UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
December 28, 2009
TIMOTHY DEMITRI BROWN, PLAINTIFF,
F.B.I. ET AL., DEFENDANTS.
The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Timothy Demitri Brown filed this pro se complaint under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, against the FBI, other components of the Department of Justice ("DOJ"), and the DOJ itself. The defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or in the alternative for summary judgment under Rule 56, and Brown filed a cross-motion for summary judgment. Brown's claims regarding "federal questions" will be dismissed for lack of subject matter jurisdiction because they seek relief that is not available under the FOIA. As to Brown's FOIA claims, because two were not administratively exhausted, and there is no genuine factual dispute regarding the other and defendants are entitled to summary judgment as a matter of law, the defendants' motion will be granted. All other pending motions will be denied as moot.
At issue in this case are the defendants' responses to three FOIA requests by Brown and requests to answer what Brown characterizes as "federal questions." See Pl.'s Decl. and Response to Defs.' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Pl.'s Opp'n") at 1 (identifying three FOIA requests and two "federal questions" in dispute); Pl.'s Statement of Genuine Issues, Supplement to Plaintiff's Response ("Pl.'s Suppl.") at 1-2 (identifying two FOIA requests and two "federal questions" in dispute).*fn1 Brown sent the oldest of the disputed FOIA requests to the FBI's office in Alexandria, Louisiana (the "Alexandria Request"), and requested records pertaining to himself. Defs.' Statement of Material Facts Not in Dispute ("Defs.' Facts") ¶ 5; see Pl.'s Opp'n at 2; Pl.'s Suppl. at 1. The precise date and scope of the request are unknown, as the parties have not placed the document in the record.*fn2
The other two FOIA requests in dispute are both dated November 9, 2006. Brown sent one to the FBI headquarters in Washington. See Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Defs.' Mot."), Declaration of David M. Hardy, March 14, 2008 ("Hardy Decl.") Ex. I. He sent the other to the BOP at its South Central Regional Office in Dallas, Texas. See id., Declaration of Karen Summers, Aug. 11, 2008 ("Summers Decl.") Ex. 1. Both requests sought information relating to a book authored by the plaintiff called "Tyrant Wanted," and an investigation related to that book. See Hardy Decl., Ex. I; Summers Decl. Ex. 1.
The record in this case does not reveal any actual FOIA requests related to "federal questions." Nonetheless, Brown mentions the questions in the complaint and his submissions opposing the defendants' dispositive motion. The "federal questions" Brown asks are whether the federal government "exercised exclusive legislative jurisdiction over the property located at 3708 Third Street, Alexandria, Louisiana on or before May 31, 2001[,]" and what is "the legal status of 21 U.S.C. §§ 841 and 846," prohibiting trafficking in controlled or counterfeit substances, and engaging in a narcotics conspiracy. Pl.'s Opp'n at 4; Pl.'s Suppl. at 2-3.
The defendants move under Rule 12(b)(6) to dismiss for failure to state a claim or alternatively move under Rule 56 for summary judgment. Brown likewise seeks summary judgment.
A FOIA claim should be dismissed if the plaintiff did not exhaust his administrative remedies before filing suit. Hidalgo v. FBI, 344 F.3d 1256, 1258-60 (D.C. Cir. 2003) (teaching that a plaintiff who has not exhausted his administrative remedies has failed to state a claim upon which relief may be granted). Here, because both parties have submitted declarations in support of their positions with respect to the pending dispositive motions, the motions will be analyzed as ones made under Rule 56. See Fed. R. Civ. P. 12(d) (requiring a motion made under Rule 12(b)(6) to be treated as one under Rule 56 if matters outside the pleadings are considered). A motion under Rule 56 must be granted if the pleadings and evidence on file show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A material fact is one that is capable of affecting the outcome of the litigation. Id. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id. at 247, as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. In considering whether there is a triable issue of fact, a court must draw all reasonable inferences in favor of the non-moving party. Id. at 255. The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 248; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (stating that a genuine issue is one that would permit a reasonable jury to find in favor of the non-moving party). The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).
An agency is entitled to summary judgment if it demonstrates that no material facts are in dispute and that it conducted a search of records in its custody or control, Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-51 (1980), that was reasonably calculated to uncover all relevant information, Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), which either has been released to the requestor or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To show that its search "us[ed] methods which can be reasonably expected to produce the information requested," Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see also Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), the agency may submit affidavits or declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations reflecting a search reasonably calculated to uncover all relevant information are sufficient to demonstrate an agency's compliance with the FOIA. Perry, 684 F.2d at 127. A search need not be exhaustive, Miller v United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985), and the adequacy of a search is not determined by its results, but by the method of the search itself. Weisberg, 745 F.2d at 1485. An agency's failure to find a particular document does not necessarily indicate that its search was inadequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).
