Pinson v. United States Department of Justice , 243 F. Supp. 3d 74 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON :
:
Plaintiff, :
: Civil Action No.: 12-1872 (RC)
v. :
: Re Document No.: 318
UNITED STATES DEPARTMENT OF :
JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
While in prison, pro se plaintiff Jeremy Pinson filed multiple Freedom of Information
Act (“FOIA”) requests seeking records from various components of the U.S. Department of
Justice (“DOJ”). In addition to releasing a number of records to Pinson, the DOJ asked Pinson to
clarify some of her1 records requests, told her that it could not find records responsive to some of
her requests, and informed her that some of the records she sought were exempt from disclosure
by law. Pinson filed a complaint challenging some of these determinations and alleging that the
DOJ improperly withheld records.
At issue in this Opinion is the propriety of the Bureau of Prisons’ (“BOP”) withholdings
from two memoranda that it released in part. Each memorandum documents the Special
Administrative Measures (“SAMs”) imposed on an individual in BOP custody. The DOJ moves
for summary judgment as to the propriety of the withholdings, arguing that the BOP correctly
1
Pinson identifies using feminine pronouns. The government and this Court follow suit.
See Defs.’ Mot. Dismiss or, Alt., Renewed Mot. Summ. J. at 2 n.1, ECF No. 287. The Court’s
use of feminine pronouns is not intended to reflect any substantive or legal characterization.
applied FOIA Exemptions 6, 7(C), 7(E), and 7(F). See Defs.’ Suppl. MSJ, ECF No. 318. For the
reasons set forth below, the Court grants the DOJ’s motion for summary judgment.
I. FACTUAL BACKGROUND
This Court has already explained the factual background in detail in a prior Memorandum
Opinion. See Mem. Op., Pinson v. U.S. Dep’t of Justice, 2016 WL 29245, at *1–5 (D.D.C. Jan.
4, 2016), ECF No. 259. The Court assumes familiarity with its prior opinion and confines its
discussion to the facts most relevant to the present motion.
In 2010, Pinson submitted a FOIA request to the DOJ’s Office of Information Policy
(“OIP”)2 seeking “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 (Brinkmann
Decl.) ¶ 4 & Ex. A, ECF No. 131-3. The records responsive to this request included two SAMs
memoranda—one from 2009 and one from 2010.
SAMs are special conditions of confinement implemented by the Attorney General with
regards to a specific inmate as “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 the
individual’s access to the mail, media, telephone, and visitors. See Defs.’ Mot. Summ. J. at 11–
12, ECF No. 239 (citing Decl. Ronald L. Rodgers ¶ 12(a), ECF No. 239-1). The SAMs
memoranda at issue here 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 individuals’ continued threat to public safety, and the terms of the SAMs themselves. See
2
OIP assigned this request FOIA tracking number AG-10/R1351. See Brinkmann Decl.
¶ 5 & Ex. B, ECF No. 131-3.
2
Defs.’ Mot. Summ. J. at 11–12, ECF No. 239. The 2009 SAMs memorandum concerned a
convicted prisoner, and the 2010 SAMs memorandum concerned a pretrial detainee. 4th
Christenson Decl. ¶¶ 6–7.
In its initial response to Pinson, the DOJ withheld, inter alia, the entirety of both
memoranda. See Defs.’ Mot. Summ. J. at 11, ECF No. 239. However, after this Court denied the
DOJ summary judgment3 on its withholdings, the BOP re-processed Pinson’s request and
released both SAMs memoranda in part, with some redactions. 4th Christenson Decl. ¶¶ 4–5, 49
& Ex. E; see also Mem. Op., Pinson, 2016 WL 4074130, at *4, ECF No. 306. The BOP now
claims that it has properly withheld portions of the SAMs memoranda pursuant to FOIA
Exemptions 6, 7(C), 7(E), and 7(F). See Letter to Pinson, ECF No. 318-2. The DOJ again moves
for summary judgment on the grounds that it has properly applied FOIA exemptions and released
all segregable material. Defs.’ Suppl. MSJ at 1–2.
II. LEGAL STANDARD
“[D]isclosure, not secrecy, is the dominant objective of [FOIA].” Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361 (1976). “Consistent with this purpose, agencies may withhold only
those documents or portions thereof that fall under one of nine delineated statutory exemptions.”
Elliot v. USDA, 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C. § 552(b)). “[T]he
exemptions are ‘explicitly exclusive.’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
(1989) (quoting FAA Adm’r v. Robertson, 422 U.S. 255, 262 (1975)).
