Prison Legal News v. Lappin ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
PRISON LEGAL NEWS, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-1812 (RBW)
)
HARLEY G. LAPPIN, Director, )
Federal Bureau of Prisons, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
This Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), action is before the
Court on Defendant Federal Bureau of Prison's (the "Bureau" or "BOP") Renewed Cross-Motion
for Summary Judgment and Memorandum in Support ("Def.'s Renewed Mot."). The plaintiff
opposes the motion and cross moves for summary judgment. See Plaintiff's Opposition to
Defendant's Renewed Cross-Motion for Summary Judgment/Plaintiff's Renewed Motion for
Summary Judgment ("Pl.'s Opp'n"). For the reasons explained below, both parties' motions are
granted in part and denied in part. 1
I. BACKGROUND
In 2003, the plaintiff, Prison Legal News ("PLN"), a non-profit legal journal, filed a
FOIA request with the BOP in which it sought:
1
In addition to the parties' cross motions, the Court considered the following filings, and their attached
exhibits, in resolving the parties' cross motions: the Defendant's July 14, 2008 Cross Motion for Summary Judgment
and Opposition to Plaintiff's Motion for Summary Judgment ("Def.'s July 2008 Mot."); the Defendant's Motion for
Reconsideration and Memorandum in Support and Response to the Court's March 26, 2009 Order ("Def.'s Mot. for
Recons."); the Defendant's Reply to Plaintiff's Opposition to Defendant's Renewed Cross-Motion for Summary
Judgment and Plaintiff's Renewed Motion for Summary Judgment ("Def.'s Reply"); and the Plaintiff's Response to
the Defendant's "Reply to Plaintiff's Opposition to Defendant's Renewed Cross-Motion for Summary Judgment and
Plaintiff's Renewed Motion for Summary Judgment" ("Pl.'s Resp.").
A copy of all documents showing all money paid by the BOP for lawsuits and
claims against it. This is all funds paid out to claimants/litigants between January
1, 1996 through and including July 31, 2003. I am requesting a copy of the
verdict, settlement or claim in each case showing the dollar amount paid, the
identity of the plaintiff/claimant and the legal identifying information for each
lawsuit or claim or attorney fee award. I am also requesting a copy of the
complaint (if it was a lawsuit) or the claim (if it was not) in each incident which
describes the facts underlying each lawsuit and claim.
Def.'s Renewed Mot. at 1. Upon not receiving all of the information requested, the plaintiff
brought suit, pursuant to the FOIA, challenging the adequacy of the defendant's search for
responsive records and the defendant's withholding of records under several FOIA exemptions.
See Prison Legal News v. Lappin, 603 F. Supp. 2d 124, 125 (D.D.C. 2009) (Walton, J.). The
Court denied the defendant's first motion for summary judgment in March of 2009 because the
sole affidavit submitted in conjunction with the defendant's motion failed to show that the
Bureau's search was adequate or that it was properly withholding documents under the FOIA's
exemptions. Id. at 127, 129.
The defendant then moved for reconsideration of the March 2009 Opinion and Order on
the basis that an electronic transmittal error prevented the Court from receiving additional
supporting affidavits. See February 25, 2010 Order at 1-2. Upon reviewing the additional
declarations, the Court concluded that "the Bureau's declarations suggest that the officials made a
good faith effort to conduct the search . . . [but that] the declarants f[e]ll short of explaining, in
reasonable detail, the scope and method of the search." Id. at 8. Further, the Court found that
"none of the newly filed declarations" addressed the validity of the Bureau's reliance on the
FOIA exemptions. Id. at 10. The Court noted that it was unaware whether the Bureau had
created a Vaughn index, 2 and observed that a Vaughn index would help put the Court in the
position to assess the propriety of the exemptions invoked by the Bureau. Id. at 11-12. Finding
2
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
2
that the additional affidavits did not provide sufficient information for the Court to independently
determine if the Bureau's search was adequate, id. at 9, or whether the exemptions it relied upon
to withhold information were properly invoked, id. at 12, the Court denied the defendant's
motion for reconsideration. Id.
In conjunction with its current motion for summary judgment, the Bureau has submitted
supplemental declarations that it believes "contain the specificity and detail requested by the
Court in its February 25, 2010 Order." Def.'s Renewed Mot. at 3. The defendant makes clear,
however, that it has conducted no additional searches for responsive records. Id. at 2.
II. STANDARD OF REVIEW
Courts will grant a motion for summary judgment under Rule 56(c) of the Federal Rules
of Civil Procedure 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 moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). To prevail on a motion for
summary judgment in a case brought under the FOIA when the adequacy of an agency search is
challenged, the "defending 'agency must show beyond material doubt that it has conducted a
search reasonably calculated to uncover all relevant documents.'" Morley v. C.I.A., 508 F.3d
1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983)); see Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)
(explaining the "peculiar nature of the FOIA" as it relates to summary judgment review). And
courts apply a reasonableness test to determine the adequacy of a search methodology. Morley,
508 F.3d at 1114. Thus, a "FOIA search is sufficient if the agency makes 'a good faith effort to
conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.'" Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473
3
F.3d 312, 318 (D.C. Cir. 2006) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885,
890 (D.C. Cir. 1995)). "Agency affidavits [submitted in FOIA cases] are accorded a
presumption of good faith, which cannot be rebutted by 'purely speculative claims about the
existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (internal citation omitted). Accordingly, once the agency has
"shown that its search was reasonable, the burden is on the requester to rebut that evidence by a
showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35
(D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382). This rebuttal can be
done either by contradicting the defendant's account of the search procedure or by presenting
evidence showing the agency's bad faith. Moore, 916 F. Supp. at 35-36.
