Jordan v. United States Department of Justice
2011 U.S. App. LEXIS 25682
| 10th Cir. | 2011Background
- Mark Jordan, pro se, challenged the DOJ and BOP for denial of FOIA/Privacy Act requests concerning staff at ADX Florence, Jordan's psych files, and copied mail.
- Jordan was imprisoned at ADX Florence after prior armed robberies and a stabbing death in the 1990s.
- Claim II sought a complete Supermax staff roster; the BOP denied and withheld names under Exemption 7F after administrative appeal.
- Claim III sought all documents in BOP psychology/psychiatric files relating to Jordan; 36 pages released with a redaction under Exemptions 2 and 5, affirmed on appeal.
- Claim IV sought copies of mail handled by the SIS Office; 495 pages withheld under Exemptions 2 and 7E, affirmed on appeal.
- The district court entered summary judgment for defendants; the Tenth Circuit affirmed, adopting a per se rule for Exemption 7 and ruling BOP is primarily a law enforcement agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 7's threshold is met by BOP records | Jordan opposes per se; seeks rational nexus test | Exemption 7 applies when records are law enforcement records | Per se rule adopted; records compiled by a primary law enforcement agency may be withheld |
| Is the BOP a primarily law enforcement agency for Exemption 7 purposes | BOP is mixed-function and not purely law enforcement | BOP is primarily law enforcement under statutes and precedent | BOP is primarily a law enforcement agency for FOIA purposes |
| Application of Exemption 7F to the Supermax staff roster | Program Statement 1351.05 limits withholding; Maydak distinction | Exemption 7F properly applies; roster withheld | Exemption 7F applies; staff names may be withheld |
| Application of Exemption 7E to copies of Jordan's mail | Technician discretion shows no defined technique; theories forfeited | Redacted material reveals investigative techniques/guidelines | Exemption 7E applies; redacted material falls within its scope |
| Whether High 2/Privacy Act grounds survive Milner changes | High 2/Disclosures should be analyzed under Privacy Act thresholds | Milner v. Navy invalidated High 2; 7E/7F analysis preserved | High 2 invalid; court may consider Exemption 7E grounds on appeal |
Key Cases Cited
- Milner v. Department of the Navy, 131 S. Ct. 1259 (2011) (militates that High 2 is invalid; clarifies 7E scope)
- Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982) (law enforcement purpose expands beyond investigations)
- Irons v. Bell, 596 F.2d 468 (1st Cir. 1979) (per se rule for Exemption 7 adoption)
- Williams v. FBI, 730 F.2d 882 (2d Cir. 1984) (supports broad interpretation of Exemption 7's law enforcement purpose)
- Kuehnert v. FBI, 620 F.2d 662 (8th Cir. 1980) (adopts per se rule reasoning)
- Duffin v. Carlson, 636 F.2d 709 (D.C. Cir. 1980) (recognizes BOP as law enforcement authority for Exemption 7)
- Jones v. FBI, 41 F.3d 238 (6th Cir. 1994) (coordinates view on narrowing Exemption 7 via amendments)
- Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (High 2 lineage for internal materials)