Pinson v. U.S. Department of Justice , 202 F. Supp. 3d 86 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON, :
:
Plaintiff, : Civil Action No.: 12-1872 (RC)
:
v. : Re Document No.: 239
:
U.S. DEPARTMENT OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
Pro se Plaintiff Jeremy Pinson is currently incarcerated in federal prison. While in prison,
Mr. Pinson has filed multiple Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests
with different components of the U.S. Department of Justice (“DOJ”). On several occasions,
DOJ has asked Mr. Pinson to clarify his records requests, told him that it could not find records
responsive to his requests, or informed him that the records he sought were exempt from
disclosure by law. Mr. Pinson filed a complaint claiming that DOJ improperly withheld
numerous records from him in violation of FOIA. In response, DOJ filed several pre-answer
motions, each asking the Court to dismiss or grant summary judgment in its favor on different
portions of Mr. Pinson’s complaint.
One of those motions was a motion for partial summary judgment as to Mr. Pinson’s
FOIA claims against DOJ’s Office of Information Policy (“OIP”). See generally Defs.’ Mot.
Partial Summ. J. [hereinafter OIP Mot. Summ. J.], ECF No. 131. Some of the withholdings at
issue in that motion were made at the request of the Bureau of Prisons (“BOP”), however, and
the Court ordered DOJ to justify those withholdings after they were not discussed in the OIP
motion. See Order of August 27, 2015, ECF No. 235. DOJ later filed a separate justification for
these redactions, which the Court indicated it would treat as a separate dispositive motion for
partial summary judgment. See BOP’s Justifications Withholdings Noted OIP’s Dispositive Mot.
[hereinafter Defs.’ Mot. Summ. J.], ECF No. 239; Order of Oct. 2, 2015, ECF No. 240.
That motion is now ripe, and for the reasons explained below, the Court will grant in part
and deny in part the motion.
II. FACTUAL BACKGROUND
In its prior memorandum opinion, the Court already explained in detail the factual
background regarding these requests. See Pinson v. U.S. Dep’t of Justice, No. 12-01872, 2016
WL 614364, at *1–4 (D.D.C. Feb. 16, 2016). The Court assumes familiarity with its prior
opinion and confines its discussion here to the facts most relevant to the present motion.
A. FOIA/PA Request No. AG/10-R1351
By letter dated September 5, 2010, Mr. Pinson submitted a FOIA request to OIP for “any
correspondence or electronic messages generated after January 21, 2009 by the Attorney
General, or staff within the Attorney General’s office, addressed to or intended for the Director
of the Federal Bureau of Prisons.” Decl. Vanessa R. Brinkmann ¶ 4 & Ex. A [hereinafter
Brinkmann Decl.], ECF No. 131-3. Mr. Pinson requested that no more than two hours of search
time be expended and that no more than one hundred pages of responsive documents be
produced. See id. OIP received Mr. Pinson’s request on September 16, 2010, and assigned it
FOIA tracking number AG-10/R1351. See id. ¶ 5 & Ex. B. On November 9, 2012, OIP
responded to Mr. Pinson’s FOIA request, identifying seventy-two pages of responsive material.
See id. ¶ 11. OIP made several redactions on its own behalf, which this Court previously
2
addressed. See generally Pinson, 2016 WL 614364. OIP also forwarded the records to BOP for
consultation, and BOP requested that certain additional material be withheld pursuant to FOIA
Exemptions 5, 6, and 7. See 5 U.S.C. § 552(b)(5), (6), (7); Brinkmann Decl. ¶ 12; Defs.’ Mot.
Summ. J. at 10–14.
Specifically, BOP redacted the name of an individual (other than Mr. Pinson) then in
BOP custody and the details regarding an inquiry about that individual from an email message a
member of the Office of the Attorney General (“OAG”) sent to the former Director of BOP. See
Defs.’ Mot. Summ. J. at 9; Notice Re BOP’s Justification OIP’s Withholdings at 1, ECF No.
247. In addition, BOP requested that thirty-two pages be withheld in full. Those pages consisted
of two memoranda detailing Special Administrative Measures (“SAMs”) imposed on two
different individuals in BOP custody (“SAMs memoranda”). See Defs.’ Mot. Summ. J. at 9–10.
SAMs are special measures that the Attorney General can implement for certain inmates in order
to create individualized conditions of confinement that are deemed “reasonably necessary to
protect persons against the risk of death or serious bodily injury.” 28 C.F.R. § 501.3(a). These
measures may include limitations on individuals’ access to the mail, media, telephone, and
visitors. See Defs.’ Mot. Summ. J. at 11–12 (citing Decl. Ronald L. Rodgers ¶ 12(a) [hereinafter
Rodgers Decl.], ECF No. 239-1). SAMs may be imposed for up to one year and may be extended
in increments not to exceed one year, at the direction of the Attorney General. See 28 C.F.R. §
501.3(c).
Upon BOP’s recommendation, DOJ withheld in full the two SAMs memoranda, of
fourteen pages and eighteen pages in length, respectively. See Defs.’ Mot. Summ. J. at 11. The
SAMs memoranda memorialize the Attorney General’s SAMs decisions with respect to two
inmates and recount in detail the criminal conduct of the individuals subject to the orders, those
3
individuals’ continued threat to public safety, and the terms of the SAMs themselves. See id. at
11–12. Although DOJ has indicated that one of the memoranda dealt with a convicted prisoner
and the other dealt with a pretrial detainee, it has not specified which memorandum relates to
which individual. See id. at 11.
Mr. Pinson administratively appealed OIP’s decision on November 19, 2012. In his
appeal letter, Mr. Pinson did not challenge any of the excisions made on the released documents.
Instead, as relevant here, he challenged the withholding of the SAMs memoranda in full. See
Brinkmann Decl. ¶ 13 & Ex. D. On February 19, 2013, OIP responded to Mr. Pinson’s appeal,
informing him that because he had filed a lawsuit related to the denial of this request, his appeal
had been closed. See id. ¶ 14 & Ex. E.
B. FOIA/PA Request No. AG/12-0668, DAG/12-0669, and ASG/12-0670
On March 7, 2012, Mr. Pinson submitted a FOIA request to the Attorney General for “all
information related to the selection of Bureau of Prisons Director Charles Samuels and Regional
Director Paul Laird for those positions” and “any reports of deaths of inmates in federal custody
during 2008–2011.” Id. ¶ 27. Again, Mr. Pinson specified that no more than two hours be spent
searching for responsive records and that he sought no more than one hundred pages of
responsive documents. OIP initiated processing on behalf of OAG, the Office of the Deputy
Attorney General (ODAG), and the Office of the Associate Attorney General (OASG), assigning
the request FOIA tracking numbers AG/12-0668, DAG/12-0669, and ASG/12-0670. Id. ¶¶ 27,
28 & Exs. N, O.
OIP identified 139 pages responsive to Mr. Pinson’s request among the records of OAG,
ODAG, and OASG. OIP released seventy-two of those pages in full, sixty pages with redactions,
and withheld the remaining seven pages in full. See ¶ 33. Some of the redactions were made, and
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all seven pages were withheld, at the request of BOP. The redactions and withholdings on behalf
of BOP consist of: (1) identifying information of third-parties referenced in the “information
memoranda” from the BOP Director to the Deputy Attorney General reporting on inmate deaths,
(2) the identity, recommendation, and curriculum vitae of a candidate for the position of Director
of BOP who was not ultimately selected for that position, and (3) the home address of the current
Director of BOP. Id. ¶¶ 32–34 & Ex. Q.
III. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). Under Rule 56 of the Federal
Rules of Civil Procedure, summary judgment must be granted when the pleadings, the discovery
and disclosure materials on file, and any affidavits show “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
In the FOIA context, a district court reviewing a motion for summary judgment conducts
a de novo review of the record, and the responding federal agency bears the burden of proving
that it complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B). The court must
analyze all underlying facts and inferences in the light most favorable to the FOIA requester. See
Wills v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 65 (D.D.C. 2008). To prevail on a motion for
summary judgment, “the defending agency must prove that each document that falls within the
class requested either has been produced, is unidentifiable[,] or is wholly exempt from the Act’s
inspection requirements.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980)
(quoting Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its
5
burden, a defendant may rely on declarations that are reasonably detailed and non-conclusory.
