Milton v. United States Department of Justice ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
GREGORY A. MILTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-242 (RWR)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Gregory A. Milton, a prisoner serving a criminal
sentence, filed this pro se complaint against the United States
Department of Justice under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. The Department of Justice has filed a
motion to dismiss or, in the alternative, for summary judgment.
Because the Department of Justice’s affidavit in support of its
motion is not sufficient to justify withholding the documents at
issue, its motion, treated as one for summary judgment, will be
denied without prejudice, and the Department of Justice will be
ordered to supplement its affidavit.
BACKGROUND
The background of this case is set out in Milton v. U.S.
Dep’t of Justice, 596 F. Supp. 2d 63 (D.D.C. 2009). Briefly,
Milton seeks the recordings of telephone conversations he had in
his calls from prison to others. The Department of Justice filed
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a dispositive motion invoking FOIA Exemptions 6 and 7(C),
codified at 5 U.S.C. §§ 552(b)(6) and (b)(7)(C), arguing that the
records Milton seeks are exempt from disclosure because of
privacy considerations of the third parties in the phone
conversations.
DISCUSSION
Summary judgment may be granted when the materials in the
record 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 Moore v. Hartman, 571 F.3d 62, 66
(D.C. Cir. 2009). A court considering a motion for summary
judgment must draw all “justifiable inferences” from the evidence
in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). In a FOIA suit, an agency is entitled to
summary judgment if it demonstrates that no material facts are in
dispute and that all information that falls within the class
requested either has been produced, is unidentifiable, or is
exempt from disclosure. Students Against Genocide v. Dep’t of
State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. U.S. Dep’t
of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). A district court
must conduct a de novo review of the record in a FOIA case, and
the agency resisting disclosure bears the burden of persuasion in
defending its action. 5 U.S.C. § 552(a)(4)(B); see also Akin,
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Gump, Strauss, Hauer & Feld, LLP v. U.S. Dep’t of Justice, 503 F.
Supp. 2d 373, 378 (D.D.C. 2007).
I. WITHHOLDING
The FOIA requires agencies to comply with requests to make
their records available to the public, unless information is
exempted by clear statutory language. 5 U.S.C. § 552(a), (b);
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.
1996). Although there is a “strong presumption in favor of
disclosure[,]” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
(1991), there are nine exemptions to disclosure set forth in 5
U.S.C. § 552(b). These exemptions are to be construed as
narrowly as possible to maximize access to agency information,
which is one of the overall purposes of the FOIA. Vaughn v.
Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).
Because the party requesting disclosure cannot know the
precise contents of the documents withheld, it is at a
disadvantage to claim misapplication of an exemption, and a
factual dispute may arise regarding whether the documents
actually fit within the cited exemptions. Id. at 823-24. To
provide an effective opportunity for the requesting party to
challenge the applicability of an exemption and for the court to
assess the exemption’s validity, the agency must explain the
specific reason for nondisclosure. Id. at 826-27; see also
Oglesby, 79 F.3d at 1176 (“The description and explanation the
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agency offers should reveal as much detail as possible as to the
nature of the document, without actually disclosing information
that deserves protection.”). Conclusory statements and
generalized claims of exemption are insufficient to justify
withholding. Vaughn, 484 F.2d at 826; see also Mead Data Cent.,
Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir.
1977) (noting that “the burden which the FOIA specifically places
on the Government to show that the information withheld is exempt
from disclosure cannot be satisfied by the sweeping and
conclusory citation of an exemption” (footnote omitted)).
However, the “materials provided by the agency may take any form
so long as they give the reviewing court a reasonable basis to
evaluate the claim of privilege.” Delaney, Migdail & Young,
Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987) (referring
to an index describing withheld material and the justification
for withholding as a “Vaughn Index”). If the agency materials
“‘contain reasonable specificity of detail rather than mere
conclusory statements,’” then a plaintiff must point either to
contradictory evidence in the record or provide independent
evidence of agency bad faith to demonstrate that the agency
improperly invoked an exemption. Williams v. FBI, 69 F.3d 1155,
1159 (D.C. Cir. 1995) (quoting Gallant v. NLRB, 26 F.3d 168, 171
(D.C. Cir. 1994)).
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The Department of Justice asserts that FOIA Exemption 6
justifies not disclosing the records the plaintiff seeks.