When an agency seeking "summary judgment on the basis of . . . agency affidavits"
asserts through those affidavits that it has properly withheld documents or parts of a document
pursuant to a FOIA exemption, the agency's affidavits must "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). Further, consistent with congressional intent tilting the
scales in favor of full disclosure, courts impose a substantial burden on an agency seeking to
avoid disclosure based on the FOIA exemptions. Morley, 508 F.3d at 1114 (internal citations
and quotations omitted). Consequently, "exemptions from disclosure must be narrowly
construed . . . and conclusory and generalized allegations of exemptions are unacceptable."
Morley, 508 F.3d at 1114-15 (citing Founding Church of Scientology of Wash., D.C., Inc. v.
Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)) (internal quotation marks omitted).
4
Nonetheless, "[w]hen disclosure touches upon certain areas defined in the exemptions, . . . the
[FOIA] recognizes limitations that compete with the general interest in disclosure, and that, in
appropriate cases, can overcome it." 3 Nat'l Archives and Records Admin. v. Favish, 541 U.S.
157, 172 (2004).
III. ANALYSIS
A. The Adequacy of the Bureau’s Search
The defendant submits that its supplemental explanations of the search conducted in
response to the plaintiff's FOIA request contain the level of specificity and detail requested by
the Court in its February 25, 2010 Order. 4 Def.'s Renewed Mot. at 2, 3; see id., Exhibits ("Exs.")
2-3, 5-16. The plaintiff, on the other hand, argues that the Bureau "has not conducted a
reasonable and adequate search for documents," Pl.'s Opp'n at 5, but offers no critique of the
search methods employed by the Bureau and provides little explanation as to why the Court
should find the Bureau's search inadequate. Instead, the plaintiff states that of the "11,000[-]plus
pages of materials [produced by the Bureau], most are useless due to . . . disorganization,
incompleteness and limitless redactions." Id. Additionally, the plaintiff avers that "[a]fter
careful review of the items received," id. at 6, it knows the response to its "request is incomplete.
. . . [because t]here are numerous instances throughout the 11,000-plus pages that do not provide
the information that was requested in 2003." Id. The plaintiff seems, at least in part, to base its
3
Where an agency establishes the applicability of an exemption, it must nonetheless disclose all reasonably
segregable, nonexempt portions of the requested record. Assassination Archives and Research Ctr. v. CIA, 334 F.3d
55, 58 (D.C. Cir. 2003) (citing 5 U.S.C. § 552(b)). Segregability would now not seem to be an issue because the
government has already made that assessment. Def's Reply at 14. However, the government's obligation to assess
segregability is ongoing and segregation could be necessary if, for example, the Court ultimately determines that
some of the non-disclosed information does need to be disclosed. See Sussman v. U.S. Marshals Serv., __ F. Supp.
2d __, __, 2010 WL 3452343, *5 (D.D.C. September 1, 2010) (considering whether redacted information was
reasonably segregable from information to which an exemption applied).
4
The February 25, 2010 Order stated that the declarations then before the Court "fail[ed] to identify any
search terms used, specify how the search was conducted, or detail with specificity what the search yielded." Id. at
9.
5
argument that the search remains incomplete on its possession of several litigation reports
prepared by the Bureau. See Pl.'s Opp'n at 6 ("To support its assertion, PLN is in possession of
what are commonly known as 'litigation reports.' . . . It is clear from the 1996 and 1997 litigation
reports that someone is keeping track of the [Bureau's] litigation records."); Pl.'s Resp. at 6
("These reports were used by Plaintiff as a 'checks and balances' to [e]nsure, in part, that the
[Bureau] was complying with [the] FOIA request."). The plaintiff's opposition to the adequacy
of the Bureau's search is therefore seemingly rooted in the purported disorganization of the
documents it received and its belief, formed after its review of the several copies of the Bureau's
litigation reports it received, that additional responsive documents have not been produced.
While still not providing the level of specificity or detail a model agency FOIA response
should contain, the supplemental declarations submitted by the defendant do contain sufficient
detail to "afford a FOIA requester an opportunity to challenge the adequacy of the search and to
allow [this Court] to determine if the search was adequate." Oglesby v. Dep't of the Army, 920
F.2d 57, 68 (D.C. Cir. 1990). One improvement over the earlier submissions is that all of the
supplemental declarations explain the search methodologies employed by the various Bureau
offices in response to the plaintiff's FOIA request. For example, one declarant who previously
merely stated that she "utilized a pre-formatted search created by computer staff responsible for
maintaining the database" in response to the plaintiff's FOIA request, Def.'s Mot. for Recon., Ex.
