United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Court Judge.
Plaintiff Matthew Sluss received a sentence of 33 years in
prison after pleading guilty to one count of advertising
child pornography. Since then, Plaintiff has twice requested
transfer to his birth country, Canada, to serve his sentence.
The U.S. Department of Justice (“DOJ”) denied
case concerns DOJ's withholding of information sought by
Plaintiff under the Freedom of Information Act
(“FOIA”) regarding the denial of his transfer
requests. Specifically, Plaintiff asked for all documents
relating to him held by DOJ's International Prisoner
Transfer Unit, as well as records concerning policies and
guidelines used to decide international transfer requests.
DOJ produced some records in full to Plaintiff but entirely
withheld or redacted others.
parties now cross-move for summary judgment. Only two issues
remain in dispute: (1) DOJ's withholding of certain
information contained in two memoranda addressing
Plaintiff's transfer requests and (2) the scope of
DOJ's search for policies and guidelines. For the reasons
discussed below, the Court grants in part and denies in part
both parties' motions for summary judgment.
March 15, 2012, Plaintiff Matthew Sluss entered a plea of
guilty to one count of advertising child pornography.
See Def.'s Mem. for Summ. J., ECF No. 49
[hereinafter Def.'s Mem.], at 1. Plaintiff is currently
serving a 33-year sentence, id., in the Federal
Correctional Complex, located in Petersburg, Virginia,
Compl., ECF No. 1 [hereinafter Compl.], ¶ 3. Plaintiff
is a dual citizen of the United States and Canada.
Id. In 2013 and 2016, Plaintiff applied to DOJ's
International Prison Transfer Unit (“IPTU”) for
transfer to Canada to serve his sentence, but was denied both
times. See Pl.'s Mot. for Summ. J., ECF No. 51
[hereinafter Pl.'s Mot.], Pl.'s Stmt. of Facts, ECF
No. 51 [hereinafter Pl.'s Facts], ¶¶ 5-6.
September 12, 2016, Plaintiff submitted two FOIA requests to
DOJ. The first asked for all documents “relating to the
United States Department of Justice, International Prisoner
Transfer Unit's implementation, policies, or guidelines
relating to the implementation and procedures used for the
analysis of treaty transfers of prisoners to a for[ei]gn
country pursuan[t] to the Treaty [b]etween the United States
of America and Canada on the Execution [o]f Penal
Sentences.” Compl., Ex. A, ECF No. 1, at
The second requested “all documents, emails, notes,
memoranda, and any other written or electronic information
related to [Plaintiff's] person as kept by [IPTU]. This
request includes, but is not limited to, processing notes
from [Plaintiff's] 2013 and 2016 application for a
prisoner transfer to Canada.” Compl., Ex. B, ECF No. 1,
after Plaintiff filed this action on January 11, 2017, did
DOJ begin to process his request. On March 1, 2017, DOJ's
FOIA/PA Unit assigned Plaintiff's request a case number
and sent out a search request to IPTU seeking any documents
and records responsive to Plaintiff's FOIA requests.
Def.'s Mem., Def.'s Stmt. of Facts, ECF No. 49-1
[hereinafter Def.'s Facts], ¶ 7. DOJ asked IPTU to
search for: “(1) records related to Plaintiff's
requests for prisoner transfer to Canada made in 2013 and
2016; and (2) documents, e-mails, notes, memoranda or other
information related to IPTU's implementation, policies,
or guidelines used for the analysis of treaty transfers of
prisoners to a foreign country pursuant to the Treaty between
the United States and Canada.” Id.
personnel responded by searching Plaintiff's name in an
Oracle computer database. Id. ¶ 8. This search
yielded 176 pages of records comprising IPTU's case file
concerning Plaintiff. Id. ¶ 9. DOJ Attorney
John E. Cunningham III (“Cunningham”) also
located 23 pages of records responsive to Plaintiff's
request for general policy information by reviewing the DOJ
Criminal Division's internet website. Id.
April 12, 2017, DOJ provided Plaintiff with its First Interim
Response, which consisted of 23 pages of records, all of
which were publicly available on DOJ's Criminal Division
website. See Id. ¶ 12. On August 3, 2017,
Defendant made a Second Interim Release to Plaintiff, in
which six pages were released in full, 32 pages released in
part, and 30 pages withheld in full. See Id. ¶ 13.
August 27, 2018, DOJ requested that IPTU conduct a follow-up
search for policy-related records. See Id. ¶
10. The chief of IPTU searched “IPTU's S-drive,
his/her own H-drive, and also his/her own personal files, and
further reviewed all documents in folders titled ‘IPTU
Procedure and IPTU Policy Matters' and ‘Canadian
Issues' for responsive records.” Id.
Defendant released another 8 pages to Plaintiff on September
27, 2018. See id. ¶ 11.
initiated this case under FOIA on January 11, 2017.
Meanwhile, Plaintiff was before the D.C. Circuit on a
different matter. See Sluss v. U.S. Dep't of Justice,
Int'l Prisoner Transfer Unit, 898 F.3d 1242 (D.C.
Cir. 2018). Years earlier, in 2014, Plaintiff filed a
petition for habeas corpus, challenging the denial of a
transfer request he made in July 2013. See Id. at
1246- 47. After the district court denied the petition,
see Id. at 1247, Plaintiff appealed. The D.C.
Circuit affirmed the district court's decision on July
31, 2018. See Id. at 1254.
matter, Defendant filed, then withdrew, an initial motion for
summary judgment. See Minute Order, Sept. 10, 2018
(granting Defendant's Motion to Withdraw its Motion for
Summary Judgment). The reason for doing so was to conduct
additional searches. See Def.'s Mot. to
Withdraw, ECF No. 45, at 1. The parties then filed
cross-motions for summary judgment, which are now before the
FOIA cases are appropriately decided on motions for summary
judgment. See Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A
court may award summary judgment in a FOIA case by relying on
the information included in the agency's affidavits or
declarations if they are “relatively detailed and
non-conclusory.” SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and internal
quotation marks omitted). The agency's affidavits or
declarations must “describe the documents and the
justifications for nondisclosure with reasonably specific
detail [and] demonstrate that the information withheld
logically falls within the claimed exemption.”
Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). Further, they must not be
“controverted by either contrary evidence in the record
[or] by evidence of agency bad faith.” Id.
the government agency's burden to prove that it has
complied with its obligations under FOIA. See U.S.
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142
n.3 (1989). To prevail on a motion for summary judgment, the
agency must demonstrate 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.” Goland v. CIA, 607
F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks
omitted); see also Students Against Genocide v. Dep't
of State, 257 F.3d 828, 833 (D.C. Cir. 2001).
“Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary
or capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” U.S. Dep't of Justice v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)). “To
successfully challenge an agency's showing that it
complied with the FOIA, the plaintiff ...