VARLEY v. FEDERAL BUREAU OF PRISONS

Filing 32

MEMORANDUM AND OPINION: Re 10 MOTION for Summary Judgment by FEDERAL BUREAU OF PRISONS; 25 MOTION to Dismiss and Opposition to Cross-Motion for Summary Judgment by FEDERAL BUREAU OF PRISONS; 21 Cross MOTION for Summary Judgment by PETER VARLEY. Signed by Judge Robert L. Wilkins on 9/30/12. (lcrlw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PETER VARLEY,
Plaintiff
vs.
FEDERAL BUREAU OF PRISONS,
Defendant,

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Civil Action No.
1:11-cv-507 (RLW)

MEMORANDUM OPINION AND ORDER
In this Freedom of Information Act (“FOIA”) case, 5 U.S.C. § 552, there are three
pending motions 1 which revolve around a pro se prisoner’s right to access to his own Sentence
Monitoring Computation Data form, containing descriptive codes that “reference” his conviction.
For the reasons set forth below, the Court finds that Plaintiff is entitled to obtain a hardcopy of
the requested document.
I. FACTS
Pursuant to FOIA, Plaintiff Peter Varley, who is incarcerated in an Elkton, Ohio federal
facility, sought disclosure from the Defendant Federal Bureau of Prisons (“BOP”) of his
Sentence Monitoring Computation Data (“SMCD”) form relating to an earlier 1991 conviction.
In response to his request, the BOP sent Varley a hardcopy of the SMCD, but informed him that

1

The three motions are as follows: 1) “Defendant’s Motion for Summary Judgment”
(Doc. 10); 2) “Plaintiff’s Cross-Motion for Summary Judgment” (Doc. 21); and 3) Defendant’s
Motion to Dismiss (Doc. 25).
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some information had been redacted because the document:
contain[ed] third-party information and information intended for staff use only.
Release of this information could reasonably be expected to endanger the life or
physical safety of any person. The statutory basis for this withholding is [FOIA
Exemption 7,] 5 U.S.C. § 552(b)(7)(F). 2
(Doc. 10-2, Def’s Mot. for Summ. J. at Ex. 3, July 13, 2011 letter.)
The agency’s position changed several times after litigation began, however. Despite the
reference to third-party information in the disclosure letter, during the early stages of this
litigation the BOP asserted that the redacted information consisted of “descriptive codes
referencing Plaintiff’s conviction.” (See Doc. 10, Def.’s Summ. J. at 7.) Release of such
information to Varley himself, contended the BOP, could “reasonably be expected” to endanger
Varley’s life if the nature of his conviction were known within the inmate population. (Id.)
During the course of this litigation, it became apparent that Varley also sought a copy of
the Judgment entered in that earlier 1991 criminal action. According to Varley, he contacted the
court where he was previously convicted and was informed that it no longer had a copy of the
document. (Doc. 14, Pl.’s Summ. Resp. at Ex. A, Varley Decl. ¶ 9.) Although the agency
originally provided Varley with a redacted Judgment for the same reasons as it redacted the
SMCD, the BOP later changed course once again and eventually placed an unredacted copy of
both the Judgment and the SMCD in his prison file. (Doc. 18, Def.’s Summ. J. Reply at 3, n.3;
Doc. 18-2, Def.’s Summ. J. at Ex. 3, Shepas Decl. ¶ 2.) However, the BOP still refused to
provide Varley with hardcopies of the documents, citing Exemption 7 as well as an internal

2

FOIA exemption 7 allows an agency to withhold “information compiled for law
enforcement purposes” if, inter alia, disclosure “could reasonably be expected to endanger the
life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F).
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policy prohibiting inmates from possessing certain documents. (See Doc. 18, Def.’s Summ. J.
Reply at pp. 2-5) (citing Doc. 10-2, Def.’s Mot. for Summ. J. at Ex. 4, Federal Bureau of Prisons
Program Statement 1351.05 at ECF pp. 14-15.) Despite this policy, an Elkton case manager
eventually provided Varley with unredacted copies of two relevant documents. First, a case
manager gave Varley an unredacted copy of the Judgment and Varley has notified the court that
he wishes to dismiss his claims with respect to that document. (Doc. 20, Pl.’s Supplement ¶ 1.)
Second, a case manager provided Varley with an unredacted copy of the SMCD for his current
2007 sentence. (Doc. 14, Pl.s’ Summ. J. Resp. at p. 10; id. at Ex. A, Varley Decl. ¶ 10.)3
Because the BOP has only allowed him to view, but not obtain a hardcopy of his unredacted
SMCD for his 1991 conviction, Varley still seeks to proceed with his claim.