4 (Declaration of Kimberly E. Blow) ("Blow Decl.") ¶ 4, stated in her new declaration that "[t]he
only responsive records maintained in [the] Litigation Branch of the Office of [the] General
Counsel would be located in Content Manager[,] which is a computer database that contains
information about cases against the Bureau," Def.'s Renewed Mot., Ex. 5 (Declaration of
Kimberly Blow) ("Blow Decl. II") ¶ 3, that "[t]he only means of creating an accurate and
6
complete list of responsive records maintained in [the] Central Office was to review Content
Manager," id., Ex. 5 (Blow Decl. II) ¶ 4, and that she "conducted this review by utilizing the pre-
formatted search criteria for searching Content Manager" for the period of time requested by the
plaintiff, id., Ex. 5 (Blow Decl. II) ¶ 5. Ms. Blow also indicated that she "restricted" her search
to those cases that had "settled." Id., Ex. 5 (Blow Decl. II) ¶ 5. The Court understands the term
"settled" to mean resolved or completed, not simply that the matter was resolved with an out-of-
court settlement. This understanding finds support in another declarant's indication that the
Bureau's databases make no distinction between monetary and non-monetary settlements, Def.'s
Renewed Mot., Ex. 7 (Declaration of Kathleen White) ("White Decl. II") ¶ 5 ("Lawpack does not
make the distinction as to whether settlements were monetary or non-monetary."), coupled with
her explanation that she "understood that the [plaintiff's FOIA] request . . . sought copies of all
documents showing all money paid by the Bureau of Prisons for lawsuits and claims against it."
Id., Ex. 7 (White Decl. II) ¶ 2 (emphasis added). Moreover, the plaintiff has not challenged the
adequacy of the defendant's search on the basis that it inappropriately limited its search to
documents resulting from out-of-court settlements.
Likewise, other declarants have now also supplemented their prior declarations by
including the search terms they employed in conducting the electronic database searches they
made. See Def.'s Renewed Mot., Ex. 6 (Declaration of Renee Brinker-Fornshill) ("Fornshill
Decl. II") ¶ 5 (explaining that she "conducted a review by searching in the electronic tort claim
database for the words 'approved' and 'payment'"); id., Ex. 7 ("White Decl. II") ¶ 5 ("I conducted
this review by searching Lawpack for all EEO complaints that had the description of 'SETT,'
which indicates 'Settlement,' from January 1, 1996 through and including July 31, 2003.").
Further, as many of the potentially responsive records were maintained in only paper format, the
7
Court appreciates that the declarants can provide only limited detail regarding their physical
examination of paper records. In other words, there are only so many ways to describe the
review of indices cataloging boxes of documents and the actual act of retrieving and reviewing
files stored in boxes; therefore, the level of detail required to explain the process employed to
review paper documents understandably may not rise to the level necessary to describe the
examination of electronic databases in which a variety of search methods or search terms might
have to be used. In any event, in regard to the search for and review of the actual copies of the
documents, the thoroughness of the search has been adequately described. See, e.g., Def.'s
Renewed Mot., Ex. 9 (Declaration of Cynthia Lawler) ("Lawler Decl. II"), ¶¶ 1, 2, 5 (noting that
as a Paralegal Specialist, she understood the request sought copies of "all documents showing all
money paid by the Bureau for lawsuits and claims against it," explaining that she "conducted this
review by searching the hard copies of the . . . files. . . . [then] reviewed each file to determine
accurate dates and relevancy to the request," and concluding that "the relevancy of the
documents was confirmed by the attorneys in my office"); id., Ex. 10 (Declaration of Dorcia
Casillas) ("Casillas Decl. II") ¶ 5 ("My office conducted this review by pulling each case file and
reviewing the file for decisions and settlements that were issued during the specified period of
time."). Finally, and perhaps most importantly, many of the declarants include clarified
explanations which disclose that the individual searches were commenced by relying on the
Bureau's litigation reports to create lists of potentially responsive documents. See, e.g., id., Ex.
12 (Second Declaration of Michael D. Tafelski) ("Tafelski Decl. II") ¶ 4 (discussing the
development of a list based on the use of monthly reports reflecting cases in which a settlement
or a judgment occurred); id., Ex. 13 (Declaration of Alecia S. Sillah) ("Sillah Decl.) ¶ 4 ("The
only means of creating an accurate and complete list of responsive records maintained in the
8
Mid-Atlantic Regional Office, was to review the [Office's] Monthly Reports. . . . Each monthly
report provides the litigation and tort claim settlements paid to a complainant/plaintiff."). The
Court is thus satisfied that the defendant's employees commenced their searches at a logical
starting point, and from there proceeded to collect all responsive documents.
The Court agrees with the plaintiff "that someone is keeping track of the [Bureau's]
litigation records." Pl.'s Resp. at 6. This tracking of litigation not only enabled the Bureau to
respond to the plaintiff's FOIA request, but also shaped the agency's response, which the Court
now finds was adequate and "reasonably calculated to uncover all relevant documents." 5
Morley, 508 F.3d at 1114 (internal citation omitted). And, it must be remembered that "the issue
to be resolved is not whether there might exist any other documents possibly responsive to the
request, but rather whether the search for those documents was adequate." Weisberg v. U.S.
Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). Thus, the
plaintiff's speculation, which stems from its possession of the monthly reports, is insufficient to
rebut the Bureau's affidavits showing that its search for responsive documents was adequate.
