United States District Court, D. Columbia
August 31, 2005.
STEVEN IVEY, Plaintiff,
U.S. OFFICE OF SPECIAL COUNSEL, Defendant.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
This matter is before the Court on consideration of defendant's
motion for summary judgment. Upon consideration of defendant's
motion, plaintiff's opposition, and the entire record of the
case, the Court will grant summary judgment for defendant.
Plaintiff brings this action against the United States Office
of Special Counsel ("OSC") under the Freedom of Information Act,
5 U.S.C. § 552 ("FOIA"), and the Privacy Act, 5 U.S.C. § 552a,
for the agency's alleged "improper procedure, negligence, and
refusal to supply requested records and files." Compl. at 1. It
stems from a prohibited personnel practice complaint that
plaintiff filed with the OSC in April 2001.*fn1 Defendant's
Motion for Summary Judgment ("Def.'s Mot."), Statement of Material Facts Not in Dispute ("Def.'s Facts"), ¶ 1; see
Compl., Ex. 2. The OSC closed its investigation of this matter
and so notified to plaintiff in a letter dated January 31,
2002.*fn2 Id. Plaintiff objected to this closure,
describing it as improper and premature, and demanded an
explanation. Compl. at 1-2.
On September 1, 2004, plaintiff submitted a FOIA request to the
OSC. Compl., Ex. 1. Specifically, the request stated:
I am requesting the investigation file for [OSC File
No. MA-01-1064]. This request is being pursued for
civil action cases 04-0394, 04-0395, and 04-0396 in
US District Court for the Northern Region of Georgia.
I am also requesting the explanation as to why the
OSC closed the file prematurely prior to my responds
[sic] letter dated February 4, 2001. The closure for
the file was prepared and mailed prior to the time
limit for any responds [sic] as directed in your
The OSC responded to plaintiff's request by letter dated
December 3, 2004. Compl., Ex. 5. Citing Exemptions 2 and 5, the
OSC denied plaintiff's request. Id.; see Def.'s Facts, ¶ 3 &
Ex. 1. The OSC's response did not address plaintiff's request for
an explanation for the closure of the investigation.
Plaintiff appealed the OSC's response on December 28, 2004.
Def.'s Facts, Ex. 2. After a supplemental review of the
investigative file at issue, on March 30, 2005, the OSC released
a complete copy of all the documents in file MA-01-1064,
including those purely internal administrative records for which
Exemption 2 had been asserted.*fn3 Id., Ex. 3; Def.'s
Mot., Ex. ("Stackhouse Decl."), ¶¶ 5-7. The letter accompanying
the documents noted that the FOIA does not require an agency to
explain its actions. Id. It did, however, provide plaintiff
with the name and telephone number of an agency attorney with
whom plaintiff could discuss his questions. Id.
A. Standard of review
Summary judgment is granted where the evidence on record fails
to present a "genuine issue as to any material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) citing FED. R. CIV.
P. at 56(c). Only disputes concerning facts affecting the outcome of the case prevent such a ruling. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986) (citations omitted).
"Factual disputes that are irrelevant or unnecessary will not be
counted." Id. The opposing party must prove that a genuine
issue for trial exists. Id. This proof must come from
presentation of "specific facts" as opposed to merely resting on
one's prior assertions, allegations or denials in one's pleading.
Id. at 248 (citing FED. R. CIV. P. 56(e)).
A movant succeeds in obtaining a summary judgment in FOIA
disclosure suits where, "viewed in the light most favorable to
the requester," the agency illustrates that its search is
"reasonably calculated to uncover all relevant documents."
Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984) (citations omitted). The standard does not address the
issue of whether further documents may be found but whether the
agency's search for those documents was adequate. Id. (citing
Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1983)). Courts may
rely on "relatively detailed," good faith affidavits submitted by
the government in determining whether the agency met its burden
for summary judgment.*fn4 Perry v. Block, 684 F.2d at 126.
Upon disclosure of the non-exempt information, the agency
fulfills its duty to the requester under FOIA even if the
information is released to the requester "belatedly." Id. at 125; Tijerna v. Walters,
821 F.2d 789, 799 (D.C. Cir. 1987).
B. Defendant released all the relevant records in full.
"Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is
dependent upon a showing that an agency has (1) improperly; (2)
withheld; (3) agency records." Kissinger v. Reporters Committee
for Freedom of the Press, 445 U.S. 136, 150 (1980) (internal
quotation marks omitted). "[O]nce all requested records are
surrendered, federal courts have no further statutory function to
perform." Perry v. Block, 684 F.2d at 125; see Crooker v.
United States Dep't of State, 628 F.2d 9, 10 (D.C. Dir. 1980)
(per curiam) ("Once the records are produced the substance of the
controversy disappears and becomes moot since the disclosure
which the suit seeks has already been made.").
Plaintiff requested specific records from OSC, and identified
those records by file number. As its declarant demonstrates, the
OSC responded by ultimately releasing in full all the documents
contained in that file. See Stackhouse Decl., ¶¶ 4-7.
In his opposition to the defendant's motion, plaintiff
acknowledges receipt of the records in question. Plaintiff's
Response to Defendant's Motion for Summary Judgment ("Pl.'s
Opp.") at 2-3. However, he contends that the records are
incomplete because the OSC "left out the file/documentation
supplying the reasons for closing the case prematurely." Id. at
3. Plaintiff's argument goes to his perceived entitlement to an explanation from the OSC (discussed
below). He raises no argument that OSC either conducted an
inadequate search for responsive records, or withheld the
requested records or portions thereof improperly.
C. Defendant is not obligated to respond to plaintiff's
To the extent that plaintiff demands an answer to his questions
regarding the closure of the OSC's investigation of his
prohibited personnel practice complaint, his claim must fail.
"FOIA creates only a right of access to records, not a right to
personal services." Hudgins v. Internal Revenue Service,
620 F.Supp. 19, 21 (D.D.C., 1985). Agencies are not required to
provide answers to questions initiated by the requester. DiViaio
v. Kelley, 571 F.2d 538
, 542-43 (10th Cir. 1978). FOIA demands,
absent a valid exemption, the disclosure of records to
requesters; the production or creation of explanations to
accompany these records is not the agency's responsibility.
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132
, 161-62 (1975).
The Court concludes that the OSC located and disclosed in full
all records responsive to plaintiff's FOIA request. Defendant
demonstrates the agency's compliance with the FOIA, and its
motion for summary judgment will be granted. An Order consistent
with this Memorandum Opinion will be issued separately on this
© 1992-2005 VersusLaw Inc.