DeBrew v. Atwood

Citation792 F.3d 118
Decision Date30 June 2015
Docket NumberNo. 12–5361.,12–5361.
PartiesDarrell James DeBREW, Appellant v. Michael ATWOOD, Bureau of Prisons Trust Fund Manager, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Michael J. Satin argued the cause for the amicus curiae in support of appellant. Anthony F. Shelley, appointed by the court, and Timothy P. O'Toole and Michael N. Khalil were with him on the briefs.*

Darrell J. DeBrew, pro se, filed the brief for appellant.

Kenneth A. Adebonojo, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS and GRIFFITH, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Senior Circuit Judge GINSBURG.

GINSBURG, Senior Circuit Judge:

Darrell James DeBrew, an inmate at a federal prison, alleges both that the Bureau of Prisons (BoP) failed adequately to respond to his requests for records under the Freedom of Information Act (FOIA) and that several policies adopted by the BoP violate the Constitution of the United States. The district court granted summary judgment in favor of the BoP on DeBrew's FOIA claims and dismissed his constitutional claims. We summarily affirmed the district court's disposition of some of DeBrew's claims and appointed an amicus curiae to brief and argue the six claims that remained. Debrew v. Atwood, No. 12–5361, 2014 WL 590663 (D.C.Cir. Jan. 28, 2014). For the reasons that follow, we affirm in part and vacate in part the judgment of the district court and remand the case to that court for further proceedings consistent with this opinion.

I. Analysis

Before us are three claims the BoP violated the disclosure requirements of the FOIA and three claims that policies of the BoP violate the Constitution.

A. FOIA Claims

DeBrew contends the BoP failed to conduct an adequate search in response to his requests for (1) records concerning “Code 408” on the BoP's list of prohibited acts, which forbids an inmate from [c]onducting a business,” 28 C.F.R. § 541.13 (2007)** ; (2) transcripts of his telephone conversations; and (3) records concerning the “DNA Act.”

1. Code 408

In 2007 DeBrew filed a request under the FOIA for “All documentation for making Conducting a Business (408) a prohibited act.” In response to his request, the BoP released a “program statement,” which is available to prison staff, inmates, and the public, that summarizes the policy. DeBrew appealed to the Office of Information and Privacy (OIP) of the Department of Justice, which determined the BoP had conducted an adequate search.

DeBrew argues the BoP's response was inadequate because he did not receive records generated by the agency in the course of deciding to adopt the rule prohibiting an inmate from conducting a business. The BoP moved for summary judgment and submitted the declaration of an employee describing DeBrew's request and the program statement released in response to the request. The district court denied the motion for summary judgment because “the BoP's declarant only states the result of the search—a program statement regarding the inmate discipline—without offering a description of either the agency's interpretation of the request or the method by which staff conducted the search.” DeBrew v. Atwood, 847 F.Supp.2d 95, 102 (D.D.C.2012). The BoP then filed a renewed motion for summary judgment accompanied by supplemental declarations of the same employee. The third supplemental declaration explains DeBrew's request was assigned to two employees of the BoP and describes why they were chosen to conduct the search. One of the employees concluded the only relevant document was the program statement previously released to DeBrew, and the other employee located 24 additional documents, all of which had been published in the Federal Register. Based upon the third supplemental declaration, the district court “conclude[d] that the agency's searches for records responsive to plaintiff's request for information about Code 408 were reasonable under the circumstances” and granted summary judgment for the BoP. DeBrew v. Atwood, 889 F.Supp.2d 42, 46 (D.D.C.2012).

In order to obtain a summary judgment “the agency must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.Cir.1983). “The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate.” Perry v. Block, 684 F.2d 121, 128 (D.C.Cir.1982) ; see Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C.Cir.2001) (“Summary judgment may be based on affidavit, if the declaration sets forth sufficiently detailed information for a court to determine if the search was adequate” (internal quotation marks omitted)).

As the amicus points out, the BoP's third supplemental declaration is not sufficiently detailed to support a summary judgment because it does not disclose the search terms used by the BoP and the type of search performed. “A reasonably detailed affidavit, setting forth the search terms and the type of search performed ... is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.” Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990) ; see also Morley v. CIA, 508 F.3d 1108, 1122 (D.C.Cir.2007) (explaining a declaration is insufficient to allow us to determine the adequacy of a search if it “merely identifies the three directorates that were responsible for finding responsive documents without identifying the terms searched or explaining how the search was conducted” (internal quotation marks and alterations omitted)).

Because we cannot determine whether the BoP conducted an adequate search based upon the declarations in the record, we vacate the judgment of the district court on this claim and remand the case to the district court for further proceedings. “On remand, the district court may order [the BOP] to submit a reasonably detailed affidavit upon which the reasonableness of its search can be judged.” Oglesby, 920 F.2d at 68.

2. Telephone conversations

In 2007 DeBrew filed a request under the FOIA for “copies of all [his] telephone records up to the present starting from November 1994.” The BoP released a list of the telephone numbers DeBrew had called from prison. DeBrew appealed to the OIP and explained that, in addition to the call logs, he wanted recordings of his telephone conversations. The OIP replied the BoP no longer had recordings of DeBrew's conversations. The district court entered summary judgment for the BoP on the ground that “an agency does not violate the FOIA by failing to produce records which had been destroyed.” DeBrew, 847 F.Supp.2d at 102.

DeBrew argues the BoP did not conduct an adequate search for recordings of his telephone conversations. “The FOIA provides a claimant with a remedy only against an agency that has ‘improperly withheld’ a record.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991) (quoting 5 U.S.C. § 552(a)(4)(B) ). “If the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document and the court will not order the agency to take further action in order to produce it.” Id.; see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (“The [FOIA] does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained”). DeBrew believes the BoP has recordings of his telephone conversations because such recordings are used to investigate and prosecute inmates and because the BoP has previously released transcripts of another inmate's conversations. See, e.g., Smith v. DOJ, 251 F.3d 1047, 1048 (D.C.Cir.2001). Although the BoP monitors inmates' telephone calls, see 28 C.F.R. § 540.102, we do not think it is “suspect” that the agency says it did not retain recordings of DeBrew's conversations, SafeCard Servs., 926 F.2d at 1201. DeBrew has not pointed to any evidence showing the BoP has a policy or practice of retaining indefinitely the recordings of an inmate's telephone calls if the recordings are not being used in an investigation or prosecution. In the absence of such evidence, the BoP is entitled to summary judgment. See id. at 1200 (“Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents” (internal quotation marks omitted)).

We agree with the district court that the BoP did not violate the disclosure requirements of the FOIA by failing to produce recordings of DeBrew's telephone conversations because the agency is not obligated, nor is it able, to disclose a record it does not have. We therefore affirm the district court's judgment in favor of the BoP on this claim.

3. DNA Act

In 2008 DeBrew filed a request under the FOIA for “All memos concerning [the] DNA Act,” referring to the DNA Analysis Backlog Elimination Act of 2000, Pub.L. No. 106–546, 114 Stat. 2726. The BoP informed DeBrew his request did not adequately describe a document and advised him either to submit a more precise request or to resubmit his request if he disagreed with the agency's determination. According to the declaration of a BoP employee, DeBrew “has not followed-up with the Bureau concerning this request and the Bureau's response.” There is no evidence in the record that DeBrew resubmitted his request to the BoP or appealed its determination to the OIP. The district court granted summary judgment for the BoP...

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