Allen v. Federal Bureau of Prisons ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ISAAC KELVIN ALLEN, :
:
Plaintiff, :
:
v. : Civil Action No. 16-0708 (CKK)
:
FEDERAL BUREAU OF PRISONS, :
:
Defendant. :
MEMORANDUM OPINION AND ORDER
Isaac Kelvin Allen brings this action under the Freedom of Information Act (“FOIA”),
see 5 U.S.C. § 552, against the Federal Bureau of Prisons (“BOP”), a component of the United
States Department of Justice (“DOJ”). This matter is before the Court on Defendant’s Third
Renewed Motion for Summary Judgment, ECF No. 49, and its four supporting declarations.1
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Defendant incorporates its prior dispositive motions by reference, see Def.’s Mot. at 1 n.1, and relies on
four declarations of Viola Mack, a Paralegal Specialist at the BOP’s South Central Regional Office:
▪ Declaration of Viola Mack, ECF No. 11-2 (“First Mack Decl.”)
▪ Supplemental Declaration of Viola Mack, ECF No. 27-3 (“Supp. Mack Decl.”)
▪ Supplemental Declaration of Viola Mack in Response to Court’s Memorandum Opinion and
Order of July 11, 2017, ECF No. 39-1 (“2d Supp. Mack Decl.”)
▪ Third Supplemental Declaration of Viola Mack in Response to Court’s Memorandum Opinion
and Order of February 15, 2018, ECF No. 49-1 (“3d Supp. Mack Decl.”).
In addition, the Court considers the following documents and their attachments/exhibits:
▪ Compl., ECF No. 1
▪ Defendant’s Second Renewed Motion for Summary Judgment, ECF No. 39
▪ Request to Deny Defendant’s Second Renewed Motion for Summary Judgment, ECF No. 42
▪ Reply in Support of Defendant’s Second Renewed Motion for Summary Judgment, ECF No.
43
▪ Defendant’s Third Renewed Motion for Summary Judgment, ECF No. 49
▪ Opposition to Defendant’s Third Renewed Motion for Summary Judgment, ECF No. 51
▪ Reply in Support of Defendant’s Third Renewed Motion for Summary Judgment, ECF No. 54
1
For the reasons discussed below, the Court will grant the motion in part and deny the motion in
part without prejudice.
I. BACKGROUND
A. Plaintiff and his FOIA Request
Plaintiff was convicted in the United States District Court for the Middle District of
Florida for making false statements, see 18 U.S.C. § 1014, and aggravated identity theft, see 18
U.S.C. § 1028A(a)(1), and is serving a 198-month term of incarceration. See First Mack Decl. ¶
2. He was designated to a Federal Correction Complex (“FCC”) in Coleman, Florida from
March 2008 through February 2012. Supp. Mack Decl. ¶ 2. In February 2012, he was
transferred from FCC Coleman to the United States Penitentiary in Beaumont, Texas (“USP
Beaumont”), id. ¶ 2, and in February 2018 to the Federal Correctional Institution in Jesup,
Georgia, 3d Supp. Mack Decl. ¶ 8.
The Trust Fund Limited Inmate Computer System (“TRULINCS”) is a system through
which inmates in BOP custody “manage their contact list[s] (email[,] postal mail, telephone and
video sessions), communicate with the public via email, view financial account transactions,
print postal mailing labels, perform electronic law library research, [and] manage their finances.”
2d Supp. Mack Decl. ¶ 10; see generally Program Statement 4500.11, Trust Fund/Deposit Fund
Manual, Ch. 14 (Apr. 9, 2015). “Plaintiff’s access to the []BOP’s TRULINCS messaging system
is under a 21 year suspension[.]” Compl. ¶ 6. Plaintiff claims that he “has never been presented
an official copy of the reason” for the TRULINCS suspension, id., and by means of a FOIA
request to BOP’s Central Office in December 2015, First Mack Decl. ¶ 9, plaintiff sought a
written explanation, Compl. ¶ 10; see First Mack Decl., Attach. 2 at 1.
