Sluss v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
MATTHEW DAVID SLUSS, )
)
Plaintiff, )
)
v. ) Case No. 1:17-cv-00064
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Pro se Plaintiff Matthew Sluss received a sentence of 33 years in prison after pleading guilty
to one count of advertising child pornography. Since then, Plaintiff has twice requested transfer to
his birth country, Canada, to serve his sentence. The U.S. Department of Justice (“DOJ”) denied
both requests.
This case concerns DOJ’s withholding of information sought by Plaintiff under the
Freedom of Information Act (“FOIA”) regarding the denial of his transfer requests. Specifically,
Plaintiff asked for all documents relating to him held by DOJ’s International Prisoner Transfer
Unit, as well as records concerning policies and guidelines used to decide international transfer
requests. DOJ produced some records in full to Plaintiff but entirely withheld or redacted others.
The parties now cross-move for summary judgment. Only two issues remain in dispute:
(1) DOJ’s withholding of certain information contained in two memoranda addressing Plaintiff’s
transfer requests and (2) the scope of DOJ’s search for policies and guidelines. For the reasons
discussed below, the Court grants in part and denies in part both parties’ motions for summary
judgment.
II. BACKGROUND
A. Factual Background
On March 15, 2012, Plaintiff Matthew Sluss entered a plea of guilty to one count of
advertising child pornography. See Def.’s Mem. for Summ. J., ECF No. 49 [hereinafter Def.’s
Mem.], at 1. Plaintiff is currently serving a 33-year sentence, id., in the Federal Correctional
Complex, located in Petersburg, Virginia, Compl., ECF No. 1 [hereinafter Compl.], ¶ 3. Plaintiff
is a dual citizen of the United States and Canada. Id. In 2013 and 2016, Plaintiff applied to DOJ’s
International Prison Transfer Unit (“IPTU”) for transfer to Canada to serve his sentence, but was
denied both times. See Pl.’s Mot. for Summ. J., ECF No. 51 [hereinafter Pl.’s Mot.], Pl.’s Stmt.
of Facts, ECF No. 51 [hereinafter Pl.’s Facts], ¶¶ 5–6.
On September 12, 2016, Plaintiff submitted two FOIA requests to DOJ. The first asked
for all documents “relating to the United States Department of Justice, International Prisoner
Transfer Unit’s implementation, policies, or guidelines relating to the implementation and
procedures used for the analysis of treaty transfers of prisoners to a for[ei]gn country pursuan[t] to
the Treaty [b]etween the United States of America and Canada on the Execution [o]f Penal
Sentences.” Compl., Ex. A, ECF No. 1, at 8. 1 The second requested “all documents, emails, notes,
memoranda, and any other written or electronic information related to [Plaintiff’s] person as kept
by [IPTU]. This request includes, but is not limited to, processing notes from [Plaintiff’s] 2013
and 2016 application for a prisoner transfer to Canada.” Compl., Ex. B, ECF No. 1, at 11.
1
With respect to page citations for exhibits, the court uses the page number as electronically generated by CM/ECF.
2
Only after Plaintiff filed this action on January 11, 2017, did DOJ begin to process his
request. On March 1, 2017, DOJ’s FOIA/PA Unit assigned Plaintiff’s request a case number and
sent out a search request to IPTU seeking any documents and records responsive to Plaintiff’s
FOIA requests. Def.’s Mem., Def.’s Stmt. of Facts, ECF No. 49-1 [hereinafter Def.’s Facts], ¶ 7.
DOJ asked IPTU to search for: “(1) records related to Plaintiff’s requests for prisoner transfer to
Canada made in 2013 and 2016; and (2) documents, e-mails, notes, memoranda or other
information related to IPTU’s implementation, policies, or guidelines used for the analysis of treaty
transfers of prisoners to a foreign country pursuant to the Treaty between the United States and
Canada.” Id.
IPTU personnel responded by searching Plaintiff’s name in an Oracle computer database.
Id. ¶ 8. This search yielded 176 pages of records comprising IPTU’s case file concerning Plaintiff.
