Kubik et al v. United States Federal Bureau of Prisons

Filing 41

ORDER: Granting Motion for Summary Judgment 37 . Signed on 9/16/2011 by Magistrate Judge Thomas M. Coffin. (plb)

FIlED19s:P'1115:33USIlC·~

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
RICHARD KUBIK and BARBARA KUBIK,

10-cv-06078-TC

Plaintiffs,
OPINION AND ORDER

v.

UNITED STATES FEDERAL BUREAU OF
PRISONS,
Defendant.
COFFIN, Magistrate Judge:
Plaintiffs Richard and Barbara Kubik filed this action under the Freedom ofInformation Act
(ForA), 5 U.S.C. § 552 and the Administrative Procedures Act (APA), 5 U.S.C. § 706 seeking
documents from defendant Bureau of Prisons (BOP). Both parties moved for summary judgment.
In a July 1,201 I order. I denied the BOP's motion for summary judgment on plaintiffs' inadequate
search claim without prejudice and allowed the BOP thirty days to tile a renewed motion for
summary judgment regarding the adequacy of the ForA search. (#34). Currently before me is the
BOP's renewed motion. (#s 37, 38). For the reasons set forth below, I grant the BOP's motion.

Page 1 - OPINION AND ORDER

Standard
A party is entitled to summary judgment if the record before the court shows that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56 (c). FOIA cases are generally decided on summary judgment. Lane v.
Dep't ofinterior, 523 F.3d 1128, 1134 (9th Cir. 2008). The court should grant summary judgment
in favor of the agency if the agency has performed an adequate search and disclosed all documents
not subject to FOIA exemptions. Zemansky v. E.PA, 767 F.2d 569,571 (9th CiT. 1985).
Discussion

As noted above, I have already ruled on the FOIA exemptions claimed by the BOP. Thus,
the only remaining issue is whether the BOP's search for records was adequate. As the parties are
familiar with the underlying facts, I focus only on the facts relevant to the BOP's renewed motion
for summary judgment.
The BOP submits supervisory attorney Christopher Synsvoll' s supplemental declaration in
support of its renewed motion for summary judgment. (#37-2). Synsvoll explains that the BOP has
a variety of systems for keeping records of inmates and specifically describes the Inmate Central
Records System-commonly called the Inmate Central File (Central File), and the Custodial and
Security Records System-Dften referred to as the Special Investigative Services (SIS) File. The
Central File follows an inmate from institution to institution and keeps records of his daily life. The
SIS file is maintained at the institution where a "reportable incident" occurred and does not follow
an inmate from institution to institution. However, documentation of reportable incidents in which
an inmate was involved is placed in the FOI exempt section of an inmate's central file to inform staff
members of an iumate's past illegal activities. rd. at ~~ 5-10.
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The supplemental declaration explains in detail how the BOP responded to the Kubik's FOJ A
requests. In response to the request for information about Brian Kubik's transfer, a paralegal in the
FCC Florence legal department manually searched Kubik's Central File. lli at ~ 12. In response to
the request for information about the April 20, 2008 incident, Synsvoll contacted the USP Florence
Special Investigative Agent in charge to obtain a copy of the SIS file on the incident. Id. at ~ 17.
Synsvoll supervised the individualized document search of the consolidated SIS file, which was done
both manually and electronically. lli at 18. Synsvoll's supplemental declaration details the search
terms used during the electronic search. Id. Synsvoll' s declaration also offers a detailed description
of the creation of the SIS file relating to the April 2008 incident. The file was originally created at
Synsvoll's own request in anticipation of civil and criminal. Synsvoll, along with other FCC
Florence Legal Department staff, oversaw the collection, storage, retention and disclosure of all
documents related to the April 2008 incident. lli at ~~14-16. The main SIS file was composed from
inmate Central Files and medical files ofthe inmates primarily involved in the disturbance, meeting
minutes, Board of Inquiry review documentation, briefing material, staff memoranda, log books,
inmate rosters and housing assignments, and any/all material created by bureau staif as it related to
the disturbance. Ii at ~ 14.
The BOP asserts that Synsvoll's supplemental declaration establishes that the BOP's search
was reasonably calculated to uncover all documents relevant to the Kubiks' requests. In response,
the Kubiks argue that the BOP's search regarding their request for documents regarding the April
20, 2008 incident is inadequate because it was not performed within twenty days of receipt ofthe
Kubiks' FOrA request, as mandated by statue. The Kubiks also assert that responsive documents
were sparse and speculate that the BOP's search did not really uncover all responsive documents.
Page 3 - OPINION AND ORDER

The BOP's failure to comply with ForA's twenty day deadline does not preclude summary
judgment in the agency's favor. Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002).
Similarly, the Kubiks' assertion that the records produced by the BOP were sparse does not render
the BOP's search inadequate. Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 662 (D.C. Cir.
2003). The focus of the court's inquiry is whether the search for responsive documents was
adequate, not whether any other possible responsive documents might exist. Zemansky, 767 F.2d
at 571. Here, the supplemental declaration establishes that the BOP has performed an adequate
search. The supplemental declaration described the search methods employed-including the
electronic search terms used, the locations of the files searched and the method in which the searched
files were created. Although the Kubiks speculate that additional responsive records exist, they do
not present anything in support of this speculation beyond their conclusory statements. Schoenman
v. Fed. Bureau of Investigation, 573 F.Supp.2d 119, 134 (D.C.Cir. 2008). Based on the underlying
record, including the supplemental declaration, I find that the BOP's search was adequate and they
are entitled to summary judgment.
Conclusion

The BOP's renewed motion for summary judgment (#37) is granted.

IT IS SO ORDERED
DATED this

Ie:.{-day of September 2011.

THO~

United States Magistrate Judge
Page 4 - OPINION AND ORDER