Hall v. Federal Bureau of Prisons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

___________________________________
)
VIRGIL HALL, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-1082 (RBW)
)
FEDERAL BUREAU OF PRISONS, et al., )
)
Defendants. )
___________________________________ )

MEMORANDUM OPINION

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

the reasons discussed below, the motion will be granted.

I. BACKGROUND

In the United States District Court for the District of Utah, the plaintiff was indicted, tried

and found guilty of one count of possession with intent to distribute cocaine. Complaint

(“Compl.”) at 2. That court imposed a sentence of 120 months’ incarceration, id., and the

plaintiff currently has been designated to serve his sentence at the Federal Correctional

Institution in Loretto, Pennsylvania, id. at 1.

The plaintiff brings this civil action under the Freedom of Information Act (“FOIA”), see

5 U.S.C. § 552, and the Privacy Act, see 5 U.S.C. § 552a. He alleges that the Federal Bureau of

Prisons (“BOP”), the United States Marshals Service (“USMS”) and the Executive Office for

United States Attorneys (“EOUSA”) violated the FOIA by failing to respond to his requests for

copies of his criminal indictment and judgment and commitment order (“J&C”) bearing the

appropriate signatures and court seals. See Compl. at 3-4. Further, he alleges that the defendants

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violated the Privacy Act by making adverse determinations “to hold, try and imprison [him],” id.

at 3, based on an indictment and J&C he deems incomplete, inaccurate or incorrect, see id. at 3-

4. He demands damages of $1,000. Id. at 4.

A. Requests Submitted to the Federal Bureau of Prisons

The plaintiff submitted two requests under the FOIA and the Privacy Act to the BOP.

Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary

Judgment (“Defs.’ Mem.”), Declaration of Donna Johnson (“Johnson Decl.”) ¶ 2. First, the

plaintiff sought “Page[s] 1 and 2 only of the original certified Judgment & return showing

commitment executed by U.S. Marshal or his deputy.” Johnson Decl., Ex. A (Freedom of

Information Act & Privacy Act Request Number (“No.”) 2014-09029 dated February 10, 2014)

at 1. His second request sought the same information. Id., Ex. B (Freedom of Information Act

& Privacy Act Request Number 2014-09030 dated March 18, 2014). Although the plaintiff

claimed that no such document existed, by “asking to correct the records,” id., Ex. A

(Attachment to Request No. 2014-09029) at 3, BOP staff construed the request as one to

“amend[] his judgment and commitment order to bear the signature of a U.S. Marshal’s deputy,”

id. ¶ 2.

The BOP consolidated the plaintiff’s two requests, id. ¶ 4, and denied them based on the

following explanation:

Attached to request 2014-09029 are two handwritten pages that
illuminate this matter. In the fourth paragraph of the first
handwritten page, you state that, “unfortunately, there is no original
executed and return of a Judgment & Commitment by a U.S.
Marshal . . . .” Essentially, you state that the record you have
requested will not be found. In your second handwritten page, you
further allege that a properly “certified” judgment does not exist.

Your filing in 2014-09029 plainly shows that you do not request an
agency record; you merely complain that a record does not exist. To

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 the extent these request[s] can be construed as Privacy Act requests
to amend the judgment and commitment order[], your request is
denied. Your Central File documents are exempt from the Privacy
Act’s amendment, accuracy, notification, and civil remedy
provisions.

Id., Ex. C (Letter to plaintiff from Michael D. Tafelski, Regional Counsel, Northeast Regional

Office, BOP, dated August 22, 2014) at 1.

“Judgment and commitment orders relevant to an inmate are maintained in the BOP’s

Inmate Central Records System.” Id. ¶ 3. The defendants represent that the BOP located and

released a copy of the J&C to the plaintiff with its summary judgment motion. See Defs.’ Mem.

at 6.

B. Request Submitted to the United States Marshals Service

According to the plaintiff, he filed a FOIA/Privacy Act request with the USMS and

received no response. Compl. at 4. However, USMS staff conducted “a search of the FOI/PA

tracking records” using the plaintiff’s name as a search term, and “[n]o records of any requests

from the [p]laintiff were located.” Defs.’ Mem., Declaration of William E. Bordley (“Bordley

Decl.”) ¶ 4.

C. Request Submitted to the Executive Office for United States Attorneys

The plaintiff submitted a request to the United States Attorney’s Office for the District of

Utah for “VIRGIL HALL’S INDICTMENT CASE NO. 2:10-cr-01109-TS AND REQUESTING

THAT THE PERSON WHO SIGNED BE IDENTIFIED AND SHOW HIS AUTHORITY.”

Defs.’ Mem., Declaration of Tricia Francis (“Francis Decl.”), Attachment (“Attach.”) A

(Freedom of Information Act & Privacy Act Request dated April 9, 2014) (emphasis in original).

