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Pinson v. United States Department of Justice

United States District Court, District of Columbia

March 29, 2017

JEREMY PINSON Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants. Re Document No. 300

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS, United States District Judge

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

         Plaintiff Jeremy Pinson, a federal inmate proceeding pro se, filed multiple Freedom of Information Act (“FOIA”) requests seeking records from various components of the U.S. Department of Justice (“DOJ”). In addition to releasing a number of records, 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 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 a prior opinion the Court granted in part and denied in part the DOJ's first request for summary judgment as to the claims against the Federal Bureau of Investigation (“FBI”). See Defs.' Mot. Partial Summ. J., ECF No. 137; Memorandum Opinion (“Mem. Op.”), ECF No. 276; Pinson v. U.S. Dep't of Justice, 177 F.Supp.3d 56 (D.D.C. 2016).

         Now before the Court is the DOJ's second motion for summary judgment as to the remaining twelve FOIA requests.[2] See Defs.' 2d Mot. Partial Summ. J. Respect FBI (“Defs.' Mot. Partial Summ. J.”), ECF No. 300. The DOJ argues that the FBI conducted an adequate search and made proper withholdings pursuant to FOIA exemptions for each of Pinson's requests. See Defs.' Mem. P. & A., ECF No. 300-2. For the reasons set forth below, the Court grants in part and denies in part the DOJ's second motion for summary judgment as to the FBI.

         I. FACTUAL BACKGROUND

         A. FOIA Requests 1199153, 1217900, and 1217901

         In her response to the DOJ's most recent motion for summary judgment, Pinson stipulated that summary judgment in favor of the DOJ was appropriate as to FOIA Requests 1199153, 1217900, and 1217901. Pl.'s Resp. Opp'n FBI Mot. Summ. J (“Pl.'s Opp'n”) at 1, ECF No. 313. The Court therefore grants the DOJ summary judgment with respect to its responses to FOIA Requests Nos. 1199153, 1217900, and 1217901.

         B. Request No. 1178465

         On November 21, 2011, Pinson submitted a request to the FBI for records “produced as a result of the visit by [two] FBI Agents on Nov. 1, 2011 to the U.S. Penitentiary Max in Florence, Colorado who spoke to me and took notes of my answers to their questions.” 2d Hardy Decl. Ex. D, ECF No. 137-3. The FBI acknowledged the request and assigned the request number 1178465. 2d Hardy Decl. ¶ 11 & Ex. E. The FBI released three pages with redactions pursuant to the Privacy Act Exemption (j)(2) and FOIA Exemptions 6 and 7(C). 2d Hardy Decl. ¶ 12 & Ex. F.

         The Court previously denied the DOJ summary judgment on this document because the DOJ could not establish that Pinson had received the FBI's response. See Mem. Op. at 30-31. Pursuant to the Court's order, the DOJ re-sent the original release letter to Pinson on April 29, 2016. Order, ECF No. 275 at 2; 3d Hardy Decl. ¶ 5 & Ex. B, ECF No. 302. 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 under FOIA Exemption 7(C).[3] See Defs.' Mot. Partial Summ. J. at 2.

         C. Request No. 1199194

         In August 2012, Pinson submitted a request to the FBI for records “regarding investigations of the California Aryan Brotherhood.” See 2d Hardy Decl. Ex. Q; Corr. 2d Am. Compl. at 6, ECF No. 32. As with other requests, she requested “no more than two hours search time and 100 pages of information in this request.” 2d Hardy Decl. ¶ 28. The FBI acknowledged receipt of the request and assigned the request number 1199194. 2d Hardy Decl. ¶ 29 & Ex. R. The FBI then informed Pinson that the information requested on the California Aryan Brotherhood could be accessed free of charge online at the FBI's Vault.[4] 2d Hardy Decl. ¶ 30 & Ex. S.

         The Court previously denied summary judgment because the DOJ could not establish that Pinson had received a response from the FBI concerning this request. See Mem. Op. at 30-31. The Court's previous opinion did not contemplate that the FBI had attempted to transmit any records to Pinson.

