Pinson v. U.S. Department of Justice , 236 F. Supp. 3d 338 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON :
:
Plaintiff, :
: Civil Action No.: 12-1872 (RC)
v. :
: Re Document No.: 293
DEPARTMENT OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ THIRD MOTION FOR SUMMARY JUDGMENT
While in prison, pro se plaintiff Jeremy Pinson filed multiple Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, requests seeking records from various components of the U.S.
Department of Justice (“DOJ”). In addition to releasing a number of records to Pinson, the DOJ
asked Pinson to clarify some of her1 records requests, told her that it could not find records
responsive to some of her requests, and informed her that the some of the records she sought
were exempt from disclosure by law. Pinson filed a complaint challenging some of these
determinations and alleging that the DOJ improperly withheld records.
In two prior opinions, this Court has granted in part and denied in part the DOJ’s first and
second requests for summary judgment as to the claims against the Bureau of Prisons (“BOP”).
See Defs.’ Mot. Summ. J. Respect BOP, ECF No. 147; Pinson v. U.S. Dep’t of Justice, No.
12-1872, 2016 WL 29245, at *1 (D.D.C. Jan. 4, 2016), ECF No. 259; Defs.’ 2d Mot. Summ. J.
1
Pinson identifies using feminine pronouns. The government and this Court follow suit.
See Defs.’ Mot. Dismiss or, Alt., Renewed Mot. Summ. J. at 2 n.1, ECF No. 287. The Court’s
use of feminine pronouns is not intended to reflect any substantive or legal characterization.
Respect BOP, ECF No. 265; Pinson v. U.S. Dep’t of Justice, No. 12-1872, at 21, ECF No. 309.2
Now before the Court is the DOJ’s third motion for summary judgment as to eleven FOIA
requests. See Defs.’ 3d Mot. Summ. J. Respect BOP (“Defs.’ 3d MSJ”), ECF No. 293. The DOJ
argues that, for each request, the BOP conducted adequate searches reasonably calculated to
identify responsive records and made proper withholdings pursuant to FOIA exemptions. See
Defs.’ Mem. P. & A., ECF No. 293-2. For the reasons set forth below, the Court grants in part
and denies in part the DOJ’s motion for partial summary judgment.
I. FACTUAL BACKGROUND
This Court has already explained the factual background in detail in its prior
Memorandum Opinion. See Pinson, 2016 WL 29245, at *1–5, ECF No. 259 at 3–12. The Court
assumes familiarity with its prior opinion and confines its discussion to the facts most relevant to
the present motion.
A. Request No. 2010-12533
In August 2010, Pinson submitted a request to the BOP for (1) inmate handbooks from
ADX Florence and (2) documents relating to the use of force against Pinson during November
2007 and any related Administrative Remedy Requests. See Corr. 2d Am. Compl. at 2, ECF No.
32; 3d Christenson Decl. ¶ 5 & Ex. A, ECF No. 293-3; Christenson Decl. ¶ 13 & Ex. 2, ECF No.
2
For clarity, the Court summarizes how Pinson’s FOIA requests against the BOP have
been winnowed down. This Court’s first opinion with regard to the BOP dealt with eighteen
record requests. See generally Memorandum Opinion, ECF No. 259; Order, ECF No. 258. The
Court entered judgment for the BOP on six of those requests in August of 2016, for Request Nos.
2011-4954, 2011-9164, 2011-9398, 2012-3706, 2013-3342, and 2013-3343. See generally Order,
ECF No. 308; Memorandum Opinion, ECF No. 309.
The parties stipulated to the dismissal of Request No. 13-2100 after additional briefing.
See BOP’s Supplemental Brief Regarding FOIA Request No. 2013-2011, ECF No. 325; Plaintiff
Stipulation to Doc. No. 325, ECF No. 329; Minute Order of September 28, 2016. The remaining
eleven requests—Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, 2011-7156,
2011-7619, 2012-39, 2012-40, 2012-975, and 2013-1684—are the subject of this opinion.
2
147-6. Pinson limited her request to two hours of search time and 100 pages of information. 3d
Christenson Decl. ¶ 5. After the BOP was denied summary judgment by this Court, it
reprocessed the request.3 See 3d Christenson Decl. ¶ 4.
The DOJ released 148 pages of responsive records in full and 32 pages in part, and
informed Pinson that it withheld 15 pages in full. Id. ¶ 12 & Ex. B. Exemption 5 was used to
withhold several sections of the After Action Review Reports, including the determination,
recommendations, and results. See Vaughn Index at 1–7, ECF No. 293-3, Ex. C. Exemption
7(C) and 7(F) were used to withhold a variety of information, including sections of documents
naming government employees and inmates. See Vaughn Index at 1–7. Exemption 7(F) was
also used to withhold the sections of documents which contained “security information used by
the BOP to manage inmates and ensure the safety of the institution and the times certain
activities occurred” as well as “the BOP’s monitoring and classification assignments for Pinson.”
See, e.g., Vaughn Index at 3, 4, 7. Exemption 7(C) was used to withhold in full a document
assessing a staff injury, and Exemptions 7(C) and 7(F) were used to withhold the daily
assignment rosters for facility staff. See Vaughn Index at 3, 6–7. The DOJ now moves for
summary judgment on the grounds that its search was adequate and that it produced to Pinson all
responsive records after properly withholding some records.4 See Defs.’ 3d MSJ at 1–2; Vaughn
Index at 1–7.
3
This Court previously rejected the BOP’s rationale for not processing this request,
which was based on Pinson’s alleged unpaid fees. See Pinson, 2016 WL 29245, at *16, ECF No.
259 at 36.
4
The BOP also claimed additional, redundant exemptions, but as the Court finds that all
of the material which was properly withheld was exempt from disclosure under either Exemption
5 or Exemption 7 it does not address these exemptions.
3
B. Request No. 2011-8435
In October 2010, Pinson submitted a request to the BOP seeking production of the
(1) Rated Capacity Computation Form (EMS-36); (2) Site Safety and Control Plan (ICS Form
208); (3) Incident Roster and Activity Log (ICS Form 214); and (4) Incident Action Plan Safety
Analysis (ICS Form 215a), all for FCI Talladega. See 3d Christenson Decl. ¶ 44 & Ex. D;
Greene Decl. ¶ 7 & Ex. 1, ECF No. 147-5. A Rated Capacity Computation Form is completed
by institutions “to determine and report their rated capacity and total capacity for overall
strategic planning.” 3d Christenson Decl. ¶ 45. The various ICS forms are part of an incident
management system adopted by the BOP that has not yet been activated at FCI Talladega. See
id. ¶¶ 47–48. Pinson limited her request to two hours of search time and 100 pages of
information. See id. ¶ 44; Greene Decl. Ex. 1. By letter dated December 2, 2010, the BOP
informed Pinson that no responsive documents had been located. See Greene Decl. ¶ 7 & Ex. 2.
The DOJ’s Office of Information Policy (“OIP”) closed Pinson’s appeal of that determination
due to pending litigation in this case, see id. ¶ 7 & Ex. 4, but, in light of the previous litigation,
the BOP later conducted another search “in additional areas” for responsive documents and
located 4 pages that were released to Pinson in full, see Blanco Decl. ¶ 10 & Attach. 1, ECF No.
147-4. The Court denied the DOJ’s first motion for summary judgment because the BOP failed
to provide a detailed affidavit setting forth the search terms and type of search performed to
locate records responsive to Request No. 2011-843. See Pinson, 2016 WL 29245, at *18; ECF
No. 259 at 40–41.
5
The Government labels this request as “Request No. 2011-843 (now 2016-2374).”
Defs.’ 3d Mot. Summ. J. Respect BOP (“Defs.’ 3d MSJ”), ECF No. 293.
4
After the Court issued that opinion the BOP re-processed Request No. 2011-843. See 3d
Christenson Decl. ¶ 4. The DOJ released 3 additional pages of responsive records in full and 1
page in part, id. ¶ 49 & Ex. E, and informed Pinson that it redacted a staff phone number under
Exemptions 7(C) and 7(F), see Vaughn Index at 8. The DOJ now again moves for summary
judgment, this time on the grounds that its search was adequate and that it produced all responsive
records not properly withheld. See Defs.’ 3d MSJ at 1–2; Vaughn Index at 8.
C. Request No. 2011-13516
In 2011, Pinson submitted a request to the BOP for the production of “[a]ll After-Action
Review Reports, pertaining to any inmate on inmate assault and/or homicide” occurring at FCI
Talladega during 2009–2010. See 3d Christenson Decl. ¶ 53 & Ex. F; Greene Decl. Ex. 5. The
BOP initially responded that it would withhold these records in full under Exemptions 6 and
7(C) because the requested records concerned other inmates. See Greene ¶ 8 & Ex. 6. After
Pinson appealed this determination to the OIP, the BOP conducted a search for requested After
Action Review Reports and located 97 total pages of responsive records. See id. ¶ 8 & Ex. 7.
The BOP ultimately released 58 pages in full and 39 pages in part, withholding the names and
register numbers of other inmates pursuant to Exemptions 6 and 7(C). See id. ¶ 8; id. Ex. 8; id.Ex. 9, at 1–2. The Court denied the DOJ’s first motion for summary judgment because the BOP
failed to provide a detailed affidavit setting forth the search terms and type of search performed
to locate records responsive to Request No. 2011-1351. See Pinson, 2016 WL 29245, at *18;
ECF No. 259 at 40–41.
6
The Government labels this request as “Request No. 2011-1351 (now 2016-2381).”
Defs.’ 3d MSJ at 1.
5
After the Court issued that opinion the BOP re-processed Request No. 2011-1351. See
3d Christenson Decl. ¶ 4. By letter dated May 25, 2016, the DOJ released 9 pages of responsive
records in part. Id. ¶ 56 & Ex. G. The BOP withheld the determinations and recommendations
of the After Action Review Reports under Exemption 5. Vaughn Index at 10–11. The BOP
redacted the names of other inmates, and file numbers containing those names, under Exemption
7(C). Vaughn Index at 9–11. Exemption 7(F) was also applied to withhold “the correctional
management techniques” the BOP used on other inmates, including their classification and
monitoring assignments. Vaughn Index at 9–11. The DOJ now again moves for summary
judgment, this time on the grounds that its search was adequate and that it produced to Pinson all
responsive records to which she is entitled after properly withholding some records.7 See Defs.’ 3d
MSJ at 1–2; Vaughn Index at 9–11.
D. Request No. 2011-18868
In 2010, Pinson submitted a request to the BOP for the production of documents
associated with her placement at ADX Florence. See 3d Christenson Decl. ¶ 64 & Ex. H; Greene
Decl. ¶ 9 & Ex. 10. The staff at FCI Talladega, where Pinson had been housed before she was
transferred to ADX Florence, searched its facility for responsive documents. See Greene Decl.
¶ 9 & Ex. 10. After this request was twice remanded by OIP for reprocessing, the BOP
identified 537 responsive pages, released 333 pages in full and 162 pages in part, and withheld
42 pages in full pursuant to Exemptions 6 and 7(C). See id. ¶¶ 10–12 & Ex. 17. The Court
denied the DOJ’s first motion for summary judgment because the BOP failed to provide a
7
The BOP also claimed additional, redundant exemptions, which the Court does not address.
8
The Government labels this request as “Request No. 2011-1886 (now 2016-2372).”
Defs.’ 3d MSJ at 1.
6
detailed affidavit setting forth the search terms and type of search performed. See Pinson, 2016
WL 29245, at *18; ECF No. 259 at 40–41.
