United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR KOTELLY UNITED STATES DISTRICT COURT JUDGE.
Kelvin Allen brings this action under the Freedom of
Information Act (“FOIA”), see 5 U.S.C.
§ 552, against the Federal Bureau of Prisons
(“BOP”), a component of the United States
Department of Justice (“DOJ”). This matter is
before the Court on Defendant's Third Renewed Motion for
Summary Judgment, ECF No. 49, and its four supporting
reasons discussed below, the Court will grant the motion in
part and deny the motion in part without prejudice.
Plaintiff and his FOIA Request
was convicted in the United States District Court for the
Middle District of Florida for making false statements,
see 18 U.S.C. § 1014, and aggravated identity
theft, see 18 U.S.C. § 1028A(a)(1), and is
serving a 198-month term of incarceration. See First
Mack Decl. ¶ 2. He was designated to a Federal
Correction Complex (“FCC”) in Coleman, Florida
from March 2008 through February 2012. Supp. Mack Decl.
¶ 2. In February 2012, he was transferred from FCC
Coleman to the United States Penitentiary in Beaumont, Texas
(“USP Beaumont”), id. ¶ 2, and in
February 2018 to the Federal Correctional Institution in
Jesup, Georgia, 3d Supp. Mack Decl. ¶ 8.
Trust Fund Limited Inmate Computer System
(“TRULINCS”) is a system through which inmates in
BOP custody “manage their contact list[s] (email[, ]
postal mail, telephone and video sessions), communicate with
the public via email, view financial account transactions,
print postal mailing labels, perform electronic law library
research, [and] manage their finances.” 2d Supp. Mack
Decl. ¶ 10; see generally Program Statement
4500.11, Trust Fund/Deposit Fund Manual, Ch. 14
(Apr. 9, 2015). “Plaintiff's access to the
BOP's TRULINCS messaging system is under a 21 year
suspension[.]” Compl. ¶ 6. Plaintiff claims that
he “has never been presented an official copy of the
reason” for the TRULINCS suspension, id., and
by means of a FOIA request to BOP's Central Office in
December 2015, First Mack Decl. ¶ 9, plaintiff sought a
written explanation, Compl. ¶ 10; see First
Mack Decl., Attach. 2 at 1.
BOP's Search for and Release of Responsive Records
Central Office staff determined that records responsive to
the request, assigned tracking number 2016-01713, most likely
would be found in plaintiff's central file, First Mack
Decl. ¶¶ 10-11, which would have been maintained at
plaintiff's then-current designated institution,
id. ¶ 10, USP Beaumont, id. ¶ 2.
Accordingly, Central Office staff forwarded the request to
the South Central Regional Office (“SCRO”),
id. ¶¶ 6, 9, in Grand Prairie, Texas,
id. ¶ 1, for processing. SCRO staff, in turn,
contacted the Legal Liaison at the FCC Beaumont by email with
instructions to search plaintiff's central file.
Id. ¶ 10.
search yielded copies of two reports totaling 11 pages.
See id. ¶ 12; Supp. Mack Decl. ¶ 5. The
first was a “Special Investigative Services SIS Report
(‘SIS Report') . . . describing the investigation
of [p]laintiff's identity theft and tax fraud
scheme” that FCC Coleman staff conducted and which
concluded in July 2011. Supp. Mack Decl. ¶ 5.a. The last
page indicated that the SIS Report had four attachments:
Threat Assessment Checklist, Detention Order, Staff
Memorandum, and SENTRY Data. 2d Supp. Mack Decl. ¶ 6;
id., Ex. 1 at 8. None of the SIS Report's
attachments was found in plaintiff's central file.
Id. ¶ 6. The second report was “titled
TRULINCS Restricted or Limited Access Request
(‘TRULINCS Report'), from USP Beaumont, which was
generated in February - March 2012[.]” Supp. Mack Decl.
¶ 5.b. On January 12, 2016, BOP released two pages in
full, released seven pages in part, and withheld two pages in
full, First Mack Decl. ¶ 12, relying on FOIA Exemptions
7(C), 7(E) and 7(F), Supp. Mack Decl. ¶ 6.
further consultation with BOP staff, ” BOP's
declarant learned that the SIS Report's attachments
“might . . . be located in a separate SIS file at [FCC
Coleman] where [p]laintiff [had been] confined and where the
investigation took place.” 3d Supp. Mack Decl. ¶
10. She then “directed SIS staff at FCC Coleman to
search for the missing attachments . . . or any other
responsive records in that file[.]” Id. This
search yielded 131 more pages “comprising the four
missing attachments to the SIS report[.]” Id.