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B. BOP’s Search for and Release of Responsive Records
BOP Central Office staff determined that records responsive to the request, assigned
tracking number 2016-01713, most likely would be found in plaintiff’s central file, First Mack
Decl. ¶¶ 10-11, which would have been maintained at plaintiff’s then-current designated
institution, id. ¶ 10, USP Beaumont, id. ¶ 2. Accordingly, Central Office staff forwarded the
request to the South Central Regional Office (“SCRO”), id. ¶¶ 6, 9, in Grand Prairie, Texas, id. ¶
1, for processing. SCRO staff, in turn, contacted the Legal Liaison at the FCC Beaumont by
email with instructions to search plaintiff’s central file. Id. ¶ 10.
The search yielded copies of two reports totaling 11 pages. See id. ¶ 12; Supp. Mack
Decl. ¶ 5. The first was a “Special Investigative Services SIS Report (‘SIS Report’) . . .
describing the investigation of [p]laintiff’s identity theft and tax fraud scheme” that FCC
Coleman staff conducted and which concluded in July 2011. Supp. Mack Decl. ¶ 5.a. The last
page indicated that the SIS Report had four attachments: Threat Assessment Checklist, Detention
Order, Staff Memorandum, and SENTRY Data. 2d Supp. Mack Decl. ¶ 6; id., Ex. 1 at 8. None
of the SIS Report’s attachments was found in plaintiff’s central file. Id. ¶ 6. The second report
was “titled TRULINCS Restricted or Limited Access Request (‘TRULINCS Report’), from USP
Beaumont, which was generated in February – March 2012[.]” Supp. Mack Decl. ¶ 5.b. On
January 12, 2016, BOP released two pages in full, released seven pages in part, and withheld two
pages in full, First Mack Decl. ¶ 12, relying on FOIA Exemptions 7(C), 7(E) and 7(F), Supp.
Mack Decl. ¶ 6.
“Upon further consultation with BOP staff,” BOP’s declarant learned that the SIS
Report’s attachments “might . . . be located in a separate SIS file at [FCC Coleman] where
[p]laintiff [had been] confined and where the investigation took place.” 3d Supp. Mack Decl. ¶
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10. She then “directed SIS staff at FCC Coleman to search for the missing attachments . . . or
any other responsive records in that file[.]” Id. This search yielded 131 more pages “comprising
the four missing attachments to the SIS report[.]” Id. On April 13, 2018, BOP hand delivered to
plaintiff a three-page “threat assessment checklist” in full and the remaining attachments in part,
relying on FOIA Exemptions 7(C) and 7(F). See id. ¶¶ 11, 13-16.
C. Defendant’s Dispositive Motions
Defendant has filed four dispositive motions. Initially defendant moved to dismiss or for
summary judgment arguing that plaintiff had not exhausted his administrative remedies prior to
filing this action. See Def.’s Mot. to Dismiss or Alternatively for Summ. J. (ECF No. 11).
Defendant withdrew this motion, see Def.’s Notice of Withdrawal of Mot. to Dismiss (ECF No.
19), and filed a renewed summary judgment motion, see Def.’s Renewed Mot. for Summ. J.
(ECF No. 27), on December 8, 2016. Plaintiff opposed the motion, see Request to Deny Def.’s
Renewed Mot. for Summ. J. (ECF No. 29) on January 17, 2017, and on July 11, 2017, the Court
granted the motion in part and denied it in part, see Mem. Op. and Order (ECF No. 36),
concluding that BOP’s search of plaintiff’s central file for records responsive to his FOIA
request was adequate and that its explanation for withholding certain information under
Exemptions 7(C), 7(E) and 7(F) was insufficient.
Defendant’s third motion, see Def.’s Second Renewed Mot. for Summ. J. (ECF No. 39),
addressed the exemptions, and plaintiff filed his opposition on December 4, 2017, see Request to
Deny Def.’s Second Renewed Mot. for Summ. J. (ECF No. 42, “Pl.’s Opp’n to 2d Renewed
Mot.”). Regarding the SIS Report, BOP’s declarant stated:
Page 8 of the SIS Report identifies four attachments: (1) threat
assessment checklist; (2) detention order; (3) staff memorandum;
and (4) SENTRY Data. This information was withheld
inadvertently in the prior release. At the request of counsel, I
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checked with the [SCRO], where [p]laintiff’s central file was
located, and confirmed that the referenced attachments are not
contained in [p]laintiff’s central file . . . . BOP produced all of the
records responsive to Plaintiff’s request that BOP had located in its
search.
