Gannett Satellite Info. Network, LLC v. DOJ, No. 22-475, 2025 WL 416258 (D.D.C. Feb. 6, 2025) (Howell, J.)

Gannett Satellite Info. Network, LLC v. DOJ, No. 22-475, 2025 WL 416258 (D.D.C. Feb. 6, 2025) (Howell, J.)

Re:  Request for individual-level data about people who died while in custody of local jails, state prisons, and Federal Bureau of Prisons (“BOP”) between 2010 and 2019

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

• Procedural Requirements, Searching for Responsive Records; Litigation Considerations, Adequacy of Search: The court relates that, “[h]ere, plaintiff’s challenge to the adequacy of defendant’s search rests on the parties’ dispute about whether BOP data submitted to BJS [the Bureau of Justice Statistics] are records ‘relevant’ to plaintiff’s FOIA request.”  “Plaintiff argues that this BOP data is relevant and thus ‘must [be] produce[d].’”  “Defendant, meanwhile, concedes that no search ‘for records submitted by federal law enforcement agencies (including the Bureau of Prisons)’ was conducted . . . and argues that BOP records are not relevant to the FOIA request at issue because ‘BJS never collected [Mortality in Correctional Institutions (“MCI”) Program] data from BOP[]’ . . . .”  “To be sure, plaintiff’s FOIA request specifically asked for ‘all information submitted to BJS under the [MCI] program.’”  “Normally, defendant’s declaration that ‘BJS never collected MCI data from the Federal Bureau of Prisons,’ . . . would be dispositive in defendant’s favor, since, if BOP data was never collected by the MCI program, such data would not fall within the four corners of plaintiff’s FOIA request.”  “Plaintiff, however, argues such a result would be ‘inequitable,’ . . . because plaintiff’s understanding that the MCI program included BOP data was due to ‘false information’ on defendant’s ‘own website,’ . . . and defendant, despite being on notice about plaintiff’s understanding about the scope of the MCI program’s data collections for more than two years, ‘fail[ed] to correct’ this erroneous information . . . .”  “This Court agrees with plaintiff.”  “Based on this public representation from DOJ, plaintiff reasonably and logically assumed that BOP data was included within the scope of its FOIA request seeking data from the MCI program.”  “Defendant made no effort to correct or otherwise clarify the scope of the data collected by the MCI program in the first round of summary judgment briefing.”  “For roughly two and a half years, since the filing of plaintiff’s first cross-motion for summary judgment . . . plaintiff has clearly communicated its understanding that the request for ‘all information submitted to BJS under the [MCI] program[]’ . . . includes BOP data, . . . which view was adopted by the Court in reliance on the parties’ briefing . . . .”  “Rather than correcting plaintiff’s understanding, based on defendant’s own error, through conferral or a court filing, defendant did not act to clarify the information, resulting in plaintiff continuing to litigate for BOP records in this case rather than filing ‘a separate FOIA request for [that] data’ or seeking alternative solutions.”  “Defendant cannot now, in fairness, be allowed to wash its hands of the issue and walk away so easily, claiming the misunderstanding is ‘simply a clerical error.’”  “In these circumstances, defendant cannot ‘ignore what it cannot help but know[]’ . . . – that plaintiff sought BOP records submitted to BJS through the FOIA request in this case.”  “Any misunderstanding by plaintiff of the scope of the MCI program’s data collections was the result of defendant’s own erroneous public representations that defendant failed to clarify over almost two years of active litigation.”  “Given defendant’s duty to ‘construe [the] FOIA request liberally[]’ . . . and make ‘a good faith effort to conduct a search for’ the records requested by plaintiff, . . . defendant’s failure to search for BOP data submitted to BJS . . . renders defendant’s search inadequate.”
   
• Exemption 7, Threshold: The court relates that “defendant asserts that FOIA Exemptions 6 and 7(C) were properly invoked to redact the data so far produced to plaintiff, to protect the identities of those who died in custody.”  Regarding the Exemption 7 threshold, the court finds that “BJS does not specialize in law enforcement.”  “To the contrary, ‘BJS’s enabling statute expressly forbids it from compiling data for law enforcement purposes.’”  “Thus, defendant’s invocation of Exemption 7(C) to shield BJS records from disclosure ‘merits no deference.’”  “In any event, the record is devoid of any factual evidence to satisfy defendant’s burden of showing the data at issue was compiled for law enforcement purposes.” “The only evidence offered to support defendant’s invocation of Exemption 7(C) is a single paragraph in one declaration, asserting that Exemption 7(C) was properly invoked ‘[b]ecause the information contained in the requested MCI data concerns information compiled for law enforcement purposes (correctional institutions).’”  “This declaration provides no factual information describing the existence of a law enforcement investigation or linking any of the data requested by plaintiff to any such investigation.”  “In short, defendant has put forward no factual information to support a finding that any, much less all, of the data at issue was gathered for a law enforcement purpose.”  “Defendant’s ipse dixit explanation is insufficient to support Exemption 7(C).” “Nor can defendant prevail merely because the data sought was originally collected by ‘correctional institutions,’ as [defendant’s] Declaration seems to suggest.”  “‘Not every document compiled by a law enforcement agency satisfies the law enforcement purpose inquiry.’”
   
