Jordan v. United States Dep't of Justice

Decision Date23 December 2011
Docket NumberNo. 10–1469.,10–1469.
Citation668 F.3d 1188
PartiesMark JORDAN, Plaintiff–Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE; Federal Bureau of Prisons, Defendants–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Submitted on the briefs: *

Mark Jordan, Pro Se.

John F. Walsh, United States Attorney, Hayley Elizabeth Reynolds, Assistant United States Attorney, Denver, CO, for DefendantsAppellees.

Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and MATHESON, Circuit Judge.

PAUL KELLY, JR., Circuit Judge.

Mark Jordan brought this action pro se, raising claims under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The district court entered judgment in favor of defendants United States Department of Justice (DOJ) and Federal Bureau of Prisons (BOP or Bureau). Mr. Jordan appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

Mr. Jordan was convicted of multiple armed robberies in 1994 and the stabbing death of a fellow inmate in 1999. See United States v. Jordan, 485 F.3d 1214, 1216 (10th Cir.2007). When he filed this action, he was imprisoned in Florence, Colorado, at the United States Penitentiary Administrative Maximum Facility, commonly known as the ADX or the Supermax. Mr. Jordan claimed that defendants improperly denied eight separate requests for information he made pursuant to the FOIA or the Privacy Act. The denials of three of those requests are at issue in this appeal.

A. The agency denials

In the first request (Claim II in his complaint), Mr. Jordan asked that, under the FOIA, the BOP “provide [him] with a complete list of staff names and titles for all staff at the [Supermax].” R. at 284. The FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep't of the Navy, ––– U.S. ––––, 131 S.Ct. 1259, 1261–62, 179 L.Ed.2d 268 (2011). The BOP denied Mr. Jordan's Claim II request under Exemption 7F, R. at 288, which applies to any “records or information compiled for law enforcement purposes” that “could reasonably be expected to endanger the life or physical safety of any individual,” 5 U.S.C. § 552(b)(7)(F). Mr. Jordan appealed administratively to the DOJ's Office of Information and Privacy (OIP), which affirmed.

In the second request (Claim III in his complaint), Mr. Jordan invoked both the FOIA and the Privacy Act in asking the BOP for “all documents in any and all Bureau psychological and psychiatric files relating to [him] and promulgated or dated January 1, 2004 through to the date of [his] request.” R. at 297. “The Privacy Act generally allows individuals to gain access to government records on them and to request correction of inaccurate records.” Gowan v. U.S. Dep't of the Air Force, 148 F.3d 1182, 1187 (10th Cir.1998). The BOP released thirty-six pages of documents to Mr. Jordan but redacted one paragraph based on FOIA Exemptions 2 and 5. R. at 301–02. Exemption 2 applies to “matters that are ... related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Exemption 5 applies to “matters that are ... inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Mr. Jordan appealed to the OIP, which affirmed the withholding of the redacted information under Exemption 2. R. at 312.

In the third request to the BOP (Claim IV in his complaint), Mr. Jordan invoked the FOIA and the Privacy Act in seeking “a copy of all mail matter that was sent to or from [him] and copied by staff at the ADX Florence.” Id. at 314. The BOP identified 495 pages of copied correspondence but denied the request in full under Exemptions 2, 7E, and 7F. R. at 318. Exemption 7E applies to any “records or information compiled for law enforcement purposes” that “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 OIP affirmed under Exemptions 2 and 7E. R. at 328.

B. The district court's decision

In this action, Mr. Jordan sought an injunction requiring the BOP to release the withheld material. The district court reached its final judgment by ruling on a series of summary judgment motions and adopting the reports and recommendations of a magistrate judge. As to Mr. Jordan's Claim II request for the Supermax staff roster, the magistrate judge concluded that defendants had to disclose the roster but could redact the names of the employees under Exemption 7F. Jordan v. U.S. Dep't of Justice, No. 07–cv–02303–REB–KLM, 2010 WL 3023795, at *9 (D.Colo. Apr. 19, 2010) ( Jordan II ). The magistrate judge determined that because the “BOP is a law enforcement agency,” the staff roster was ‘compiled for law enforcement purposes,’ id. at *5 (quoting § 552(b)(7)), which is the “threshold requirement” for Exemption 7, John Doe Agency v. John Doe Corp., 493 U.S. 146, 148, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). The magistrate judge alternately “conclude[d] that the ADX staff roster is rationally related to the furtherance of [the] BOP's general law enforcement mission of protecting inmates, staff, and the public,” Jordan II, 2010 WL 3023795, at *5, and therefore was compiled for a law enforcement purpose. The magistrate judge then determined that releasing the names of staff members ‘could reasonably be expected to endanger the life or physical safety of any individual’ by exposing them to threats, manipulation, and harm. Id. at *6 (quoting § 552(b)(7)(F)).

