Espinoza v. Department of Justice , 20 F. Supp. 3d 232 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Alejandro Espinoza, :
:
Plaintiff, :
v. : Civil Action No. 12-1950 (CKK)
:
Department of Justice et al., :
:
Defendants. :
MEMORANDUM OPINION
In this action brought pro se, plaintiff claims that the Executive Office for United States
Attorneys (“EOUSA”) violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by
withholding responsive records and denying his requests for expedited processing and a fee
waiver. Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
on the ground that plaintiff has failed to exhaust his administrative remedies or for summary
judgment under Rule 56. Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J. [Dkt. #
12]. 1 Plaintiff has opposed the motion [Dkt. # 22] and cross moved for summary judgment, Pl.’s
Cross-Mot. for Summ. J. [Dkt. # 23], and defendants have replied, Defs.’ Reply in Support of
Mot. to Dismiss, or, in the Alternative, for Summ. J. and Opp’n to Pl.’s Cross-Motion for Summ.
J. [Dkt. # 27-1]. Upon consideration of the parties’ submissions and the entire record, the Court
will grant defendants’ motion, deny plaintiff’s motion, and enter judgment accordingly.
1
In response to plaintiff’s Amended Complaint [Dkt. # 18] lodged after their initial dispositive
motion, defendants filed a supplemental brief renewing their arguments set out in the initial brief
and addressing plaintiff’s additional claims raised in the Amended Complaint. Suppl. Mem. of
P. & A. in Support of Defs.’ Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. # 20-1].
1
BACKGROUND
Plaintiff was convicted in 2005 of drug charges following a trial held in the United States
District Court for the District of New Mexico. See U.S v. Espinoza, --- Fed. Appx. ---, 2013 WL
6183847 (10th Cir. Nov. 27, 2013) (denying request for certificate of appealability). On June 19,
2012, plaintiff requested from EOUSA all records “related to the U.S. Attorney’s discovery that
evidence was withheld from me during my trial,” including “emails and other electronically
stored information.” Am. Compl. [Dkt. # 18] ¶ 11; Defs’ Ex. 1 [Dkt. # 12-5] (“Request”). In
addition, plaintiff “requested Debra James’s Pre-Sentence Report (PSR) generated for Case
Number 04-cr-479. Specifically, the date the PSR was generated, and any information
concerning Debra James’s positive drug tests within the PSR,” and he sought a fee waiver
“because the production of the requested information could serve the substantial public interest
in setting free an innocent man.” Request at 2. Plaintiff stated: “[i]f your office cannot waive
the duplication and search fees[,] please forward any responsive records to which I’m entitled
free of charge, and let me know what the fees are relating to the rest of the responsive record[s].”
Id. at 3. On September 3, 2012, plaintiff “lodge[d] a complaint [with EOUSA] concerning the
delay of the processing of my requests, and to clarify that I sought expedited processing of my
requests,” while acknowledging that he had “inadvertently failed to specify that I was seeking
expedited processing” in the FOIA request. Defs.’ Ex. 2 [Dkt. 12-6].
Meanwhile, by letter dated July 11, 2012 -- which plaintiff in the September 3 letter
acknowledged receiving -- EOUSA informed plaintiff that the request for his records was
designated Request No. 12-2643 (Self), that the request for Debra James’s records was
designated Request No. 12-2644 (Third Party), and that each request would be processed
separately and a “response on each” request would be sent “as soon as [processing] is finished.”
2
Decl. of Kathleen Brandon, Ex. A [Dkt. # 12-3]. The letter also informed plaintiff that “EOUSA
makes every effort to process most requests within a month (20 working days)” but that “a very
large request,” e.g., one seeking “all information about myself in criminal case files,” is treated
as a “Project Request” that “usually take[s] approximately nine months to process.” Id. Finally,
plaintiff was told that pursuant to 28 C.F.R. § 16.3(c), by making a FOIA request, he had “agreed
to pay fees up to $25, . . . unless you have requested a fee waiver”; that absent a fee waiver, he
would be assessed search and duplication fees after the first two hours of the search and the first
100 pages; that the agency “will normally notify you of our estimate of fees” exceeding $25; that
“[a]fter we have received your agreement to pay for the expected fees (or you have narrowed
your request to reduce fees) and we have processed your request,” his payment of any assessed
fees would be required before the release of any responsive records; and that “[w]ithout such
payment, your request file will be closed without further action.” Id.Request No. 12-2644 (third-party records)
By letter dated July 31, 2012, EOUSA denied plaintiff’s request for James’s records due
to his failure to provide James’s “express authorization and consent” to release such records,
proof of her death, or “a clear demonstration” of an overriding public interest in disclosing such
records. Id., Ex. B. The letter informed plaintiff that third-party information is “generally
exempt from disclosure” under FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b), and that he
had the right to appeal the decision to the Office of Information Policy (“OIP”) in 60 days.
