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March 24, 2003


The opinion of the court was delivered by: Reggie B. Walton, United States District Judge



This action has been filed pro se by a federal prisoner under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000), and the Privacy Act ("PA"), 5 U.S.C. § 552a (2000). Plaintiff has named as defendants, the United States Department of Justice ("DOJ"), the Department of the Treasury ("DOT"), the Department of State ("DOS") and the Executive Office of the President's Office of Science and Technology Policy ("EOPOSTP"). In his 59-count amended complaint, plaintiff challenges the agencies' responses to his various requests for information he is seeking to obtain pursuant to the FOIA and the PA. Currently pending before the Court are dispositive motions for either dismissal, summary judgment or partial summary judgment brought on behalf of each agency or agency-component and plaintiff's cross motions for summary judgment, which he has combined with his oppositions to defendants' dispositive motions. For the reasons outlined below, the Court will take the following action: Deny plaintiff's motions for summary judgment because they do not comply with the filing requirements of Local Civil Rule 7.1(h). In addition, plaintiff has filed separate motions to voluntarily dismiss certain counts of the amended complaint under Fed.R.Civ.P. 41, which are unopposed by defendants. The Court therefore will grant the Rule 41 motions and dismiss counts 1, 2, 15, 29, 36 and 59 accordingly.*fn1 The Court will deny all of the agencies' motions for summary judgment, except that it will grant the DOT's motion for summary judgment brought on behalf of its component, the Internal Revenue Service ("IRS"), the DOJ's unopposed motion for partial summary judgment brought on behalf of the United States Marshals Service ("USMS"), and part of the DOJ's motion for partial summary judgment brought on behalf of the Federal Bureau of Investigation ("FBI").

Moreover, the Court will grant the DOJ's motions to dismiss the FOIA claim against the Drug Enforcement Administration ("DEA") and the PA claims against the Bureau of Prisons ("BOP").


The Court may dismiss a complaint on the ground that it fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) if it appears, assuming the alleged facts to be true and drawing all inference in plaintiff's favor, that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997), cert. denied 531 U.S. 1147 (2001); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

Summary judgment is appropriate when no genuine issues of material fact are in dispute and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In a FOIA action, a federal agency is required to release all records that are responsive to a request for the production of the records. The Court is authorized under the FOIA "to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). When a FOIA requester files a civil complaint based on the agency's alleged improper withholding of records, 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. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption).

In a FOIA action, the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations when the affidavits or 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." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). "The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping." Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996).

The Court will apply these standards to the following review of each agency's dismissal and summary judgment motion.


A. Department of Justice

Plaintiff requested a variety of information from the following DOJ components: the BOP, the FBI, the Executive Office for United States Attorneys ("EOUSA"), the DEA and the USMS; some of the requests have been denied. It appears, however, that plaintiff is no longer challenging most of the EOUSA's responses to his requests because of subsequent disclosures made in an unrelated case. See Plaintiff's "Motion Pursuant to F.R.Cv.P. 41(a) to Dismiss Counts I, II, XV, and XXXVI Without Prejudice Based on Post-Suit FOIA Disclosures" [Doc. #83-1].

Summary judgment motions have been filed on behalf of the several DOJ components. Plaintiff has not opposed the USMS' motion for partial summary judgment. The Court therefore will grant that motion as conceded. The Court will address the separately filed motions of the BOP and the FBI, and the joint motion of the DEA and the EOUSA.*fn2

(1.) The Bureau of Prisons' Motion

In support of its summary judgment motion [Doc. #65-2], the BOP proffers the Supplemental Declaration of Henry J. Sadowski ("Sadowski Decl." or "Exhibit B"), Regional Counsel for BOP's Northeast Regional Office, and attachments that include three Vaughn*fn3 indices (Gov't Exhibits B1, C and D). In addition to this evidence and defendants' statement of undisputed facts ("Facts"), the Court will rely on defendants' charts that summarize plaintiff's FOIA requests and coordinate the requests with the counts of the amended complaint. Gov't Exhibits A and A1. At issue are plaintiff's 38 FOIA requests to the BOP for information pertaining to himself, and a hosts of events related to the conditions of his confinement. See generally Defendants' Partial Motion to Dismiss or, in the Alternative, for Summary Judgment, Statement of Material Facts Not in Dispute at 2-35. Plaintiff also requested under the Privacy Act, a "copy of the log of disclosures of information relating to [him] to other Federal agencies or third parties, whether such disclosure was oral, written or electronic." Facts ¶ 29 (Count 14); Gov't Exhibit B3, p. 1. In response to this latter request, the BOP responded that it was not required to maintain such a log, citing the Privacy Act, 5 U.S.C. § 552a (c)(3). It nonetheless performed a search for records "pursuant to the Freedom of Information Act" but failed to locate any responsive records. Facts ¶ 30; Gov't Exhibit B3, p. 2.*fn4

Plaintiff has opposed many, but not all of the BOP's grounds for summary judgment on the applicable counts of the amended complaint. The Court finds that plaintiff has not opposed, and therefore has conceded, the BOP's assertions with respect to counts 3-5, 7, 17, 20, 29, 30, 38, 40. The Court will now address the claims related to the following disputed counts: 10, 12, 14, 16, 22, 23, 28, 31, 32 (and duplicate 45), 33, 34, 35, 39, 43, 44, 46, 47, 48, 49, 50, 51, 52, and 53.

