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Ruston v. Dep't of Justice

November 9, 2007


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No.: 36



In a request submitted to the Federal Bureau of Prisons ("BOP") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff sought: all documents in the possession of the B.O.P. regarding a psychological examination of [the plaintiff] by a B.O.P. staff Psychologist named Dr. Maureen [Burris] of the MDC-Los Angeles, which occurred beginning in November of 2004 through April of 2005. Mem. of P.& A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. A ("Kosiak Decl.") ¶ 4 & Attach. 1 (June 2, 2005 FOIA Request Letter, assigned Request No. 2005-06378). Under FOIA Exemptions 4, 5, 7(C), and 7(F), BOP withheld in full four documents, one of which contained copyrighted material.*fn1 See Kosiak Decl. ¶¶ 10, 14, 19. That document (In Camera Exhibit 1) was described as "the raw data obtained by BOP forensic psychologist during an interview with the plaintiff to assist in her determination of his competency to stand trial."

Kosiak Decl., Vaughn Index at 1. BOP determined that, under FOIA Exemption 4, "these copyrighted tests should not be released until the copyright holder has been contacted[] and provided the opportunity to assert any objections to disclosure and the grounds for such objections." Kosiak Decl. ¶ 20. In the alternative, the defendant suggested that the Court first determine whether these records were protected under FOIA Exemption 7(F) to obviate the need to determine the applicability of Exemption 4. See Def.'s Mot. at 9; Notice of In Camera Filing of Documents at 1.

The Court concluded that the defendant neither justified the withholding in full of the four documents under Exemption 7(F) nor the withholding of Dr. Burris' handwritten notes (In Camera Exhibits 2-4) under Exemption 5. Ruston v. Dep't of Justice, No. 06-0224, 2007 WL 809698, at *6 (D.D.C. Mar. 15, 2007). The only information properly redacted were the names of the third parties mentioned in In Camera Exhibits 2-4. Id. at *5. Finally, the Court denied without prejudice the defendant's motion for summary judgment with respect to the copyrighted test materials (In Camera Exhibit 1) so that the defendant had an opportunity to ascertain the copyright holders' positions on disclosure. Id. at *3.


A. Summary Judgment Standard

The court grants a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the court may grant summary judgment based on the information provided 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). 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.'" SafeCard Servs., Inc. v. Sec. and Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B. Exemption 4

Exemption 4 protects from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). The defendant treats these psychological assessment materials as agency records for purposes of the FOIA and, relying on declarations submitted on behalf of the publishers of these materials, the defendant maintains that portions of In Camera Exhibit 1 are exempt from disclosure under FOIA's Exemption 4. See Mem. of P.& A. in Supp. of Def.'s Renewed Mot. for Summ. J. ("Def.'s Renewed Mot.") at 3-4.

In Camera Exhibit 1 includes "a four page Wechsler Adult Intelligence Scale(r) -- Third Edition (WAIS(r)-III) Summary Report followed by the actual protocol, which is a fourteen page document." Def.'s Renewed Mot., Ex. A ("Cayton Decl.") ¶ 2.*fn2 The WAIS-III, published by Harcourt Assessment, Inc., is "a clinical test instrument used by psychologists to assess an individual's cognitive functioning." Id. ΒΆ 3. It contains "one highly researched set of test items intended to be used for more than ten (10) years." Id. Test questions, answers, manuals and related materials are "highly confidential, proprietary trade secrets" which the publisher seeks "to protect from disclosure beyond what is absolutely necessary for the purpose of administering the tests." Id. To this end, the publisher ensures that employees working on these secure materials sign confidentiality agreements and that the materials are registered under a special procedure to avoid public disclosure of the contents. ...

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