                     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 AND ORDER

     Plaintiff Gregory A. Milton, a prisoner serving a criminal

sentence, filed this pro se complaint against the United States

Department of Justice under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552.    The Department of Justice has filed a

motion to dismiss or, in the alternative, for summary judgment.

Because the Department of Justice’s affidavit in support of its

motion is not sufficient to justify withholding the documents at

issue, its motion, treated as one for summary judgment, will be

denied without prejudice, and the Department of Justice will be

ordered to supplement its affidavit.

                              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).    Briefly,

Milton seeks the recordings of telephone conversations he had in

his calls from prison to others.    The Department of Justice filed
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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.

                             DISCUSSION

     Summary judgment may be granted when the materials in the

record show “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009).   A court considering a motion for summary

judgment must draw all “justifiable inferences” from the evidence

in favor of the nonmovant.   Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).   In a FOIA suit, an agency is entitled to

summary judgment if it 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.   Students Against Genocide v. Dep’t of

State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. U.S. Dep’t

of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).   A district court

must conduct a de novo review of the record in a FOIA case, 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,
                               - 3 -

Gump, Strauss, Hauer & Feld, LLP v. U.S. Dep’t of Justice, 503 F.

Supp. 2d 373, 378 (D.D.C. 2007).

I.   WITHHOLDING

     The FOIA requires agencies to comply with requests to make

their records available to the public, unless information is

exempted by clear statutory language.    5 U.S.C. § 552(a), (b);

Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.

1996).   Although there is a “strong presumption in favor of

disclosure[,]” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173

(1991), there are nine exemptions to disclosure set forth in 5

U.S.C. § 552(b).   These exemptions are to be construed as

narrowly as possible to maximize access to agency information,

which is one of the overall purposes of the FOIA.    Vaughn v.

Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).

     Because the party requesting disclosure cannot know the

precise contents of the documents withheld, it is at a

disadvantage to claim misapplication of an exemption, and a

factual dispute may arise regarding whether the documents

actually fit within the cited exemptions.    Id. at 823-24.      To

provide an effective opportunity for the requesting party to

challenge the applicability of an exemption and for the court to

assess the exemption’s validity, the agency must explain the

specific reason for nondisclosure.     Id. at 826-27; see also

Oglesby, 79 F.3d at 1176 (“The description and explanation the
                               - 4 -

agency offers should reveal as much detail as possible as to the

nature of the document, without actually disclosing information

that deserves protection.”).   Conclusory statements and

generalized claims of exemption are insufficient to justify

withholding.   Vaughn, 484 F.2d at 826; see also Mead Data Cent.,

Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir.

1977) (noting that “the burden which the FOIA specifically places

on the Government to show that the information withheld is exempt

from disclosure cannot be satisfied by the sweeping and

conclusory citation of an exemption” (footnote omitted)).

However, the “materials provided by the agency may take any form

so long as they give the reviewing court a reasonable basis to

evaluate the claim of privilege.”   Delaney, Migdail & Young,

Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987) (referring

to an index describing withheld material and the justification

for withholding as a “Vaughn Index”).   If the agency materials

“‘contain reasonable specificity of detail rather than mere

conclusory statements,’” then a plaintiff must point either to

contradictory evidence in the record or provide independent

evidence of agency bad faith to demonstrate that the agency

improperly invoked an exemption.    Williams v. FBI, 69 F.3d 1155,

1159 (D.C. Cir. 1995) (quoting Gallant v. NLRB, 26 F.3d 168, 171

(D.C. Cir. 1994)).
                               - 5 -

     The Department of Justice asserts that FOIA Exemption 6

justifies not disclosing the records the plaintiff seeks.

Exemption 6 provides that an agency may withhold “personnel . . .

and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy[.]”   5 U.S.C.

§ 552(b)(6).   The threshold inquiry is whether the requested

information is contained in a type of file covered by the

exemption.   Wash. Post Co. v. U.S. Dep’t of Health and Human

Servs., 690 F.2d 252, 260 (D.C. Cir. 1982).   Congress intended

the term “similar files” to be construed broadly, U.S. Dep’t of

State v. Wash. Post Co., 456 U.S. 595, 602 (1982), and the D.C.

Circuit has held that “[a]ll information which applies to a

particular individual is covered by Exemption 6, regardless of

the type of file in which it is contained.”   Wash. Post Co. v.