See Citizens for Ethics & Responsibility in Wash. v. U.S. Dep’t of Labor, 478 F. Supp. 2d 77, 80
(D.D.C. 2007) (“[T]he Court may award summary judgment solely on the basis of information
provided by the department or agency in declarations [that] describe ‘the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.’” (quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). Such declarations “are accorded a presumption of
good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting Gardels v.
CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing court should “respect the
expertise of an agency” and not “overstep the proper limits of the judicial role in FOIA review.”
Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979).
IV. ANALYSIS
A. FOIA/PA Request No. AG/10-R1351
DOJ argues that it is entitled to summary judgment as to Request No. AG/10-R1351,
claiming that it properly withheld documents pursuant to FOIA Exemptions 6, 7(C), 7(D), 7(E)
and 7(F). See generally Defs.’ Mot. Summ. J. Two withholdings made at the request of BOP are
at issue: (1) the redaction of the name of a third-party inmate and an inquiry about him or her
contained in an email to the former BOP Director; and (2) the withholding in full of the two
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SAMs memoranda. See id. at 9, 11–12. The Court will grant summary judgment with respect to
the email redaction, but will deny summary judgment, without prejudice, with respect to the
SAMs memoranda.
1. Email (released with redactions)
Mr. Pinson does not directly address the email redaction in his opposition to DOJ’s
motion, although he does vaguely refer to “other info” that has been withheld and contests the
withholding of “the identities of . . . violent criminals engaged in a violation or continuing
violation of the law,” Pl.’s Resp. OIP’s/BOP’s Witholdings Noted OIP’s Dispositive Mot. at 1, 5
[hereinafter Pl.’s Resp.], ECF No. 261. Even if this vague reference encompasses the email
redaction, Mr. Pinson failed to contest this redaction in his administrative appeal. See Brinkmann
Decl. ¶ 13 & Ex. D; see also Pinson, 2016 WL 614364, at *3 (noting that “[i]n his appeal letter,
Mr. Pinson did not challenge any of the excisions made on the released documents”).
In the FOIA context, “[e]xhaustion of administrative remedies is generally required
before filing suit in federal court so that the agency has an opportunity to exercise its discretion
and expertise on the matter and to make a factual record to support its decision.” Hidalgo v. FBI,
344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57,
61 (D.C. Cir. 1990)). Thus, if a plaintiff has not exhausted his administrative remedies, the suit
must be dismissed for failure to state a claim. See id. at 1257, 1260. Additionally, “[a] requester
‘may have exhausted administrative remedies with respect to one aspect of a FOIA request—and
thus properly seek judicial review regarding that request—and yet not have exhausted [his]
remedies with respect to another aspect of a FOIA request.” Lair v. Dep’t of Treasury, No. 03-
827, 2005 WL 645228, at *3 (D.D.C. Mar. 21, 2005) (quoting Dettmann v. Dep’t of Justice, 802
F.2d 1472, 1477 (D.C. Cir. 1986)).
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Although Mr. Pinson challenged other aspects of the withholding in his administrative
appeal (including the withholding of the SAMs memoranda, discussed below, see infra Section
IV.A.2), he did not challenge the redactions of information regarding the third-party inmate in
the email to the former BOP Director. Because Mr. Pinson did not raise this issue in his
administrative appeal, and thus did not exhaust his administrative remedies, he may not make
arguments for the first time here. Accordingly, the Court will grant summary judgment to DOJ
with respect to this redaction.
2. SAMs Memoranda
DOJ invokes Exemptions 6 and 7(C) to justify the withholding in full of the two SAMs
memoranda. See Defs.’ Mot. Summ. J. at 12. DOJ also invokes Exemptions 7(D) and 7(E) to
justify the withholding of the 14-page memorandum and Exemption 7(F) to justify the
withholding of the 18-page memorandum. See id. at 13–14. As explained below, the Court
agrees with DOJ that at least some of the information in the SAMs memoranda may properly be
withheld. At the same time, however, DOJ has asserted vague justifications for withholding
certain information, and has not met its burden to show that no segregable material exists in the
documents. As a result, the Court will deny, without prejudice, DOJ’s motion with respect to the
SAMs memoranda.
a. Exemption 6
Exemption 6 permits the government to withhold “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). Application of Exemption 6 requires a two-step inquiry: first, the
Court must ask whether the information is contained in a personnel, medical, or “similar” file.
See Multi Ag Media v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). Second, the Court
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considers whether disclosure “would constitute a clearly unwarranted invasion of personal
privacy.” Id. (quoting 5 U.S.C. § 552(b)(6)).
The first step has been construed broadly to cover essentially all information sought from
Government records that “appl[y] to a particular individual.” U.S. Dep’t of State v. Wash. Post
Co., 456 U.S. 595, 602 (1982) (explaining that Exemption 6 was “intended to cover detailed
Government records on an individual which can be identified as applying to that individual”
(quoting H.R. Rep. No. 89-1497, at 11 (1966))). This broad construction accords with
Congress’s purpose in enacting Exemption 6, namely, “to protect individuals from the injury and
embarrassment that can result from the unnecessary disclosure of personal information.” Id. at
599. Because the SAMs memoranda are Government records that contain information that
“applies to a particular individual” and could result in “injury and embarrassment” if disclosed,
id. at 602, 599, the SAMs memoranda satisfy the first step of the inquiry.
At the second step, the Court must balance “the privacy interest that would be
compromised by disclosure against any public interest in the requested information.” Multi Ag
Media, 515 F.3d at 1228. The Court must first examine whether disclosure of the information
would compromise a substantial privacy interest, although the word substantial “means less than
it might seem” and encompasses “anything greater than a de minimis privacy interest.” Id. at
1229–30. Information such as an individual’s name, address, criminal history, and employment
history have been found to constitute a substantial privacy interest. See, e.g., Associated Press v.
U.S. Dep’t of Justice, 549 F.3d 62, 65 (2d Cir. 2008) (“[A] citizen’s name, address, and criminal
history . . . implicate a privacy interest cognizable under the FOIA exemptions.”); Core v. U.S.
Postal Serv., 730 F.2d 946, 948 (4th Cir. 1984) (concluding that a narrative summary including
“names of present and former employers, awards, commendations, and membership in
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professional organizations” implicated a substantial privacy interest). Additionally, “[t]he
exemption is generally thought to protect intimate personal details the disclosure of which would
be likely to cause embarrassment.” Ripskis v. Dep’t of Hous. & Urban Dev., 746 F.2d 1, 3 (D.C.
Cir. 1984).
Mr. Pinson argues that the individuals discussed in the SAMs memoranda have only an
“attenuated privacy interest in their underlying criminal conduct”—conduct that is a matter “of
public record as a result of [the individuals’] public prosecutions.” Pl.’s Resp. at 2. The Court
disagrees. The privacy interests of these individuals remain substantial, and these individuals are
not precluded from retaining a privacy interest merely on the basis of their public prosecutions.
Indeed, at least at the time the SAMs memoranda were written, one of the inmates had not yet
been convicted. See DOJ’s Reply at 2, ECF No. 262. As for the other inmate, while the “interests
in privacy fade when the information involved already appears on the public record,” Cox Broad.
Corp. v. Cohn, 420 U.S. 469, 494–95 (1975), and “the disclosure of convictions and public pleas
is at the lower end of the privacy spectrum,” even convicted defendants retain a privacy interest
in the facts of their conviction, which can be embarrassing and stigmatizing, see ACLU v. U.S.
Dep’t of Justice, 655 F.3d 1, 7 (D.C. Cir. 2011). Disclosure of the individuals’ names, criminal
history, and the respective SAMs implemented during their custody implicate substantial privacy
interests and would likely cause reputational and other harm to the individuals in question.
