Barouch v. U.S. Department of Justice (962 F. Supp. 2d 30, 2013)

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff David Jack Barouch brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552a (2006). Plaintiffs complaint challenges the responses to written requests that he made to defendants, the Criminal Division (“CRM”) of the United States Department of Justice (“DOJ”), the United States Marshals Service (“USMS”), the Executive Office for United States Attorneys (“EOU-SA”), the Federal Bureau of Prisons (“BOP”), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and the Department of Treasury (“Treasury”). In each of his requests, plaintiff sought all records related to himself. All of the defendant agencies except for Treasury responded to plaintiffs requests by conducting searches. Many have disclosed some responsive records, and all have provided reasons for withholding at least some information.

Defendants have filed two partial motions for summary judgment and dismissal, which together seek to dispose of this action in its entirety. Fed. Defs.’ Partial Mot. for Summ. J. and Dismissal [Dkt. # 15] (“Defs.’ 1st Mot.”); Fed. Defs.’ Supp. Mot. for Summ. J. and Dismissal [Dkt. #22] (“Defs.’ 2d Mot.”). Plaintiff opposes both motions, challenging the adequacy of the agencies’ searches and their withholdings. Resp. and Objection to Fed. Defs.’ Partial Mot. for Summ. J. and Dismissal [Dkt. # 16] (“Pl.’s 1st Resp.”); PL’s Verified Mem. Resp. to Fed. Defs.’ Supplemental Mot. for Summ. J. and Dismissal [Dkt. #25] (“PL’s 2d Resp.”). Plaintiff also challenges Treasury’s failure to undertake a search. The Court finds that plaintiff has failed to exhaust his administrative remedies as to some of his claims. As to the others, the Court finds, based on affidavits and Vaughn indices submitted by the government, that the agencies conducted adequate searches for responsive documents, but they have not provided adequate explanations for all of their with-holdings. Accordingly, the Court will grant in part and deny in part defendants’ motions for summary judgment. The Court will direct EOUSA to disclose parts of four documents that it has withheld in full and will remand to BOP to review the documents it received from EOUSA after the commencement of this action.

BACKGROUND

Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in Seagoville, Texas. PL’s 1st Compl. [Dkt. # 1] (“Compl.”) ¶ 1. In July 2010, he pled guilty to one count of possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Minute Order, United States v. David Barouch, No. 4:10-CR00099-A(01) (N.D.Tex. July 9, 2010) [Dkt. #27]. In November 2010, he was sentenced in the United States District Court for the District of Northern Texas to 120 months in prison. Judgment, United States v. David Barouch, No. 4:10-CR-00099-A(01) (N.D.Tex. Nov. 1, 2010) [Dkt. # 41].

By letters dated April and May 2011, plaintiff submitted written requests to CRM, USMS, EOUSA, BOP, and ATF. Ex. 1 to Decl. of John E. Cunningham III (“Cunningham Deck”) [Dkt. # 15-3] at l(CRM); Attach. 2 to Decl. of Violet Mack (“Mack Decl.”) [Dkt. #22-1] at l(BOP); Ex. A to Decl. of David Luczynski (“Luczynski Decl.”) [Dkt. #22-2] at 1 (EOU-SA); Ex. A to Decl. of Stephanie M. Boucher (“1st Boucher Decl.”) [Dkt. # 22-3] at 1(ATF); Ex. A to Decl. of William E. Bordley (“Bordley Decl.”) [Dkt. # 22-4] at 1 (USMS). All of the documents sought “full disclosure and release of all files, records, data and/or information maintained by” each agency under plaintiffs name. Id. His request included his birth-date, place of birth, social security number, case numbers for his conviction and appeal, and the district in which he was convicted. Id. In addition, plaintiff maintains that he submitted an identical FOIA request to Treasury. Compl. ¶ 12; see also Aff. of Jack Barouch (“Barouch Aff.”), Ex. A to [Dkt. # 16], ¶ 1.

I. Request to Treasury

Plaintiff claims that Treasury possesses but has withheld documents responsive to his request. Compl. ¶¶ 5, 22, 25. Defendants claim that Treasury never received a request from plaintiff. Mem. in Support of Fed. Defs.’ Mot. for Partial Summ. J. and Dismissal [Dkt. # 15-2] (“Defs.’ 1st Mem.”) at 4. In support of this contention, Treasury has submitted a declaration from Hugh Gilmore, a supervisory program analyst in Disclosure Services, part of Treasury’s Departmental Offices, which oversees FOIA compliance for the bureaus of Treasury except for the Internal Revenue Service. Declaration of Hugh Gilmore [Dkt. #15-4] (“Gilmore Decl.”) ¶2. He states that Treasury has conducted a search of its FOIA tracking system to find any requests submitted under plaintiffs name, but none were located. Id. ¶ 5.

