Gannett Satellite Information Network, LLC v. U.S. Department of Justice
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GANNETT SATELLITE INFORMATION NETWORK, LLC,
Plaintiff, Civil Action No. 22-475 (BAH)
v. Judge Beryl A. Howell
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Gannett Satellite Information Network, d/b/a USA Today, seeks the unredacted
release, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, of individual-level
data about people who died while in the custody of local jails, state prisons, and the Federal Bureau
of Prisons (“BOP”) between 2010 and 2019. The data requested by plaintiff was collected by the
Bureau of Justice Statistics (“BJS”), a component of defendant U.S. Department of Justice
(“DOJ”).
The requested information is described as reporting on the deaths of “[t]housands of
inmates” who “die [in custody] each year.” Pl.’s Mem. in Supp. of its Second Cross-Mot. for
Summ. J. & in Opp’n to Def.’s Second Mots. for Summ. J. & Partial Recons. (“Pl.’s Opp’n”) at 1,
ECF No. 36-1. Plaintiff seeks this information to help “identify trends in how and why inmates
are dying in such large numbers” and “allow the public to determine how good of a job [DOJ] is
doing at reducing deaths in custody at the state and local level.” Id. Congress recognized this
need when enacting the Death in Custody Reporting Act of 2013 (“DCRA 2013”), which required
DOJ, after collection of this data, to “determine means by which such information can be used to
reduce the number of such deaths” and “examine the relationship, if any, between the number of
1 such deaths and the actions of management of such jails, prisons, and other specified facilities
relating to such deaths.” Pub. L. No. 113-242, § 2(f)(1)(A)-(B), 128 Stat. 2860, 2861 (Dec. 18,
2014) (codified at 42 U.S.C. § 13727 (2014) (current version at 34 U.S.C. § 60105)). Recognizing
the significance of this issue, DOJ has taken steps to attempt to implement the DCRA and address
the goals set out in that law. See, e.g., U.S. Dep’t of Justice, The Report of the Attorney General
Pursuant to Section 6(e) of Executive Order 14074: Department of Justice Implementation of the
Death in Custody Reporting Act of 2013, at 1 (Sept. 16, 2022), https://bja.ojp.gov/doc/DOJ-
Implementation-of-DCRA-of-2013.pdf [hereinafter AG’s DCRA Report] (“DCRA addresses a
profoundly important issue, which is of great consequence to the legitimacy and integrity of the
criminal and juvenile justice systems, to the lives of the people who come into contact with those
systems, and to the family members and loved ones of those who have died in custody.”); Amy L.
Solomon, Taking Action to Reduce Deaths in Custody, U.S. Dep’t of Justice Off. of Just. Programs
(May 23, 2024), https://www.ojp.gov/archive/news/ojp-blogs/safe-communities/inside-
perspectives/taking-action-to-reduce-deaths-in-custody [hereinafter Taking Action]
(“[A]dmittedly, we have a long way to go when it comes to collecting data about and ultimately
reducing the number of fatalities that occur when individuals are taken into custody by the police
or incarcerated in correctional facilities. Our work to implement the Death in Custody Reporting
Act—specifically, to understand the nature and scope of the problem and identify strategies for
reducing in-custody deaths—is central to achieving this critical goal.”).
Previously, plaintiff was granted summary judgment on the question whether defendant
could withhold all records potentially responsive to plaintiff’s FOIA request by invoking FOIA
Exemption 3, 5 U.S.C. § 552(b)(3). See Gannett Satellite Info. Network v. U.S. Dep’t of Justice
(Gannett I), No. 22-cv-475 (BAH), 2023 WL 2682121 (D.D.C. Mar. 29, 2023). Defendant’s
2 position was rejected based on the determination that the requested information was furnished to
BJS under the DCRA, rather than Title I of the Omnibus Crime Control and Safe Streets Act of
1968 (“Crime Control Act”), 34 U.S.C. § 10231, and only the latter statute provides for
nondisclosure under FOIA’s Exemption 3. Gannett I, 2023 WL 2682121, at *5-9. After that
decision, defendant produced to plaintiff requested information, with redactions, only for the
period when the DCRA was authorized, while production of responsive information during the
period when the DCRA’s authorization lapsed was stayed to allow defendant to seek partial
reconsideration of Gannett I, based on the lapsed authorization issue recognized by the Court in
that decision, but not raised by the parties.
Both parties now move for summary judgment on the propriety of defendant’s redactions
to disclosed information, as well as the adequacy of defendant’s search for responsive records.
Def.’s Second Mot. for Summ. J. & for Partial Recons. (“Def.’s Mot.”), ECF No. 35; Pl.’s Second
Cross-Mot. for Summ. J. (“Pl.’s Cross-Mot.”), ECF No. 36. Defendant additionally moves for
partial reconsideration of Gannett I’s holding that rejected application of Exemption 3 to withhold
responsive records as covering the period when the DCRA’s authorization had lapsed and also
required disclosure of information submitted to BJS by local jails. Def.’s Mot.; Def.’s Mem. of P.
& A. in Supp. of Def.’s Second Mot. for Summ. J. & for Partial Recons. (“Def.’s Mem.”) at 28-
34, ECF No. 35-1. Defendant had failed to raise either issue during initial summary judgment
briefing.
For the reasons explained below, plaintiff’s cross-motion for summary judgment is granted
as to the inadequacy of the search and withholdings made by defendant in the disclosed
information, and defendant’s motion for summary judgment is denied. In addition, defendant’s
motion for partial reconsideration is granted, in part, to authorize withholding of responsive state
3 and local information collected during the period when DCRA authority had lapsed and the Crime
Control Act’s express confidentiality provision applied, and otherwise denied. In sum, defendant
must disclose the unredacted version of responsive records collected by the MCI program from
state and local authorities during the period between October 1, 2015, and the end of 2019, as well
as BOP data from the same period.
I. BACKGROUND
The statutory, factual, and procedural background relevant to the FOIA request and
pending cross-motions is described below.
A. Statutory Context
In 2000, Congress passed the Death in Custody Reporting Act of 2000 (“DCRA 2000”) to
“ensure that certain information regarding prisoners is reported to the Attorney General.” Pub. L.
No. 106-297, 114 Stat. 1045, 1045 (Oct. 13, 2000) (codified at 42 U.S.C. § 13704 (2000) (current
version at 34 U.S.C. § 12104)). This law mandated, as part of the eligibility requirements for
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GANNETT SATELLITE INFORMATION NETWORK, LLC,
Plaintiff, Civil Action No. 22-475 (BAH)
v. Judge Beryl A. Howell
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Gannett Satellite Information Network, d/b/a USA Today, seeks the unredacted
release, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, of individual-level
data about people who died while in the custody of local jails, state prisons, and the Federal Bureau
of Prisons (“BOP”) between 2010 and 2019. The data requested by plaintiff was collected by the
Bureau of Justice Statistics (“BJS”), a component of defendant U.S. Department of Justice
(“DOJ”).
The requested information is described as reporting on the deaths of “[t]housands of
inmates” who “die [in custody] each year.” Pl.’s Mem. in Supp. of its Second Cross-Mot. for
Summ. J. & in Opp’n to Def.’s Second Mots. for Summ. J. & Partial Recons. (“Pl.’s Opp’n”) at 1,
ECF No. 36-1. Plaintiff seeks this information to help “identify trends in how and why inmates
are dying in such large numbers” and “allow the public to determine how good of a job [DOJ] is
doing at reducing deaths in custody at the state and local level.” Id. Congress recognized this
need when enacting the Death in Custody Reporting Act of 2013 (“DCRA 2013”), which required
DOJ, after collection of this data, to “determine means by which such information can be used to
reduce the number of such deaths” and “examine the relationship, if any, between the number of
1 such deaths and the actions of management of such jails, prisons, and other specified facilities
relating to such deaths.” Pub. L. No. 113-242, § 2(f)(1)(A)-(B), 128 Stat. 2860, 2861 (Dec. 18,
2014) (codified at 42 U.S.C. § 13727 (2014) (current version at 34 U.S.C. § 60105)). Recognizing
the significance of this issue, DOJ has taken steps to attempt to implement the DCRA and address
the goals set out in that law. See, e.g., U.S. Dep’t of Justice, The Report of the Attorney General
Pursuant to Section 6(e) of Executive Order 14074: Department of Justice Implementation of the
Death in Custody Reporting Act of 2013, at 1 (Sept. 16, 2022), https://bja.ojp.gov/doc/DOJ-
Implementation-of-DCRA-of-2013.pdf [hereinafter AG’s DCRA Report] (“DCRA addresses a
profoundly important issue, which is of great consequence to the legitimacy and integrity of the
criminal and juvenile justice systems, to the lives of the people who come into contact with those
systems, and to the family members and loved ones of those who have died in custody.”); Amy L.
Solomon, Taking Action to Reduce Deaths in Custody, U.S. Dep’t of Justice Off. of Just. Programs
(May 23, 2024), https://www.ojp.gov/archive/news/ojp-blogs/safe-communities/inside-
perspectives/taking-action-to-reduce-deaths-in-custody [hereinafter Taking Action]
(“[A]dmittedly, we have a long way to go when it comes to collecting data about and ultimately
reducing the number of fatalities that occur when individuals are taken into custody by the police
or incarcerated in correctional facilities. Our work to implement the Death in Custody Reporting
Act—specifically, to understand the nature and scope of the problem and identify strategies for
reducing in-custody deaths—is central to achieving this critical goal.”).
Previously, plaintiff was granted summary judgment on the question whether defendant
could withhold all records potentially responsive to plaintiff’s FOIA request by invoking FOIA
Exemption 3, 5 U.S.C. § 552(b)(3). See Gannett Satellite Info. Network v. U.S. Dep’t of Justice
(Gannett I), No. 22-cv-475 (BAH), 2023 WL 2682121 (D.D.C. Mar. 29, 2023). Defendant’s
2 position was rejected based on the determination that the requested information was furnished to
BJS under the DCRA, rather than Title I of the Omnibus Crime Control and Safe Streets Act of
1968 (“Crime Control Act”), 34 U.S.C. § 10231, and only the latter statute provides for
nondisclosure under FOIA’s Exemption 3. Gannett I, 2023 WL 2682121, at *5-9. After that
decision, defendant produced to plaintiff requested information, with redactions, only for the
period when the DCRA was authorized, while production of responsive information during the
period when the DCRA’s authorization lapsed was stayed to allow defendant to seek partial
reconsideration of Gannett I, based on the lapsed authorization issue recognized by the Court in
that decision, but not raised by the parties.
