Pitts v. U.S. Department of Justice

• Court: District Court, District of Columbia
• Decided: May 28, 2021
• Docket: Civil Action No. 2019-1784
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ : EDGAR NELSON PITTS, : : Plaintiff, : : v. : Civil Action No. 19-1784 (ABJ) : U.S. DEPARTMENT OF JUSTICE, et al., : : Defendants. : _________________________________________ :

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants’ Renewed Partial Motion for Summary

Judgment, ECF No. 25. For the reasons discussed below, the Court GRANTS defendants’ motion.

I. BACKGROUND Plaintiff is a federal prisoner who currently is incarcerated at the United States Penitentiary,

Administrative Maximum, in Florence, Colorado (“ADX Florence”). He brings this action under

the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, in an effort to obtain records

maintained by the Federal Bureau of Prisons (“BOP”) and the Civil Rights Division, both

components of the United States Department of Justice (“DOJ”).1

A. FOIA Request to the Federal Bureau of Prisons

Plaintiff submitted three separate requests to BOP in April 2019. SMF (ECF No. 25-2) ¶

1. BOP combined them, assigned the matter a single tracking number (FOIA Request No. 2019-

03736), and summarized the requests as follows:

1 Plaintiff also sought information from the DOJ’s Office of the Inspector General (“OIG”), Office of Information Policy (“OIP”) and the Federal Bureau of Investigation (“FBI”). The Court previously determined that plaintiff had not submitted a FOIA request to OIP and that OIG and FBI complied with their obligations under FOIA. See Pitts v. U.S. Dep’t of Justice, No. 1:19-cv- 1784 (D.D.C. June 30, 2020). 1 a. Information detailing the cost of Plaintiff’s 25 years of imprisonment in BOP custody, including total cost, cost per year, and allocations of the cost to food, health care, hygiene, and staff salaries.

b. A nine (9) page report by Congressional “House Investigators for the Committee on Oversight and Government Reform,” as described in an article in the USA Today newspaper on January 7, 2019.

c. All information enclosed in correspondence that was returned to the U.S. Department of Justice, as described in a “Returned Correspondence” notice Plaintiff received on October 15, 2018.

Id. ¶ 2; see generally Supp. Glover Decl. (ECF No. 25-3), Ex. A. BOP assigned the matter to

Holly Glover, a Paralegal Specialist in BOP’s North Central Regional Office. See SMF ¶ 3; Supp.

Glover Decl. ¶ 2.

1. Costs of Incarceration

Based on Glover’s understanding that “BOP does not maintain records or information that

would detail the costs of an individual’s incarceration, [she] did not initiate a search for responsive

records.” SMF ¶ 6. She understood that “BOP maintains cost and budget data for Federal

Correctional Complexes, or individual institutions if they are stand-alone facilities.” Supp. Glover

Decl. ¶ 12. If BOP were to respond to plaintiff’s request, Glover believed that “BOP staff would

have had to conduct research, compile data, and create a document based on that data,” thereby

having to “create a document that is not otherwise kept in the ordinary course of BOP business.”

Id.

BOP first responded by letter dated May 6, 2019, explaining:

FOIA does not require the agency to answer questions in response to information requests, but rather is limited to requiring agencies to provide access to authorized responsive existing documents. The agency is not required to add explanatory material to a document to make it more understandable; conduct research to answer questions; give recommendations or opinions; or give conclusions, in response to FOIA requests.

2 SMF ¶ 7.

After this litigation commenced, a second Paralegal Specialist, C. Treadway, reviewed

plaintiff’s FOIA request, id. ¶ 8, determined that BOP could “run reports concerning the costs of

incarceration for its institutions,” id., and asked “Financial Management personnel in the BOP’s

Central Office to . . . search for potentially responsive records[.]” Id. ¶ 9. This search yielded “a

[one-page] document reflecting the costs of incarceration for the Federal Correctional Complex in

Florence, Colorado, where [p]laintiff is currently incarcerated,” to include “the cost of staff salaries

and benefits, food and medical services, and the total daily cost” for the entire Complex for the

preceding five years.2 Id. ¶ 10. BOP released this document to plaintiff in full on December 18,

2019. See id. ¶¶ 12-13; see generally Treadway Decl. (ECF No. 25-4), Ex. C.

2. Congressional Committee Report

“By [p]laintiff’s own description,” the information he sought in the second portion of his

FOIA request was a report issued by a Committee of the U.S. House of Representatives. SMF ¶

16. “BOP does not maintain Congressional [Committee] reports in its ordinary course of

business,” id. ¶ 17, and responded:

The records, from the House Committee on Oversight and Reform, are not [BOP] records or your request does not indicate you are seeking records maintained by BOP. If you believe BOP maintains these records, please resubmit your request with any details you have that will enable us to locate these records. Otherwise, you should contact the entity that created the records.