2d Supp. Mack Decl. ¶ 6 (emphasis added).2 The Court construed this statement to mean that
BOP deemed the attachments responsive to plaintiff’s FOIA request, and for reasons unknown
withheld them. Accordingly, the Court denied the motion without prejudice, and directed BOP
to explain why its obligations under the FOIA end because records it admittedly should have
released were not in plaintiff’s central file.
Defendant’s fourth motion and supporting declaration clarify that the only information
BOP inadvertently withheld was four lines of text identifying the attachments:
Attachments: Threat Assessment Checklist
Detention Order
Staff Memorandum
SENTRY Data
2d Supp. Mack Decl., Ex. 1 at 8; see Def.’s Mot. at 2-3. The attachments themselves
subsequently were located in SIS records at FCC Coleman and released in part. 3d Supp. Mack
Decl. ¶¶ 10-11.
II. DISCUSSION
A. Adequacy of BOP’s Searches
Now that BOP “broadened its search for the missing attachments to the SIS Report,”
Def.’s Mot. at 3, defendant moves “for summary judgment on the adequacy of its expanded
search,” id. at 4. Plaintiff “takes serious issue with defendant’s supplemental search, and the 131
pages of responsive records released.” Opp’n to Def.’s Third Renewed Mot. for Summ. J. (ECF
2
According to the declarant, an “SIS Lieutenant clarified that the reference to ‘staff
memorand[a]’ in attachment 3 actually referred to staff e-mails, as there were no additional staff
memorand[a] associated with the investigative report.” 3d Supp. Mack Decl. ¶ 10.
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No. 51, “Pl.’s Opp’n”) ¶ 9. He deems defendant’s recent effort “an unsolicited extensive multi-
institutional supplemental search outside of [his] central file,” id. ¶ 8, which served only to
“create[] substantial doubt as to the sufficiency of the initial search,” id. If the Court were to
grant defendant’s fourth dispositive motion, he argues, its ruling “would be the second summary
judgment imposed on this same issue,” id. ¶ 6 (emphasis in original), the adequacy pf BOP’s
search. In order that the Court avoid issuing an “improper” order, id., plaintiff “asks the Court to
vacate” its prior ruling, id. ¶ 9 (emphasis removed), and allow him “time to issue a challenge to
the supplemental release,” id., after which the Court can issue a single “final ruling on the full
proceeding of the entire search, and subsequent release,” id.
Plaintiff suggests bad faith on the part of BOP, yet he neither argues that BOP’s search of
SIS records at FCC Coleman was unreasonable nor identifies his “serious issue” with this
“supplemental search.” Based on the declarant’s explanation that records pertaining to an inmate
routinely are maintained in his central file, see First Mack Decl. ¶ 10, it is reasonable for BOP
staff to have searched the central file for records responsive to plaintiff’s FOIA request. The fact
that the attachments to the SIS Report were not found in plaintiff’s central file does not
undermine the reasonableness of the decision to search the central file initially. And the Court
does not fault BOP for having conducted a supplemental search prompted by the Court’s
mistaken impression that it had located responsive records in plaintiff’s central file and withheld
them without explanation. The Court declines plaintiff’s invitation to vacate its prior ruling, and
concludes that BOP’s supplemental search of SIS records, too, was reasonable.
Defendant accomplishes what plaintiff himself demanded – that BOP locate and release
the attachments to the SIS Report. See Pl.’s Opp’n to 2d Renewed Mot. ¶ 6; id. at 7 (demanding
release of the TRULINCS Report in its entirety). If anything, the belated release of the SIS
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Report’s attachments suggests a good faith effort to locate and release records responsive to
plaintiff’s FOIA request. See Nat’l Inst. of Military Justice v. Dep’t of Defense, 404 F. Supp. 2d
325, 333-34 (D.D.C. 2005).
B. Exemption 7
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm.
5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). BOP continues to rely on
Exemptions 7(C), 7(E) and 7(F) to justify its decision to withhold certain information from the
SIS and TRULINCS Reports. Supp. Mack Decl. ¶¶ 6-9; 2d Supp. Mack Decl. ¶¶ 11-19. Now
that BOP has located the four attachments to the SIS Report, defendant moves for summary
judgment, arguing that it properly relies on Exemptions 7(C) and 7(F) in withholding certain
information from its supplemental release of the SIS Report’s attachments, See Def.’s Mot. at 4-
5.
