Brandon Sample v. Bureau of Prisons

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2006 Decided November 3, 2006
No. 05-5038
BRANDON SAMPLE ,
APPELLANT
v.
BUREAU OF PRISONS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00805)
Craig E. Estes, appointed by the court, argued the cause as
amicus curiae for appellant. With him on the briefs were
William M. Hohengarten and David W. DeBruin, appointed by
the court.
Brandon Sample, pro se, filed briefs for appellant.
Megan L. Rose, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant
U.S. Attorney, entered an appearance.

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Before: SENTELLE , Circuit Judge, and EDWARDS and
WILLIAMS , Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE .
SENTELLE , Circuit Judge: Brandon Sample, an inmate at a
federal correctional facility, appeals the entry of summary
judgment in favor of the Bureau of Prisons (“BOP”) on his
claim under the Freedom of Information Act, 5 U.S.C. § 552
(2000) (“FOIA”). Pursuant to 1996 amendments to FOIA that
directed agencies to provide records in the format requested,
Sample requested a large number of BOP documents in
electronic format. BOP provided them as paper copies only,
citing prison regulations that restrict inmates’ possession of or
access to electronic media. On cross-motions for summary
judgment, the district court held that BOP had fulfilled its
obligations under FOIA and entered summary judgment in its
favor. Because we conclude that the statutory language
unambiguously requires the records to be provided in electronic
format, we reverse and remand to the district court with
instructions to enter judgment in favor of Sample.
I.
Sample is incarcerated in a federal prison. He requested,
under FOIA, a number of records from BOP’s files, specifying
that the records were to be in an electronic format. Receiving no
response, he filed a complaint in the United States District Court
for the District of Columbia. BOP claimed it had never received
the request and promptly provided paper copies of all the
records. Sample was dissatisfied, however, and continued to
press his claim for the same records in electronic format.
On BOP’s motion, the district court granted summary
judgment. The court concluded that providing the records in

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electronic format would violate BOP security policies. Those
policies limit inmates’ access to computer disks, CD-ROMs and
computer terminals in an effort to prevent unsupervised
communication with persons outside the facility, and to protect
the integrity of BOP’s computer systems. Similarly, given that
BOP cannot continually supervise inmates’ possession of
material items, the policies prohibit their personal possession of
removable media. Since those policies would be violated if
BOP were ordered to provide Sample’s records in electronic
format, the district court held that BOP satisfied its FOIA
obligation by providing the documents in paper format.
Sample’s cross-motion for summary judgment was denied.
Sample timely appealed the district court’s decision, and this
Court appointed amicus curiae in support of Sample.
II.
This Court reviews de novo the district court’s grant of
summary judgment in favor of an agency in a FOIA case. We
must determine whether the facts, viewed in the light most
favorable to the requester, present any genuine issue of material
fact. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994).
A.
FOIA requires federal agencies to release certain documents
in response to requests from the public. It states that “each
agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any), and
procedures to be followed, shall make the records promptly
available to any person.” 5 U.S.C. § 552(a)(3)(A). In 1996,
Congress amended the definition of “record” to include
electronic records. Electronic Freedom of Information Act

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Amendments of 1996, Pub. L. 104-231, 110 Stat. 3048, 3049
(codified as amended at 5 U.S.C. § 552(f)(2)). The amended
version also directs agencies to provide records in the format
specified by the requester: “In making any record available to a
person under this paragraph, an agency shall provide the record
in any form or format requested by the person if the record is
readily reproducible by the agency in that form or format.” 5
U.S.C. § 552(a)(3)(B).
BOP argues that providing the documents in paper format
satisfied its obligations under FOIA because Sample, pursuant
to BOP security regulations, could not receive the records in
electronic format. As a result, with respect to Sample, the
records were not “readily reproducible” in that format. BOP’s
determination as to reproducibility, moreover, must be accorded
“substantial weight” by the reviewing court. Id. § 552(a)(4)(B)
(directing courts reviewing the withholding of records to
“accord substantial weight to an affidavit of an agency
concerning the agency’s determination as to technical feasibility
. . . and reproducibility”).
Under any reading of the statute, however, “readily
reproducible” simply refers to an agency’s technical capability
to create the records in a particular format. No case construing
the language focuses on the characteristics of the requester. See,
e.g., TPS, Inc. v. U.S. Dep’t of Defense, 330 F.3d 1191, 1195
(9th Cir. 2003) (interpreting “readily reproducible” as referring
to technical capability); see also, e.g., Carlson v. U.S. Postal
Serv., 2005 WL 756573, at *7 (N.D. Cal. 2005) (holding that
“readily reproducible” in a requested format means “readily
accessible” by the agency in that format); Landmark Legal
Found. v. EPA, 272 F. Supp. 2d 59, 63 (D.D.C. 2003)
(construing “readily reproducible” as the ability to duplicate).

