Debrew v. Atwood

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
DARRELL JAMES DEBREW, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0650 (JDB)
)
MICHAEL ATWOOD, et al., )
)
Defendants. )
_________________________________________ )

MEMORANDUM OPINION

This matter is before the Court on Defendants’ Renewed Motion for Summary Judgment

[Dkt. #50].1 Based on the Court’s review of the motion, plaintiff’s opposition and defendants’

reply, the motion will be granted.

I. BACKGROUND

The sole issue remaining for resolution in this case pertains to plaintiff’s request to the

Federal Bureau of Prisons (“BOP”) under the Freedom of Information Act (“FOIA”), 5 U.S.C.

1
Also before the Court are plaintiff’s Motion for Reconsideration [Dkt. #46] under Rule
59(e) of the Federal Rules of Civil Procedure and his New Request for Summary Judgment [Dkt.
#53]. “A Rule 59(e) motion ‘is discretionary and need not be granted unless the district court
finds that there is an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone, 76 F.3d
1205, 1208 (D.C. Cir. 1996) (internal quotation marks and citation omitted). Plaintiff
demonstrates none of these circumstances, and his Motion for Reconsideration will be denied.
Plaintiff’s purported summary judgment motion fails to comply in format and substance to Rule
56 of the Federal Rules of Civil Procedure and Local Civil Rule 7(h). It, too, will be denied.

1
§ 552, for “documentation concerning making Conducting a Business (408) a prohibited act.” 2

Compl. at 6. This Court previously observed that BOP did not “offer[]a description of either the

agency’s interpretation of the request or the method by which staff conducted the search,” and

hence the Court could not conclude “that the BOP’s search was reasonable under the

circumstances.” DeBrew v. Atwood, 847 F. Supp. 2d 95, 102 (D.D.C. 2012). BOP has renewed

its motion for summary judgment arguing that “there can be no genuine dispute that [it]

reasonably interpreted [p]laintiff’s FOIA request, conducted an adequate search of its records

based on that reasonable inperpretation, and provided responsive records to the [p]laintiff.”

Mem. of P. & A. in Supp. of Defs.’ Renewed Mot. for Summ. J. [Dkt. #50] (“Defs.’ Renewed

Mem.”) at 1.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). In a FOIA

action to compel production of agency records, the agency “is entitled to summary judgment if

no material facts are in dispute and if it demonstrates ‘that each document that falls within the

class requested either has been produced . . . or is wholly exempt from the [FOIA’s] inspection

requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001)

(quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary

2
Code 408 is a reference to particular conduct -- conducting a business -- for which an
inmate can be disciplined. See 28 C.F.R. § 541.3 (Table 1 – Prohibited Acts and Available
Sanctions). “[T]he prohibited act code for ‘Conducting a Business’ was changed to 334 in the
most recent Final Rule, published on December 8, 2010, and made effective on June 6, 2011.”
Defs.’ Opp’n to Pl.’s Mot. for Summ. J. and Reply to Pl.’s Opp’n to Defs.’ Renewed Mot. for
Summ. J., Third Moorer Decl. ¶ 7.
2
judgment may be based solely on information provided in an agency’s supporting affidavits or

declarations if they are relatively detailed and when they 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 [or] by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 182 (D.D.C.

2011).

To satisfy its burden on summary judgment to show that no genuine issue of material fact

exists, the agency must show that it “has conducted a search reasonably calculated to uncover all

relevant documents.” Elliot v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting

Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)); Valencia-Lucena v.

U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (“An agency fulfills its obligations under

FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to

uncover all relevant documents.’” (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir.

1990))). The agency may submit affidavits or declarations that explain in reasonable detail the

scope and method of its search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the

absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an

agency’s compliance with FOIA. Id. at 127. On the other hand, if the record “leaves substantial

doubt as to the sufficiency of the search, summary judgment for the agency is not proper.”

Truitt, 897 F.2d at 542; see also Valencia-Lucena, 180 F.3d at 326.

3
 B. BOP’s Interpretation of Plaintiff’s FOIA Request

“On June 5, 2006[,] Plaintiff was found guilty of violating BOP’s Code 408 (Conducting

a Business) and [was] ordered to remove his Web-Page from the World Wide Web and not to

use the mail in regards to his books and manuscripts.” Compl. at 9. “Again on April 21, 2009[,]

Plaintiff was found guilty [of the same offense because he received] a Royalty Check . . . for a

book entitled Keisha.” Id. In the interim, on September 5, 2007, plaintiff submitted a one-

sentence FOIA request to the BOP for “[a]ll documentation for making Conducting a Business

(408) a prohibited act.” Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss or in the Alternative

for Summ. J. [Dkt. #31] (“Defs.’ Mem.”), Ex. B (First Moorer Decl. dated October 15, 2010),

Ex. 5 (Freedom of Information/Privacy Act Request dated September 5, 2007); see Compl. at 6.

BOP interpreted the request as one seeking a copy of Program Statement 5270.07, Inmate

Discipline and Special Housing Units:

The interpretation of the request was based on the plain language
of the request seeking documentation that makes conducting a
business a prohibited act. For any inmate action to be made into a
prohibited act, . . . BOP must put the inmate on notice. That notice
was done through Program Statement 5270.08. So, that Program
Statement is what made conducting a business a prohibited act and
was thus considered responsive to [p]laintiff’s FOIA request.

