RICHARD W. ROBERTS, District Judge.
Plaintiff, a federal prisoner proceeding pro se, claims that the Bureau of Prisons ("BOP") failed to provide documents in response to his Freedom of Information Act ("FOIA") request dated May 9, 2011.
Upon consideration of the parties' submissions and the entire record, defendant's motion for summary judgment will be granted in part and deferred in part, and plaintiff's cross-motion for summary judgment and attorney's fees will be denied.
By letter dated May 9, 2011, plaintiff requested "any and all documents forwarded to case Manager Randy Courson, `SIS' Officer Lt. Adams, or `SIS' Lt. Davis, between the dates May 1, 2009, thru October 30, 2009, emanating from the office of `A' Unit Secretary Ms. Ramona Poole...." Compl. Attach. Plaintiff emphasized that he wanted "all the relevant transmissions by Secretary Poole" and stated that all of the individuals mentioned in the request "were or are at the Federal Correctional Facility, FCI/FSL, Jesup, Georgia, 2680 Highway 301 South," id., which is where plaintiff is incarcerated.
By letter of August 16, 2011, to BOP, plaintiff inquired about the status of his request, Def.'s Ex. 1 [Dkt. # 18-1]. Having received no response, plaintiff filed this civil action on October 5, 2011. By letter of October 14, 2011, BOP released three pages containing redacted material and informed plaintiff that information was withheld under FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b). Def.'s Ex. 3 [Dkt. # 18-3]. In response to this lawsuit, defendant conducted another search and released an additional 31 pages, some with redactions made pursuant to FOIA exemptions 6, 7(C) and 7(F). Decl. of Christine Greene [Dkt. # 18-6] ¶¶ 17, 19 & Vaughn Index; Def.'s Ex. 5 [Dkt. # 18-5].
Summary judgment may be appropriately granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). Courts draw all reasonable inferences from the evidentiary record in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"A district court must conduct a de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action." Milton v. U.S. Dep't. of Justice, 783 F.Supp.2d 55, 57 (D.D.C.2011) (citing 5 U.S.C. § 552(a)(4)(B)). In a FOIA case, summary judgment in favor of an agency is warranted where the agency demonstrates that no material facts are in dispute, that it conducted a search of records in its custody or control that was reasonably forecast to divulge all relevant information, Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984), and that the information found through the search either has been released to the requestor or is exempt from disclosure. See Skinner v. U.S. Dept. of Justice, 806 F.Supp.2d 105, 111 (D.D.C.2011) (citing Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001)).
When, as here, an agency's search is questioned, the agency is entitled to summary judgment upon a showing, through declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, that it conducted a search likely to locate all responsive records. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). Without contrary evidence of bad faith, the agency's amply detailed affidavits are sufficient to demonstrate compliance with the FOIA. Id. at 127. A search does not have to be
Plaintiff challenges the adequacy of BOP's search for responsive records and its invocation of FOIA exemptions 6 and 7 as justification for withholding information. Pl.'s Opp'n at 8-10. In support of summary judgment, defendant proffers the declaration of Christine Greene, who is a FOIA Paralegal at FCC Coleman, responsible for processing FOIA requests assigned to BOP's Southeast Regional Office. Greene Decl. ¶¶ 1, 6. Greene's statements are based on her "review of the official files and records ... and [her] personal knowledge, including knowledge [she] acquired... through the performance of [her] official duties." Id. ¶ 5.
Plaintiff argues that the search "was unreasonable and [] clearly not conducted in good faith because it fails to provide the investigative documents that demonstrate where the BOP properly performed its statutory duties...." Pl.'s Opp'n at 8. Greene states that she received plaintiff's request from the Central Office on September 8, 2011, and that same day, "scanned a copy of the request directly to the [now-retired] FOIA Coordinator at FCI Jesup" for him to conduct a search and report to her by September 19, 2011. Greene Decl. ¶¶ 9-10. The Coordinator forwarded the request to plaintiff's "current 2011 unit manager ... and the captain," since "[c]ase managers personally work with inmates on a day to day basis and handle their programming needs." Id. ¶¶ 9, 11. The unit manager, in turn, "forwarded the email" to his "team members consisting of the unit secretary, case manager, and counselor." Id. ¶ 11. The Coordinator did not at that time contact the person who was plaintiff's unit manager in 2009. Id.
The team members "visually checked [plaintiff's] central file and the filing which was pending for responsive documents," since "[t]he type of documents [plaintiff] was requesting normally are only placed in the[] inmate['s] central file." Id. In addition, "[t]he captain forwarded the [request] to his lieutenants and the SIS Department, [which] maintain[s] an investigative file on inmates when an investigation is opened." Id. Those efforts produced no responsive records. Id. Staff in the Correctional Service Department, which was investigating plaintiff's FTCA claim, located three pages that were "similarly responsive to the FOIA Request." Id. Those three pages constituted the initial release of records to plaintiff. Id. ¶ 12.
