ACLU v. BOP, No. 20-2320, 2022 WL 17250300 (D.D.C. Nov. 28, 2022) (Walton, J.)

ACLU v. BOP, No. 20-2320, 2022 WL 17250300 (D.D.C. Nov. 28, 2022) (Walton, J.)

Re:  Request for records concerning “‘COVID-19 and the costs of carrying out federal executions’”

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Exemption 4:  The court holds that “defendant has properly withheld this information pursuant to Exemption 4.”  The court relates that “[h]ere, the defendant has withheld two types of information pursuant to Exemption 4:  (1) ‘information provided to [the Bureau] by individuals or companies who performed critical services relating to the federal execution process, such as third-party contractors,’ . . . and (2) ‘information provided to [the Bureau] by individuals or companies who provided pentobarbital or performed pentobarbital-related critical services,’ . . . .”  “In effect, the defendant has withheld both the ‘identities of the pentobarbital suppliers[,]’ . . . and ‘[i]nformation [a]bout [c]ontract [t]erms, [p]ricing, and [s]imilar [i]nformation [r]egarding [the Bureau’s] [s]upply of [l]ethal [i]njection [s]ubstances[.]’”  “The parties agree that this information was ‘obtained from a person[,]’ . . . within the meaning of Exemption 4, . . . but the plaintiffs ‘dispute whether the information is commercial and whether it is confidential [.]’”
  
  First, the court relates that “defendant argues that ‘disclosure of [the identities of] the individuals and companies who do business with [the Bureau] in connection with [the Bureau’s] federal execution responsibilities would subject them to controversy and injure their commercial interests[.]’”  The court notes that “[a]nother member of [the] Court has specifically concluded that, because pentobarbital is supplied for executions, ‘pentobarbital suppliers face a serious risk to their commercial fortunes should the public become aware that they supply the drug to the government[.]’”  The court finds that “defendant has stated a ‘potential effect that disclosure would have on [the suppliers’ and service providers’] businesses[,]’ . . . which is beyond ‘mere conjecture[.]’”  “Moreover, the suppliers and service providers have also ‘taken affirmative steps to protect their identities[.]’”  “Accordingly, the Court concludes that the identities of the individuals or companies who performed critical services relating to the federal execution process, such as third-party contractors, as well as the identities of the pentobarbital suppliers, constitute commercial information pursuant to Exemption 4.”
  
  Second, the court relates that “defendant represents through its declarant that . . . ‘the individuals/companies providing the information have typically kept it private.’”  The court further relates that defendant stated that “‘[t]his information is kept private because those individuals and companies involved in [the Bureau’s] procurement of [p]entobarbital and third-party contractors who provide critical execution-related services, are well aware that those involved in the execution process (at the state or federal level) are commonly subject to harassment, threats, and negative publicity leading to commercial decline.’”  “[T]he Court . . . concludes that the defendant, through this declaration, has established that the information withheld was customarily kept confidential.”  Additionally, the court finds that “[defendant] states that ‘the individuals/companies providing the information . . . have expressly required or requested that the [g]overnment maintain the information as confidential to the greatest extent possible under the law, a condition to which the [g]overnment has agreed to abide during in-person meetings and/or telephone conference calls.’”  “Accordingly, the Court concludes that the withheld information constitutes confidential commercial information within the meaning of Exemption 4.”
   
• Exemption 6:  “[T]he Court concludes that, except for [one record], the Bureau has properly withheld [the records at issue] pursuant to Exemption 6.”  The court relates that defendant withheld “names, register numbers, initials, signatures, addresses, email addresses, telephone numbers, job titles, department titles, law enforcement credential numbers, and bank account information that could be used to identify [Bureau] staff, outside law enforcement officers involved in the execution protocol, third-party contractors, third-party individuals who participated in the federal government’s procurement of pentobarbital or provided critical pentobarbital-related services, and other third-party individuals including inmates.”  The court holds that all except one of the records containing the withheld information “contain information related to ‘COVID-19 testing[,]’ . . . which clearly qualify as medical files of either staff or inmates,” or “contain ‘bits of personal information, such as names . . . , the release of which would “create[ ] a palpable threat to privacy[.]”’”  “In contrast, the description of [one record] does not identify any actual personal information contained in the file.”  “Instead, the Vaughn Index describes this file as being redacted to the extent that it contains ‘[c]ost information, which could reveal the number of individuals traveling from a specific location.’”  The court finds that that record “appears to only contain aggregate personnel costs.”
  
