Gerhard v. Fed. Bureau of Prisons

• Decision Date: 11 July 2017
• Docket Number: Civil Action No. 16-1090 (RDM).
• Citation: 258 F.Supp.3d 159
• Parties: Jason GERHARD, Plaintiff, v. FEDERAL BUREAU OF PRISONS, Defendant.
• Court: U.S. District Court — District of Columbia

258 F.Supp.3d 159

Jason GERHARD, Plaintiff,

v.FEDERAL BUREAU OF PRISONS, Defendant.

Civil Action No. 16-1090 (RDM).

United States District Court, District of Columbia.

Signed July 11, 2017

Jason Gerhard, White Deer, PA, pro se.

Christopher Charles Hair, Michael Benjamin Posner, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Plaintiff Jason Gerhard, proceeding pro se , brought this action against the Bureau of Prisons ("BOP") to compel the production of records pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In response to Gerhard's lawsuit, the BOP located and released additional responsive records. The BOP now moves for summary judgment, Dkt. 9, and Gerhard requests an award of costs, Dkt. 13 at 3–4. Because the BOP has discharged its FOIA obligations, but appears to have done so only because Gerhard filed this lawsuit, the Court will grant the BOP's motion for summary judgment and will award Gerhard his reasonable costs.

I. BACKGROUND

Gerhard is a federal prisoner and a self-described "researcher/news reporter ... who writes articles about the ... BOP." Dkt. 1 at 1–2 (Compl. ¶ 3). He runs a website where he posts the results of his various FOIA requests and maintains a political blog. Id. At the times relevant here, Gerhard was incarcerated at Federal Correctional Institution Fairton ("FCI Fairton"). See Dkt. 9–1 at 8, 11.

On January 12, 2015, Gerhard submitted the FOIA request at issue. See id. at 3 (Wallace Decl. ¶ 5a); id. at 8. He sought three categories of records:

(1) "[t]he contract for the copier (photocopier) machine at FCI Fairton's library that is for inmate use;"(2) "the quarterly reports detailing donations made to FCI Fairton (per [BOP Program Statement] 1350.02)" from October 2009 to December 2010; and

(3) the same quarterly reports for the period of "April 2012 to the present time."

Id. at 8. BOP attorney John E. Wallace handled the request. See id. at 1–7 (Wallace Decl.).

To locate the copier contract, Wallace reached out to FCI Fairton's "Trust Fund Supervisor," who "was the sole curator of documents concerning the inmate copier service." Id. at 4–5 (Wallace Decl. ¶¶ 7, 10). The supervisor explained that "there is no formal written contract concerning inmate copiers." Id. at 4 (Wallace Decl. ¶ 7). Although "[the inmate] [c]opier service is provided by an outside contractor," id. at 18 (BOP Program Statement 4500.11 at 52 (Apr. 9, 2015)), the BOP does not pay for those services directly. Instead, the BOP purchases "copy cards" from the contractor in bulk, and then sells those cards to inmates at a mark-up. See id. at 4 (Wallace Decl. ¶ 7); id. at 17–18 (BOP P.S. 4500.11 at 38, 52). At FCI Fairton, "[t]he sale/purchase of the cards was handled with invoices and purchase orders," rather than "a fixed, traditional government contract." Id. at 4 (Wallace Decl. ¶ 7).

Wallace also searched for the quarterly donation reports. Id. at 5 (Wallace Decl. ¶ 8). Under BOP Program Statement 1350.02, prison wardens may accept donations to BOP institutions if the donation is valued at $250 or less and (1) is religious or educational in nature and from a religious or educational source, or (2) is from a prisoner leaving federal custody or being transferred between prisons. See id. at 24–25 (BOP Program Statement 1350.02 at 2–3, §§ 5–6 (June 29, 1998)). Wardens must submit quarterly reports of such donations to the BOP's Ethics Officer. Id. In response to Gerhard's request, Wallace contacted FCI Fairton's warden, but not the BOP's Ethics Officer. Id. at 5–6 (Wallace Decl. ¶¶ 8, 11). The warden's secretary informed Wallace that the chaplain kept records of the quarterly reports. Id. She then requested the reports from the chaplain, and later relayed them to Wallace. Id. None of the reports Wallace received covered the period between October 2009 and December 2010. Id .

On April 30, 2015, the BOP responded to Gerhard's request. See id. at 3 (Wallace Decl. ¶ 5b); id. at 9–10. With respect to the copier contract, the BOP informed Gerhard that it located no responsive records. Id. at 10. With respect to the donation reports from October 2009 through December 2010, the BOP merely referred Gerhard to his March 2012 request for the same records, to which the BOP had already responded (although the BOP's earlier search had also come up empty). See id. at 9, 14 n.1. With respect to the donation reports from April 2012 to January 2015, the BOP released 17 pages of records, 5 of which included redactions pursuant to 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). See id. at 3, 5 (Wallace Decl. ¶¶ 5b n.2, 9); id. at 9.

