Landis v. Federal Bureau of Prisons ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
:
CARLTON THEODORE LANDIS, :
:
Plaintiff, :
:
v. : Civil Action No. 21-0504 (CKK)
:
FEDERAL BUREAU OF PRISONS, et al., :
:
Defendants. :
_________________________________________ :
MEMORANDUM OPINION and ORDER
Plaintiff submitted requests under the Freedom of Information Act (“FOIA”), see 5
U.S.C. § 552, to the Office of Personnel Management (“OPM”), the Federal Bureau of Prisons
(“BOP”), the Executive Office for United States Attorneys (“EOUSA”), and the Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”). When he filed this case in the United
States District Court for the Northern District of Illinois on November 4, 2019 (ECF No. 1), he
had not received responses to his requests. The case was transferred to this federal district court
on March 3, 2021 (ECF No. 29). Defendants filed an Answer on July 28, 2021 (ECF No. 42),
and a motion for partial summary judgment on May 4, 2022 (ECF No. 55). On February 16,
2023, the Court granted defendants’ motion in part and denied the motion in part (ECF No. 71).
The Court concluded that BOP conducted reasonable searches for records responsive to
plaintiff’s FOIA requests and failed to justify its reliance on Exemption 6 to withhold certain
information about its employees. In addition, the Court concluded that ATF properly withheld in
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full under Exemptions 7(C) and 7(F) information about holders of federal explosives licenses in
Pennsylvania.
This matter is before the Court on plaintiff’s Motion for Summary Judgment (ECF No.
64) and Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and Defendant
EOUSA and OPM’s Cross-Motions for Summary Judgment (ECF No. 68). Because BOP’s
decision to withhold information about its employees is the topic of a separate motion (ECF No.
74), and because all claims regarding ATF have been resolved, here the Court discusses only
EOUSA’s and OPM’s responses to plaintiff’s FOIA requests. For the reasons discussed below,
the Court DENIES both motions without prejudice.1
I. Plaintiff’s FOIA Requests
A. FOIA Requests to EOUSA
There is some confusion about the number and nature of plaintiff’s FOIA requests to
EOUSA. Plaintiff represents that he “made about ten . . . FOIA requests” to EOUSA in 2019
and 2020, and that “[t]hese requests were no more than modifications of [his] original FOIA
request.” Pl.’s Reply at 6.2 Plaintiff does not identify which of these 10 requests is the
“original” request as distinguished from the “modifications.” Only one request, designated
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The Court’s consideration focused on the following documents:
• Plaintiff’s Motion for Summary Judgment (ECF No. 64), including his Brief in Support
of Summary Judgment (ECF No. 64 at 3-13, “Pl.’s Mem.”) and Statement of Material
Facts (ECF No. 64-1, “Pl.’s SMF”)
• Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and Defendant
EOUSA and OPM’s Cross-Motions for Summary Judgment (ECF No. 68), including
Defendants’ Statement of Material Facts (ECF No. 68-1, “Defs.’ SMF”) and the
declarations of Auborn Finney (ECF No. 68-1, “Finney Decl.”) and Becky C. Ronayne
(ECF No. 68-3, “Ronayne Decl.”)
• Plaintiff’s Reply to Defendant’s Opposition (ECF No. 72, “Pl.’s Reply”)
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Unless stated otherwise, all page numbers are those designated by CM/ECF.
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EOUSA-2019-002411, is mentioned in the complaint, see Compl. at 11, and only one request,
designated EOUSA-2019-003111, is referenced in plaintiff’s summary judgment motion, see
Pl.’s Mem. at 7-9. Consequently, the Court proceeds as if these are the only EOUSA requests at
issue.
1. Request Number EOUSA-2019-002411
EOUSA received a FOIA request from plaintiff on March 29, 2019, seeking information
about a civil action in the United States District Court for the Middle District of Pennsylvania,
Bone v. Crawford, No. 3:14-cv-1712, and a criminal action in the United States District Court for
the Eastern District of North Carolina, United States v. Landis, No. 5:13-cr-00189. See Defs.’