5
The defendant differentiates between "monthly reports," which simply list litigation activity, and "litigation
reports," which are reports "prepared by the [Bureau] for Assistant United States Attorneys as a result of litigation
filed against the [Bureau] and represent[] the agency's legal analysis of the merits of a case, proposed legal theories
concerning a case, and proposed resolutions of a case." Def.'s Reply at 9 (internal citation omitted). The defendant
asserts that although the plaintiff may have "erroneously received some [l]itigation [r]eports during the release of
information," id., it did not request litigation reports in its FOIA request and the documents attached to the plaintiff's
opposition are monthly, rather than litigation, reports. Id. The defendant further asserts that even if the plaintiff had
requested the litigation reports, Exemption 5 of the FOIA has been construed to exempt such documents as
privileged attorney work product. Id. at 9-10. Because the plaintiff does not appear in its opposition and cross-
motion to be seeking to obtain either litigation or monthly reports from the Bureau, and instead mentions such
reports only as a means of cross checking the information produced by the Bureau, Pl.'s Opp'n at 6, and because the
defendant has not withheld any documents pursuant to Exemption 5 (or so the Court understands after reviewing the
Bureau's Vaughn index), the Court need not address whether these reports must be disclosed to the plaintiff.
Most importantly for the Court's current analysis, however, is the fact that the plaintiff has failed to show
what significance, if any, its possession of the monthly reports has on the adequacy of the search. In other words,
the plaintiff's mere possession of some of the monthly reports does not contradict the Bureau's account of its search
or raise evidence of the defendant's bad faith, and this possession is therefore insufficient to overcome the
presumption of good faith accorded to the Bureau's affiants. See SafeCard Servs., Inc., 926 F.2d at 1200 ("Agency
affidavits [submitted in FOIA cases] are accorded a presumption of good faith, which cannot be rebutted by 'purely
speculative claims about the existence and discoverability of other documents.'" (internal citation omitted)).
9
Safecard Servs., 926 F.2d at 1200. Accordingly, because the plaintiff has not presented any
evidence that contradicts the agency's account of its search—indeed, the plaintiff's possession of
the monthly reports supports the agency's description of its search procedure—and does not
"rais[e] evidence of the defendant's bad faith," Moore, 916 F. Supp. at 35-36, the defendant's
renewed motion for summary judgment is granted insofar as it asks the Court for summary
judgment on the adequacy of the search, and the plaintiff's cross-motion challenging the
adequacy of the Bureau's search is denied.
B. The Propriety of the Bureau's Reliance on the FOIA Exemptions
The defendant's Vaughn index, 6 submitted for the first time five years into this litigation
in conjunction with its Renewed Motion for Summary Judgment, indicates that the defendant has
redacted documents based on various combinations of Exemptions (2) Low, (6), and (7)(C). 7
Accordingly, the Court will consider each categorical grouping in turn, noting at the outset that
"[i]f the Court determines that information properly is withheld under one exemption, it need not
determine whether another exemption applies to that same information," Coleman v. Lappin, 607
F. Supp. 2d 15, 23 (D.D.C. 2009) (citing Simon v. U.S. Dep't of Justice, 980 F.2d 782, 785 (D.C.
Cir. 1992)), while bearing in mind "that [the] FOIA mandates a 'strong presumption in favor of
6
Vaughn indices are a mainstay of FOIA proceedings at the district court level in this Circuit. "In Vaughn
[the District of Columbia Circuit] recognized the burden placed upon the district court when the government fails to
establish with sufficient specificity the basis of claimed exemption from FOIA disclosure of specific documents. To
alleviate that burden, [the Circuit] established the requirement for a Vaughn index so that a district judge could
examine and rule on each element of the itemized list." Summers, 140 F.3d at 1080-81 (internal citation omitted).
Although "[w]e have never required repetitive, detailed explanations for each piece of withheld information,"
Morley, 508 F.3d at 1122, "[t]he Vaughn index must 'adequately describe each withheld document or deletion from
a released document,' and 'must state the exemption claimed for each deletion or withheld document, and explain
why the exemption is relevant.'" Summers, 140 F.3d at 1080 (quoting Founding Church of Scientology, 603 F.2d at
949).
7
Although a "categorical approach" may sometimes be appropriate in a Vaughn index, this does not change
the fact that "substance is paramount." Defenders of Wildlife v. U.S. Dep't of Ag., 311 F. Supp. 2d 44, 58 (D.D.C.
2004). Thus, declarations offered to support a categorical Vaughn index must still "contain adequate substance to
determine whether [the agency] properly withheld records." Id.10
disclosure,'" Multi AG Media LLC v. U.S. Dep't of Ag., 515 F.3d 1224, 1227 (D.C. Cir. 2008)
(citing Nat'l Ass'n of Homebuilders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)).