It is the agency’s burden to show that withheld material falls within one of these
exemptions. See 5 U.S.C. § 552(a)(4)(B); Elliott, 596 F.3d at 845. “The [C]ourt . . . ‘impose[s] a
3
This Court has also previously held that OIP’s search for records responsive to this
request was adequate. Mem. Op. at 10–12, Pinson v. U.S. Dep’t of Justice, 160 F. Supp. 3d 285,
293 (D.D.C. 2016), ECF No. 268.
3
substantial burden on an agency seeking to avoid disclosure’ through the FOIA exemptions.”
Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Vaughn v. Rosen, 484 F.2d 820,
828 (D.C. Cir. 1973)) (alteration in original). Accordingly, disclosure exemptions are “narrowly
construed,” and “‘conclusory and generalized allegations of exemptions’ are unacceptable.” See
Morley, 508 F.3d at 1114–15 (quoting Founding Church of Scientology of Wash., D. C., Inc. v.
Nat’l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)). However, courts generally respect the
factual reasoning of agencies, and “[u]ltimately[] 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)). Thus, “a
reviewing court should ‘respect the expertise of an agency’ and not ‘overstep the proper limits of
the judicial role in FOIA review.’” Pinson v. U.S. Dep’t of Justice, 160 F. Supp. 3d 285, 293
(D.D.C. 2016) (quoting Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C.
Cir. 1979)).
“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).
Even when the requester does not explicitly challenge a withholding, the court must
independently consider if the agency has shown that the undisputed material facts entitle it to
summary judgment. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)
4
(“‘The nonmoving party’s failure to oppose summary judgment does not shift [the moving
party’s] burden.’ The District Court ‘must always determine for itself whether the record and any
undisputed material facts justify granting summary judgment.’” (quoting Grimes v. District of
Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring))). Even though Pinson does
not respond to some portions of the DOJ’s motion for summary judgment, the court cannot grant
the motion on the basis that it was conceded. See id. at 505 (“Under the Federal Rules of Civil
Procedure, a motion for summary judgment cannot be ‘conceded’ for want of opposition.”
(citing Fed. R. Civ. P. 56(e)(3))).
III. ANALYSIS
The DOJ argues that it is entitled to summary judgment because it properly applied FOIA
Exemptions 6, 7(C), 7(E), and 7(F) to withhold portions of both SAMs memoranda. See
generally Defs.’ Suppl. MSJ, ECF No. 318; 4th Christenson Decl. Because all of the portions of
the records withheld under Exemptions 6 or 7(F) were also withheld under Exemptions 7(C) or
7(E),4 and the Court concludes, infra, that Exemptions 7(C) and 7(E) were properly applied, the
Court does not reach the arguments concerning Exemption 6 or Exemption 7(F).5
4
See Defs.’ Suppl. MSJ at 8, ECF No. 318 (“The BOP applied Exemption 7(C) to
withhold the same information as Exemption 6 . . .”); Defs.’ Suppl. MSJ at 11 (“The BOP . . .
applied Exemption 7(F) to a subset of the information withheld under Exemptions 6 and 7(C)
. . .”).
5
Because the Court does not reach the issues related to Exemption 7(F), it need not
address Pinson’s contention that the BOP is precluded from raising Exemption 7(F) for the first
time in this proceeding. See Pl.’s Resp. at 3, ECF No. 328. However, the Court notes that
agencies may claim new exemptions at either the administrative or district court level. See
Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 269 n.6 (D.D.C. 2016) (“[T]he D.C.
Circuit has long implied that an agency may invoke a FOIA exemption for the first time before
the district court—but not ‘for the first time in the appellate court.’” (quoting Jordan v. U.S.
Dep’t of Justice, 591 F.2d 753, 779 (D.C. Cir. 1978) (en banc))).
5
A. Exemption 7
The DOJ asserts that the BOP properly invoked Exemptions 7(C) and 7(E) to redact or
withhold certain portions of the SAMs memoranda. See Defs.’ Suppl. MSJ at 2; 4th Christenson
Decl. ¶¶ 9–37. As an initial matter, 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). This Court has previously considered the issue at length and
determined that the SAMs memoranda meet this threshold requirement because they reflect
BOP’s efforts to deal with potential security risks to the public, inmates, and staff and are
rationally related to BOP’s law enforcement duties. Mem. Op. at 12–14, Pinson v. U.S. Dep’t of
Justice, 2016 WL 4074130, at *7 (D.D.C. July 29, 2016), ECF No. 306. Next, the Court
evaluates each invoked exemption in turn.
