Coleman v. Lappin ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
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MONROE L. COLEMAN, )
)
Plaintiff, )
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v. ) Civil Action No. 06-2255 (RMC)
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HARLEY LAPPIN, et al., )
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Defendants. )
_______________________________________)
MEMORANDUM OPINION
This matter is before the Court on Defendant’s renewed motion for summary
judgment.1 After having considered the motion, Plaintiff’s opposition, and the record of this case,
the Court will grant summary judgment for Defendant.
I. BACKGROUND
In June 2006, Plaintiff submitted a request for information under the Freedom of
Information Act (“FOIA”), see 5 U.S.C. § 552, to the Federal Bureau of Prisons (“BOP”) for the
following:
[A]ll records and/or data contained in the files regarding BOP former
worker Kimberly Moore, including disciplinary report filed against
[plaintiff] by Mrs. Kimberly Moore who was terminated for indulging
in wrongful acts as a BOP worker during 2005 or 2006, which it
requested that any and all investigations on the named party Mrs[.]
1
Also before the Court is Plaintiff’s Motion for Clarification [Dkt. #44], in which he requests
correction of the Court’s March 18, 2009 Memorandum Opinion on the ground that its “place[ment]
on public record can will be life’s threatened to Coleman[] . . ., especially since he is incarcerated.”
Pl.’s Mot. for Clarification at 2. Because Plaintiff neither articulates any alleged errors in the
Memorandum, nor demonstrates that its publication as drafted poses a risk to his safety, the motion
will be denied.
Kimberly Moore be released to requester. This disciplinary report
and the requested investigation(s) took place at Big Sandy USP which
is located in Inez, Kentucky during the year of 2005 and/or 2006.
Defs.’ Mem. in Supp. of Mot. to Dismiss or, in the Alternative[,] Mot. for Summ. J. [Dkt. #17],
Decl. of Sharon Massey (“Massey Decl.”), Attach. B (Plaintiff’s FOIA Request) at 1. The Court
already has determined that the BOP properly withheld information under FOIA Exemptions 2, 5,
and 6 (where the BOP relied on Exemption 6 alone), Coleman v. Lappin, 607 F. Supp. 2d 15, 21-22
(D.D.C. 2009), and that the records responsive to Plaintiff’s FOIA request were compiled for law
enforcement purposes within the scope of FOIA Exemption 7. Id. at 23-24. Because the BOP had
not explained adequately its decision to redact certain information under FOIA Exemption 6 in
conjunction with Exemption 7 and Exemptions 7(C), 7(E), and 7(F), the Court denied Defendant’s
previous summary judgment motion without prejudice. See id. at 25.
At issue are 164 pages of records responsive to Plaintiff’s FOIA request. Mem. in
Supp. of Def.’s Renewed Mot. for Summ. J. (“Def.’s Mem.”) [Dkt. #46], Decl. of Denise M.
Gottleib (“Gottleib II Decl.”) [Dkt. #47] ¶ 7. The BOP represents that, since the Court issued its
March 18, 2009 Memorandum Opinion and Order, “the Attorney General has provided new
guidelines for Justice Department agencies to follow when addressing [FOIA] requests.” Id. ¶ 3.
Application of the new guidelines results in the disclosure of additional information: the BOP has
released 83 pages of records “in their entirety pursuant to the new FOIA directives by the President
of the United States,” id. ¶ 11, and it no longer withholds any information under FOIA Exemptions
7(E) or 7(F). Id. ¶ 10. However, the BOP continues to withhold portions of 15 pages of records,
id. ¶¶ 12-14, 16, and another 24 pages of records in their entirety, id. ¶¶ 18-19, under Exemptions
6 and 7(C).
