UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________ ) ALBERT J. SLINEY, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1425 (PLF) ) FEDERAL BUREAU OF PRISONS, ) ) Defendant. ) _______________________________________)

MEMORANDUM OPINION

This matter is before the Court on defendant’s renewed motion for summary

judgment. The motion will be granted.

I. BACKGROUND

In August 2003, plaintiff submitted a request to the Federal Bureau of Prisons

(“BOP”) under the Freedom of Information Act (“FOIA”),

, for copies of tape

recordings of telephone calls made to a phone number ending in the digits 4419 on July 5 and

July 6, 2003. Compl. at 2. In October 2003, he requested copies of telephone calls made to a

phone number ending in the digits 6157 on May 8, 2003 and June 17, 2003, and to a phone

number ending in the digits 6013 on October 4, 2003.

Plaintiff “was not able to provide . . .

waivers” from the other party or parties to these telephone conversations.

So, in the

alternative, in May 2004 he requested “his portion of the July 5, 2003, July 6, 2003 and October

4, 2003, telephone conversations.”

. Defendant initially assessed a fee of $60.00 to process plaintiff’s request. See

Def.’s Mot. for Summ. J., October 29, 2007 Declaration of Ron Hill (“Hill Decl.”) ¶ 2. Because

the money order was made payable to the BOP instead of to the Treasury of the United States,

the BOP returned the money order to plaintiff on September 20, 2005.

. The BOP

“mailed [the money order] directly to Plaintiff via regular mail[,] . . . [and] there is no way to

track or verify Plaintiff’s receipt of the money order.” Def.’s Reply to Pl.’s Resp. to Def.’s Mot.

for Summ. J., January 28, 2008 Declaration of Ron Hill (“2d Hill Decl.”) ¶ 3. The BOP had “no

record[] indicating [that] Plaintiff ever responded to the September 20, 2005 letter.” Hill Decl.

¶ 4. “[A]fter learning that Plaintiff [was] still interested in the tapes, the BOP decided to provide

[them] without payment.”

On or about October 26, 2007, the BOP mailed plaintiff a tape of

these redacted conversations.

Plaintiff acknowledged receipt of “one (1) cassette tape with three (3) separate

conversations on it which are of the calls requested.” Pl.’s Resp. to Def.’s Mot. for Summ. J.

(“Pl.’s Opp’n”) at 2. After listening to the recording and after his “review of the notes made the

day of those conversations,” however, plaintiff contended “that most of his conversation has been

excluded as well.”

He asserted that the recordings do not reflect “Plaintiff’s complete

conversation to his portion of that request” because the tape omits “every thing Plaintiff repeated

from what was said from the opposite party.” Aff. in Support of Pl.’s Opp’n ¶ 2.

The BOP responded with an explanation of its process for preparing a redacted

recording of a telephone conversation. It explained that:

the review and segregation of the telephone tapes for calls made from the old reel-to-reel telephone monitoring system is a timely and tedious process. After a taped cassette copy of the entire conversation

2 is received from the prison where the call was made, the process requires that each speaker’s voice be identified and then noted by writing down the stop and start points when each person is talking using a numerical counter. Using these start and stop points, the releasable portions are then recorded separately onto a new cassette tape. While the process is not entirely precise, the starting and stopping points are within a fraction of a second of when the person, whose voice we are releasing, speaks. This means that parts of a word may be cut off at the end of a statement by that person or may be missing at the beginning of a statement by that person.

2d Hill Decl. ¶ 2. The declarant “listened to a copy of the tape released to Plaintiff,”

that is, a

tape of the redacted telephone conversations. See Hill Decl. ¶ 4 & Attach. (October 27, 2007

letter). He determined that, “[e]xcept for a few words where both parties were speaking at the

same time, there were no entire portions of Plaintiff’s conversation left out or redacted.” 2d Hill

Decl. ¶ 2. Because the declarant did not state that he prepared the redacted tape for release to

plaintiff or that he had listened to a tape of the entire telephone conversations, see

the basis

for his conclusion that “no entire portions of Plaintiff’s conversation were left out or redacted,”

, was unclear. The Court therefore could not conclude that the defendant had met its

obligations under the FOIA and denied defendant’s motion for summary judgment without

prejudice. Sliney v. Fed. Bureau of Prisons,

(D.D.C. 2008).