(a.) Privacy Act Claims

In Count 12, plaintiff challenges the BOP's reliance on exemption (k)(6) of the PA as grounds for withholding records pertaining to his "psychological and psychiatric test results, consultation reports, or other records. . . ." Gov't Exhibit B3, Attachment 2 ("Att.") at 1. The BOP located a four-page document as a result of its search but determined that its release "could reasonably be expected to endanger the life or physical safety of any person and would compromise the objectivity or fairness of the testing or examination process." Id., Att. at 2. The BOP invoked PA exemption (k)(6) and FOIA exemption 7(F) as support for its position. Id. Plaintiff administratively appealed the decision. Id., Att. at 3. The administrative appeal was denied based on the determination that only "[o]ne document [was] responsive to [his] request . . ." and that the one document was exempt from disclosure pursuant to PA exemption (j)(2) and FOIA exemption 2. Id., Att. at 5. The BOP now reasserts exemption (k)(6) of the PA as the basis for withholding the document. Both exemptions (j)(2) and (k)(6) of the PA authorize the head of an agency to exempt certain systems of records from the statute's access provisions, see discussion below, but exemption (k)(6) applies only to "testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service. . . ." 5 U.S.C. § 552a(k)(6). Thus, plaintiff correctly avers that exemption (k)(6) "simply has nothing to do with me. I was an inmate . . .[,] was not a Federal service employee . . . [and] did not take the test in connection with any prison job." Plaintiff's Motion for Summary Judgment . . . With Respect to Count XII [Doc. #89-1], Exhibit A ¶ 13.

In Count 14 of the amended complaint, plaintiff challenges the BOP's claim that it is not required to comply with the PA's disclosure accounting requirement provision, which provides that:

Each agency, with respect to each system of records under its control, shall —
(1) except for disclosures made under subsections (b)(1) or (b)(2) of this section, keep an accurate accounting of —
(A) the date, nature, and purpose of each disclosure of a record to any person or to another agency made under subsection (b) of this section; and
(B) the name and address of the person or agency to whom the disclosure is made;
(2) retain the accounting made under paragraph (1) of this subsection for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;
(3) except for disclosures made under subsection (b)(7) of this section, make the accounting made under paragraph (1) of this subsection available to the individual named in the record at his request; and
(4) inform any person or other agency about any correction or notation of dispute made by the agency in accordance with subsection (d) of this section of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.
5 U.S.C. § 552a(c). Plaintiff argues that the BOP is not exempt from the accounting requirement.

Specifically, the BOP contends that it "is exempt from [the accounting provision] with respect to logs of disclosure," Sadowski Decl. ¶ 34, but this statement is incorrect. Exemption from the accounting requirement of § 552a(c) is not as expansive as seemingly being suggested by the BOP. Rather, it exempts only intragency disclosures (subsection (b)(1))and FOIA disclosures (subsection (b)(2)) from the accounting requirement. The BOP has not asserted that any disclosures it may have made about plaintiff fall within the limited categories that are exempted from the accounting requirement. Notwithstanding the preceding discussion, plaintiff's PA claims must be rejected because the BOP has specifically exempted its systems of inmate records from the access provisions of § 552a(c)(3), see 28 C.F.R. § 16.97(a); Sadowski Decl. ¶ 8, as it is permitted to do. 5 U.S.C. § 552a(j)(5).*fn5 Plaintiff therefore has no right of access to the records contained in the BOP's systems of inmate records and consequently has failed to state a claim upon which relief can be granted. Thus, the Court will dismiss the PA claims against the BOP pursuant to 28 U.S.C. § 1915A (b)(1) (requiring the court to dismiss a prisoner's complaint in whole or in part as soon as practicable if, among other grounds, it fails to state a claim upon which relief can be granted).

(b.) Freedom of Information Act Claims

The BOP withheld records requested by plaintiff, either in part or in their entirety, under FOIA exemptions 2, 5, 6 and 7. See 5 U.S.C. § 552(b); Gov't Exhibits A, B1, C and D (Vaughn indices). As to each disputed claim, plaintiff argues that the BOP has not provided sufficient information for the Court to conclude that the agency properly withheld information under the exemptions and that it conducted an adequate search for responsive records. In addition, plaintiff argues that the BOP has not adequately justified withholding certain records in their entirety. The Court agrees with all of plaintiff's contentions, except with respect to one part of the BOP's withholdings under exemption 2.

Withheld Records

"To justify summary judgment, a declaration must provide detailed and specific information demonstrating `that material withheld is logically within the domain of the exemption claimed.'" Campbell v. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). In King, the Court held that "affidavits cannot support summary judgment if they are `conclusory, merely reciting statutory standards, or if they are too vague or sweeping.'" 830 F.2d at 219 (internal footnote and citations omitted). As a general observation, this Court finds that the BOP's declaration is too conclusory, vague and sweeping to support summary judgment. In most instances, the BOP relies on multiple exemptions to justify withholding the same information.

