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Pinson v. Department of Justice

United States District Court, District of Columbia

May 23, 2018

JEREMY PINSON Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' FOURTH MOTION FOR SUMMARY JUDGMENT RE DOCUMENT NO.: 403

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

         Jeremy Pinson is a pro se plaintiff who, while in prison, has filed multiple Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests seeking records from various components of the United States Department of Justice (“DOJ”). DOJ has filed its fourth motion for summary judgment on Pinson's requests to the Federal Bureau of Prisons (“BOP”), claiming that it has performed adequate searches for records responsive to Pinson's requests, released a number of records, and informed Pinson that some of the records she[1] sought were exempt from disclosure by law. Pinson did not file an opposition to DOJ's motion.

         In its prior opinions, this Court has granted in part and denied in part DOJ's first, second, and third motions for summary judgment as to claims against BOP. See Pinson v. U.S. Dep't of Justice, No. 12-1872, 2016 WL 29245, at *1 (D.D.C. Jan. 4, 2016); Pinson v. U.S. Dep't of Justice, 199 F.Supp.3d 203 (D.D.C. 2016); Pinson v. U.S. Dep't of Justice, 236 F.Supp.3d 338 (D.D.C. 2017). Now before the Court is DOJ's fourth motion for summary judgment as to the ten remaining FOIA requests to BOP.[2] See Defs.' 4th Mot. Summ. J. Respect BOP (“Defs.' 4th MSJ”), ECF No. 403. DOJ argues that BOP has conducted searches reasonably calculated to identify records responsive to Pinson's requests and has released to Pinson those records not withheld pursuant to the applicable FOIA exemptions. See Defs.' Mem. P. & A. (“Defs.' Mem.”) at 4, ECF No. 403-1. For the reasons set forth below, the Court grants in part and denies in part DOJ's motion for summary judgment.

         I. FACTUAL BACKGROUND

         The Court has already explained the factual background in this case in its first Memorandum Opinion. See Pinson, 2016 WL 29245, at *1-8. The Court assumes familiarity with its prior opinion and confines its discussion to the facts most relevant to the present motion. The current motion concerns BOP's searches for records responsive to Requests Nos. 2011-7156, 2012-39, 2012-40, and 2013-1684; BOP's withholding of records responsive to such requests pursuant to several FOIA exemptions; and BOP's reprocessing of Request Nos. 2010-12533, 2011-1351, 2011-1886, 2011-2366, 2011-7619, 2012-39, [3] and 2012-975.

         A. Request Nos. 2011-7156, 2012-39, and 2012-40 (E-mail Searches)

         Request No. 2012-40 and the portions of Request Nos. 2011-7156 and 2012-39 that were not yet processed at the time of this Court's third memorandum opinion concern certain BOP email records. BOP initially could not perform a search of its email archives due to technical problems, but in October 2016, the search tool was fixed and BOP subsequently performed searches for responsive records. See Pinson, 236 F.Supp.3d at 356-57. However, at the time of DOJ's third request for summary judgment, Pinson had not yet received a response because the search results were still being evaluated for potential FOIA exemptions. See Id. at 357. Thus, this Court deemed that summary judgment as to the email portions of these requests was “still not appropriate because the agency has not yet fully discharged its FOIA obligation.” Id. BOP has since completed evaluating these records for potential exemptions and responded to Pinson.

         In Request No. 2011-7156, Pinson sought, among other records, [4] “emails between Central Office staff regarding [her] ADX referral” and “emails between SERO Regional staff regarding [her] ADX referral.” 7th Decl. of Kara Christenson (“7th Christenson Decl.”) ¶ 8, ECF No. 403-3. Pinson limited her request to no more than two hours search time and no more than 100 pages. Id. After completing its search, BOP responded to Pinson in a letter dated February 28, 2017, informing her that there were no records responsive to her request for emails. See Id. ¶ 11 & Ex. B. DOJ now moves for summary judgment on the grounds that BOP's search was “reasonably calculated to uncover all documents in its files responsive to [Pinson's] requests.” Defs.' Mem. at 4.

