Ramdeo v. United States Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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SONNY AUSTIN RAMDEO, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-114 (ABJ)
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UNITED STATES )
DEPARTMENT OF JUSTICE, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
In this action brought pro se, plaintiff, a federal prisoner, claims that the Bureau of Prisons
(“BOP”) has improperly withheld records in violation of the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Defendant has moved for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure [Dkt. # 13]. Upon consideration of the parties’ submissions and
the entire record, the Court finds that defendant has complied with the FOIA. So, for the reasons
explained below, defendant’s motion will be granted.
BACKGROUND
Plaintiff is incarcerated at the Allenwood Federal Correctional Institution (FCI) in White
Deer, Pennsylvania. In a FOIA request to BOP dated May 1, 2018, plaintiff sought records from
“‘the files of FCI Coleman Low’ where he was incarcerated” from May 9, 2017 through March
22, 2018. Decl. of BOP Attorney John E. Wallace ¶ 3 & Ex. A. The 15-part request sought a
variety of information, including investigatory records, reports “of evidentiary or scientific
information,” records pertaining to plaintiff, and records pertaining to three staff members, Unit
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Manager Marcel Ramos, Special Investigative Supervisor J. Rittenhouse, and Special Housing
Unit Officer B. Solow. Id. ¶¶ 3-4.
On June 25, 2018, BOP “issued an acknowledgment letter,” informing plaintiff that his
request was sent to the Northeast Regional Office (“NERO”) for processing that “could take up to
9 months[.]” Compl. ¶ 19. In August 2018 and October 2018, plaintiff requested updates, and on
December 3, 2018, he submitted an appeal to the Office of Information Policy (OIP) “indicating
[that] the BOP [was] improperly and intentionally delaying the response to [his] request.” Id. ¶¶
21-23. Having received no response from OIP, see id. ¶ 23, plaintiff filed this civil action on
January 11, 2019.
By letter of May 31, 2019, BOP released 150 responsive pages to plaintiff, 107 of which
contained redactions, and it withheld 76 pages completely. Wallace Decl., Ex. B. BOP withheld
information under FOIA exemptions 2, 5, 6, 7(C), 7(E) and 7(F), codified in 5 U.S.C. § 552(b).
Id. Plaintiff wrote back on June 11, 2019. He expressed his dissatisfaction with the response and
“clarifie[d] the intent of his request” as seeking records relating “to a[n] investigation and referral
from the Office of the Inspector General in which [he] was retaliated against by staff member[s]”
Rittenhouse and Ramos. Def.’s Statement of Undisputed Material Facts (“SOF’) ¶ 6, quoting
Wallace Decl., Ex. C at 1. Plaintiff stated that Rittenhouse “fabricated documentation to retaliate”
against him “and transferr[ed” him “to another institution[,] and I am seeking the records related
to those acts which constitute ethical violations[.]” Id.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows 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). The party seeking summary judgment “bears the initial responsibility of informing the
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district court of the basis for its motion, and identifying those portions of the pleadings, . . . together
with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To
defeat summary judgment, the non-moving party must “designate specific facts showing that there
is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The mere existence of
a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find
for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
When considering a motion for summary judgment under FOIA, the court must conduct a
de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary
judgment based on information provided in an agency’s affidavits or declarations when they are
“relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (citation omitted), and “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, 926 F.2d at 1200 (citation and internal quotation marks omitted).
ANALYSIS
FOIA requires government agencies to release records upon request in order to “ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request
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for records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person,” 5 U.S.C. §
552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions. See §
552(b); FBI v. Abramson, 456 U.S. 615, 630-31 (1982). This framework “represents a balance
struck by Congress between the public’s right to know and the government’s legitimate interest in
keeping certain information confidential.” Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925
(D.C. Cir. 2003), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989).
