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Charles Miller v. United States Department of Justice

July 3, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge


This action, which is brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, is before this Court on defendant's Renewed Motion [45] for Summary Judgment. For the reasons set forth below, the motion will be GRANTED.

I. Background

On or about March 16, 2003, plaintiff sent a FOIA request to the Federal Bureau of Investigation headquarters office in Washington, D.C. ("FBIHQ") seeking information about himself including, but not limited to: "(1) arrest records, (2) investigation and/or investigatory reports, (3) reports or evidentiary and/or scientific information findings, (4) wants, warrants, and/or detainers, (5) final and closing investigation reports; and (6) any and/or all information, data, or reports not otherwise exempt by statute." Compl., Ex. A (FOIA Request). In response, on September 8, 2004, FBIHQ released 191 pages of redacted records and indicated that the redactions had been made pursuant to FOIA Exemptions 7(C) and 7(D). In addition, FBIHQ notified plaintiff that it withheld another 62 pages of records pursuant to FOIA Exemption 3.

Plaintiff unsuccessfully appealed FBIHQ's decision to the Justice Department's Office of Information and Privacy ("OIP").

Plaintiff filed this action in June 2005. His response to defendant's Motion for Summary Judgment prompted FBIHQ to conduct a second search for records responsive to his FOIA request. As a result of the second search, FBIHQ located a Bridgetown main file, and from this file promptly released 63 pages of redacted public source documents, indicating that the redactions had been made pursuant to FOIA Exemptions 1, 2, 5, 6, 7(A), 7(C), 7(D), and 7(F). Later, FBIHQ released 323 pages, out of 1,440 pages reviewed, indicating that the redactions had been made pursuant to FOIA Exemptions 1, 2, 5, 6, 7(C), 7(D), 7(E), and 7(F).

Among the responsive FBIHQ records were documents that originated in full or in part with other government agencies or other components of the United States Department of Justice ("DOJ"). These documents were referred to the DOJ's Criminal Division, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Defense Intelligence Agency ("DIA"), the Drug Enforcement Administration ("DEA"), the Department of Defense ("DOD"), the State Department, and the Department of the Army ("Army") for direct response to plaintiff. In addition, FBIHQ forwarded 312 pages of records to "another government agency for direct response to plaintiff." 4th Hardy Decl. ¶ 108. FBIHQ did not identify the agency and the record of this case does not explain the disposition of these records.*fn1

This Court granted in part and denied in part defendant's initial Motion for Summary Judgment. See Mem. Op. [41] at 56. On May 10, 2012, defendant released an additional 19 pages in their entirety and 43 redacted pages to plaintiff. Def.'s Supplement to the R. on its Renewed Mot. Summ. J. and Mot. for Final J. in its Favor ¶ 5. Defendant withheld 43 pages in their entirety, citing the Privacy Act Exemption j(2) and FOIA Exemptions 7(C), 7(D), 7(E), and 7(F). Id., Ex. X and Y.

This Court will first consider the newly-raised jurisdictional claims; second, the remaining documents on which it directed defendant to clarify its rationale for withholding; and finally, defendant's supplement to the record and new withholdings.

II. Standard of Review

Summary judgment is appropriate when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the trier of fact must view all facts, and all reasonable inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In order to defeat summary judgment, a factual dispute must be capable of affecting the substantive outcome of the case and be supported by sufficient admissible evidence that a reasonable trier of fact could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986).

An agency may be entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. See Weisberg v. DOJ, 705 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden, a defendant may rely on reasonably detailed and non-conclusory declarations. See McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983).

In a FOIA case, the court determines de novo whether an agency properly withheld information under a claimed exemption. Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). "The underlying facts are viewed in the light most favorable to the [FOIA] requester," Weisberg, 705 F.2d at 1350, and the exemptions must be narrowly construed. FBI v. Abramson, 456 U.S. 615, 630 (1982). However, courts generally defer to agency expertise in national security matters. See, e.g., Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982) (according "utmost deference" to classification affidavits); Krikorian v. Dep't of State, 984 F.2d 461, 464--65 (D.C. Cir. 1993) (acknowledging "unique insights" of executive agencies responsible for national defense and foreign relations). While the agency must not withhold information in bad faith, Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981), the affidavits submitted by the agency to demonstrate the adequacy of its response are presumed to be in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).


a. Exhaustion of Remedies

In its Renewed Motion for Summary Judgment, defendant raises for the first time the issue of plaintiff's non-payment of fees, claiming that such non-payment strips the Court of subject matter jurisdiction. Id. at 7. In response, plaintiff contends that the issue was raised "prejudicially late, and consequently waived." Pl.'s Opp. To Def.'s Renewed Mot. Summ. J. ("Pl.'s Opp.") at 15. Both parties' sweeping assertions lack adequate legal support.

