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IVEY v. U.S. OFFICE OF SPECIAL COUNSEL

August 31, 2005.

STEVEN IVEY, Plaintiff,
v.
U.S. OFFICE OF SPECIAL COUNSEL, Defendant.



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

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.

I. BACKGROUND

  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 instructions. Id.
  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.

  II. DISCUSSION

  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 ...


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