2 The Florence Federal Correctional Complex includes an administrative security penitentiary (ADX Florence), a high security penitentiary (USP Florence), and a medium security federal correctional institution (FCI Florence) with an adjacent minimum security camp. 3 Id. ¶ 18. Plaintiff did not resubmit his request, id. ¶ 19, and since has acquired a copy of the report

from another source. Pl.’s Opp’n (ECF No. 28) at 2.3 He informed the Court that he no longer

demands release of this Committee report. Id.

3. Returned Correspondence

In October 2018, plaintiff received a notice that correspondence addressed to him “had

been rejected and returned because . . . the correspondence contained ‘information that may

jeopardize the security of the institution.’” SMF ¶ 20. BOP staff did not conduct a search for

records responsive to this portion of plaintiff’s FOIA request, id. ¶ 23, given the existence of a

grievance procedure by which the intended recipient could appeal the rejection. See id. ¶¶ 21-22;

see generally Supp. Glover Decl., Ex. C. Nevertheless, after this litigation commenced, Glover

retrieved from the Special Investigative Services (“SIS”) Department at ADX Florence the portion

of the rejected correspondence SIS retained, to include “a memorandum explaining the rejection

(1 page), the envelope and original correspondence letter from the FBI (2 pages), an explanation

of FOIA exemptions included in the FBI’s correspondence (1 page), and twenty-two (22) pages of

records, of which 7 pages were duplicates, enclosed with the correspondence.” SMF ¶ 27.

These materials included information “regarding a ‘Black Identity Extremist Report,’”

which “was determined to contain[] detailed descriptions of specific acts of violence towards law

enforcement officers, both on the street and inside correctional environments.” Id. ¶ 29. Relying

on Exemptions 6, 7(C), 7(E), and 7(F), see id. ¶¶ 31-33, BOP withheld 22 pages of these records

in full, released one page in part, and released three pages in full. Id. ¶ 30.

3 The Court construes “Plaintiff [D]isputes the Assertion of Facts,” ECF No. 28, as his opposition (“Pl.’s Opp’n”) to defendants’ renewed motion for summary judgment. 4 Plaintiff represents that he “was able to acquire” and no longer demands the release of

information pertaining to the returned correspondence. Pl.’s Opp’n at 2.

B. FOIA Request to the Civil Rights Division

Plaintiff’s May 8, 2017 FOIA request to the OIG sought copies of reports pertaining to: (1)

the Ferguson Police Department and the death of Michael Brown; (2) the Minneapolis Police

Department and the death of Jamar Clark; and (3) the Chicago Police Department. See Waller

Decl. (ECF No. 10-3), Ex. 1 (ECF No. 1-3 at 7). At OIG’s suggestion, see id., Ex. 3 (ECF No. 1-

3 at 12), plaintiff sent a FOIA request directly to the Civil Rights Division by letter dated

November 7, 2017, for this same information. See Cain Decl. (ECF No. 25-5), Ex. A (ECF No.

25-5 at 7). Plaintiff’s request did not make its way to the appropriate staff member of the Civil

Rights Division for several months. See Kagle Decl. (ECF No. 25-6) ¶¶ 4-7.

Plaintiff has obtained a copy of the report about the Ferguson Police Department from

another inmate, see Pl.’s SMF (ECF No. 15 at 13-19) ¶ 25, and a copy of the Chicago Police

Department report from the Executive Office for United States Attorneys, id. ¶ 22. The Civil

Rights Division has responded to plaintiff’s request for a DOJ report about the Minneapolis Police

Department concerning the death of Jamar Clark by releasing in full a publicly-available press

release summarizing the investigation. Reply (ECF No. 30), Ex. A (ECF No. 30-1 at 4-7). It

otherwise denied the request and invoked Exemptions 5 and 7(C). See id., Ex. A (ECF No. 30-1

at 2).