Both parties now move for summary judgment on the propriety of defendant’s redactions
to disclosed information, as well as the adequacy of defendant’s search for responsive records.
Def.’s Second Mot. for Summ. J. & for Partial Recons. (“Def.’s Mot.”), ECF No. 35; Pl.’s Second
Cross-Mot. for Summ. J. (“Pl.’s Cross-Mot.”), ECF No. 36. Defendant additionally moves for
partial reconsideration of Gannett I’s holding that rejected application of Exemption 3 to withhold
responsive records as covering the period when the DCRA’s authorization had lapsed and also
required disclosure of information submitted to BJS by local jails. Def.’s Mot.; Def.’s Mem. of P.
& A. in Supp. of Def.’s Second Mot. for Summ. J. & for Partial Recons. (“Def.’s Mem.”) at 28-
34, ECF No. 35-1. Defendant had failed to raise either issue during initial summary judgment
briefing.
For the reasons explained below, plaintiff’s cross-motion for summary judgment is granted
as to the inadequacy of the search and withholdings made by defendant in the disclosed
information, and defendant’s motion for summary judgment is denied. In addition, defendant’s
motion for partial reconsideration is granted, in part, to authorize withholding of responsive state
3 and local information collected during the period when DCRA authority had lapsed and the Crime
Control Act’s express confidentiality provision applied, and otherwise denied. In sum, defendant
must disclose the unredacted version of responsive records collected by the MCI program from
state and local authorities during the period between October 1, 2015, and the end of 2019, as well
as BOP data from the same period.
I. BACKGROUND
The statutory, factual, and procedural background relevant to the FOIA request and
pending cross-motions is described below.
A. Statutory Context
In 2000, Congress passed the Death in Custody Reporting Act of 2000 (“DCRA 2000”) to
“ensure that certain information regarding prisoners is reported to the Attorney General.” Pub. L.
No. 106-297, 114 Stat. 1045, 1045 (Oct. 13, 2000) (codified at 42 U.S.C. § 13704 (2000) (current
version at 34 U.S.C. § 12104)). This law mandated, as part of the eligibility requirements for
federal law enforcement grants provided to states from the Edward Byrne Memorial Justice
Assistance Grant (“JAG”) Program, that states “provide[] assurances that” they would report to
DOJ, in line with “guidelines established by the Attorney General,” “information regarding the
death of any person who is in the process of arrest, is en route to be incarcerated, or is incarcerated
at a municipal or county jail, State prison, or other local or State correctional facility (including
any juvenile facility).” Id. § 2(4); see also AG’s DCRA Report at 1. The law required states to
report to DOJ, at minimum, “the name, gender, race, ethnicity, and age of the deceased”; “the date,
time, and location of death”; and “a brief description of the circumstances surrounding the death.”
Pub. L. No. 106-297, § 2(4), 114 Stat. at 1045.
After DCRA 2000’s enactment, BJS established the Deaths in Custody Reporting Program,
later renamed the Mortality in Correctional Institutions (“MCI”) Program, to collect the required 4 data from states. AG’s DCRA Report at 2. When the statutory requirements of DCRA 2000
expired in 2006, BJS continued collecting this data through the MCI program, id., as well as adding
additional categories of data collection to the program, see Bureau of Just. Stats., Mortality in
Correctional Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP)):
Changes Over Time, https://bjs.ojp.gov/data-collection/mortality-correctional-institutions-mci-
formerly-deaths-custody-reporting-program#changes-over-time-0 (last visited Feb. 5, 2025).
In 2014, Congress reauthorized the statutory reporting requirements by passing DCRA
2013, which once again required states receiving certain federal law enforcement grants to “report
to the Attorney General” “information regarding the death of any person who is detained, under
arrest, or is in the process of being arrested, is en route to be incarcerated, or is incarcerated at a
municipal or county jail, State prison, State-run boot camp prison, boot camp prison that is
contracted out by the State, any State or local contract facility, or other local or State correctional
facility (including any juvenile facility).” Pub. L. No. 113-242, § 2(a), 128 Stat. at 2860. These
requirements took effect on October 1, 2015. See 34 U.S.C. § 60105(a) (explaining that the law
would have effect in “each fiscal year after the expiration of the period specified in subsection
(c)(1)”); id. § (c)(1) (giving states “not more than 120 days from December 18, 2014, to comply”
with the reporting requirement); 31 U.S.C. § 1102 (establishing that the federal fiscal year “begins
on October 1 of each year”); see also Def.’s Mem. at 6 (explaining the effective date of the statute).
DCRA 2013 requires states to report to DOJ the same minimum information about
individuals who die in custody as DCRA 2000, as well as “the law enforcement agency that
detained, arrested, or was in the process of arresting the deceased.” Pub. L. No. 113-242, § 2(b),
128 Stat. at 2860; see also 34 U.S.C. § 60105(b). For the first time, DCRA 2013 created a potential
penalty to help enforce the reporting requirements, authorizing the Attorney General, at his or her
5 “discretion,” to reduce by “not more than . . . 10[ ]percent . . . the funds that would otherwise be
allocated” through the associated grant programs to any state failing to comply. Pub. L. No. 113-
242, § 2(c)(2), 128 Stat. at 2861; 34 U.S.C. § 60105(c)(2). The law also added similar reporting
requirements for federal law enforcement agencies, Pub. L. No. 113-242, § 3, 128 Stat. at 2861-
62 (codified at 42 U.S.C. § 13727a (2014) (current version at 18 U.S.C. § 4001 note)), and directed
the Attorney General to conduct a study using the data collected and report the results to Congress
within two years of enactment of DCRA 2013, id. § 2(f); 34 U.S.C. § 60105(f). See also AG’s
DCRA Report at 3.
The MCI program continued collecting state data until the end of 2019, when the program
was discontinued, AG’s DCRA Report at 3-4, due to concerns that the enforcement and compliance
obligations established by DCRA 2013 were “incompatible with BJS’s authorizing statute,” which
permits data collected by BJS to be used only for statistical and research purposes and “precludes
their use for law enforcement or any purpose relating to a private person or public agency other
than statistical or research purposes,” id. at 4 (quoting 34 U.S.C. § 10134). 1 While the MCI
program, which collected the mortality data for the years from 2001 through 2019, see E. Ann
Carson, Mortality in State and Federal Prisons, 2001-2019 – Statistical Tables, Bureau of Just.
Stats. (Dec. 2021), https://bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf., was discontinued, the
same information required by DCRA 2013 is still being collected but is now reported to DOJ’s
Bureau of Justice Assistance (“BJA”), rather than BJS. AG’s DCRA Report at 4-5.
1 The AG’s Report indicates that MCI’s data collection ended at “the end of calendar year 2019.” AG’s DCRA Report at 4; see also Bureau of Just. Stats., Mortality in Correctional Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP)), https://bjs.ojp.gov/data-collection/mortality-correctional-institutions-mci- formerly-deaths-custody-reporting-program (last visited Feb. 5, 2025) (noting that program “finished collection of deaths that occurred during the 2019 calendar year”).
6 B. Plaintiff’s FOIA Request
On April 9, 2021, plaintiff submitted a two-part FOIA request to DOJ’s Office of Justice
Programs (“OJP”), seeking information collected by BJS under the MCI program from 2010
forward, specifically:
1. [A]ll information submitted to BJS under the Mortality in Correctional Institutions program. This includes information contained in submissions of BJS Forms CJ-9 and CJ-10 and any other data elements states are required to provide under 34 USC 60105, from 2010 through the date on which my request is processed. If this information is stored in a tabular database format, please provide a copy to me in tabular, sortable form such as comma-separated values (CSV). If the information exists ONLY as a paper or PDF form submission, please provide PDF copies. To be clear, I am requesting data on the deaths of individual inmates, not the summaries of inmate deaths published on the BJS website.
2. [A] copy of any data dictionary, record layout or other documentation that describes elements contained in the electronic database requested above.
Def.’s Statement of Material Facts as to Which There is No Genuine Issue in Supp. of its Second
Mot. for Summ. J. (“Def.’s SUMF”) ¶ 1, ECF No. 35-2; Pl.’s Resp. to Def.’s Statement of Material
Facts as to Which There is No Genuine Issue in Supp. of its Second Mot. for Summ. J. (“Pl.’s
Resp. to Def.’s SUMF”) ¶ 1, ECF No. 36-3. 2
On April 13, 2021, OJP acknowledged receipt of plaintiff’s FOIA request and informed
plaintiff that all 236,568 pages of potentially responsive records located by BJS were being
withheld subject to FOIA Exemption 3, 5 U.S.C. § 552(b)(3), citing the confidentiality provision
2 The FOIA request references BJS Form CJ-9, which reports information on the death of an inmate “Under Jail Jurisdiction,” and CJ-10, which reports information on the death of an inmate in a “Private [or] Multi- Jurisdictional Jail[].” Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem. Supp. 1st Mot. Summ. J.”) at 7, ECF No. 12-1. In addition, the FOIA request references 34 U.S.C. § 60105, the current codification of DCRA 2013, which in subparagraph (a), requires reporting, in relevant part, “regarding the death of any person who is detained, under arrest, or is in the process of being arrested, is en route to be incarcerated, or is incarcerated at a municipal or county jail, State prison, State-run boot camp prison, boot camp prison that is contracted out by the State, any State or local contract facility, or other local or State correctional facility (including any juvenile facility).” 34 U.S.C. § 60105(a).
7 of the Crime Control Act, 34 U.S.C. § 10231. Def.’s SUMF ¶¶ 4, 10; Pl.’s Resp. to Def.’s SUMF
¶¶ 4, 10. On April 14, 2021, plaintiff appealed OJP’s decision to withhold these records to DOJ’s
Office of Information Policy, see Def.’s SUMF ¶ 11; Pl.’s Resp. to Def.’s SUMF ¶ 11, which
affirmed OJP’s initial withholding decision, see Pl.’s Opp’n, Decl. of James Douglas Caruso, Data
Editor, USA Today (“Caruso Decl.”) ¶ 9, Ex. 4, ECF No. 36-5.
C. Procedural History
Plaintiff filed the instant complaint on February 23, 2022, seeking to compel defendant to
produce the requested records and alleging that defendant “refused to release non-exempt
information under Exemption 3.” Compl. ¶ 1, ECF No. 1. After defendant re-asserted, in its
answer, that the information was exempt from disclosure, see Def.’s Answer to Pl.’s Compl.,
Defenses ¶ 1, ECF No. 7, the parties agreed to seek resolution of defendant’s invocation of
Exemption 3 before litigating other potential issues, including whether other FOIA exemptions
might apply, see Joint Status Report at 1-2, ECF No. 10, which joint request was granted, see Min.