Id. ¶ 9. DOJ Attorney John E. Cunningham III (“Cunningham”) also located 23 pages of records
responsive to Plaintiff’s request for general policy information by reviewing the DOJ Criminal
Division’s internet website. Id.
On April 12, 2017, DOJ provided Plaintiff with its First Interim Response, which consisted
of 23 pages of records, all of which were publicly available on DOJ’s Criminal Division website.
See id. ¶ 12. On August 3, 2017, Defendant made a Second Interim Release to Plaintiff, in which
six pages were released in full, 32 pages released in part, and 30 pages withheld in full. 2 See id.
¶ 13.
On August 27, 2018, DOJ requested that IPTU conduct a follow-up search for policy-related
records. See id. ¶ 10. The chief of IPTU searched “IPTU’s S-drive, his/her own H-drive, and also
2
Of this release, 99 pages of records originated with BOP, the FBI, and the Executive Office for United States
Attorneys (“EOUSA”). DOJ states that it referred 80 pages to BOP, 11 pages to the FBI, and eight pages to EOUSA
for processing and direct response to Plaintiff. See Def.’s Facts ¶ 13.
3
his/her own personal files, and further reviewed all documents in folders titled ‘IPTU Procedure
and IPTU Policy Matters’ and ‘Canadian Issues’ for responsive records.” Id. Defendant released
another 8 pages to Plaintiff on September 27, 2018. See id. ¶ 11.
B. Procedural History
Plaintiff initiated this case under FOIA on January 11, 2017. Meanwhile, Plaintiff was
before the D.C. Circuit on a different matter. See Sluss v. U.S. Dep’t of Justice, Int’l Prisoner
Transfer Unit, 898 F.3d 1242 (D.C. Cir. 2018). Years earlier, in 2014, Plaintiff filed a petition for
habeas corpus, challenging the denial of a transfer request he made in July 2013. See id. at 1246–
47. After the district court denied the petition, see id. at 1247, Plaintiff appealed. The D.C. Circuit
affirmed the district court’s decision on July 31, 2018. See id. at 1254.
In this matter, Defendant filed, then withdrew, an initial motion for summary judgment.
See Minute Order, Sept. 10, 2018 (granting Defendant’s Motion to Withdraw its Motion for
Summary Judgment). The reason for doing so was to conduct additional searches. See Def.’s
Mot. to Withdraw, ECF No. 45, at 1. The parties then filed cross-motions for summary judgment,
which are now before the court.
III. LEGAL STANDARD
Most FOIA cases are appropriately decided on motions for summary judgment.
See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
A court may award summary judgment in a FOIA case by relying on the information included in
the agency’s affidavits or declarations if they are “relatively detailed and non-conclusory.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and internal
quotation marks omitted). The agency’s affidavits or declarations must “describe the documents
and the justifications for nondisclosure with reasonably specific detail [and] demonstrate that the
4
information withheld logically falls within the claimed exemption.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either
contrary evidence in the record [or] by evidence of agency bad faith.” Id.It is the government agency’s burden to prove that it has complied with its obligations
under FOIA. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). To prevail
on a motion for summary judgment, the agency must demonstrate 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.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal
quotation marks omitted); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833
(D.C. Cir. 2001). “Unlike the review of other agency action that must be upheld if supported by
substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the
agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’”
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting
5 U.S.C. § 552(a)(4)(B)). “To successfully challenge an agency’s showing that it complied with
the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that there is a
genuine issue with respect to whether the agency has improperly withheld extant agency records.”
Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting Tax Analysts, 492
U.S. at 142).
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IV. ANALYSIS
The court first addresses the contested withholdings and then turns to the scope of DOJ’s
search.
A. DOJ’s Withholdings
Although DOJ withheld multiple documents in whole or in part, Plaintiff challenges only
the redactions contained in what Plaintiff simply identifies as “Documents 7 and 9.” Pl.’s Mot.,
Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot for Summ. J. and in Support of Pl.’s Mot., ECF No.
