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Wheeler v. Executive Office of U.S. Attorneys

January 17, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This case provides insight into how the Government should not conduct itself in response to a FOIA request. Plaintiff Vyron Wheeler, initially proceeding pro se but eventually represented by counsel, filed suit against Defendant Executive Office of U.S. Attorneys ("EOUSA") to obtain records related to his criminal conviction. Currently pending before the Court is Defendant's Motion for Leave to Respond to Plaintiff's Sur-Reply and the Parties' Cross-Motions for Summary Judgment. After thoroughly reviewing the Parties' submissions and the attachments thereto, applicable case law and statutory authority, and the record as a whole, the Court shall grant Defendant's [65] Motion for Leave to Respond to Plaintiff's Sur-Reply, grant Plaintiff's [35] Motion for Summary Judgment, and grant in part and deny in part Defendant's [48] Motion for Summary Judgment, for the reasons that follow.


This case has a lengthy history, but resolution of the remaining issues requires a fairly detailed recitation of the facts that led to its present posture.*fn1

A. Plaintiff's Requests for Records

On April 24, 2004, Plaintiff submitted a request to the Department of Justice pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (hereinafter "FOIA"), and the Privacy Act, 5 U.S.C. § 552a. Plaintiff requested "full disclosure and release of all records and/or data contained in the files of [the] agency, and specifically under [his] name and/or an identifier assigned to [his] name," in addition to several related but more specific categories of documents. Compl., Ex. 1 at 1-3 (April 2004 Request) ("hereinafter "First Request"). Plaintiff agreed to allow Defendant to redact from the records any third party identifying information if deemed necessary. See Id. at 4 ("[i]f it should be determined that any material be deemed CONFIDENTIAL due to identification of source, the permission is granted to Agency to delete source identification ONLY from the material for release").

Marie A. O'Rourke, Assistant Director of the EOUSA Freedom of Information/Privacy Act Unit, responded to Plaintiff in a letter dated July 26, 2004. See Compl., Ex. 4 at 1 (July 2004 EOUSA Response). Ms. O'Rouke indicated that Plaintiff's request would be processed, but that "Project Requests," which include requests for "all information about myself in criminal case files," may take up to nine months to complete. Id. Ms. O'Rouke sent Plaintiff a second letter on September 16, 2004, stating that "[d]ue to the large number of requests received by the [EOUSA] and the limited resources available to process such requests, this office has been unable to process your request as of this date." Compl., Ex. 6 at 1 (September 2004 EOUSA Response).

Plaintiff filed an appeal on September 15, 2004 (presumably not yet having received the second letter from Ms. O'Rourke), indicating that he believed Ms. O'Rourke's July 2004 response constituted a denial of his request. Compl. Ex. 5 at 1 (September 2004 Appeal). Richard L. Huff, Co-Director at the Office of Information and Privacy sent Plaintiff a letter dated November 3, 2004, explaining that "the EOUSA is still processing your request. Although the Act authorizes you to treat the failure of the EOUSA to act on your request within the specified time limit as a denial thereof, this Office, because it lacks the personnel resources to conduct the record reviews that are necessary to make initial determinations on requests for records, cannot act until there has been an initial determination by the EOUSA." Compl., Ex. 7 at 1 (November 2004 Letter).

Plaintiff thereafter filed a second FOIA/Privacy Act request, described by Plaintiff as a "specified request," on November 15, 2004. Compl., Ex. 8 at 2 (November 2004 Request) (hereinafter "Second Request"). This Second Request sought "witnesses payment vouchers" in order "to ascertain whether public money was properly expended in MY criminal case F1386-96 United States [v.] Vyron Wheeler." Id. at 2. Plaintiff specifically requested "[t]he information, records with dollar amounts of all witnesses, including expert witnesses, friends, relatives of and standby witnesses who were paid with Government payment vouchers in case No. F1386-96 United States [v.] Vyron Wheeler." Id. at 3. Plaintiff again indicated that the agency could redact any third party identifying information in the requested documents. See Id. at 3-4 ("[i]f it should be determined that any material be deemed CONFIDENTIAL due to identify of source, the permission is granted to Agency to delete source identification "ONLY" from the material for release . . .").

Ms. O'Rourke responded to Plaintiff's Second Request on November 19, 2004, explaining that the nature of Plaintiff's Second Request for third-party documents precluded Defendant from even searching for such documents: "Records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of your request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records." Compl., Ex. 9 at 1 (December 2004 Denial). The letter also included a "Glomar" response, refusing to confirm or deny the existence of responsive records: "[w]e have not performed a search for records and you must not assume that records concerning a third party exist."*fn2 Id.

On January 28, 2005, Plaintiff submitted an appeal of Defendant's December 2004 denial. Compl., Ex. 10 at 1 (January 2005 Appeal). Plaintiff specifically agreed "that private personal information can be harmful and in some cases should not be released . . . as specified [in Plaintiff's FOIA request, the] agency may delete source information . . . [Plaintiff is] not interested in the witnesses [sic] information only in the amount paid by stipen/voucher [sic]." Id. at 2. Defendant sent letters to Plaintiff on February 14, 2005 and April 7, 2005 indicating that resolution of his appeal was forthcoming but subject to delay because of a backlog. See Compl., Ex. 11 (Feb. 2005 Response) and 12 (April 2005 Response). Plaintiff filed the instant Complaint on June 7, 2005.

B. Procedural History

Defendant filed a Motion for Summary Judgment on November 28, 2005. Believing that Plaintiff's First Request had been superceded by his Second Request for document related to witness vouchers and related payments, see Def.'s Mot. for Summ. J. at 1 ("[r]elevant here, plaintiff requested information on witnesses' payment vouchers related to his trial"), Defendant argued that it was entitled to summary judgment because Plaintiff failed to "submit releases from the third parties who are the subject of his FOIA request and failed to present a public interest argument favoring disclosure notwithstanding third party privacy interests." Id. Defendant's Motion did not address Plaintiff's repeated assertions that Defendant could redact the third-party information, nor did Defendant raise any justification for its "Glomar" response (which apparently led Defendant to believe that it had no obligation to search for responsive documents).

Plaintiff filed his Opposition on January 30, 2006, arguing that he had not abandoned his First Request for documents, and that Defendant had failed to justify its withholding of documents responsive to his Second Request. See Pl.'s Opp'n at 1-5. Plaintiff again reiterated that he was not seeking to obtain any third party identities, and that Defendant could redact information related to the same. See Pl.'s Opp'n, Ex. 2 ΒΆΒΆ 18, 22 (Decl. of V. Wheeler dated Jan. 18, 2006). Plaintiff also filed a Cross-Motion ...

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