Having established the privacy interest at stake, the Court must weigh protection of that
interest through nondisclosure “against the public interest in the release of the records.” Multi Ag
Media, 515 F.3d at 1230 (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873,
874 (D.C. Cir. 1989)). The relevant public interest in FOIA cases is to “shed[] light on an
agency’s performance of its statutory duties” and thereby enable citizens to be informed about
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“what their government is up to.” Id. at 1231 (quoting Reporters Comm., 489 U.S. at 773). Thus,
information that does not directly reveal the behavior of federal government employees or
agencies “falls outside the ambit of the public interest that the FOIA was enacted to serve.” See
Reporters Comm., 489 U.S. at 774–75; see also Hopkins v. U.S. Dep’t of Hous. & Urban Dev.,
929 F.2d 81, 88 (2d Cir. 1991) (explaining that disclosure of personal information having an
“attenuated” relationship to government activity is insufficient to overcome FOIA privacy
exemptions). There must be some “nexus between the requested information and the asserted
public interest that would be advanced by disclosure.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172–73 (2004). The burden of establishing that disclosure would serve the
public interest is on the requester, see Associated Press, 549 F.3d at 66, and “[m]ere speculation
about hypothetical public benefits cannot outweigh a demonstrably significant invasion of
privacy,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 178–79 (1991).
The Court concludes that Exemption 6 protects, at the very least, the names and other
personal identifying information concerning the inmates discussed in the SAMs memoranda.
Other personal identifying information might include “the inmate’s crimes” to the extent they are
sufficiently distinctive to be identifiable, “the effective dates of the SAMs,” the inmate’s “prison
location,” or the particularized “risks of declining to apply SAM restrictions to that inmate.”
Human Rights Watch v. U.S. Dep’t of Justice, No. 13-cv-7360, 2015 WL 5459713, at *9–10
(S.D.N.Y. Sept. 16, 2015) (concluding that the government properly invoked Exemptions 6 and
7(C) to withhold this type of information from SAMs memoranda). In the Court’s view, the
public does have an interest in disclosure of the circumstances surrounding the imposition of the
SAMs and in learning the terms of those measures. This information would shed light on BOP’s
performance of its statutory duties—to protect inmates and the public—and thus inform citizens
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about what their government is up to. Despite that interest, however, Mr. Pinson has failed to
demonstrate how the disclosure of the identities of the particular inmates’ subject to the SAMs
would serve that public interest or provide further meaningful insight into BOP’s activities.
Thus, these individuals’ substantial privacy interest outweighs the negligible public interest in
the disclosure of the identities of particular individuals subject to the SAMs. As discussed below,
if redaction of the personal identifying information can adequately protect the privacy of the
individuals referenced, any segregable, non-exempt information should be disclosed.
b. Exemption 7
DOJ also invokes several subsections of Exemption 7 as a basis for withholding the
SAMs memoranda. Exemption 7 requires a threshold determination that the information
withheld constitutes “records or information compiled for law enforcement purposes.” 5 U.S.C. §
552(b)(7). The D.C. Circuit has indicated that “a court may apply a more deferential attitude
toward the claims of ‘law enforcement purpose’ made by a criminal law enforcement agency”
based on “the generally accurate assumption that federal agencies act within their legislated
purposes.” Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982). Consequently, “a court can
accept less exacting proof from such an agency that the purpose underlying disputed documents
is law enforcement.” Id. BOP is a law enforcement agency and thus deserves this deference. See
Duffin v. Carlson, 636 F.2d 709, 713 (D.C. Cir. 1980).
The D.C. Circuit has articulated “two critical conditions that must be met” before a law
enforcement agency’s activity leading to the creation of relevant documents may be deemed to
have had a “law enforcement purpose.” Pratt, 673 F.2d at 420. 1 First, the agency’s activity “must
1
Taken broadly, DOJ appears to argue that because BOP is a law enforcement agency,
all documents compiled by that agency inherently meet the threshold requirement. See Defs.’
Mot. Summ. J. at 5 (“Documents compiled by law enforcement agencies are inherently records
12
be related to the enforcement of federal laws or to the maintenance of national security.” Id. In
order to satisfy this requirement, the agency should “be able to identify a particular individual or
a particular incident as the object of its [activity] and the connection between that individual or
incident and a possible security risk or violation of federal law,” thus connecting the activity with
“law enforcement agencies’ legislated functions of preventing risks to the national security and
violations of the criminal laws and of apprehending those who do violate the laws.” Id. at 420–
21. 2 In making this determination, “the focus is on 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.’” Jefferson v. U.S. Dep’t of Justice, Office of Prof’l
Responsibility, 284 F.3d 172, 176–77 (D.C. Cir. 2002) (quoting Aspin v. Dep’t of Def., 491 F.2d
24, 27 (D.C. Cir. 1973)) (internal citation omitted). The threshold inquiry does not require that
particular materials be “compiled in the course of a specific investigation,” but is sufficiently
expansive to include “internal agency materials relating to guidelines, techniques, sources, and
procedures for law enforcement investigations and prosecutions.” See Tax Analysts v. IRS, 294
F.3d 71, 79 (D.C. Cir. 2002).
compiled for ‘law enforcement purposes.’”); Rodgers Decl. ¶ 6. This broad argument is
erroneous. Instead, the Pratt test was articulated specifically for law enforcement agencies, and
details two conditions that even law enforcement agencies must meet to pass the threshold with
respect to particular documents.
2
The statutory threshold determination previously required that the information withheld
constitute “investigatory records compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7)
(1982 ed.) (emphasis added), but the statute was revised in 1986 to apply more broadly to any
“records or information compiled for law enforcement purposes.” See 5 U.S.C. § 552(b)(7)
(2016); see also Pub. L. No. 99-570, § 1802(a) (Oct. 27, 1986). Although the Pratt test was
crafted prior to this revision, the D.C. Circuit subsequently explained that the Pratt test remains
valid, generally. See Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987). As a
result, the quoted language from Pratt has been revised (where noted) to be consistent with the
current, broader language of the statute.
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Second, “the nexus between the [activity] and one of the agency’s law enforcement duties
must be based on information sufficient to support at least ‘a colorable claim’ of its rationality.”
Pratt, 673 F.2d at 421. Courts should be “deferential to the particular problems of a criminal law
enforcement agency,” when assessing this factor. Id.
Here, both prongs of the Pratt test are met. BOP’s activity at issue relates to the
enforcement of federal laws and possible security risks in prisons. Specifically, the SAMs
memoranda “memorialize decisions of the Attorney General to employ the carefully designed
administrative measures attendant to incarceration to protect the public [and] the correctional
officers and staff of the institutions to which they are assigned.” Defs.’ Mot. Summ. J. at 12. The
SAMs memoranda relate to the management of particular security risks, and thus fall within
Exemption 7. As for the second prong, BOP is a law enforcement agency that functions to
protect inmates, staff, and the community. See Swope v. U.S. Dep’t of Justice, 439 F. Supp. 2d 1,
6 (D.D.C. 2006). Thus, memoranda reflecting BOP’s efforts to deal with potential security risks
to the public, inmates, and staff are rationally related to BOP’s law enforcement duties, and the
threshold requirement is satisfied in this case as to the SAMs memoranda.
i. Exemption 7(C)
Under subsection (C), the government may withhold information if disclosure “could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(7)(C). Exemption 7(C) requires a balancing test similar to the one used for Exemption 6,
weighing the privacy interests implicated in the requested records against the public interest in
release. See SafeCard, 926 F.2d at 1205.3 For the reasons discussed above, the privacy interest in
3
Because Exemption 7(C) covers information that “could reasonably be expected” to
cause an unwarranted invasion of privacy, 5 U.S.C. § 552(b)(7)(C), the balancing test in
Exemption 7(C) is more deferential to the government agency than the test in Exemption 6. See
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releasing the individuals’ names and identifying information is outweighed by any public interest
in knowing what the government is up to, because release of the individuals’ identities would not
substantially further transparency in BOP. Moreover, the D.C. Circuit has held that names of
“private individuals appearing in files within the ambit of Exemption 7(C)” are categorically
exempt from disclosure unless disclosing such information “is necessary in order to confirm or
refute compelling evidence that the agency is engaged in illegal activity.” See id. at 1206. Thus,
because Mr. Pinson has presented no compelling evidence of illegal activity by BOP, the
individuals’ identities in the SAMs memoranda are properly withheld under Exemption 7(C). 4
ii. Exemption 7(E)
DOJ also argues that the 14-page SAMs memorandum was properly withheld under
Exemption 7(E), which allows redaction of information that “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984) (Exemption 7(C) covers a “somewhat broader
range of privacy interests than Exemption 6.”).