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Under the only plausible reading of “readily reproducible,”
there is no dispute as to BOP’s ability to reproduce the records
electronically. BOP has conceded as much by offering to
provide the records in electronic format to Sample’s non-inmate
designee. Thus BOP’s reliance on the “readily reproducible”
language is misplaced. There is a clear statutory obligation to
produce the records in electronic format when that format is
requested.
It is true that case law construing the statute before the 1996
amendments supports BOP’s position that format requests need
not be honored. Several circuits, including this one, held that an
agency satisfied its obligations under FOIA by providing records
in any format. In Oglesby v. U.S. Dep’t of the Army, 920 F.2d
57, 70 (D.C. Cir. 1990), this Court held that FOIA was satisfied
when an agency, rather than provide the individual records
directly to the requester, made all of the potentially responsive
records available in a public reading room for the requester to
search himself. Oglesby relied on Tax Analysts v. U.S. Dep’t of
Justice, 845 F.2d 1060, 1065 (D.C. Cir. 1988), in which we
noted that “an agency need not respond to a FOIA request for
copies of documents where the agency itself has provided an
alternative form of access.” These cases established that
providing some form of access – even if not the exact one
sought by the requester – was sufficient to discharge an agency’s
obligations under FOIA. Id.
BOP argues that this principle was recently reaffirmed,
notwithstanding the 1996 amendments, in Martinez v. Bureau of
Prisons, 444 F.3d 620 (D.C. Cir. 2006) (per curiam). In that
case, an inmate sued under FOIA to obtain paper copies of his
presentence investigation reports (“PSRs”) that he could keep in
his cell. Id. at 621. BOP refused to provide them, citing its
policy prohibiting inmates from retaining copies of their PSRs
in their cells, but it did permit Martinez to view and take notes

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on the documents. Id. at 625. Relying on pre-1996 cases, this
Court held that since Martinez was “afforded a meaningful
opportunity to review his PSRs and to take notes on them,”
FOIA did not entitle him to retain a copy of them. Id. We noted
that prison administration – particularly as reflected in policies
driven by safety concerns – ought not be subject to judicial
second-guessing. Id.
BOP relies on Martinez for the proposition that FOIA, even
after the 1996 amendments, does not require it to provide
Sample’s documents in electronic format because he was given
the same records in paper copy. This reading of the case,
however, is too broad. Martinez did not construe the “form or
format” requirement at all because format – in the sense of paper
documents or electronic data – was not at issue. Rather, our
holding in Martinez was limited to whether FOIA required BOP
to permit an inmate to possess records in his cell, an issue that
was unaffected by the 1996 amendments. Therefore, Martinez
is not applicable here.
B.
We note, however, that Sample’s reading of BOP’s
obligations under FOIA is also too broad. Sample argues that
BOP not only must provide the records in electronic format, but
also must facilitate Sample’s ability to access them in the
requested format. That is, Sample argues that FOIA entitles him
to view the records on a computer, notwithstanding BOP’s
asserted policy prohibiting or restricting inmates’ access.
Policies enacted pursuant to BOP’s statutory mandate to
administer the nation’s prisons are entitled to great deference.
See Martinez, 444 F.3d at 625 (citing Bell v. Wolfish, 441 U.S.
520, 531 (1979); Procunier v. Martinez, 416 U.S. 396, 405
(1974)) (noting that “a court would be loath to second-guess”

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policies that “reflect[] a judgment regarding prison
administration”). Whether the policy asserted here trumps
BOP’s obligations under FOIA, however, is not before us. In
this case, BOP performs two roles with respect to Sample: FOIA
respondent and custodian of inmates. We have already
concluded that BOP, as FOIA respondent, must provide the
records in the form or format requested. The FOIA case is
resolved. BOP’s role as custodian in receipt of electronic
records intended for an inmate, by contrast, only comes into play
after the FOIA request has been completed. Since we cannot
pass on conduct that may or may not occur after BOP provides
these records, questions of access or possession are not before
this Court. Once BOP, in its role as FOIA respondent, has
provided the records in electronic format, its FOIA obligation is
complete. If BOP – in its role as Sample’s custodian – then
decides to limit or prohibit access to the material, any question
raised by that decision is not before us.
III.
Since the records sought by Sample are “readily
reproducible” under the statute, BOP must produce them in
electronic format. The district court’s grant of summary
judgment in favor of BOP is reversed, and the case is remanded
to the district court with instructions to enter judgment in favor
of Sample.
So ordered.

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