U.S. Dep’t of Health and Human Servs., 690 F.2d at 260 (internal

quotation marks omitted).   The information in the file “need not

be intimate” for the file to satisfy the standard, and the

threshold for determining whether information applies to a

particular individual is minimal.   N.Y. Times Co. v. NASA, 920

F.2d 1002, 1006 (D.C. Cir. 1990); see also Nat’l Ass’n of Retired

Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989)

(“Exemption 6 is designed to protect personal information in

public records,” such as, but not limited to, information about

an individual’s birth, marriage, or employment).   The requested
                                - 6 -

records consist of information that pertain to particular

individuals (see Def.’s Mem. of P. & A. in Supp. of its Mot. to

Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at

7-8), and are therefore subject to FOIA Exemption 6.   See

McMillian v. Fed. Bureau of Prisons, Civil Action No. 03-1210

(GK), 2004 WL 4953170, at *5 (D.D.C. July 23, 2004) (noting that

the “tapes of telephone conversations . . . are considered

‘similar files’ subject to withholding under Exemption 6").

     Once the threshold inquiry is satisfied, a court must

determine whether disclosure would constitute a clearly

unwarranted invasion of privacy.   Wash. Post Co. v. U.S. Dep’t of

Health and Human Servs., 690 F.2d at 260.    To make this

determination, a court balances the public interest in disclosure

against the individual privacy interests in the information

contained in the files.   Id.   The requestor bears the burden of

articulating a significant public interest, Schwaner v. Dep’t of

Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010), and of showing that

disclosure would advance that interest.   ACLU v. Dep’t of

Justice, 698 F. Supp. 2d 163, 165 (D.D.C. 2010).   “The only

public interest to be considered under the FOIA is the extent to

which disclosure ‘advances the citizens’ right to be informed

about what their government up to.’”    Hertzberg v. Veneman, 273

F. Supp. 2d 67, 87 (D.D.C. 2003) (quoting Nat’l Ass’n of Home

Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002)).
                                - 7 -

Conversely, there is no public interest in disclosure of

information about private citizens that reveals “‘little or

nothing about an agency’s own conduct.’”   Reed v. NLRB, 927 F.2d

1249, 1251 (D.C. Cir. 1991) (quoting U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).

On the other side of the balance, the “[r]elease of a recording

of a telephone conversation can be an invasion of personal

privacy.”    McMillian, 2004 WL 4953170, at *7.

      Milton has not articulated any significant public interest

in the disclosure of the phone records.    Rather, he describes his

FOIA request as one for access to evidence that supports his

innocence.   (See Pl.’s Am. Br. in Opp’n to Def.’s Mot. to

Dismiss, or in the Alternative for Summ. J. (“Pl.’s Opp’n”) at 5-

6).   In the absence of any evidence of government impropriety,

this reflects a personal rather than a public interest.    See

Oguaju v. United States, 288 F.3d 448, 451 (D.C. Cir. 2002)

(noting in the context of Exemption 7(C) that the plaintiff’s

“personal stake in using the requested records to attack his

convictions does not count in the calculation of the public

interest”), vacated and remanded on other grounds, 541 U.S. 970

(2004), reinstated, 378 F.3d 1115 (D.C. Cir. 2004).    With respect

to the privacy interests that his request implicates, Milton

argues that he signed a waiver allowing the Bureau of Prisons to

monitor his phone calls and that this waiver impliedly extends to
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any party who accepted his calls.   (See Pl.’s Opp’n at 3.)

However, a protected privacy interest can be waived only by the

person whose interest is affected, see Milton, 596 F. Supp. 2d at

66; Sherman v. U.S. Dep’t of Army, 244 F.3d 357, 364 (5th Cir.

2001), and Milton has not produced Privacy Act waivers from the

individuals with whom he spoke on the telephone.   (See Def.’s

Mem., Herbin-Smith Decl. ¶¶ 10, 14; Pl.’s Opp’n at 2 (implying

that he did not submit Privacy Act waivers on behalf of the

individuals with whom he spoke but arguing that “no waiver should

be necessary”).)    Such written waivers would be evidence of a

knowing and intentional waiver of the substantial interest

protected by Exemption 6 in preventing the public disclosure of

private information.   No uncorroborated surmise that the persons

he called necessarily would have heard a recorded warning that

calls were subject to being monitored or recorded should suffice

to replace a written Privacy Act waiver.   Milton has presented no

other evidence that the individuals to whom he spoke have waived

their privacy interests in protecting the content of their calls

from public disclosure.   See Nat’l Archives and Records Admin. v.

