                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
ALVIN B. TRUESDALE,                 )
                                    )
                    Plaintiff,      )
                                    )
      v.                            )                 Civil Action No. 08-1862 (PLF)
                                    )
UNITED STATES DEPARTMENT            )
OF JUSTICE, et al.,                 )
                                    )
                    Defendants.     )
___________________________________ )


                                             OPINION

               In its September 29, 2009 Opinion and Order, the Court dismissed all defendants

except the United States Department of Justice (“DOJ” or “defendant”), and dismissed all but

two claims: one under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, with regard to

FOIA Request No. 2004-02303 addressed to the Federal Bureau of Prisons (“BOP”), and another

under the Privacy Act, 5 U.S.C. § 552a, with regard to plaintiff’s demand for amendment of

records maintained in the BOP’s SENTRY database. See Truesdale v. United States Dep’t of

Justice, 657 F. Supp. 2d 219, 227-29 (D.D.C. 2009). The DOJ has filed a renewed motion to

dismiss or, in the alternative, for summary judgment addressing these remaining claims. Having

considered the motion, plaintiff’s opposition, and the entire record in this case, the motion will

be granted in part and denied in part.
                                          I. DISCUSSION

                                  A. Summary Judgment Standard

                The Court grants a motion for summary judgment if the pleadings, the discovery

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




                                                   2
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)).


                                 B. FOIA Request No. 2004-02303

               According to the BOP, on December 24, 2003, it received plaintiff’s request for

“a copy of all documents showing the Attorney General has established in the [DOJ] a repository

of records of [plaintiff’s] 21 U.S.C. § 848 conviction, and all records that determine the validity

of said conviction.” Defendant’s Memorandum of Points and Authorities in Support of its

Motion to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Mem.”), Declaration

of Roy Lathrop (“Lathrop Decl.”) ¶ 4. Defendant does not submit a copy of the request.

               In response to this request, the BOP notified plaintiff that it was “uncertain as to

what documents [he was] seeking.” Def.’s Mem., Lathrop Decl., Ex. A. For this reason, “no

search was conducted in relation to [the] request.” Id., Lathrop Decl. ¶ 11. Further, the BOP

advised plaintiff that, to the extent he sought information about his conviction, such information

would be found in his inmate central file. Id., Ex. A. The DOJ’s Office of Information and

Privacy (“OIP”), the office to which administrative appeals are directed, affirmed the BOP’s

determination. Id., Ex. B (February 22, 2005 letter from M. Pustay, OIP, regarding Appeal No.

05-0522). It reiterated that “the only information regarding [plaintiff’s] conviction . . .

maintained by the BOP is located in [his] central file at the institution,” and that “it maintains no

other material responsive to [the] request.” Id.1



       1
               To the extent that plaintiff sought “records pertaining to [his] prosecution and
conviction,” OIP staff suggested that he “submit a request directly to the Executive Office for
United States Attorneys.” Def.’s Mem., Lathrop Decl., Ex. B.

                                                    3
               Plaintiff submits in his opposition to the DOJ’s motion a copy of correspondence,

dated August 28, 2003, directed to the Freedom of Information Act Privacy Act Referral Unit at

the DOJ’s Washington, D.C. headquarters. See Memorandum of Points and Authorities in

Support of Plaintiff[] Alvin B. Truesdale[’s] Response to the Defendant’s Motion to Dismiss or,

in the Alternative, for Summary Judgment (“Pl.’s Opp’n”), Ex. 9 (letter to the Director of the

Freedom of Information Act Privacy Act Referral Unit, DOJ). It is a request for:

               A copy of any and all documents that shows the Attorney General of
               the United States established in the Department of Justice a repository
               of records of requester[’s] CCE (21 USC § 848) conviction and all
               records that determine the [v]alidity and/or the invalidation of said
               conviction.

               A copy of any and all certified records of the requester’s CCE
               conviction that shows the [i]nvalidation and validity of said
               conviction. See 18 USC § 3661(a)(b)(c) [sic].

Id.

