Cole v. U.S. Department of Justice , 905 F. Supp. 2d 293 ( 2012 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________________
    )
    JAMES COLE,                         )
    )
    Plaintiff,           )
    )
    v.                      )                 Civ. Action No. 12-0841 (ESH)
    )
    DEPARTMENT OF JUSTICE et al.,       )
    )
    Defendants.          )
    ___________________________________ )
    MEMORANDUM OPINION
    Plaintiff, proceeding pro se, challenges the Department of Justice’s (“DOJ”) response to
    his request for his records maintained by the Federal Bureau of Investigation (“FBI”).1 The FBI,
    having released the first 100 pages of responsive records to which plaintiff is entitled for free and
    assessed a fee to cover the processing of additional records, moves to dismiss or for summary
    judgment on the ground that plaintiff has not exhausted his administrative remedies [Dkt. # 15].
    Plaintiff has opposed defendant’s motion and has cross moved for summary judgment [Dkt. ##
    20, 21]. Since the record establishes that plaintiff has not exhausted his administrative remedies
    and the processing of his request is under way, the Court will grant defendant’s motion for
    summary judgment, deny plaintiff’s motion for summary judgment, and enter judgment
    accordingly.
    1
    In addition to naming the Department of Justice and its component Federal Bureau of
    Investigation as defendants, plaintiff has named Attorney General Eric H. Holder, Jr. and FBI
    Director Robert Mueller. Since the FOIA authorizes a cause of action only against executive-
    branch agencies, Martinez v. Bureau of Prisons, 
    444 F.3d 620
    , 624 (D.C. Cir. 2006), the
    complaint against the individual defendants is hereby dismissed and the remaining defendants
    will be referred to in the singular.
    BACKGROUND
    By letter of December 13, 2011, addressed to FBI Headquarters, plaintiff requested “all
    records . . . pertaining to myself” maintained between June 1974 and June 2005. (Decl. of David
    M. Hardy [Dkt. # 15-1], Ex. A (“Req.”).)2 Plaintiff requested, inter alia, “reference cards,
    abstracts, search slips . . . , file covers, multiple copies of the same document . . ., and taped []
    electronic surveillance.” (Req. at 1.) He requested that the search encompass the “ ‘DO NOT
    FILE’ files, SAC safes, special file rooms, and office of FBI officials,” and the “ELSUR Index.”
    (Id.) Plaintiff stated that he “believe[d]” his request qualified for a fee waiver “since the release
    of [the] requested information would primarily benefit the general public . . . notwithstanding the
    fact that I am an indigent person, and need these materials to perfect an appeal of what I perceive
    as an unjust conviction.” (Id. at 2.) He also requested that he be consulted before proceeding
    “[if] a fee waiver is not granted [and] the fee is in excess of $100.00.” (Id.)
    By letter of December 28, 2011, the FBI denied plaintiff’s request for a fee waiver.
    (Hardy Decl., Ex. B.) In a separate letter also dated December 28, 2011, the FBI informed
    plaintiff that it had searched its Central Records System (“CRS”), located records that would be
    “reviewed for responsiveness,” and had exhausted the mandatory two hours of free search time.
    (Id., Ex. C.) Plaintiff was informed generally about how search fees are computed, given 30
    2
    Plaintiff has included with his opposition an “Objection to Declaration of David M. Hardy
    With Combined Memorandum of Law in Support ‘Move to Strike’ ” (Dkt. # 20, ECF pp. 9-10.)
    He questions Mr. Hardy’s personal knowledge of statements made in paragraphs 16, 49 and 57
    of his declaration. But “[a] declarant in a FOIA case satisfies the personal knowledge
    requirement in Rule 56[c] if in his declaration, he attests to his personal knowledge of the
    procedures used in handling [a FOIA ] request and his familiarity with the documents in
    question.” Barnard v. Dep’t of Homeland Sec., 
    531 F. Supp. 2d 131
    , 138 (D.D.C. 2008)
    (citations and internal quotation marks omitted). See SafeCard Servs., Inc. v. SEC, 
    926 F.2d 1197
    , 1201 (D.C. Cir.1991) (citing Meeropol v. Meese, 
    790 F.2d 942
    , 951 (D.C. Cir.1986))
    (determining that the person in charge of a search is “the most appropriate person to provide a
    comprehensive affidavit”). Mr. Hardy has satisfied this standard. See Hardy Decl. ¶¶ 1-3.