         The DOJ sent Pinson two letters referring to Request No. 1199194 subsequent to the Court's prior opinion. 3d Hardy Decl. Ex. B & C. The DOJ's most recent declaration states first that “[t]he responsive records pertaining to the California Aryan Brotherhood are located on the FBI's Online Webpage, the Vault.” 3d Hardy Decl. ¶ 7. The declaration continues: “[t]he FBI re-reviewed the publically available documents and determined that additional segregable information could be released; therefore, it reprocessed the records and released it to plaintiff on July 22, 2016.” 3d Hardy Decl. ¶ 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 pursuant to FOIA Exemptions 3 and 7(C).[5] See Defs.' Mot. Partial Summ. J. at 2.

         D. Request No. 1199202

         In August 2012, Pinson submitted a request to the FBI for records “regarding investigations of the California Mexican Mafia, ” to which the FBI assigned the request number 1199202. See 2d Hardy Decl. ¶¶ 24, 25 & Exs. N, O; Corr. 2d Am. Compl. at 6. As with other requests, she requested “no more than two hours search time and 100 pages of information in this request.” 2d Hardy Decl. ¶ 24. By two separate letters dated September 27, 2012, the FBI both acknowledged receipt of the request and advised Pinson that the information requested on the California Mexican Mafia could be accessed free of charge online at the FBI's Vault, the FBI's electronic reading room. 2d Hardy Decl. ¶¶ 25, 26 & Exs. O, P.

         The Court previously denied summary judgment because the DOJ could not establish that Pinson had received a response from the FBI on this request. See Mem. Op. at 30-31. Pursuant to the Court's order, the DOJ re-sent the correspondence related to this request to Pinson on April 29, 2016. Order at 2; 3d Hardy Decl. ¶ 8 & Ex. B. The DOJ now moves for summary judgment on the grounds that its search was adequate. See Defs.' Mot. Partial Summ. J. at 2.

         E. Request No. 1229060

         On September 11, 2013, Pinson submitted a request to the FBI for records “related to a 9/10/13 FBI interview of [Pinson] at ADX Florence.” 2d Hardy Decl. ¶ 124 & Ex. ZZZZ. After acknowledging receipt of the request and assigning the request number 1229060, the FBI released two pages to Pinson and withheld information pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 6, 7(A), 7(C), 7(D), and 7(F). 2d Hardy Decl. ¶¶ 125, 126 & Exs. AAAAA, BBBBB.

         The Court previously denied summary judgment because the DOJ could not establish that Pinson had received a response from the FBI concerning this request. Mem. Op. at 30 n.16. Pursuant to the Court's order, the DOJ re-sent the original release letter to Pinson on April 29, 2016. Order, ECF No. 275 at 2; 3d Hardy Decl. ¶ 11 & Ex. B. 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 under FOIA Exemptions 6 and 7. See Defs.' Mot. Partial Summ. J. at 2.

         F. Request for Documents Relating to the Californian Mexican Mafia and Aryan Brotherhood; FD-302s of USP Victorville; and Letters to Various Wardens

         In response to three of Pinson's requests, the FBI concluded that the requests were not specific enough to permit it to search its records. The affected requests were (1) Pinson's request for all documents “concerning the activities of the California Mexican Mafia and Aryan brotherhood gangs within federal prisons generated since 2007, ” 2d Hardy Decl. ¶ 150 & Ex. KKKKK, [6] (2) Pinson's request for “all information, specifically Form-302[s], produced during investigation of inmate homicides at the U.S. Penitentiary in Victorville, California between 2004 and 2012, ” 2d Hardy Decl. ¶129 & Ex. CCCCC; Corr. 2d Am. Compl. at 7; and (3) Pinson's request for “production of all letters written by [the FBI] in California, Colorado to the Wardens of Federal Correctional Complex or institutions in Florence, CO or/and Victorville, CA [and/or Coleman] for any reason from 2008 to the present, ” 2d Hardy Decl. ¶ 147 & Ex. IIIII.

         The FBI asserted that none of these requests were formulated with sufficient detail to permit a search of its records. 2d Hardy Decl. ¶¶ 150-51; 2d Hardy Decl. ¶¶ 130-31 & Ex. LLLLL; 2d Hardy Decl. ¶ 148 & Ex. JJJJJ. The DOJ was previously denied summary judgment as to each of these three requests because it could not establish that Pinson had received any of the three responses from the FBI. See Mem. Op. at 31-32. In accordance with the Court's order, the DOJ re-sent the original correspondence related to these requests to Pinson on April 29, 2016. See 3d Hardy Decl. ¶¶ 12, 13, 14 & Exs. B, D. These letters each stated that the requests did “not contain enough descriptive information to permit a search, ” and asked Pinson to “please provide us with more specific information.” See 3d Hardy Decl. Exs. B, D; 2d Hardy Decl. Exs. JJJJJ, LLLLL. Pinson acknowledges receiving the letters relating to the homicide investigations and letters to wardens, but contends that they did not ask her to clarify her request. See Pinson Decl. ¶ 12, ECF No. 313. The DOJ now again moves for summary judgment on all three requests on the grounds that its search was adequate. See Defs.' Mot. Partial Summ. J. at 2.

         G. Request for Documents Relating to Assaults

         On May 13, 2011, Pinson submitted a request to the FBI seeking information pertaining to “Inmate on Inmate assaults referred for investigation by Bureau of Prisons during 2007-2008 at the U.S. Penitentiary Florence, Colo. or Victorville, CA.” 2d Hardy Decl. ¶ 158 & Ex. RRRRR. The FBI referred this request to the Bureau of Prisons in May of 2011. 3d Hardy Decl. ¶ 16. The DOJ was previously denied summary judgment by the Court as to this request because the Court had insufficient information to assess whether the referral was properly conducted and whether the outcome of the referral was proper. See Mem. Op. at 20-21. Pursuant to the Court's Order, the FBI contacted the BOP inquiring about the status of the referral. 3d Hardy Decl. ¶ 16. The BOP advised the FBI that it assigned the referral “Information Request Number 2011- 07767, ” that it had completed processing of this request, and notified Pinson on March 14, 2012. 3d Hardy Decl. Ex. E. The BOP re-sent this letter to Pinson on July 25, 2016. Mem. P & A at 8- 9. Pinson does not claim she never received the letter, nor is there any indication she has appealed the release. The DOJ now again moves for summary judgment. See Def.'s Mot. Partial Summ. J. at 2.

         H. Request for Addresses of FBI Offices

         On May 6, 2011, Pinson submitted a request seeking an “[a]ddress directory to all agency departments or field offices.” 2d Hardy Decl. ¶ 153 & Ex. MMMMM. The FBI responded stating that her request did not contain enough information to conduct a search. 2d Hardy Decl. ¶ 154 & Ex. NNNNN. Pinson subsequently filed an appeal, on June 8, 2011, to which the Office of Information Policy (“OIP”) assigned number AP-2011-02269. 2d Hardy Decl. ¶¶ 155-56 & Exs. OOOOO, PPPPP. In its response on September 26, 2011, the OIP affirmed in part the FBI's actions, and also provided Pinson with a nine-page document, printed from the FBI's website, containing the contact information for all FBI field offices by state. 2d Hardy Decl. ¶ 157 & Ex. QQQQQ.

         The DOJ was previously denied summary judgment by the Court because it could not establish that Pinson had received a response from the FBI concerning this request. See Mem. Op. at 33-34. Pursuant to the Court's order, the DOJ re-sent the original correspondence related to this request to Pinson on April 29, 2016. See Order at 2; 3d Hardy Decl. ¶ 15 & Ex. B. The DOJ now again moves for summary judgment on the grounds that its search was adequate. See Defs.' Mot. Partial Summ. J. at 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 when “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 avoid “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)). A reviewing court should generally “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.” Id. (internal quotation marks omitted) (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. ...


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