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 construed broadly and is 'intended to cover
detailed Government records on an individual which can be identified as applying to that
individual.'" Concepcion v. FBI, 606 F. Supp. 2d 14, 35 (D.D.C. 2009) (quoting U.S. Dep't of
State v. Wash. Post Co., 456 U.S. 595, 602 (1982)). "The threshold is fairly minimal, such that
all information which applies to a particular individual is covered by Exemption 6, regardless of
the type of file in which it is contained." Concepcion, 606 F. Supp. 2d at 35 (internal quotations
and citation omitted). An agency's invocation of Exemption 6 demands a determination
whether . . . disclosure would compromise a substantial, as opposed to a
de minimis, privacy interest. If no significant privacy interest is
implicated (and if no other Exemption applies), [the] FOIA demands
disclosure. . . . If, on the other hand, a substantial privacy interest is at
stake, then [the Court] must weigh that privacy interest in non-disclosure
against the public interest in release of the records in order to determine
whether, on balance, disclosure would work a clearly unwarranted
invasion of personal privacy.
Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989) (internal citation
omitted). The Supreme Court has made clear that Exemption 6 is designed to protect personal
information, even if it is not embarrassing or of an intimate nature. Id. at 875 (citing U.S. Dep't
of State v. Washington Post Co., 456 U.S. 595, 600 (1982)). The agency, however, bears the
burden to persuade the Court that the Exemption applies. Consumers' Checkbook, Ctr. for the
Study of Servs. v. U.S. Dep't of Health and Human Servs., 554 F.3d 1046, 1050 (D.C. Cir.
2009).
11
The Bureau's Vaughn index identifies four categories of documents containing redactions
based solely on Exemption 6. 8 See Vaughn index. These categories are: (1) Labor Management
Relations-Merit Systems Protection Board-Appeal Form; (2) Labor Law-Settlement Agreements;
(3) Labor Law-Judgments; and (4) Labor Law-Judgments-Joint Stipulation for Entry of Final
Judgment. Vaughn index at 8-9. 9 The index shows that the information redacted in the first
category is "all social security numbers and all personal psychiatric/medical information,"
whereas the remaining three categories merely list the redaction of "all social security numbers."
Clearly, an individual's social security number has a specific relationship to that individual, thus
meeting the threshold requirement for Exemption 6 protection. See Concepcion, 606 F. Supp. 2d
at 36. Although the Bureau states only that "the disclosure of social security numbers . . . would
constitute an unwarranted invasion of privacy," Vaughn index at 8, the Court finds that the
privacy interest in one's social security number is self-evident. See Taitz v. Obama, __ F. Supp.
2d. __, __, 2010 WL 4985895, * 3 (D.D.C. December 9, 2010) (explaining that in denying the
plaintiff's first motion for reconsideration, the Court noted that social security numbers are not
subject to disclosure under the FOIA). Additionally, the plaintiff does not contest the redaction
of social security numbers. See Pl.'s Opp'n at 12 (acknowledging that the defendant properly
redacted social security numbers). Accordingly, because disclosure of the social security
numbers "would constitute a clearly unwarranted invasion of personal privacy," 5 U.S.C. §
8The Court notes that the defendant's Vaughn index states that Exemption 6 was used where disclosure
would "constitute an unwarranted invasion of personal privacy." Vaughn index at 8. This is not the correct standard
in evaluating disclosure under Exemption 6; the FOIA expressly indicates that disclosure must be made unless doing
so would result in a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (emphasis added).
Thus, for Exemption 6 to apply, disclosure must be more than simply unwarranted. See Beck, 997 F.2d at 1489
(explaining that the use of the adverb "clearly" in Exemption 6 gives rise to a requirement that disclosure constitute
an actual, rather than just a likely, invasion of privacy).
9
Because the Bureau's Vaughn index is not paginated, the Court will refer to the pages in the order in which
they appear on the Court's docket.
12
552(b)(6), and would not reveal to the public "what [its] government is up to," U.S. Dep't of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989), the Court concludes
that the redaction of social security numbers is a proper withholding under Exemption 6. See
Nat'l Ass'n of Retired Fed. Emps., 879 F.2d at 879 (clarifying that "unless the public would learn
something directly about the workings of the Government by knowing the [requested
information, its] disclosure is not affected with the public interest" and holding that "we need not
linger over the balance; something, even a modest privacy interest, outweighs nothing every
time") (emphasis in original); Reporters Comm. for Freedom of Press, 489 U.S. at 773(determining that disclosing "information about private citizens . . . that reveals little or nothing
about an agency's own conduct" does not serve a relevant public interest under the FOIA).
Unlike the social security numbers, however, the Court currently lacks sufficient
information to determine whether the redaction of "all personal psychiatric/medical information"
from the Labor Management Relations-Merit Systems Protection Board-Appeal Forms is
appropriate under Exemption 6. While it is true that "[i]n the FOIA context, courts have
repeatedly held that medical records are exempt from disclosure because '[t]he privacy interest in
[medical records] is well recognized, even under the stringent standard of exemption 6,'" Marzen
v. Dep't of Health and Human Servs., 632 F. Supp 785, 811 (N.D. Ill. 1986) (quoting Bast v.
Dep't of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981)), the Bureau's Vaughn index does not
offer a sufficiently detailed description of the "personal psychiatric/medical information"
withheld to enable the Court to conclude that the withholding was appropriate under exemption
6.