    Therefore, plaintiff’s motion to strike the declaration is denied.
    2
    days to commit in writing to paying any fees to cover the FBI’s search and processing of records
    beyond the two free hours, and advised about his right to appeal to the Office of Information
    Policy (“OIP”). (Id.) By letter of January 6, 2012, plaintiff committed to paying fees and
    requested the FBI to “continue the search.” (Id., Ex. E.) By letter also dated January 6, 2012,
    plaintiff appealed to OIP “any adverse decision by the [FBI] not to release and or failure to
    follow FOIA procedures, with regards to the FOIA Act.” (Id., Ex. F.) By letter of March 12,
    2012, the OIP, having treated the appeal as one from the FBI’s fee waiver denial, affirmed the
    FBI’s decision. (Id., Ex. H.) By letter of April 20, 2012, the FBI assessed plaintiff a fee of
    $252.42 based on nine hours of search time, informed him that it would stop processing the
    request if he failed to pay within 30 days, and advised him of his right to appeal the decision to
    the OIP. (Id., Ex. I.)
    Plaintiff filed this action on May 24, 2012. On July 31, 2012, the FBI released 100 of
    402 pages it had reviewed. From the released pages, the FBI redacted material under FOIA
    exemptions 6, 7(C), 7(D) and 7(E). (Id., Exs. J, K.) The FBI informed plaintiff that the initial
    release constituted the 100 pages located within the first two hours of its search, which “included
    only those serials which mention James T. Cole, Jr. by name and/or shows the context in which
    the name James T. Cole, Jr. was mentioned.” (Ex. J. at 2.) The FBI further informed plaintiff
    that it would release additional material found during the first two hours of the search if he
    committed to paying a duplication fee of $50, and that he would be billed for the processing of
    the remainder of his file consisting of approximately 500 pages, which he then must pay before
    additional pages were released to him. Finally, plaintiff was informed that “[t]his is only a
    portion of the additional fees. The processing of additional records will require the payment of
    further search and duplication fees . . . . As suggested by OIP, you may wish to identify a
    3
    specific amount up to which you will pay or request an estimate of the total fees that would be
    due if all remaining records are processed.” (Id.) By letter of August 3, 2012, plaintiff
    committed to paying the additional fees. (Def.’s Opp’n to Pl.’s Mot. for Summ. J. and Reply to
    Pl.’s Opp’n to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J., Second Decl. of David
    M. Hardy [Dkt. # 23-1], Ex. A [Dkt. # 23-2].)
    By letter of November 7, 2012, the FBI informed plaintiff that a “second interim release
    of [219 pages] is available” upon his payment of $21.90 to cover duplication costs. (Id., Ex. D.)
    The FBI further informed plaintiff that after receipt of that payment, it would process additional
    records and advise him of the associated costs. Plaintiff was advised to notify the FBI in writing
    if he wished to reduce his costs by reformulating his request or limiting its scope. (Id.)
    Meanwhile, by letter of September 13, 2012, plaintiff lodged an appeal with OIP of “the
    100 pages of documents that Mr. Hardy sen[t] to me free which was only newspaper articles and
    a ruse.” (Id., Ex. B.) By letter of November 8, 2012, the OIP advised plaintiff that his appeal
    was closed in accordance with 
    28 C.F.R. § 16.9
    (a)(3) because of the instant litigation. (Id., Ex.
    E.)
    LEGAL STANDARD
    The Court is authorized under the FOIA “to devise remedies and enjoin agencies . . . if
    the agency has [improperly withheld agency records]” responsive to a request. McGehee v. CIA,
    
    697 F.2d 1095
    , 1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Comm. for Freedom of the
    Press, 
    445 U.S. 136
    , 150 (1980)). Summary judgment should be granted to the movant if it has
    shown, when the facts are viewed in the light most favorable to the nonmovant, that there are no
    genuine issues of material fact and that the movant is entitled to judgment as a matter of law.
