UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL S. EVANS, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-2274 (BAH) ) FEDERAL BUREAU OF PRISONS, ) ) Defendant. )

MEMORANDUM OPINION

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

, against the Federal Bureau of Prisons (“BOP”), a component of the United States

Department of Justice (“DOJ”). BOP has now moved for summary judgment, Def.’s Mot.

Summ. J., ECF No. 16, which motion is granted, for the reasons discussed below.

I. BACKGROUND

The plaintiff is a federal prisoner who, while incarcerated at the Gilmer Federal

Correctional Institution in Glenville, West Virginia (“FCI Gilmer”), “was involved in a fight in

the prison dining room[.]” Def.’s Mem. of P. & A. in Support of Def.’s Mot. for Summ. J.

(“Def.’s Mem.”), at 1, ECF No. 16-1. The plaintiff claims to have been “brutally attacked, and

stabbed, by surprise” with a Phillips-head screwdriver by another inmate. Pl.’s Opp’n to Def.’s

Mot. for Summ. J. (“Pl.’s Opp’n”), filed with Pl.’s Aff. & Reply to Def.’s Mot. for Summ. J. by

Pl. Michael S. Evans (“Pl.’s Decl.”) ¶ 2, ECF No. 19. In contrast, BOP staff consider the

incident “a fight between [the plaintiff] and his attacker,” Pl.’s Decl. ¶ 4, for which the plaintiff

was sanctioned, see

.

Subsequently, the plaintiff “pursued civil actions and suits under the Federal Tort Claims

Act and Bivens –

against the BOP based upon its officers[’] delayed response

1 and intervention i. . . , and their failure to properly secure the tool used to stab [him].” Pl.’s

Decl. ¶ 6. These efforts proved unsuccessful – the suits “were ultimately dismissed based on the

BOP’s disclaiming ownership of the tool used in [the] attack and stabbing.”

.

“In order for [the plaintiff] to effectively address [his] legal issue[s],” Compl., Ex. A at 1, in

February 2016, the plaintiff submitted a request to the BOP for the following information:

• Names, numbers, and addresses to all companies that shipped and/or delivered tools, recreation equipment, maintenance equipment, and machines to [FCI Gilmer] from January 2003, to June 2013. • . . . Receiving and Departure Logs for all tools, recreation equipment, maintenance equipment, and machines shipped and/or delivered to [FCI Gilmer] from January 2003, to, June 2013. • Names and pictures of all tools, recreation equipment, maintenance equipment, and machines shipped and/or delivered to [FCI Gilmer] from January 2003, to, June 2013. • A copy of the video footage of the May 02, 2013 incident of Michael Evans being ass[a]ulted in the inmate din[]ing area at [FCI Gilmer].

Ex. A at 1-2. BOP staff estimated that the cost of its response to the request would be

$14,320.00. See generally Def.’s Mem., Decl. of Sharon Wahl (“Wahl Decl.”), Ex. 2. The

plaintiff was offered an opportunity to pay the estimated cost in full, or to reformulate his request

“to meet [his] needs at a lower cost.” Wahl Decl., Ex. 2 at 1. Opting for the latter, the plaintiff

modified his request as follows:

I want to be provided with a copy of the video footage of the May 02, 2013 incident of Michael Evans being assaulted in the inmate dinning [sic] area at F.C.I. Gilmer.

I enclosed a picture of a Phillips head screwdriver, the screwdriver may have been a[] maintenance accessory tool that came with recreaction [sic], or maintenance equipment. I would like the name of the company that made the tool, along with the phone number and mailing address of that company. I would like to know

2 what is the tool used for and what equipment it came with, and when that equipment was delivered to F.C.I. Gilmer[.]

Wahl Decl., Ex. 3.

BOP staff located one video recording responsive to the plaintiff’s request. See

.

By letter, dated April 19, 2016, the BOP notified the plaintiff: (1) it withheld the video in full

under FOIA Exemptions 2, 7(C), 7(E), and 7(F); (2) it was not required to respond to the

plaintiff’s inquiries or to create records in response to a FOIA request; and (3) staff at FCI

Gilmore could not determine “where the tool originated from.”

Ex. 4 at 1.

The plaintiff pursued an administrative appeal to DOJ’s Office of Information Policy

(“OIP”). Compl. at 3. OIP denied the appeal “on partly modified grounds,” that is, under FOIA

Exemptions 7(C), 7(E), and 7(F). Wahl Decl. ¶ 15; see

Ex. 6 at 1. OIP also explained “that

[the] BOP does not have the capability to segregate images potentially responsive to [the

plaintiff’s] request from the images of third parties on video recordings.”

Ex. 6 at 2. Lastly,

OIP notified the plaintiff that the BOP need not have answered “specific questions . . . regarding

the screwdriver” because the FOIA does not require an agency to answer questions, create

records, or conduct research in response to a FOIA request.

Ex. 6 at 2. According to the

plaintiff, the BOP “has improperly withheld agency records.” Compl. at 3.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if

the movant shows that 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). “In FOIA cases, ‘summary

judgment may be granted on the basis of agency affidavits if they contain reasonable specificity

of detail rather than merely conclusory statements, and if they are not called into question by

contradictory evidence in the record or by evidence of agency bad faith.’” Judicial Watch, Inc.

3 v. U.S. Secret Serv.,

(D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. U.S.

Dep’t of Agric.,

(D.C. Cir. 2006)). Indeed, the D.C. Circuit has observed that

“the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of

the U.S. Trade Representative,

(D.C. Cir. 2011).

“The Court applies a reasonableness test to determine the adequacy of search

methodology . . . consistent with the congressional intent tilting in favor of disclosure.”

Campbell v. U.S. Dep’t of Justice,

(D.C. Cir. 1998) (citations and internal

quotation marks omitted). Upon receiving a FOIA request, federal agencies are “required to

perform more than a perfunctory search” to identify potential responsive records. Ancient Coin

Collectors Guild v. U.S. Dep’t of State,

(D.C. Cir. 2011). Rather, as the D.C.

Circuit succinctly summarizes, “[t]o prevail on summary judgment, an ‘agency must show that it

made a good faith effort to conduct a search for the requested records, using methods which can

be reasonably expected to produce the information requested,’ which it can do by submitting ‘[a]

reasonably detailed affidavit, setting forth the search terms and the type of search performed, and

averring that all files likely to contain responsive materials (if such records exist) were

searched.’” Reporters Comm. for Freedom of the Press v. FBI,

(D.C. Cir.

2017) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d at 57, 68 (D.C. Cir. 1990)

(alterations in original)). The agency fails to meet this burden such that summary judgment is

inappropriate when the agency fails to set forth the search terms and the type of search

performed with specificity or otherwise provides ‘“no information about the search strategies of

the [agency] components charged with responding to [a] FOIA request’ providing and no

‘indication of what each [component’s] search specifically yielded.’” Id. at 403 (quoting Morley

v. CIA,

(D.C. Cir. 2007) (alterations in original)); see also Truitt v. Dep’t of

4 State,

(D.C. Cir. 1990)( “If . . . the record leaves substantial doubt as to the

sufficiency of the search, summary judgment for the agency is not proper.”).

In addition to demonstrating the adequacy of the search, the agency must “demonstrate

that the records have not been improperly withheld.” Ctr. for the Study of Servs. v. U.S. Dep’t of

Health & Human Servs.,

(D.C. Cir. 2017) (citation and internal quotation

marks omitted). An agency may carry its burden of showing an exemption was properly invoked

by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld

documents, or both, to demonstrate that the government has analyzed carefully any material

withheld and provided sufficient information as to the applicability of an exemption to enable the

adversary system to operate. See, e.g., Judicial Watch,

(“In FOIA cases,

‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable

specificity of detail rather than merely conclusory statements, and if they are not called into

question by contradictory evidence in the record or by evidence of agency bad faith.’” (alteration

adopted) (quoting Consumer Fed’n of Am.,

)).

III. DISCUSSION

The plaintiff challenges both the sufficiency of the BOP’s search for responsive records

and BOP’s explanations for the withholding of records. Each of these challenges are addressed

seriatim.

A. Adequacy of the BOP’s Search

The plaintiff deems the BOP’s search inadequate because the agency did not “search its

tool and equipment inventories, which is required by its policy regulations for all tools and

equipment entering into the institution.” Pl.’s Decl. ¶ 16 p. 4. “Neither [his] initial, nor [his]

reformulated[] request [seeks] the Defendant’s answer to any questions, the Defendant’s creation

5 of records, or the Defendant’s explanation or verification of the content of the records or

information sought.”

¶ 16 p. 3. Thus, the plaintiff contends, the BOP erred in construing his

reformulated request “as asking it to answer questions or create records.

¶ 16 p. 4; see id. ¶

13.

The plaintiff’s reformulated request indeed calls for responses to inquiries: the plaintiff

supplied a copy of a screwdriver, and expected the BOP to identify its manufacturer, to provide

the manufacturer’s phone number and mailing address, to specify the tool’s use and to explain

how and when a particular screwdriver found its way to FCI Gilmer. The FOIA is designed “to

provide access to those [records] which [an agency] in fact has created and retained.” Kissinger

v. Reporters Comm. for Freedom of the Press,

(1980). Any substantive

response to the plaintiff’s inquiries about the screwdriver exceeds the FOIA’s scope, and the

BOP was not obligated to answer questions presented in the guise of a FOIA request. 1 See

Schoenman v. FBI,

(D.D.C. 2008); Hudgins v. IRS,

(D.D.C. 1985), aff’d,

(D.C. Cir.), cert. denied,

(1987).

The plaintiff offers no objection to the search for the video recording. In this regard, the

BOP’s declarant describes the search as follows:

BOP determined that any records related to Plaintiff’s request for video footage would be located in the SIS Department at FCI Gilmer, which is the department tasked with investigating inmate assaults, crimes, protection cases, and so forth, and is also tasked with monitoring and maintaining video footage related to significant events.

1 The plaintiff argues that the BOP was obligated to provide two hours of search time and 100 pages of records at no charge and a Vaughn Index pertaining to the Phillips-head screwdriver. Pl.’s Decl. ¶ 16 p. 3 (referring to

(d)(4), (e)(1)); see generally Pl.’s Reply to Def.’s Reply in Support of Def.’s Mot. for Summ. J. Not so. As drafted, the reformulated FOIA request makes particular inquiries about a particular screwdriver. Without more, the BOP would have been “unable to ascertain what records to search.” Wahl Decl., Ex. 4. 6 BOP performed a search for the video footage, which was located by FCI Gilmer SIS and maintained by the legal office processing the FOIA request. The video shows several different camera angles of an inmate-on-inmate assault which occurred on May 2, 2013 in the inmate dining hall at FCI Gilmer and the immediate response to that assault by law enforcement personnel.

Wahl Decl. ¶¶ 9-10.

While short on detail, the BOP’s supporting declaration demonstrates that the search

was reasonably calculated to locate responsive records. The SIS Department at FCI Gilmer is

responsible for investigating inmate assaults and for monitoring and maintaining video

recordings of significant events at that facility, and there staff found a video recording of the

incident described in the plaintiff’s FOIA request. Accordingly, the plaintiff’s challenge to the

adequacy of the search conducted fails.

B. Exemption 7

The plaintiff argues that the BOP has improperly the video-recording of his assault,

which recording has been withheld under FOIA Exemptions 7(C), 7(E), and 7(F).

1. Law Enforcement Records

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

enforcement purposes,”

(b)(7), but only to the extent that disclosure would cause

an enumerated harm, see FBI v. Abramson,

(1982). “In assessing whether

records are compiled for law enforcement purposes, [the District of Columbia Circuit

emphasizes] 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. Dep’t of Justice,

(D.C. Cir. 2002)

(citations and internal quotation marks omitted).

7 The BOP’s supporting declaration neither states that the BOP is a law enforcement

agency nor states that the responsive video was compiled for a law enforcement purpose. As the

defendant points out, however, the BOP’s “mission includes ‘provid[ing] for the safekeeping,

care, and subsistence of all persons charged with or convicted of offenses against the United

States[.]’” Def.’s Mem. at 8 (quoting

(a)(2)). It follows, then, that video

footage of an inmate-on-inmate assault maintained by the department responsible for

investigating inmate assaults at FCI Gilmer, see Wahl Decl. ¶¶ 9-10, was compiled for a law

enforcement purpose. The Court concludes that the video recording is a law enforcement record

within the scope of Exemption 7.

2. Exemptions 7(C), 7(E) and 7(F)

“[T]he video footage contain[s] the images of approximately 70 or more other

individuals, including other inmates and BOP staff members, in addition to [the plaintiff].”

Wahl Decl. ¶ 19. The BOP withholds the video in full under FOIA Exemptions 7(C), 7(E) and

7(F), which protect:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . , (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . , (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

(b)(7).

Disclosure of the identities of individuals other than the plaintiff, the declarant states,

“may constitute an unwarranted invasion of [their] privacy.” Wahl Decl. ¶ 19. The BOP

identifies “no substantial public interest in the identities of the third parties . . . that outweighed

8 the individuals’ privacy interests.”

; see

Ex. 7. In addition, the declarant explains

that release of the video footage not only “would reveal the specific law enforcement methods

employed in responding [to] and/or [investigating] the prohibited conduct,” but also would show

“the location of video cameras.”

. If this information were disclosed, the declarant

explains, prisoners “could . . . modify[] their criminal behavior to prevent detection and

circumvent the methods law enforcement officers use to discover the existence of and investigate

the conduct of prisoners.” Id.; see

Ex. 7. Lastly, the BOP’s declarant explains, disclosure of

the video means disclosure of the identities of other individuals, “regardless of whether they

played a role in the assault or the response, or failed to intervene, could endanger [their lives] or

their safety . . . at a later time, particularly in a prison environment where there exist threats of

retaliation and continued violence.” Id.; see

Ex. 7.

The plaintiff makes three arguments in favor of the video’s release. First, he explains

that “[d]isclosure of the video . . . is only for the purposes of federal administrative and judicial

proceedings.” Pl.’s Decl. ¶ 17 p. 4-5. It would be “admissible in a criminal proceeding, despite

the Defendant’s claimed FOIA exemptions,” and the plaintiff claims an entitlement to the video

in order “to seek administrative and judicial review, including civil damages.”

¶ 17 p. 5.

Second, the plaintiff notes that a prisoner is “not permitted to personally to possess the requested

. . . video.”

In this circumstance, release of the video means that “it will be held and

controlled by BOP staff . . . subject to whatever restrictions the BOP . . . prescribe[s],”

It

would not be a release to the general public. Third, the plaintiff asserts that “video footage of

[the] assault is segregable,” and that “[t]he Defendant possesses the computer capabilities to

provide the . . . footage” he requires.

None of his arguments is persuasive.

9 The FOIA pertains to the public’s access to government records. See NLRB v. Robbins

Tire & Rubber Co.,

(1978) (“The basic purpose of FOIA is to ensure an

informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.”) (citations omitted). Neither

the identity of the requester nor the requester’s intended use of responsive records is relevant.

See Nat’l Archives & Records Admin. v. Favish,

(2004) (“[A]s a general rule,

when documents are within FOIA’s disclosure provisions, citizens should not be required to

explain why they seek the information.”); North v. Walsh,

(D.C. Cir. 1989)

(“In sum, [a FOIA requester’s] need or intended use for the documents is irrelevant.”). Whether

the video recording would be disclosed in the context of civil litigation or a criminal proceeding

has no bearing in a FOIA case. See Jones v. FBI,

(6th Cir. 1994) (commenting

that “FOIA’s “scheme of exemptions does not curtail a plaintiff's right to discovery in related

non-FOIA litigation; but neither does that right entitle a FOIA plaintiff to circumvent the rules

limiting release of documents under FOIA.”). A release of records under the FOIA must be

treated as a release to the general public. Favish,

(“As a general rule, if the

information is subject to disclosure, it belongs to all.”). Any restrictions on access to the video

recording necessarily imposed by virtue of the plaintiff’s current incarceration are of no moment.

The plaintiff asserts – without support – that “[t]he video of [the] assault is segregable.”

Pl.’s Opp’n at 1. In contrast, the BOP’s declarant avers that staff “reviewed the video for any

segregable material, but concluded that there is [none].” Wahl Decl. ¶ 23. Further, she states,

the BOP “is technologically unable to segregate any portion of the video recording,”

such

that it has no means by which to redact the images of third parties. The plaintiff’s unsupported

10 assertion neither rebuts the presumption of good faith afforded the BOP’s supporting declaration

nor shows evidence of agency bad faith.

The Court concludes that the BOP properly withheld the video recording in full. The

BOP has averred that release of the video necessarily means release of the images of third

parties, and such release could reasonably be expected to constitute an unwarranted invasion of

their personal privacy. See Mingo v. U.S. Dep’t of Justice,

(D.D.C.

2011) (affirming the BOP’s decision to withhold “video disks containing the images of more

than 50 [inmates involved in an altercation at a federal penitentiary] in their entirety under FOIA

exemption 7(C)”). Further, the BOP demonstrates that release of the video recording necessarily

identifies the location of the cameras and the methods employed in responding to or investigating

incidents such as the inmate-on-inmate assault recorded here. See Ford v. Dep’t of Justice,

(D.D.C. 2016) (noting that disclosure of bank surveillance camera footage

reveals camera locations and therefore implicates exemption 7(E)). The BOP’s reliance on

Exemption 7(F) is not so clearly supported. Nevertheless, its reliance on Exemptions 7(C) and

7(E) suffices, even if Exemption 7(F) does not apply. See Simon v. Dep’t of Justice,

(D.C. Cir. 1992) (finding records exempt from FOIA under one exemption and

declining to address any other).

11 IV. CONCLUSION

The BOP construed the plaintiff’s reformulated FOIA request reasonably, conducted a

search for responsive records adequately, and justified its decision to withhold the video

recording in full. Accordingly, the BOP complied with its obligations under the FOIA, entitling

the agency to summary judgment in its favor. An Order is issued separately.

DATE: February 5, 2018 /s/ Beryl A. Howell BERYL A. HOWELL Chief Judge

12