The declaration also notes that although plaintiff alleges that ATF is an agency within Treasury, ATF became part of DOJ in 2003. Id. ¶¶ 6-7; see also Homeland Security Act of 2002, Pub.L. No. 107-206, 116 Stat. 2135; Compl. ¶¶5, 6, 22, 25 (referring to ATF as a division of Treasury).

II. Request to CRM

CRM acknowledged receipt of plaintiffs request by letter dated May 6, 2011. Cunningham Decl. ¶ 4; see also Ex. 1 to Cunningham Decl. On May 23, 2011, it responded to the request. Cunningham Decl. ¶ 7; Ex. 2 to Cunningham Decl. The response directed plaintiff to send another letter to CRM indicating which section of the agency he wanted to be searched, and specifying the location and dates of his conviction, arrests, and the federal offenses, and any other applicable time-frames involved. Ex. 2 to Cunningham Decl. By letter dated June 6, 2011, plaintiff asked that CRM search the “FOIA/PA Unit,” and he responded to CRM’s other requests. Cunningham Decl. ¶ 8; Ex. 3 to Cunningham Decl. On July 6, 2011, CRM sent plaintiff a letter informing him that no responsive documents had been found. Cunningham Decl. ¶ 11; Ex. 5 to Cunningham Decl. The letter also explained plaintiffs right to appeal CRM’s determination to DOJ’s Office of Information Policy (“OIP”). Ex. 5 to Cunningham Decl. On July 12, 2011, plaintiff sent a letter to OIP appealing CRM’s decision. Cunningham Decl. ¶ 13; Ex. 6 to Cunningham Decl. OIP confirmed receipt of plaintiffs appeal by letter dated July 27, 2011, and informed plaintiff by letter dated October 11, 2011 that it had determined that CRM’s search was adequate. Cunningham Decl. ¶¶ 14-15; Exs. 7-8 to Cunningham Decl.

On April 3, 2012, after plaintiff had filed the instant lawsuit, CRM received one potentially responsive document from EOU-SA because EOUSA had determined that the document originated with CRM. Cunningham Decl. ¶ 17; Exs. 9-10 to Cunningham Decl. The document was a July 15, 2005, memorandum (“Richter Memorandum”) from Acting Assistant Attorney General of CRM, John C. Richter, concerning “[c]harging under 18 U.S.C. 924(c) where the underlying crime of violence is the possession of the same weapon.” Cunningham Decl. ¶ 19 (internal quotation marks omitted); Ex. 11 to Cunningham Decl. On April 18, CRM informed plaintiff by letter that it was withholding the document in part pursuant to 5 U.S.C. § 552(b)(5), which permits agencies to withhold from production inter- or intraagency documents that would not be available in litigation. Cunningham Decl. ¶ 19; Ex. 11 to Cunningham Decl. This letter also informed plaintiff that he could appeal the decision to OIP.Ex. 11 to Cunningham Decl.

III. Request to USMS

On May 17, 2011, USMS’s Office of General Counsel (“OGC”) received plaintiffs request. Bordley Decl. ¶ 2; Ex. A to Bordley Decl. By letter dated May 20, OGC acknowledged receipt of plaintiffs letter and informed him that the office had begun its search. Bordley Decl. ¶ 3; Ex. B to Bordley Decl. According to William E. Bordley, who is the Associate General Counsel and Freedom of Information/Privacy Act Officer for USMS, OGC searched the Prisoner Processing and Population Management/Prisoner Tracking System (PPM/PTS), JUSTICE/USM-005 and the Warrant Information Network (WIN), JUSTICE/USM-007. Bordley Decl. ¶¶ 1, 5. These resources comprise the electronic and paper records concerning USMS prisoners and others investigated by USMS pursuant to an arrest warrant or other judicial process. Id. ¶ 5. Following a search of these records, OGC identified 28 pages of material indexed to plaintiffs name, located in the Northern District of Texas — the relevant location identified by plaintiff in his request. Id.; Ex. A to Bordley Decl.

