United States District Court for the District of Columbia
April 11, 2005.
ALBERT J. SLINEY, Plaintiff,
FEDERAL BUREAU OF PRISONS, Defendant.
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
Plaintiff, a federal inmate proceeding pro se, brought this
action pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against the
Bureau of Prisons ("BOP").*fn1 Defendant has now filed a
motion for summary judgment. For the reasons stated below, the
Court will grant in part and deny in part defendant's motion.
Plaintiff has been incarcerated at the Federal Correctional
Institution in Ray Brook, New York ("FCI Ray Brook") since
January, 2002. Complaint ("Compl.") ¶ 6. On August 19, 2003,
plaintiff sent the BOP a FOIA request that sought tape recordings
of telephone calls he made to (401) 944-4419 on July 5, 2003 and
July 6, 2003. Compl., Exhibit ("Ex.") 1. By a letter dated
September 15, 2003, the BOP informed plaintiff that the
conversations had been preserved, but that plaintiff was required to submit a waiver under the Privacy Act from the other
party to the telephone conversations before the BOP would process
his request. Defendant's Motion for Summary Judgment ("Def.'s
Mot."), Declaration of James A. Vogel, Jr. ("Vogel Decl."), Ex.
3. On September 19, 2003, plaintiff sent a letter to the BOP
appealing the "no response/delay" to his FOIA request. Id., Ex.
4. In a letter dated October 24, 2003, the BOP again informed
plaintiff that his request would not be processed without a
Privacy Act waiver. Id., Ex. 5.
On October 6, 2003, plaintiff filed another FOIA request with
the BOP. Id., Ex. 6. In this submission, plaintiff requested
copies of the telephone calls he made to the numbers 401-438-6157
on May 8, 2003 and June 17, 2003, and an October 4, 2003
conversation made to number 401-946-6013. Id. On November 5,
2003, plaintiff appealed the BOP's failure to respond to his
request. Id., Ex. 7. Plaintiff was then again advised by the
BOP on November 24, 2003, that his request would not be processed
until the agency received a Privacy Act waiver from the other
party to the telephone conversation. Id., Ex. 8.
On April 11, 2004, plaintiff sent another letter to the BOP
regarding the July 5, 2003 and July 6, 2003 telephone
conversations. Id., Ex. 10. Plaintiff stated that he could not
produce the required Privacy Act waivers because he could not
locate the other individuals who were parties in the telephone
conversations. Id. Plaintiff proposed that the BOP provide him
with transcripts of the conversations with any information
identifying the other party deleted. Id. In response, on April
28, 2004, the BOP informed plaintiff that the agency did not have
the capability to transcribe telephone calls, but could produce
the words he spoke during the conversations. Id., Ex. 11.
On May 25, 2004, plaintiff requested that the BOP provide him
with his portions of the July 5, 2003, July 6, 2003, and October
4, 2003 telephone conversations. Id., Ex. 12. According to the BOP's FOIA Office, that request is still being processed. Def.'s
Mot., Declaration of Ron Hill ("Hill Decl.") ¶ 3. The BOP further
stated that plaintiff will be advised on the estimated fee for
redacting and duplicating the three conversations and upon
payment of the fee BOP personnel will provide plaintiff with the
information. Id. ¶ 4.
On June 7, 2004, plaintiff sent a letter to the BOP regarding
the May 8, 2003 and June 17, 2003 telephone conversations. Def.'s
Mot., Vogel Decl., Ex. 13. Plaintiff stated that he had been
informed that a Privacy Act waiver had been sent to the BOP by
the other party to those two telephone conversations. Id.
Plaintiff also requested that the BOP provide him with the status
of the processing of his FOIA request for these two
conversations. On July 2, 2004, the BOP informed plaintiff that
the period for retaining the requested information had expired
and that the conversations were no longer available. Id., Ex.