Exemption 6 provides that an agency may withhold “personnel . . .
and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy[.]” 5 U.S.C.
§ 552(b)(6). The threshold inquiry is whether the requested
information is contained in a type of file covered by the
exemption. Wash. Post Co. v. U.S. Dep’t of Health and Human
Servs., 690 F.2d 252, 260 (D.C. Cir. 1982). Congress intended
the term “similar files” to be construed broadly, U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 602 (1982), and the D.C.
Circuit has held that “[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.” Wash. Post Co. v.
U.S. Dep’t of Health and Human Servs., 690 F.2d at 260 (internal
quotation marks omitted). The information in the file “need not
be intimate” for the file to satisfy the standard, and the
threshold for determining whether information applies to a
particular individual is minimal. N.Y. Times Co. v. NASA, 920
F.2d 1002, 1006 (D.C. Cir. 1990); see also Nat’l Ass’n of Retired
Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989)
(“Exemption 6 is designed to protect personal information in
public records,” such as, but not limited to, information about
an individual’s birth, marriage, or employment). The requested
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records consist of information that pertain to particular
individuals (see Def.’s Mem. of P. & A. in Supp. of its Mot. to
Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at
7-8), and are therefore subject to FOIA Exemption 6. See
McMillian v. Fed. Bureau of Prisons, Civil Action No. 03-1210
(GK), 2004 WL 4953170, at *5 (D.D.C. July 23, 2004) (noting that
the “tapes of telephone conversations . . . are considered
‘similar files’ subject to withholding under Exemption 6").
Once the threshold inquiry is satisfied, a court must
determine whether disclosure would constitute a clearly
unwarranted invasion of privacy. Wash. Post Co. v. U.S. Dep’t of
Health and Human Servs., 690 F.2d at 260. To make this
determination, a court balances the public interest in disclosure
against the individual privacy interests in the information
contained in the files. Id. The requestor bears the burden of
articulating a significant public interest, Schwaner v. Dep’t of
Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010), and of showing that
disclosure would advance that interest. ACLU v. Dep’t of
Justice, 698 F. Supp. 2d 163, 165 (D.D.C. 2010). “The only
public interest to be considered under the FOIA is the extent to
which disclosure ‘advances the citizens’ right to be informed
about what their government up to.’” Hertzberg v. Veneman, 273
F. Supp. 2d 67, 87 (D.D.C. 2003) (quoting Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002)).
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Conversely, there is no public interest in disclosure of
information about private citizens that reveals “‘little or
nothing about an agency’s own conduct.’” Reed v. NLRB, 927 F.2d
1249, 1251 (D.C. Cir. 1991) (quoting U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).
On the other side of the balance, the “[r]elease of a recording
of a telephone conversation can be an invasion of personal
privacy.” McMillian, 2004 WL 4953170, at *7.
Milton has not articulated any significant public interest
in the disclosure of the phone records. Rather, he describes his
FOIA request as one for access to evidence that supports his
innocence. (See Pl.’s Am. Br. in Opp’n to Def.’s Mot. to
Dismiss, or in the Alternative for Summ. J. (“Pl.’s Opp’n”) at 5-
6). In the absence of any evidence of government impropriety,
this reflects a personal rather than a public interest. See
Oguaju v. United States, 288 F.3d 448, 451 (D.C. Cir. 2002)
(noting in the context of Exemption 7(C) that the plaintiff’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 on other grounds, 541 U.S. 970(2004), reinstated, 378 F.3d 1115 (D.C. Cir. 2004). With respect
to the privacy interests that his request implicates, Milton
argues that he signed a waiver allowing the Bureau of Prisons to
monitor his phone calls and that this waiver impliedly extends to
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any party who accepted his calls. (See Pl.’s Opp’n at 3.)
However, a protected privacy interest can be waived only by the
person whose interest is affected, see Milton, 596 F. Supp. 2d at
66; Sherman v. U.S. Dep’t of Army, 244 F.3d 357, 364 (5th Cir.
