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Cabezas v. BOP, No. 20-02484, 2023 WL 6312349 (D.D.C. Sept. 28, 2023) (Nichols, J.)


Cabezas v. BOP, No. 20-02484, 2023 WL 6312349 (D.D.C. Sept. 28, 2023) (Nichols, J.)

Re:  Request for records concerning plaintiff and certain federal employees

Disposition:  Denying plaintiff’s motion for summary judgment; granting in part and denying in part defendants’ motion for summary judgment

  • Litigation Considerations, Exhaustion of Administrative Remedies:  Regarding the DOJ’s Office of Professional Responsibility (“OPR”)’s exhaustion argument, the court finds that “[there is] a classic factual dispute.”  “[Plaintiff] says he never received any response from OPR.”  “OPR says it sent one before [plaintiff] filed this action.”  “This he-said, agency-said dispute constitutes ‘a genuine dispute of material fact.’”  “To be sure, an OPR declarant says she sent [plaintiff] a response and attaches a copy of the response letter.”  “But in light of [plaintiff’s] declaration, that is not the sort of overwhelmingly ‘one-sided’ evidence that would justify summary judgment on this contested issue.”  “The Court thus cannot grant summary judgment to either side on the exhaustion issue.”
  • Exemption 6; Exemption 7(C):  The court finds that “[t]he government has also failed to show that a FOIA exemption justifies OPR’s withholding of responsive records.”  “Defendants point to FOIA exemptions 6 and 7(C).”  “The Court starts and ends with Exemption 7(C).”  “[Plaintiff] sought misconduct-, discipline-, and ethics-related records regarding certain law enforcement officers.”  “OPR refused even to confirm or deny the existence of responsive records in what is called a ‘Glomar’ response.”  “With this Glomar response, OPR has failed to satisfy its obligation to ‘measure’ the public interest in disclosure and ‘weigh’ it against the privacy interests at stake.”  “As the Court of Appeals has stated, ‘OPR cannot issue a blanket proclamation that a loss of privacy would be “unwarranted” without considering whether there is a public interest that might well warrant it.’”  “But that is exactly what OPR has done here.”  “OPR offers nothing more than conclusory claims regarding the public interest, simply asserting that ‘disclosure of the files would not significantly contribute to the public’s understanding of the operations or activities of the government.’”  “[Plaintiff], in contrast, puts forward evidence that at least some of the requested records may provide information to the public about how at least one FBI agent conducted child pornography investigations in a questionable manner.”  “OPR also ‘ignores altogether its obligation to specifically identify the privacy interest at stake.’”  “OPR contends generally that ‘even to acknowledge the existence of records related to claims of misconduct by an individual would constitute a clearly unwarranted invasion of personal privacy.’”  “But the privacy interests at stake when disclosing OPR records ‘can vary based on many factors, including frequency, nature, and severity of the allegations.’”  “That is particularly true where, as here, the government has itself already acknowledged an investigation and OPR letter regarding at least one of the agents.”  “In sum, OPR has failed to establish the applicability of Exemption 7(C) because it has not ‘establish[ed] that there would be a single answer to every balancing of interests involving’ each of the requested records.”  “And OPR’s inability to demonstrate ‘an unwarranted invasion of personal privacy’ under Exemption 7(C) dooms its invocation of Exemption 6 as well because ‘Exemption 6 requires an even stronger demonstration of a privacy interest than Exemption 7(C).’”
  • Procedural Requirements, Proper FOIA Request; Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “BOP claims that it never received the request and cannot locate it now even after a thorough search.”  “[Plaintiff] responds with a declaration stating that on May 28, 2019 he sent a FOIA request to the BOP Southeast Regional Office in Atlanta, Georgia at an address with a 30031 zip code and included with the request a certified mail tracking number . . . .”  “His copy of the request shows the same tracking number.”  “His wife says in her own declaration that she saw the USPS tracking website show the package’s arrival in Atlanta on June 4, 2019.” “And she took a screenshot that shows that a package with the same tracking number was delivered to a 30031 zip code in Atlanta on June 4, 2019.”  “In light of this evidence, the Court cannot grant summary judgment to either side.”  “In particular, [plaintiff] has submitted evidence sufficient to create a factual dispute about whether BOP received his request, but that evidence (including the unclear screenshot on which he relies) is not sufficient to establish that BOP in fact received it.”  “Of course, either party could have obviated (and could in the future obviate) the need for the Court to resolve this question – BOP could have simply responded to the FOIA request [plaintiff] identified in this litigation, and [plaintiff] could have simply resubmitted that request.”
  • Litigation Considerations, Adequacy of Search:  The court relates that, regarding “the EOUSA request,” “the parties agree that the agency received [plaintiff’s] request and that [plaintiff] received the agency’s response.”  “The agency even produced some records.”  “The dispute here is over whether the agency adequately searched for all responsive records.”  “[Plaintiff] claims that there is ‘additional log information’ that the agency has not found and released.”  “[Plaintiff] points to two pieces of evidence in support of his theory, but neither suggests an inadequate search.”  “Both come from the log the government provided him which notes each day between January 8, 2018 and February 6, 2018 on which a notice regarding his forfeited property was posted online.”  “[Plaintiff] first points out that the log states that ‘[a]dditional log information is available and kept in the archives for 15 years after the asset has been disposed.’”  “[Plaintiff] views this as proof that there is a more information available elsewhere.”  “But that is speculative at best given the number of things outside the scope of [plaintiff’s] request to which that language might refer.”  “[Plaintiff] also latches onto the fact that the log describes itself as ‘a summary report.’”  “Cabezas surmises that when there is a ‘summary’ report, there must also be a more detailed report.”  “But beyond that supposition, there is no evidence of that being the case here.”  “As a result, the Court grants Defendants’ motion for summary judgment as to the EOUSA FOIA request and denies [plaintiff’s].”
Court Decision Topic(s)
District Court opinions
Exemption 6
Exemption 7(C)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Exhaustion of Administrative Remedies
Procedural Requirements, Proper FOIA Requests
Updated November 3, 2023