On April 13, 2018, BOP hand delivered to plaintiff a
three-page “threat assessment checklist” in full
and the remaining attachments in part, relying on FOIA
Exemptions 7(C) and 7(F). See id. ¶¶ 11,
Defendant's Dispositive Motions
has filed four dispositive motions. Initially defendant moved
to dismiss or for summary judgment arguing that plaintiff had
not exhausted his administrative remedies prior to filing
this action. See Def.'s Mot. to Dismiss or
Alternatively for Summ. J. (ECF No. 11). Defendant withdrew
this motion, see Def.'s Notice of Withdrawal of
Mot. to Dismiss (ECF No. 19), and filed a renewed summary
judgment motion, see Def.'s Renewed Mot. for
Summ. J. (ECF No. 27), on December 8, 2016. Plaintiff opposed
the motion, see Request to Deny Def.'s Renewed
Mot. for Summ. J. (ECF No. 29) on January 17, 2017, and on
July 11, 2017, the Court granted the motion in part and
denied it in part, see Mem. Op. and Order (ECF No.
36), concluding that BOP's search of plaintiff's
central file for records responsive to his FOIA request was
adequate and that its explanation for withholding certain
information under Exemptions 7(C), 7(E) and 7(F) was
third motion, see Def.'s Second Renewed Mot. for
Summ. J. (ECF No. 39), addressed the exemptions, and
plaintiff filed his opposition on December 4, 2017,
see Request to Deny Def.'s Second Renewed Mot.
for Summ. J. (ECF No. 42, “Pl.'s Opp'n to 2d
Renewed Mot.”). Regarding the SIS Report, BOP's
Page 8 of the SIS Report identifies four attachments: (1)
threat assessment checklist; (2) detention order; (3) staff
memorandum; and (4) SENTRY Data. This information was
withheld inadvertently in the prior release. At
the request of counsel, I checked with the [SCRO], where
[p]laintiff's central file was located, and confirmed
that the referenced attachments are not contained in
[p]laintiff's central file . . . . BOP produced all of
the records responsive to Plaintiff's request that BOP
had located in its search.
2d Supp. Mack Decl. ¶ 6 (emphasis added). The Court
construed this statement to mean that BOP deemed the
attachments responsive to plaintiff's FOIA request, and
for reasons unknown withheld them. Accordingly, the Court
denied the motion without prejudice, and directed BOP to
explain why its obligations under the FOIA end because
records it admittedly should have released were not in
plaintiff's central file.
fourth motion and supporting declaration clarify that the
only information BOP inadvertently withheld was four lines of
text identifying the attachments:
Attachments: Threat Assessment Checklist Detention Order
Staff Memorandum SENTRY Data
2d Supp. Mack Decl., Ex. 1 at 8; see Def.'s Mot.
at 2-3. The attachments themselves subsequently were located
in SIS records at FCC Coleman and released in part. 3d Supp.
Mack Decl. ¶¶ 10-11.
Adequacy of BOP's Searches
that BOP “broadened its search for the missing
attachments to the SIS Report, ” Def.'s Mot. at 3,
defendant moves “for summary judgment on the adequacy
of its expanded search, ” id. at 4. Plaintiff
“takes serious issue with defendant's supplemental
search, and the 131 pages of responsive records
released.” Opp'n to Def.'s Third Renewed Mot.
for Summ. J. (ECF No. 51, “Pl.'s Opp'n”)
¶ 9. He deems defendant's recent effort “an
unsolicited extensive multi-institutional supplemental search
outside of [his] central file, ” id. ¶ 8,
which served only to “create substantial doubt as to
the sufficiency of the initial search, ” id.
If the Court were to grant defendant's fourth dispositive
motion, he argues, its ruling “would be the
second summary judgment imposed on this same issue,
” id. ¶ 6 (emphasis in original), the
adequacy pf BOP's search. In order that the Court avoid
issuing an “improper” order, id.,
plaintiff “asks the Court to vacate” ...