Zander v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT A. ZANDER,
Plaintiff,
v. Civil Action No. 10-2000 (JDB)
DEPARTMENT OF JUSTICE
and
FEDERAL BUREAU OF PRISONS,
Defendants.
MEMORANDUM OPINION
Plaintiff Robert A. Zander was previously incarcerated in a Bureau of Prisons facility in
Butler, North Carolina. In June 2010, Zander sent requests to the Department of Justice under
the Freedom of Information Act ("FOIA") for information relating to his incarceration. In
response to his requests, the Department of Justice and Bureau of Prisons ("defendants") released
some records to Zander, but withheld other material. Zander has sued under FOIA to challenge
the withholding of this material. He also alleges that the defendants have failed to adequately
search for material responsive to his requests and that they are actively involved in a cover-up of
criminal conduct involving the Bureau of Prisons.
Now before the Court are the parties' cross-motions for summary judgment. On
September 15, 2011, the Court referred this matter to Magistrate Judge John M. Facciola for a
report and recommendation. Magistrate Judge Facciola issued a Report and Recommendation
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recommending that each side's motion be granted in part and denied in part. 1 More specifically,
Magistrate Judge Facciola recommended that a video be turned over to Zander with "redactions"
(the blurring of certain images in the video), ordered additional documents to be turned over to
him for in camera inspection, recommended that summary judgment be granted for defendants
with respect to the adequacy of the search, and recommended that other portions of Zander's
FOIA requests be denied for failure to exhaust administrative remedies. Defendants turned over
the documents for in camera inspection, and, upon review, Magistrate Judge Facciola further
recommended that the documents be released with certain redactions.
Both Zander and defendants have timely filed objections to the Magistrate Judge's Report
and Recommendation. Defendants contend that both the video and the other documents fall
under applicable FOIA exemptions and therefore should not be released to Zander. Zander
argues that he is entitled to a Vaughn index with respect to the documents turned over for in
camera review. Zander also contends that the defendants' search for documents was inadequate.
The Court accepts the Magistrate Judge's recommendation regarding the portions of
Zander's FOIA requests that should be denied for failure to exhaust administrative remedies, as
neither party has objected to this recommendation. For the reasons described below, the Court
accepts the Magistrate Judge's recommendation with respect to the adequacy of the search and
rejects Zander's request for a Vaughn index. The Court accepts with one modification the
Magistrate Judge's recommendation regarding the documents submitted for in camera review.
These documents will be ordered released as recommended with one additional redaction.
Finally, the Court rejects the Magistrate Judge's recommendation with respect to disclosure of
1
Although defendants filed two separate motions, one labeled as a motion to dismiss or, in the alternative, for
summary judgment and the other labeled as a motion for summary judgment, in part, Magistrate Judge Facciola
construed the parties' motions as cross-motions for summary judgment. The Court sees no need to do otherwise.
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the video, finding that the video is properly withheld because its release could endanger BOP
officials.
I. Background
The Court will not reiterate the full factual background of this case, which is described in
the Report and Recommendation. See Report and Recommendation (Sept. 16, 2011) [Docket
Entry 33] ("R&R") at 1-2. Zander made FOIA requests to the Department of Justice relating to
his incarceration in a Bureau of Prisons facility. The Bureau of Prisons conducted a search and
released certain documents to him, but claimed exemptions apply to other materials, barring their
disclosure. See R&R at 4-6. Two types of materials remain at issue, having been the subject of
the parties' timely objections to the Report and Recommendation. 2 First, the Bureau of Prisons
has withheld a video of Zander being forcibly removed from his prison cell on March 17, 2008.
R&R at 4, 6. Defendants argue that disclosure of the video would endanger the physical safety
of BOP employees by revealing the equipment, tactics, and procedures used in removing inmates
from cells. See Defs.' Objections to the Mag. J.'s Report and Recommendation (Sept. 30, 2011)
[Docket Entry 34] ("Defs.' Objections I") at 3-8. Second, BOP withheld a group of documents
either authored by or directed to defendants in a civil action being pursued by Zander in the
Eastern District of North Carolina. R&R at 1, 4-6. Most of the documents are letters and signed
forms from BOP employees to the Department of Justice, indicating that the employees have
been sued by Zander and seek representation by the Department. See id. at 10-11. The
remainder of the documents are two e-mails to and from BOP employees, BOP attorneys, and
2
Zander argues that defendants' objections to the Magistrate Judge's Report and Recommendation are untimely. See
Pl.'s Resp. in Opp'n to Defs.' Objections to Mag. J.'s Sept. 16, 2011 Report and Recommendation [Docket Entry 39]
("Pl.'s Resp.") at 1-2. On September 30, 2011, the deadline for filing objections to the Report and Recommendation,
the Court ordered the pending motions to be terminated because the Court believed no objections had been filed.
