Schubert v. BOP, No. 23-3509, 2025 WL 2480076 (D.D.C. Aug. 28, 2025) (Cooper, J.)

Schubert v. BOP, No. 23-3509, 2025 WL 2480076 (D.D.C. Aug. 28, 2025) (Cooper, J.)

Re: Request for records, including grievance and investigatory records, concerning two individuals that plaintiff suggests are employees

Disposition:  Granting defendant’s partial motion to dismiss and motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that “[plaintiff] failed to exhaust the appeal and, therefore, follow agency process for the November 2022 FOIA request.”  “When [plaintiff] appealed the initial rejection for improper submission, . . . OIP informed him that BOP would handle his request and informed him of his right to appeal any substantive decision BOP made.”  “And when BOP issued its Glomar response, it also indicated that he could appeal within 90 days under agency policy.”  “[Plaintiff] did not appeal within that window – or at all.”  “He chose instead to file the complaint in this case in October 2023.” “Here, OIP, the reviewing body, has not had the opportunity to consider the Glomar response BOP issued, as [plaintiff] ‘bypass[ed] the administrative review process’ and did not ‘pursue[ ] it to its end.’”  “Thus, dismissal of the November 2022 FOIA claim is warranted.”
   
• Exemption 6; Waiver and Discretionary Disclosure, Waiver:  The court relates that “[plaintiff] suggests that Office of Personnel Management (OPM) regulation 5 C.F.R. § 293.311 supports a finding that BOP had acknowledged the existence of the records in question.”  “He is mistaken.”  “That regulation makes ‘available to the public’ the names, duty stations, and other personnel information of current and former federal employees contained in files ‘under the control’ of OPM.”  “Yet it continues that the ‘[o]ffice or agency will generally not disclose information’ that the custodial agency official determines ‘[w]ould otherwise be protected from mandatory disclosure under an exemption of the FOIA.’” “And those are precisely the types of documents at issue here.”  “In any event, even if OPM did disclose these documents, ‘[d]isclosure by one federal agency does not waive another agency’s right to assert a FOIA exemption.’”
   
• Exemption 6: The court finds that, “[t]o begin, the requested information undeniably falls under the categories protected by the exemption.”  “The ‘personnel’ and ‘similar files’ encompassed by Exemption 6 are ‘intended to cover detailed Government records on an individual which can be identified as applying to that individual.’”  “And [plaintiff’s] request facially targets government records that apply to an identified would-be federal employee’s employment.”  Regarding the privacy interests at stake, the court finds that “[Plaintiff’s] request seeks government records that identifiably apply to [an] alleged BOP employee . . . .”  “If they exist, responsive records naturally will contain the subject’s employment history, ‘duty stations,’ and any ‘investigations and related disciplinary actions.’”  “Each of these types of documents trigger privacy interests.”  “‘[A]n employee has at least a minimal privacy interest in his or her employment history and job performance evaluations.’”  “‘That privacy interest arises in part from the presumed embarrassment or stigma wrought by negative disclosures.’”  “And any potential revelation concerning a law-enforcement investigation that included them would be foreseeably damaging.” “As to the public interest, [plaintiff] pleads none, meaning the clear private interest at stake here is more than sufficient to justify the Glomar response.”  “Therefore, any privacy invasion is ‘clearly unwarranted.’”