A. The Alexandria Request
"FOIA requires agencies to make records available in response to any request 'made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.'" Church of Scientology of California v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (quoting 5 U.S.C. § 552(a)(3)(A)); accord Moayedi v. U.S. Customs and Border Protection, 510 F. Supp. 2d 73, 81 (D.D.C. 2007) (stating that "the FOIA requires that a request be made in accordance with the agency's published FOIA rules") (internal alterations and quotation marks omitted). The DOJ publishes regulations that tell a requester how to make and where to send a FOIA request. That regulation provides in pertinent part as follows:
In most cases, your FOIA request should be sent to [the DOJ] component's central FOIA office. For records held by a field office of the . . . FBI, however, you must write directly to that FBI . . . field office address, which can be found in most telephone books or by calling the [FBI's] central FOIA office. If you cannot determine where within the Department to send your request you may send it to the FOIA/PA Mail Referral Unit, Justice Management Division, U.S. Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC 20530-0001. That office will forward your request to the component(s) it believes most likely to have the records that you want.
28 C.F.R. § 16.3(a). Here, Brown did not send his Alexandria Request either to the FOIA/PA Mail Referral Unit or to an FBI field office, but to the FBI's Alexandria, Louisiana office, which is not identified in the applicable regulation and is not an FBI field office. See Defs.' Reply at 2-3. Thus, Brown's Alexandria Request did not comply with "the statutory command that [FOIA] requests be made in accordance with published rules." Church of Scientology of California, 792 F.2d at 150. As such, the Alexandria Request did not constitute a proper FOIA request and did not trigger an agency's obligation to respond. As Brown never properly initiated, let alone exhausted, the FOIA administrative process, he is not entitled to maintain a civil action with respect to the Alexandria Request.
Notwithstanding the fact that the Alexandria Request was not a proper FOIA request, the FBI's New Orleans Office conducted a search that located responsive records in a main file numbered 245F-NO-62649, a file in a "pending investigative status." See Hardy Decl. ¶ 47. By letter dated November 29, 2001, the New Orleans Office informed Brown that it had located responsive records that were "being withheld in their entirety" as investigatory material under 5 U.S.C. § 552(b)(7)(A) and 5 U.S.C. § 552a(j)(2). Id., Ex. D (noting that subsection (j)(2) pertains to "material reporting investigative efforts pertaining to enforcement of criminal law including efforts to prevent, control or reduce crime or apprehend criminals, except records of arrests," and that subsection (b)(7)(A) applies to "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings"). The letter also informed Brown that he could appeal the determination within 60 days. Id. The defendants have no record that Brown ever administratively appealed this response. See Hardy Decl. ¶ 47.
Brown, on the other hand, contends that he never received a response to his Alexandria Request. Pl.'s Opp'n at 2. He also contends that by letter dated August 17, 2002, he appealed the non-response. Pl.'s Opp'n at 2. This construction of events is not supported by the record. Plaintiff's August 17, 2002 letter appeals not from a non-response, but specifically appeals from a response that cited FOIA exemptions (b)(6) and (b)(7)(C). See Hardy Decl., Ex. F. Brown also asserts that another letter in the record constitutes Brown's appeal with respect to the alleged non-response to the Alexandria Request. See Pl.'s Opp'n at 2; Hardy Decl., Ex. G. This construction is more plausible, but still problematic. The whole of the text of that letter, which is not dated, states as follows:
This is a follow-up on Request for Administrative review of denial of information from Federal Agency. (F.B.I. Alexandria, La.). As of the above date I have not received a response from you. Therefore I am requesting immediate delivery of the information requested. If I have not received the information by 9/17/02, I will con[s]ider it another denial of my request, and the exhaustion of administrative remedies.
Id. There is good reason why the recipient did not understand this to be an appeal related to the Alexandria Request. First, the defendant had responded to the Alexandria Request. Second, there is nearly no information contained in the letter to indicate what request is at issue.
Apparently, because the Alexandria Request was not properly submitted and never received an identification number, the parties miscommunicated on more than one occasion. In any case, even if Brown did intend to appeal what he perceived to be a non-response to his Alexandria Request, there is no genuine dispute that Brown failed to properly submit and therefore to exhaust this request, therefore creating no obligation on the part of the defendant to disclose records under the FOIA. However, summary judgment is appropriate only if a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Because this is not an adjudication as a matter of law on the merits of defendants' response carrying any preclusive effect should Brown choose in the future to submit a proper FOIA request for the information he seeks, the motion to dismiss this claim, rather than the motion to enter summary judgment on this claim, will be granted. See Hidalgo, 344 F.3d at 1257.
