                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                  :
EDUARDO BENAVIDES,                :
                                  :
                Plaintiff,        :
                                  :
     v.                           :    Civil Action No. 09-2026 (JEB)
                                  :
BUREAU OF PRISONS,                :
                                  :
                Defendant.        :
                                  :


                           MEMORANDUM OPINION

     This matter is before the Court on the parties’ cross-

motions for summary judgment.     For the reasons discussed below,

defendant’s motion will be granted in part and denied in part,

and plaintiff’s motion will be denied.

                             I.   BACKGROUND

     Plaintiff submitted two separate requests under the Freedom

of Information Act (“FOIA”), see 5 U.S.C. § 552, to the Federal

Bureau of Prisons (“BOP”), a component of the United States

Department of Justice (“DOJ”), for information pertaining to

“billing records and recorded telephone conversations of phone

calls plaintiff made in prison to his attorney Robert O.

Switzer.”   Compl. ¶ 1.1

     1
          For purposes of the FOIA, the term “agency” includes
“any executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the Executive Branch of the Government . . ., or
any independent regulatory agency.” 5 U.S.C. § 552(f)(1). The
                                                   (continued...)
                       A.    May 5, 2009 Request

     By letter dated May 5, 2009, addressed to the Director of

the BOP’s South Central Regional Office (“SCRO”), plaintiff

sought information pertaining to telephone calls he made while

incarcerated at two BOP facilities in Texas.        Compl. ¶ 1.   In

relevant part, the request stated:

            I am requesting . . . a copy of the recorded
            telephone conversations I made while in BOP,
            and record of dates and times the telephone
            calls were made. The phone number that is the
            subject to my request is (210) 299-1053. The
            calls were made from February 25 to August 8,
            2008 at [Federal Correctional Complex (“FCC”)]
            Beaumont – Medium, and from August 8, to
            October 31, 2008 at [Federal Correctional
            Institution (“FCI”)] Bastrop.

Id., Attach. (Freedom of Information Act Request).        By letter

dated July 9, 2009, SCRO staff notified plaintiff that his FOIA

request must be submitted to the BOP’s Director at the

Washington, D.C. headquarters office.        Id., Attach. (letter from

J.A. Sickler, Regional Counsel, SCRO).

                      B.    July 16, 2009 Request

     On July 16, 2009, plaintiff addressed a second letter to

BOP’s Director which both referenced his May 5, 2009 letter and

requested additional information.        Compl., Attach. (FOIA

Request).    In relevant part, the second requested stated:



     1
      (...continued)
DOJ is an executive agency to which the FOIA applies, and the
Court considers the DOJ as the proper party defendant.

                                   -2-
            I am . . . expanding my request to include (2)
            additional calls made on 6/5 and 6/23/09,
            while at FCI Bastrop.     The records of the
            calls made on 10/30 and 10/31/08, and 6/5 and
            6/23/09 are the most pressing and needed for
            filing in court.

Id. at 1.

                     C.   FOIA Request 2009-10149

     On July 30, 2009, the BOP’s Central Office, FOIA Section,

“received correspondence from [p]laintiff which contained letters

dated June 19, July 12, and July 16, 2009, in addition to the May

5, 2009, letter and July 9, 2009, response.”    Def.’s Mem. of P. &

A. in Supp. of the Mot. for Summ. J. (“Def.’s Mem.”), Decl. of

Larry Collins (“Collins Decl.”) ¶ 5.    “The separate letters . . .

were processed as a single request as [they] were received on the

same date, July 30, 2009, and the records sought by each letter

were records [p]laintiff indicated he had previously requested

from institution staff and been denied.”     Id. ¶ 9.   The request

was assigned a tracking number, 2009-10149, id., and staff

“forwarded electronic copies of these letters to the SCRO

Regional Counsel’s Office for response.”     Id. ¶ 5.   The June 19,

and July 12, 2009 letters, copies of which are submitted with

defendant’s dispositive motion, see Collins Decl., Attach. 4-5,

are not mentioned in Plaintiff’s complaint.    The Court therefore

addresses only the BOP’s response to his requests for information

pertaining to telephone calls which occurred on the dates set



                                  -3-
forth in his complaint, “from 2/25/08 . . . to 6/23/09.”           Compl.

