Kubik v. U.S. Fed. Bureau of Prisons
| Decision Date | 01 July 2011 |
| Docket Number | 10-6078-TC |
| Parties | RICHARD KUBIK and BARBARA KUBIK, Plaintiffs, v. UNITED STATES FEDERAL BUREAU OF PRISONS, Defendant. |
| Court | U.S. District Court — District of Oregon |
This is an action for declaratory and injunctive relief. Plaintiffs Richard and Barbara Kubik's (Kubiks) complaint arises under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 and the Administrative Procedures Act (APA), 5 U.S.C. § 706. The Kubiks assert that the United States Bureau of Prisons (BOP) violated FOIA by failing to make a reasonable search for documents responsive to the Kubiks' FOIA requests and by improperly applying FOIA Exemptions to justify the BOP's withholding of relevant documents. The Kubiks further argue that the APA provides an additional remedy for the BOP's alleged failure to follow its FOIA regulations. Before the court arecross-motions for summary judgment filed by the Kubiks and defendant BOP. (#18, #20 and #23). The parties have consented to magistrate jurisdiction.
"Congress enacted FOIA to overhaul the public-disclosure section of the Administrative Procedures Act" Milner v. Dep't of Navy, ___U.S.___, 131 S.Ct. 1259, 1262 (2011);see also, Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (discussing Congress' creation of FOIA). Congress recognized that no statute effectively provided for disclosure to the public by the "hundreds of [governmental] departments, branches and agencies which are not clearly responsible to the people." SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1119 (9th Cir. 1976). Congress believed that "the public as a whole has a right to know what its Government is doing." Id. (quoting S.Rep. No. 813, 89th Con., 1st Sess. 5 (1965)). "[D]isclosure, not secrecy is the dominant objective of the act." Rose, 425 U.S. at 361. An informed citizenry is "needed to check against corruption." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
This March, the Supreme court again emphasized that FOIA strongly favors openness and "broad disclosure" with narrowly construed exceptions. Milner, 131 S.Ct. at 1265-66; see also, Lion Raisins. Inc. v. U.S. Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004) (). FOIA has nine statutory Exemptions. 5 U.S.C. § 552(b)(l)-(9). However, even when material falls within one of FOIA's nine Exemptions, an agency must disclose "any reasonably segregable portion of a record...after deletion of the portions which are exempt." 5 U.S.C. § 552(b).
A court will grant a summary judgment motion if the pleadings, the discovery, and disclosure materials on file, and any affidavits and declarations show that no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). FOIA cases are typically decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007). Because FOIA cases rarely involve issues of disputed fact, the court need not utilize the typical summary judgment standard. Minier v. Central Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). Instead, the court conducts a two-step inquiry.
First, the court weighs whether the agency has established that it fully discharged its obligations under FOIA. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985). An agency can establish this by showing that it conducted a search reasonably calculated to uncover all relevant documents. Id.; Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344,1350-51 (D.C. Cir. 1983). If the agency has met this burden, the court next considers whether the agency has shown that any information not disclosed falls within one of the nine FOIA Exemptions. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (); Dobronski v. FCC, 17 F.3d 275, 277 (9th Cir. 1994). Thus, to prevail on a summary judgment motion in a FOIA proceeding, where the underlying facts and possible inferences are construed in favor of a FOIA requester, an agency must prove that it has adequately searched for documents and that any withheld documents information fall within an Exemption.
The Kubiks' son Brian Kubik was an inmate in the federal prison system. He was incarcerated at the Federal Correctional Institute Phoenix (FCI Phoenix) and then transferred to the U.S. Penitentiary in Florence, Colorado (USP Florence). On April 20, 2008, Kubik was shot and killed by a prison guard during a disturbance at USP Florence that involved about 200 inmates and lasted almost half an hour. The BOP describes the disturbance as a race riot, started when white inmates walked across the prison soccer field in an aggressive manner yelling racial slurs. The prison's attempts to control the inmates failed, and white and African-American inmates began physically assaulting each other, striking each other with fists, kicks, baseball bats, and stabbing each other with homemade knives. The prison attempted to disburse the group by firing less than lethal munitions and gas rounds. When the riot continued, the prison fired lethal munitions. Finally, prison staff was able to separate the groups and regain control of the situation. During the fighting, however, the Kubiks' son Brian and another inmate were shot by prison guards and dozens of other inmates were injured. Five inmates were prosecuted in connection with their involvement in the April 2008 riot. There was discovery produced in the criminal cases-some documents were released under a protective order and some were released without redactions and not subject to a protective order. All the inmates charged eventually pled guilty; thus, no evidence regarding the riot was introduced at trial.
The Kubiks wanted to understand the details of the loss of their son: how and why he was killed; whether the guard who shot him was disciplined; whether he was wrongfully killed; and whether he was provided adequate medical treatment. They also wanted information regarding why he was transferred to USP Florence, which the Kubiks understand to be one of the most violentfederal prisons in the United States. After several failed attempts to get information from USP Florence, the Kubiks' counsel sent a FOIA request to the prison on October 20,2007. The request sought all records relating to or referencing Brian Kubik's transfer from FCI Phoenix to USP Florence (which the Kubiks refer to as the "first request) and records or files relating to events leading up to, including and following Brian Kubik's shooting at USP Florence on April 20, 2008 (referred to as the "second request"). The BOP's North Central Regional Office received and acknowledged the FOIA request on October 27, 2008. The regional office handling the request informed the Kubiks that "because of the location of any responsive documents, the amount of time necessary to respond to [their] request would increase." (#20 at 71 ).
"[D]ue to the extensive nature of the April 20, 2008 disturbance" and the criminal investigation which stemmed from it, steps had already been taken to create a centralized point of contact for all documents, videos and other records related to the disturbance. (Id. at 7-8; #21 at ¶ 7). The Special Investigative Services office at USP Florence, and in particular the Special Investigative Agent (Investigative Agent or Agent) became the point of contact for these materials. (#21 at ¶ 7). The records were made available on an "as needed basis to Bureau [sic] and other Department of Justice components for the subsequent criminal investigations." (Id.) The regional office which acknowledged the Kubiks' FOIA request, delegated the request to the local field office for processing. When the request was delegated, the field office contacted the USP Florence Investigative Agent and the Agent provided all responsive documents for review. (Id.).
On March 12, 2009, a little over four months (136 days2 ) after the BOP received the Kubiks' FOIA request, the BOP produced one heavily redacted ten page document in response to the Kubiks' first request which sought information about Brian Kubik's transfer from FCI Phoenix to USP Florence. The BOP claimed this ten page document was the only one the BOP could release and that the redactions comported with FOIA's Exemptions. The BOP did not produce any documents responsive to the Kubiks's second request which sought information about their son's shooting, claiming that these documents could not be released "at this time" due to an ongoing investigation. The BOP advised the Kubiks they could resubmit their second request to the Director of the Bureau "at a later date when the law enforcement investigation was completed." (#21 at ¶ 10).
The Kubiks filed an appeal to the Officer of Information Policy on May 8, 2009. The appeal argued that the requested documents were not exempt from disclosure and challenged the validity of each Exemption the BOP claimed. The Kubiks received no response to their appeal and filed this action in March 2010. The BOP closed the Kubiks' appeal without any final determination on April 22, 2010 due to this action being filed. The parties agree that the Kubiks exhausted all their administrative remedies.
On November 9, 2010, after this action was filed, the BOP provided the Kubiks with redacted documents which were responsive to their second request for information (documents relating to the death of their son) pursuant to a stipulated protective order due to potentially privateand/or...
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