However, it has not matched the withheld information with the claimed exemption and explained how the particular exemption applies.

(i) Exemption 2

Exemption 2 of the FOIA exempts from mandatory disclosure records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2); see Crooker v. ATF, 670 F.2d 1051, 1073 (D.C. Cir. 1981) (exemption 2 applies to material "used for predominantly internal purposes"). To qualify for this exemption, the document must not only be internal, but must also relate to an existing agency rule or practice. See Schwaner v. Dep't of the Air Force, 898 F.2d 793, 794-98 (D.C. Cir. 1990). To properly claim exemption 2, the agency must show that the material withheld falls within the terms of the statutory language. If it does, the agency must then show that "disclosure [may] significantly risk[] circumvention of agency regulations or statutes," Crooker, 670 F.2d at 1074, or that "the material relates to trivial administrative matters of no genuine public interest." Founding Church of Scientology v. Smith, 721 F.2d 828, 830, n. 4 (D.C. Cir. 1983).

The BOP asserted exemption 2 to justify withholding "internal portions of staff manuals relating to security issues within BOP; [] SENTRY codes; and [] staff statements regarding internal matters." BOP's Memorandum of Points and Authorities in Support of Defendant Federal Bureau of Prisons' Motion to Dismiss or in the Alternative for Summary Judgment at 21 (citing Exhibits B, B1, B2, C and D). The BOP properly justified withholding the codes as "internal codes for electronic system, SENTRY, for obtaining information regarding inmates" and on the ground that inmates "could access information regarding other inmates" if they gained access to the codes. Exhibit C. The courts have also consistently found no significant public interest in the disclosure of identifying codes and similar information. See Lesar v. Dep't of Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980); Blanton v. Dep't of Justice, 63 F. Supp.2d 35, 43 (D.D.C. 1999); Albuquerque Publishing Company v. Dep't of Justice, 726 F. Supp. 851, 854 (D.D.C. 1989).

As for the remaining information, the BOP has not provided sufficient descriptions in either the Sadowski declaration or the Vaughn indices for the Court to conclude that it properly withheld portions of staff manuals or staff statements about internal matters under exemption 2. The BOP does not elaborate on the nature of the withheld information beyond the language quoted in the preceding paragraph, which merely describes the information as related to internal matters. The Court therefore cannot determine whether the information, assuming it to be predominantly internal, is exempt because disclosure would risk circumvention of the law or agency regulations or because the information is purely administrative and therefore is of no significant public interest. Accordingly, summary judgment as to the staff manuals and staff statements is not warranted pursuant to exemption 2. Summary judgment is granted on the BOP's justification for withholding internal codes pursuant to exemption 2.

(ii) Exemption 5

Exemption 5 of the FOIA protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 522(b)(5). This provision "exempt[s] those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (footnote omitted); see also FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983). "As such, [exemption 5] is interpreted to encompass, inter alia, three evidentiary privileges: the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege." Tax Analyst v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) (citing Burka v. HHS, 87 F.3d 508, 516 (D.C. Cir. 1996)). The provision has general reference to the rules of civil discovery under the Federal Rules of Civil Procedure, but, as applied to the government, has been held to recognize various so-called "governmental privileges," United States v. Weber Aircraft Corp., 465 U.S. 792, 802 (1984), including the "executive `deliberative process' privilege." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (quoting EPA v. Mink, 410 U.S. 73, 85-90 (1973)) (citation omitted).

The BOP asserted exemption 5 to justify withholding "information that was compiled during an investigation or from an outside source and, if released, it could inhibit and affect the way staff communicate." Sadowski Decl. ¶ 14. Sadowski avers that "we reviewed the documents and those that were identified to be statements, opinions and conclusions of staff were withheld because release of this information could allow inmates to alter their actions." Id. ¶ 15. In its memorandum of law at pages 21-24, the BOP, through counsel, appears to argue that the withheld information falls under the deliberative process privilege, but the argument is not supported with any evidence. To qualify under the deliberative process privilege, the withheld information must have been pre-decisional, i.e., "generated before the adoption of an agency policy" and deliberative, i.e., "reflects the give-and-take of the consultative process." Coastal States, 617 F.2d at 866. A pre-decisional document that "is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public" can lose its exemption 5 status. Coastal States, 617 F.2d at 866.

Neither the Sadowski declaration nor the Vaughn indices identify the information specifically withheld under exemption 5. Nor do they identify an agency decision or policy to which the withheld information purportedly contributed. It is also neither explained nor discernible how the withheld information figured into a deliberative process concerning BOP policy or litigation. Besides, contrary to defense counsel's argument, the Sadowski declaration reveals a fundamental flaw in the administrative processing of plaintiff's request, as it appears that the exemption 5 determination turned not on whether the information was privileged but rather on the irrelevant ...

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