|Submitted||Jan. 8, 2021|
|Due||Feb. 8, 2021|
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To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
- The Bureau of Prisons FOIA request log, limited to requests received from Jan. 1, 2020 to Dec. 31, 2020.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Please see letter attached regarding your recent FOIA request. Sincerely, Sandy Raymond, for Eugene E. Baime, Supervisory Attorney
Please see letter attached regarding your recent FOIArequest. Sincerely, S. Raymond,for Eugene E.Baime, Supervisory Attorney
Request Number 2022-00634 Good Morning, Please see the attached documents in regard to the above mentioned request. Thank you.
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To whom it may concern:
This is a Freedom of Information Act appeal regarding FOIA request No. 2020-03749.
I. The Request
On May 4, 2020, Reason Magazine reporter C.J. Ciaramella submitted a FOIA request to the Bureau of Prisons (hereafter “BOP”) seeking “any mortality reviews conducted regarding inmate deaths at FMC Carswell between Jan. 1, 2015 and May 4, 2020” and “any mortality reviews conducted regarding inmate deaths at FCI Aliceville between Jan. 1, 2015 and May 4, 2020.”
The request was received and assigned tracking number 2020-03749. On March 30, 2022 the BOP issued a final response, releasing 288 pages, 84 of which were withheld in part under the following exemptions: (b)(5), (b)(6), and (b)(7)(C).
II. The argument
A. BOP did not respond to the request for records concerning FCI Aliceville
BOP’s final response (see attached) misstates the original request, mentioning only the request for records from FMC Carswell but not FCI Aliceville. Please inform the requester if there are responsive records from Aliceville or conduct the required search.
B. BOP has not satisfied its burden of demonstrating that the responsive documents are exempt from disclosure under Exemption 5.
Information redacted from the multi-level mortality review reports under (b)(5) includes the review committee’s findings on the timeliness and appropriateness of diagnostic and treatment regimens; problems encountered during the medical emergency, such as transportation and communication; whether there was adequate documentation in the patient’s medical files; and whether the patient received appropriate and adequate medical care per BOP’s policies. Also withheld were the committee’s findings regarding the strengths and weaknesses of care delivered, and recommendations for improving future care under BOP's policies.
To qualify for FOIA’s deliberative process privilege, an agency must demonstrate, not simply declare, that the withheld documents are both “pre-decisional” and “deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A document is pre-decisional if it was “generated before the adoption of an agency policy” and deliberative if it reflects the “give-and-take of the consultative process.” Id. The privilege does not protect material that is “purely factual” or “an agency’s final opinions, statements or policy and interpretations definitively adopted by the agency, and any document having ‘the force and effect of law.’” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1122 (9th Cir. 1988). Nor does the privilege shield records that merely describe or explain decisions that have already been made. E.g., Taxation With Representation Fund, Inc. v. IRS, 646 F.2d 666, 677-78 (D.C. Cir. 1981).
Courts regularly order agencies to disclose final assessments of their performance under existing policy, even if officials might someday draw on those evaluations in future policy decisions. See, e.g., Cowdery, Ecker & Murphy, L.L.C. v. U.S. Dep’t of the Interior, 511 F. Supp. 2d 215, 221 (D. Conn. 2007) (requiring an agency to disclose an employee’s “self-assessment and his supervisor’s recommendations and assessment of his performance” because they were not “deliberations or recommendations on Department policy”); Chicago Tribune Co. v. U.S. Dep’t of Health and Human Servs., No. 95-C-3917, 1997 U.S. Dist. LEXIS 2308 (N.D. Ill. Feb. 26, 1997) (requiring disclosure of factual assessments by agency auditors reviewing an outside study).
The multi-level mortality review reports at issue are created as a matter of routine in the event of any death in BOP custody. The reports constitute conclusions and facts found by the review committee regarding compliance with BOP policy, but they are not in any way related to the shaping or drafting of those policies. Because the withheld information was created independent of any particular legal or policy matter, and because it concerns BOP’s compliance with existing policies, the records are neither predecisional nor deliberative. BOP’s withholding is erroneous because it applies Exemption 5’s deliberative process privilege to final, objective assessments of the agency’s compliance with existing policy in a manner that is contrary to settled law.
For the reasons above, the requester respectfully requests that the BOP produce the withheld portions of the reports, fulfill the request for similar records from FCI Aliceville or inform the requester that no responsive records were located, and respond to this appeal within 20 days. If you have any questions or concerns regarding this appeal, please contact me directly at 503-951-9863.
The Office of Information Policy has received your FOIA Appeal. Please see the attached acknowledgment letter.
Please find attached correspondence from the Bureau ofPrisons regarding your recent request for information, which has been assigned Request Number 2022-04325.