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Pinson v. Department of Justice

United States District Court, District of Columbia

February 17, 2017

JEREMY PINSON Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants. Re No. Document, : 293

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS, United States District Judge

         Granting in Part and Denying in Part Defendants' Third Motion for Summary Judgment

         While in prison, pro se plaintiff Jeremy Pinson filed multiple Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests seeking records from various components of the U.S. Department of Justice (“DOJ”). In addition to releasing a number of records to Pinson, the DOJ asked Pinson to clarify some of her[1] records requests, told her that it could not find records responsive to some of her requests, and informed her that the some of the records she sought were exempt from disclosure by law. Pinson filed a complaint challenging some of these determinations and alleging that the DOJ improperly withheld records.

         In two prior opinions, this Court has granted in part and denied in part the DOJ's first and second requests for summary judgment as to the claims against the Bureau of Prisons (“BOP”). See Defs.' Mot. Summ. J. Respect BOP, ECF No. 147; Pinson v. U.S. Dep't of Justice, No. 12-1872, 2016 WL 29245, at *1 (D.D.C. Jan. 4, 2016), ECF No. 259; Defs.' 2d Mot. Summ. J. Respect BOP, ECF No. 265; Pinson v. U.S. Dep't of Justice, No. 12-1872, at 21, ECF No. 309.[2]Now before the Court is the DOJ's third motion for summary judgment as to eleven FOIA requests. See Defs.' 3d Mot. Summ. J. Respect BOP (“Defs.' 3d MSJ”), ECF No. 293. The DOJ argues that, for each request, the BOP conducted adequate searches reasonably calculated to identify responsive records and made proper withholdings pursuant to FOIA exemptions. See Defs.' Mem. P. & A., ECF No. 293-2. For the reasons set forth below, the Court grants in part and denies in part the DOJ's motion for partial summary judgment.

         I. FACTUAL BACKGROUND

         This Court has already explained the factual background in detail in its prior Memorandum Opinion. See Pinson, 2016 WL 29245, at *1-5, ECF No. 259 at 3-12. The Court assumes familiarity with its prior opinion and confines its discussion to the facts most relevant to the present motion.

         A. Request No. 2010-12533

         In August 2010, Pinson submitted a request to the BOP for (1) inmate handbooks from ADX Florence and (2) documents relating to the use of force against Pinson during November 2007 and any related Administrative Remedy Requests. See Corr. 2d Am. Compl. at 2, ECF No. 32; 3d Christenson Decl. ¶ 5 & Ex. A, ECF No. 293-3; Christenson Decl. ¶ 13 & Ex. 2, ECF No. 147-6. Pinson limited her request to two hours of search time and 100 pages of information. 3d Christenson Decl. ¶ 5. After the BOP was denied summary judgment by this Court, it reprocessed the request.[3] See 3d Christenson Decl. ¶ 4.

         The DOJ released 148 pages of responsive records in full and 32 pages in part, and informed Pinson that it withheld 15 pages in full. Id. ¶ 12 & Ex. B. Exemption 5 was used to withhold several sections of the After Action Review Reports, including the determination, recommendations, and results. See Vaughn Index at 1-7, ECF No. 293-3, Ex. C. Exemption 7(C) and 7(F) were used to withhold a variety of information, including sections of documents naming government employees and inmates. See Vaughn Index at 1-7. Exemption 7(F) was also used to withhold the sections of documents which contained “security information used by the BOP to manage inmates and ensure the safety of the institution and the times certain activities occurred” as well as “the BOP's monitoring and classification assignments for Pinson.” See, e.g., Vaughn Index at 3, 4, 7. Exemption 7(C) was used to withhold in full a document assessing a staff injury, and Exemptions 7(C) and 7(F) were used to withhold the daily assignment rosters for facility staff. See Vaughn Index at 3, 6-7. The DOJ now moves for summary judgment on the grounds that its search was adequate and that it produced to Pinson all responsive records after properly withholding some records.[4] See Defs.' 3d MSJ at 1-2; Vaughn Index at 1-7.

