The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff Joe Wilson, Jr., is an employee at the Federal Highway Administration ("FHWA"), an agency within the U.S. Department of Transportation ("DOT"). Armed with the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Mr. Wilson has peppered DOT with requests for documentation arising from employee surveys in 2007 and 2008 and all harassment, discrimination, and Equal Employment Opportunity ("EEO") complaints directed at the Office of the Chief Financial Officer ("OCFO")*fn1 . Frustrated by DOT's responses, Mr. Wilson filed suit, alleging that DOT improperly withheld responsive documents. DOT moves to dismiss or, alternatively, for summary judgment. See Def.'s Mem. in Support of Mot. for Summ. J. [Dkt. # 5] ("Def.'s Mem."). The Court will grant DOT summary judgment in that Mr. Wilson failed to exhaust administrative remedies as to two FOIA requests at issue in this matter and because DOT satisfied its obligations under the FOIA with respect to the other two requests.
Mr. Wilson has submitted numerous FOIA requests to the FHWA, a component of DOT. Under the FHWA's decentralized FOIA process, the office that actually possesses requested records has the authority to issue an initial determination on what to release in response to a FOIA request. The Office of Information and Management Services is responsible for logging, tracking, and assigning FOIA requests within the FHWA. The Associate Administrator for Administration ("FOIA Appeals Official") is FHWA's FOIA official charged with handling appeals and for issuing Final Agency Decisions on the appeals. One indication of the scope of Mr. Wilson's inquiries is that he submitted seventeen appeals of initial FOIA determinations to the FOIA Appeals Official between June 19, 2009 and August 27, 2009.
A. FOIA Request No. 2009-0081
In an email message dated November 19, 2008, Mr. Wilson submitted a FOIA request to the FHWA FOIA officer for "the surveys taken for the Office of the Chief [sic] Financial Officer (OCFO)." Def.'s Mem., Ex. 1 (Nov. 19, 2008 Email). This was one of multiple emails from Mr. Wilson requesting records under FOIA at approximately the same time, so a FOIA officer responded via email on November 20, 2008, outlining the requests and seeking clarification as to their scope. In a letter dated November 20, 2008, FHWA notified Mr. Wilson that his request for "the 2008 All Employee Survey taken for the Office of the Chief Financial Officer" was docketed as FOIA Request No. 2009-0081. Def.'s Mem., Ex. 3 (Nov. 20, 2008 FHWA Letter). The letter also indicated that Mr. Wilson's request was being forwarded to the FHWA's Office of Human Resources Management ("Human Resources") as any responsive records would likely be held there. The All Employee Survey attempts to collect data on employee satisfaction in areas such as job quality, job satisfaction, learning opportunities, development, management, and other topics. The survey is anonymous and purely voluntary.
By letter dated January 16, 2009, FHWA provided Mr. Wilson with the results of the survey for OCFO, as well as the Executive Summary of the survey, and the results for FHWA as a whole. The documents were released without redactions. The letter also informed Mr. Wilson of his right to appeal the decision to the FOIA Appeals Officer, where the appeal should be directed, and the deadline for appealing the decision. Mr. Wilson did not appeal.
B. FOIA Request No. 2009-0157
On February 19, 2009, Mr. Wilson submitted another FOIA request to the FHWA by email. He wrote: "Attached is an email regarding the 07 survey. Please provide the complete survey including the comments." Def.'s Mem., Ex. 5 ("Wilson & Kreischer Email Exchange I"). Jeb Kreischer, the FOIA liaison, responded by email later that day asking: "Are you asking for the raw data related to the responses to the All Employee Survey (including any comments) that were submitted by employees of the Office of the Chief Financial Officer?" Id. Mr. Wilson replied: "Yes indeed Jeb. The raw data, the summaries, the comments, etc - the entire package." Id. In an acknowledgment letter dated February 20, 2009, the FHWA notified Mr. Wilson that his request for the raw data, and comments, from the 2007 All Employee Survey for employees of the OCFO was assigned FOIA Request No. 2009-0157, and that the request had been forwarded to Human Resources for review and response.
Through an email exchange with Mr. Kreischer, Mr. Wilson narrowed this request on March 24, 2009, to include only employee "written comments" after the results of the 2007 survey became available on the FHWA's intranet. Def.'s Mem., Ex. 7 (Wilson & Kreischer Email Exchange II). Human Resources conducted a search for responsive records, but employee comments from the 2007 All Employee Survey were only segregated based on the employee location at either (1) headquarters, (2) field offices, or (3) federal lands offices. To ensure confidentiality, the written employee comments had not been further distilled to show originating office. Because the FHWA had no documents that separated, or even identified, comments from OCFO employees, as opposed to all employees within DOT headquarters, Human Resources informed Mr. Wilson by letter that there were no records responsive to his request.
Mr. Wilson appealed the determination by email on June 13, 2009. In a follow-up email, Mr. Wilson, misunderstanding the FHWA's explanation for its denial, argued that he did not understand why separating comments to avoid personal identifiers was at issue since he only requested anonymous comments. By letter dated August 18, 2009, the FOIA Appeals Official issued a Final Agency Decision for FOIA Request No. 2009-0157.*fn2 The FOIA Appeals Official interpreted Mr. Wilson's appeal to cover both the scope and the reasonableness of the initial search and found that both satisfied the FHWA's FOIA obligations. The FOIA Appeals Official found that Mr. Wilson clarified, in his email exchange with Mr. Kreischer, that the scope of his request was limited to comments from employees in the OCFO, which were anonymous and could not be distinguished from comments of other headquarters' employees. Therefore, despite a reasonable search, the FHWA acted properly as responsive records did not exist. The FOIA Appeals Official noted that Human Resources "in fact went beyond the requirements for compliance with the FOIA by making a good faith effort to explain the reason no responsive records in connection with your request were located." Def.'s Mem., Ex. 10 (Aug. 18, 2009 Final Agency Decision).
C. FOIA Request No. 2009-0087
On or before November 19, 2008, Mr. Wilson requested OFCO records concerning all complaints of harassment, all complaints of discrimination, and all EEO complaints made within the past five years. In a November 20, 2008 email, FHWA acknowledged the request and indicated that it had been assigned FOIA Request No. 2009-0087. By letter dated November 20, 2008, FHWA also notified Mr. Wilson that his request would be forwarded to Human Resources for review and response. The letter explained that the request was interpreted to be seeking "information pertaining [to] harassment, discrimination and EEO complaints against the Office of the Chief Financial Officer." Def.'s Mem., Ex. 11 (Nov. 20, 2008 FHWA Letter). By letter dated January 16, 2009, Human Resources responded to several of Mr. Wilson's FOIA requests at once. As to FOIA Request No. 2009-0087, the letter informed Mr. Wilson that there had been three formal complaints originating in the OCFO in the past five years. However, Human Resources explained that the information in a formal EEO complaint is confidential, so no documents would be released. The letter also informed Mr. Wilson of his right to appeal the decision to the FOIA Appeals Officer, where the appeal should be directed, and the deadline for appealing the decision. Mr. Wilson did not appeal.
D. FOIA Request No. 2009-0237
On April 21, 2009, Mr. Wilson emailed a FOIA request to the FHWA requesting "complaints from OCFO employees to the EEO/Civil Rights Office." Def.'s Mem., Ex. 12 ("April 21, 2009 FOIA Request"). Specifically, Mr. Wilson sought "records of all EEO complaints from the OCFO held in the Office of Civil Rights/EEO." Id. (second emphasis added). He requested that the FHWA provide "at minimum the date, nature, resolution proposed, action taken, and current status" of relevant complaints. Id. As the FHWA did not confirm receipt of the FOIA request, Mr. Wilson resubmitted it on May 8, 2009. In his follow up email, Mr. Wilson requested that the original request be expanded to include all complaints from Human Resources employees to the EEO/Civil Rights Office as well. By a letter dated May 8, 2009, the FHWA confirmed receipt of the request seeking "detail[ed] information regarding EEO complaints," assigned it FOIA Request No. 2009-0237, and informed Mr. Wilson that any responsive records would likely be in the FHWA Office of Civil Rights so his request had been transferred there for review and action. Def.'s Mem., Ex. 13 (May 8, 2009 FHWA Letter).
By letter dated June 11, 2009, the FHWA Office of Civil Rights responded to FOIA Request No. 2009-0237, informing Mr. Wilson that the information requested was not maintained at that particular office, but instead might be found in the Departmental Office of Civil Rights, within the Office of the Secretary of Transportation. The letter explained that once a complainant decides to initiate a formal EEO complaint, all information held by the FHWA Office of Civil Rights relating to the matter is transferred to the Departmental Office of Civil Rights.*fn3 The letter suggested that Mr. Wilson may want to submit a separate FOIA request to the Office of the Secretary of Transportation and included the contact information for that office. The letter also explained Mr. Wilson's right to appeal the FHWA's determination.
Mr. Wilson appealed the response by email dated June 14, 2009.*fn4 In response, on October 29, 2009, the FHWA Office of Civil Rights conducted a new search for responsive records to include "all open and closed pre-complaint files maintained in the FHWA Office of Civil Rights." Def.'s Mem., Attach. 22 (Decl. of Brenda Armstead) ¶ 6. Ms. Armstead, an Equal Opportunity Specialist at the FHWA, explains:
FHWA Office of Civil Rights maintains pre-complaint files. If FHWA Office of Civil Rights is unable to resolve a dispute during the pre-complaint process, then the employee is provided with a Notice of Right to File a Discrimination Complaint. The Departmental Office of Civil Rights in the Office of the Secretary (OST) is the only office with authority to accept a formal EEO Discrimination Complaint.
The files searched did not contain copies of formal EEO complaints because complaint files are held in the Departmental Office of Civil Rights in [the ...