By letter dated June 21, 2011, OGC informed plaintiff that it was releasing twenty-eight pages of documents to him. Bordley Decl. ¶ 6; Ex. C to Bordley Decl. Of these pages, fifteen were released in their entirety, and thirteen were released with redactions pursuant to 5 U.S.C. § 552(b)(7)(C) (“Exemption (b)(7)(C)”) and 5 U.S.C. § 552(b)(7)(E) (“Exemption (b)(7)(E)”). Bordley Decl. ¶ 6; see also 5 U.S.C. §§ 552(b)(7)(C), (b)(7)(E) (2012). The letter also informed plaintiff that he could appeal USMS’s determination to OIP.Ex. C to Bordley Decl. Plaintiff filed an appeal by letter dated July 1, 2011. Bordley Decl. ¶ 7; Ex. D to Bordley Decl. By letter dated September 21, 2011, OIP informed plaintiff that it was affirming the decision. Ex. E to Bordley Decl.

USMS’s Vaughn index describes the information withheld and lists the basis for the withholdings. Bordley Decl. ¶¶ 11-12. USMS relied on Exemption (b)(7)(C) to withhold information from twelve pages of the responsive documents. Id. ¶ 12. In each instance, it was invoked to excise the name, address, prison identification number, and/or registration number of third parties, government employees, law enforcement officers, USMS employees and/or other prisoners. Id. USMS also withheld the secure website address from one page also pursuant to Exemption (b)(7)(E). Id.

IV. Request to ATF

According to a declaration by the Chief of ATF’s Disclosure Division, Stephanie M. Boucher, the agency received a letter from plaintiff on August 1, 2011, that was dated July 20, 2011. 1st Boucher Decl. ¶¶ 1, 3. The letter indicated that plaintiff had filed a formal FOIA request more than thirty days prior but had not received a response. Ex. A to 1st Boucher Decl. Enclosed along with the letter was a copy of a request written by plaintiff under FOIA and the Privacy Act, dated April 26, 2011, as well as two attachments to the request. Id. The first attachment is a document stating that the request includes investigative records in the possession of the Colleybille [sic], Keller, and Fort Worth Police Departments, which — according to the attachment — operated as sub-agents for ATF in plaintiffs criminal case. Id. The second attachment is a document stating that the request includes (1) a microcassette recording of an October 2010 interview of plaintiff by ATF Agent Riddle with plaintiffs then-counsel Mic Mickelson, (2) a tape recording of a November 2010 interview with an inmate that was conducted by ATF Agent Riddle and an unnamed Texas Ranger, and was attended by plaintiff, and (3) a videotape recording of plaintiff purchasing two salad bowls from Bed, Bath, and Beyond in roughly April or May of 2010. Id. By letter dated August 2, 2011, ATF responded to plaintiff to inform him that ATF had received and would process his FOIA request dated August 1, but that it had not previously received a request from him. 1st Boucher Decl. II4; Ex. B to 1st Boucher Decl.

According to the Boucher declaration, the Disclosure Division concluded that release of the records sought could reasonably be expected to interfere with ongoing law enforcement proceedings. 1st Boucher Decl. ¶ 5. Accordingly, by letter of August 3, 2011, ATF denied plaintiffs request pursuant to 5 U.S.C. § 552(b)(7)(A) (“Exemption (b)(7)(A)”). 1st Boucher Decl. ¶ 5; Ex. C to 1st Boucher Deck; see also 5 U.S.C. § 552(b)(7)(A) (2012). The denial left open the option for ATF to invoke additional exemptions to support withholdings in the future. 1st Boucher Decl. ¶ 5; Ex. C to 1st Boucher Decl. The letter also informed plaintiff that he could appeal the denial to OIP. 1st Boucher Decl. ¶ 5; Ex. C to 1st Boucher Decl. After August 3, 2011, ATF notified plaintiff of that because his appeal from his criminal case had concluded, the agency intended to release documents that had been previously withheld. Decl. of Stephanie M. Boucher [Dkt. # 26-1] ¶ 3.

According to Boucher, her staff contacted OIP after plaintiff filed the complaint in the instant case to determine whether plaintiff had filed an administrative appeal of ATF’s actions. 1st Boucher Decl. ¶8. OIP informed Boucher’s staff that it had no records of an appeal from plaintiff. Id.

In addition, on April 10, 2012, ATF received potentially responsive documents from EOUSA because EOUSA had determined that the documents originated with ATF. 1st Boucher Decl. ¶ 6; Ex. D to 1st Boucher Decl. By letter dated April 12, 2012, ATF notified plaintiff that it was partially withholding the documents under Exemption (b)(7)(C). 1st Boucher Decl. ¶ 7; Ex. E to 1st Boucher Decl.

