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.
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).
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. ...