4
DOJ also invokes Exemption 7(D) as a basis for withholding the 14-page SAMs
memorandum. Exemption 7(D) permits the government to withhold law enforcement records or
information that “could reasonably be expected to disclose the identity of a confidential source”
or “information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). DOJ claims that
because the SAMs memorandum discloses the fact that a named criminal organization “routinely
employs conduct designed to undermine investigations of their criminal behavior,” the SAMs
memorandum, if made public, might “cause those who might otherwise have cooperated in
investigations and prosecutions” of this criminal organization to refuse to cooperate “out of
concern for their safety and that of their family members.” Defs.’ Mot. Summ. J. at 13. Yet, the
text of Exemption 7(D) permits withholding only of a confidential source’s identity or the
information furnished by a confidential source. See 5 U.S.C. § 552(b)(7)(D); see also U.S. Dep’t
of Justice v. Landano, 508 U.S. 165, 172 (1993) (explaining that, when applying Exemption
7(D), a court must ask whether a “particular source spoke with an understanding that” his or her
communication “would remain confidential” or “‘provided information under an express
assurance of confidentiality or in circumstances from which such an assurance could be
reasonably inferred’” (quoting S. Rep. No. 93-1200, at 13 (1974)) (emphasis omitted)).
Exemption 7(D) does not permit the government to withhold information that it believes might
potentially persuade unnamed or anticipated future sources to disclose information. Therefore,
this exemption is not applicable to the SAMs memorandum at issue here.
15
law enforcement investigations or prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law. . . .” 5 U.S.C. § 552(b)(7)(E). Exemption 7(E) affords
“categorical protection,” Judicial Watch, Inc. v. FBI, 2001 WL 35612541, at *8 (D.D.C. Apr. 20,
2001) (internal quotation marks omitted), to material that “would compromise law enforcement
by revealing information about investigatory techniques that are not widely known to the general
public,” Smith v. Bureau of Alcohol, Tobacco & Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997).
DOJ first vaguely argues that Exemption 7(E) justifies withholding the 14-page SAMs
memorandum because disclosure “would reveal law enforcement techniques and would thereby
increase the chance that those techniques could be circumvented.” Defs.’ Mot. Summ. J. at 14. If
this concern relates to circumvention of the SAMs, however, that concern is difficult to square
with the BOP’s own regulations. As explained in more detail below, those regulations require
that staff disclose the terms of SAMs to the inmate subject to the measures. See 28 C.F.R. §
501.3(b) (providing that “[d]esignated staff shall provide to the affected inmate, as soon as
practicable, written notification of the restrictions imposed”). That requirement suggests that the
BOP is not concerned that disclosure of the measures to the inmate will pose a risk of
circumvention and, therefore, it is unclear why disclosure to other, third-party individuals would
nonetheless pose such a risk. If, on the other hand, DOJ’s concern is that other investigatory
techniques beyond the SAMs will be disclosed, it has wholly failed to describe those techniques,
or that concern, in any detail.
In addition, DOJ asserts that the inmate subject to the SAMs discussed in the 14-page
memorandum belongs to an organization that “has represented a severe threat to good order and
discipline within Bureau of Prisons facilities for many years by routinely employing coercion
backed by violence to punish and prevent cooperation with law enforcement and correctional
16
authorities.” Defs.’ Mot. Summ. J. at 14. That may be so, but as Mr. Pinson responds, DOJ has
not identified what in the memorandum, in particular, would “disclose techniques for law
enforcement investigations and prosecutions or be reasonably expected to risk circumvention of
the law.” Pl.’s Resp. at 4. DOJ has not explained the nexus between any information contained in
the memorandum and the possible disclosure of investigatory or prosecutorial techniques. It may
be that there is reason to fear that the inmate, or his or her associates, will seek to circumvent the
law. But beyond its boilerplate assertion, DOJ has not yet explained what material in the SAMs
memoranda would pose that risk. Because DOJ has not shown how the memorandum relates to
law enforcement investigations or prosecutions, and has not made clear how disclosing a
memorandum discussing special security protocols would disclose techniques for investigation
or prosecution that are not known to the public, the Court will deny DOJ’s motion for summary
judgment, without prejudice, on Exemption 7(E) grounds. 5
iii. Exemption 7(F)
DOJ seeks to justify the withholding of the other, 18-page SAMs memorandum under
Exemption 7(F), which allows for the non-disclosure of records or information that “could
reasonably be expected to endanger the life or physical safety of any individual.” § 552(b)(7)(F).
The D.C. Circuit has described the text of Exemption 7(F) as “expansive.” See Elec. Privacy
Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 526 (D.C. Cir. 2015), cert. denied sub
nom. Elec. Privacy Info Ctr. v. Dep’t of Homeland Sec., 136 S. Ct. 876 (2016). “The exemption
5
In particular, if the memorandum relates to the convicted inmate, who has already been
prosecuted and whose conduct is already a matter of public record, it is conceivable that certain
investigation or prosecutorial techniques have already been publicly disclosed (unless the
proceedings were sealed). This possibility is difficult to assess, however, because DOJ has not
clarified which individual is the subject of the 14-page memorandum for which it claims
Exemption 7(E) applies. See Defs.’ Mot. Summ. J. at 11.
17
does not require that a particular kind of individual be at risk of harm; ‘any individual’ will do.”
Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-
Mex., 740 F.3d 195, 205 (D.C. Cir. 2014). Nor need the government show that disclosure would
“definitely endanger life or physical safety; a reasonable expectation of endangerment suffices.”
Id. Furthermore, unlike Exemptions 6 or 7(C), which involve balancing tests, Exemption 7(F) “is
an absolute ban against [disclosure of] certain information and, arguably, an even broader
protection than 7(C).” Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002).
DOJ identifies two potential threats implicated by release of this memorandum. First,
DOJ claims that because the memorandum includes a “detailed description of criminal conduct”
the individual was expected to engage in, including information about weapons and targeted
locations, the SAMs memorandum essentially “establish[es] a blueprint that others might follow
to inflict mass casualties.” See Defs.’ Mot. Summ. J. at 14. Second, DOJ argues that release of
the SAMs memorandum would constitute a threat to BOP employees because “release of the
records would permit a close examination of their terms—and the permissible exceptions to
them—that would allow those subject to their terms, and their criminal associates, to plot how
such measures could be compromised and defeated.” See id.While DOJ’s first argument is plausible, the agency has not yet provided a sufficiently
detailed explanation for the Court to adequately assess it. Mr. Pinson claims that DOJ’s rationale
is too generic, and that DOJ fails to explain why disclosure of this particular criminal activity
would likely serve as a ready blueprint for others to replicate. See Pl.’s Resp. at 4–5. This
argument has some force. DOJ has the burden to justify its “nondisclosure with reasonably
specific detail” demonstrating “that the information withheld logically falls within the claimed
exemption.” Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v.
18
Casey, 730 F.2d 773, 776 (D.C. Cir. 1984). Yet, DOJ merely states that the memorandum
discloses “the types of weapons, explosives, and/or munitions [the individual and his/her
criminal associates] were likely to employ, and the locations where their intended crimes would
occur.” Rodgers Decl. ¶ 12(d); see also Defs.’ Mot. Summ. J. at 14. DOJ’s claim that it can
withhold any information that could serve as a “blueprint” for future crimes, out of concern for a
generalized risk of future danger, is overbroad. That argument would seem to suggest that any
information about criminal conduct, even if already in the public domain or disclosed during an
individual’s prosecution, could be withheld out of fear that it could provide an avenue for others
to replicate the conduct. Here, DOJ has not explained what it is about this criminal conduct that
makes it more likely than other conduct to serve as a “blueprint” that others could replicate, or
that poses unique risks to individuals. If there are special concerns motivating the withholding of
information related to these particular criminal acts, DOJ has failed to describe them.
Moreover, DOJ has not responded to Mr. Pinson’s contention that at least some of the
information may already be in the public record. See Pl.’s Resp. at 4–5. DOJ has not clarified
whether this memorandum relates to the convicted prisoner or the pretrial detainee, and to the
extent some of the information about the inmate’s criminal activity is already public record, any
safety interest in non-disclosure may be diminished, even if not eliminated altogether. 6
6
Of course, the fact that information is already a matter of public record does not
necessarily preclude a FOIA exemption from applying. See Reporters Comm., 489 U.S. at 763
n.15; ACLU, 655 F.3d at 9. However, the rationale behind a continuing privacy interest on the
part of individuals in the context of Exemptions 6 and 7(C) for publicly available information, as
discussed above and as referenced in these cases, does not necessarily apply with the same force
to an argument about public safety under Exemption 7(F). Whereas releasing information that is
publicly available but relatively obscure could bring unwanted notoriety to the individual, it is
not clear that releasing information about an individual’s criminal conduct, which is already a
matter of public record, increases the likelihood that it would be used as a blueprint for future
crimes, as criminals likely to employ such blueprints and motivated to find them could already
access the information through other avenues.