51 [hereinafter Pl.’s Mem.], at 3. Plaintiff has attached those two documents as exhibits to his
cross-motion. See Pl.’s Mot., Pl.’s Exs. A & B, ECF No. 51-1. Each is an internal memorandum
written to the Director of Office of Enforcement Operations, addressing Plaintiff’s request for
transfer to Canada. See id. at 2, 10. One is dated February 6, 2014, and the other August 29, 2016.
See id. DOJ relies on FOIA Exemptions 5, 6, 7(C), and 7(F) to justify its redaction of these records.
See Third Cunningham Decl., ECF No. 49-2 [hereinafter Cunningham Decl.], Exs., ECF No. 49-
3 [hereinafter Cunningham Exs.], at 100–02. The court starts with Exemption 5, then turns to
Exemption 7(F), before concluding with Exemptions 6 and 7(C).
1. Exemption 5
DOJ asserts the deliberative process privilege under Exemption 5 to justify the
withholdings from Documents 7 and 9. See id. 3 According to Cunningham, Exemption 5 applies
because the records
3
The court is confused and uncertain as to whether the government also asserts the attorney work-product privilege
with respect to Documents 7 and 9. DOJ’s motion and reply briefs both reference the attorney work-product privilege
as to those records, but neither the Cunningham Declaration nor the Vaughn Index make mention of it. Compare
Def.’s Mem. at 9–10; Def.’s Opp’n to Pl.’s Mot. and Reply in Support of Def.’s Mot., ECF No. 55 [hereinafter Def.’s
Reply], at 6 with Cunningham Decl. ¶¶ 17–19 and Cunningham Exs. 100–02. Moreover, it is doubtful that the attorney
work-product privilege applies to Documents 7 and 9, as nothing about them suggests that they were prepared
“because of” anticipated litigation. United States v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010). Because of
the ambiguity in the government’s papers, the court does not rule on the applicability of the attorney work-product
privilege. If there is a next round of briefing, the government should endeavor to clarify its position.
6
preceded the decision about which they pertained—the decision
about whether to approve Plaintiff’s applications for an international
prison transfer from the United States to Canada—and were
prepared for the purpose of assisting the decision-makers in making
that decision by setting forth the pertinent facts and legal arguments
supporting the authors’ recommendations about whether to approve
the transfer.
Cunningham Decl. ¶ 19. For his part, Plaintiff does not dispute that Documents 7 and 9 were
subject to the deliberative process privilege when created. See Pl.’s Mem. at 11. He argues instead
that the records lost their privileged status upon the Director of Enforcement Operations’ denials
of the transfer requests. In Plaintiff’s view, the Director’s adoption of the memoranda is evidenced
by her marking an “X” next to the word “Deny” in the section titled “OEO Director Decision” and
by affixing her signature to the document. See Pl.’s Exs. A & B at 8, 15. Plaintiff contends that
the Director’s denials constitute the agency’s final actions, which are not subject to the deliberative
process privilege. In response, DOJ insists that the Director’s mere marking and signing of
Documents 7 and 9 does not mean that the she adopted the memoranda’s reasoning, and it is the
memoranda’s reasoning that the deliberative process protects. See Def.’s Reply at 7–8.
Plaintiff is correct that a “document can lose its predecisional character—and the
protections of the privilege—if an agency adopts the document as its own.” Judicial Watch, Inc.
v. U.S. Dep’t of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017) (citing NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 161 (1975)); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866
(D.C. Cir. 1980)). “To adopt a deliberative document, it is not enough for an agency to make
vague or equivocal statements implying that a position presented in a deliberative document has
merit; instead, the agency must make an ‘express[ ]’ choice to use a deliberative document as a
source of agency guidance.” Judicial Watch, 847 F.3d at 739 (quoting Sears, 421 U.S. at 161).
To that end, the D.C. Circuit has observed that “[t]he [Supreme] Court has refused to equate
7
reference to a report’s conclusions with adoption of its reasoning, and it is the latter that destroys
the privilege.” Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1197 (D.C. Cir. 1991). In other
words, for the Exemption 5 protection to dissipate by virtue of an express adoption, the agency
must accept the document’s reasoning, not merely its conclusions. See Elec. Frontier Found. v.
