United States District Court for the District of Columbia
June 7, 2005.
GALEN PENDERGRASS, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
The opinion of the court was delivered by: COLLEEN KOTELLY, 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. Defendant has filed a motion for summary judgment
and Plaintiff an opposition to the motion. Based on the
applicable law and the undisputed material facts, the Court will
grant the motion and enter judgment in favor of Defendant.
On July 5, 2002, Plaintiff sent a FOIA request to the Bureau of
Prisons ("BOP") seeking tapes of three telephone conversations
between himself and his attorney made from the Federal
Correctional Complex in Petersburg, Virginia ("FCC-Petersburg").
Defendant's Motion for Summary Judgment ("Deft.'s Mtn."), Exhibit
("Ex.") 1, Declaration of Kathy M. Harris ("Harris Decl."),
Attachment C. Plaintiff requested tapes of calls to telephone
number (301) 528-9757 on March 16, 2002, April 14, 2002, and May 14, 2002. Id. Prison
officials at FCC-Petersburg located a compact disc containing the
three conversations. Harris Decl., ¶ 14. The compact disc was
sent to BOP's Mid-Atlantic Regional Counsel's Office on July 23,
2002. Id. FCC-Petersburg does not have transcripts of the
telephone conversations. Id., ¶ 15.
On July 31, 2002, BOP notified Plaintiff that records of the
conversations were being withheld pursuant to FOIA Exemptions 6
and 7 (C). Id., Attachment G. BOP also informed Plaintiff that
the agency would reconsider his request if he obtained written
consent from the other party on the telephone call. Id. On
September 20, 2002, Plaintiff appealed BOP's decision to the
Office of Information and Privacy ("OIP") at the Department of
Justice. Id., Attachment H. OIP affirmed BOP's withholding of
the telephone calls on April 7, 2003. Id., Attachment I.
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 (c). 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 an 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. 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 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, 826-28 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974). Agency affidavits or declarations
must be "relatively detailed and non-conclusory . . ." SafeCard
Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such
affidavits or declarations are accorded "a presumption of good
faith, which cannot be rebutted by `purely speculative claims
about the existence and discoverability of other documents."
Id. (internal citation and quotation omitted). An agency must
demonstrate that "each document that falls within the class
requested either has been produced, is unidentifiable, or is
wholly [or partially] exempt from the Act's inspection
requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978) (internal citation and quotation omitted).
Adequacy of the Search
To obtain summary judgment on the issue of the adequacy of the
records search, an agency must show "viewing the facts in the
light most favorable to the requester, that . . . [it] `has
conducted a search reasonably calculated to uncover all relevant
documents.'" Steinberg v. United States Dep't of Justice,
23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. United
States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
To meet its burden, the agency may submit affidavits or
declarations that explain in reasonable detail and in a
non-conclusory fashion the scope and method of the agency's
search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In
the absence of contrary evidence, such affidavits or declarations
are sufficient to demonstrate an agency's compliance with the
FOIA. Id. at 127. The agency must show that it made a "good
faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested." Oglesby v. Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. United States Dep't of Justice, 164 F.3d 20, 27
(D.C. Cir. 1998). In determining the adequacy of a FOIA search,
the Court is guided by principles of reasonableness. Oglesby,
920 F.2d at 68.
Because the agency is the possessor of the records and is
responsible for conducting the search, the Court may rely on "[a]
reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were
searched." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999) (citing Oglesby v. United States Dep't of
the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Kowalczyk v. Dep't
of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v.
Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). "If the
requestor produces countervailing evidence placing the
sufficiency of the identification or retrieval procedures in
issue, summary judgment is inappropriate." Spannaus v. Central
Intelligence Agency, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing
Church of Scientology v. National Security Agency,
610 F.2d 824, 836 (D.C. Cir. 1979). It is plaintiff's burden in a
challenge to the adequacy of an agency's search to present
evidence rebutting the agency's initial showing of a good faith
search. See Maynard v. CIA, 986 F.2d 547, 560 (2d Cir. 1993);
Weisberg, 705 F.2d at 1351-52. Mere speculation as to the
existence of records not located in the agency's search does not
undermine the adequacy of the search. See Weisberg,
745 F.2d at 1485 (focus of court's inquiry is on reasonableness of search,
not whether undisclosed records may exist).