When an agency withholds documents or parts of documents, it must explain what it is
withholding and specify the statutory exemptions that apply. See Vaughn v. Rosen, 484 F.2d 820,
825–28 (D.C. Cir. 1973). Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears “logical” or “plausible.” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)
(citations omitted). An inadequate search may also constitute an improper withholding. See
Maydak v. U.S. Dep't. of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003). So, when an agency’s
search is questioned, the agency prevails on summary judgment if it shows through a non-
conclusory declaration that it made “a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Defendant argues that summary judgment is warranted in its favor because BOP conducted
a search reasonably calculated to uncover all relevant documents, and all non-exempt responsive
records have been released. Def.’s Mem. at 5-16. Plaintiff maintains that material facts are in
genuine dispute with regard to both the adequacy of the search and the asserted exemptions. See
generally Opp’n [Dkt. # 21].
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A. BOP’s Search for Records
Plaintiff asserts that defendant “failed to identify the specific systems it searched for each
record.” Opp’n at 1. But BOP’s declarant has provided a comprehensive description of BOP’s
record systems and databases, and he has reasonably explained why the ones searched were most
likely to locate responsive records. See Wallace Decl. ¶¶ 7-15.
Among the files searched were the Prison Intelligence Records System and database
TRUINTEL, which “is the system that stores everything in relation to inmate intelligence,” SOF
¶ 7, n.9; the Inmate Administrative Remedy Records System; the Inmate Central Records System,
which includes essentially all “information regarding an inmate” and “is maintained at the inmate’s
current . . . institution of confinement,” SOF ¶¶ 11-12; and the Federal Tort Claims Act Records
System.
The declarant avers that upon receiving plaintiff’s request on June 25, 2018, NERO’s
Legal Office “sent a request-for-documents e-mail” to FCI Allenwood. Id. ¶ 16. An SIS
Technician searched “the TRUVIEW [inmate telephone records], TRUSCOPE [incidents,
contraband, and inmate activities], and TRUINTEL databases by plaintiff’s name and inmate
register number, identified BOP’s Office of Internal Affairs (“OIA”) as a location likely to have
responsive records, and forwarded responsive documents to NERO’s Legal Office. Wallace Decl.
¶ 16. A case manager at the Allenwood facility also searched plaintiff’s Inmate Central File and
forwarded a copy of plaintiff’s presentence investigation report, which was determined to be non-
responsive. Id.
After inheriting plaintiff’s FOIA request on May 3, 2019, BOP’s declarant revisited the
search. He asked the SIS Technician about the search parameters and determined that plaintiff’s
request “for reports of evidentiary or scientific information could be addressed with records
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regarding [his] urinalysis testing for contraband substances,” which located a responsive
document. Id. ¶ 19. In addition, the declarant “personally traveled” to FCI Allenwood “to learn
about” the TRUINTEL and TRUSCOPE databases, id. ¶ 20, asked BOP’s OIA “to search for . . .
any investigations or files concerning” plaintiff, and initiated searches at FCI Coleman, all of
which located responsive records. Id. ¶¶ 21-27.
After “cross-referencing the results from separate databases, and chasing all available leads
concerning responsive records,” BOP’s declarant was satisfied that he “had conducted a
reasonably adequate search in response” to plaintiff’s FOIA request, id. ¶ 28, and the Court agrees.
The declarant has shown that he “liberally construed the request, followed leads,” and “searched
all areas reasonably likely to produce responsive record,” eventually “finding only duplicates or
deadends.” Id. At that point, the declarant reasonably “concluded that no areas remained to be
searched that were likely to render responsive documents.” Id.
Given that showing, the Court cannot find the search to be deficient for failure to identify
the specific systems searched.
Plaintiff also asserts that the search was inadequate because the declarant “made no attempt
to reference SENTRY[.]” Opp’n, SOF ¶ 34. But as the declarant has explained, while SENTRY
is frequently the subject of requests[,] it is an electronic media
application that is comprised of data of activities within the multiple
BOP published systems of records. Inmate data is keyed into this
database so that BOP employees nationwide can easily access
certain inmate information. So, while a SENTRY report is an
agency record, it is typically an electronic abstract of other record
systems.