See Minute Order of Sept. 30, 2011 [Docket Entry 36]. In fact, defendants had filed objections shortly before the
Court terminated the pending motions, so the Court then vacated the termination. See Minute Order of Oct. 12,
2011. Hence, the objections were timely filed.
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DOJ attorneys. See id. The Magistrate Judge reviewed all these documents in camera and then
recommended that they be released with certain redactions. See id. at 11-14. Defendants argue
that these documents should be withheld entirely under the attorney-client privilege or the
attorney work product doctrine. See Defs.' Objections to the Mag. J.'s Recommended Redactions
and Production of Documents Submitted for In Camera Review (Dec. 1, 2011) [Docket Entry
45] ("Defs.' Objections II") at 3-12. Zander also objects to defendants' failure to provide a
Vaughn index for the material submitted for in camera review, as well as the overall adequacy of
defendants' search. See Pl.'s Objections to Mag. J.'s Report and Recommendation (Nov. 28,
2011) [Docket Entry 42] ("Pl.'s Objections") at 2-8.
II. Legal Standard
a. Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of "the pleadings, the discovery and disclosure materials on
file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material
fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine issue of material fact sufficient to preclude
summary judgment, the court must regard the non-movant's statements as true and accept all
evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the
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"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to
the absence of evidence proffered by the non-moving party, a moving party may succeed on
summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50(citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence
on which the jury could reasonably find for the [non-movant]." Id. at 252.
b. The Freedom of Information Act
The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to release all
records responsive to a proper request except those protected from disclosure by any of nine
enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized "to enjoin [a
federal] agency from withholding agency records or to order the production of any agency
records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see also Kissinger
v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the
burden of proving 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. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and
quotation marks omitted); accord Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir. 2000). The
district court may award summary judgment to an agency solely on the basis of information
provided in affidavits or declarations that describe "the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey,
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656 F.2d 724, 738 (D.C. Cir. 1981); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir.
1973).
c. Magistrate Judge Recommendations
Under Federal Rule of Civil Procedure 72(b), once a magistrate judge has entered his
recommended disposition, a party may file specific written objections. The district court “must
determine de novo any part of the magistrate judge's disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). The district court may then “accept, reject, or modify the
recommended disposition.” Id.III. Discussion
a. Disclosure of Video
BOP has withheld from disclosure a video of Zander being forcibly removed from his
prison cell on March 17, 2008. Zander has received a report of the incident, which included the
names of the BOP officers involved. R&R at 6. The Magistrate Judge recommended that the
video be edited "in a way that will obliterate the faces" of the officers involved and then released,
concluding that "[o]nce that is done, the safety of these law enforcement officers would in no
way be further compromised" and that "obliteration of their faces would protect their privacy."
Id. at 8-9. The Magistrate Judge also rejected BOP's concerns regarding the expense of editing
the video and the allegedly minimal value of the video after editing. See id. at 8-10.
Defendants now object to the disclosure of the video with the recommended "redactions."
Defendants contend that the Magistrate Judge's analysis with respect to FOIA exemption 7(F)
was in error regarding the video. See Defs.' Objections I at 3-7. That provision, 5 U.S.C. §
552(b)(7)(F), exempts from FOIA disclosure "records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
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or information . . . could reasonably be expected to endanger the life or physical safety of any
individual." Defendants maintain that "the videotape sought by Plaintiff shows BOP's
Calculated Use-of-Force Team enter the Plaintiff's cell, apply restraints, and remove him from
the cell, depicting the equipment, tactics, movements, and procedures used during the incident."
Defs.' Objections I at 6. Defendants argue that "producing the video, even with the faces of the
officers obscured, would nonetheless disclose the equipment, tactics, and procedures utilized by
the BOP Calculated Use-of-Force Team" and that "such disclosure could reasonably be expected
to endanger the lives or physical safety of any BOP officers who subsequently utilize those
techniques and equipment in the course of their duties." Id. at 5. Furthermore, defendants
contend that the video should be withheld because obliterating the protected information would
be burdensome to the agency and the remaining information would be of little value. Id. at 7-8.