1. Exemption 7(E)
The DOJ argues that it properly applied Exemption 7(E) to justify withholding a detailed
description of the inmate’s offense conduct—intertwined with a description of the law
enforcement investigation—from the 2010 SAMs memorandum concerning a pretrial inmate.
Pinson objects to these withholdings in part.
Exemption 7(E) allows redaction of information that “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
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). It 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,”
6
Smith v. Bureau of Alcohol, Tobacco & Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997). The bar
is “relatively low . . . for the agency to justify withholding” information under Exemption 7(E).
Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011).
The DOJ applied Exemption 7(E) to withhold a “detailed description of the underlying
offense conduct related to the terrorism charges on pages 1 to 3 [of the 2010 memorandum]”
because “[i]nterspersed throughout the discussion . . . [i]s discussion of how law enforcement
learned of the offense conduct and steps they took to further investigate the alleged illegal
activity.” 4th Christenson Decl. ¶ 27. The description of the investigation included the “types of
chemicals revealed in residue testing, locations identified for searches, items seized during the
searches, and individuals identified for interviews.” 4th Christenson Decl. ¶ 27. Pinson stipulates
that “the issue regarding chemical agents” is appropriately withheld under Exemption 7(E), Pl.’s
Resp. at 3, ECF No. 328, and this Court thus holds that BOP’s chemical agent-related
withholdings were proper.
Turning to the other withholdings, although Pinson objects only to the withholding of the
“names and locations of searches,” Pl.’s Resp. at 3. , the Court will independently consider if the
“record and any undisputed material facts justify granting summary judgment,” Winston &
Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (quoting Grimes v. District of
Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)). The DOJ argues that
release of information concerning “locations identified for searches, items seized during the
searches, and individuals identified for interviews,” could incidentally divulge which search
locations or witnesses law enforcement is interested in during “each point [in] an investigation,
and what property items are of interest for certain types of investigations[,] . . . [which] would
enable targets of investigations to hide evidence at different locations that would not be
7
identified for search or know when to pressure witnesses to not cooperate during interviews.” 4th
Christenson Decl. ¶ 29; Defs.’ Suppl. MSJ at 10.
According to Pinson, the names and locations of searches are already exposed to the
public through, for example, news coverage of law enforcement investigations. Pl.’s Resp. at 3.
However, as the DOJ notes, such police news conferences are “rare” and “the fact that a police
department may occasionally [give such a press conference] does not suggest that they would
welcome film crews to follow them throughout their investigations.” Defs.’ Reply at 2, ECF No.
330. Indeed, a key feature of such a news conference is that the police department retains
strategic control of which locations and facts are presented to the public, yet such control would
be lacking if general investigative facts were revealed through FOIA requests.
Given Exemption 7(E)’s “relatively low bar,” see Blackwell, 646 F.3d at 42, the Court
agrees that the law enforcement techniques withheld here are covered under Exemption 7(E).
The DOJ has provided specific details as to the types of techniques and procedures that would
pose a risk of circumvention of the law and that surpass the “conclusory and generalized
allegations of exemptions,” Morley, 508 F.3d at 1114–15 (quoting Founding Church of
Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)), that
this Court previously declined to accept. Pinson, 2016 WL 4074130, at *8, ECF No. 306. The
Court thus grants the DOJ summary judgment as to its use of Exemption 7(E).
2. Exemption 7(C)
The DOJ argues that it properly invoked Exemption 7(C) to withhold information from
both SAMs memoranda. Although Pinson challenges some of these withholdings, the Court
agrees that the balance of private and public interests permits the DOJ to withhold the
information at issue.
8
Under Exemption 7(C), an agency need not release “records or information compiled for
law enforcement purposes . . . to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute an unwarranted invasion of personal
privacy.”6 5 U.S.C. § 552(b)(7)(C). In applying Exemption 7(C), a court first determines if there
is a privacy interest in the information to be disclosed, ACLU v. U.S. Dep’t of Justice, 655 F.3d
1, 6 (D.C. Cir. 2011), and then balances the individual’s privacy interest against the public
interest, considering only the public interest “that focuses on ‘the citizens’ right to be informed
about what their government is up to,’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282
(D.C. Cir. 1992) (quoting U.S. Dep’t of Justice v. Reporters Comm., 489 U.S. 749, 773 (1989)).