         B. Request No. 2011-843[5]

         In October 2010, Pinson submitted a request to the BOP seeking production of the (1) Rated Capacity Computation Form (EMS-36); (2) Site Safety and Control Plan (ICS Form 208); (3) Incident Roster and Activity Log (ICS Form 214); and (4) Incident Action Plan Safety Analysis (ICS Form 215a), all for FCI Talladega. See 3d Christenson Decl. ¶ 44 & Ex. D; Greene Decl. ¶ 7 & Ex. 1, ECF No. 147-5. A Rated Capacity Computation Form is completed by institutions “to determine and report their rated capacity and total capacity for overall strategic planning.” 3d Christenson Decl. ¶ 45. The various ICS forms are part of an incident management system adopted by the BOP that has not yet been activated at FCI Talladega. See Id. ¶¶ 47-48. Pinson limited her request to two hours of search time and 100 pages of information. See id. ¶ 44; Greene Decl. Ex. 1. By letter dated December 2, 2010, the BOP informed Pinson that no responsive documents had been located. See Greene Decl. ¶ 7 & Ex. 2. The DOJ's Office of Information Policy (“OIP”) closed Pinson's appeal of that determination due to pending litigation in this case, see Id. ¶ 7 & Ex. 4, but, in light of the previous litigation, the BOP later conducted another search “in additional areas” for responsive documents and located 4 pages that were released to Pinson in full, see Blanco Decl. ¶ 10 & Attach. 1, ECF No. 147-4. The Court denied the DOJ's first motion for summary judgment because the BOP failed to provide a detailed affidavit setting forth the search terms and type of search performed to locate records responsive to Request No. 2011-843. See Pinson, 2016 WL 29245, at *18; ECF No. 259 at 40-41.

         After the Court issued that opinion the BOP re-processed Request No. 2011-843. See 3d Christenson Decl. ¶ 4. The DOJ released 3 additional pages of responsive records in full and 1 page in part, id. ¶ 49 & Ex. E, and informed Pinson that it redacted a staff phone number under Exemptions 7(C) and 7(F), see Vaughn Index at 8. The DOJ now again moves for summary judgment, this time on the grounds that its search was adequate and that it produced all responsive records not properly withheld. See Defs.' 3d MSJ at 1-2; Vaughn Index at 8.

         C. Request No. 2011-1351[6]

         In 2011, Pinson submitted a request to the BOP for the production of “[a]ll After-Action Review Reports, pertaining to any inmate on inmate assault and/or homicide” occurring at FCI Talladega during 2009-2010. See 3d Christenson Decl. ¶ 53 & Ex. F; Greene Decl. Ex. 5. The BOP initially responded that it would withhold these records in full under Exemptions 6 and 7(C) because the requested records concerned other inmates. See Greene ¶ 8 & Ex. 6. After Pinson appealed this determination to the OIP, the BOP conducted a search for requested After Action Review Reports and located 97 total pages of responsive records. See Id. ¶ 8 & Ex. 7. The BOP ultimately released 58 pages in full and 39 pages in part, withholding the names and register numbers of other inmates pursuant to Exemptions 6 and 7(C). See Id. ¶ 8; id. Ex. 8; id. Ex. 9, at 1-2. The Court denied the DOJ's first motion for summary judgment because the BOP failed to provide a detailed affidavit setting forth the search terms and type of search performed to locate records responsive to Request No. 2011-1351. See Pinson, 2016 WL 29245, at *18; ECF No. 259 at 40-41.

         After the Court issued that opinion the BOP re-processed Request No. 2011-1351. See 3d Christenson Decl. ¶ 4. By letter dated May 25, 2016, the DOJ released 9 pages of responsive records in part. Id. ¶ 56 & Ex. G. The BOP withheld the determinations and recommendations of the After Action Review Reports under Exemption 5. Vaughn Index at 10-11. The BOP redacted the names of other inmates, and file numbers containing those names, under Exemption 7(C). Vaughn Index at 9-11. Exemption 7(F) was also applied to withhold “the correctional management techniques” the BOP used on other inmates, including their classification and monitoring assignments. Vaughn Index at 9-11. The DOJ now again moves for summary judgment, this time on the grounds that its search was adequate and that it produced to Pinson all responsive records to which she is entitled after properly withholding some records.[7] See Defs.' 3d MSJ at 1-2; Vaughn Index at 9-11.

