UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) LEIGH J. QUINTO, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2068 (ESH) ) UNITED STATES DEPARTMENT OF ) JUSTICE, ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION

Plaintiff Leigh Quinto is an inmate at the Federal Bureau of Prisons’ (“BOPs’”) United

States Penitentiary in Pollock, Louisiana. (Compl. ¶ 3.) He has filed a complaint against the

United States Department of Justice (“DOJ”), alleging violation of the Administrative Procedure

Act (“APA”), including the Freedom of Information Act (“FOIA”),

. Before

the Court are defendant’s motion for summary judgment and plaintiff’s cross-motion for

summary judgment. Based on its in camera review of the documents at issue and for the reasons

set forth herein, the Court will grant defendant’s motion and deny plaintiff’s motion.

BACKGROUND

Plaintiff was found guilty of distribution of cocaine in violation of

(a)(1)

and was sentenced to a 240-month sentence in 2007. (Pl.’s Statement of Material Facts As To

Which There Are No Genuine Issues [“Pl.’s SMF”] ¶ 2.) Plaintiff was initially classified by the

BOP as a “medium security inmate” and designated to Edgefield FCI, a medium security BOP

facility. (Id. ¶ 3; see also Def.’s Resp. to Pl.’s Statement of Material Facts As To Which There

Are No Genuine Issues [“Def.’s SMF Resp.”] at 1 n.1.) After arriving at Edgefield, plaintiff

1 was told that his security classification had been repealed and that he had been re-classified as a

“high security inmate.” (Pl.’s SMF ¶ 3.) Plaintiff was subsequently designated to USP Pollock,

a high security facility. (Id.)

In August 2008, plaintiff filed an informal resolution with USP Pollock officials,

inquiring as to the reason for his reclassification as high security and requesting that his security

management level score be lowered based on his detainer status and age. (Id. ¶ 4.) Plaintiff’s

request was denied, and plaintiff was informed that his re-designation as a high security inmate

was based on information received from the United States Attorney’s Office, Southern District of

Florida. (Pl.’s SMF, Attach. 1 at 2.) Plaintiff was also informed that the AUSA who had

provided this information continued to believe that higher security was required for plaintiff, and

that plaintiff’s Unit Team at Pollock concurred. (Id.) As such, plaintiff was told that the

Management Variable (“MV”) of Greater Security previously applied to him would be extended,

and that he would remain at a high security level. (Id.)

On September 24, 2008, plaintiff filed a FOIA request with the BOP’s Central Office,

seeking “any information received by officials at USP Pollock from the United States Attorney’s

Office, Southern District of Florida, indicating a need for [plaintiff’s] higher security

designation.” (Decl. of Larry Collins [“Collins Decl.”], Attach. 1.) On October 14, 2008, Larry

Collins, a BOP Paralegal Specialist at the South Central Regional Office (SCRO) conducted a

search for records responsive to plaintiff’s request and asked the staff at USP Pollock to do the

same. (Id. ¶ 5.) The staff at Pollock responded to the request and provided the SCRO with five

pages of responsive documents. (Id.)

On October 17, 2008, the regional counsel for the SCRO responded to plaintiff’s FOIA

request, indicating that information received by the BOP from other law enforcement agencies

2 regarding inmate security concerns is exempt from release pursuant to FOIA § 552(b)(2) and

(b)(7)(F). (Id., Attach. 2; Pl.’s SMF ¶ 8.) The letter neither confirmed nor denied that

documents responsive to plaintiff’s request had been located. (Collins Decl., Attach. 2) Plaintiff

appealed the BOP’s response to the Office of Information Policy (“OIP”), which upheld the

BOP’s “Glomar” response to plaintiff’s FOIA request in a letter dated September 24, 2009. (Id.,

Attach. 3.) The OIP further stated that if records responsive to plaintiff’s request did exist, they

would be protected from disclosure under FOIA Exemptions 2 and 7(F). (Id.)

Plaintiff filed the instant lawsuit on November 3, 2009, challenging the BOP’s

interpretation of the FOIA exemptions as arbitrary and capricious and arguing that neither

Exemption 2 nor 7(F) protects the information he seeks. (Compl. ¶¶ 11-16.) Defendant filed a

motion for summary judgment, arguing that the five pages of documents responsive to plaintiff’s

request are exempt from disclosure under FOIA Exemptions 7(C) and 7(F). 1 (Def.’s Mem. of P.

& A. In Supp. of its Mot. for Summ. J. [“Def.’s Mot.”] at 2.) DOJ includes with its motion a

Vaughn index identifying the documents withheld and explaining why disclosure would harm the

interests protected by the claimed FOIA exemptions. (Id.); see also Vaughn v. Rosen,

(D.C. Cir. 1973). Defendant has also submitted the five documents at issue for the Court’s

in camera review. Plaintiff argues that there is a public interest in these documents and that DOJ

has failed to demonstrate that it is unable to segregate any exempt portions of the documents

from non-exempt portions. (Pl.’s Mot. for Summ. J. [“Pl.’s Opp’n”] at 4-7.)

1 Defendant no longer invokes FOIA Exemption 2 to protect the information sought by plaintiff. (Collins Decl. at 4 n. 3.) 3 ANALYSIS

I. LEGAL STANDARD

FOIA reflects a “general philosophy of full agency disclosure unless information is

exempted under clearly delineated statutory language.” Dep’t of the Air Force v. Rose,

(1976) (quoting S. Rep. No. 89-813, at 3 (1965)). Thus, federal agencies must make

their records promptly available to any person who makes a proper request for them unless the

agency establishes that the information is appropriately withheld under one or more of the nine

exemptions set forth in the statute. See

(a)-(b). The nine exemptions are

exclusive and should be narrowly construed. Rose,

. When a challenge is made

to an agency’s decision to withhold information, the “burden is on the agency to sustain its

action,” and the district court is instructed to “determine the matter de novo.”

(a)(4)(B). Even if some of the requested records contain exempt information, “the agency

must still release ‘any reasonably segregable portion’ after deletion of the nondisclosable

portions.” Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1996) (quoting

(b)).

“At the same time, of course, it must be recognized that FOIA represents a carefully

considered balance between the right of the public to know what their government is up to and

the often compelling interest that the government has in keeping certain information private,

whether to protect particular individuals or the national interest as a whole.” Am. Civil Liberties

Union v. FBI,

(D.D.C. 2006). “As such, the exemptions must be

given ‘meaningful reach and application,’”

at 187 (quoting John Doe Agency v. John Doe

Corp.,

(1989)), as they “represent[] the congressional determination of the

4 types of information that the Executive Branch must have the option to keep confidential, if it so

chooses.” Rose,

.

“FOIA cases appropriately may be decided on motions for summary judgment.”

Bigwood v. U.S. Agency for Int’l Dev.,

(D.D.C. 2007). In deciding

whether information has been properly withheld under FOIA exemptions, the Court may rely on

affidavits or declarations from the agency. See SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991). Alternatively or in addition to such affidavits, the reviewing court “may

examine the contents of such agency records in camera to determine whether such records or any

part thereof shall be withheld under any of the exemptions.”

(a)(4)(B). But

“whether the Court relies on affidavits or declarations, an in camera review of the documents, or

. . . both, an agency must demonstrate that ‘each document that falls within the class requested

either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s

inspection requirements.’” Bigwood,

(second alteration in original)

(quoting Goland v. CIA,

(D.C. Cir. 1978)).

II. EXEMPTION 7

“In assessing whether records are compiled for law enforcement purposes [under

Exemption 7], this circuit has long emphasized that the focus is on how and under what

circumstances the requested files were compiled . . . and ‘whether the files sought relate to

anything that can fairly be characterized as an enforcement proceeding.’” Jefferson v. U.S. Dep’t

of Justice,

(D.C. Cir. 2002) (quoting Aspin v. Dep’t of Defense,

(D.C. Cir. 1973)) (internal citation omitted). The D.C. Circuit set forth “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

5 is a rational nexus between the investigation at issue and the agency’s law enforcement duties.”

at 177 (quoting Pratt v. Webster,

(D.C. Cir. 1982)).

The records at issue here—communications to the BOP from the U.S. Attorney’s office

regarding an inmate’s placement within the network of institutions under BOP control—are

clearly related to the enforcement of federal laws. See, e.g., Butler v. Fed. Bureau of Prisons,

No. 05-643,

, at * 3 (D.D.C. Sept. 27, 2005) (“The BOP is a law enforcement

agency [with] the law enforcement function of protecting inmates, staff, and the community.”)

There is a direct relationship between the BOP’s duty to ensure the safety of inmates, staff, and

the community and its professional decisions as to where and how to house inmates.

(Supplemental Decl. of Larry Collins In Resp. to Pl.’s Mot. for Summ. J. [“Second Collins

Decl.”] ¶ 9 (BOP staff charged with using “professional judgment . . . to ensure [an] inmate’s

placement in the most appropriate level institution.”).) The documents plaintiff seeks, which

include information from other law enforcement agencies not reflected in plaintiff’s presentence

report, were central to the BOP’s attempt to “ensure [plaintiff]’s placement in the most

appropriate level institution.” (Id.) As such, the Court concludes the documents at issue were

“compiled for law enforcement purposes” pursuant to Exemption 7.

A. Exemption 7(C)

Exemption 7(C) provides protection for “records or information compiled for law

enforcement purposes but only to the extent that the production of such law enforcement records

or information . . . could reasonably be expected to constitute an unwarranted invasion of

personal privacy.”

(b)(7)(C). “Before a court decides whether information falls

within Exemption 7(C), it must first identify both the privacy interests that are at stake and the

public interest in disclosure.” Computer Professionals for Social Responsibility v. U.S. Secret

6 Serv.,

(D.C. Cir. 1996). Then, “the court must balance the privacy interests

involved against the public interest in disclosure.” Safecard Servs., Inc.,

.

“Exemption 7(C) takes particular note of the strong interest of individuals, whether they be

suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal

activity.” Dunkelberger v. U.S. Dep’t of Justice,

(D.C. Cir. 1990) (internal

quotation marks omitted). “That interest extends to ‘persons who are not the subjects of the

investigation [but who] may nonetheless have their privacy invaded by having their identities

and information about them revealed in connection with the investigation.’” Computer

Professionals,

(quoting Burge v. Eastburn,

(5th Cir. 1991)).

Defendant has invoked Exemption 7(C) because if released, documents responsive to

plaintiff’s request would identify individuals other than plaintiff. (Def.’s Mot. at 9.) Based on

its review of the documents, the Court agrees that the individuals named or otherwise identified

in the documents have a substantial interest in maintaining their anonymity. Moreover, the Court

discerns no public interest in the release of these documents to plaintiff. Plaintiff suggests that

release of these documents serves the public’s “strong interest in how the USDOJ . . . uses

Management Variables (MGTV) to place inmates at a security level inconsistent with the

inmates scored security level” 2 (Pl.’s Mot. at 5), but this argument is unavailing. The process by

which the BOP calculates an inmate’s security level, including the use of MVs, is publicly

2 Plaintiff also states that he made his FOIA request because he “need[s] to know the substantive information received” from the AUSA office in order to “submit[] a formal request for administrative remedy to address the issue of his security level assignment though the BOP’s administrative remedy program.” (Pl.’s SMF ¶ 6). However, plaintiff’s personal interest in these documents does not constitute public interest under Exemption 7(C). See, e.g., Engelking v. Drug Enforcement Admin.,

(D.C. Cir. 1997) (“[A] requester’s personal need for information is immaterial to whether that information is protected from disclosure by one of the exemptions to the FOIA.”); see also Horowitz v. Peace Corps,

(D.C. Cir. 2005) (“Plaintiff’s need to obtain the information for a pending civil suit is irrelevant, as the public interest to be weighed has nothing to do with [plaintiff’s] personal situation.”). 7 available. See generally BOP Program Statement 5100.08, Inmate Security Designation and

Custody Classification, ch. 5; see

at ch. 5 at 5 (explaining that “[i]n circumstances where an

inmate represents a greater security risk (i.e., pending charges, detainer, escape risk, etc.) than

their assigned security level, they may be placed in an institution outside normal guidelines”).

To the extent that plaintiff argues that the documents he seeks may reveal that the BOP has

improperly calculated his own MV, plaintiff’s “bare suspicion” that the BOP has acted

improperly in the performance of its duties is insufficient to overcome the privacy interests in

these documents. Nat’l Archives and Records Admin. v. Favish,

(2004).

Plaintiff has failed to “produce evidence that would warrant a belief by a reasonable person that

the alleged Government impropriety might have occurred.” Id.; see also United States v.

Armstrong,

(1996) (“[I]n the absence of clear evidence to the contrary, courts

presume that [government agents] have properly discharged their official duties.”). As such, the

Court sustains the Agency’s claim to Exemption 7(C) regarding names and other identifying

information in the documents.

B. Exemption 7(F)

Exemption 7(F) protects law enforcement information that “could reasonably be expected

to endanger the life or physical safety of any individual.”

(b)(7)(F). This

exemption “affords broad protection to the identities of individuals mentioned in law

enforcement files,” Jimenez v. FBI,

(D.D.C. 1996), including any individual

“reasonably at risk of harm.” Miller v. U.S. Dep’t of Justice,

(D.D.C.

2008) (quoting Long v. U.S. Dep’t of Justice,

(D.D.C. 2006)). Courts

reviewing assertions of Exemption 7(F) “may inquire ‘whether there is some nexus between

disclosure and possible harm,’”

(quoting Linn v. United States Dep’t of Justice, No. 92-1406,

8

, at *8 (D.D.C. Aug. 22, 1995)), and defer, within limits, “to the agency’s

assessment of danger.”

The Court agrees with the DOJ that release of the documents sought by plaintiff could

result in the identification of third parties, including the source(s) of the information in the

documents and could lead to retaliation against those individuals. (See Def.’s Mot. at 13.) And

based on its review of the documents, the Court concludes that there is a sufficient nexus

between their disclosure and possible harm to these third parties. As such, the Court sustains

defendant’s Exemption 7(F) claim.

C. Segregability

Having found that defendant has properly asserted Exemptions 7(C) and 7(F), the Court

must consider whether the documents contain non-exempt portions that can be provided to

plaintiff.

(b) (“Any reasonably segregable portion of a record shall be provided to

any person requesting such record[.]”); see also Mead Data Cent., Inc. v. United States Dep't of

the Air Force,

(D.C. Cir. 1977) (“non-exempt portions of a document must be

disclosed unless they are inextricably intertwined with exempt portions”). Having reviewed the

documents in camera, the Court is satisfied that no non-exempt portions of the records are

reasonably segregable. Although there are a few words and phrases that may be non-exempt,

they are inextricably intertwined with exempt information and would be, standing alone,

meaningless.

9 CONCLUSION

For the reasons set forth above, the Court shall GRANT defendant’s motion for summary

judgment and DENY plaintiff’s cross-motion for summary judgment. A separate Order

accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge

DATE: May 11, 2010

10