After the Court issued that opinion the BOP re-processed Request No. 2011-1886. See
3d Christenson Decl. ¶ 4. By letter dated June 2, 2016, the DOJ released 52 additional pages of
responsive records in full and 48 pages in part, and informed Pinson that it redacted or withheld
records. Id. ¶ 70 & Ex. I. The BOP withheld “staff member[s’] recommendation[s] regarding
the future management of Pinson” under Exemption 5. Vaughn Index at 16, 17, 20. Exemption
7(C) was applied to redact the names of third-party individuals and inmates and contact
information for staff members. Vaughn Index at 12–20. Exemption 7(F) was applied to
withhold sections of records containing “information regarding gang activity and informant
activity within the BOP,” “a staff member’s response to questions posed by Pinson regarding
[her] ADX referral,” “the BOP’s monitoring and classification assignments for Pinson,” “a
statement made by a third-party individual to a law enforcement officer,” “discussion of an
inmate’s cooperation with law enforcement officers,” “the type of investigation being
conducted,” and “a factual summary of the investigation and conclusions of the investigator.”
Vaughn Index at 12–20. Exemption 7(F) was also used to withhold in full a letter containing
“gang activity and informant activity within the BOP” and “information used by the Bureau to
separate Pinson from other inmates,” as well as Pinson’s presentence report. Vaughn Index at
12–20. The DOJ now again moves for summary judgment, this time on the grounds that its
search was adequate and that it produced to Pinson all responsive records to which she is entitled.9
See Defs.’ 3d MSJ at 1–2; Vaughn Index at 12–20.
9
The BOP also claimed additional, redundant exemptions, which the Court does not address.
7
E. Request No. 2011-236610
In December 2010, Pinson submitted a request to the BOP seeking copies of “any final
settlement resulting in a [p]laintiff receiving monetary compensation arising from litigation
against officers or employees of the [BOP] in Lewisburg, PA; Oakdale, LA; Talladega, AL, from
2006–[2010].” 3d Christenson Decl. ¶ 95 & Ex. J; Greene Decl. ¶ 13 & Ex. 18. Pinson limited
her request to two hours of search time and 100 pages of information. See 3d Christenson Decl.
¶ 95 & Ex. J; Greene Decl. Ex. 18. After an outstanding fee for a prior FOIA request was
resolved, the BOP issued a letter to Pinson on December 10, 2013, informing her that no
responsive documents were located. See Greene Decl. ¶ 13 & Ex. 20. The Court denied the
DOJ’s first motion for summary judgment because the BOP failed to provide a detailed affidavit
setting forth the search terms and type of search performed to locate records responsive to
Request No. 2011-2366. See Pinson, 2016 WL 29245, at *18; ECF No. 259 at 40–41.
After the Court issued that opinion the BOP re-processed Request No. 2011-2366. See
3d Christenson Decl. ¶ 4. The BOP located a responsive “Stipulation for Compromise and
Settlement” and a responsive letter about an administrative tort claim. Vaughn Index at 21. The
BOP released 2 pages of records in full and 4 pages in part. 3d Christenson Decl. ¶ 101 & Ex. K.
The BOP withheld the names and addresses of other inmates and other involved individuals
under Exemption 6 and Exemption 7(C). Vaughn Index at 21. Exemption 6 and Exemption 7(C)
were also used to withhold the case numbers and administrative tort claim number. Vaughn
Index at 21. The DOJ now again moves for summary judgment, this time on the grounds that its
10
The Government labels this request as “Request No. 2011-2366 (now 2016-2371).”
Defs.’ 3d MSJ at 1.
8
search was adequate and that it produced to Pinson all responsive records to which she is entitled.11
See Defs.’ 3d MSJ at 1–2; Vaughn Index at 21.
F. Request No. 2011-7156
In April 2011, Pinson submitted a request to the BOP seeking (1) “All ADX Florence
placement decisions in which Assistant Director found placement not warranted since Jan. 1,
2009 with inmate names redacted,” (2) “emails between Central Office staff regarding [her]
ADX referral,” (3) “emails between SERO Regional staff regarding [her] ADX referral,”
(4) “List of psychology treatment programs at ADX Florence,” and (5) “All DHO Reports by
FCI Talladega DHO created since 2008 which find a BOP employee statement or memorandum
to not be credible.” See 3d Christenson Decl. ¶ 105 & Ex. L; Christenson Decl. ¶ 24 & Ex. 6,
ECF No. 147-6. She limited her request to no more than two hours search time and no more than
100 pages. See 3d Christenson Decl. ¶ 105 & Ex. L; 3d Christenson Decl. Ex. 6. After this
Court denied the BOP summary judgment,12 the BOP reprocessed Request No. 2011-7156. See
3d Christenson Decl. ¶ 4. The DOJ released 2 pages of responsive records in full and 7 pages in
part, id. ¶ 117 & Ex. M, and informed Pinson that it redacted staff and inmate names, identifying
information, and telephone numbers under Exemption 7(C), Vaughn Index at 22. Exemption
7(F) was also used to withhold the “BOP’s monitoring and classification assignments for third
party inmates.” Vaughn Index at 22.
As to Pinson’s request for emails, the DOJ initially advised Pinson that technical
difficulties prevented it from searching its email archives. Id. ¶ 117 & Ex. M. The DOJ later
11
The BOP also claimed additional, redundant exemptions, which the Court does not address.
12
The BOP requested summary judgment because Pinson was behind on her fees. See
Pinson, 2016 WL 29245, at *15–16; ECF No. 259 at 33–35. This Court denied summary
judgment because Pinson was not informed that she needed to either request that the BOP re-
open the request or submit an entirely new request. See id.9
stated that the search functionality was restored in October of 2016 and that an email search had
been performed. Status Report Regarding Bureau of Prisons Email System (Email Status
Report), ECF No. 353. The DOJ, however, also stated that the results of the email search were
being “reviewed for applicable exemptions,” and Pinson had therefore not yet received any
results. Email Status Report at 1. The DOJ now again moves for summary judgment as to all
records except for emails,13 on the grounds that its search was adequate and that it produced all
records not properly withheld.14 See Defs.’ 3d MSJ at 1–2; Vaughn Index at 22.
G. Request No. 2011-7619
In May 2011, Pinson submitted a request to the BOP seeking (1) “All Report of Incident
(Form 583) regarding homicides within the Bureau of Prisons since 2008,” (2) all documents
“related to Report of Incident Tracking #BMP 332.07,” (3) “Video recording ECN BMP-07599-
A,” (4) “All documents mentioning, involving, or relevant to Incident Report Nos. 1639219,
1639220, 2033413,” (5) “Anything related to the removal of televisions from ADX Special
Housing Unit at ADX Florence,” and (6) “Anything related to policies, procedures or guidelines
for issuance of a clock radio to SHU inmates at ADX Florence.” See 3d Christenson Decl. ¶ 126
& Ex. N; Christenson Decl. ¶ 63 & Ex. 14. She limited her request to no more than two hours
search time and no more than 100 pages. See 3d Christenson Decl. ¶ 126 & Ex. N; Christenson
Decl. Ex. 14. After this Court denied the BOP summary judgment in its previous opinion15 the
13
The DOJ clarified in its reply that it does not seek summary judgment as to any
responsive emails. See Defs.’ Reply Supp. Defs.’ 3d Mot. Summ. J. Respect BOP (“Defs.’
Reply”) at 1, ECF No. 321. This filing predated the DOJ’s update on the search tool, but
because Pinson has not yet received any results summary judgment remains premature.
14
The BOP also claimed additional, redundant exemptions, which the Court does not address.
15
As with Request No. 2011-7156, the BOP unsuccessfully sought summary judgment
without responding to the request on the grounds that Pinson had unpaid fees at the time of the
request. See Pinson, 2016 WL 29245, at *15–16; ECF No. 259 at 33–35.
10
BOP reprocessed the request. See 3d Christenson Decl. ¶ 4. The DOJ released 47 pages of
responsive records in full and 56 pages in part, and informed Pinson that it withheld 5 pages in
full. Id. ¶ 131 & Ex. O. Under Exemption 7(C), the BOP withheld the names and personal
information of other inmates. Vaughn Index at 23–24. Exemption 7(F) was used to withhold
information about the types and causes of incidents collected in incident reports, as well as “the
BOP’s monitoring and classification assignments of inmates.” Vaughn Index at 23–24. At one
time additional records responsive to Request No. 2011-7619 may have existed, but these
records were destroyed according to BOP policy during the two years Pinson failed to satisfy her
delinquent fees. See Defs.’ Reply at 4, ECF No. 321; see also Pinson, 2016 WL 29245, at *2;
ECF No. 259 at 4–5. The DOJ now again moves for summary judgment, this time on the grounds
that its search was adequate and that it produced to Pinson all responsive records to which she is
entitled after properly withholding records.16 See Defs.’ 3d MSJ at 1–2; Vaughn Index at 23–24.
H. Request No. 2012-40
In September 2011, Pinson submitted a request to the BOP seeking “production of all
emails sent by the North Central Regional Director and Warden of the U.S. Penitentiary
Administrative Maximum during 2011.” See 3d Christenson Decl. ¶ 140 & Ex. P; Christenson
Decl. ¶ 115 & Ex. 22. She limited her request to no more than two hours search time and no
more than 100 pages, and she also asked for a cost estimate of any pages beyond the 100 pages
she requested. See 3d Christenson Decl. ¶ 140 & Ex. P; Christenson Decl. Ex. 22. The BOP has
reprocessed this request, see 3d Christenson Decl. ¶ 4, after this Court’s previous denial of
16
The BOP also claimed additional, redundant exemptions, which the Court does not address.
11
summary judgment.17 By letter dated May 16, 2016, the DOJ advised Pinson that technical
difficulties prevented the BOP from searching its email archives. Id. ¶¶ 141–42 & Ex. Q. The
search capacity was repaired in October of 2016 and the search has now been executed. Email
Status Report, ECF No. 353. However, as of January of 2017, Pinson had not yet received any
results because the records were still being reviewed for potential FOIA exemptions. Id. The
DOJ states in its reply that it did not seek summary judgment as to this request while the search
functionality was inoperable. See Defs.’ Reply at 1. Because no email results have yet been
provided to Pinson, summary judgment remains premature.
I. Request No. 2012-39
In September 2011, Pinson submitted a request to the BOP seeking (1) “Report of
Incident and After-Action Review Report written, produced or generated in connection with the
2008 U.S. Penitentiary High riot at Florence, CO,” and (2) “All emails, memorandums by ADX
Florence Executive Staff and/or Department Supervisors written or generated in connection with
the 2011 Accreditation review by the ACA and/or making reference or mentioning such review.”
See 3d Christenson Decl. ¶ 143 & Ex. R; Christenson Decl. ¶ 119 & Ex. 24. She limited her
request to no more than two hours search time and no more than 100 pages. See 3d Christenson
Decl. ¶ 143 & Ex. R; Christenson Decl. Ex. 24. The BOP has reprocessed this request, see 3d
Christenson Decl. ¶ 4, after this Court denied the BOP summary judgment in its previous
opinion.18 The DOJ released 1 page of responsive records in full and 11 pages in part, and
17
As with several of Pinson’s other requests, the BOP was previously denied summary
judgment after it refused to respond to the request due to Pinson’s unpaid fees. See Pinson, 2016
WL 29245, at *15–16; ECF No. 259 at 33–35.
18
As with several of Pinson’s other requests, the BOP was previously denied summary
judgment after it refused to respond to the request due to Pinson’s unpaid fees. See Pinson, 2016
WL 29245, at *15–16; ECF No. 259 at 33–35.
12
informed Pinson that it withheld 4 pages in full. Id. ¶ 147 & Ex. S. The BOP applied Exemption
5 to withhold “an email discussion between BOP staff regarding proposed steps to take in
anticipation of the ACA re-accreditation” and “the preliminary cause of death of deceased
inmates . . . [and] the estimated cost of the damage associated with incident.” Vaughn Index at
25–26. The BOP also withheld the conclusion and recommendations from an After Action
Review Report under Exemption 5. Vaughn Index at 26. The BOP withheld the names and
personal information of individuals including inmates and third-parties under Exemption 7(C).
