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Sluss v. U.S. Department of Justice

United States District Court, District of Columbia

June 14, 2019



          Amit P. Mehta United States District Court Judge.


         Pro se 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 both requests.

         This 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.

         The 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.


         A. Factual Background

         On 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.

         On 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 8.[1] 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, at 11.

         Only 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.

         IPTU 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.

         On 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.[2] See Id. ¶ 13.

         On 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.

         B. Procedural History

         Plaintiff 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.

         In this 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 court.


         Most 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.

         It is 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 ...

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