  The court then finds that “records 1–7, which contain COVID-19-related material, clearly implicate a substantial privacy interest.”  “As to the remaining records withheld pursuant to Exemption 6, which relate to the federal execution process, the defendant argues that ‘revealing the identities of individuals associated with the process would reveal highly sensitive information – that those individuals participated in the federal execution process.’”  “[T]he Court concludes that the defendant has articulated a ‘“risk” of harassment that is both “justified and articulable[,]”’”  “Furthermore, to the extent that the connection between the withheld information and the realization of this risk is somewhat attenuated, . . . ‘where “a substantial probability that disclosure will cause an interference with personal privacy” exists, “it matters not that there may be two or three links in the causal chain[.]”’”  “As to record 16, however, ‘the problem is one of likelihood, not causation, for the [Bureau] has failed to show that [identification of individuals] is likely to occur[,]’ . . . based upon this particular record.”  “The Court therefore agrees with the plaintiffs that an ‘[e]xpense report for personnel costs related to July/Aug[ust] 2020 executions[,]’ . . . which the defendant redacted to the extent that it contained ‘[c]ost information, which could reveal the number of individuals traveling from a specific location[,]’ . . . would arguably not be likely to lead to the identification of individuals, sufficient that disclosure ‘would constitute a clearly unwarranted invasion of privacy[.]’”  “Finally, the Court concludes that the privacy interests implicated by disclosure of records 1–10, 12–13, 15, and 17–19 outweigh the public interest in disclosure.”  “Although the Court recognizes the significant public ‘interest in how [the Bureau] spends taxpayer money and performs its duties[,] . . . in the context of the [federal executions] during a global pandemic[,]’ . . . the Court concludes that ‘the strong privacy interests the affected individuals have in “avoiding physical danger” and harassment . . . clearly outweigh the [ ] public benefit, if any, that can be gained from revealing their identities[,]’ . . . .”  “Furthermore, the Court agrees with the defendant that ‘any interest by [the p]laintiffs in what their government is up to has largely been met by the hundreds of pages of documents released by [the Bureau,]’ including ‘extensive records detailing [the Bureau’s] expenditures in service of federal executions, travel costs, the number of [Bureau] employees staffed at the Incident Command Center during executions, and [the Bureau’s] response to COVID-19[.]’”
   
• Exemption 7, Threshold:  The court finds that “the Bureau of Prisons ‘“is a law enforcement agency [entitled to] deference” on its claims of law enforcement purpose.’”  “Furthermore, the records at issue – ‘all of which address either the [Bureau’s] response to COVID-19 at FCC Terre Haute or [the Bureau’s] implementation of federal executions,’ . . . —were all either compiled as part of the Bureau’s ‘law enforcement mission of protecting inmates, staff, and the community[.]’ . . . or as part of its execution process.”  “Therefore, although the plaintiffs argue that many of the records are tangential to the defendant’s prison management and execution-related activities and responsibilities, . . . considering the significant deference accorded to the Bureau as a law enforcement agency, . . . the Court concludes . . . that [the] categories of records [at issue] were ‘compiled for law enforcement purposes[.]’”
   
• Exemption 7(C):  The court relates that “defendant applies Exemption 6 and 7(C) to the same set of withholdings.”  “Because the Court has already concluded that [most records containing both exemptions] were properly withheld under the narrower standard applicable to Exemption 6, it need not address whether the withholding of these records meets the broader standard imposed in the Exemption 7(C) context.”  “However, because the Court found that [one record] was not properly withheld pursuant to Exemption 6, . . . it must now address whether this record is protected from disclosure under the lower standard imposed pursuant to Exemption 7(C).”  “The defendant describes the redacted portion of [the one record] as ‘[c]ost information, which could reveal the number of individuals traveling from a specific location’ and applies Exemption 7(C) for what it characterizes as ‘[i]nformation that could lead to the identity of [Bureau] staff.’”  The court relates that defendant states that “‘[t]he redacted information could reveal the number of individuals traveling from each specific location, and thus the number of staff from each of the institutions participating in the executions.’”  The court relates that defendant further explains that “‘Because the number of staff participating from each institution is low, revealing the number of staff involved from each institution would permit identification of the specific individuals by process of elimination or investigation.’”  The court finds that “‘it is this dual request – the number of personnel associated with specific facilities – that makes the identification of specific individuals possible.”  “‘[A]ccept[ing] as true’ unrebutted factual assertions made by the defendant in its declarations, . . . the Court concludes that although record 16 may not rise to the level of ‘a clearly unwarranted invasion of personal privacy[,]’ . . . it ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy[.]’”  “Furthermore, for the same reasons articulated in the context of the application of Exemption 6, . . . the privacy interests implicated by disclosure of [the one record] outweighs the public interest in disclosure.”  “Accordingly, the Court concludes that the defendant properly withheld [the records at issue] pursuant to Exemption 7(C).”
   
• Exemption 7(E):  “[T]he Court concludes that the defendant improperly withheld these documents pursuant to Exemption 7(E).”  The court relates that the withheld records “concern the federal execution process and were withheld or redacted in order to protect the ‘[i]dentity of [h]otel(s) from whom rooms were reserved for overnight lodging of [Bureau] staff, contractors, and witnesses’ . . . .”  The court finds that “the defendant’s statement in its declaration that the information withheld ‘describ[es] the guidelines, techniques and procedures used[,]’ . . . in the federal execution process context make it ‘facially clear that the withheld records satisfy this first part of the exemption – that they be “techniques and procedures[.]”’”  “[However], the records withheld by the defendant . . . do not on their face involve any investigatory or prosecutorial function, . . . even though they concern internal emergency responses or safety protocol . . . .”  “[T]he defendant has failed to establish any clear nexus between these records and an investigatory or prosecutorial function, instead stating that disclosure of the records would ‘reveal specific law enforcement techniques and strategies to prepare for and implement a federal execution, as well as expose [the Bureau’s] capabilities and vulnerabilities in responding to emergencies or unrest related to carrying out a federal execution.’”  “Thus, although the defendant describes the potential effects that could result from disclosure, it does not establish how these records are investigatory or prosecutorial in nature.”
   
• Exemption 7(F):  “First, regarding the defendant’s withholdings of records containing identifying information, the Court concludes that these records were properly withheld.”  The court finds that “defendant has presented a viable ‘nexus between disclosure and possible harm[.]’”  “Based on these representations, the Court also concludes that the defendant properly withheld ‘the names of hotels where rooms were reserved for [Bureau] staff, contractors, and witnesses associated with federal executions.’”  “The defendant has articulated ‘a reasonable expectation of endangerment[,]’ . . . in stating that ‘[i]dentifying these hotels could reasonably be expected to endanger individuals associated with the execution process by “providing an opportunity for ill-intentioned individuals opposed to the death penalty to stake out a particular hotel’ for purposes of harassment or other nefarious acts[.]’”  “Finally, the Court concludes that the defendant properly withheld ‘blueprints of the execution facility[,]’ . . . pursuant to Exemption 7(F).”  “[T]he Court finds that the defendant has articulated a ‘nexus between disclosure and possible harm[,]’ . . . especially given the Circuit’s regard for critical infrastructure information as inherently sensitive and clearly subject to the protections of Exemption 7(F) . . . .”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court concludes that the Bureau has adequately demonstrated that it ‘disclose[d all] reasonably segregable material.’”  “The Bureau represents that it ‘conducted a page-by-page and line-by-line review of each responsive record to achieve maximum disclosure consistent with the access provisions of the FOIA and the FOIA statutory exemptions[,]’ and ‘[e]very effort was made to provide [the plaintiffs] with all reasonably segregable, nonexempt information in the responsive records.’”