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Case TitleHuman Rights Watch v. Department of Justice Federal Bureau of Prisons
DistrictSouthern District of New York
CityFoley Square
Case Number1:2013cv07360
Date Filed2013-10-18
Date Closed2014-05-09
JudgeJudge Harold Baer
PlaintiffHuman Rights Watch
Case DescriptionHuman Rights Watch submitted 10 FOIA requests to the Bureau of Prisons and five FOIA requests to the National Security Division at the Department of Justice for records concerning individuals charged or convicted of terrorism. The NSD informed Human Rights Watch that it had referred its requests to BOP. Human Watch had a number of discussions with BOP concerning the requests, but it finally filed an administrative appeal. After hearing nothing further, Human Rights Watch filed suit.
Complaint issues: expedited proceedings, improper withholding, disclosure of all records, attorney's fees

DefendantDepartment of Justice Federal Bureau of Prisons
Documents
Docket
Complaint
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Opinion/Order [67]
FOIA Project Annotation: In a ruling that continues a recent trend to expand the meaning of law enforcement records to include records that might affect security, District Court Judge J. Paul Oetken has found that the Department of Justice properly applied Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records) to withhold information that might provide more detailed data on both prisoners accused of terrorism-related crimes and the treatment of American Muslims in prison. Oetken also ruled that a small subset of records was protected by Exemption 3 (other statutes), but allowed the government to redact public references to the statute and to identify it with an in camera affidavit. Human Rights Watch made ten requests to the Bureau of Prisons and five requests to the National Security Division at DOJ for information about the total number of individuals charged with or convicted of terrorism offenses, their pre- and post-conviction facility placement, and their detention in certain especially restrictive environments. DOJ disclosed more than 600 pages with redactions. Human Rights Watch challenged the agency's response concerning spreadsheets containing information on inmates housed in Communications Management Units at federal prisons in Marion, Illinois, and Terre Haute, Indiana. Two spreadsheets listed inmates at the prisons with an emphasis on ethnic background and offense conduct. Some data elements had been redacted, including an inmate's Security Threat Group assignment and the offense conduct giving rise to the STG assignment. The other spreadsheet listed inmates at the CMUs as of November 25, 2013 and included 20 columns, many of them overlapping with the other two spreadsheets, including "reason for CMU referral." BOP had redacted columns for inmate associations, comments by prison officials, and STG and Case Management Coordinator status, which reflected the prison's decision that an inmate presented special needs for management, such as the need to be separated from a particular group. Human Rights Watch also challenged redactions in internal memoranda regarding Special Administrative Measures the Attorney General could request to limit inmate communications that might disclose classified information or facilitate acts of terrorism. Another disputed category pertained to requests from inmates to prison staff for Islamic religious accommodations along with staff responses. BOP had redacted such information as inmate job assignments, and inmate cell assignments, as well as BOP staff user IDs. BOP also redacted information from two "Key Indicators" documents, which pertained to CMU capacity. Finally, BOP redacted information it considered non-responsive to Human Rights Watch's requests, including requests from prisoners that did not reflect Islamic religious accommodations. BOP also redacted as non-responsive the total institutional capacity, the special housing unit capacity, and changes in CMU capacity for the two prisons. Oetken indicated that if BOP's records qualified as law enforcement records Exemption 7(C)'s less-demanding standard applied and Exemption 6 would not have to be considered at all. While there is a considerable amount of case law on what constitutes a law enforcement record, the only case the government cited was Williams v. FBI, 730 F.2d 882 (2d Cir. 1984), for the proposition that BOP records are per se compiled for law enforcement purposes. Oetken rejected that broad reading, observing that "to the extent that Williams stands for that broad proposition, the Second Circuit has not repeated it in the last thirty years and the Government cites no case from this district applying it." Instead, Oetken seized upon two recent D.C. Circuit decisions�"PEER v. U.S. Section, International Boundary and Water Commission, 740 F.3d 195 (D.C. Cir. 2014) and EPIC v. Dept of Homeland Security, 777 F.3d 518 (D.C. Cir. 2015)�"as support for the proposition that law enforcement records could include any records used for security purposes. The most troubling aspect of the PEER and EPIC decisions, however, is that they are totally based on Justice Samuel Alito's concurrence in Milner v. Dept of the Navy, which, legally, represents nothing more than Alito's personal opinion. Calling this interpretation a "broader, commonsense understanding of 'law enforcement purposes,'" Oetken acknowledged that it "need not and does not embrace all BOP records." He added that "to acknowledge that 'law enforcement purpose' defies rigid formulation, then, is not to allow all information about BOP administration and procedure to satisfy the Exemption 7 threshold." Assessing the Exemption 7(C) balancing test, Oetken gave considerable credence to the mosaic theory. In finding that the inmates had more than a de minimis privacy interest in the data redacted by BOP, he pointed out that "anyone who knows that a particular individual is in a CMU�"a current or former inmate, a friend or associate, and in some cases members of the public�"may be able to identify the inmate's row of the spreadsheet based on the already-released information, like citizenship and sentence. . .[E]ven though the information sought does not identify an inmate by name or number, a reader could put together the mosaic of information about each inmate, identify them, and learn other personal information about them. . ." Human Rights Watch cited ACLU v. Dept of Homeland Security, 973 F. Supp. 2d 306 (S.D.N.Y. 2013), in which the court rejected the agency's attempts to withhold potentially-identifying data about a pool of 22,000 immigration detainees. Oetken pointed out, however, that "here, in contrast, there are roughly 50 people in each of the two CMUs. The concern that someone might review the list of 50 people in a CMU and identify an individual person's row of information is not only plausible, but substantial." Oetken agreed with Human Rights Watch that the public interest in disclosure of such information was significant. But he pointed out that "this step of the inquiry focuses 'not on the general public interest in the subject matter of the FOIA request, but rather on the incremental value of the specific information being withheld.' Human Rights Watch has not adequately shown that incremental information on STG status, associations, and CMC status is itself significant." He indicated, however, that the "Comments" column "likely contains some nonexempt information segregable from exempt information. . .Presumably, some information in the column falls within the privacy exemptions, but some does not." He ordered the agency to provide an unredacted version of the "Comments" column for in camera review. Oetken then evaluated the SAM memoranda, finding the privacy and public interests similar to those at stake in his assessment of the CMU data. Explaining that the inmates had a privacy interest in the reasons why they were subject to SAMs, Oetken noted that "as with the CMU spreadsheets, the more information particular to a given inmate is released, the likelier it is that the inmate in the memo can be identified and linked to the descriptions and measures in the memo." Oetken recognized that there was a significant public interest as well. He observed that "to be sure, release of that information may help the public better understand the SAM program's operation. But Human Rights Watch has not articulated why the information released is incrementally valuable, beyond concerns that the extant information is too vague and a general statement of its use in 'further investigations.'" Oetken found that disclosure of the U.S. Attorney's Office that handled each case was in the public interest. He observed that "Human Rights Watch has described a specific public interest in identifying patterns in the way SAMs are requested by certain U.S. Attorneys' Offices. Release of this information will help the public understand 'what' specific institutions of 'the Government is up to'�"specifically, which parts of the Government are seeking SAMs and how often." But Oetken warned that his decision to disclose another data point changed the privacy balance accordingly. He pointed out that "having ordered release of the U.S. Attorney's Office information because of the strong public interest, however, the total mix of public information has changed. The likelihood of identification upon release of crime and sentence information is now greater, because the information could be paired with both the already released information and to-be-released U.S. Attorney's Office information." While he found some justification for redacting information from the religious accommodations