EOUSA has no record or notice from OIP that plaintiff appealed this decision. Brandon Decl. ¶
9.
3
Request No. 12-2643 (first-party records)
In August 2012, at EOUSA’s direction, the United States Attorney’s Office for the
District of New Mexico searched for records responsive to plaintiff’s request for his records but
stopped the search after reaching the two-hour limit. Id. ¶¶ 10-11; Decl. of Diane Tapia [Dkt. #
12-4] ¶¶ 3-12. On August 16, 2012, Tapia informed EOUSA that the local office had “exceeded
the two hours of free search and had stopped the search process,” but had “found nothing
responsive to the request except for the James [PSR].” Tapia Decl. ¶ 12. The search did not
include “archived electronic records from January 1, 2006 through August 31, 2008, because
those records were archived at EOUSA[,] [which] would have to assist with that part of the
search.” Id. Tapia sought “further instructions [on] how [the local office] should proceed.” Id.
¶ 13.
EOUSA responded in October and November 2012, instructing the local office not to
include James’s PSR in its response since it was protected by the Privacy Act, and “to have the
[local] information technology staff contact Diane Heintzelman of EOUSA to coordinate and
determine the appropriate fee to charge for searching the archived electronic records.” Id. ¶ 15.
On December 14, 2012, Tapia received an email from Heintzelman stating that the local “office
emails were migrated to USAMAIL” in May 2008 and estimating that it would take four hours
of search time at $84.41 per hour for a total of $325.64 to search the archived records. Id. ¶ 16.
On that same day, Ed Lee of the local office’s technology staff informed Tapia that “he did not
run the electronic search” but that he had “spent approximately two hours preparing the
parameters for the search and locating the records to be searched.” Id. Tapia received no further
instructions from EOUSA prior to the commencement of this action. See id. ¶ 17.
4
Meanwhile, plaintiff filed this civil action on December 4, 2012, “having received no
further communication regarding his request . . . .” Pl.’s Statement of Material Facts Not in
Genuine Dispute [Dkt. # 23] ¶ 18. By letter of January 2, 2013, EOUSA informed plaintiff that
“[w]e are currently searching for documents responsive to your FOIA/PA request, and we have
reached the two hours free search time provided to you at no charge.” Brandon Decl., Ex. D.
The letter stated that DOJ regulation 16.11(i) “provide that our office may collect an advance
payment before we continue processing your request if we estimate fees will exceed $250.00”;
that an additional four hours had been estimated to complete the search of the requested
“archived email records”; that the hourly fee for searching the archived email records was
$81.41; and that plaintiff’s payment of $325.64 was required to continue the processing of his
request. Brandon Decl., Ex. D.
Plaintiff was further informed that the number of responsive records was not known
“prior to a complete search” but that he could reduce his costs by limiting the scope of his
request, specifying the maximum amount he was willing to pay, or terminating the search at the
two hours’ free time. The letter further stated that pursuant to 28 C.F.R. § 16.11(i), plaintiff’s
request was not “considered received” until EOUSA received his response and that his failure to
act within 30 days would result in the closing of his request. Id. A form was included for
plaintiff to “indicate [his] wishes.” Id. The letter also contained a note informing plaintiff about
his right to appeal to OIP within 60 days while acknowledging that “this FOIA request is
currently the subject of litigation.” Id.By letter dated February 21, 2013, EOUSA informed plaintiff that his request was closed
due to his failure to respond to the January 2, 2013 letter and, since “[t]his is the final action,” he
5
could appeal to OIP within 60 days. Id., Ex. E. Again, EOUSA has no record or notice from
OIP that plaintiff appealed this decision. Brandon Decl. ¶ 17.