         D. Request No. 2011-1886[8]

         In 2010, Pinson submitted a request to the BOP for the production of documents associated with her placement at ADX Florence. See 3d Christenson Decl. ¶ 64 & Ex. H; Greene Decl. ¶ 9 & Ex. 10. The staff at FCI Talladega, where Pinson had been housed before she was transferred to ADX Florence, searched its facility for responsive documents. See Greene Decl. ¶ 9 & Ex. 10. After this request was twice remanded by OIP for reprocessing, the BOP identified 537 responsive pages, released 333 pages in full and 162 pages in part, and withheld 42 pages in full pursuant to Exemptions 6 and 7(C). See Id. ¶¶ 10-12 & Ex. 17. The Court denied the DOJ's first motion for summary judgment because the BOP failed to provide a detailed affidavit setting forth the search terms and type of search performed. See Pinson, 2016 WL 29245, at *18; ECF No. 259 at 40-41.

         After the Court issued that opinion the BOP re-processed Request No. 2011-1886. See 3d Christenson Decl. ¶ 4. By letter dated June 2, 2016, the DOJ released 52 additional pages of responsive records in full and 48 pages in part, and informed Pinson that it redacted or withheld records. Id. ¶ 70 & Ex. I. The BOP withheld “staff member[s'] recommendation[s] regarding the future management of Pinson” under Exemption 5. Vaughn Index at 16, 17, 20. Exemption 7(C) was applied to redact the names of third-party individuals and inmates and contact information for staff members. Vaughn Index at 12-20. Exemption 7(F) was applied to withhold sections of records containing “information regarding gang activity and informant activity within the BOP, ” “a staff member's response to questions posed by Pinson regarding [her] ADX referral, ” “the BOP's monitoring and classification assignments for Pinson, ” “a statement made by a third-party individual to a law enforcement officer, ” “discussion of an inmate's cooperation with law enforcement officers, ” “the type of investigation being conducted, ” and “a factual summary of the investigation and conclusions of the investigator.” Vaughn Index at 12-20. Exemption 7(F) was also used to withhold in full a letter containing “gang activity and informant activity within the BOP” and “information used by the Bureau to separate Pinson from other inmates, ” as well as Pinson's presentence report. Vaughn Index at 12-20. The DOJ now again moves for summary judgment, this time on the grounds that its search was adequate and that it produced to Pinson all responsive records to which she is entitled.[9]See Defs.' 3d MSJ at 1-2; Vaughn Index at 12-20.

         E. Request No. 2011-2366[10]

         In December 2010, Pinson submitted a request to the BOP seeking copies of “any final settlement resulting in a [p]laintiff receiving monetary compensation arising from litigation against officers or employees of the [BOP] in Lewisburg, PA; Oakdale, LA; Talladega, AL, from 2006-[2010].” 3d Christenson Decl. ¶ 95 & Ex. J; Greene Decl. ¶ 13 & Ex. 18. Pinson limited her request to two hours of search time and 100 pages of information. See 3d Christenson Decl. ¶ 95 & Ex. J; Greene Decl. Ex. 18. After an outstanding fee for a prior FOIA request was resolved, the BOP issued a letter to Pinson on December 10, 2013, informing her that no responsive documents were located. See Greene Decl. ¶ 13 & Ex. 20. The Court denied the DOJ's first motion for summary judgment because the BOP failed to provide a detailed affidavit setting forth the search terms and type of search performed to locate records responsive to Request No. 2011-2366. See Pinson, 2016 WL 29245, at *18; ECF No. 259 at 40-41.

         After the Court issued that opinion the BOP re-processed Request No. 2011-2366. See 3d Christenson Decl. ¶ 4. The BOP located a responsive “Stipulation for Compromise and Settlement” and a responsive letter about an administrative tort claim. Vaughn Index at 21. The BOP released 2 pages of records in full and 4 pages in part. 3d Christenson Decl. ¶ 101 & Ex. K. The BOP withheld the names and addresses of other inmates and other involved individuals under Exemption 6 and Exemption 7(C). Vaughn Index at 21. Exemption 6 and Exemption 7(C) were also used to withhold the case numbers and administrative tort claim number. Vaughn Index at 21. The DOJ now again moves for summary judgment, this time on the grounds that its search was adequate and that it produced to Pinson all responsive records to which she is entitled.[11]See Defs.' 3d MSJ at 1-2; Vaughn Index at 21.

