OPINION Seth Freed Wessler, a nationally published investigative reporter, has commenced this action pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §552, seeking certain records held by the Department of Justice and the United States Marshals Service (“USMS” or “Marshals”). Wessler seeks documents regarding the conditions of confinement for federal pretrial detainees held in state, local, and private prison facilities with which USMS contracts to house those detainees. (See Compl., ECF No. 1.) According to a declaration submitted by defendants, “USMS is responsible for the custody of federal pretrial detainees” but it “does not own or operate [] the facilities in which USMS detainees are housed.” (Decl. of Katherine Day, Esq. dated July 3, 2018, 12.) Rather, it enters into contracts with (1) private facilities, (2) state or local facilities, and (3) in the case of federal facilities, the Bureau of Prisons (“BOP”).The complaint alleges that in 2015 approximately 60 percent of the prisoners in USMS custody were held in state or local facilities; 20 percent were held in privately-operated facilities; and 20 percent were held in federal BOP facilities. (Compl. 10.) By 2018, according to USMS’s website, those numbers were 65 percent, 17.5 percent, and 17.5 percent, respectively. United States Marshals Service, Fact Sheet: Prisoner Operations (April 3, 2019).1Wessler alleges — and cites a 2013 DOJ Inspector General (“DOJ-IG”) report in support — that the oversight that the Marshals exercise over the care of inmates while in private, state, and local facilities has been “inconsistent,” “cursory,” and that problems “routinely go uncorrected.” (Compl. 2.) In the complaint, he “seeks information and records regarding deaths, suicides, violence, disturbances and other major incidents” in facilities under contract with USMS. (Id. 3.) After he exhausted his administrative remedies in connection with his FOIA request to USMS, see 5 U.S.C. §552(a)(6)(C)(i), Wessler brought this action.Following extended negotiation and multiple conferences with this Court, the parties stipulated to a procedure governing defendants’ production of documents. (See Stipulation and Order, ECF. No. 55.) They agreed in that stipulation to “litigate as a threshold matter” whether the “detainee medical information held by USMS” is “categorically exempt from disclosure pursuant to Exemptions 6 and 7(C).” (Id. 7.) The parties have now done just that; i.e., they have cross-moved on the issue of whether plaintiff’s request for the medical records of federal pretrial detainees who died in the custody of the Marshals falls under Exemptions 6 and 7(C) of FOIA. Defendants contend that those records are exempt from disclosure pursuant to those exemptions, and therefore USMS is not required to disclose the medical records to plaintiff. Wessler urges that the records are not exempt from disclosure, and therefore USMS is required to produce them.For the reasons that follow, Wessler’s motion for partial summary judgment in his favor is granted and defendants’ motion is denied.I. Discussion“FOIA strongly favors a policy of disclosure…and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act.” National Council of La Raza v. Department of Justice, 411 F.3d 350, 355 (2d Cir. 2005) (first citing Halpern v. FBI, 181 F.3d 279, 286 (2d Cir. 1999) and then citing Tigue v. United States Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002)). Consistent with FOIA’s underlying purposes, courts construe these exemptions narrowly. National Council of La Raza, 411 F.3d at 355-56 (first citing Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) and then citing Local 3, Int’l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988)). The government bears the burden of showing “that any claimed exemption applies.” National Council of La Raza, 411 F.3d at 356. (first citing Perlman v. United States DOJ, 312 F.3d 100, 105 (2d Cir. 2002) and then citing Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)). Courts review the government’s decision to withhold or redact information de novo. 5 U.S.C. §552(a)(4)(B).In the Second Circuit, the procedure for resolving motions for summary judgment in FOIA cases is as follows:In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA. Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden. Affidavits submitted by an agency are accorded a presumption of good faith; accordingly…if the agency’s submissions are adequate on their face…the district court may forgo discovery and award summary judgment on the basis of affidavits.In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency’s affidavits or declarations, or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate.Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citations, internal footnote, and quotation marks omitted).In this case, each side filed a declaration in support of its motion for summary judgment. Defendants submitted a declaration from Katherine Day, an associate general counsel and the “Freedom of Information/Privacy Act Officer” with USMS. (Day Decl., ECF No. 41.) Plaintiff submitted his own declaration. (Decl. of Seth Freed Wessler dated Aug. 3, 2018, ECF No. 49.)In his declaration, plaintiff sets forth the history of his work in this area as well as his perception of where the public interest lies. Specifically, in addition to the 2013 DOJ-IG report cited in the complaint and referred to above, Wessler cites a DOJ-IG report from 2017 concerning a specific private detention facility with which USMS had contracted. In that report, DOJ’s Inspector General found, according to Wessler, “vast deficiencies in USMS’s oversight practices,” (id. 5,) and the Inspector General noted that some of the problems identified in his report “appear to be inherent in USMS’s overarching continuous monitoring approach.” (Office of the Inspector Gen., U.S. Dep’t of Justice, Audit of the United States Marshals Service Contract No. DJJODT7C0002 with CoreCivic, Inc., to Operate the Leavenworth Detention Center Leavenworth, Kansas (2017)2 at 14.)Wessler then points to very similar research and reporting he had done related to the treatment of prisoners in private prison facilities contracted by the BOP — not USMS — to hold noncitizens convicted of federal crimes. (Wessler Decl. 7.) During the course of that reporting, Wessler brought suit to compel the BOP to comply with his FOIA requests, and he states he “received the full BOP medical files of people who had died while held as inmates in BOP contract facilities.” (Id. 9.)3 Wessler states that he consulted with a team of doctors in order to understand the records provided to him by the BOP, and together they concluded that “[i]n at least 25 of the 103 deaths for which the BOP provided complete or nearly-complete medical files…inadequate medical care…likely contributed to a premature death.” (Id. 16.) However, there were some cases where the BOP could not provide complete documentation, and the doctors were not able to evaluate meaningfully the medical care that had been provided. (Id.
