News v. Lappin

• Decision Date: 25 February 2011
• Docket Number: Civil Action No. 05–1812 (RBW).
• Citation: 780 F.Supp.2d 29
• Parties: PRISON LEGAL NEWS, Plaintiff,v.Harley G. LAPPIN, Director, Federal Bureau of Prisons, Defendant.
• Court: U.S. District Court — District of Columbia

780 F.Supp.2d 29

PRISON LEGAL NEWS, Plaintiff,

v.Harley G. LAPPIN, Director, Federal Bureau of Prisons, Defendant.

Civil Action No. 05–1812 (RBW).

United States District Court, District of Columbia.

Feb. 25, 2011.

James R. Klimaski, Lynn Ilene Miller, Klimaski & Associates, P.C., Edward J. Elder, Washington, DC, for Plaintiff.Wyneva Johnson, U.S. Attorney's Office for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

This Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), action is before the Court on Defendant Federal Bureau of Prison's (the “Bureau” or “BOP”) Renewed Cross–Motion for Summary Judgment and Memorandum in Support (“Def.'s Renewed Mot.”). The plaintiff opposes the motion and cross moves for summary judgment. See Plaintiff's Opposition to Defendant's Renewed Cross–Motion for Summary Judgment/Plaintiff's Renewed Motion for Summary Judgment (“Pl.'s Opp'n”). For the reasons explained below, both parties' motions are granted in part and denied in part.¹

I. BACKGROUND

In 2003, the plaintiff, Prison Legal News (“PLN”), a non-profit legal journal, filed a FOIA request with the BOP in which it sought:

A copy of all documents showing all money paid by the BOP for lawsuits and claims against it. This is all funds paid out to claimants/litigants between January 1, 1996 through and including July 31, 2003. I am requesting a copy of the verdict, settlement or claim in each case showing the dollar amount paid, the identity of the plaintiff/claimant and the legal identifying information for each lawsuit or claim or attorney fee award. I am also requesting a copy of the complaint (if it was a lawsuit) or the claim (if it was not) in each incident which describes the facts underlying each lawsuit and claim.

Def.'s Renewed Mot. at 1. Upon not receiving all of the information requested, the plaintiff brought suit, pursuant to the FOIA, challenging the adequacy of the defendant's search for responsive records and the defendant's withholding of records under several FOIA exemptions. See Prison Legal News v. Lappin, 603 F.Supp.2d 124, 125 (D.D.C.2009) (Walton, J.). The Court denied the defendant's first motion for summary judgment in March of 2009 because the sole affidavit submitted in conjunction with the defendant's motion failed to show that the Bureau's search was adequate or that it was properly withholding documents under the FOIA's exemptions. Id. at 127, 129.

The defendant then moved for reconsideration of the March 2009 Opinion and Order on the basis that an electronic transmittal error prevented the Court from receiving additional supporting affidavits. See February 25, 2010 Order at 1–2. Upon reviewing the additional declarations, the Court concluded that “the Bureau's declarations suggest that the officials made a good faith effort to conduct the search ... [but that] the declarants f[e]ll short of explaining, in reasonable detail, the scope and method of the search.” Id. at 8. Further, the Court found that “none of the newly filed declarations” addressed the validity of the Bureau's reliance on the FOIA exemptions. Id. at 10. The Court noted that it was unaware whether the Bureau had created a Vaughn index,² and observed that a Vaughn index would help put the Court in the position to assess the propriety of the exemptions invoked by the Bureau. Id. at 11–12. Finding that the additional affidavits did not provide sufficient information for the Court to independently determine if the Bureau's search was adequate, id. at 9, or whether the exemptions it relied upon to withhold information were properly invoked, id. at 12, the Court denied the defendant's motion for reconsideration. Id.

In conjunction with its current motion for summary judgment, the Bureau has submitted supplemental declarations that it believes “contain the specificity and detail requested by the Court in its February 25, 2010 Order.” Def.'s Renewed Mot. at 3. The defendant makes clear, however, that it has conducted no additional searches for responsive records. Id. at 2.

II. STANDARD OF REVIEW

Courts will grant a motion for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure if “the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). To prevail on a motion for summary judgment in a case brought under the FOIA when the adequacy of an agency search is challenged, the “defending ‘agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.’ ” Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)); see Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998) (explaining the “peculiar nature of the FOIA” as it relates to summary judgment review). And courts apply a reasonableness test to determine the adequacy of a search methodology. Morley, 508 F.3d at 1114. Thus, a “FOIA search is sufficient if the agency makes ‘a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’ ” Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C.Cir.2006) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995)). “Agency affidavits [submitted in FOIA cases] are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal citation omitted). Accordingly, once the agency has “shown that its search was reasonable, the burden is on the requester to rebut that evidence by a showing that the search was not conducted in good faith.” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir.1985)). This rebuttal can be done either by contradicting the defendant's account of the search procedure or by presenting evidence showing the agency's bad faith. Moore, 916 F.Supp. at 35–36.

When an agency seeking “summary judgment on the basis of ... agency affidavits” asserts through those affidavits that it has properly withheld documents or parts of a document pursuant to a FOIA exemption, the agency's affidavits must “describe the documents and 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Further, consistent with congressional intent tilting the scales in favor of full disclosure, courts impose a substantial burden on an agency seeking to avoid disclosure based on the FOIA exemptions. Morley, 508 F.3d at 1114 (internal citations and quotations omitted). Consequently, “exemptions from disclosure must be narrowly construed ... and conclusory and generalized allegations of exemptions are unacceptable.” Morley, 508 F.3d at 1114–15 (citing Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C.Cir.1979)) (internal quotation marks omitted). Nonetheless, “[w]hen disclosure touches upon certain areas defined in the exemptions, ... the [FOIA] recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it.” ³ Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).

III. ANALYSIS

A. The Adequacy of the Bureau's Search

The defendant submits that its supplemental explanations of the search conducted in response to the plaintiff's FOIA request contain the level of specificity and detail requested by the Court in its February 25, 2010 Order.⁴ Def.'s Renewed Mot. at 2, 3; see id., Exhibits (“Exs.”) 2–3, 5–16. The plaintiff, on the other hand, argues that the Bureau “has not conducted a reasonable and adequate search for documents,” Pl.'s Opp'n at 5, but offers no critique of the search methods employed by the Bureau and provides little explanation as to why the Court should find the Bureau's search inadequate. Instead, the plaintiff states that of the “11,000[-]plus pages of materials [produced by the Bureau], most are useless due to ... disorganization, incompleteness and limitless redactions.” Id. Additionally, the plaintiff avers that “[a]fter careful review of the items received,” id. at 6, it knows the response to its “request is incomplete .... [because t]here are numerous instances throughout the 11,000–plus pages that do not provide the information that was requested in 2003.” Id. The plaintiff seems, at least in part, to base its argument that the search remains incomplete on its possession of several litigation reports prepared by the Bureau. See Pl.'s Opp'n at 6 (“To support its assertion, PLN is in possession of what are commonly known as ‘litigation reports.’ ... It is clear from the 1996 and 1997 litigation reports that someone is keeping track of the [Bureau's] litigation records.”); Pl.'s Resp. at 6 (“These reports were used by Plaintiff as a ‘checks and balances' to [e]nsure, in part, that the [Bureau] was complying with [the] FOIA request.”). The plaintiff's opposition to the adequacy of the Bureau's search is therefore seemingly rooted in the purported disorganization of the documents it received and its belief, formed after its review of the several copies of the Bureau's litigation reports it received, that additional responsive documents have not been produced.

While still not providing the level of specificity or detail a model agency FOIA response should contain,...