As plaintiff correctly notes, see Pl.’s Opp’n ¶¶ 14-16, the Court denied defendant’s prior
motions without addressing the merits of its Exemption 7 argument. The record of this case
reflects that the matter has been briefed fully. With respect to BOP’s initial release of the SIS
and TRULINCS reports, plaintiff opposes, see Pl.’s Opp’n to 2d Renewed Mot. ¶¶ 10-18,
defendant’s arguments for withholding information under Exemption 7, see Def.’s Second
Renewed Mot. for Summ. J. at 5-8. Plaintiff’s response to BOP’s supplemental release of the
SIS Report’s attachments neither mentions Exemption 7 nor demonstrates that BOP’s assertions
of fact are untrue. The Court declines to extend to plaintiff a second opportunity to make
arguments he could have presented by now.
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1. Law Enforcement Records
Exemption 7 applies to law enforcement records. “To show that . . . documents were
compiled for law enforcement purposes, the [agency] need only establish a rational nexus
between [an] investigation and one of the agency’s law enforcement duties and a connection
between an individual or incident and a possible security risk or violation of federal law.”
Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations
omitted).
BOP’s declarant explains that “BOP is a law enforcement agency,” the employees of
which “perform inherent law enforcement functions.” 2d Supp. Mack Decl. ¶ 7. For example,
BOP officers are authorized to make arrests, search inmates and visitors to BOP institutions,
seize evidence, and otherwise “protect[] inmates, staff, and the community.” Id. Further, the
declarant explains that the SIS and TRULINCS Reports at issue in this case “were compiled for
law enforcement purposes to meet the BOP’s responsibility to provide for the safekeeping of
inmates within its facilities, and enforce the prevention of criminal activities.” Id. ¶ 8. Plaintiff
concurs that BOP is a law enforcement agency, see Pl.’s Opp’n to 2d Renewed Mot. ¶ 15, as
does the Court.
With respect to the SIS Report, the declarant explains:
BOP Special Investigative Services (SIS) staff at FCI Coleman
(Medium) conducted an investigation of Plaintiff’s continued filing
of fraudulent tax returns and his instructing other inmates at FCI
Coleman (Medium) how to file fraudulent tax returns. SIS staff
conducted this investigation and prepared the SIS report for the
safekeeping, protection and discipline of inmates in BOP custody,
as provided in 18 U.S.C. § 4042. The SIS Report summarized
interviews conducted and findings made during the investigation
and concluded that Plaintiff and other inmates were engaged in
criminal activity. The SIS Report also made recommendations
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regarding transfers and conditions of confinement for Plaintiff[] and
the other inmates involved.
2d Supp. Mack Decl ¶ 9. For these reasons, the declarant states, the SIS Report was compiled
for law enforcement purposes. Id. Plaintiff concurs. See Pl.’s Opp’n to 2d Renewed Mot. ¶ 9.
It follows that the attachments to the SIS Report also were compiled for law enforcement
purposes.
The TRULINCS Report came about after SIS staff at FCC Beaumont reviewed the SIS
Report, plaintiff’s criminal history, and his disciplinary record while in BOP custody. See 2d
Supp. Mack Decl. ¶ 10. Plaintiff had been convicted of fraud-related crimes, filed fraudulent
income tax returns from prison, and had committed disciplinary infractions “ranging from phone
abuse, refusing to obey an order, disruptive conduct, counterfeiting or forging documents, using
unauthorized equipment[ and/or] machinery (saving information on the computer in the
education department where he worked as an orderly), using mail without authorization, and
lying or falsifying statements.” Id. Based on these factors, FCC Beaumont staff recommended,
and the Warden concurred, that “[p]laintiff have restricted access to [TRULINCS] upon his
arrival [at USP] Beaumont[.]” Id.; see id. ¶ 9. According to the declarant, the TRULINCS
Report was compiled for a law enforcement purposes “of managing [USP] Beaumont . . . and
providing for the safekeeping, protection and discipline of inmates housed” at USP Beaumont.