    Fed. R. Civ. P. 56(a); see generally Celotex Corp. v. Catrett, 
    477 U.S. 317
     (1986). In a FOIA
    4
    action, the Court may award summary judgment to the agency solely on the basis of information
    provided in reasonably detailed affidavits or declarations. Military Audit Project v. Casey, 
    656 F.2d 724
    , 738 (D.C. Cir. 1981); accord Campbell v. Dep’t of Justice, 
    164 F.3d 20
    , 30 (D.C. Cir.
    1998) (quoting King v. Dep’t of Justice, 
    830 F.2d 210
    , 217 (D.C. Cir. 1987)); Vaughn v. Rosen,
    
    484 F.2d 820
    , 826 (D.C. Cir. 1973), cert. denied, 
    415 U.S. 977
     (1974).
    DISCUSSION
    “Exhaustion of administrative remedies is generally required before seeking judicial
    review” under the FOIA “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.” Oglesby v. Dep't of
    the Army, 
    920 F.2d 57
    , 61 (D.C. Cir. 1990); accord Wilbur v. CIA, 
    355 F.3d 675
    , 676 (D.C. Cir.
    2004). “The statutory scheme in the FOIA specifically provides for an administrative appeal
    process following an agency's denial of a FOIA request,” and “courts have consistently
    confirmed that the FOIA requires exhaustion of this appeal process before an individual may
    seek relief in the courts.” Oglesby, 
    920 F.2d at
    61–62 (citing U.S.C. § 552(a)(6)(A)(i), (ii) and
    cases). Exhaustion under the FOIA is not jurisdictional but "as a jurisprudential doctrine, [the
    requester’s] failure to exhaust precludes judicial review" if a merits determination would
    undermine the purpose of permitting an agency to review its determinations in the first instance.”
    Hidalgo v. FBI, 
    344 F.3d 1256
    , 1258-59 (D.C. Cir. 2003).
    In addition, “[e]xhaustion does not occur until the required fees are paid or an appeal is
    taken from the refusal to waive fees.” Hines v. U.S., 
    736 F. Supp. 2d 51
    , 53 (D.D.C. 2010)
    (quoting Oglesby, 
    920 F.2d at 66
    ) (other citation omitted). And “[t]he commencement of a civil
    action pursuant to the FOIA does not relieve a requester of his obligation to pay any assessed
    5
    fees.” Chaplin v. Stewart, 
    796 F. Supp. 2d 209
    , 211 (D.D.C. 2011) (citations omitted); see 
    id.
    (discussing DOJ’s fee regulations governing FOIA requests).
    This case presents the very circumstances befitting administrative exhaustion. Because
    of this lawsuit, the OIP has not had the opportunity to render a decision on plaintiff’s
    administrative appeal in which he claims only that “the 100 pages of documents [released] to me
    free [are] only newspaper articles and a ruse.” (2d Hardy Decl., Ex. B.) In addition, the FBI
    informed plaintiff on November 7, 2012, that it will make interim releases of additional records
    to plaintiff as he pays any assessed fees. (Id., Ex. D.) It is undisputed that defendant has yet to
    complete its disclosure responsibilities under the FOIA and to render a final decision. And
    absent a record to determine whether the FBI has improperly withheld records, the Court has no
    statutory duty to perform. See Hines, 
    736 F. Supp. 2d at 54
     (“Given that the BOP is currently
    processing the plaintiff’s FOIA request, the court dismisses this action without prejudice to the
    plaintiff’s filing of a new civil action, if necessary, after the administrative process has
    concluded.”); see also Chaplin, 
    796 F. Supp. 2d at 211-12
     (awarding summary judgment to DOJ
    where plaintiff had failed to exhaust under the FOIA by complying with the agency’s fee
    regulations). Hence, the Court finds that defendant is entitled to judgment as a matter of law.
    CONCLUSION
    For the foregoing reasons, the Court will grant defendant’s motion for summary
    judgment based on plaintiff’s failure to exhaust his administrative remedies and will deny
    plaintiff’s motion for summary judgment. A separate Order accompanies this Memorandum
    Opinion.
    /s/
    ELLEN SEGAL HUVELLE
    Date: November 28, 2012                                United States District Judge
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