         F. Request No. 2011-7156

         In April 2011, Pinson submitted a request to the BOP seeking (1) “All ADX Florence placement decisions in which Assistant Director found placement not warranted since Jan. 1, 2009 with inmate names redacted, ” (2) “emails between Central Office staff regarding [her] ADX referral, ” (3) “emails between SERO Regional staff regarding [her] ADX referral, ” (4) “List of psychology treatment programs at ADX Florence, ” and (5) “All DHO Reports by FCI Talladega DHO created since 2008 which find a BOP employee statement or memorandum to not be credible.” See 3d Christenson Decl. ¶ 105 & Ex. L; Christenson Decl. ¶ 24 & Ex. 6, ECF No. 147-6. She limited her request to no more than two hours search time and no more than 100 pages. See 3d Christenson Decl. ¶ 105 & Ex. L; 3d Christenson Decl. Ex. 6. After this Court denied the BOP summary judgment, [12] the BOP reprocessed Request No. 2011-7156. See 3d Christenson Decl. ¶ 4. The DOJ released 2 pages of responsive records in full and 7 pages in part, id. ¶ 117 & Ex. M, and informed Pinson that it redacted staff and inmate names, identifying information, and telephone numbers under Exemption 7(C), Vaughn Index at 22. Exemption 7(F) was also used to withhold the “BOP's monitoring and classification assignments for third party inmates.” Vaughn Index at 22.

         As to Pinson's request for emails, the DOJ initially advised Pinson that technical difficulties prevented it from searching its email archives. Id. ¶ 117 & Ex. M. The DOJ later stated that the search functionality was restored in October of 2016 and that an email search had been performed. Status Report Regarding Bureau of Prisons Email System (Email Status Report), ECF No. 353. The DOJ, however, also stated that the results of the email search were being “reviewed for applicable exemptions, ” and Pinson had therefore not yet received any results. Email Status Report at 1. The DOJ now again moves for summary judgment as to all records except for emails, [13] on the grounds that its search was adequate and that it produced all records not properly withheld.[14] See Defs.' 3d MSJ at 1-2; Vaughn Index at 22.

         G. Request No. 2011-7619

         In May 2011, Pinson submitted a request to the BOP seeking (1) “All Report of Incident (Form 583) regarding homicides within the Bureau of Prisons since 2008, ” (2) all documents “related to Report of Incident Tracking #BMP 332.07, ” (3) “Video recording ECN BMP-07599-A, ” (4) “All documents mentioning, involving, or relevant to Incident Report Nos. 1639219, 1639220, 2033413, ” (5) “Anything related to the removal of televisions from ADX Special Housing Unit at ADX Florence, ” and (6) “Anything related to policies, procedures or guidelines for issuance of a clock radio to SHU inmates at ADX Florence.” See 3d Christenson Decl. ¶ 126 & Ex. N; Christenson Decl. ¶ 63 & Ex. 14. She limited her request to no more than two hours search time and no more than 100 pages. See 3d Christenson Decl. ¶ 126 & Ex. N; Christenson Decl. Ex. 14. After this Court denied the BOP summary judgment in its previous opinion[15] the BOP reprocessed the request. See 3d Christenson Decl. ¶ 4. The DOJ released 47 pages of responsive records in full and 56 pages in part, and informed Pinson that it withheld 5 pages in full. Id. ¶ 131 & Ex. O. Under Exemption 7(C), the BOP withheld the names and personal information of other inmates. Vaughn Index at 23-24. Exemption 7(F) was used to withhold information about the types and causes of incidents collected in incident reports, as well as “the BOP's monitoring and classification assignments of inmates.” Vaughn Index at 23-24. At one time additional records responsive to Request No. 2011-7619 may have existed, but these records were destroyed according to BOP policy during the two years Pinson failed to satisfy her delinquent fees. See Defs.' Reply at 4, ECF No. 321; see also Pinson, 2016 WL 29245, at *2; ECF No. 259 at 4-5. The DOJ now again moves for summary judgment, this time on the grounds that its search was adequate and that it produced to Pinson all responsive records to which she is entitled after properly withholding records.[16] See Defs.' 3d MSJ at 1-2; Vaughn Index at 23-24.