Order (May 31, 2022). Each party moved for summary judgment on the propriety of defendant
categorically withholding the records responsive to plaintiff’s request pursuant to FOIA
Exemption 3, see Def.’s Mot. for Summ. J., ECF No. 12; Pl.’s Cross-Mot. for Summ. J., ECF No.
13 (“Pl.’s 1st Cross-Mot.”), and summary judgment was granted to plaintiff. This Court held that
defendant’s “withholding [was] improper” under Exemption 3, Order, ECF No. 20, since the data
was furnished to BJS under the DCRA rather than the Crime Control Act, see Gannett I, 2023 WL
2682121, at *5-6, 10. In so holding, the gap in DCRA authority between the expiration of DCRA
2000 and the enactment of DCRA 2013 was noted but, since “[n]either party raise[d] that plaintiff
requests information during a time when no DCRA reporting requirement was in effect,” this issue
was “not address[ed].” Id. at *9 n.3.
8 Citing the gap in DCRA authority first highlighted by the Court, see id., defendant moved
for partial reconsideration, requesting clarification that the summary judgment granted to plaintiff
“does not apply to any records submitted to the Bureau of Justice Statistics . . . between 2010 . . .
and the effective date of the Death in Custody Reporting Act of 2013 . . ., and to any records
submitted to BJS by local, as opposed to state, agencies.” Def.’s Partial Mot. for Recons. of Partial
Summ. J. with Respect to Exemption 3 and for a Partial Stay of Production (“Def.’s 1st Recons.
Mot.”) at 1, ECF No. 27. Defendant also requested a partial stay of “its obligation to produce the
records . . . pending resolution of the [reconsideration] motion.” Id. The partial stay request was
granted, over plaintiff’s objection. See Min. Order (Oct. 3, 2023); Def.’s 1st Recons. Mot. at 1
(noting plaintiff’s objection to “all relief sought in this motion”). Defendant’s stand-alone motion
for partial reconsideration was denied, without prejudice, and the partial stay on defendant’s
production obligation was kept in place, for any reconsideration arguments to be addressed in the
next round of summary judgment briefing, see Min. Order (Feb. 22, 2024), which had been
scheduled to address the remaining issues in the case, see Min. Order (Feb. 9, 2024).
Defendant then produced to plaintiff the responsive records not subject to the partial stay,
with portions withheld, pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b)(6), (7)(C).
Def.’s Mem. at 9. According to defendant, the redactions were made using what it calls the “k-
anonymity” de-identification method, to protect against the disclosure of the identity of any of the
deceased individuals in the dataset to protect their privacy. See id. at 10-14; Def.’s Mem., Decl.
of Amy Lauger, Senior Statistician, BJS (“Lauger Decl.”), ECF No. 35-4. 3
Adhering to the schedule proposed by the parties and adopted by the Court, see Joint Status
Report, ECF No. 33; Min. Order (Feb. 9, 2024), the parties subsequently briefed summary
3 The Lauger Declaration outlines the specific methodology used and steps taken to redact the data. See Lauger Decl. ¶¶ 4-24.
9 judgment on the remaining issues in this case, addressing the adequacy of defendant’s search and
propriety of defendant’s invocation of FOIA Exemptions 6 and 7(C) for withholdings in the data
produced to plaintiff, as well as defendant’s renewed motion for partial reconsideration. See
generally Def.’s Mot.; Pl.’s Cross-Mot.; Def.’s Mem.; Pl.’s Opp’n; Def.’s Mem. in Opp’n to Pl.’s
Mot. for Summ. J. & Reply in Supp. of Def.’s Second Mot. for Summ. J. & for Partial Recons.
(“Def.’s Reply”), ECF No. 39; Pl.’s Reply in Supp. of its Second Cross-Mot. for Summ. J. (“Pl.’s
Reply”), ECF No. 41. These motions are now ripe for consideration.
II. LEGAL STANDARD
A. Summary Judgment
Federal Rule of Civil Procedure 56 entitles a party to summary judgment “only if there is
no genuine issue of material fact and judgment in the movant’s favor is proper as a matter of law.”
Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (citation omitted); see also Fed.
R. Civ. P. 56(a). Most FOIA cases “can be resolved on summary judgment.” Brayton v. Off. of
the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
FOIA “requires federal agencies to make records publicly available upon request unless
one of nine exemptions applies.” Emuwa v. U.S. Dep’t of Homeland Sec., 113 F.4th 1009, 1012
(D.C. Cir. 2024). The law balances two important-but-sometimes competing interests: “pierc[ing]
the veil of administrative secrecy” to “open agency action to the light of public scrutiny,” Cabezas
v. FBI, 109 F.4th 596, 602 (D.C. Cir. 2024) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
(1991)), and protecting “legitimate governmental and private interests [that] could be harmed by
release of certain types of information,” Jud. Watch, Inc. v. U.S. Dep’t of Def., 913 F.3d 1106,
1108 (D.C. Cir. 2019) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)). To accommodate
both goals, FOIA’s nine enumerated exemptions “are to be ‘narrowly construed,’” Cabezas, 109
F.4th at 602 (quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 565 (2011)), but still given 10 “meaningful reach and application,” id. (quoting John Doe Agency v. John Doe Corp., 493 U.S.
146, 152 (1989)).
The federal agency invoking a FOIA exemption to withhold requested information bears
the burden of establishing that the claimed exemption applies. Watkins L. & Advoc., PLLC v. U.S.
Dep’t of Justice, 78 F.4th 436, 450 (D.C. Cir. 2023). To satisfy this burden, “courts may rely on
non-conclusory agency affidavits demonstrating the basis for withholding if they are not
contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.” Reps.
Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 361 (D.C. Cir. 2021) (citation omitted). To
warrant a grant of summary judgment in the agency’s favor, the submitted affidavits, even if not
contradicted, must “describe[] the justifications for withholding the information with specific
detail” and “demonstrate[] that the information withheld logically falls within the claimed
exemption.” DiBacco v. U.S. Dep’t of the Army, 926 F.3d 827, 834 (D.C. Cir. 2019) (citation,
internal quotation marks omitted). “Ultimately, an agency’s justification for invoking a FOIA
exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Jud. Watch, Inc. v. U.S. Dep’t of
Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619
(D.C. Cir. 2011)).
B. Reconsideration
Under Federal Rule of Civil Procedure 54(b), “any order or other decision . . . that
adjudicates fewer than all the claims . . . may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and responsibilities.” In contrast to a motion
for reconsideration pursuant to Rule 59(e), which governs post-judgment motions for
reconsideration, “Rule 54(b)’s approach to the interlocutory presentation of new arguments as the
case evolves can be more flexible, reflecting the ‘inherent power of the rendering district court to
afford such relief from interlocutory judgments as justice requires.’” Cobell v. Jewell, 802 F.3d 11 12, 25 (D.C. Cir. 2015) (quoting Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d 19, 22 (1st
Cir. 1985) (Breyer, J.)); see also Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d
217, 227 (D.C. Cir. 2011) (“Rule 54(b) . . . not only authorizes the court to enter a partial final
judgment but also recognizes its inherent power to reconsider an interlocutory order ‘as justice
requires.’” (quoting Greene, 764 F.2d at 22)).
“Despite the imprecision of the ‘as justice requires’ standard, ‘it is clear that courts have
more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate
under Rules 59(e) and 60(b).’” Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26, 30 (D.D.C. 2013),
aff’d sub nom. Wannall v. Honeywell, Inc., 775 F.3d 425 (D.C. Cir. 2014) (internal quotation marks
omitted) (quoting Cobell v. Norton, 224 F.R.D. 226, 272 (D.D.C. 2004)). “‘The considerations
embedded in the as justice requires standard leave a great deal of room for the court’s discretion’
and, accordingly, the standard amounts to a determination ‘whether relief upon reconsideration is
necessary under the relevant circumstances.’” Hisp. Affs. Project v. Perez, 319 F.R.D. 3, 6 (D.D.C.
2016) (quoting Wannall, 292 F.R.D. at 30). Courts may not grant reconsideration under Rule 54(b)
without limits, however; “once the parties have ‘battled for the court’s decision, they should
neither be required, nor without good reason permitted, to battle for it again.’” Id. (quoting
Wannall, 292 F.R.D. at 30-31).
III. DISCUSSION
The parties raise four issues for resolution in this long-pending matter, regarding: (1) the
adequacy of defendant’s search for records responsive to plaintiff’s FOIA request; (2) the propriety
of defendant’s invocation of FOIA Exemptions 6 and 7(C) to redact data disclosed to plaintiff; (3)
the propriety of defendant’s invocation of Exemption 3 to withhold responsive records—requested
from 2010 to the date of the processing of plaintiff’s FOIA request—that were collected by BJS
12 in the MCI program during the lapse in authorization of DCRA 2000 until the effective date of
DCRA 2013, i.e. the period of 2010 (the start date for responsive records in plaintiff’s FOIA
request) through October 1, 2015; and (4) the propriety of defendant’s invocation of Exemption 3
to withhold data submitted by local jails to the MCI program. Each issue will be considered in
turn.
A. Defendant’s Search Was Inadequate
The first step in assessing the adequacy of an agency’s search is “ascertain[ing] the scope
of the [FOIA] request itself.” Clemente v. FBI, 867 F.3d 111, 116 (D.C. Cir. 2017) (first alteration
in original) (quoting Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 889 (D.C.
Cir. 1995)). Agencies are required to make available nonexempt agency records upon receipt of a
request that “reasonably describes such records,” 5 U.S.C. § 552(a)(3)(A)(i), so that “the agency
is able to determine precisely what records are being requested,” Tax Analysts v. IRS, 117 F.3d 607,
610 (D.C. Cir. 1997) (quoting Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996)).
In determining which records fall within the scope of the request, an agency is generally “not
obliged to look beyond the four corners of the request for leads to the location of responsive
documents,” Kowalczyk, 73 F.3d at 389, but “[t]his is not to say that the agency may ignore what
it cannot help but know,” id. In other words, an agency may not narrowly construe a request when
the agency knows better about the intended scope of requested records. Thus, for example, when
a plaintiff’s request for records is “not a model of clarity” but is “reasonably susceptible to
[a] broader reading” than the agency's interpretation, the broader reading applies, LaCedra v. Exec.
