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Robert A. Zander v. Department of Justice and Federal Bureau of

June 20, 2012

ROBERT A. ZANDER, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF PRISONS, DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff Robert A. Zander was previously incarcerated in a Bureau of Prisons facility in Butler, North Carolina. In June 2010, Zander sent requests to the Department of Justice under the Freedom of Information Act ("FOIA") for information relating to his incarceration. In response to his requests, the Department of Justice and Bureau of Prisons ("defendants") released some records to Zander, but withheld other material. Zander has sued under FOIA to challenge the withholding of this material. He also alleges that the defendants have failed to adequately search for material responsive to his requests and that they are actively involved in a cover-up of criminal conduct involving the Bureau of Prisons.

Now before the Court are the parties' cross-motions for summary judgment. On September 15, 2011, the Court referred this matter to Magistrate Judge John M. Facciola for a report and recommendation. Magistrate Judge Facciola issued a Report and Recommendation recommending that each side's motion be granted in part and denied in part.*fn1 More specifically, Magistrate Judge Facciola recommended that a video be turned over to Zander with "redactions" (the blurring of certain images in the video), ordered additional documents to be turned over to him for in camera inspection, recommended that summary judgment be granted for defendants with respect to the adequacy of the search, and recommended that other portions of Zander's FOIA requests be denied for failure to exhaust administrative remedies. Defendants turned over the documents for in camera inspection, and, upon review, Magistrate Judge Facciola further recommended that the documents be released with certain redactions.

Both Zander and defendants have timely filed objections to the Magistrate Judge's Report and Recommendation. Defendants contend that both the video and the other documents fall under applicable FOIA exemptions and therefore should not be released to Zander. Zander argues that he is entitled to a Vaughn index with respect to the documents turned over for in camera review. Zander also contends that the defendants' search for documents was inadequate.

The Court accepts the Magistrate Judge's recommendation regarding the portions of Zander's FOIA requests that should be denied for failure to exhaust administrative remedies, as neither party has objected to this recommendation. For the reasons described below, the Court accepts the Magistrate Judge's recommendation with respect to the adequacy of the search and rejects Zander's request for a Vaughn index. The Court accepts with one modification the Magistrate Judge's recommendation regarding the documents submitted for in camera review. These documents will be ordered released as recommended with one additional redaction. Finally, the Court rejects the Magistrate Judge's recommendation with respect to disclosure of the video, finding that the video is properly withheld because its release could endanger BOP officials.

I. Background

The Court will not reiterate the full factual background of this case, which is described in the Report and Recommendation. See Report and Recommendation (Sept. 16, 2011) [Docket Entry 33] ("R&R") at 1-2. Zander made FOIA requests to the Department of Justice relating to his incarceration in a Bureau of Prisons facility. The Bureau of Prisons conducted a search and released certain documents to him, but claimed exemptions apply to other materials, barring their disclosure. See R&R at 4-6. Two types of materials remain at issue, having been the subject of the parties' timely objections to the Report and Recommendation.*fn2 First, the Bureau of Prisons has withheld a video of Zander being forcibly removed from his prison cell on March 17, 2008. R&R at 4, 6. Defendants argue that disclosure of the video would endanger the physical safety of BOP employees by revealing the equipment, tactics, and procedures used in removing inmates from cells. See Defs.' Objections to the Mag. J.'s Report and Recommendation (Sept. 30, 2011) [Docket Entry 34] ("Defs.' Objections I") at 3-8. Second, BOP withheld a group of documents either authored by or directed to defendants in a civil action being pursued by Zander in the Eastern District of North Carolina. R&R at 1, 4-6. Most of the documents are letters and signed forms from BOP employees to the Department of Justice, indicating that the employees have been sued by Zander and seek representation by the Department. See id. at 10-11. The remainder of the documents are two e-mails to and from BOP employees, BOP attorneys, and DOJ attorneys. See id. The Magistrate Judge reviewed all these documents in camera and then recommended that they be released with certain redactions. See id. at 11-14. Defendants argue that these documents should be withheld entirely under the attorney-client privilege or the attorney work product doctrine. See Defs.' Objections to the Mag. J.'s Recommended Redactions and Production of Documents Submitted for In Camera Review (Dec. 1, 2011) [Docket Entry 45] ("Defs.' Objections II") at 3-12. Zander also objects to defendants' failure to provide a Vaughn index for the material submitted for in camera review, as well as the overall adequacy of defendants' search. See Pl.'s Objections to Mag. J.'s Report and Recommendation (Nov. 28, 2011) [Docket Entry 42] ("Pl.'s Objections") at 2-8.

II. Legal Standard a. Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

b. The Freedom of Information Act

The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to release all records responsive to a proper request except those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A 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 also 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. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted); accord Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir. 2000). The district 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 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); accord Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).

c. Magistrate Judge Recommendations

Under Federal Rule of Civil Procedure 72(b), once a magistrate ...


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