II. SUMMARY JUDGMENT STANDARD & REVIEW OF FOIA CASES
Summary Judgment under Federal Rule of Civil Procedure 56 is appropriate if the
pleadings and evidence on file show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986).
“FOIA cases are typically and appropriately decided on motions for summary judgment.”
Lardner v. F.B.I., No. 03–cv–0874 (RCL), ___ F. Supp. 2d ___, 2012 WL 1109728, at *3
(D.D.C. 2012) (citations omitted). In order “[t]o successfully challenge an agency's showing that

3

Although Varley does not specifically state that the SMCD for the 2007 sentence was
“unredacted,” he does assert that the document contained “the very information the BOP is now
averring would be too risky to provide to Plaintiff.” (Doc. 15, Pl.’s Response to BOP’s SOF at p.
5; see Doc. 14, Pl.s’ Summ. J. Resp. at p. 10; id. at Ex. A, Varley Decl. ¶ 10.) The BOP has not
contradicted Varley’s assertion.
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it complied with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating
that there is a genuine issue with respect to whether the agency has improperly withheld extant
agency records.” Span v. United States Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010)
(citing DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)). The agency has the burden of
“demonstrating that the documents requested are exempt from disclosure under the FOIA.”
Newport Aeronautical Sales v. Department of Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012)
(citations and alterations omitted).

III. ANALYSIS
“[O]nce the records are produced in a FOIA case the substance of the controversy
disappears and becomes moot since the disclosure the suit seeks has already been made.” See
Ctr. for Auto Safety v. EPA, 731 F.2d 16, 19 (D.C. Cir. 1984) (alterations, internal quotations and
citations omitted.). Because the agency has allowed Varley access to the unredacted SMCD
document, the BOP now argues it has fulfilled its obligations under FOIA and, therefore, the
matter is moot. (Doc. 25, Def.’s Mot. to Dismiss at pp. 2-4.) The agency relies on an internal
policy to withhold a hardcopy of the document from Varley.
BOP Program Statement 1351.05 prohibits prisoners “from obtaining or possessing
photocopies of their PSRs, SORs,4 or other equivalent non-U.S. Code sentence documents (e.g.,
D.C., state, foreign, military, etc.)” because these types of documents often “contain information
regarding the inmates’ government assistance, financial resources, [and] community affiliations.”