The request was forwarded to the EOUSA for processing, Francis Decl. ¶ 5, and the matter was

returned to the Utah office “in order to conduct a search of the requested records,” id. ¶ 6.

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 Paul Kohler, the Assistant United States Attorney (“AUSA”) assigned to the plaintiff’s

criminal case, id. ¶ 7, understood the plaintiff’s “request as seeking the original Indictment in

part because he had already filed a habeas corpus petition . . . in which he complained that the

court lacked jurisdiction because the Indictment . . . did not have the foreperson’s signature and

the AUSA’s signature was illegible,” Defs.’ Mem., Declaration of Paul Kohler (“Kohler Decl.”)

¶ 4. AUSA Kohler located a copy of the original indictment bearing the grand jury foreperson’s

signature, Kohler Decl. ¶ 6, and provided a copy to the EOUSA, id. ¶ 7. 1 EOUSA staff withheld

the foreperson’s signature pursuant to FOIA Exemption 7(C) and sent the redacted document to

the plaintiff. Francis Decl. ¶ 9; see id., Attach. F (Letter to the plaintiff from Susan B. Gerson,

Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated October 22, 2014)

II. DISCUSSION

A. The Plaintiff’s FOIA Claims

1. Summary Judgment Standard

“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) (citation

omitted). Courts will grant summary judgment to an agency as the movant if it shows that there

is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). More specifically, in a FOIA action to compel production of

agency records, the agency “is entitled to summary judgment if no material facts are in dispute

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AUSA Kohler initially believed that “the original Indictment was stored only with the United States District Court
(not the United States Attorney’s Office),” leading initially to the issuance of a “no records” response to the
plaintiff. Kohler Decl. ¶ 5. He later “learned that [the United States Attorney’s Office for the District of Utah had]
a copy of the original Indictment . . . signed by the foreperson[.]” Id. ¶ 6.

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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. CIA,

607 F.2d 339, 352 (D.C. Cir. 1978)).

Summary judgment in a FOIA case may be based solely on information provided in an

agency’s supporting affidavits or declarations if they are “relatively detailed and non-

conclusory,” Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal

quotations and citations omitted), and when they “[d]escribe 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). “To successfully challenge an agency’s showing that it

complied with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that

there is a genuine issue with respect to whether the agency has improperly withheld extant

agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting DOJ v. Tax

Analysts, 492 U.S. 136, 142 (1989)).

2. The Defendants Conducted Reasonable Searches for Responsive Records

“The adequacy of an agency’s search is measured by a standard of reasonableness and is

dependent upon the circumstances of the case.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.

Cir. 1983) (internal quotation marks and citations omitted). 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.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641

F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks and citations omitted). A search need

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not be exhaustive, see Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1995), as long

as the agency conducts “a search reasonably calculated to uncover all relevant documents,”

Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010). And a search is not legally

inadequate merely because it yields no responsive records. See Iturralde v. Comptroller of the

Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (stating that “the failure of an agency to turn up

one specific document in its search does not alone render a search inadequate”).

To meet its burden, 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, 127 (D.C.

Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to

demonstrate an agency’s compliance with the FOIA. Id. If the record “leaves substantial doubt

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

Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also Valencia-Lucena v. U.S.

Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).

Neither the BOP’s nor the EOUSA’s declarant explains the method by which he or she

searched for the records the plaintiff requested. 2 However, the defendants demonstrate, and the

plaintiff does not dispute, that a copy of his indictment and J&C have been located and released

to the plaintiff. The plaintiff instead challenges the supporting declarations themselves and the

contents of the records released to him.

2
According to the plaintiff, he did not ask the BOP to amend the J&C. See Pl.’s Opp’n at 3. Rather, in an inmate
grievance, the plaintiff asked the BOP to verify information in its records by forwarding the J&C to the USMS. See
id., Ex. Six (Central Office Administrative Remedy Appeal dated April 22, 2014). The BOP allegedly failed to do
so, and its inaction explains why the USMS had no record of a FOIA/PA request from the plaintiff. See id. at 3.
The plaintiff thus concedes that he did not submit a FOIA request to the USMS, and for this reason, summary
judgment will be granted to the USMS.

