[Memorandum Opinion and Order, Peter Lurie, plaintiff v. Department of the Army, defendant]

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Upon reviewing the redacted material in camera, the motion for summary
judgment will be granted as to Document No. 12, because the redacted material offers
plaintiffs nothing probative of "what the Army was up to" in the vaccine testing, in its
relationship with ASAP or when it conducted its informal investigation.
Having said that, the Court notes that the Army's claim of Exemption 5 protection
under the attorney-client privilege is simply bizarre." And, contrary to the Army's
boilerplate, the Court cannot find "any" personal opinions in the redacted material to
justify invoking the deliberative process privilege. Nor has the Army explained the role,
if any, that this redacted material played in its deliberations, see SafeCard Serv., 926 F.2d
at 1204, or how disclosure would "chill" open and frank discussion within the
Department of Defense when those who are most likely to retaliate against Dr. Lucey
already have the information. See Army Times, 998 F.2d at 1070-71.
While Dr. Lucey may have, at most, a minimal privacy interest in the redacted
conversation, the bottom line is that this redaction falls well outside the core purpose of
" The mere fact that a military lawyer responds to a question from a military officer
conducting an informal investigation does not enshrine that conversation or the accompanying
factual discussions with the broad and important protections offered by the attorney-client
privilege. See Brinton v. Department of State, 636 F.2d 600, 604 (D.C.Cir. 1980); MeadData
Central v. Department of the Air Force, 566 F.2d 242, 254 (D.C.Cir. 1977). While claiming
attorney-client privilege, the Army has offered nothing to indicate that the conversation here was
intended to be a confidential communication in order to obtain legal advice. See Tax Analysts v.
Internal Revenue Serv., No. 96-5152, slip. op. at 22 (D.C.Cir., July 8, 1997). In fact, both the
subject and context of the brief conversation make clear that it was not. For a general discussion
of the applicability of this privilege and its limits, see Edna Selan Epstein, The Attorney-Client
Privilege and the Work-Product Doctrine (3rd ed. 1997). The Army's naked claim of attorneyclient privilege in the Vaughn Index, a claim which is unsupported in law and in fact, makes clear
why this Court ordered in camera review.

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