                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                             )
CHARLES F. MURRAY,                           )
                                             )
                      Plaintiff,             )
                                             )
       v.                                    )       Civil Action No. 09-1494 (PLF)
                                             )
FEDERAL BUREAU OF PRISONS,                   )
                                             )
                      Defendant.             )
                                             )


                                            OPINION

               This matter is before the Court on two separate motions to dismiss or, in the

alternative, for summary judgment filed on behalf of the Federal Bureau of Prisons (“BOP”), a

component of the United States Department of Justice (“DOJ”).1 For the reasons discussed

below, plaintiff’s claims under the Privacy Act, see 5 U.S.C. § 552a, will be dismissed.

Regarding plaintiff’s claims under the Freedom of Information Act (“FOIA”), see 5 U.S.C.

§ 552, summary judgment will be granted in part and denied in part.


                                       I. BACKGROUND

               At all times relevant to the complaint, plaintiff was a federal prisoner designated

to the Federal Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”). According to

the BOP’s Inmate Locator, plaintiff was released on July 2, 2010.




       1
              The Privacy Act and the FOIA apply to federal government agencies, see 5 U.S.C.
§§ 551(1), 552(f)(1), 552a(a)(1), and the DOJ is the proper defendant in this case. For
convenience, however, the Court will refer to the defendant as “the BOP.”
                                      A. Request No. 2007-08381

                   On July 21, 2007, plaintiff submitted a FOIA request to the BOP, Compl. ¶ 5, for

the following information:

                   1.     List of visitors and dates of visits received at [the Federal
                          Detention Center in Philadelphia, Pennsylvania] from July 23,
                          2003 thru March 2005, at [the Federal Correctional Institution
                          in Elkton, Ohio] from March 2005 thru September 2006 and
                          at FCI Fort Dix from September 2006 to date.

                   2.     A list of Fine payments made thru the BOP’s [Financial
                          Responsibility Program] from March 2005 thru July 2007.

Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss or, in the

Alternative, for Summary Judgment [Dkt. #14] (“Def.’s Mem.”), Declaration of Vanessa Herbin-

Smith (“Herbin-Smith Decl.”), Ex. 2 (Privacy Act Request dated July 21, 2007). In addition,

plaintiff requested “a waiver of fees since [he was] without any funds to pay for excess copies

that might be required.” Id. On July 31, 2007, the BOP denied plaintiff’s fee waiver request.

Id., Ex. 3 (Letter from H.J. Sadowski, Regional Counsel, Northeast Regional Office, BOP,

regarding FOIA Request No. 2007-08381). Apparently no further action was taken with respect

to this request.


                                      B. Request No. 2008-06038

                   On March 28, 2008, plaintiff submitted a similar request to the BOP seeking the

following information:

                   1.     a list of visits that I received while in the custody of [the
                          BOP] giving the names of the visitors, the date of the visit,
                          length of the visit and,




                                                    2
               2.      a list detailing all payments withdrawn from my prison
                       account under the Inmate Financial Responsibility Program
                       . . . showing the date of the payment, the amount of each
                       payment and to which Criminal Judgement and Commitment
                       ORder [sic] it was applied.

Herbin-Smith Decl., Ex. 6 (Privacy Act Request to the FOIA/PA Unit, BOP). The BOP located

25 pages of records responsive to the request, which had been assigned Request No. 2008-06038.

Herbin-Smith Decl. ¶¶ 9-10. Of these 25 pages, the BOP released five pages in full and redacted

certain information from the remaining pages “because they contain third-party information and

information intended for staff use only.” Id. ¶ 10. Relying on FOIA Exemptions 2, 6 and 7(C),

these 20 pages of records were released in redacted form. Id. Among the records released was

“a 2-page Inmate Visitor List from [plaintiff’s] Inmate Central File.” Id. ¶ 11.

