                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


FREDERICK BANKS,                              )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 06-1950 (EGS)
                                              )
DEPARTMENT OF JUSTICE, et al.,                )
                                              )
               Defendants.                    )


                                  MEMORANDUM OPINION

       Plaintiff filed a ten-count Complaint under the Freedom of Information Act (“FOIA”),

see 5 U.S.C. § 552, and the Privacy Act, see 5 U.S.C. § 552a, against various government

entities, alleging their failure to release requested information about himself, other individuals,

and corporate entities. This matter is before the Court on the parties’ cross-motions for summary

judgment with respect to plaintiff’s FOIA claim against the Federal Bureau of Prisons (“BOP”)

(Counts Nine and Ten), a component of the United States Department of Justice (“DOJ”). For

the reasons discussed below, the Court will grant summary judgment for the BOP and deny

plaintiff’s motion.

                                       I. BACKGROUND

       Plaintiff submitted three FOIA requests to the BOP, one of which is relevant to this

action. See Notice of Filing [Dkt. #23], Decl. of Kathleen Quigley (“Quigley Decl.”) ¶¶ 3-4.1



       1
             The Notice of Filing included the declarations and exhibits supporting
       Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt.
       #20].

                                                  1
That request, assigned Request Number 2006-00951, sought “every record in [BOP’s] system

about [plaintiff], that pertains to [him], or mentions [him] by name.” Id. ¶ 4; see id., Ex. 1

(FOIA/PA Request dated September 24, 2005) & Ex. 2 (Letter from H.J. Sadowski, Regional

Counsel, Northeast Regional Office, BOP, dated November 22, 2005). The BOP released 103

pages of records in full and withheld four pages in full under FOIA Exemptions 5, 6, 7(C), and

7(F). Quigley Decl. ¶ 8; see id., Ex. 3 (Letter from H.J. Sadowski dated December 12, 2005).

       The Court already has concluded that the BOP’s searches for records responsive to

plaintiff’s FOIA request were adequate and reasonable under the circumstances. Banks v. Dep’t

of Justice, 605 F. Supp. 2d 131, 140 (D.D.C. 2009). Missing from the record at that time was an

explanation for the agency’s decision to withhold in full “four pages of records found in

plaintiff’s Central and Medical Files” under the claimed exemptions. Id. The BOP since has

released in its entirety one additional page, described as “a Victim Notification Record which

consists of log entries obtained for law enforcement purposes.” Def. Bureau of Prisons’ Mem. of

P. & A. in Supp. of its Renewed Mot. for Summ. J. (“BOP Mem.”), Decl. of Vanessa Herbin-

Smith (“Herbin-Smith Decl.”) ¶ 7; see id., Ex. 4 (Victim Notification Record).2

       At issue are the three remaining pages, described as “a one page Notification Report print

out from the Victim Notification System (VNS) . . . and a two page letter from the BOP

concerning victim-witness procedures which include[] sensitive victim information (the

‘letter’),” Herbin-Smith Decl. ¶ 7, from which information has been redacted under FOIA

Exemptions 7(C) and 7(F), see Banks v. Dep’t of Justice, 700 F. Supp. 2d 9, 18 (D.D.C. 2010).



       2
               The declaration of Vanessa Herbin-Smith originally was filed in support of
       a prior motion for summary judgment [Dkt. #54].

                                                  2
                                        II. DISCUSSION

                             A. Summary Judgment in a FOIA Case

       “A party claiming relief may move, with or without supporting affidavits, for summary

judgment on all or part of [a] claim.” FED. R. CIV. P. 56(a). The Court generally should render

the judgment sought “if the pleadings, the discovery and disclosure materials on file, and any

affidavits 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)(2). The moving party bears the

burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Factual assertions in the moving party’s affidavits 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 on the information

provided in affidavits or declarations when these submissions 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). 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)).




                                                 3
                                         B. Exemption 7

                                  1. Law Enforcement Records

       FOIA Exemption 7 protects from disclosure “records or information compiled for law

enforcement purposes,” 5 U.S.C. § 552(b)(7), if the material satisfies the requirements of one of

the subparts of Exemption 7, see Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). In

assessing whether records are compiled for law enforcement purposes, the “focus is on how and

under what circumstances the requested files were compiled, and whether the 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 asserts that the three pages of records at issue in this case were compiled for law

enforcement purposes. See BOP Mem. at 6-8.

       The declarant explains that the BOP is a law enforcement agency, the principal mission

of which “is to protect society by confining offenders in the controlled environments of prisons .

. . that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other

self-improvement opportunities to assist offenders in becoming law-abiding citizens.” BOP

Mem., Supp. Decl. of Vanessa Herbin Smith (“Supp. Herbin-Smith Decl.”) ¶ 7. That mission

includes “protecting inmates, staff, and the community, to include victim(s).” Id. (citing 18

U.S.C. §§ 3050, 4042).

       The DOJ’s Victim Notification System (“VNS”) “provide[s] information and notification

to victims of Federal crimes.” Supp. Herbin-Smith Decl. ¶ 9.3 Participating agencies are linked


       3
              According to the VNS website ( www.notify.usdoj.gov), the Federal Bureau
       of Investigation, the United States Attorneys’ Offices, the BOP and the Office for
                                                                                   (continued...)

                                                 4
through the DOJ’s Intranet, the declarant states, to “share victim information, thus ensuring

continuous service to crime victims throughout the criminal justice process.” Id. Information

about crime victims “is entered into the system at the time they are identified following the

commission of a crime,” and law enforcement agencies use this “information . . . to make

notification(s) during the arrest, arraignment, prosecutorial and confinement phases,” id., either

by letter, access to a toll-free call center, or an internet site, id. ¶ 10. The declarant explains that

each crime victim is assigned a Victim Identification Number (VIN) and a Personal

Identification Number (PIN), and these identification numbers are required in order for a victim

to obtain information from the call center or internet site, to receive notifications, to change

contact information, or decline to receive further notifications. Id.

        The BOP’s Victim/Witness Notification Program, “established as a result of the 1982

Victims and Witness Protection Act, the 1994 Violent Crime Control and Law Enforcement Act,

and the Attorney General’s Guidelines for Victims and Witness Assistance,” is designed to

“advise victims and witnesses at critical stages of the criminal justice process.” Supp. Herbin-

Smith Decl. ¶ 8. The declarant states that the BOP “implemented procedures . . . to respond to

the needs of crime victims and witnesses,” id., ostensibly by sending “information about

significant events during an offenders’ [sic] incarceration,” id. ¶ 10. The records at issue “are

used to generate or are copies of notices to victims of their rights.” Id.

        Plaintiff argues that the BOP incorrectly characterizes its mission as one “to protect


        3
         (...continued)
        Victims of Crime provide the notification service in cooperation with the United
        States Postal Inspection Service. A victim can receive information matters related
        to a BOP inmate’s release, such as placement in a community corrections center,
        furlough, parole hearings, escape, and the inmate’s death.

                                                   5
society by confining offenders.” Pl.’s Reply to Def. Bureau of Prisons’ Renewed Mot. for

Summ. J. (“Pl.’s Opp’n”) at 1. “For starters, the BOP does not confine offenders courts do and

secondly protecting society is not listed as one of BOP’s duties” under 18 U.S.C. § 4042. Id.

Plaintiff asserts that the BOP’s mission is to protect, instruct and discipline persons charged with

or convicted of federal offenses, such that it “is tasked for protecting offenders not society.” Id.

For these reasons, plaintiff contends that the records at issue were not compiled for law

enforcement purposes.

       Agency declarations are accorded a presumption of good faith, and lacking from

plaintiff’s submission is an affidavit, declaration, or discovery material to rebut this presumption.

Moreover, the BOP cannot and does not now rely solely on its status as a law enforcement

agency as a justification for withholding information under Exemption 7. Among the BOP’s

duties is to “provide notice of release of prisoners,” 18 U.S.C. § 4042(a)(5), and focusing on the

circumstances under which the records were compiled, it is apparent that records compiled in

order to effect notice to crime victims of significant events during plaintiff’s incarceration were

compiled for law enforcement purposes. The Court concludes that the BOP meets its threshold

showing – these three pages of records are law enforcement records for purposes of Exemption

7.

                                        2. Exemption 7(C)

       Exemption 7(C) protects from disclosure information in law enforcement records that

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular material, the

Court must balance the interest in privacy of individuals mentioned in the records against the


                                                  6
public interest in disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C.

Cir. 2007); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The privacy interest

at stake belongs to the individual, not the government agency, see U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989); Nat’l Ass’n of Retired

Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting individual’s significant

privacy interest “in avoiding the unlimited disclosure of his or her name and address”), and

“individuals have a strong interest in not being associated unwarrantedly with alleged criminal

activity.” Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C. Cir. 1984). “[T]he

only public interest relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’

right to be informed about what their government is up to.’” Davis v. U.S. Dep’t of Justice, 968

F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm. for Freedom of the Press, 489 U.S.

at 773); see also Sussman, 494 F.3d at 1115. It is the requester’s obligation to articulate a public

interest sufficient to outweigh an individual’s privacy interest, and the public interest must be

significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).