Vaughn Index at 25–26. The BOP also applied exemption 7(E) to withhold “the techniques law
enforcement officers used to contain and control a critical incident.” Vaughn Index at 26. The
BOP also used exemption 7(F) to withhold “classification and monitoring assignments for third
party inmates.” Vaughn Index at 26.
The response to this request was also affected by the malfunction in the BOP’s email
search tool. 3d Christenson Decl. ¶ 147 & Ex. S. That tool has since been repaired and a search
executed, but the results of that search are still being examined for applicable FOIA exemptions
and have thus not been released to Pinson. Email Status Report, ECF No. 353. Prior to repairing
the email search tool, the DOJ moved for summary judgment except as to any potentially
responsive emails,19 on the grounds that its search was adequate and that it produced all records
other than those properly withheld.20 See Defs.’ 3d MSJ at 1–2; Vaughn Index at 25–26. Because
no email results have yet been provided to Pinson, summary judgment remains premature.
19
The DOJ clarified in its reply that it is not moving for summary judgment regarding
emails responsive to Request No. 2012-39, only regarding the other components of the request.
See Defs.’ Reply at 1.
20
The BOP also claimed additional, redundant exemptions, which the Court does not address.
13
J. Request No. 2012-975
In October 2011, Pinson submitted a request to the BOP seeking (1) the “2010–2011 U.S.
Penitentiary Admin. Max. – Florence, CO Administrative Remedy Index,” and (2) “all
2010–2011 Form 583 Report of Incident[s] from ADX Florence reporting Inmate on Inmate
assaults to the NCRO.” See 3d Christenson Decl. ¶ 162 & Ex. T; Christenson Decl. ¶ 123 & Ex.
26. The BOP has reprocessed this request, see 3d Christenson Decl. ¶ 4, after this Court denied
the BOP summary judgment in its previous opinion.21 By letter dated May 16, 2016, the DOJ
released 171 pages of responsive records in full and 43 pages in part, and informed Pinson that it
redacted or withheld records. Id. ¶ 166 & Ex. U. The BOP applied Exemption 6 to withhold the
names of third-party individuals from the administrative remedy index. Vaughn Index at 27.
Under Exemption 7(C), the BOP redacted the names and personal information of third-party
individuals and inmates. Vaughn Index at 27–34. Under Exemption 7(F), the BOP withheld
“the BOP’s monitoring and classification assignments for third-party inmates” and “information
regarding an assault on an inmate and attachments [to the form].” Vaughn Index at 27–34. The
DOJ now again moves for summary judgment on the grounds that its search was adequate and
that it produced all responsive records except those properly withheld.22 See Defs.’ 3d MSJ at 1–2;
Vaughn Index at 27–34.
K. Request No. 2013-1684
In November 2011, Pinson submitted a request to the BOP seeking the “production of all
information produced on or after February 25, 2011 which is located in the Central File, SIS File,
21
As with several of Pinson’s other requests, the BOP was previously denied summary
judgment after it refused to respond to the request due to Pinson’s unpaid fees. See Pinson, 2016
WL 29245, at *15–16; ECF No. 259 at 33–35.
22
The BOP also claimed additional, redundant exemptions, which the Court does not address.
14
and any other file maintained on Jeremy Pinson.” See 3d Christenson Decl. ¶ 176 & Ex. V;
Christenson Decl. ¶ 132 & Ex. 30. The BOP has reprocessed this request, see 3d Christenson
Decl. ¶ 4, after this Court denied the BOP summary judgment in its previous opinion.23 The
reprocessing resulted in an estimated 8,655 pages of responsive records at an anticipated fee of
$427.75. See 3d Christenson Decl. ¶¶ 4, 183–84. By letter dated May 16, 2016, the DOJ
advised Pinson that it had paused its processing until she provided advanced payment, and
offered her the option of either paying the expected fee, modifying her request to limit the
responsive materials, or receiving only the first 100 pages for free. Id. ¶ 184 & Ex. W. By letter
dated May 24, 2016, Pinson indicated she no longer sought documents from her Central File on
or before October 1, 2014, or her SIS file between February 25, 2011, and October 2013. Id.¶ 185 & Ex. X. As of June 10, 2016, the BOP was waiting for new page estimates to determine
if an amended fee letter needed to be sent to Pinson or if the records could be processed. Id.
¶ 186. Despite not having responded to the request, the DOJ’s briefing suggests that it moves for
summary judgment on this request. See Defs.’ 3d MSJ at 1–2.
II. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). Summary judgment is appropriate
where “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). A “material” fact is one
capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc.,
23
As with several of Pinson’s other requests, the BOP was previously denied summary
judgment after it refused to respond to the request due to Pinson’s unpaid fees. See Pinson, 2016
WL 29245, at *15–16; ECF No. 259 at 33–35.
15
477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable
jury to return a verdict for the nonmovant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the nonmovant
must point to specific facts in the record that reveal a genuine issue that is suitable for trial.
Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the nonmovant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions
offered without any evidentiary support do not establish a genuine issue for trial. See Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
When assessing a summary judgment motion in a FOIA case, a court makes a de novo
assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C.
§ 552(a)(4)(B); Judicial Watch v. U.S. Dep’t of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C.
2009). To prevail on a motion for summary judgment, “the defending agency must prove that
each document that falls within the class requested either has been produced, is unidentifiable or
is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice,
627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat’l Cable
Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a defendant
may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for
16
Ethics & Responsibility in Wash. v. Dep’t of Labor, 478 F. Supp. 2d 77, 80 (D.D.C. 2007)
(“[T]he Court may award summary judgment solely on the basis of information provided by the
department or agency in declarations when the declarations 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.’” (quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “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) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)).
Generally, a reviewing court should “respect the expertise of an agency” and not “overstep the
proper limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv.,
608 F.2d 1381, 1388 (D.C. Cir. 1979).
Even if the nonmovant does not respond to the motion for summary judgment, the court
cannot grant the motion for the reason that it was conceded. See Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a
motion for summary judgment cannot be ‘conceded’ for want of opposition. ‘The burden is
always on the movant to demonstrate why summary judgment is warranted. The nonmoving
party’s failure to oppose summary judgment does not shift that burden.’ The District Court
‘must always determine for itself whether the record and any undisputed material facts justify
granting summary judgment.’” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C.
Cir. 2015) (Griffith, J., concurring) and citing Fed. R. Civ. P. 56(e)(3))).
17
III. ANALYSIS
A. Adequacy of the BOP’s Search
The DOJ asserts that its searches in response to all eleven requests were adequate. See
Defs.’ 3d MSJ at 1–2. Even where Pinson does not contest the adequacy of a search, the Court
will nonetheless independently determine whether the record and undisputed material facts
justify granting summary judgment. Under FOIA, an adequate search is one that is “reasonably
calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.
2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983)). The agency need not to search “every record system” for the
requested documents, but it “must conduct a good faith, reasonable search of those systems of
records likely to possess the requested records.” Marino v. Dep’t of Justice, 993 F. Supp. 2d 1, 9
(D.D.C. 2013) (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
When an agency seeks summary judgment on the basis that it conducted an adequate search, it
must provide a “reasonably detailed” affidavit describing the scope of that search. Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d
at 68). It is not enough, however, for the affidavit to state in conclusory fashion that the agency
“conducted a review of [the files] which would contain information that [the plaintiff] requested”
and did not find anything responsive to the request. Weisberg, 627 F.2d at 370. On the other
hand, once the agency has provided a reasonably detailed affidavit describing its search, the
burden shifts to the FOIA requester to produce “countervailing evidence” suggesting that a
genuine dispute of material fact exists as to the adequacy of the search. Morley, 508 F.3d at
1116 (citation omitted).
18
Here, the DOJ argues that its searches for records in response to each request were adequate.
See Defs.’ 3d MSJ at 1–2. The Court agrees that the searches conducted with respect to seven of
these requests were wholly adequate. However, the Court finds that the BOP has yet to complete
its responses to Pinson for Request Nos. 2011-7156, 2012-40, 2012-39, and 2013-1684.
1. Request Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, and 2012-975.
The Court agrees with the DOJ that its searches in response to Request Nos. 2010-12533,
2011-843, 2011-1351, 2011-1886, 2011-2366, and 2012-975 were adequate, which Pinson does
not contest. See Defs.’ 3d MSJ at 1–2; Pl.’s Resp., ECF No. 314. The DOJ provided a
declaration from the BOP showing an organized and thorough search for these six requests. See
generally 3d Christenson Decl. Specifically, the declaration and the DOJ’s briefing canvass each
request in detail, explain to whom the request was sent, the specific databases searched, and,
where appropriate, identify the specific search terms used to locate the documents. See Defs.’
Mem. P. & A. at 4–21; 3d Christenson Decl. ¶¶ 2–13, 44–50, 53–57, 64–71, 95–101, 162–167.
The declaration’s descriptions suffice to provide a “reasonably detailed” account of the scope of
the BOP’s search for each of these six requests. See Hidalgo v. FBI, No. 10-5219, 2010 WL
5110399, at *1 (D.C. Cir. Dec. 15, 2010) (“[S]ubstantial weight traditionally [is] accorded [to]
agency affidavits in FOIA ‘adequacy of search’ cases.” (citing Chambers v. U.S. Dep’t of the
Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009))).
For example, with respect to Request No. 2011-2366, which sought copies of “any final
settlement resulting in a [p]laintiff receiving monetary compensation arising from litigation
against officers or employees of the [BOP] in Lewisburg, PA; Oakdale, LA; Talladega, AL, from
2006–[2010],” Ms. Christenson attests that both the Southeast Regional Office of the BOP and
the Supervisory Attorneys assigned to the BOP facilities in those cities searched for responsive
19
records. See 3d Christenson Decl. ¶¶ 95, 98–99. Ms. Christenson explains that the BOP
maintains these types of records in two different databases created by the BOP’s Office of
General Counsel, which track civil litigation handled by BOP attorneys and administrative tort
claims received by a BOP legal office. See id. ¶¶ 96–97. Ms. Christenson elaborates on the
databases’ search capabilities, stating that the databases “are searchable by incident institution,
date, and case disposition.” Id. at ¶ 98. She asserts that the staff ran a search for the settlement
cases based on the criteria provided by Pinson, and the search identified responsive cases, the file
was opened within the database to retrieve any documents showing the final settlement paid. Id.
In addition, Ms. Christenson explains that the supervisory attorneys and legal staff in the
individual legal office in each of the three cities also reviewed their case tracking logs for any
cases identified as settled that fit the criteria of Pinson’s request and hand searched the legal file
for responsive settlement documents of any case identified. See id. ¶ 99. Ultimately, Ms.
Christenson states that “[s]ix pages of responsive documents had been located.” Id. ¶ 100. Ms.
Christenson provides the same type of reasonably detailed information describing the BOP’s
searches in response to Request Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, and 2012-
975. See id. ¶¶ 2–13, 44–50, 53–57, 64–71, 162–167; Vaughn Index, ECF No. 293-3, Ex. C.
The Court thus concludes that the BOP conducted a good faith, reasonable search in response to
these requests. Accordingly, the Court grants the DOJ’s motion for summary judgment with
respect to the adequacy of the BOP’s search for Request Nos. 2010-12533, 2011-843, 2011-
1351, 2011-1886, 2011-2366, and 2012-975.
2. Request No. 2011-7619
Pinson does contest the adequacy of the DOJ’s search in response to Request No. 2011-
7619, arguing that the BOP improperly destroyed responsive records. Pl.’s Resp. at 2. This
20
complaint centers on the request for documents related to Report of Incident #BMP 332.07 and
video recording ECN BMP-07599-A. The BOP informed Pinson that no records could be found
related to either topic because its evidence control log indicated that “the evidence and all
information regarding the evidence had been destroyed,” pursuant to “routine evidence retention
policies.” 3d Christenson Decl. ¶ 127. The BOP explained that the records were deleted during
the two year period when the request was closed because Pinson owed fees for a separate
request. Def.’s Reply at 4, ECF No. 321; see also Memorandum Opinion at 33–35, ECF No. 259.