The BOP has filed a renewed motion for summary judgment with a third

declaration from Ron Hill which clarifies that the declarant “ha[s] been the only FOIA staff

involved in the processing of these calls.” Def.’s Renewed Mot. for Summ. J. (“Def.’s Renewed

Mot.”), September 11, 2008 Declaration of Ron Hill (“3d Hill Decl.”) ¶ 3. The processing of the

tape recordings “required [him] to listen to the full, non-redacted versions of these calls over and

over again trying to mark the start and stop points of each person[’]s voice.”

Only after

3 noting these start and stop points did the declarant begin “the process of recording only

Plaintiff’s voice onto a new cassette tape.”

He took “[g]reat care . . . to be as precise as

humanly possible by manually pushing the record button at the locations noted where Plaintiff

began talking and pushing the stop button at the locations where Plaintiff stopped talking.” In

addition, the declarant “listened to the file copy of the tape released to Plaintiff and compared it

to the full length originals, along with the notes of the start and stop points.” Id. ¶ 4. Only at

points where both parties were speaking were portions of the conversations omitted or redacted.

Id.

II. DISCUSSION

A. Summary Judgment Standard

The Court grants a motion for summary judgment if the pleadings, the discovery

and disclosure materials on file, together with any affidavits or declarations, show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett,

(1986). “[A] material

fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party” on an element of the claim. Anderson v. Liberty Lobby, Inc.,

(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,

(D.C. Cir. 1992). In opposing a

summary judgment motion, a party may not “replace conclusory allegations of the complaint or

4 answer with conclusory allegations of an affidavit,” Lujan v. Nat’l Wildlife Fed’n,

(1990), but rather must “set forth specific facts showing that there is a genuine issue for

trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.

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 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,

(D.C. Cir. 1981). Such affidavits or declarations 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. & Exch. Comm’n,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency,

(D.C. Cir. 1981)).

B. Redacted Tapes

Defendant again moves for summary judgment on the ground that no genuine

issue of material fact remains as to its full compliance with the FOIA and that it therefore is

entitled to judgment as a matter of law. Def.’s Renewed Mot. at 1. Specifically, because the

BOP has released all reasonably segregable records, that is, a tape of the redacted telephone

conversations, defendant argues that this action should be dismissed as moot.

Plaintiff maintains that the BOP “has in fact FAILED to comply with Plaintiff’s

request,” and that, if it had “timely complied with Plaintiff’s request in the first place[,] this

5 matter would have never been made part of the District Court Civil Docket.” Pl.’s Repeated

Resp. to Def.’s Mot. for Summ. J. [#23] at 2 (capital letters in original). Absent from plaintiff’s

submission is any showing to establish a genuine issue of material fact as to the BOP’s

compliance. His bare assertion that “the truth and facts are not as Defendant’s [sic] have

presented them,” id. at 1, is insufficient.

“[H]owever fitful or delayed the release of information under the FOIA may be,

once all requested records are surrendered, federal courts have no further statutory function to

perform.” Perry v. Block,

(D.C. Cir. 1982). The BOP has demonstrated that

it has released to plaintiff a tape of three redacted telephone conversations at no cost to plaintiff.

It therefore has complied in full with its obligations under the FOIA.

C. Plaintiff’s Demand for Costs

The FOIA permits a district court to “assess against the United States . . . other

litigation costs reasonably incurred in any case . . . in which the [plaintiff] has substantially

prevailed.”

(a)(4)(E)(i). A party substantially prevails if he “has obtained relief

through either . . . a judicial order, or an enforceable written agreement or consent decree[,] or

. . . a voluntary or unilateral change in position by the agency, if the complainant’s claim is not

insubstantial.”

(a)(4)(E)(ii). The latter provision “essentially codifies the so-

called ‘catalyst theory’ for determining a fee request against the United States, under which a

plaintiff is deemed to have ‘substantially prevailed’ for purposes of § 552(a)(4)(E) if the

‘litigation substantially caused the requested records to be released.’” N.Y.C. Apparel F.Z.E. v.

United States Customs and Border Protection Bureau,

(D.D.C. 2008)

6 (quoting Chesapeake Bay Found. v. Dep’t of Agric.,

(D.C. Cir. 1993)); see

Zarcon, Inc. v. Nat’l Labor Relations Bd., No. 06-3161-CV-S-RED,

, at *2

(W.D. Mo. Mar. 25, 2008). “The catalyst theory assumes that a voluntary or unilateral change in

an agency’s position is induced by the complainant’s lawsuit.” Wildlands CPR v. United States

Forest Serv.,

(D. Mont. 2008).

The decision to award attorneys’ fees and costs is left to the Court’s discretion.

See Nationwide Bldg. Maint., Inc. v. Sampson,

(D.C. Cir. 1977)

(commenting that the Section 552(a)(4)(E) “contemplates a reasoned exercise of the courts’

discretion taking into account all relevant factors”). In making this decision, the Court considers

“(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the

nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s

withholding of the requested documents.” Davy v. Central Intelligence Agency,

(D.C. Cir. 2008) (citations omitted). “No one factor is dispositive, although the [C]ourt

will not assess fees when the agency has demonstrated that it had a lawful right to withhold

disclosure.”

Plaintiff demands an award of $535.36 for litigation costs, arguing that the BOP’s

“willful and arbitrary conduct . . . forced [plaintiff] to pursue a civil action in this situation,”

which caused him “to bear significant personal expenses and hardships in litigating this civil

action.” Pl.’s Resp. to Def.’s Mot. for Summ. J. [#14] at 4; see also Aff. in Support of Pl.’s

Resp. to Def.’s Mot. for Summ. J. ¶ 3.1 He maintains that the BOP “could have prevented and

1 Plaintiff demands an award of $535.36 for the court’s filing fee ($350), “[a]ll via- certification transactions by Plaintiff, only to the court” ($57.46), three typewriter ribbons (continued...)

7 resolved this situation through timely correspondence long before civil litigation was necessary

. . . and [it] cannot now contend that Plaintiff is not entitled to be compensated for the expenses

and damages in litigating this unnecessary civil action.” Pl.’s Repeated Resp. to Def.’s Mot. for

Summ. J. at 3. The BOP asserts, without explanation, that plaintiff has not substantially

prevailed, “and thus, his claims for costs are premature.” Def.’s Renewed Mot. at 5-6.

The record reflects that the BOP did not process plaintiff’s FOIA request until

after this suit was filed and only “after learning that [p]laintiff [was] still interested in the tapes.”

Hill Decl. ¶ 4; see 2d Hill Decl. ¶ 3. The BOP’s actions reasonably can be considered “a

voluntary or unilateral change in position by the agency” after a lawsuit was filed.

(a)(4)(E)(ii). An award of costs is warranted, however, only if plaintiff’s claim is

determined not to be “insubstantial.”

(a)(4)(E)(ii).

The Court presumes that plaintiff filed this action in order to force the BOP to

release redacted recordings of his portion of three telephone conversations, and that the

recordings were intended for plaintiff’s personal use only. It does not appear that plaintiff

derives a commercial benefit from the recordings, and it does not appear that the public benefits

in any way from their release. The BOP has shown that its initial refusal to release the taped

conversations was reasonable: it had not received payment in advance for processing plaintiff’s

FOIA request, and regulations authorize it to “collect all applicable fees before sending copies of

requested records.”

(a) (emphasis added). For these reasons, the Court

concludes that plaintiff’s claim is insubstantial. See Judicial Watch, Inc. v. Bureau of Land

1 (...continued) ($50.35), photocopies ($17.55), and “the $60.00 dollars which was never forwarded to Plaintiff by [the BOP].” Pl.’s Resp. to Def.’s Mot. for Summ. J. at 4.

8 Mgmt.,

(D.D.C. 2008) (finding that a not-for-profit organization’s

claim was substantial because it attempted to expose “the precise connection between three high-

ranking elected officials and real estate developer [as such information] surely would aid

individuals in making a most vital political choice” and because its “sole goal in obtaining the

requested records was to investigate potential official misconduct” (internal quotation marks

omitted)); cf. Wildlands CPR v. United States Forest Serv.,

(concluding

that the public interest is served where the requester “brought suit under FOIA to obtain

information from which it could determine whether [the Forest Service] was in compliance with

the environmental policies the Congress has established through the enactment of laws [which it

is] legally obligated to implement and enforce,” and that this factor weighs in favor of awarding

the requester attorneys’ fees and costs). Plaintiff’s demand for an award of costs will be denied.

III. CONCLUSION

The Court concludes that the BOP has demonstrated its compliance with the

FOIA and that it is entitled to judgment as a matter of law. Accordingly, the Court will grant its

renewed motion for summary judgment. An Order consistent with this Memorandum Opinion

will be issued on this same day.

/s/____________________________ PAUL L. FRIEDMAN DATE: June 18, 2009 United States District Judge

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