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 The plaintiff notes that none of the declarants is responsible for maintaining custody of

the original records he requested. See Plaintiff [O]pposes/[R]epl[ies] to the Gov[ernment’s]

Motion [f]or Summary Judgment and [A]sk[s] to [S]trike [A]ll [I]nsufficient [D]efenses (“Pl.’s

Opp’n”) at 2-3. In a FOIA case, an individual with knowledge of the handling of the plaintiff’s

request is a qualified declarant. See SafeCard, 926 F.2d at 1202 (ruling that employee “in charge

of coordinating the [agency’s] search and recovery efforts [is] most appropriate person to

provide a comprehensive affidavit”); Holt v. DOJ, 734 F. Supp. 2d 28, 38 (D.D.C. 2010)

(accepting agency’s declarations where “each declarant has stated his or her familiarity with the

component’s procedures for handling FOIA and Privacy Act requests, and each declaration is

based on the declarant’s review of the component’s official files”). Here, each declarant attests

to his or her familiarity with the FOIA generally, the plaintiff’s FOIA requests specifically (or in

the case of the USMS, the allegations of his complaint), and each entity’s response to the

plaintiff’s requests. See Johnson Decl. ¶¶ 1-2; Bordley Decl. ¶¶ 1-2; Francis Decl. ¶¶ 1-2;

Kohler Decl.¶¶ 2-4. Agency declarations generally are entitled to a presumption of good faith,

see, e.g., Ground Saucer Watch v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), and the plaintiff fails

to rebut the presumption.

Next, the plaintiff appears to argue that the defendants violated the FOIA by failing to

identify the person who signed the indictment on behalf of the United States Attorney for the

District of Utah, failing to verify that the person was authorized to do so, and by failing to

produce a J&C bearing the court’s seal, the clerk’s signature, and execution by a United States

Marshal. Compl. at 3-4. However, an agency is not obligated under the FOIA to provide

answers to a requester’s questions. See, e.g., Jean-Pierre v. Bureau of Prisons, 880 F. Supp. 2d

95, 103-04 (D.D.C. 2012) (concluding that request for objective pieces of information, such as

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“who gave the order” and “on what day,” are not “cognizable under FOIA, because they ask

questions calling for specific pieces of information rather than records”); Adams v. FBI, 572 F.

Supp. 2d 65, 66-68 (D.D.C. 2008) (finding that agency has no obligation under FOIA to answer

question as to whether particular FBI laboratory technician was involved in the examination of

DNA evidence in the requester’s case); Francis v. FBI, No. 06-0968, 2008 WL 1767032, at *5-6

(E.D. Cal. Apr. 16, 2008) (magistrate’s recommendation) (finding that requester who asked

agency to identify person in photograph did not submit proper FOIA request). Nor must an

agency offer explanations of responsive records, see NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 162 (1975) (holding that “insofar as the order of the court below requires the agency to

create explanatory material, it is baseless”), and an agency’s response need not comport with

criminal statutes, rules or procedures, see, e.g., Marshall v. FBI, 802 F. Supp. 2d 125, 136

(D.D.C. 2011) (discussing differences between agency obligations under the FOIA and

government’s obligations in criminal proceedings). Here, the defendants responded to the

plaintiff’s FOIA requests by producing copies of the two documents he requested, and they were

under no obligation to explain or verify the content of the documents. Based on the defendants’

supporting declarations, the Court concludes that the searches for records responsive to the

plaintiff’s FOIA requests were reasonable.

3. FOIA Exemption 7(C)

Exemption 7 protects from disclosure “records or information compiled for law

enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm.

5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show that . . .

documents were compiled for law enforcement purposes, the [agency] need only establish a

rational nexus between [an] investigation and one of the agency’s law enforcement duties and a

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connection between an individual or incident and a possible security risk or violation of federal

law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations

omitted). Although the supporting declarations submitted by the defendants barely mention a

law enforcement purpose, it is apparent from the plain language of the plaintiff’s FOIA requests

that responsive records – a criminal indictment and J&C – were compiled for law enforcement

purposes and thus fall within the scope of Exemption 7.

FOIA Exemption 7(C) protects from disclosure information in law enforcement records

that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,

the Court must balance the privacy interests of individuals mentioned in the records against the

public interest in disclosure. See ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The EOUSA

relies on FOIA Exemption 7(C) to withhold the Grand Jury foreperson’s signature. Francis Decl.

¶ 9; Kohler Decl. ¶ 7. “This was done to protect the identity of this individual whose, signature

was placed on the indictment for law enforcement purposes, while fulfilling the role of

foreperson on the Grand Jury that returned an indictment against [the plaintiff] in his underlying

criminal case.” Francis Decl. ¶ 9. In response to this explanation, the plaintiff explains that he

“never seeked [sic] any information on the grand jury foreperson,” Pl.’s Opp’n at 3, and does not

object to the EOUSA’s decision to withhold the foreperson’s signature. On review of the

EOUSA’s supporting declarations and a redacted copy of the indictment, the Court concludes

that the EOUSA properly has withheld the foreperson’s identity under FOIA Exemption 7(C).

See, e.g., Smith v. Exec. Office for U.S. Attorneys, 69 F. Supp. 3d 228, 240-41 (D.D.C. 2014)

(approving the withholding of the signatures of task force officer, a DEA special agent and a

DEA staff member).

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 C. The Plaintiff’s Privacy Act Claims

The Privacy Act requires federal government agencies to “maintain all records which

[they use] in making any determination about any individual with such accuracy, relevance,

timeliness, and completeness as is reasonably necessary to assure fairness to the individual in [an

agency] determination.” 5 U.S.C. § 552a(e)(5). An individual may “gain access to his record,”

id. § 552a(d)(1), and “request amendment of a record pertaining to him,” id. § 552a(d)(2), and

the agency shall “promptly[] either . . . make any correction of any portion thereof which [he]

believes is not accurate, relevant, timely, or complete; or . . . inform the individual of its refusal

to amend the record” as requested, id. § 552a(d)(2)(B); see Doe v. FBI, 936 F.2d 1346, 1350

(D.C. Cir. 1991) (stating that the Privacy Act “grants individuals the right to obtain access to

agency records pertaining to them, and to request amendment of any records they believe to be

inaccurate, irrelevant, untimely, or incomplete”). An individual may bring a civil action against

an agency in a federal district court if the agency refuses “to amend [the] individual’s record in

accordance with his request,” id. § 552a(g)(1)(A), or if the agency

fails to maintain any record concerning any individual with such
accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to the individual
that may be made on the basis of such record, and consequently a
determination is made which is adverse to the individual[,]

id. § 552a(g)(1)(C). If the Court finds that “the agency acted in a manner which was intentional

or willful, the United States shall be liable to the individual” for actual damages and the costs of

the action. Id. § 552(g)(4).

Notwithstanding the protections ostensibly afforded under the Privacy Act, an agency

head may promulgate regulations to exempt certain systems of records if the system of records is

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 maintained by an agency or component thereof which performs as
its principal function any activity pertaining to the enforcement of
criminal laws, including police efforts to prevent, control, or reduce
crime or to apprehend criminals, and the activities of prosecutors,
courts, correctional, probation, pardon, or parole authorities, and
which consists of . . . reports identifiable to an individual compiled
at any stage of the process of enforcement of the criminal laws from
arrest or indictment through release from supervision.

5 U.S.C. § 552a(j)(2)(C). Pursuant to this authority, the BOP regulations have exempted the

Inmate Central Records System from the amendment, accuracy, and civil remedy provisions of

the Privacy Act. See 28 C.F.R. § 16.97(a)(4), (k).

“[J&C] orders relevant to an inmate are maintained in the BOP’s Inmate Central Records

System,” and the BOP’s declarant asserts that these “records are exempt from the amendment,

accuracy, notification, and civil remedy provisions of the Privacy Act.” Johnson Decl. ¶ 3. The

Court concurs. The plaintiff’s Inmate Central File, including his J&C, is maintained in a system

of records that is exempt from the amendment, accuracy, and civil remedy provisions of the

Privacy Act. See, e.g., Lane v. Fed. Bureau of Prisons, No. 08-1269, 2009 WL 1636422, at *1

(D.D.C. June 9, 2009), aff’d per curiam, No. 09-5228, 2010 WL 288816 (D.C. Cir. Jan. 7, 2010),

cert. denied, 562 U.S. 863 (2010). And “[h]aving exempted its records from the substantive

provision regarding the agency’s recordkeeping obligations, [the] BOP effectively deprives

litigants of a remedy for any harm caused by the agency’s substandard recordkeeping.” Ramirez

v. DOJ, 594 F. Supp. 2d 58, 65 (D.D.C. 2009), recons. denied, 680 F. Supp. 2d 208 (D.D.C.

2010), aff’d per curiam, No. 10-5016, 2010 WL 4340408 (D.C. Cir. Oct. 19, 2010) (per curiam);

see Jennings v. Fed. Bureau of Prisons, 657 F. Supp. 2d 65, 72 (D.D.C. 2009). The plaintiff’s

Privacy Act claim for amendment of any information in the Inmate Central File, see Skinner v.

DOJ, 584 F.3d 1093, 1098 (D.C. Cir. 2009), his challenge to the accuracy of the relevant

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records, see Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam), and

his demand for damages, see Fisher v. Bureau of Prisons, No. 05-0851, 2006 WL 401819, at *2

(D.D.C. Feb. 21, 2006), therefore fail.

III. CONCLUSION

The defendants have demonstrated their compliance with the FOIA and the plaintiff’s

failure to show that he is entitled to either amendment of his records maintained in the Inmate

Central Records System or damages under the Privacy Act. Accordingly, their motion for

summary judgment will be granted. An Order is issued separately.

DATE: September 25, 2015 /s/
REGGIE B. WALTON
United States District Judge

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