requests under Exemption 6, Oetken agreed with Human Rights Watch that the organization had provided plausible evidence that Muslims are retaliated against in prison. He noted that "the public has a significant interest in investigating those reports. And in light of the higher bar for Exemption 6 redactions, it cannot be said that the invasion of personal privacy would be 'clearly unwarranted.'" The government had redacted the identity of a statute, which it identified for Oetken in an in camera affidavit, under Exemption 3. Oetken indicated that "the Court takens seriously Human Rights Watch's concern that the Government did not disclose even the predicate statutory provision it invokes to justify the exemption, preventing Human Rights Watch from challenging that invocation." After reviewing the in camera affidavit, he noted that "the Court also agrees with the Government that redaction of the statute requiring the withholding is justified." Finally, Oetken agreed with the government that portions of records pertaining to requests for accommodations other than for Islamic religious purposes were non-responsive and could be withheld. He disagreed, however, with BOP's redactions of "total institution capacity" and "special housing unit capacity," indicating that "the redacted information 'reflects the inmate capacity' [of the prisons] and falls within the FOIA request."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Exemption 3 - Statutory prohibition of disclosure, Exemption 6 - Invasion of privacy, Exemption 7 - Law enforcement records
Opinion/Order [73]
FOIA Project Annotation: A federal court in New York has granted the Justice Department's motion to reconsider the court's earlier ruling concerning the segregability of information in the comments column of the Historical Communications Management Unit Spreadsheet pertaining to inmates incarcerated on terrorism-related charges at federal prisons in Marion, Illinois and Terre Haute, Indiana, and after reviewing the records in camera has agreed with the Bureau of Prisons that the information cannot be segregated. Judge Paul Oetken had concluded, based on the government's affidavits, that some information was likely non-exempt. But after his in camera review, Oetken agreed with the government that "this information also implicates more than a de minimis privacy interest. Detailed information regarding offense conduct has a significant risk of being identifying, and the remaining information"especially sexual misconduct and post-incarceration misconduct"is information in which inmates have a pronounced interest in remaining private even if the risk of linking that information to them is small." Oetken found that "there is a set of information as to which the risk of identification is great, but the public interest is also significant. This information largely pertains to the movement of inmates"the kinds of facilities in which they were housed before they arrived at CMUs, and the kinds of facilities to which they went after leaving CMUs. For this information, the Court concludes that the generalized portions of these comments is reasonably segregable and not exempt. For example, the Government could release the portion of the comment indicating that a CMU inmate was released to the general population, but it need not identify a specific date or facility."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Segregability - Inextricably intertwined
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-10-181COMPLAINT against Department of Justice Federal Bureau of Prisons. (Filing Fee $ 350.00, Receipt Number 1079227)Document filed by Human Rights Watch.(laq) (Additional attachment(s) added on 10/23/2013: # 1 exh a, # 2 exh b, # 3 exh c, # 4 exh d, # 5 exh e, # 6 exh f, # 7 exh g, # 8 exh h, # 9 exh i, # 10 exh j, # 11 exh k, # 12 exh l, # 13 exh m, # 14 exh n, # 15 exh o, # 16 exh p, # 17 exh q, # 18 exh r, # 19 exh s, # 20 exh t, # 21 exh u, # 22 exh v, # 23 exh w) (laq). (Entered: 10/23/2013)
2013-10-18SUMMONS ISSUED as to Department of Justice Federal Bureau of Prisons. (laq) (Entered: 10/23/2013)
2013-10-18Magistrate Judge James L. Cott is so designated. (laq) (Entered: 10/23/2013)
2013-10-18Case Designated ECF. (laq) (Entered: 10/23/2013)
2013-10-292NOTICE OF CHANGE OF ADDRESS by Jonathan Matthew Manes on behalf of Human Rights Watch. New Address: Yale Law School, P.O. Box 208215, New Haven, CT, USA 06520-8215, (203)432-9387. (Manes, Jonathan) (Entered: 10/29/2013)
2013-10-303NOTICE OF APPEARANCE by Elizabeth Tulis on behalf of Department of Justice Federal Bureau of Prisons. (Tulis, Elizabeth) (Entered: 10/30/2013)
2013-11-074LETTER addressed to Judge Harold Baer from Elizabeth Tulis dated November 7, 2013 re: request for extension of time for the Government to file its answer or other response to the complaint. Document filed by Department of Justice Federal Bureau of Prisons.(Tulis, Elizabeth) (Entered: 11/07/2013)