               Plaintiff filed an administrative appeal of the BOP’s determination with the DOJ’s

Office of Information Policy (“OIP”) challenging the completeness of the BOP’s response and

the format of the records regarding payment of court-ordered judgments. Id. ¶ 14; see generally

id., Ex. 8 (July 10, 2008 letter to the Office of Inform/Privacy [sic], DOJ). The list of visits “only

included those persons that are currently on [his] visitor list,” and therefore the list he received

was not the “complete” list he requested. Id., Ex. 8 at 2. For example, the list did not include

visits from his former attorney, his significant other, and probation officers, and it did not

indicate the length of each visit. Id. In addition, plaintiff asserted that the BOP’s response to his

request for a list detailing all payments withdrawn from his prison account under the Inmate

Financial Responsibility Program was incomplete because it did not indicate by criminal case

number the amount credited toward each fine owed. Id.




                                                  3
               On October 28, 2008, the OIP remanded the matter to the BOP, Compl. ¶ 8, with

instructions to “process the visitor logs responsive to [plaintiff’s] request for release

determinations, and provide [plaintiff] with any and all releasable records, subject to any fees,”

Herbin-Smith Decl., Ex. 9 (October 28, 2008 Administrative Appeal Remand Memorandum).

               On remand, the BOP conducted an additional search and located 94 pages of

records. Herbin-Smith Decl. ¶¶ 16-17. Staff construed the request as one for “entries in a log

book maintained at the entrance to each institution in which [plaintiff] was housed when he

received a visitor.” Id. ¶ 16. Accordingly, staff at each facility obtained the actual log book or

books for the relevant time period and looked for “any entry indicating [that plaintiff had]

received a visit.” Id. If he had, staff copied the appropriate page. Id. The BOP released two

pages of records in full and 92 pages of records in part after having redacted information under

FOIA Exemptions 2, 6 and 7(C). Id. ¶ 17; see id., Ex. 10 (October 23, 2009 letter from H.J.

Sadowski).


                                    C. Request No. 2010-00258

               On September 6, 2009, plaintiff submitted a request to the BOP for the following

information in paper format:

               1.      all electronic communications, commonly referred to as E-
                       mail, that was [sic] either generated or received from
                       computers used by staff in Unit 5702 at FCI Fort Dix, NJ after
                       April 1, 2009 to date that have any part of that
                       communication my name or regulation number 40775-050.

               2.      all written memorandums [sic] written or received by 5702
                       unit staff that was a part of that memorandum my name or
                       registration number 40775-050.



                                                   4
Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss or, in the

Alternative, for Summary Judgment [Dkt. #27] (Def.’s 2d Mem.”), Declaration of Donna

Johnson (“Johnson Decl.”), Ex. 1 (Privacy Act Request dated September 6, 2009); Supp. Compl.

¶ 13. On February 18, 2010, the BOP released three pages of records in full. Johnson Decl. ¶ 4;

see id., Ex. 2 (Letter from H.J. Sadowski, with attachments).


                                         II. DISCUSSION

                     A. The BOP’s Motions to Dismiss: Privacy Act Claims

               Plaintiff brings this action under the Privacy Act, see 5 U.S.C. § 552a(g), alleging

that the BOP has denied him access to records pertaining to him in violation of 5 U.S.C.

§ 552a(d)(1), Compl. ¶ 11, and demanding injunctive relief to compel disclosure of the requested

records on an expedited basis and at no cost to him. See id. at 3. The BOP moves to dismiss

plaintiff’s complaint in part on the ground that it fails to state a claim under the Privacy Act. See

Def.’s Mem. at 4-7; Def.’s 2d Mem. at 10-11.


                               1. Information Pertaining to Visitors

               The Privacy Act permits an individual to request “access to his record or to any

information pertaining to him which is contained in the system, [and] permit him . . . to review

the record and have a copy made of all or any portion thereof in a form comprehensible to

him[.]” 5 U.S.C. § 552a(d)(1) (emphasis added). For purposes of the Privacy Act, the term

“record” means “any item, collection, or grouping of information about an individual that is

maintained by an agency . . . and that contains his name, or the identifying number, symbol, or

other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(4). A record, then,


                                                  5
must be “about” an individual, and it “must contain the individual’s name or other identifying

particular.” Tobey v. Nat’l Labor Relations Bd., 40 F.3d 469, 471 (D.C. Cir. 1994); see also

Leighton v. Cent. Intelligence Agency, 412 F. Supp. 2d 30, 39 (D.D.C. 2006). Both of these

“twin requirements” must be satisfied in order to qualify as a record under the Privacy Act.