Off. for U.S. Att’ys, 317 F.3d 345, 348 (D.C. Cir. 2003), particularly “[i]n view of the Government’s
obligation . . . ‘to construe a FOIA request liberally,’” id. (quoting Nation Mag., 71 F.3d at 890);
PETA v. Nat’l Insts. of Health, 745 F.3d 535, 540 (D.C. Cir. 2014) (explaining the same). This
precedent ensures that “federal agencies may not use the ‘reasonably describes’ requirement to 13 deny the public access to responsive records.” Pub. Emps. for Env't Resp. v. U.S. EPA, 314 F.
Supp. 3d 68, 74 (D.D.C. 2018). As the D.C. Circuit has succinctly stated, “[w]e do not require
technical precision in FOIA requests, and a request certainly should not fail where the agency knew
or should have known what the requester was seeking all along.” Inst. for Just. v. IRS, 941 F.3d
567, 572 (D.C. Cir. 2019).
Next, when performing the search for records within the determined scope, the agency
must use “methods which can be reasonably expected to produce the information requested.”
Watkins L. & Advoc., 78 F.4th at 442 (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990)). Therefore, to establish the adequacy of a search, the government must
“demonstrate beyond material doubt that its search was reasonably calculated to uncover all
relevant documents.” Id. (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.
Cir. 1999)).
Here, plaintiff’s challenge to the adequacy of defendant’s search rests on the parties’
dispute about whether BOP data submitted to BJS are records “relevant” to plaintiff’s FOIA
request. See Pl.’s Opp’n at 28; Def.’s Reply at 29; Pl.’s Reply at 21-24. Plaintiff argues that this
BOP data is relevant and thus “must [be] produce[d].” Pl.’s Reply at 21. Defendant, meanwhile,
concedes that no search “for records submitted by federal law enforcement agencies (including the
Bureau of Prisons)” was conducted, Def.’s Reply, Second Decl. of Elizabeth Ann Carson, Branch
Chief of Preparedness Statistics, Office of Homeland Security Statistics, Department of Homeland
Security, & former Statistician, BJS (“2nd Carson Decl.”) ¶ 4, ECF No. 39-4, and argues that BOP
records are not relevant to the FOIA request at issue because “BJS never collected MCI data from
BOP,” Def.’s Reply at 29 (citing 2nd Carson Decl. ¶ 5).
14 To be sure, plaintiff’s FOIA request specifically asked for “all information submitted to
BJS under the [MCI] program.” Def.’s SUMF ¶ 1; Pl.’s Resp. to Def.’s SUMF ¶ 1. Normally,
defendant’s declaration that “BJS never collected MCI data from the Federal Bureau of Prisons,”
2nd Carson Decl. ¶ 5, would be dispositive in defendant’s favor, since, if BOP data was never
collected by the MCI program, such data would not fall within the four corners of plaintiff’s FOIA
request. Plaintiff, however, argues such a result would be “inequitable,” Pl.’s Reply at 23, because
plaintiff’s understanding that the MCI program included BOP data was due to “false information”
on defendant’s “own website,” id. at 22, and defendant, despite being on notice about plaintiff’s
understanding about the scope of the MCI program’s data collections for more than two years,
“fail[ed] to correct” this erroneous information, id. at 23. This Court agrees with plaintiff.
The factual chronology underlying this dispute over the scope of the search conducted to
respond to the FOIA request suggests, at best, sloppiness and inaccuracy on the part of defendant
in publicly posted information and in exercising good faith efforts to respond to a FOIA request,
or, at worst, intentional obfuscation over the course of this litigation. The circumstances here
certainly do not flatter defendant. Plaintiff’s initial motion for summary judgment quoted a public
DOJ website describing the MCI program as collecting “inmate death records from each of the
nation’s 50 state prison systems, Federal Bureau of Prisons, and approximately 2,800 local jail
jurisdictions.” Pl.’s 1st Cross-Mot. at 4-5 (emphasis supplied) (quoting Bureau of Just. Stats.,
Mortality in Correctional Institutions (MCI) (Formerly Deaths in Custody Reporting Program
(DCRP)), https://bjs.ojp.gov/data-collection/mortality-correctional-institutions-mci-formerly-
deaths-custody-reporting-program [hereinafter MCI Webpage] (last visited Feb. 5, 2025)). As of
the issuance of this decision, defendant’s website still states the same information. Based on this
public representation from DOJ, plaintiff reasonably and logically assumed that BOP data was
15 included within the scope of its FOIA request seeking data from the MCI program. See Pl.’s Reply
at 23 (noting that plaintiff “has been under the impression throughout this litigation that Bureau of
Prisons data is part of the MCI program and thus responsive to the request,” based in part on
“DOJ’s representations . . . on the MCI Webpage”). Defendant made no effort to correct or
otherwise clarify the scope of the data collected by the MCI program in the first round of summary
judgment briefing. See generally Def.’s Mem. in Opp’n to Pl.’s Mot. for Summ. J. & Reply in
Supp. of Def.’s Mot. for Summ. J. (“Def.’s 1st Summ. J. Reply”), ECF No. 17. Thus, relying on
this public DOJ website and the parties’ briefing, this Court construed, in the first paragraph of
Gannett I, granting summary judgment to plaintiff on defendant’s invocation of FOIA Exemption
3, plaintiff’s FOIA request as seeking “data regarding individual-level information on the deaths
of incarcerated people in the custody of local jails, state prisons, and the Federal Bureau of
Prisons.” Gannett I, 2023 WL 2682121, at *1 (emphasis supplied) (internal quotation marks,
citation omitted). Even after the issuance of Gannett I, defendant did not correct or clarify the
scope of plaintiff’s FOIA request or MCI’s data collection either with the Court nor, apparently,
in conferral with plaintiff. See generally Joint Status Reports, ECF Nos. 22, 23, 24, 25, 26. Such
conferral would have allowed plaintiff to amend the FOIA request or file a new FOIA request for
BOP data submitted to BJS on the same topic regarding individuals who die in the custody of law
enforcement. See Pl.’s Reply at 23.
Instead, six months later, and more than a year after plaintiff first cited the DOJ webpage
in its brief, defendant moved for partial reconsideration, Def.’s 1st Recons. Mot., and included in
its briefing two footnotes totaling three sentences discussing this issue. The first footnote
discussed the creation of a reporting requirement for “federal law enforcement agencies” in DCRA
2013 and noted that BJS created a separate collection program for “arrest-related deaths and deaths
16 in custody information from federal law-enforcement agencies from federal fiscal year 2016
onwards” that “is distinct from the MCI data collection specified in Plaintiffs’ FOIA request, and
thus is not at issue in this case,” id. at 5 n.10, and the second footnote stated that “[d]ata collected
from federal law enforcement agencies is not responsive to the FOIA request because it was not
collected under the MCI program,” id. at 9 n.11. Neither footnote specifically mentioned BOP or
addressed plaintiff’s explicitly-stated understanding of the scope of its FOIA request as including
BOP data, and neither footnote made clear that, no matter how federal law enforcement data was
collected, this data would not at any point be reported to or included in the MCI program. See id.
at 5 n.10, 9 n.11. Moreover, the footnotes failed to mention that the public description of the scope
of MCI data collections on the MCI Webpage was patently incorrect, an omission that only
compounded the confusion because defendant’s briefing provided conflicting information, quoting
the MCI Webpage, and the allegedly incorrect information, itself: “MCI collected data directly
from ‘each of the nation’s 50 state prison systems, Federal Bureau of Prisons, and approximately
2,800 local jail jurisdictions.’” Id. at 2 (emphasis supplied) (quoting MCI Webpage).
When plaintiff raised this inconsistency in opposition, see Pl.’s Opp’n to Def.’s Partial
Mot. for Recons. of Partial Summ. J. with Respect to Exemption 3 and for a Partial Stay of
Production (“Pl.’s Opp’n 1st Mot. Recons.”) at 2, 3, 4, 5, 15-16, ECF No. 29, and renewed its
argument that the MCI program “d[id] in fact collect BOP data,” id. at 16, and thus defendant was
obligated to produce this data, id. at 15-16, defendant still did not clarify the scope of the MCI
program. Instead, defendant dismissed this issue as not presented by the reconsideration motion
and argued the Court had never decided whether BOP data was responsive to plaintiff’s FOIA
request. Def.’s Reply in Supp. of Partial Mot. for Recons. of Partial Summ. J. with Respect to
Exemption 3 (“Def.’s 1st Recons. Reply”) at 14-15, ECF No. 30. To the contrary, this Court had
17 understood, as had plaintiff, that BOP data was submitted to BJS, was part of the MCI program
used for analysis and reporting by the Attorney General, as indicated in the MCI Webpage, and
was subject to the FOIA request, as stated in the first paragraph of Gannett I. 2023 WL 2682121,
at *1.
In its opening brief in support of the instant motion for summary judgment, defendant
posited that an adequate search was conducted without further addressing the issue of BOP data
or otherwise clarifying the scope of the MCI program’s data collection, see Def.’s Mem. at 15-16
(failing to raise the issue), despite having been on notice of plaintiff’s understanding of the MCI
program’s scope for roughly a year and a half, see, e.g., Pl.’s 1st Cross-Mot. at 4-5; Gannett I, 2023
WL 2682121, at *1. 4 After this search was challenged as inadequate for failing to search for BOP
data submitted to BJS and included in the MCI program, see Pl.’s Opp’n at 28, defendant, in reply,
for the first time represented that “BJS never collected MCI data from BOP,” and characterized
the statement on the DOJ website to the contrary as a mere “clerical error.” Def.’s Reply at 29;
see also 2nd Carson Decl. ¶ 4 (“I did not search for records submitted by federal law enforcement
agencies (including the Bureau of Prisons) because BJS never collected records from federal law
enforcement agencies under the MCI program.”); id. ¶ 5 (“The statement on the BJS webpage
referenced by the Plaintiff . . . is a clerical error because BJS never collected MCI data from the
Federal Bureau of Prisons.”). 5 Notably, this “clerical error” with erroneous information about the
scope of the MCI program’s data collection persists. See MCI Webpage.
4 Defendant’s brief did include a footnote with the identical language as the first footnote discussed above in defendant’s first motion for partial reconsideration. See Def.’s Mem. at 6 n.10. 5 Neither defendant’s brief nor its supplementary declaration acknowledge that defendant previously cited the same language about the scope of MCI’s data collection from the DOJ webpage. See Def.’s 1st Recons. Mot. at 2 (“MCI collected data directly from ‘each of the nation’s 50 state prison systems, Federal Bureau of Prisons, and approximately 2,800 local jail jurisdictions,’ whereas DCRA 2000 only required reporting by states.” (quoting MCI Webpage)).
18 Plaintiff’s argument that the Court “should not entertain [defendant]’s belated argument,”
Pl.’s Reply at 22, because of the “prejudice[]” plaintiff has suffered, id. at 23, is well-placed. While
defendant is not required to wantonly search for information outside the four corners of plaintiff’s
FOIA request, see Kowalczyk, 73 F.3d at 389, the agency does have an obligation to “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,” Watkins L. & Advoc., 78 F.4th at
442 (emphasis supplied) (quoting Oglesby, 920 F.2d at 68), which understanding must be
construed broadly, PETA, 745 F.3d at 540. Furthermore, defendant’s own FOIA regulations
impose a “duty to confer” with plaintiff “to clear up any confusion” about the scope of the
information sought by the request. Tokar v. U.S. Dep’t of Justice, 304 F. Supp. 3d 81, 92 (D.D.C.
2018) (citing 28 C.F.R. § 16.3(b)). In the circumstances of this case, any reasonable definition of
scope of the records sought by plaintiff should have included BOP data.
For roughly two and a half years, since the filing of plaintiff’s first cross-motion for
summary judgment, see Pl.’s 1st Cross-Mot., plaintiff has clearly communicated its understanding
that the request for “all information submitted to BJS under the [MCI] program,” Def.’s SUMF ¶
1; Pl.’s Resp. to Def.’s SUMF ¶ 1, includes BOP data, see Pl.’s 1st Cross-Mot. at 4-5; Pl.’s Opp’n
1st Mot. Recons. at 2, 3, 4, 5, 15-16, which view was adopted by the Court in reliance on the
parties’ briefing, Gannett I, 2023 WL 2682121, at *1. Plaintiff’s understanding of the scope of its
request was not based merely on its own erroneous understanding of BJS’s data collection
programs but instead on information provided publicly by DOJ on the MCI Webpage, and relied
on by plaintiff, see Pl.’s 1st Cross-Mot. at 4-5 (quoting MCI Webpage); Pl.’s Reply at 23 (pointing
out plaintiff’s belief “throughout this litigation that Bureau of Prisons data is part of the MCI
program and thus responsive to [its FOIA] request,” based in part on “DOJ’s representations . . .
19 on the MCI Webpage”). Rather than correcting plaintiff’s understanding, based on defendant’s
own error, through conferral or a court filing, defendant did not act to clarify the information,
resulting in plaintiff continuing to litigate for BOP records in this case rather than filing “a separate
FOIA request for [that] data” or seeking alternative solutions. Pl.’s Reply at 23. Defendant cannot
now, in fairness, be allowed to wash its hands of the issue and walk away so easily, claiming the
misunderstanding is “simply a clerical error.” Def.’s Reply at 29.
In these circumstances, defendant cannot “ignore what it cannot help but know,”
Kowalczyk, 73 F.3d at 389—that plaintiff sought BOP records submitted to BJS through the FOIA
request in this case. Any misunderstanding by plaintiff of the scope of the MCI program’s data
collections was the result of defendant’s own erroneous public representations that defendant
failed to clarify over almost two years of active litigation. Given defendant’s duty to “construe
[the] FOIA request liberally,” PETA, 745 F.3d at 540 (quoting Nation Mag., 71 F.3d at 890), and
make “a good faith effort to conduct a search for” the records requested by plaintiff, Watkins L. &
Advoc., 78 F.4th at 442 (citation omitted), defendant’s failure to search for BOP data submitted to
BJS, see 2nd Carson Decl. ¶ 4, renders defendant’s search inadequate.
B. Defendant’s Redactions Are Not Justified
Next, defendant asserts that FOIA Exemptions 6 and 7(C) were properly invoked to redact
the data so far produced to plaintiff, to protect the identities of those who died in custody. Def.’s
Mem. at 17-28; Def.’s Reply at 3-20. Plaintiff counters that Exemption 7(C) does not apply to the
data at issue and that the redactions made by defendant are not justified by Exemption 6, Pl.’s
Opp’n at 11-27; Pl.’s Reply at 2-21. Plaintiff is correct as to both exemptions.
1. Exemption 7(C)
FOIA Exemption 7(C) protects from disclosure “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records 20 or information . . . could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7), (7)(C). To withhold responsive records, pursuant to Exemption
7(C), the government must first “make a threshold showing that the FOIA request seeks records
‘compiled for law enforcement purposes,’” Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 64 (D.C.
Cir. 2018) (quoting Jefferson v. Dep’t of Justice, Off. of Pro. Resp., 284 F.3d 172, 176 (D.C. Cir.
2002)); see also Shapiro v. U.S. Dep’t of Justice, 893 F.3d 796, 800 (D.C. Cir. 2018) (citing Pratt
v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)), which requires the government to “produce
evidence” sufficient to allow a court to “make [this] required threshold evidentiary determination,”
Jefferson, 284 F.3d at 179 (citing King v. U.S. Dep’t of Justice, 830 F.2d 210, 217-18 (D.C. Cir.
1987)). Although law enforcement agencies are entitled to some deference when invoking
Exemption 7, see, e.g., Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (citing
Pratt, 673 F.2d at 419), declarations relied on to justify this exemption must still “establish a
rational ‘nexus between the investigation and one of the agency’s law enforcement duties,’” and
also identify “a connection between an ‘individual or incident and a possible security risk or
violation of federal law,’” id. (citing Pratt, 673 F.2d at 420, 421); see also Clemente, 867 F.3d at
119 (citing Campbell, 164 F.3d at 32).
Here, BJS does not specialize in law enforcement. To the contrary, “BJS’s enabling statute
expressly forbids it from compiling data for law enforcement purposes.” Pl.’s Mem. at 4 (citing
AG’s DCRA Report at 4); see also 34 U.S.C. § 10134 (“Data collected by the Bureau shall be used
only for statistical or research purposes, and shall be gathered in a manner that precludes their use
for law enforcement . . .”); Def.’s Mem. at 6 n.10 (acknowledging this limitation on BJS). Thus,
defendant’s invocation of Exemption 7(C) to shield BJS records from disclosure “merits no
deference.” Bartko, 898 F.3d at 64 (finding that DOJ’s Office of Professional Responsibility
21 records compiled for employment-supervision purposes did not meet threshold requirement for
Exemption 7(C)).
In any event, the record is devoid of any factual evidence to satisfy defendant’s burden of
showing the data at issue was compiled for law enforcement purposes. The only evidence offered
to support defendant’s invocation of Exemption 7(C) is a single paragraph in one declaration,
asserting that Exemption 7(C) was properly invoked “[b]ecause the information contained in the
requested MCI data concerns information compiled for law enforcement purposes (correctional
institutions).” Lauger Decl. ¶ 26. 6 This declaration provides no factual information describing the
existence of a law enforcement investigation or linking any of the data requested by plaintiff to
any such investigation. Cf, e.g., Clemente, 867 F.3d at 120 (describing statements in a declaration
that would sufficiently “demonstrate [this] requisite connection”). In short, defendant has put
forward no factual information to support a finding that any, much less all, of the data at issue was
gathered for a law enforcement purpose. Defendant’s ipse dixit explanation is insufficient to
support Exemption 7(C). See Lauger Decl. ¶ 26 (declaring that Exemption 7(C) applies because
the records were “compiled for law enforcement purposes”). Such a “conclusory statement” is
“alone inadequate” to support a finding that records were created, gathered, or used for a law
enforcement purpose, Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 38 (D.D.C. 2003); see
also Campbell, 164 F.3d at 32, as would be required to uphold defendant’s invocation of
Exemption 7(C), see Jefferson, 284 F.3d at 179, since a government agency “cannot rely on a bare
6 None of defendant’s other declarations address the basis for invoking Exemption 7(C). See Def.’s Mem., Decl. of Elizabeth Ann Carson, Branch Chief of Preparedness Statistics, Office of Homeland Security Statistics, Department of Homeland Security, & former Statistician, BJS (“Carson Decl.”), ECF No. 35-3; Decl. of Kevin M. Scott, PH.D., Principal Deputy Director & Acting Director, BJS (“Scott Decl.”), ECF No. 35-5; Def.’s Reply, Second Decl. of Amy Lauger, Senior Statistician, BJS (“2nd Lauger Decl.”), ECF No. 39-3; 2nd Carson Decl.
22 assertion to justify invocation of an exemption from disclosure” under FOIA, id. at 178 (citation
omitted).
Nor can defendant prevail merely because the data sought was originally collected by
“correctional institutions,” as the Lauger Declaration seems to suggest. Lauger Decl. ¶ 26. “Not
every document compiled by a law enforcement agency satisfies the law enforcement purpose
inquiry.” Pinson v. Dep’t of Justice, 236 F. Supp. 3d 338, 364 (D.D.C. 2017) (citing Am. Immigr.
Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 245-46 (D.D.C. 2013), and
Benavides v. Bureau of Prisons, 774 F. Supp. 2d 141, 146-47 (D.D.C. 2011)); see also Benavides,
774 F. Supp. 2d at 145 (“The fact that the relevant agency’s principal purpose is the enforcement
of criminal law does not absolve it of its obligation to demonstrate that the records at issue were
compiled for a law enforcement purpose.” (citing Pratt, 673 F.2d at 416)). Instead, “[t]o meet the
agency’s burden . . ., the declarations must establish a connection between the assertedly exempt
records and an inquiry into ‘a possible security risk or violation of federal law.’” Clemente, 867
F.3d at 119 (quoting Pratt, 673 F.2d at 420-21). In other words, they must contain evidence. See,
e.g., Watkins L. & Advoc., 78 F.4th at 450 (“[T]he government bears the burden of establishing
that a FOIA exemption applies”); Maydak, 254 F. Supp. 2d at 38 (“If the agency’s declaration fails
to supply facts in sufficient detail to apply the Pratt rational nexus test, then a court may not grant
summary judgment for the agency.” (emphasis supplied) (alterations accepted, internal quotation
marks omitted) (quoting Quinon v. FBI, 86 F.3d 1222, 1229 (D.C. Cir. 1996)). Since defendant
has failed to produce any evidence to support its invocation of Exemption 7(C), and since the
record therefore contains no dispute of material facts on this question, summary judgment must be
granted to plaintiff. 7
7 Defendant makes several broad arguments about why Exemption 7(C) applies, including that “[r]ecords concerning the circumstances of an inmate’s death obviously and necessarily are linked to a particular individual
23 2. Exemption 6
FOIA Exemption 6 protects from disclosure “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). “The ‘primary purpose’ of Exemption 6 is to ‘protect individuals from the
injury and embarrassment that can result from the unnecessary disclosure of personal
information.’” Hum. Rts. Def. Ctr. v. U.S. Park Police, --- F. 4th ---, No. 23-5236, 2025 WL
286516, at *2 (D.C. Cir. Jan. 24, 2025) (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S.
