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Kemuel Mingo v. United States Department of Justice et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 29, 2011

KEMUEL MINGO, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.

The opinion of the court was delivered by: Beryl A. Howell United States District Judge

MEMORANDUM OPINION

U.S.C.In this action brought under the Freedom of Information Act, ("FOIA") 5 ("BOP") response to his request for § 552, the Plaintiff, a federal prisoner, challenges the Bureau of Prisons' video footage. Pending is the Plaintiff's motion for summary judgment [ certain records pertaining to him and ECF No. certain and the Defendants' motion to dismiss 6], for summary judgment [ 12]. one of the two defendants ECF No. and cross-motion submissions and the entire record, and for the following reasons, *fn1 Upon consideration of the parties' the Court will motion to dismiss the defendant deny the Plaintiff's motion for summary judgment BOP and their motion and grant for sum both the Defendants. *fn2

I. BACKGROUND

pertaining to him By letter of March 29, 2010, the Plaintiff requested from BOP records on September 26, 2009, at the United States Penitentiary Big Sandy "in regards to" an "SIS investigation" of an incident that occurred Sandy") in Lexington, Kentucky. He also requested "a complete copy of the camera ("USP Big the footage regarding said incident . . .

Dismiss Def. BOP and for Summ. J., Decl. of Denise Gottleib ("Gottlieb Decl.") [ date of [the] incident[.]"*fn3 Defs.' Opp'n to Pl.'s Mot. for Summ. J. and and the complete camera footage of Unit Cross C- -Mot. to 4 on ECF No. of information 12-1], Ex. A. and two Following a search for responsive records, video disks. Gottleib Decl. ¶ 7.

BOP located 55 pages information, 1 By letter of June disks in their entirety 9 of which were redacted 14, 2010, BOP released to the Plaint under FOIA exemption 7(C) . BOP withheld 1 iff 37 pages of U.S.C. § 552(b)((7)(C).Id. ¶¶ 13;see88-pages and the two). By letter of June 27, 2010, the Plaintiff appealed that Ex. B (citing 5 video determination to the Office of Information and Privacy ("OIP"), stating that thePl.'s Mot. for Summ. J., Ex. 3 [ "agency improperly invoked Exemption (b)(7)(C)additional portions of one page ECF No. 6-3]. By letter of August 20, 2010, . . . to the requested video tapes."OIP released partly modified grounds." Id ., Ex. 5. OIP listed exemptions 2 and 5 as additional otherwise affirmed BOP's action, albeit "on specified reasons, [he] cannot present facts essential to justify [his] opposition," Fed. R. Civ. P. 56(d), Civil Procedure 56(d). Because the Plaintiff has not shown "by affidavit or declaration that, for but motion for summary judgment, the Court will deny the Plaintiff's Rule 56(d) motion as moot. and given that he has filed a summary judgment motion and has opposed the Defendants' cross-bases for BOP's withholding of information. September 30, 2010, against the Department of Justice Id The Plaintiff further requests the "names and titles of [USP] Big Sandy Employees in their ("DOJ") and its component, *fn4 . The Plaintiff filed this lawsuit on BOP.