Scarborough v. Harvey, 493 F. Supp. 2d 1, 15 (D.D.C. 2004). “[T]he fact that information

contains an individual’s name does not mean that the information is ‘about’ the individual.”

Tobey v. Nat’l Labor Relations Bd., 40 F.3d at 471; see also Fisher v. Nat’l Insts. of Health, 934

F. Supp. 464, 468, 471 (D.D.C. 1996). As the D.C. Circuit elaborated:

                       [W]e interpret 5 U.S.C. § 552a(d)(1) to give parties
                       access only to their own records, not to all
                       information pertaining to them that happens to be
                       contained in a system of records. For an assemblage
                       of data to qualify as one of [the plaintiff’s] records, it
                       must not only contain his name or other identifying
                       particulars but also be “about” him. That is, it must
                       actually describe him in some way.

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1121 (D.C. Cir. 2007) (internal citation

omitted); see also Aguirre v. SEC, 671 F. Supp. 2d 113, 121 (D.D.C. 2009).

               With respect to plaintiff’s request for a list of visitors, the BOP argues that the

information plaintiff seeks does not pertain to him and therefore does not qualify as a “record”

for purposes of the Privacy Act. Def.’s Mem. at 4-5. Following this theory, plaintiff is not

entitled to injunctive relief because under the Privacy Act he is not allowed access to records that

relate to individuals or entities other than himself. Id. at 5. And because the BOP has located

and disclosed some information pertaining to plaintiff’s visitors, it argues that it has not denied

him access to information in violation of 5 U.S.C. § 552a(d)(1). Def.’s Mem. at 7. Plaintiff



                                                   6
counters that he “does not ask for, nor does he expect to receive any addresses or phone

number[s],” but rather “seeks . . . information pertaining to ‘his’ visitors.” Plaintiff’s Opposition

to Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment (“Pl.’s Opp’n”)

at 2. The records he received “did provide a partial list of the names, dates and times of visits . . .

[but] the list omitted the names, dates and times of visits by his former counsel, former girlfriend,

and U.S. Probation Officers.” Id. Plaintiff, then, is requesting information including the names

of or other identifying particulars assigned to individuals other than himself.

               The visitor information plaintiff requests certainly pertains to him in a generic

sense – the visitors came to see him at the various BOP facilities where he had been incarcerated,

and these visitors necessarily are linked to plaintiff. Even if the information he seeks includes his

name and identifying number (in this case his federal register number), the balance of the

information requested pertains to the third party visitors personally; the information is not

“about” the plaintiff and therefore is not a “record” as the D.C. Circuit has defined the term. See

Tobey v. Nat’l Labor Relations Bd., 40 F.3d at 471; see also Aguirre v. SEC, 671 F. Supp. 2d at

121; Leighton v. Cent. Intelligence Agency, 412 F. Supp. 2d at 39.


        2. Information Maintained in the Inmate Central Record System and TRUFACS

               The BOP further argues that, with respect to plaintiff’s demand for records

maintained in the Inmate Central Record System, plaintiff’s supplemental complaint fails to state

a Privacy Act claim because this system of records is exempt from 5 U.S.C. § 552a(g). Def.’s 2d

Mem. at 10-11.




                                                  7
                The Privacy Act allows an individual access to an agency’s records or information

in a system of records pertaining to him, 5 U.S.C. § 552a(d)(1), allows him to file a civil action

against an agency which denies him access, 5 U.S.C. § 552a(g)(2)(B), and authorizes the Court to

“enjoin the agency from withholding the records and order the production to the complainant of

any agency records improperly withheld from him.” 5 U.S.C. § 552a(g)(3)(A). Notwithstanding

the relief ostensibly available under the Privacy Act, an agency’s Director may promulgate

regulations to exempt any system of records within the agency from any part of the Privacy Act,

except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and

(I), if the system of records is:

                        maintained by an agency or component thereof
                        which performs as its principal function any activity
                        pertaining to the enforcement of criminal laws,
                        including . . . correctional, probation, pardon, or
                        parole authorities, and which consists of . . . reports
                        identifiable to an individual compiled at any stage
                        of the process of enforcement of the criminal laws
                        from arrest or indictment through release from
                        supervision.