Zander contends that defendants' argument against disclosure is undermined by BOP
policy, which contemplates that cell extractions will be recorded "to defend against unfounded
allegations and eliminate the unwarranted use of force." Pl.'s Resp. at 2 (quotation marks
omitted). Zander also maintains that the video should be released because it will reveal
"flagrantly unlawful" conduct and because the public has a right to know what type of force
officers employ. Id. at 2-4.
The Court finds that the video is properly withheld under FOIA exemption 7(F).
Exemption 7(F) most clearly applies to protect law enforcement officials from disclosure of
information that could prove threatening to them. See, e.g., Blanton v. DOJ, 182 F. Supp. 2d 81,
86-87 (D.D.C. 2002), aff'd, 64 Fed. Appx. 787 (D.C. Cir. 2003); Pfeffer v. Dir., U.S. Bureau of
Prisons, 1990 U.S. Dist. LEXIS 4627, at *4-5 (D.D.C. Apr. 17, 1990) (approving withholding of
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information by BOP relating to escape plans and smuggling of weapons into prisons). 3 It has
also been said that courts should, "within limits, defer to the agency's assessment of danger."
Linn v. DOJ, 1995 WL 631847, at *9 (D.D.C. Aug. 22, 1995) (citing Gardels v. CIA, 689 F.2d
1100, 1104-1105 (D.C. Cir. 1982)).
Such deference is not necessary here because the Court concludes that the agency's
assessment of the possible danger to law enforcement officials from disclosing the video is
abundantly reasonable. Removing prisoners from their cells presents clear dangers to the law
enforcement officers who are charged with the task. Disclosure of a recording of a "cell
extraction" presents the possibility that other prisoners will learn the methods and procedures
utilized by BOP officials, and that this information might be used to thwart the safe application
of these techniques in the future. The Court does not mean to suggest that plaintiff himself
presents such a danger, but dissemination to the public at large does present clear risks to law
enforcement officials. With respect to Zander's argument that the purpose of recording the
procedure is to guard against "unfounded allegations and eliminate the unwarranted use of
force," the Court finds that, even if this is the reason (or part of the reason) why BOP records the
procedure, disclosure via FOIA is still not warranted. The policy as represented by Zander need
not be construed to demand public disclosure in order to be effective. Recording the procedures
may allow supervisory officials within prisons to verify prisoner allegations of misconduct and
to ensure that cell extractions are not performed unnecessarily forcefully. Furthermore, the
disclosure of videos during litigation may be possible without broader dissemination to the
3
Although "FOIA is to be broadly construed in favor of disclosure, and its exemptions are to be narrowly
construed," Audubon Soc. v. U.S. Forest Service, 104 F.3d 1201, 1203 (10th Cir. 1997), courts have countenanced
the withholding of information under exemption 7(F) when the disclosure could arguably endanger people who are
not members of law enforcement or even referenced in the material. See, e.g., Living Rivers, Inc. v. U.S. Bureau of
Reclamation, 272 F. Supp. 2d 1313, 1321 (D. Utah 2003) (approving withholding of maps of Hoover and Glen
Canyon dams because disclosure could endanger downriver residents in the event of a terrorist attack). But see
ACLU v. Dep't of Def., 543 F.3d 59, 82 (2d Cir. 2008) (denying withholding when the government articulated the
danger as being to "the public at large," rather than a "specific, identifiable set of individuals").
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public, through the use of, for example, sealed docket entries or protective orders. These
mechanisms of ensuring the limited distribution of information, and therefore the protection of
the safety of prison staff, are not available in the FOIA context. Finally, the Court agrees with
defendants that the video will be of little or no value to anyone once information about cell
extraction procedure is segregated out, so providing the video after removing this information
does not make sense.
b. Disclosure of Documents
The Magistrate Judge also considered BOP's response to Zander's request for "all
communications to or from the defendants in Zander v. Lappin [the lawsuit Zander brought
against BOP employees in North Carolina] regarding the subject matter . . . of that litigation."
R&R at 10-14 (alteration in original). BOP located documents responsive to this request in a
"litigation file" and characterized the documents in three categories: (1) letters from the BOP
employees who were sued by Zander to DOJ, seeking legal representation; (2) correspondence
between BOP employees and BOP counsel pertaining to the employees' involvement in the
lawsuit; and (3) e-mail communications between DOJ attorneys and BOP employees and counsel
pertaining to the status of the litigation. Id. at 10-11. BOP withheld these documents on the
ground that "any disclosure of such records could result in the disclosure of attorney client
privileged information and/or attorney work product, including facts regarding defendants[']
personal involvement in the allegations asserted." Id. at 11 (alteration in original). The
Magistrate Judge found this response inadequate under the requirements to describe each
document withheld and segregate the exempt portion of documents from non-exempt portions.
Id. at 11. He concluded that "[s]ince only the most general description of the content of the file
is provided, I cannot possibly determine whether every document in it was in fact prepared for
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trial or in anticipation of litigation." Id. at 12. He further noted that "the work product privilege
is subdivided into fact and opinion work product and the former may yield" under certain
circumstances and also that "communications by the client that only state that which everyone
already knows . . . are not privileged." Id. at 12-13 (citing Mead Data Cent., Inc. v. Dep't of Air
Force, 566 F.2d 242, 254 (D.C. Cir. 1977)). Accordingly, the Magistrate Judge ordered that the
documents be produced for in camera review. Id. at 13-14. He then reviewed the documents and
recommended that they be released to Zander with some redactions, which he indicated to BOP
and the Court. The Court has reviewed the original documents and the recommended redactions.
The majority of the reviewed documents are letters and accompanying signed forms from
BOP employees to the Department of Justice, indicating that the employees have been sued by
Zander and seek representation by the Department. There are also two e-mails to and from BOP
employees, BOP attorneys, and DOJ attorneys. It appears that the Magistrate Judge has intended
to redact any material from the documents that does not fall into the category of information
"which everyone already knows," see R&R at 13 — that is, he has redacted the non-public
information, leaving the public information for disclosure. To summarize without revealing any
protected detail, the redacted information consists of each employee's description of Zander's
allegations and the employee's account of his or her participation (or lack thereof) in the alleged
events.
Defendants object to the recommendation to release the documents as redacted. See
Defs.' Objections II at 3-9. They argue that the disclosure letters and accompanying forms
should be withheld under FOIA Exemption 5, which exempts from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available by law to a party other than
an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Defendants contend that the
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letters and forms constitute confidential communications protected by the attorney-client
privilege. Defs.' Objections II at 3-9. They maintain that the Magistrate Judge erred in relying
on Mead Data for the proposition that "[t]he privilege does not allow the withholding of
documents simply because they are the product of an attorney-client relationship" and that "[i]t
must also be demonstrated that the information is confidential." Mead Data, 566 F.2d at 253.
Defendants argue that more recent precedent — specifically, In re Ampicillin Antitrust
Litigation, 81 F.R.D. 377 (D.D.C. 1978) — recognizes a different rule. Defs.' Objections II at 6-
7. Furthermore, defendants contend that the two e-mail communications between counsel and
BOP employees should not be disclosed because they "are protected by the attorney-client and
attorney[ ]work product privileges in that they constitute statements by a client intended to be
confidential for purposes of seeking counsel as well as statements prepared by counsel in
contemplation of litigation." Defs.' Objections II at 9-12.
At the outset, it is worth noting that not much really hangs on the outcome of defendants'
objection — at least with respect to the materials at issue in the present case — because the
documents (as redacted) hardly contain much information at all. As to the "representation
letters" and accompanying signed forms, the Court finds that the documents must be disclosed to
the extent the information has already been made public, with proper redactions for other non-
public material. Defendants' contention that the rule articulated in Mead Data was somehow
modified by In re Ampicillin is simply incorrect. In re Ampicillin addressed the attorney-client
privilege in the context of civil discovery and explicitly distinguished Mead Data and the FOIA
context:
In Mead Data, the court was examining the applicability of the attorney-client
privilege to an exemption five claim under the Freedom of Information Act
(FOIA). After stating that the privilege does have "a proper role to play in
exemption five cases," the court said that for the privilege to apply "[i]t must also
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be demonstrated that the information is confidential." However, the court made
clear that it was addressing the attorney-client privilege's role in exemption five
cases and not in any other context. . . . The court then proceeded to mention some
of the policy considerations particular to a FOIA case, that would not be
applicable to an antitrust case such as the case at bar, such as the overall
congressional intent of ensuring comprehensive public access to government
records.
In re Ampicillin, 81 F.R.D. at 388 n.21 (quoting Mead Data, 566 F.2d at 252, 255, 255 n.28)
(alteration in original). Hence, In re Ampicillin essentially stated that it was not departing from
Mead Data. See also State of Maine v. Dep't of Interior, 298 F.3d 60, 71-72 (1st Cir. 2002)
("The DOI erroneously assumes that the requirement of client communicated confidentiality is
satisfied merely because the documents are communications between a client and attorney. . . . 'It
must also be demonstrated that the information is confidential.'" (quoting Mead Data, 566 F.2d at
253)). But see Wishart v. Comm'r of Internal Revenue, 1998 U.S. Dist. LEXIS 13306, at *16-18
(N.D. Cal. Aug. 6, 1998) (applying the exemption to correspondence between government
employees and the Justice Department without distinguishing between FOIA and civil
discovery).
To be sure, there is some tension between Mead Data's statement that "discovery rules
should be applied to FOIA cases only 'by way of rough analogies,'" 566 F.2d at 252 (quoting
EPA v. Mink, 410 U.S. 73, 86 (1973)), and the plain language of the statute, which explicitly
exempts from disclosure documents "which would not be available by law to a party . . . in
litigation with the agency," 5 U.S.C. § 552(b)(5). See W. Trails, Inc. v. Camp Coast to Coast,
139 F.R.D. 4, 10 (D.D.C. 1991) (Attridge, Mag. J.) (discussing Mead Data and In re Ampicillin
and concluding that "[i]t is unclear, therefore, whether the same standard of confidentiality
applies to claims of attorney-client privilege in the context of civil discovery" as under FOIA
Exemption 5); see also Martin v. Office of Special Counsel, 819 F.2d 1181, 1184-86 (D.C. Cir.
1987) ("[T]he exact relationship between ordinary civil discovery and Exemption (b)(5),
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particularly the application of discovery privileges under the exemption, has bedeviled the courts
since the Act's inception."). The statute's plain text seems to indicate that the attorney-client
privilege ought to be fully incorporated in the FOIA context. But since the D.C. Circuit's
decision in Mead Data has not been revisited, the Court will accept the Report and
Recommendation's basic premise that the letters and forms must be disclosed, with appropriate
redactions for non-public information under the rationale of Mead Data.
With respect to the two e-mails, the question is somewhat different because the material,
according to defendants, falls into the narrower category of "attorney work product," rather than
the broader attorney-client privilege. See Defs.' Objections II at 9-12. "The work-product
doctrine shields materials 'prepared in anticipation of litigation or for trial by or for another party
or by or for that other party's representative (including the other party's attorney . . .).'" Judicial
Watch, Inc. v. DOJ, 432 F.3d 366, 369 (D.C. Cir. 2005) (quoting Fed. R. Civ. Pro. 26(b)(3)(A));
see also Mervin v. FTC, 591 F.2d 821, 825 (D.C. Cir. 1978) ("The attorney work product
privilege protects 'against disclosure of the mental impressions, conclusions, opinions, or legal
theories of a party's attorney or other representative concerning the litigation.'" (quoting Fed. R.
Civ. Pro. 26(b)(3)(B))). The D.C. Circuit has stated that any document "prepared in anticipation
of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by
the work product doctrine and falls under exemption 5," with no mention of the Mead Data
caveat that the information must be shown to be confidential. Tax Analysts v. IRS, 117 F.3d
607, 620 (D.C. Cir. 1997). In any case, the distinction between the attorney work product
doctrine and attorney-client privilege more generally is not of significance here because the
Court finds that the two e-mails are not attorney work product.
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The Court finds that the two e-mails do not fall under the attorney work product doctrine
because the e-mails are communications to and from clients regarding litigation, rather than
actual preparation by attorneys for litigation (or anticipated litigation). "The work product
doctrine does not extend to every written document generated by an attorney; rather, work
product covers only documents prepared in contemplation of litigation.” Senate of the
Commonwealth of P.R. v. DOJ, 823 F.2d 574, 586-87 (D.C. Cir. 1987) (quotations omitted).
The work product doctrine exists to ensure "[p]roper preparation of a client's case," Hickman v.
Taylor, 329 U.S. 495, 511 (1947); it is described under the subheading "Trial Preparation" in
Federal Rule of Civil Procedure 26(b). The documents at issue here relate to litigation —
Zander's case in North Carolina — but, in the Court's view, after having reviewed the
documents, it would not be fair to say they constitute "preparation" for litigation, as they merely
summarize the case very generally in lay terms and instruct BOP employees on how to receive
representation in the case. Such communications do fall under the broader attorney-client
privilege, but they are not the "work product" of an attorney contemplated for protection by that
doctrine. Cf. Judicial Watch, 432 F.3d at 367-68, 370 (finding that e-mail communications about
whether and how to file an amicus brief fall under the work product doctrine).
Since the communications fall under the broader attorney-client privilege, the Magistrate
Judge properly applied the Mead Data rule that the information should only be withheld if it is
confidential, and then reviewed the documents for any such material and recommended release.
The Court agrees with this assessment, with one exception. The Court believes that the second
sentence of the second paragraph of the e-mail dated March 18, 2010, is not publicly available
information, as this sentence is a characterization of the recipient's involvement in the matter.
Hence, this information is confidential and must also be redacted. The Court otherwise accepts
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the recommendation from the Magistrate Judge and will order the documents released as
redacted by the Magistrate Judge with this one additional redaction.
c. Adequacy of Search
The Magistrate Judge recommends granting summary judgment to BOP regarding the
adequacy of its search. R&R at 15. The Magistrate Judge considered and rejected Zander's
"wild allegations of a BOP cover up to conceal its behavior," as well as Zander's argument that
the uncovering of a document that BOP did not immediately disclose reveals the inadequacy of
the search that was performed. R&R at 14-15. Zander objects to this recommendation,
reiterating his argument that the discovery of previously undisclosed additional documents by
BOP shows that the search was inadequate and his allegations of "a continuing concatenation of
criminal conduct" by defendants. Pl.'s Objections at 5-8.
The Court will accept the Magistrate Judge's recommendation with respect to this
objection. That BOP failed to turn up a limited number of responsive documents in its search
does not show the search was inadequate. See Iturralde v. Comptroller of Currency, 315 F.3d
311, 315 (D.C. Cir. 2003) (citing Nation Magazine v. Customs Serv., 71 F.3d 885, 892 n. 7 (D.C.
Cir. 1995); Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994)). Furthermore, "'purely
speculative claims about the existence and discoverability of other documents'" cannot overcome
the presumption of good faith accorded agency affidavits representing a thorough search.
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
d. Vaughn Index
Finally, Zander objects to the Report and Recommendation because the Magistrate Judge
ordered defendants to turn over documents for in camera review, rather than provide a Vaughn
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index with respect to the documents. Under Vaughn, 484 F.2d at 826-28, agencies "resisting
FOIA disclosure [must] index the information they are withholding and [] provide non-
conclusory justifications for doing so." Roth v. DOJ, 642 F.3d 1161, 1172 (D.C. Cir. 2011).
Zander accurately states the rule regarding a Vaughn index: "an agency in possession of material
it considers exempt from FOIA [must] provide the requestor with a description of each document
being withheld, and an explanation of the reason for the agency's nondisclosure." Oglesby v.
Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). But the reason why an agency must
provide a Vaughn index is to enable a FOIA requestor to challenge the withholdings in court.
Here, that function has been served by in camera review and the Report and Recommendation, as
well as this Memorandum Opinion. Both the Magistrate Judge and now the Court have reviewed
the documents in their entirety and ruled on whether and to what extent the exemptions apply.
And the documents have been fully described for plaintiff through this process. Having received
a full explanation of what the documents are and why they are being withheld or disclosed with
redactions, Zander no longer has a right to a Vaughn index, which would provide no further
information. Although in camera review is not favored, see Hayden v. N.S.A., 608 F.2d 1381,
1387 (D.C. Cir. 1979), the Court sees no reason at this point to overrule the Magistrate Judge's
approach. Hence, the Court rejects this objection to the Report and Recommendation.
IV. Conclusion
For these reasons, the Court accepts the Magistrate Judge's recommendation regarding
the adequacy of defendants' search and the portions of Zander's FOIA requests that should be
denied for failure to exhaust administrative remedies. The Court rejects Zander's objection
regarding a Vaughn index; under the circumstances, a Vaughn index is not required. The Court
also rejects the Magistrate Judge's recommendation regarding disclosure of the video; the video
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may be withheld. No further action is required on these matters. The Court accepts with one
small modification the Magistrate Judge's recommendation with respect to the documents
submitted for in camera review. Defendants will be ordered to release these documents to
Zander as redacted by the Magistrate Judge with the one additional redaction described above.
Accordingly, the cross-motions for summary judgment will each be granted in part and denied in
part and the Court will order the redacted documents to be released to Zander. A separate order
has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: June 20, 2012
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