¶ 1.

        SCRO’s Regional Counsel learned that the requested

recordings of telephone conversations which occurred while

plaintiff was incarcerated at FCC Beaumont could not be produced

because the Telephone Activity Recording System (“TARS”)

maintains recordings only for six months, a period which already

had expired by the time staff conducted a search.2         Collins Decl.

¶ 10.       Instead, FCC Beaumont staff produced “a three-page

computer print out containing transactional data for the

responsive telephone calls[.]”         Id.   FCI Bastrop staff located

“recordings of telephone calls made by [p]laintiff on June 6, and

June 23, 2009,” and explained that “recordings for the telephone

calls made prior to six months of the date of the search were no

longer available.”       Id. ¶ 11.3   In addition, staff located

“thirteen pages of computer printouts containing transactional

data for all telephone calls [p]laintiff made while incarcerated

at FCI Bastrop during the time frames noted on his request.”             Id.


        2
          “Recorded telephone conversations are maintained
digitally on [TARS] for a period of six months from the date
created, at which time they are overwritten with new data.”
Collins Decl. ¶ 10 n.1.
        3
          The Court presumes that the reference in the
declaration to a recording of a telephone conversation occurring
on June 6, 2009 is a typographical error. Based on
representations elsewhere in the record, see, e.g., Pl.’s Opp’n
at 3; Collins Decl., Attach. 10 (Vaughn Index), Rec. No. 4, it
appears that the telephone conversation occurred on June 5, 2009.

                                      -4-
¶ 13.    “No records were located in response to [p]laintiff’s

request for recorded telephone conversations for . . . calls he

placed . . . between February 25, 2008, and October 31, 2008.”

Id. ¶ 14.

        On November 24, 2009, “sixteen pages of telephone

transactional data printouts . . . with the user identification

codes redacted pursuant to [Exemption 2]” were released.        Id.

The recorded telephone conversations were withheld in full under

Exemption 7(C), and plaintiff was notified that these recordings

“could be forwarded to an un-incarcerated third party upon

receipt of consent for the release of information from all

parties to the telephone conversations.”     Id.; see id., Attach. 9

(November 24, 2009 letter from J.A. Sickler) at 3.    The declarant

explained that the BOP “does not maintain equipment necessary for

the editing of the digitally stored recordings,” and for this

reason it could not segregate plaintiff’s non-exempt portion of

the recordings from the exempt portion.     Id. ¶ 18; see id.,

Attach. 9 at 3.

        Plaintiff represents that the “two recorded telephone

conversations [which] took place on June 5, 2009 and June 23,

2009 . . . were conversations between [him] and Robert O. Switzer

. . . [who] at the time [was plaintiff’s] attorney in a criminal

appeal.”    Pl.’s Mem. of P. & A. in Supp. of his Mot. for Summ. J.

and in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), Ex. 3


                                  -5-
(Benavides Decl.) ¶ 3.   He further states that no other person

participated in the calls, that Mr. Switzer acted solely as

plaintiff’s criminal attorney, and that the sole subject of the

conversations was plaintiff’s criminal appeal.      Id. ¶¶ 3-4.

     In this action, plaintiff demands a declaratory judgment,

release in full of the requested records, and an award of costs

and attorney’s fees.    Compl. at 2-3 (page numbers designated by

the Court).

                             DISCUSSION

                Summary Judgment in a FOIA Case4

     Courts will grant a motion for summary judgment if “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).

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



     4
          “Plaintiff challenges . . . only the withholdings of
the June 5th and June 23rd recordings,” Pl.’s Opp’n at 3, and the
Court treats as conceded the BOP’s arguments with respect to the
adequacy of its search for records responsive to plaintiff’s FOIA
requests and its decision to withhold user identification codes
under Exemption 2. In these respects, defendant’s motion will be
granted in part as conceded. See Bonaccorsy v. Dist. of
Columbia, 685 F. Supp. 2d 18, 24 (D.D.C. 2010); Buggs v. Powell,
293 F. Supp. 2d 135, 141 (D.D.C. 2003) (citing FDIC v. Bender,
127 F.3d 58, 67-68 (D.C. Cir. 1997) (stating that if “a plaintiff
files an opposition to a dispositive motion and addresses only
certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as
conceded”).

