. (Fenton, James) (Entered: 02/23/2016)
2016-02-24	35	ENTRY for Magistrate Judge Susan Collins: Pla's 34 Verified and Unopposed Motion for Extension of Time is granted. Pla granted to and including 3/28/2016 to file a response to 29 Dft's Motion for Summary Judgment. So Ordered. (mr) (Entered: 02/24/2016)
2016-03-28	36	RESPONSE to Motion re 29 MOTION for Summary Judgment filed by Harry Tunnell. (Fenton, James) (Entered: 03/28/2016)
2016-03-28	37	NOTICE OF MANUAL FILING of Exhibit 12 to Affidavit of Harry Tunnell by Harry Tunnell (Fenton, James) (Entered: 03/28/2016)
2016-03-28	38	REPLACED BY DOCKET ENTRY 39 . AFFIDAVIT re 37 Notice of Manual Filing, 36 Response to Motion by Harry Tunnell. (Attachments: # 1 Exhibit 1-1, # 2 Exhibit 1-2, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13)(Fenton, James). Modified on 3/30/2016; Attorney filed only last page of Affidavit. (cer). (Entered: 03/28/2016)
2016-03-29	39	AFFIDAVIT re 37 Notice of Manual Filing, 36 Response to Motion by Harry Tunnell. (Attachments: # 1 Exhibit 1-1, # 2 Exhibit 1-2, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13).(Fenton, James). REPLACES DOCKET ENTRY 38 . Modified on 3/30/2016. Attorney refilled document to include complete Affidavit. (cer) (Entered: 03/29/2016)
2016-03-31	40	MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Summary Judgment by Defendant U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 03/31/2016)
2016-03-31	41	ENTRY for Magistrate Judge Susan Collins: 40 Dft's Unopposed Motion for Extension of Time is granted. Dft granted to and including 5/9/2016 to file its reply brief in support of its 29 Motion for Summary Judgment. So Ordered. (mr) (Entered: 03/31/2016)
2016-05-09	42	REPLY to Response to Motion re 29 MOTION for Summary Judgment filed by U.S. Department of Defense. (Zanzi - AUSA, Abizer) (Entered: 05/09/2016)
2016-08-15	43	ORDER: Defendant US Department of Defense DIRECTED to submit for an in camera review an unredacted copy of the three training videos at issue in its Motion for Summary Judgment. The copy of the videos should be delivered to the attention of the undersigned Magistrate Judge's Chambers by 8/22/2016. Signed by Magistrate Judge Susan L Collins on 8/15/16. (cer) (Entered: 08/15/2016)
2016-08-22	44	NOTICE by U.S. Department of Defense of Submission of Materials for In Camera Review (Zanzi - AUSA, Abizer) (Entered: 08/22/2016)
2016-09-30	45	OPINION AND ORDER granting 29 Motion for Summary Judgment. The Clerk is DIRECTED to enter a judgment in favor of the DoD and against Tunnell. Signed by Magistrate Judge Susan L Collins on 9/30/2016. (rmc) (Entered: 09/30/2016)
2016-09-30	46	CLERK'S ENTRY OF JUDGMENT. (rmc) (Entered: 09/30/2016)
2016-10-03	47	ENTRY for Magistrate Judge Susan Collins: AUSA Deborah Leonard requested to pick up from Chambers by 10/7/2016 the copy of the CD-ROM that was submitted for in camera review 44 . So Ordered.(mr) (Entered: 10/03/2016)
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