               Although plaintiff identifies this August 28, 2003 letter as the FOIA request later

assigned Request No. 2004-2303 by the BOP, he denies having submitted a request for this

information to the BOP or to its Director; rather, he states that the request was intended for the

United States Attorney General. Pl.’s Opp’n at 2.2 And because plaintiff maintains that the

August 28, 2003 letter was intended as a request for records maintained by the United States

Attorney General, id., he objects to its referral to the BOP without the agency sending him a

notice of referral pursuant to 28 C.F.R. § 16.4(f), id. at 2-3. In addition, plaintiff maintains that


       2
                Plaintiff then directs the Court’s attention to FOIA Request No. 07-04151, which
he sent “directly to the [BOP] . . . for BOP records,” Pl.’s Opp’n at 3, notwithstanding the
Court’s prior ruling that only FOIA Request No. 2004-02303 may proceed. If plaintiff
challenges the DOJ’s response, or lack of response, to any request other than FOIA Request No.
2004-02303, he may pursue his challenge in a separate lawsuit.

                                                   4
his request “reasonably describes the records he seek[s],” and that the description set forth in his

request “is sufficient for the United States Attorney General or a professional employee that

work[s] in the [Attorney General’s Office] who is familiar with the subject area of the request to

locate the records with a reasonable amount of effort.” Id. at 14. Consequently, plaintiff asserts,

defendant “is required to conduct a search in 2004-02303.” Id.

               Generally, the FOIA requires than an agency promptly release records to a

requester as long as his request “reasonably describes such records and . . . is made in accordance

with published rules . . . and procedures to be followed” in submitting the request. 5 U.S.C.

§ 552(a)(3)(A). If the requested records are in the agency’s possession, it cannot refuse to act on

the request because the records originated elsewhere. McGehee v. Cent. Intelligence Agency, 697

F.2d 1095, 1110 (D.C. Cir. 1983). The FOIA also contemplates consultation with or the referral

of a request to “another agency having a substantial interest in the determination of the request or

among two or more components of the agency having substantial subject-matter interest therein.”

5 U.S.C. § 552(a)(6)(B)(iii)(III).

               DOJ regulations provide that a requester “may make a request for records of the

[DOJ] by writing directly to the . . . component that maintains those records.” 28 C.F.R.

§ 16.3(a). If the requester “cannot determine where within the [DOJ] to send [his] request, [he]

may send it to the FOIA/PA Mail Referral Unit, Justice Management Division, U.S. Department

of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530-0001, [and that] office will

forward [the] request to the component(s) it believes most likely to have the [requested] records.”

Id. If a DOJ component receives a request for records in its possession and determines that

“another component, or another agency of the Federal Government, is better able to determine


                                                  5
whether the record is exempt from disclosure under the FOIA,” it may “[r]efer the responsibility

for responding to the request . . . to the component best able to determine whether to disclose it,

or to another agency that originated the record (but only if that agency is subject to the FOIA).”

28 C.F.R. § 16.4(c). If a referral is made, the referring component “ordinarily shall notify the

requester of the referral and inform [him] of the name of each component or agency to which the

request has been referred and of the part of the request that has been referred.” 28 C.F.R.

§ 16.4(f).

                Under the FOIA the Court may compel disclosure of agency records only if they

were improperly withheld. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.

136, 137-38 (1980). A referral procedure may constitute an improper withholding “if its net

effect is significantly to impair the requester’s ability to obtain the records or significantly to

increase the amount of time he must wait to obtain them,” McGehee v. Cent. Intelligence Agency,

697 F.2d at 1110, and a withholding of this sort is improper “unless the agency can offer a

reasonable explanation for its procedure.” Id.

                Defendant does not explain the route by which plaintiff’s August 28, 2003 letter,

apparently sent to the Attorney General, made its way to the BOP or indicate whether the

Referral Unit forwarded the request to the BOP and/or another DOJ component. If the request

was referred, the DOJ neither identifies the component or components responsible for responding

to the request nor states whether it notified plaintiff of the referral. Assuming that the DOJ

Referral Unit staff did refer plaintiff’s request to the BOP, defendant does not articulate its

interpretation of the request or otherwise explain why the BOP was deemed the component best

able to process the request, whether it also sent the request to any other component, and if not,


                                                   6
why not. The Court cannot determine on the current record whether the DOJ has improperly

withheld records responsive to FOIA Request No. 2004-2303. See Peralta v. United States