595, 599 (1982)).
This Circuit generally follows a “two-step process when considering withholdings or
redactions under Exemption 6.” Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830 F.3d
667, 673 (D.C. Cir. 2016) (citation omitted). The first step involves a determination of whether
the withheld or redacted material constitutes “personnel[, . . .] medical[, . . .] [or] similar files” as
protected by the statute. 5 U.S.C. § 552(b)(6). “The phrase ‘similar files’ has been construed to
and incident subject to investigation.” Def.’s Reply at 3. As a factual matter, this unsupported assertion is not as “obvious[]” or “necessar[]y” as defendant claims. For instance, investigations may be unlikely as to the 13,504 inmate deaths attributed to illness, see Pl.’s Opp’n at 14, and, as plaintiff suggests, it is at least plausible that, “given the history of the MCI Program . . . states compiled [the comprehensive] data [at issue in this case] only because federal law required them to or the federal government asked [them] to,” id. at 12-13. This reality easily distinguishes the records sought in this case from those at issue in the main cases cited by defendant, see Def.’s Mem. at 18 (citing Pinson, 236 F. Supp. 3d at 365; Mingo v. U.S. Dep’t of Justice, 793 F. Supp. 2d 447, 453 (D.D.C. 2011); Holt v. U.S. Dep’t of Justice, 734 F. Supp. 2d 28, 41 (D.D.C. 2010)), in which cases the records sought related directly to specific incidents of “wrongful conduct within the prison,” Pinson, 236 F. Supp. 3d at 365, such as “an altercation involving over 50 inmates,” Mingo, 793 F. Supp. 2d at 453, or “an inmate-on-inmate assault,” Holt, 734 F. Supp. 2d at 41 (citation omitted), that were under express investigation, see Mingo, 793 F. Supp. 2d at 453; Holt, 734 F. Supp. 2d at 41. By contrast here, no such evidence exists linking any, much less all, of the records sought to an investigation. Cf. Appeal, Inc. v. U.S. Dep’t of Justice’s Off. of Just. Programs, No. 5:22-cv-02111- WLH-SK, 2024 WL 4868282, at *6 (C.D. Cal. Oct. 15, 2024) (holding the same in a case seeking the same data). Moreover, for the purposes of summary judgment, such unsupported assertions made only in a brief are not evidence, see Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 613 (D.C. Cir. 2019) (citation omitted) (noting that, where an “affidavit or other evidence” is required, legal briefs “are not evidence”), and precedent makes clear that the government bears the burden to prove such an investigation actually exists and relates to the specific information the government seeks to withhold. See, e.g., Campbell, 164 F.3d at 32 (citing Pratt, 673 F.2d at 420, 421); Bartko, 898 F.3d at 64 (citation omitted); Jefferson, 284 F.3d at 179; Clemente, 867 F.3d at 119. In this case, as plaintiff correctly argues, “[t]here is simply no evidence that the states compiled or used any of the data for law enforcement purposes.” Pl.’s Opp’n at 13.
24 included ‘detailed Government records on an individual which can be identified as applying to that
individual.’” Hum. Rts. Def. Ctr., 2025 WL 286516, at *2 (quoting Prison Legal News v. Samuels,
787 F.3d 1142, 1146-47 (D.C. Cir. 2015)); see also Jud. Watch, Inc. v. FDA, 449 F.3d 141, 152
(D.C. Cir. 2006) (“The Supreme Court has read Exemption 6 broadly, concluding the propriety of
an agency’s decision to withhold information does not ‘turn upon the label of the file which
contains the damaging information.’” (quoting Wash. Post Co., 456 U.S. at 601)).
If the records at issue satisfy the first requirement, the second step focuses on “the
significance of the privacy issues at stake,” Ray, 502 U.S. at 175, to determine whether disclosure
“would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6). This
process requires the court to “balance the public interest in disclosure against the interest Congress
intended [Exemption 6] to protect,” U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 495
(1994) (quoting U.S. Dep’t of Justice v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 776
(1989)), which inquiry proceeds in two steps. First, the court must determine “whether disclosure
would compromise a substantial, as opposed to a de minimis, privacy interest.” Niskanen Ctr. v.
FERC, 20 F.4th 787, 791 (D.C. Cir. 2021) (quoting Prison Legal News, 787 F.3d at 1147). “A
substantial privacy interest is anything greater than a de minimis privacy interest.” Multi Ag Media
LLC v. Dep’t of Agric., 515 F.3d 1224, 1229-30 (D.C. Cir. 2008). In this analysis, the relevant
“privacy interest at stake belongs to the individual, not the government agency.” Ford v. Dep’t of
Justice, 208 F. Supp. 3d 237, 250 (D.D.C. 2016) (citing Reps. Comm. for Freedom of the Press,
489 U.S. at 763-65). “If no significant privacy interest is implicated . . . FOIA demands
disclosure,” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989),
since FOIA’s exemptions “are explicitly made exclusive and must be narrowly construed,” Milner,
562 U.S. at 565 (cleaned up), with the presumption in favor of disclosure.
25 When a substantial privacy interest is implicated, that interest must next be balanced
“against the public interest in the release of the records.” Horner, 879 F.2d at 874. The only
relevant public interest is “the extent to which disclosure would serve the ‘core purpose of the
FOIA,’ which is ‘contribut[ing] significantly to public understanding of the operations or activities
of the government.’” Fed. Lab. Rels. Auth., 510 U.S. at 495 (quoting Reps. Comm. for Freedom
of the Press, 489 U.S. at 775) (original formatting omitted); see also Lepelletier v. FDIC, 164 F.3d
37, 47 (D.C. Cir. 1999) (“[T]he only relevant public interest in the FOIA balancing analysis [is]
the extent to which disclosure of the information sought would ‘she[d] light on an agency's
performance of its statutory duties’ or otherwise let citizens know ‘what their government is up
to.’” (alterations in original) (quoting Fed. Lab. Rels. Auth., 510 U.S. at 497)). Even where “a
privacy interest may be substantial,” it may still be “insufficient to overcome the public interest in
disclosure.” Multi Ag Media, 515 F.3d at 1230. “Unless the invasion of privacy is ‘clearly
unwarranted,’ the public interest in disclosure must prevail.” Hum. Rts. Def. Ctr., 2025 WL
286516, at *2 (alterations accepted) (quoting Ray, 502 U.S. at 177).
Here, both parties agree that the data sought qualifies as “similar files” sufficient to trigger
application of Exemption 6. See Pl.’s Opp’n at 14 (acknowledging that “Exemption 6 . . . provides
the framework for the . . . analysis”); Def.’s Mem. at 17 (“[T]he records at issue . . . satisfy
Exemption 6’s threshold requirement.”). This conclusion is supported by the record, since plaintiff
requests data that consists of “detailed Government records on . . . individual[s] which can be
identified as applying to th[ose] individual[s],” Prison Legal News, 787 F.3d at 1147 (citation
omitted), and is sufficient to fit within the Supreme Court’s “broad[]” construction of Exemption
6, Jud. Watch, 449 F.3d at 152. Therefore, the parties’ dispute about the invocation of Exemption
6 proceeds to the balancing portion of the inquiry, considering whether any cognizable public
26 interest in disclosure outweighs any privacy interest, or whether disclosure would be a clearly
unwarranted invasion of privacy.
a. The Privacy Interest
Defendant claims a privacy interest in the right of the individuals named in the data, as well
as their close family members, to “control . . . information concerning [their] person[s].” Def.’s
Mem. at 19 (quoting Reps. Comm. for Freedom of the Press, 489 U.S. at 763). Courts have long
recognized that such a right may exist, encompassing “prosaic” information such as “place of
birth,” Painting & Drywall Work Pres. Fund, Inc. v. Dep’t of Hous. & Urban Dev., 936 F.2d 1300,
1302 (D.C. Cir. 1991); see also Wash. Post Co., 456 U.S. at 600, as well as more personal
information such as medical records, see Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C.
Cir. 1981), and that “certain reputational interests and family-related privacy expectations survive
death,” Campbell, 164 F.3d at 33. Such an interest cannot be categorically asserted, however,
since “Exemption 6 ‘does not categorically exempt individuals’ identities’ but calls for case-by-
case evaluation ‘because the privacy interest at stake may vary depending on the context in which
it is asserted.’” Hum. Rts. Def. Ctr., 2025 WL 286516, at *3 (quoting Jud. Watch, 449 F.3d at
152).
Here, defendant contends that “the records at issue . . . contain precisely the kind of highly
sensitive and potentially embarrassing information about the subjects of the records that merits
protection even post-mortem.” Def.’s Mem. at 20. As support, defendant notes that the data
contains information about “the full name, date of birth, and date of death of the deceased inmate,”
“the deceased inmate’s race and ethnicity, the date of their admission to the correctional facility,
and their crime(s) of conviction[,]” as well as “whether the deceased inmate stayed overnight at a
mental facility; the inmate’s place of death and the location of the incident causing the death . . .;
27 the cause of death (with specific variables for causes including AIDS-related illness, accidental
alcohol or drug intoxication, suicide, and homicide); and details about the inmate’s medical and
surgical care.” Id.
As an initial matter, defendant’s reliance on National Archives & Records Administration
v. Favish, 541 U.S. 157 (2004), to define the scope of such interests in this case is not persuasive,
as the Supreme Court’s holding in that case “was limited to ‘surviving family members’ right to
personal privacy with respect to their close relative’s death-scene images,’” Mobley v. CIA, 924
F. Supp. 2d 24, 70 (D.D.C. 2013) (emphasis in original) (quoting Favish, 541 U.S. at 170), and
defendant has not alleged that any such images are among the responsive records. Furthermore,
defendant provides no support for the assertion that variables such as name, birth date, death date,
race, ethnicity, or date of admission to a correctional facility would reveal sensitive or
embarrassing information about any individual. Without “even minimal substantiation,” Hum.
