United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge.
Jason Gerhard, proceeding pro se, brought this
action against the Bureau of Prisons (“BOP”) to
compel the production of records pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. In
response to Gerhard's lawsuit, the BOP located and
released additional responsive records. The BOP now moves for
summary judgment, Dkt. 9, and Gerhard requests an award of
costs, Dkt. 13 at 3-4. Because the BOP has discharged its
FOIA obligations, but appears to have done so only because
Gerhard filed this lawsuit, the Court will grant the
BOP's motion for summary judgment and will award Gerhard
his reasonable costs.
is a federal prisoner and a self-described
“researcher/news reporter . . . who writes articles
about the . . . BOP.” Dkt. 1 at 1-2 (Compl. ¶ 3).
He runs a website where he posts the results of his various
FOIA requests and maintains a political blog. Id. At
the times relevant here, Gerhard was incarcerated at Federal
Correctional Institution Fairton (“FCI Fairton”).
See Dkt. 9-1 at 8, 11.
January 12, 2015, Gerhard submitted the FOIA request at
issue. See Id. at 3 (Wallace Decl. ¶ 5a);
id. at 8. He sought three categories of records:
(1) “[t]he contract for the copier (photocopier)
machine at FCI Fairton's library that is for inmate
(2) “the quarterly reports detailing donations made to
FCI Fairton (per [BOP Program Statement] 1350.02)” from
October 2009 to December 2010; and
(3) the same quarterly reports for the period of “April
2012 to the present time.”
Id. at 8. BOP attorney John E. Wallace handled the
request. See Id. at 1-7 (Wallace Decl.).
locate the copier contract, Wallace reached out to FCI
Fairton's “Trust Fund Supervisor, ” who
“was the sole curator of documents concerning the
inmate copier service.” Id. at 4-5 (Wallace
Decl. ¶¶ 7, 10). The supervisor explained that
“there is no formal written contract concerning inmate
copiers.” Id. at 4 (Wallace Decl. ¶ 7).
Although “[the inmate] [c]opier service is provided by
an outside contractor, ” id. at 18 (BOP
Program Statement 4500.11 at 52 (Apr. 9, 2015)), the BOP does
not pay for those services directly. Instead, the BOP
purchases “copy cards” from the contractor in
bulk, and then sells those cards to inmates at a mark-up.
See Id. at 4 (Wallace Decl. ¶ 7); id.
at 17-18 (BOP P.S. 4500.11 at 38, 52). At FCI Fairton,
“[t]he sale/purchase of the cards was handled with
invoices and purchase orders, ” rather than “a
fixed, traditional government contract.” Id.
at 4 (Wallace Decl. ¶ 7).
also searched for the quarterly donation reports.
Id. at 5 (Wallace Decl. ¶ 8). Under BOP Program
Statement 1350.02, prison wardens may accept donations to BOP
institutions if the donation is valued at $250 or less and
(1) is religious or educational in nature and from a
religious or educational source, or (2) is from a prisoner
leaving federal custody or being transferred between prisons.
See Id. at 24-25 (BOP Program Statement 1350.02 at
2-3, §§ 5-6 (June 29, 1998)). Wardens must submit
quarterly reports of such donations to the BOP's Ethics
Officer. Id. In response to Gerhard's request,
Wallace contacted FCI Fairton's warden, but not the
BOP's Ethics Officer. Id. at 5-6 (Wallace Decl.
¶¶ 8, 11). The warden's secretary informed
Wallace that the chaplain kept records of the quarterly
reports. Id. She then requested the reports from the
chaplain, and later relayed them to Wallace. Id.
None of the reports Wallace received covered the period
between October 2009 and December 2010. Id.
April 30, 2015, the BOP responded to Gerhard's request.
See Id. at 3 (Wallace Decl. ¶ 5b); id.
at 9-10. With respect to the copier contract, the BOP
informed Gerhard that it located no responsive records.
Id. at 10. With respect to the donation reports from
October 2009 through December 2010, the BOP merely referred
Gerhard to his March 2012 request for the same records, to
which the BOP had already responded (although the BOP's
earlier search had also come up empty). See Id. at
9, 14 n.1. With respect to the donation reports from April
2012 to January 2015, the BOP released 17 pages of records, 5
of which included redactions pursuant to 5 U.S.C. §
552(b)(6) and (b)(7)(C). See Id. at 3, 5 (Wallace
Decl. ¶¶ 5b n.2, 9); id. at 9.
lost his administrative appeal on September 4, 2015,
id. at 3 (Wallace Decl. ¶ 5e); id. at
14-15, and several months later commenced this action, Dkt. 1
at 3. Service was effected on June 24, 2016. Dkt. 7 at 1. On
August 23, 2016, Wallace uncovered eight new pages of
responsive records, comprising the missing quarterly donation
reports for the period October 2009 to December 2010. Dkt.
9-1 at 6 (Wallace Decl. ¶¶ 12-13). Wallace found
the missing reports by asking the Ethics Branch of the
BOP's Office of General Counsel to provide them-a step he
had not taken during his initial search. See Id. at
5-6 (Wallace Decl. ¶¶ 8, 11, 12). The BOP then
released those eight additional pages to Gerhard in full.
Id. at 6 (Wallace Decl. ¶ 13).
now contends that it has discharged its FOIA obligations and
moves for summary judgment. Dkt. 9. Gerhard opposes the entry
of summary judgment with respect to the copier contract and
the quarterly donation reports from October 2009 to December
2010. Dkt. 13. His opposition brief also requests an award of
his costs of brining this action. Id. at 3-4.