2d Supp. Mack Decl. ¶ 10.
Plaintiff disputes that the TRULINCS report was compiled for law enforcement purposes.
See Pl.’s Opp’n to 2d Renewed Mot. ¶¶ 10, 13. He argues that access to TRULINCS is a
privilege, id. ¶ 14, the suspension of which “does not implicate due process concerns, and thus,
alone can not [sic] trigger a law enforcement function,” id. ¶ 14; see id. ¶ 16. In his view,
suspension of TRULINCS access upon his arrival at USP Beaumont, id. ¶ 16, and a staff
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“request for engagement in general monitoring of plaintiff’s activities,” id. ¶ 18, are not law
enforcement functions. Citing Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982), plaintiff
deems the TRULINCS Report a mere “request for engagement in general monitoring of
plaintiff’s activities,” Pl.’s Opp’n to Def.’s 2d Renewed Mot. ¶ 18. If the TRULINCS Report
itself did not arise from an investigation, plaintiff argues that BOP cannot rely on Exemption 7 to
withhold any information from it. Id.
A “possible violation or security risk is necessary to establish that the agency acted
within its principal function of law enforcement, rather than merely engaging in a general
monitoring of private individuals’ activities.” Pratt, 673 F.2d at 420. Plaintiff is not simply a
private individual whose activities are monitored by a law enforcement agency. Rather, plaintiff
is a federal prisoner whose offense of conviction included identity theft. Even if denying
plaintiff TRULINCS access required extra monitoring of his activities, it is apparent that BOP
engages in a law enforcement function when it takes steps to detect or prevent criminal conduct
by an inmate, particularly an inmate whose incarceration did not deter him from filing fraudulent
tax returns and instructing his fellow inmates to do so. The Court concludes that the TRULINCS
Report was compiled for law enforcement purposes and thus falls within the scope of Exemption
7. See Pinson v. Dep’t of Justice, 313 F. Supp. 3d 88, 114 (D.D.C. 2018) (concluding that
records “pertain[ing] to how BOP handles threats to security, how it monitors and maintains the
health and safety of its inmates and staff, and how it investigates criminal activity [] were created
by BOP to fulfill its responsibility of protecting inmates and prison staff” for purposes of
Exemption 7).
The information BOP withheld pertained “to specific concerns of FCI Coleman
(Medium) staff regarding the safety and privacy interests of individuals, the continued safe
10
operation of the facility, and preserving law enforcement techniques and procedures.” 2d Supp.
Mack Decl. ¶ 19. Although plaintiff had opportunities to challenge defendant’s reliance on
Exemptions 7(C), 7(E) and 7(F) with respect to SIS Report, seeid. ¶¶ 12, 14, 16, Exemption 7(F)
with respect to the TRULINCS Report, see id. ¶¶ 16-17, and Exemptions 7(C) and 7(F) with
respect to the attachments to the SIS Report, see 3d Supp. Mack Decl. ¶¶ 14-16, he failed to do
so. The Court now considers these exemptions without the benefit of plaintiff’s position.
2. Exemption 7(C)
Exemption 7(C) protects from disclosure information in law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,
the Court must balance the privacy interest of individuals mentioned in the records against the
public interest in disclosure. See Am. Civil Liberties Union v. Dep’t of Justice, 655 F.3d 1, 6
(D.C. Cir. 2011). The privacy interest at stake belongs to the individual, not the government
agency, see Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65
(1989), and “individuals have a strong interest in not being associated unwarrantedly with
alleged criminal activity,” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). When balancing an
individual’s privacy interest against the public interest in disclosure, “the only public interest
relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed
about what their government is up to.’” Davis v. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C.
Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773).
From the SIS Report BOP withheld the “names and register numbers of other inmates
besides [p]laintiff who were involved in the investigation and mentioned in the report; third party
family members and associates of inmates involved in the investigation and mentioned in the
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report; and other identifying information of said individuals (e.g., addresses, e-mail addresses,
phone numbers, nicknames, their relationships to the inmates).” 2d Supp. Mack Decl. ¶ 12; see
Supp. Mack Decl. ¶ 7. According to the declarant, “BOP determined that these individuals had a
clear privacy interest” in this identifying information and found no public interest in its release.
