UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ : CARLTON THEODORE LANDIS, : : Plaintiff, : : v. : Civil Action No. 21-0504 (CKK) : FEDERAL BUREAU OF PRISONS, et al., : : Defendants. : _________________________________________ :

MEMORANDUM OPINION and ORDER

Plaintiff submitted requests under the Freedom of Information Act (“FOIA”), see

, to the Office of Personnel Management (“OPM”), the Federal Bureau of Prisons

(“BOP”), the Executive Office for United States Attorneys (“EOUSA”), and the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”). When he filed this case in the United

States District Court for the Northern District of Illinois on November 4, 2019 (ECF No. 1), he

had not received responses to his requests. The case was transferred to this federal district court

on March 3, 2021 (ECF No. 29). Defendants filed an Answer on July 28, 2021 (ECF No. 42),

and a motion for partial summary judgment on May 4, 2022 (ECF No. 55). On February 16,

2023, the Court granted defendants’ motion in part and denied the motion in part (ECF No. 71).

The Court concluded that BOP conducted reasonable searches for records responsive to

plaintiff’s FOIA requests and failed to justify its reliance on Exemption 6 to withhold certain

information about its employees. In addition, the Court concluded that ATF properly withheld in

1 full under Exemptions 7(C) and 7(F) information about holders of federal explosives licenses in

Pennsylvania.

This matter is before the Court on plaintiff’s Motion for Summary Judgment (ECF No.

64) and Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and Defendant

EOUSA and OPM’s Cross-Motions for Summary Judgment (ECF No. 68). Because BOP’s

decision to withhold information about its employees is the topic of a separate motion (ECF No.

74), and because all claims regarding ATF have been resolved, here the Court discusses only

EOUSA’s and OPM’s responses to plaintiff’s FOIA requests. For the reasons discussed below,

the Court DENIES both motions without prejudice.1

I. Plaintiff’s FOIA Requests

A. FOIA Requests to EOUSA

There is some confusion about the number and nature of plaintiff’s FOIA requests to

EOUSA. Plaintiff represents that he “made about ten . . . FOIA requests” to EOUSA in 2019

and 2020, and that “[t]hese requests were no more than modifications of [his] original FOIA

request.” Pl.’s Reply at 6.2 Plaintiff does not identify which of these 10 requests is the

“original” request as distinguished from the “modifications.” Only one request, designated

1 The Court’s consideration focused on the following documents:

• Plaintiff’s Motion for Summary Judgment (ECF No. 64), including his Brief in Support of Summary Judgment (ECF No. 64 at 3-13, “Pl.’s Mem.”) and Statement of Material Facts (ECF No. 64-1, “Pl.’s SMF”) • Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and Defendant EOUSA and OPM’s Cross-Motions for Summary Judgment (ECF No. 68), including Defendants’ Statement of Material Facts (ECF No. 68-1, “Defs.’ SMF”) and the declarations of Auborn Finney (ECF No. 68-1, “Finney Decl.”) and Becky C. Ronayne (ECF No. 68-3, “Ronayne Decl.”) • Plaintiff’s Reply to Defendant’s Opposition (ECF No. 72, “Pl.’s Reply”) 2 Unless stated otherwise, all page numbers are those designated by CM/ECF. 2 EOUSA-2019-002411, is mentioned in the complaint, see Compl. at 11, and only one request,

designated EOUSA-2019-003111, is referenced in plaintiff’s summary judgment motion, see

Pl.’s Mem. at 7-9. Consequently, the Court proceeds as if these are the only EOUSA requests at

issue.

1. Request Number EOUSA-2019-002411

EOUSA received a FOIA request from plaintiff on March 29, 2019, seeking information

about a civil action in the United States District Court for the Middle District of Pennsylvania,

Bone v. Crawford, No. 3:14-cv-1712, and a criminal action in the United States District Court for

the Eastern District of North Carolina, United States v. Landis, No. 5:13-cr-00189. See Defs.’