The Court agrees with the DOJ that the search was adequate because the records were destroyed
prior to Pinson paying her overdue fees and in accordance with the BOP’s established record
retention policies.
It is well established that FOIA does not require an agency to retain records, but only to
provide access to records that have been retained. Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 151–52 (1980). It is thus clear that an agency that destroys documents
prior to receiving a FOIA request covering those documents has committed no error. See id. at
155 n.9 (“[A] ‘withholding’ must here be gauged by the time at which the request is made since
there is no FOIA obligation to retain records prior to that request.”). In this case, the documents
were destroyed not before the initial FOIA request, but while that initial request was closed due
to Pinson’s unpaid fees. Because the request was closed when the documents were
destroyed—and may never have been reopened, if Pinson’s bills had languished unpaid—this
situation is equivalent to the situations in which records were destroyed before the request was
filed. See Flowers v. IRS, 307 F. Supp. 2d 60, 72 (D.D.C. 2004) (approving the agency’s
conduct when “the federal document-retention machinery lumbered forward on schedule, and the
plaintiff's file was destroyed” during a period after the plaintiff filed a FOIA request but before
21
the plaintiff corrected procedural errors with that request). The alternative would bind agencies
to indefinitely maintain files potentially related to any procedurally defective FOIA requests, on
the possibility that a request might someday ripen into a perfected FOIA request.24
Pinson does not otherwise object to the adequacy of the search for Request No. 2011-
7619, and the BOP provided a detailed affidavit sufficiently describing its methods, 3d Christenson
Decl. ¶¶ 126–132; Vaughn Index, ECF No. 293-3, Ex. C. The Court therefore finds that there is
no genuine issue of material fact as to the adequacy of the BOP’s search in response to Request
No. 2011-7619 and grants the DOJ’s motion for summary judgment with respect to adequacy.
3. Request Nos. 2011-7156, 2012-40, and 2012-39
Pinson disputes the adequacy of the BOP’s search in response to Request Nos. 2011-
7156, 2012-40, and 2012-39, Pl.’s Resp. at 1, all of which involved searches of emails. The BOP
was initially prevented from searching its email archives by technical problems. See 3d
24
Even if the records had been destroyed after Pinson’s request was reopened by this
Court, the BOP would likely not have violated FOIA. Of course, an agency cannot, in bad faith,
“avoid a FOIA request by intentionally ridding itself of a requested document.” DiBacco v. U.S.
Army, 795 F.3d 178, 192 (D.C. Cir. 2015) (citing Chambers, 568 F.3d at 1004). But, the bar on
intentionally destroying material sought by a FOIA request does not forbid an agency from
unintentionally destroying FOIA material in accordance with a neutral record retention policy.
Pinson cites no legal authority in support of the proposition that the documents “should have
been automatically preserved particularly once they were the focus of a FOIA request.” Pl.’s
Resp. at 2. As the BOP notes, “until the BOP processes a request, it has no way of knowing
what records may be responsive.” Defs.’ Reply at 4. Adopting Pinson’s suggestion would thus
paralyze agencies. Instead, “[t]he critical issue . . . in a dispute over a document that an agency
no longer has, is the agency’s motivation for disposing of or transferring that document. If ‘the
agency is no longer in possession of the document, for a reason that is not itself suspect,’ FOIA
[is satisfied].” DiBacco v. U.S. Army, 795 F.3d 178, 192 (D.C. Cir. 2015) (emphasis added)
(quoting SafeCard, 926 F.2d at 1201). An agency’s routine record retention policy—like the one
at issue here—is the paradigmatic example of a non-suspect explanation for destroying a
document. See Boyd v. Crim. Div. of U.S. Dep’t of Justice, 475 F.3d 381, 392 (D.C. Cir. 2007)
(“[E]ven if the documents were destroyed [after the FOIA request and before the initial
response], their destruction, if performed in accordance with specified guidelines, would not
imply bad faith.”).
22
Christenson Decl. ¶¶ 117, 141–42, 145, 147 (“[The] email archive system is currently
unavailable due to technical issues, and it is not clear when it will be restored. [The BOP] will
request a search of the email archive system for this portion of Pinson’s request when it is
restored.”). In October of 2016, the search tool was fixed, and the BOP subsequently performed
searches for records responsive to Request Nos. 2011-7156, 2012-40, and 2012-39. Email Status
Report, ECF No. 353. Although the searches have been performed, Pinson has not yet received
any response because the search results are still being evaluated for potential FOIA exemptions.
Id. The DOJ clarified in its reply briefing—prior to informing the Court that the search
capability was repaired—that it did not seek summary judgment as to the emails. See Defs.’
Reply at 1. Because Pinson has not yet received any response to which she may be entitled,
summary judgment is still not appropriate because the agency has not yet fully discharged its
FOIA obligations. See Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C.1996) (citing Weisberg v.
DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). The Court thus agrees with Pinson and the DOJ
that summary judgment is not appropriate as to the email portions of Request Nos. 2011-715625
25
In Request No. 2011-7156, Pinson also sought “All DHO Reports by FCI Talladega
DHO created since 2008 which find a BOP employee statement or memorandum to not be
credible.” See 3d Christenson Decl. ¶ 105. The BOP attempted a search, but determined that it
“did not maintain records in a format that would allow a search.” 3d Christenson Decl. ¶ 115.
This was for three reasons: first, reports of the requested type are searchable only by number or
inmate, not by facility, and the search could thus not be easily narrowed to FCI Talladega DHO;
second, if an employee’s statement was found to be not credible, the report would be expunged
and the record would then be indistinguishable from all reports expunged for other reasons; and
third, after a record has been expunged, it is not available to be opened to determine the cause for
the expungement. 3d Christenson Decl. ¶¶ 115–16. Pinson does not specifically object to the
reasonableness of the BOP’s search. The Court thus finds that the BOP has met its burden and
need not perform additional searches because Pinson did not describe the desired records in a
way sufficient to “enable[] a professional employee of the agency who was familiar with the
subject area of the request to locate the record with a reasonable amount of effort.” Dale v. IRS,
238 F. Supp. 2d 99, 104 (D.D.C. 2002) (quoting Marks v. United States, 578 F.2d 261, 263 (9th
Cir. 1978)).
23
and 2012-39. Because all of the records sought under Request No. 2012-40 are emails, summary
judgment is thus not appropriate as to any portion of Request No. 2012-40. The BOP should file
a supplemental motion for summary judgment after the results have been produced to Pinson.
The DOJ does move for summary judgment as to the non-email portions of Request Nos.
2011-7156 and 2012-39 on the grounds that its search was adequate and that all records withheld
were properly withheld. See Defs.’ 3d MSJ at 1–2; Defs.’ Reply at 1. The DOJ submits
affidavits sufficiently describing its search terms and methods for the non-email portions of
Request Nos. 2011-7156 and 2012-39. 3d Christenson Decl. ¶¶ 105–118, 143–148; Vaughn
Index. Pinson does not object to the adequacy of these searches, and this Court concludes that
there is no genuine issue of material fact. The Court thus grants the DOJ’s motion for summary
judgment as to the adequacy of its search for non-email records responsive to Request Nos.
2011-7156 and 2012-39.
4. Request No. 2013-1684
The DOJ asserts that its search in response to Request No. 2013-1684 was adequate. See
Defs.’ 3d MSJ at 1–2. Although Pinson does not specifically object, the Court notes that the
BOP has apparently not yet provided any response to Pinson. See 3d Christenson Decl. ¶ 186
(“[A] search was initiated . . . [and] [a]s of the date of this declaration, [the BOP] [is] waiting for
page estimates to determine if an amended fee letter needs to be sent to Pinson or if the records
can be processed.”). Given that summary judgment is available only when “the agency proves
that it has fully discharged its obligations under the FOIA,” the Court must deny the DOJ
summary judgment as to Request No. 2013-1684. See Moore, 916 F. Supp. at 35.
24
B. FOIA Exemptions
Here, the DOJ asserts that the BOP properly invoked Exemptions 5, 6, 7(C), and 7(F)26 to
redact or withhold certain information from responsive records. See Defs.’ 3d MSJ at 1–2;
Vaughn Index, ECF No. 293-3, Ex. C. The Court will evaluate each invoked exemption in turn.
“[D]isclosure, not secrecy, is the dominant objective of [FOIA].” Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361 (1976). “Consistent with this purpose, agencies may withhold only
those documents or portions thereof that fall under one of nine delineated statutory exemptions.”
Elliot v. USDA, 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S.C. § 552(b)). “[T]he
exemptions are ‘explicitly exclusive.’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
(1989) (quoting FAA Adm’r v. Robertson, 422 U.S. 255, 262 (1975)).
It is the agency’s burden to show that withheld material falls within one of these
exemptions. See 5 U.S.C. § 552(a)(4)(B); Elliott, 596 F.3d at 845. “The [C]ourt . . . ‘impose[s]
a substantial burden on an agency seeking to avoid disclosure’ through the FOIA exemptions.”
Morley, 508 F.3d at 1114 (quoting Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973))
(alteration in original). The agency’s documents supporting the exemption, including the
Vaughn index, must “permit adequate adversary testing of the agency’s claimed right to an
exemption.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp.
2d 226, 230 (D.D.C. 2012) (quoting Kimberlin v. U.S. Dep’t of Justice, 139 F.3d 944, 950 (D.C.
Cir. 1988)). Accordingly, disclosure exemptions are “narrowly construed,” and “‘conclusory
and generalized allegations of exemptions’ are unacceptable.” See Morley, 508 F.3d at 1114–15
26
The DOJ also invokes Exemptions 2 and 7(E) as grounds for redacting or withholding
materials from its responses. See generally Vaughn Index. Because the Court has determined
that the withholding of all records stands or falls on the applicability of Exemptions 5, 6, 7(C),
and 7(F), the Court does not reach the question of whether Exemptions 2 and 7(E) apply. See
infra Section III.B.1, III.B.2, and III.B.3.
25
(quoting Founding Church of Scientology of Wash., D. C., Inc. v. Nat’l Sec. Agency, 610 F.2d
824, 830 (D.C. Cir. 1979)). However, courts generally respect the factual reasoning of agencies,
and “[u]ltimately[] 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) (quoting
Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Thus, “a reviewing court should
‘respect the expertise of an agency’ and not ‘overstep the proper limits of the judicial role in
FOIA review.’” Pinson v. U.S. Dep’t of Justice, 160 F. Supp. 3d 285, 293 (D.D.C. 2016)
(quoting Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979)).
1. Exemption 5
The DOJ argues that the BOP properly invoked Exemption 5 in its responses to Request
Nos. 2010-12533, 2011-1351, 2011-1886, and 2012-39.27 See Defs.’ Mem. P. & A. at 27–28; 3d
Christenson Decl. ¶¶ 17–18, 58, 72, 149–51; Vaughn Index. Exemption 5 permits the
withholding of “inter-agency or intra-agency memorandums or letters that 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). This
exemption protects documents “normally privileged in the civil discovery context,” Judicial
Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004), including “what is
sometimes called the ‘deliberative process’ privilege,” Dep’t of the Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001). The deliberative process privilege “covers
documents reflecting advisory opinions, recommendations, and deliberations comprising part of
a process by which governmental decisions and policies are formulated.” Id. at 8 (quoting NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
27
The analysis of Request No. 2012-39 deals only with the non-email materials. See
supra Part III.A.3.
