UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DMITRY PRONIN,

Plaintiff, v. Civil Action No. 17-1807 (TJK) FEDERAL BUREAU OF PRISONS,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Dmitry Pronin, proceeding pro se and in forma pauperis, filed this suit against

Defendant Federal Bureau of Prisons (BOP), alleging violations of the Freedom of Information

Act (FOIA),

. See ECF No. 1 (“Compl.”). Specifically, Plaintiff challenges

Defendant’s decision to withhold as exempt lists of the names of staff members who work at

three BOP facilities where Plaintiff has been incarcerated. See

at 5–6; ECF No. 1-1 at 5–6;

ECF No. 26 (“Pl.’s Opp.”) at 2. 1

Currently before the Court is Defendant’s Motion to Dismiss or for Summary Judgment.

ECF No. 24 (“MSJ”). In Plaintiff’s complaint, he does not clarify which of the several FOIA

requests he has made over the past several years—and which portions of those requests—

are the subject of this action. Accordingly, in its motion, Defendant attempts to address all six of

Plaintiff’s prior FOIA requests by making broad, wholesale arguments as to each that it

conducted adequate searches, properly withheld or redacted responsive information under the

applicable exemptions, and otherwise released any segregable information.

In his response,

1 The Court refers to the ECF-generated page numbers for all of Plaintiff’s filings in this matter. however, Plaintiff explains that he solely challenges Defendant’s refusal to disclose staff lists for

three BOP facilities. See Pl.’s Opp. at 2.

Defendant, apparently content to rest on its initial filing, never filed a reply. But its

motion falls well short of justifying summary judgment as to the three staff lists Plaintiff has

identified. Accordingly, and for the reasons explained below, Defendant’s motion will be

denied.

Factual and Procedural Background

Plaintiff, a prisoner currently in BOP custody, submitted six FOIA requests to Defendant

between February 2016 through October 2017. See ECF No. 24-2 (“Rodgers Decl.”) at 2–8. On

September 1, 2017, Plaintiff filed a complaint seeking the release of documents withheld by

Defendant in responding to those requests. See Compl. Though Plaintiff did not specify in his

complaint the particular request or requests at issue, he clarified in his responses to Defendant’s

motion that he is only challenging Defendant’s decision to withhold the names and positions of

employees at three BOP facilities: the Federal Correctional Complex (FCC) located in Florence,

Colorado; the United States Penitentiary (USP) and FCC located in Terre Haute, Indiana; and the

FCC located in Beaumont, South Carolina. See Pl.’s Opp. at 1–2, 6, 8; ECF No. 29 (“Pl.’s Supp.

Opp.”) at 3, 5. Accordingly, only two of Plaintiff’s FOIA requests—Request No. 2016-02619

and Request No. 2017-05599—are at issue here. 2 See ECF No. 24-1 (“Def.’s Stmt. Facts”) at 1–

6; Rodgers Decl. at 2–8.

2 A third request—Request No. 2017-00272—also mentions staff lists for “USP Terre Haute, Indiana” and for “USP Florence, Colorado,” ECF No. 24-3, Att. 6, but Plaintiff in that request was merely seeking to administratively appeal his earlier request—Request No. 2016-02619— for the same information. Accordingly, Defendant mistakenly assigned it a separate FOIA- request number. See Rodgers Decl. ¶ 7. Defendant later advised Plaintiff of the correct process for appealing his initial request, and that appeal resulted in the release of additional records.

2 A. Plaintiff’s FOIA Request No. 2016-02619

Defendant received Request No. 2016-02619 on February 19, 2016. Rodgers Decl. ¶ 4.

The request sought, among other records, (1) “[t]he complete list of employees of FCC

‘Florence,’” (2) the “[f]ull name of Physician Assistant Justillano, who was, until 2014,

employed by [BOP] at USP ‘Terre Haute,’” and (3) “[t]he complete list of employees of

USP/FCC ‘Terre Haute.’” ECF No. 24-3, Att. 1. On July 22, 2016, Defendant responded by

informing Plaintiff that, in response to the entirety of his request, it had identified 149 pages of

responsive records and was releasing 93 pages in full and 7 partial pages but withholding 49

pages in full. Rodgers Decl. ¶ 4; ECF No. 24-3, Att. 2. According to BOP, “[m]ost of the pages

withheld in full were lists of the names of BOP staff members.” Rodgers Decl. ¶ 4. In the letter,

Defendant generally cited FOIA Exemptions 2, 6, 7(C), 7(E), and 7(F) as the bases for its

withholdings.

(citing

(b)). Plaintiff appealed that response to the Department

of Justice Office of Information Policy, which resulted in BOP’s release on March 21, 2017, of

an additional five pages, though the record does not indicate what information those pages

contain. Def.’s Stmt. Facts ¶ 3; Rodgers Decl. ¶ 4.

B. Plaintiff’s FOIA Request No. 2017-05599

Defendant received Request No. 2017-05599 on June 26, 2017. Rodgers Decl. ¶ 9. The

request sought, among other records, a “full and complete list of workers of FCC Beaumont.”

ECF No. 24-3, Att. 9. On July 28, 2017, Defendant responded by informing Plaintiff that, in

response to the entirety of his request, it had identified 53 pages of responsive records and was

releasing 41 pages in full and 12 partial pages. Rodgers Decl. ¶ 9; ECF No. 24-3, Att. 10.

Defendant cited FOIA Exemptions 6, 7(C), and 7(F) for any redactions. ECF No. 24-3, Att. 10

(citing

(b)). As to Plaintiff’s specific request for a complete staff list for FCC

3 Beaumont, Defendant stated that FOIA did not require it to “create lists,” only to “provide BOP

generated documents,” and thus it stated that there were no responsive documents to that request.

ECF No. 24-3, Att. 10. It does not appear that Plaintiff administratively appealed this request.

C. Defendant’s January 2018 Letter to Plaintiff

On January 18, 2018, and after Plaintiff had commenced this action, Defendant sent a

letter to Plaintiff further supplementing its responses to both Request No. 2016-02619 and

Request No. 2017-05599. See ECF No. 24-3, Att. 4. Regarding the former request, Defendant

stated that it was re-releasing a single page with fewer redactions, but that it would continue to

redact other information under FOIA Exemptions 6, 7(C), and 7(F).

Regarding the latter

request, Defendant also stated that it would release additional pages, with some redactions

remaining pursuant to Exemptions 6, 7(C), and 7(F).

And as to Plaintiff’s specific requests

for complete lists of staff members at FCC Beaumont and two other facilities not at issue in this

action, Defendant stated that it would release the names of the wardens at those facilities because

doing so “appear[ed] to outweigh any interest of privacy that those individuals may have, but

that with regard to staff members junior to those wardens, . . . their privacy interests, and safety

interests attendant to their identities, appear[ed] to outweigh any public interest in the release of

their names.”

D. Defendant’s Motion

On June 22, 2018, Defendant filed its motion to dismiss the complaint or, in the

alternative, for summary judgment. 3 In arguing that it is entitled to summary judgment,

3 Defendant makes only a passing contention at the beginning of its motion that Plaintiff’s complaint should be dismissed, arguing that because Plaintiff does not specify which of his FOIA requests are at issue in this action, he fails to state a claim upon which relief can be granted. See MSJ at 1. But in Plaintiff’s complaint, he alleges that Defendant has failed to

4 Defendant asserts that it conducted an adequate search for responsive records, that it properly

withheld the disputed information under Exemptions 2, 6, 7(C), and 7(F), and that it complied

with FOIA’s segregability requirement. See MSJ at 4–15. In support of its motion, Defendant

also submitted a Vaughn Index describing its withholdings. See ECF No. 24-4 (“Vaughn

Index”). Plaintiff filed two responses opposing Defendant’s motion, the second after the Court

afforded Plaintiff an opportunity to supplement his first response. See Pl.’s Opp.; Pl.’s Supp.

Opp. Plaintiff’s principal argument in both filings is that because Defendant allegedly released a

list of names and positions of employees for another facility in response to a prior request, “there

exists [a] genuine issue of material fact as to whether [BOP] can authorize the release of such

information.” Pl.’s Opp. at 5. Defendant did not file a reply.

Legal Standard

Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion.” Celotex Corp. v. Catrett,

(1986).

“Where the non[-]moving party is proceeding pro se, courts in this jurisdiction will construe the

comply with FOIA and states that he is seeking as relief “the information requested and unlawfully denied to be released to [him], full and complete.” Compl. at 3, 5–6. And he attached Defendant’s responses to his FOIA requests. See ECF No. 1-1 at 9–12, 18–21. He also describes the information he sought in those requests in his “Verified Brief in Support of Claim,” attached to his complaint. See id. at 6. Consistent with its duty to construe pro se pleadings liberally, the Court finds that Plaintiff has sufficiently stated claims under FOIA. See Erickson v. Pardus,

, 93–94 (2007) (noting that documents filed pro se should be liberally construed, and that a complaint need only give the defendant “fair notice of what the . . . claim is and the grounds upon which it rests.” (omission in original) (quoting Bell Atl. Corp. v. Twombly,

(2007))); see also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”).

5 non-moving party’s filings liberally.” Cunningham v. U.S. Dep’t of Justice,

(D.D.C. 2014).

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Office of U.S. Trade Rep.,

(D.C. Cir. 2011). “[A] district court reviewing a

motion for summary judgment conducts a de novo review of the record, and the responding

federal agency bears the burden of proving that it has complied with its obligations

under . . . FOIA.” Roseberry-Andrews v. Dep’t of Homeland Sec.,

(D.D.C.

2018) (quoting MacLeod v. Dep’t of Homeland Sec., No. 15-cv-1792 (KBJ),

,

at *6 (D.D.C. Sept. 21, 2017)). Indeed, even when the non-movant fails to file an opposition or

present a coherent response to the movant’s arguments, “a district court must always determine

for itself whether the record and any undisputed material facts justify granting summary

judgment.” Cable News Network, Inc. v. FBI,

(D.D.C. 2017) (quoting

Winston & Strawn, LLP v. McLean,

(D.C. Cir. 2016)).

“To prevail on summary judgment [in a FOIA suit], an ‘agency must [first] show that it

made a good faith effort to conduct a search for the requested records.’” Reporters Comm. for

Freedom of the Press v. FBI,

(D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t

of the Army,

(D.C. Cir. 1990)). In making such a showing, the agency can rely

on “[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.” Oglesby,

. “[S]ummary judgment is inappropriate if a review of

the record raises substantial doubt as to the search’s adequacy, particularly in view of well

defined requests and positive indications of overlooked materials.” Reporters Comm.,

6 at 402 (alteration in original) (internal quotation marks omitted) (quoting Valencia–Lucena v.

U.S. Coast Guard,

(D.C. Cir. 1999)).

Upon a showing that it has conducted an adequate search, the agency must then

demonstrate that it has not withheld any responsive document that is not specifically exempted

under one of FOIA’s nine exemptions. See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland

Sec.,

(D.C. Cir. 2015). “FOIA’s exemptions ‘are explicitly made exclusive’

and ‘must be narrowly construed.’”

(quoting Milner v. Dep’t of the Navy,

, 565

(2011)). When the propriety of an agency’s withholding is at issue, summary judgment in favor

of the agency is justified if the agency’s supporting declarations and exhibits describe the

requested 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.”

Larson v. Dep’t of State,

(D.C. Cir. 2009) (quoting Miller v. Casey,

(D.C. Cir. 1984)). “The agency cannot rely on ‘conclusory and generalized allegations

of exemptions.” Roseberry-Andrews,

(quoting Morley v. CIA,

(D.C. Cir. 2007)).

Analysis

As Plaintiff has clarified, the only records he seeks in this action are complete lists of the

names and titles of the staff at three BOP facilities. But Defendant’s chaotic motion for

summary judgment does not demonstrate that summary judgment in its favor is warranted as to

Plaintiff’s requests for these specific records. In response to Plaintiff’s request for staff lists for

FCC Florence, Defendant identifies two documents, purports to claim Exemption 2 for both, also

invokes the standard for Exemption 7(F), and fails to sufficiently justify relying on either. As for

7 Plaintiff’s request for a staff list for the Terre Haute facilities, Defendant entirely neglects to

address it. Nowhere in Defendant’s motion or accompanying declarations does it even represent

whether it possesses responsive records. Finally, regarding Plaintiff’s request for a staff list for

FCC Beaumont, Defendant represented in its initial response letter that it possessed no

responsive documents, then later stated in its January 2018 letter that it had decided not to

release the names of those employees out of concern for their privacy, without citing any specific

FOIA exemption. Defendant’s motion and accompanying declaration repeat that latter

explanation, again without citing a specific exemption.

The Court addresses each of these three requests in turn below. At bottom, and as

explained in more detail, given the present record and Defendant’s haphazard explanations for its

responses and withholdings, the Court presently cannot grant Defendant’s motion for summary

judgment.

A. Plaintiff’s FCC Florence Request

Defendant has identified two documents responsive to Plaintiff’s request for a list of

employees at FCC Florence. The first, labeled “FCC Florence Staff List,” is described by

Defendant as a document “that consisted only of a complete list of staff names for FCC

Florence.” Vaughn Index at 1–2. The second, labeled “Staffing and Strength Report for Pay

Period 09 (May 1, 2016–May 14, 2016),” is described by Defendant to include a “[d]escription

of staff positions at FCC Florence,” “[v]acanc[ies] and positions filled,” and “[s]taff names that

are assigned to each filled position.” Id. at 5. Defendant purports to withhold both documents

under FOIA Exemption 2. See id. at 1–2, 5; MSJ at 7–9.

Exemption 2 exempts from disclosure information “related solely to the internal

personnel rules and practices of an agency.”

(b)(2). To fall within this

8 exemption, records must be “internal” such that the agency “typically keep[s] the records to itself

for its own use,” and they must “concern the conditions of employment in federal agencies—

such matters as hiring and firing, work rules and discipline, compensation and benefits.” Milner,

562 U.S. at 570 & n.4. They must also “relate ‘solely’ to [the] agency’s internal rules and

practices, which means that [Exemption 2] does not exempt ‘matters [that are] subject to . . . a

genuine and significant public interest.” Sheridan v. U.S. Office of Pers. Mgmt.,

(D.D.C. 2017) (third alteration and omission in original) (internal citation omitted)

(quoting Dep’t of the Air Force v. Rose,

(1976)). The Supreme Court has

instructed that the ordinary practice of construing FOIA exemptions narrowly “stands on

especially firm footing with respect to Exemption 2.” Milner, 562 U.S. at 571.

Against that backdrop, Defendant’s justification for invoking Exemption 2, at least on

this record, falls short. In the entries for both records in the accompanying Vaughn Index,

Defendant’s rationale was limited to the following sentence: “Exemption 2 was applied to redact

[the document] because [it] not only relates to personnel matters of FCC Florence, specifically,

and the BOP generally, but the [document] reflects the internal practice of the BOP concerning

staffing compliment [sic] at FCC Florence.” Vaughn Index at 1, 5.4 And Defendant merely

reiterates that boilerplate rationale, without elaboration, in its motion. See MSJ at 7, 9.

To be sure, “information need not actually be ‘rules and practices’ to qualify under

[E]xemption 2, as the statute provides that matter ‘related’ to rules and practices is also exempt.”

Schwaner v. Dep’t of the Air Force,

(D.C. Cir. 1990). But simply stating that

a document “reflects the internal practice of the BOP concerning staffing,” does not by itself

4 In the entry for the Staffing and Strength Report, Defendant added the redundancy: “ . . . and the manner in which the BOP staff’s [sic] FCC Florence.” Vaughn Index at 5.

9 bring that document within the cover of Exemption 2. Defendant must further demonstrate that

the matter “relate[s] solely” to internal personnel rules and practices and that it is not “subject

to . . . a genuine and significant public interest.” 5 Shapiro v. U.S. Dep’t of Justice,

, 278–80 (emphasis added) (quoting Rose,

); see also Sack v.

Dep’t of Justice,

(D.D.C. 2014) (noting that information withheld under

Exemption 2 must be “trivial matter like the ‘use of parking facilities or regulations of lunch

hours” (quoting Milner, 562 U.S. at 565)). Defendant makes no attempt to explain why a list of

employee names, whether compiled separately or as part of a broader “staffing report,” meet

those criteria.6 It has not provided any context as to how the FCC Florence Staff List was

generated or used, nor has it provided any non-cursory description of how and why the Staffing

Report was generated, as well as the precise information it contains. Stein v. U.S. Dep’t of

Justice,

(D.D.C. 2015) (relying on affidavits stating that forms “were

5 Defendant did proffer that the FCC Florence Staff List is an internal record, attaching a declaration from the BOP’s Assistant General Counsel stating that FCC Florence “does not release staff lists to inmates or members of the general public.” ECF No. 24-5. Neither the declaration nor Defendant’s motion, however, make clear whether this applies to the Staffing and Strength Report generally as well. It appears Defendant provided this declaration in light of another court in this District’s conclusion that the BOP could not withhold a prison staff list from an inmate when it “release[d] staff names and their titles and salaries to the general public.” Maydak v. U.S. Dep’t of Justice,

(D.D.C. 2005). But the declaration does not absolve Defendant of its obligation to sufficiently demonstrate that Exemption 2 otherwise applies. Indeed, the court in Maydak found that, independent of BOP’s practice of releasing the information to the public, “BOP ha[d] not established the threshold requirement for redacting the names under . . . exemption 2.”

. 6 Though Defendant made arguments elsewhere that the names of employees should generally be withheld on grounds of personal privacy, Defendant inexplicably has not argued that these lists are exempt under any of the FOIA exemptions implicating personal privacy.

10 created and [were] used solely as a tool for evaluating employee performance” in finding the

forms fell under Exemption 2).7

To be clear, the Court does not find that these records necessarily fall outside of

Exemption 2—or, for that matter, any of the other exemptions—only that Defendant has failed to

carry its burden to justify invoking Exemption 2 here. It has provided only a bare bones

declaration and Vaughn Index, and it makes broad, conclusory arguments in relying on those

materials to support its motion for summary judgment, none of which provide the Court with the

necessary assurances that the exemption was properly invoked. See Miller,

(instructing that an agency seeking summary judgment must provide affidavits that “describe the

justifications for nondisclosure with reasonably specific detail [and] demonstrate that the

information withheld logically falls within the claimed exemption” (internal quotations

omitted)). At bottom, Defendant’s conclusory and disjointed justifications cannot support an

entry of summary judgment as to the FCC Florence request. See Morley,

.

B. Plaintiff’s UPS/FCC Terre Haute Request

Despite Plaintiff’s clear request for a list of employees at BOP’s Terre Haute facilities,

Defendant makes no mention of that request in its motion or its accompanying declarations and

exhibits. Defendant acknowledged this request in its initial response to Plaintiff’s FOIA

submission, see ECF No. 24-3, Att. 2, and again in its supplemental response,

Att. 3, but it

7 Further muddling Defendant’s rationale, despite its insistence that it is withholding these documents under Exemption 2, Defendant at certain points appears to rely on the standard for Exemption 7(F), which covers information compiled for law enforcement purposes, the release of which “could reasonably be expected to endanger the life or physical safety of any individual.”

(b)(7)(F); see Vaughn Index at 1–2, 5–6; MSJ at 7. Yet even then, Defendant fails to explain how these records were “compiled for law enforcement purposes” beyond stating “the BOP is a primary law enforcement agency responsible for the management and regulation of all Federal penal and correction institutions.” Vaughn Index at 1, 5.

11 never clarified whether it in fact had located responsive documents and was withholding them, or

if it had found no documents responsive to Plaintiff’s request. The instant motion sheds no light

on the matter.

Though Defendant points out that Plaintiff does not explicitly challenge the adequacy of

Defendant’s searches in his complaint, Plaintiff does demand “the information requested and

unlawfully denied,” Compl. at 6, and specifically claims that “there exist[s] such thing as [a]

BOP Staff Directory,” such that BOP should be able to produce lists of employees for each of the

facilities identified, Pl.’s Opp. at 1–2. Consistent with the Court’s duty to liberally construe pro

se filings, it finds that Plaintiff has sufficiently challenged Defendant’s search in response to his

request for staff lists from Terre Haute, such that the matter is at issue. See Erickson,

. And Defendant’s response is so perplexing and deficient that it precludes the Court from

granting summary judgment for Defendant on this specific request. Despite retrieving two

separate documents containing staff lists for FCC Florence, Defendant makes no mention of any

similar documents for the Terre Haute facilities, nor does it describe what responsive records, if

any, it did uncover. In Defendant’s motion and accompanying declaration, it stated vaguely that

it was withholding “Staff Lists” under Exemptions 6 and 7(C), see Rodgers Decl. ¶ 24; MSJ at

12, but it never specifies which staff lists it is referring to, and it never mentions these staff lists

in the Vaughn Index. On this record, the Court cannot conclude that Defendant even conducted

an adequate search for responsive documents, let alone that it properly withheld responsive

documents under one of the exemptions. See Reporters Comm.,

. Accordingly,

the Court will deny Defendant’s motion for summary judgment as to this request as well.

12 C. Plaintiff’s FCC Beaumont Request

In its initial response to Plaintiff’s request for a staff list for FCC Beaumont, on the other

hand, Defendant affirmatively stated that it possessed no responsive documents. Specifically, it

declared: “In response to a request for a full and complete list of staff at FCC Beaumont, . . . the

FOIA [does not require it] to creates lists, but [to] provide BOP generated documents.

Therefore, there are no documents to this portion of your request.” ECF No. 24-3, Att. 10. But

in the January 2018 letter, Defendant stated that it would not release the names of employees at

FCC Beaumont because it determined that “their privacy interests, and safety interests attendant

to their identities, appear[ed] to outweigh any public interest in the release of their names.” ECF

No. 24-3, Att. 4. Defendant’s motion and accompanying declaration repeat that latter

explanation. See Def.’s Stmt. Facts ¶ 8; Rodgers Decl. ¶ 10. Defendant, however, never

specifically describes the records that contain these employee names, whether in the Vaughn

Index or elsewhere, nor does it identify which exemption it claims in seeking to rely on these

privacy interests.

Either justification—that it uncovered no responsive records after an adequate search, or

that it did but such records are exempt—may be sufficient for summary judgment purposes. But

again, Defendant has failed to provide a record sufficient to demonstrate as much. If no

responsive records exist—a response the Court doubts, given the existence of staff lists for other

BOP institutions—Defendant must aver as much with appropriate declarations. See Reporters

Comm.,

. If, however, responsive records do exist and Defendant intends to

withhold those records on privacy grounds, Defendant must sufficiently describe the nature of

the records and cite to the particular exemption or exemptions under which it believes those

13 records fall. See Miller,

. Having done neither, the Court must deny Defendant’s

motion as to this request as well.

Conclusion and Order

For all of the above reasons, it is hereby ORDERED that Defendant’s Motion to Dismiss

or for Summary Judgment, ECF No. 24, is DENIED. It is further ORDERED that Defendant

shall file any renewed motion for summary judgment by April 1, 2019.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 1, 2019

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