SMF ¶ 2; Finney Decl. ¶ 5 & Ex. A (ECF No. 68-2 at 8-13). EOUSA assigned the matter a

tracking number, EOUSA-2019-002411, Defs.’ SMF ¶ 2, and on September 9, 2019, EOUSA

released in full 216 pages of records,

; see Finney Decl., Ex. E (ECF No. 68-2 at 29-30).

EOUSA has no record of “any follow up inquiries or appeals from [p]laintiff regarding [this]

request[].” Defs.’ SMF ¶ 11.

2. Request Number EOUSA-2019-003111

Plaintiff’s May 6, 2019, FOIA request to EOUSA, received on May 22, 2019, Defs.’

SMF ¶ 3, sought “documents related to all cases, within the last three years, that [the] office has

represented any prison staff member(s) employed at United States Penitentiary Lewisburg

(Pennsylvania/Middle District) for violating any inmate’s civil rights while that inmate was

incarcerated” there, Finney Decl., Ex. B (ECF No. 68-2 at 14-15).

EOUSA referred the matter, designated EOUSA-2019-003111, to the United States

Attorney’s Office for the Western District of Pennsylvania “given that the prison is located in

that district and [plaintiff] specifically requested that district to perform the search.” Defs.’ SMF

3 ¶ 6. No responsive records were located, and EOUSA notified plaintiff of the search results by

letter dated August 21, 2019. Defs.’ SMF ¶¶ 7-8; see Finney Decl., Ex. D (ECF No. 68-2 at 26-

27).

B. FOIA Requests to OPM

According to plaintiff, he “sent a FOIA request to the OPM in 2018 requesting the names

and past and present salaries, titles, duty stations, etc., of all BOP employees employed with the

BOP in 2017,” Pl.’s SMF ¶ 7, and received no response,

. According to OPM, the agency

did not receive plaintiff’s 2018 request. Defs.’ SMF ¶ 17.

Plaintiff sent a second request to OPM in 2019 for “the names and past and present

salaries, titles, duty stations, etc., of all BOP employees employed by the BOP in 2018.” Pl.’s

SMF ¶ 9. On March 1, 2019, OPM received this request, Defs.’ SMF ¶ 18, and assigned the

matter a tracking number (2019-03611),

. By letter dated March 21, 2019, OPM advised

that “his request was considered commercial” and fees would be assessed for processing it.

Because the letter was returned unopened, and because OPM had no alternative address for

plaintiff, OPM administratively closed the matter. Id.; Ronayne Decl. ¶ 8.

After this litigation commenced, “OPM . . . processed [p]laintiff’s FOIA request for both

2017 and 2018[.]” Defs.’ SMF ¶ 21. Staff of OPM’s Human Capital Data Management and

Modernization Directorate located responsive records in the Enterprise Human Resources

Integration database, see Ronayne Decl. ¶¶ 6, 11, and OPM “made . . . redactions pursuant to

FOIA Exemption 6 on the basis of OPM’s data release policy, which provides for the redaction

of identities and duty station locations of individuals in sensitive occupations, employed by

designated Security Agencies, or at the Department of Defense,” Ronayne Decl. ¶ 13; see Defs.’

SMF ¶ 25.

4 On May 3, 2022, by certified mail, OPM sent plaintiff “a disc with information

concerning persons employed at BOP in 2017 and 2018.” Defs.’ SMF ¶ 24; see Ronayne Decl. ¶

12 & Ex. A (ECF No. 68-3 at 6-8). The files had been “zipped, encrypted and password-

protected using WinZip version 23.0,” and the password was to be sent to plaintiff separately,

Ronayne Decl., Ex. A (ECF No. 68-3 at 6). Plaintiff represented that he received the password

but not the disc. See Pl.’s SMF, Notes (ECF No. 64-1 at 9). He further represented that he had

requested the records in paper form, and demands OPM provide the records in the format of his

choosing. Pl.’s Reply at 9-10.