V. Request to BOP

By letter dated April 26, 2011, plaintiff submitted a Privacy Act/FOIA request to BOP. Mack Decl. ¶ 4; Attach. 2 to Mack Decl. The letter was directed to BOP’s Office of General Counsel FOIA/PA Section and was received by that office on May 17, 2011. Mack Decl. ¶ 4; Attach. 2 to Mack Decl. According to BOP Paralegal Specialist Violate Mack, the FOIA/PA Section staff determined that the appropriate location for plaintiffs search request was BOP’s South Central Region. Mack Decl. ¶ 5. Accordingly, on May 27, 2011, FOIA/PA Section staff uploaded the request letter into Metastorm BPM — the Bureau’s FOIA database — for processing by the SCRO Regional Counsel’s Office. Id. According to Mack, the now-retired SCRO Paralegal Specialist, Larry Collins, determined that the form of plaintiffs request was typical of forms used by inmates at particular institutions, except that plaintiff had also appended an additional page specifying in more detail the materials he sought. Id. ¶ 6; Attach. 2 to Mack Deck Those specific materials were: “[telephonic recordings or transcriptfs] of telephonic recordings” from (a) the Parker County detention center from May 1, 2010 through July 15, 2010; (b) FDC Fort Worth from July 1, 2010 through November 1, 2010; and (c) FCI Seagoville from October 28, 2010 to present, as well as any Parker County Detention Center or FDC Fort Worth inmate files concerning plaintiff not currently in the central file at Seagoville. Attach. 2 to Mack Deck

On August 14, 2011, BOP’s Office of General Counsel, Freedom of Information division received another letter from plaintiff. Mack Deck ¶ 14. This letter contained (1) a letter from plaintiff to the BOP FOIA section, dated July 20, 2011, requesting an update on the status of his April 26, 2011 FOIA request to the BOP Office of Central Counsel FOIA/PA Section, with a copy of the April 26 request attached, (2) a letter dated July 27, 2011, from BOP Legal Instruments Examiner Paula Champion, indicating that she had received a letter from plaintiff requesting records maintained by BOP at the Federal Correctional Institution, Fort Worth, Texas, and informing plaintiff that if his request was intended to be filed under the Privacy and Freedom of Information Acts, it should be sent to BOP’s Office of General Counsel, Freedom of Information Division, and (3) a FOIA request by plaintiff, identical to the April 26, 2011 request, but addressed to the Office of General Counsel, Freedom of Information, Bureau of Prisons Central Office and dated July 30, 2011. Mack Deck ¶ 14; Attach. 5 to Mack Deck

According to Mack, Collins e-mailed FCI Fort Worth’s staff on June 7, 2011, requesting documents responsive to plaintiffs request. Mack Deck ¶ 7. In his email, Collins noted that plaintiff had been a “holdover” inmate — that is, a BOP inmate not yet transferred to his designated institution — at Fort Worth, and that he was specifically requesting all recorded telephone calls from Fort Worth during the specified timeframe. Id. & n. 2. Collins also sent an e-mail on June 7, 2011 to FCI Seagoville’s Legal Liaison requesting responsive records, specifically including recorded telephone calls for the requested period and any available telephone transactional data concerning plaintiff. Id. ¶ 8.

The Mack declarations states that because the content of plaintiffs FOIA letter was the same or similar to letters that BOP receives frequently from other inmates, BOP interpreted the letter as a “form letter” rather than a request for all documents maintained in the central and medical files of the requesting inmate. Id. ¶ 11 & n. 5. To determine the scope of plaintiffs request, BOP looked to the more specific requests delineated in the attachments to plaintiffs letter. Id. ¶ 11. Since the requests described in the attachments were limited to records maintained by the Parker County Detention Center and FCI Fort Worth that would not be found in plaintiffs central file maintained at FCI Seagoville, BOP determined that the scope of plaintiffs request did not extend to all documents in his central file. Id. And since the requests were unrelated to any records that would be maintained in plaintiffs medical file, BOP determined that the scope did not extend to all documents in his medical file. Id.

According to Mack, on June 8, 2011, FCI Fort Worth staff sent Collins the transactional data from plaintiffs use of the Inmate Telephone System (“ITS”) but informed him that it had found no recorded telephone conversations and no detainee files. Mack Decl. ¶ 12. On June 16, 2011, FCI Seagoville staff informed Collins that it would forward a CD containing a copy of the transactional data for plaintiffs ITS usage. Id. ¶ 13. The CD also contained recorded telephone conversations. Id.