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II. DISCUSSION
A. Summary Judgment in a FOIA Case
The Court may grant a motion for summary judgment “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The moving party bears the burden of demonstrating an absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party’s
affidavits may be accepted as true unless the opposing party submits his own affidavits, declarations
or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife v. United States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009) (citations omitted). In a FOIA case, the Court may grant summary judgment based on the
information provided in an agency’s supporting affidavits or declarations when they 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.” Military Audit Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or 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. & Exch. Comm’n,
926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence
Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
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B. Exemptions 6 and 7(C)
1. Exemption 6
Exemption 6 protects from disclosure “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). “The term ‘similar files’ is broadly interpreted, such that Exemption 6 protects
from disclosure all information that ‘applies to a particular individual’ in the absence of a public
interest in disclosure.” Lardner v. Dep’t of Justice, 638 F. Supp. 2d 14, 23 (D.D.C. 2009) (quoting
United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)). The threshold is
“fairly minimal,” and “[a]ll information which applies to a particular individual is covered by
Exemption 6, regardless of the type of file in which it is contained.” Washington Post Co. v. United
States Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982) (quoting Washington
Post, 456 U.S. at 602) (internal quotation marks omitted). In this way, the “FOIA’s protection of
personal privacy is not affected by the happenstance of the type of agency record in which personal
information is stored.” Id.; see New York Times Co. v. NASA, 920 F.2d 1002, 1004-05 (D.C. Cir.
1990) (en banc) (concluding that Exemption 6 protected a tape of voice communications aboard the
Challenger space shuttle because “it applies to particular individuals”).
Exemption 6 requires “a balancing of the individual’s right of privacy against the
preservation of the basic purpose of the Freedom of Information Act to open agency action to the
light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (internal
quotation marks and citation omitted); see United States Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 756 (1989). The privacy interest at stake belongs to the
individual, not the agency. See Reporters Comm. for Freedom of the Press, 489 U.S. at 763-65;
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Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting an
individual’s significant privacy interest “in avoiding the unlimited disclosure of his or her name and
address”), cert. denied, 494 U.S. 1078 (1990). It is the requester’s obligation to articulate a public
interest sufficient to outweigh an individual’s privacy interest, and the public interest must be
significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
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). “To determine whether Exemption 7(C) applies, [courts] ‘balance the privacy
interests that would be compromised by disclosure against the public interest in release of the
requested information.’” Sussman v. United States Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir.
2007) (quoting Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992)); see
Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). With respect to the Court’s inquiry
into the privacy interests and public interests at stake, the analysis under Exemptions 6 and 7(C) is
substantially similar. See, e.g., Reed v. Nat’l Labor Relations Bd., 927 F.2d 1249, 1251 (D.C. Cir.
1991) (applying the Reporters Committee analysis in concluding that lists containing the names and
addresses of employees eligible to vote was protected from disclosure under Exemption 6), cert.
denied, 502 U.S. 1047 (1992); Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91 (D.C. Cir.
1984) (finding that court decisions regarding Exemption 6 are directly relevant to identifying privacy
interests at stake in the analysis under Exemption 7(C)).
Generally, the privacy interests of third parties mentioned in law enforcement files
are “substantial,” while “[t]he public interest in disclosure [of their identities] is not just less
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substantial, it is insubstantial.” SafeCard Servs., 926 F. 2d at 1205. “[U]nless access to the names
and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is
necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal
activity, such information is exempt from disclosure.” Id. at 1206; see Nation Magazine v. United
States Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995).
“[T]he 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.
United States Dep’t of Justice, 968 F.2d at 1282 (quoting Reporters Comm. for Freedom of the
Press, 489 U.S. at 773). If the public interest is government wrongdoing, then the requester must
“produce evidence that would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.” Boyd v. Criminal Div. of the United States Dep’t of Justice, 475
F.3d 381, 387 (D.C. Cir. 2007) (citing Favish, 541 U.S. at 174).
C. Records Released In Part2
Under Exemption 6 alone, the BOP withholds the Social Security numbers and dates
of birth of BOP staff members. Gottleib II Decl. ¶¶ 13, 16; see id., Attach. E. Its declarant asserts
that “a substantial privacy interest exists in information about individuals,” and disclosure of this
information serves no public interest because its “dissemination . . . would not . . . explain the
activities and operations of the BOP.” Id. ¶ 17. Plaintiff concedes that the BOP properly may redact
the names of BOP staff members who may have investigated any allegations with respect to Ms.
