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Spurling v. U.S. Department of Justice

United States District Court, District of Columbia

December 2, 2019




         The plaintiff, a prisoner at the Kentucky State Penitentiary, brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552 (2016), to obtain records maintained by the Federal Bureau of Investigation (“FBI”), a component of the United States Department of Justice (“DOJ”). This matter is before the Court on the parties' cross-motions for summary judgment. For the reasons discussed below, the Court grants summary judgment for the defendant.

         I. BACKGROUND

         A. The Murder of Glenn Burks

         “On April 29, 1988, Glenn Burks, a prisoner at the Kentucky State Penitentiary was killed.” Plaintiff's Response to Defendant's Motion for Summary Judgment with Submission of a Cross Motion for Summary Judgment (ECF No. 31, “Pl.'s Opp'n”) at 8 ¶ 12.[1] Burks was black, and the plaintiff, who is white, allegedly was a member of the Aryan Brotherhood. The plaintiff was indicted for Burks' murder, id. at 8 ¶ 13, and plead not guilty, id. at 9 ¶ 18. At his trial, the plaintiff testified on his own behalf, id. at 10 ¶ 25, and presented “alibi witness[es] . . . and impeachment witnesses . . . against the Commonwealth's witnesses, ” id. at 9 ¶ 20, one of whom “actually confessed to killing Glenn Burks, ” id. at 9 ¶ 20. Nevertheless, a jury found the plaintiff guilty. The plaintiff characterized the jury's verdict as “the outcome of a swearing contest between convicts” who testified at his trial. Id. at 10 ¶ 26.

         Upon his conviction, the court imposed a 150-year term of imprisonment. Plaintiff's Statement of Disputed and Undisputed Material Facts (ECF No. 31, “Pl.'s SMF”) ¶ 11. This sentence was designated to be served consecutively to the “two . . . life sentences he was already serving for prior murder convictions[.]” Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (ECF No. 27-1, “Def.'s Mem.”), Declaration of David M. Hardy (ECF No. 27-3, “Hardy Decl.”) ¶ 28. One of the prior life sentences has now been set aside, and the plaintiff was resentenced to a 20-year term of imprisonment. Pl.'s SMF ¶ 11; see id., Exhibit (“Ex.”) 1 (Amended Judgment of Conviction and Sentence). According to the defendant, the plaintiff is not eligible for release until September 1, 2176. Hardy Decl. ¶ 28; see Pl.'s SMF, Ex. 2 (Resident Record Card).

         In June 2016, the plaintiff filed a Motion for DNA Testing to Support a Claim of Actual Innocence. Pl.'s Opp'n at 11 ¶ 31. In those proceedings conducted in the Lyon Circuit Court, id. at 13 ¶ 34, in Kentucky, id. at 14 ¶ 36, the plaintiff obtained a copy of a Kentucky State Police file where he found a document “indicat[ing] that at some point during the criminal proceedings . . . the FBI, through L.V. McGinty[, ] became involved” in the Burks case. Id. at 13 (page number designated by the plaintiff) ¶ 40. The plaintiff also obtained the names of three prisoners who provided testimony that other prisoners - not the plaintiff - killed Burks. See id., Ex. L.

         B. Escape from the Kentucky State Penitentiary

         On June 16, 1988, the plaintiff and seven other prisoners “successfully escaped from a maximum security area of the Kentucky State Penitentiary [(KSP)].” Pl.'s Opp'n at 9 ¶ 14; see id., Ex. A at 3. The plaintiff has submitted excerpts from two published court opinions, see id., Exs. A-B, further describing the escape:

In the early morning hours of June 16, 1988, eight men successfully escaped from the Kentucky State Penitentiary at Eddyville, Kentucky. The eight escaped convicts were identified as [James Blan-ton], Derrick Quintero, William Hall, Joseph Montgomery, Ronnie Hudson, Bobby Sherman, Leo Sperling and Floyd Cook. Sherman was apprehended on June 17, 1988. Sperling and Cook were apprehended on June 18, 1988. Montgomery and Hudson were seen in Lebanon, Kentucky, on June 19, 1988, and captured in Kentucky on June 22, 1988. Hall was captured in July of 1988. [Blanton] and Quintero were captured shortly after Hall's apprehension.