U.S. Dep’t of Justice, 739 F.3d 1, 10–11 (D.C. Cir. 2014).
The D.C. Circuit’s decision in Abtew v. U.S. Department of Homeland Security provides a
useful comparator to the facts presented here. In Abtew, the plaintiff sought to obtain the agency’s
“Assessment to Refer,” which is a document that summarizes an asylum seeker’s interview,
evaluates the applicant’s credibility, and makes a recommendation as to granting asylum. See 808
F.3d 895, 898 (D.C. Cir. 2015). The Assessment to Refer’s author submits the document to an
agency supervisor, who makes the final asylum decision. See id. The agency withheld the
Assessment from the plaintiff under Exemption 5, and the D.C. Circuit agreed with that
determination. See id. at 899. In so holding, the court rejected the plaintiff’s contention that the
Assessment had lost its privileged character because the agency adopted it. Specifically, the
plaintiff had pointed to the reviewing supervisor’s initialing of the Assessment, but the court stated
that “initialing alone does not transform the Assessment into the Department’s final decision.” Id.
“Initialing a memo may suggest approval of a memo’s bottom-line recommendation,” the court
explained, “but it would be wrong and misleading to think that initialing necessarily indicates
adoption or approval of all the memo’s reasoning.” Id.
In this case, if all the court had before it were agency memoranda that the Director of the
Office of Enforcement Operations had signed and marked with an “X” to indicate a denial of
transfer, Abtew would compel a ruling in favor of DOJ. But Documents 7 and 9 contain an
unexplained feature that gives the court pause before reaching a final conclusion. Appearing next
8
to each denial decision are “Denial Codes.” See Pl.’s Exs. A & B at 8, 15. The Denial Codes are
the same for each memorandum: “SROC,” “CRIM,” “DOMY,” and “NOCT.” Id. The term
“Denial Code” could signify the Director’s reasons for denying Plaintiff’s request. If that is what
they mean, then query whether the Denial Codes correspond to the reasoning contained in the
memoranda. If they do align, then perhaps the agency has “expressly adopted” the author’s
reasoning as its own, in which case the document’s predecisional character would cease. But this
is all pure conjecture. The agency has not supplied the court with any evidence regarding the
Denial Codes, their meaning, and their relationship to the memoranda’s reasoning. Without such
information, the court cannot determine if the Director’s “Deny” checkmark and signature on each
document constitutes an express adoption of the document’s reasoning or something else. See
Abtew, 808 F.3d at 899 n.1 (stating that “we do not rule out the possibility that initialing a memo
together with other circumstances might indicate agency adoption of that memo in some cases”).
DOJ’s silence on a related matter gives additional reason to pause. It turns out that DOJ
produced a letter to a Canadian official on March 5, 2014, explaining the reasons for denying
Plaintiff’s transfer request. See Sluss, 898 F.3d at 1253. According to the letter, signed by Paula
Wolf, Chief of IPTU, DOJ denied Plaintiff’s transfer request “because of the seriousness of the
offense, because the applicant has become a domiciliary of the United States, because the prisoner
is a poor candidate due to his criminal history and because the prisoner has insufficient contacts
with the receiving country.” Id. (quoting Letter, Paula A. Wolf, Chief, Int’l Prisoner Transfer
Unit, Crim. Div., U.S. Dep’t of Justice, to Chris Hill, Instit’l Reintegration Ops., Corr’l Serv.,
Canada (March 5, 2014) (“Wolf Letter”). Neither DOJ’s briefing nor the Cunningham Declaration
refer to the Wolf Letter. Yet, it may be that the reasons offered in the Wolf Letter correspond to
the Denial Codes found on Document 9: “seriousness of the offense” – “SROC” (the “C” could
9
stand for conduct); “domiciliary of the United States” – “DOMY”; “criminal history” – “CRIM”;
and “insufficient contacts with the receiving country” – “NOCT.” If the court’s speculation bears
out, then it may be that Document 9 lost its predecisional character not only by virtue of it being
signed by the Director of the Office of Enforcement Operations, but also by virtue of the Wolf
Letter. DOJ, however, offers no facts to answer these open questions. 4
A disputed issue of material fact therefore remains as to whether DOJ expressly adopted
the reasoning of Documents 7 and 9. Accordingly, the court denies without prejudice both parties’
motions for summary judgment as to the Exemption 5 redactions. DOJ shall re-evaluate its
invocation of Exemption 5 in light of the court’s reasons for denying summary judgment.