2
The BOP has submitted for in camera review unredacted copies of all the documents released
in part and released in full. See Gottleib II Decl., Attach. E-F.
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Moore, see generally Pl.’s Fourth Opp’n to Def.’s Summ. J. [Dkt. #50] (“Pl.’s Opp’n”) at 2-3, and
he “is not interested in witnesses[’] names, dates of birth[], etc.” Id. at 17.
The Court previously has held that “such items as individuals’ names, titles, Social
Security numbers, dates of birth, pay grades, union affiliations, and dates of duty” are protected
under Exemption 6, Coleman, 607 F. Supp. 2d at 22, and reaches the same conclusion with respect
to the information described in the BOP’s supporting declaration. The names and Social Security
numbers of BOP staff members clearly apply to particular individuals, and the parties identify no
public interest in disclosure to outweigh the individuals’ privacy interests. See generally Pl.’s
Opp’n; Gottleib II Decl. ¶¶ 13, 17. Accordingly, the BOP’s decision to redact these names and
Social Security numbers under Exemption 6 alone is appropriate. See, e.g., Bangoura v. United
States Dep’t of the Army, 607 F. Supp. 2d 134, 149 (D.D.C. 2009) (concluding that the Army
“properly withheld [under Exemption 6] the names and/or identities of the redacted law enforcement
personnel or third parties interviewed during the investigation” by military police of requester’s
arrest and detention); Concepción v. Fed. Bureau of Investigation, 606 F. Supp. 2d 14, 36 (D.D.C.
2009) (concluding that “third parties’ initials, names, or Social Security numbers apply to particular
individuals, and, thus, . . . meet[] the threshold requirement for Exemption 6 protection,” and, absent
public interest in disclosure, properly are withheld under Exemption 6); Amuso v. United States
Dep’t of Justice, 600 F. Supp. 2d 78, 93-94 (D.D.C. 2009) (concluding that the FBI properly
withheld under Exemption 6 the names and identifying information about individuals interviewed
by FBI agents).
Under Exemption 7(C), the BOP has redacted from 3 pages of records the name of
an inmate (not the Plaintiff) who “was involved in a separate investigation of retaliation, sexual
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harassment, and cruel and unusual wrongful acts against him.” Gottleib II Decl. ¶ 15; see id. ¶ 14.
This inmate “has not consented to the release of his identity or personal information.” Id. ¶ 15.
Similarly, from a fourth page, the BOP has redacted the name and register number of that inmate,
absent his consent to the release of his identity and personal information. Id. ¶ 16. According to the
BOP’s declarant, “[r]elease of the inmate’s name and information related to the incident he reported
may put him in jeopardy of his safety” because inmates who cooperate in such investigations “are
not viewed favorably” by their fellow inmates. Id. ¶ 15; see id. ¶ 16.
Further, the declarant states that release of this information “would not help explain the activities and
operations of the BOP,” and, thus, the inmate’s privacy interests prevail. Id. ¶ 17.
Plaintiff maintains that release in full of these redacted records is a matter of public
interest insofar as the records pertain to “[Ms.] Moore’s ‘adulteress’ behavior on the [B]ureau of
[P]risons job[.]” Pl.’s Opp’n at 3; see id. at 5. According to Plaintiff, “[Ms. Moore’s] actions were
a threat to jeopardize ‘public safety,’” id. at 7, yet he offers no explanation or support for these
assertions. Moreover, it appears that his interest in these records is merely “to show the truth of his
allegations that he was wrongfully disciplined by prison officials” for having reported Ms. Moore’s
misconduct. Id. at 6. Plaintiff’s personal interest in the records is not a cognizable public interest
for purposes of the FOIA Exemption 7(C) analysis, and it does not overcome the individual’s privacy
interests. See Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir. 2002) (finding that the
requester’s “personal stake in using the requested records to attack his convictions does not count
in the calculation of the public interest”), vacated and remanded, 541 U.S. 970 (2004), on remand,
378 F.3d 115 (D.C. Cir.) (reaffirming prior decision), reh’g denied, 386 F.3d 273 (D.C. Cir.), cert.
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denied, 544 U.S. 983 (2005); see also Reporters Comm. for Freedom of the Press, 489 U.S. at 771(stating that the requester’s identity has “no bearing on the merits of his . . . FOIA request”).