26
For the deliberative process privilege to apply, a court must first determine whether the
document is both predecisional and deliberative. Access Reports v. Dep’t of Justice, 926 F.2d
1192, 1194 (D.C. Cir. 1991). “A document is predecisional if it is ‘generated before the
adoption of an agency policy.’” McKinley v. FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010)
(quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). A
document is “deliberative” if it “reflects the give-and-take of the consultative process,” id.(quoting Coastal States Gas, 617 F.2d at 866), “by which the decision itself is made,” Jowett,
Inc. v. Dep’t of the Navy, 729 F. Supp. 871, 875 (D.D.C. 1989) (quoting Vaughn v. Rosen, 523
F.2d 1136, 1144 (D.C. Cir. 1975)).
The DOJ claims that Exemption 5 justifies withholding sections of multiple After Action
Review Reports. See Vaughn Index at 1–7, 10–11, 26 (dealing with exemptions from Request
Nos. 2010-12533, 2011-1351, and 2012-39). After Action Review Reports are “prepared by
Bureau staff, and . . . reviewed by additional Bureau staff . . . .” See Statement Mat. Facts Not
Genuine Dispute ¶ 11, ECF No. 293-1. The BOP claims that it withheld “recommendations
regarding whether a use of force was appropriate and suggestions for improving uses of force for
the future” from its disclosures of the reports. See, e.g., 3d Christenson Decl. ¶ 17; see also
Vaughn Index at 1–7, 10–11, 26 (describing portions of documents withheld in response to
Request Nos. 2010-12533, 2011-1351, and 2012-39).
Pinson argues that the DOJ must disclose the After Action Review Reports in their
entirety here because it has previously disclosed similar documents during discovery in civil
litigation. See Pinson Decl. ¶ 6, ECF No. 314. However, FOIA exemptions are not coextensive
with civil discovery standards. See Stonehill v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009). FOIA
permits agencies to make “discretionary disclosures” of information that is exempt from
27
mandatory disclosures. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1134 n.1 (D.C. Cir.
1987) (explaining that an agency’s FOIA disclosure decision can “be grounded either in its view
that none of the FOIA exemptions applies, and thus that disclosure is mandatory, or in its belief
that release is justified in the exercise of its discretion, even though the data fall within one or
more of the statutory exemptions.”). Therefore, even assuming, arguendo, that the DOJ has
disclosed similar documents during discovery in civil lawsuits, that disclosure does not mandate
disclosure in the instant case.
However, upon its independent inquiry, this Court is not satisfied that the DOJ has
carried its burden of showing that Exemption 5 applies to the After Action Review Reports. In
dealing with Exemption 5, the need for the agency to describe withheld records is at its height
“because ‘the deliberative process privilege is so dependent upon the individual document and
the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v. Dep’t of Air
Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States, 617 F.2d at 867). The
agency must show that the record was “generated as part of a definable decision-making
process.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.
Supp. 2d 123, 135–36 (D.D.C. 2011) (citing Petroleum Info. Corp. v. U.S. Dep’t of the Interior,
976 F.2d 1429, 1434 (D.C. Cir. 1992)). This showing typically includes “(1) the nature of the
specific deliberative process involved, (2) the function and significance of the document in that
process, and (3) the nature of the decisionmaking authority vested in the document’s author and
recipient.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 189 (D.D.C. 2013) (citing Senate
of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987); Arthur Andersen & Co.
v. IRS, 679 F.2d 254, 257–58 (D.C. Cir. 1982); Coastal States, 617 F.2d at 867–68).
28
The BOP’s disclosures regarding the After Action Review Reports fall short of meeting
this standard. The BOP does not define the nature of the deliberative process involved. Is the
deliberative process one of how Pinson should be classified? An ongoing refinement of the
BOP’s policies on the use of force in general?28 While the BOP need not identify a specific
policy decision, it must at least describe the decisionmaking process at issue. Furthermore, the
BOP does not sufficiently describe the function or significance of the After Action Review
Reports in that process, or the nature of the decisionmaking authority of the author and recipient.
Who drafts the Reports? Who reviews them? Are the “determinations” withheld from the
Reports final, or are they revised later? For these reasons, the BOP has not yet carried its burden
of establishing that the After Action Review Reports are properly withheld under Exemption 5.
The same flaws undercut the BOP’s application of Exemption 5 to other records,
including a memorandum from one BOP staff member to another BOP staff member;29 referrals
and recommendations regarding Pinson’s correctional management;30 a document discussing
steps for re-accreditation;31 and a document describing the preliminary cause of death of inmates
28
It is also possible that the withheld portions of the reports are not deliberative at all.
The BOP’s describes the After Action Review Reports as intended to “review the incident to
assess whether staff adhered to policy.” See 3d Christenson Decl. ¶ 54. This description
suggests that the After Action Review Reports are decisional materials that contain conclusions
rather than pre-decisional materials that contain deliberations. Similarly, the BOP’s description
of the withheld portions of the reports as “recommendations regarding whether a use of force
was appropriate,” 3d Christenson Decl. ¶ 17, is reminiscent of a conclusion about the use of
force, not a deliberative process. Of course, if the materials are not deliberative, the BOP must
release them. If they are deliberative, then the BOP must provide a sufficiently detailed Vaughn
index to explain the deliberative function of the withheld portions.
29
The BOP redacted or withheld this document from Request No. 2010-12533.
30
The BOP redacted or withheld these materials from Request No. 2011-1886.
31
The BOP redacted or withheld this document from Request No. 2012-39.
29
and estimating costs.32 See also, e.g., Vaughn Index at 4 (“Memorandum from Michael
Nalley”); Vaughn Index at 12 (“Email from Chad Lohman to Lee Green”); Vaughn Index at 15
(“Investigative Report, SIS Case No. TDG 09-0011”); Vaughn Index at 16–17 (Documents 22,
23, and 25); Vaughn Index at 19 (“Inmate Investigative Report, SIS Case No. TDG 10-0125”);
Vaughn Index at 25 (Documents 1, 2, 3, and 4). For these records, the BOP has likewise failed
to specify the role of the document in the deliberative process, or the nature of the decisionmaking
authority vested in each party. For example, for one set of documents, the BOP states only that
“these documents consist of referrals and recommendations made from Bureau staff to other
Bureau staff” without specifying the relative position in the decisionmaking chain of each staff
member. See 3d Christenson Decl. ¶ 72. The Court thus denies the BOP summary judgment as
to its use of Exemption 5 to withhold documents, as reflected in the table infra at Part IV.33
2. Exemption 6
The DOJ argues that the BOP properly invoked Exemption 6 to withhold the names of
individuals, individual’s addresses, and case numbers in response to Request No. 2011-2366,
which sought documents relating to the settlement of legal claims against the BOP.34 In its
32
The BOP redacted or withheld this information from Request No. 2012-39.
33
The Court grants the BOP summary judgment as to its withholding of document 28 of
Request No. 2010-12533, the Use of Force Worksheet, because the material is properly exempt
under Exemption 7(F). The Court thus does not reach whether Exemption 5 would also apply to
the document.
The Court denies the BOP summary judgment as to documents 2, 13, and 17 shown in
the Vaughn Index for Request No. 2010-12533. See Vaughn Index at 1–4. The Court denies the
BOP summary judgment as to all of the documents shown in the Vaughn Index for Request No.
2011-1351. See Vaughn Index at 9–11. The Court denies the BOP summary judgment for
documents 3, 21, 22, 23, 25, and 35 shown in the Vaughn Index for Request No. 2011-1886. See
Vaughn Index at 12–20. The Court denies the BOP summary judgment as to documents 2
through 5 shown in the Vaughn Index for Request No. 2012-39. See Vaughn Index at 25–26.
34
The BOP also asserts Exemption 6 in response to other withholdings, but because the
Court finds that the other withholdings are justified under different exemptions, it does not
address them under Exemption 6.
30
response to that request, the BOP produced parts of a “stipulation for compromise and settlement”
and “letter regarding an administrative tort claim” but withheld the case number and administrative
tort claim number, as well as the names and addresses of an inmate, the inmate’s attorney,
judges, a notary public, the Assistant U.S. Attorney, and a BOP employee. Vaughn Index at 21.
Pinson does not explicitly challenge this withholding, but this Court independently considers if
the BOP has shown that the undisputed material facts entitle it to summary judgment.
Under Exemption 6, an agency may withhold “personnel and medical files and similar
files” when the disclosure of such information “would constitute a clearly unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(6). The exemption has been interpreted broadly to
protect “bits of personal information, such as names and addresses.” Prison Legal News v.
Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (brackets and internal quotation mark omitted).
“The information in the file ‘need not be intimate’ for the file to satisfy the standard, and the
threshold for determining whether information applies to a particular individual is minimal.”
Milton v. U.S. Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting N.Y. Times Co. v.
NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990)). Private information must also implicate a “significant
privacy interest” to trigger protection. Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224,
1229 (D.C. Cir. 2008) (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874
(D.C. Cir. 1989)). This standard, however, “means less than it might seem,” as a substantial
privacy interest is “anything greater than a de minimis privacy interest.” Id. at 1229–30.
Where private information in a record does implicate a significant privacy interest, the
court determines if disclosing the information would constitute a “clearly unwarranted invasion
of personal privacy,” Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 260
(D.C. Cir. 1982) (internal quotation marks omitted) (quoting 5 U.S.C. § 552(b)(6)), by balancing
31
“the privacy interest that would be compromised by disclosure against any public interest in the
requested information,” Multi Ag Media, 515 F.3d at 1228. “The scope of a privacy interest
under Exemption 6 will always be dependent on the context in which it has been asserted.”
Prison Legal News, 787 F.3d at 1147 (D.C. Cir. 2015) (quoting Armstrong v. Exec. Office of the
President, 97 F.3d 575, 581 (D.C. Cir. 1996)). In calculating the public interest, the court
considers only “the extent to which disclosure of the information sought would ‘she[d] light on
an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their
government is up to.’” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (alteration in
original) (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994)).
“Information that ‘reveals little or nothing about an agency’s own conduct’ does not further the
statutory purpose.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993) (quoting U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)).
From its response to Request No. 2011-2366, where Pinson sought, in relevant part, “any
final settlement resulting in a Plaintiff receiving monetary compensation arising from litigation”
against certain BOP sites, the BOP withheld “the names and addresses of individuals involved in
the cases” from one “stipulation for compromise and settlement.” Vaughn Index at 21. The
BOP also withheld the names of an inmate and a BOP employee from a letter regarding “an
administrative tort claim. Vaughn Index at 21. The BOP also withheld “the case numbers and
administrative claim number, as this information could be used to circumvent the withholding of
the names and identify the involved individuals.” 3d Christenson Decl. ¶ 102. The individuals
included inmates, court personnel, a prosecutor, BOP employees, and a notary public. Vaughn
Index at 21. As to all of these withholdings, the BOP states only that releasing the information
would “constitute an unwarranted invasion into [] personal privacy.” 3d Christenson Decl.
32
¶ 102. These names and addresses do constitute personal information,35 and revealing the name
of a person involved in litigation with the BOP or their address would implicate more than a de
minimis privacy interest. The Court thus proceeds to balancing the public and private interests.
Pinson’s request is very similar to the request at issue in Prison Legal News v. Samuels,
where the requestors sought “all documents showing money the [BOP] paid in connection with
lawsuits and claims brought against it” during a particular time period.36 Prison Legal News,
787 F.3d at 1145. In Prison Legal News, the BOP withheld “individuals’ names and other
personal identifying information that would reveal the identity of a person related to a claim”
under Exemption 6. Id. at 1147–48. The BOP provided a more thorough explanation of the
private harm possible through disclosure, which the D.C. Circuit characterized as “to prevent the
public from knowing an individual suffered some sort of injury or loss, or was subjected to
discrimination, because association with the filing of a claim can be stigmatizing.” Id. at 1148.
However, the D.C. Circuit rejected the BOP’s application of Exemption 6 because the BOP’s
categorical approach provided insufficient explanation of the disparate privacy rights involved.
