                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

Michael C. Antonelli,                  :
                                       :
               Plaintiff,              :
       v.                              :               Civil Action No. 07-2016 (CKK)
                                       :
Federal Bureau of Prisons et al.,      :
                                       :
               Defendants.             :


                                    MEMORANDUM OPINION

       In what remains of this action brought pro se under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, the Bureau of Prisons (“BOP”)

has renewed its motion for summary judgment as to counts 8, 10, 11 and 13 of the complaint.1

Upon consideration of the motion, plaintiff’s opposition, BOP’s reply and the relevant parts of

the record, the Court will grant in part and deny in part BOP’s motion for summary judgment.

                                           I. BACKGROUND

       The Court previously determined that BOP had not met its burden under the FOIA by

justifying its withholding of responsive material underlying counts 8, 10, 11 and 13 of the

complaint. See Memorandum Opinion of December 22, 2008 (“Mem. Op.”) [Dkt. No. 64] at 16-

17; id. at 6-9 (setting forth applicable facts); id at 10-11 (discussing legal standard). In response

to the accompanying Order to supplement the record, BOP proffers the Supplemental Declaration

of Karen Summers (“Summers Supp. Decl.”), Ex. S [Dkt. No. 68-2]. Summers describes each

document withheld in part or in full and discusses the applicable exemptions. See Summers



       1
        See Order of December 22, 2008 (granting partial summary judgment to BOP and
summary judgment to the Federal Bureau of Investigation); Order of August 4, 2008 (granting
summary judgment to Immigration and Customs Enforcement and the Marshals Service).
Supp. Decl. ¶¶ 6-13 (Count 8), ¶¶ 17-28 (Count 10), ¶¶ 32-37 (Count 11), ¶¶ 42-44 (Count 13).

Plaintiff generally challenges BOP’s withholding of 30 pages of “tort claims investigation

reports” (Count 8) under exemption 5 and of information contained in incident reports and “the

numerous appeals therefrom” (Counts 10, 11, 13). Response to BOP Renewed Motion for

Summary Judgment (“Pl.’s Opp’n”) [Dkt. No. 71] at 1.

                                         II. DISCUSSION

       Count 8

       BOP claims that the 30 pages withheld in their entirety contain attorney work product

protected from disclosure under FOIA exemption 5. Summers Supp. Decl. ¶ 10. Exemption 5

protects from disclosure "inter-agency or intra-agency memorandums or letters which would not

be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This

provision applies to materials that normally are privileged in the civil discovery context,

including those protected by the attorney work product privilege, the attorney-client privilege,

and the deliberative process privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149

(1975); FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983) ("The test under Exemption 5 is whether the

documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."); accord

Martin v. Dep’t. of Justice, 488 F.3d 446, 455 (D.C. Cir. 2007).

       BOP withheld as attorney work product “staff memoranda containing the

recommendation for each tort claim adjudication, and the tort claim investigations containing the

investigator’s notes, interviews and recommendations in connection with the adjudication of the

claim.” Summers Supp. Decl. ¶ 10; see id ¶ 11 (document descriptions). The documents were

“requested at the direction of BOP legal counsel.” Id. ¶ 10. Defendant properly withheld those


                                                 2
pages in their entirety as attorney work product. See Martin, 488 F.3d at 455 (“memo

contain[ing] extensive legal analyses of potential claims” prepared by agency investigator at the

direction of an agency attorney qualifies as protected attorney work product); Judicial Watch,

Inc. v. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (“If a document is fully protected as

work product, then segregability is not required.”).

       Defendant also withheld a one-page staff memorandum under exemption 5 as deliberative

process material and under exemption 7(F). To qualify under the deliberative process privilege,

the withheld information must have been pre-decisional, i.e., “generated before the adoption of

an agency policy” and deliberative, i.e., “reflects the give-and-take of the consultative process.”

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Exemption

7(F) protects from mandatory disclosure information compiled for law enforcement purposes to

the extent that disclosure “could reasonably be expected to endanger the life or physical safety of

any individual.” 5 U.S.C. § 552(b)(7)(F). In general, this exemption has been interpreted to

apply to names and identifying information of law enforcement officers, witnesses, confidential

informants and other third persons who may be unknown to the requester. See Durham v. United

States Department of Justice, 829 F. Supp. 428, 434 (D.D.C. 1993); Public Employees for

Environmental Responsibility (Peer), Rocky Mountain Chapter v. U.S. E.P.A., 978 F. Supp. 955,

961 (D. Colo. 1997) (citing cases). In reviewing claims under exemption 7(F), courts have

inquired whether there is some nexus between disclosure and possible harm and whether the

deletions were narrowly made to avert the possibility of such harm. Albuquerque Pub. Co. v.

U.S. Dep’t. of Justice, 726 F. Supp. 851, 858 (D.D.C. 1989).




                                                 3
       The withheld “staff memorandum contained security and policy related issues, as well as

discussion regarding the appropriate course of action.” Summers Supp. Decl. ¶ 11. Summers

states that not only could disclosure of the information “endanger the physical safety of

individuals,” including inmates, thereby justifying exemption 7(F) protection, but it also “would

inhibit the open and frank communications between government employees and is pre-

decisional[,]” id., thereby justifying exemption 5 protection. See Wilderness Soc’y v. United

States Dep’t of Justice, 344 F. Supp.2d 1, 10 (D.D.C. 2004) (quoting Dep’t of the Interior and

Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)) (the

deliberative process privilege protects from disclosure “‘documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated’”) (other citation omitted). Plaintiff has not contested this

withholding and, thus, has conceded BOP’s justification for withholding the described

information under the asserted exemptions.2 Moreover, plaintiff has not contested BOP’s proper

redaction of staff telephone extensions from 32 released pages under exemption 2, Summers

Supp. Decl. ¶ 8, and of third-party identifying information from two released pages under

exemption 7(C), id. ¶ 9. See Mem. Op. at 15-16 (approving application of exemption 7(C) to

third-party information); Mem. Op. of August 8, 2008 [Dkt. No. 46] at 5 (approving application

of exemption 2 to staff telephone extensions).



       2
          As will become clear, this determination does not completely resolve the issue because
the Court is without sufficient information to determine the propriety of BOP’s withholding of
the one-page staff memorandum in its entirety. See infra 7-8. Particularly, BOP has not
specified which of the information contained in the memorandum is exemption 5 material and
which is exemption 7(F) material. Unlike the broad protection afforded attorney work product,
“[f]actual material that does not reveal the deliberative process is not protected by [exemption
5],” Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007), and exemption 7(F) material is
typically capable of being redacted from a record.

                                                 4
       Count 10

       In response to plaintiff’s request for records pertaining to an incident report he received

on June 15, 2005, Summers Supp. Decl. ¶ 16, BOP released 55 whole pages and 29 redacted

pages; it withheld seven whole pages. Id. ¶ 17. BOP properly justified redacting the names of

other federal inmates under exemptions 7(C) and 7(F) from the released documents. Summers

Supp. Decl. ¶¶ 19, 22.

       BOP redacted “information contained in staff memoranda, specifically internal

procedures related to the Administrative Remedy Program” under exemption 2 and, as to three

documents, in conjunction with exemption 7(F). Id. ¶¶ 21, 22. By its terms, exemption 2

protects from disclosure information that is "related solely to the internal personnel rules and

practices of an agency." 5 U.S.C. § 552(b)(2). BOP properly redacted such information from the

released documents. Cf. Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051,

1073 (D.C. Cir. 1981) (approving the redaction of portions of BATF manual pertaining to law

enforcement investigative techniques).

       BOP withheld seven documents in their entirety. It withheld a one-page staff

memorandum dated June 16, 2005, containing “communications between government employees

in connection with security/safety issues” under exemptions 5 and 7(F); a one-page staff

memorandum and two e-mail messages containing “communications of [a] government

employee in review of administrative remedy investigation and recommendation for

adjudication” as deliberative process material under exemption 5 and, as to one e-mail, in

conjunction with exemption 2; a “Draft Administrative Remedy Response” under exemption 5;

and a two-page, third-party Request for Administrative Remedy under exemption 7(C).

Summers Supp. Decl. ¶¶ 24-27. BOP has properly justified withholding the aforementioned


                                                 5
information as deliberative process material, except that contained in the first listed

memorandum of June 16, 2005.3 There is no indication from the description provided that the

communications regarding security and safety issues were “pre-decisional and . . . deliberative,”

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997), and “documents that simply state or

explain a decision the government has already made or protect material that is purely factual” is

not protected by the deliberative process privilege. Id. The Court therefore denies summary

judgment to BOP on its application of exemption 5 to the information contained in the

memorandum dated June 16, 2005, and, as earlier noted, on its withholding of the seven

documents in their entirety.

