Karantsalis v. U.S. Dep't of Justice

• Decision Date: 11 March 2011
• Docket Number: No. 10–10229.,10–10229.
• Parties: Theodore D. KARANTSALIS, Plaintiff–Appellant,v.U.S. DEPARTMENT OF JUSTICE, U.S. Marshals Service, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

635 F.3d 497

22 Fla. L. Weekly Fed. C 1890

Theodore D. KARANTSALIS, Plaintiff–Appellant,

v.U.S. DEPARTMENT OF JUSTICE, U.S. Marshals Service, Defendants–Appellees.

No. 10–10229.

United States Court of Appeals, Eleventh Circuit.

March 11, 2011.

Peter C. Canfield, Lesli N. Gaither, Dow Lohnes, PLLC, Atlanta, GA, for Plaintiff–Appellant.

Steven Frank, U.S. Dept. of Justice, Washington, DC, Carole M. Fernandez, U.S. Atty., Miami, FL, for Defendants–Appellees.Appeal from the United States District Court for the Southern District of Florida.Before TJOFLAT, BARKETT and FAY, Circuit Judges.PER CURIAM:

Appellant, a freelance reporter, appeals the denial of his request for “mug shots” of Luis Giro, an individual convicted of securities fraud. The United States Marshals Service denied this request by asserting Exemption 7(C) of the Freedom of Information Act, 5. U.S.C. § 552(b)(7)(C). The ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT entered by the district court on December 14, 2009, is a comprehensive and scholarly discussion of the issues and law surrounding this request and we hereby adopt it and attach it to this opinion. We take note of the opinion in Detroit Free Press v. Department of Justice, 73 F.3d 93 (6th Cir.1996) and respectfully reject its holding.

AFFIRMED.

ATTACHMENT

Theodore D. KARANTSALIS, Plaintiff,

v.

UNITED STATES DEPARTMENT OF JUSTICE and United States Marshals Service, Defendants.

No. 09–CV–22910.

United States District Court,

Southern District of Florida.

Dec. 14, 2009.

PAUL C. HUCK, District Judge:

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendants' Motion for Summary Judgment (D.E.# 4), filed October 30, 2009.

I. BACKGROUND

On July 11, 2009, Plaintiff, a self-described freelance reporter whose “interests” include “obtaining information under the Freedom of Information Act,” see LinkedIn.com, Theodore Karantsalis, http:// www. linkedin. com/ in/ 3051 ibrarian (last visited December 10, 2009), sent an email to the United States Marshals Service (“Marshals Service”) requesting “copies of the mug shot photos of Luis Giro” pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (Compl., Ex. A (7/11/09 Email from T. Karantsalis to W. Bordley).) Giro, the former president of Giro Investments Group, Inc., plead guilty to securities fraud in 2009. The Marshals Service took booking photographs (also known as “mug shots”) of Giro on May 27, 2009 after taking him into custody. (Bordley Aff. ¶ 7, Ex. A. to Def.'s Mot. for Summ. J.) On July 13, 2009, the Marshals Service denied Plaintiff's request for copies of these photographs pursuant to 5 U.S.C. § 552(b)(7)(C) (hereinafter, “Exemption 7(C)”) on the basis that they were gathered for law enforcement purposes and releasing them would constitute an unwarranted invasion of Giro's personal privacy. (Compl., Ex. B (7/13/09 Email from W. Bordley to T. Karantsalis).) Plaintiff's appeal of the Marshals Service's decision was denied on September 8, 2009, (Compl., Ex. D (9/8/09 Letter from J. McLeod to T. Karantsalis)), and this suit was filed September 28, 2009. (D.E.# 1.)

The Marshals Service contends it is entitled to summary judgment because (1) it has established, via detailed affidavit, that it conducted a reasonable search to uncover all documents responsive to Plaintiff's request in accordance with its obligations under the FOIA and (2) that the booking photographs of Giro it located were properly withheld pursuant to its internal policies and Exemption 7(C) to the FOIA because Giro has a personal privacy interest in the booking photographs, which were gathered for law enforcement purposes, and disclosing them does not serve the public interest. Plaintiff insists that summary judgment is inappropriate because the Marshals Service does not follow its policy of non-disclosure in some cases (because it released booking photographs of Bernard Madoff and Joe Nacchio), Giro does not have a privacy interest in the booking photographs, and disclosing the booking photographs will help the public determine if the Marshals Service gives preferential treatment to high-profile prisoners like Madoff and Nacchio.