For example, the BOP discussed all different types of claims together, even though “the privacy
interest of tort claimants will be different when they are claiming injury from a slip and fall as
compared to a sexual assault.” Id. at 1150. The BOP also grouped together all involved
individuals, “fail[ing] to distinguish between redacting the identity of the alleged victim and the
35
And, as the BOP notes, the case numbers could be used to determine the names from
court records.
36
The D.C. Circuit treated lawsuits and other types of claims identically. See generally
Prison Legal News, 787 F.3d 1142. Neither Pinson nor the BOP draws any distinction between
the administrative claim and lawsuit at issue here. And Pinson does not argue that, for instance,
the lawsuit settlement has been placed on the public record. See generally Pl.’s Opp’n.
Accordingly, the Court does not address whether these two types of records should be treated
differently.
33
alleged perpetrator.” Id. at 1150. The D.C. Circuit concluded that this approach was
insufficiently precise because, when such a categorical explanation is used, “[t]he range of
circumstances included in the category must ‘characteristically support[] an inference that the
statutory requirements for exemption are satisfied.’” Id. (quoting Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088–89 (D.C. Cir. 2013)). The D.C.
Circuit did not bar the possibility of using categories in the future, and provided examples of
categories which might share a similar privacy interest, such as “medical professionals who treat
inmates” or “prisoners who testify in FTCA claims.” Id. at 1151.
Here, the BOP likewise does not sufficiently explain the privacy interests of the
individuals “involved” in each claim. Neither claim is described, and, as the D.C. Circuit notes,
an alleged sexual assault will trigger very different privacy interests than an alleged slip-and-fall.
Here, as in Prison Legal News, the BOP groups together all of the involved individuals, even
though the inmates likely have privacy interests that differ from those of the BOP employee,
judge, or notary public. The BOP employee’s interest would also depend on whether he or she
was involved in the case as a witness or as an alleged perpetrator. As in Prison Legal News, this
oversimplification prevents this Court from understanding the privacy interests that weigh
against disclosure, and the Court thus cannot correctly balance the public and private interests.37
The Court will thus deny the BOP summary judgment as to its withholding of the names,
addresses, and case numbers in its response to Request No. 2011-2366.38
37
Although Pinson does not identify a public interest at issue here, the Court notes that
there is likely some level of public interest in understanding “what the government is up to”
through an examination of the fact patterns surrounding claims the BOP has settled with inmates.
38
This denial of summary judgment applies to both documents, 1 and 2, listed in the
BOP’s Vaughn index. See Vaughn Index at 21. The BOP also claims Exemption 7(C) justifies
withholding this material, but as discussed infra Section III.B.3.a, the Court disagrees that the
threshold requirement of Exemption 7 is met.
34
3. Exemption 7
The DOJ argues that the BOP properly invoked Exemption 7 in response to Request Nos.
2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, 2011-7156, 2011-7619, 2012-39,
and 2012-975. See Defs.’ Mem. P. & A. at 30–31. Exemption 7 protects from disclosure certain
“records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7).
a. Threshold Inquiry
“In order to withhold documents under Exemption 7, the agency must, as a preliminary
matter” make a “threshold” showing demonstrating “that the records were compiled for a law
enforcement purpose.” Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C. 1997). Agencies classified as
law enforcement agencies receive a special deference in their claims of law enforcement purpose.
See Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982) (explaining this deference as based on
“the generally accurate assumption that federal agencies act within their legislated purposes”).
This review, however, although “necessarily deferential” is “not vacuous.” Id. at 421.
Not every document compiled by a law enforcement agency satisfies the law enforcement
purpose inquiry. See AIC v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 245–46 (D.D.C.
2013) (rejecting ICE’s argument that all of its records are compiled for a law enforcement
purpose (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982))); Benavides v. Bureau of
Prisons, 774 F. Supp. 2d 141, 146–47 (D.D.C. 2011) (rejecting a “per se” rule that all BOP
documents are created for law enforcement purposes and finding that the BOP’s recordings of
inmates’ telephone conversations fell outside of law enforcement purposes (citing Pratt, 673
F.2d at 416)). Instead, the withheld records “must be related to the enforcement of federal laws
or to the maintenance of national security” and that nexus “must be based on information
sufficient to support at least a colorable claim of its rationality.” Pinson v. U.S. Dep’t of Justice,
35
No. 12-1872, 2016 WL 4074130, at *6–7 (D.D.C. July 29, 2016) (internal quotation marks and
citations omitted) (quoting Pratt, 673 F.2d at 420–21).
Records relating to an investigation are one common type of record compiled for law
enforcement purposes. For records created in the context of an ongoing investigation39 the Pratt
test requires an agency to “identify a particular individual or a particular incident as the object of
its investigation and [identify] the connection between that individual or incident and a possible
security risk or violation of federal law” in order to satisfy Exemption 7’s threshold condition.
Pratt, 673 F.2d at 420; see also, e.g., Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d
918, 926 (D.C. Cir. 2003) (applying the Pratt test when the records involved an investigation of
terrorists); Long v. ICE, 149 F. Supp. 3d 39, 48–49 (D.D.C. 2015) (applying the Pratt test when
the records related to law enforcement databases); AIC, 950 F. Supp. 2d at 245 (applying the
Pratt test when the records related to immigration detention). Where there is no ongoing
investigation, materials may still meet the threshold requirement of Exemption 7 if they are akin
to “guidelines, techniques, and procedures for law enforcement investigations and prosecutions
outside of the context of a specific investigation.” Tax Analysts v. IRS, 294 F.3d 71, 78 (D.C.
Cir. 2002). With this framework in mind, the Court turns to the BOP’s withholdings in this case.
Here, the “BOP is a law enforcement agency and thus deserves [] deference” on its
39
In 1986, Congress amended Exemption 7 to broaden the reach of the threshold
requirement from “investigatory records compiled for law enforcement purposes,” 5 U.S.C.
§ 552(b)(7) (1982) (emphasis added), to simply “records or information compiled for law
enforcement purposes,” Anti-Drug Abuse Act of 1986, § 1802(a), Pub. L. No. 99-570, 100 Stat.
3207, 3207-48 (1986); see also Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002). The D.C.
Circuit has made clear that, after the amendments, the Pratt test applies only “when an agency
seeks to invoke Exemption 7 in a situation in which there is an ongoing law enforcement
‘investigation,’” but in that context, it “is still good law.” Tax Analysts, 294 F.3d at 77–78.
36
claims of law enforcement purpose.40 Pinson v. U.S. Dep’t of Justice, No. 12-1872, 2016 WL
4074130, at *6 (D.D.C. Jul. 29, 2016); see also Duffin v. Carlson, 636 F.2d 709, 713 (D.C. Cir.
1980); Mem. Op., ECF No. 306 at 12. The BOP explains that the documents it withholds under
Exemption 7 were generated as part of the BOP’s “law enforcement mission of protecting
inmates, staff, and the community.” 3d Christenson Decl. ¶ 26. Furthermore, many of the
responsive records were located in the BOP’s databases. See, e.g., id. ¶¶ 13, 44, 53, 64, 95, 105,
126, 140, 143, 162, 176. Past decisions in this jurisdiction have held that similar records were
compiled for law enforcement purposes. See, e.g., Mingo v. U.S. Dep’t of Justice, 793 F. Supp.
2d 447, 453 (D.D.C. 2011) (holding that records “pertain[ing] to an altercation involving over 50
inmates” and “maintained by the Special Investigative Office at that facility” were compiled for
a law enforcement purpose because they were “created in connection with the BOP’s
responsibility to protect[] inmates, staff, and the community” (internal quotation marks and
citations omitted)); Holt v. U.S. Dep’t of Justice, 734 F. Supp. 2d 28, 41 (D.D.C. 2010) (holding
that records “pertain[ing] to the investigation of an inmate-on-inmate assault” were compiled for
law enforcement purposes because they were “created in connection with the BOP’s
responsibility to protect[] inmates, staff, and the community” (internal quotation marks and
citations omitted)). Many of the records at issue here are similar to those previously found to be
compiled for law enforcement purposes. For example, the BOP applies Exemption 7 to the
administrative remedy index, which collects complaints by inmates about the conditions of their
confinement. 3d Christenson Decl. ¶ 163. Like the documents at issue in Mingo and Holt, the
40
Pinson attempts to argue that the BOP may not qualify as a law enforcement agency.
See Pl.’s Opp’n at 4. However, the cases she cites do not support this proposition, but only note
the requirement that the BOP and all law enforcement agencies must establish a “nexus” between
their law enforcement activities and the withheld documents. See, e.g., Ctr. for Nat. Sec. Studies
v. U.S. Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003).
37
administrative remedy index collects records pertaining to wrongful conduct within the prison
that were affirmatively created by the BOP to fulfill its law enforcement responsibility of
protecting inmates. In conducting its independent evaluation, the Court therefore finds that the
BOP has presented sufficient facts to show that the documents it withholds under Exemption 7
were compiled for law enforcement purposes, with the exception of the settlement-related
documents responsive to Request No. 2011-2366.
Request No. 2011-2366 sought records about settlements paid by certain BOP sites to end
lawsuits. 3d Christenson Decl. ¶ 95 & Ex. J; Greene Decl. ¶ 13 & Ex. 18, ECF No. 147-3. The
BOP located a compromise stipulation and a letter regarding an administrative tort claim in
response to the request, and applied Exemption 7 to withhold portions of each. Vaughn Index at
21. The BOP makes no attempt to either satisfy the Pratt test by explaining the relationship of
the documents to an investigation, or to show that the documents relate to general law
enforcement guidelines or procedures. Instead, the BOP claims that the settlement records were
compiled for law enforcement purposes because “the documents were generated pursuant to
litigation challenging the Bureau’s performance of its law enforcement mission.” 3d Christenson
Decl. ¶ 103. This goes too far. The BOP’s position comes close to advocating for the rejected
per se rule that, because it is a law enforcement agency, any documents it compiles meet
Exemption 7’s threshold requirement. Cf. AIC v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d
221, 245–46 (D.D.C. 2013) (rejecting such a rule); Benavides v. Bureau of Prisons, 774 F. Supp.
2d 141, 146–47 (D.D.C. 2011) (same).
If the records relate to an ongoing investigation, the BOP’s explanation does not even
attempt to satisfy the Pratt test by identifying “a particular individual or a particular incident as
the object of its investigation and [identifying] the connection between that individual or incident
38
and a possible security risk or violation of federal law.” Pratt v. Webster, 673 F.2d 408, 420
(D.C. Cir. 1982). If the BOP believes that these records meet Exemption 7’s threshold
requirement because they are related to an investigation, it must say much more about the
particular incident and threat involved. Nor does the BOP attempt to claim that the documents
are similar to the general guidelines and procedures that the D.C. Circuit held could still be
protected by Exemption 7 in Tax Analysts.41 Cf. Tax Analysts, 294 F.3d at 78. On its face,
BOP’s role as a defendant in a lawsuit appears distinct from its role as a law enforcement
agency. Because the BOP does not explain how the settlement documents could satisfy
Exemption 7’s threshold requirement through either test, Exemption 7 cannot be applied to the
claimed documents from Request No. 2011-2366.
b. Exception 7(C)
The DOJ argues that it properly invoked Exemption 7(C) in response to Request Nos.
2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, 2011-7156, 2011-7619, 2012-39,
and 2012-975.42 See Defs.’ Mem. P. & A. at 31–32. The BOP used the exemption to withhold
the names, personal identifying information, and medical information of staff members, other
41
Settlement documents, by their nature, are related to one particular claim—which
makes it difficult to understand how they could relate to the BOP’s general law enforcement
procedures.