2. Exemption 7(F)
FOIA Exemption 7(F) protects from disclosure records or information “compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(F). Exemption 7(F) involves no balancing test; it “is an absolute
ban against [disclosure of] certain information.” Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 29
(D.D.C. 2002). The D.C. Circuit has described the reach of Exemption 7(F) as
“expansive.” See Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 777 F.3d 518, 526 (D.C. Cir.
2015).
Plaintiff challenges the invocation of Exemption 7(F) in two ways. First, he argues that the
records in question do not qualify as records “compiled for law enforcement purposes.” See Pl.’s
4
Yet another letter might be relevant to determining whether DOJ expressly adoption Document 9. On August 12,
2014, Wolf sent a letter to Plaintiff explaining why DOJ had denied his motion for reconsideration. One of the reasons
cited by Wolf—there may be others—for the denial was that the hardships associated with being incarcerated in a
foreign country were “inapplicable to an inmate [such as Plaintiff] who has resided in the United States for a lengthy
period of time with the intention to remain in this country, and whose immediate family members are living here.”
Sluss, 898 F.3d at 1253 (quoting Wolf Letter to Matthew Sluss (Aug. 12, 2014)). DOJ must consider the contents of
this additional letter in determining whether Exemption 5 applies to Document 9.
10
Mem. at 14–15. Second, Plaintiff asserts that Exemption 7(F) cannot be invoked to protect the
requester and, in any event, he “affirmatively waives any such protection.” Id. at 17. Plaintiff also
offers a compromise: release of the redacted information not to him but to his counsel in a related
matter, who has agreed to act as custodian of the records. Id. at 15. The court finds that the first
argument is without merit, while the second deserves closer attention.
a. “Compiled for law enforcement purposes”
Plaintiff argues that the documents at issue here were not “compiled for law enforcement
purposes,” as required for any Exemption 7 withholding, because IPTU does not “perform any
investigations of criminal activity which could ‘result in civil or criminal sanctions.’” Pl.’s Mem.
at 14–15 (citing Rural Hous. All. v. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974)). DOJ insists
otherwise, asserting that its “evaluation of Plaintiff’s transfer request is part of its law enforcement
responsibility to enforce the federal criminal code and rules, and to protect against terrorism.”
Def.’s Mem. at 13 (citing Cunningham Decl. ¶ 8).
A record is “compiled for law enforcement purposes” so long as there is (1) a rational
“nexus” between the record and the agency’s law enforcement duties and (2) a “connection between
the assertedly exempt records and an inquiry into a ‘possible security risk or violation of federal
law.’” See Clemente v. FBI, 867 F.3d 111, 119 (D.C. Cir. 2017) (citation omitted); Campbell v.
Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998). The term “law enforcement” in this context
means “the act of enforcing the law, both civil and criminal.” Sack v. Dep’t of Defense, 823 F.3d
687, 694 (D.C. Cir. 2016) (citation omitted). Courts apply a “more deferential attitude” towards
claims of law enforcement purpose when, as here, a criminal law enforcement agency makes the
assertion. See Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982). IPTU operates within DOJ’s
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Criminal Division. See International Prisoner Transfer Program, THE UNITED STATES
DEPARTMENT OF JUSTICE, https://www.justice.gov/criminal-oia/iptu (last visited June 11, 2019).
