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Supermax Prisoner Denied FOIA and Privacy Requests by 10th Circuit

Mark Jordan, a prisoner at the United States Penitentiary Administrative Maximum Facility (ADX), in Florence, Colorado, has been denied relief under the Freedom of Information Act (FOIA), 5 U.S.C. Section 552, and the Privacy Act (PA), 5 U.S.C. Section 552a, after seeking information from both the United States Department of Justice (DOJ), and the Federal Bureau of Prisons (BOP).

Confined in the ADX after conviction for multiple armed robberies and stabbing of a fellow prisoner, Jordan filed eight separate requests for information, and after denial of same, filed this appeal, concerning three.

He first requested the BOP to "provide (him) with a complete list of staff names and titles for all staff at the (ADX). The second asked for "all documents in any and all (BOP) psychological and psychiatric files relating to (him)…since 2004..." The third sought disclosure of a "copy of all mail matter that was sent to or from (him) and copied by staff at the ADX..."

As to the first request, the magistrate judge concluded that defendants had to disclose the roster of employees, but could redact their names, under Exemption 7F, because the "BOP is a law enforcement agency..." and the staff roster was "compiled for law enforcement purposes." The second request was denied, because the compiler had "included the subjective perception of another staff member, and advised all staff regarding appropriate actions to take with regard to (Mr. Jordan)." The magistrate judge also concluded that the material was exempt from Privacy Act disclosure under a BOP regulation, 28 CFR Section 16.97(a)(6) and Section 552a(j)(2)(C).

The third records request was for copies of prisoner Jordan's incoming and outgoing mail copied by BOP staff; that was also found to be properly excludable under FOIA Exemption 7E and the Privacy Act.

The Court of Appeals found that the BOP was primarily a law enforcement agency, and, therefore, "a court can accept less exacting proof from such an agency that the purpose underlying disputed documents if law enforcement." Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002). Under this deferential approach, a law enforcement agency is obligated to establish a rational nexus between the record or information it does not wish to disclose and "its authority to enforce a statute or regulation." Abdelfattah v. U.S. Dept. of Homeland Security, 488 F.3d 178 (3d Cir. 2007).

The court adopted the "per se" test, developed in Irons v. Bell, 596 F.2d 468 (1st Cir. 1979). This test stated that documents compiled by law enforcement agencies are inherently records compiled for enforcement purposes, and therefore exemptions 7 are applicable. According, the Appellate Court said, "Because the BOP is primarily a law enforcement agency, the records and information for which the BOP invokes exemption 7 (the Supermax roster and copies of Mr. Jordan's mail) were compiled for law enforcement purposes."

Turning to the request for medical and psychological records, the court found that BOP regulation 28 CFR Section 513.42 "clearly permits BOP staff to withhold a (prisoner's) medical records containing 'subjective evaluations of medical staff relating to the (prisoner's) care and treatment'” if it determines that release "would present a harm to either the inmate or other individuals.'" See: Jordan v. U.S. Dept. of Justice 668 F.3d 1188 (10th Cir. 2011).

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Related legal case

Jordan v. U.S. Dept. of Justice