Opinion
Civil Action No. 00-0562 (RBW).
March 29, 2005
MEMORANDUM OPINION
This matter, brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000), is before the Court on the renewed joint motion for summary judgment of the Federal Bureau of Investigation ("FBI") and BOP Headquarters Office ("BOPHQ"). See Order of March 24, 2003 (granting in part and denying in part defendants' summary judgment motions). Plaintiff opposes the motion and cross moves for summary judgment. Based on the parties' submissions and the entire record, the Court will grant the FBI's motion and deny plaintiff's cross-motion with respect to this defendant, and will grant in part and deny in part the BOPHQ's motion and grant in part and deny in part plaintiff's cross-motion with respect to this defendant.
The Order is actually dated March 21, 2003, but it is designated by the clerk's office as having been filed on March 24, 2003.
The Court denied the FBI's initial motion because it failed to properly justify its FOIA withholdings, see Memorandum Opinion ("Mem. Op. I") at 18-25, and denied the BOP's initial motion because it failed to properly justify most of its FOIA withholdings and to provide adequate descriptions of its search for records responsive to plaintiff's many and varied requests. See id at 4-18. In analyzing the parties' respective pending motions, the Court will apply the standard for reviewing summary judgment motions and the law as set forth in its earlier opinion.
I. ANALYSIS A. Federal Bureau of Investigation Records
Plaintiff requests records pertaining to the FBI's investigation of ATT. Mem. Op. I at 19. The Court determined that the FBI had failed to justify withholding 115 pages of information in their entirety. See id. at 20-24. In response to this ruling, the FBI conducted another review of the records. Declaration of David M. Hardy ("Hardy Decl.") ¶ 7. It then released additional information previously withheld from five pages. Id. Plaintiff does not challenge the scope of the information released. See Plaintiff's Memorandum in Support of the Motion for Summary Judgment and in Opposition to the United States Department of Justice — Federal Bureau of Investigation's Motion for Summary Judgment ("Pl.'s Mem.") at 1. The FBI also released the 115 pages previously withheld, but redacted information from 110 of these pages. Hardy Decl. ¶ 8. The FBI applied exemptions 3 and 7(C) to these newly released documents. Id. ¶ 11 (incorporating the Declaration of Scott A. Hodes).
Plaintiff opposes the FBI's justifications for redacting information from the 110 pages of the released material. Plaintiff appears to assert first that the FBI did not previously invoke exemption 3 to some of these pages and therefore should, in effect, be estopped from invoking it now. However, the Court recognized the FBI's initial reliance on this exemption. See Mem. Op. I at 20 ("[t]he FBI withheld 115 pages of responsive records in their entirety under FOIA exemptions 3 and 7"). In any event, the Court finds no basis for applying estoppel principles where the FBI's conduct stemmed not from any suggestion of bad faith but as a reasonable response to the Court's prior ruling.
For this reason, the Court will deny plaintiff's motion to strike the FBI's alleged additional defenses. [Dkt. # 198].
Plaintiff also asserts that the FBI improperly invoked both exemptions. The Court had faulted the FBI for not identifying or describing the withheld records. See id at 21-22. The FBI has now provided the redacted pages and avers that "[e]very effort was made to provide plaintiff with all reasonably segregable portions of releaseable material." Hardy Decl. ¶ 11. Upon review of the redacted pages, attached to the Hardy declaration as Exhibit A, the Court finds that the FBI has now properly justified redacting information from the released documents under exemptions 3 and 7(C). The redactions are limited to third-party identifying information, which courts have routinely upheld as proper under exemption 7(C). See Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (third-party identifying information is categorically protected under exemption 7(C)). The Court therefore finds that the FBI is entitled to judgment as a matter of law and will now grant the FBI's motion for summary judgment and deny plaintiff's cross-motion for summary judgment.