14. According to the BOP, it only maintains taped telephone
conversations for approximately 180 days. Id., Vogel Decl. ¶
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate if the pleadings 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
judgment as a matter of law. Fed.R.Civ.P. 56 ©). Material facts
are those that "might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The party seeking summary judgment bears the initial
burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the
Court must draw all reasonable inferences in favor of the non-moving party. Anderson,
477 U.S. at 255; see also Washington Post Co. v. United States Dep't of
Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The
party opposing a motion for summary judgment, however, "may not
rest upon the mere allegations or denials of his pleading, but . . .
must set forth specific facts showing that there is a genuine
issue for trial." Anderson, 477 U.S. at 248. And the non-moving
party must do more than simply "show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moreover, "any factual assertions in the movant's affidavits will
be accepted as being true unless [the opposing party] submits his
own affidavits or other documentary evidence contradicting the
assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)
(quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.
The mere existence of a factual dispute by itself, however, is
not enough to bar summary judgment. The party opposing the motion
must show that there is a genuine issue of material fact. See
Anderson, 477 U.S. at 247-48. To be material, the fact must be
capable of affecting the outcome of the litigation; to be
genuine, the issue must be supported by admissible evidence
sufficient for a reasonable trier of fact to find in favor of the
nonmoving party. See id.; Laningham v. United States Navy,
813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th
Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13
(D.D.C. 1980). In a FOIA case, the court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations. Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see
also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). However, agency affidavits
or declarations must be "relatively detailed and non-conclusory . . ." SafeCard
Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
This case involves two separate FOIA requests. First, plaintiff
requested taped telephone conversations made on July 5, 2003,
July 6, 2003, and October 4, 2003. In his other request,
plaintiff sought tapes of telephone conversations made by him on
May 8, 2003 and June 17, 2003.
Plaintiff contends that the BOP violated its statutory duty
under the FOIA by failing to preserve the tapes of these two
telephone conversations after receiving his FOIA request. Compl.
¶ 14. Plaintiff seeks an order compelling the BOP to conduct a
"reasonable and comprehensive search" for the information he
requested. Id. at 4. Plaintiff also seeks an affidavit
affirming that the two telephone conversations have not been
preserved, and for the BOP to provide the information sought in
both of his FOIA requests. Id. at 5.
Adequacy of the Search
To obtain summary judgment when the adequacy of a FOIA search
for records is at issue, an agency must show "viewing the facts
in the light most favorable to the requester, that . . . [it]
`has conducted a search reasonably calculated to uncover all
relevant documents.'" Steinberg v. United States Dep't of
Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v.
United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984)). To meet its burden, the agency may submit affidavits or
declarations that explain in reasonable detail and in a
non-conclusory fashion the scope and method of the agency's
search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In
the absence of contrary evidence, such affidavits or declarations
are sufficient to demonstrate an agency's compliance with the
FOIA. Id. at 127. However, the agency must show that it made a "good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the
information requested." Oglesby v. Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. United States Dep't of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the
adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Oglesby, 920 F.2d at 68.
It is apparent from the declarations submitted by defendant
that the BOP made a "good faith effort to conduct a search for
the requested records, using methods which reasonably can be
expected to produce the information requested." Moore v. Aspin,
916 F.Supp. 32, 35 (D.D.C. 1996) (citing Oglesby,
920 F.2d at 68). Plaintiff sought tapes of telephone conversations made by
him while he was incarcerated at FCI Ray Brook. The BOP searched
the telephone records at that institution. See Vogel Decl. ¶
13. It was reasonable for the BOP to believe that a search of
that system of records would yield the information requested. And
plaintiff has not identified other files that defendant should
have searched. "Mere speculation that as yet uncovered documents
may exist does not undermine the finding that the agency conducts
a reasonable search for them." SafeCard Services, Inc.,
926 F.2d at 1201. Here, the search for plaintiff's requested records
was adequate to fulfill the BOP's obligations under the FOIA.
Exhaustion of Administrative Remedies
Defendant contends that plaintiff has failed to exhaust his
administrative remedies regarding the July 5, 2003, July 6, 2003,
and October 4, 2003 telephone conversations. A party must exhaust
the available administrative remedies under the FOIA prior to
seeking relief in federal court. Oglesby v. United States Dep't
of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990); Nurse v. Sec'y of
Air Force, 231 F.Supp.2d 323, 327 (D.D.C. 2002). The FOIA's
exhaustion requirement, however, is not jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.