B. The "Tyrant Wanted" Request to the FBI
Brown's FOIA request dated November 9, 2006 and directed to FBI headquarters in Washington, D.C., sought information regarding the investigation of the book, "Tyrant Wanted," the return of any copy of that book, a "copy of the authorization for the thief of the book by Federal Bureau of Prison employee," and "all reports, documents, tapes, video, audio or otherwise concerning the interrogation of . . . Brown about the book . . . ." Hardy Decl., Ex. I. Although an agency has 20 business days after receiving a FOIA request to determine whether it will comply with the request, see 5 U.S.C. § 552(a)(6)(A)(i), Brown attempted to appeal the FBI's non-response to this request by a letter dated only sixteen calendar days later than the date on his letter request. See Hardy Decl., Ex. J (containing a copy of Brown's November 9, 2006 FOIA request and his November 25, 2006 appeal from the "non-response to [his November 9] FOIA request"). The FBI took no action with respect to Brown's premature appeal at that time. See Hardy Decl. ¶ 18 (stating that Brown's November 25, 2006 appeal letter was acknowledged by the DOJ's Office of Information and Policy on April 20, 2007, after the FBI had reported to Brown the results of its search in response to his November 9, 2006 "Tyrant Wanted" Request).
By letter dated February 23, 2007, FBI headquarters notified Brown that it had not located any records responsive to his "Tyrant Wanted" Request. See Hardy Decl. Ex. K. The FBI headquarters' response was affirmed on administrative appeal, and Brown was so notified by letter dated July 3, 2007. See Hardy Decl. Ex. M. That letter also stated that the FBI had "found that the Houston and the New Orleans field offices might have records responsive to your request," advised Brown to "submit new requests directly to the Houston and New Orleans field offices," and provided the addresses for those offices. Id. The record does not indicate whether Brown acted on this advice. He submitted this complaint for filing on October 11, 2007. See Compl. at 1.
Brown contends that the FBI did, in fact, respond to this request by releasing responsive documents with redactions, and that he appealed the redacted portions. See Pl.'s Opp'n at 2. Brown provides no evidence to substantiate his contention. While Brown has submitted redacted documents relating to "Tyrant Wanted," see Pl.'s Affidavit and Exhibits at 5-8, there is nothing in the record to confirm that the released documents came from FBI headquarters in response to this FOIA request. Indeed, the document Brown submitted appears to be part of "File No. 89FHO-66130" in the U.S. Attorney's Office in the Eastern District of Texas, not a document maintained at FBI headquarters. Id. Moreover, Brown presents no facts to put in dispute the FBI headquarters' response that its search located no documents responsive to this request, which is described in the Hardy Declaration in detailed and nonconclusory terms. See Hardy Decl. ¶¶ 36-46, 49.*fn3 Without an issue in dispute regarding the FBI headquarters' response, and on the basis of the Hardy Declaration, the defendants are entitled to summary judgment with respect to this request.
C. The "Tyrant Wanted" Request to the BOP
By letter dated November 9, 2006, and sent to the BOP's South Central Regional Office, Brown asked under the FOIA for a copy of USP Beaumont's visitors log book for October 17, 2006, the return of all copies of the book "Tyrant Wanted," information relating to the theft of "Tyrant Wanted" by a BOP employee, and a copy of the document authorizing the theft of the book. See Summers Decl., Ex. 1. As he had with the parallel request to FBI headquarters, Brown filed an appeal by letter dated November 25, 2006 for non-response to this request. See Summers Decl., Ex. 4. It appears from the record that no action was ever taken with respect to this premature appeal. By letter dated December 4, 2006, the BOP's South Central Regional Office advised Brown that to initiate his FOIA request, he must send it to the BOP Director in Washington, D.C. See Summers Decl., Ex. 2. In December 2006, the BOP's Washington office received Brown's November 9, 2006 "Tyrant Wanted" Request and acknowledged the request by letter to Brown dated January 29, 2007. See Summers Decl. ¶ 8 & Ex. 5. By letter dated January 30, 2007, the BOP notified Brown that the only responsive documents located were two pages of the requested visitor log, which were being released in redacted version, in accordance with FOIA exemption (b)(7)(C). See Summers Decl., Ex. 6. That letter also advised Brown that he could initiate an administrative appeal of the BOP's response within 60 days. Id. Brown did not file an administrative appeal of the BOP's response. See Summers Decl. ¶ 20.