B. Bureau of Prisons Records
Plaintiff challenges the BOPHQ's response to counts 35 and 48 of the amended complaint. See Cross-Motion for Summary Judgment as to Counts 35 and 48; Brief in Support of Cross-Motion for Summary Judgment; Motion to Dismiss Counts 16 and 33; Opposition to U.S. Department of Justice-Federal Bureau of Prisons' Motion for Summary Judgment; Cross-Statement of Material Facts Not in Dispute; Response to Statement of Material Facts Allegedly Not in Dispute; and, Declaration of Keith Maydak ("Pl.'s Opp.") at 1. He questions the adequacy of the searches and the withholding of information, including the agency's referral of records that originated with other agencies.
The Court will grant plaintiff's motion to dismiss counts 16 and 33 pursuant to Fed.R.Civ.P. 41.
Count 35 — In October 1998, plaintiff requested BOP records pertaining to "the Traditional Vegetarian Church" and "Wica, Witchcraft, and/or Wiccacraft." Declaration of Wilson J. Moorer ("Moorer Decl.") ¶ 15. The BOPHQ released 529 pages, 54 which were released with redactions. Id. ¶ 18. It cited exemption 7(C) as the basis for redacting information from 52 of the 54 pages and exemption 5 as the basis for redacting information from the remaining two pages. Id. In addition, the BOPHQ withheld 78 pages in their entirety under exemption 5. Id.
Plaintiff argues correctly that the BOPHQ has not established the threshold requirement for withholding records under exemption 7(C), namely, that the records were compiled for law enforcement purposes. See Keith Maydak's Memorandum in Support of Cross-Motion for Summary Judgment, in Support of the Motion to Dismiss Counts 16 and 33, and in Opposition to the United States Department of Justice-Federal Bureau of Prisons' Motion for Summary Judgment ("Pl.'s Mem.") at 10-11; cf. Mem. Op. I at 13-14. In any event, the BOPHQ acknowledges that it is "unable to identify with certainty the 52 pages released in redacted form." Memorandum of Points and Authorities in Support of Motion for Summary Judgment Submitted by the Federal Bureau of Investigation and the Bureau of Prisons ("Def.'s Mem.") at 15, n. 3. It therefore is unable to properly defend its redactions. Because these pages are the subject of a disputed issue, the Court will deny both parties' summary judgment motions on this issue and direct plaintiff to submit to the Court copies of the 52 redacted pages so that the BOPHQ will have access to them and be in the position to address its position concerning the redactions.
With respect to the 78 pages withheld in their entirety under exemption 5, the BOPHQ avers that, because of the passage of time, it had to reconstruct its file regarding this FOIA request. See Moorer Decl. ¶ 19. "A review of those 78 pages, in their reconstructed form, indicates that they consist of memoranda of BOP staff members that contain recommendations for decision-making on matters before BOP for evaluation and review, as well as `Inmate Request to Staff Member' forms regarding various religious issues and activities.'" Id. The Court finds that the BOPHQ has properly justified withholding the internal memoranda which fall under the deliberative process privilege and therefore are protected from disclosure by exemption 5. See Mem. Op. I. at 10-12; Wilderness Soc'y v. United States Dep't of Justice, 344 F. Supp.2d 1, 10 (D.D.C. 2004) (quoting Dep't of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)) (the deliberative process privilege protects from disclosure "`documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated'") (other citation omitted). However, the BOPHQ is required to release any nonexempt information that reasonably can be extracted from the exempt material. See Mem. Op. I at 16-17. The inmate request forms are "forms submitted to BOP staff by other inmates." Declaration From Wilson J. Moorer (Exhibit 1 of Defendants' Opposition to Plaintiff's Cross Motions for Summary Judgment and Reply to Plaintiff's Oppositions ("Def.'s Opp.")) [Dkt. # 190] ("Moorer Supp. Decl."). They are not "inter-agency or intra-agency memorandums or letters," 5 U.S.C. § 552 (b)(5) (2000), and therefore do not qualify for protection under exemption 5. Accordingly, with respect to the 78 pages, the Court will grant plaintiff's crossmotion for summary judgment in part and direct the release of the inmate request forms, in light of plaintiff's agreement, with "the names of individuals and their personal identifiers" redacted. Pl.'s Mem. at 10. However, the Court will grant the BOPHQ's motion for summary judgment on the remaining information withheld under exemption 5 and deny plaintiff's cross-motion as it relates to this information.
