Pinson v. DOJ, No. 12-1872, 2016 WL 29245 (D.D.C. Jan 4, 2016) (Contreras, J.)

Pinson v. DOJ, No. 12-1872, 2016 WL 29245 (D.D.C. Jan 4, 2016) (Contreras, J.)

Re: Multiple requests for various records

Disposition: Granting in part and denying in part defendant's motion for partial summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  First, the court finds that "not only has [plaintiff] failed to provide any evidence that [nineteen] requests were received by BOP, but [plaintiff's] opposition fails to mention these requests at all."  "The Court therefore deems conceded the BOP’s motion for summary judgment as to the nineteen unnumbered requests."  Second, "[g]iven the factual disputes on this issue, the Court cannot grant the DOJ’s motion for summary judgment on exhaustion grounds with respect to . . . five requests."  "[T]he Court must accept as true [plaintiff's] declaration that he only received an acknowledgement letter and never received the BOP’s final response letters as to [the five requests]."  "And if it turns out that [plaintiff] did not receive the BOP’s final response letter, he cannot 'be deemed to have exhausted his administrative remedies' because he was denied the opportunity to reformulate his request or appeal the determination that the request was improper."  "With respect to two other requests BOP claims [plaintiff] never appealed, however, the Court finds that [plaintiff] has failed to raise a material issue of fact because his verified Second Amended Complaint directly contradicts the assertions he makes in his more recent declaration."  "[T]he Court finds that [plaintiff] has not exhausted his administrative remedies and thus grants summary judgment in favor of the DOJ."  Regarding an additional two requests, the court finds that "neither the DOJ nor [plaintiff] have supplied [plaintiff's] original appeal, and the record does not otherwise indicate when [plaintiff] filed those appeals."  "Without this information, the Court cannot resolve whether [plaintiff] has exhausted his administrative remedies and therefore cannot grant summary judgment as to [these two requests]."
   
• Fees and Fee Waivers, Fees:  First, "the Court grants the DOJ’s motion for summary judgment as to [two] FOIA [requests]."  The court explains that "[plaintiff] does not attest that he either paid the $290.00 fees or asked to modify his requests."  However, regarding several other requests, the court rejects defendant's "conten[tion] that [plaintiff] did not exhaust his administrative remedies for these requests because he failed 'to ask the BOP to reopen [these] requests' after he 'ultimately paid' the $72.90 fee."  The court explains that "BOP’s letters merely stated that 'the above referenced request ... will not be processed until your payment . . . is received.'"  The court finds that "[t]his open-ended language lends the impression that the BOP would continue to process [plaintiff's] requests automatically once his payment was received."  "Nowhere with respect to most of these requests did the BOP advise [plaintiff] that his requests would be administratively closed or that he must request that the BOP reopen the requests or submit a new request altogether."  However, regarding one other request, the court finds that "[b]ecause [plaintiff] did have notice that his request was closed, and was informed that he would need to file a renewed request after he paid the outstanding fee, the Court will grant the DOJ’s motion for summary judgment . . . because [plaintiff] failed to exhaust his administrative remedies."
   
• Litigation Considerations, Adequacy of Search:  The court finds defendant's searches in response to some requests satisfactory and defendant's searches in response to other requests unsatisfactory.  The court finds that "[f]or several of these requests, the declarations’ descriptions suffice to provide a 'reasonably detailed' account of the scope of the BOP’s search for each request."  "The declarations describe to whom the request was forwarded, which specific databases were searched, how those databases store information and how that information is searchable, and, where appropriate, identify the specific search terms used to locate documents with respect to each of [plaintiff's] requests."  "Despite [plaintiff's] failure to contest the searches’ adequacy, however, the Court finds that two of the affidavits the DOJ has proffered are plainly deficient" because they "do no more than indicate that a search was conducted, and therefore fail to supply the level of specificity necessary to establish an adequate search at summary judgment."
   
• Exemption 5, Deliberative Process Privilege:  The court relates that "DOJ argues that these email discussions about [plaintiff's] housing were both predecisional and deliberative because 'they reflect the give-and-take of discussing possible ways to manage and house plaintiff.'"  The court finds that "[b]ecause [plaintiff] has not contested this argument in his oppositions, the Court deems the DOJ’s argument conceded."
   
• Exemption 6:  "[T]he Court finds that the DOJ’s arguments with respect to Exemption 6 withstand [plaintiff's] conclusory challenge."  "With respect to the specific records at issue in this case, [plaintiff] has failed to identify any particular release with which he takes issue."  "It is not this Court’s role to comb through DOJ’s filings and the accompanying Vaughn indices to determine which releases [plaintiff] contests."  "Because [plaintiff] has not demonstrated which particular releases improperly withheld names of staff members, the Court is unable to conduct the balancing of interests required by Exemption 6 and, thus, deems [plaintiff's] general argument insufficient."
   
• Exemption 7, Threshold:  The court relates that "[plaintiff] has not disputed—that the responsive records at issue in this case were compiled for law enforcement purposes within the scope of Exemption 7."  "The Court therefore deems the DOJ’s threshold argument conceded."  Nonetheless, the court does note that "[i]t is apparent that the protection of all persons charged with or convicted of offenses against the United States is a primary responsibility of the BOP."  "The plain language of plaintiff’s FOIA requests—all of which pertain to inmate and prison matters handled by the BOP—and the location of the responsive records in criminal-related databases . . . evidence a law enforcement purpose: that is, the protection and management of all persons charged with or convicted of offenses against the United States."
   
• Exemption 7(C):  The court finds that "because [plaintiff] has not specifically identified any particular release, he has not sufficiently explained why the BOP’s invocation of Exemption 7(C) to withhold staff names in any particular instance was improper and the Court is unable to conduct the balancing of interests required by Exemption 7(C)."  "The Court will not assume the role of advocate for [plaintiff] and determine which particular releases he challenges."
   
• Exemption 7(E):  "As with the other exemptions, [plaintiff] has not otherwise contested the DOJ’s arguments with respect to Exemption 7(E)."  "Consequently, the Court deems those arguments as conceded."