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Mosby v. Hunt

May 5, 2010


The opinion of the court was delivered by: John D. Bates United States District Judge


In this pro se action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, plaintiff challenges the Bureau of Prisons' ("BOP") responses to his three separate FOIA requests for records and seeks correction under the Privacy Act of any "inaccurate agency records and information disputed by Plaintiff, upon their release."*fn1

Compl. at 3 ¶ 12. Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) or for summary judgment under Rule 56 [Dkt. No. 16]. Plaintiff cross moves for partial summary judgment [Dkt. No. 20]. Upon consideration of the parties' submissions and the entire record, the Court will grant in part and deny in part defendant's motion and will deny plaintiff's motion, which is also considered as his opposition to defendant's motion. In addition, the Court will grant plaintiff's motion for an in camera review of the disclosed records [Dkt. No. 25].


FOIA Request Number 2009-05558

On September 8, 2008, plaintiff requested a copy of "PS 5321.07 . . . PS 7300.09 Community Corrections Manual . . . 28 C.F.R. § 570" and related documents. Def.'s Mot., Declaration of Wilson J. Moorer ("Moorer Decl."), Ex. B; Compl. ¶ 1. Defendant purportedly responded to plaintiff's request by providing unredacted copies of "PS 5321.07 . . . and PS 7900.09," Defendant's Statement of Material Facts Not in Genuine Dispute ("Def.'s Facts") ¶ 4, but later determined in response to plaintiff's grievance that plaintiff was "[n]ever provided a correct copy of the Program Statement he originally requested." Id. ¶ 5. On January 21, 2010, during the course of this litigation commenced on October 8, 2009, defendant released to plaintiff an unredacted copy of BOP "Program Statement 7300.09, entitled Community Corrections Manual." Moorer Decl., Ex. D.

FOIA Request Number 2008-08823

On July 15, 2008, BOP received plaintiff's request dated July 7, 2008, for records "[r]egarding the FBOP 'INTRUDER' telephone Voice Recording System, policy & promulgation . . . . Includ[ing] all sources of funding . . . [and] All Records that contain Me or My phone list persons." Id., Ex. F. On November 21, 2008, defendant released unredacted copies of "Program Statement 5264.08, entitled Inmate Telephone Regulations . . . funding totals for the system for FY 2006, 2007, and 2008; [and] a copy of [] Plaintiff's Telephone Account Statement[.]" Id., Ex. G. In response to plaintiff's administrative appeal of that release, the Office of Information and Privacy ("OIP") notified plaintiff by letter of August 17, 2009, that it was remanding the request to BOP for an additional search and that he could "appeal any future adverse determination made by BOP." Id., Ex. J. As of January 28, 2010, "BOP [was] continuing to search its archives and process Plaintiff's appeal, on remand from OIP." Moorer Decl. ¶ 12.

FOIA Request Number 2009-08433

On June 1, 2008, plaintiff requested "the release of agency records relating to a "retaliatory transfer." Compl. ¶ 5. Specifically, plaintiff requested all documents "about my transfer from FMC Rochester to Big Springs TX . . . [a]ll medical reports, records or Memo that relate to FMC Medical Director reclassifying me as 'Care Level II' instead of Care level I [and]

[a]ll changes, reports & reviews executed at D.S.C.C. that placed a mgmt/varible [sic] against me, detailing the reasons for that 'greater security' designation." Def.'s Mot., Declaration of Larry Collins ("Collins Decl."), Attach. 2. By letter of September 17, 2009, defendant released portions of two responsive pages and informed plaintiff that it was withholding certain information under FOIA exemptions 2 and 7(F), see 5 U.S.C. § 552(b). Id., Attach. 4. Because of an "oversight," the letter did not include exemption 7(C), but "the redacted document was clearly marked with Exemption (b)(7)(C)." Collins Decl. ¶ 8. Plaintiff lodged his administrative appeal on September 21, 2009, in which he "advised" that the "belated release does not moot the above case filed in the District of Columbia." Id., Attach. 8. By letter of December 15, 2009, OIP notified plaintiff that it was closing his appeal file "[i]nasmuch as this matter is now before the Court[.]" Id., Attach. 9.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). 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 the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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).

The FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). The district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption). The Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information ...

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