In preparing for the instant motion, Greene "sent another request for FCI Jesup to check for documents relevant to the original request," and "specifically asked the new FOIA Coordinator to check with SIS and the case manager to see if they had any documents which were forwarded to them by the unit secretary which inmate Brestle had personally given to the unit secretary." Id. ¶ 17. This inquiry resulted in the second release of 31 pages obtained from plaintiff's "former case manager, who indicated these were copies of documents he received from the unit secretary and had forwarded to the SIS Department back in 2009." Id. Greene acknowledges that "no one had thought to check with [the 2009 case manager] during the initial search." Id.
Defendant withheld third-party information under the FOIA's personal privacy provisions, namely, exemptions 6 and 7(C). Greene Decl. ¶¶ 13-15; 20-21. Exemption 6 protects information about individuals in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). All information that "applies to a particular individual" would qualify for consideration under this exemption. U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); accord New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C.Cir.1990) (en banc); see Akin, Gump, Strauss, Hauer & Feld, LLP v. United States Dep't of Justice, 503 F.Supp.2d 373, 381 (D.D.C. 2007) ("Congress' primary purpose in drafting Exemption 6 was to provide for confidentiality of personal matters.") (citation and internal quotation marks omitted). Exemption 7(C) protects from disclosure information compiled for law enforcement purposes to the extent that disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
The proper application of "privacy exemptions [6 and 7(C)] turns on a balance of `the individual's right of privacy against the basic policy of opening agency action to the light of public scrutiny.'" CEI Wash. Bureau, Inc., v. Dep't of Justice, 469 F.3d 126, 128 (D.C.Cir.2006) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 175, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)). Hence, when a requester seeks such information, an agency must conduct a balancing test to determine if releasing the information would constitute a "clearly unwarranted invasion of personal privacy" by weighing the privacy interest in non-disclosure against any qualifying public interest in disclosure. Dep't of State v. Wash. Post Co., 456 U.S. at 596 n. 1, 601-02, 102 S.Ct. 1957. It is this balancing test and "not the nature of the files in which the information was contained [that] limit[s] the scope of the exemption." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C.Cir.2002) (citation and internal quotation marks omitted); see id. ("assuming without deciding that the requested... records are `similar files' under Exemption 6"). As the D.C. Circuit instructs:
Id. at 33-34 (citations and internal quotation marks omitted) (alteration in original).
In the initial release, defendant redacted the name and telephone number of an "investigator/staff member." Greene Decl. ¶¶ 14, 20; see Def.'s Ex. 3 (released pages). Greene states that disclosure of the information might subject the individual "to possible harassment or criticism[,] focus derogatory inferences," and "trigger hostility toward" the individual. Greene Decl. ¶¶ 14, 20. Defendant has demonstrated the "strong privacy interest" the staff investigator has in protecting his or her identity from disclosure. Id. ¶ 20.
FOIA Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information...." would cause certain enumerated harms. 5 U.S.C. § 552(b)(7). The scope of exemption 7 encompasses "both civil and criminal matters." Tax Analysts v. I.R.S., 294 F.3d 71, 77 (D.C.Cir.2002). The threshold requirement turns on an assessment of "how and under what circumstances the requested files were compiled... and whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding." Id. at 78 (quoting Jefferson v. Dep't of Justice, 284 F.3d 172, 176-77 (D.C.Cir. 2002)). A "more deferential standard to a claim that information was compiled for law enforcement purposes" is applied "when the claim is made by an agency whose primary function involves law enforcement." Id.; see Campbell v. Dep't of Justice, 164 F.3d 20, 32 (D.C.Cir.1998) (explaining that the agency's declaration suffices if it supplies facts "in sufficient detail" to "establish a rational nexus between the investigation and one of the agency's law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law") (citations and internal quotation marks omitted).
Greene states that "[t]he information was received/compiled as a result of an investigation ... conducted by BOP." Greene Decl. ¶ 15. She describes SIS as "a department within [BOP] which investigates inappropriate or illegal activities which occur within the prison system," id. ¶ 9, and describes the responsive records as copies of documents plaintiff's former case manager "had forwarded to the SIS Department back in 2009." Id. ¶ 17. Plaintiff does not dispute that the documents are law enforcement records and, in fact, appears to agree with this characterization. See Pl.'s Opp'n at 5 ("[T]he Plaintiff reported these criminal activities to his case manager.... When the crimes were not reported, and the Plaintiff was denied access to the FBI, Plaintiff then went to his Unit Manager who[] immediately contacted the FBI.... To date, the Defendants continue to refuse to release or deny the existence of these investigative records."); cf. Blackwell v. FBI, 646 F.3d 37, 40 (D.C.Cir.2011) (finding law enforcement assertion "especially convincing [where] [requester] explicitly sought records related to his own criminal prosecution"). The threshold law enforcement requirement is satisfied.