19
DOJ’s second argument, that the release of the SAMs memorandum would pose a safety
risk because it would allow a close examination of the SAMs and the possible exceptions to
them, is unpersuasive. BOP’s own regulations direct that the terms of SAMs should be routinely
disclosed to the inmate subject to them. See 28 C.F.R. § 501.3(b). Indeed, it is hard to imagine
how such measures could be imposed on an inmate without revealing the terms of those
measures to him or her. 7 The regulations instruct that “[d]esignated staff shall provide to the
affected inmate, as soon as practicable, written notification of the restrictions imposed and the
basis for these restrictions.” Id. Furthermore, although the regulations explicitly allow for the
basis for the restrictions to be “limited in the interest of prison security or safety or to protect
against acts of violence or terrorism,” id., there is no corresponding statement that the terms of
the restrictions may also be limited or withheld. Any argument that disclosure of the terms of the
SAMs memorandum would provide the inmate with an opportunity to circumvent those
measures makes little sense in light of the fact that the regulations already mandate such
disclosure.
To the extent that DOJ is arguing that release of the SAMs’ terms to third-party
individuals would allow circumvention of their terms—and thus pose a threat to the life or
physical safety of individuals—the Court is not aware of any general prohibition on an inmate
disclosing the terms of SAMs to third parties. DOJ has not pointed the Court to any such
proscription. Of course, some SAMs place restrictions on an inmate’s ability to communicate
with particular individuals as a general matter. See, e.g., 28 C.F.R. § 501.3(a) (providing that
7
These measures can include terms such as “housing the inmate in administrative
detention and/or limiting certain privileges, including, but not limited to, correspondence,
visiting, interviews with representatives of the news media, and use of the telephone.” 28 C.F.R.
§ 501.3(a); see also Defs.’ Mot. Summ. J. at 11–12 (citing Rodgers Decl. ¶ 12(a)).
20
SAMs may include “limiting certain privileges, including . . . correspondence, visiting, . . . and
use of the telephone”); United States v. Mohamed, 103 F. Supp. 3d 281, 288 (E.D.N.Y. 2015)
(discussing SAMs imposed against an inmate who had previously broken out of prisons in Niger
and Mali which included, among other things, restrictions on communications intended to
prevent the inmate “from sending coded communications to co-conspirators outside the prison”).
Yet, any risk that disclosure of the SAMs memorandum’s contents will endanger individuals’
lives or physical safety might be accommodated through a more limited redaction. For example,
redacting the name and other identifying information of the individual subject to the terms of the
SAMs memorandum could eliminate the possibility that the information could be used by the
criminal associates of the incarcerated individual. If a redaction would be insufficient to
eliminate the risk, DOJ has not yet explained why.
For all of these reasons, DOJ has not yet provided the Court with sufficient information
to make a determination as to whether disclosure of information about the criminal activity
discussed in the 18-page SAMs memorandum has properly been withheld under Exemption 7(F).
Thus, the Court will deny DOJ’s motion, without prejudice, on this ground.
c. Segregability
Although the Court has denied, without prejudice, DOJ’s invocation of certain
exemptions, the Court nevertheless has concerns that DOJ has not adequately shown that all
reasonably segregable material has been disclosed. To aid the ultimate resolution of this case, the
Court will briefly highlight its segregability concerns.
FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). FOIA focuses on “information, not documents, and an agency cannot justify withholding
21
an entire document simply by showing that it contains some exempt material.” Mead Data Cent.,
Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). The D.C. Circuit has
long held that “non-exempt portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Id. Indeed, in light of this rule, “categorical
treatment . . . raises doubt as to whether [a] document was properly reviewed for segregability.”
Geronimo v. Exec. Office for U.S. Att’ys, No. 05-1057 (JDB), 2006 WL 1992625, at *7 (D.D.C.
July 14, 2006). At the same time, an agency need not produce material if “the excision of exempt
information would impose significant costs on the agency and produce an edited document with
little informational value.” Mays v. Drug Enf’t Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000)
(quoting Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)).
DOJ “has the burden of demonstrating that no reasonably segregable information exists
within the documents withheld.” Army Times Publ’g Co. v. Dep’t. of the Air Force, 998 F.2d
1067, 1068 (D.C. Cir. 1993); see also 5 U.S.C. § 552(a)(4)(B). Although “[a]gencies are entitled
to a presumption that they complied with the obligation to disclose reasonably segregable
material,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007), a government
agency’s “conclusion on a matter of law is not sufficient support for a court to conclude that the
self-serving conclusion is the correct one,” Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534
F.3d 728, 734 (D.C. Cir. 2008). Thus, an agency official’s “conclusory affidavit” declaring that
each page has been reviewed line-by-line to ensure compliance with the segregability
requirement does not suffice. See id.In this case, all the DOJ has provided is the type of conclusory affidavit that the D.C.
Circuit has held to be insufficient. See Defs.’ Mot. Summ. J. at 19 (stating that declarant
“carefully reviewed for reasonably segregable information, and determined that there is no
22
additional reasonably segregable information that can be released to plaintiff”). DOJ’s affidavit
does not provide the Court with enough information to make specific findings as to segregability,
which it is obligated to do. See Stolt-Nielsen, 534 F.3d at 734. The Court has held that
Exemptions 6 and 7(C) shield the names and identifying information about the subjects of the
SAMs memoranda, and that Exemptions 7(E) and 7(F) might apply to additional material,
although DOJ has not yet adequately supported invoking those exemptions. Even still, DOJ has
not demonstrated that any properly withheld material could not be redacted, and segregated
from, the remainder of the SAMs memoranda. Mr. Pinson argues that “[t]he agency could
reasonably segregate identities of the inmate and organization while disclosing the criminal
conduct itself.” Pl.’s Resp. at 3. 8 The Court agrees that releasing the portions of the memoranda
that do not contain personal identifying information could protect the privacy of the individuals
involved while shedding light on BOP’s activities and thereby serving the public interest. Cf.
Dep’t of the Air Force v. Rose, 425 U.S. 352, 372–82 (1976) (holding that personal identifying
information in records of Air Force Academy disciplinary proceedings was exempt under FOIA,
but that in camera examination of the documents was appropriate to determine whether any non-
identifying information was segregable, because information about the disciplinary proceedings
themselves would preserve the public’s right to governmental information); id. at 375 (quoting
approvingly Senator Kennedy’s remark that “deletion of names and identifying characteristics of
individuals would in some cases serve the underlying purpose of exemption 6” (120 Cong. Rec.
17,018 (1974))).
8
Although Mr. Pinson makes this objection under the heading of Exemption 7(D), it is
relevant across all of the invoked exemptions. Moreover, even when a party does not raise
segregability, the Court has a duty to sua sponte consider the issue, and “must make specific
findings of segregability regarding the documents to be withheld.” Stolt-Nielsen, 534 F.3d at 734(quoting Sussman, 494 F.3d at 1116).
23
DOJ suggests, instead, that the documents are “amenable to categorical treatment.” See
Rodgers Decl. ¶ 12 n.1. Yet, the Court observes that in one recent case in the Southern District of
New York, DOJ did release portions of several SAMs memoranda in response to a FOIA
request, while redacting personal identifying information regarding the inmates at issue. See
Human Rights Watch, 2015 WL 5459713, at *10. In that case, DOJ released the descriptions of
the specific SAMs imposed, as well as the basis for why those SAMs were imposed where the
basis was described “at a level of generality that makes it difficult for the inmate to be
identified.” Id. When the plaintiff, Human Rights Watch, challenged additional withholdings, the
court held that DOJ had appropriately withheld personal information “of little value to the
public”—such as descriptions of inmates’ family members and visitors, or information that
“would make identification of the inmate . . . substantially more likely by revealing information
specific to the inmate”—because that information provided only “incremental value” to the
public. Id.In light of DOJ’s disclosures in Human Rights Watch, and the Court’s own consideration
of DOJ’s arguments made in this case, the Court is skeptical of DOJ’s claim that the SAMs
memoranda contain no non-exempt material that can reasonably be segregated from properly
withheld material. In the context of its renewed motion for summary judgment addressing
Exemptions 7(E) and 7(F), DOJ must consider whether non-exempt material can be segregated,
or further justify its claim that categorical treatment is appropriate in this instance. If providing
additional explanation would disclose the very information DOJ seeks to withhold, DOJ may
provide this additional explanation to the Court in an in camera declaration, and may submit the
SAMs memoranda for an in camera review. See 5 U.S.C. § 552(a)(4)(B); Smith, 977 F. Supp. at
501.