         In Request No. 2012-39, Pinson sought, among other records, [5] “[a]ll 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.” 7th Christenson Decl. ¶ 12 & Ex. C. Pinson limited this request to no more than two hours search time and no more than 100 pages. 7th Christenson Decl. ¶ 12. In a letter dated April 6, 2017, BOP responded to Pinson's request and released seventy-five pages of records in full and eighteen pages in part. Id. ¶ 16 & Ex. D. Under Exemption 6, BOP withheld the “telephone extensions and direct telephone numbers of Bureau staff”; “the names of third-party, non-BOP employees who would be conducting an ACA audit”; and “the name of a third-party, non-BOP employee who assisted with a pre-ACA audit.” Id. ¶¶ 19-21; Vaughn Index at 1-3, ECF No. 403-3. BOP also invoked Exemption 7 to withhold “information . . . related to the institution's policies [on] tools and keys.” 7th Christenson Decl. ¶¶ 26-27; Vaughn Index at 1-3. DOJ now moves for summary judgment on the grounds that BOP's search was adequate and that it released to Pinson all non-exempt records responsive to her request. See Defs.' Mem. at 4.

         In Request No. 2012-40, Pinson sought “production of all emails sent by the North Central Regional Director and Warden of the U.S. Penitentiary Administrative Maximum during 2011.” 7th Christenson Decl. ¶ 28. Pinson limited this request to no more than two hours search time and no more than 100 pages. Id. In a letter dated February 28, 2017, BOP informed Pinson that there were no records responsive to her request. Id. ¶ 31 & Ex. G. DOJ now moves for summary judgment on the grounds that BOP's search was “reasonably calculated to uncover all documents in its files responsive to [Pinson's] requests.” Defs.' Mem. at 4.

         B. Request No. 2013-1684

         In November 2011, Pinson requested “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.” 7th Christenson Decl. ¶ 32 & Ex. H. After an initial fee was assessed, Pinson modified her request to no longer seek documents from her Central File on or before October 1, 2014, or her SIS file between February 25, 2011 and October 2013. Id. ¶ 33 & Ex. I. In a letter dated October 23, 2017, BOP responded to Pinson's request and released 13, 690 pages of records in full and 1481 pages of records in part, and it withheld 2, 325 pages in full. Id. ¶ 45 & Ex. L.

         Claiming both Exemptions 6 and 7(C), BOP withheld “the names, register numbers, medical information, statements made to law enforcement officers, and correctional management of third-party inmates”; “the names, injuries and other medical information, photographs of their faces, injuries and property, and employment information for [BOP] staff”; “the names of staff who participated in calculated uses of force and their role on the team”; “the Daily Assignment Rosters for institutions”; “the telephone extensions, direct numbers, and facsimile extensions of Bureau staff”; “the names and personal identifying information of individuals associated with a statute-based programming assignment used to manage Pinson”; and “the name of a criminal Assistant U.S. Attorney and the names of law enforcement investigative agents associated” with certain agencies, as well as their “contact information, such as telephone numbers, e-mail addresses, and addresses.” 7th Christenson Decl. ¶¶ 53-72.

         Using Exemption 7(E), BOP withheld “information . . . consist[ing] of the Central Inmate Monitoring (CIM), separations, and other internal assignments used to classify and monitor Pinson and other third-party inmates”; “discussions of gang and informant activity within the [BOP]”; “techniques for investigating criminal activity within a prison facility [and] factual information developed using these underlying techniques”; “documents associated with a statute-based programming assignment used to manage Pinson”; “steps used to resolve major crises in a Bureau facility”; “description of the Bureau's calculated use of force technique and a photo of the technique being used”; and “investigative reports from an intelligence database used by BOP staff during law enforcement investigations.” Id. ¶¶ 81-96.