On August 31, 2011, the SCRO Regional Counsel responded to plaintiffs FOIA request. Mack Decl. ¶ 15; Attach 6. to Mack Decl. The letter indicated the following:

• Parker County Detention Center records are not subject to FOIA requests and not within BOP’s jurisdiction.

• BOP located no detainee file concerning plaintiff at FCI Fort Worth.

• In consideration of the specific re- ■ quests noted in the attachments to plaintiffs request letter, BOP declined to interpret the scope of the request 'as including all documents in the central and medical files; however, plaintiff was invited to provide BOP with a clearer description of the records sought.

• BOP’s search turned up 113 recorded telephone conversations from FCI Seagoville between the dates of December 18, 2010 and June 6, 2011.

• No recorded telephone conversations were found at FCI Fort Worth.

• Recorded telephone conversations are maintained on the TRUFONE system for 180 days, after which they are automatically deleted.

• Recorded telephone conversations cannot be released without consent from all recorded parties and are, therefore, exempt from disclosure under 5 U.S.C. §§ 552(b)(6) and (b)(7)(C).

• Sixteen pages of telephone transactional data were released to plaintiff.

• Plaintiff could appeal BOP’s response to his request by filing a written appeal with OIP.

Mack Decl. ¶ 15; Attach. 6 to Mack Decl.

By letter dated September 29, 2011, plaintiff requested preservation of the telephone conversations identified in BOP’s response. Mack Decl. ¶ 16; Attach. 7 to Mack Decl. SCRO Regional Counsel confirmed by letter dated October 24, 2011, that the records would be preserved through December 2017 per the BOP Records and Information Disposition Schedule. Mack Decl. ¶ 16; Attach. 8 to Mack Decl.

On March 13, 2012,. after BOP received no correspondence indicating that plaintiff had elected to file an appeal, Collins sent an e-mail to an OIP representative, asking for a confirmation that plaintiff had not yet appealed the decision. Mack Decl. ¶¶ 18-19. On March 27, Collins received an email response indicating that OIP had no record of an appeal. Mack Decl. ¶ 20; Attach. 9 to Mack Decl.

At the time that plaintiff filed the instant lawsuit, BOP had informed plaintiff only that it was withholding the records described in BOP’s August 31, 2011 letter. See Attach. 6 to Mack Decl. However, after the initiation of this action, EOUSA referred a number of additional pages to BOP to process. Luczynski Decl. ¶ 6.

VI. Request to EOUSA

On May 17, 2011, EOUSA received a letter from plaintiff requesting, pursuant to the Privacy Act and FOIA, copies of “all files, records, data, and/or information” maintained by EOUSA under the name David Barouch. Luczynski Decl. ¶ 4; Ex. A to Luczynski Decl. On May 31,, 2011, EOUSA acknowledged receipt of plaintiffs letter. Luczynski Decl. ¶ 5; Ex. B to Luczynski Decl. EOUSA’s letter informed plaintiff that, although the agency attempted to process most requests within twenty days, “Project Requests” — including requests about oneself in criminal case files — usually took about nine months. Ex. B to Luczynski Decl.

According to David Luczynski, an EOU-SA attorney advisor who, among other things, reviews FOIA and Privacy Act requests submitted to EOUSA and prepares responses, EOUSA began its search in the Northern District of Texas, which was specified as the pertinent location in plaintiffs initial inquiry. Luczynski Decl. ¶¶ 1, 8; Ex. A to Luczynski Decl. EOUSA’s search involved reviewing the records from plaintiffs case, sending email requests for responsive documents to the Assistant United States Attorney in the Criminal Division, and searching the LIONS system — used by the United States Attorney Offices to monitor cases and retrieve files- — -using plaintiffs name as the search term. Luczynski Decl. ¶ 8

By letter dated March 26, 2012 — after the initiation of this case — EOUSA responded to plaintiff, indicating that it had identified relevant documents and was releasing 159 pages in full, releasing 50 pages in part, and withholding 282 pages in full. Compl. at 1; Luczynski Decl. ¶ 6; Ex. C to Luczynski Decl. The letter informed plaintiff that documents were withheld from production under the FOIA exemptions codified at 5 U.S.C. § 552(b)(3) (“Exemption (b)(3)”), 5 U.S.C. § 552(b)(5) (“Exemption (b)(5)”), 5 U.S.C. § 552(b)(6) (“Exemption (b)(6)”), and Exemption (b)(7)(C), and under the Privacy Act exemption codified at 5 U.S.C. § 552a(j)(2) (“Exemption