LEGAL STANDARD
Summary judgment is appropriate upon a showing that there is “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The FOIA requires a federal agency to release all records responsive to a properly
submitted request except those protected from disclosure by one or more of nine enumerated
exemptions. See 5 U.S.C. § 552(b). The agency’s disclosure obligations are triggered by its
receipt of a request that “reasonably describes [the requested] records” and “is made in
accordance with published rules stating the time, place, fees (if any), and procedures to be
followed.” 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only "to enjoin [a federal]
agency from withholding agency records or to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a
FOIA claim are (1) improperly (2) withheld (3) agency records. “Judicial authority to devise
remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5
U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation.”
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). The
disclosure requirement generally covers only those records that are in the agency’s custody and
control at the time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d
1095, 1110 (D.C. Cir. 1983).
6
In a FOIA case, the Court may award summary judgment to an agency solely on the
information provided in affidavits or declarations when they describe “the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); accord Am. Civil Liberties Union v. U.S. Dep't of Def., 628
F.3d 612, 619 (D.C. Cir. 2011). see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). The district court must conduct a “de novo” review of the
record, 5 U.S.C. § 552(a)(4)(B), which “requires the court to ascertain whether the agency has
sustained its burden of demonstrating that the documents requested . . . are exempt from
disclosure.” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55,
57 (D.C. Cir. 2003) (citation and internal quotation marks omitted). “Consistent with the
purpose of the Act, the burden is on the agency to justify withholding requested documents,”
Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has
proven that “it has fully discharged its disclosure obligations” is summary judgment appropriate.
Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983).
Agency declarations are accorded "a presumption of good faith[.]” Long v. U.S. Dep’t of
Justice, 450 F. Supp. 2d 42, 54 (D.D.C. 2006) (citation and quotation omitted). To rebut the
presumption, a plaintiff “must point to evidence sufficient to put the Agency's good faith into
doubt.” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). In properly
opposing a summary judgment motion, a plaintiff may not merely “replace conclusory
allegations of the complaint or answer with conclusory allegations of an affidavit,” Lujan v. Nat’l
Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must “set forth specific facts showing
7
that there is a genuine issue for trial.” Anderson, 477 U.S. at 248; see Schoenman v. FBI, 841 F.
Supp. 2d 69, 80 (D.D.C. 2012) (“In other words, ‘uncontradicted, plausible affidavits showing
reasonable specificity and a logical relation to the exemption are likely to prevail.’ ”) (quoting
Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011))
(alteration omitted).
DISCUSSION
At the outset, plaintiff invokes both the FOIA and the Administrative Procedure Act
(“APA”) to obtain the same relief. See Am. Compl. at 5-8. But the APA authorizes judicial
review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C.
§ 704. It is axiomatic that plaintiff’s remedy lies with the FOIA. His APA claim therefore is
dismissed. See Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 795 F. Supp. 2d 85, 95 (D.D.C.
2011) (“APA claims arising out of an agency's response to a FOIA request must be dismissed
when they seek relief that can be obtained through a FOIA claim itself.”) (citing cases).
Defendants argue that dismissal of plaintiff’s FOIA claims is warranted because plaintiff
failed to exhaust his administrative remedies by (1) paying the fees assessed for Request No. 12-
2643 (first-party records) and (2) administratively appealing any adverse determinations prior to
filing this action. See Defs.’ Reply at 2-7. In addition, defendants argue that they are entitled to
summary judgment on the adequacy of their search for plaintiff’s records and on their denial of
plaintiff’s request for James’s records pursuant to FOIA exemptions 6 and 7(C) and the Privacy
Act, 5 U.S.C. § 552a. See id. at 8-9. Finally, defendants argue that plaintiff’s claim predicated
on his request for expedited processing is moot. See id. at 6-7.
Failure to Exhaust Request No. 12-2643 (first-party records)
1. Plaintiff’s Fee Waiver Request
8
Under the FOIA, “[e]xhaustion of administrative remedies is generally required before
seeking judicial review ‘so that the agency has an opportunity to exercise its discretion and
expertise on the matter and to make a factual record to support its decision.’ ” Wilbur v. Central
Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (quoting Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 61 (D.C. Cir. 1990)). In this context, the doctrine is “jurisprudential” and “not
jurisdictional.” Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1258 (D.C. Cir. 2003).