         H. Request No. 2012-40

         In September 2011, Pinson submitted a request to the BOP seeking “production of all emails sent by the North Central Regional Director and Warden of the U.S. Penitentiary Administrative Maximum during 2011.” See 3d Christenson Decl. ¶ 140 & Ex. P; Christenson Decl. ¶ 115 & Ex. 22. She limited her request to no more than two hours search time and no more than 100 pages, and she also asked for a cost estimate of any pages beyond the 100 pages she requested. See 3d Christenson Decl. ¶ 140 & Ex. P; Christenson Decl. Ex. 22. The BOP has reprocessed this request, see 3d Christenson Decl. ¶ 4, after this Court's previous denial of summary judgment.[17] By letter dated May 16, 2016, the DOJ advised Pinson that technical difficulties prevented the BOP from searching its email archives. Id. ¶¶ 141-42 & Ex. Q. The search capacity was repaired in October of 2016 and the search has now been executed. Email Status Report, ECF No. 353. However, as of January of 2017, Pinson had not yet received any results because the records were still being reviewed for potential FOIA exemptions. Id. The DOJ states in its reply that it did not seek summary judgment as to this request while the search functionality was inoperable. See Defs.' Reply at 1. Because no email results have yet been provided to Pinson, summary judgment remains premature.

         I. Request No. 2012-39

         In September 2011, Pinson submitted a request to the BOP seeking (1) “Report of Incident and After-Action Review Report written, produced or generated in connection with the 2008 U.S. Penitentiary High riot at Florence, CO, ” and (2) “All emails, memorandums by ADX Florence Executive Staff and/or Department Supervisors written or generated in connection with the 2011 Accreditation review by the ACA and/or making reference or mentioning such review.” See 3d Christenson Decl. ¶ 143 & Ex. R; Christenson Decl. ¶ 119 & Ex. 24. She limited her request to no more than two hours search time and no more than 100 pages. See 3d Christenson Decl. ¶ 143 & Ex. R; Christenson Decl. Ex. 24. The BOP has reprocessed this request, see 3d Christenson Decl. ¶ 4, after this Court denied the BOP summary judgment in its previous opinion.[18] The DOJ released 1 page of responsive records in full and 11 pages in part, and informed Pinson that it withheld 4 pages in full. Id. ¶ 147 & Ex. S. The BOP applied Exemption 5 to withhold “an email discussion between BOP staff regarding proposed steps to take in anticipation of the ACA re-accreditation” and “the preliminary cause of death of deceased inmates . . . [and] the estimated cost of the damage associated with incident.” Vaughn Index at 25-26. The BOP also withheld the conclusion and recommendations from an After Action Review Report under Exemption 5. Vaughn Index at 26. The BOP withheld the names and personal information of individuals including inmates and third-parties under Exemption 7(C). Vaughn Index at 25-26. The BOP also applied exemption 7(E) to withhold “the techniques law enforcement officers used to contain and control a critical incident.” Vaughn Index at 26. The BOP also used exemption 7(F) to withhold “classification and monitoring assignments for third party inmates.” Vaughn Index at 26.

         The response to this request was also affected by the malfunction in the BOP's email search tool. 3d Christenson Decl. ¶ 147 & Ex. S. That tool has since been repaired and a search executed, but the results of that search are still being examined for applicable FOIA exemptions and have thus not been released to Pinson. Email Status Report, ECF No. 353. Prior to repairing the email search tool, the DOJ moved for summary judgment except as to any potentially responsive emails, [19] on the grounds that its search was adequate and that it produced all records other than those properly withheld.[20] See Defs.' 3d MSJ at 1-2; Vaughn Index at 25-26. Because no email results have yet been provided to Pinson, summary judgment remains premature.

