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Sluss v. DOJ, No. 17-00064, 2019 WL 2493447 (D.D.C. June 14, 2019) (Mehta, J.)

Date

Sluss v. DOJ, No. 17-00064, 2019 WL 2493447 (D.D.C. June 14, 2019) (Mehta, J.)

Re:  Request for records concerning denial of plaintiff's transfer requests

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court holds that "[a] disputed issue of material fact therefore remains as to whether DOJ expressly adopted the reasoning of Documents 7 and 9."  "Accordingly, the court denies without prejudice both parties' motions for summary judgment as to the Exemption 5 redactions."  The court relates that "Plaintiff does not dispute that Documents 7 and 9 were subject to the deliberative process privilege when created."  However, the court finds that "[t]he agency has not supplied the court with any evidence regarding [certain] Denial Codes [that "could signify the Director’s reasons for denying Plaintiff’s request"], their meaning, and their relationship to the memoranda's reasoning."  "Without such information, the court cannot determine if the Director's 'Deny' checkmark and signature on each document constitutes an express adoption of the document's reasoning or something else."
     
  • Exemption 7, Threshold:  The court holds that "Defendant . . . has established that Documents 7 and 9 were compiled for law enforcement purposes."  The court relates that these documents concerned "the decision about whether to approve Plaintiff's applications for an international prison transfer from the United States to Canada."  The court finds that, in these documents, "[defendant] makes determinations concerning an individual offender's rehabilitation and reintegration into society, which includes weighing public safety."  "Such decisions fall within the heartland of law enforcement duties and responsibilities." 
     
  • Exemption 7(F):  "[T]he court finds in favor of Plaintiff as to information withheld based on Exemption 7(F)."  First, the court finds that "[t]he plain text of FOIA does not support Plaintiff's first argument that Exemption 7(F) does not apply to him as the requester of information."  "Exemption 7(F) 'does not require that a particular kind of individual be at risk of harm; "any individual" will do.'"  "Nor does the court agree with Plaintiff that a requester can 'waive' the government's concern about his personal safety."  "That said, this case presents facts that convince the court that DOJ has failed to carry its burden of showing a reasonable expectation that Plaintiff's safety would be at risk if the material in question were disclosed."  "Here, [defendant's] Declaration devotes little attention to explaining the risk of harm Plaintiff would face from disclosure" and "is conclusory."  Additionally, "[defendant's declarant] does not purport to be an expert in prison safety nor does he indicate that he consulted with anyone who does have such expertise or experience."  Moreover, the court finds that "[plaintiff] resides in a designated Sex Offender Management Program Facility, at which the majority of inmates are sex offenders or have past sexual offense convictions."  "Plaintiff's placement in a sex offender facility theoretically could lessen the risk of physically possessing records that describe his offense conduct."  "While a requester cannot unilaterally nullify a safety risk, the fact that he expresses no concern over his safety – in a prison setting no less – can enter into the court's risk evaluation."  "[M]ore significant[ly], the court notes that "Plaintiff's former counsel has agreed to act as the custodian of the records in question, thereby eliminating the risk of harm to Plaintiff altogether."
     
  • Exemptions 6 & 7(C):  "The court . . . grants summary judgment in favor of DOJ with regard to redactions based on Exemptions 6 and 7(C)."  The court finds that "where, as here, there is no genuine public interest in the requested material, an individual’s privacy interest must prevail under Exemption 7(C)."
     
  • Litigation Considerations, Adequacy of Search:  The court finds that "although [defendant's declarant] identifies the locations searched, he does not explain why a search of 'no other record system was likely to produce responsive documents,' and he does not 'show, with reasonable detail' that the agency's approach 'was reasonably calculated to uncover all relevant documents.'"  "The court is told that [defendant] searched for electronic records and where [it] looked for them, but not how [it] went about performing the search and what search terms, if any, [it] used."  "The court therefore cannot grant summary judgment to DOJ on the adequacy of its search."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7
Exemption 7(C)
Exemption 7(F)
Exemption 7, Threshold
Litigation Considerations, Adequacy of Search
Updated January 10, 2022