In the second release, defendant invoked exemptions 6, 7(C) and 7(F) to withhold "the name of another inmate and his associates and to protect [plaintiff] from other inmates...." Id. ¶ 19; see Def.'s Ex. 5 (released pages). The initial question is whether defendant properly withheld information under the "somewhat broader" standard of exemption 7(C). Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C.Cir. 1993) (citation omitted); see Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1173 (D.C.Cir.2011) (finding "no need to consider [e]xemption 6 separately [where] all information that would fall within the scope of [e]xemption 6 would also be immune from disclosure under [e]xemption 7(C)").
"As a result of [e]xemption 7(C), FOIA ordinarily does not require disclosure of law enforcement documents (or portions thereof) that contain private information." Blackwell, 646 F.3d at 41 (citing cases). This is because the disclosure of information about an individual's involvement in law enforcement proceedings constitutes an unwarranted invasion of personal privacy under exemption 7(C). See Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990) (quoting Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C.1987)) ("`[T]he mention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.'"); accord Schrecker v. United States Dep't of Justice, 349 F.3d 657, 661 (D.C.Cir.2003) (citing cases that have "consistently supported nondisclosure of names or other information identifying [third-party] individuals appearing in law enforcement records, including investigators, suspects, witnesses, and informants"). In addition, third-party identifying information is "categorically exempt" from disclosure under exemption 7(C) in the absence of an overriding public interest in its disclosure. Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C.Cir.1995). Defendant properly invoked exemption 7(C).
The United States Supreme Court has broadly interpreted the "personal privacy interest that Congress intended Exemption 7(C) to protect." United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); accord Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157, 165, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ("[T]he concept of personal privacy under Exemption 7(C) is not some limited or `cramped notion'....") (quoting Reporters Committee, 489 U.S. at 763, 109 S.Ct. 1468). Such privacy interests may be invaded, then, only when a requester shows that the information is necessary to "shed any light on the [unlawful] conduct of any Government agency or official." Reporters Committee, 489 U.S. at 772-73, 109 S.Ct. 1468; accord Nation Magazine, Washington Bureau, 71 F.3d at 887-88; SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1206 (D.C.Cir.1991). This analysis applies equally to exemption 6. See Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C.Cir. 1993) (while the "protection available under [] exemptions [6 and 7C)] is not the same, ... [t]he same [balancing] standard" applies); Akin, Gump, 503 F.Supp.2d at 383 ("[T]he general balancing test applied [under exemption 7(C)] to determine the extent of the privacy invasion is the same as that under [e]xemption 6.").
Plaintiff "must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake" and that "the information is likely to advance that interest." Favish, 541 U.S.
The crux of plaintiff's argument is that BOP "failed in [its] statutory duties and engaged in criminal acts." Pl.'s Opp'n at 2. He also asserts that "an individual[']s affairs are no longer private when they involve statutory violations or their participation in the commission of a crime." Id. at 9. Elaborating on this argument, plaintiff recounts "a series of events" that appear to have motivated him to deliver the requested documents to BOP staff, see id. at 4-7, and states that "a full and comprehensive disclosure ... is required as they show evidence of three ... criminal acts committed by BOP officials in retaliation against the Plaintiff for trying to accurately report these crimes then later on, in response to efforts to reveal that these agencies failed to perform their statutory duties and obligations of their oaths of office." Pl.'s Opp'n at 6-7.
"Because the FOIA is concerned with the right of the general public to know what their government is up to, the identity and interest of the party requesting the document are irrelevant to th[e] balancing" of public and privacy interests, Mays v. DEA, 234 F.3d 1324, 1327 (D.C.Cir.2000), as is the requester's "personal stake in the release of the requested information." Roth, 642 F.3d at 1177 (quoting Mays, 234 F.3d at 1327). Defendant redacted information from the 34 released pages that identifies third-party individuals. Such information is "the type... [that] is simply not very probative of an agency's behavior or performance," Mays, 234 F.3d at 1327 (quoting SafeCard Servs., Inc., 926 F.2d at 1205), and plaintiff has not proffered any evidence or pointed to anything in the record to find the contrary here.
In the absence of evidence of an overriding public interest in the disclosure of the otherwise exempt information, defendant is entitled to summary judgment on its application of FOIA exemptions 6 and 7(C) to the third-party information.