In a number of other FOIA cases, the parties have agreed that the requested information
at issue was covered by the term "medical files." See Plain Dealer Pub. Co. v. Dep't of Labor,
13
471 F. Supp. 1023, 1026-27 (D.D.C. 1979) (identifying other cases and observing that the parties
in the case agreed that it was clear that the documents could be considered medical files). Here,
however, the parties are not in agreement regarding the Bureau's use of exemption 6 to withhold
"all personal psychiatric/medical information." Thus, while the Court suspects the Bureau's
redactions were likely proper given the substantial privacy interests that exist in one's medical
and psychiatric histories and information, the Court cannot simply take the Bureau's word for it.
In other words, by merely asserting in conclusory terms that Exemption 6 "was applied to protect
the personal psychiatric and medical records of individuals who filed a labor grievance against
the [Bureau]," Vaughn index at 8, the Bureau has not "describe[d] the documents and the
justifications for nondisclosure with reasonably specific detail," Military Audit Project, 656 F.2d
at 738. While the assertion that it has withheld "all personal psychiatric/medical information" is
a good start, the Vaughn index must provide greater specificity concerning how the redacted
information falls within that category. 10
2. Exemptions 6 & 7(C)
The next categories of responsive records identified by the Bureau contain redactions
based on a combination of Exemptions 6 and 7(C). Exemption 7(C) allows an agency to
withhold "records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Thus, records
may properly be withheld under Exemption 7 if the agency establishes that the records were
10
See Plain Dealer Pub. Co., 471 F. Supp. at 1027 n.5 (explaining that documents in the "medical files"
category include: "physician's letters regarding claimant's condition, progress and ability to work; physician's letters
regarding the cause of claimant's disability; a questionnaire regarding claimant's disability; a letter from the
[m]edical [d]irector to claimant's physician regarding claimant's treatment; a clinical psychologist's evaluation of
claimant; certificates of medical examations; and doctor's statements.")
14
compiled for law enforcement purposes and the material satisfies one of the subparts of
Exemption 7—here, subpart (C). 11 Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). A
court determining whether records were compiled for law enforcement purposes must "focus on
how and under what circumstances the requested files were compiled, and whether the files
sought to relate to anything that can fairly be characterized as an enforcement proceeding."
Jefferson v. U.S. Dep't of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (internal quotations and
citations omitted). As with Exemption 6, "an agency may not withhold records under exemption
7(C) solely because disclosure would infringe legitimate privacy interests, but must balance
privacy interests against the public's interest in learning about the operations of its government."
Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 33 (D.C. Cir. 1998). 12
The defendant's Vaughn index denotes five categories of documents containing
redactions that the defendant claims are substantiated by Exemptions 6 and 7(C). The Bureau
has titled those five categories: (1) Tort Claim Form SF – 95; (2) Tort Claim Judgments; (3) Tort
Claim Vouch for Payment; (4) Litigation District Court Complaints; and (5) Litigation District
Court Settlement Agreements and/or Settlement Stipulations. These five categories contain
redactions of, in some combination of the following, "all personal names, all personal addresses,
all personal telephone numbers, all personal Social Security Numbers, and all personal banking
information." Vaughn index at 1-4. Again, much like the "personal psychiatric/medical
11
Subpart (C) pertains to the unwarranted invasion of privacy. Specifically, the FOIA provides for the
withholding of "records or information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
12
"'Exemptions 6 and 7(C), though similar, are not coextensive.'" Coleman, 607 F. Supp. 2d at 22 (quoting
Beck v. U.S. Dep't of Justice, 997 F.2d 1489, 1492 (D.C. Cir. 1993)). Generally, the language of Exemption 7(C) is
broader than that of Exemption 6. Coleman, 607 F. Supp. 2d at 22; see Nat'l Archives and Records Admin. v.
Favish, 541 U.S. 157, 165-66 (distinguishing the level of privacy invasion that must be shown under Exemptions 6
and 7(C), respectively).
15
information" discussed previously, the Court suspects that it would be an invasion of privacy to
produce the contact information (e.g., phone numbers, addresses, etc.) of individuals who work
for the Bureau, but the defendant simply has not properly made the case for non-disclosure.
The Bureau's "rationales" for the use of the Exemptions in the five categories all strike
the same tone. For example, with respect to Tort Claim Judgments, the Vaughn index states:
Exemption[s] (b)(6) and (b)(7)(C) were applied to protect the names of
individuals who filed a tort claim and the names of [Bureau] staff who filed a tort
claim. Exemption[s] (b)(6) and (b)(7)(C) were applied to protect the personal
addresses of [Bureau] staff who filed a tort claim. Exemption (b)(6) was applied
to protect the Social Security Numbers of individuals and [Bureau] staff who
have filed a tort claim. The disclosure of [p]ersonal [n]ames, [p]ersonal
[a]ddresses, and [p]ersonal Social Security Numbers would constitute an
unwarranted invasion of personal privacy.
