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SLINEY v. FEDERAL BUREAU OF PRISONS

April 11, 2005.

ALBERT J. SLINEY, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, Defendant.



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

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.

Background

  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. ¶ 13.

  Standard of Review

  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. 1982)).

  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 ...


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