Defs.’ Renewed Mem., Ex. A (Second Moorer Decl. dated June 8, 2012) ¶ 3. 3 BOP released a

copy of Program Statement 5270.07 to plaintiff on or about October 25, 2007. See Compl. at 6;

Defs.’ Mem., First Moorer Decl., Ex. 6 (Letter to plaintiff from Wanda M. Hunt, Chief,

FOIA/PA Section, BOP) at 1.

3
It appears that the relevant program statement has been updated twice since plaintiff
submitted his FOIA request. The current version, Program Statement 5270.09, Inmate Discipline
Program, was issued on July 8, 2011 and became effective on August 1, 2011. See
http://www.bop.gov/policy/progstat/5270_009.pdf.
4
 BOP’s declarant explained “that one might reasonably conclude that the [p]laintiff only

wanted a copy of the Program Statement.” Defs.’ Renewed Mem., Second Moorer Decl. ¶ 6. By

the declarant’s own admission, however, the request is susceptible to alternative interpretations:

Certainly, the word “All” could also lend itself to a very much
broader interpretation. However, this broadness also creates
vagueness since “All” could mean documents that were created
related to the implementation of the program statement. However,
it would equally include any documents related to making and
conducting a business. Thus it could equally mean any and all
documents by the BOP that somehow mention[] and/or deal[] with
the making or conducting [of] a business.
Id., Second Moorer Decl. ¶ 6.

Plaintiff objected to BOP’s narrow interpretation of his request and remarked that “[n]o

documents as to how Code 408 came into existence were provided.” Compl. at 7. He argued

that “[b]efore ‘Conducting a Business (408)’ became a prohibited act there must have been some

decision making,” and this process “would be reflected on some paperwork (documentation).”

Pl.’s Mot. for Summ. J. and Resp. to Defs.’ Mot. for Summ. J. & Dismissal [Dkt. #34] at 38.

“The words ‘All’ and ‘making,’” he explained, “by definition define a broad request, [as] broad

as possible. Yet, defendants took the narrowest definition.” Pl.’s Resp. to Defs.’ Renewed Mot.

for Summ. J. [Dkt. #52] (“Pl.’s Opp’n”) ¶ 5. He could have found a copy of the relevant

Program Statement at the facility’s law library, and he saw “no reason to request and litigate for

what’s easily accessible.” Id. ¶ 4. “[D]ocuments are created when an agency makes a rule or

regulation; as such, documents were created for Code (408). [Plaintiff] seeks these documents.”

Id. ¶ 7.

5
 C. The BOP’s Subsequent Searches for Responsive Records

In spite of what BOP characterizes as plaintiff’s “post hoc statement that he was actually

seeking documents relevant to the decision making process resulting in the program statement

that he received,” Defs.’ Renewed Mem. at 4, BOP “reconsider[ed] the scope of its search for

records, notwithstanding [its] belie[f] that its original interpretation of the FOIA request was

appropriate and the search for responsive documents was consistent with that interpretation.”

Defs.’ Opp’n to Pl.’s Mot. for Summ. J. and Reply to Pl.’s Opp’n to Defs.’ Renewed Mot. for

Summ. J. [Dkt. #56], Ex. A (Third Moorer Decl. dated August 17, 2012) ¶ 4.

“The request for records was submitted to the Correctional Programs Division because

this division is . . . responsible for making and enforcing the rules, regulations, and disciplinary

codes of the BOP.” Id., Third Moorer Decl. ¶ 6. The Chief Disciplinary Hearing Officer was

assigned the matter because she is a subject matter expert for inmate discipline and is considered

“the one person in the Correctional Programs Division, Correctional Services Branch, who could

conduct a reasonable and adequate search for documentation related to conducting a business,

Code 408.” Id. Her search yielded no additional records, however. “The only documentation

regarding [plaintiff’s] request for records that was found to be responsive was the program

statement on Inmate Discipline,” a copy of which had been released to plaintiff in October 2007.

Id.

In addition, plaintiff’s request was sent to BOP’s Office of General Counsel, Legislative

and Correctional Issues Branch (“LCI”), and assigned to the Rules Administrator, described by

the declarant as the person “solely responsible for the guidance of any proposed BOP rules

and/or rules changes.” Id., Third Moorer Decl. ¶ 7. The only LCI documents deemed

6
“responsive to [plaintiff’s] request are those that were publicly available in the Federal Register.”

Id. Because these records already are publicly available, pursuant to 5 U.S.C. § 552(a)(3), the

BOP did not release them. Id. ¶ 8.

On review of BOP’s renewed motion, supporting declarations, and the record of this case,

the Court concludes that the agency’s searches for records responsive to plaintiff’s request for

information about Code 408 were reasonable under the circumstances. The fact that none of its

searches yielded responsive records does not alter this result. Here, BOP “establish[es] that [its

staff] located no records . . . after a reasonable search using ‘methods reasonably expected to

produce the information requested.’” Davidson v. Envtl. Prot. Agency, 121 F. Supp. 2d 38, 39

(D.D.C. 2000) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).

III. CONCLUSION

BOP has demonstrated that no genuine issue of material fact remains as to its compliance

with the FOIA and that it is entitled to judgment as a matter of law. Its renewed motion for

summary judgment will be granted. Plaintiff’s Motion for Reconsideration [Dkt. #46] and his

New Request for Summary Judgment [Dkt. #53] will be denied. An Order accompanies this

Memorandum Opinion.

DATE: August 31, 2012 /s/_____________________
JOHN D. BATES
United States District Judge

7