         Using Exemption 7(F), BOP withheld “factual information [which], if known, would adversely affect Pinson's safety”; “the Bureau's monitoring and classification assignments for Pinson and third-party inmates”; “‘yes' and ‘no' response areas to [certain] questions on an Intake Screening Form”; “a portion of Pinson's Administrative Detention Order Forms that elaborates on the reason for removal from general population”; “techniques for investigating criminal activity within a prison facility”; “the names and register numbers of third-party inmates from whom . . . Pinson needed to be separated”; “documents associated with a statute-based programming assignment used to manage Pinson”; “the institution's policies [on] tools and keys”; “photographs of locks on cell door and hand restraints”; “steps used to resolve major crises in a Bureau facility”; “‘yes' or ‘no' response areas to questions on a Screening for Risk of Victimization and Abusiveness Form completed for Pinson”; “the names of staff who participated in calculated uses of force and their role on the team”; “the Daily Assignment Rosters for institutions”; and “a description of the Bureau's calculated use of force technique and a photo of the technique being used.” Id. ¶¶ 81-96.

         DOJ now moves for summary judgment on the grounds that BOP's search was adequate and that it has released to Pinson all non-exempt records responsive to her request. Defs.' Mem. at 4.

         C. Request No. 2010-12533 (Reprocessing)

         In August 2010, Pinson requested from BOP “(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.” Pinson, 236 F.Supp.3d at 345. DOJ subsequently released responsive records, with some withholdings, and moved for summary judgment. Id. In its previous opinion, this Court agreed with DOJ that BOP's search was adequate, but denied summary judgment regarding the use of Exemption 5 to withhold sections of multiple After Action Review Reports because BOP failed to “define the nature of the deliberative process involved.” See Id. at 360.

         BOP has reprocessed this request and, in a letter dated April 6, 2017, released two pages in full and three pages in part. 7th Christenson Decl. ¶ 97 & Ex. M. Upon reprocessing, the information regarding “after action recommendation/results” and “whether the after action was determined appropriate and the recommendations/results, ” previously withheld under Exemption 5, was released. 7th Christenson Decl. ¶ 100; Vaughn Index at 87-88. Sections of an After Action Review Report from November 18, 2007, previously withheld under Exemption 5, was again withheld, this time under Exemption 7(E). 7th Christenson Decl. ¶ 99; Vaughn Index at 87-88. DOJ now moves for summary judgment on the ground that BOP has released all non-exempt records responsive to Pinson's request. Defs.' Mem. at 4.

         D. Request No. 2011-1351 (Reprocessing)

         In 2011, Pinson submitted a request to BOP for 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.” Pinson, 236 F.Supp.3d at 347; see also 3d Christenson Decl. ¶ 53 & Ex. F, ECF No. 293-3. After releasing some responsive documents-with withholdings under Exemptions 5 and 7(F)-DOJ moved for summary judgment. See Pinson, 236 F.Supp.3d at 347. In its previous opinion, this Court agreed with DOJ that its search in response to Request No. 2011-1351 was adequate, but denied summary judgment as to the use of Exemption 5 to withhold sections of multiple After Action Review Reports because BOP failed to “define the nature of the deliberative process involved.” Id. at 360; Vaughn Index at 89-93.

         BOP has reprocessed this request and, in a letter dated April 6, 2017, released to Pinson nine pages of records in part. 7th Christenson Decl. ¶ 101 & Ex. N. Upon reprocessing, BOP released sections on whether the use of force was appropriate, but it applied Exemption 7(E) to withhold the remaining sections on discrepancies noted and recommendations/results regarding the use of force. 7th Christenson Decl. ¶ 103; Vaughn Index at 89-93. After reprocessing Document 2 in the request, BOP released information previously withheld under Exemption 5. 7th Christenson Decl. ¶ 104; Vaughn Index at 90-91. DOJ now moves for summary judgment on the ground that BOP has released all non-exempt records responsive to Pinson's request. Defs.' Mem. at 4.