State v. Blanton, 975 S.W.2d 269, 271 (Tenn. 1998). Prior to their capture, Hall, Quintero and Blanton committed two murders:

Three of the eight escaped prisoners, Billy Hall, Derrick Quintero and James Blanton, traveled together to Stewart County, Tennessee, fifty miles from the prison, where they brutally murdered Buford and Myrtle Vester . . . . Buford Vester was shot from an outside window. Myrtle Vester was shot once with a high powered rifle, was shot again at close range with a sawed-off shotgun, and was stabbed repeatedly in the neck and chest. Following a trial by jury, Hall, Quintero and Blanton were each found guilty of the murders of Buford and Myrtle Vester and sentenced to death.

Commonwealth of Kentucky, Corrections Cabinet v. Vester, 956 S.W.2d 204, 204 (Ky. 1997), as modified on denial of reh'g (Nov. 20, 1997), and holding modified by Gaither v. Justice & Pub. Safety Cabinet, 447 S.W.3d 628 (Ky. 2014)

         According to the plaintiff, he “was singled out and charged with the [Burks] murder . . . in retaliation for his role in the escape[.]” Pl.'s Opp'n at 10 ¶ 25. The plaintiff “was tried and convicted for his participation in the 1988 prison escape.” Id. at 11 ¶ 28. He was sentenced to an additional 15-year term of incarceration and his conviction was affirmed by the Supreme Court of Kentucky. See generally id., Ex. E; see id., Ex F. Montgomery, Sherman and Hudson were also tried and convicted, but their convictions were reversed. Id. at 11 ¶ 29.

         C. The FBI's Investigation

         Unidentified prisoners at the KSP allegedly contacted the Kentucky Alliance Against Racist and Political Repression, resulting in the Alliance contacting the FBI's Louisville, Kentucky field office regarding the murder of Burks and another black inmate allegedly by members of the Aryan Brotherhood. Pl.'s Opp'n at 17-18 ¶ 56; see id., Ex. VV. According to the FBI's declarant, “the FBI assisted local/state law enforcement and the Kentucky State Penitentiary in [an] investigation of civil rights violations against inmates at the Kentucky State Penitentiary by conducting interviews of inmates to determine if their civil rights were being violated.” Hardy Decl. ¶ 49.

         According to the plaintiff, L.V. McGinty, the Special Agent in Charge of the FBI's Louisville field office, was assigned to investigate Burks' murder. Pl.'s Opp'n at 19 ¶ 61. Special Agent McGinty allegedly “[i]nterviewed numerous inmates and KSP administrative officials regarding Glenn Burks['] murder, ” id. at 22 ¶ 71(8), in a “[c]oncurrent investigation conducted with the criminal investigations by the Commonwealth and Kentucky State Police[, ]” id. at 22 ¶ 71(9), which generated “a plethora of documents germane to the Glenn Burks murder and the 1988 prison escape, ” id. at 22 ¶ 71(10). However, none of these documents were made available to the plaintiff during the criminal proceedings on the murder and escape charges. Id. at 23 ¶ 71(11). The plaintiff concludes that the government failed to disclose “a file that contained evidence directly related to his murder and escape cases, ” Pl.'s Opp'n at 23 ¶ 72(3), in violation of Brady v. Maryland, 373 U.S. 83 (1963).

         D. The Plaintiff's FOIA Requests

         When the plaintiff obtained the Kentucky State Police file “indicat[ing] that at some point during the criminal proceedings of [his] case the FBI, through L.V. McGinty[, ] became involved, ” Pl.'s Opp'n at 13 (page number designated by the plaintiff) ¶ 40, he sought to obtain information from the FBI “regarding the escape and documents relative to [the] civil rights investigation that was conducted in and around the time of his criminal trial proceedings, ” id. at 13 ¶ 41. The plaintiff believed “that biological evidence in [his] case may have been turned over to L.V. McGinty of the FBI and taken to the FBI Crime lab to be tested[.]” Id. at 15 ¶ 43.

