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Peter Varley v. Federal Bureau of Prisons

September 30, 2012


The opinion of the court was delivered by: Robert L. Wilkins United States District Judge


In this Freedom of Information Act ("FOIA") case, 5 U.S.C. § 552, there are three pending motions *fn1 which revolve around a pro se prisoner's right to access to his own Sentence Monitoring Computation Data form, containing descriptive codes that "reference" his conviction. For the reasons set forth below, the Court finds that Plaintiff is entitled to obtain a hardcopy of the requested document.


Pursuant to FOIA, Plaintiff Peter Varley, who is incarcerated in an Elkton, Ohio federal facility, sought disclosure from the Defendant Federal Bureau of Prisons ("BOP") of his Sentence Monitoring Computation Data ("SMCD") form relating to an earlier 1991 conviction. In response to his request, the BOP sent Varley a hardcopy of the SMCD, but informed him that some information had been redacted because the document: contain[ed] third-party information and information intended for staff use only. Release of this information could reasonably be expected to endanger the life or physical safety of any person. The statutory basis for this withholding is [FOIA Exemption 7,] 5 U.S.C. § 552(b)(7)(F). *fn2

(Doc. 10-2, Def's Mot. for Summ. J. at Ex. 3, July 13, 2011 letter.)

The agency's position changed several times after litigation began, however. Despite the reference to third-party information in the disclosure letter, during the early stages of this litigation the BOP asserted that the redacted information consisted of "descriptive codes referencing Plaintiff's conviction." (See Doc. 10, Def.'s Summ. J. at 7.) Release of such information to Varley himself, contended the BOP, could "reasonably be expected" to endanger Varley's life if the nature of his conviction were known within the inmate population. (Id.)

During the course of this litigation, it became apparent that Varley also sought a copy of the Judgment entered in that earlier 1991 criminal action. According to Varley, he contacted the court where he was previously convicted and was informed that it no longer had a copy of the document. (Doc. 14, Pl.'s Summ. Resp. at Ex. A, Varley Decl. ¶ 9.) Although the agency originally provided Varley with a redacted Judgment for the same reasons as it redacted the SMCD, the BOP later changed course once again and eventually placed an unredacted copy of both the Judgment and the SMCD in his prison file. (Doc. 18, Def.'s Summ. J. Reply at 3, n.3; Doc. 18-2, Def.'s Summ. J. at Ex. 3, Shepas Decl. ¶ 2.) However, the BOP still refused to provide Varley with hardcopies of the documents, citing Exemption 7 as well as an internal policy prohibiting inmates from possessing certain documents. (See Doc. 18, Def.'s Summ. J. Reply at pp. 2-5) (citing Doc. 10-2, Def.'s Mot. for Summ. J. at Ex. 4, Federal Bureau of Prisons Program Statement 1351.05 at ECF pp. 14-15.) Despite this policy, an Elkton case manager eventually provided Varley with unredacted copies of two relevant documents. First, a case manager gave Varley an unredacted copy of the Judgment and Varley has notified the court that he wishes to dismiss his claims with respect to that document. (Doc. 20, Pl.'s Supplement ¶ 1.) Second, a case manager provided Varley with an unredacted copy of the SMCD for his current 2007 sentence. (Doc. 14, Pl.s' Summ. J. Resp. at p. 10; id. at Ex. A, Varley Decl. ¶ 10.)*fn3

Because the BOP has only allowed him to view, but not obtain a hardcopy of his unredacted SMCD for his 1991 conviction, Varley still seeks to proceed with his claim.


Summary Judgment under Federal Rule of Civil Procedure 56 is appropriate if the pleadings and evidence on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

"FOIA cases are typically and appropriately decided on motions for summary judgment." Lardner v. F.B.I., No. 03--cv--0874 (RCL), ___ F. Supp. 2d ___, 2012 WL 1109728, at *3 (D.D.C. 2012) (citations omitted). In order "[t]o successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with 'specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. United States Dep't of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)). The agency has the burden of "demonstrating that the documents requested are exempt from disclosure under the FOIA." Newport Aeronautical Sales v. Department of Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012) (citations and alterations omitted).


"[O]nce the records are produced in a FOIA case the substance of the controversy disappears and becomes moot since the disclosure the suit seeks has already been made." See Ctr. for Auto Safety v. EPA, 731 F.2d 16, 19 (D.C. Cir. 1984) (alterations, internal quotations and citations omitted.). Because the agency has allowed Varley access to the unredacted SMCD document, the BOP now argues it has fulfilled its obligations under FOIA and, therefore, the matter is moot. (Doc. 25, Def.'s Mot. to Dismiss at pp. 2-4.) The agency relies on an internal policy to withhold a hardcopy of the document from Varley.

BOP Program Statement 1351.05 prohibits prisoners "from obtaining or possessing photocopies of their PSRs, SORs,*fn4 or other equivalent non-U.S. Code sentence documents (e.g., D.C., state, foreign, military, etc.)" because these types of documents often "contain information regarding the ...

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