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Banks v. Dep't of Justice

March 16, 2008

FREDERICK BANKS, PLAINTIFF,*FN1
v.
DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment.*fn2 The motion will be granted in part and denied in part without prejudice.

I. BACKGROUND

Plaintiff brings this action pursuant to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, and the Privacy Act, see 5 U.S.C. § 552a. Generally, he alleges that the federal government entities to which he submitted requests in 2004, 2005, and 2006 for information about himself either released no records or released only a portion of the records he sought. See Compl. at 2 (page numbers designated by the Court).

Due to the large number of FOIA and Privacy Act requests and federal agencies involved in this case, the Court departs from its usual format. Rather than setting forth the chronology of each agency's receipt and handling of plaintiff's request, relevant background facts are set forth with the discussion of a particular issue.

II. DISCUSSION

A. Defendants' Motion to Dismiss

Defendants move to dismiss Counts Seven, Eight, Eleven and Twelve on the ground that neither the United States Probation Office nor the Administrative Office for United States Courts is subject to FOIA and the Privacy Act. See Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss Or, in the Alternative, for Summary Judgment ("Defs.' Mot.") at 29-30. The Court agrees.

The term "agency" as defined for purposes of FOIA and the Privacy Act expressly excludes the courts of the United States. See 5 U.S.C. §§ 551(1)(B), 552(f)(1). The phrase "courts of the United States" is interpreted such that this exemption applies to the entire judicial branch of government. See Washington Legal Found. v. United States Sentencing Comm'n, 17 F.3d 1446, 1449 (D.C. Cir. 1994). The United States Probation Office is an arm of the federal courts. Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003). As such, it is not subject to FOIA and the Privacy Act and plaintiff's claims against it cannot be maintained. DeMartino v. Fed. Bureau of Investigation, 511 F. Supp. 2d 146, 148 (D.D.C. 2007) (dismissing FOIA and Privacy Act claims against Probation Office which, "[a]s a court unit . . . is not subject to the requirements of the FOIA and Privacy Act); Callwood v. Dep't of Prob. of the Virgin Islands, 982 F. Supp. 341, 343 (D.V.I. 1997) (concluding that Department of Probation is not an agency subject to the Privacy Act). Likewise, the Administrative Office of the United States Courts is an arm of the federal courts and therefore is not subject to FOIA and the Privacy Act. See Chambers v. Div. of Prob., Admin. Office of U.S. Courts, No. 87-0163, 1987 WL 10133, at *1 (D.D.C. Apr. 8, 1987) (dismissing Privacy Act complaint as to the Division of Probation, Administrative Office of the United States Courts). It matters not, as plaintiff argues, that the Administrative Office of the United States Courts "is not a court itself." Pl.'s Opp'n at 3.

Defendants' motion to dismiss Counts Seven, Eight, Eleven and Twelve will be granted.

B. Defendants' Motion for Summary Judgment

1. Summary Judgment Standard

A motion for summary judgment is granted 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 affidavits or documentary evidence to the contrary. 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 those 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). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

2. Failure to Exhaust Administrative Remedies

"Exhaustion of administrative remedies is generally required before seeking judicial review" under FOIA. Wilbur v. Central Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam). Exhaustion allows "the agency [] an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Id. (quoting Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). It is not a jurisdictional requirement, Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1258 (D.C. Cir. 2003), but instead is a prudential consideration. Wilbur, 355 F.3d at 677. If a requester has not exhausted his administrative remedies prior to the filing of a civil action, his claim is subject to dismissal. See Hidalgo, 344 F.3d at 1258. Similarly, a Privacy Act requester must exhaust administrative remedies before bringing suit against an agency for access to agency records pertaining to him. See Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990).

An agency may assess fees for the search for and duplication of documents requested under FOIA, and may require advance payment before processed records are released. 5 U.S.C. § 552(a)(4)(A). "Exhaustion [of administrative remedies] does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees." Oglesby, 920 F.2d at 66; Trueblood v. Dep't of the Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996). Commencement of a civil action pursuant to FOIA does not relieve a requester of his obligation to pay any required fees. See Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.), cert. denied, 516 U.S. 843 (1995); Trueblood, 943 F. Supp. at 68-69.

i. Neither the Financial Crimes Enforcement Network Nor the Department of State Received a FOIA or Privacy Act Request From Plaintiff

Defendants argue that plaintiff cannot maintain his claims against the Financial Crimes Enforcement Network ("FinCEN") and the United States Department of State because he failed to exhaust his administrative remedies before filing suit. See Defs.' Mot. at 3.

FinCEN is a component of the United States Department of the Treasury. Defs.' Mot., Declaration of Gregory Smith ("Smith Decl.") ¶ 1. It maintains both a paper copy and an electronic index of each FOIA and Privacy Act request it receives. Id. ¶¶ 4-5. The paper copies are maintained in file rooms and the requests are arranged chronologically by the tracking number assigned to each request. Id. ¶ 5. The electronic index is searched using the requester's name. Id. ¶ 4. The declarant states that he searched FinCEN's "electronic index using the computer inquiry software and the collection of papers by searching alphabetically through the papers for the [plaintiff's] name[]," and the search yielded no record of FinCEN's receipt of any FOIA or Privacy Act request from plaintiff. Id.

The United States Department of State's Office of Information Programs and Services ("IPS") receives, acknowledges, and processes requests for State Department records, including requests made pursuant to FOIA and the Privacy Act. Defs.' Mot., Declaration of Margaret P. Grafeld ("Grafeld Decl.") ¶¶ 1-2. "IPS maintains an automated case tracking system which assigns case control numbers to, and tracks the status of, all FOIA and Privacy Act requests received by IPS." Id. ¶ 5. Staff log each request into the tracking system and include such ...


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