         The plaintiff submitted two FOIA requests to the DOJ on July 11, 2016. See Complaint for Injunctive Relief (“Compl.”) ¶¶ 7-8.[2] He sought:

copies of all documents in F.B.I. No. 819-776-P4 regarding [his] personal involvement in the June 1988 escape from the Kentucky State Penitentiary . . . or any other documents found in other files regarding the 1988 prison escape inclusive of any Federal Investigation of KSP personnel involvement in the escape as directed by Attorney General Steven Beshear of Kentucky and/or Governor Wallace G. Wilkinson. There is reason to believe that the Kentucky Department of Corrections' Secretary's Fact Finding Report dated July 5, 1988 is also on file with the F.B.I.

Id., Ex. 1. His second request sought:

copies of all documents generated in File No. 44-113631 regarding Office of Origin File 44A-3091, Cross Ref. No. DJ 144-31-994 regarding myself . . . [from] September 1988 [through] April 1990 when the case was closed.

Id., Ex. 2. The FBI assigned each request a separate tracking number, see id. ¶¶ 10-11, and closed the second administratively, id. ¶ 11. Because both requests “share[d] the same information, ” id., Ex. 6, “material responsive to the request[s] would be processed in FOIPA Request Number 1355003-000, ” Hardy Decl. ¶ 9.

         “By letter dated September 15, 2016, the FBI informed [the p]laintiff [that] it located approximately 1, 294 pages potentially responsive to . . . FOIPA Request Number 1355003-000[.]” Hardy Decl. ¶ 11; see Compl. ¶ 12. However, when the plaintiff filed this civil action roughly seven months later, the FBI had not released to him any responsive records. Compl. ¶ 22.

         On August 21, 2017, the FBI advised the plaintiff that it had reviewed 240 pages of records, and of these pages it released to him 157 pages in full or in part, after having redacted certain information under Exemptions 6, 7(C), 7(D) and 7(E). Hardy Decl. ¶ 23. With regard to three pages of these responsive records, the FBI consulted with DOJ's Civil Rights Division, which withheld certain information under FOIA Exemptions 6 and 7(C). See id. ¶¶ 23, 26.

         On September 21, 2017, the FBI advised the plaintiff that it had reviewed 503 additional pages of responsive documents and that it released 13 pages in full or in part, relying on Exemptions 6, 7(C), 7(D), 7(E) and 7(F) for the information it withheld. Id. ¶ 25. The FBI relied on these same exemptions when, on October 23, 2017, it notified the plaintiff of its decision to withhold all of the 441 remaining pages of records it reviewed. Id. ¶ 27.


         A. Summary Judgment Standard

         The Court may grant summary judgment to a government agency as the moving party if the agency shows that there is no genuine dispute as to any material fact and if it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “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 the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

         The Court may grant summary judgment based on information in an agency's supporting declaration if the declaration is “relatively detailed and nonconclusory[.]” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks and footnote omitted). Further, the supporting declaration must “describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted).

         B. The FBI's Searches for Responsive Records

         An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted). The agency may submit affidavits or declarations to explain the method and scope of its search, see Perry v. Block, 684 F.2d 124, 127 (D.C. Cir. 1982), and such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). Here, the defendant's declarant asserts that the FBI's search of its Central Records System (“CRS”) using variations of the plaintiff's name as search terms was a reasonable search. See Hardy Decl. ¶¶ 36-40.

         The CRS contains “applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency[.]” Id. ¶ 29. These files “are organized according to designated subject categories, ” such as investigations the FBI conducts. Id. ¶ 30. “[G]eneral indices to the CRS are the index or ‘key' to locating records within . . . [the] CRS.” Id. ¶ 31. These indices are arranged in alphabetical order and fall within two categories: (1) “main” entries carrying the name of the individual, organization, or other subject matter that is the designated subject of the file, or (2) “reference” or cross-reference entries mentioning an individual who is within a main file indexed to a different individual or subject matter. Id. “FBI employees may index information in the CRS by individual (persons), by organization (organizational entities, places, and things), and by event (e.g., terrorist attack or bank robbery).” Id. ¶ 32. An individual's name “may be recorded ...

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