The search here was adequate. Plaintiff made a very specific
request for three telephone calls between him and his attorney
while Plaintiff was incarcerated at FCC-Petersburg. The records
were located by staff at the institution and sent to BOP's
counsel. See Harris Decl., ¶ 19 & Attachment J. Moreover,
Plaintiff has made no allegation that the Defendant's search was
inadequate. Exemptions 6 and Exemption 7 (C)
Defendant BOP relies on FOIA Exemptions 6 and 7 (C) to justify
withholding the records of the telephone conversations between
Plaintiff and his attorney. Both of these exemptions concern the
privacy interests of third parties and require the Court to
balance the privacy interests against the public interest in
disclosure of the records. See National Archives and Records
Admin. v. Favish, 541 U.S. 157, 171 (2004); United States Dep't
of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749, 773-75 (1989). Exemption 6 prohibits the release of
"personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of
privacy." See 5 U.S.C. § 552(b)(6). This exemption protects
from disclosure all information that "applies to a particular
individual" in the absence of a public interest in disclosure.
United States Dep't of State v. Washington Post Co.,
456 U.S. 595, 602 (1980). Courts have broadly interpreted the term
"similar files" to include most information applying to a
particular individual. Kidd v. United States Dep't of Justice,
362 F.Supp. 2d 291, 296 (D.D.C. 2005).
Exemption 7 (C) of the FOIA protects from mandatory disclosure
records compiled for law enforcement purposes to the extent that
disclosure "could reasonably be expected to constitute an
unwarranted invasion of personal privacy."
5 U.S.C. § 522(b)(7)(C). In order to properly withhold materials under this
exemption, two components must be satisfied: (1) that the
materials are law enforcement records and (2) that they would
involve an invasion of a third party' s privacy. See Pratt v.
Webster, 673 F.2d 408, 413 (D.C. Cir. 1982).
The BOP is a law enforcement agency. Harris Decl., ¶ 21. The
BOP has the law enforcement function of protecting inmates,
staff, and the community. Id. Inmate telephone calls are monitored to preserve the security and orderly management of
the institution and to protect the public. Id., ¶ 22.
Therefore, the telephone recordings are the functional equivalent
of law enforcement records for purposes of Exemption 7 (C).
The BOP refused to release the recorded conversations because
to do otherwise would invade the privacy of a third-party,
plaintiff's counsel. Plaintiff contends that his counsel waived
any expectation of privacy because she was aware that the
telephone calls were being monitored by BOP. In addition,
Plaintiff states that the conversations should be disclosed
because he waived the attorney-client privilege.
Pursuant to BOP policy, federal correctional institutions
provide notice to inmates that unless they arrange to telephone
an attorney on an unmonitored phone line, the call will be
monitored and recorded. Harris Decl., ¶ 24; see also
28 C.F.R. § 540.12. BOP policy also requires that a notice be posted at all
monitored telephone locations. Harris Decl., ¶ 24. Since inmates
are permitted to places calls to their attorneys on unmonitored
telephones, an attorney would have an expectation that the call
was not monitored. Id., ¶ 25. Ms. Harris, Supervisory Paralegal
Specialist at BOP's Mid-Atlantic Regional Office, listened to the
three recordings requested by Plaintiff. Id., ¶ 26. At no point
during these conversations did Plaintiff notify his attorney that
the call was being monitored and recorded. Id.*fn1
Even if Plaintiff's counsel was aware of the potential
monitoring of the calls, this fact would not negate her privacy
rights under the FOIA. First, in cases involving personal data on private citizens in law enforcement records, "the privacy
interest . . . is at its apex." Reporters Committee,
489 U.S. at 780. For that reason, the categorical withholding of
information identifying third parties in law enforcement records
is ordinarily exempt from disclosure. See SafeCard Services,
926 F.2d at 1206. An individual who was a party to a telephone
conversation has a privacy interest in a recording of that
conversation. See McMillian v. Fed. Bureau of Prisons, No.
03-1210 (D.D.C. July 23, 2004), slip op. at 12.*fn2 The
fact that there might have been prior disclosure of personal
information does not eliminate the privacy interest in avoiding
further disclosure by the government. See Favish,
541 U.S. at 171; Kimberlin v. Dep't of Justice, 139 F.3d 944, 949 (D.C.
Cir.), cert. denied, 525 U.S.U.S. 891 (1998); Edmonds v. FBI,
272 F.Supp. 2d 35, 53 (D.D.C. 2000).
Plaintiff also argues that since he has agreed to waive the
attorney-client privilege, the records should be disclosed.
