ISAAC KELVIN ALLEN, Plaintiff, v. DEPARTMENT OF JUSTICE, et al., Defendants Civil Action No. 17-1197 (CKK) United States District Court, District of Columbia Filed February 08, 2019 Counsel Isaac Kelvin Allen, Jesup, GA, pro se. Marina Utgoff Braswell, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants Kotelly, Colleen Kollar, United States District Judge MEMORANDUM OPINION AND ORDER *1 Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, seeking information from the Federal Bureau of Prisons (“BOP”) and the Executive Office for United States Attorneys (“EOUSA”), two components of the United States Department of Justice. This matter is before the Court on Defendants’ Motion to Dismiss and for Summary Judgment, ECF No. 19. For the reasons discussed below, the Court grants the motion in part and denies the motion in part without prejudice.[1] I. BACKGROUND A. Request to the Federal Bureau of Prisons Plaintiff is a federal prisoner currently serving a 198-month term of incarceration following his convictions “for a violation of 18 U.S.C. § 1014, Making False Statements (2 counts) and 18 U.S.C. § 1028(A)(1), Aggravated Identity Theft (2 counts).” Mem. of P. & A. in Support of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”), Decl. of Violet Mack (“Mack Decl.”) ¶ 2. Plaintiff was “placed in a ‘Security Threat Group’ (‘STG’) back in the year 2011.” Compl. ¶ 7. BOP’s declarant explained that STG assignments “identify inmates in [BOP’s] custody and care who have the propensity to disrupt the safety and security of its institutions based on either the nature of their initial criminal conviction or violations of disciplinary infractions committed while incarcerated in BOP facilities.” Mem. of P. & A. in Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss and for Summ. J. (“Defs.’ Reply”), Supp. Decl. of Violet Mack in Resp. to Pl.’s Opp’n to Defs.’ Mot. to Dismiss and for Summ. J. (“Supp. Mack Decl.”) ¶ 5; Mack Decl. ¶ 13 n.1. By letter dated November 30, 2016, plaintiff submitted a FOIA request to BOP, Compl. ¶ 7, which in relevant part read: On September 8, 2016, in a 28 U.S.C. § 2241 petition (E.D. TX – Beaumont case # 1:13-cv-00296), counsel for the Warden submitted a copy of a “Referral of Inmate Criminal Matter for Investigation” (See Doc. # 25-1, Exh. A). SIS Lieutenant D.C. DeCamilla elucidated an incident that occurred in April of 2011, as a result of his investigation. In this report, it notes that “Inmate Allen, Isac, Reg[.] No. 49476-018 ... has a Security Threat Group Assignment[.]” (See Attachment 1 – Highlighted section) As a result, I request a copy of the BOP Program Statement on the criteria for placement in a Security Threat Group. Also, all documents attributable to me being placed in a Security Threat Group. Mack Decl., Attach. 1 at 1 (emphasis in original). BOP responded to the request, assigned tracking number 2017-01623, by releasing in full “6 pages from plaintiff’s ‘Inmate Discipline Data, Chronological Disciplinary Record’ from the BOP’s SENTRY Inmate Data System.” Opp’n to Defs.’ Mot. to Dismiss and for Summ. J. (“Pl.’s Opp’n”) ¶ 21; see Compl. ¶ 13. *2 In addition, BOP released in part a one-page “electronically signed Memorandum from Paul Adams – Chief of [t]he Counter Terrorism Unit in Martinsburg, West Virginia – dated December 2, 2016,” Compl. ¶ 13 (emphasis in original) (“CTU Memo”), from which BOP redacted the name of one inmate under Exemptions 6 and 7(C). See Mack Decl. ¶¶ 13-15. BOP also redacted STG assignment information from the CTU Memo. See Pl.’s Opp’n ¶ 21. Lastly, BOP withheld 39 pages in full, and plaintiff believes the pages were “the BOP’s Program Statement on STG’s. (FBOP P.S. § 1221.64)[.]” Pl.’s Opp’n ¶ 21. BOP explained that “the program statement is not available for release, but for staff access only,” Mack Decl., Attach. 3 at 1; see Supp. Mack Decl. ¶ 16. It has asserted “Exemption 7(E) ... because this Program Statement was ‘compiled for law enforcement purposes,’ ” Mack Decl. ¶ 13 n.1.[2] B. Request to the Executive Office for United States Attorneys By letter dated February 8, 2017, plaintiff submitted a FOIA request to EOUSA for records pertaining to his criminal case in the United States District Court for the Middle District of Florida, No. 8:07-cr-00212. Compl. ¶ 6. Specifically, plaintiff sought “documents from the ‘Discovery’ packet that support the losses suffered by all the banks in this case.” Defs.’ Mem., Decl. of Tricia Francis (“Francis Decl.”) ¶ 4 & Attach. A; see Compl. ¶ 6. EOUSA acknowledged receipt of the request and assigned it a tracking number, EOUSA 2017-000528. Compl. ¶ 6; Francis Decl. ¶ 5 & Attach. B. Although EOUSA promptly referred the matter to the United States Attorney’s Office for the Middle District of Florida (“USAO-MDFL”) and the FOIA contact there provided responsive records to EOUSA on April 5, 2017, Francis Decl. ¶ 7. As of the date plaintiff filed his complaint, EOUSA had not released any responsive records. See Compl. ¶ 6. Eventually, on January 30, 2018, EOUSA released in full an 80-page sentencing transcript “which potentially contains the information that the [p]laintiff sought in his FOIA request – information concerning the losses that were suffered by the banking institutions in his case.” Francis Decl. ¶ 10; see id., Attach. C. II. DISCUSSION A. Summary Judgment Standard[3] The “vast majority” of FOIA cases can be decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Under Rule 56 of the Federal Rules of Civil Procedure, the court grants summary judgment if the pleadings, disclosure materials on file, and affidavits “show[ ] that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Judicial Watch v. Dep’t of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). In a FOIA case, the Court conducts a de novo review of the record, and the federal agency bears the burden of proving its compliance with its obligations under the FOIA. 5 U.S.C. § 552(a)(4)(B); see Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). B. Adequacy of the Search *3 “An agency is required to perform more than a perfunctory search in response to a FOIA request.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011). It “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation marks and citations omitted). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original) (citations omitted). To meet its burden, an agency may rely on affidavits or declarations explaining the method and scope of its search, see Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982), and such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). At a minimum, the agency must “specify ‘what records were searched, by whom, and through what process.’ ” Rodriguez v. Dep’t of Defense, 236 F. Supp. 3d 26, 38 (D.D.C. 2017) (quoting Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)). If the record before the Court “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). 1. EOUSA’s Searches for Responsive Records Because plaintiff’s criminal case was prosecuted in the Middle District of Florida, EOUSA staff determined that “USAO-MDFL was the only office that would potentially have had responsive records[.]” Francis Decl. ¶ 6. Accordingly, the matter was referred to that office, id., and assigned to Ms. Kelly Pineda-Saavedra, a Paralegal Specialist for USAO-MDFL’s Criminal Division, Defs.’ Mem., Decl. of Kelly Pineda-Saavedra (“Pineda-Saavedra Decl.”) ¶ 1. Ms. Pineda-Saavedra explains that, after logging in a FOIA request, Pineda-Saavedra Decl. ¶¶ 2-3, a search of the Legal Information Network System (LIONS) and CaseView systems is conducted, id. ¶ 4. These searches indicate “1.) if there is a case within the MDFL regarding the subject matter of the request; 2.) if the requester is a defendant; 3.) if the case is active or closed; and 4.) the Assistant United States Attorney (AUSA) to whom the matter is assigned.” Id. ¶ 4. In cases where the FOIA requester is a defendant, the declarant explains that “[p]ersonal identifying information contained in LIONS and CaseView,” such as a defendant’s “Marshal number, date of birth, and social security number,” are compared to those of the requester ... to assure that the correct case files are reviewed[.]” Id. Next, the assigned processor “retrieves the physical files,” id. ¶ 6, “sorts through the records to identify those responsive to the request,” id. ¶ 7, and forwards the responsive records to EOUSA for further processing, id. Ms. Pineda-Saavedra, to whom plaintiff’s FOIA case was assigned, id. ¶ 8, retrieved the physical case file and electronic case directory, id. ¶ 9. In her search of these records, she “was unable to locate any discovery records in [plaintiff’s] file.” Id. (emphasis in original). However, Ms. Pineda-Saavedra found “a transcript of [plaintiff’s] January 15, 2008 sentencing” proceeding which referenced “loss amounts.” Id. In addition, Ms. Pineda-Saavedra consulted “the MDFL’s Automated Litigation Support (ALS) team,” the staff who “organizes and duplicates all criminal discovery” for release to opposing counsel. Id. ¶ 10. “[D]ue to the age of the case,” she learned that “[t]he ALS team ... did not have any physical or electronic record of [plaintiff’s] discovery.” Id. On January 30, 2018 and on May 7, 2018, the FOIA processor conducted new searches of physical and electronic files pertaining to plaintiff’s criminal case; neither search located discovery documents. Id. ¶¶ 11-12. *4 EOUSA deemed the 80-page sentencing transcript the record “most responsive,” id. ¶ 9, to plaintiff’s FOIA request because it included “a lengthy discussion about the victims, including the banks,” Defs.’ Reply, Supp. Decl. of Kelly Pineda-Saavedra ¶ 1. EOUSA released the transcript in full. Francis Decl. ¶ 10. According to plaintiff, EOUSA released the sentencing transcript “in bad faith.” Pl.’s Opp’n ¶ 10. “The exact same transcripts ... were filed with the Clerk of Court on May 14, 2009,” and thus “had been publicly available for years.” Id. He opined that “EOUSA found the discovery files ... empty,” id. ¶ 11, and deemed the FOIA processor’s statements “ambiguous,” id. ¶ 16, insofar as her declaration did not identify precisely the file in which she found the transcript, see id. ¶¶ 11-16. Consequently, plaintiff has asserted, EOUSA should “provide a listing of all the documents in the unspecified file that contained the sentencing transcripts.” Id. ¶ 17 (emphasis in original); see id. ¶ 19. Ms. Pineda-Saavedra explains that she searched LIONS and CaseView, retrieved and searched plaintiff’s physical and electronic files three times, and consulted the staff responsible for handling criminal discovery at USAO-MDFL. These are reasonable places to have searched for records pertaining to plaintiff’s criminal case. Insofar as the sentencing transcript includes “a lengthy discussion about the victims,” Supp. Pineda-Saavedra Decl. ¶ 1, of plaintiff’s crimes, “including the banks,” id., it is responsive to plaintiff’s FOIA request. Its release in full resolves plaintiff’s FOIA claim against EOUSA. “Despite numerous searches of [plaintiff’s] physical and electronic case files,” there were no “documents or folders labeled as containing discovery” or “documentation about losses suffered by the banks.” Supp. Pineda-Saavedra Decl. ¶ 1. Plaintiff’s unsupported speculation as to the existence of additional responsive records neither undermines the reasonableness of the search nor demonstrates the agency’s bad faith. See SafeCard Servs., 926 F.2d at 1201 (finding that “mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search.”); see also Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 26 (D.D.C. 2003) (“Perfection is not the standard by which the reasonableness of a FOIA search is measured.”) 2. BOP’s Search for Responsive Records The designated recipient of a FOIA request to BOP its Director, Mack Decl. ¶ 4, and “the FOIA Administrator with the [BOP’s] Office of General Counsel in Washington, D.C. (Central Office) ... determine[s] whether the request will be handled by Central Office FOIA staff or by FOIA staff located in one of six regional offices,” id. ¶ 5. If, for example, an “inmate ... request[s] records located at one of the BOP’s institutions,” Central Office staff forward the request “to the regional office for the region in which the institution is located.” Id. And where a request pertains to an inmate’s classification, responsive records likely would be “placed in the inmate’s central file, which is maintained at the inmate’s current designated institution.” Id. ¶ 11. In this case, the declarant explains, plaintiff’s FOIA request was referred to BOP’s South Central Regional Office (“SCRO”) based on a determination that responsive records most likely would be found at the United States Penitentiary in Beaumont, Texas, within SCRO, where plaintiff was designated at that time. Id. ¶¶ 9, 11. *5 A search of plaintiff’s central file yielded “a total of 46 pages of documents[.]” Id. ¶ 12. Plaintiff raised no objection to the scope or method of BOP’s search, Pl.’s Opp’n ¶ 22, and based on BOP’s supporting declaration, the Court concludes that the search was a reasonable one. C. Exemptions 1. Exemption 6 BOP redacted the name of an inmate from the CTU Memo. Initially, BOP relied on Exemption 6 in conjunction with Exemption 7(C) when it withheld the inmate’s name. See Mack Decl. ¶¶ 14-15. When BOP “updated its redactions,” Supp. Mack Decl. ¶ 12, it appeared to rely on Exemption 6 alone, see id. Attach. 