1. The Search for Records
The Court is satisfied that Wilson Moorer's supplemental declaration demonstrates that a search reasonably likely to locate records responsive to the request in count 35 was conducted. See Moorer Supp. Decl. ¶¶ 3-7 (describing searches of files plaintiff identified in his opposition as previously overlooked). The Court will grant the BOPHQ's motion for summary judgment with respect to the search for records covered by count 35 and deny plaintiff's cross-motion as to this issue.
2. Record Referral
The BOPHQ referred a one page document to the Internal Revenue Service and a two page document to a United States probation office. See Mem. Op. I at 17. The document referred to the probation office is "a letter from a U.S. Probation Officer to the Warden of the Federal Correctional Institution [in] Tallahassee, Florida . . . contain[ing] . . . [an] inmate's name and register number; the terms of the inmate's parole which required him to pay or dispose of a committed fine; and the decision of a Magistrate Judge denying the removal of the obligation to pay the committed fine." Moorer Decl. ¶ 20. This document does not appear to be a record responsive to plaintiff's request under count 35 inasmuch as there is no indication that it pertains to, or in any way makes reference to, "the Traditional Vegetarian Church" and "Wica, Witchccraft, and/or Wiccacraft." However, the BOPHQ properly invokes exemption 7(C) as the basis for withholding it. Def.'s Mem. at 17-18. In any event, the Court is satisfied that this referral was proper inasmuch as it was generated by a probation officer and concerned "information about a private party." Id. at 17; see Mem. Op. I at 17-18. The Court therefore will grant summary judgment to the BOPHQ as to this referral.
On the other hand, plaintiff argues correctly that the BOPHQ has not provided any evidence from which the Court may determine the propriety of the referral to the IRS. See Pl.'s Mem. at 9. The Court therefore will deny summary judgment to the BOPHQ on this issue and direct that it supplement the record on this issue. Accordingly, plaintiff's motion for summary judgment on this issue will be denied without prejudice.
The BOPHQ has mistakenly considered this referral as a non-issue. See Def.'s Opp'n. at 26, n. 21.
Count 48 — Plaintiff requests records, "documents or electronic files," pertaining to him maintained by the Central Office Intelligence Section. Moorer Decl. ¶ 22. The BOPHQ avers that it conducted "an appropriate search" of the section's files and located no responsive records. Id. ¶ 23. The BOPHQ "notes" that the "[s]ection does not maintain a separate system of records/files on individual inmates . . . [and that such] information . . . is maintained in [the inmate's] Central File. . . ." Id. It does not, however, describe the search, i.e., the search terms, or the file system(s) searched, nor does it aver that all files reasonably likely to locate responsive records were searched. These deficiencies are particularly troublesome since it is suggested that such information, if it exists, may be maintained in plaintiff's central file. The BOPHQ also represents concerning the section's file that "[a]ny release of information from this section could compromise institution security," id., and therefore claims that such information, if found in the section's file, is protected from disclosure by exemption 7(F). The FOIA does not permit a sweeping claim of this nature. See Mem. Op. I. at 8-9 (the FOIA requires the agency to match the withheld information with the claimed exemption and explain how the particular exemption applies). The Court must therefore deny summary judgment to the BOPHQ on this count and directs the BOPHQ to supplement the record consistent with this opinion. However, the Court does not find that plaintiff is entitled to judgment as a matter of law on this count and therefore will deny without prejudice the plaintiff's motion for summary judgment on this count.
II. CONCLUSION
For the preceding reasons, the FBI's motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment as to the FBI is denied. In addition, the BOPHQ's motion for summary judgment is granted in part and denied in part, and plaintiff's cross-motion for summary judgment is granted in part and denied in part.
A separate Order accompanies this Memorandum Opinion.