Based on the Court’s review of both the redacted and unredacted documents, only the
name of the other inmate has been redacted, and the BOP properly did so under FOIA Exemption
7(C).
D. Records Withheld In Full
The BOP admits the existence of records responsive to Plaintiff’s FOIA request, and
thereby acknowledges that the records withheld in full pertain to Ms. Moore. Mem. of P. & A. in
Supp. of Def.’s Renewed Mot. for Summ. J. [Dkt. #39] at 4. Withheld in its entirety is “an Internal
Affairs investigation (24 pages),” Gottleib II Decl. ¶ 18, “which was conducted based upon the
complaint of misconduct by another inmate[.]” Id. ¶ 20; see id. ¶ 26. Neither this investigation nor
these records pertain to Plaintiff. Id. ¶ 21. Rather, the other inmate’s report triggered an official
investigation into the alleged misconduct of a BOP staff member, Kimberly Moore. See id. ¶¶ 20-22.
The records withheld include: a one-page detailed memorandum to the Special Investigative Agent
reporting an incident of misconduct; documents pertaining to separate incidents not related to
Plaintiff; threatening letters by another inmate to a BOP staff member; a report of investigation and
supporting memorandum pertaining to another inmate; an inmate profile of another inmate; and an
Office of Internal Affairs case summary on a separate incident unrelated to Plaintiff. Gottleib II
Decl. ¶¶ 36-40, 42-43.
The BOP withholds two pages under Exemption 6, and describes these pages as a
Request for Personnel Action resulting from “an Internal Affairs investigation not related to the
Plaintiff.” Gottleib II Decl. ¶ 41. The document “is a personnel record and it contains the name,
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address, social security number[] and background information of a staff member,” id., and the Court
already has held that such information properly is withheld under Exemption 6. See Coleman, 607
F. Supp. 2d at 22. The BOP relies on Exemption 7(C) alone to justify its decision to withhold the
remaining documents.
The declarant explains that inmates “who present misconduct issues or assist BOP
investigative staff . . . are not viewed favorably in the general inmate population and [by] targeted
staff members.” Gottleib II Decl. ¶ 29. Disclosure of these documents, the declarant states, “places
the reporting inmate’s safety in jeopardy,” id. ¶ 28, and can subject him “to harassment and potential
physical assault or violence” at the hands of other inmates. Id. ¶ 30. Further, the declarant states that
“[r]elease of this information would reveal intensely private information about the target [of the
investigation,]” and “could render the target vulnerable to blackmail, humiliation, and/or physical
violence.” Id. ¶ 32. Moreover, the declarant states that release through the FOIA is a means by
which prison gangs, among others, may access information about BOP investigations, which in turn
“can . . . be used by the inmate population . . . to verify cooperation, information, gang activity,
illegal conduct and types of plans or operations used by inmates to circumvent institutional security.”
Id. ¶ 34. In addition, she explains that inmates may use such information “to issue ‘hits’ on
cooperating inmates, assist inmates in developing schemes to . . . introduce contraband, conduct
illegal activities in the prison and effectuate escape.” Id. ¶ 35.
Plaintiff argues that release of these records is a matter of public interest because the
investigation pertained to a threat to security caused by a BOP staff member’s misconduct. See Pl.’s
Opp’n at 7. In addition, he argues that Ms. Moore’s status as a former federal employee diminishes
her privacy interest, tiping the balance in favor of disclosure. See id. at 8-9.
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Ms. Moore’s privacy interest is diminished somewhat because she was a federal
government employee. See Stern, 737 F.2d at 92. However, even a federal government employee
maintains some privacy interest in records regarding her employment. Beck v. Dep’t of Justice, 997
F.2d 1489, 1494 (D.C. Cir. 1993); accord Kimberlin v. Dep’t of Justice, 139 F.3d 944, 949 (D.C.