2d Supp. Mack Decl. ¶ 12. Plaintiff raised no objection to these redactions from the SIS Report.
Pl.’s Opp’n to 2d Renewed Mot. ¶ 9.
From the SIS Report’s attachments, BOP withheld in full the detention orders of inmates
other than plaintiff on the ground that release of this information could reasonably be expected to
constitute an unwarranted invasion of these inmates’ personal privacy. See 3d Supp. Mack Decl.
¶ 14; see also 2d Supp. Mack Decl. ¶ 12. On this same rationale, BOP redacted the names of and
identifying information about inmates other than plaintiff from staff memoranda, 3d Supp. Mack
Decl. ¶ 15, and from SENTRY data, id. ¶ 16, to include the full roster of inmates designated to
FCC Coleman (Medium), their register numbers, social security numbers, and dates of birth, id.
In this Circuit, there exists “a categorical rule permitting an agency to withhold
information identifying private citizens mentioned in law enforcement records, unless disclosure
is ‘necessary in order to confirm or refute compelling evidence that the agency is engaged in
illegal activity.’” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003)
(quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)) (additional citation
omitted). Plaintiff has made no such showing, and the Court is satisfied that there is no public
interest in disclosure to outweigh these third parties’ privacy interest. BOP adequately
demonstrates that its decision to withhold the names of and other personally identifying
information about third parties mentioned in the SIS Report and attachments is proper.
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3. Exemption 7(E)
Exemption 7(E) protects “information compiled for law enforcement purposes,” the
release of which “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)(E). BOP relies on Exemption 7(E) as the declarant explains:
In this matter, BOP withheld from the SIS Report . . . information
concerning [the] investigative and interviewing techniques used in
conducting the investigation of identity theft[] and tax fraud scheme
perpetuated by [p]laintiff and other inmates at FCI Coleman
(Medium). This information was withheld because disclosure
would reveal how information was received and collected from
inmates and other sources during the investigation, which, if
disclosed, would allow inmates to use the information in an attempt
to conceal their misconduct in the prison system and to evade
detection of law enforcement officials.
2d Supp. Mack Decl. ¶ 14; see Supp. Mack Decl. ¶ 8.
BOP adequately meets Exemption 7(E)’s “relatively low bar,” Blackwell, 646 F.3d at 42,
because its declarant “demonstrate[s] logically how the release of the requested information
might create a risk of circumvention of the law,” id. (quoting Mayer Brown LLP v. IRS, 562 F.3d
1190, 1194 (D.C. Cir. 2009). Investigative and interview techniques qualify for protection under
Exemption 7(E). See Frank LLP v. Consumer Fin. Prot. Bureau, 327 F. Supp. 3d 179, 183
(D.D.C. 2018) (withholding “portions of two investigational hearing transcripts” which
contained “the specific questions asked by Bureau investigators of two . . . affiants, including the
specific information and types of information sought, the manner of questioning, the sequencing
of questioning, and the manner and sequencing of follow-up questions on specific items of
interest,” and which, if disclosed, could be used to “coach future witnesses in similar cases on
how to avoid providing incriminating information”); Barouch v. U.S. Dep’t of Justice, 87 F.
13
Supp. 3d 10, 30 n.13 (D.D.C. 2015) (withholding information about “questioning techniques
used by the ATF agents and local law enforcement agents,” noting that “disclosure of how law
enforcement agents and officers question suspects and the tactics they use could lead to criminals
using maneuvers to circumvent the law enforcement measures[]”).
4. Exemption 7(F)
Under Exemption 7(F), an agency may withhold records or information compiled for law
enforcement purposes if disclosure “could reasonably be expected to endanger the life or
physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “In general, this exemption has
been interpreted to apply to names and identifying information of law enforcement officers,
witnesses, confidential informants and other third persons who may be unknown to the
requester.” Antonelli v. Fed. Bureau of Prisons, 623 F. Supp. 2d 55, 58 (D.D.C. 2009) (citations
omitted). The Court considers whether the agency demonstrates “the requisite nexus between
disclosure and possible harm” to an individual. Albuquerque Pub. Co. v. U.S. Dep't of Justice,
