The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Anthony Ray, a prisoner, filed this pro se complaint under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, and the defendant Federal Bureau of Prisons ("BOP") has filed a motion for summary judgment, which is ripe for resolution. Because the BOP has not demonstrated that it is entitled to summary judgment under the FOIA, and has failed to respond to a related claim, its motion for summary judgment will be denied.
Ray submitted a FOIA request to the office of the General Counsel of the Federal Bureau of Prisons describing the information and documents he was requesting as follows:
Copies of all records created by the BOP and/or the National Toxicology Laboratory, Inc. (NTL), regarding urine specimen #BOI652926, including chain-of-custody records, relevant portions of any ledgers kept by respective custodians, laboratory results/reports, etc. I also request copies of the contract between the BOP and NTL under which specimen #BOI65926 [sic] was tested, and copies of any Operations Memoranda or other documents which set forth procedure, protocol, standards or guidelines established to ensure the reliability and accuracy of urine analysis. Finally, I request disclosure of the identities of NTL personnel involved in the analysis of . . . specimen # BOI65926 [sic], the number and type of tests conducted on said specimen, whether the entire specimen was consumed in testing, and the disposition of both the tested and any untested portions of the specimen.
If you determine that any portion of the specimen remains in the custody or control of either the BOP or NTL, I hereby request that such remaining portions of the specimen be preserved as evidence material to resolution of judicial proceedings.
My final request is for copies of documents and/or disclosure of information referred to in disciplinary proceedings based on Incident Report #140-3543. See attached, DHO Report, p. 2, D., 1. thru 4. More specifically, as regards D., 4., I request a copy of the "memorandum" submitted to the DHO by LCDR R. Byrd, as well as copies of any publications and/or the source and substance of any unpublished information "reviewed" by R. Byrd which led him to conclude that the "metabolism and chemical structure of a dental anesthetic given to [me near the time of submission of urine sample showed] no comparison . . . [to] cocaine metabolites that would cause a false positive urine test result."
See BOP's First Mot. for Summ. J. ("BOP Mot."), Ex. A (Ray's FOIA Letter Request, Jan. 13, 2006 ("Ray's FOIA Request")); see also Compl. ¶ 6.*fn1 Three months later, having received no response from the BOP, Ray attempted to appeal the BOP's nonresponse, but his appeal was rejected because the agency had made no adverse determination. See Compl. ¶¶ 7-9. Ray filed this pro se complaint alleging that the BOP's lack of response to his request violated the FOIA. He later filed an amended complaint that also alleged that the BOP had a practice and custom of ignoring prisoners' FOIA requests, and that sought to enjoin the defendant from continuing its alleged practice. See Am. Compl. ¶ 11.
The BOP acknowledges that it mishandled Ray's FOIA request upon receipt, and did not begin its search for responsive documents until after this lawsuit was filed. See BOP Mot., Declaration of Wilson J. Moorer, Feb. 25, 2008 ("Moorer Decl.") ¶¶ 5-6. The BOP characterizes Ray's FOIA request as seeking "a copy of all records created by the [BOP] in regards to the . . . [NTL] urine specimen #BOI652926; a copy of the contract between the BOP and NTL; a copy of any Operations Memoranda or policies regarding urine analysis; and the names of NTL personnel who conducted the urine test." Moorer Decl. ¶ 4. After searching its Procurement Office, the BOP released with redactions a portion of its contract with a firm called Phamatech,*fn2 and determined that the remainder of the contract, 252 pages, was not responsive to Ray's FOIA request. Id. ¶¶ 6, 8. The BOP also searched Ray's Inmate Central File and identified two responsive documents of twelve pages each, which were released to Ray with redactions. Id. ¶¶ 7, 8; see also BOP's Reply at 3, n.6. On this basis, the BOP filed for summary judgment.
In his opposition, Ray noted that NTL, not Phamatech, had processed his urine specimen. Id. ¶ 12. The BOP then located the contract relating to NTL, and released that document with redactions. Id. ¶ 13. It appears that Ray does not challenge any of the redactions of the released documents. Instead, emphasizing that his request was broader than the BOP's characterization of it suggests, Ray challenges both the scope of the BOP's search and the BOP's determination that certain documents were not responsive to his FOIA request. Ray also continues to press his claim that the BOP consistently refuses to process claims for prisoners unless the prisoner has filed suit.
A court considering a pro se complaint is obliged to construe it liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255.
An agency has a duty to construe liberally a FOIA request for information. Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). An agency is entitled to summary judgment once it demonstrates that no material facts are in dispute and that it conducted a search of records in its custody or control, Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-51 (1980), that was reasonably calculated to uncover all relevant information, Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), which either has been released to the requestor or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To show that its search "us[ed] 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 also Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), the agency may submit affidavits or declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations reflecting a search reasonably calculated to uncover all relevant information are sufficient to demonstrate an agency's compliance with the FOIA. Perry, 684 F.2d at 127. A search need not be exhaustive, Miller v United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. ...