WORLD Publ'g Co. v. UNITED States Dep't of JUSTICE
| Decision Date | 28 March 2011 |
| Docket Number | No. 09-CV-574-TCK-TLW,09-CV-574-TCK-TLW |
| Parties | WORLD PUBLISHING COMPANY, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, and its subordinate bureau, UNITED STATES MARSHALS SERVICE, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
OPINION TEXT STARTS HERE
Before the Court are Defendants' Motion to Dismiss or, Alternatively, Motion for Summary Judgment (Docs. 8 and 10); Plaintiff's Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support (Doc. 24); and Defendant's Motion to Strike Plaintiffs Request for Summary Judgment and Plaintiff's Statement of Material Facts ("Motion to Strike") (Doc. 33).
Plaintiff World Publishing Company ("Tulsa World") is the publisher of the Tulsa World, a newspaper of general circulation in the State of Oklahoma. The United States Marshals Service ("USMS") is a subordinate bureau of Defendant the United States Department of Justice ("DOJ") (collectively "Defendants"). This case involves Tulsa World's request for the booking photographs of six individuals, which was made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C.§ 552.1 At the time of the FOIA request, these six individuals were indicted on federal charges, detained, and awaiting trial.2
The USMS Northern District of Oklahoma ("USMS N/OK") houses certain federal prisoners in its custody at the Tulsa County Jail pursuant to a contract with Tulsa County. The contract does not discuss booking photographs, and USMS N/OK maintains booking photographs of prisoners in its custody. Such photographs are either taken by or obtained by USMS and "are not routinely provided to the Tulsa County Sheriff." (Decl. of William Bordley ("Bordley Decl.") ¶ 7.) The Tulsa County Sheriffs Office ("TCSO") is permitted to create and maintain its own booking photographs for independent record keeping purposes, but any such photographs are not provided to or maintained by USMS N/OK. USMS N/OK, and not TCSO, took all six booking photographs that were the subject of the FOIA request leading to this litigation.
Federal booking photographs, including those requested in the underlying FOIA request and appeal, are maintained in a federal database known as the Prisoner Processing and PopulationManagement/Prisoner Tracking System ("PPM/PTS"). Absent consent of the subject individual, booking photographs located in the PPM/PTS "system of records" are statutorily protected from disclosure. See 5 U.S.C. §§ 552a(5) (defining "system of records"), 552a(b)(2) (prohibiting disclosure of record contained in a "system of records" without consent of subject individual, unless request is made and disclosure is required under FOIA). Thus, federal booking photographs may not be released without consent of the subject individual, except pursuant to an FOIA request.
USMS's relevant policy, which is set forth in a document entitled USMS Directives and in a section entitled "Information Dissemination - Media - Media Policy," provides: It further provides that "[p]ost-arrest photographs of a prisoner will not be released to the news media unless a law enforcement purpose is served." (Id. at 1.3(A)(3)(c)(5).) These two provisions are collectively referred to as the "Policy."3 Federal regulations are consistent with the Policy. See 28 C.F.R. § 50.2(b)(7)-(8) ().
On August 26, 2008, Ziva Branstetter ("Branstetter"), City Editor of Tulsa World, submitted a written FOIA request to DOJ ("8/26/08 Letter"). The 8/26/08 Letter was not on Tulsa World letter head, but the Tulsa World logo and return address appeared on the envelope in which the letter was sent. Branstetter signed the request as "City Editor, Tulsa World" and included her title of "Tulsa World city editor" in the return address appearing on the first page of the request. The request was for production of the booking photographs of six individuals who had been indicted on federal charges, arraigned, and detained pending trial. The request was based solely on these individuals' status as indicted persons accused of federal crimes and not based on any unique characteristics of the six individuals or their charges. The request provides:
Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I request access to and copies of mugshots of the following prisoners held in the David L. Moss Criminal Justice Center in Tulsa, Okla.:
Zobair Baig
Estella Bonilla
Cecilia Bonilla
Francisca Bonilla
Kimberly Chancellor
These inmates are being held in the Tulsa jail awaiting trial pursuant to a contract between the U.S. Marshals Office and Tulsa County. We have requested mugshots of these prisoners from our jail and from Carroll Allbery, the chief deputy U.S. Marshal, and have been denied. Both parties cited U.S. Marshal Service policy regarding mugshots.
...
...
As a representative of the news media I am only required to pay for the direct cost of duplication after the first 100 pages. Through this request, I am gathering information that is of current interest to the public and is being sought for dissemination to the general public.
If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. As I am making this request as a journalist and this information is of timely value, I would appreciate your communicating with me by telephone, rather than by mail, if you have questions regarding this request.
Please provide expedited review of this request which concerns a matter of urgency. As a journalist, I am primarily engaged in disseminating information. The public has an urgent need for information about inmates held under contract in the Tulsa jail because the Tulsa World routinely writes stories about these individuals and have by policy been denied mugshots, which contribute to the public's understanding of the story. It is also important to address our request as soon as possible, as these individuals are awaiting trial and may be out of jail soon and moved into the prison system.
(footnote added).)
On September 15, 2008, Cynthia Castaneda ("Castaneda"), of USMS, sent an email to Branstetter's Tulsa World email address denying the request pursuant to 5 U.S.C. § 552(b)(7)(C) ("Exemption 7(C)") of the FOIA. On November 10, 2008, attorney Schaad Titus ("Titus") sent a letter entitled "Freedom of Information Act Appeal" to DOJ's Office of Information and Privacy. In this letter, Titus stated that Tulsa World requested the booking photographs and that Tulsa World was pursuing the appeal. On July 22, 2009, Janice Galli McLeod ("McLeod"), Associate Director of DOJ Office of Information Policy, sent a letter to Titus affirming USMS's denial and denying the appeal, citing Exemption 7(C). McLeod's letter also referenced Tulsa World, and not Branstetter, as the appellant.
Following denial of its appeal, Tulsa World initiated this lawsuit against USMS and DOJ pursuant to 5 U.S.C. § 552(a)(4)(B), contending that Exemption 7(C) does not apply to the requested booking photographs and that they must be disclosed under the FOIA. Defendants filed a motion to dismiss, arguing that Tulsa World lacks standing because Branstetter, and not Tulsa World, initiated the FOIA request. Alternatively, in the same motion, Defendants moved for summary judgment on grounds that Exemption 7(C) and/or 5 U.S.C. § 552(b)(6) ("Exemption 6") exempted the booking photographs from the FOIA's disclosure requirements. Tulsa World filed separate responses to both motions. In the response to Defendants' motion for summary judgment, Tulsa World set forth a statement of undisputed facts and also requested summary judgment in its favor. Tulsa World also filed a separate motion pursuant to Federal Rule of Civil Procedure 56(d), arguing that, in the event Tulsa World was not entitled to summary judgment, it should be allowed to conduct discovery before the Court ruled upon Defendants' motion for summary judgment ("Rule 56(d) Motion").5
In their motion to dismiss, Defendants argue that Tulsa World lacks standing to bring this FOIA challenge. Because standing is a jurisdictional requirement, motions to dismiss based on lack of standing are governed by Federal Rule of Civil Procedure 12(b)(1). Colo. Envt'l Coalition v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).
"Motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may take one of two forms." U.S. v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). "First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint." Id. "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends." Id. at 1003. In addressing a factual attack, a court does not "presume the...
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