5 U.S.C. § 552a(j)(2) (emphasis added). Pursuant to this authority, regulations have been

promulgated that exempt the BOP’s Inmate Central Record System (JUSTICE/BOP-005) and the

Inmate Commissary Accounts Record System (JUSTICE/BOP-006) from subsections (d) and (g),

the access and remedy provisions, of the Privacy Act. See 28 C.F.R. § 16.97(a)(4), (a)(5). In this

case, records responsive to both of plaintiff’s requests were located in these exempt systems of

records. Herbin-Smith Decl. ¶ 11; Johnson Decl. ¶ 6.




                                                   8
                           3. Plaintiff’s Requests Fall Under the FOIA

               Plaintiff argues that the BOP improperly relies on FOIA exemptions to withhold

the information he has requested under the Privacy Act, and asserts that “the BOP’s automatic

conversion of all inmate’s [sic] Privacy Act request[s] to FOIA requests runs afoul of [5 U.S.C.

§ 552a(t)(1).]” Pl.’s Opp’n at 3. The FOIA and the Privacy Act necessarily work together. No

agency may rely on a FOIA exemption to withhold from an individual any record which

otherwise is accessible to him under the Privacy Act, 5 U.S.C. § 552a(t)(1); conversely, no

agency may rely on a Privacy Act exemption to withhold from any individual any record which

otherwise is available to him under the FOIA, 5 U.S.C. § 552a(t)(2). For example, the Inmate

Central Record System is exempt from the access provision of the Privacy Act, 5 U.S.C.

§552a(d). See 5 U.S.C. 552a(j); 29 C.F.R. § 16.97(a). To the extent that disclosure of

information deemed a “record” for Privacy Act purposes is permitted under the FOIA, however,

the Privacy Act allows its release. See 5 U.S.C. § 552a(t)(2).

               The Court concludes that the complaint fails to state Privacy Act claims upon

which relief can be granted with respect to information about third party visitors and information

maintained in the Inmate Central Record System or the Inmate Commissary Accounts Record

System. The BOP properly processed plaintiff’s requests under the FOIA.


                  B. The BOP’s Motion for Summary Judgment: FOIA Claims

                                 1. Summary Judgment Standard

               The Court will grant a motion for summary judgment if the pleadings, the

discovery and disclosure materials on file, together with any affidavits or declarations, show that



                                                 9
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law. FED . R. CIV . P. 56(c). The moving party bears the burden of demonstrating the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Factual assertions in the moving party’s affidavits or declarations may

be accepted as true unless the opposing party submits his own affidavits, declarations or

documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

               In a FOIA case, the Court may grant summary judgment based solely on

information provided in an agency’s affidavits or declarations if they are relatively detailed and

when they describe “the documents and the justifications for nondisclosure with reasonably

specific detail, demonstrate that the information withheld logically falls within the claimed

exemption, and are not controverted by either contrary evidence in the record nor by evidence of

agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also

Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or 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. &

Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).




                                                  10
                         2. The BOP’s Searches for Responsive Records

               “An agency fulfills its obligations under FOIA if it can demonstrate beyond

material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’”

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v.

Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep’t of Justice,

23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or

declarations that explain in reasonable detail the scope and method of the agency’s search. Perry

v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such

affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA.

Id. at 127. 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 at 542.


