UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
:
EDUARDO BENAVIDES, :
:
Plaintiff, :
:
v. : Civil Action No. 09-2026 (JEB)
:
BUREAU OF PRISONS, :
:
Defendant. :
:
MEMORANDUM OPINION
This matter is before the Court on the parties’ cross-
motions for summary judgment. For the reasons discussed below,
defendant’s motion will be granted in part and denied in part,
and plaintiff’s motion will be denied.
I. BACKGROUND
Plaintiff submitted two separate requests under the Freedom
of Information Act (“FOIA”), see 5 U.S.C. § 552, to the Federal
Bureau of Prisons (“BOP”), a component of the United States
Department of Justice (“DOJ”), for information pertaining to
“billing records and recorded telephone conversations of phone
calls plaintiff made in prison to his attorney Robert O.
Switzer.” Compl. ¶ 1.1
1
For purposes of the FOIA, the term “agency” includes
“any executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the Executive Branch of the Government . . ., or
any independent regulatory agency.” 5 U.S.C. § 552(f)(1). The
(continued...)
A. May 5, 2009 Request
By letter dated May 5, 2009, addressed to the Director of
the BOP’s South Central Regional Office (“SCRO”), plaintiff
sought information pertaining to telephone calls he made while
incarcerated at two BOP facilities in Texas. Compl. ¶ 1. In
relevant part, the request stated:
I am requesting . . . a copy of the recorded
telephone conversations I made while in BOP,
and record of dates and times the telephone
calls were made. The phone number that is the
subject to my request is (210) 299-1053. The
calls were made from February 25 to August 8,
2008 at [Federal Correctional Complex (“FCC”)]
Beaumont – Medium, and from August 8, to
October 31, 2008 at [Federal Correctional
Institution (“FCI”)] Bastrop.
Id., Attach. (Freedom of Information Act Request). By letter
dated July 9, 2009, SCRO staff notified plaintiff that his FOIA
request must be submitted to the BOP’s Director at the
Washington, D.C. headquarters office. Id., Attach. (letter from
J.A. Sickler, Regional Counsel, SCRO).
B. July 16, 2009 Request
On July 16, 2009, plaintiff addressed a second letter to
BOP’s Director which both referenced his May 5, 2009 letter and
requested additional information. Compl., Attach. (FOIA
Request). In relevant part, the second requested stated:
1
(...continued)
DOJ is an executive agency to which the FOIA applies, and the
Court considers the DOJ as the proper party defendant.
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I am . . . expanding my request to include (2)
additional calls made on 6/5 and 6/23/09,
while at FCI Bastrop. The records of the
calls made on 10/30 and 10/31/08, and 6/5 and
6/23/09 are the most pressing and needed for
filing in court.
Id. at 1.
C. FOIA Request 2009-10149
On July 30, 2009, the BOP’s Central Office, FOIA Section,
“received correspondence from [p]laintiff which contained letters
dated June 19, July 12, and July 16, 2009, in addition to the May
5, 2009, letter and July 9, 2009, response.” Def.’s Mem. of P. &
A. in Supp. of the Mot. for Summ. J. (“Def.’s Mem.”), Decl. of
Larry Collins (“Collins Decl.”) ¶ 5. “The separate letters . . .
were processed as a single request as [they] were received on the
same date, July 30, 2009, and the records sought by each letter
were records [p]laintiff indicated he had previously requested
from institution staff and been denied.” Id. ¶ 9. The request
was assigned a tracking number, 2009-10149, id., and staff
“forwarded electronic copies of these letters to the SCRO
Regional Counsel’s Office for response.” Id. ¶ 5. The June 19,
and July 12, 2009 letters, copies of which are submitted with
defendant’s dispositive motion, see Collins Decl., Attach. 4-5,
are not mentioned in Plaintiff’s complaint. The Court therefore
addresses only the BOP’s response to his requests for information
pertaining to telephone calls which occurred on the dates set
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forth in his complaint, “from 2/25/08 . . . to 6/23/09.” Compl.
