The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
Plaintiff, a federal inmate proceeding pro se, brought this
action pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against the
Bureau of Prisons ("BOP").*fn1 Defendant has now filed a
motion for summary judgment. For the reasons stated below, the
Court will grant in part and deny in part defendant's motion.
Plaintiff has been incarcerated at the Federal Correctional
Institution in Ray Brook, New York ("FCI Ray Brook") since
January, 2002. Complaint ("Compl.") ¶ 6. On August 19, 2003,
plaintiff sent the BOP a FOIA request that sought tape recordings
of telephone calls he made to (401) 944-4419 on July 5, 2003 and
July 6, 2003. Compl., Exhibit ("Ex.") 1. By a letter dated
September 15, 2003, the BOP informed plaintiff that the
conversations had been preserved, but that plaintiff was required to submit a waiver under the Privacy Act from the other
party to the telephone conversations before the BOP would process
his request. Defendant's Motion for Summary Judgment ("Def.'s
Mot."), Declaration of James A. Vogel, Jr. ("Vogel Decl."), Ex.
3. On September 19, 2003, plaintiff sent a letter to the BOP
appealing the "no response/delay" to his FOIA request. Id., Ex.
4. In a letter dated October 24, 2003, the BOP again informed
plaintiff that his request would not be processed without a
Privacy Act waiver. Id., Ex. 5.
On October 6, 2003, plaintiff filed another FOIA request with
the BOP. Id., Ex. 6. In this submission, plaintiff requested
copies of the telephone calls he made to the numbers 401-438-6157
on May 8, 2003 and June 17, 2003, and an October 4, 2003
conversation made to number 401-946-6013. Id. On November 5,
2003, plaintiff appealed the BOP's failure to respond to his
request. Id., Ex. 7. Plaintiff was then again advised by the
BOP on November 24, 2003, that his request would not be processed
until the agency received a Privacy Act waiver from the other
party to the telephone conversation. Id., Ex. 8.
On April 11, 2004, plaintiff sent another letter to the BOP
regarding the July 5, 2003 and July 6, 2003 telephone
conversations. Id., Ex. 10. Plaintiff stated that he could not
produce the required Privacy Act waivers because he could not
locate the other individuals who were parties in the telephone
conversations. Id. Plaintiff proposed that the BOP provide him
with transcripts of the conversations with any information
identifying the other party deleted. Id. In response, on April
28, 2004, the BOP informed plaintiff that the agency did not have
the capability to transcribe telephone calls, but could produce
the words he spoke during the conversations. Id., Ex. 11.
On May 25, 2004, plaintiff requested that the BOP provide him
with his portions of the July 5, 2003, July 6, 2003, and October
4, 2003 telephone conversations. Id., Ex. 12. According to the BOP's FOIA Office, that request is still being processed. Def.'s
Mot., Declaration of Ron Hill ("Hill Decl.") ¶ 3. The BOP further
stated that plaintiff will be advised on the estimated fee for
redacting and duplicating the three conversations and upon
payment of the fee BOP personnel will provide plaintiff with the
information. Id. ¶ 4.
On June 7, 2004, plaintiff sent a letter to the BOP regarding
the May 8, 2003 and June 17, 2003 telephone conversations. Def.'s
Mot., Vogel Decl., Ex. 13. Plaintiff stated that he had been
informed that a Privacy Act waiver had been sent to the BOP by
the other party to those two telephone conversations. Id.
Plaintiff also requested that the BOP provide him with the status
of the processing of his FOIA request for these two
conversations. On July 2, 2004, the BOP informed plaintiff that
the period for retaining the requested information had expired
and that the conversations were no longer available. Id., Ex.
14. According to the BOP, it only maintains taped telephone
conversations for approximately 180 days. Id., Vogel Decl. ¶
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate if the pleadings on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56 ©). Material facts
are those that "might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The party seeking summary judgment bears the initial
burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the
Court must draw all reasonable inferences in favor of the non-moving party. Anderson,
477 U.S. at 255; see also Washington Post Co. v. United States Dep't of
Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The
party opposing a motion for summary judgment, however, "may not
rest upon the mere allegations or denials of his pleading, but . . .
must set forth specific facts showing that there is a genuine
issue for trial." Anderson, 477 U.S. at 248. And the non-moving
party must do more than simply "show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moreover, "any factual assertions in the movant's affidavits will
be accepted as being true unless [the opposing party] submits his
own affidavits or other documentary evidence contradicting the
assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)
(quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.
The mere existence of a factual dispute by itself, however, is
not enough to bar summary judgment. The party opposing the motion
must show that there is a genuine issue of material fact. See
Anderson, 477 U.S. at 247-48. To be material, the fact must be
capable of affecting the outcome of the litigation; to be
genuine, the issue must be supported by admissible evidence
sufficient for a reasonable trier of fact to find in favor of the
nonmoving party. See id.; Laningham v. United States Navy,
813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th
Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13
(D.D.C. 1980). In a FOIA case, the court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations. Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see
also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). However, agency ...