Vaughn index at 2. The Bureau's affidavits fail to shed further light on its use of Exemptions 6
and 7(C) in the above-listed five categories of documents. Only one of the Bureau's affiants
speaks to the use of these FOIA Exemptions, and he states simply that "[i]n response to the
voluminous amount of responsive documents, the number of offices that provided responsive
records, and the nature of the exemptions applied, I determined that the Vaughn index would be
arranged by categories with the specific type of information redacted in each category and the
reasons why the exemptions were applied." Def.'s Reply, Ex. 3 (Third Supplemental Declaration
of Wilson J. Moorer) ¶ 7. Review of the defendant's Vaughn index, however, leads to the
conclusion that Mr. Moorer's "reasons why the exemptions were applied" are too broad, too
general, and therefore insufficient to support the defendant's redactions. See Vaughn index at 1-
2 (explaining that "[e]xemption (b)6 and (b)7(C) were applied to protect the names of individuals
who filed a tort claim and the names of BOP staff who filed a tort claim," and concluding that
"the disclosure of personal names . . . would constitute an unwarranted invasion of personal
privacy"). Further, in its Renewed Motion the Bureau merely states that the bases for the
16
"exemptions were set forth in Defendant's Cross Motion for Summary Judgment and
[Opposition], and are incorporated herein." Def.'s Renewed Mot. at 3.
Review of the defendant's initial motion shows that although the Bureau correctly cites
the applicable legal authority and sets forth the proper tests to be used by the Court in
determining whether an agency's reliance on the FOIA's Exemptions was properly asserted, it
fails to yield a description of the particular documents and the particular corresponding
justifications for redacting those documents with reasonably specific detail. Moreover, what
minimal description the Bureau does provide about some of the the redacted information strikes
the Court as the type of information that could possibly be most relevant to the reasons
motivating the plaintiff's FOIA request. See, e.g., Def.'s July 2008 Mot. at 8-9 (explaining that
the redacted information included "conclusions drawn from completed investigations" and
"[o]ther redactions were of information relating to the core of the EEO complaint and the
corrective action requested"). Thus, while the Bureau has repeatedly provided the Court with the
law it must apply, it has not provided the Court with sufficient specificity of the underlying facts
needed to appropriately apply that legal authority to the case at hand. For example, because the
District of Columbia Circuit has "consistently held that an individual has a substantial privacy
interest under FOIA in his financial information," Consumers' Checkbook, 554 F.3d at 1050, the
Court could perhaps determine that the defendant's redaction of "all personal banking
information" in the category of documents called "Tort Claim Voucher for Payment" was a
proper use of Exemption 6 if only it knew what the term "all personal banking information"
consisted of and could therefore undertake the required balancing; as it stands, however, the
Court cannot determine whether this description was applied narrowly to cover information such
as account numbers, or was applied broadly resulting in the redaction of settlement amounts
17
deposited into a claimant's account by the Bureau to settle or satisfy claims brought against it. In
a situation in which the Court is tasked with "provid[ing] statements of law that are both accurate
and sufficiently detailed to establish that the careful [d]e novo review prescribed by Congress [in
the FOIA context] has taken place," Founding Church of Scientology, 603 F.2d at 950, the
justifications underlying the redaction must be provided in reasonably specific detail, and not in
conclusory or generalized terms. Yet, the Bureau merely provides the Court with justifications
such as: "The above information, redacted by the BOP pursuant to Exemption 7(C), is personal
in nature and the public's need to know does not outweigh this interest." Def.'s Reply at 19.
Thus, because the Bureau has not sufficiently established—in any of its filings—that the
documents comprising the above-listed five categories of documents were compiled for law
enforcement purposes or provided the Court any facts from which it could balance the public and
private interests at stake in regard to disclosure of the redacted information, the Court cannot
categorically conclude that the defendant has properly invoked Exemptions 6 or 7(C) as to the
five categories listed in the first four pages of its Vaughn index. 13 See Morley, 508 F.3d at 1122(describing its ruling in King v. U.S. Dep't of Justice, 830 F.2d 210, 219, 224 (D.C. Cir. 1989),
where the court held, in discussing the requirements of a Vaughn index, that "when an agency
seeks to withhold information, it must provide 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," and that a "categorical
description of redacted material coupled with categorical indication of anticipated consequences
of disclosure is clearly inadequate"); Campbell, 164 F.3d at 33 (observing that to "justify
13
To the extent that the Bureau relies only on Exemption 6 to withhold the social security numbers
encompassed in these five categories, the Court need not evaluate its applicability again, having already found that
they are exempt from disclosure under Exemption 6.
18
summary judgment under exemption 7, the [agency] must explain why each withheld document
or set of closely similar documents relate to a particular law enforcement purpose").
3. Exemptions 2 Low, 6 & 7(C)
Finally, the Bureau lists four categories of documents for which it made redactions
pursuant to Exemptions 2 Low, 6, and 7(C). Exemption 2 allows for the withholding of
documents that are "related solely to the internal personnel rules and practices of an agency." 14 5
U.S.C. § 552(b)(2). Exemption 2 applies if the information sought meets two criteria. Coleman,
607 F. Supp. 2d at 21. First, such information "must be used for predominantly internal
purposes." Id. (internal quotation and citation omitted). Second, "the agency must show either
that disclosure may risk circumvention of agency regulation, or that the material relates to trivial
administrative matters of no genuine public interest." Id. (internal quotations and citation
omitted).
The Bureau has classified these final four categories in its Vaughn index, in which it
invokes Exemptions 2, 6, and 7, as: (1) General Correspondence – Emails, Fax Cover Sheets,
Letters; (2) Merit Systems Protection Board – Settlement Agreements; (3) Equal Opportunity
Commission-Settlement Agreements, Order of Dismissal, Settlement or Compromise
Agreement, Notice of Settlement, Agency Offer of Resolution, and/or Stipulation of Dismissal;
and (4) Complaint of Discrimination, Form DOJ 201. The information redacted in these
categories consists of "[a]ll [p]ersonal [n]ames, [a]ll [p]ersonal [a]ddresses, [a]ll [p]ersonal
14
Although the FOIA itself does not provide further subdivision of exemption 2, courts have adopted a
2(Low) component and a 2(High) component of the exemption. See Concepcion v. FBI, 606 F. Supp. 2d 14, 31
(D.D.C. 2009) ("Predominantly internal documents the disclosure of which would risk circumvention of agency
statutes are protected by the so-called high 2 exemption. High 2 exempt information is not limited to situations
where penal or enforcement statutes could be circumvented. If the material at issue merely relates to trivial
administrative matters of no genuine public interest, it is deemed low 2 exempt material." (internal quotations and
citations omitted)).
19
[t]elephone [n]umbers, [a]ll [p]ersonal Social Security Numbers, and EEOC file/[a]gency file
numbers," Vaughn index at 5, because "disclosure [of] personal names, addresses, telephone
numbers, social security numbers and EEOC file numbers would constitute an unwarranted
invasion of personal privacy." 15 Id. It might well be that the information is exempt from
disclosure, but again, for the same reasons explained above, the defendant has failed to "describe
the documents and the justifications for nondisclosure with reasonably specific detail [and]
demonstrate that the information withheld logically falls within the claimed exemption," Military
Audit Project, 656 F.2d at 738; instead, it has offered only "conclusory and generalized
allegations of exemptions." Morley, 508 F.3d at 1114-15. Moreover, the Bureau has made no
attempt at showing that the information withheld under Exemption 2—apparently the EEOC file
numbers—was used for predominantly internal purposes or "that disclosure may risk
circumvention of agency regulation, or that the material relates to trivial administrative matters
of no genuine public interest." Coleman, 607 F. Supp. 2d at 21 (internal citation omitted).
Indeed, in a case such as this one where the number of responsive pages produced climbs above
11,000, the EEOC file numbers may very much be in the public interest as a means for the
effective organization and dissemination of the requested information. See Prison Legal News v.
Lappin, 436 F. Supp. 2d 17, 25 (D.D.C. 2006) (concluding that "the plaintiff ha[d] established
that the requested information is likely to contribute to public understanding of government
operations or activities because it has not reached a threshold level of dissemination"). In other
words, the EEOC file numbers may aid the plaintiff in organizing, understanding, and
disseminating the information contained in those files. In any event, it is the Bureau's burden to
15
The Court has already decided the issue as to the disclosure of the social security numbers, concluding that
the Bureau's redaction of social security numbers is an appropriate use of Exemption 6.
20
convince the Court that the Exemptions invoked apply, Consumers' Checkbook, 554 F.3d at
1050, and the Court is so far unconvinced.
C. The plaintiff's Organizational Request
The plaintiff now also asks the Court to issue an Order directing the Bureau to provide it
"with a spreadsheet, showing the dates, types of cases, locations, how resolved, and amounts
paid." Pl.'s Opp'n at 14. The defendant counters that it has no responsibility under the FOIA to
organize the responsive records in any particular manner or provide explanatory material to
accompany the responsive records. Def.'s Reply at 11. The defendant also observes that the
plaintiff cites no legal authority supporting its request to provide responsive documents in a
particular format. Id. Because the Court agrees with the defendant that the FOIA does not
require agencies to "organize documents to facilitate FOIA responses," Id. (quoting Goulding v.
I.R.S., 1998 WL 325202, No. 97 C 5628, at * 5 (N.D. Ill. June 8, 1998), the Court will not direct
the defendant to provide the plaintiff with the requested spreadsheet or to organize the
documents in any specific manner.
IV. CONCLUSION
For the foregoing reasons, the Court grants summary judgment to the defendant regarding
the adequacy of its search for responsive documents, and to the plaintiff regarding the
defendant's use of the FOIA exemptions (except, of course, as to the defendant's use of
Exemption 6 to redact social security numbers). The plaintiff's frustration with the long-
standing, unresolved status of its FOIA request is understandable, see Pl.'s Opp'n at 5, and the
Court hopes it has made clear its expectations of the Bureau so that this matter can finally be
brought to closure. However, if any ambiguity exists, the Court reiterates that in responding to
this Opinion and clarifying its reliance on any of the FOIA's Exemptions, the Bureau must
21
provide "additional explanation about the relative weight of the competing public and private
interests at stake," Campbell, 164 F.3d at 33, in a sufficiently detailed manner with the goal of
enabling the Court to assess whether the exemptions are being properly asserted. And
considering the age of this case, the Court will issue a schedule for the defendant to bring itself
into compliance with the requirements of Vaughn and its progeny to avoid an order requiring the
disclosure of the withheld information or the imposition of monetary sanctions. Further delay
will not be tolerated in bringing this case to closure within the next several months. 16
SO ORDERED this ___ day of __________, 2010.
_____/s/________________
Reggie B. Walton
United States District Judge
16
An Order consistent with this Memorandum Opinion will be issued by the Court.
22