II. ANALYSIS

Summary judgment is appropriate if the pleadings and affidavits show that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To prevail on its motion, the Marshals Service must establish (1) that it “conducted a search reasonably calculated to uncover all relevant documents,” as the Eleventh Circuit explained the Freedom of Information Act (“FOIA”) requires in Ray v. U.S. Dep't of Justice, 908 F.2d 1549, 1558 (11th Cir.1990), and (2) that the “mug shot” photographs of Giro the Marshals Service located pursuant to that search fall under an exemption to the FOIA, which excuses the Marshals Service from producing them to Plaintiff.

a. The Marshals Service's Records Search Was Sufficient.

The search conducted by the Marshals Service in response to Plaintiff's FOIA request was sufficient to meet its obligations under the FOIA. In support of its motion, the Marshals Service submitted an affidavit from William Bordley, Associate General Counsel for the Marshals Service. (Bordley Aff. Ex. A. to Def.'s Mot. for Summ. J.) In his affidavit, Bordley avers that the Marshals Service, upon receiving Plaintiff's request, conducted a search of the relevant records, namely the Prisoner Processing and Population Management/Prisoner Tracking System (“PPM/PTS”), for all persons by the name of Luis Giro. ( Id. ¶¶ 3–4.) Bordley's affidavit explains, in detail, the nature of the PPM/PTS, why the PPM/PTS is the appropriate place to search for responsive information, how the PPM/PTS can be searched, and what the Marshals Service did to search the PPM/PTS for information responsive to Plaintiffs request. ( Id.) Bordley's affidavit then explains that the search returned two booking photographs of Luis Giro taken with a digital camera by the Marshals Service. ( Id.)

An affidavit from a government official concerning a government agency's search in response to a FOIA request is sufficient evidence to establish that the search was “reasonably calculated to uncover all relevant documents” provided that the affidavit is “relatively detailed, nonconclusory, and submitted in good faith.” Ray, 908 F.2d at 1558. The Court has carefully reviewed Bordley's affidavit and finds that it is nonconclusory, sufficiently detailed, and submitted in good faith so as to satisfy the Marshal Service's burden of proving that the search was reasonable under Ray. Plaintiff's Amended Opposition (D.E.# 12), which includes no affidavits or other affirmative evidence, does nothing to rebut the evidence proffered by the Marshals Service in support of the conclusion that the search it conducted was reasonable under Ray. Accordingly, viewing all the evidence and inferences therefrom in the light most favorable to Plaintiff, the Court finds that the there is no genuine issue of material fact concerning the circumstances of the search conducted by the Marshals Service in response to Plaintiff's request, and that, as a matter of law, the Marshals Service “conducted a search reasonably calculated to uncover all relevant documents.” Ray, 908 F.2d at 1558.

b. The “Mug Shot” Photographs of Giro Were Properly Withheld.

Bordley's affidavit explains that it is the policy of the Marshals Service to not release booking photographs of prisoners to the news media unless doing so serves a law enforcement purpose. (Bordley Aff. ¶ 5.) According to Bordley's affidavit, the Marshals Service policy is that the only law enforcement purpose for releasing a booking photograph is to address an issue involving a fugitive, which Giro—currently in federal prison—is not. ( Id.) Notably, these policies do not apply to FOIA requests for booking photographs made from within the jurisdiction of the Sixth Circuit, because the Sixth Circuit has held that, in some circumstance, booking photographs must be disclosed to the media even if doing so does not serve a law enforcement purpose. ( Id. ¶ 6; Detroit Free Press v. Dep't of Justice, 73 F.3d 93, 97 (6th Cir.1996).) Accordingly, the Marshals Service adjusted its policy for claims arising out of the jurisdiction of the Sixth Circuit. Plaintiff's request for Giro's booking photographs, however, is not subject to this policy exemption because this case falls within the jurisdiction of the Eleventh Circuit. Plaintiff has failed to provide any affirmative evidence suggesting that the Marshals Service does not abide by its stated policies for requests stemming from within the jurisdiction of the Eleventh Circuit. Incidentally, the release of the booking photographs of Madoff and Nacchio is entirely consistent with the policy of the Marshals Service because those booking photographs were released pursuant to FOIA requests from within the jurisdiction of the Sixth Circuit. ( See Bordley Supplemental Aff. ¶¶ 3–6, Ex. A. to Def.'s Reply in Support of Mot. for Summ. J.) Plaintiff's FOIA request was not made from within the jurisdiction of the Sixth Circuit.¹ Accordingly, the Court finds that there is no question of material fact concerning the policies of the Marshals Service and that the Marshals Service complied with its policies in refusing to produce the booking photographs of Giro to Plaintiff.

Bordley's affidavit also explains that the Marshals Service made a determination that it was not legally required to produce Giro's booking photographs pursuant to Exemption 7(C), which exempts from disclosure “records or information compiled for law enforcement purposes ... [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy.” (Bordley Aff. ¶ 9; 5 U.S.C. § 552(b)(7)(C).) According to Bordley, the Marshals Service decided that the booking photographs of Giro were “compiled for law enforcement purposes” beca...