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Harrington v. Dep't of Justice

February 27, 2007


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. Having reviewed the motion, plaintiff's opposition, and the entire record of this case, the Court will grant summary judgment for defendant.


In March 2000, plaintiff sent a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the Executive Office for United States Attorneys ("EOUSA"), a component of the United States Department of Justice. Complaint ("Compl.") ¶ 5. He requested information pertaining to "a criminal case that has led to [his] current term of incarceration." Mem. of P. & A. in Support of Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mot."), Decl. of John F. Boseker ("Boseker Decl."), Ex. A (March 5, 2000 letter to Suzanne Little, FOI/PA Section, EOUSA) at 1. He then referred to "District Court docket number [] CR94-455-JET, out of the Western District of Washington." Id. In addition, he asked that files under the names of 13 individuals listed in his letter be "reviewed for pertinent records." Id. EOUSA staff divided the request into two parts -- one pertaining to plaintiff (FOIA No. 00-871 (Self)) and the other pertaining to the listed individuals (FOIA No. 00-874).*fn1 Compl. ¶ 6; Boseker Decl. ¶ 7. EOUSA denied plaintiff's request for records about the third parties under Exemptions 6 and 7(C). Id. The request for information about himself was considered a "project request," which could result in a nine-month processing time period unless plaintiff narrowed his request to specific items. Id.

In April 2000, plaintiff sent a letter to EOUSA requesting all records about himself and about the late Kenneth Rogers Towne.*fn2 Compl. ¶ 5; Boseker Decl. ¶ 8 & Ex. C (April 3, 2003 FOIA request). Again, EOUSA staff divided his request into two parts, assigning FOIA No. 00-1820 (Self) to the request for records about himself and assigning FOIA No. 00-1821 (Towne) to the request for records about Mr. Towne.*fn3 Boseker Decl. ¶ 9. In June 2001, EOUSA notified plaintiff that it had not located any records in the United States Attorney's Office for the Western District of Washington ("USAO/WDWA") pertaining to Mr. Towne. Compl. ¶ 7; Bosker Decl. ¶ 11.

There was an unexplained delay in the EOUSA's receipt of records from the USAO/WDWA. Boseker Decl. ¶ 12. Plaintiff filed the instant civil action on January 30, 2006.

See Compl.*fn4 At some point "following the commencement of [the instant civil] action, EOUSA located records pertaining both to plaintiff and to Mr. Towne. Boseker Decl. ¶ 12.

In response to FOIA Nos. 00-871 and 00-1820, EOUSA released to plaintiff 35 pages in full and 37 pages in part and withheld 78 pages in full.*fn5 Boseker Decl. ¶ 13 & Ex. E (March 27, 2006 letter from W.G. Stewart II, Acting Assistant Director, Freedom of Information/Privacy Act Staff, EOUSA). Information was withheld under FOIA Exemptions 3, 5, 7(C), and 7(D). Id. EOUSA's written response also informed plaintiff that the agency had referred 915 pages of records and four audio tapes to the Drug Enforcement Administration and had referred 150 pages of records to the United States Marshals Service. Id. ¶ 15. These agencies were to respond to plaintiff directly. Id. In addition to these records, EOUSA notified plaintiff that there were roughly 2,400 pages of public records responsive to his request, and that these records were available upon request, subject to a copying fee of $.10 per page. Id. ¶ 16 & Ex. E.

Plaintiff's response, among other things, requested a fee waiver. Boseker Decl. ¶ 17 & Ex. G at 3 (April 12, 2006 letter to EOUSA, Freedom of Information/Privacy Act Staff). EOUSA denied the fee waiver request and assessed a copying fee of $264.90 to be paid in full before the release of the public records.*fn6 Id., Ex. H (June 12, 2006 letter from J.F. Boseker, Attorney Advisor, FOIA/PA Unit, EOUSA). The fee was due within 30 days of the EOUSA's letter, and, if plaintiff failed to make the payment timely, he would "be deemed not to have made a FOIA/PA request to [EOUSA]." Id., Ex. H at 2.

There is no dispute that plaintiff has failed to pay the assessed copying fee. In this action, plaintiff alleges that EOUSA has improperly withheld the requested records, Compl. ¶ 12, and he demands their release in full. Defendant moves to dismiss or, in the alternative, for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies before filing this action. See Def.'s Mot. at 2-5.


A. Summary Judgment Standard

To obtain summary judgment in a FOIA action, an agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact with regard to the agency's compliance with the FOIA. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). The Court may award summary judgment based solely on the information provided in affidavits or declarations when they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and ...

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