                                    a. Request No. 2008-06038

               The BOP gathered records responsive to Request No. 2008-06038 “through a

review of [p]laintiff’s Inmate Central File . . . and the Trust Fund Accounting and Commissary

System (“TRUFACS”). Herbin-Smith Decl. ¶ 11. The former are “BOP records maintained in a

centralized file concerning [a] specific inmate,” and the latter is “a system that tracks financial

data during an inmate’s incarceration.” Id. The BOP’s declarant asserts that “[t]his search

method was reasonably calculated to uncover all relevant documents.” Id.. Yet the BOP’s

declarant does not describe a search method at all. Rather, she states only that the BOP searched

two systems of records and found responsive records there. “While the affidavits or declarations

submitted by the agency need not set forth with meticulous documentation the details of an epic



                                                 11
search for the requested records, they must describe what records were searched, by whom, and

through what processes, and must show that the search was reasonably calculated to uncover all

relevant documents.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 92

(D.D.C. 2009) (citations and internal quotation marks omitted). The BOP’s declaration does not

address these points. It does not establish that the systems of records actually searched were

those most likely to contain records responsive to the plaintiff’s FOIA request. See Oglesby v.

U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (stating that “the agency cannot limit its

search to only one record system if there are others that are likely to turn up the information

requested”). Nor does the declaration describe “with particularity the files that were searched

[or] the manner in which they were searched.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d at 552.

Moreover, the declaration mentioned that one page was a “printout from the BOP’s inmate

computer database known as Sentry,” Herbin-Smith Decl. ¶ 11, but it is unclear whether Sentry is

a distinct database which also was searched for records responsive to plaintiff’s request. See id.

¶ 12.


                                    b. Request No. 2010-00258

               Plaintiff’s Request No. 2010-00258 specifically refers to e-mail communications

and written memoranda generated or received by staff at FCI Fort Dix, see Johnson Decl., Ex. 1,

and the BOP forwarded the request to FCI Fort Dix with instructions for its staff “to search for

any and all responsive records.” Johnson Decl. ¶ 3. Each member of plaintiff’s Unit Team (a

Unit Manager, Case Manager and Correctional Counselor) “searched the BOP’s GROUPWISE

email system (used by BOP staff to communicate) for documents responsive to” plaintiff’s



                                                 12
request for e-mail communications.” Id. ¶ 6. These staff members were considered the most

likely people to have received or generated e-mail messages from computers used by staff in

units specified in the request. Id. Plaintiff’s Case Manager located two pages of e-mail

communications. Id. These staff members also searched their “individual GROUPWISE email

accounts (to include received, sent, and archived) to locate any communications responsive to the

request,” id., but no additional records were located.

                 With respect to plaintiff’s request for written memoranda written or received by

unit staff at FCI Fort Dix, it was determined that plaintiff’s Central File was the most likely

place to find such information because the “records pertaining to the care, classification,

subsistence, protection, discipline and programs of federal inmates” are maintained there.

Johnson Decl. ¶ 7. “Records pertaining to an inmate are routinely placed in [his] central file

which is maintained at [his] currently designated institution,” id., which for plaintiff was FCI

Fort Dix. Plaintiff’s Case Manager searched the central file and located a one-page document

responsive to the FOIA request. Id. These three pages of records were released to plaintiff in

their entirety. See id., Ex. 2 (attachments).

                 Although plaintiff filed an opposition, he does not address either the method or

the results of the search for records responsive to Request No. 2010-00258. Based on the BOP’s

declaration and absent a challenge by plaintiff, the Court concludes that the agency’s search for

e-mail communications and written memoranda pertaining to plaintiff was reasonable under the

circumstances.




                                                 13
                                      III. CONCLUSION

               Plaintiff’s complaint, as amended, fails to state a Privacy Act claim upon which

relief can be granted, and the BOP’s motions to dismiss the Privacy Act claims therefore will be

granted. Because the BOP does not establish that its search for records responsive to Request

No. 2008-06038 was reasonably calculated to locate responsive records, summary judgment on

the FOIA claims will be denied in part. The Court defers consideration of the exemptions

claimed with respect to these records. Because the BOP’s search for records responsive to

Request No. 2010-00258 was reasonable and because all the records have been released in their

entirety, summary judgment will be granted for defendant with respect to this FOIA request. As

to the matters on which summary judgment is denied, the BOP may file a renewed motion for

summary judgment based on additional undisputed facts or by presenting additional legal

arguments. An appropriate Order accompanies this Opinion.



                                             /s/
                                             PAUL L. FRIEDMAN
                                             United States District Judge
DATE: September 29, 2010




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