Landis v. BOP, No. 21-0504, 2023 WL 3340187 (D.D.C. May 10, 2023) (Kollar-Kotelly, J.)

Landis v. BOP, No. 21-0504, 2023 WL 3340187 (D.D.C. May 10, 2023) (Kollar-Kotelly, J.)

Re:  Requests for records concerning lawsuits involving certain BOP employees, as well as their salaries

Disposition:  Denying plaintiff’s motion for summary judgment; denying two defendants’ cross-motions for summary judgment

• Litigation Considerations, Adequacy of Search & Responding to FOIA Requests:  Regarding EOUSA’s searches, as to one search, the court holds that “EOUSA is not entitled to summary judgment on this point because it fails to demonstrate that its search was reasonable under the circumstances.”  “EOUSA neither indicates what system of records was likely to contain responsive records, describes how the search was conducted nor identifies the records located and released to plaintiff.”  As to another search at issue, the court finds that plaintiff’s argument that a search regarding “his request for ‘any and all documents related to the EOUSA’s representation of the BOP or BOP employee in any civil case where judgment was rendered against the BOP or BOP employee for violating the civil rights of any inmate confined at USP Lewisburg’” should result in responsive records, the court finds that “the adequacy of an agency's search is judged ‘not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.’”  However, regarding that same search, the court finds that “EOUSA’s declarant states that the agency referred plaintiff’s FOIA request to the United States Attorney’s Office for the Western District of Pennsylvania because the prison is located there and because plaintiff asked that that office’s records be searched.”  “But the prison, USP Lewisburg, is located in the Middle District of Pennsylvania, as plaintiff’s FOIA request indicates.”  “In this circumstance, EOUSA does not demonstrate that a search of Western District records was reasonably calculated to locate records responsive to a request pertaining to USP Lewisburg in the Middle District of Pennsylvania.”
  
  As to OPM’s search, “[t]he Court accepts OPM’s representation that it did respond to plaintiff’s FOIA requests . . . and, therefore, denies plaintiff’s summary judgment motion in part.”  “However, because OPM does not demonstrate that its search for responsive records was reasonable, the Court will deny its cross-motion for summary judgment.”  “OPM’s declarant states that responsive records likely would be maintained by its Human Capital Data Management and Modernization Directorate (HCDMM) in the Enterprise Human Resources Integration database (EHRI) . . . and that HCDMM staff sent the requested data to plaintiff on a single CD by certified mail . . . .”  “The declarant offers no description of EHRI, how its records are organized, the means by which EHRI is searched, or the responsive records themselves. On this meager record the Court cannot determine whether the search was a reasonable one.”
   
• Exemption 6:  The court finds that “[i]t is apparent that OPM’s responsive records qualify as personnel and similar files within the scope of Exemption 6.”  “OPM falters, however, because its declaration asserts in conclusory fashion that release of the ‘names and duty locations, personnel and medical files . . . would constitute a clearly unwarranted invasion of personal privacy.’”  “OPM relies on its Data Release Policy (https://www.opm.gov/policy-data-oversight/data-analysis-documentation/data-policy-guidance/data-standards/data-release-policy-november-2018.pdf) ‘which provides for the redaction of identities and duty station locations of individuals in sensitive occupations, employed by designated Security Agencies, or at the Department of Defense,’ . . . yet offers no explanation of how the policy applies to BOP and its employees.”  “While OPM’s Data Release Policy designates the Federal Bureau of Investigation, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Alcohol and Tobacco Tax and Trade Bureau, the United States Mint, the United States Secret Service, and all U.S. Attorneys’ Offices as ‘security/sensitive agencies,’ responsive records presumably include employees who are not correctional officers and whose occupations might not be sensitive, raising a question as to whether OPM’s Data Release Policy applies to all BOP employees.”  “Given the lack of clarity as to the nature of the responsive records and the employees about whom OPM has redacted information, the Court cannot evaluate the privacy interest at stake or, in turn, whether the privacy interest outweighs any public interest in disclosure.”