         J. Request No. 2012-975

         In October 2011, Pinson submitted a request to the BOP seeking (1) the “2010-2011 U.S. Penitentiary Admin. Max. - Florence, CO Administrative Remedy Index, ” and (2) “all 2010-2011 Form 583 Report of Incident[s] from ADX Florence reporting Inmate on Inmate assaults to the NCRO.” See 3d Christenson Decl. ¶ 162 & Ex. T; Christenson Decl. ¶ 123 & Ex. 26. The BOP has reprocessed this request, see 3d Christenson Decl. ¶ 4, after this Court denied the BOP summary judgment in its previous opinion.[21] By letter dated May 16, 2016, the DOJ released 171 pages of responsive records in full and 43 pages in part, and informed Pinson that it redacted or withheld records. Id. ¶ 166 & Ex. U. The BOP applied Exemption 6 to withhold the names of third-party individuals from the administrative remedy index. Vaughn Index at 27. Under Exemption 7(C), the BOP redacted the names and personal information of third-party individuals and inmates. Vaughn Index at 27-34. Under Exemption 7(F), the BOP withheld “the BOP's monitoring and classification assignments for third-party inmates” and “information regarding an assault on an inmate and attachments [to the form].” Vaughn Index at 27-34. The DOJ now again moves for summary judgment on the grounds that its search was adequate and that it produced all responsive records except those properly withheld.[22] See Defs.' 3d MSJ at 1-2; Vaughn Index at 27-34.

         K. Request No. 2013-1684

         In November 2011, Pinson submitted a request to the BOP seeking the “production of all information produced on or after February 25, 2011 which is located in the Central File, SIS File, and any other file maintained on Jeremy Pinson.” See 3d Christenson Decl. ¶ 176 & Ex. V; Christenson Decl. ¶ 132 & Ex. 30. The BOP has reprocessed this request, see 3d Christenson Decl. ¶ 4, after this Court denied the BOP summary judgment in its previous opinion.[23] The reprocessing resulted in an estimated 8, 655 pages of responsive records at an anticipated fee of $427.75. See 3d Christenson Decl. ¶¶ 4, 183-84. By letter dated May 16, 2016, the DOJ advised Pinson that it had paused its processing until she provided advanced payment, and offered her the option of either paying the expected fee, modifying her request to limit the responsive materials, or receiving only the first 100 pages for free. Id. ¶ 184 & Ex. W. By letter dated May 24, 2016, Pinson indicated she no longer sought documents from her Central File on or before October 1, 2014, or her SIS file between February 25, 2011, and October 2013. Id. ¶ 185 & Ex. X. As of June 10, 2016, the BOP was waiting for new page estimates to determine if an amended fee letter needed to be sent to Pinson or if the records could be processed. Id. ¶ 186. Despite not having responded to the request, the DOJ's briefing suggests that it moves for summary judgment on this request. See Defs.' 3d MSJ at 1-2.

         II. LEGAL STANDARD

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007)). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the nonmovant. See Scott v. Harris, 550 U.S. 372, 380 (2007).

         The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the nonmovant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence, ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the nonmovant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

         When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C. § 552(a)(4)(B); Judicial Watch v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C. 2009). To prevail on a motion for summary judgment, “the defending agency must prove 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.” Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a defendant may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for Ethics & Responsibility in Wash. v. Dep't of Labor, 478 F.Supp.2d 77, 80 (D.D.C. 2007) (“[T]he Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations 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.'” (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing court should “respect the expertise of an agency” and not “overstep the proper limits of the judicial role in FOIA review.” Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979).

         Even if the nonmovant does not respond to the motion for summary judgment, the court cannot grant the motion for the reason that it was conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded' for want of opposition. ‘The burden is always on the movant to demonstrate why summary judgment is warranted. The nonmoving party's failure to oppose summary judgment does not shift that burden.' The District Court ‘must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.'” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring) and citing Fed.R.Civ.P. 56(e)(3))).

         III. ANALYSIS

         A. Adequacy of the BOP's Search

         The DOJ asserts that its searches in response to all eleven requests were adequate. See Defs.' 3d MSJ at 1-2. Even where Pinson does not contest the adequacy of a search, the Court will nonetheless independently determine whether the record and undisputed material facts justify granting summary judgment. Under FOIA, an adequate search is one that is “reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The agency need not to search “every record system” for the requested documents, but it “must conduct a good faith, reasonable search of those systems of records likely to possess the requested records.” Marino v. Dep't of Justice, 993 F.Supp.2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). When an agency seeks summary judgment on the basis that it conducted an adequate search, it must provide a “reasonably detailed” affidavit describing the scope of that search. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d at 68). It is not enough, however, for the affidavit to state in conclusory fashion that the agency “conducted a review of [the files] which would contain information that [the plaintiff] requested” and did not find anything responsive to the request. Weisberg, 627 F.2d at 370. On the other hand, once the agency has provided a reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116 (citation omitted).

