Mingo v. United States Dep't of Justice

• Decision Date: 29 June 2011
• Docket Number: Civil Action No. 10–1673 (BAH).
• Citation: 793 F.Supp.2d 447
• Parties: Kemuel MINGO, Plaintiff,v.UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

793 F.Supp.2d 447

Kemuel MINGO, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.

Civil Action No. 10–1673 (BAH).

United States District Court, District of Columbia.

June 29, 2011.

Kemuel Mingo, Pine Knot, KY, pro se.Gabriel R. Martinez, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

In this action brought under the Freedom of Information Act, (“FOIA”) 5 U.S.C. § 552, the Plaintiff, a federal prisoner, challenges the Bureau of Prisons' (“BOP”) response to his request for certain records pertaining to him and certain video footage. Pending is the Plaintiff's motion for summary judgment [ECF No. 6], and the Defendants' motion to dismiss one of the two defendants and cross-motion for summary judgment [ECF No. 12].¹ Upon consideration of the parties' submissions and the entire record, and for the following reasons, the Court will deny the Plaintiff's motion for summary judgment and grant both the Defendants' motion to dismiss the defendant BOP and their motion for summary judgment.²

I. BACKGROUND

By letter of March 29, 2010, the Plaintiff requested from BOP records pertaining to him “in regards to” an “SIS investigation” of an incident that occurred on September 26, 2009, at the United States Penitentiary Big Sandy (“USP Big Sandy”) in Lexington, Kentucky. He also requested “a complete copy of the camera footage regarding said incident ... and the complete camera footage of Unit C–4 on the date of [the] incident[.]” ³ Defs.' Opp'n to Pl.'s Mot. for Summ. J. and Cross–Mot. to Dismiss Def. BOP and for Summ. J., Decl. of Denise Gottlieb (“Gottlieb Decl.”) [ECF No. 12–1], Ex. A. Following a search for responsive records, BOP located 55 pages of information and two video disks. Gottlieb Decl. ¶ 7.

By letter of June 14, 2010, BOP released to the Plaintiff 37 pages of information, 19 of which were redacted. BOP withheld 18 pages and the two video disks in their entirety under FOIA exemption 7(C). Id. ¶¶ 8–13; see Ex. B (citing 5 U.S.C. § 552(b)((7)(C))). By letter of June 27, 2010, the Plaintiff appealed that determination to the Office of Information and Privacy (“OIP”), stating that the “agency improperly invoked Exemption (b)(7)(C) ... to the requested video tapes.” Pl.'s Mot. for Summ. J., Ex. 3 [ECF No. 6–3]. By letter of August 20, 2010, OIP released additional portions of one page but otherwise affirmed BOP's action, albeit “on partly modified grounds.” Id., Ex. 5. OIP listed exemptions 2 and 5 as additional bases for BOP's withholding of information.⁴Id. The Plaintiff filed this lawsuit on September 30, 2010, against the Department of Justice (“DOJ”) and its component, BOP.

II. DISCUSSION

1. The Defendants' Motion to Dismiss

The Defendants move under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss BOP from this action. They argue that FOIA lawsuits may be brought only against the federal agency, not its components, and therefore that the only proper defendant in this case is DOJ and not its component BOP. Defs.' Mem. in Opp'n to Pl.'s Mot. for Summ. J. & in Supp. of Defs.' Cross–Mot. to Dismiss Def. BOP and for Summ. J. [ECF No. 12] at 5. This issue is not settled in this Circuit, however. See Prison Legal News v. Lappin, 436 F.Supp.2d 17, 21–22 (D.D.C.2006) (noting “disagreement [among the district judges] in this Circuit regarding what constitutes an ‘agency’ as it pertains to the District Court's jurisdiction pursuant to the FOIA.”) (citations omitted); compare Benavides v. Bureau of Prisons, 774 F.Supp.2d 141, 143 n. 1, 2011 WL 1195800, at *1 n. 1 (D.D.C. Mar. 30, 2011) (Roberts, J.) (In FOIA suit against BOP, “DOJ is an executive agency to which the FOIA applies, and the Court considers the DOJ as the proper party defendant.”) and Holt v. U.S. Dep't of Justice, 734 F.Supp.2d 28, 33 n. 1 (D.D.C.2010) (Walton, J.) (In FOIA suit against DOJ, BOP and FBI, court noted that “DOJ is an executive agency to which the FOIA applies, and the Court considers the DOJ as the proper party defendant.”), with Cloonan v. Holder, 768 F.Supp.2d 154, 162 (D.D.C.2011) (Lamberth, J.) (“[T]his Court has previously held that naming components as defendants under the Privacy Act is appropriate since the statute's plain language is clear that ‘an agency need not be a cabinet-level agency such as the DOJ’ to be liable.”) and Lair v. Dep't of Treasury, 2005 WL 645228, at *3 (D.D.C. Mar. 21, 2005) (“as for the propriety of naming components in [FOIA suit] of executive departments, naming components is proper.”) (Lamberth, J.).

