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United States District Court for the District of Columbia

June 7, 2005.


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. 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 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 non-disclosed materials.


  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.

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