It is a FOIA requester’s obligation to articulate a public interest sufficient to outweigh the
individuals’ privacy interest, and the public interest must be significant. Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
First, the BOP withheld the names of the two individuals subject to the SAMs, and the
names of the pretrial inmate’s co-defendants and third-party individuals from the 2010 SAMs
memorandum. 4th Christenson Decl. ¶¶ 13, 22. The individuals have a privacy interest in not
being known to be the subject of SAMs, or to be associated with the SAMs. This Court has
previously held that the DOJ properly applied Exemption 7(C) to withhold the names of the
6
Exemption 7(C) is similar to Exemption 6, as both protect private information, but
“Exemption 7(C) is more protective of privacy than Exemption 6 and thus establishes a lower
bar for withholding material.” Prison Legal News v. Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir.
2015) (quoting ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011)); see also U.S.
Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994) (“Exemptions 7(C)
and 6 differ in the magnitude of the public interest that is required to override the respective
privacy interests protected by the exemptions.”). Given the broad interpretation of Exemption 6,
see Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015), Exemption 7(C) calls
for a less demanding showing of privacy interest. Id. at 1146 n.5.
9
individuals subject to the SAMs, Pinson, 2016 WL 4074130, at *7, ECF No. 306, and
reaffirms that conclusion here.
As to the withholding of the names of the co-defendants and other individuals, “the D.C.
Circuit has held that the 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 Pinson, 2016 WL 4074130, at *7, ECF No. 306 (quoting SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1206 (D.D.C. 1991)). Because Pinson does not allege illegal activity by the
BOP, much less present compelling evidence of the same, the names of the co-defendants and
third-parties are categorically exempt from disclosure. See Reporters Committee, 489 U.S. at
774–75 (“[I]n none of our cases construing the FOIA have we found it appropriate to order a
Government agency to honor a FOIA request for information about a particular private citizen.”);
SafeCard, 926 F.2d at 1206 (holding 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”); Pinson, 2016 WL 4074130, at *7 (holding that the names of third-
party individuals within memoranda were categorically exempt from disclosure absent
compelling evidence of illegal activity by the BOP).
Pinson argues both that the privacy right of the individuals is lower because these
particular individuals are “murderers and terrorists” subject to “public prosecution” and that
“[t]he public has an enormous interest in all information concerning individuals engaged in
conspiracies to murder our citizens.” Pl.’s Resp. at 1–2, ECF No. 328. However, as this Court
has previously noted, “individuals are not precluded from retaining a privacy interest merely on
10
the basis of their public prosecutions.” Pinson, 2016 WL 4074130, at *5, ECF No. 306. The
D.C. Circuit has likewise concluded that, although “the disclosure of convictions and public
pleas is at the lower end of the privacy spectrum[,] . . . [t]his is not to say that a convicted
defendant has no privacy interest in the facts of his conviction.” ACLU, 655 F.3d at 7; see also
Harrison v. Exec. Office for U.S. Attorneys, 377 F. Supp. 2d 141, 148 (D.D.C. 2005) (“The fact
that there might have been prior disclosure of personal information does not eliminate the
privacy interest in avoiding further disclosure by the government.”). Inclusion of an individual’s
name in the SAMs memoranda would trigger greater concerns than revealing the name of a
convicted individual, because association with the SAMs can be embarrassing and stigmatizing
and the context would identify the person as not only having been convicted (or held pretrial),
but also thought to be so dangerous that he or she required special security measures that are
applied to an extremely small portion of the prison population. See id. Furthermore, the public
interest that Pinson articulates is vague and bears little connection to shedding light on what the
government is up to. The information withheld concerns the individuals whom Pinson asserts are
engaged in conspiracies, not the BOP. The Court therefore concludes, in keeping with the D.C.
Circuit’s categorical rule, that Exemption 7(C) was properly applied to withhold the names of the
subjects of the SAMs memoranda and other individuals.
The DOJ also invoked Exemption 7(C) to withhold (1) from the 2010 SAMs
memorandum7 concerning a pretrial inmate, “information regarding the pretrial proceedings,”
7
The BOP also applied Exemption 7(C) to justify withholding the same description of
underlying offense conduct and investigation withheld under Exemption 7(E). See Defs.’ Suppl.