                                 -6-
the evidence is such that a reasonable jury could return a

verdict for the nonmoving party” on an element of the his 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 or declarations or documentary

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

Cir. 1992).   In opposing a summary judgment motion, a party may

not “replace conclusory allegations of the complaint or answer

with conclusory allegations of an affidavit,” Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 888 (1990), but rather must “set

forth specific facts showing that there is a genuine issue for

trial,” Anderson, 477 U.S. at 248 (citation and internal

quotation marks omitted).

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

on information provided in an agency’s affidavits or declarations

when they describe “the documents and the justifications for

nondisclosure with reasonably specific detail, demonstrate that

the information withheld logically falls within [a] claimed

exemption, and are not controverted by either contrary evidence

in the record [or] by evidence of agency bad faith.”     Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).     Such

affidavits or declarations are accorded “a presumption of good

faith, which cannot be rebutted by ‘purely speculative claims


                                -7-
about the existence and discoverability of other documents.’”

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770,

771 (D.C. Cir. 1981)).

                      Law Enforcement Records

     Exemption 7 protects from disclosure “records or information

compiled for law enforcement purposes,” but only to the extent

that disclosure of such records would cause an enumerated harm.

5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622

(1982).   The fact that the relevant agency’s principal purpose is

the enforcement of criminal law does not absolve it of its

obligation to demonstrate that the records at issue were compiled

for a law enforcement purpose.    Pratt v. Webster, 673 F.2d 408,

416 (D.C. Cir. 1982) (holding that the FBI “must meet the

threshold requirements of Exemption 7 before [it] may withhold

requested documents on the basis of any of its subparts”).   To

this end, the government generally “must identify a particular

individual or incident as the object of the investigation and

specify the connection of the individual or incident to a

potential violation of law or security risk.”    Davin v. U.S.

Dep’t of Justice, 60 F.3d 1043, 1056 (3d Cir. 1995); see Simon v.

Dep’t of Justice, 980 F.2d 782, 783 (D.C. Cir. 1992) (quoting

Pratt, 673 F.2d at 420-21).   The “focus is on how and under what

circumstances the requested files were compiled, and whether the


                                 -8-
files sought relate to anything that can fairly be characterized

as an enforcement proceeding.”    Jefferson v. Dep’t of Justice,

284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal

quotations omitted).

     The BOP’s declarant avers that the BOP is a law enforcement

agency the employees of which “perform inherently law enforcement

functions,” such as making arrests, executing searches on inmates

and visitors to its institutions, and seizing evidence.   Collins

Decl. ¶ 15.   Referring to its authority under 18 U.S.C. § 4042,

the BOP also “is tasked with the law enforcement mission of

protecting inmates, staff, and the community,” and the declarant

states that “the files of federal inmates are essential to BOP




                                 -9-
staff in carrying out the law enforcement mission of the BOP.”5

Id.

      The BOP’s TRUFONE computer system tracks, monitors, and

records inmate telephone calls, Collins Decl. ¶ 16, and inmate

telephone conversations are maintained digitally on TARS, id. ¶

10 n.1.   The TRUVIEW system “is an application used primarily by

investigative staff to access information maintained on the

TRUFONE system.”   Id. ¶ 16.   The BOP’s declarant states that

recordings of inmate telephone conversations are “maintained on

the TARS for the purpose of monitoring inmate telephone activity

and conducting investigations regarding . . . illegal activities

or suspected illegal activities being conducted, coordinated or

directed from within a BOP facility.”    Id. ¶ 17.   The BOP claims


      5
           Generally, the BOP shall:

                (1) have charge of the management and
           regulation    of   all   Federal   penal   and
           correctional institutions;
                (2) provide suitable quarters and provide
           for the safekeeping, care, and subsistence of
           all persons charged with or convicted of
           offenses against the United States, or held as
           witnesses or otherwise;
                (3)    provide    for   the   protection,
           instruction, and discipline of all persons
           charged with or convicted of offenses against
           the United States;
                (4) provide technical assistance to State
           and local governments in the improvement of
           their correctional systems; and
                (5)   provide   notice   of  release   of
           prisoners[.]

