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Kumar v. United States Dep't of Justice

February 16, 2007


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


This matter is before the Court on defendants' motion for summary judgment. Having considered the motion, plaintiff's opposition, and the entire record of this case, the Court will grant summary judgment for defendants.


In October 2002, plaintiff submitted a request under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to the United States Department of Justice, Executive Office for United States Attorney ("EOUSA"), for information pertaining to his criminal case. Complaint ("Compl.") ¶¶ 3-4 & Appendix ("App.") 1 (FOIA request). Specifically, plaintiff requested:

access to the file in [Case No. 1:96-CR-20-R] in which I was convicted in the Western District Court of Kentucky on about Feb[.] 28, 1997

Id., App. 1. The EOUSA construed the request as one "for all files in the possession of the United States Attorney's Office for the Western District of Kentucky (USAO/KYW) relating to the Requester's prosecution in United States v. Suresh Kumar, et al., Criminal Action No. 1:96-CR-0020 (W.D. Ky.)." Defendants' Memorandum in Support of Motion for Summary Judgment ("Defs.' Mot."), Declaration of Anthony J. Ciccone ("Ciccone Decl.") ¶ 7. The EOUSA designated plaintiff's request as Request Number 02-3652, and acknowledged its receipt by letter. Id. ¶ 8 & Exhibit ("Ex.") 2 (November 21, 2002 letter from M. O'Rourke, Assistant Director, FOIA/Privacy Act Unit, EOUSA). The letter notified plaintiff that a request of this nature is a "Project Request" and that the agency may take nine months to process it. Id., Ex. 2.

The EOUSA denied plaintiff's request in full, relying on FOIA Exemptions 3, 5, 7(A), 7(C), and 7(D).*fn1 Compl. ¶ 5 & App. 3 (July 29, 2003 letter from M. O'Rourke). Plaintiff filed an administrative appeal of this determination, and the matter was remanded to the EOUSA for further processing. Id. ¶¶ 6-8 & App. 6 (February 27, 2004 letter from R.L. Huff, Co-Director, Office of Information and Privacy). As of the time of the filing of this action, the EOUSA had not made a decision on remand. Id. ¶ 10.

The EOUSA estimated that a search for records responsive to plaintiff's FOIA request would take 21.5 hours to complete. Ciccone Decl. ¶¶ 23-24. The first two hours of search time were free, and the cost of the estimated 19.5 additional hours, billed at a rate of $28 per hour, totaled $546.*fn2 Id. ¶ 24. The EOUSA notified plaintiff of his obligation to pay $546 in advance before the agency would continue processing his request. Id., Ex. 10 (May 18, 2006 letter from W.G. Stewart II, Acting Assistant Director, EOUSA). Because the EOUSA received no payment from plaintiff within 30 days of its notice, plaintiff's file was closed. Id. ¶ 25 & Ex. 11 (August 9, 2006 letter from W.G. Stewart II).

Plaintiff stated that he did not receive the EOUSA's May 18, 2006 letter regarding the payment of the processing fees. Plaintiff's Reply to Defendant's Complaint ("Pl.'s Opp'n") at 2 & Attachment ("Attach.") ("Kumar Aff.") ¶¶ 2, 15. Upon receipt of the EOUSA's August 9, 2006 letter closing plaintiff's file, plaintiff requested a waiver of the fees. Pl.'s Opp'n, Ex. 7 (August 15, 2006 letter to W.G. Stewart II). The EOUSA denied the request. Defendants' Supplemental Memorandum in Support of Motion for Summary Judgment ("Defs.' Supp."), Ex. 2 (September 13, 2006 letter from W.G. Stewart II).


A. Summary Judgment Standard

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own conflicting affidavits or documentary evidence. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).*fn3

B. The EOUSA Properly Denied Plaintiff's Request for ...

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