24
B. B. FOIA/PA Request No. AG/12-0668, DAG/12-0669, and ASG/12-0670
DOJ also seeks summary judgment with respect to Request No. AG/12-0668, in which
Mr. Pinson sought information concerning Charles Samuels’s selection as BOP Director and any
reports of deaths of inmates in federal custody from 2008 to 2011. See Brinkmann Decl. ¶¶ 27,
28 & Exs. N, O. Among the 139 pages of responsive records located in response to that request,
BOP requested that OIP redact: (1) identifying information of third-parties referenced in the
memoranda from the BOP Director to the Deputy Attorney General regarding inmate deaths; (2)
the identity of, information concerning, and the curriculum vitae of, an individual Mr. Lappin
recommended for the position of Director of BOP who was not ultimately selected; and (3) the
home address of Director Samuels. See Brinkmann Decl. ¶¶ 30–34 & Exs. O, P, Q. The Court
will grant DOJ’s Motion for Summary Judgment with respect to these withholdings. 9
1. Memoranda Related to Inmate Deaths
DOJ released much of the content of the memoranda discussing inmate deaths, including
the names of the individuals in BOP custody who either “took their own life, or were the victim
of a homicide.” See Rodgers Decl. ¶ 13. BOP concluded that “concerns regarding [those
individuals’] personal privacy ended at the time of their death.” Id. But where the inmate was a
homicide victim, “the name or names of the suspected assailant or assailants and the offenses for
which they were previously convicted and sentenced” were redacted. Id. Similarly, BOP
redacted a description of the likely motive for the homicide of an individual in BOP custody at a
9
Although Mr. Pinson claims that OIP’s search for this request was inadequate, see Pl.’s
Resp. at 6, this Court already granted summary judgment to DOJ on this issue, concluding that
the search was adequate, see Pinson, 2016 WL 614364, at *9. Moreover, contrary to Mr.
Pinson’s contention that OIP failed to detail its search efforts as to the Regional Director Paul
Laird’s selection, OIP did indicate that its search of DES records included the term “Paul Laird.”
See Brinkmann Decl. ¶ 29.
25
Residential Reentry Center in Puerto Rico. Id. BOP also requested that the names and identifying
information of third-parties and family members be redacted from memoranda: discussing an
inmate who escaped from a facility and then “took the lives of two family members and injured
another before taking his own life”; detailing the death of an inmate who died while serving a
home confinement sentence, where a family member of the individual identified him or her to
law enforcement; and discussing an inmate who took his own life shortly after he had assaulted
several visiting family members. Id. In each instance the name of the individual in BOP custody
who died was disclosed, but the names of their family members or third parties were redacted.
Id. DOJ argues that this information was properly withheld under Exemptions 6 and 7(C). Defs.’
Mot. Summ. J. at 15–17.
a. Exemption 6
As discussed above, Exemption 6 allows agencies to withhold “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). Exemption 6 requires the Court to follow a two-step
inquiry: First, the Court must ask whether the information is contained in a personnel, medical,
or “similar” file. Second, the Court considers whether disclosure would constitute a clearly
unwarranted invasion of personal privacy. See Multi Ag Media, 515 F.3d at 1228.
The first step includes essentially all information “which applies to a particular individual
[which] is sought from Government records.” Wash. Post Co., 456 U.S. at 602. The second step
requires a balancing test. See Multi Ag Media, 515 F.3d at 1228. First, the Court examines
whether disclosure implicates a substantial privacy interest, i.e. more than a de minimis privacy
interest. See id. at 1229–30. The exemption protects, among other things, “intimate personal
details the disclosure of which would be likely to cause embarrassment,” Ripskis, 746 F.2d at 3,
26
including an individual’s name and criminal history, see Associated Press, 549 F.3d at 65. Even
a convicted criminal has a privacy interest in the facts of his or her conviction. See ACLU, 655
F.3d at 7–8. Next, the court must weigh the privacy interest in non-disclosure against the public
interest in information about the agency’s performance of its statutory duties, to determine
whether disclosure would result in a “clearly unwarranted invasion of personal privacy.” See
Multi Ag Media, 515 F.3d at 1230–31 (internal quotation marks and citation omitted).
Information that does not directly reveal the behavior of federal employees and agencies “falls
outside the ambit of the public interest that the FOIA was enacted to serve.” Reporters Comm.,
489 U.S. at 775; see also Hopkins, 929 F.2d at 88.
Here, because the redacted information, including the names of third-parties or homicide
assailants, or the offenses for which the homicide assailants were convicted, applies to particular
individuals, the memoranda constitute “similar” files for the purposes of Exemption 6. See Wash.
Post Co., 456 U.S at 602 (explaining that Exemption 6 covers essentially all information “which
applies to a particular individual [which] is sought from Government records”). In addition, DOJ
properly identified substantial privacy interests in the names and the potentially embarrassing
personal details of living individuals and third-party family members. See Ripskis, 746 F.2d at 3(explaining that the exemption covers “intimate personal details the disclosure of which would
be likely to cause embarrassment”). Indeed, the Court notes that DOJ did exercise discretion, and
did release information related to deceased prisoners, where the agency concluded that no
substantial privacy interests were implicated. 10 Finally, the Court agrees with DOJ that the
10
While DOJ posits that “concerns regarding their personal privacy ended at the time of
their death,” Defs.’ Mot. Summ. J. at 15, this is an oversimplification. Although “the deceased by
definition cannot personally suffer the privacy-related injuries that may plague the living,” it is
not the case that “under FOIA deceased persons have no privacy interest in nondisclosure of
their identities.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 33–34 (D.C. Cir. 1998), as
27
release of the redacted information would not shed significant light on the government’s
activities, because it involves personal identifying information of individuals who were neither
government employees nor individuals in BOP custody. See Defs.’ Mot. Summ. J. at 16. Mr.
Pinson’s conclusory statement that “[t]he public interest . . . outweighs the private interests of
those who seek to . . . violate our nation’s laws,” see Pl.’s Resp. at 5, constitutes “[m]ere
speculation about hypothetical public benefits[, which] cannot outweigh a demonstrably
significant invasion of privacy,” Ray, 502 U.S. at 179. DOJ has demonstrated that it conducted
the careful balancing of the relevant private and public interests that FOIA mandates, and the
Court agrees that the redactions were proper under Exemption 6. 11
amended (Mar. 3, 1999) (internal quotation marks and citation omitted). Proper analysis of the
privacy interests at stake in a FOIA disclosure must “account for the fact that certain reputational
interests and family-related privacy expectations survive death.” Id. at 33. Because DOJ has
released this information without objection, however, the Court will not determine whether such
release was required by FOIA. In fact, unlike with the deceased inmates, DOJ did withhold the
names of certain family members whom an inmate killed in at least one instance, despite the fact
that those family members are now deceased. See Rodgers Decl. ¶ 13 (noting that one
memorandum discussed an inmate who escaped “and took the lives of two family members and
injured another,” and that “various references to the family members have been redacted”). And
the Court agrees that in the case of deceased family members, the substantial privacy interests
outweigh public interest in the information.
11
The fact that DOJ released the bulk of the information in the memoranda while
redacting personal information demonstrates that DOJ made the required efforts to segregate and
release as much non-exempt information as possible under FOIA.
DOJ also properly invokes Exemption 7(C) to justify the redactions in the memoranda
related to inmate deaths. The redacted information meets the threshold requirement for
Exemption 7 because it was “compiled for law enforcement purposes.” See 5 U.S.C. § 552(b)(7).
Specifically, BOP’s activity is “related to the enforcement of federal laws,” Pratt, 673 F.2d at
420–21, because it relates to BOP’s response to violations of federal laws and the related
investigations. Additionally, there is a “nexus” between the activity and BOP’s law enforcement
duties, because BOP punishes crime and functions to protect inmates, staff, and the community.
