Court Rules Marines Can’t Shield Officer Misconduct Records A federal judge finds the Marine Corps violated public records laws in response to The War Horse’s request for internal “Black Book” database of officer misdeeds
In a significant step toward forcing the disclosure of decades of officer misconduct records, a federal judge has ruled that the Marine Corps violated the Freedom of Information Act by blanketly denying The War Horse’s request for a copy of a controversial database known as the “Black Book.”
The Corps had tried to avoid even reviewing the records by claiming that the FOIA request was too vague, too burdensome, and that the information requested was protected under attorney-client privilege.
The judge, however, disagreed and criticized both the Corps and Navy for ignoring “the military’s most basic obligations” to taxpayers.
The 28-page opinion was filed Sept. 30 by Tanya S. Chutkan, a judge assigned to the U.S. District Court for the District of Columbia. In her response, the judge stated that in using various legal arguments, the Corps was working to shield records it had already identified as responsive to The War Horse’s FOIA request, and that the Corps’ position not only “strains credulity” but it is “not entitled to the presumption of good faith.”The Marine Corps did not respond to requests for comment on the ruling.
The War Horse sued the Navy and Marine Corps in 2022, alleging that they broke the law by denying requests for a database of public information about officer misconduct.
The court ruled that The War Horse’s records request was “self-explanatory” and pointed the Corps directly to “the specific filing cabinet where the records are held.” The court also ruled that there is “no doubt that the Marine Corps knew they had created and retained the records.”
However, rather than search for responsive records, the Corps chose to deny The War Horse’s request and petition the judge to throw out the case.
Attorneys for The War Horse called the decision an important win.
“After ignoring its obligations under FOIA, the Marine Corps must now fulfill that statutory duty by reviewing and processing these important records. We appreciate the seriousness with which the Court considered this matter and upheld The War Horse’s basic rights under FOIA,” said David Nordlinger, an attorney with Davis Wright Tremaine, the legal firm that represents The War Horse.
Nordlinger says he does not expect the Marine Corps will appeal the order.
The War Horse revealed the existence of the Black Book in April 2022 during a four-part investigation about officer misconduct in the Corps. The exposé relied on interviews with more than two dozen active and retired attorneys, judge advocates, former public affairs officers, junior and senior enlisted personnel, and legal experts from three separate branches and the private sector.
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The reporting revealed that when officers commit crimes, or are investigated for wrongdoing, the Marine Corps keeps that information meticulously tracked in the Officer Disciplinary Notebook Management System, also known as the Black Book—and that the database is often omitted from the official record and congressional disclosures—throughout the officers’ careers.
During the reporting, multiple Marine Corps officers told The War Horse that the ongoing behavior highlights a mix of favoritism and “sugar daddy deals” that are overseen by military lawyers and the Corps’ most senior officers.
Following publication, the Marine Corps did not challenge the accuracy of any details included in the series. The War Horse then filed a records request seeking “a full copy of the Officer Disciplinary Notebook Management System (ODNMS) database. Releasable information should also include all edit histories to ODNMS entries and contain all ODNMS records since inception.”
Last month’s ruling comes just days after The War Horse filed a separate Freedom of Information Act lawsuit against the Department of Defense and branches of the military to force the disclosure of records that will reveal the number of veterans who have been forced out of the military because of their sexual orientation.
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That case, which is under review in the U.S. District Court in the District of Columbia, comes amid The War Horse’s ongoing coverage of LGBTQ veterans to clear their military records, decades after they were forced out of the service and sometimes imprisoned, losing their chances at veterans benefits.
The War Horse revealed that even an effort this summer by President Biden to pardon LGBTQ veterans who had been court-martialed has fallen short of helping what the White House said could be thousands with “bad paper” discharges. The War Horse revealed that as of the end of September, only eight veterans had applied for the pardons, and that many veterans don’t qualify for the narrow confines of the pardons while others have found the process too burdensome.
“The War Horse is committed to transparency,” said Thomas Brennan, founder of The War Horse, “and these cases represent our ongoing efforts to defend the public’s access to military records.”
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