Generally speaking, a plaintiff's “failure to exhaust precludes judicial review if ‘the purposes of
exhaustion’ and the ‘particular administrative scheme’ support such a bar.” Id. at 1258-59(quoting Oglesby, 920 F. 2d at 61).
An agency’s disclosure obligation is triggered by its receipt of a request that, inter alia,
“is made in accordance with [the agency’s] published rules stating the time, place, fees (if any),
and procedures to follow.” 5 U.S.C. ' 552(a)(3)(A); see § 552(a)(4)(A) (authorizing the setting
of “reasonable standard charges” for document search and duplication); accord Citizens for
Responsibility and Ethics in Washington v. FEC, 711 F.3d 180, 185, n.2 (D.C. Cir. 2013) (“Of
course, the duties that FOIA imposes on agencies [including the deadlines for making a
determination] apply only once an agency has received a proper FOIA request.”) (quoting §
552(a)(3)(A)). Thus, a requester’s failure to pay assessed fees also constitutes a failure to
exhaust. See Oglesby, 920 F.2d at 66 (“Exhaustion does not occur until the required fees are
paid or an appeal is taken from the refusal to waive fees.”).
Plaintiff does not dispute that he failed to pay the assessed fees. Rather, he argues that
dismissal for his failure to exhaust is unwarranted because he constructively exhausted his
administrative remedies when defendants failed to respond to his fee waiver request within the
9
FOIA’s 20-day timeline. See Pl.’s Opp’n at 4-7. Plaintiff’s constructive exhaustion argument is
based on the following provision:
Any person making a request to any agency for records under paragraph (1),
(2), or (3) of this subsection shall be deemed to have exhausted his
administrative remedies with respect to such request if the agency fails to
comply with the applicable time limit provisions of this paragraph.
5 U.S.C. § 552(a)(6)(C)(i) (emphases added). But this language does not specifically address a
request for a fee waiver and, for reasons discussed below, the Court does not find it applicable to
such a request.
The problem for defendants, though, is that EOUSA has never rendered a final decision
on plaintiff’s fee waiver request to trigger the exhaustion requirement. See Oglesby, 920 F.2d at
67 (finding agency’s failure to “provide notice of [requester’s] right to appeal” adverse decision
to the head of the agency “insufficient under the FOIA to trigger the exhaustion requirement”).
Defendants state that they “notified Plaintiff of the fee waiver denial [and] provided adequate
justification for the denial,” Defs.’ Reply at 3, but they cite only to the January 2, 2013 fee letter,
which does not specifically address plaintiff’s request for a fee waiver. Defendants contend that
“[b]y conveying the estimated charges for performing a search, the request for a fee waiver was
denied, and the reason for the denial was plainly visible through the explicit mention of the
governing statute, 28 C.F.R. § 16.11(i).” Id. at 4.
Defendant’s implicit denial rationale flies in the face of FOIA’s particularized fee
provisions and DOJ’s implementing regulations and, if accepted, would improperly render those
provisions meaningless. See TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (It is “a cardinal
principle of statutory construction that a statute ought, upon the whole, to be so construed that, if
it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”)
(citation and internal quotation marks omitted); id. (quoting United States v. Menasche, 348 U.S.
10528, 538-39 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a
statute. ”). The following aspects of the law and regulations inform the Court’s decision.
First, the FOIA requires each agency to “promulgate regulations . . . specifying the
schedule of fees applicable to the processing of requests . . . and establishing procedures and
guidelines for determining when such fees should be waived or reduced.” 5 U.S.C. § 552(4)
(A)(i).
Second, fee waiver requests made to DOJ are governed by a detailed scheme set out at 28
C.F.R. § 16.11(k) to guide a component in reaching a decision consistent with the FOIA by
determining whether “[d]isclosure of the requested information is in the public interest because it
is likely to contribute significantly to public understanding of the operations or activities of the
government,” and whether “[d]isclosure . . . is not primarily in the commercial interest of the
requester.” 28 C.F.R. § 16.11(k)(1)(i)(ii).
Third, DOJ regulations single out “a determination on any disputed fee matter, including
a denial of a request for a fee waiver” as one of several “adverse determinations, or denials of a
request” that require a “denial letter” containing “(2) [a] brief statement of the reason(s) for the
denial . . . and (4) [a] statement that the denial may be appealed under § 16.9(a) and a description
of the requirements of § 16.9(a).” 28 C.F.R. § 16.6(c).