Regarding the Claim III request, defendants argued that the redacted portion of Mr. Jordan's psychological records were withheld because “the writer included the subjective perception of another staff member, and advised all staff regarding appropriate actions to take with regard to [Mr. Jordan].” Id. at 221. The magistrate judge determined the redaction was exempt from disclosure under a judicially crafted subdivision of Exemption 2 spawned in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981), that had come to be known as “High 2.” Until the Supreme Court recently declared High 2 invalid, see Milner, 131 S.Ct. at 1265 (discussed in more detail below), High 2 protected from disclosure material that is “predominant[ly] internal[ ] in nature “if disclosure significantly risks circumvention of agency regulations or statutes,” Crooker, 670 F.2d at 1074. 1 The magistrate judge rejected defendants' argument that the material was exempt under what had become known as “Low 2,” which applies to an agency's internal materials “concerning human resources and employee relations,” Milner, 131 S.Ct. at 1263. The magistrate judge also concluded that the redacted material was exempt from disclosure under a provision of the Privacy Act, § 552a(j)(2)(C). Jordan v. U.S. Dep't of Justice, 2009 WL 2913223, at *26–*27 (D.Colo. Sept. 8, 2009) ( Jordan I ). Section 552a(j)(2)(C) permits an agency that “performs as its principal function any activity pertaining to the enforcement of criminal laws, including ... the activities of ... correctional ... authorities,” to promulgate rules exempting from otherwise applicable Privacy Act requirements any “reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.” The magistrate judge concluded that the redacted material was contained in the BOP's Inmate Physical and Mental Health Record System, which is a system of records exempt from Privacy Act disclosure requirements under a BOP regulation, 28 C.F.R. § 16.97(a)(6), and within the parameters of § 552a(j)(2)(C). See Jordan I, 2009 WL 2913223, at *26–*27.

As to Mr. Jordan's Claim IV request for a copy of the mail the BOP copied, the magistrate judge determined that the material was exempt from disclosure under FOIA Exemption 7E and the Privacy Act. According to defendants, as part of investigating potential violations of federal criminal law and BOP regulations and policies within the ADX, the ADX's Special Investigative Supervisor's office (SIS Office) copies items of prisoner correspondence thought to be of investigative value. R. at 252, ¶¶ 56–57. Defendants argued, and the magistrate judge agreed, that the copied mail constituted “records or information compiled for law enforcement purposes,” § 552(b)(7), and that releasing the copied mail would reveal [t]he technique and procedure for determining which items were of interest,” thereby enabling inmates to “circumvent staff's efforts,” R. at 252, ¶ 57. Accordingly, the magistrate judge concluded that the copied mail was protected by Exemption 7E. Jordan I, 2009 WL 2913223, at *16. The magistrate judge also concluded that the copied mail was maintained in the BOP's Inmate Central Records System, a system of records exempted from Privacy Act disclosure under § 552a(j)(2)(C) and 28 C.F.R. § 16.97(a)(4). See Jordan I, 2009 WL 2913223, at *26–*27.

DISCUSSION
A. Standard of review

“In FOIA cases, the standard of review of a grant of summary judgment is de novo, if the district court's decision had an adequate factual basis.” Audubon Soc'y v. U.S. Forest Serv., 104 F.3d 1201, 1203 (10th Cir.1997). The parties do not claim that the district court lacked an adequate factual basis, so our review is de novo. See id. The agency bears the burden of demonstrating that a claimed exemption applies. 5 U.S.C. § 552(a)(4)(B). We also review de novo the grant of summary judgment on Privacy Act claims. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1111–12 (D.C.Cir.2007). And because the district court granted summary judgment, we review the record and all reasonable inferences...

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