42
The DOJ also invokes Exemptions 6 and 7(F) as grounds for withholding: the names,
personal identifying information, and medical information of staff members, third-party inmates,
and individuals; information regarding the correctional management of third-party inmates; the
names of FBI agents; an injury assessment for a staff member; and telephone and fax numbers of
prison staff members. See 3d Christenson Decl. ¶¶ 21–24, 52, 59, 73–75, 102, 119, 133, 152–53,
168; Vaughn Index. Because the Court has determined that all of the withheld records are
protected by Exemption 7(C), the Court does not reach the question of whether Exemption 6 and
7(F) apply to this information as well, except to the extent that the Court has already rejected the
application of Exemption 6 to portions of Request No. 2011-2366.
39
inmates, and individuals;43 information regarding the correctional management of third-party
inmates;44 the names of FBI agents;45 an injury assessment for a staff member;46 and telephone
and fax numbers of prison employees.47 See 3d Christenson Decl. ¶¶ 29–33, 52, 61, 77–81, 104,
122–23, 136, 156–57, 171; Vaughn Index. The DOJ asserts that the release of the withheld
information would significantly compromise inmates’ and employees’ privacy interests, see
Defs.’ Mem. P. & A. at 31–32, and the Court agrees.
Under Exemption 7(C), an agency is exempt from producing “records or information
compiled for law enforcement purposes . . . to the extent that the production of such law
enforcement records or information . . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Exemption 7(C) is similar to Exemption
6, as both protect private information, but “Exemption 7(C) is more protective of privacy than
Exemption 6 and thus establishes a lower bar for withholding material.” Prison Legal News v.
Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir. 2015) (quoting ACLU v. U.S. Dep’t of Justice, 655
F.3d 1, 6 (D.C. Cir. 2011)). See also U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S.
487, 496 n.6 (1994) (“Exemptions 7(C) and 6 differ in the magnitude of the public interest that is
required to override the respective privacy interests protected by the exemptions.”).
43
The BOP redacted or withheld this information from Request Nos. 2011-1351, 2011-
1886, 2011-2366, 2011-7156, 2011-7619, 2012-39, and 2012-975.
44
The BOP redacted or withheld this information from Request Nos. 2010-12533, 2011-
1886, and 2012-39.
45
The BOP redacted or withheld this information from Request Nos. 2010-12533 and
2011-1886.
46
The BOP redacted or withheld this document from Request No. 2010-12533.
47
The BOP redacted or withheld this information from Request Nos. 2011-843, 2011-
1886, and 2011-7156.
40
As in Exemption 6, a court first determines if there is a privacy interest in the information
to be disclosed, ACLU, 655 F.3d at 6, and then balances the individual’s privacy interest against
the public interest, considering only the public interest “that focuses on ‘the citizens’ right to be
informed about what their government is up to,’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,
1282 (D.C. Cir. 1992) (quoting U.S. Dep’t of Justice v. Reporters Comm., 489 U.S. 749, 773
(1989)). It is a FOIA requester’s obligation to articulate a public interest sufficient to outweigh
the individuals’ privacy interest, and the public interest must be significant. See Nat’l Archives
& Records Admin. v. Favish, 541 U.S. 157, 172 (2004). Moreover, the D.C. Circuit has held that
the names of “private individuals appearing in files within the ambit of Exemption 7(C)” are
categorically exempt from disclosure unless disclosing such information “is necessary in order to
confirm or refute compelling evidence that the agency is engaged in illegal activity.” See
Pinson, 2016 WL 4074130, at *7 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206
(D.D.C. 1991)); ECF No. 306 at 14–15.
In response, Pinson articulates only the vague argument that all of the information
withheld under Exemption 7(C) should be disclosed because “the public absolutely should know
how the BOP treats its inmates especially in situations where it uses live ammunition to kill
them.” See Pl.’s Resp. at 3–4, ECF No. 314. Pinson does not identify any specific redactions
that are problematic or provide any arguments that would help the Court weigh the public and
private interests. Pinson does not explain why identifying particular staff members would serve
the public interest or reveal what the government is up to in a way that understanding the actions
of high-ranking BOP officials alone does not.
Here, because Pinson has not presented any compelling evidence of illegal activity by the
BOP, the names of the third-party inmates and individuals are categorically exempt from
41
disclosure. See Pinson, 2016 WL 4074130, at *7 (holding that the names of third-party inmates
within memoranda were categorically exempt from disclosure absent compelling evidence of
illegal activity by the BOP); SafeCard, 926 F.2d at 1206 (holding that names of “private
individuals appearing in files within the ambit of Exemption 7(C)” are categorically exempt from
disclosure unless disclosing such information “is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity”).
As to the other withheld information, the DOJ has presented sufficient detail to
demonstrate that its redactions protect the privacy interests of inmates, staff members, and third-
party individuals. In its own independent evaluation, the Court does not identify any public
interest in disclosure that would outweigh that private interest. Cf. Davis, 968 F.2d at 1282(holding that “even if a particular privacy interest is minor, nondisclosure remains justified
where . . . the public interest in disclosure is virtually nonexistent); see also 3d Christenson Decl.
¶¶ 29–33, 52, 61, 77–81, 104, 122–23, 136, 156–57, 171. The Court thus grants the BOP
summary judgment as to its use of Exemption 7(C).
c. Exemption 7(F)
Finally, the DOJ claims that the BOP properly invoked Exemption 7(F) to withhold
records in response to Request Nos. 2010-12533, 2011-1351, 2011-1886, 2011-7156, 2011-7619,
2012-39, and 2012-975. See Defs.’ Mem. P. & A. at 35–37. FOIA Exemption 7(F) protects
from disclosure information contained 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
D.C. Circuit has described the reach of Exemption 7(F) as “expansive.” See Elec. Privacy Info.
Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 526 (D.C. Cir. 2015), cert. denied 136 S. Ct.
876 (2016). “That language is very broad,” and the exemption “does not require that a particular
42
kind of individual be at risk of harm; ‘any individual’ will do.” Public Emps. for Envtl.
Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 205 (D.C. Cir.
2014). Moreover, “[d]isclosure need not definitely endanger life or physical safety; a reasonable
expectation of endangerment suffices.” Id. Unlike Exemption 7(C), which involves a balancing
test, Exemption 7(F) “is an absolute ban against [disclosure of] certain information,” Raulerson
v. Ashcroft, 271 F.Supp.2d 17, 29 (D.D.C. 2002), and “[w]ithin limits, courts defer to the
agency’s assessment of danger,” Sanchez–Alaniz v. Fed. Bureau of Prisons, No. 13-1812, 2016
WL 1222214, at *7 (D.D.C. Mar. 28, 2016) (citations omitted).
The DOJ argues that the BOP properly withheld:48 monitoring and classification
assignments for Pinson and third-party inmates;49 correctional management techniques used for
Pinson and third-party inmates,50 the names and roles of staff who participated in uses of force;51
information regarding the security procedures of the institution;52 Daily Assignment Rosters;53
specific procedures used during a calculated use of force;54 witness statements used to support
48
In addition, while the BOP labels its withholding of “the techniques law enforcement
officers used to contain and control a critical incident” from documents responsive to Request
No. 2012-00039 as based in Exemption 7(E), Vaughn Index at 26, the Court finds that
Exemption 7(F) would justify the withholding and thus does not address Exemption 7(E).
Pinson does not object to this withholding.
49
The BOP redacted or withheld this information from Request Nos. 2010-12533, 2011-
1351, 2011-1886, 2011-7156, 2011-7619, 2012-39, and 2012-975.
50
The BOP redacted or withheld this information from Request Nos. 2011-1351, 2011-
1886, and 2011-7156.
51
The BOP redacted or withheld this information from Request Nos. 2010-12533 and
2012-39.
52
The BOP redacted or withheld this information from Request No. 2010-12533.
53
The BOP redacted or withheld these documents from Request No. 2010-12533.
54
The BOP redacted or withheld this information from Request No. 2010-12533.
43
Pinson’s ADX referral;55 information regarding gang and informant activity within the BOP;56
statements that Pinson and third-party inmates and individuals made to law enforcement
officers;57 information regarding law enforcement investigations;58 the classification of various
reported incidents;59 Pinson’s presentence investigation report (“PSR”);60 and factual
descriptions of inmates’ assaultive behavior.61 See 3d Christenson Decl. ¶¶ 39–43, 63, 86–94,
125, 138–39, 160–61, 174–75; Vaughn Index. The DOJ asserts that disclosure of the withheld
information could reasonably be expected to endanger the life or physical safety of staff and
inmates. See Defs.’ Mem. P. & A at 35–37.
Pinson first objects to the withholding of the Daily Assignment Rosters and Report of
Incident documents, on the basis that the DOJ has disclosed these types of documents in other
litigation. See Pinson Decl. ¶¶ 2, 10, ECF No. 314. However, as discussed supra at Section
III.B.1, an agency may make a discretionary disclosure of material that would be protected by
FOIA without waiving the right to withhold similar documents in the future. Cf. CNA Fin. Corp.
v. Donovan, 830 F.2d 1132, 1134 n.1 (D.C. Cir. 1987). Therefore, even if the BOP has
previously disclosed different Daily Assignment Rosters or Report of Incidents, that disclosure
need not control the result here.
55
The BOP redacted or withheld this information from Request No. 2011-1886.
56
The BOP redacted or withheld this information from Request No. 2011-1886.
57
The BOP redacted or withheld this information from Request No. 2011-1886.
58
The BOP redacted or withheld this information from Request No. 2011-1886.
59
The BOP redacted or withheld this information from Request Nos. 2011-1886 and
2011-7619.
60
The BOP redacted or withheld this document from Request No. 2011-1886.
61
The BOP redacted or withheld this information from Request No. 2012-975.
44
In this case the DOJ has sufficiently demonstrated that the information withheld from the
Daily Assignment Rosters could reasonably be expected to endanger the life or physical safety of
one or many individuals and thus falls within Exemption 7(F). As the BOP’s declarations
explain, the Daily Assignment Rosters “reveal the institution’s staffing levels, including how
many correctional officers are present on each shift and where those officers are posted
throughout the institution. This information could assist individuals in planning incidents,
including assaults, homicides, and escape attempts.” 3d Christenson Decl. ¶ 42; cf. Anderson v.
Fed. Bureau of Prisons, 806 F. Supp. 2d 121, 128 (D.D.C. 2011) (holding that Exemption 7(F)
was properly invoked to withhold a BOP’s prison incident report because “it would likely result
in harassment and/or retaliation, to possibly include physical assaults, directed towards
individual(s) identified in the investigation and resulting in a threat not only to the named
individual but also to the safe operation of the institution”); see also Schotz v. Samuels, 72 F.
Supp. 3d 81, 89 (D.D.C. 2014) (Exemption 7(F) “affords broad protection to the identities of
individuals mentioned in law enforcement files . . . , including any individual reasonably at risk
of harm.” (quoting Quinto v. U.S. Dep’t of Justice, 711 F. Supp. 2d 1, 8 (D.D.C. 2010))); 3d
Christenson Decl. ¶¶ 42, 138–39. Accordingly, the Court finds there is no genuine issue of
material fact regarding the DOJ’s invocation of Exemption 7(F) to withhold the Daily
Assignment Rosters and grants the BOP summary judgment.62
62
Pinson also cursorily argues that the BOP’s claims “about endangering inmate safety or
in some way revealing its practices and techniques [are] contradicted by its public policies which
identify ‘disruptive groups.’” See Pinson Decl. ¶ 7. However, as explained previously,
Exemption 7(F) does not operate as a balancing test, but as an absolute ban against disclosure of
certain information. See Raulerson, 271 F. Supp. 2d at 29; see also Sanchez–Alaniz, 2016 WL
1222214, at *8 (holding that the BOP properly withheld information under Exemption 7(F)
where the BOP determined that “disclosure of the redacted information would endanger the life
or physical safety of inmates and staff members named within the report”). Nor has Pinson
demonstrated that the precise information withheld here has been previously made public.