726 F. Supp. 851, 858 (D.D.C. 1989).
From the SIS and TRULINCS Reports, BOP withholds Central Inmate Monitoring (CIM)
information about plaintiff under Exemption 7(F). 2d Supp. Mack Decl. ¶ 16. The declarant
explains that plaintiff “presented a special need[]” calling for “a higher level of review” of
matters such as “clearances for transfers” to other BOP facilities. Id. In light of the SIS Report’s
finding that plaintiff “was disrupting the secure and orderly running of FCI Coleman” by means
of his fraudulent activities,” the declarant states that BOP provided CIM “monitoring . . . to
provide protection to all concerned and to contribute to the safe and orderly operation of federal
institutions.” Id. The declarant does not explain, however, how release of CIM information
pertaining to plaintiff potentially endangers the life or physical safety of any individual.
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BOP also withholds from the SIS and TRULINCS Reports “the name[s], register
number[s] and other identifying information of individuals who cooperated with prison officials
and provided information to investigators about the identification theft and tax fraud scheme at
FCI Coleman.” Id. ¶ 17. Release of these inmates’ identities, the declarant states, “could
jeopardize [their] safety . . . as it likely would result in harassment, threats and/or retaliation from
[p]laintiff and other inmates who were the subject[s] of the investigation.” Id. Such threats
“include possible physical assaults,” which themselves pose a safety risk to these individuals,
other inmates and BOP staff. Id. ¶ 18. Further, disclosure of this information could allow
plaintiff, the other inmates involved in the scheme or their associates to contact one another “in
an attempt to circumvent security measures[prohibiting] inmate-to-inmate correspondence absent
written staff authorization,” which in turn “could undermine the ability of BOP staff to control
security and good order, not just at FCI Coleman (Medium), but also at any other facility . . .
where the individuals involved in the investigation are currently housed, or later transferred.” Id.
Lastly, the declarant asserts that disclosure of these individuals’ identities “may discourage other
inmates from cooperating with future BOP investigations, which may result in future harm to the
safety of BOP staff, inmates, and the public.” Id.
Based on this same rationale, BOP relies on Exemption 7(F) in conjunction with
Exemption 7(C) to withhold in full the detention orders of other inmates, 3d Supp. Mack Decl. ¶
14, to redact staff memoranda, id. ¶ 15, and to withhold SENTRY data in full, id. ¶ 16, in order
to protect other inmates’ names, register numbers, social security numbers, and dates of birth.
The declarant notes that plaintiff’s transfer to USP Beaumont “does not alleviate the concerns
expressed by staff at FCI Coleman (Medium) regarding the physical safety of individuals housed
15
at that facility and the potential for violence at other BOP facilities where these individuals may
currently be housed or [to which they may be] transferred.” 2d Supp. Mack Decl. ¶ 18.
The Court concludes that BOP properly withholds under Exemption 7(F) identifying
information about individuals who involved themselves in plaintiff’s schemes and who
cooperated with or were subjects of the SIS investigation. See Berard v. Fed. Bureau of Prisons,
209 F. Supp. 3d 167, 174 (D.D.C. 2016) (withholding confidential informant’s name,
confidential identification number and information he or she provided to BOP because its release
“would readily reveal the source’s identity”); Carbe v. Bureau of Alcohol, Tobacco & Firearms,
No. 03-cv-1658, 2004 WL 2051359, at *12 n.9 (D.D.C. Aug. 12, 2004) (approving the
withholding of “information about informants who could be at risk in a prison setting were other
inmates to know that they testified against or provided information concerning another
individual”). With respect to CIM information, however, BOP does not demonstrate adequately
that its release poses a risk to any individual’s life or physical safety.
III. CONCLUSION
The Court concludes that BOP’s search for records responsive to plaintiff’s FOIA
request, including its search of SIS records, was reasonable and that its reliance on Exemptions
7(C), 7(E) and 7(F) is proper, with one exception: BOP does not explain adequately that release
of CIM information could reasonably be expected to endanger the life or physical safety of any
individual.
Accordingly, it is hereby
ORDERED that the Defendant’s Third Renewed Motion for Summary Judgment [49] is
GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE. It is further
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ORDERED that, by March 7, 2019, defendant shall file its renewed summary judgment
motion.
SO ORDERED.
DATE: February 8, 2019 /s/
COLLEEN KOLLAR KOTELLY
United States District Court Judge
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