         E. Request No. 2011-1886 (Reprocessing)

         In 2010, Pinson requested from BOP the production of “documents associated with her placement at ADX Florence.” Pinson, 236 F.Supp.3d at 347; see 3d Christenson Decl. ¶ 64 & Ex. H. In its disposition of DOJ's third motion for summary judgment, the Court denied DOJ's motion as to the use of Exemption 5 to withhold comments and recommendations made by staff regarding the future management of Pinson because BOP “failed to specify the role of the document in the deliberative process, or the nature of the decisionmaking authority vested in each party.” Pinson, 236 F.Supp.3d at 361. Furthermore, the Court denied summary judgment as to the use of Exemption 7(F) to withhold several staff members' responses to questions posed by Pinson regarding her ADX referral because the “potential harm is too speculative in the absence of some explanation as to why these responses could not . . . be anonymized.” Id. at 371. Additionally, the Court denied summary judgment as to the use of Exemption 7(F) to withhold Pinson's Presentence Investigation Report (“PSR”) because it would satisfy both BOP's safety concerns and its FOIA obligations to release the PSR to Pinson's appointed counsel rather than simply denying the request. See Id. at 371-72. This Court granted summary judgment as to all other documents within the request. See Id. at 374.

         BOP has now reprocessed Pinson's request, and in a letter dated April 6, 2017, explained that it has released seventy-seven pages in full and fifty-seven pages in part, and three pages were withheld in full. 7th Christenson Decl. ¶ 105 & Ex. O. “[C]omments made by a staff member regarding the future management of Pinson, ” previously withheld under Exemption 5, were released. Vaughn Index at 94; see 7th Christenson Decl. ¶ 107. BOP also removed the application of Exemption 5 to “a staff member's recommendation regarding the future management of Pinson” in Documents 21-23, 25, and 35 and released what it determined was segregable from information this Court previously held exempt under Exemptions 6, 7(C), 7(E), and 7(F). 7th Christenson Decl. ¶ 108; Vaughn Index at 97-102. As for the responses to witness forms used during Pinson's referral hearing to ADX Florence that were previously withheld under Exemption 7(F), BOP released some responses, but not all. 7th Christenson Decl. ¶ 109. BOP determined that it could release the responses to other questions, but releasing responses to questions number eight and nine in Documents 8-11 and questions number three, four, and eight in Documents 12-17 would increase the risk to Pinson of being targeted for assault. Id. ¶¶ 109- 111. Pinson's PSR, however, was disclosed in full to counsel for Pinson. Id. ¶ 112; Vaughn Index at 102. DOJ now moves for summary judgment on the ground that BOP has released all non-exempt records responsive to Pinson's request. Defs.' Mem. at 4.

         F. Request No. 2011-2366 (Reprocessing)

         In December 2010, Pinson submitted a request to BOP to produce 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].” Pinson, 236 F.Supp.3d at 348; 3d Christenson Decl. ¶ 95 & Ex. J. BOP subsequently released responsive records to Pinson-with some withholdings-and filed its third motion for summary judgment. See Pinson, 236 F.Supp.3d at 348. This Court granted DOJ's motion as to the adequacy of its search in response to Request No. 2011-2366. See Id. at 355. However, it denied summary judgment as to the use of Exemptions 6 and 7(C) to withhold the names of individuals, individuals' addresses, and case numbers because BOP did not “sufficiently explain the privacy interests of the individuals ‘involved' in each claim.” Id. at 363.

         Following this Court's opinion, BOP reprocessed Pinson's request and, by letter dated April 6, 2017, released two pages in full and four pages in part. 7th Christenson Decl. ¶ 113 & Ex. P. Regarding a settlement agreement in a federal case, BOP conducted a privacy analysis for each individual involved and released the name of the federal district court involved in the case, the name and address of the plaintiff's attorney's law firm, and the notary public's information. Id. ¶¶ 115, 118-19. However, BOP again applied Exemption 6 to withhold the plaintiff's name, signature, and case number; the Assistant U.S. Attorney's (“AUSA”) name, signature, and direct telephone number; and the plaintiff's attorney's name and signature. Id. ¶¶ 116-19; Vaughn Index at 103-04. As to a settlement offer letter made to an inmate in a BOP administrative claim process, BOP reviewed the privacy interests of the claimant and staff member and released the name of the Regional Counsel involved. 7th Christenson Decl. ¶¶ 120, 122. However, BOP applied Exemption 6 to withhold the claimant's name, address, administrative claim number, and civil case number, as well as the Regional Counsel's signature. Id. ¶¶ 120-21; Vaughn Index at 103-04. DOJ now moves for summary judgment on the ground that BOP has released all non-exempt records responsive to Pinson's request. Defs.' Mem. at 4.