45
Pinson also contests the DOJ’s use of Exemption 7(F) to withhold her PSR in response to
Request No. 2011-1886. See Pl.’s Resp. at 2; Vaughn Index at 20. The BOP replies that giving
Pinson her PSR could lead to another inmate assaulting her or coercing her into sharing the
information. See 3d Christenson Decl. ¶ 94. In fact, the BOP has a policy prohibiting inmates
from possessing their PSRs, to avoid precisely these harms. The BOP further argues that if
Pinson wishes to review her PSR, she may request to do so “according to the procedures outlined
on pages 12–13 of Program Statement 1351.05.” Id. However, “[a]n agency’s duty to release
information is not predicated on the identity of the requester or the purpose for the request.”
Maydak v. U.S. Dep’t of Justice, 362 F. Supp. 2d 316, 320–21 (D.D.C. 2005) (citing United
States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771-72
(1989)). The BOP may therefore not withhold the PSR because Pinson in particular, or an
inmate in general, requested it. This Court previously noted that whether records “must be
disclosed pursuant to FOIA is a separate matter from whether [] Pinson, who is incarcerated, is
entitled under BOP rules and regulations to possess the correspondence at issue while [she] is
incarcerated,” ECF No. 203 at 6, and therefore appointed Pinson counsel “for the limited purpose
of receiving and reviewing correspondence withheld by the BOP and FBI and determining
compliance with FOIA,” Order of Appointment of Pro Bono Counsel, ECF No. 204; see also
Sample v. Bureau of Prisons, 466 F.3d 1086, 1089 (D.C. Cir. 2006) (distinguishing between the
BOP’s role as a FOIA administrator and its role as a custodian of inmates).
Past cases in this circuit have permitted inmates conditional access to their PSRs, rather
than permitting the document to be withheld entirely under Exemption 7(F). See, e.g., Martinez
v. Bureau of Prisons, 444 F.3d 620, 625 (D.C. Cir. 2006) (“FOIA does not entitle [the requester]
to have copies of his [or her] PSRs” as long as the requester is “afforded a meaningful
46
opportunity to review his [or her] PSR and to take notes on them.” (internal citations omitted));
Schotz, 72 F. Supp. 3d at 89 (finding that the PSR was not improperly withheld when plaintiff
could access it through BOP’s procedures). In this case, in addition to BOP’s procedures for
review, the Court has appointed Pinson counsel to receive correspondence from BOP that Pinson
may not receive in prison. The BOP should thus use Pinson’s pro bono counsel to meet its FOIA
obligation with regard to Pinson’s PSR, rather than simply denying Pinson’s request. As this is
in accordance with the BOP’s policy for PSR retention, it would apparently satisfy the BOP’s
safety concerns. The DOJ’s request for summary judgment as to the withholding of the PSR—
document 36 listed in the Vaughn Index for Request No. 2011-1886—under Exemption 7(F) is
thus denied. See Vaughn Index at 20.
Although Pinson does not specifically challenge the BOP’s other withholdings under
Exemption 7(F), this Court must independently consider if any genuine issues of material fact
exist. The Court identifies significant oversights in several of the BOP’s justifications for
withholding documents. First, in response to Request No. 2011-1886, the BOP withheld several
“staff member[s’] response[s] to questions posed by Pinson regarding [her] ADX referral.”
Vaughn Index at 12–20. These statements appear to have addressed whether or not Pinson
should be placed in the ADX. The DOJ elaborates that “the safety of the staff-witnesses” would
be “at risk” if their “opinions” “regarding whether [Pinson’s] placement at ADX was
appropriate” were disclosed. Statement Mat. Facts Not Genuine Dispute ¶ 75, ECF No. 293-1;
see also 3d Christenson Decl. ¶ 86, ECF No. 293-3. However, given that the BOP has
anonymized other documents by removing the names of staff under Exemption 7(C), the Court
finds that the BOP’s potential harm is too speculative in the absence of some explanation as to
47
why these responses could not likewise be anonymized.63 At a minimum, BOP must
demonstrate that the opinions are so fact specific that even redaction would not conceal the
identity of the persons expressing the opinions.
Second, the BOP insufficiently explained its withholding of certain information from the
Report of Incident documents. The BOP withheld the checkboxes for “Type of Incident” and
“Cause of Incident” from several Reports of Incident responsive to Request No. 2011-7619.
Vaughn Index at 23–24. The BOP argues that revealing which incidents were classified as
sexual assault “increases the risk of further harm to the alleged victim.” 3d Christenson Decl.
¶ 138. However, the BOP does not explain why this risk could not be addressed by redacting the
name of the victim under Exemption 7(C) instead of withholding the entire classification.64 In
response to Request No. 2012-975 the BOP similarly used Exemption 7(F) to withhold
“information regarding an assault on an inmate and attachments [to the form].”65 Vaughn Index
63
The Court thus denies summary judgment to the BOP for documents 8 through 17,
inclusive, listed in the Vaughn index for Request No. 2011-1886.
64
It appears that the documents containing these redactions were responsive to Pinson’s
request for “All Report of Incident (Form 583) regarding homicides within the Bureau of Prisons
since 2008” as part of Request No. 2011-7619. See, e.g., 3d Christenson Decl. ¶¶ 126, 130.
Given that these records relate to homicides, the possibility of revictimization must be at its
nadir. Furthermore, given that Pinson did not request reports pertaining to specific incidents,
there is no reason to believe that Pinson is already familiar with the identities of any of the
victims. Both of these factors suggest that redacting the names would suffice.
The Court also notes that the BOP’s rationale for withholding the Type of Incident and
Cause of Incident boxes from all of the homicide reports of incidents appears to be described in
the third Christenson Declaration at ¶ 138, although that paragraph explicitly refers only to the
records responsive to a different portion of Request No. 2011-7619.
65
The BOP also claims that Exemption 7(E) justifies its withholding of the information
regarding the assault and attachments. This provision exempts records that “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) (2016). However, the
Court is similarly unable to determine from the one scant line of description provided by the
BOP how “information regarding assault on an inmate” or an undescribed attachment would
48
at 27–34. The DOJ conclusorily asserts that “[d]isclosure of [the factual description of inmates’
assaultive behavior] could result in further victimization for the victim of the described assault.
Further, disclosure of the factual information could have the effect of educating inmates on new
ways to assault other inmates or staff.” Statement Mat. Facts Not Genuine Dispute ¶ 164. These
assertions are too vague to allow the Court to subject them to the adversarial process, and do not
explain why the BOP could not simply anonymize the names of the inmates (for example, if the
assault is a “routine” physical attack in a recreation yard, could that description reasonably
educate another inmate about new methods of assault?). In addition, the BOP gives no
description of the contents of the attachments at all, much less an explanation of the danger
posed by their release. See Maydak v. U.S. Dep’t of Justice, 362 F. Supp. 2d 316, 321 (D.D.C.
2005) (denying summary judgment to the agency on its withholding of psychiatric reports on an
inmate, because its argument that the inmate could learn to manipulate the treatment system was
“too speculative and not based upon competent evidence”). Because the BOP has not shown that
it has a “reasonable expectation” of harm from disclosure, the Court will deny the BOP summary
judgment as to its withholdings of the answers to questions and the information regarding assault
and attachments.66
C. Segregability
FOIA requires that any reasonably segregable portion of a record shall be provided to any
person requesting such record after removal of exempt portions, unless the non-exempt portions
are inextricably intertwined with exempt portions. See 5 U.S.C. § 552(b); see also Johnson v.
disclose law enforcement techniques or guidelines, and thus cannot grant the BOP summary
judgment on this ground.
66
This denial applies to document 4 listed in the Vaughn index for Request No. 2011-
7916 and documents 2 through 18 listed in the Vaughn index for Request No. 2012-975.
49
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). “Agencies are entitled to a
presumption that they complied with the obligation to disclose reasonably segregable
material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). In order to
demonstrate that all reasonably segregable material has been released, the agency must provide a
“detailed justification” for its non-segregability. Mead Data Cent., Inc. v. Dep’t of the Air
Force, 566 F.2d 242, 261 (D.C. Cir. 1977). However, the agency is not required to provide so
much detail that the exempt material would be effectively disclosed. Id.Here, the DOJ provided Pinson with a comprehensive Vaughn index, describing each
document withheld in part or in full, as well as the exemption under which it was withheld.
Vaughn Index, ECF No. 293-3, Ex. C. Ms. Christenson attests to having personally prepared the
Vaughn Index and that “[e]very effort has been made to release all segregable information
without releasing [the protected information].” See, e.g., 3d Christenson Decl. ¶ 17. Pinson
raises no objection as to the segregability of the information withheld. See Pl.’s Resp.; Pinson
Decl. The combination of the Vaughn Index and the declaration of Ms. Christenson are
sufficient to fulfill the agency’s obligation to show with “reasonable specificity” why a
document cannot be further segregated. See Armstrong v. Exec. Office of the President, 97 F.3d
575, 578–79 (D.C. Cir. 1996).
IV. CONCLUSION
In light of this Court’s conclusions regarding the adequacy of the BOP’s searches and the
exemptions BOP has invoked, the Court grants summary judgment to the DOJ as shown in the
following table:
50
Request No. Document Nos. Summary Judgement for BOP
2010-12533 2, 13, 17 DENIED, insufficient showing to
apply Exemption 5
All others GRANTED
(1, 3–12, 14, 15, 16, 18–30)
2011-843 All GRANTED
2011-1351 All DENIED, insufficient showing to
apply Exemption 5
2011-1886 3, 21, 22, 23, 25, 35 DENIED, insufficient showing to
apply Exemption 5
36 DENIED, insufficient showing to
apply Exemption 7(F)
8–17 DENIED, insufficient showing to
apply Exemption 7(F)
All others GRANTED
(1, 2, 4–7, 18, 19, 20, 24, 26–34)
2011-2366 All DENIED, insufficient showing to
apply Exemption 6 or 7(C)
2011-7156 All GRANTED
2011-7619 4 DENIED, insufficient showing to
apply Exemption 7(F)
All others (1–3) GRANTED
2012-40 N/A DENIED, BOP has not yet responded
to request
2012-39 2–5 DENIED, insufficient showing to
apply Exemption 5
All others (1) GRANTED
2012-975 1 GRANTED
All others (2–18) DENIED, insufficient showing to
apply Exemption 7(F)
2012-1684 N/A DENIED, BOP has not yet responded
to request
As discussed supra at Section III.A and reflected in the table, the BOP’s search was not
adequate as to Request Nos. 2012-1684 or 2012-40 in their entirety, because the BOP has not yet
responded to the requests. Furthermore, although—as discussed above—the Court grants the
BOP summary judgment as to the adequacy of its non-email search for records responsive to
51
Request Nos. 2011-7156 and 2012-39, summary judgment is denied as to the adequacy of the
BOP’s email search responsive to those two requests because the BOP has not yet completed its
processing of the requests. Similarly, while—as shown in the table—the Court grants the BOP
summary judgment as to some of its withholdings from Request Nos. 2011-7156 and 2012-39,
summary judgment would be premature as to any withholdings the BOP may assert from any
responsive emails it may identify.67 When the BOP has fulfilled all of its FOIA obligations, it
should file a supplemental motion for summary judgment as to these requests.
For the foregoing reasons, the DOJ’s motion for summary judgment is GRANTED IN
PART AND DENIED IN PART. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: February 17, 2017 RUDOLPH CONTRERAS
United States District Judge
67
The Court notes that Pinson has recently filed a motion seeking “supplemental
briefing” on the issue of whether or not Pinson is entitled to a fee waiver. See Motion for
Additional Briefing on Requests, ECF No. 354. Based on that motion’s reference to the BOP’s
Email Status Report, ECF No. 353, this Court concludes that Pinson seeks a fee waiver as to
Requests No. 2011-7156, 2012-40, and 2012-39. Because the Court denies the BOP summary
judgment as to each of these requests, as discussed above, it does not address Pinson’s motion
for supplemental briefing in this opinion.
52