Applying this broad construct to the present facts, the court finds that Documents 7 and 9
were “compiled for law enforcement purposes.” IPTU’s function here was to apply the Treaty on
the Execution of Penal Sentences between the United States of America and Canada on the
Execution of Penal Sentences. See Sluss, 898 F.3d at 1246 (citing 30 U.S.T. 6263 (1978)). The
Treaty’s purposes are “to promote rehabilitation of individuals incarcerated away from their home
countries . . . and thus permit their successful reintegration into society” and “to promote diplomatic
and law enforcement relations by relieving strains that arise from imprisonment of large numbers
of foreign nationals.” Id. In making transfer decisions, the Treaty directs each country to consider
“all factors” relating to the person’s “best interests,” 30 U.S.T. 6263 Art. III, ¶ 6, and “in doing so
consider how those interests dovetail with the Treaty’s rehabilitative purpose,” Sluss, 898 F.3d at
1252. An applicant’s personal interests are not controlling, however, and DOJ may take account of
other factors in deciding on a transfer request. See id. at 1253. Thus, IPTU makes determinations
concerning an individual offender’s rehabilitation and reintegration into society, which includes
weighing public safety. Such decisions fall within the heartland of law enforcement duties and
responsibilities. Cf. Quinto v. Dep’t of Justice, 711 F. Supp. 2d 1, 6 (D.D.C. 2010) (finding that
“communications to the [Bureau of Prisons] from the U.S. Attorney’s office regarding an inmate’s
placement within the network of institutions under BOP control [ ] are clearly related to the
enforcement of federal laws”); Linn v. Dep’t of Justice, No. 92-cv-1406 (GK), 1995 WL 631847,
at *35 (D.D.C. Aug. 22, 1995) (holding that “information disclosed to parole hearing examiners to
aid in their parole decisions furthers the purposes of law enforcement”). Defendant therefore has
established that Documents 7 and 9 were compiled for law enforcement purposes.
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b. “Endanger the life or physical safety of any individual”
The second part of Exemption 7(F) requires the government to show that disclosure of the
law enforcement record or information “could reasonably be expected to endanger the life or
physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Here, DOJ invokes Exemption 7(F)
to protect Plaintiff’s own safety. Plaintiff responds with three related arguments: (1) Exemption
7(F) cannot be invoked to protect the requester of information, (2) he “waives” any concern about
his personal safety, and (3) depositing the records with his former counsel alleviates the claimed
safety risk.
The plain text of FOIA does not support Plaintiff’s first argument that Exemption 7(F) does
not apply to him as the requester of information. Exemption 7(F) “does not require that a particular
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). “While courts generally have applied [FOIA] Exemption 7(F) to protect law enforcement
personnel or other specified third parties, by its terms, the exemption is not so limited; it may be
invoked to protect ‘any individual’ reasonably at risk of harm.” Long v. Dep’t of Justice, 450
F. Supp. 2d 42, 79 (D.D.C. 2006) (quoting 5 U.S.C. § 552(b)(7)(F)). At least one judge in this
District has expressly held that Exemption 7(F) can be used to protect the requester. See Mosby v.
Hunt, No. 09-cv-1917 (JDB), 2010 WL 2794250, at *1 (D.D.C. July 15, 2010), summarily aff’d,
No. 10-5296, 2011 WL 3240492 (D.C. Cir. July 6, 2011). The court concurs with that conclusion.
Nor does the court agree with Plaintiff that a requester can “waive” the government’s
concern about his personal safety. At least one judge has held that a requester can “waive” the
risk of harm under 7(F), see Boehm v. FBI, 948 F. Supp. 2d 9, 36 (D.D.C. 2013), but in this court’s
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view, the text of FOIA does not grant a requester the unilateral authority to negate an otherwise
applicable exemption.
That said, this case presents facts that convince the court that DOJ has failed to carry its
burden of showing a reasonable expectation that Plaintiff’s safety would be at risk if the material
in question were disclosed. “In reviewing claims under [FOIA E]xemption 7(F), courts have
inquired whether there is some nexus between disclosure and possible harm and whether the
deletions were narrowly made to avert the possibility of such harm.” Antonelli v. Fed. Bureau of
Prisons, 623 F. Supp. 2d 55, 58 (D.D.C. 2009) (citing Albuquerque Pub. Co. v. Dep’t of Justice,
726 F. Supp. 851, 858 (D.D.C. 1989)); see also Linn, 1995 WL 631847, at *8 (inquiring as to
“whether there is some nexus between disclosure and possible harm”). The court will accord
deference to the agency’s assessment of danger, but only when it supplies facts to support it.