4

A PSR is a “Presentence Report.” An SOR is a “Statement of Reasons” found in the
inmate’s criminal Judgment. (See Doc. 10-2, Def.’s Mot. for Summ. J. at Ex. 4, Program
Statement 1351.05 at ECF pp. 14-15.)
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(Doc. 10-2, Def.’s Mot. for Summ. J. at Def’s Ex. 4, Program Statement 1351.05 at ECF pp. 1415.) The justification for this policy is a “documented an [sic] emerging problem where inmates
pressure other inmates for a copy of their PSRs and SORs to learn if they are informants, gang
members, [or] have financial resources.” Id. According to the policy statement, “[i]nmates who
refuse to provide the documents are threatened, assaulted, and/or seek protective custody.
Likewise, inmates providing the PSR and SORs containing harmful information are faced with
the same risks of harm.” Id.
Although SMCDs are not specifically listed in the policy, the BOP interprets “other
equivalent non-U.S. Code sentence documents” as including the SMCD. (Doc. 29, Def.’s Mot.
to Dismiss Reply at p. 8 n.5.) According to the BOP, the SMCD contains “a descriptive code
with reference to Plaintiff’s conviction and if known by the inmate population, would potentially
cause the Plaintiff to be harmed.” (Doc. 10-1, Herbin-Smith Decl. ¶ 12.) Indeed, the BOP
asserts that inmates found guilty of the crime for which Varley was convicted “are at a
heightened threat of physical harm if known to other inmates.” (Doc. 25-2, Herbin-Smith Decl. ¶
15.) Therefore, the BOP asserts that like the PSRs and SORs, prison officials prohibit inmates
from possessing hardcopies of their SMCD forms. The BOP primarily relies on Martinez v.
Bureau of Prisons, 444 F.3d 620 (D.C. Cir. 2006), as support for withholding the SMCD
hardcopy pursuant to the policy.
In Martinez, the Court upheld the BOP’s decision to withhold hardcopies of an inmate’s
PSR from him. 444 F.3d at 624-25. The BOP had allowed the inmate to review the documents
and take notes on them, but had withheld the actual papers based on an agency policy that
prohibits inmates from obtaining copies of the PSR. Id. Finding that the plaintiff had been
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provided a meaningful opportunity to review the PSR, the Court held that FOIA did not entitle
Plaintiff to have copies of the document. Id. at 625. The Court went on to note that the agency’s
policy “sets forth reasons, based on concerns about inmate safety, for prohibiting inmates from
keeping copies of their PSRs in their cells and reflects a judgment regarding prison
administration that the court would be loath to second-guess.” Id.
In Sample v. Bureau of Prisons, 466 F.3d 1086, 1089 (D.C. Cir. 2006), the Court of
Appeals warned against giving Martinez “too broad” of a reading. In Sample, the court
explained that Martinez did not hold that the BOP could ignore the statutory requirements of
FOIA, and that “Martinez was limited to whether FOIA required BOP to permit an inmate to
possess records in his cell.” Id. at 1089. Instead, the Sample court explained Martinez by noting
that the BOP could prohibit the inmate from possessing a copy of the PSR because prison
regulations specifically prohibited the possession of PSRs, and such policies “ought not be
subject to judicial second-guessing.” Id. Thus, neither Martinez nor Sample supports the
prohibition on Varley possessing a hardcopy of the 1991 SMCD, unless the BOP demonstrates
that a BOP inmate safety policy specifically covers the document.
While Martinez involved the same policy as the one at issue in the present case, the two
cases are distinguishable. First, Martinez involved a PSR, which is specifically covered under
the policy, while the SMCD is not. Moreover, the stated reasons behind the policy do apply to
the instant case, like they did in Martinez. Specifically, the policy prohibits inmates from
possessing PSRs and SORs because they “may contain “information regarding the inmates’
government assistance, financial resources, [and] community affiliations[,], which if disclosed
might endanger the inmate’s physical safety. (Doc. 10-2, Def.’s Mot. for Summ. J. at Ex. 4,
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Program Statement 1351.05 at pp. 14-15). Significantly, the policy statement also states “[t]his
prohibition applies only to the SOR portion of an inmate’s Judgment in a Criminal Case. The
rest of the Judgment remains releaseable unless circumstances or policy dictate otherwise.” Id. at
15. It is undisputed that an inmate’s Judgment lists his offense of conviction, thus it is plain that
the BOP policy does not consider specific information about an inmate’s crime of conviction as
the type of information which, if disclosed,“might endanger the inmate’s physical safety” within
the scope of the policy. Notwithstanding this BOP policy, the BOP justifies prohibiting Varley
from possessing the unredacted SMCD based upon a declaration of a BOP official stating that the
SMCD “contains descriptive information with reference to Plaintiff’s conviction, and if known
by the inmate population would potentially case the Plaintiff to be harmed.” Doc. 25-2, Second
Harbin-Smith. Decl. ¶ 14. There is no further explanation, and there is no evidence before the
Court that the withheld portion of the SMCD contains the same or similar information as the
PSR or SOR.5 Thus, there is no basis for the Court to hold that the redacted information contains
information about “government assistance, financial resources, [and] community affiliations,”
which is the type of information that the BOP policy poses risks to inmate safety. In sum, there
is no evidence before the Court that the SMCD contains information that falls within the stated
basis for the BOP policy, and consequently, Martinez does not control the outcome here.6

5

The BOP claims that the SMCD differs “slightly” from the PSR, but the BOP does not
explain this difference. (See Doc. 29, Def.’s Mot. to Dismiss Reply at p. 8 n.5.)
6