Nevertheless, the Court will grant the motion to dismiss BOP because DOJ is a co-defendant in this action, and the Plaintiff has not contested this part of the Defendants' dispositive motion. See Vazquez v. U.S. Dep't of Justice, 764 F.Supp.2d 117, 119 (D.D.C.2011) (finding no “need [to] dwell on the issue” where DOJ was also a named defendant).

2. The Parties' Motions for Summary Judgment

A. Legal Standard

Summary judgment is appropriate upon a showing that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A] material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The FOIA requires a federal agency to release all records responsive to a properly submitted request except those protected from disclosure by one or more of nine enumerated exemptions. See 5 U.S.C. § 552(b). The agency's disclosure obligations are triggered by its receipt of a request that “reasonably describes [the requested] records” and “is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.” 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only “to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a FOIA claim are: (1) improperly (2) withheld (3) agency records. “Judicial authority to devise remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980).

“Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.Cir.2007) (citations omitted). The Court may award summary judgment to an agency solely on the information provided in affidavits or declarations when they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) ( quoting Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984)); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). An agency's declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims....” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (citation and internal quotation marks omitted); see Matter of Wade, 969 F.2d 241, 246 (7th Cir.1992) (“Without evidence of bad faith, the veracity of the government's submissions regarding reasons for withholding the documents should not be questioned.”) (citation omitted). If the Plaintiff rebuts the foregoing presumptions with probative evidence, summary judgment is not warranted. See Sussman, 494 F.3d at 1117 (“the burden lies with the government to demonstrate that no segregable, nonexempt portions were withheld.”).

B. Analysis

The Plaintiff disputes only BOP's withholding of the video disks in their entirety under exemption 7(C). See Pl.'s Statement of Fact as to Which There is No Genuine Dispute [ECF No. 6] ¶¶ 7, 10–11, 14, 16 & Ex. 3 (administrative appeal of alleged improper withholding of “requested video tapes”). He therefore has conceded the Defendants' documented bases for redacting information from the released documents—namely, third-party information under exemption 7(C) and deliberative process material under exemption 5. See Gottlieb Decl. ¶¶ 10–11 & Attach. D ( Vaughn index).

Notwithstanding the Plaintiff's concession, the Court must determine whether, as with the disks, BOP has adequately justified withholding 18 pages of responsive records in their entirety. See Trans–Pacific Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1027–28 (D.C.Cir.1999) (requiring the court to make a so-called segregability finding whether raised by the parties or not). An agency may properly withhold entire records when the “ ‘exempt and nonexempt information are ‘inextricably intertwined,’ such that the excision of exempt information would ... produce an edited document with little informational value.' ” Mays v. DEA, 234 F.3d 1324, 1327 (D.C.Cir.2000) ( quoting Neufeld v. IRS, 646 F.2d 661, 666 (D.C.Cir.1981)).

BOP withheld 18 pages and two disks in their entirety under FOIA exemption 7. Gottlieb Decl. ¶¶ 12–13. This exemption allows an agency to withhold records that were compiled for law enforcement purposes and satisfy the requirements of one of the subparts of exemption 7. Holt v. U.S. Dep't of Justice, 734 F.Supp.2d 28, 41 (D.D.C.2010) ( citing Pratt v. Webster, 673 F.2d 408, 413 (D.C.Cir.1982)). In assessing whether...