Exemption 7(F) of the FOIA protects from mandatory disclosure information compiled for law enforcement purposes to the extent that disclosure "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). "This exemption affords broad protection to the identities of individuals mentioned in law enforcement files ..., including any individual reasonably at risk of harm." Quinto v. U.S. Dep't of Justice, 711 F.Supp.2d 1, 8 (D.D.C.2010) (citations and internal quotation marks omitted). In general, this exemption has been interpreted to apply to names and identifying information of law enforcement officers, witnesses, confidential informants and other third persons who may be unknown to the requester. See Plunkett v. Dep't of Justice, 924 F.Supp.2d 289, 303-04 (D.D.C.2013) (citing Durham v. United States Dep't of Justice, 829 F.Supp. 428, 434 (D.D.C.1993); Public Employees for Environmental Responsibility (Peer), Rocky Mountain Chapter v. U.S. E.P.A., 978 F.Supp. 955, 961 (D.Colo. 1997)). But the statute protects "any individual" and, therefore, "is not so limited." Long v. U.S. Dep't of Justice, 450 F.Supp.2d 42, 79 (D.D.C.2006). In reviewing claims under exemption 7(F), the inquiry
Defendant invoked exemption 7(F) to withhold information that would identify "cooperating individuals ..., which if released, could reasonably be expected to endanger the life or physical safety of the individuals identified in the records." Greene Decl. ¶ 22. Plaintiff counters that defendant's "exclusion [under this exemption] is exceptionally ludicrous" because he is "the only individual exposed to potential harm." Pl.'s Opp'n at 10. Plaintiff's speculative assertion is belied by defendant's statement that it is protecting the identities of "cooperating individuals." Furthermore, plaintiff's argument ignores three truths about the FOIA. First, as already has been noted, the requester's identity is irrelevant. Second, the right to assert or waive a FOIA exemption belongs to the agency, not the requester. See Frugone v. CIA, 169 F.3d 772, 774-75 (D.C.Cir.1999) (holding "that only the CIA can waive its right to assert an exemption to the FOIA"). Third, "a document [required to] be disclosed under FOIA," is not only disclosed to the individual requester but also "to the general public...." Stonehill v. IRS, 558 F.3d 534, 538-39 (D.C.Cir.2009). It is not disputed that the individuals were cooperating with BOP's investigation of "inappropriate or [potentially] illegal activities." Greene Decl. ¶ 19; see Pl.'s Opp'n at 5. Since an investigation of this kind could reasonably be expected to place cooperating individuals (plaintiff included) at risk, especially in a prison setting, defendant properly invoked exemption 7(F) and is entitled to summary judgment on this exemption.
An agency must disclose "[a]ny reasonably segregable portion" of an otherwise exempt record. 5 U.S.C. § 552(b). While an agency is presumed to have complied with its obligation to disclose non-exempt portions of the record, a "district court must make specific findings of segregability regarding the documents to be withheld." Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.Cir.2007).
According to Greene, BOP "carefully examined" the responsive documents for segregability and determined that disclosure of the withheld information "could cause unwarranted and clearly unwarranted invasion of the personal privacy interests of third parties; and could disclose the identities of—and information provided by—techniques and procedures." Greene Decl. ¶ 23. This is the only place in the record where defendant has referred to "techniques and procedures," which are not protected from disclosure under any of the exemptions defendant has invoked.
In addition, while defendant represents that it redacted information only from the released pages, the record reveals that virtually entire pages of information were withheld solely under exemption 7(C). See Ex. 5, ECF pp. 7-19, 21-23, 25, 27-28, 32. "Exemption 7(C) ordinarily permits the Government to withhold only the specific information to which it applies, not the entire page or document in which the information appears." Mays, 234 F.3d at 1327. Greene's statement about the agency's segregability review does not specifically address the large blocks of information withheld under exemption 7(C), and the vague descriptions in the Vaughn index are equally unhelpful. Cf. Plunkett, 924 F.Supp.2d at 304 (approving defendant's "large swaths of redactions" where multiple exemptions were applied and the heavily redacted record "was identified to
For the foregoing reasons, it is hereby
ORDERED that defendant's motion for summary judgment [Dkt. # 18] is GRANTED as to the adequacy of the search and the redaction of third-party information under FOIA exemptions 6, 7(C) and 7(F), and is otherwise held in abeyance; it is further
ORDERED that plaintiff's motion for summary judgment and attorney's fees [Dkt. # 33] is DENIED; it is further
ORDERED that plaintiff's remaining motions for joinder [Dkt. # 24], to hold defendant in contempt of court [Dkt. # 37], and for "leave to file judicial notice, pursuant to Rule 201 F.R.Ev.P." [Dkt. # 43] are DENIED; it is further
ORDERED that by