See id. at 421; Swope, 439 F. Supp. 2d at 6. The balancing test under Exemption 7(C) supports
the redactions for the reasons discussed with regard to Exemption 6.
28
2. Unsuccessful Nominee for BOP Director
DOJ also withheld from disclosure portions of the “Lappin Memo” and an attachment, in
which Harley Lappin, the former BOP Director, advanced for consideration the names of two
BOP officials to serve as the next Director upon his retirement. See Defs.’ Mot. Summ. J. at 17;
Rodgers Decl. ¶ 14 & Ex. C. The memorandum contained a description of the professional
qualifications of two individuals and their official biographies. The candidates’ respective
curricula vitae were attached. See Defs.’ Mot. Summ. J. at 17; Rodgers Decl. ¶ 14 & Ex. C. DOJ
disclosed the information related to the successful nominee, Director Samuels (redacting only his
home address), but withheld the unsuccessful nominee’s name, Mr. Lappin’s recommendation of
that individual, and his or her curriculum vitae. See Defs.’ Mot. Summ. J. at 17–18. The Court
concludes that the redacted information was properly withheld under Exemptions 5 and 6.
a. Exemption 5
The redacted portion of the memorandum—which details Mr. Lappin’s description of the
second candidate he recommended as director—was properly withheld under FOIA Exemption
5. Exemption 5 covers “inter-agency or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). 12 Exemption 5 must be understood in light of FOIA’s goal to “make available to the
public a wide range of information in the Government’s control,” and therefore should “be
12
Congress recently amended FOIA, and Exemption 5 now provides that agencies may
withhold: “inter-agency or intra-agency memorandums or letters that would not be available by
law to a party other than an agency in litigation with the agency, provided that the deliberative
process privilege shall not apply to records created 25 years or more before the date on which the
records were requested.” FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 552(b)(5), 130
Stat. 538, 540 (enacted June 30, 2016) (to be codified at 5 U.S.C. § 552(b)(5)). The records Mr.
Pinson seeks were created less than twenty-five years before he submitted his requests. See
Brinkman Decl. Exs. A, N (indicating that information requested in Mr. Pinson’s FOIA claims
was explicitly limited to 2008 and afterward).
29
interpreted narrowly.” Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 66 (D.C. Cir.
1974). 13
To qualify for Exemption 5, (1) the document’s “source must be a Government agency,”
and (2) “it must fall within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). One such privilege is the deliberative
process privilege, which covers “documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks
omitted). Under this exemption, a document must be predecisional and deliberative. See
Horowitz v. Peace Corps, 428 F.3d 271, 276 (D.C. Cir. 2005). Predecisional documents are those
“‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ rather than to
support a decision already made.” Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d
1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421
U.S. 168, 184 (1975)); see also Sears, Roebuck & Co., 421 U.S. at 151.
A “deliberative” document must be “a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy matters.” Vaughn v. Rosen
13
In the context of civil litigation, the deliberative process exemption is a “qualified”
privilege that may “be overcome by a sufficient showing of need.” See In re Sealed Case, 121
F.3d 729, 737 (D.C. Cir. 1997). However, under FOIA, “[t]his characteristic of the deliberative
process privilege is not an issue . . . because the courts have held that the particular purpose for
which a FOIA plaintiff seeks information is not relevant in determining whether the FOIA
requires disclosure.” Id. at 737 n.5. Thus, it is “not sensible” to consider whether there would be
sufficient need to overcome the exemption by imagining “hypothetical litigation”; FOIA instead
indicates only that what the government would “routinely . . . disclose[] in private litigation”
does not fall within Exemption 5’s ambit. Sears, Roebuck & Co., 421 U.S. at 149 n.16 (emphasis
added) (internal quotations omitted).
30
(Vaughn II), 523 F.2d 1136, 1144 (D.C. Cir. 1975). The exemption is not limited to a narrow
class of “policies,” but includes “documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated.” Sears, Roebuck & Co., 421 U.S at 150 (emphasis added) (internal quotation marks
omitted); see also McPeek v. Ashcroft, 202 F.R.D. 332, 334 (D.D.C. 2001) (noting that
Exemption 5 covers not merely “policy” decisions but also decisions regarding other “action[s]”
by the agency). “Material is deliberative if it ‘reflects the give-and-take of the consultative
process.’” Petroleum Info Corp., 976 F.2d at 1434 (quoting Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Thus, Exemption 5 covers “subjective documents
which reflect the personal opinions of the writer rather than the policy of the agency.” Coastal
States, 617 F.2d at 866.
Material is not generally considered to be deliberative it is “purely factual” and is
“severable from the policy advice” in a document. Ryan v. Dep’t of Justice, 617 F.2d 781, 790
(D.C. Cir. 1980). However, if “the manner of selecting or presenting those facts would reveal the
deliberative process,” or “the facts are inextricably intertwined with the policy-making process,”
the exemption may cover even factual material. Id. (internal quotations omitted); see also Wolfe
v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc); Mead Data,
566 F.2d at 256 (indicating that even “purely factual material may so expose the deliberative
process within an agency” that the material is privileged under the exemption). Thus, a FOIA
requester may not “use the FOIA to discover what factual information [staff members] cited,
discarded, compared, evaluated, and analyzed to assist the [decisionmaker] in formulating his
decision,” which would constitute an “improper probing of the mental processes behind [the]
decision.” Montrose, 491 F.2d at 68; see also Playboy Enters., Inc. v. Dep’t of Justice, 677 F.2d
31931, 936 (D.C. Cir. 1982) (holding that “summaries [that] would have permitted inquiry into the
mental processes of the Administrator by revealing what materials he considered significant in
reaching a proper decision, and how he evaluated those materials” were exempt); Morley v. U.S.
CIA, 699 F. Supp. 2d 244, 255 (D.D.C. 2010), aff’d in relevant part sub nom. Morley v. CIA, 466
F. App’x 1 (D.C. Cir. 2012) (concluding that the CIA’s description of information regarding an
individual’s familial background and suitability for a security clearance constituted predecisional
deliberation because “CIA employees must be free to engage in candid and personal
deliberations regarding the ultimate grant or denial of a potential agent’s security clearance”).
The Court concludes that the redacted portion of the Lappin memo, which contained Mr.
Lappin’s recommendation of the individual who was not selected as BOP Director, was properly
withheld under Exemption 5. 14 First, the Lappin Memo is an “inter-agency . . . memorandum[]”
because its source is a Government agency, namely, BOP. See § 552(b)(5); Duffin, 636 F.2d at
713. Second, the redacted portion of the Lappin Memo falls within the ambit of the deliberative
process privilege. Because the Lappin Memo was drafted in advance of the decision regarding
whom to select as the next BOP Director, and prepared in order to provide input on this decision,
it satisfies the “predecisional” prong of the test. See Defs.’ Mot. Summ. J. at 18.
The redacted portion of the Lappin Memo was also deliberative. It contained Mr.
Lappin’s opinion about the suitability of a certain individuals to serve as his successor. Although
14
The Court does not determine whether Exemption 5 also covers the curriculum vitae of
the unsuccessful nominee attached to the Lappin Memo, because the Court holds, below, that the
curriculum vitae was properly withheld under Exemption 6. In addition, although the Court
concludes below that Mr. Samuel’s identity was properly disclosed under Exemption 6, the
Court notes that Exemption 5 may have applied to shield additional portions of the memorandum
that discuss Mr. Lappin’s assessment of Mr. Samuels (although the memo appears to include
little, if any, deliberative information specific to Mr. Samuels). Because DOJ has voluntarily
disclosed the balance of the memorandum, however, the Court does not discuss what else might
have been properly withheld under Exemption 5.
