Milton v. United States Department of Justice , 842 F. Supp. 2d 257 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
GREGORY A. MILTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-242 (RWR)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Gregory A. Milton, a sentenced inmate, filed a pro
se complaint against the United States Department of Justice
(“Department”) under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. The Department moved to dismiss or, in the
alternative, for summary judgment. A May 6, 2011 memorandum
opinion found that the Department had properly invoked the
privacy exemption to FOIA disclosure, but had not demonstrated
that the requested material contained no segregable information.
The Department’s motion therefore was denied without prejudice.
The Department renewed its motion for summary judgment, further
addressing the issue of segregability. Because the Department’s
supplemental declaration in support of its renewed motion
sufficiently articulates the Department’s inability to segregate
the non-exempt information, its motion will be granted and
judgment will be entered for the Department.
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BACKGROUND
The background of this case is set out in Milton v. U.S.
Dep’t of Justice, 596 F. Supp. 2d 63 (D.D.C. 2009), and in Milton
v. U.S. Dep’t of Justice, 783 F. Supp. 2d 55 (D.D.C. 2011).
Briefly, Milton seeks the recordings of conversations in
telephone calls he made from prison to others. The Department
filed a dispositive motion invoking FOIA Exemptions 6 and 7(C),
codified at 5 U.S.C. §§ 552(b)(6) and (b)(7)(C), arguing that the
records Milton seeks are exempt from disclosure because of
privacy considerations of the third parties in the phone
conversations. A May 6, 2011 memorandum opinion found that the
Department had properly invoked Exemption 6. However, the
Department’s motion was denied because the opinion found that the
Department had not demonstrated that it could not disclose any
“reasonably segregable portion,” 5 U.S.C. § 552(b), of the
otherwise exempt records. Specifically, the Department’s
declaration in support of its motion stated that its FOIA experts
had advised that the type of format in which the calls were
stored did not make it possible to segregate, but did not clarify
why it was not possible and did not state that an appropriate
official reviewed the telephone conversations at issue to
conclude that they contained no reasonably segregable portions.
The Department renewed its motion for summary judgment,
appending a supplemental declaration in which a Bureau of Prisons
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(“BOP”) official represents that she reviewed the telephone calls
responsive to Milton’s FOIA requests and that the review revealed
that the recordings contained no segregable information.
(Def.’s Renewed Mot. Summ. J., Supp. Decl. of Vanessa Herbin-
Smith (“Herbin-Smith Supp. Decl.”) ¶ 6.) She further states that
the format of the recorded conversations is a “.wav” file. (Id.
¶ 7.) According to the declarant, “[i]n order to segregate a
‘.wav’ file, a specific program is required to segregate the
recorded telephone conversations. The BOP has no need for this
type of program in the ordinary course of its business, and
therefore does not have the technology to segregate recorded
telephone conversations.” (Id.) Milton maintains his
entitlement to the non-exempt portion of the phone calls, arguing
that the technology to segregate .wav files is reasonably
available at little or no cost and that the declaration contains
alleged inconsistencies and evinces bad faith on the part of the
Department.
DISCUSSION
The FOIA requires disclosure of “[a]ny reasonably segregable
portion” of an otherwise exempt record. 5 U.S.C. § 552(b). An
agency therefore cannot withhold non-exempt portions of a
document unless they are inextricably intertwined with exempt
portions. Mead Data Central, Inc. v. U.S. Dep’t of Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977). A court “may rely on
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government affidavits that show with reasonable specificity why
documents withheld pursuant to a valid exemption cannot be
further segregated.” Juarez v. Dep’t of Justice, 518 F.3d 54, 61
(D.C. Cir. 2008). An affidavit stating that an agency official
conducted a review of each document and how she determined that
no document contains segregable information fulfills the agency’s
obligation. Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d
771, 776-77 (D.C. Cir. 2002). If an agency demonstrates that no
material facts are in dispute and that all information that falls
within the class requested either has been produced, is
unidentifiable, or is exempt from disclosure, the agency is
entitled to summary judgment. Milton, 783 F. Supp. 2d at 57
(citing Students Against Genocide v. Dep’t of State, 257 F.3d
828, 833 (D.C. Cir. 2001)). In considering a motion for summary
judgment, a court must draw all “justifiable inferences” from the
evidence in favor of the nonmovant, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986), and the agency resisting
disclosure bears the burden of persuasion in defending its
action. 5 U.S.C. § 552(a)(4)(B); see also Akin, Gump, Strauss,
Hauer & Feld, LLP v. U.S. Dep’t of Justice, 503 F. Supp. 2d 373,
378 (D.D.C. 2007).
