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Gerhard v. Federal Bureau of Prisons

United States District Court, District of Columbia

July 11, 2017

JASON GERHARD, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS United States District Judge.

         Plaintiff 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.

         I. BACKGROUND

         Gerhard 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.

         On 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 use;”
(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.).

         To 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).

         Wallace 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.

         On 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.

         Gerhard 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).

         The BOP 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.

         II. ...


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