         G. Request No. 2011-7619 (Reprocessing)

         In May 2011, Pinson requested from BOP “(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, 2033414, (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.” Pinson, 236 F.Supp.3d at 350-51; 3d Christenson Decl. ¶ 126 & Ex. N. BOP subsequently released records responsive to Pinson's request-with some withholdings-and noted that additional records responsive to the request may have existed at some point, but were destroyed according to BOP policy during the two years Pinson failed to satisfy her delinquent fees. See Id. at 355-56.The Court granted summary judgment as to the adequacy of BOP's search and the use of Exemptions 6, 7(C), and 7(E) to withhold information in multiple Incident Reports. See Id. at 355-56, 374. However, the Court denied summary judgment as to the use of Exemption 7(F) to withhold the classification of various reported incidents because BOP failed to explain why the purported increased risk of harm to Pinson from disclosure “could not be addressed by redacting the name of the victim . . . instead of withholding the entire classification.” Id. at 371-72.

         BOP has reprocessed the request following the Court's prior opinion, and in a letter dated April 6, 2017, released fifty-four pages in full and eight pages in part, and withheld two pages in full. See 7th Christenson Decl. ¶ 123 & Ex. Q. The information in the “Type of Incident” and “Cause of Incident” sections previously withheld under Exemption 7(F) was released. 7th Christenson Decl. ¶ 125; Vaughn Index at 105-06. DOJ now moves for summary judgment on the ground that BOP has released all non-exempt records responsive to Pinson's request. Defs.' Mem. at 4.

         H. Request No. 2012-39 (Reprocessing)

         In September 2011, Pinson sought, “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 some email records.[6] Pinson, 236 F.Supp.3d at 351. BOP released responsive records-with some withholdings-and DOJ subsequently requested summary judgment. This Court granted summary judgment as to the adequacy of the non-email portions of the search. Id. at 357. However, this Court denied summary judgment as to the use of Exemption 5 to withhold information in an After Action Review Report, a document discussing steps for re-accreditation, and a document describing the preliminary cause of death of inmates and estimating costs because BOP “failed to specify the role of the document[s] in the deliberative process, or the nature of the decisionmaking authority vested in each party.” Id. at 361.

         Following this Court's opinion, BOP reprocessed this request and, in a letter dated April 6, 2017, released to Pinson five pages in full and eight in part, and it withheld three pages in full. See 7th Christenson Decl. ¶ 126 & Ex. R. BOP withdrew its previous withholdings and redactions under Exemption 5. 7th Christenson Decl. ¶¶ 128-29. However, within a section previously withheld under Exemption 5 in an incident report dated April 20, 2008, it applied Exemption 7(E) to withhold information on the weapons used during the incident. Id. ¶ 129; Vaughn Index 107-08. DOJ now moves for summary judgment on the ground that BOP has released all non-exempt records responsive to Pinson's request. Defs.' Mem. at 4.

         I. Request No. 2012-975 (Reprocessing)

         In October 2011, Pinson submitted a request to BOP for “the ‘2010-2011 U.S. Penitentiary Admin. Max. - Florence, CO Administrative Remedy Index'” and “all 2010-2011 Form 583 Report of Incident[s] from ADX Florence reporting Inmate on Inmate assaults to the NRCO.” Pinson, 236 F.Supp.3d at 351; 3d Christenson Decl. ¶ 162 & Ex. T. BOP subsequently released responsive records-with some withholdings-and DOJ moved for summary judgment. This Court granted DOJ's motion as to the adequacy of its search. See Pinson, 236 F.Supp.3d at 355. However, the Court denied summary judgment as to the application of Exemption 7(F) to “information regarding an assault on an inmate and attachments [to the form]” in multiple incident reports because BOP's assertions of risk of harm were “too vague” and did not ...


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