       Redacted from these three pages of records is “information compiled by law enforcement

concerning third parties.” Herbin-Smith Decl. ¶ 10; see Supp. Herbin-Smith Decl. ¶ 11. The

BOP withholds “personal information relating to the victims” of plaintiff’s criminal activities

because its disclosure “could cause those persons to be contacted which could result in

harassment, harm and exposure to unwanted and derogatory inferences all arising in connection

with their participation in the law enforcement investigation and prosecution.” Supp. Herbin-

Smith Decl. ¶ 11. The declarant asserts that revealing this personal information “provided

exclusively to victims as part of the VNS could also allow others to access this very personal


                                                 7
information and interfere or prevent the victims from receiving notice” through the VNS. Id. In

the agency’s view, release of this information “would constitute an unwarranted invasion of

personal privacy,” and these victims have “a substantial interest in having [their] privacy

protected.” Id. The BOP identifies no public interest to outweigh the victims’ privacy interest.

Id.

       Plaintiff asserts that “the records were not compiled for law enforcement purposes but

simply as a courtesy to victims,” and therefore the BOP cannot rely on Exemption 7(C) to

withhold information about the victims. Pl.’s Opp’n at 2. Courtesy or not, the information

maintained by the BOP in the VNS includes personal information about third parties, and

information identifying third parties mentioned in law enforcement records is “categorically

exempt” from disclosure under Exemption 7(C) in the absence of an overriding public interest in

its disclosure. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir.1995);

accord Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000).

       Exemption 7(C) “takes particular note of the strong interest of individuals, whether they

be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged

criminal activity.” Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)

(internal quotation marks omitted); see also Sussman, 494 F.3d at 1115 (holding that Exemption

7(C) protects “the privacy interests of all persons mentioned in law enforcement records,

whether they be investigators, suspects, witnesses, or informants,” and their names are

“generally exempt from disclosure”). Accordingly, “[t]he D.C. Circuit has consistently held that

Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement

records, including investigators, suspects, witnesses, and informants.” Fischer v. U.S. Dep’t of


                                                 8
Justice, 596 F. Supp. 2d 34, 47 (D.D.C. 2009) (citing Schrecker v. U.S. Dep’t of Justice, 349

F.3d 657, 661 (D.C. Cir. 2003)). Such protection extends to crime victims whose names appear

in law enforcement records. See Blackwell v. Fed. Bureau of Investigation, 680 F. Supp. 2d 79,

93-94 (D.D.C. 2010) (withholding “information likely to identify. . . FBI special agents and

support personnel, non-FBI federal law enforcement employees, state and local law enforcement

personnel, victims, third parties who provided information, and third parties merely mentioned in

the files” under Exemption 7(C)); Kishore v. U.S. Dep’t of Justice, 575 F. Supp. 2d 243, 256-57

(D.D.C. 2008) (same); Elliott v. Fed. Bureau of Investigation, No. 06-1244, 2007 WL 1302595,

at *6 (D.D.C. May 2, 2007) (withholding name of juvenile victim of sexual assault); Coleman v.

Fed. Bureau of Investigation, 13 F. Supp. 2d 75, 79 (D.D.C. 1998) (withholding autopsy records

and photographs of victims). In accordance with these rulings, the Court concludes that the BOP

properly withheld the names of and identifying information about the crime victims mentioned in

the law enforcement records relevant to this case.4 The Court further concludes that all

reasonably segregable information has been released.




       4
              Because the BOP withholds the same information under both Exemptions
       7(C) and 7(F) and because it properly is withheld under Exemption 7(C), the Court
       need not address whether Exemption 7(F) applies. See Simon v. Dep’t of Justice, 980
       F.2d 782, 785 (D.C. Cir. 1994).

                                                9
                                        III. CONCLUSION

       The BOP has established that there is no genuine issue of material fact as to its

compliance with the FOIA and that it is entitled to judgment as a matter of law. Accordingly, its

motion for summary judgment will be granted. Plaintiff has failed to meet his burden on

summary judgment, and his motion will be denied. An Order accompanies this Memorandum

Opinion.



                              Signed:        EMMET G. SULLIVAN
                                             United States District Judge

                              Dated:         December 23, 2010




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