II. ANALYSIS

A. Legal Standard

This case, like “the vast majority of FOIA cases[,] can be resolved on summary judgment.”

Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). The Court

5 will grant summary judgment to the government in a FOIA case only if the agency can prove “that

it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences

to be drawn from them are construed in the light most favorable to the FOIA requester.” Hall v.

Stoneman, No. 19-CV-109, 2020 WL 1451586, at *4 (D.D.C. Mar. 25, 2020). Ordinarily, where

the agency moves for summary judgment, it must identify materials in the record to demonstrate

the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1). Plaintiff as the

non-moving party must point to specific facts in the record to show that there remains a genuine

issue suitable for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “But where a

plaintiff has not provided evidence that an agency acted in bad faith, ‘a court may award summary

judgment solely on the basis of information provided by the agency in declarations,’” Judicial

Watch, Inc. v. U.S. Dep’t of Defense, No. 14-CV-1935, 2016 WL 410993, at *1 (D.D.C. Feb. 2,

2016) (quoting Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009)), aff’d, 847 F.3d 735 (D.C.

Cir. 2017), provided that the declarations are not “conclusory, merely reciting statutory standards,

or . . . too vague or sweeping.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987)

(footnote omitted).

B. BOP’s Response to Plaintiff’s FOIA Request 1. Adequacy of the BOP’s Searches for Responsive Records “A requester dissatisfied with the agency’s response that no records have been found may

challenge the adequacy of the agency’s search by filing a lawsuit in the district court after

exhausting any administrative remedies.” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321,

326 (D.C. Cir. 1999). “The adequacy of an agency’s search is measured by a standard of

reasonableness and is dependent upon the circumstances of the case.” Weisberg v. U.S. Dep’t of

Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal quotation marks and citations omitted);

see Lockett v. Wray, 271 F. Supp. 3d 205, 208 (D.D.C. 2017) (“The Court must then determine the

6 adequacy of the agency’s search, guided by principles of reasonableness.”) (citing Campbell v.

U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998)). An adequate search is one “reasonably

calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of

State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted).

An agency may prevail on summary judgment with a “no records” response by

“establish[ing] that it located no records responsive to plaintiff’s request after a reasonable search

using ‘methods reasonably expected to produce the information requested.’” Davidson v. EPA,

121 F. Supp. 2d 38, 39 (D.D.C. 2000) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68

(D.C. Cir. 1990)). The agency may rely on declarations explaining the method and scope of its

search, see Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)), and such declarations are

“accorded a presumption of good faith, which cannot be rebutted by purely speculative claims

about the existence and discoverability of other documents,” SafeCard Servs., Inc. v. SEC, 926

F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). However, if the

record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the

agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990).

2. Information Regarding Costs of Incarceration Plaintiff’s request set forth four questions:

How much money does it cost per year to keep me in prison? How much of that money is allotted to food health are and hygiene etc. How much of that money is allotted to BOP employees . . . for salary. The total cost of my 25 years imprisonment. Treadway Decl., Ex. A (ECF No. 25-3 at 9). Glover construed the request as “asking for the

individual costs of his incarceration, and how those costs are further broken down into specific

7 categories.” Supp. Glover Decl. ¶ 12. Initially, BOP did not conduct a search for responsive

records on the belief that the agency “does not maintain records that reveal the costs of

incarceration for any individual inmate,” instead “maintain[ing] cost and budget data for Federal

Correctional Complexes, or individual institutions if they are stand-alone facilities.” Id. It was

thought that a response to plaintiff’s FOIA request would require staff “to conduct research,

compile data, and create a document based on that data,” if it were even possible “to break down

the cost of [plaintiff’s] individual incarceration” broken down by categories to include food, health,

and staff salaries. Id.

Treadway subsequently opined that BOP could “run reports concerning the costs of

incarceration for its institutions” and that such reports “would be reasonably responsive to

[p]laintiff’s . . . request[.]” Treadway Decl. ¶ 13. Treadway knew that Financial Management

personnel at BOP’s Central Office “maintained data related to the costs of incarceration” which

would be responsive potentially to plaintiff’s request, and she asked that they conduct a search.