Wallace Decl. ¶ 8. Plaintiff has produced no evidence to create a genuine factual dispute with
respect to the reasonableness of defendant’s searches, including the more than adequate search for
records at FCI Coleman Low. See Wallace Decl. ¶¶ 22-26; Pl.’s SOF ¶ 34 (positing that the
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declarant “could have contacted” plaintiff’s former case manager at Coleman Low “who has first-
hand facts about the events”). Therefore, defendant is entitled to summary judgment on the search
question.
B. FOIA Exemptions
As explained in the government’s declarations and Vaughn indices, information was
withheld under FOIA exemptions 5, 6, and 7.
Exemption 5
FOIA Exemption 5 permits agencies to withhold “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5); see also U.S. Dep't of Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 8 (2001) (holding that a record may be withheld under
Exemption 5 only if “its source [is] . . . a [g]overnment agency, and it . . . fall[s] within the ambit
of a privilege against discovery under judicial standards that would govern litigation against the
agency that holds it”). It “encompass[es] the protections traditionally afforded certain documents
pursuant to evidentiary privileges in the civil discovery context,” including (1) the attorney-client
privilege, (2) the executive “deliberative process” privilege, and (3) the attorney work-product
privilege. Taxation with Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). The
agency seeking to withhold a document bears the burden of showing that an exemption applies.
Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm'n, 216 F.3d 1180, 1190 (D.C. Cir.
2000).
First, “[t]he deliberative process privilege rests on the obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of discovery,” and
its purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion
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among those who make them within the [g]overnment.” Klamath, 532 U.S. at 8–9, quoting NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Thus, the privilege only “protects agency
documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d
141, 151 (D.C. Cir. 2006); accord McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d
331, 339 (D.C. Cir. 2011). “[A] document [is] predecisional if ‘it was generated before the
adoption of an agency policy’ and deliberative if ‘it reflects the give-and-take of the consultative
process.’ ” Judicial Watch, 449 F.3d at 151, quoting Coastal States Gas Corp. v. U.S. Dep't of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
Second, the attorney-client privilege protects confidential communications from clients to
their attorneys made for the purpose of securing legal advice or services, and “is not limited to
communications made in the context of litigation or even a specific dispute.” Coastal States, 617
F.2d at 862. The privilege also protects communications from attorneys to their clients that “ ‘rest
on confidential information obtained from the client.’ ” Tax Analysts v. IRS, 117 F.3d 607, 618
(D.C. Cir.1997), quoting In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984); see also Mead Data
Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977). In the FOIA context,
the agency is the “client” and the agency's lawyers are the “attorneys” for the purposes of attorney-
client privilege. See In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998), citing Coastal States,
617 F.2d at 863.
Finally, the attorney work product privilege protects materials that reflect the “ ‘mental
processes of the attorney,’ ” Klamath, 532 U.S. at 8, quoting United States v. Nobles, 422 U.S.
225, 238 (1975), when the materials were “ ‘prepared in anticipation of litigation or for trial.’ ”
Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 369 (D.C. Cir. 2005), quoting Fed. R. Civ. P. 26(b)(3).
An agency can satisfy the “in anticipation of litigation” standard by “demonstrating that one of its
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lawyers prepared a document in the course of an investigation that was undertaken with litigation
in mind,” even if no specific lawsuit has begun. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1202 (D.C. Cir. 1991).
BOP withheld as attorney work product documentation of “investigations conducted in
response to Mr. Ramdeo’s administrative tort claim filings, which were created for Supervisory
Attorney Jeffrey Middendorf.” Wallace Decl. ¶ 31; Vaughn Index, Doc. # 3. The investigations
“were prepared for a BOP attorney in anticipation of litigation, and “they informed the legal
strategies of the DOJ attorneys who are litigating the pending claims on behalf of the Government.”
Wallace Decl. ¶¶ 32-33. “The circuit’s case law is clear that ‘[t]he work-product doctrine simply
does not distinguish between factual and deliberative material.’” Judicial Watch, Inc., 432 F.3d
at 371, quoting Martin v. Office of Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987). “[I]f
a document is fully protected as work product, then segregability is not required.” Id. So, BOP’s
withholding of attorney work product records is justified, notwithstanding plaintiff’s speculative
allegations of misconduct. Opp’n, SOF ¶ 12 [Dkt. # 21].