         Here, the DOJ argues that its searches for records in response to each request were adequate. See Defs.' 3d MSJ at 1-2. The Court agrees that the searches conducted with respect to seven of these requests were wholly adequate. However, the Court finds that the BOP has yet to complete its responses to Pinson for Request Nos. 2011-7156, 2012-40, 2012-39, and 2013-1684.

         1. Request Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, and 2012-975.

         The Court agrees with the DOJ that its searches in response to Request Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, and 2012-975 were adequate, which Pinson does not contest. See Defs.' 3d MSJ at 1-2; Pl.'s Resp., ECF No. 314. The DOJ provided a declaration from the BOP showing an organized and thorough search for these six requests. See generally 3d Christenson Decl. Specifically, the declaration and the DOJ's briefing canvass each request in detail, explain to whom the request was sent, the specific databases searched, and, where appropriate, identify the specific search terms used to locate the documents. See Defs.' Mem. P. & A. at 4-21; 3d Christenson Decl. ¶¶ 2-13, 44-50, 53-57, 64-71, 95-101, 162-167. The declaration's descriptions suffice to provide a “reasonably detailed” account of the scope of the BOP's search for each of these six requests. See Hidalgo v. FBI, No. 10-5219, 2010 WL 5110399, at *1 (D.C. Cir. Dec. 15, 2010) (“[S]ubstantial weight traditionally [is] accorded [to] agency affidavits in FOIA ‘adequacy of search' cases.” (citing Chambers v. U.S. Dep't of the Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009))).

         For example, with respect to Request No. 2011-2366, which sought copies of “any final settlement resulting in a [p]laintiff receiving monetary compensation arising from litigation against officers or employees of the [BOP] in Lewisburg, PA; Oakdale, LA; Talladega, AL, from 2006-[2010], ” Ms. Christenson attests that both the Southeast Regional Office of the BOP and the Supervisory Attorneys assigned to the BOP facilities in those cities searched for responsive records. See 3d Christenson Decl. ¶¶ 95, 98-99. Ms. Christenson explains that the BOP maintains these types of records in two different databases created by the BOP's Office of General Counsel, which track civil litigation handled by BOP attorneys and administrative tort claims received by a BOP legal office. See Id. ¶¶ 96-97. Ms. Christenson elaborates on the databases' search capabilities, stating that the databases “are searchable by incident institution, date, and case disposition.” Id. at ¶ 98. She asserts that the staff ran a search for the settlement cases based on the criteria provided by Pinson, and the search identified responsive cases, the file was opened within the database to retrieve any documents showing the final settlement paid. Id. In addition, Ms. Christenson explains that the supervisory attorneys and legal staff in the individual legal office in each of the three cities also reviewed their case tracking logs for any cases identified as settled that fit the criteria of Pinson's request and hand searched the legal file for responsive settlement documents of any case identified. See Id. ¶ 99. Ultimately, Ms. Christenson states that “[s]ix pages of responsive documents had been located.” Id. ¶ 100. Ms. Christenson provides the same type of reasonably detailed information describing the BOP's searches in response to Request Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, and 2012-975. See Id. ¶¶ 2-13, 44-50, 53-57, 64-71, 162-167; Vaughn Index, ECF No. 293-3, Ex. C. The Court thus concludes that the BOP conducted a good faith, reasonable search in response to these requests. Accordingly, the Court grants the DOJ's motion for summary judgment with respect to the adequacy of the BOP's search for Request Nos. 2010-12533, 2011-843, 2011-1351, 2011-1886, 2011-2366, and 2012-975.

         2. Request No. 2011-7619

         Pinson does contest the adequacy of the DOJ's search in response to Request No. 2011-7619, arguing that the BOP improperly destroyed responsive records. Pl.'s Resp. at 2. This complaint centers on the request for documents related to Report of Incident #BMP 332.07 and video recording ECN BMP-07599-A. The BOP informed Pinson that no records could be found related to either topic because its evidence control log indicated that “the evidence and all information regarding the evidence had been destroyed, ” pursuant to “routine evidence retention policies.” 3d Christenson Decl. ¶ 127. The BOP explained that the records were deleted during the two year period when the request was closed because Pinson owed fees for a separate request. Def.'s Reply at 4, ECF No. 321; see also Memorandum Opinion at 33-35, ECF No. 259. The Court agrees with the DOJ that the search was adequate because the records were destroyed prior to Pinson paying her overdue fees and in accordance with the BOP's established record retention policies.

         It is well established that FOIA does not require an agency to retain records, but only to provide access to records that have been retained. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 151-52 (1980). It is thus clear that an agency that destroys documents prior to receiving a FOIA request covering those documents has committed no error. See Id. at 155 n.9 (“[A] ‘withholding' must here be gauged by the time at which the request is made since there is no FOIA obligation to retain records prior to that request.”). In this case, the documents were destroyed not before the initial FOIA request, but while that initial request was closed due to Pinson's unpaid fees. Because the request was closed when the documents were destroyed-and may never have been reopened, if Pinson's bills had languished unpaid-this situation is equivalent to the situations in which records were destroyed before the request was filed. See Flowers v. IRS, 307 F.Supp.2d 60, 72 (D.D.C. 2004) (approving the agency's conduct when “the federal document-retention machinery lumbered forward on schedule, and the plaintiff's file was destroyed” during a period after the plaintiff filed a FOIA request but before the plaintiff corrected procedural errors with that request). The alternative would bind agencies to indefinitely maintain files potentially related to any procedurally defective FOIA requests, on the possibility that a request might someday ripen into a perfected FOIA request.[24]

         Pinson does not otherwise object to the adequacy of the search for Request No. 2011-7619, and the BOP provided a detailed affidavit sufficiently describing its methods, 3d Christenson Decl. ¶¶ 126-132; Vaughn Index, ECF No. 293-3, Ex. C. The Court therefore finds that there is no genuine issue of material fact as to the adequacy of the BOP's search in response to Request No. 2011-7619 and grants the DOJ's motion for summary judgment with respect to adequacy.

         3. Request Nos. 2011-7156, 2012-40, and 2012-39

         Pinson disputes the adequacy of the BOP's search in response to Request Nos. 2011-7156, 2012-40, and 2012-39, Pl.'s Resp. at 1, all of which involved searches of emails. The BOP was initially prevented from searching its email archives by technical problems. See 3d Christenson Decl. ¶¶ 117, 141-42, 145, 147 (“[The] email archive system is currently unavailable due to technical issues, and it is not clear when it will be restored. [The BOP] will request a search of the email archive system for this portion of Pinson's request when it is restored.”). In October of 2016, the search tool was fixed, and the BOP subsequently performed searches for records responsive to Request Nos. 2011-7156, 2012-40, and 2012-39. Email Status Report, ECF No. 353. Although the searches have been performed, Pinson has not yet received any response because the search results are still being evaluated for potential FOIA exemptions. Id. The DOJ clarified in its reply briefing-prior to informing the Court that the search capability was repaired-that it did not seek summary judgment as to the emails. See Defs.' Reply at 1. Because Pinson has not yet received any response to which she may be entitled, summary judgment is still not appropriate because the agency has not yet fully discharged its FOIA obligations. See Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). The Court thus agrees with Pinson and the DOJ that summary judgment is not appropriate as to the email portions of Request Nos. 2011-7156[25] and 2012-39. Because all of the records sought under Request No. 2012-40 are emails, summary judgment is thus not appropriate as to any portion of Request No. 2012-40. The BOP should file a supplemental motion for summary judgment after the results have been produced to Pinson.

         The DOJ does move for summary judgment as to the non-email portions of Request Nos. 2011-7156 and 2012-39 on the grounds that its search was adequate and that all records withheld were properly withheld. See Defs.' 3d MSJ at 1-2; Defs.' Reply at 1. The DOJ submits affidavits sufficiently describing its search terms and methods for the non-email portions of Request Nos. 2011-7156 and 2012-39. 3d Christenson Decl. ¶¶ 105-118, 143-148; Vaughn Index. Pinson does not object to the adequacy of these searches, and this Court concludes that there is no genuine issue of material fact. The ...


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