32
the memorandum set forth and represented a series of facts, the thrust of the memorandum was
to provide a recommendation on the basis of those facts. The very inclusion of particular factual
statements rather than others reveals the deliberations and mental processes sought to be
protected. Thus, requiring the agency to disclose the redacted portion of the Lappin Memo would
improperly subject the mental processes of the decisionmaker to public scrutiny. 15 Furthermore,
permitting the information to be withheld promotes Exemption 5’s policy goal: to allow agency
officials to candidly share their assessments. Compelling disclosure of this type of information
would likely cause agency officials to be more guarded in their recommendations. 16
b. Exemption 6
Withholding the portion of the Lappin Memo discussing the unsuccessful nominee is also
justified under Exemption 6, as is withholding the candidate’s attached curriculum vitae. First,
15
The Court also finds that DOJ has met its obligation regarding segregability. The Court
recognizes that, in general, “biographical information of a routine, nonprivate nature, such as
would commonly appear in Who’s Who or similar reference works, is not inextricably
intertwined with the protected deliberative process of making recommendations,” and is thus not
protected by Exemption 5. Ryan, 617 F.2d at 791. Thus, it is possible that some purely factual
information (e.g. the name of the individual recommended) could be segregated and released
without running afoul of Exemption 5. However, to the extent that any information is purely
factual and does not reflect the thought processes of agency officials, it is for that reason an
unwarranted invasion of privacy because it discloses only personal information about the
individual and does not provide any meaningful insight into what the government is up to. Thus,
any portion of the redacted information that would be segregable is covered by Exemption 6.
16
Mr. Pinson objects primarily to the form of DOJ’s invocation of Exemption 5, arguing
that DOJ improperly failed to produce a Vaughn index. See Pl.’s Resp. at 5; see generally
Vaughn v. Rosen (Vaughn I), 484 F.2d 820, 827 (D.C. Cir. 1973). Putting aside the propriety of
creating a Vaughn index in these circumstances, to deny summary judgment on this technicality
here would “exalt[] form over substance.” See Goland v. CIA, 607 F.2d 339, 351 (D.C. Cir.
1978). DOJ has “[made] clear which exemptions are claimed for the deletions . . . and
explain[ed] why the deleted material fits within the exemptions claimed,” so the purpose of
requiring a Vaughn index has been served, even if DOJ “did not tender its analysis in the form of
an ‘index.’” Id. at 351–52. The Court further notes that the redacted portion of the Lappin Memo
constitutes only a single paragraph, and DOJ has provided the Court with a sufficient description
of the redacted information to allow the Court to make a decision regarding the exemption’s
applicability.
33
the information withheld is contained in a “similar” file covered by Exemption 6 because it
“applies to a particular individual” and is found in Government records. See Wash. Post Co., 456
U.S. at 602. Second, disclosure would constitute a clearly unwarranted invasion of personal
privacy. A substantial privacy interest is implicated in this case, because the Lappin Memo
contains information about the individual’s name and employment history. See Associated Press,
549 F.3d at 65; Core, 730 F.2d at 948. The Court agrees with DOJ’s assessment that the
individual “has a considerable privacy interest” in avoiding having his or her non-selection
disclosed to the public, a disclosure which would likely cause embarrassment. Defs.’ Mot.
Summ. J. at 17; see Ripskis, 746 F.2d at 3. Mr. Pinson implies that the individual’s privacy
interests are decreased because he or she was “seek[ing] to lead our nation’s governmental
bodies.” Pl.’s Resp. at 5. However, as DOJ correctly notes, the fact that Mr. Lappin identified
this individual as an appropriate candidate does not imply that he or she affirmatively sought
public office or bid to run BOP. See DOJ’s Reply at 4. Moreover, the fact that an individual
holds a governmental position or a public office does not necessarily render FOIA’s privacy
protections inapplicable to him or her. See U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510
U.S. 487, 494–95 (1994) (applying Exemption 6 to protect privacy interests of federal agency
employees). Thus, the Court finds that a substantial privacy interest would be implicated by the
disclosure of the information.
Next, the Court must weigh the individual’s privacy interest in nondisclosure against the
public interest in disclosure of information that “sheds light on an agency’s performance of its
statutory duties.” See Multi Ag Media, 515 F.3d at 1231 (quoting Reporters Comm., 489 U.S. at
773). Mr. Pinson alleges that “the public has an interest in knowing the identity of those who
seek public office, to lead a $7 [b]illion annual budget overseeing operation of [a] hundred plus
34
facilities.” Pl.’s Resp. at 3 (discussing Exemption 7(C), which requires a balancing test similar to
that used here). DOJ concedes that the public interest in understanding the “competence and
qualifications of a high-level law enforcement official” would generally outweigh a successful
nominee’s privacy interest in the information, but contends that “the public interest in a failed
candidate is less significant because that candidate’s qualifications do not assist the public in
evaluat[ing] the selectee’s qualifications.” See Defs.’ Mot. Summ. J. at 17.
The Court agrees. Although the public has an interest in evaluating the competence of
individuals who are appointed as government employees, in the case of individuals who are not
ultimately selected, the privacy interest outweighs public interest in disclosure. See Core, 730
F.2d at 949 (concluding that “[d]isclosure of the qualifications of people who were not appointed
[to a position as Systems Architect for the United States Postal Service] is unnecessary for the
public to evaluate the competence of people who were appointed,” and thus that “the public
interest in learning the qualifications of people who were not selected to conduct the public’s
business is slight”); see also Commodity News Serv., Inc. v. Farm Credit Admin., No. 88-3146
HHG, 1989 WL 910244, at *3 (D.D.C. July 31, 1989) (stating that “public interest in knowing
whether the . . . most qualified applicant [was selected is] satisfied by release of the successful
applicant’s employment information”). 17
In terms of segregability, the Court finds that no non-exempt information from the
redacted portion of the Lappin Memo or the curriculum vitae can be segregated and released. As
DOJ notes, “the character of official biographies and curriculum [sic] vitae frustrates efforts to
17
The public also has an interest in nondisclosure of the information. Although disclosing
information regarding evaluation of public officials could further the public good by promoting
“efficient and evenhanded personnel policies,” it could also cause harm to the public, by
hindering the performance of BOP, causing “unhealthy comparisons” and “discord in the work
place,” as well as “chill[ed] candor” in evaluating employees. Ripskis, 746 F.2d at 3.
35
segregate releasable information.” Defs.’ Mot. Summ. J. at 18. Thus, “it would be impossible to
release any substantial amount of information without enabling a viewer to identify the
individual.” Id. Indeed, when a FOIA requester asks for release of documents containing
information that is “unique and specific” to the individuals referenced, their “identities may
become apparent from the specific details set forth in these documents.” Rashid v. U.S. Dep’t of
Justice, No. 99-2461 (GK), 2001 U.S. Dist. LEXIS 26353, at *19 (D.D.C. June 11, 2001). The
Court agrees with DOJ’s conclusion that no segregable information could be released without
identifying the individual. Moreover, to the extent that purely evaluative material that could not
be linked to the individual is contained in the document, it would be exempt under Exemption
5. 18
3. Director Samuels’s Home Address
DOJ also redacted the home address listed on BOP Director Charles Samuels’s
curriculum vitae, attached to the Lappin Memo. See Defs.’ Mot. Summ. J. at 19; Rodgers Decl. ¶
15 & Ex. C. DOJ justifies this redaction on the basis of Exemptions 6, 7(C), and 7(F). Mr. Pinson
does not contest this redaction, see generally Pl.’s Resp., and in any event Mr. Samuels’s home
address was properly withheld under Exemption 6, see, e.g., FLRA, 510 U.S. at 488 (holding that
18
DOJ also relies on Exemption 7(C) for withholding the portions of the Lappin Memo
related to the unsuccessful nominee. While Exemption 7(C) employs a balancing test similar to
that used when evaluating Exemption 6, Exemption 7 also requires a threshold determination that
the information was “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). DOJ has
not shown that the threshold requirement has been met, and thus Exemption 7 may not be used to
justify the withholding. Specifically, DOJ has not shown that the information in the Lappin
Memo was compiled for law enforcement purposes because it has introduced no evidence that it
was “based on a legitimate concern that federal laws have been or may be violated” or in any
way related to an enforcement proceeding rather than to routine discussions of the agency’s
employment and internal management decisions. See King, 830 F.2d at 229.
36
home addresses “would not appreciably further the citizens’ right to be informed about what
their Government is up to” and are thus covered by Exemption 6).
V. CONCLUSION
For the foregoing reasons, DOJ’s justification for BOP’s withholding from the OIP
documents (ECF No. 239), construed as a separate motion for partial summary judgment, is
GRANTED IN PART and DENIED IN PART. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: July 29, 2016 RUDOLPH CONTRERAS
United States District Judge
37