MSJ at 9, ECF No. 318 (“The BOP . . . applied Exemption 7(E) to withhold a subset of the
information withheld under Exemptions 6 and 7(C), i.e., the detailed description of the
underlying offense conduct related to the terrorism charges . . .”). Because the Court concludes
that this information was properly withheld under Exemption 7(E), supra, it does not consider
whether Exemption 7(C) would also apply.
11
“where the pretrial inmate and his co-defendants were housed,” and their correctional
management, 4th Christenson Decl. ¶¶ 13, 22; (2) from the 2009 SAMs memorandum
concerning a convicted inmate, details about the criminal case including “the procedural history
of the case, offense conduct, [the individual’s] sentence, . . . charges on which the inmate was
acquitted,” and “where the sentenced inmate was housed and observations about him,” 4th
Christenson Decl. ¶ 21; and (3) from both SAMs memoranda, the identity of the prosecuting
U.S. Attorney’s Office, 4th Christenson Decl. ¶ 15. See Defs.’ Suppl. MSJ at 4–6, 8.
Given that the individual’s names are withheld, other information relating to those
individuals implicates a privacy interest to the extent that it could be used to identify the
individuals.8 If more information is released, it is more likely that a particular inmate could be
identified as the subject of the SAMs. As discussed previously, even convicted persons9 still
retain a privacy interest under FOIA. The DOJ has thus established that the withheld information
implicates privacy interests of the inmates subject to the SAMs, their co-defendants, and third-
party individuals. As the DOJ notes, the withheld material is “sufficiently distinctive” to identify
individuals because only a small number of inmates are subject to SAMS and most are notorious.
See 4th Christenson Decl. ¶ 23. In fact, when assessing the portions of the SAMs memoranda
subject to withholding, the DOJ “conducted an internet search using the details of the pretrial
8
It is well established that the privacy interests protected by Exemptions 6 and 7(C)
apply broadly to information beyond a person’s name. See U.S. Dep’t of State v. Wash. Post Co.,
456 U.S. 595, 600 (1982) (discussing Exemption 6). See also N.Y. Times Co. v. NASA, 920 F.2d
1002, 1005 (D.C. Cir. 1992) (approving an agency’s withholding of a tape recording under
Exemption 6, reasoning that “disclosure . . . would reveal the sound and inflection of the crew’s
voices,” and thus “contain[ed] personal information”). All information that “applies to a
particular individual” falls within the ambit of Exemption 6, Wash. Post Co., 456 U.S. at 602,
and thus, within Exemption 7(C), see Samuels, 787 F.3d at 1146 n.5.
9
The 2010 SAMs memorandum dealt with a pretrial inmate, and thus the individual had
not been convicted at the time the record was created.
12
inmate’s criminal activity . . . [and] [t]he first result from the search identified the pretrial inmate
and his codefendants.” 4th Christenson Decl. ¶ 23.
Pinson’s only articulated public interest, again, involves the general right of the public to
know information about “Murderers and Terrorists.” Pl.’s Resp. at 2. This vague explanation,
which does not in any way implicate the government’s actions or what the government is up to,
does not meet the burden of showing a substantial public interest in the withheld information.
Furthermore, “there is a vast difference between public records that might be found after a
diligent search of courthouse files, county archives, and local police stations . . . and a
computerized summary” of that information. DOJ v. Reporters Comm. for Freedom of Press,
489 U.S. 749, 764 (1989). If, in fact, the information Pinson seeks is freely available to the
public as she implies,10 “there would be no reason to invoke the FOIA to obtain access to the
information.” Id.
The Court thus proceeds to balance the private interest in privacy and the public interest
in disclosure. Upon consideration of Pinson’s articulated public interest and its own independent
evaluation, the Court concludes that the public interest in the disclosure here is likely very small.
The disclosed portions of the SAMs memoranda reveal considerable information about the
operation of the SAMs program. The incremental value of revealing the identity of the affected
individuals—either directly or indirectly through identifiable information—would provide only a
small benefit to the public interest. Cf. Davis, 968 F.2d at 1282 (holding that “even if a particular
privacy interest is minor, nondisclosure remains justified where . . . the public interest in
10
Nor does Pinson meet the stringent requirements of showing that there has been a prior
disclosure, because Pinson has not “point[ed] to specific information in the public domain that
appears to duplicate that being withheld.” Black v. U.S. Dep’t of Justice, 69 F. Supp. 3d 26, 35
(D.D.C. 2014) (quoting Afshar v. U.S. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)).