See id. at *9; see also Campbell, 164 F.3d at 32 (holding that, because the FBI specializes in law
enforcement, “its decision to invoke exemption 7 is entitled to deference,” but the court’s review
is not “vacuous”).
Here, the Cunningham Declaration devotes little attention to explaining the risk of harm
Plaintiff would face from disclosure. Cunningham states that Documents 7 and 9 contain “detailed
and graphic information pertaining to Plaintiff’s underlying criminal offense,” and “[i]n light of”
that fact “it is reasonable to expect that the release of any such derogatory information would place
Plaintiff at even greater risk of harm from the general prison population within the confines of a
federal correctional facility.” Cunningham Decl. ¶ 29. This single-sentence justification is
problematic for a host of reasons. First, Cunningham’s rationale is conclusory. He offers no facts
whatsoever to support it. Second, Cunningham does not purport to be an expert in prison safety
nor does he indicate that he consulted with anyone who does have such expertise or experience.
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Third, Cunningham is wrong that Plaintiff resides in the “general prison population.” As Plaintiff
explains, he resides in a designated Sex Offender Management Program Facility, at which the
majority of inmates are sex offenders or have past sexual offense convictions. See Pl.’s Mot., Decl.
of Matthew Sluss, ECF No. 51 at 3–5, ¶ 7. Plaintiff’s placement in a sex offender facility
theoretically could lessen the risk of physically possessing records that describe his offense conduct.
In view of these deficiencies, the court could seek more facts from the agency to support
invocation of Exemption 7(F). But two factors counsel otherwise. The first is that Plaintiff has
disclaimed personal safety concerns with respect to the records. While a requester cannot
unilaterally nullify a safety risk, the fact that he expresses no concern over his safety—in a prison
setting no less—can enter into the court’s risk evaluation. See Boehm, 948 F. Supp. 2d at 36
(holding that “[g]iven that plaintiff has waived any concern for his own safety, the Court finds that
Exemption 7(F) is inapplicable”); cf. Ray v. FBI, 441 F. Supp. 2d 27, 37 (D.D.C. 2006) (finding
Exemption 7(D) inapplicable “[i]n light of [plaintiff’s] apparent waiver [of Exemption 7(D)’s
confidential informant protection],” because “the Court [wa]s not inclined to protect plaintiff from
information about himself”). The second, and more significant factor, is that Plaintiff’s former
counsel has agreed to act as the custodian of the records in question, thereby eliminating the risk
of harm to Plaintiff altogether. DOJ summarily rejects this option out of hand, simply because
Plaintiff did not designate a third-party custodian in his original FOIA request. Def.’s Reply at 9.
But that standard is entirely unrealistic. The ordinary FOIA requester will not be able anticipate
the assertion of any specific exemption, let alone designate a third-party custodian as a
prophylactic measure. What’s more, DOJ already has demonstrated a willingness to allow Plaintiff
access to another similar document through a third party. DOJ released Plaintiff’s Presentence
Investigative Report but placed it in the custody of the prison facility, even though DOJ deemed
15
that Plaintiff’s “possession of [the Report] could reasonably be expected to cause physical injury
or adversely affect the security, safety, or good order of the institution in which you are
incarcerated.” Cunningham Decl. ¶ 31. DOJ does not explain why Documents 7 and 9 could not
receive similar treatment.
Accordingly, the court finds in favor of Plaintiff as to information withheld based on
Exemption 7(F). Such information, however, must be released only to Erica Hashimoto, Plaintiff’s
legal advisor, who must retain physical possession of the records. Alternatively, DOJ can treat
Documents 7 and 9 in the same manner as the Presentence Report. In so ruling, the court assumes
that there is factual matter in Documents 7 and 9 that is segregable from any claimed Exemption 5
material. Only such factually segregable material need be released at this juncture. If Exemption 5
is ultimately determined not to apply, by either the agency or the court, DOJ may withhold no
factual information based on Exemption 7(F).