Fourth, in reviewing an agency’s decision, the Court must consider both the FOIA statute
as well as the agency’s assessment in accordance with its regulations to decide whether the
agency improperly denied a fee waiver request. See PEER v. U.S. Dep’t of Commerce, No. 12-
1293, --- F. Supp. 2d ---, 2013 WL 4830966, at *7 (D.D.C. Sept. 11, 2013) (citing Judicial
Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313 (D.C. Cir. 2003)). The Court, however, is not
11
bound by the agency’s guidelines, and it “owes no particular deference” to the agency’s
interpretation of the FOIA’s fee-waiver provision. Id. (quoting Judicial Watch, Inc.)
Since this record is devoid of an administrative review of and final decision on plaintiff’s
clearly articulated fee waiver request, the Court finds that the exhaustion requirement was not
triggered. Hence, defendants’ motion to dismiss the fee waiver claim based on plaintiff’s failure
to exhaust is denied.
2. Plaintiff’s Entitlement to a Fee Waiver
The FOIA permits the court to “determine the [fee waiver issue] de novo: Provided, That
[its] review of the matter [is] limited to the record before the agency.” 5 U.S.C. § 552(a)
(4)(A)(vii). Since plaintiff’s FOIA request includes his reasons for seeking a fee waiver, the
Court has sufficient information to resolve this issue without delaying the inevitable denial.
In general, “ ‘a FOIA requester must pay reasonable costs for the search, review, and
duplication of the records sought.’ ” Schoenman v. FBI, 604 F. Supp. 2d 174, 188 (D.D.C. 2009)
(quoting Judicial Watch, Inc. v. Dep't of Transp., Civ. No. 02–566, 2005 WL 1606915, at *3
(D.D.C. July 7, 2005)). But an agency must waive or reduce such fees “if disclosure of the
information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). The FOIA requester bears
the initial burden of proving that the foregoing requirements exist. Schoenman, 604 F. Supp. 2d
at 188. “According to legislative history, the FOIA fee waiver provision “ ‘is to be liberally
construed in favor of waivers for noncommercial requesters.’ ” Id. (quoting McClellan
Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987), quoting 132
Cong. Rec. 27, 90 (1986) (Sen. Leahy)). However, “[c]onclusory statements that the disclosure
12
of the requested documents will serve the public interest are not sufficient” to support a fee
waiver. Judicial Watch, Inc. v. Dep't of Justice, 185 F.Supp.2d 54, 60 (D.D.C. 2002).
It is reasonably safe to conclude that plaintiff has not requested the records for a
commercial interest. Hence, the only question is whether he has demonstrated the requisite
public interest in disclosing the requested information.
Plaintiff states that “a fee waiver is warranted[] because the production of the requested
information could serve the substantial public interest in setting free an innocent man.” Request
at 3. He states that “the federal government obtained a conviction through the corruption of
truth-seeking function of the trial process,” apparently through “a confirmed perjurious
informant,” and that the public has an interest in knowing this. Id. Plaintiff has not proffered
anything to substantiate these assertions, the merits of which have already been rejected by the
U.S. Court of Appeals for the Tenth Circuit and the U.S. District Court for the District of New
Mexico in plaintiff’s unsuccessful habeas corpus proceedings. See Espinoza, 2013 WL 6183847,
at *3 (determining that suppressed impeachment evidence about James’s drug use would not
have changed the outcome of plaintiff’s trial since “the government’s case against [plaintiff]
would have been compelling even if the [evidence] had been available to the defense”).
Furthermore, court “decisions clearly tie fee waivers to public benefit . . . and establish that
where the requester seeks information concerning himself only,” the denial of a fee waiver
request “will be upheld . . . .” Ely v. Postal Service, 753 F.2d 163, 165 (D.C. Cir. 1985)
(citations and internal quotation marks omitted); see accord Ortloff v. Dep’t of Justice, No. 02-
5170, WL 31777630 (D.C. Cir. Dec. 11, 2002) (per curiam) (“Insofar as appellant seeks
information to facilitate a challenge to his conviction, the court considers disclosure less likely to
contribute to public understanding.”) (citations omitted); Monroe-Bey v. FBI, 890 F. Supp. 2d
1392, 98 (D.D.C. 2012) (requester’s “need for the records to prove his innocence--a theme
throughout his fee waiver request—works against a fee waiver”) (quoting Ortloff); Banks v.