1. While this may have been an oversight on defendant’s part, the Court proceeds as if BOP invoked Exemption 6 only. Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The Court undertakes a two-part inquiry to determine whether Exemption 6 applies. First, the Court determines whether the relevant records “are personnel, medical, or ‘similar’ files covered by Exemption 6.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). The records need not belong to “a narrow class of files containing only a discrete kind of personal information.” U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982). Rather, Exemption 6 “cover[s] detailed Government records on an individual which can be identified as applying to that individual.” Id. (citations omitted). If the records at issue fall within the scope of Exemption 6, the Court “must then determine whether their disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’ ” Multi Ag Media, 515 F.3d at 1228 (quoting 5 U.S.C. § 552(b)(6)). To this end, the Court must “balance the privacy interest that would be compromised by disclosure against any public interest in the requested information.” Id. (citations omitted). The declarant explains that BOP redacted the inmate’s name “because the fact of [the inmate’s] incarceration may not be widely known publicly and its release could cause reputational damage and possible harassment.” Mack Decl. ¶ 15. After having weighed the inmate’s privacy interest against the public’s interest “in knowing the activities and operations of BOP,” id., BOP maintains that release of the inmate’s name “would constitute an unwarranted invasion of [his] personal privacy,” id. Plaintiff does not challenge this redaction, and the Court concludes that BOP adequately justifies its decision to withhold the inmate’s name. Here, release of a single inmate’s name “reveals little or nothing about an agency’s own conduct,” and its release “does not further the [FOIA’s] statutory purpose.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1492 (D.C. Cir. 1993) (internal quotation marks and citation omitted). 2. Exemption 7 a. Law Enforcement Records Exemption 7 protects from disclosure “records or information compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7), but only to the extent that disclosure of such records would cause an enumerated harm, see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show that ... documents were compiled for law enforcement purposes, the [agency] need only establish a rational nexus between the investigation and one of the agency’s law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations omitted). *6 The failure of BOP’s supporting declarations to address specifically the law enforcement purpose of the records at issue is not troublesome. BOP certainly performs law enforcement functions, see, e.g., Pinson v. U.S. Dep’t of Justice, 236 F. Supp. 3d 338, 365 (D.D.C. 2016), which involve the security and management of inmates in its custody, including plaintiff. It follows that records regarding an inmate’s STG assignment will have been compiled for a law enforcement purpose. b. Exemption 7(E) Exemption 7(E) protects “records or information compiled for law enforcement purposes ... to the extent that production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The first clause “provides categorical protection, requiring no demonstration of harm or balancing of interests.” Peter S. Herrick’s Customs & Int’l Trade Newsletter v. U.S. Customs & Border Prot., No. 04-cv-00377, 2006 WL 1826185, at *7 (D.D.C. June 30, 2006) (citation and internal quotation marks omitted). The exemption’s second clause “encompasses a broader range of information, but requires an assessment of whether disclosure poses a reasonable