2001), and Milton has not produced Privacy Act waivers from the
individuals with whom he spoke on the telephone. (See Def.’s
Mem., Herbin-Smith Decl. ¶¶ 10, 14; Pl.’s Opp’n at 2 (implying
that he did not submit Privacy Act waivers on behalf of the
individuals with whom he spoke but arguing that “no waiver should
be necessary”).) Such written waivers would be evidence of a
knowing and intentional waiver of the substantial interest
protected by Exemption 6 in preventing the public disclosure of
private information. No uncorroborated surmise that the persons
he called necessarily would have heard a recorded warning that
calls were subject to being monitored or recorded should suffice
to replace a written Privacy Act waiver. Milton has presented no
other evidence that the individuals to whom he spoke have waived
their privacy interests in protecting the content of their calls
from public disclosure. See Nat’l Archives and Records Admin. v.
Favish, 541 U.S. 157, 174 (2004) (noting that “once there is
disclosure [under the FOIA], the information belongs to the
general public”). Because that privacy interest is more than de
minimis, the Department of Justice’s withholding under Exemption
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6 was proper.1 See Schwaner, 696 F. Supp. 2d at 83 (noting that
“‘even a modest privacy interest outweighs nothing every time’”
(quoting Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C.
2008)).
II. SEGREGABILITY
An agency must disclose “[a]ny reasonably segregable
portion” of an otherwise exempt record. 5 U.S.C. § 552(b). An
agency cannot withhold non-exempt portions of a document unless
they “are inextricably intertwined with exempt portions.” Mead
Data, 566 F.2d at 260. While an agency is presumed to have
complied with its obligation to disclose non-exempt portions of
the record, a “district court must make specific findings of
segregability regarding the documents to be withheld.” Sussman
v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). To
demonstrate that the withholding agency has disclosed all
reasonably segregable material, “the withholding agency must
supply ‘a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a
withheld document to which they apply.’” King v. U.S. Dep’t of
1
Because the Department of Justice has demonstrated
adequately that it withheld properly the requested records under
Exemption 6, the agency’s invocation of Exemption 7C need not be
addressed. See also McMillian, 2004 WL 4953170, at *5 (noting
that “Exemption 7(C) provides a somewhat lower floor for
withholding records than does Exemption 6").
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Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (quoting Mead Data,
566 F.2d at 251). Presenting a “comprehensive Vaughn index,
describing each document withheld, as well as the exemption under
which it was withheld” supplemented by an affidavit stating that
an agency official conducted a review of each document and how
she determined that no document contains segregable information
fulfills the agency’s obligation. See Johnson v. Exec. Office
for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also
Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008)
(noting that a court “may rely on government affidavits that show
with reasonable specificity why documents withheld pursuant to a
valid exemption cannot be further segregated”). Where the
agency’s materials are inadequate to demonstrate that it has
disclosed all reasonably segregable portions of the requested
records, a court may order the agency to supplement the record
for purposes of further review. See Maydak v. U.S. Dep’t of
Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003).
The Department of Justice’s affidavit states that its “FOIA
experts [advised] that the type of format (‘.wav.’) . . . does
not make it possible to segregate[,]” and that “efforts to
segregate calls are made very difficult by individuals
interrupting each other throughout the call and would place the
conversations out of context.” (Def.’s Mem., Herbin-Smith Decl.
¶ 6.) However, the affidavit provides no basis for concluding
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that the Department of Justice cannot segregate non-exempt
portions of .wav files. It is unclear whether the Department of
Justice is claiming that no technology or program exists for
editing or modifying a .wav file, whether the Department of
Justice merely lacks that technology, or whether it is impossible
to segregate the files for some other reason. Additionally, the
generalized assertion that efforts to segregate calls are
difficult because individuals may interrupt each other on the
phone and because segregated portions of the calls may lack
context is a conclusory claim that is insufficient to demonstrate
that there are no portions of these calls that are reasonably
segregable. Because the affidavit does not state that an
appropriate agency official reviewed the telephone conversations
at issue here and concluded that they contained no reasonably
segregable portions, the Department of Justice has not
demonstrated adequately that it has complied with its obligation
to disclose all reasonably segregable portions of the otherwise
exempt records.
CONCLUSION AND ORDER
Although the Department of Justice has properly invoked
Exemption 6, it has not demonstrated that the requested telephone
recordings contain no segregable information. Accordingly, it is
hereby
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ORDERED that the defendant’s motion [11] to dismiss, or in
the alternative, for summary judgment, be, and hereby is, DENIED
without prejudice. It is further
ORDERED that the defendant shall have until June 6, 2011 to
move anew for summary judgment.
SIGNED this 6th day of May, 2011.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge