Pinson v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON, :
:
Plaintiff, : Civil Action No.: 12-01872 (RC)
:
v. : Re Document No.: 131
:
U.S. DEPARTMENT OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
Pro Se Plaintiff Jeremy Pinson is currently an inmate at ADX Florence, a federal prison
located in Colorado. While in prison, Mr. Pinson has filed multiple Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, requests with different components of the U.S. Department of Justice
(“DOJ”). On several occasions, the DOJ has asked Mr. Pinson to clarify his records requests,
told him that it could not find records that are responsive to his requests, or informed him that
the records he sought were exempt from disclosure by law. Mr. Pinson took issue with some of
these determinations, so he filed a complaint claiming that the DOJ improperly withheld
numerous records from him in violation of FOIA. In response, the DOJ filed several pre-answer
motions, each asking the Court to dismiss or grant summary judgment in its favor on different
portions of Mr. Pinson’s complaint.
Now before the Court is the DOJ’s motion for partial summary judgment as to Mr.
Pinson’s FOIA claims against the DOJ’s Office of Information Policy (OIP). Def.’s Mot. Partial
Summ. J., ECF No. 131. Specifically, Mr. Pinson alleges that the OIP refused to produce
records in response to FOIA requests that he submitted in 2010 (Request No. AG/10-R1351),
2011 (Request No. AG/11-0826)1, and 2012 (Request No. AG/12-0668)2. See Corr. 2d Am.
Compl. at 9–10, ECF No. 32. The DOJ argues that it is entitled to summary judgment on these
FOIA requests because the OIP conducted an adequate search for responsive documents,
properly withheld responsive information under applicable FOIA exemptions, and satisfied its
segregation obligations under FOIA. See Mem. P. & A. Supp. Defs.’ Mot. Partial Summ. J.
(“Defs.’ Mem. Supp.”), ECF No. 131-1.
For the reasons explained below, the Court will grant the DOJ’s motion for summary
judgment as to Request Nos. AG/10-R1351 and AG/11-0826 (later AG/12-00010). With respect
to Request No. AG/12-0668, the Court will grant summary judgment concerning the adequacy of
OIP’s search, but will require that the responsive documents be re-mailed to Plaintiff and denies
the motion with respect to one redaction concerning the identity of a third-party recommender.
II. FACTUAL BACKGROUND
A. FOIA/PA Request No. AG/10-R1351
By letter dated September 5, 2010, Mr. Pinson submitted a FOIA request to the Attorney
General for “any correspondence or electronic messages generated after January 21, 2009 by the
Attorney General, or staff within the Attorney General’s office, addressed to or intended for the
Director of the Federal Bureau of Prisons.” Mr. Pinson specified that he sought no more than
two hours of time spent in searching for responsive records and no more than one hundred pages
of responsive documents. Brinkmann Decl. ¶ 4 & Ex. A, ECF No. 131-3.
1
This request was later assigned a new tracking number, AG/12-00010, for
administrative purposes. See Brinkmann Decl. ¶ 21 & Ex. J.
2
This request was also assigned tracking numbers DAG/12-0669 and ASG/12-0670
because it was processed on behalf of ODAG and OASG as well. See Brinkmann Decl. ¶ 28 &
Ex. O.
2
OIP received Plaintiff’s request on September 16, 2010, and assigned FOIA tracking
number AG-10/R1351. Brinkmann Decl. ¶ 5 & Ex. B. By letter dated October 13, 2010, the
OIP staff acknowledged receipt of Mr. Pinson’s FOIA request and advised him that his request
required a search in another Office (i.e. Office of Attorney General (OAG)). Brinkmann Decl.
¶ 6.
Because Mr. Pinson specifically sought communications from OAG, OIP determined that
the Departmental Executive Secretariat (DES) and OAG files would be those most likely to
maintain any responsive records. Brinkmann Decl. ¶ 7. The DES “is the official records
repository of OAG and other senior management offices of the Department, and in particular,
maintains records of official correspondence sent to or from OAG from January 1, 2001 to the
present day.” Id. ¶ 10.
A search was initiated in OAG by memorandum dated October 13, 2010. In response to
OIP’s search memorandum, “OAG provided potentially responsive material located by one OAG
official, and identified four other officials within that office who might also have potentially
responsive records.” OAG’s FOIA/PA liaison requested that OIP conduct a search of the e-
mails of these four officials. “The FOIA Specialist assigned to [Mr. Pinson’s] request
subsequently searched the e-mails of two of the four officials identified by OAG, but was unable
to complete the searches of the other two officials[’ e-mails] before exhausting the two hours of
search that [Mr. Pinson] had specifically limited his request to in his request letter.” Id. ¶ 9.
“On March 10, 2011, the OIP FOIA Specialist assigned to [Mr. Pinson’s] request
conducted a search for records responsive to plaintiff’s FOIA request in the electronic database
of the [DES].” OIP conducted a search of the DES’s database using the term “Lappin,” with a
date restriction of January 21, 2009 to the date the search was conducted. Because Harley G.
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Lappin was the Director of the Bureau of Prisons (BOP) for the entirety of the time period
applicable to Plaintiff’s request, DOJ asserts that this search term was reasonably calculated to
locate any responsive communications maintained in the electronic database of the DES. Id.
¶ 10.
As a result of the above-described searches, OIP identified seventy-two pages of records
responsive to Mr. Pinson’s FOIA request. “Because the documents contained information of
interest to other Department components, and pursuant to Department regulation 28 C.F.R.
§ 16.4(c)(1), [OIP] conducted consultations with these other [DOJ] components. Pursuant to a
consultation with BOP, [BOP] requested that certain information be withheld by OIP on its
behalf.” Id. ¶ 11.
By letter dated November 9, 2012, OIP responded to Mr. Pinson’s FOIA request
identifying seventy-two pages of responsive material. “[OIP] released thirty-five pages without
excision and five pages with excisions, some of which were made on behalf of [BOP], pursuant
to Exemptions 6 and 7(C) of the FOIA, 5 U.S.C. § 552 (b)(6), (7)(C). In addition, thirty-two
pages were withheld in full on behalf of BOP pursuant to Exemptions 5, 7(C), and 7(D) of the
FOIA, id. § (b)(5), (7)(C), (7)(D).”3 Id. ¶ 12 & Ex. C.
By letter dated November 19, 2012, Mr. Pinson administratively appealed OIP’s
decision. In his appeal letter, Mr. Pinson did not challenge any of the excisions made on the
released documents. Instead, he challenged two issues not raised in the instant matter, and the
withholding in full of the thirty-two pages withheld on behalf of BOP. Id. ¶ 13 & Ex. D.
3
Plaintiff was further advised that some portions of the documents provided in the
response were marked as “Nonresponsive.” DOJ considered this information as not responsive
to Mr. Pinson’s FOIA request because it did not consist of communications from OAG to former
BOP Director Lappin. Accordingly, those portions were excised and marked accordingly.
Brinkmann Decl. ¶ 12 & Ex. C.
4
In sum, in its response to request number AG/10-1351OIP, OIP redacted portions of five
pages it produced to Mr. Pinson, and it withheld in full thirty-two pages. “Each of the five pages
withheld in part had only one redaction per page.” Three of these redactions, consist of two
instances of a cell phone number and the personally-identifying portions of a personal e-mail
address. Plaintiff does not challenge these redactions. The fourth redaction consists of a
“portion of one sentence consisting of a private remark regarding a personal assessment of a
federal employee.” But as set forth above, Mr. Pinson did not administratively appeal this
redaction. The final redaction, consisting of the name and identifiable information of a third-
party, and the withholding of the remaining thirty-two pages withheld in full were withheld on
behalf of BOP and, according to DOJ, will be addressed separately by BOP. Id. ¶ 15. But the
BOP did not provide any such separate explanation with the OIP’s motion or as part of its own
dispositive motion with respect to FOIA requests directed at the BOP. Instead, upon the request
of the Court, see Order of August 27, 2015, ECF No. 235 (indicating that the Court has been
unable to find such explanation and giving DOJ until September 10, 2015 to specify where in the
record the explanation exists or to provide it), on October 1, 2015, BOP provided its separate
explanation. ECF No. 239. The Court will treat that justification and Plaintiff’s response, ECF
No. 261, as a separate dispositive motion.
B. FOIA/PA Request No. AG/11-0826 (later AG/12-00010)
By letter dated May 26, 2011, Mr. Pinson submitted a FOIA request to the Attorney
General for records “maintained by the Dept. of Justice, relevant to the June 8, 2010 decision of
the European Court of Human Rights [ECHR] in Application Nos. 24027-/07, 11949/08 and
36742/08.” The request was assigned FOIA tracking number AG/11-0826. Mr. Pinson specified
5
that he sought no more than two hours of time spent in searching for responsive records and no
more than one hundred pages of responsive documents. Brinkmann Decl. ¶¶ 16, 17 & Exs. F, G.
By letter dated June 28, 2011, OIP informed Mr. Pinson that his request did not cover
agency files. Id. ¶ 18 & Ex. G. On July 8, 2011, Mr. Pinson appealed to OIP’s Administrative
Appeal Staff stating that OIP misconstrued his request and that he was actually seeking records
concerning the Attorney General’s participation in the referenced ECHR cases. In particular,
Plaintiff specified that he was seeking records regarding the ECHR decision “generated, received
or maintained by [the Attorney General’s] office.” Id. ¶ 19 & Ex. H. OIP agreed to reopen Mr.
Pinson’s FOIA request in light of the additional information he provided and it was assigned a
new tracking number, AG/12-00010, for administrative purposes. Id. ¶¶ 20, 21 & Exs. I, J.
The FOIA Specialist assigned to Mr. Pinson’s request conducted a search of DES. As set
forth above, the DES is the repository of official internal and external DOJ correspondence and,
accordingly, OIP contends that it is the most likely repository for records pertaining to Attorney
General participation in an international court proceeding. The search terms used were the
names of the individuals whose ECHR applications were cited in Mr. Pinson’s request. As a
result of this search, OIP states that no responsive records pertaining to the June 8, 2010,
decision of the ECHR were located. Additionally, the FOIA Specialist reviewed the docket of
the ECHR for any indication of Attorney General involvement in the referenced ECHR
decisions, as referenced in Mr. Pinson’s appeal letter. But the FOIA Specialist only found
references to Attorney General/United States policies in the docket and found no references to
direct participation by the Attorney General himself. Id. ¶ 22.
On December 8, 2011, OIP informed Mr. Pinson that it was unable to locate records
responsive to his request. Mr. Pinson submitted an administrative appeal but the OIP’s decision
6
on AG/12-00010 was affirmed. In sum, OIP contends that it searched all files likely to maintain
responsive materials, but no records responsive to Plaintiff’s request number AG/11-0826
(AG/12-00010) were located. Id. ¶¶ 23–26 & Exs. K, L, M.
C. FOIA/PA Request No. AG/12-0668, DAG/12-0669, and ASG/12-0670
On March 7, 2012, Mr. Pinson submitted a FOIA request to the Attorney General for “all
information related to the selection of Bureau of Prisons Director Charles Samuels and Regional
Director Paul Laird for those positions,” and “any reports of deaths of inmates in federal custody
during 2008-2011.” Again, Mr. Pinson specified that no more than two hours be spent searching
for responsive records and that he sought no more than one hundred pages of responsive
documents. The return address Mr. Pinson provided for this request was ADX Florence,
Florence, Colorado. OIP initiated processing on behalf of OAG, Office of the Deputy Attorney
General (ODAG), and Office of the Associate Attorney General (OASG) and assigned FOIA
tracking numbers AG/12-0668, DAG/12-0669, and ASG/12-0670. Id. ¶¶ 27, 28 & Exs. N, O.
The FOIA Specialist searched DES for responsive records, specifically searching the
records of OAG, ODAG, and OASG. OIP determined that the DES is the most likely repository
for records pertaining to “official reports to Department leadership on inmate deaths, as well as
correspondence pertaining to the selection of the BOP Director.” The search terms used for this
search were: “Paul Laird,” “Charles Samuels,” and “Harley G. Lappin.” Id. ¶ 29. OIP reviewed
the located records and identified 139 pages responsive to Mr. Pinson’s request. The records
required consultation with other DOJ components pursuant to 28 C.F.R. § 16.4(c)(1) and OIP
forwarded the records to BOP for processing. As a result, BOP requested that certain
information be withheld by OIP on its behalf. OIP released seventy-two pages without excision
and sixty pages with excisions, some made on behalf of BOP, pursuant to Exemptions 5, 6, and
7
7(C) of the FOIA, 5 U.S.C. § 552 (b)(5), (6), (7)(C). OIP also withheld seven pages in full on
behalf of BOP pursuant to Exemptions 5 and 6, id. § (b)(5), (6). OIP also informed Mr. Pinson
that it had located no responsive records within OASG. Brinkmann Decl. ¶¶ 30–34 & Exs. O, P,
Q. Although Mr. Pinson’s FOIA request had originated in Florence, Colorado, and OIP’s
acknowledgement letter of May 3, 2012 had been sent to Florence, Colorado, for reasons not
revealed in the record, the interim response of June 14, 2012 and the Final Response of April 22,
2013 were sent to the Federal Detention Center in Houston, Texas. Compare id. Exs. N, O, with
Exs. P, Q.
In sum, OIP withheld portions of sixty pages from Mr. Pinson, as well as seven pages in
full, in its response to request numbers AG/12-0668 and DAG/12-0669; and found no responsive
records in the office of the Associate Attorney General. Three of the sixty pages withheld in part
are OAG records. The redactions in the OAG records, consist of the name and identifying
information of a third party who submitted a letter of recommendation in support of the
consideration of Charles Samuels for the position of BOP Director. These redactions were made
by OIP. The remaining fifty-seven pages withheld in part, and seven pages withheld in full, are
ODAG records and were withheld upon the request of BOP. The redactions in the fifty-seven
pages of ODAG records released in part; and the seven pages of ODAG records withheld in full
consist of: third-parties referenced in the “information memoranda” from the BOP Director
reporting on inmate deaths to the Deputy Attorney General, the identity and curriculum vitae of
a candidate recommended for the position of Director of BOP who was not ultimately selected
for that position, as well as the recommendation of that individual, and the home address of the
Director of BOP. All of the withholdings in the ODAG records were made on behalf of BOP,
and OIP asserts that those withholdings will be addressed separately by BOP. Id. ¶ 34. But as
8
set forth above, that explanation by BOP for these withholdings was not provided until much
later in a separate filing and will be treated as a separate dispositive motion.
III. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders 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)). Under Rule 56 of
the Federal Rules of Civil Procedure, summary judgment must be granted when the pleadings,
the discovery and disclosure materials on file, and any affidavits “show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Fed. R. Civ. P. 56.
In the FOIA context, a district court reviewing a motion for summary judgment conducts
a de novo review of the record, and the responding federal agency bears the burden of proving
that it has complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B). The court must
analyze all underlying facts and inferences in the light most favorable to the FOIA requester.
See Wills v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 65 (D.D.C. 2008). 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 Ethics & Responsibility in Wash. v.
U.S. 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
9
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))). Such declarations “are accorded a presumption of
good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard 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)).
“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).
IV. ANALYSIS
A. FOIA/PA Request No. AG/10-R1351
The DOJ argues that it is entitled to summary judgment as to Request No. AG/10-R1351
because there is no genuine dispute of material fact that OIP conducted an adequate search for
responsive records and properly withheld documents pursuant to FOIA Exemptions 6 and 7(C).
See Defs.’ Mem. Supp. at 9–14. Because the Court agrees, summary judgment is appropriate.
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was reasonably calculated to uncover all relevant documents.”
Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation
marks and citations omitted); see Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (“The
10
adequacy of an agency’s search is measured by a standard of reasonableness and is dependent
upon the circumstances of the case.” (internal quotation marks and citations omitted)). To
satisfy its burden of showing that its search was calculated to uncover all relevant documents, an
agency must submit a “reasonably detailed” affidavit setting forth the search terms and the type
of search performed. Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Agency
affidavits attesting to a reasonable search “are afforded a presumption of good faith” and “can be
rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Defenders
of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (quoting Trans Union
LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001)).
The Court agrees that OIP conducted an adequate search for records in regards to FOIA
Request No. AG/10-R1351. Specifically, Mr. Pinson made a request for any correspondence or
electronic messages generated after January 21, 2009 by the Attorney General, or staff within the
Attorney General’s office, addressed to or intended for the Director of BOP. See ECF No. 131-1
at 2. In response to this request, OIP identified OAG and DES as the appropriate offices that
were likely to contain responsive records to Mr. Pinson’s request. Id. Subsequently, a FOIA
specialist conducted searches in both of these locations finding various responsive records prior
to exhausting the maximum two hour restriction imposed by Mr. Pinson in his request letter.
Brinkmann Decl. ¶ 9. Thus, even if OIP could have done more to search for responsive
documents, the OIP conducted a reasonable search within the two hours allotted. Thus, OIP has
provided “a reasonably detailed” declaration setting for the search terms and type of search
performed. See generally Brinkmann Decl. The Court finds that OIP’s search was reasonably
calculated to uncover all relevant documents within the allotted time.
11
The only challenge Mr. Pinson raises as to the adequacy of the search for this request is
his argument that the Brinkmann Declaration is not admissible because it contains hearsay. Pl.’s
Opp’n at 2, ECF No. 153. This argument is based on the claim that the declaration contains
descriptions of searches conducted by individuals other than the declarant. Id. However, the
courts in this Circuit have made clear that declarations containing such information are
acceptable in FOIA cases. As succinctly stated in Barnard v. Dep’t of Homeland Security, 531
F. Supp. 2d 131, 138 (D.D.C. 2008):
Plaintiff misunderstands the personal knowledge requirements for FOIA
declarations. Federal Rule of Civil Procedure 56(e) provides that a declaration
“must be made on personal knowledge, set out facts that would be admissible as
evidence, and show that the [declarant] is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(e). A declarant in a FOIA case satisfies the personal
knowledge requirement in Rule 56(e) “ ‘if in his declaration, [he] attests to his
personal knowledge of the procedures used in handling [a FOIA] request and his
familiarity with the documents in question.’ ” Madison Mech., Inc. v. Nat'l
Aeronautics and Space Admin., No. 99–2854, 2003 WL 1477014, *6, 2003 U.S.
Dist. LEXIS 4110 at *17 (D.D.C. Mar. 20, 2003) (quoting Spannaus v. Dep't of
Justice, 813 F.2d 1285, 1289 (4th Cir.1987)). Declarants are not required to
participate in the search for records. See Carter, Fullerton & Hayes LLC v.
Federal Trade Commission, 520 F.Supp.2d 134, 146 (D.D.C.2007) (“[t]he
declaration of an agency official who is knowledgeable about the way in which
information is processed and is familiar with the documents at issue satisfies the
personal knowledge requirement”); Brophy v. U.S. Dep't of Defense, No. 05–360,
2006 WL 571901, *4, 2006 U.S. Dist. LEXIS 11620 *13 (D.D.C. Mar. 8, 2006)
(finding that the D.C. Circuit “long ago recognized the validity of the affidavit of
an individual who supervised a search for records even though the affiant has not
conducted the search himself”) (citing Meeropol v. Meese, 790 F.2d 942, 951
(D.C.Cir.1986)). Consistent with these requirements, hearsay in FOIA
declarations is often permissible. See Brophy, 2006 WL 571901, *4, 2006 U.S.
Dist. LEXIS 11620 at *13 (“[d]eclarations that contain hearsay in recounting
searches for documents are generally acceptable”).
Accordingly, Plaintiff’s hearsay objection lacks merit.
The OIP further argues that it is entitled to summary judgment because it properly
withheld responsive records under applicable FOIA exemptions. As a result of the above-
referenced search, seventy-two pages of responsive records were located and identified. See
12
Brinkmann Decl. ¶ 11. Thirty-five pages were released without excision, five pages were
released with excisions, and thirty-two pages were withheld in full. Id. at ¶ 12. With respect to
the excisions made by OIP on five pages of records (rather than at the request of BOP which will
be dealt with in a forthcoming opinion addressing ECF No. 239), OIP withheld pursuant to
FOIA Exemption 6 the following information: two instances of cell phone numbers (occurring
on two separate pages); the personally-identifying portion of an e-mail address; and, a private
remark in which an OAG employee remarks on his personal assessment of another federal
employee. See Brinkmann Decl. ¶¶ 15, 35. Plaintiff has not challenged the withholding of the
cell phone numbers or e-mail address. Pl.’s Opp’n at 3; see also Shurtleff v. EPA, 991 F. Supp.
2d 1, 18 (D.D.C. 2013) (finding that defendants withholding of cell phone numbers, home phone
numbers, home addresses, medical information, and personal email addresses is proper under
Exemption 6). Accordingly, those withholdings are not addressed further.
Thus, the only remaining withholding at issue with respect to this FOIA request is the
private remark by the OAG employee concerning his assessment of another employee. But,
because Plaintiff did not appeal this withholding, the claim has not been exhausted and cannot be
challenged here. See Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986)
(“It is likewise clear that a plaintiff may have exhausted administrative remedies with respect to
one aspect of a FOIA request—and thus properly seek judicial review regarding that
request—and yet not have exhausted her remedies with respect to another aspect of a FOIA
request.”); Hall & Assoc. v. EPA, 77 F. Supp. 3d 40, 45 (D.D.C. 2014) (same). Consequently,
because OIP prevails on its withholdings as well, the Court grants the DOJ’s motion for partial
summary judgment as to FOIA Request No. AG/10-R1351.
13
B. FOIA/PA Request No. AG/11-0826 (later AG/12-00010)
With respect to Request No. AG/11-0826 (later AG/12-00010), OIP asserts that it
conducted an adequate search for responsive records and found none. See Defs.’ Mem. Supp. at
5–6, 9–14. In response, Mr. Pinson argues that the search was not adequate pursuant to the
requirements imposed by FOIA. See Pl.’s Opp’n at 2. For the reasons set forth below, however,
the Court concludes that the search was adequate because it was reasonably designed to to
produce the requested information and, thus, grants summary judgement in favor of defendant.
Under FOIA, an adequate search is one that is “reasonably calculated to uncover all
relevant documents.” Hodge v. FBI, 730 F.3d 575, 579 (D.C. Cir. 2013). The agency does not
have to search “every record system” for the requested documents, but it “must conduct a good
faith search of those systems of records likely to possess the requested records.” Marino v. U.S.
Dep’t of Justice, 993 F. Supp. 2d 1, 9 (D.D.C. 2013) (citing Oglesby, 920 F.2d at 68). 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 Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003). 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 v. U.S. Dep’t of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980).
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 v. CIA,
508 F.3d 1108, 1116 (D.C. Cir. 2007).
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Mr. Pinson’s FOIA request sought Attorney General records “relevant to the June 8,
2010 decision of the European Court of Human Rights [ECHR] in Application Nos. 24027-/07,
11949/08 and 36742/08.” Brinkmann Decl. ¶ 16 & Ex. F. OIP identified DES as the most likely
repository for records pertaining to the Attorney General’s participation in an international
proceeding. Id. ¶ 22. OIP conducted a search of DES using search terms that were the names of
the individuals whose ECHR applications were cited in Plaintiff’s request. Id. No responsive
records were located. Id. To further ensure adequacy of the search, OIP reviewed the docket of
the ECHR for any indication of Attorney General involvement in these ECHR decisions, as
referenced in Mr. Pinson’s appeal letter. Id. There were only references to general Attorney
General/United States policies found in the docket and no direct participation by the Attorney
General himself. Id. Thus, DOJ has provided a declaration from the OIP showing an organized
and thorough search for the request at issue, and its memorandum canvasses the request in detail,
explaining to whom the request was sent, the search terms used, and the specific database
searched. Id. ¶¶ 22–23. Consequently, OIP has demonstrated beyond material doubt that its
search was reasonably calculated to uncover all relevant documents. Valencia-Lucena, 180 F.3d
at 325.
Mr. Pinson weakly challenges this detailed accounting of the search by speculating that
responsive documents must exist because “it is clear from the records on the docket of the
European Court of Human Rights that the Dept. Of Justice and the State Dept. were asked for,
and provided input, on the extradition requests at issue leading [] the EHCR to decline
extradition . . . .” Pl.’s Opp’n at 2. But this assertion proves nothing. First, Plaintiff fails to
provide the excerpts from the docket to which he refers so that the Court may assess how “clear”
its entries are. More importantly, even taking Plaintiff’s assertion at face value only indicates
15
that the Department of Justice may have contributed to the proceedings, not the Attorney
General himself (or anyone on his immediate staff). Thus, Plaintiff’s bald assertion does not
persuade the Court that responsive documents may exist in the Attorney General’s files that its
thorough search did not uncover. Plaintiff’s argument is therefore clearly insufficient to avoid
summary judgment under FOIA. See Safecard Services, Inc., v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (“Agency affidavits are accorded a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’” (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
Accordingly, this Court finds that OIP conducted an adequate and reasonable search for
records. Although OIP’s search yielded no responsive records, this Court affords OIP’s
Brinkmann Declaration a presumption of good faith, absent non-speculative evidence to the
contrary, and grants the DOJ’s motion for summary judgment as to FOIA Request No. AG/11-
0826 (later AG/12-00010).
C. FOIA/PA Request No. AG/12-0668, DAG/12-0669, and ASG/12-0670
As set forth above, Plaintiff submitted a FOIA request seeking “all information related to
the selection of Bureau of Prisons Director Charles Samuels and Regional Director Paul Laird
for those positions and any reports of deaths of inmates in federal custody during 2008-2011.”
Brinkmann Decl. ¶ 27 & Ex. N. DOJ’s search located 139 pages responsive to Mr. Pinson's
request. Id. ¶ 32. OIP released seventy-two pages without excision, sixty pages with excisions,
and withheld seven pages in full. Id. ¶ 33. Plaintiff challenges the adequacy of the search and
also some aspects of the withholdings made by OIP. See Pl.’s Opp’n at 2–3. But Plaintiff also
complains that he never received the documents that were produced because they were sent to
the wrong prison. Id. at 1. For the reasons set forth below, the Court will have DOJ re-send the
16
documents it previously mailed, grant summary judgment to OIP concerning the adequacy of
search, and deny summary judgment to OIP with respect to the one excision it made on its own
behalf.
As an initial matter, Plaintiff complains he never received the documents that OIP
purports to have sent to him in response to this FOIA request. Id. at 1. Plaintiff infers that this
occurred because the record reflects that the documents were sent to an institution in Houston,
Texas at a time Plaintiff claims he was incarcerated in Florence, Colorado. Id.; see also
Brinkmann Decl. Ex. Q. The record makes clear that the documents were sent on April 22, 2013
to the institution in Houston, id., despite the fact Plaintiff’s FOIA request included a return
address of Florence, Colorado, id. Ex. N, and OIP previously corresponded with Plaintiff for this
request at the Florence institution, id. Ex. O. The printout that Plaintiff attaches to his
Opposition indicates that, at the time the documents were mailed on April 22, 2013, he was
incarcerated at the Florence institution. See Pl.’s Opp’n, Ex. 1, Attach. A (indicating Plaintiff
was held at FLM 11-30-2012 to 06-08-2013). OIP’s Reply argues that Plaintiff was held at the
Houston institution when OIP sent its interim response, but that OIP was not informed that
Plaintiff had been sent back to Florence when it sent the documents to Houston rather than
Florence. Defs.’ Reply at 4, ECF No. 135. But the problem with OIP’s logic is that the record
does not reflect that Plaintiff ever told OIP to correspond with him at the Houston institution
rather than at Florence the location from which his request originated. Thus, based on the record
presented, OIP should have sent the documents to the last location Plaintiff had indicated he was
held, i.e., Florence. Alternatively, to the extent that OIP independently took it upon itself to
determine that Plaintiff had been moved to Houston when it sent the interim response, it should
have made the same independent inquiry later on when it provided its final response and
17
erroneously mailed the responsive documents to Houston rather than Florence. Thus, based on
the current record, this erroneous mailing of the documents cannot be attributed to Plaintiff’s
action or inaction. Accordingly, OIP is ordered to re-mail the responsive documents to
Plaintiff’s current address.
DOJ has moved for summary judgment arguing that there is no genuine dispute of
material fact that OIP conducted an adequate search. See Defs.’ Mem. Supp. at 9–13. In
response to Mr. Pinson’s FOIA request seeking “all information related to the selection of BOP’s
Director Charles Samuels and Regional Director Paul Laird for those positions and any reports
of deaths of inmates in federal custody during 2008-2011,” OIP searched the electronic database
of DES for responsive records, specifically searching the records of OAG, ODAG, and OASG.
Brinkmann Decl. ¶ 29. This database was searched because it is the official records repository
for OAG, ODAG and OASG and, because DES maintains records of official internal and
external Department of Justice correspondence, it was deemed “the most likely repository for
records pertaining to official reports to Department leadership on inmate deaths, as well as
correspondence pertaining to the selection of the BOP Director.” Id. “The search terms used for
this search were: ‘Paul Laird,’ ‘Charles Samuels,’ and ‘Harley G. Lappin.’” Id.4 As a result of
this search, 139 pages of responsive records were located and identified, but no responsive
records were located within OASG. Id. ¶¶ 31, 32.
In response to the detailed information OIP provided in its motion and the Brinkmann
Declaration, Plaintiff raises no objection specific to the search made in response to this request.
4
“The terms ‘Charles Samuels’ and ‘Harley G. Lappin’ were determined to be the
appropriate search terms for located reports of deaths of federal inmates because these reports
are submitted to ODAG by the Director of BOP. Samuels and Lappin were the directors for the
time period encompassed by plaintiff’s request. The search terms ‘Homicide,’ ‘Suicide,’ ‘Prison
Suicide,’ and ‘Prison Homicide’ were also initially used but did not locate relevant materials.”
Brinkmann Decl. ¶ 29 n.6.
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Pl.’s Opp’n at 2. Accordingly, based on a declaration that properly sets forth details of the
search terms, locations searched, and type of search performed by OIP, this Court finds that OIP
conducted an adequate search in response to Mr. Pinson’s FOIA request that was reasonably
calculated to uncover the relevant documents in its files. See Oglesby, 920 F.2d at 68 (holding
that “reasonably detailed” affidavits or declarations must “set[ ] forth the search terms and the
type of search performed, and aver[ ] that all files likely to contain responsive materials (if such
records exist) were searched.”).
Finally, OIP has moved for summary judgment on the redactions it made on the records
found to be responsive to Plaintiff’s FOIA request. But, as set forth below, only one redaction is
appropriately at issue here. And, for the reasons set forth below, summary judgment is denied
on that redaction.
As stated above, OIP’s search resulted in the location and identification of 139 pages of
responsive records. Brinkmann Decl. ¶ 32. Seventy two pages were identified for release
without excision, sixty pages were identified for release with excisions, and seven pages were
withheld in full. Id. ¶ 33. The seven pages withheld in full were withheld in full at the request
of BOP. Id. Of the sixty pages that were identified for release with excisions, only three pages
contained redactions that were made by OIP on its own behalf. Id. ¶¶ 33, 34. The only OIP
redaction made on the three pages of OAG records consists of “the name and identifying
information of a third-party who submitted a letter of recommendation in support of Charles
Samuels for the position of BOP Director . . . .” Id. ¶ 34. The remaining fifty-seven pages of
ODAG records that were redacted and the seven pages of ODAG records withheld in full were
redacted or withheld in full on behalf of BOP and were not addressed in the Brinkmann
declaration or OIP’s motion. Accordingly, as set forth previously, because BOP provided an
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explanation for those redactions/withholdings on October 1, 2015, see ECF No. 239, the Court
will treat that justification and Plaintiff's response, ECF No. 261, as a separate dispositive
motion.5 Consequently, the only withholding addressed here is the name and identifying
information of a third-party who submitted a letter of recommendation in support of Charles
Samuels for the position of BOP Director which OIP withheld pursuant to FOIA Exemption 6.
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 Supreme Court has interpreted the term
“similar files” broadly so as “to cover detailed Government records on an individual which can
be identified as applying to that individual.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S.
595, 602 (1982) (internal quotation marks and citation omitted). Therefore, not only does the
exemption protect files, “but also bits of personal information, such as names and addresses, the
release of which would create a palpable threat to privacy.” Prison Legal News v. Samuels, 787
F.3d 1142, 1147 (D.C. Cir. 2015) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C.
Cir. 2006)) (internal quotation marks and alterations 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. Nat’l Aeronautics and Space Admin.,
920 F.2d 1002, 1006 (D.C. Cir. 1990)). This threshold has been easily met here.
5
Plaintiff complains that, because he did not receive the documents at issue, he cannot
adequately rebut the DOJ’s arguments concerning whether the information withheld was
appropriately segregated. Pl.’s Opp’n at 3–4. This concern has merit. Accordingly, once
Plaintiff receives the sixty pages of documents with excisions, he may within 30 days challenge
the segregation of the material withheld by BOP in the context of supplemental briefing to ECF
No. 239.
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Once this threshold determination is met, a court must next ask whether disclosure would
compromise a “substantial” privacy interest, since FOIA requires the release of information “[i]f
no significant privacy interest is implicated.” See Multi Ag Media LLC v. Dep’t of Agric., 515
F.3d 1224, 1229 (D.C. Cir. 2008) (alteration in original) (internal quotation marks omitted)
(citing 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. If a substantial privacy interest
exists, a court next tests whether release of such 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), by balancing “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. “[T]he only relevant public interest
in the FOIA balancing analysis [is] 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. F.D.I.C., 164 F.3d 37, 46 (D.C. Cir.
1999) (quoting U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994))
(alterations in original). “Information that ‘reveals little or nothing about an agency’s own
conduct’ does not further the statutory purpose.” Beck, 997 F.2d at 1493 (citations omitted).
OIP withheld the name and identifying information6 of a third party who provided a letter
of recommendation on behalf of an individual who was a candidate for the position of BOP
Director (the eventual selectee Samuels). OIP released the entirety of the substance of the
recommendation letter, the name of the organization that employed the recommender, as well as
6
The redacted information included this individual’s home address but Plaintiff does not
challenge that redaction. Pl.’s Opp’n at 3 (noting personal address and phone number would be
irrelevant).
21
the Attorney General’s response to the letter. OIP only withheld the recommending individual’s
identity and identifying information. Brinkmann Decl. ¶ 38. OIP argues that revealing the
identifying information invades the recommender’s privacy interests and there is no public
interest in this limited information to outweigh the privacy interest. OIP is wrong on both
counts.
First, OIP argues that, because it revealed the recommender’s employer and the
substance of his recommendation, there is no public interest in revealing the recommender’s
identity. See Defs.’ Mem. Supp. at 11–12. But as Plaintiff aptly notes, BOP incarcerates
thousands of individuals, employs thousands more, and wields a very large budget that it uses, in
part, to hire private contractors. Pl.’s Opp’n at 3. Thus, there would be great public interest in
learning the identity of the person who made a recommendation directly to the Attorney General
in order to influence the decision concerning who should be selected to fill such an influential
position over such a powerful organization. The fact that the recommender’s employer has been
revealed provides some important identifying information, but not all of it. The specific person
who made the recommendation could potentially have made significant individual political
contributions or have some other non-obvious personal or professional connection to the
government decision makers at issue that is separate and apart from his or her employer. The
revelation of such information would be of significant interest to the public because it would
reflect on what the government is up to.
Moreover, other than providing boilerplate language parroting the standard of FOIA
Exemption 6, OIP does not identify how revealing this individual’s identity (rather than the
address) would result in a clearly unwarranted invasion of this person’s personal privacy.
Although OIP’s initial and reply briefs speak of disclosure potentially resulting in harassment,
22
the Brinkmann Declaration is silent on this point. There is no factual support whatsoever for
withholding this information.
Nor is there legal support for withholding this information. The one case cited by OIP
on this point is inapposite. In Bonilla v. United States Department of Justice, the court analyzed
the privacy interests of the subject of the reference letter, not that of the author. 798 F. Supp. 2d
1325, 1331–32 (S.D. Fla. 2011). Here, Mr. Samuel’s privacy interests have not been asserted,
only that of the recommender. And the cases involving facts more similar to those here have
resulted in the production of such identifying information. People for the Am. Way Found. v.
Nat’l Park Servs., 503 F. Supp. 2d 284, 305–06 (D.D.C. 2007) (ordering disclosure of the
identities of members of the public who submitted unsolicited email comments to the agency
concerning the proposed change of the video on display at the Lincoln Memorial); Lardner v.
U.S. Dep’t of Justice, No. 03-0180, 2005 WL 758267, at *18–19 (D.D.C. 2005) (ordering
disclosure of the names of individuals who wrote letters in support of clemency applications and
holding that “the prevailing rule is that a citizen does not normally have a significant privacy
interest in a viewpoint that he volunteers to the government to support legal change. . . .
Balanced against this modest privacy interest is the considerable public interest in identifying the
actors who are able to exert influence on the pardon application and selection process.”); All. for
the Wild Rockies v. U.S. Dep’t of Interior, 53 F. Supp. 2d 32, 35–37 (D.D.C. 1999) (ordering
disclosure of the identities of commenters where the comments were voluntarily submitted in
response to the agency’s solicitation for comments to a proposed rulemaking); see also
Electronic Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 639 F.3d 876, 886–88 (9th
Cir. 2010) (requiring disclosure of the identities of the private individuals and entities who
voluntarily sought to engage with and persuade the ODNI and DOJ in connection with policy
23
positions concerning the FISA amendments). As these courts have found, ‘[w]hen a citizen
petitions his government to take some action, courts have generally declined to find the identity
of the citizen to be information that raises privacy concerns under Exemption 6.” Lardner, 2005
WL 758267, at *18; see also People for the Am. Way Found., 503 F. Supp. 2d at 305–06 quoting
Lardner. And, as set forth above, OIP has provided neither a factual nor a legal basis to depart
from the norm here. Consequently, because OIP has not met its burden on summary judgment,
its motion is denied and the Court finds that Plaintiff is entitled to the redacted information
pursuant to FOIA.
V. CONCLUSION
For the foregoing reasons, the Court grants the DOJ’s motion for summary judgment
with respect to Request Nos. AG/10-R1351 and AG/11-0826 (later AG/12-00010). With respect
to Request No. AG/12-0668, the Court grants DOJ’s motion for summary judgment with respect
to the adequacy of its search, but will require that the responsive documents be re-mailed to
Plaintiff and denies the motion with respect to one redaction concerning the identity of a
third-party recommender. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: February 16, 2016 RUDOLPH CONTRERAS
United States District Judge
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