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Swope v. United States Dep't of Justice

July 3, 2006


The opinion of the court was delivered by: Royce C. Lamberth United States District Judge


Plaintiff, a federal inmate proceeding pro se, brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. §552. He seeks copies of recorded telephone conversations between him and third parties that are in the possession of the Bureau of Prisons ("BOP"). Defendants have filed a motion for summary judgment and plaintiff has opposed the motion. Because the record demonstrates that the BOP properly withheld the requested records under the FOIA, defendants' motion will be granted.


On May 1, 2005, plaintiff submitted a FOIA request to the BOP for copies of all telephone conversations he made from the Medical Center for Federal Prisoners in Springfield, Missouri ("FMC-Springfield") to telephone numbers (732) 441-0230 and (212) 744-6324. Complaint ("Compl."), Ex. 3. The BOP located 45 calls from plaintiff to those numbers. Defendant's Motion for Summary Judgment ("Defts.' Mot."), Declaration of Daryl J. Kosiak ("Kosiak Decl."), ¶ 7 & Attachment A. On May 31, 2005, the BOP informed plaintiff that it was withholding the records pursuant to FOIA Exemption 7(A) because disclosure would interfere with pending law enforcement proceedings, and under Exemption 7(E) on the ground that disclosure would reveal investigative techniques and procedures. Id., ¶ 11 & Attach. D.

On June 10, 2005, plaintiff appealed this decision to the Office of Information and Privacy ("OIP"). Id., ¶ 12 & Attach. E. The OIP determined that the records were exempt from disclosure pursuant to FOIA Exemption 7(C) because plaintiff did not have consent from the other party to the conversation and to release the other party's portion of the conversation would constitute an unwarranted invasion of personal privacy. Id., ¶ 13 & Attach. F. The OIP also informed plaintiff that the exempt and non-exempt portions of recorded conversations could not be reasonably segregated. Id. Plaintiff then filed this action.

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)).

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). 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 Agency Search In order to obtain summary judgment on the issue of the adequacy of a FOIA 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.

The search here was adequate. The BOP records all calls on the Inmate Telephone System ("ITS") and as a general rule maintains the recorded conversations for 180 days. Kosiak Decl., ¶ 5. The BOP does not transcribe the conversations. Id., ¶ 7. The calls requested by plaintiff were recorded in an electronic digital audio format. Id., ¶ 18 n. 2. In response to a FOIA request, the relevant BOP institution conducts a search of the inmate's telephone record using ...

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