Attorney’s Office, 136 F.3d 169, 175 (D.C. Cir. 1998) (remanding for a determination of whether

a DOJ component justified the referral of records to another component for processing); see also

Hall v. Cent. Intelligence Agency, 668 F. Supp. 2d 172, 182 (D.D.C. 2009) (concluding that a

two-year delay brought about by the referral of records to unidentified agencies without any

effort by the CIA to ensure that referrals had been processed constituted an improper

withholding); Keys v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59, 70 (D.D.C. 2008)

(concluding that the U.S. Secret Service’s referral of documents to the Court Services and

Offender Supervision Agency constituted an improper withholding because in effect the referral

significantly increased the amount of time plaintiff had to wait for a response to his FOIA

request). For these reasons, the DOJ’s motion will be denied in part without prejudice.


                                      C. Privacy Act Claim

               Among other sentences, plaintiff now is serving a term of life imprisonment upon

his conviction for operating a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C.

§ 848. See Plaintiff Alvin B. Truesdale[’s] Response to the Defendant[’]s Motion to Dismiss the

Complaint and Memorandum of Points and Authorities in Support Thereof [Dkt. # 30], Ex. 3

(Amended Judgment in a Criminal Case, Case No. 3:92CR34-01-P) at 1-2; see also United

States v. Truesdale, 78 F.3d 580 (4th Cir.) (table) (per curiam), cert. denied, 517 U.S. 1215

(1996). Because the CCE offense concluded after the effective date of the Sentencing Reform

Act of 1984, Pub. L. No. 98-473, § 235(a)(1), 98 Stat.2031, amended by Pub. L. No. 99-217, § 4,



                                                 7
99 Stat. 1728 (1985), which eliminated parole in the federal system, plaintiff is ineligible for

parole on the CCE sentence. Plaintiff alleges that defendant “knowingly, willfully, [and]

intentionally . . . failed to maintain a repository of records of [his] 21 U.S.C. § 848 conviction

with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in

any determination relating to the . . . rights . . . of . . . plaintiff . . . that may be made on the basis

of such records, and consequently made a determination which was/is adverse to [him].”

Complaint ¶ 55. Among other relief, plaintiff demands that defendant “immediately program

[its] SENTRY data base and/or adjust [its] records to show the correct date for Count 1 of [his]

old law charge and conviction is January 1987[,]” id. ¶ 30, that is, to reflect that the CCE offense

concluded before the effective date of the Sentencing Reform Act, and that the BOP recalculate

his sentence accordingly. See id.

                Subsection (e)(5) of the Privacy Act requires that an agency

                maintain all records which are used by the agency in making any
                determination about any individual with such accuracy, relevance,
                timeliness, and completeness as to assure fairness to the individual in
                the determination.

5 U.S.C. § 552a(e)(5). An individual may access an agency’s records or information in a system

of records pertaining to him, and may request amendment of records pertaining to him. See 5

U.S.C. § 552a(d). In addition, he may file a civil action against an agency which refuses to

amend its records upon request or fails to maintain its records with the requisite level of accuracy

and completeness. See 5 U.S.C. § 552a(g); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.

Cir. 1992) (stating that subsection (g) provides civil remedies for violations of subsection (e)(5)).




                                                     8
                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 exempt the

BOP’s Inmate Central Record System (JUSTICE/BOP-005), among other systems of records,

from subsections (d) and (g), the amendment and remedies provisions, of the Privacy Act. See

28 C.F.R. § 16.97(a)(4). In addition, under 5 U.S.C. § 552a(j)(2), BOP’s Inmate Central Record

System is exempt from subsection (e)(5), the accuracy provision of the Privacy Act. See 28

C.F.R. § 16.97(j), (k)(2). The latter provision became effective on August 9, 2002. See Privacy

Act of 1974 [, Pub. L. No. 93-579, 88 Stat. 1896 (1974)]; Implementation, 67 Fed. Reg. 51,754

(Aug. 9, 2002) (final rule); see also Gutierrez v. Maye, No. A-09-CA-225-LY, 2009 WL

3584646, at *5 (W.D. Tex. Oct. 26, 2009).

