                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
GREGORY A. MILTON,             )
                               )
          Plaintiff,           )
                               )
          v.                   )     Civil Action No. 08-242 (RWR)
                               )
UNITED STATES DEPARTMENT OF    )
JUSTICE,                       )
                               )
          Defendant.           )
______________________________)

                        MEMORANDUM OPINION

     Plaintiff Gregory A. Milton, a sentenced inmate, filed a pro

se complaint against the United States Department of Justice

(“Department”) under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552.   The Department moved to dismiss or, in the

alternative, for summary judgment.   A May 6, 2011 memorandum

opinion found that the Department had properly invoked the

privacy exemption to FOIA disclosure, but had not demonstrated

that the requested material contained no segregable information.

The Department’s motion therefore was denied without prejudice.

The Department renewed its motion for summary judgment, further

addressing the issue of segregability.   Because the Department’s

supplemental declaration in support of its renewed motion

sufficiently articulates the Department’s inability to segregate

the non-exempt information, its motion will be granted and

judgment will be entered for the Department.
                               - 2 -

                            BACKGROUND

     The background of this case is set out in Milton v. U.S.

Dep’t of Justice, 596 F. Supp. 2d 63 (D.D.C. 2009), and in Milton

v. U.S. Dep’t of Justice, 783 F. Supp. 2d 55 (D.D.C. 2011).

Briefly, Milton seeks the recordings of conversations in

telephone calls he made from prison to others.   The Department

filed a dispositive motion invoking FOIA Exemptions 6 and 7(C),

codified at 5 U.S.C. §§ 552(b)(6) and (b)(7)(C), arguing that the

records Milton seeks are exempt from disclosure because of

privacy considerations of the third parties in the phone

conversations.   A May 6, 2011 memorandum opinion found that the

Department had properly invoked Exemption 6.   However, the

Department’s motion was denied because the opinion found that the

Department had not demonstrated that it could not disclose any

“reasonably segregable portion,” 5 U.S.C. § 552(b), of the

otherwise exempt records.   Specifically, the Department’s

declaration in support of its motion stated that its FOIA experts

had advised that the type of format in which the calls were

stored did not make it possible to segregate, but did not clarify

why it was not possible and did not state that an appropriate

official reviewed the telephone conversations at issue to

conclude that they contained no reasonably segregable portions.

     The Department renewed its motion for summary judgment,

appending a supplemental declaration in which a Bureau of Prisons
                                 - 3 -

(“BOP”) official represents that she reviewed the telephone calls

responsive to Milton’s FOIA requests and that the review revealed

that the recordings contained no segregable information.

(Def.’s Renewed Mot. Summ. J., Supp. Decl. of Vanessa Herbin-

Smith (“Herbin-Smith Supp. Decl.”) ¶ 6.)     She further states that

the format of the recorded conversations is a “.wav” file.       (Id.

¶ 7.)    According to the declarant, “[i]n order to segregate a

‘.wav’ file, a specific program is required to segregate the

recorded telephone conversations.    The BOP has no need for this

type of program in the ordinary course of its business, and

therefore does not have the technology to segregate recorded

telephone conversations.”    (Id.)   Milton maintains his

entitlement to the non-exempt portion of the phone calls, arguing

that the technology to segregate .wav files is reasonably

available at little or no cost and that the declaration contains

alleged inconsistencies and evinces bad faith on the part of the

Department.

                              DISCUSSION

        The FOIA requires disclosure of “[a]ny reasonably segregable

portion” of an otherwise exempt record.     5 U.S.C. § 552(b).   An

agency therefore cannot withhold non-exempt portions of a

document unless they are inextricably intertwined with exempt

portions.    Mead Data Central, Inc. v. U.S. Dep’t of Air Force,

566 F.2d 242, 260 (D.C. Cir. 1977).      A court “may rely on
                                - 4 -

government affidavits that show with reasonable specificity why

documents withheld pursuant to a valid exemption cannot be

further segregated.”   Juarez v. Dep’t of Justice, 518 F.3d 54, 61

(D.C. Cir. 2008).    An affidavit stating that an agency official

conducted a review of each document and how she determined that

no document contains segregable information fulfills the agency’s

obligation.   Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d

771, 776-77 (D.C. Cir. 2002).   If an agency demonstrates that no

material facts are in dispute and that all information that falls

within the class requested either has been produced, is

unidentifiable, or is exempt from disclosure, the agency is

entitled to summary judgment.   Milton, 783 F. Supp. 2d at 57

(citing Students Against Genocide v. Dep’t of State, 257 F.3d

828, 833 (D.C. Cir. 2001)).   In considering a motion for summary

judgment, a court must draw all “justifiable inferences” from the

evidence in favor of the nonmovant, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986), and the agency resisting

disclosure bears the burden of persuasion in defending its

action.   5 U.S.C. § 552(a)(4)(B); see also Akin, Gump, Strauss,

Hauer & Feld, LLP v. U.S. Dep’t of Justice, 503 F. Supp. 2d 373,

378 (D.D.C. 2007).