Dep’t of Justice, 605 F. Supp. 2d 131, 139 (D.D.C. 2009) (“A requester's private interest is not
relevant to the fee waiver analysis, and an attack on a criminal conviction is a private interest.”);
Brunsilius v. U.S. Dep’t of Energy, 514 F. Supp. 2d 30, 35 (D.D.C. 2007) (“a private litigation
interest is not relevant to the fee waiver analysis”); Harrington v. Dep't of Justice, No. 06-0254,
2007 WL 625853, at *2 (D.D.C. Feb. 27, 2007) (“At most, granting a fee waiver and disclosing
[requested criminal case] records advances nothing other than plaintiff's own understanding of
his criminal case.”).
Besides, plaintiff does not state his “ability and intention” to disseminate the requested
information to the public, which "alone [provides] a sufficient basis for denying the fee waiver
request.” Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988); see
Prison Legal News v. Lappin, 436 F. Supp. 2d 17, 26 (D.D.C. 2006) (“In assessing whether a
public interest fee waiver request should be granted, the Court must consider the requester's
ability and intention to effectively convey or disseminate the requested information to the
public.”) (citation and internal quotation marks omitted). The Court therefore finds that plaintiff
has not shown that he is entitled to a fee waiver.
3. Defendants’ Entitlement to Fees
Since EOUSA failed to act on plaintiff’s fee waiver request, the Court will now decide if
EOUSA is foreclosed from assessing fees in light of the following FOIA provision:
An agency shall not assess search fees (or in the case of a requester
described under clause (ii)(II), duplication fees) under this subparagraph if
the agency fails to comply with any time limit under paragraph (6), if no
unusual or exceptional circumstances (as those terms are defined for
purposes of paragraphs (6)(B) and (C), respectively) apply to the processing
of the request.
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5 U.S.C. § 552(a)(4)(A)(viii). Since the Court has found paragraph 6 inapplicable to a fee
waiver request, supra at 10, it finds no hindrance to EOUSA’s ability to assess search fees. And,
having found that plaintiff is not entitled to a fee waiver, the Court determines that he must pay
the reasonably assessed search fees (and any subsequently imposed duplication fees) before
obtaining judicial review of EOUSA’s treatment of his request for first-party records. See
Rosenberg v. U.S. Dep’t of Immig. and Customs Enforcement, 954 F. Supp. 2d 1, 10 (D.D.C.
2013) (“The fact that a fee request was made after the [p]laintiff commenced litigation does not
excuse the [p]laintiff from paying the requested fees.”) (citing Pollack v. Dep't of Justice, 49
F.3d 115, 120 (4th Cir.1995), cert denied, 516 U.S. 843 (1995)) (other citations omitted).
In the January 2, 2013 fee assessment letter, EOUSA informed plaintiff that his request
would be closed if he failed to pay the fees and that he could appeal the decision to OIP. See
Brandon Decl., Ex. D. Hence, the Court concludes that EOUSA acted properly under the
applicable DOJ regulation, 28 C.F.R. § 16.11(i), when it closed FOIA No. 12-2643 nearly 45
days later despite the current litigation. 2 Since under DOJ regulations, the request is “not . . .
considered received” until the requester agrees to pay assessed fees, EOUSA is under no
statutory obligation to produce responsive records; therefore, no improper withholding has yet
occurred.
2
The regulation states in relevant part:
(4) In cases in which a component requires advance payment or payment
due under paragraph (i)(2) or (3) of this section, the request shall not be
considered received and further work will not be done on it until the
required payment is received.
28 C.F.R. § 16.3(i)
15
The Court finds no genuinely disputed material fact with regard to EOUSA’s closing of
Request No. 12-2643 and concludes that defendants are entitled to judgment as a matter of law
on its treatment of this request.
Request No. 12-2644 for Third-Party Records
Plaintiff alleges that he did not receive EOUSA’s July 31, 2012 letter denying his request
for James’s records and, thus, he could not have timely exhausted his administrative remedies as
to that decision. Pl.’s Opp’n at 6-7. Plaintiff also argues that defendants improperly applied
FOIA exemptions 6 and 7(C) and the Privacy Act to his request for James’s records. Id. at 11-
14.
