owned by the Pulitzer Publishing Company. On October 10, 2000,
Brady-Lunny sent an Illinois Freedom of Information Act ("Illinois FOIA")
request to Roger Massey, Sheriff of DeWitt County, asking for various
information about prisoners in his custody. Sheriff Massey provided the
information with respect to state inmates, but he did not furnish
information about federal inmates.
On October 13, 2000, Brady-Lunny sent Sheriff Massey a second Illinois
FOIA request. Her second request asked Sheriff Massey to provide
information for "all inmates." But Sheriff Massey declined Brady-Lunny's
request on the basis that the Illinois FOIA statute, 5 ILCS § 140, et
seq. (West 1994), created no jurisdiction over federal concerns.
Following the denial of Brady-Lunny's Illinois FOIA request,
Brady-Lunny, The Pantagraph, and the Pulitzer Publishing Company filed
suit against Massey to require him to produce the requested information.
The United States intervened in an effort to protect information about
federal inmates. The Government then removed the Plaintiffs' case to this
Court pursuant to the federal question doctrine. See 28 U.S.C. § 1331.
A motion for summary judgment must be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Herman v. National
Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied,
470 U.S. 1028 (1985). When determining whether factual issues exist, a
"court must view all the evidence in the light most favorable to the
non-moving party." See Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th
However, "[s]ummary judgment is appropriately entered `against a party
who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear
the burden of proof at trial.'" See McKenzie v. Illinois Department. of
Transportation, 92 F.3d 473, 479 (7th Cir. 1996) (quoting Celotex, 477
U.S. at 322, 106 S.Ct. at 2552 (1986)).
To successfully oppose a motion for summary judgment, the nonmoving
party must do more than raise a "metaphysical doubt" as to the material
facts. See Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).
Rather, he "must come forward with `specific facts showing that there is
a genuine issue for trial.'" Id. at 587, 106 S.Ct. at 1356 (quoting
Fed.R.Civ.P. 56(e)). "Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no
`genuine issue for trial.'" Id.
In this case, the Government refused to accede to the Plaintiffs'
Illinois FOIA request for information about federal inmates because the
Federal Bureau of Prisons (the "BOP") has a prohibition which states that
lists of federal inmates "shall not be disclosed." See
28 C.F.R. § 513.34(b). The Plaintiffs contend that the Government's
refusal was improper since: 1) they made their request pursuant to the
Illinois FOIA, not the Federal FOIA; 2) 28 C.F.R. § 513.34(b) is
invalid because it is contrary to the Federal FOIA's general policy of
full disclosure; and 3) even if 28 C.F.R. § 513.34(b) is valid,
it is inapplicable here because the DeWitt County Jail is not a BOP
Since the Government is the party refusing to produce the documents, it
bears the burden of showing that the documents are not subject to
disclosure. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 109
S.Ct. 2841, 106 L.Ed.2d 112 (1989).
Although the State of Illinois "encourages a free flow in disclosure of
information between government and the people", the Illinois FOIA
"specifically exempts from government disclosure numerous categories of
information and documents." See Bowie v. Evanston Cmty. Consol. School
Dist. No. 65, 128 Ill.2d 373, 376, 538 N.E.2d 557, 558, 131 Ill.Dec.
182, 183 (1989). One such exemption is found at 5 ILCS §
140/7(1)(a). Under this provision, information need not be disclosed if
it is "specifically prohibited from disclosure by federal or State law or
rules and regulations adopted under federal or State law." See id.
Since 28 C.F.R. § 513.34(b) states that lists of federal inmates
"shall not be disclosed", the outcome of this case turns on the validity
of the BOP's regulation. Like all federal agencies, the BOP has authority
to make rules w ith respect to its operations. See 5 U.S.C. § 301
("The head of an Executive department or military department may
prescribe regulations for the government of his department . . .).*fn1
However, § 301 states that an agency's rulemaking authority "does not
authorize withholding information from the public or limiting the
availability of records to the public." See id. The Plaintiffs assert
that § 301 makes 28 C.F.R. § 513.34(b) invalid and requires the
Government to turn over the requested information.*fn2
The Plaintiffs are incorrect. The error in their argument is that they
read § 301 to be a sort of trump card for any privacy or security
interest the Government might assert. Read in this way, § 301 would
require all federal agencies to supply documents upon request, regardless
of their sensitivity. One can only imagine the effect this would have on
national security, etc. The potential havoc is almost beyond catalog.
The federal FOIA protects records or information compiled for law
enforcement purposes "to the extent that the production of such
[materials] . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy." See 28 C.F.R. § 552(b)(7)(C).
In United States Dept. of Justice v. Reporters Committee
for Freedom of the Press, 489 U.S. 749, 751, 109 S.Ct. 1468, 103 L.Ed.2d
774 (1989), the Supreme Court considered whether the Government should be
compelled to disclose a defendant's "rap sheet" to reporters. The Court,
while discussing 28 C.F.R. § 552(b)(7)(C), held:
as a categorical matter that a third party's request
for law enforcement records or information about a
private citizen can reasonably be expected to invade
that citizen's privacy, and that when the request
seeks no "official information" about a Government
agency, but merely records that the Government happens
to be storing, the invasion of privacy is
489 U.S. at 780, 109 S.Ct. at 1485.
Like disclosing a "rap sheet", providing a list of inmates' names here
would be an unreasonable invasion of privacy. Some of the inmates under
federal control are merely witnesses and detainees who have not been
charged with or convicted of crimes. Releasing their names to the press
or any other information seeker would stigmatize these individuals and
cause w hat could be irreparable damage to their reputations. Thus, any w
atchdog function that disclosure would serve here is clearly outweighed
by inmates' privacy interests.*fn3
If privacy interests were not a sufficient basis for the G overnment's
refusal to disclose inmates' names, 5 U.S.C. § 552(b)(7)(F) provides
yet another justification for the Government's decision. Under
5 U.S.C. § 552(b)(7)(F), the Government is exempt from disclosing
information about any individual that "could reasonably be expected to
endanger life or physical safety." Risks such as these are always present
in inmate populations given inmates' gang ties, interest in escape, and
motive for violence against informants and rivals. If the Government was
forced to disclose inmates' names, security issues in any one of these
areas would abound.
In sum, the Court finds that the federal FOIA applies in this case;
28 C.F.R. § 513.34(b) is valid; and that two exemptions —
§§ 552(b)(7)(C) and 552(b)(7)(F)-allow the Government to refuse the
Plaintiffs' disclosure requests.
Ergo, Plaintiffs' Motion for Summary Judgment is DENIED and the
Government's Motion for Summary Judgment is ALLOWED.
ENTER: February 7, 2002.
FOR THE COURT
UNITED STATES DISTRICT JUDGE