II. Legal Standard

A FOIA case typically is resolved on a motion for summary judgment. See Petit-Frere v.

U.S. Attorney’s Office for the Southern District of Florida,

(D.D.C.

2011) (citations omitted), aff’d, No. 11-5285,

, at *1 (D.C. Cir. Sept. 19,

2012) (per curiam). The Court grants summary judgment 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). An agency may meet its burden solely on the basis of affidavits or

declarations, see Valencia-Lucena v. U.S. Coast Guard,

(D.C. Cir. 1999), as

long as 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 [or] by evidence of

agency bad faith,” Military Audit Project v. Casey,

(D.C. Cir. 1981) (footnote

omitted).

5 III. Discussion3

A. Adequacy of Searches for Responsive Records

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,

(D.C. Cir. 2011) (citations and

internal quotation marks omitted). The Court may rely on an agency’s “reasonably detailed

[declarations], 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.” Valencia-

Lucena,

(quoting Oglesby, 920 F.2d at 68) (internal quotation marks omitted).

1. EOUSA’s Searches for Responsive Records

a. Request Number EOUSA-2019-002411

Plaintiff does not challenge the EOUSA’s search for records responsive to Request

Number EOUSA-2019-002411 in his summary judgment motion. Nevertheless, EOUSA is not

entitled to summary judgment on this point because it fails to demonstrate that its search was

reasonable under the circumstances. Its declarant states that a search yielded 216 records which

were released in full. Finney Decl. ¶ 13; see Defs.’ SMF ¶ 10. EOUSA neither indicates what

3 The Court denies defendants’ motions for summary judgment, see Defs.’ Mem. at 15-16, on the ground plaintiff failed to exhaust administrative remedies prior to filing this lawsuit. Exhaustion is not a jurisdictional requirement, Hidalgo v. FBI,

(D.C. Cir. 2003), and instead is a prudential consideration, Wilbur v. CIA,

(D.C. Cir. 2004) (per curiam). The Court accepts plaintiff’s representations that he did not receive responses to Request Number EOUSA-2019-002411 and OPM 2019-03611, see Pl.’s Decl. (ECF No. 72 at 12-14) ¶ 5; Pl.’s SMF, Notes (ECF No. 64-1 at 9), and therefore had not been advised of his right to pursue administrative appeals of the agencies’ initial determinations. And although plaintiff did receive a response regarding Request Number EOUSA-2019-003111, the Court excuses this pro se plaintiff’s misguided attempt to “appeal” the initial determination by filing a “modified” FOIA request. 6 system of records was likely to contain responsive records, describes how the search was

conducted nor identifies the records located and released to plaintiff.

b. Request Number EOUSA-2019-003111

Plaintiff challenges the adequacy of EOUSA’s search for records responsive to his

request for “any and all documents related to the EOUSA’s representation of the BOP or BOP

employee in any civil case where judgment was rendered against the BOP or BOP employee for

violating the civil rights of any inmate confined at USP Lewisburg.” Pl.’s Mem. at 7. According

to plaintiff, “[i]t would be ridiculous for anyone to believe, based on the extensive history of

UPS Lewisburg, that the EOUSA never represented the BOP or a BOP employee[.]”

He

purports to bolster his position by asserting that results from a separate FOIA request to BOP

yielded information about “four cases in which the EOUSA did take part in a civil action

rendered against the BOP.” Id. at 7-8. Plaintiff opines that EOUSA must have “in its possession

documents related to all civil cases rendered against the BOP or BOP employee,” and demands

that EOUSA search for and release such records. Id. at 8.

Plaintiff’s focus is misdirected, as the adequacy of an agency’s search is judged “not by

the fruits of the search, but by the appropriateness of the methods used to carry out the search.”

Iturralde v. Comptroller of the Currency,

(D.C. Cir. 2003). Thus, plaintiff is

not entitled to summary judgment on the ground he puts forward. EOUSA is not entitled to

summary judgment either because it does not demonstrate that its search was reasonable.

EOUSA’s declarant states that the agency referred plaintiff’s FOIA request to the United

States Attorney’s Office for the Western District of Pennsylvania because the prison is located

there and because plaintiff asked that that office’s records be searched. See Finney Decl. ¶ 9.

But the prison, USP Lewisburg, is located in the Middle District of Pennsylvania, as plaintiff’s

7 FOIA request indicates. In this circumstance, EOUSA does not demonstrate that a search of

Western District records was reasonably calculated to locate records responsive to a request

pertaining to USP Lewisburg in the Middle District of Pennsylvania.

2. OPM’s Search for Responsive Records

The Court accepts OPM’s representation that it did respond to plaintiff’s FOIA requests,

see Defs.’ SMF ¶¶ 21-24, and, therefore, denies plaintiff’s summary judgment motion in part.

However, because OPM does not demonstrate that its search for responsive records was

reasonable, the Court will deny its cross-motion for summary judgment.

OPM’s declarant states that responsive records likely would be maintained by its Human

Capital Data Management and Modernization Directorate (HCDMM) in the Enterprise Human

Resources Integration database (EHRI), Ronayne Decl. ¶ 6, and that HCDMM staff sent the

requested data to plaintiff on a single CD by certified mail, id. ¶ 12. The declarant offers no

description of EHRI, how its records are organized, the means by which EHRI is searched, or the

responsive records themselves. On this meager record the Court cannot determine whether the

search was a reasonable one. Even if OPM had conducted a reasonable search, there is a second

reason to deny summary judgment: its justification for redacting information under Exemption 6

falls short.

C. Exemption 6

Under Exemption 6, “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy” are not subject to

disclosure.

(b)(6). It is apparent that OPM’s responsive records qualify as

personnel and similar files within the scope of Exemption 6. OPM falters, however, because its

declaration asserts in conclusory fashion that release of the “names and duty locations, personnel

8 and medical files . . . would constitute a clearly unwarranted invasion of personal privacy.”

Ronayne Decl. ¶ 13.

OPM relies on its Data Release Policy (https://www.opm.gov/policy-data-oversight/data-

analysis-documentation/data-policy-guidance/data-standards/data-release-policy-november-

2018.pdf) “which provides for the redaction of identities and duty station locations of individuals

in sensitive occupations, employed by designated Security Agencies, or at the Department of

Defense,” Ronayne Decl. ¶ 13, yet offers no explanation of how the policy applies to BOP and

its employees. While OPM’s Data Release Policy designates the Federal Bureau of

Investigation, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms

and Explosives, the Alcohol and Tobacco Tax and Trade Bureau, the United States Mint, the

United States Secret Service, and all U.S. Attorneys’ Offices as “security/sensitive agencies,”

responsive records presumably include employees who are not correctional officers and whose

occupations might not be sensitive, raising a question as to whether OPM’s Data Release Policy

applies to all BOP employees.

Exemption 6 “does not categorically exempt individuals’ identities, though, because the

privacy interest at stake may vary depending on the context in which it is asserted.” Judicial

Watch, Inc. v. Food & Drug Admin.,

(D.C. Cir. 2006) (quoting Armstrong v.

Executive Office of the President,

(D.C. Cir. 1996) (internal quotation marks

omitted). Given the lack of clarity as to the nature of the responsive records and the employees

about whom OPM has redacted information, the Court cannot evaluate the privacy interest at

stake or, in turn, whether the privacy interest outweighs any public interest in disclosure.

Accordingly, it is hereby

9 ORDERED that plaintiff’s Motion for Summary Judgment [64] is DENIED WITHOUT

PREJUDICE; it is further

ORDERED that Defendants EOUSA and OPM’s Cross-Motions for Summary Judgment

[68] are DENIED WITHOUT PREJUDICE; and it is further

ORDERED that EOUSA and OPM shall file a renewed summary judgment motion by

June 15, 2023.

SO ORDERED.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge DATE: May 10, 2023

10