SMF ¶ 2; Finney Decl. ¶ 5 & Ex. A (ECF No. 68-2 at 8-13). EOUSA assigned the matter a
tracking number, EOUSA-2019-002411, Defs.’ SMF ¶ 2, and on September 9, 2019, EOUSA
released in full 216 pages of records, id. ¶ 10; see Finney Decl., Ex. E (ECF No. 68-2 at 29-30).
EOUSA has no record of “any follow up inquiries or appeals from [p]laintiff regarding [this]
request[].” Defs.’ SMF ¶ 11.
2. Request Number EOUSA-2019-003111
Plaintiff’s May 6, 2019, FOIA request to EOUSA, received on May 22, 2019, Defs.’
SMF ¶ 3, sought “documents related to all cases, within the last three years, that [the] office has
represented any prison staff member(s) employed at United States Penitentiary Lewisburg
(Pennsylvania/Middle District) for violating any inmate’s civil rights while that inmate was
incarcerated” there, Finney Decl., Ex. B (ECF No. 68-2 at 14-15).
EOUSA referred the matter, designated EOUSA-2019-003111, to the United States
Attorney’s Office for the Western District of Pennsylvania “given that the prison is located in
that district and [plaintiff] specifically requested that district to perform the search.” Defs.’ SMF
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¶ 6. No responsive records were located, and EOUSA notified plaintiff of the search results by
letter dated August 21, 2019. Defs.’ SMF ¶¶ 7-8; see Finney Decl., Ex. D (ECF No. 68-2 at 26-
27).
B. FOIA Requests to OPM
According to plaintiff, he “sent a FOIA request to the OPM in 2018 requesting the names
and past and present salaries, titles, duty stations, etc., of all BOP employees employed with the
BOP in 2017,” Pl.’s SMF ¶ 7, and received no response, id. ¶ 8. According to OPM, the agency
did not receive plaintiff’s 2018 request. Defs.’ SMF ¶ 17.
Plaintiff sent a second request to OPM in 2019 for “the names and past and present
salaries, titles, duty stations, etc., of all BOP employees employed by the BOP in 2018.” Pl.’s
SMF ¶ 9. On March 1, 2019, OPM received this request, Defs.’ SMF ¶ 18, and assigned the
matter a tracking number (2019-03611), id. ¶ 19. By letter dated March 21, 2019, OPM advised
that “his request was considered commercial” and fees would be assessed for processing it. Id.Because the letter was returned unopened, and because OPM had no alternative address for
plaintiff, OPM administratively closed the matter. Id.; Ronayne Decl. ¶ 8.
After this litigation commenced, “OPM . . . processed [p]laintiff’s FOIA request for both
2017 and 2018[.]” Defs.’ SMF ¶ 21. Staff of OPM’s Human Capital Data Management and
Modernization Directorate located responsive records in the Enterprise Human Resources
Integration database, see Ronayne Decl. ¶¶ 6, 11, and OPM “made . . . redactions pursuant to
FOIA Exemption 6 on the basis of OPM’s data release policy, which provides for the redaction
of identities and duty station locations of individuals in sensitive occupations, employed by
designated Security Agencies, or at the Department of Defense,” Ronayne Decl. ¶ 13; see Defs.’
SMF ¶ 25.
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On May 3, 2022, by certified mail, OPM sent plaintiff “a disc with information
concerning persons employed at BOP in 2017 and 2018.” Defs.’ SMF ¶ 24; see Ronayne Decl. ¶
12 & Ex. A (ECF No. 68-3 at 6-8). The files had been “zipped, encrypted and password-
protected using WinZip version 23.0,” and the password was to be sent to plaintiff separately,
Ronayne Decl., Ex. A (ECF No. 68-3 at 6). Plaintiff represented that he received the password
but not the disc. See Pl.’s SMF, Notes (ECF No. 64-1 at 9). He further represented that he had
requested the records in paper form, and demands OPM provide the records in the format of his
choosing. Pl.’s Reply at 9-10.