Gerhard lost his administrative appeal on September 4, 2015, id. at 3 (Wallace Decl. ¶ 5e); id. at 14–15, and several months later commenced this action, Dkt. 1 at 3. Service was effected on June 24, 2016. Dkt. 7 at 1. On August 23, 2016, Wallace uncovered eight new pages of responsive records, comprising the missing quarterly donation reports for the period October 2009 to December 2010. Dkt. 9–1 at 6 (Wallace Decl. ¶¶ 12–13). Wallace found the missing reports by asking the Ethics Branch of the BOP's Office of General Counsel to provide them—a step he had not taken during his initial search. See id. at 5–6 (Wallace Decl. ¶¶ 8, 11, 12). The BOP then released those eight additional pages to Gerhard in full. Id. at 6 (Wallace Decl. ¶ 13).

The BOP now contends that it has discharged its FOIA obligations and moves for summary judgment. Dkt. 9. Gerhard opposes the entry of summary judgment with respect to the copier contract and the quarterly donation reports from October 2009 to December 2010. Dkt. 13. His opposition brief also requests an award of his costs of bringing this action. Id. at 3–4.

II. ANALYSIS

A. Motion for Summary Judgment

In FOIA cases, "an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates that each document that falls within the class requested" has been produced in full, has been produced with redactions authorized under FOIA, or is "wholly exempt from [FOIA's] inspection requirements." Students Against Genocide v. U.S. Dep't of State , 257 F.3d 828, 833 (D.C. Cir. 2001) (citation and internal quotation marks omitted). The agency may meet its burden by submitting "relatively detailed and non-conclusory" declarations. SafeCard Servs., Inc. v. S . E . C . , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks and citation omitted). The Court reviews the agency's decision de novo , and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).

1. Contract for the Copier

The BOP defends its failure to produce the requested "contract for the copier," Dkt. 9–1 at 8, on the ground that "the contract sought does not exist," Dkt. 9 at 9. Wallace's declaration and the BOP's official program statement confirm that conclusion. See Dkt. 9–1 at 4–5 (Wallace Decl. ¶¶ 7, 10); id. at 18 (BOP P.S. 4500.11 at 52). These documents demonstrate that, rather than relying on an overarching contract for copier services, the BOP pays the contractor through itemized purchases of "copy cards," which it then re-sells to inmates at a marked-up price. In other words, there is no written "contract for the copier." Gerhard does not contend that his FOIA request should be construed as a request for the itemized copy card invoices.¹ See Dkt. 13 at 2–3. As a result, because the BOP "d[oes] not violate the disclosure requirements of the FOIA by failing ... to disclose a record it does not have," DeBrew v. Atwood , 792 F.3d 118, 123 (D.C. Cir. 2015), the BOP has discharged its obligations with respect to the requested contract.

In opposition, Gerhard argues that a contract must exist, given the BOP's statement that "[c]opier service is provided by an outside contractor." Dkt. 9–1 at 18 (BOP P.S. 4500.11 at 52). The word "contractor," he says, means " ‘one that contracts or is a party to a contract.’ " Dkt. 13 at 3 (quoting Contractor , MERRIAM–WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2003)). He then argues that "a contract, or similar document, must exist where a contractor exists." Id.

The word "contractor," however, is not limited to the narrow meaning that Gerhard posits. To be sure, Black's Law Dictionary defines the word as "[a] party to a contract." Contractor , BLACK'S LAW DICTIONARY (10th ed. 2014). But it also defines the word "more specif[ically]" as "one who contracts to do work for or supply goods to another." Id. It is in this latter sense, at least, that the BOP appears to use the term: the third-party company has agreed to sell the BOP "copy cards," and those sales are memorialized in a series of itemized invoices. The BOP has provided examples of these invoices, see Dkt. 9–1 at 19–21, and Gerhard may request further examples through FOIA if he so desires. There is no dispute, however, that the FOIA request at issue did not seek the copy card invoices, but rather sought "[t]he contract for the copier (photocopier) machine at FCI Fairton's library." Id. The BOP has demonstrated through a detailed declaration that no such written contract exists. Accordingly, the BOP is entitled to summary judgment on this aspect of Gerhard's claim.

2. Quarterly Donation Reports

Gerhard's FOIA request also sought certain "quarterly reports detailing donations made to FCI Fairton." Dkt. 9–1 at 8. The BOP contends that it has now conducted an exhaustive search for those records and released 25 responsive pages, 5 of which contained redactions. See id. at 5–6 (Wallace Decl. ¶¶ 8, 9, 11–14). Gerhard does not challenge the appropriateness of the redactions or offer any basis on which to question the adequacy of the search that the BOP ultimately conducted. See Dkt. 13 at 3.

Instead, Gerhard opposes the entry of summary judgment in favor of the BOP on the ground that the BOP released eight of those pages only after Gerhard filed this lawsuit, thereby "forcing an indigent prisoner...