Brown "asserts that the [November 25, 2006] appeal was proper, where defendants failed to answer the request within the time allowed by the FOIA." Pl.'s Suppl. at 2. Brown's position is untenable for two reasons. First, because he had originally sent his request to an office of the BOP which did not accept FOIA requests, he had not even initiated this FOIA request at the time he sent his appeal letter on November 25, 2006. There can be no appeal from an agency response or non-response before a FOIA request has been initiated. Second, while the record in this case does not establish that the BOP responded to Brown's FOIA request to the Director within the 20 business days permitted by statute, the BOP did respond before this lawsuit was filed. Therefore, Brown was required to exhaust his administrative remedies by appealing the BOP's response prior to filing this civil action. See Oglesby v. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (concluding that "once the agency responds to the FOIA request, the requester must exhaust his administrative remedies before seeking judicial review"); Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (stating that "[i]f the agency responds to the request after the twenty-day statutory window, but before the requester files suit, the administrative exhaustion requirement still applies"). On this record, there is no genuine dispute that Brown did not submit an administrative appeal of the BOP's response to his FOIA request and therefore he did not exhaust his administrative remedies. Accordingly, as with the Alexandria Request, the motion to dismiss will be granted with respect to this request directed to the BOP.
D. The Requests with Respect to "Federal Questions"
The record in this case does not contain any FOIA request directed to any defendant in this action relating to what Brown characterizes as "federal questions." Therefore, exactly what Brown requested, or whether it was a FOIA request for documents, is unknown. The nature of Brown's submissions in this case suggests that he hoped to obtain a legal opinion. See Pl.'s Opp'n at 4 (describing the two legal questions to which he seeks a response); Pl.'s Suppl. at 2 ("Plaintiff requested the U.S. Attorney General['s] Office answer two Federal Questions. The U.S. Attorney General['s] Office did not answer either question. Petition was filed to resolve the Questions.").
Brown's pursuit of advisory legal opinions through a FOIA request is misplaced. The FOIA requires an agency to "make [requested] records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). It does not require an agency to create documents, to answer questions, or to provide legal opinions. See Coolman v. IRS, 1999 WL 675319, *7 (W.D. Mo. July 12, 1999) (finding that an agency is not required by the FOIA to answer questions, conduct research, create records, or provide legal opinions); accord Barber v. Office of Information and Privacy, Civil Action No. 02-1748 (JDB), slip. op. at 4 (D.D.C. Sept. 4, 2003) (stating that the FOIA defendant "had no duty to conduct research or to answer questions"). Thus, Brown has no right of action under the FOIA for an agency's non-response to his "federal questions." Accordingly, any claims Brown may have intended with respect to the "federal questions" will be dismissed for lack of subject matter jurisdiction.
E. The Vaughn Index
Brown requests a Vaughn index.*fn4 See Pl.'s Opp'n at 5. A FOIA plaintiff is not entitled to a Vaughn index. Rather, he is entitled to an explanation of why information was redacted or withheld, which may be conveyed in any number of ways.
[C]courts have repeatedly held that it is the function of a Vaughn index rather than its form that is important, and a Vaughn index is satisfactory as long as it allows a court to conduct a meaningful de novo review of the agency's claim of an exemption. . . .
Thus, an agency does not have to provide an index per se but can satisfy its burden by other means, such as submitting the documents in question for an in camera review or by providing a detailed affidavit or declaration.
Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006) (citing Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994)). A Vaughn index is but one way to convey the required explanation of withheld information.
Two of the three FOIA requests at issue here did not result in any documents being released to Brown. Brown received only two pages of documents, largely redacted, in response to the other FOIA request at issue. The two released pages are discussed in and appended to the Summers Declaration, which provides an explanation and justification for redacting the visitors' names from the visitor log for October 17, 2006 at USP Beaumont. See Summers Decl., ¶¶ 13-17 & Ex. 6. No more than this is required, and Brown's request for a Vaughn index under these circumstances is without merit.
The plaintiff's claims with respect to "federal questions" will be dismissed for lack of subject matter jurisdiction. His claims regarding the Alexandria and the BOP requests will be dismissed for failure to exhaust administrative remedies. Summary judgment will be entered for defendants on the remaining claim. The plaintiff's motion for summary judgment will be denied, and all other pending motions will be denied as moot. A separate order accompanies this memorandum opinion.