Rts. Def. Ctr., 2025 WL 286516, at *3, to support finding a blanket privacy interest in such
information, this claim does not support finding a substantial privacy interest for all the deceased
inmates, or their close family members, named in the data, see id. (finding that conclusory
assertions are not sufficient, since “showing that a substantial invasion of privacy will occur if the
. . . names are released requires ‘reasonable specificity of detail rather than merely conclusory
statements.’” (quoting Prison Legal News, 787 F.3d at 1147)). Moreover, the D.C. Circuit has
previously held that even living individuals have “not . . . much more” “than a de minimis privacy
interest” in the disclosure of a crime of conviction, since such information is “already publicly
available and readily accessible to anyone who might be interested in it.” ACLU v. U.S. Dep’t of
Justice, 655 F.3d 1, 12 (D.C. Cir. 2011). In this case, where both parties agree that any privacy
interests implicated by disclosure are diminished because the individuals in question are all
28 deceased, see Def.’s Mem. at 19-20; Pl.’s Opp’n at 16, many of the individuals named in
responsive records would not have a substantial privacy interest in such information, but instead
only a de minimis one.
On the other hand, disclosing information that would reveal that an individual suffered
from mental health or substance abuse issues or died as the result of an “AIDS-related illness,
accidental alcohol or drug intoxication, suicide, [or] homicide,” Def.’s Mem. at 20; see also Def.’s
SUMF ¶ 33 (listing the variables in the dataset), is, in the abstract, sufficiently “intimate and
sensitive,” Def.’s Mem. at 21, to implicate a substantial privacy interest. This privacy interest,
however, cannot support withholding the identity of all 16,625 inmates in the data so far produced
to plaintiff, see Pl.’s Opp’n at 14, given the lack of evidence to suggest the data would reveal such
information about all 16,625 inmates. Nevertheless, in withholding the identities of every
deceased inmate on these grounds, defendant has utterly failed to conduct the “case-by-case
evaluation” of the applicable privacy interests required by Exemption 6. Hum. Rts. Def. Ctr., 2025
WL 286516, at *3.
In sum, at this initial stage of the balancing inquiry, the deceased inmates in the data sought
by plaintiff fall into two separate categories. The first group consists of inmates for whom
disclosing their identities would not disclose any of the intimate and sensitive information
discussed above, such as mental health or substance abuse issues or a death resulting from AIDS,
intoxication, homicide, or suicide. As to these inmates, defendant has failed to demonstrate a
substantial privacy interest exists, and thus the Exemption 6 claim fails, without needing to proceed
to step two of the balancing inquiry. See id. at *4 (“Because the [government] does not satisfy the
first step of its burden to show that Exemption 6 applies, we do not proceed to the balancing inquiry
at step two.”). The second group consists of inmates as to whom disclosing their identities would
29 reveal some or all of the sensitive information discussed above. For those individuals, defendant
has shown the existence of a more than de minimis privacy interest sufficient to invoke Exemption
6, although the strength of this interest is somewhat diminished because all of the individuals are
deceased, see Def.’s Mem. at 19-20; Pl.’s Opp’n at 16.
Plaintiff argues that two other factors further decrease this privacy interest: (1) the family
members of deceased inmates “overwhelmingly” support disclosure of the information sought,
Pl.’s Opp’n at 16; Pl.’s Reply at 6, and (2) “much of [the] data” sought by plaintiffs is already
made available by states, Pl.’s Opp’n at 19. In this case, however, neither argument has been
sufficiently established to diminish the significant privacy interests at stake for the second group
of inmates. The desires of some families, even several “dozens of people whose loved ones died
in jails and prisons,” for the information to be revealed publicly, Pl.’s Opp’n at 17 (quoting Pl.’s
Opp’n, Decl. of Gina Barton, USA Today Investigative Reporter (“Barton Decl.”) ¶ 6, ECF No.
36-4), does not mean the release would not implicate privacy concerns for other families. The
records so far disclosed contain the information of 16,625 inmates, see id. at 14, meaning that
Barton’s contacts may represent only a miniscule fraction of those potentially impacted. 8 The
family members not discussed by Barton or covered by plaintiff’s single other declaration, see
Pl.’s Opp’n, Decl. of Cynthia Telford, mother of Jeremy Cunningham, who died in custody
(“Telford Decl.”), ECF No. 36-6, retain a privacy interest in the information sought by plaintiff.
See Def.’s Reply at 8. Where privacy interests have not been explicitly waived, the government
“is expected,” under the FOIA, to “attempt to protect [them] by asserting them.” Ayuda, Inc. v.
FTC, 70 F. Supp. 3d 247, 269 (D.D.C. 2014) (quoting Hill v. Dep’t of Agric., 77 F. Supp. 2d 6, 8
(D.D.C. 1999)); see also Battle Born Invs. Co. v. U.S. Dep’t of Justice, No. 24-cv-67 (BAH), 2024
8 The record contains no information to establish how many of the 16,625 inmates in the disclosed records experienced mental health or substance abuse issues or died as a result of AIDS, intoxication, homicide, or suicide.
30 WL 5246515, at *7 (D.D.C. Dec. 30, 2024). That is what the government has done in this case,
and those privacy interests are not diminished merely because some other similarly-situated
individuals favor disclosure.
As to plaintiff’s second argument, which suggests that much of the data sought is already
regularly released to the public by states, thus reducing any privacy interest in that information,
see Pl.’s Opp’n at 19; Pl.’s Reply at 8, the record is simply not clear about how many states publicly
release death-in-custody information, or what specific information is released, see Def.’s Reply at
9-11 (contesting plaintiff’s claims about states’ public release of death-in-custody information).
As a result, the record here provides no basis to determine whether enough states regularly disclose
information that sufficiently overlaps with the data sought by plaintiff to off-set the privacy
interests asserted by defendant.
Therefore, although the privacy interest for the individuals as to whom the data would
reveal sensitive information is diminished because of their deaths, this interest exceeds the de
minimis threshold, and thus must be balanced against any cognizable public interest in the
information asserted by plaintiff. Horner, 879 F.2d at 874. 9
b. The Public Interest in Disclosure
Plaintiff asserts four public interests in the unredacted disclosure of the death-in-custody
data. First, plaintiff claims the data would help “shed light on whether DOJ is properly allocating
funding on matters correlated with inmate mortality.” Pl.’s Reply at 9. Defendant counters this
purported interest by arguing that, since DOJ “does not consider facility-level death data . . . from
9 Defendant also advances the argument that release of the data sought by plaintiff should be denied because of the “negative impacts” and “grave harm” disclosure would have on BJS and the “broader mission of the federal statistical system.” Def.’s Mem., Decl. of Kevin M. Scott, PH.D., Principal Deputy Director & Acting Director, BJS (“Scott Decl.”) ¶ 2, ECF No. 35-5; see also generally Scott Decl. Such arguments are not cognizable under FOIA, where the only relevant “privacy interest at stake belongs to the individual, not the government agency.” Ford, 208 F. Supp. 3d at 250 (citing Reps. Comm. for Freedom of the Press, 489 U.S. at 763-65).
31 the MCI data collection in awarding grants to state or local government facilities,” this
information could not help “the public . . . evaluate what the federal government is up to,” and
would instead amount to scrutinizing “what it could or should be up to.” Def.’s Reply at 14-15
(emphasis in original). Defendant’s opposition, however, mischaracterizes plaintiff’s argument,
which focuses not on whether DOJ should consider MCI data in its grantmaking, but instead how
well DOJ grantmaking is addressing the issue of reducing deaths in custody. During the pendency
of this litigation, DOJ has publicly discussed how it is “[t]aking action to reduce deaths in custody,”
including through providing “grants, research, training and technical assistance” to state and local
agencies and facilities. Taking Action. 10 Whether or not the data collected by the MCI program
is specifically considered in allocating such grants, this data and subsequent reporting relying on
the data could be probative of the effectiveness of grantmaking by allowing the public to compare
the deaths reported in the MCI data to the facilities receiving funding and evaluate how well, if at
all, DOJ grantmaking is helping to reduce deaths—or as plaintiff puts it, “whether [the agency] is
doing [its job] well,” Pl.’s Reply at 10. The current redactions would significantly hamper those
efforts, since, for instance, “the facility where the inmate died” was redacted in “58 percent of
cases” in the data provided to plaintiff, “making it impossible to identify trends with respect to
specific prisons and jails.” Pl.’s Opp’n at 10.
Second, plaintiff argues the unredacted data would help “reveal the effectiveness of DOJ’s
support to state and local governments,” Pl.’s Reply at 11, including the efficacy of training
provided to help reduce deaths and “whether the federal government is sufficiently investigating
state and local facilities,” id. at 12. This purported public interest, like the first, is strong, and DOJ
offers no rebuttal. Again, DOJ has publicly discussed the “training and technical assistance” the
10 Judicial notice is appropriately taken of information on official public government websites. See Cannon v. District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013).
32 agency provides to help “reduce deaths in custody.” Taking Action. As plaintiff explains,
examining individual-level data of deaths-in-custody could help the press and the public at large
identify facilities that suffer from high numbers of inmate deaths and further identify common
causes of deaths at those facilities—which information could then be compared with federal
training and investigations to determine whether DOJ “is adequately choosing which state and
local facilities to investigate” or assist with additional resources. Pl.’s Reply at 12. Just as above,
however, the current redactions would significantly decrease the utility of the MCI data to assist
in this analysis.
Third, plaintiff contends that disclosing the data would “shed light on DOJ’s
implementation of DCRA’s” reporting requirement, including its determination of the relationship
between deaths and the management of the facilities in question, including allowing “the press to
fill [any] gaps” left by the report. Id. at 13. Defendant responds that since, at the time of filing
briefing in this case, DOJ had delivered one report to Congress and planned to deliver another,
“the public already has all the information it needs to evaluate DOJ’s own implementation of
DCRA.” Def.’s Reply at 13. This assertion is contradicted by DOJ’s own public assertions, which,
while recognizing “robust response” to BJS’s collection efforts, also acknowledges that DCRA
implementation has “a long way to go.” Taking Action. Defendant’s claim that plaintiff’s use of
the raw data to “conduct its own statistical analyses” would “only . . . shed additional light on state
and local governments,” Def.’s Reply at 13, rather than on defendant’s effectiveness in carrying
out the DCRA’s goals, is similarly unpersuasive. DCRA 2013 tasked DOJ with “carry[ing] out a
study of the information reported” under the law to “examine the relationship, if any, between the
number of [deaths in custody] and the actions of management of [the specified] jails, prisons, and
other specified facilities relating to such deaths.” Pub. L. No. 113-242, §§ 2(f), 2(f)(1)(A), 128
33 Stat. at 2861. Access to the raw data would allow USA Today and other entities and individuals
to perform their own analysis, providing the public with valuable information about the possible
strengths and weaknesses (or complete oversights or omissions) of the DOJ analysis, which in turn
would allow the public to determine how well DOJ carried out this specific statutory duty.