¶ 1.
SCRO’s Regional Counsel learned that the requested
recordings of telephone conversations which occurred while
plaintiff was incarcerated at FCC Beaumont could not be produced
because the Telephone Activity Recording System (“TARS”)
maintains recordings only for six months, a period which already
had expired by the time staff conducted a search.2 Collins Decl.
¶ 10. Instead, FCC Beaumont staff produced “a three-page
computer print out containing transactional data for the
responsive telephone calls[.]” Id. FCI Bastrop staff located
“recordings of telephone calls made by [p]laintiff on June 6, and
June 23, 2009,” and explained that “recordings for the telephone
calls made prior to six months of the date of the search were no
longer available.” Id. ¶ 11.3 In addition, staff located
“thirteen pages of computer printouts containing transactional
data for all telephone calls [p]laintiff made while incarcerated
at FCI Bastrop during the time frames noted on his request.” Id.
2
“Recorded telephone conversations are maintained
digitally on [TARS] for a period of six months from the date
created, at which time they are overwritten with new data.”
Collins Decl. ¶ 10 n.1.
3
The Court presumes that the reference in the
declaration to a recording of a telephone conversation occurring
on June 6, 2009 is a typographical error. Based on
representations elsewhere in the record, see, e.g., Pl.’s Opp’n
at 3; Collins Decl., Attach. 10 (Vaughn Index), Rec. No. 4, it
appears that the telephone conversation occurred on June 5, 2009.
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¶ 13. “No records were located in response to [p]laintiff’s
request for recorded telephone conversations for . . . calls he
placed . . . between February 25, 2008, and October 31, 2008.”
Id. ¶ 14.
On November 24, 2009, “sixteen pages of telephone
transactional data printouts . . . with the user identification
codes redacted pursuant to [Exemption 2]” were released. Id.
The recorded telephone conversations were withheld in full under
Exemption 7(C), and plaintiff was notified that these recordings
“could be forwarded to an un-incarcerated third party upon
receipt of consent for the release of information from all
parties to the telephone conversations.” Id.; see id., Attach. 9
(November 24, 2009 letter from J.A. Sickler) at 3. The declarant
explained that the BOP “does not maintain equipment necessary for
the editing of the digitally stored recordings,” and for this
reason it could not segregate plaintiff’s non-exempt portion of
the recordings from the exempt portion. Id. ¶ 18; see id.,
Attach. 9 at 3.
Plaintiff represents that the “two recorded telephone
conversations [which] took place on June 5, 2009 and June 23,
2009 . . . were conversations between [him] and Robert O. Switzer
. . . [who] at the time [was plaintiff’s] attorney in a criminal
appeal.” Pl.’s Mem. of P. & A. in Supp. of his Mot. for Summ. J.
and in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), Ex. 3
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(Benavides Decl.) ¶ 3. He further states that no other person
participated in the calls, that Mr. Switzer acted solely as
plaintiff’s criminal attorney, and that the sole subject of the
conversations was plaintiff’s criminal appeal. Id. ¶¶ 3-4.
In this action, plaintiff demands a declaratory judgment,
release in full of the requested records, and an award of costs
and attorney’s fees. Compl. at 2-3 (page numbers designated by
the Court).
DISCUSSION
Summary Judgment in a FOIA Case4
Courts will grant a motion for summary judgment if “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).
The moving party bears the burden of demonstrating the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). “[A] material fact is ‘genuine’ . . . if
4
“Plaintiff challenges . . . only the withholdings of
the June 5th and June 23rd recordings,” Pl.’s Opp’n at 3, and the
Court treats as conceded the BOP’s arguments with respect to the
adequacy of its search for records responsive to plaintiff’s FOIA
requests and its decision to withhold user identification codes
under Exemption 2. In these respects, defendant’s motion will be
granted in part as conceded. See Bonaccorsy v. Dist. of
Columbia, 685 F. Supp. 2d 18, 24 (D.D.C. 2010); Buggs v. Powell,
293 F. Supp. 2d 135, 141 (D.D.C. 2003) (citing FDIC v. Bender,
127 F.3d 58, 67-68 (D.C. Cir. 1997) (stating that if “a plaintiff
files an opposition to a dispositive motion and addresses only
certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as
conceded”).
