United States District Court, District of Columbia
B. WALTON UNITED STATES DISTRICT JUDGE
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.
The Murder of Glenn Burks
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 ¶
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.
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
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.
Escape from the Kentucky State Penitentiary
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
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)
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.
The FBI's Investigation
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.
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).
The Plaintiff's FOIA Requests
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.
plaintiff submitted two FOIA requests to the DOJ on July 11,
2016. See Complaint for Injunctive Relief
(“Compl.”) ¶¶ 7-8. 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.
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.
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,
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. ¶
Summary Judgment Standard
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)).
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
The FBI's Searches for Responsive Records
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.
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 ...