Mosby v. Hunt

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Joseph Mosby,

Plaintiff, v. Civil Action No. 09-1917 (JDB) Wanda Hunt et al.,

Defendants.

MEMORANDUM OPINION

In what remains of this action brought under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, defendant has submitted in unredacted form for in camera review the redacted

documents that were released to plaintiff.1 See Memorandum Opinion of May 5, 2010, at 8-9

(finding defendant’s invocation of FOIA exemptions 2 and 7(F) unsubstantiated). In the

accompanying Supplemental Declaration of Larry Collins (“Collins Supp. Decl.”), Collins states

that the Bureau of Prisons (“BOP”) is no longer relying upon exemption 2. Id. ¶ 5. Hence, the

remaining issue is whether BOP properly withheld information under exemption 7(F).

FOIA exemption 7(F) protects from disclosure “records or information compiled for law

enforcement purposes” that “could reasonably be expected to endanger the life or physical safety

of any individual.” 5 U.S.C. § 552(b)(7)(F). “Within limits, the Court defers to the agency's

assessment of danger.” Amuso v. U.S. Dep’t of Justice, 600 F. Supp. 2d 78, 101 (D.D.C. 2009).

“In general, this exemption has been interpreted to apply to names and identifying information of

1 The documents are a one-page Memorandum dated March 30, 2009, and a one-page form captioned “Request for Transfer/Application of Management Variable,” also dated March 30, 2009. law enforcement officers, witnesses, confidential informants and other third persons who may be

unknown to the requester.” Antonelli v. Federal Bureau of Prisons, 623 F. Supp. 2d 55, 58

(D.D.C. 2009) (citations omitted). In a novel twist, defendant contends that release of the

redacted information creates a safety risk mostly to plaintiff.2 See Collins Supp. Decl. ¶¶ 9-11.

By its terms, exemption 7(F) protects “any individual,” and, as observed by another judge of this

Court – albeit in the context of third parties -- “the Court can imagine no situation in which an

individual would [knowingly] waive his or her right to physical safety-which is the right

protected by Exemption 7(F).” Linn v. U.S. Dep’t of Justice, 1995 WL 417810 *12 (D.D.C.,

June 6, 1995); but cf. Ray v. F.B.I., 441 F. Supp. 2d 27, 37 (D.D.C. 2006) (“In light of

[plaintiff’s] apparent waiver [of exemption 7(D)’s confidential informant protection], the Court

is not inclined to protect plaintiff from information about himself.”) (citations omitted). Plaintiff

does not appear to have waived the protection contemplated by exemption 7(F). See Pl.’s

Memorandum of Law and Points of Authoritive (sic) in Support of Above-Requested Relief

[Dkt. No. 20] at 7 (asserting that “[b]ecause that description does not detail whether Plaintiff was

in danger or the sort of danger to others, the vague claim of this exemption should not be

sustained at this early stage”).

The Court is satisfied from its perusal of the redacted and unredacted documents and

Collins’ justification, see Supp. Decl. ¶¶ 8-12, that BOP reasonably determined that the

disclosure of the withheld information could “jeopardize the safety of individuals(s),” including

2 The Court did not locate any decisions, published or unpublished, addressing this particular application of exemption 7(F).

2 plaintiff. Id. ¶ 8. Hence, it properly redacted minimal information from the released documents

under FOIA exemption 7(F). A separate final order accompanies this Memorandum Opinion.

s/ JOHN D. BATES Dated: July 15, 2010 United States District Judge