Id. ¶ 14. That search yielded a one-page document “reflecting the costs of incarceration for the

Federal Correctional Complex in Florence Colorado,” and including “the cost of staff salaries and

benefits, food and medical services, and the total daily cost” to operate the Complex for the

preceding five years. Id. ¶ 15. Treadway explained that “BOP’s record system only retains data

for the previous five . . . years,” and for this reason, BOP did not produce information about the

cost of plaintiff’s imprisonment for the 25 years he has been incarcerated. Id. ¶ 15 n.4. Further,

Treadway explained, “BOP does not track data in the manner” plaintiff wanted. Id. ¶ 17. While

the document BOP produced was “not specifically responsive to [p]laintiff’s request,” Treadway

deemed it “reasonably responsive.” Id. ¶ 16.

8 Plaintiff complains that BOP’s one-page document “does not satisfy [his] request” Pl.’s

Opp’n at 1, and deems it “unbelievable,” id. at 2, that BOP would not be able to produce responsive

records in the desired format. He asserts that “there is a budget with appropriations for food,

housing, hygiene and health care,” and that BOP can satisfy his request by releasing “[t]he BOP

Congressional Budget Justification Report[.]” Id. Missing from plaintiff’s response is any

argument to counter BOP’s representation that the agency does not maintain cost data for any

particular inmate in its custody. Nor does plaintiff address BOP’s representation that, to respond

directly to his FOIA request, the agency would be required to create records that ordinarily it does

not maintain. FOIA imposes no such obligation. Rather, under FOIA, an agency must “provide

access to those [documents] which it in fact has created and retained.” Kissinger v. Reporters

Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980); see Frank v. U.S. Dep’t of Justice,

941 F. Supp. 4, 5 (D.D.C. 1996) (“The Justice Department is not required, by FOIA or by any

other statute, to dig out all the information that might exist, in whatever form or place it might be

found, and to create a document that answers plaintiff’s question.”). Nor are “requests for

information rather than records . . . considered proper FOIA requests.” Tokar v. U.S. Dep’t of

Justice, 304 F. Supp. 3d 81, 91 (D.D.C. 2018) (citation omitted).

The Court concludes that BOP’s initial response to plaintiff’s FOIA request was

reasonable, as was its subsequent search for cost data particular to the Federal Correctional

Complex in Florence, Colorado. Further, the Court accepts BOP’s representation that “[t]here is

no basis to believe that the BOP currently possesses any nonexempt documents or information

responsive to the FOIA request that has not already been released to [p]laintiff.” Treadway Decl.

¶ 18.

9 3. Congressional Committee Report and Returned Correspondence

Plaintiff has obtained copies of, and no longer demands release of, a report of the House

Committee on Oversight and Reform and returned correspondence. These matters no longer are

in dispute. See Bayala v. U.S. Dep’t of Homeland Sec., Office of Gen. Counsel, 827 F.3d 31, 34

(D.C. Cir. 2016) (“[O]nce all the documents are released to the requesting party, there no longer

is any case or controversy.”) (citing Perry, 684 F.2d at 125); Williams & Connolly v. SEC, 662

F.3d 1240, 1244 (D.C. Cir. 2011) (where agency turned over to requester “eleven sets of notes

pursued in this appeal, the controversy is moot with respect to those documents”); see also Crooker

v. U.S. State Dep’t, 628 F.2d 9, 11 (D.C. Cir. 1980) (“Where the records have already been

furnished, it is abusive and a dissipation of agency and court resources to make and process a

second claim.”).

III. CONCLUSION

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

plaintiff’s FOIA request regarding costs of incarceration and that BOP’s responses to plaintiff’s

requests for a House Committee on Government Oversight and Reform report and BOP records

pertaining to returned correspondence no longer are in dispute. Remaining for the Court’s

consideration is defendants’ response to plaintiff’s FOIA request to the Civil Rights Division for

a DOJ report about the Minneapolis Police Department concerning the death of Jamar Clark.

Counsel represents that the Civil Rights Division is prepared to move for summary judgment. See

Reply at 2 n.2.

Accordingly, it is hereby

ORDERED that Defendants’ Renewed Partial Motion for Summary Judgment [25] is

GRANTED; and it is

10 FURTHER ORDERED that, not later than July 2, 2021, defendants shall file a motion

regarding the Civil Rights Division’s response to plaintiff’s FOIA request.

SO ORDERED.

DATE: May 28, 2021 AMY BERMAN JACKSON United States District Judge