2003). Failure to exhaust only 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). The FOIA's administrative scheme favors treating
failure to exhaust as a bar to judicial review. Wilbur v. CIA,
355 F.3d 675, 677 (D.C. Cir. 2004); Hidalgo, 344 F.3d at 1259.
Defendant claims plaintiff has not complied with the exhaustion
requirement because he has not provided payment for processing
his records or requested a fee waiver from the agency. Generally,
requesters must pay reasonable charges associated with processing
their FOIA requests. Judicial Watch, Inc. v. Rossotti,
326 F.2d 1309, 1310 (D.C. Cir. 2003); see also 5 U.S.C. § 552(a).
Agencies, however, are required to waive fees if a requester
demonstrates that "disclosure of the information is in the public
interest." 5 U.S.C. § 552(a)(4)(A)(iii).
Failure to pay the requested fees or to appeal the denial from
a refusal to waive fees constitutes a failure to exhaust
administrative remedies. Oglesby, 920 F.2d at 66; Judicial
Watch, Inc., 190 F.Supp.2d at 33. Moreover, judicial review of
an agency's denial of a fee waiver request cannot be sought until
a plaintiff appeals that decision or pays the assessed fee.
Judicial Watch, Inc., 326 F.3d at 1310; Trulock v. U.S. Dep't
of Justice, 257 F.Supp.2d 48, 52 (D.D.C. 2003).
Here, defendant's position is disingenuous. In his
correspondence with the BOP, plaintiff repeatedly requested
information about the duplication fees. See Def.'s Mot., Vogel
Decl., Ex. 1, 2, 6. The FOIA regulations provide that the agency
"shall notify the requester of the actual or estimated amount
of the fees . . ." 28 C.F.R. § 16.11(e) (emphasis supplied); see
also Trulock v. U.S. Dep't of Justice, 257 F.Supp.2d 48, 52
(D.D.C. 2003). However, defendant has produced no evidence that
plaintiff has ever been informed of the duplication costs. In
fact, the agency states that plaintiff "will" be advised of the estimated cost and once he
agrees to pay the fee, the request will be processed and the
tapes sent to him. See Def.'s Mot., Hill Decl. ¶ 4.
Since the agency failed to notify plaintiff of the required
fees, it cannot now claim plaintiff has failed to pay the fee or
sought a waiver of the required fee. Summary judgment, therefore,
will be denied based on plaintiff's failure to exhaust his
administrative remedies regarding the records responsive to July
5, 2003, July 6, 2003, and October 4, 2003 telephone
To prevail in a FOIA case, a plaintiff must show that an agency
has (1) improperly (2) withheld (3) agency records. United
States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142
(1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598
(D.C. Cir. 2004). A suit is only authorized under the FOIA against
federal agencies and injunctive relief is only available to
remedy an agency's improper withholding of information.
Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B) & (f)(1). For
an agency to have improperly withheld records, it must have
possession or control over the record. National Sec. Archive v.
Archivist of the U.S., 909 F.2d 541, 546 (D.C. Cir. 1990).
Plaintiff requested the tape recordings of telephone
conversations he participated in on May 8, 2003 and June 17,
2003. The BOP informed plaintiff that he would have to provide a
Privacy Act waiver from the other party to the conversation to
obtain the recordings. By the time the BOP received the waiver
from that party, the tapes of the conversations had been
destroyed pursuant to the BOP's 180 day retention policy.
The FOIA does not require an agency to create and retain
records, but rather to provide access to records that have been
retained. Kissinger, 445 U.S. at 151-52. The fact that the
agency once possessed documents that have been destroyed does not preclude
the entry of summary judgment for the agency. See Piper v. U.S.
Dep't of Justice, 294 F.Supp.2d 16, 22 (D.D.C. 2003). Since the
FOIA does not contain a document retention requirement, id.,
and the BOP no longer possesses the records requested by
plaintiff, summary judgment will be granted as to records related
to the May 8, 2003 and June 17, 2003 telephone conversations.
Based on the foregoing, the Court will grant in part and deny
in part defendant's motion for summary judgment. Specifically,
the Court will deny defendant's summary judgment on the issue of
plaintiff's failure to exhaust his administrative remedies in
connection to the records of the July 5, 2003, July 6, 2003 and
October 4, 2003 telephone conversations. On the other hand, the
Court finds the agency's search was adequate and will grant
summary judgment regarding the May 8, 2003 and June 17, 2003
telephone conversations. An appropriate order accompanies this