2013-11-075LETTER addressed to David A. Schulz from Linda Eckhouse dated 11/5/2013 re: There will be a Pre-Trial Conference at 3:00 P.M. on 12/19/2013, in Chambers, Room 2230. ***Docket and File instructions from chambers. (tn) (Entered: 11/08/2013)
2013-11-146MEMO ENDORSEMENT on re: 4 Letter filed by Department of Justice Federal Bureau of Prisons. ENDORSEMENT: Adjourned to December 19 at 3:00 P.M. no more time to resolve on your own after that. See then for pre trial conference work out schedule so fully briefed by pre trial conference on December 19. Department of Justice Federal Bureau of Prisons answer due 12/19/2013. (Signed by Judge Harold Baer on 11/13/2013) (rsh) (Entered: 11/14/2013)
2013-12-187AFFIDAVIT OF SERVICE. Department of Justice Federal Bureau of Prisons served on 10/23/2013, answer due 12/19/2013. Service was made by MAIL. Document filed by Human Rights Watch. (Manes, Jonathan) (Entered: 12/18/2013)
2013-12-198ANSWER to 1 Complaint,,. Document filed by Department of Justice Federal Bureau of Prisons.(Tulis, Elizabeth) (Entered: 12/19/2013)
2013-12-19Minute Entry for proceedings held before Judge Harold Baer: Initial Pretrial Conference held on 12/19/2013. (sc) (Entered: 12/20/2013)
2014-01-089LETTER addressed to Judge Harold Baer from Jonathan M. Manes dated 01/08/2014 re: Proposed Scheduling Order. Document filed by Human Rights Watch. (Attachments: # 1 Text of Proposed Order)(Manes, Jonathan) (Entered: 01/08/2014)
2014-01-1010ORDER: The Court, having held an initial conference with the parties on December 19, 2013, upon consent of the parties, hereby ORDERS as follows: Not later than January 17, 2014, counsel for BOP shall provide counsel for HRW with a letter identifying the issues with HRW's FOIA requests that prevent BOP from performing a reasonable search for records responsive to those requests. Not later than January 24, 2014, counsel for HRW shall respond in writing to the January 17 Letter. And as set forth herein. SO ORDERED. (Signed by Judge Harold Baer on 1/10/2014) (ama) (Entered: 01/10/2014)
2014-02-2111JOINT LETTER addressed to Judge Harold Baer from Jonathan Manes and Elizabeth Tulis dated 02/21/2014 re: status of the parties' negotiations. Document filed by Human Rights Watch.(Manes, Jonathan) (Entered: 02/21/2014)
2014-03-0712LETTER addressed to Judge Harold Baer from Elizabeth Tulis and Jonathan Manes dated March 7, 2014 re: joint status report. Document filed by Department of Justice Federal Bureau of Prisons.(Tulis, Elizabeth) (Entered: 03/07/2014)
2014-03-1013MEMO ENDORSEMENT on re: 12 Letter filed by Department of Justice Federal Bureau of Prisons. ENDORSEMENT: So ordered. (Signed by Judge Harold Baer on 3/10/2014) (lmb) (Entered: 03/10/2014)
2014-03-1814LETTER MOTION for Extension of Time addressed to Judge Harold Baer from Elizabeth Tulis dated March 18, 2014. Document filed by Department of Justice Federal Bureau of Prisons.(Tulis, Elizabeth) (Entered: 03/18/2014)
2014-03-2615ORDER granting 14 Letter Motion for Extension of Time. April 15, 2014 is fine but lets not drag it much further. (Signed by Judge Harold Baer on 3/26/2014) (lmb) (Entered: 03/26/2014)
2014-03-2816LETTER addressed to Judge Harold Baer from Jonathan M. Manes and Elizabeth Tulis dated 03/28/2014 re: joint status report. Document filed by Human Rights Watch.(Manes, Jonathan) (Entered: 03/28/2014)
2014-03-3117MEMO ENDORSEMENT on re: 16 Letter filed by Human Rights Watch. ENDORSEMENT: I will allow the time to April 24, 2014 as requested but if not accomplished and a stipulation of some sort signaling the end of this far too long exercise the hearing will take place at 10:00 A.M. May 13 in my Courtroom and I will resolve the matter once and for all and any papers necessary will be in Chambers by May 9, 2014., ( Settlement Conference set for 5/13/2014 at 10:00 AM before Judge Harold Baer.) (Signed by Judge Harold Baer on 3/31/2014) (lmb) (Entered: 03/31/2014)
2014-04-2418LETTER addressed to Judge Harold Baer from Elizabeth Tulis and Jonathan Manes dated April 24, 2014 re: Joint Stipulation and Proposed Order. Document filed by Department of Justice Federal Bureau of Prisons. (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 04/24/2014)
2014-05-0919JOINT STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel for the parties and subject to the approval of the Court, that: 1. HRW agrees that the searches for records described below, together with those already completed, will constitute an adequate search by BOP in response to the FOIA Requests as further set forth in this order. The Clerk is instructed to close this case and remove it from my docket. (Signed by Judge Harold Baer on 5/9/2014) (lmb) (Entered: 05/09/2014)
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