II. DISCUSSION

The Defendants move under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss BOP from this action. They argue that FOIA lawsuits may be brought only against the federal agency, not its components, and therefore Dismiss Def. BOP and for Summ. J. Defs that the only proper defendant in this case is DOJ and not its component BOP. .' Mem. in Opp'n to Pl.'s Mot. for S defendant.") and [ECF No. 12 umm. J. & at in Supp. ] 5. This issue is not settled in of Defs.' Cross-Mot. to this Circuit, however. (D.D.C. 2006) (noting "disagreement [among the district judges] in this Circuit Bureau of Prisons 30, 2011) See Prison Legal News v. Lappin regarding what constitutes an 'agency' as it pertains to the District Court's jurisdiction pursuant to the FOIA.") (citations omitted Holt v. U.S. Dep't of Justice , 436 F. Supp.2d 17, 21-22 ); compare , ___ F. Supp. 2d ___, 2011 WL 1195800, at *5 n.1 Benavides v. (D.D.C. Mar. (Roberts, J.) (In FOIA suit against BOP, "DOJ is an executive agency to which the FOIA applies, and the Court considers the DOJ as the proper party , 734 F. Supp. 2d 28, 33 n.1 (D.D.C. 2010) (Walton, J.) (In FOIA suit against DOJ, BOP and FBI, court noted that " DOJ is an executive agency to which the FOIA applies, and the Court considers the 2011 DOJ as t WL 782028, at *7 he proper party defendant."), with Cloonan v. Holder (D.D.C. Mar. 8, 2011) (Lamberth, J.) (" previously held that naming components as defendants under the Privacy Act is appropriate since the statute's plain language is clear that be a cabinet Tre -level agency such as the DOJ to be liable.") and , 2005 naming components asury ' ___ F. Supp. 2d ___, , [T]his Court has 'an agency need not Lair v. Dep't of WL 645228, at *3 (D.D.C. Mar. 21, 2005) ("as for the propriety of components is proper.") (Lamberth, J.). in [FOIA suit] of executive departments, naming Nevertheless, co-defendant in this action, and the Plaintiff has not contested this part of the the Court will grant the motion to dismiss BOP because DOJ is a 117, Defendants' dispositive motion a named 119 (D.D.C. 2011) See Vazquez v. U.S. Dep't of Justice (finding no "need [to] dwell on the issue". , where 764 F. Supp. 2d DOJ was also defendant).

1.The Defendants' Motion to Dismiss

2. The Parties' Motions for Summary Judgment

A. Legal Standard

dispute Summary judgment is appropriate upon a showing that there is "no genuine law." Fed. R. Civ. P. 56(a). "[A] material fact is 'genuine' . . . if the evidence is such as to any material fact and the movant is entitled to judgment as a matter of element of the claim. that a reasonable jury could return a verdict for the nonmoving party" on an he FOIA requires a federal agency to release all records responsive to a Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). properly submitted request except those protected from disclosure by one or more of nine enumerated exemptions.

See 5 U.S.C. § 552(b). The agency's disclosure time, place, fees (if any), and procedures to be followed." 5 U.S.C. § 552(a)(3)(A). requested] records" and "is made in accordance with published rules stating the obligations are triggered by its receipt of a request that "reasonably describes [the The FOIA authorizes the court only "to enjoin [a federal] agency from withholding withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a agency records or to order the production of any agency records improperly FOIA claim are to devise remedies and enjoin agencies can only be invoked under the jurisdictional : (1) improperly (2) withheld (3) agency records. "Judicial authority obligation." grant conferred by § 552, if the agency has contravened all three components of this (1980).

Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 150 obligation to disclose reasonably segregable material." award summary judgment to an agency solely on the information provided in Serv. "Agencies are entitled to a presumption that they complied with the Sussman v. U.S. Marshals , 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citations omitted).

The Court may falls within the claimed exemption, and are not controverted by either contrary with reasonably specific detail, demonstrate that the information withheld logically affidavits or declarations when they describe "the justifications for nondisclosure evidence in the record nor by evidence of agency bad faith." 565 F.3d 857, 862 (D.C. Cir. 2009) ( Larson v. Dep't of State , quoting Miller v. Casey Cir. 1984) ); accord Military Audit Project v. Casey , 730 F.2d 773, 776 (D.C. , 656 F.2d 724, 738 (D.C. Cir. 1981); An agency's see (1974). Vaughn v. Rosen , 484 F.2d 820, 826 declarations are "accorded a presumption of good faith, which - 28 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 cannot be rebutted by purely speculative claims , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation. . . . " SafeCard Servs., Inc. v. Sec. & Exch. Comm'n marks omitted evidence of bad faith, the veracity of the government's submissions regarding); see Matter of Wade , 969 F.2d 241, 246 (7th Cir. 1992) ("Without omitted) reasons for withholding the documents should not be questioned.") (citation evidence, . summary judgment is not warranted.

If the Plaintiff rebuts the foregoing presumptions with probative burden lies with the government to demonstrate that no segregable, nonexempt See Sussman , 494 F.3d at 1117 ("the portions were withheld."). The Plaintiff disputes only BOP's B. A withholding of the video nalysis entirety under exemption 7(C). disks in their Genuine Dispute [ECF No. 6] See Pl.'s Statement of Fact as to Which There is No alleged improper withholding of "requested video tapes") ¶¶ 7, 10-11, 14, 16 & Ex. 3 (administrative appeal of conceded the Defendants' documented.

He therefore has released documents -- namely, third-party information bases for redacting information from thedeliberative process material under exemption 5 Attach. D (.See Gottlieb Decl. ¶¶ 10 under exemption 7(C) and 11 &Vaughn i ndex).- whether, as with the disks, withstanding the Plaintiff's concession, responsive records in their entirety.

Not BOP has adequately justified the Court must determine See Trans- Pacific Policing Agreement v. United wit States Customs Service called segregability hholding 18 pages of to make a so- , 177 F.3d 1022, 1027 finding whether raised by the 28 (D.C. Cir. 1999) (requiring parties or not). the court An agency may properly withhold entire records when the "'exempt and nonexempt information would . . . produce an edited document with little informational valu information are 'inextricably intertwined,' such that the excision of exempt Mays 661, 666 (D.C. Cir. 1981)). e.' " v. DEA , 234 F.3d 1324, 1327 (D.C. Cir. 2000) ( quoting Neufeld v. IRS , 646 F.2d 7 BOP withheld 18 pages and two disks in their entirety under FOIA that . Gottlieb Decl. ¶ were compiled for law enforcement purposes ¶ 12 13. This exemption allows an agency exemption-one of the subparts of exemption 7. and satisfy the requirements of to withhold records 41 (D.D.C. 2010) ( Holt v. U. S. Dep't of Justice citing Pratt v. W , 734 F. Supp. 2d 28, assessing whether records are compiled for law enforcement purposes, the "focus is ebster, 673 F.2d 408, 413, (D.C. Cir. 1982)).

In on how and under what circumstances the requested files were compiled, and whether the files sought relate to anything that can fairly be characterized as an 2002) enforcement (citations and internal quotations omitted). proceeding."

Jefferson v. Dep't of Justice, 284 F.3d 172, 176-77 (D.C. Cir. care, and subsistence of all persons charged with or convicted of offenses against Consistent with BOP's mission, which includes "provid[ing] for the safekeeping, enforcement agency. the United States . . .," 18 U.S.C. §4042(a)(2), t 5-6 Holt , 734 F. Supp. 2d 2d 1, 6 (D.D.C. 2006); 711 F. Supp. 2d 1, at he BOP is considered a law (D.D.C. 2010) ; 41 ( citing Quinto v. U.S. Dep't of Justic e, 673 F. 2d at Swope v. U.S. Dep't of Justice, Pratt, see 418.

Moreover, it is undisputed that the Sandy and that these records were maintained by the Special Investigative Office at 439 F. Supp. responsive records pertain to an altercation involving over 50 inmates at U.S.P. Big established that facility. Gottlieb Decl, ¶ 7; Statement that these records were created in connection with the BOP's of Material Facts [ECF No. 12] ¶3. It is Butler v. Fed. Bureau of Prisons responsibility to "protect[] inmates, staff, and the community," the enforcement of federal law. , 2005 WL 3274573, at * 3 (D.D.C. Sept. 27, 2005) requirement therefore is satisfied.

Exemption 7's threshold law enforcement , and therefore relate to disclosure information contained in law enforcement files that "could reasonably be In this case, the Defendants rely upon exemption 7(C), which protects from expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Third-party identifying information contained in law enforcement files is "categorically exempt" from disclosure under exemption 7(C) in the absence of a showing that an overriding public interest warrants disclosure.

Nation Magazine, Washington Bureau v. United States Customs Service , 71 F.3d 885, 896 privacy interests of all persons mentioned in law (D.C. Cir. 1995); accord Sussman , 494 F.3d at 1115 (exemption 7(C) "protects the they be investigators, suspects, witnesses, or informants") (citation omitted) enforcement records, whether Schoenman v. FBI circumstances, the balance [of interests] categorically favors , 763 F. Supp. 2d 173, 198 (D.D.C. 2011) (" '[a]bsent exceptional ; . . . of third parties,' withholding the names of its statutory responsibilities.") as such information is not probative of an agency's performance original). The exempt information is not protected if the requester establishes an (quoting Mays. , 234 F. 3d at 1327) (alterations in overriding public interest in disclosure by showing that the information is necessary to "shed any light on the [unlawful] conduct of any Government agency or official."

Freedom of the Press 749, 772 United States Dep't of Justice v. Reporters Committee for 73 (1989); - SafeCard Services, Inc , 489 U.S. accord States Dep't of Justice, 968 F. 2d 1276, 1281 (D.C. Cir. 1992) ., 926 F.2d at 1206; Davis v. United medical records of other inmates and staff The Defendants submit a declaration describing the withheld none of were involved in the altercation, pages as the The Plaintiff whom has does not suggest that consented to the release of who such information. Gottlieb Decl. 12. of the compels ¶ medical records pages of those pages. Hence, under exemption 7(C). Court finds an overriding public interest that BOP properly withheld 18 the release According to the declaration submitted by the least 50 different inmates," who disks contain video of different camera views of the altercation Defendants, and two images of "at withheld The Defendant the technology to do so s further assert that the disks are not segregable have not consented to a release. because BOP lacks Gottlieb Decl. ¶ 13. by which third party individuals could be identified, such as the face, head, or upper The Plaintiff acknowledges that the disks may contain "portions of the body deleted . . . ." Decl. Under Penalty of Pe torso area and-up [sic]," but he surmises that "such portions can be redacted or see id.

¶ 18 (stating that the protected portions "can easily be blurred or deleted") rjury of Kemuel Mingo [ECF No. 6-2], ¶ 12; According to the Plaintiff, "any film[] or digital material[] can be formated [sic] in. any way one so chooses without wasting significant time and resources."Id . ¶ 16.area and However, he has not proffered any does not purport to have any personal credible evidence to support knowledge or those statements expertise in this [ECF No.On the other hand, he Defendants proffer the declarations of Dave Wilson.*fn5 13-2], Correctional Services Administrator t [ECF No. 20-1], Facilities Management Specialist for BOP's Mid-Atlantic Regional formerly the Electronics Technician at USP Big Sandy from August 2007 to January Office, and John Noll , who was media surveillance system 1, 2010. Both declarants explain that t["Vicon"] used in high security level institutions, he disks at issue originated from the "digital including" -system "does not include redaction USP Big Sandy. Wilson Decl. ¶ 4; Noll Decl. ¶ 4 capabilities." Wilson . They also agree that the Decl. ¶ 6. According to Noll, [or editing] Decl. ¶ 5; Noll "with the specific goal of capturing incidents in areas where there is no direct staff the Vicon system is designed for security surveillance incidents." Noll Decl. ¶ 5. presence or visual observation and identifying individuals involved in those to edit images from such While acknowledging that "third party technology exists" and repairing "an array of electronic systems critical to the physical disks, Noll, who was responsible for installing, maintaining, Big Sandy at the time of the incident, Sandy "possesses or utilizes technology for redacting, id . ¶ 3, states that neither BOP nor USP Big security" of USP editing or changing the explain their significance. To the extent he is suggesting that the Defendants purchase equipment and five pages from what appears to be different BOP Program Statements. The Plaintiff does not captured disk."Id. ¶ 6 images whether on the Vicon system or when such images are copied to ; see Wilson Decl. ¶ 5 (stating same). attesting to the fact that he Defendants ha BOP "l ve provided two declarations from Noll and Wilson Decl. ¶ 6; Wilson Decl. ¶ 5. The Plaintiff has not proffered contrary evidence or acks the technical capability" to redact the disks. Noll withh evidence of agency bad faith the video disks containing.

Accordingly the Court finds that BOP properly entirety eld the, Supp.2d 15, 27 (D.D.C. 2008) under FOIA exemption 7(C) approving BOP's withholding of recorded telephone.*fn6 See images of more than 50 individuals Antonelli v. Fed. Bureau of Prisons in their , 591 F. conversations based on evidence that BOP lacked the technical capability to ( McMillian v. Fed reasonably segregate the recordings) (citing Swope, ; 2004)). 439 F. Supp. 2d at 5 , at *7-8 (D.D.C. July 23, -8 . Bureau of Prisons Maxwell v. O'Neill , 2004 WL 4953170 ("While responding to FOIA requests, an agency is not required to Cf. with , 2002 WL 31367754 (D.D.C., Sept. 12, 2002) . . . ."); Hudgins v. IRS . . . create creates only a right of access to records, not a right to personal services individualized records , 620 F. Supp. 19, 21 (D.D.C. 1985) ( U.S.C. § 552(a)(4)(B) ("a court shall accord substantial weight to an affidavit of an "); see also 5 "FOIA agency concerning the agency's determination as to technical feasibility under subsection (b)"). . . . necessary to "penetrate the veil of administrative secrecy and unconceal FBOP's The Plaintiff suggests that disclosure of "portions" of the video footage is action to the sight of public's close inspection." Pl.'s Decl. ¶ 12. help answer questions surrounding FBOP official activities, namely whether and/or He states that it "will how FBOP responded to an emergency situation in securing two different prison their actions as shown on the videos. In short, I simply want to k groups, and whether and/or how accurate FBOP reports and memorandums are to government is up to."

"Where the privacy concerns addressed by Exemption 7(C) are present, . . .Id. ¶ 13.now what my [the requester] must show that the public interest sought to be advanced is a significant one, an interest more specific than having sake [and that] . . . the information is likely to advance that interest." the information for its own Nat'l Archives plaintiff must assert "more than a bare suspicion" of official misconduct. and Records Admin. v. Favish , 541 U.S. 157, 172 (2004). In making such a showing, a He "must produce evidence that would warrant a belief by a reasonable person thatId . at 174.Otherwise, the alleged Government impropriety might have occurred." balancing requirement does not come into play. Id

See id withheld T , but he does not he Plaintiff's reasoning is difficult to follow . at 175. seek clear t information to expose government impropriety the Defs.' Mot. for Summ. J. and Reply to Defs.' Opp'n to Pl.'s Mot. for Summ. J. and Cross hat "Plaintiff at no time alleged any 'government wrongdoing'." and, in fact, has made it Pl.'s Opp'n to Motion to Dismiss Def claim of an overriding public interest, . BOP and for Summ. J. [ the Court finds that ECF No. 15] at 3. the Defendant Hence, absent any - s are entitled to material. summary judgment on its application of exemption 7(C) to the withheld For the foregoing reasons, the Court concludes that the Defendant.

III. CONCLUSION

The Defendants' dismiss and for summary judgment satisfied their disclosure obligations under the FOIA are therefore GRANTED, the laintiff's motion motion have s to for summary judgment DENIED as moot. A separate Order accompanies this Memorandum Opinion. is DENIED. In addition, the Plaintiff's motion for discovery.


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