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the evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on an element of the his claim.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Factual assertions in the moving party’s affidavits or
declarations may be accepted as true unless the opposing party
submits his own affidavits or declarations or documentary
evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.
Cir. 1992). In opposing a summary judgment motion, a party may
not “replace conclusory allegations of the complaint or answer
with conclusory allegations of an affidavit,” Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990), but rather must “set
forth specific facts showing that there is a genuine issue for
trial,” Anderson, 477 U.S. at 248 (citation and internal
quotation marks omitted).
In a FOIA case, the Court may grant summary judgment based
on information provided in an agency’s affidavits or declarations
when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that
the information withheld logically falls within [a] 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). Such
affidavits or declarations are accorded “a presumption of good
faith, which cannot be rebutted by ‘purely speculative claims
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about the existence and discoverability of other documents.’”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770,
771 (D.C. Cir. 1981)).
Law Enforcement Records
Exemption 7 protects from disclosure “records or information
compiled for law enforcement purposes,” but only to the extent
that disclosure of such records would cause an enumerated harm.
5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622
(1982). The fact that the relevant agency’s principal purpose is
the enforcement of criminal law does not absolve it of its
obligation to demonstrate that the records at issue were compiled
for a law enforcement purpose. Pratt v. Webster, 673 F.2d 408,
416 (D.C. Cir. 1982) (holding that the FBI “must meet the
threshold requirements of Exemption 7 before [it] may withhold
requested documents on the basis of any of its subparts”). To
this end, the government generally “must identify a particular
individual or incident as the object of the investigation and
specify the connection of the individual or incident to a
potential violation of law or security risk.” Davin v. U.S.
Dep’t of Justice, 60 F.3d 1043, 1056 (3d Cir. 1995); see Simon v.
Dep’t of Justice, 980 F.2d 782, 783 (D.C. Cir. 1992) (quoting
Pratt, 673 F.2d at 420-21). The “focus is on how and under what
circumstances the requested files were compiled, and whether the
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files sought relate to anything that can fairly be characterized
as an enforcement proceeding.” Jefferson v. Dep’t of Justice,
284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal
quotations omitted).
The BOP’s declarant avers that the BOP is a law enforcement
agency the employees of which “perform inherently law enforcement
functions,” such as making arrests, executing searches on inmates
and visitors to its institutions, and seizing evidence. Collins
Decl. ¶ 15. Referring to its authority under 18 U.S.C. § 4042,
the BOP also “is tasked with the law enforcement mission of
protecting inmates, staff, and the community,” and the declarant
states that “the files of federal inmates are essential to BOP
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staff in carrying out the law enforcement mission of the BOP.”5
Id.
The BOP’s TRUFONE computer system tracks, monitors, and
records inmate telephone calls, Collins Decl. ¶ 16, and inmate
telephone conversations are maintained digitally on TARS, id. ¶
10 n.1. The TRUVIEW system “is an application used primarily by
investigative staff to access information maintained on the
TRUFONE system.” Id. ¶ 16. The BOP’s declarant states that
recordings of inmate telephone conversations are “maintained on
the TARS for the purpose of monitoring inmate telephone activity
and conducting investigations regarding . . . illegal activities
or suspected illegal activities being conducted, coordinated or
directed from within a BOP facility.” Id. ¶ 17. The BOP claims
5
Generally, the BOP shall:
(1) have charge of the management and
regulation of all Federal penal and
correctional institutions;
(2) provide suitable quarters and provide
for the safekeeping, care, and subsistence of
all persons charged with or convicted of
offenses against the United States, or held as
witnesses or otherwise;
(3) provide for the protection,
instruction, and discipline of all persons
charged with or convicted of offenses against
the United States;
(4) provide technical assistance to State
and local governments in the improvement of
their correctional systems; and
(5) provide notice of release of
prisoners[.]
18 U.S.C. § 4042(a).
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to have “satisfie[d] the standard for invoking Exemption 7 . . .
because of its law enforcement mission and responsibilities for
protecting inmates, staff, and the community.” Def.’s Mem. at
10.
Plaintiff counters that the BOP fails to meet its threshold
requirement for withholding information under Exemption 7, that
is, it fails to establish that the requested recordings were
compiled for law enforcement purposes. Pl.’s Opp’n at 5. He
maintains that the BOP “cannot merely point to its mission,” id.,
as a blanket reference to the agency’s law enforcement duties
does not establish that the recorded telephone conversations were
compiled for law enforcement purposes. The Court concurs.
The D.C. Circuit has articulated a “two-part test whereby
the government can show that its records are law enforcement
records: the investigatory activity that gave rise to the
documents is related to the enforcement of federal laws, and
there is a rational nexus between the investigation at issue and
the agency’s law enforcement duties[,]” Jefferson, 284 F.3d at
177 (internal quotation marks and citation omitted), regardless
of whether “the investigation . . . [led] to a criminal
prosecution or other enforcement proceeding[,]” Pratt, 673 F.2d
at 421. Here, the BOP suggests that its status as a law
enforcement agency responsible for the welfare of inmates in its
custody, its staff and the public at large, sufficiently
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establishes that recordings of inmate telephone conversations are
compiled for law enforcement purposes. Not so. The D.C. Circuit
has rejected a per se rule of this sort. See Pratt, 673 F.2d at
416; see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (stating that,
notwithstanding DOJ’s law enforcement specialty, “[t]o establish
a law enforcement purpose, DOJ’s declarations must establish (1)
a rational nexus between the investigation and one of the
agency's law enforcement duties; and (2) a connection between an
individual or incident and a possible security risk or violation
of federal law”) (citation and quotation marks omitted)); King v.
Dep’t of Justice, 830 F.2d 210, 229 (D.C. Cir. 1987) (explaining
that an FBI record did not automatically satisfy this threshold
requirement “simply by virtue of the function the FBI serves”).
“[W]hen an agency seeks to withhold information, it must
provide a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a
withheld document to which they apply.” Morley v. CIA, 508 F.3d
1108, 1122 (D.C. Cir. 2007) (quoting King, 830 F.2d at 219)
(internal quotation marks omitted). The BOP’s supporting
declaration neither identifies a particular individual or
incident subject to an investigation nor connects a particular
individual or incident to a potential violation of law. On this
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record, without a declaration supplying “facts in sufficient
detail to apply the Pratt rational nexus test,” Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998), the Court
cannot grant summary judgment for the BOP. See, e.g., Banks v.
Dep’t of Justice, 700 F. Supp. 2d 9, 18 (D.D.C. 2010) (denying
summary judgment where the BOP “appear[ed] to rely solely on its
status as a law enforcement agency as the premise from which the
Court should conclude that any record it maintains was compiled
for law enforcement purposes”).
CONCLUSION
Defendant’s motion for summary judgment will be granted in
part and denied in part without prejudice and plaintiff’s motion
for summary judgment will be denied. There is no dispute that
the BOP conducted a search reasonably calculated to locate
records responsive to plaintiff’s FOIA requests and that its
decision to redact information under Exemption 2 is proper.
However, because the BOP has not demonstrated that the requested
recordings of telephone conversations were compiled for law
enforcement purposes, defendant fails not only to justify its
decision to withhold information under Exemption 7(C) but also to
show that all reasonably segregable information has been released
to plaintiff.
An Order accompanies this Memorandum Opinion.
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Signed this 30th day of March, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge
for
JAMES E. BOASBERG
United States District Judge-Designate
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