Cir.) (stating that government officials have a diminished privacy interest, but they do not surrender
all privacy rights by accepting government employment), cert. denied, 525 U.S. 891 (1998); see
Stern, 737 F.2d at 91 (finding that an employee has at least a minimal privacy interest in his
employment history and performance evaluations). In particular, a government employee “has a
privacy interest in any file that ‘reports on an investigation that could lead to the employee’s
discipline or censure.’” Mueller v. United States Dep’t of the Air Force, 63 F. Supp. 2d 738, 742
(E.D. Va. 1999) (citing Hunt v. Fed. Bureau of Investigation, 972 F.2d 286, 287 (9th Cir. 1992)).
That interest “extends to ‘not having it known whether those records contain or do not contain’
information on wrongdoing, whether that information is favorable or not.’” Beck, 997 F.2d at 1494(quoting Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 782 (D.C. Cir. 1990)).
The Court ordinarily “consider[s], when balancing the public interest in disclosure
against the private interest in exemption, the rank of the public official involved and the seriousness
of the misconduct alleged.” Kimberlin, 139 F.3d at 949; see Stern, 737 F.2d at 94 (“There is a
decided difference between knowing participation by a high-level officer in such deception and the
negligent performance of particular duties by the two other lower-level employees.”). In addition,
the Court “look[s] to the nature of the requested document and to the FOIA purpose to be served by
its disclosure.” Dunkelberger, 906 F.2d at 781. The public interest “must be defined with sufficient
specificity to enable a court to determine the nature of the public interest that it is required to balance
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against the privacy interests Exemption 7(C) was intended to protect.” Id. A FOIA requester does
not prevail in his efforts to obtain information about which an agency claims Exemption 7(C)
protection merely by identifying a public interest. Rather, the public interest in disclosure must be
so compelling that, on balance, it outweighs the individuals’ legitimate privacy interests. See Senate
of Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987).
In this case, the BOP investigated inmates’ allegations of a staff member’s serious
misconduct, and the records withheld in full contain details of an internal agency investigation of
these allegations, the result of which was administrative discipline. See Gottleib II Decl. ¶¶ 25, 36-
43. There exists a public interest in disclosure of information about Ms. Moore’s investigation, but
that interest is minimal. See Beck, 997 F.2d at 1493 (identity of one or two relatively low-level
government wrongdoers does not provide information about the agency's conduct, and there is no
public interest in disclosure). Under these circumstances, disclosure of the records is reasonably
expected to constitute an unwarranted invasion of both the complaining inmates’ and the staff
member’s personal privacy.
The Court has reviewed unredacted copies of these 24 pages of records in camera,
and concludes that the BOP’s decision to withhold them in full is justified.
E. Segregability
If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after deleting the exempt portions, unless the non-exempt
portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-Pacific
Policing Agreement v. United States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999). The court errs
if it “simply approve[s] the withholding of an entire document without entering a finding on
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segregability, or the lack thereof.” Powell v. United States Bureau of Prisons, 927 F.2d 1239, 1242
n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v. United States Dep’t of the Army, 611
F.2d 738, 744 (9th Cir. 1979)).
The Court has reviewed the BOP’s declarations with attachments, and finds that these
submissions adequately specify “which portions of the document[s] are disclosable and which are
allegedly exempt.” Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977(1974). Further, with respect to the 24 pages of records withheld in full, the Court concurs that any
non-exempt portions are so intertwined with exempt portions that no portion can be disclosed.
III. CONCLUSION
The BOP adequately explains its reasons for withholding records in part or in full
under FOIA Exemptions 6 and 7(C), and establishes that all segregable information has been
released. It demonstrates that there is no genuine issue of material fact in dispute as to the its
compliance with the FOIA, as well as its entitlement to judgment as a matter of law. Accordingly,
the Court will grant Defendant’s renewed motion for summary judgment. A memorializing Order
accompanies this Memorandum Opinion.
DATE: January 27, 2010 /s/
ROSEMARY M. COLLYER
United States District Judge
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