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Banks v. Dep't of Justice

March 23, 2009

FREDERICK BANKS, PLAINTIFF,
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' Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment.*fn1 For the reasons discussed in this Memorandum Opinion, the Court will grant defendants' motion in part and deny it in part.

I. BACKGROUND

Plaintiff filed a ten-count Complaint under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, and the Privacy Act, see 5 U.S.C. § 552a, against various government entities alleging their failure to release requested information about himself and other individuals.

On Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment [#20] ("Defs.' Mot."), the Court dismissed plaintiff's claims against the Office of Probation and the Administrative Office for United States Courts because neither is a government agency to which the FOIA and the Privacy Act applies. Banks v. Dep't of Justice, 538 F. Supp. 2d 228, 231-32 (2008). The Court granted summary judgment with respect to the Financial Crimes Enforcement Network, the United States Department of State, and the United States Postal Investigation Service ("USPIS") (March 2006 request only) because plaintiff failed to submit requests to these entities and thereby failed to exhaust his administrative remedies before filing this action. Id. at 233-35. In addition, because plaintiff did not pay fees associated with his requests to the Executive Office for United States Attorneys ("EOUSA"), the Court granted summary judgment in favor of the EOUSA because, again, plaintiff failed to exhaust his administrative remedies before filing this action. Id. at 235-37. The United States Marshals Service ("USMS") established its full compliance with the FOIA and the Privacy Act, and, therefore, the Court granted summary judgment in its favor. Id. at 239-41.

The Court denied defendants' motion in part because (1) neither the Federal Bureau of Prisons ("BOP") nor the USPIS established that its search for records responsive to plaintiff's FOIA and Privacy Act requests was reasonable. Banks, 538 F. Supp. 2d at 238-39. The Court deferred consideration of the response of the Federal Bureau of Investigation ("FBI") pending its review of records it had located by searching its Central Records System. Id. at 237 n.7.

Before the Court on defendants' Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment [#32] are pending issues regarding plaintiff's FOIA and Privacy Act requests to the FBI, the BOP, and the USPIS.

II. DISCUSSION

A. Exhaustion of Administrative Remedies

Defendants again move to dismiss all claims against the BOP, the FBI, and the USMS "due to Plaintiff's failure to satisfy his obligations to pay for the documents received from the [EOUSA], another component of the Department of Justice."*fn2 Mem. of P. & A. in Support of Renewed Mot. to Dismiss or, in the Alternative, for Summ. J. ("Defs.' Renewed Mot.") at 3. By failing to pay fees, defendants argue that plaintiff's FOIA and Privacy Act claims are subject to dismissal for failure to exhaust administrative remedies, see id. at 3-6, as "[e]xhaustion does not occur until the required fees are paid or until an appeal is taken from the refusal to waive fees." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 66 (D.C. Cir. 1990).

1. Assessment and Aggregation of Search and Duplication Fees

Regulations promulgated by the United States Department of Justice ("DOJ") specify, among other things, "the schedule of fees applicable to the processing of requests... and... the procedures and guidelines for determining when such fees should be waived or reduced." 5 U.S.C. § 552(a)(4)(A)(i); see 28 C.F.R. § 16.1 et seq. For purposes of these regulations, the term "component" means "each separate bureau, office, board, division, commission, service, or administration of the Department of Justice," 28 C.F.R. § 16.1(b), and the EOUSA, FBI and BOP are DOJ components. See 28 C.F.R. § 0.1 (setting forth DOJ's organizational units). Requests submitted under the Privacy Act by individuals for records about themselves are processed under these regulations also. See 28 C.F.R. §§ 16.1(a), 16.40(a).

DOJ components "may charge for time spent searching even if they do not locate any responsive record or if they withhold the record(s) located as entirely exempt from disclosure," 28 C.F.R. § 16.11(c)(1)(i), and for paper photocopies, 28 C.F.R. § 16.11(c)(2). If the requester is not seeking records for a commercial purpose, "components will provide without charge: (i) [t]he first 100 pages of duplication...; and (ii) [t]he first two hours of search...." 28 C.F.R. § 16.11(d)(3). "[C]omponent[s] ordinarily shall collect all applicable fees before sending copies of requested records to a requester." 28 C.F.R. § 16.11(a); see 5 U.S.C. § 552(a)(4)(A)(v) (authorizing advance payment of a fee if "the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250").

Pursuant to 5 U.S.C. § 552(a)(6)(B)(vi), DOJ regulations also provide for the aggregation of requests:

Where a component reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the component may aggregate those requests and charge accordingly. Components may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, components will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated. 28 C.F.R. § 16.11(h). "Where a requester has previously failed to pay a properly charged FOIA fee to any component or agency within 30 days of the date of billing, a component may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before the component begins to process a new request or continues to process a pending request from that requester." 28 C.F.R. § 16.11(i)(3) (emphasis added). "In cases in which a component requires advance payment or payment due under [28 C.F.R. § 16.11(i)(3)], the request shall not be considered received and further work will not be done on it until the required payment is received." 28 C.F.R. § 16.11(i)(4).

2. Requests to the EOUSA

To place the defendants' exhaustion argument in context, one must recall plaintiff's FOIA and Privacy Act requests to the EOUSA. Relevant to this discussion is his January 4, 2005 request for "all records under the FOIA/PA maintained by [the EOUSA] on himself and an entity... identified as Vampire Nation."*fn3 Notice of Filing [#23], Declaration of John F. Boseker ("Boseker Decl.") ¶ 4.

Plaintiff asked that searches be performed in the Western District of Pennsylvania ("USAO/WDPA"), the District of Columbia, the Northern District of Ohio, the District of Colorado, the Eastern District of California, and the Middle District of Florida. Boseker Decl. ¶ 4. Because plaintiff asked the EOUSA to "perform searches in multiple USAOs," id., the EOUSA "created multiple files to reflect the several searches to be performed." Id. ¶ 6. Plaintiff's request to the USAO/WDPA for all information about himself in criminal files was assigned FOIA No. 05-61, ...


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