risk that the law could be circumvented.” Id. (citation omitted). This requires that the agency surpass “a relatively low bar,” such that it need “only ... demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)). As is the case with any other FOIA exemption, “[t]he burden is on the agency to justify withholding the requested documents [under Exemption 7(E) ], and the FOIA directs district courts to determine de novo whether non-disclosure was permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (citations omitted). Here, the Court concludes that BOP fails to meet its burden. According to the declarant, BOP initially “withheld the entire Program Statement not under the basis of FOIA, but rather because it was for staff access only.” Supp. Mack Decl. ¶ 16. BOP since has asserted Exemption 7(E), Mack Decl. ¶ 16, explaining that the document “details how the BOP conducts internal law enforcement investigations in BOP facilities,” Supp. Mack Decl. ¶ 16. Further, the declarant states, BOP withholds “interviewing techniques used in conducting the investigation of the identity theft[ ] and tax fraud scheme perpetuated by [p]laintiff” while in BOP custody Mack Decl. ¶ 16. These “techniques generally include information pertaining to assembling all the pertinent documentary, electronic and surveillance evidence and conducting interviews of involved parties.” Id. The declarant states that release of such information “would allow [p]laintiff to evade detection of law enforcement officials,” id., by “aid[ing] him in knowing how BOP conducts its investigations and assist[ing] him and other inmates in circumventing the law,” Supp. Mack Decl. ¶ 16. Plaintiff “disputes ... that the entire Program Statement [should be] withheld under [E]xemption (b)(7)(E).” Pl.’s Opp’n ¶ 36. His point is well taken, particularly in light of BOP’s decision “to allow [p]laintiff to review certain portions of the Program Statement[.]” Supp. Mack Decl. ¶ 17. Furthermore, BOP’s declarations appear to parrot the statutory language of Exemption 7(E) without explaining adequately its justification for having withheld the Program Statement in full. *7 From the CTU Memo, BOP “redacted techniques and procedures used to uncover tax fraud committed by [p]laintiff while in BOP custody.” Mack Decl. ¶ 16. According to plaintiff, BOP redacted only “the name of the specific ‘STG Assignment’ plaintiff received[.]” Compl. ¶ 24 (emphasis in original); see id., Attach. 1. BOP has not explained adequately why the specific STG assignment is itself a technique, procedure or guideline worthy of Exemption 7(E) protection. The Court therefore denies defendants’ motion in part for BOP’s failure to demonstrate whether non-disclosure under Exemption 7(E) was permissible. It is hereby ORDERED that Defendants’ Motion to Dismiss and for Summary Judgment [19] is GRANTED IN PART. BOP and EOUSA have conducted reasonable and adequate searches for records responsive to plaintiff’s FOIA requests, and BOP properly has withheld the name of one inmate from the CTU Memo. In all other respects, defendants’ motion is DENIED WITHOUT PREJUDICE. It is further ORDERED that, by March 21, 2019, defendant shall file its renewed summary judgment motion. SO ORDERED. Footnotes [1] The Court’s consideration is focused on the following documents and their attachments and/or exhibits: • Compl., ECF No. 1 • Defs.’ Mot. to Dismiss and for Summ. J., ECF No. 19 (“Defs.’ Mem.”) • Opp’n to Defs.’ Mot. to Dismiss and for Summ. J., ECF No. 27 (“Pl.’s Opp’n”) • Mem. of P. & A. in Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss and for Summ. J., ECF No. 29 (“Defs.’ Reply”) In addition, the Court has granted plaintiff leave to file a surreply. [2] The declarant states that “the information withheld [under Exemption 7(E) ] concerns plaintiff’s Pre-Sentence Investigation Report (PSR).” Mack Decl. ¶ 16. “BOP did not release plaintiff’s PSR,” id. ¶ 17, and notes that “BOP Program Statement 1351.05, Release of Information[,] authorizes inmates to access and review their own PSRs by contacting their unit staff to arrange a time to do so,” id. [3] Defendants submit and the Court considers EOUSA’s supporting declarations. Accordingly, the Court treats defendants’ motion to dismiss as a motion for summary judgment. See Fed. R. Civ. P. 12(d), 56.