Since the failure to exhaust is not a jurisdictional barrier, and the parties have briefed the
substantive questions, the Court will address EOUSA’s asserted exemptions. Before proceeding,
however, the Court finds that any claim arising under the Privacy Act is moot because the
Privacy Act specifically exempts from its nondisclosure provisions documents that are otherwise
required to be disclosed under the FOIA, which is the focus of this litigation. 5 U.S.C. §
552a(b)(2); see Greentree v. United States Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982)
(concluding “that section (b)(2) of the Privacy Act represents a Congressional mandate that the
Privacy Act not be used as a barrier to FOIA access”).
1. The Claimed Exemptions
In enacting FOIA, Congress “underst[ood] that disclosure of records containing personal
details about private citizens can infringe significant privacy interests.” U.S. Dep't of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 766 (1989). Under FOIA’s personal
privacy exemptions 6 and 7(C), relied upon here, records pertaining to third-party individuals
typically are exempt from disclosure absent the subject’s written authorization or a showing that
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an overriding public interest exists to compel disclosure. Exemption 6 protects “personnel and
medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects records compiled
for law enforcement purposes if the disclosure of such records “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
Plaintiff does not dispute that some of the information contained in James’s PSR is law
enforcement material, and he states that he is not interested in James’s personal information or
the fact that she was the subject of an investigation. Pl.’s Opp’n at 13. Plaintiff “does dispute
whether the date the government generated that PSR . . . was compiled for such purposes in
mind.” Id. He states that he is “interested in whether the government had indeed generated
James’s PSR at the time that Plaintiff sought its disclosure.” Id.Plaintiff’s dispute is based on the faulty premise that the FOIA obligates the government
to answer questions apparently about any governmental action. The FOIA is not so sweeping but
rather provides individuals “access to [agency] records ‘written or transcribed to perpetuate
knowledge or events.’ ” Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985), aff'd, 808 F.2d 137(D.C. Cir. 1987), cert. denied, 484 U.S. 803 (1987) (citations omitted); see Kissinger, 445 U.S. at
151-52 (“FOIA is only directed at requiring agencies to disclose those ‘agency records' for which
they have chosen to retain possession or control.”) (citations omitted). The FOIA places no
obligation on an agency “to answer questions disguised as a FOIA request . . . or to create
documents or opinions in response to an individual’s request for information,” Hudgins, 620 F.
Supp. at 21, nor is an agency obligated “to obtain a duplicate of or to re-create a record [not in its
control or possession] in order to fulfill a FOIA request.” James v. U.S. Secret Serv., 811 F.
Supp. 2d 351, 358 (D.D.C. 2011), aff'd, No. 11–5299, 2012 WL 1935828 (D.C. Cir. May 11,
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2012) (per curiam). Furthermore, the Court takes judicial notice of the fact that the U.S.
Probation Office is responsible for generating presentence reports, and that office, as an arm of
the court, is not subject to FOIA’s disclosure requirements. See Ruiz v. U.S Dep’t of Justice, 636
F. Supp. 2d 85, 89, n.4 (D.D.C. 2009) (citing 5 U.S.C. § 551); Maydak v. U.S. Dep’t of Justice,
254 F. Supp. 2d 23, 40 (D.D.C. 2003). Hence, to the extent that plaintiff faults EOUSA for
failing to address “whether the government had memorialized James’s drug usage in her PSR
when Plaintiff’s trial attorney sought its disclosure,” Pl.’s Opp’n at 13, this question is wholly
irrelevant to the FOIA analysis.
As for the claimed exemptions, it cannot be seriously disputed that the requested
information was compiled for law enforcement purposes. See Blackwell v. FBI, 646 F.3d 37, 40
(D.C. Cir. 2011) (finding law enforcement assertion “especially convincing [where] [requester]
explicitly sought records related to his own criminal prosecution”). Hence, the Court will
discuss exemption 7(C) but finds that defendants properly invoked exemption 6 to withhold
James’s PSR since it is a document that is retrievable by her name. 3 See U.S. Dep't of State v.
Wash. Post Co., 456 U.S. 595, 602 (1982) (threshold requirement of exemption 6 is that the
requested information “applies to a particular individual”).
In assessing an agency's claim under exemption 7(C), the district court must look to the
balance of the privacy interests asserted and the public interest in disclosure. Voinche v. FBI,
412 F. Supp. 2d 60, 68 (D.D.C. 2006). As a general matter, the identification of an individual
“in a law enforcement file will engender comment and speculation and carries a stigmatizing
3
Although exemption 7(C) is somewhat broader than exemption 6, see Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 165-66 (2004), the “the privacy inquiry of exemptions
6 and 7(C) [is] essentially the same.” Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108,
1125 (D.C. Cir. 2004).
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connotation,” Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 1987). Therefore, “[a]bsent
exceptional circumstances, the balance [of interests] categorically favors withholding the names .
. . of third parties,” as such information is not probative of an agency's performance of its
statutory responsibilities. Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C. Cir.
2000). The Court of Appeals for the D.C. Circuit has more recently elaborated that
[a]s a result of [e]xemption 7(C), FOIA ordinarily does not require
disclosure of law enforcement documents (or portions thereof) that contain
private information . . . . [because] privacy interests are particularly difficult
to overcome when law enforcement information regarding third parties is
implicated . . . . Moreover, the Supreme Court has made clear that requests
for such third party information are strongly disfavored. That is particularly
true when the requester asserts a public interest—however it might be
styled—in obtaining information that relates to a criminal prosecution.
Blackwell, 646 F.3d at 41 (citations and internal quotation marks omitted). Hence, the only
relevant question is “whether [plaintiff] has shown government misconduct sufficient to
overcome [e]xemption 7(C)’s protection for personal privacy under the test outlined [Favish].”
Id. (citing Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004)).
2. Plaintiff’s Public Interest Justification
Under the Favish test, plaintiff “must show that the public interest sought to be advanced
is a significant one, an interest more specific than having the information for its own sake” and
that “the information is likely to advance that interest.” Favish, 541 U.S. at 172. Such a
showing requires “more than a bare suspicion” of official misconduct; “the requester must
produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Id. at 174. For it is “[o]nly when [such
evidence is] produced [that] there [will] exist a counterweight on the FOIA scale for the court to
balance against the cognizable privacy interests in the requested records.” Id. at 174-75.
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Plaintiff argues that James’s record “is necessary to confirm whether USAO/NM engaged
in the corruption of the truth-seeking function of the trial process and actively concealed its
misconduct.” Pl.’s Opp’n at 11. As already determined, this argument is unsubstantiated and
belied by prior court decisions. Furthermore, plaintiff’s personal stake in obtaining documents in
order to attack his conviction simply “does not count in the calculation of the public interest.”
Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir. 2002), vacated and remanded on other
grounds, 541 U.S. 970 (2004), judgment reinstated, 378 F.3d 1115 (D.C. Cir. 2004); see Pugh v.
FBI, 793 F. Supp. 2d 226, 233 (D.D.C. 2011) (“That the FBI's denial of [plaintiff’s] FOIA
requests may hinder his efforts to challenge his conviction or sentence . . . is irrelevant.”).
“[C]ourts must insist on a meaningful evidentiary showing,” Favish, 541 U.S. at 175, to even
consider the competing interests. Plaintiff’s conclusory allegations surrounding his prosecution,
“has not come close to meeting the demanding Favish standard for challenging [EOUSA’s]
invocation of FOIA [e]xemption 7(C).” Blackwell, 646 F.3d at 41. Hence, the Court finds that
defendants are entitled to judgment as a matter of law on their invocation of both exemptions 6
and 7(C) to deny plaintiff’s request for James’s records.
Expedited Processing
EOUSA rendered a final decision on plaintiff’s request for James’s records before
plaintiff had even requested expedited processing, and “[a] district court . . . shall not have
jurisdiction to review an agency denial of expedited processing . . . after the agency has provided
a complete response to the request.” 5 U.S.C. 552(a)(6)(E)(iv). In addition, the delay in
processing plaintiff’s records is attributable to the outstanding fee dispute. Hence, the Court
agrees that this claim is moot.
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CONCLUSION
For the foregoing reasons, the Court finds no genuinely disputed material fact with regard
to defendants’ satisfaction of their disclosure obligations under the FOIA and concludes that they
are entitled to judgment as a matter of law. Consequently, plaintiff’s cross-motion for summary
judgment is denied. A separate Order accompanies this Memorandum Opinion.
__________s/s__________________
COLLEEN KOLLAR-KOTELLY
DATE: February 27, 2014 United States District Judge
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