Pinson v. DOJ, No. 12-1872, 2017 WL 663523 (D.D.C. Feb. 17, 2017) (Contreras, J.)

Pinson v. DOJ, No. 12-1872, 2017 WL 663523 (D.D.C. Feb. 17, 2017) (Contreras, J.)

Re: Eleven requests for various BOP records, records concerning plaintiff

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

• Litigation Considerations, Adequacy of Search: "The Court agrees that the searches conducted with respect to seven of [the] requests were wholly adequate." "However, the Court finds that the BOP has yet to complete its responses to [plaintiff] for [four requests]." First, "[t]he Court agrees with the DOJ that its searches in response to [six requests] were adequate, which [plaintiff] does not contest." The court explains that "[defendant's] declaration and . . . briefing canvass each request in detail, explain to whom the request was sent, the specific databases searched, and, where appropriate, identify the specific search terms used to locate the documents." Also, "[t]he Court agrees with the DOJ that the search [for records responsive to the seventh request] was adequate because the records were destroyed prior to [plaintiff] paying her overdue fees and in accordance with the BOP's established record retention policies." Second, while DOJ has not completed its processing of emails responsive to certain requests and so does not seek summary judgment as to the emails, "[t]he Court [does] grant[] the DOJ's motion for summary judgment as to the adequacy of its search for non-email records."
   

• Waiver: In response to plaintiff's "argu[ment] that the DOJ must disclose [certain reports] in their entirety here because it has previously disclosed similar documents during discovery in civil litigation[,]" the court finds that "even assuming, arguendo, that the DOJ has disclosed similar documents during discovery in civil lawsuits, that disclosure does not mandate disclosure in the instant case." The court explains that "FOIA exemptions are not coextensive with civil discovery standards."
   
• Exemption 5, Deliberative Process Privilege: The court "denies the BOP summary judgment as to its use of Exemption 5." First, "[the] Court is not satisfied that the DOJ has carried its burden of showing that Exemption 5 applies to" certain reports because "BOP does not define the nature of the deliberative process involved." Specifically, the court finds that "[w]hile the BOP need not identify a specific policy decision, it must at least describe the decisionmaking process at issue." "The same flaws undercut the BOP's application of Exemption 5 to other records, including a memorandum from one BOP staff member to another BOP staff member; referrals and recommendations regarding [plaintiff's] correctional management; a document discussing steps for re-accreditation; and a document describing the preliminary cause of death of inmates and estimating costs."
   
• Exemption 6: "The Court will . . . deny the BOP summary judgment as to its withholding of the names, addresses, and case numbers." The court explains that "BOP . . . does not sufficiently explain the privacy interests of the individuals 'involved' in each claim [at issue]." "Neither claim is described, and . . . an alleged sexual assault will trigger very different privacy interests than an alleged slip-and-fall." The court finds that "BOP groups together all of the involved individuals, even though the inmates likely have privacy interests that differ from those of the BOP employee, judge, or notary public."
   
• Exemption 7, Threshold: The Court "finds that the BOP has presented sufficient facts to show that the documents it withholds under Exemption 7 were compiled for law enforcement purposes, with the exception of [certain] settlement-related documents." The court explains that "'BOP is a law enforcement agency and thus deserves [ ] deference' on its claims of law enforcement purpose" and "[m]any of the records at issue here are similar to those previously found to be compiled for law enforcement purposes." Regarding the settlement-related documents, the court finds that BOP "goes too far" in arguing that these records "were compiled for law enforcement purposes because 'the documents were generated pursuant to litigation challenging the Bureau's performance of its law enforcement mission.'" "If the BOP believes that these records meet Exemption 7's threshold requirement because they are related to an investigation, it must say much more about the particular incident and threat involved."
   
• Exemption 7(C): The court holds that, "because [plaintiff] has not presented any compelling evidence of illegal activity by the BOP, the names of the third-party inmates and individuals are categorically exempt from disclosure." The court finds that "[plaintiff] does not explain why identifying particular staff members would serve the public interest or reveal what the government is up to in a way that understanding the actions of high-ranking BOP officials alone does not." "As to the other withheld information, the DOJ has presented sufficient detail to demonstrate that its redactions protect the privacy interests of inmates, staff members, and third-party individuals." "In its own independent evaluation, the Court does not identify any public interest in disclosure that would outweigh that private interest."
   
• Exemption 7(F): First, the court holds that "DOJ has sufficiently demonstrated that the information withheld from the Daily Assignment Rosters could reasonably be expected to endanger the life or physical safety of one or many individuals and thus falls within Exemption 7(F)." "As the 'declarations explain, the Daily Assignment Rosters 'reveal the institution's staffing levels, including how many correctional officers are present on each shift and where those officers are posted throughout the institution.'" "'This information could assist individuals in planning incidents, including assaults, homicides, and escape attempts.'" Regarding "[plaintiff's] . . . object[ion] to the withholding of the Daily Assignment Rosters and Report of Incident documents, on the basis that the DOJ has disclosed these types of documents in other litigation[,]" the court finds that "an agency may make a discretionary disclosure of material that would be protected by FOIA without waiving the right to withhold similar documents in the future."
  
  However, the court also denies "DOJ's request for summary judgment as to the withholding of [plaintiff's] [presentence investigation report ("PSR")]." The court relates that "BOP has a policy prohibiting inmates from possessing their PSRs." The court finds that "whether records 'must be disclosed pursuant to FOIA is a separate matter from whether [plaintiff], who is incarcerated, is entitled under BOP rules and regulations to possess the correspondence at issue while [she] is incarcerated[.]'" "The BOP should thus use [plaintiff's] pro bono counsel to meet its FOIA obligation with regard to [plaintiff's] PSR, rather than simply denying [plaintiff's] request." "As this is in accordance with the BOP's policy for PSR retention, it would apparently satisfy the BOP's safety concerns." Additionally, "[t]he Court identifies significant oversights in several of the BOP's justifications for withholding documents." Specifically, the court finds that "BOP does not explain why [certain] risk[s] could not be addressed by redacting . . . name[s] . . . under Exemption 7(C) instead of withholding . . . entire [documents]."
   

• Litigation Considerations, "Reasonably Segregable" Requirements: The court finds that "DOJ provided [plaintiff] with a comprehensive Vaughn index, describing each document withheld in part or in full, as well as the exemption under which it was withheld." Additionally, "[defendant's declarant] attests to having personally prepared the Vaughn Index and that '[e]very effort has been made to release all segregable information without releasing [the protected information].'" The court finds that "[t]he combination of the Vaughn Index and the declaration of [defendant's declarant] are sufficient to fulfill the agency's obligation to show with 'reasonable specificity' why a document cannot be further segregated."