18 U.S.C. § 4042(a).

                                -10-
to have “satisfie[d] the standard for invoking Exemption 7 . . .

because of its law enforcement mission and responsibilities for

protecting inmates, staff, and the community.”   Def.’s Mem. at

10.

      Plaintiff counters that the BOP fails to meet its threshold

requirement for withholding information under Exemption 7, that

is, it fails to establish that the requested recordings were

compiled for law enforcement purposes.   Pl.’s Opp’n at 5.    He

maintains that the BOP “cannot merely point to its mission,” id.,

as a blanket reference to the agency’s law enforcement duties

does not establish that the recorded telephone conversations were

compiled for law enforcement purposes.   The Court concurs.

      The D.C. Circuit has articulated a “two-part test whereby

the government can show that its records are law enforcement

records: the investigatory activity that gave rise to the

documents is related to the enforcement of federal laws, and

there is a rational nexus between the investigation at issue and

the agency’s law enforcement duties[,]” Jefferson, 284 F.3d at

177 (internal quotation marks and citation omitted), regardless

of whether “the investigation . . . [led] to a criminal

prosecution or other enforcement proceeding[,]” Pratt, 673 F.2d

at 421.   Here, the BOP suggests that its status as a law

enforcement agency responsible for the welfare of inmates in its

custody, its staff and the public at large, sufficiently


                               -11-
establishes that recordings of inmate telephone conversations are

compiled for law enforcement purposes.    Not so.   The D.C. Circuit

has rejected a per se rule of this sort.    See Pratt, 673 F.2d at

416; see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of

Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (stating that,

notwithstanding DOJ’s law enforcement specialty, “[t]o establish

a law enforcement purpose, DOJ’s declarations must establish (1)

a rational nexus between the investigation and one of the

agency's law enforcement duties; and (2) a connection between an

individual or incident and a possible security risk or violation

of federal law”) (citation and quotation marks omitted)); King v.

Dep’t of Justice, 830 F.2d 210, 229 (D.C. Cir. 1987) (explaining

that an FBI record did not automatically satisfy this threshold

requirement “simply by virtue of the function the FBI serves”).

     “[W]hen an agency seeks to withhold information, it must

provide 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.”    Morley v. CIA, 508 F.3d

1108, 1122 (D.C. Cir. 2007) (quoting King, 830 F.2d at 219)

(internal quotation marks omitted).   The BOP’s supporting

declaration neither identifies a particular individual or

incident subject to an investigation nor connects a particular

individual or incident to a potential violation of law.    On this


                              -12-
record, without a declaration supplying “facts in sufficient

detail to apply the Pratt rational nexus test,” Campbell v. U.S.

Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998), the Court

cannot grant summary judgment for the BOP.    See, e.g., Banks v.

Dep’t of Justice, 700 F. Supp. 2d 9, 18 (D.D.C. 2010) (denying

summary judgment where the BOP “appear[ed] to rely solely on its

status as a law enforcement agency as the premise from which the

Court should conclude that any record it maintains was compiled

for law enforcement purposes”).

                           CONCLUSION

     Defendant’s motion for summary judgment will be granted in

part and denied in part without prejudice and plaintiff’s motion

for summary judgment will be denied.    There is no dispute that

the BOP conducted a search reasonably calculated to locate

records responsive to plaintiff’s FOIA requests and that its

decision to redact information under Exemption 2 is proper.

However, because the BOP has not demonstrated that the requested

recordings of telephone conversations were compiled for law

enforcement purposes, defendant fails not only to justify its

decision to withhold information under Exemption 7(C) but also to

show that all reasonably segregable information has been released

to plaintiff.

     An Order accompanies this Memorandum Opinion.




                              -13-
Signed this 30th day of March, 2011.



                               /s/
                    RICHARD W. ROBERTS
                    United States District Judge
                    for
                    JAMES E. BOASBERG
                    United States District Judge-Designate




                          -14-
