Pinson v. DOJ, No. 12-1872, 2016 WL 4074130 (D.D.C. July 29, 2016) (Contreras, J.)

Pinson v. DOJ, No. 12-1872, 2016 WL 4074130 (D.D.C. July 29, 2016) (Contreras, J.)

Re: Request for correspondence between the OAG and BOP Director, as well as records concerning BOP Director

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

• Litigation Considerations, Exhaustion of Administrative Remedies: The court finds that plaintiff "did not challenge the redactions of information regarding the third-party inmate in the email to the former BOP Director." "Because [plaintiff] did not raise this issue in his administrative appeal, and thus did not exhaust his administrative remedies, he may not make arguments for the first time here."
   
• Exemption 6: First, the court holds that the use of Exemption 6 was proper as to portions of Special Administrative Measures ("SAMs") memoranda. The court finds that, "[b]ecause the SAMs memoranda are Government records that contain information that 'applies to a particular individual' and could result in 'injury and embarrassment' if disclosed, . . . the SAMs memoranda [are 'similar' files]." Then, the court finds that "[t]he privacy interests of these individuals remain substantial, and these individuals are not precluded from retaining a privacy interest merely on the basis of their public prosecutions." "Disclosure of the individuals' names, criminal history, and the respective SAMs implemented during their custody implicate substantial privacy interests and would likely cause reputational and other harm to the individuals in question." Also, the court finds that while "the public does have an interest in disclosure of the circumstances surrounding the imposition of the SAMs and in learning the terms of those measures[,]" and "[t]his information would shed light on BOP's performance of its statutory duties – to protect inmates and the public – and thus inform citizens about what their government is up to[,]" "[plaintiff] has failed to demonstrate how the disclosure of the identities of the particular inmates' subject to the SAMs would serve that public interest or provide further meaningful insight into BOP's activities." "Thus, these individuals' substantial privacy interest outweighs the negligible public interest in the disclosure of the identities of particular individuals subject to the SAMs."
  
  Second, regarding the redaction of the "identifying information of third-parties referenced in the memoranda from the BOP Director to the Deputy Attorney General regarding inmate deaths[,]" the court holds that "DOJ has demonstrated that it conducted the careful balancing of the relevant private and public interests that FOIA mandates, and the Court agrees that the redactions were proper under Exemption 6." The court finds that "because the redacted information, including the names of third-parties or homicide assailants, or the offenses for which the homicide assailants were convicted, applies to particular individuals, the memoranda constitute 'similar' files for the purposes of Exemption 6." "In addition, DOJ properly identified substantial privacy interests in the names and the potentially embarrassing personal details of living individuals and third-party family members." "Finally, the Court agrees with DOJ that the release of the redacted information would not shed significant light on the government’s activities, because it involves personal identifying information of individuals who were neither government employees nor individuals in BOP custody."
  
  Third, the court finds that "[w]ithholding [a] portion of [a] Memo discussing [an] unsuccessful nominee is also justified under Exemption 6, as is withholding the candidate's attached curriculum vitae." "First, the information withheld is contained in a 'similar' file covered by Exemption 6 because it 'applies to a particular individual' and is found in Government records." "Second, disclosure would constitute a clearly unwarranted invasion of personal privacy . . . because the . . . Memo contains information about the individual's name and employment history." Third, the court finds that "[a]lthough the public has an interest in evaluating the competence of individuals who are appointed as government employees, in the case of individuals who are not ultimately selected, the privacy interest outweighs public interest in disclosure."
  
  Last, for similar reasons, the court finds that "DOJ also [properly] redacted the home address listed on [the] BOP Director['s] . . . curriculum vitae.
   
• Exemption 7, Threshold: The court holds that "[t]he SAMs memoranda relate to the management of particular security risks, and thus fall within Exemption 7." The court finds that the "memoranda reflect[] BOP's efforts to deal with potential security risks to the public, inmates, and staff [and] are rationally related to BOP's law enforcement duties, and the threshold requirement is satisfied in this case as to the SAMs memoranda."
   
• Exemption 7(C): The court holds that "[f]or the reasons discussed above, the privacy interest in releasing the individuals' names and identifying information is [not] outweighed by any public interest in knowing what the government is up to, because release of the individuals' identities would not substantially further transparency in BOP." Additionally, "because [plaintiff] has presented no compelling evidence of illegal activity by BOP, the individuals' identities in the SAMs memoranda are properly withheld under Exemption 7(C)."
   
• Exemption 7(E): "[T]he Court will deny DOJ's motion for summary judgment, without prejudice, on Exemption 7(E) grounds." The court rejects defendant's argument "that Exemption 7(E) justifies withholding the 14-page SAMs memorandum because disclosure 'would reveal law enforcement techniques and would thereby increase the chance that those techniques could be circumvented'" because it "is difficult to square with the BOP's own regulations . . . [which] require that staff disclose the terms of SAMs to the inmate subject to the measures." Additionally, "DOJ has not identified what in the memorandum, in particular, would 'disclose techniques for law enforcement investigations and prosecutions or be reasonably expected to risk circumvention of the law'" and "has not explained the nexus between any information contained in the memorandum and the possible disclosure of investigatory or prosecutorial techniques."
   
• Exemption 7(F): The court holds that "DOJ has not yet provided the Court with sufficient information to make a determination as to whether disclosure of information about the criminal activity discussed in the 18-page SAMs memorandum has properly been withheld under Exemption 7(F)." The court finds that "DOJ merely states that the memorandum discloses 'the types of weapons, explosives, and/or munitions [the individual and his/her criminal associates] were likely to employ, and the locations where their intended crimes would occur.'" However, the court finds that "DOJ's claim that it can withhold any information that could serve as a 'blueprint' for future crimes, out of concern for a generalized risk of future danger, is overbroad." The court also notes again that "BOP's own regulations direct that the terms of SAMs should be routinely disclosed to the inmate subject to them" and, therefore, finds that "[a]ny argument that disclosure of the terms of the SAMs memorandum would provide the inmate with an opportunity to circumvent those measures makes little sense in light of the fact that the regulations already mandate such disclosure."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "DOJ has not demonstrated that any properly withheld material could not be redacted, and segregated from, the remainder of the SAMs memoranda." The court finds that, "[i]n light of DOJ's disclosures in [a related case], and the Court's own consideration of DOJ's arguments made in this case, the Court is skeptical of DOJ's claim that the SAMs memoranda contain no non-exempt material that can reasonably be segregated from properly withheld material."
   
• Exemption 5, Deliberative Process Privilege: The court holds that "[a] redacted portion of [a] memorandum – which details [a] description of [a] candidate . . . recommended as director – was properly withheld under FOIA Exemption 5." The court finds that the memorandum "is an 'inter-agency . . . memorandum[ ]' because its source is a Government agency, namely, BOP[,]" "the redacted portion of the . . . Memo falls within the ambit of the deliberative process privilege" "[b]ecause the . . . Memo was drafted in advance of the decision regarding whom to select as the next BOP Director, and prepared in order to provide input on this decision," and "contained [an] opinion about the suitability of . . . certain individuals to serve[.]" "Although the memorandum set forth and represented a series of facts, the thrust of the memorandum was to provide a recommendation on the basis of those facts." "The very inclusion of particular factual statements rather than others reveals the deliberations and mental processes sought to be protected."