Finally, this Court is not persuaded by the BOP’s reliance on Oglesby v. United States
Dep’t of Army, 920 F.2d 57, 69-71 (D.C. Cir. 1990), where our Circuit upheld an agency’s
decision to make documents available in its reading room, rather than provide the requester with
copies. The facts of that case were markedly different than those presented to the instant Court.
Oglesby involved a request for documents that were “too numerous [for the agency] to search”
and the requester had access to photocopying machines in the reading room. See id. at 70.
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Without its policy statement upon which to rely, BOP is left to rely on FOIA’s Exemption
7(F) to support withholding hardcopies of the documents from the Varley. Pursuant to
Exemption 7(F), an agency may withhold “records or information compiled for law enforcement
purposes,” where release of the records or information “could reasonably be expected to
endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “In reviewing
claims under Exemption 7(F), courts have inquired whether there is some nexus between
disclosure and possible harm.” Public Emp. for Envt. Responsibility v. United States Section
Int.’l Boundary and Water Comm'n, 839 F. Supp.2d 304, 327 (D.D.C. 2012) (citation omitted).
The record in the present case does not support a finding that there is a nexus between
disclosure and any possible harm because the nature of Varley’s conviction has already been
disclosed. First, even though his Judgment contains information about the nature of Varley’s
crime, the BOP admits that it provided Varley with an unredacted hardcopy of that document.
(Doc. 25, Def’s Mot to Dismiss at p. 2; Doc. 25-1, Pitts Decl. ¶ 3.) The BOP explains its release
of the Judgment by claiming that it contains different information than that found in the SMCD.
(See Doc. 25, Def.’s Mot. to Dismiss at pp. 2, 8; Doc. 25-2, Second Harbin-Smith. Decl. ¶ 14.)
According to the BOP’s brief, unlike the Judgment, the SMCD contains “information that BOP
has determined carries a risk of harm requiring the information to be withheld.” (Doc. 25, Def.’s

Moreover, our Court of Appeals has also held that simply allowing a FOIA requester “access” to
documents does not necessarily meet the agency’s obligations under FOIA. See, Perry v. Block,
684 F.2d 121, 124 n.14, 125 (D.C. Cir. 1982) (“It is beyond peradventure . . . that a mere
opportunity to inspect does not meet the disclosure responsibility imposed by the FOIA.”); see
also Carson v. DOJ, 631 F.2d 1008, 1015 n.30 (D.C. Cir. 1980) (expressing doubt, in dicta, that
“the opportunity to view and take notes on [a] presentence report should be considered the
equivalent of obtaining a copy of the report” pursuant to FOIA.)
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Mot. to Dismiss at p. 8.) As Varley points out however, the BOP’s brief cites to a declaration by
a prison official to support this claim, but the declaration contains no such statement. (See id.;
Doc. 25-2, Second Herbin-Smith Decl. ¶ 14.) Thus, it is unclear why releasing a hardcopy of the
Judgment was any less likely to endanger Varley than the SMCD.
Varley points to numerous other reasons why the nature of his conviction does not
support the agency’s decision to withhold a hardcopy of the SMCD. Specifically, Varley claims:
1) that an Elkton case manager “provided to [Plaintiff]” a copy of the SMCD for his current 2007
sentence that includes “the very information BOP is now averring would be too risky to provide
to Plaintiff”; 7 (2) that BOP officials at Elkton “routinely release to inmates” SMCD forms ; and
(3) that approximately one-half of the 600 inmates at Elkton (which is a low security facility) are
incarcerated for offenses similar to Varley’s. (Doc. 14, Pl.s’ Summ. J. Resp. at p.10; id. at Ex. A,
Varley Decl. ¶¶ 10-11; id. at Ex. A Varley Decl., Ex. 7; Doc. 15, Pl.’s Response to BOP’s SOF at
pp. 5, 7; Doc. 28, Pl’s Resp. to Mot. to Dismiss at pp. 4-5, 13-14, Ex. 1, Varley Decl. ¶¶ 2,4.)
The BOP has not disputed these claims by Varley. Additionally, the BOP has not disputed
Varley’s assertion that Elkton operates a sex offender treatment program and that inmates who
must participate, “including [Plaintiff],” are notified of the time and location for the meeting by
means of a publicly-posted list identifying the inmate’s name and register number. (Doc. 14,
Pl.s’ Summ. J. Resp. at Ex. A., Varley Decl. ¶ 11; Doc. 15, Pl.’s Resp. to BOP’s SOF at p. 7.)
Given this evidence, the BOP’s reliance on Exemption 7(F) to protect Varley’s safety by

7

The Court has reviewed the docket reports for Varley’s current conviction and his 1991
conviction, and the offenses are similar. The BOP has not explained how Varley’s safety would
be any more compromised by the release of the prior SMCD.
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withholding the SMCD is unfounded.

IV. CONCLUSION
For the reasons set forth above, the Court finds that under the unique circumstances of
this case, Defendant failed to meet its FOIA obligations when it refused to provide Plaintiff with
an unredacted hardcopy of his SMCD form. An Order accompanies this Memorandum.
SO ORDERED.
SEPTEMBER 30, 2012.

Digitally signed by Judge Robert
L. Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court,
ou=Chambers of Honorable
Robert L. Wilkins,
email=[e-mail], c=US
Date: 2012.09.30 19:51:32 -04'00'

___________________________
Robert L. Wilkins
United States District Judge

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