Favish, 541 U.S. 157, 174 (2004) (noting that “once there is

disclosure [under the FOIA], the information belongs to the

general public”).   Because that privacy interest is more than de

minimis, the Department of Justice’s withholding under Exemption
                               - 9 -

6 was proper.1   See Schwaner, 696 F. Supp. 2d at 83 (noting that

“‘even a modest privacy interest outweighs nothing every time’”

(quoting Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C.

2008)).

II.   SEGREGABILITY

      An agency must disclose “[a]ny reasonably segregable

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

agency cannot withhold non-exempt portions of a document unless

they “are inextricably intertwined with exempt portions.”    Mead

Data, 566 F.2d at 260.   While an agency is presumed to have

complied with its obligation to disclose non-exempt portions of

the record, a “district court must make specific findings of

segregability regarding the documents to be withheld.”   Sussman

v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007).        To

demonstrate that the withholding agency has disclosed all

reasonably segregable material, “the withholding agency must

supply ‘a relatively detailed justification, specifically

identifying the reasons why a particular exemption is relevant

and correlating those claims with the particular part of a

withheld document to which they apply.’”   King v. U.S. Dep’t of



      1
       Because the Department of Justice has demonstrated
adequately that it withheld properly the requested records under
Exemption 6, the agency’s invocation of Exemption 7C need not be
addressed. See also McMillian, 2004 WL 4953170, at *5 (noting
that “Exemption 7(C) provides a somewhat lower floor for
withholding records than does Exemption 6").
                                - 10 -

Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (quoting Mead Data,

566 F.2d at 251).    Presenting a “comprehensive Vaughn index,

describing each document withheld, as well as the exemption under

which it was withheld” supplemented by 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.    See Johnson v. Exec. Office

for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also

Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008)

(noting that a court “may rely on government affidavits that show

with reasonable specificity why documents withheld pursuant to a

valid exemption cannot be further segregated”).    Where the

agency’s materials are inadequate to demonstrate that it has

disclosed all reasonably segregable portions of the requested

records, a court may order the agency to supplement the record

for purposes of further review.    See Maydak v. U.S. Dep’t of

Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003).

        The Department of Justice’s affidavit states that its “FOIA

experts [advised] that the type of format (‘.wav.’) . . . does

not make it possible to segregate[,]” and that “efforts to

segregate calls are made very difficult by individuals

interrupting each other throughout the call and would place the

conversations out of context.”    (Def.’s Mem., Herbin-Smith Decl.

¶ 6.)    However, the affidavit provides no basis for concluding
                              - 11 -

that the Department of Justice cannot segregate non-exempt

portions of .wav files.   It is unclear whether the Department of

Justice is claiming that no technology or program exists for

editing or modifying a .wav file, whether the Department of

Justice merely lacks that technology, or whether it is impossible

to segregate the files for some other reason.   Additionally, the

generalized assertion that efforts to segregate calls are

difficult because individuals may interrupt each other on the

phone and because segregated portions of the calls may lack

context is a conclusory claim that is insufficient to demonstrate

that there are no portions of these calls that are reasonably

segregable.   Because the affidavit does not state that an

appropriate agency official reviewed the telephone conversations

at issue here and concluded that they contained no reasonably

segregable portions, the Department of Justice has not

demonstrated adequately that it has complied with its obligation

to disclose all reasonably segregable portions of the otherwise

exempt records.

                       CONCLUSION AND ORDER

     Although the Department of Justice has properly invoked

Exemption 6, it has not demonstrated that the requested telephone

recordings contain no segregable information.   Accordingly, it is

hereby
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     ORDERED that the defendant’s motion [11] to dismiss, or in

the alternative, for summary judgment, be, and hereby is, DENIED

without prejudice.   It is further

     ORDERED that the defendant shall have until June 6, 2011 to

move anew for summary judgment.

     SIGNED this 6th day of May, 2011.


                               __________/s/_______________
                               RICHARD W. ROBERTS
                               United States District Judge