Exemptions 6 and 7
FOIA Exemption 6 exempts from mandatory 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). FOIA Exemption 7 protects from disclosure “records or
information compiled for law enforcement purposes,” but only to the extent that disclosure would
cause one of the enumerated harms set out in the exemption’s subparts. 5 U.S.C. § 552(b)(7);
Abramson, 456 U.S. at 622. Exemptions 6 and 7(C) concern personal privacy interests, and they
are often cited together as justification for withholding the same records. Exemption 7(C) protects
from disclosure information in law enforcement records that “could reasonably be expected to
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constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Exemption
7(C)’s threshold of harm is lower than Exemption 6’s “clearly unwarranted” requirement.
Defendant redacted the identifying information of “third-party inmates, citizens, and line-
level BOP staff” under both exemptions, but it concedes that Exemption 7(C) does not apply to
“the tort claim filings and investigations,” SOF ¶ 33, n.18, so it now relies on Exemption 6 only to
justify “the minimal redactions of staff names” from those documents, Wallace Decl. ¶ 34, n.19.
“Congress’ primary purpose in enacting Exemption 6 was to protect individuals from the injury
and embarrassment that can result from the unnecessary disclosure of personal information.”
Multi Ag Media LLC v. Dep't of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008), quoting In United
States Department of State v. Washington Post Co.,456 U.S. 595, 599 (1982) (emphases in
original). BOP’s declarant explains that the affected individuals “have strong privacy interests in
avoiding unwanted public attention and the harassment, embarrassment, and derogatory inferences
that spring from having their identities made public in prison records,” and that such publicity
“could subject prison staff to unnecessary, unofficial questioning concerning prison matters.”
Wallace Decl. ¶ 34. In contrast, BOP did not redact the names of “BOP attorneys and staff at the
associate warden level and above” since “their more public-facing official duties” diminish “their
legitimate privacy expectation.” Id. ¶ 35.
BOP’s declarant avers that “[e]ach time exemption (b)(6) was used, the privacy interest of
the third-party individual was weighed against the public’s interest” and “not, at any place in [the]
Request or Complaint” has plaintiff “identified a specific public interest.” Id. ¶ 36. Whether the
latter is accurate will be discussed under Exemption 7(C) since “the privacy inquiry of Exemptions
6 and 7(C) [are] essentially the same.” Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1125 (D.C.
Cir. 2004).
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Exemption 7
Based on plaintiff’s June 2019 clarifying letter, and the complaint allegations, defendant
has reasonably interpreted plaintiff’s request as seeking “to obtain records from investigatory
enforcement proceedings of staff he formally accused of misconduct.” Wallace Decl. ¶ 37. And
BOP’s declarant has dutifully differentiated the responsive records that reasonably satisfy the
threshold law enforcement requirement, see id. ¶¶ 44-50, from those that do not, id. ¶ 35.
Defendant BOP has invoked several prongs of Exemption 7, related to law enforcement
records, in withholding certain records. As a threshold matter, “[l]aw enforcement entails more
than just investigating and prosecuting individuals after a violation of the law,” and it “includes…
proactive steps designed to prevent criminal activity and to maintain security.” Elec. Privacy Info.
Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (internal quotation marks
and citation omitted) (ellipsis in original).
Exemption 7(C)
In determining whether Exemption 7(C) applies to particular information, the Court must
balance an individual’s interest in privacy against the public interest in disclosure. See ACLU v.
DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy interest at stake belongs to the individual, not
the government agency, see Reporters Comm., 489 U.S. at 763-65, and an individual has 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). “[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. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992), quoting Reporters Comm.,
489 U.S. at 773. It is a FOIA 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
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Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). The Court of Appeals has
explained that
[a]s a result of [e]xemption 7(C), FOIA ordinarily does not require
disclosure of law enforcement documents (or portions thereof) that
contain private information . . . . [because] privacy interests are
particularly difficult to overcome when law enforcement
information regarding third parties is implicated . . . . Moreover, the
Supreme Court has made clear that requests for such third party
information are strongly disfavored. That is particularly true when
the requester asserts a public interest—however it might be styled—
in obtaining information that relates to a criminal prosecution.
Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (citations and internal quotation marks omitted).
As indicated above under Exemption 6, defendant redacted the names of third-party
inmates, “line-level BOP staff and former staff,” and on one page the “personally identifiable
information” of “a targeted staff member.” Wallace Decl. ¶¶ 54, 56; Vaughn Index, Doc. # 4
p. 61. The declarant explains that the release of such information “would or could cast these
individuals in an unfavorable or negative light, causing irreparable damage to reputations,
embarrassment, harassment, threats of reprisal, comment, speculation, and stigma.” Wallace Decl.
¶ 52.
The government has justified withholding third-party information. Therefore, the Court
must “weigh the ‘privacy interest in non-disclosure against the public interest in the release of the
records.’” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999), quoting Nat'l Ass'n of Retired
Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). The Court of Appeals instructs:
The public interest to be weighed against the privacy interest in this
balancing test is the extent to which disclosure would serve the core
purposes of the FOIA by contribut[ing] significantly to public
understanding of the operations or activities of the government.
Thus, unless a FOIA request advances the citizens’ right to be
informed about what their government is up to, no relevant public
interest is at issue.
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Nat’l Ass’n of Home Builders, 309 F.3d at 33-34 (internal quotation marks and citations omitted)
(alteration in original). To trigger the balancing requirement, plaintiff must demonstrate the
requisite level of public interest by producing evidence of official misconduct “that would warrant
a belief by a reasonable person that the alleged Government impropriety might have occurred.”
Favish, 541 U.S. at 174. Otherwise, there is no “counterweight on the FOIA scale for the court to
balance against the cognizable privacy interests in the requested records.” Id. at 174-75.
Plaintiff points to his Exhibit A as evidence that BOP has “a practice, pattern and custom
of engaging in misconduct,” which he asserts outweighs the privacy interests of the individuals
whose identities are protected in this case. Opp’n, SOF ¶ 14. Plaintiff’s exhibit appears to be an
article from Prison Legal News reporting on a memorandum released on January 2, 2019, by the
U.S. House Subcommittee on National Security, which concluded that high-level BOP officials
had engaged in abusive misconduct and retaliation. According to the article, the subcommittee
had found that “the lenient treatment” accorded BOP’s senior officials “was in marked contrast to
the harsh punishments that rank-and-file prison employees often received for minor infractions,”
and the subcommittee’s “memorandum did not address the impact of misconduct by BOP officials
on federal prisoners[.]” Pl.’s Ex. A.
While potential misconduct by prison officials is a serious matter, the relevance of
plaintiff’s exhibit to the particular matters at hand is questionable at best. Plaintiff does not dispute
that his “allegations concern only individual actions by line-level BOP staff and former staff,” and
that “[n]o staff member in a significant leadership or policy-making capacity is involved.” Wallace
Decl. ¶ 56. Furthermore, the withheld names in this case do not include “staff at the associate
warden level and above.” Wallace Decl. ¶ 35. So, plaintiff’s “evidence” is “simply not very
probative” of BOP’s “behavior or performance.” Mays v. Drug Enforcement Admin., 234 F.3d
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1324, 1327 (D.C. Cir. 2000) (internal quotation marks and citation omitted). Since, as the Supreme
Court has instructed, “[a]llegations of government misconduct are easy to allege and hard to
disprove, . . . courts must insist on a meaningful evidentiary showing” of a public interest. Favish,
541 U.S. at 175 (citation internal quotation marks and citation omitted). Otherwise, as the Court
concludes here, the balancing test is simply not “in[] play.” Id. As for the redactions under
Exemptions 6 and 7(C), then, the government is entitled to summary judgment.