• Exemption 6:  The court holds that “defendant’s withholdings, pursuant to Exemptions 6 . . . do not withstand scrutiny, and defendant will be directed to disclose the data without redactions.”  The court relates that “[h]ere, defendant contends that ‘the records at issue . . . contain precisely the kind of highly sensitive and potentially embarrassing information about the subjects of the records that merits protection even post-mortem.’”  “As support, defendant notes that the data contains information about ‘the full name, date of birth, and date of death of the deceased inmate,’ ‘the deceased inmate’s race and ethnicity, the date of their admission to the correctional facility, and their crime(s) of conviction[,]’ as well as ‘whether the deceased inmate stayed overnight at a mental facility; the inmate’s place of death and the location of the incident causing the death . . . ; the cause of death (with specific variables for causes including AIDS-related illness, accidental alcohol or drug intoxication, suicide, and homicide); and details about the inmate’s medical and surgical care.’”  The court first finds that, “[h]ere, both parties agree that the data sought qualifies as ‘similar files’ sufficient to trigger application of Exemption 6.”  “This conclusion is supported by the record, since plaintiff requests data that consists of ‘detailed Government records on . . . individual[s] which can be identified as applying to th[ose] individual[s][]’ . . . .”
  
  Regarding the privacy interests, the court finds that “defendant provides no support for the assertion that variables such as name, birth date, death date, race, ethnicity, or date of admission to a correctional facility would reveal sensitive or embarrassing information about any individual.” “Moreover, the D.C. Circuit has previously held that even living individuals have ‘not . . . much more’ ‘than a de minimis privacy interest’ in the disclosure of a crime of conviction, since such information is ‘already publicly available and readily accessible to anyone who might be interested in it.’”  “In this case, where both parties agree that any privacy interests implicated by disclosure are diminished because the individuals in question are all deceased, . . . many of the individuals named in responsive records would not have a substantial privacy interest in such information, but instead only a de minimis one.”  “On the other hand, disclosing information that would reveal that an individual suffered from mental health or substance abuse issues or died as the result of an ‘AIDS-related illness, accidental alcohol or drug intoxication, suicide, [or] homicide[]’ . . . is, in the abstract, sufficiently ‘intimate and sensitive[]’ . . . to implicate a substantial privacy interest.”  “This privacy interest, however, cannot support withholding the identity of all 16,625 inmates in the data so far produced to plaintiff . . . given the lack of evidence to suggest the data would reveal such information about all 16,625 inmates.”  “Nevertheless, in withholding the identities of every deceased inmate on these grounds, defendant has utterly failed to conduct the ‘case-by-case evaluation’ of the applicable privacy interests required by Exemption 6.”  “In sum, at this initial stage of the balancing inquiry, the deceased inmates in the data sought by plaintiff fall into two separate categories.”  “The first group consists of inmates for whom disclosing their identities would not disclose any of the intimate and sensitive information discussed above, such as mental health or substance abuse issues or a death resulting from AIDS, intoxication, homicide, or suicide.”  “As to these inmates, defendant has failed to demonstrate a substantial privacy interest exists, and thus the Exemption 6 claim fails, without needing to proceed to step two of the balancing inquiry.”  “The second group consists of inmates as to whom disclosing their identities would reveal some or all of the sensitive information discussed above.”  “For those individuals, defendant has shown the existence of a more than de minimis privacy interest sufficient to invoke Exemption 6, although the strength of this interest is somewhat diminished because all of the individuals are deceased[] . . . .”  “Plaintiff argues that two other factors further decrease this privacy interest:  (1) the family members of deceased inmates ‘overwhelmingly’ support disclosure of the information sought . . . and (2) ‘much of [the] data’ sought by plaintiffs is already made available by states . . . .”  “In this case, however, neither argument has been sufficiently established to diminish the significant privacy interests at stake for the second group of inmates.”  “The desires of some families, even several ‘dozens of people whose loved ones died in jails and prisons,’ for the information to be revealed publicly . . . does not mean the release would not implicate privacy concerns for other families.” “As to plaintiff’s second argument, which suggests that much of the data sought is already regularly released to the public by states, thus reducing any privacy interest in that information, . . . the record is simply not clear about how many states publicly release death-in-custody information, or what specific information is released . . . .”
  
  Regarding the public interest, the court finds that “plaintiff has succeeded in demonstrating four distinct, strong public interests in disclosure of the unredacted data sought.”  “First, plaintiff claims the data would help ‘shed light on whether DOJ is properly allocating funding on matters correlated with inmate mortality.’” The court finds that “[w]hether or not the data collected by the MCI program is specifically considered in allocating such grants, this data and subsequent reporting relying on the data could be probative of the effectiveness of grantmaking by allowing the public to compare the deaths reported in the MCI data to the facilities receiving funding and evaluate how well, if at all, DOJ grantmaking is helping to reduce deaths – or as plaintiff puts it, ‘whether [the agency] is doing [its job] well[]’ . . . .”  “The current redactions would significantly hamper those efforts, since, for instance, ‘the facility where the inmate died’ was redacted in ‘58 percent of cases’ in the data provided to plaintiff, ‘making it impossible to identify trends with respect to specific prisons and jails.’”  “Second, plaintiff argues the unredacted data would help ‘reveal the effectiveness of DOJ’s support to state and local governments,’ . . . including the efficacy of training provided to help reduce deaths and ‘whether the federal government is sufficiently investigating state and local facilities[]’ . . . .”  “This purported public interest, like the first, is strong, and DOJ offers no rebuttal.” “Third, plaintiff contends that disclosing the data would ‘shed light on DOJ’s implementation of [Death in Custody Reporting Act (“DCRA”)]’s’ reporting requirement, including its determination of the relationship between deaths and the management of the facilities in question, including allowing ‘the press to fill [any] gaps’ left by the report.” The court finds that “[a]ccess to the raw data would allow [certain news outlets] and other entities and individuals to perform their own analysis, providing the public with valuable information about the possible strengths and weaknesses (or complete oversights or omissions) of the DOJ analysis, which in turn would allow the public to determine how well DOJ carried out this specific statutory duty.”  “Finally, plaintiff argues that the unredacted data would enable public scrutiny of ‘the Attorney General’s decision’ not to invoke the penalty provision in DCRA 2013 against states that fail to meet their reporting obligations.”  “This interest, too, is exactly the type of public interest cognizable under FOIA, relating to informing the public about the agency’s use of its statutory powers.”
  
  “The final step of the analysis pits one diminished privacy interest against four strong public interests – a balance that strongly favors disclosure.”  “In light of the strong public interests present and the diminished privacy interest opposing them, any invasion of privacy from disclosure of the withheld information would not be clearly unwarranted, and thus summary judgment is granted to plaintiff as to Exemption 6.”
   
• Exemption 3: Addressing defendant’s motion for reconsideration, the court finds that “defendant properly invoked Exemption 3 as to data collected by the MCI program from 2010 to October 1, 2015, and thus is not required to produce this data.”  “In granting summary judgment to plaintiff on defendant’s invocation of Exemption 3, the Court did ‘not address’ the fact that ‘plaintiff requests information during a time when no DCRA reporting requirement was in effect.’” “Of course, this issue was not considered because ‘[n]either party raise[d]’ it.”  “Still, this information is crucial to the central issue in that decision – ‘whether the text of the Crime Control Act’s confidentiality provision exempts disclosure of the requested information under FOIA Exemption 3,’ – and was not considered in the decision . . . .” “Summary judgment was granted to plaintiff on Exemption 3 ‘because the requested information was “furnished under” or “pursuant to” the DCRA.’”  “Both parties now acknowledge . . . that DCRA was not in effect between 2010 (the start date of plaintiff’s FOIA request) and October 1, 2015 (the effective date of DCRA 2013).”  “Therefore, the data collected by the MCI program could not have been furnished pursuant to DCRA authority during this time.”
  
  “Plaintiff contends this reality does not necessitate a finding that the data collected during this time was furnished under the Crime Control Act.”  “While tempting, this argument ultimately fails because plaintiff is unable to point to any other authority for BJS’s MCI data collection during this period.” “The 1979 amendment to the Crime Control Act authorizes BJS to ‘collect and analyze statistical information, concerning the operations of the criminal justice system at the Federal, State, and local levels.’”  “Without a more specific authority such as DCRA, BJS’s data collections would be performed ‘pursuant to’ this general authority, meaning that the privacy provision of Title I of the Crime Control Act would apply to the data collected.” “Since both parties agree that this privacy provision qualifies for Exemption 3, . . . denying reconsideration would ultimately be unjust, despite defendant’s failure initially to brief or timely raise this issue . . . .”
  
  However, the court finds that “Defendant has not provided an adequate basis for reconsideration as to data submitted to BJS by local jails, rather than state departments of corrections.”  “On this issue, defendant contends that DCRA required states to report death-in-custody data without extending that requirement to local entities.”  “Yet, nothing in the DCRA counsels against treating ‘submissions by local governments’ as ‘attributable to the relevant state and thus furnished under DCRA whoever takes the clerical step of submitting them.’” “Specifically, both DCRA 2000 and DCRA 2013 require death in custody data to be reported from ‘municipal [and] county jail[s],’ . . . but despite this clear mandate, defendant strains to argue that if such required data is not funneled to BJS through a state collection method, the submission is not required by the DCRA and amounts to only a voluntary submission under the Crime Control Act . . . .”  “This proffered interpretation is an overtechnical reading to avoid disclosure of data the DCRA clearly mandates be submitted to BJS, and is rejected.”  “The DCRA clearly requires that deaths in custody at municipal and county jails be reported to BJS, whether via a state collection system or an alternative method.” “In this circumstance, no error, let alone plain error, was made . . . to warrant reconsideration.”