13
disclosure is virtually nonexistent”). This conclusion is buttressed by reference to the text of
Pinson’s FOIA request, which sought “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.” Brinkmann Decl. ¶ 4,
ECF No. 131-1. This request appears to seek information on the types of communications which
occurred between the Attorney General and the Director, not on the particular types of inmates
subject to SAMs or, indeed, the SAMs process at all. Revealing most of the SAMs memoranda,
with redactions, meets this public interest in the communications. The Court thus finds that the
privacy interest implicated in the withheld information outweighs any public interest in knowing
what the government is up to. This result is in accord with this Court’s previous decision
concerning another of Pinson’s FOIA requests that information about the correctional
management of inmates is properly withheld under Exemption 7(C). Mem. Op. at 39–42, Pinson
v. Dep’t of Justice, No. 12-1872, 2017 WL 663523, at *17–18 (D.D.C. Feb. 17, 2017), ECF No.
357; see also Human Rights Watch v. Dep’t of Justice Fed. Bureau of Prisons, No. 13-7360,
2015 WL 5459713, at *10 (S.D.N.Y. Sept. 16, 2015), (approving several of the BOP’s redactions
from SAMs memoranda because “‘the incremental value of the specific information being
withheld.’ . . . [was] of little value to the public. And other redacted information . . . would make
identification of the inmate in the SAM memo substantially more likely by revealing information
specific to the inmate. . . . ‘Although under this rationale the public interest might be served, the
speculative nature of the result is insufficient to outweigh the [inmates’] privacy interest in
nondisclosure.’” (first quoting Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir.
2003), then quoting Assoc. Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009)),
14
reconsidered in other part, 2016 WL 3541549 (S.D.N.Y. June 23, 2016).11 The Court thus grants
the BOP summary judgment as to its use of Exemption 7(C).
B. Segregability
FOIA requires that any reasonably segregable portion of a record shall be released, unless
the non-exempt portions are inextricably intertwined with exempt portions. See 5 U.S.C.
§ 552(b); see also Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.
2002). “Agencies 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). In order to demonstrate that all reasonably segregable material has been released, the
agency must provide a “detailed justification” for its non-segregability. Mead Data Cent., Inc. v.
U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). However, the agency is not
required to provide so much detail that the exempt material would be effectively disclosed. Id.
Although Pinson mentions segregability in her reply, Pl.’s Resp. at 2, her arguments
appear addressed toward the applicability of each exemption. The DOJ has provided Pinson with
a comprehensive declaration,12 describing each withholding and the exemption justifying that
withholding. See generally 4th Christenson Decl. Ms. Christenson attests to having personally
11
Although the court in Human Rights Watch found that it was appropriate to release the
identity of the particular U.S. Attorney’s Office involved in each SAMs memorandum, it did so
on a record in which the requester had “described a specific public interest in identifying patterns
in the way SAMs are requested by certain U.S. Attorneys’ Offices.” Human Rights Watch, No.
13-7360, 2015 WL 5459713, at *11. Here, Pinson does not describe any public interest in
disclosing the particular U.S. Attorney’s Office—nor does the subject of Pinson’s initial request
suggest any such interest. Pinson has thus not met the requester’s burden to articulate the public
interest in disclosure. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004)
(“Exemption 7(C) . . . requires the person requesting the information to establish . . . . that the
public interest sought to be advanced is a significant one, . . . [and] the information is likely to
advance that interest.”).
12
The DOJ did not prepare a Vaughn Index. 4th Christenson Decl. ¶ 8.
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reviewed the official files and released all non-exempt information that could be segregated. 4th
Christenson Decl. ¶ 3, 5. The detailed declaration of Ms. Christenson is sufficient to fulfill the
agency’s obligation to show with “reasonable specificity” why a document cannot be further
segregated. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578–79 (D.C. Cir. 1996).
Moreover, a review of the redacted documents clearly shows that the majority of the information
in the SAMs memoranda was disclosed and only limited redactions were made. See
Memorandum for Harley G. Lappin (Aug. 12, 2009) (the 2009 SAMs memorandum, as
released), ECF No. 318-2, Ex. B; Memorandum for Harley G. Lappin (Apr. 1, 2010) (the 2010
SAMs memorandum, as released), ECF No. 318-2, Ex. C. The Court thus finds that the DOJ has
met its burden of releasing all reasonably segregable portions.
IV. CONCLUSION
For the foregoing reasons, the DOJ’s motion for summary judgment is GRANTED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 22, 2017 RUDOLPH CONTRERAS
United States District Judge
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