Here, the Department has submitted that an agency official
conducted a personal review of the recordings and that the BOP
does not have any program that would permit segregation of the
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recordings. (Herbin-Smith Supp. Decl. ¶¶ 6-7.) Milton counters
that multiple free and low-cost programs exist that would enable
the BOP to edit the .wav files at issue. (Pl.’s Mem. P. & A. in
Opp’n to Def.’s Renewed Mot. Summ. J. (“Pl.’s Opp’n” at 2.) In
addition, he argues that BOP’s internal procedures “allow[] for
the BOP to obtain authorization to use software programs from the
appropriate ‘Information Security Officer[.]’” (Id.) Milton,
however, does not argue or present any evidence that BOP
currently has the technological capacity to segregate the
recordings.
Courts in this Circuit have held repeatedly that records
were not reasonably segregable where the agency attested that it
lacked the technical capability to edit the records in order to
disclose non-exempt portions. See Mingo v. U.S. Dep’t of
Justice, 793 F. Supp. 2d 447, 454-55 (D.D.C. 2011) (crediting
BOP’s assertion that it did not have the technical capability to
reasonably segregate and release plaintiff’s portion of
conversations in recordings); Antonelli v. Fed. Bureau of
Prisons, 591 F. Supp. 2d 15, 27 (D.D.C. 2008) (same); Swope v.
U.S. Dep’t of Justice, 439 F. Supp. 2d 1, 7 (D.D.C. 2006) (same).
In each of these decisions, the focus of the segregability
analysis was on the agency’s current technological capacity.
Milton has not presented any authority for the proposition that
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the FOIA obligates agencies to acquire new technological capacity
in order to comply with disclosure requests.1
Where, as here, an agency declaration “contain[s] reasonable
specificity of detail rather than mere conclusory statements,”
the plaintiff must point either to “contradictory evidence in the
record” or provide “evidence of agency bad faith” in order to
refute the agency’s assertions. Williams v. FBI, 69 F.3d 1155,
1159 (D.C. Cir. 1995) (internal quotations omitted). Contrary to
Milton’s assertion (Pl.’s Opp’n at 2), the Department’s failure
to demonstrate efforts to secure the technology necessary to edit
.wav files, where the agency is under no obligation to do so, is
not evidence of bad faith. Milton also argues that the
declarant’s statement that her review of the telephone calls
revealed “no segregable information” is inconsistent with her
subsequent statement that it is “not . . . possible to segregate”
the calls. (See Pl.’s Statement of Genuine Issues of Material
1
The D.C. Circuit in Yeager v. DEA recognized that the
well-established principle that “[t]he purposes and policies
underlying the FOIA . . . impose a duty upon agencies to disclose
their records” applies to computerized records as it does to
traditional ones. Yeager v. DEA, 678 F.2d 315, 320-21 (D.C. Cir.
1982). However, contrary to Milton’s characterization of the
decision (Pl.’s Opp’n at 3), the Yeager Court did not recognize a
requirement that agencies install new technology to facilitate
FOIA disclosure. Rather, the decision concerned the question
whether an agency was obligated to use its existing technology to
manipulate or restructure the substantive content of a requested
record in order to render the record subject to disclosure.
Yeager, 678 F.2d at 320. The Court concluded the agency had no
such duty. Id. at 327.
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Facts in Dispute at 2 (arguing that “if there is ‘no segregable
information’ then whether the calls could be ‘possible to
segregate’ would be irrelevant”).) Because “segregable” means
“possible to segregate,” the declarant’s statements are not
inconsistent. Milton’s argument regarding the alleged
inconsistency appears to rest on a mistaken conflation of the
terms “segregable” and “exempt.” Although the Department
concedes that Milton’s side of the telephone conversations is
non-exempt, that information is nonetheless not segregable due to
BOP’s technical limitations. Because there is no evidence of bad
faith or inconsistency, the declaration will be credited.
CONCLUSION
The Department has filed a renewed motion, supported by a
sworn declaration, demonstrating that the BOP does not possess
the technological capacity to segregate the non-exempt portions
of the requested records. The plaintiff has presented no
evidence to refute that assertion or authority obliging BOP to
acquire the necessary technology. Because the records therefore
are not reasonably segregable, the defendant is entitled to
judgment as a matter of law and its motion will be granted. A
final order accompanies this memorandum opinion.
SIGNED this 8th day of February, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge