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Coleman v. Lappin

March 18, 2009

MONROE L. COLEMAN, PLAINTIFF,
v.
HARLEY LAPPIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This matter is before the Court on Defendant's third motion for summary judgment. For the reasons discussed below, the motion will be granted in part and denied in part without prejudice.

I. BACKGROUND

In June 2006, Plaintiff submitted a request for information under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to the Federal Bureau of Prisons ("BOP") for the following:

[A]ll records and/or data contained in the files regarding BOP former worker Kimberly Moore, including disciplinary report filed against [plaintiff] by Mrs. Kimberly Moore who was terminated for indulging in wrongful acts as a BOP worker during 2005 or 2006, which it requested that any and all investigations on the named party Mrs[.] Kimberly Moore be released to requester. This disciplinary report and the requested investigation(s) took place at Big Sandy USP which is located in Inez, Kentucky during the year of 2005 and/or 2006.

Defs.' Mem. of P. & A. in Support of Mot. to Dismiss or, in the Alternative[,] Mot. for Summ. J. [Dkt. #17] ("Defs.' Mot."), Declaration of Sharon Massey ("Massey Decl."), Attach. B (Plaintiff's FOIA Request) at 1. The BOP released in full the two-page Incident Report, Massey Decl. ¶ 8 & Attach. F (Incident Report No. 1351770), and the Court granted the agency's motion on that issue. Coleman v. Lappin, No. 06-2255, 2007 WL 1983835, at *2 (D.D.C. July 3, 2007). With respect to the request for disciplinary records regarding Mrs. Moore, the BOP initially provided a Glomar response, that is, refusing to confirm or deny the existence of responsive records.*fn1 Massey Decl., ¶ 9 & Attach. E (July 19, 2006 letter from R.W. Schott, Regional Counsel, Consolidated Legal Center, BOP, regarding Request No. 2006-07999). Its decision "was based upon the lack of [Mrs. Moore's] consent, proof of death, official acknowledgment of an investigation, or overriding public interest, even to acknowledge the existence of . . . records pertaining to [her]" because disclosure of such records "could reasonably be expected to constitute an unwarranted invasion of [her] personal privacy." Massey Decl. ¶ 9. The Court denied the BOP's motion on this issue, see Coleman, 2007 WL 1983835, at *3, and directed the agency to file a renewed motion. Id. On consideration of Defendants' renewed motion for summary judgment, the Court found that "[a] Glomar response [was] not appropriate in the absence of an evidentiary record to support a finding that BOP records pertaining to Mrs. Moore are law enforcement records." Coleman v. Lappin, 535 F. Supp. 2d 96, 98-99 (D.D.C. 2008). The Court denied Defendant's renewed motion without prejudice. Id.

Now before the Court is Defendant's third motion for summary judgment. The BOP has determined that it "must abandon its [Glomar] defense, and acknowledge that records are in existence relating to the Plaintiff's request" in order to demonstrate to the Court "the circumstances under which the requested records were compiled." Mem. of P. & A. in Support of Def.'s Renewed Mot. for Summ. J. ("Def.'s 3d Mot."), Gottleib Decl. ¶ 5. Instead, the BOP relies on FOIA Exemptions 2, 5, 6, 7(C), 7(E), and 7(F) to withhold records in their entirety (21 pages) or portions of records (101 pages) deemed responsive to Plaintiff's FOIA request.*fn2 See id. ¶¶ 9, 22.

II. DISCUSSION

In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when they 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 Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). 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 Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

Plaintiff strenuously opposes Defendant's third summary judgment motion, see generally Plaintiff's Opposition to Defendant's Request for Summary Judgment ("Pl.'s Opp'n"), yet focuses almost exclusively on perceived violations of his First Amendment rights, that is, having to face disciplinary charges and resulting punishment because he spoke openly of Ms. Moore's alleged inappropriate activities involving both inmates and BOP staff. See id. at 1, 6-7, 10-11. Rather than attacking the BOP's decisions to withhold information under particular FOIA exemptions, Plaintiff instead seeks discovery regarding Ms. Moore's conduct, the BOP's response to that conduct, and alleged violations of his constitutional rights stemming from Ms. Moore's conduct. See id. at 1. Although the BOP has abandoned its Glomar argument, Plaintiff maintains that the agency wrongfully refuses to confirm the existence of responsive records pertaining to an investigation about Ms. Moore. See Pl.'s Opp'n at 4-5.

Plaintiff's ultimate objective is to prove the truth of the statements he made about Mrs. Moore which led to disciplinary charges against him. See, e.g., Pl.'s Opp'n at 3-5. Armed with this information, Plaintiff appears intent on attacking the disciplinary proceedings on the ground that they were pursued in retaliation for his having exercised his rights under the First Amendment to the United States Constitution. See id. at 1, 6-8, 13-15. These motives or personal interests are irrelevant to a FOIA action. Rather, the purpose of the FOIA is "to 'ensure an informed citizenry, vital to the functioning of a democratic society.'" United We Stand Am., Inc. v. Internal Revenue Serv., 359 F.3d 595, 597 (D.C. Cir. 2004) (quoting Nat'l Labor Rel. Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). To this end, FOIA provides for public access to government records. See, e.g., United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754-55 (1989). FOIA requests are not proper vehicles for conducting investigations into an agency's actions. See Flowers v. Internal Revenue Serv., 307 F. Supp. 2d 60, 72 (D.D.C. 2004) (commenting that requester "cannot use FOIA discovery to conduct an investigation into the IRS' rationale for her audit"); see also Williams v. Fed. Bureau of Investigation, No. 90-2299, 1991 WL 163757, at *3 (D.D.C. Aug. 6, 1991) (concluding that requester was not entitled to discovery "to unearth details about the FBI's investigation" of him and his organization because an agency's investigatory rationale is not the proper subject of FOIA discovery requests).

Even though Plaintiff's opposition addresses none of the substantive arguments set forth in Defendant's motion, the Court declines to treat the motion as conceded.

A. Exemption 2

Exemption 2 shields from disclosure information that is "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. ยง 552(b)(2). The phrase "personnel rules and practices" is interpreted to include not only "minor employment matters" but also "other rules and practices governing agency personnel." Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). The "information need not actually be 'rules and practices' to qualify under [E]xemption 2, as the statute ...


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