United States District Court, D. Columbia
November 17, 2005.
MARCUS MARTIN, Plaintiff,
COURT SERVICES AND OFFENDER SUPERVISION AGENCY, Defendant.
The opinion of the court was delivered by: JOHN BATES, District Judge
Plaintiff, a federal inmate appearing 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. Defendant has
filed a motion to dismiss. Both parties have submitted affidavits
and exhibits to support their respective positions. Since the
Court has considered matters outside the pleadings, defendant's
motion will be reviewed under the standards of Rule 56 of the
Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(b).
After reviewing the parties' filings and the applicable law, the
Court finds that the records at issue are exempt from the
relevant provisions of the Privacy Act and that the disclosure of
the requested records is not required under the FOIA. Therefore,
summary judgment will be granted in favor of defendant.
Statement of Facts
On January 13, 2005, plaintiff sent a letter to Paul Quander,
Director of the Court Services and Offender Supervision Agency
("CSOSA"), requesting "all psychological files, sessions and/or
documents" pertaining to him. Complaint ("Compl."), Exhibit
("Ex.") 7. Plaintiff had met with psychologists at both federal and District of Columbia
correctional facilities. Id. Mr. Quander informed plaintiff he
could request a copy of his records from CSOSA's FOIA officer.
Id., Ex. 5. In addition, plaintiff was advised to seek his
District of Columbia records through the D.C. Department of
On February 9, 2005, plaintiff again wrote to Mr. Quander.
Id., Ex. 2. Plaintiff alleged that there were inaccuracies in
his presentence investigation report ("PSI"), and requested that
the errors be corrected pursuant to the Privacy Act. Id. In a
letter to CSOSA's FOIA Officer dated February 15, 2005, plaintiff
requested "all information pertaining to [his] mental
health/psychological files for the time [he] was in the custody
of the [D.C. Department of Corrections]." Defendant's Motion to
Dismiss ("Deft.'s Mot."), Ex. A. On March 3, 2005, CSOSA informed
plaintiff that the agency had no records responsive to his
request. Id., Ex. B. CSOSA only maintains records on
individuals on supervised release in the District of Columbia.
Id. CSOSA suggested that plaintiff contact the D.C. Mayor's
Office. Id. From March 8, 2005 to March 30, 2005, plaintiff
sent letters to CSOSA repeating his request. Id., Ex. C.
Plaintiff filed this action on April 29, 2005. See Compl.
Thereafter, CSOSA's FOIA Office received a request from plaintiff
that corrections be made to his PSI. Deft.'s Mot., Declaration of
Renee Barley, ¶ 7. On July 5, 2005, CSOSA denied all but one of
plaintiff's requested corrections. Deft.'s Mot., Ex. D.
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(c). 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 an 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. 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. 1982)). 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).
Plaintiff brings two claims for relief. Pursuant to the Privacy
Act, plaintiff contends that defendant should amend the alleged
inaccuracies and erroneous information in his PSI. See Compl.,
¶ 8(A). The FOIA claim seeks all psychological records generated
while plaintiff was in the custody of the D.C. Department of
Corrections. Id., ¶ 8(B).
The Privacy Act requires that an agency "maintain all records
which are used by the agency in making any determination about
any individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination." 5 U.S.C. § 552a(e)(5). The
Privacy Act permits an individual to request an amendment to a
record pertaining to him and requires the agency either to
promptly correct the record or to explain its reasons for
refusing to amend. See 5 U.S.C. § 552a(d)(2). An individual may
bring a civil action if the agency declines to amend the record
or fails to maintain accurate records and the plaintiff suffers
an adverse determination as a result of the agency's decision.
5 U.S.C. § 552a(g)(1)(C). A plaintiff can recover monetary damages
if the agency's conduct was intentional or willful.
5 U.S.C. § 552a(g)(4).
To prevail on a Privacy Act claim for damages, plaintiff must
show (1) that the agency failed to maintain accurate records; (2)
that the agency's conduct was intentional or willful; and (3)
that an adverse determination was made respecting the plaintiff
due to the inaccurate record. Toolasprashad v. Bureau of
Prisons, 286 F.3d 576, 582 (D.C. 2002). Plaintiff has the burden
of proving that the agency's actions in violating the Privacy Act
were intentional or willful. Albright v. United States,
732 F.2d 181, 189 (D.C. Cir. 1984); 5 U.S.C. § 552a(g)(4). A willful
or intentional act is "an act without grounds for believing it to be
lawful, or [an act done] by flagrantly disregarding others'
rights . . . or a violation . . . so patently egregious and
unlawful that anyone undertaking the conduct should have known it
unlawful." Deters v. U.S. Parole Comm'n, 85 F.3d 655, 660 (D.C.
Defendant contends that plaintiff's PSI is a record exempt from
the Privacy Act's amendment, accuracy and damages provisions. An
agency may promulgate regulations to exempt certain systems of
records within the agency from the Privacy Act. See
5 U.S.C. § 552a(j)(2). Pursuant to this authority, PSIs in the possession of
CSOSA are exempt from the Privacy Act. See 28 C.F.R. § 802.
28(a)(1)(iii); see also White v. United States Probation
Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (Privacy Act
amendment provision not applicable to PSI). Accordingly,
plaintiff cannot bring a Privacy Act claim against CSOSA based on
its alleged failure to maintain an accurate PSI.
Defendant moves to dismiss plaintiff's FOIA claim for failure
to exhaust administrative remedies. A party must exhaust the
available administrative remedies under FOIA prior to seeking
relief in federal court. Oglesby v. Dep't of the 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). 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). 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.
Exhaustion of remedies is generally required "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,
920 F.2d at 61. The purposes and policies of the exhaustion requirement are
to prevent premature interference with agency processes, to give
the parties and the courts the benefit of the agency's experience
and expertise, and to compile an adequate record for review.
Wilbur, 355 F.3d at 677; Hidalgo, 344 F.3d at 1259.
It is an undisputed fact that plaintiff was advised of his
appeal rights by defendant. See Deft.'s Mot., Ex. B. Moreover,
plaintiff never appealed CSOSA's decision on his FOIA request.
Accordingly, plaintiff's failure to exhaust precludes judicial
review of his FOIA request.*fn1
Based on the foregoing, summary judgment will be granted in
favor of defendant. An appropriate order will accompany this
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