Finally, plaintiff argues that the unredacted data would enable public scrutiny of “the
Attorney General’s decision” not to invoke the penalty provision in DCRA 2013 against states that
fail to meet their reporting obligations. Pl.’s Reply at 15. This interest, too, is exactly the type of
public interest cognizable under FOIA, relating to informing the public about the agency’s use of
its statutory powers. While DOJ may have “been transparent about the many issues with state
data-reporting under DCRA” and shared some concerns about using the financial penalty
mechanism, Def.’s Reply at 13-14, access to individual-level data would help the public
understand exactly how “widespread,” id. at 14 (quoting AG’s DCRA Report at 11), the reporting
problems are and allow them to better evaluate the concerns about implementing the penalty, in
light of the scale of the problem. Although defendant claims in response that plaintiff has not
shown how “particular details such as an inmate’s name or medical history would have any bearing
on informing public assessment” of this issue, id. at 13, the redactions at issue do not solely relate
to inmate names or medical histories; for instance, plaintiff represents that “DOJ . . . redacted the
state of death in 22 percent of the entries” and in “58 percent of cases . . . redacted the facility
where the inmate died,” Pl.’s Opp’n at 10—information that is directly relevant to this claimed
public interest. 11
For the reasons explained above, plaintiff has succeeded in demonstrating four distinct,
strong public interests in disclosure of the unredacted data sought. Cf. Appeal, Inc., 2024 WL
11 Defendant raised no segregability argument to suggest that lesser redactions could be appropriate, or needed, to protect any other interests, and so the Court does not address that consideration here.
34 4868282, at *7-8 (finding that, in a case seeking disclosure of the same data, “the public interest
in disclosure is undoubtedly high”). Since both parties have succeeded in demonstrating their
cognizable interests, they must next be balanced to determine whether the redactions were
appropriate. See Horner, 879 F.2d at 874.
c. Balancing
The final step of the analysis pits one diminished privacy interest against four strong public
interests—a balance that strongly favors disclosure. DOJ itself has recognized that the agency has
“a long way to go” in both “collecting data about and ultimately reducing the number of fatalities
that occur when individuals are taken into custody by the police or incarcerated in correctional
facilities.” Taking Action. Given the scope and importance of the deaths in custody problem, as
well as DOJ’s previous years-long delay in reporting to Congress, as required by DCRA 2013, see
Def.’s Reply at 13 (acknowledging DOJ delivered the reports due by December 2016 “in
December 2022 and September 2024 (or later)”), and ongoing acknowledgment of “widespread”
reporting issues, id. at 14 (quoting AG’s DCRA Report at 11), a substantial public interest is
demonstrated in release of the unredacted data to inform the public about DOJ’s operations and
allow them to evaluate the agency’s performance of its duties to report on and analyze deaths in
custody and, ultimately, “reduce deaths in custody.” Taking Action. In light of the strong public
interests present and the diminished privacy interest opposing them, any invasion of privacy from
disclosure of the withheld information would not be clearly unwarranted, and thus summary
judgment is granted to plaintiff as to Exemption 6.
Accordingly, defendant’s withholdings, pursuant to Exemptions 6 and 7(C), do not
withstand scrutiny, and defendant will be directed to disclose the data without redactions.
35 C. Defendant is Entitled to Reconsideration for Data Collected When No DCRA Authority Existed
Federal Rule of Civil Procedure 54(b) recognizes a court’s “inherent power to reconsider
an interlocutory order ‘as justice requires.’” Capitol Sprinkler Inspection, 630 F.3d at 227 (quoting
Greene, 764 F.2d at 22-23). In general, courts grant reconsideration sparingly, only when “the
movant demonstrates: ‘(1) an intervening change in the law; (2) the discovery of new evidence not
previously available; or (3) a clear error in the first order.’” Zeigler v. Potter, 555 F. Supp. 2d 126,
129 (D.D.C. 2008) (quoting Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 237
(D.D.C. 2003)). As other Judges on this Court have found, however, the Court’s discretion allows
reconsideration to be granted when “good reasons for doing so” exist, Donato v. Exec. Off. for
U.S. Att’ys, No. 16-cv-632 (FYP), 2021 WL 5161740, at *2 (D.D.C. Nov. 5, 2021) (Pan, J.)
(quoting United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 308 F. Supp. 3d 186,
193 (D.D.C. 2018)), which includes circumstances “where the court failed to consider information
that ‘might reasonably be expected to alter the conclusion reached by the court,’” id. (quoting
Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)), or “where the movant
presents new information that ‘constitute[s] a change in the court’s awareness of the
circumstances,’ even though it ‘may not constitute a change in the actual facts of the case,’” id.
(alteration in original) (citation omitted).
In granting summary judgment to plaintiff on defendant’s invocation of Exemption 3, the
Court did “not address” the fact that “plaintiff requests information during a time when no DCRA
reporting requirement was in effect.” Gannett I, 2023 WL 2682121, at *9 n.3. Of course, this
issue was not considered because “[n]either party raise[d]” it. Id. Still, this information is crucial
to the central issue in that decision—“whether the text of the Crime Control Act’s confidentiality
provision exempts disclosure of the requested information under FOIA Exemption 3,” id. at *1—
36 and was not considered in the decision, id. at *9 n.3. Summary judgment was granted to plaintiff
on Exemption 3 “because the requested information was ‘furnished under’ or ‘pursuant to’ the
DCRA.” Id. at *5. Both parties now acknowledge, after the issue was highlighted in Gannett I,
that DCRA was not in effect between 2010 (the start date of plaintiff’s FOIA request) and October
1, 2015 (the effective date of DCRA 2013). See Def.’s Mem. at 31; Pl.’s Opp’n at 3 (noting that
DCRA 2000 expired in 2006 and was not reauthorized until DCRA 2013). Therefore, the data
collected by the MCI program could not have been furnished pursuant to DCRA authority during
this time.
Plaintiff contends this reality does not necessitate a finding that the data collected during
this time was furnished under the Crime Control Act. See Pl.’s Opp’n at 34-35. While tempting,
this argument ultimately fails because plaintiff is unable to point to any other authority for BJS’s
MCI data collection during this period. The 1979 amendment to the Crime Control Act authorizes
BJS to “collect and analyze statistical information, concerning the operations of the criminal
justice system at the Federal, State, and local levels.” Pub. L. No. 96-157, Part C, § 302(c)(4), 93
Stat. 1167 (Dec. 27, 1979) (codified at 42 U.S.C. § 3732(c)(4)). Without a more specific authority
such as DCRA, BJS’s data collections would be performed “pursuant to” this general authority,
meaning that the privacy provision of Title I of the Crime Control Act would apply to the data
collected. See Gannett I, 2023 WL 2682121, at *6. Since both parties agree that this privacy
provision qualifies for Exemption 3, id. at *5 (“The parties do not dispute that the Crime Control
Act's Title I confidentiality provision is an exemption that qualifies for withholding under FOIA's
Exemption 3—rightfully so, because it undoubtedly is.”), denying reconsideration would
ultimately be unjust, despite defendant’s failure initially to brief or timely raise this issue, see Pl.’s
37 Opp’n at 31-32. Therefore, defendant properly invoked Exemption 3 as to data collected by the
MCI program from 2010 to October 1, 2015, and thus is not required to produce this data.
D. Defendant is Not Entitled to Reconsideration Regarding Local Jail Data Submitted to the MCI Program
Defendant has not provided an adequate basis for reconsideration as to data submitted to
BJS by local jails, rather than state departments of corrections. See Def.’s Mem. at 32-33. On this
issue, defendant contends that DCRA required states to report death-in-custody data without
extending that requirement to local entities. See id. Yet, nothing in the DCRA counsels against
treating “submissions by local governments” as “attributable to the relevant state and thus
furnished under DCRA whoever takes the clerical step of submitting them.” Pl.’s Opp’n at 36.
Specifically, both DCRA 2000 and DCRA 2013 require death in custody data to be reported from
“municipal [and] county jail[s],” Pub. L. No. 106-297, § 2(4), 114 Stat. at 1045; Pub. L. No. 113-
242, § 2(a), 128 Stat. at 2860, but despite this clear mandate, defendant strains to argue that if such
required data is not funneled to BJS through a state collection method, the submission is not
required by the DCRA and amounts to only a voluntary submission under the Crime Control Act,
see Def.’s Reply at 32. This proffered interpretation is an overtechnical reading to avoid disclosure
of data the DCRA clearly mandates be submitted to BJS, and is rejected. The DCRA clearly
requires that deaths in custody at municipal and county jails be reported to BJS, whether via a state
collection system or an alternative method. In this circumstance, no error, let alone plain error,
was made in Gannett I to warrant reconsideration.
Adopting defendant’s interpretation of the DCRA requirement could further “lead to a
perverse result totally at odds with DCRA’s statutory scheme,” whereby a state could be deemed
noncompliant with its DCRA reporting requirement and thus face the penalty provision’s “10
percent reduction in grant funding,” Pl.’s Opp’n at 36, even if every death in custody in the state
38 was reported directly to BJS by local entities “and the state did not duplicate those submissions,”
id. at 37. Such an illogical result can be avoided by “reading the statute naturally to provide that
submissions by local governments are attributable to the state and thus furnished under DCRA.”
Id. Defendant must, therefore, produce local jail data collected by the MCI program to plaintiff
for the period from October 1, 2015, to the end of 2019.
IV. CONCLUSION
For the reasons discussed above, plaintiff is entitled to summary judgment as to the
inadequacy of defendant’s search and as to the redactions applied under Exemptions 6 and 7(C) in
data so far produced. Furthermore, defendant’s motion for partial reconsideration is granted as to
data collected during the period when DCRA authority had lapsed, i.e. from the start of plaintiff’s
FOIA request in 2010 until October 1, 2015, and denied as to data collected under DCRA from
local jails. Accordingly, defendant must produce to plaintiff the unredacted version of responsive
records collected by BJS in the MCI program from state and local authorities between October 1,
2015, and 2019, when the MCI program ceased, and also search for and produce to plaintiff BOP
data submitted to BJS from the same period. The parties are additionally directed to file, by
February 21, 2025, a joint status report on the status of productions in this case, as described in the
accompanying order.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: February 6, 2025
__________________________ BERYL A. HOWELL United States District Judge
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Cite This Page — Counsel Stack
Gannett Satellite Information Network, LLC v. U.S. Department of Justice, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gannett-satellite-information-network-llc-v-us-department-of-justice-dcd-2025.