Exemption 7(E)
Exemption 7(E) authorizes 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 or information . . . 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). “Under [D.C. Circuit] precedents, [e]xemption 7(E) sets a relatively low
bar for the agency to justify withholding: ‘Rather than requiring a highly specific burden of
showing how the law will be circumvented, exemption 7(E) only requires that the [agency]
demonstrate logically how the release of the requested information might create a risk of
circumvention of the law.’” Blackwell, 646 F.3d at 42, quoting Mayer Brown LLP v. IRS, 562
F.3d 1190, 1194 (D.C. Cir. 2009).
BOP applied this exemption to redact from a “TRUFONE report [certain] call data from
October and November 2013.” Wallace Decl. ¶ 58; Vaughn Index, Doc. # 6, p. 77 (describing
withheld information as “call information maintained for investigative purposes”). The report
includes locations and numbers of plaintiff’s callers, but it also contains information as to whether
“calls were locked possibly for inspection or investigation and monitored.” Wallace Decl. ¶ 58
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(parenthesis omitted). BOP redacted notations that if disclosed could “warn an inmate about
whether he is under investigation, what level of scrutiny is being placed on his communications,
and whether past calls were preserved.” Wallace Decl. ¶ 58. The declarant explains how such
information could reasonably assist the inmate with circumventing the law by, inter alia, devising
a plan to smuggle in contraband or to escape. See id. Therefore, summary judgment is granted as
to the Exemption 7(E) withholdings.
Exemption 7(F)
Exemption 7(F) protects from disclosure information in law enforcement records that
“could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C.
§ 552(b)(7)(F). The “phrase ‘any individual’ makes clear that Exemption 7(F) . . . shields the life
or physical safety of any person.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777
F.3d 518, 525 (D.C. Cir. 2015). The Court of Appeals has observed that like Exemption 7(E), the
language of Exemption 7(F) “is very broad,” and it “does not require that a particular kind of
individual be at risk of harm; ‘any individual’ will do.” Pub. Employees for Envtl. Responsibility
v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 205 (D.C. Cir. 2014)
(citation omitted). In addition, “[d]isclosure need not definitely endanger life or physical safety;
a reasonable expectation of endangerment suffices.” Id.
BOP applied this exemption “in tandem with” Exemption 7(E) “to protect staff, inmates
and visitors.” Wallace Decl. ¶ 59. It also applied Exemption 7(F) to information redacted from
an Administrative Detention Order that identifies the need for and the time and date of an inmate’s
admission to restricted housing, Vaughn Index, Doc. # 4, pp. 41-53; and information redacted from
SENTRY Inmate Profile reports, which provide “a snapshot of almost all relevant information
regarding an inmate” including “housing assignments, religious preferences, medical restrictions,
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and release preparation,” Vaughn Index, Doc #4 pp. 62-63. BOP’s declarant has explained “in
innumerable way[s], taking into account inmate ingenuity” how the release of the redacted
information could place individuals in harm’s way. See Wallace Decl. ¶¶ 58-61. Therefore,
summary judgment is granted on the Exemption 7(F) withholdings.
C. Record Segregability
BOP’s publicly filed declaration asserts that plaintiff has been provided “all reasonably
segregable nonexempt information” and that the withholdings were “narrowly tailored to protect
only the exempt material[.]” Wallace Decl. ¶ 63. The declarant also asserts correctly that the
attorney work product materials “are not amenable to segregability.” Id. The declarant explained
that “[f]urther description” of the withheld information . . . could identify the actual exempt
information the BOP has protected.” Id. Consequently, defendant was permitted to file under seal
an ex parte declaration and Vaughn Index describing the documents that were withheld in full
[Dkt. # 18]. The Court has reviewed those submissions in camera and finds the withholdings
under exemptions 2, 6, 7(C), 7(E), and 7(F) to be justified.
CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion for summary judgment. A
separate Order accompanies this Memorandum Opinion.
AMY BERMAN JACKSON
DATE: March 25, 2020 United States District Judge
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