II. Legal Standard
A FOIA case typically is resolved on a motion for summary judgment. See Petit-Frere v.
U.S. Attorney’s Office for the Southern District of Florida, 800 F. Supp. 2d 276, 279 (D.D.C.
2011) (citations omitted), aff’d, No. 11-5285, 2012 WL 4774807, at *1 (D.C. Cir. Sept. 19,
2012) (per curiam). The Court grants summary judgment 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). An agency may meet its burden solely on the basis of affidavits or
declarations, see Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), as
long as they “describe the documents and the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record [or] by evidence of
agency bad faith,” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote
omitted).
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III. Discussion3
A. Adequacy of Searches for Responsive Records
An agency “fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and
internal quotation marks omitted). The Court may rely on an agency’s “reasonably detailed
[declarations], setting forth the search terms and the type of search performed, and averring that
all files likely to contain responsive materials (if such records exist) were searched.” Valencia-
Lucena, 180 F.3d at 326 (quoting Oglesby, 920 F.2d at 68) (internal quotation marks omitted).
1. EOUSA’s Searches for Responsive Records
a. Request Number EOUSA-2019-002411
Plaintiff does not challenge the EOUSA’s search for records responsive to Request
Number EOUSA-2019-002411 in his summary judgment motion. Nevertheless, EOUSA is not
entitled to summary judgment on this point because it fails to demonstrate that its search was
reasonable under the circumstances. Its declarant states that a search yielded 216 records which
were released in full. Finney Decl. ¶ 13; see Defs.’ SMF ¶ 10. EOUSA neither indicates what
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The Court denies defendants’ motions for summary judgment, see Defs.’ Mem. at 15-16, on
the ground plaintiff failed to exhaust administrative remedies prior to filing this lawsuit.
Exhaustion is not a jurisdictional requirement, Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.
2003), and instead is a prudential consideration, Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.
2004) (per curiam). The Court accepts plaintiff’s representations that he did not receive
responses to Request Number EOUSA-2019-002411 and OPM 2019-03611, see Pl.’s Decl. (ECF
No. 72 at 12-14) ¶ 5; Pl.’s SMF, Notes (ECF No. 64-1 at 9), and therefore had not been advised
of his right to pursue administrative appeals of the agencies’ initial determinations. And
although plaintiff did receive a response regarding Request Number EOUSA-2019-003111, the
Court excuses this pro se plaintiff’s misguided attempt to “appeal” the initial determination by
filing a “modified” FOIA request.
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system of records was likely to contain responsive records, describes how the search was
conducted nor identifies the records located and released to plaintiff.
b. Request Number EOUSA-2019-003111
Plaintiff challenges the adequacy of EOUSA’s search for records responsive to his
request for “any and all documents related to the EOUSA’s representation of the BOP or BOP
employee in any civil case where judgment was rendered against the BOP or BOP employee for
violating the civil rights of any inmate confined at USP Lewisburg.” Pl.’s Mem. at 7. According
to plaintiff, “[i]t would be ridiculous for anyone to believe, based on the extensive history of
UPS Lewisburg, that the EOUSA never represented the BOP or a BOP employee[.]” Id. He
purports to bolster his position by asserting that results from a separate FOIA request to BOP
yielded information about “four cases in which the EOUSA did take part in a civil action
rendered against the BOP.” Id. at 7-8. Plaintiff opines that EOUSA must have “in its possession
documents related to all civil cases rendered against the BOP or BOP employee,” and demands
that EOUSA search for and release such records. Id. at 8.
Plaintiff’s focus is misdirected, as the adequacy of an agency’s search is judged “not by
the fruits of the search, but by the appropriateness of the methods used to carry out the search.”
Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Thus, plaintiff is
not entitled to summary judgment on the ground he puts forward. EOUSA is not entitled to
summary judgment either because it does not demonstrate that its search was reasonable.
EOUSA’s declarant states that the agency referred plaintiff’s FOIA request to the United
States Attorney’s Office for the Western District of Pennsylvania because the prison is located
there and because plaintiff asked that that office’s records be searched. See Finney Decl. ¶ 9.
But the prison, USP Lewisburg, is located in the Middle District of Pennsylvania, as plaintiff’s
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FOIA request indicates. In this circumstance, EOUSA does not demonstrate that a search of
Western District records was reasonably calculated to locate records responsive to a request
pertaining to USP Lewisburg in the Middle District of Pennsylvania.
2. OPM’s Search for Responsive Records
The Court accepts OPM’s representation that it did respond to plaintiff’s FOIA requests,
see Defs.’ SMF ¶¶ 21-24, and, therefore, denies plaintiff’s summary judgment motion in part.
However, because OPM does not demonstrate that its search for responsive records was
reasonable, the Court will deny its cross-motion for summary judgment.
OPM’s declarant states that responsive records likely would be maintained by its Human
Capital Data Management and Modernization Directorate (HCDMM) in the Enterprise Human
Resources Integration database (EHRI), Ronayne Decl. ¶ 6, and that HCDMM staff sent the
requested data to plaintiff on a single CD by certified mail, id. ¶ 12. The declarant offers no
description of EHRI, how its records are organized, the means by which EHRI is searched, or the
responsive records themselves. On this meager record the Court cannot determine whether the
search was a reasonable one. Even if OPM had conducted a reasonable search, there is a second
reason to deny summary judgment: its justification for redacting information under Exemption 6
falls short.
C. Exemption 6
Under Exemption 6, “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy” are not subject to
disclosure. 5 U.S.C. § 552(b)(6). It is apparent that OPM’s responsive records qualify as
personnel and similar files within the scope of Exemption 6. OPM falters, however, because its
declaration asserts in conclusory fashion that release of the “names and duty locations, personnel
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and medical files . . . would constitute a clearly unwarranted invasion of personal privacy.”
Ronayne Decl. ¶ 13.
OPM relies on its Data Release Policy (https://www.opm.gov/policy-data-oversight/data-
analysis-documentation/data-policy-guidance/data-standards/data-release-policy-november-
2018.pdf) “which provides for the redaction of identities and duty station locations of individuals
in sensitive occupations, employed by designated Security Agencies, or at the Department of
Defense,” Ronayne Decl. ¶ 13, yet offers no explanation of how the policy applies to BOP and
its employees. While OPM’s Data Release Policy designates the Federal Bureau of
Investigation, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms
and Explosives, the Alcohol and Tobacco Tax and Trade Bureau, the United States Mint, the
United States Secret Service, and all U.S. Attorneys’ Offices as “security/sensitive agencies,”
responsive records presumably include employees who are not correctional officers and whose
occupations might not be sensitive, raising a question as to whether OPM’s Data Release Policy
applies to all BOP employees.
Exemption 6 “does not categorically exempt individuals’ identities, though, because the
privacy interest at stake may vary depending on the context in which it is asserted.” Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006) (quoting Armstrong v.
Executive Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996) (internal quotation marks
omitted). Given the lack of clarity as to the nature of the responsive records and the employees
about whom OPM has redacted information, the Court cannot evaluate the privacy interest at
stake or, in turn, whether the privacy interest outweighs any public interest in disclosure.
Accordingly, it is hereby
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ORDERED that plaintiff’s Motion for Summary Judgment [64] is DENIED WITHOUT
PREJUDICE; it is further
ORDERED that Defendants EOUSA and OPM’s Cross-Motions for Summary Judgment
[68] are DENIED WITHOUT PREJUDICE; and it is further
ORDERED that EOUSA and OPM shall file a renewed summary judgment motion by
June 15, 2023.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
DATE: May 10, 2023
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