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COWSEN-EL v. UNITED STATES DOJ

February 21, 1992

GEORGE E. COWSEN-EL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.


Lamberth


The opinion of the court was delivered by: ROYCE C. LAMBERTH

Plaintiff George Cowsen-El, currently incarcerated in the Federal Penitentiary in Marion, Illinois, submitted a request under the Freedom of Information and Privacy Acts, 5 U.S.C. §§ 552, 552a (1988 & Supp. I 1990) (FOIA or Privacy Act, respectively), to the Federal Bureau of Prisons (BOP). Cowsen-El requested copies of records pertaining to medical treatment he received at the prison on February 26, 1990, and the BOP Program Statement relating to stand-up counts. His requests were denied, in part, and he commenced this action pro se to compel production of the remaining requested records.

 This matter is now before the Court on defendants' Motion for Summary Judgment and plaintiff's response thereto. For the reasons discussed below, defendants' motion is denied in part and granted in part.

 On May 24, 1990, Cowsen-El submitted a FOIA request to the FOIA section of the BOP. He requested copies of records pertaining to medical treatment he received at the prison on February 26, 1990. *fn1" He also requested a copy of BOP Program Statement 5511.2 (the Program Statement), relating to stand-up counts. The Program Statement sets forth BOP guidelines regarding daily stand-up counts of the prisoners conducted by prison officials. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 2. The Program Statement is contained in the BOP's Correctional Services Manual. Id.

 On August 7, 1990, having received no response to his requests, Cowsen-El appealed. See Complaint, Exhibit 7. Cowsen-El submitted a second appeal dated October 2, 1990. See id., Exhibit 10. On November 13, 1990, Cowsen-El was informed that his request for a copy of BOP Program Statement 5511.2 was denied. See id., Exhibit I. On November 29, 1990, Cowsen-El was informed that his request for a copy of his medical records would be honored in part and denied in part. See id., Exhibit J. Specifically, the BOP released thirteen pages of medical records and withheld the remaining twelve pages, containing what it terms "diagnostic, evaluation and subjective impressions" of the prison medical staff. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 3. He again appealed the denial of his request to access to the BOP program statement by letter dated December 1, 1990. It is unclear from the record whether Cowsen-El received a response to this appeal.

 The court, on October 18, 1991, ordered BOP to produce all withheld documents for in camera, ex parte review. The BOP filed the twelve pages of withheld medical records and these records have been reviewed by the court.

 II. DISCUSSION

 The court has jurisdiction to review the BOP decision to withhold the Program Statement and the medical records described above. See 5 U.S.C. § 552a(g)(1)(D).

 A. The BOP Program statement

 The BOP withheld the requested BOP Program Statement 5511.2 in its entirety on the basis of FOIA § 552(b)(7)(E) (Exemption 7(E)). Exemption 7(E) permits an agency to withhold:

 records or information compiled for law enforcement purposes . . . to the extent that production of such law enforcement records or information . . . (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law . . . .

 Thus, to properly invoke Exemption 7(E) the government bears the burden of establishing that the requested record was compiled for "law enforcement purposes" and that disclosure of the record will result in the harm Exemption 7(E) seeks to avoid. See, e.g., Keys v. Department of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 340-41 (D.C. Cir. 1987).

 The BOP argues that the Program Statement may be withheld on the basis of Exemption 7 because the "statement provides a guideline to be followed by prison officials in conducting routine counts and inspections of prisoners" and because "disclosure of this guideline could reasonably be expected to be used by individual inmates for the purpose of circumventing the procedure." Defendants' Motion for Summary Judgment at 2.


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