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Dasta v. Lappin

September 25, 2009

JOHN DASTA, PLAINTIFF,
v.
HARLEY G. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons discussed below, the Court will grant summary judgment for defendant.

I. BACKGROUND

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

1. ADDENDUM TO THE FOOD POLICY 4700.05 FOR THE CHOICES OF MENUS EITHER 1, 2, OR 3 FOR THE NATIONAL FOOD SERVING THAT BEGAN JAN. 06, 08.

2. THE MEMO TO FCI ELKTON EXPLAINING HOW TO CHOOSE MENUS 1, 2 OR 3 FOR THE NATIONAL FOOD SERVING THAT STARTED JAN. 06, 08.

Pl.'s Cross-Mot. for Summ. J., Ex. 1 (January 24, 2008 Freedom of Information/Privacy Act Request) (capital letters in original); see Compl. ¶ 1. According to plaintiff, as of the filing of aint in June 2008, he "ha[d] not had a response from [BOP]" to his request. Compl. ¶ 6. In this action, which the Court construes as a civil action against the BOP under the FOIA, see 5 U.S.C. § 552(a)(4)(B), plaintiff has demanded a declaratory judgment, an order directing the BOP to produce the requested records, and reimbursement of costs incurred in this action.*fn1 Id. ¶ 9.

The BOP received plaintiff's FOIA request on February 6, 2008, and assigned it FOIA Request No. 08-03833. Def.'s Mem. of P. & A. ("Def.'s Mot."), Declaration of Monica Potter-Johnson ("Potter-Johnson Decl.") ¶ 3 & Ex. A. Although BOP staff identified no addenda to Program Statement 4700.05, Food Service Manual, the current version of which is dated June 12, 2006, staff located a "memorandum titled National Menu Implementation Procedures," a copy of which had been "forwarded to all Wardens." Potter-Johnson Decl. ¶ 4-5. On June 24, 2008, BOP sent plaintiff "a copy of the memorandum titled National Menu Implementation Procedures." Id. ¶ 6.

II. DISCUSSION

The BOP moves for summary judgment on the ground that it already has released unredacted copies of the requested records, rendering the case moot. See Def.'s Mot. at 5-6. Plaintiff counters that he is entitled to summary judgment because the BOP failed to acknowledge receipt of and respond to his requests timely in accordance with 5 U.S.C. §552(a)(6)(A)(i). See Pl.'s Cross-Mot. for Summ. J. at 2-3. Only after he filed this civil action did the BOP release the requested records. Id. at 3. For this reason, plaintiff demands an award of costs to cover the portion of the court's filing fee paid to date and photocopies. Id.

A. Summary Judgment Standard

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, 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 the 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 or declarations may be accepted as true unless the opposing party submits his own affidavits or declarations 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); 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 ...


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