Although it is true, as Plaintiff states, that the
attorney-client privilege belongs to the client, the interests
here are of a different nature. The privacy interest at stake in
this case is counsel's and, therefore, only she can effect a
waiver. See Sherman v. United States Dep't of the Army,
244 F.3d 357, 363-64 (5th Cir. 2001); Monaco v. Dep't of
Justice, No. 02-1843 (D.D.C. Sept. 24, 2003), slip op. at
8.*fn3 Therefore, Plaintiff's waiver does not vitiate his
counsel's privacy interest.
In determining whether this exemption applies to particular
material, the Court must balance the interest in privacy of the
individual mentioned in the record against the public's interest in disclosure. Beck v. Department of Justice,
997 F.2d 1489, 1491 (D.C. Cir. 1993); Stern v. FBI, 737 F.2d 84, 91
(D.C. Cir. 1984). Once a privacy interest is identified under
Exemption 7 (C), the FOIA records requestor must establish that
(1) the public interest is a significant one; and (2) the
information is likely to advance that interest. Favish,
541 U.S. at 172. The requestor must provide evidence that would
warrant a belief by a reasonable person that the alleged
government impropriety might have occurred. Id. at 174. The
privacy interests of third parties mentioned in law enforcement
files are "substantial," while "[t]he public interest in
disclosure [of third-party identities] is not just less
substantial, it is insubstantial." SafeCard Services,
926 F.2d at 1205.
Plaintiff contends that since his counsel was appointed by the
government to represent him in his criminal proceeding and was
compensated by the government, disclosure of the telephone
conversations would shed light on his attorney's capacity as a
public employee. See Plaintiff's Brief in Opposition to
Defendant's Summary Judgment Motion ("Plaintiff's Opp.") at 2. In
addition, Plaintiff asserts that there is a public interest in
protecting the rights of the accused. Id.
Plaintiff's argument is unpersuasive for two reasons. Although
he asserts a public interest in disclosure, he also concedes that
he has a civil action pending against his attorney. See id. It
is the "interest of the general public, and not that of the
private litigant" that the court considers in this analysis.
Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981) (citing Ditlow v.
Shultz, 517 F.2d 166, 171-72 (D.C. Cir. 1975). Plaintiff's
desire for the information is irrelevant. See Reporters
Committee, 489 U.S. at 773.
"[T]he only public interest relevant for purposes of Exemption
7 (C) is one that focuses on `the citizens' right to be informed
about what their government is up to.'" Davis v. U.S. Department of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992)
(quoting Department of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 773 (1989)). Details that "reveal
little or nothing about an agency's own conduct" are not part of
the public interest for purposes of Exemption 7 (C). Blanton v.
U.S. Dep't of Justice, 63 F.Supp.2d 35, 45 (D.D.C. 1999)
(quoting Davis v. Dep't of Justice, 968 F.2d at 1282). In the
absence of any compelling evidence that the government agency has
engaged in illegal activity, this type of information is exempt
from disclosure. See SPARC v. United States Postal Service,
147 F.3d 992, 999 (D.C. Cir. 1998); Vance v. FBI, 46 F.Supp.2d 26,
33 (D.D.C. 1999). Since Plaintiff does not allege that BOP
engaged in misconduct, there is no public interest in disclosure
that outweighs his counsel's privacy interests. Defendant
properly withheld the records under Exemption 7 (C).
If a record contains information that is exempt from
disclosure, any reasonably segregable information must be
released after deleting the exempt portions, unless the
non-exempt portions are inextricably intertwined with exempt
portions. See Trans-Pacific Policing Agreement v. United States
Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999);
5 U.S.C. § 552(b). A court errs if it "simply approve[s] the withholding
of an entire document without entering a finding on
segregability, or the lack thereof." Powell v. United States
Bureau of Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1991)
(quoting Church of Scientology v. Dep't of the Army,
611 F.2d 738, 744 (9th Cir. 1979)).
Defendant asserts that to release only Plaintiff's portion of
the telephone conversations would violated his attorney's privacy
rights. See Harris Decl., ¶ 29. The statements made by
Plaintiff to counsel on the recordings are critical of his
counsel and could harm her reputation. Id. Defendant also asserts that hearing one side of the conversation would be
misleading and out of context. Id.
The Court agrees with Defendant's conclusion. The segregable
information would provide only Plaintiff's side of the
conversation. Plaintiff's claim is that the conversations would
reveal his attorney's misconduct. See Plaintiff's Opp. at 4.
The information conveyed by his attorney to him during their
telephone conversations is inextricably intertwined with
The records withheld by Defendant are exempt from disclosure
under the FOIA. Based on the foregoing analysis, Defendant's
motion for summary judgment will be granted. An appropriate order
accompanies this Memorandum Opinion.