                Defendant represents that the BOP SENTRY database “is not currently a

published system of records.” Def.’s Mem., Lathrop Decl. ¶ 13. Rather, SENTRY is “an

electronic media application that is obtained from the multiple BOP published systems of

records,” and “is keyed into this database so that BOP employees can easily access certain inmate




                                                    9
information nationwide.” Id.3 Defendant’s declarant further explains that the information

plaintiff “seeks to have amended in the‘SENTRY’ database is compiled only from sentence

computation information data stored in the Inmate Central File.” Id. ¶ 15 (emphasis added).

Thus, defendant argues that plaintiff fails to state a claim under the Privacy Act because the

source of sentence computation information in SENTRY is the Inmate Central Record System, a

system of records that is exempt from the amendment and accuracy provisions of the Privacy

Act. Def.’s Mem. at 12-13. Moreover, the BOP notes that plaintiff already has litigated the issue

of the date on which the CCE offense concluded, foreclosing the possibility of amendment. Id.

at 13.

               Plaintiff makes two arguments worthy of consideration. First, he states that he

sought amendment of BOP records pertaining to the date on which the CCE offense concluded

before 2002, yet defendant still “used [the] SENTRY database to disseminate or relay the false

information.” Pl.’s Opp’n at 6. He argues that “the grandfather clause . . . prohibit[s] this Court

from applying subsection (j) and (k) to his case.” Id. at 7. Because he had been allowed to

contest the accuracy of sentencing-related information before 28 C.F.R. § 16.97(j) and (k)



         3
                The declarant distinguishes the current version of SENTRY as an unpublished
system of records, and notes that the BOP “has recently drafted a System of Records Notice that,
once published, will recognize ‘SENTRY’ as a system of records.” Def.’s Mem., Lathrop Decl.
¶ 14. Presumably the declarant is alluding to the requirement that each agency subject to the
Privacy Act “publish in the Federal Register upon establishment . . . a notice of the existence and
character of the system of records,” 5 U.S.C. § 552a(e)(4), and thereby defendant suggests that
the lack of a publication notice establishing SENTRY as a system of records precludes
plaintiff’s claim. It is not at all clear that the existence of a publication notice determines
whether SENTRY is a “system of records,” a term meaning “a group of any records under the
control of any agency from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular assigned to the individual” for
purposes of the Privacy Act. 5 U.S.C. § 552a(a)(5).

                                                10
became effective, he maintains that he should be allowed to pursue his Privacy Act claims at this

time. Id. at 8. Relying on Sellers v. Bureau of Prisons, 959 F.2d 307 (D.C. Cir. 1992), plaintiff

contends that the BOP was obligated to verify the records on which the sentence computation

was made. See id. His reliance on Sellers is misplaced, however, “as it was decided before the

Bureau of Prisons exempted the relevant system of records from the accuracy provision.” Lane

v. Fed. Bureau of Prisons, No. 09-5228 (D.C. Cir. Jan. 7, 2010) (per curiam). Plaintiff cites no

authority for the proposition that he need not be subjected to a duly promulgated and published

administrative regulation simply because he demands amendment of records in existence before

the effective date of that regulation.

                Next, plaintiff points out that the BOP may “waive any applicable exemption(s).”

Pl.’s Opp’n at 7 (emphasis in original). In relevant part, 28 C.F.R. § 16.97(k)(2) provides:

                Where compliance would not appear to interfere with or adversely
                affect the law enforcement process, and/or where it may be
                appropriate to permit individuals to contest the accuracy of the
                information collected, e.g. public source materials, or those supplied
                by third parties, the applicable exemption may be waived, either
                partially or totally, by the [BOP].

Id. (emphasis added). “[I]t is BOP’s decision to waive the exemption,” however, Clow v. Fed.

Bureau of Prisons, No. 08cv01121, 2008 WL 2885781, at *1 (D.D.C. July 25, 2008), and the

BOP has not done so in this case. Plaintiff cites no authority for the proposition that the Court

can require a waiver. “Because plaintiff ‘does not challenge the BOP’s authority to exempt its

records, and the BOP did not expressly waive the exemption, the Court concludes that the

exemption applies.” Id., 2008 WL 2885781, at *1 (internal citation and quotation marks

omitted); see Simpson v. Fed. Bureau of Prisons, No. 05-2295, 2007 WL 666517, at *3 (D.D.C.



                                                 11
Mar. 2, 2007) (declining to find a waiver under 28 C.F.R. § 16.97(k) in part because “the

language of the waiver provision is permissive, and it is BOP’s decision to waive the exemption

in whole or in part”).

               It is settled that information maintained in the BOP’s Inmate Central Record

System is exempt from the Privacy Act’s amendment and accuracy provisions. See Martinez v.

Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (affirming dismissal of a Privacy Act

claim against the BOP because it had exempted its Inmate Central Record System from the

accuracy provisions of the Privacy Act); White v. U.S. Probation Office, 148 F.3d 1124, 1125

(D.C. Cir. 1998) (per curiam) (“Under regulations . . . BOP inmate records systems are exempt

from the amendment provisions of the [Privacy] Act.”); Mosby v. Hunt, No. 09-1917, 2010 WL

1783536, at *5 (D.D.C. May 5, 2010); Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d 15,

30 (D.D.C. 2008). The BOP establishes that all sentencing-related information in SENTRY

originates from sentence computation information maintained in the Inmate Central Record

System. “[C]ourts in this Circuit have held that plaintiffs are effectively barred from obtaining

any remedy, including damages, under subsection (g), for BOP’s alleged failure to maintain

records pertaining to [them] with the mandated level of accuracy.” Elliott v. Fed. Bureau of

Prisons, 521 F. Supp. 2d 41, 56 (D.D.C. 2007) (citations and internal quotation marks omitted).

               For these reasons, plaintiff cannot achieve amendment of SENTRY records

through this Privacy Act suit. See Jennings v. Fed. Bureau of Prisons, 657 F. Supp. 2d 65, 72

(D.D.C. 2009) (“[I]nsofar as plaintiff seeks damages for the BOP’s failure to maintain records in

its Inmate Central Record System pertaining to him with the requisite level of accuracy and

completeness, damages are not available.”); Ramirez v. Dep’t of Justice, 594 F. Supp. 2d 58, 65


                                                12
(D.D.C. 2009) (“Having exempted its records from the substantive provision regarding the

agency’s recordkeeping obligations, BOP effectively deprives litigants of a remedy for any harm

caused by the agency’s substandard recordkeeping.”); Collins v. Fed. Bureau of Prisons, No.

5:06cv129-DCB-MTP, 2007 WL 2433967, at *3 (S.D. Miss. Aug. 2, 2007) (Magistrate Report

and Recommendation concluding that plaintiff is not entitled to monetary or injunctive relief on a

Privacy Act claim challenging accuracy of records maintained in BOP’s Central Inmate Record

System).

               There are two additional bases for dismissing plaintiff’s Privacy Act claim. First,

“[a] ruling in [p]laintiff’s favor on [his] Privacy Act claim would have an impact on the duration

of his confinement, and a challenge of this nature is properly brought in a petition for a writ of

habeas corpus,” not by way of a suit brought under the Privacy Act. Brown v. Bureau of Prisons,

498 F. Supp. 2d 298, 303 (D.D.C. 2007) (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973));

see White v. U.S. Probation Office, 148 F.3d at 1126 (holding that a federal prisoner cannot

collaterally attack his sentence by means of a claim for damages under the Privacy Act unless the

sentence has been invalidated in a prior proceeding). Second, plaintiff fails to establish the

existence of a false, inaccurate, irrelevant, untimely or incomplete BOP record pertaining to his

sentence. As this Court already has ruled, plaintiff has litigated, and lost, the issue of the date on

which the CCE offense concluded. Truesdale v. United States Dep’t of Justice, 657 F. Supp. 2d

at 226. He does not establish that information with respect to the date of offense as reflected in

the BOP’s SENTRY records is inaccurate, and he cannot relitigate the issue in the context of this

Privacy Act suit.




                                                  13
                                       II. CONCLUSION

               The Court concludes that the DOJ has not demonstrated its compliance with the

FOIA with respect to FOIA Request No. 2004-2303, and that the relief plaintiff demands under

the Privacy Act is not available. Accordingly, defendant’s renewed motion to dismiss or, in the

alternative, for summary judgment will be granted in part and denied in part.

               An appropriate Order accompanies this Opinion.



                                                    /s/
                                                    PAUL L. FRIEDMAN
DATE: August 13, 2010                               United States District Judge




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