     Here, the Department has submitted that an agency official

conducted a personal review of the recordings and that the BOP

does not have any program that would permit segregation of the
                                - 5 -

recordings.   (Herbin-Smith Supp. Decl. ¶¶ 6-7.)   Milton counters

that multiple free and low-cost programs exist that would enable

the BOP to edit the .wav files at issue.   (Pl.’s Mem. P. & A. in

Opp’n to Def.’s Renewed Mot. Summ. J. (“Pl.’s Opp’n” at 2.)     In

addition, he argues that BOP’s internal procedures “allow[] for

the BOP to obtain authorization to use software programs from the

appropriate ‘Information Security Officer[.]’”     (Id.)   Milton,

however, does not argue or present any evidence that BOP

currently has the technological capacity to segregate the

recordings.

     Courts in this Circuit have held repeatedly that records

were not reasonably segregable where the agency attested that it

lacked the technical capability to edit the records in order to

disclose non-exempt portions.   See Mingo v. U.S. Dep’t of

Justice, 793 F. Supp. 2d 447, 454-55 (D.D.C. 2011) (crediting

BOP’s assertion that it did not have the technical capability to

reasonably segregate and release plaintiff’s portion of

conversations in recordings); Antonelli v. Fed. Bureau of

Prisons, 591 F. Supp. 2d 15, 27 (D.D.C. 2008) (same); Swope v.

U.S. Dep’t of Justice, 439 F. Supp. 2d 1, 7 (D.D.C. 2006) (same).

In each of these decisions, the focus of the segregability

analysis was on the agency’s current technological capacity.

Milton has not presented any authority for the proposition that
                               - 6 -

the FOIA obligates agencies to acquire new technological capacity

in order to comply with disclosure requests.1

     Where, as here, an agency declaration “contain[s] reasonable

specificity of detail rather than mere conclusory statements,”

the plaintiff must point either to “contradictory evidence in the

record” or provide “evidence of agency bad faith” in order to

refute the agency’s assertions.   Williams v. FBI, 69 F.3d 1155,

1159 (D.C. Cir. 1995) (internal quotations omitted).   Contrary to

Milton’s assertion (Pl.’s Opp’n at 2), the Department’s failure

to demonstrate efforts to secure the technology necessary to edit

.wav files, where the agency is under no obligation to do so, is

not evidence of bad faith.   Milton also argues that the

declarant’s statement that her review of the telephone calls

revealed “no segregable information” is inconsistent with her

subsequent statement that it is “not . . . possible to segregate”

the calls.   (See Pl.’s Statement of Genuine Issues of Material



     1
       The D.C. Circuit in Yeager v. DEA recognized that the
well-established principle that “[t]he purposes and policies
underlying the FOIA . . . impose a duty upon agencies to disclose
their records” applies to computerized records as it does to
traditional ones. Yeager v. DEA, 678 F.2d 315, 320-21 (D.C. Cir.
1982). However, contrary to Milton’s characterization of the
decision (Pl.’s Opp’n at 3), the Yeager Court did not recognize a
requirement that agencies install new technology to facilitate
FOIA disclosure. Rather, the decision concerned the question
whether an agency was obligated to use its existing technology to
manipulate or restructure the substantive content of a requested
record in order to render the record subject to disclosure.
Yeager, 678 F.2d at 320. The Court concluded the agency had no
such duty. Id. at 327.
                               - 7 -

Facts in Dispute at 2 (arguing that “if there is ‘no segregable

information’ then whether the calls could be ‘possible to

segregate’ would be irrelevant”).)     Because “segregable” means

“possible to segregate,” the declarant’s statements are not

inconsistent.   Milton’s argument regarding the alleged

inconsistency appears to rest on a mistaken conflation of the

terms “segregable” and “exempt.”    Although the Department

concedes that Milton’s side of the telephone conversations is

non-exempt, that information is nonetheless not segregable due to

BOP’s technical limitations.   Because there is no evidence of bad

faith or inconsistency, the declaration will be credited.

                            CONCLUSION

     The Department has filed a renewed motion, supported by a

sworn declaration, demonstrating that the BOP does not possess

the technological capacity to segregate the non-exempt portions

of the requested records.   The plaintiff has presented no

evidence to refute that assertion or authority obliging BOP to

acquire the necessary technology.    Because the records therefore

are not reasonably segregable, the defendant is entitled to

judgment as a matter of law and its motion will be granted.    A

final order accompanies this memorandum opinion.

     SIGNED this 8th day of February, 2012.


                                         /s/
                               RICHARD W. ROBERTS
                               United States District Judge