       Count 11

       In response to plaintiff’s request for records pertaining to another incident report, BOP

released 23 whole pages and 18 redacted pages; it withheld five pages in their entirety. Summers

Supp. Decl. ¶ 32. BOP properly justified redacting third-party information from the 18 released

pages under exemptions 7(C) and 7(F). See id. ¶¶ 34, 35. BOP’s descriptions of the five

withheld pages, however, are too sparse for the Court to determine the propriety of those

withholdings. Invoking exemptions 2 and 7(F), BOP withheld a four-page document identified

only as “[h]andwritten undated documents” and one-page identified only as a “[d]ocument/

drawing.” Id. ¶ 37. It does not state which of the information contained therein is exemption 2

material and which is exemption 7(F) material and correlate said material with the asserted harm.

See Oglesby v. U.S. Dep’t of Justice, 79 F.3d 1172, 1178 (D.C. Cir. 1996) (adequate affidavit


       3
         It is unclear whether this document is the same as the staff memorandum of the same
date described under Count 8 that is described also as containing “discussion regarding the
appropriate course of action.” Summers Supp. Decl. ¶ 11. Because defendant must review both
documents for segregability, the Court will leave this point for defendant to clarify in its
supplemental filing.

                                                  6
“contains sufficient detail to forge the ‘logical connection between the information [withheld]

and the claimed exemption’”) (quoting Goldberg v. U.S. Dep’t of State, 818 F.2d 71, 78 (D.C.

Cir. 1987)) (brackets in original). The Court therefore denies summary judgment to BOP on its

application of exemptions 2 and 7(F) to the five withheld pages.

       Count 13

       In response to plaintiff’s request for records pertaining to yet another incident report,

BOP released 10 whole pages and one redacted page. Id. ¶ 42. It properly justified redacting

“communications of [a] government employee in review of administrative remedy investigation

and recommendation for adjudication” as deliberative process material protected by exemption 5.

Id. ¶ 43; see supra 3-4.

       Record Segregability

       The Court must determine on its own whether defendant properly withheld responsive

records in their entirety. See Trans-Pacific Policing Agreement v. United States Customs

Service, 177 F.3d 1022, 1027-28 (D.C. Cir. 1999). Summers states that “[e]ach record was

evaluated for, line by line, for segregability[,]” Summers Supp. Decl. ¶ 47, and that the “withheld

information cannot be further segregated without disclosing certain [BOP] security techniques . .

. and without revealing the identities and identifying factors of third parties[,]” id. ¶ 48. She

further states that “[w]here a document was withheld in its entirety, BOP determined that no

meaningful portions could reasonably be released without destroying the integrity of such

document as a whole.” Id. But in order to justify withholding entire documents, an agency must

demonstrate that the “exempt and nonexempt information are ‘inextricably intertwined,’ such

that the excision of exempt information would impose significant costs on the agency and

produce an edited document with little informational value." Mays v. Drug Enforcement


                                                  7
Administration, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (quoting Neufeld v. IRS, 646 F.2d 661,

666 (D.C. Cir. 1981)) (other citation and internal quotation marks omitted). Whether release of

information would destroy the “integrity” of the document is not significantly probative of the

issue. The Court therefore denies summary judgment to BOP on its withholding of records in

their entirety--except the 30 pages of attorney work product--and defers its finding on record

segregability pending BOP’s supplementation of the record.

                                         CONCLUSION

       For the foregoing reasons, the Court grants BOP’s summary judgment motion with

respect to its redacting of information based on FOIA exemptions 2, 5, 7(C) and 7(F) and its

withholding of 30 pages of attorney work product under FOIA exemption 5. As to the

application of exemption 5 to the information contained in the one-page memorandum dated

June 16, 2005 (Count 10), the application of exemptions 2 and 7(F) to five withheld pages

(Count 11), and the withholding of all other documents in their entirety, the motion is denied. A

separate Order accompanies this Memorandum Opinion.



                                             __________s/s__________________
                                             COLLEEN KOLLAR-KOTELLY
DATE: June 9, 2009                           United States District Judge




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