3. Exemption 6 and 7(C)
The final exemptions asserted by DOJ are Exemptions 6 and 7(C). Both protect personal
privacy, but because Exemption 7(C) offers greater protection than Exemption 6, the court
considers only Exemption 7(C). See Am. Civil Liberties Union v. Dep’t of Justice, 655 F.3d 1, 6
(D.C. Cir. 2011). Here, DOJ withheld “the names and/or identifying information of third-party
individuals and lower-level government employees.” Cunningham Decl. ¶ 27.
Plaintiff objects to the assertion of 7(C) in two ways. First, he contends that Documents 7
and 9 were not compiled for law enforcement purposes. See Pl.’s Mem. at 19. The court already
has rejected that argument. Second, he contends that, whatever privacy interest might exist, it is
outweighed by Plaintiff’s and the public’s interest in exposing the agency’s “illegal activity” of
“fail[ing] to consider his best interests as required by the US-Canada Treaty.” Id. at 20. But that
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argument is foreclosed by the D.C. Circuit’s decision in Sluss. The court held in Sluss that DOJ
did not act unlawfully by denying Plaintiff’s transfer requests. See 898 F.3d at 1253. Thus, where,
as here, there is no genuine public interest in the requested material, an individual’s privacy interest
must prevail under Exemption 7(C). Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873,
879 (D.C. Cir. 1989) (stating that, “something, even a modest privacy interest, outweighs nothing
every time”).
The court thus grants summary judgment in favor of DOJ with regard to redactions based
on Exemptions 6 and 7(C).
B. Adequacy of Search
Lastly, Plaintiff objects to the adequacy of Defendant’s search with respect to “documents
related to the IPTU’s implementation – or the application of – the US-Canada Treaty.” Pl.’s Mem.
at 23. Specifically, Plaintiff challenges DOJ’s failure to explain why the drives searched by the
chief of IPTU were “the only reasonable place to look.” Id. at 22 (citing Aguiar v. Drug Enf’t
Admin. 865 F.3d 730, 739 (D.C. Cir. 2017)).
Plaintiff is right. Recall, the chief of IPTU made a “supplemental search” of “IPTU’s S-
drive, his/her own H-drive, and also his/her own personal files, and further reviewed all documents
in folders entitled ‘IPTU Procedure and IPTU Policy Matters’ and ‘Canadian Issues’ for responsive
records.” Cunningham Decl. ¶ 12. This sparse description suffers from two flaws. First, as
Plaintiff points out, although Cunningham identifies the locations searched, he does not explain
why a search of “no other record system was likely to produce responsive documents,” and he does
not “show, with reasonable detail” that the agency’s approach “was reasonably calculated to
uncover all relevant documents.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see
also Aguiar, 865 F.3d at 739. Second, Cunningham’s search description falls short because it “does
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not disclose the search terms . . . and the type of search performed.” Aguiar, 865 F.3d at 738
(citation omitted). The court is told that the chief of IPTU searched for electronic records and where
he looked for them, but not how he went about performing the search and what search terms, if any,
he used. The court therefore cannot grant summary judgment to DOJ on the adequacy of its search.
V. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part Defendant’s Motion
for Summary Judgment, and grants in part and denies in part Plaintiff’s Cross-Motion for Summary
Judgment. In summary, (1) there remains a genuine dispute of material fact as to whether DOJ
expressly adopted Documents 7 and 9 as its final decision; (2) Plaintiff has established that the
information withheld on Exemption 7(F) grounds does not pose a reasonable risk to his safety if
released to a third party; (3) DOJ properly withheld information pursuant to Exemptions 6 and
7(C); and (4) DOJ has not yet demonstrated the adequacy of its search.
By no later than June 27, 2019, DOJ shall file a Status Report indicating how it intends to
proceed in this matter.
Dated: June 14, 2019 Amit P. Mehta
United States District Court Judge
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