Before filing a lawsuit in federal court, plaintiffs must first exhaust their administrative remedies, giving the agency "an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby v. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). "Exhaustion [of administrative remedies] does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees." Id. at 66. Exhaustion is not jurisdictional, because Congress did not unequivocally state that the judiciary is barred from hearing a decision prior to an administrative agency's decision. Hidalgo v. FBI, 444 F.3d 1256, 1258 (D.C. Cir. 2003) (citing Oglesby, 920 F.2d at 61). However, the administrative scheme of FOIA "favors treating failure to exhaust as a bar to judicial review." Id. at 1259. "[F]ailure to exhaust precludes judicial review if 'the purposes of exhaustion' and the 'particular administrative scheme' support such a bar.'" Id. at 1258 (quoting Oglesby, 920 F.2d at 61); see Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). This renders defendant's assertion that this Court de facto lacks subject matter jurisdiction incorrect. This Court finds that a requester's failure to exhaust his administrative remedies is neither jurisdictional nor, as plaintiff contends, waived.*fn2 Following this Circuit's precedent in Wilbur, this Court must factually determine whether the purposes of exhaustion were fulfilled prior to plaintiff bringing his claim. If they were, this Court will not be barred from deciding the FOIA dispute on its merits. See id. at 677.

The purposes of exhaustion are "preventing premature interference with agency processes, . . . affording the parties and the courts the benefit of the agency's experience and expertise, [and] compiling a record which is adequate for judicial review." Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (original alterations omitted). In this case, plaintiff's non-payment of past fees does not thwart the purposes of exhaustion set forth in Weinberger.

First, this Court is not prematurely interfering with agency processes, because the administrative scheme does not bar judicial review. This lawsuit was filed in June 2005, more than two years after plaintiff's initial FOIA request, at which time plaintiff did not owe any fees. FOIA requires each agency to "specify[] the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced." 5 U.S.C. § 552(a)(4)(A)(i). Defendant did so, establishing that "no fee will be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $14.00." 28 C.F.R. § 16.11(d)(5). "In cases in which a requester has been notified that actual or estimated fees amount to more than $25.00, the request shall not be considered received and further work shall not be done on it until the requester agrees to pay the anticipated total fee." 28 C.F.R § 16.11(e). In sum, defendant established that requesters would not be charged for costs under $14.00, but that requesters must, at minimum, promise to pay any costs over $25.00 before the any work shall be done on their behalf. If fees are properly requested and remain unpaid, a federal lawsuit may not commence. See Oglesby, 920 F.2d at 66.

In the instant case, defendant released responsive documents to plaintiff on two separate occasions: September 8, 2004 and April 17, 2007. See Fifth Declaration of David M. Hardy ("5th Hardy Decl."), Ex. A and B. The 2004 release of 191 pages stated, "As a means of releasing documents to you in a more timely and efficient manner, we are enclosing the requested material in advance of your payment. At this time, we are requesting payment in the amount of $9.10." 5th Hardy Decl., Ex. A. Though defendant acknowledged 28 C.F.R. § 16.11 in its Motion,*fn3 it failed to account for § 16.11(d)(5), which states that "no fee will be charged unless the cost of search in excess of two hours plus the cost of duplication of 100 pages totals more than $14.00." Id. Because the cost in excess of duplication of the first 100 pages was $9.10, defendant's request for payment was unfounded. Therefore, its argument that plaintiff failed to exhaust his administrative remedies prior to his filing of this lawsuit in 2005 is unpersuasive. This lawsuit was not a premature interference with agency processes. In fact, it has prodded the DOJ into making the appropriately extensive searches that it did not conduct prior to this suit being filed.

Second, the parties and court have been afforded the agency's experience and expertise. At no time has defendant contended that plaintiff's non-payment has been an impediment to its ability to provide its expertise in this matter. On the contrary, defendant freely provided responsive documents to plaintiff in advance of payment as recently as June 6, 2012.*fn4 Though defendant asserts that this Court lacks jurisdiction due to the exhaustion of remedies doctrine, it does not assert (for it cannot) that plaintiff's failure to pay $41.40 will prevent it from providing the disputed documents. Its history of providing documents in advance of payment belies its argument. See Antonelli v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 555 F. Supp. 2d 16, 23 (D.D.C. 2008) (holding that plaintiff's payment three years into the litigation was immaterial to whether the plaintiff was able to bring the original claim). This Court finds no example of the instant litigation interfering with Department of Justice's expertise.

Third, plaintiff's non-payment did not preclude the compilation of an adequate record for this Court's review. Defendant provided responsive documents on two separate occasions without plaintiff's payment and continued to supplement the record regarding the FOIA exemptions it invoked throughout the litigation. See, e.g., Def.'s Supplement to the R. on its Renewed Mot. Summ. J. and Mot. for Final J. in its Favor (continuing to provide documents and Vaughn indices several years into litigation). Plaintiff's non-payment did little to prevent the record from being built throughout litigation.

To conclude, this Court finds (1) plaintiff did not owe defendant any fees at the commencement of this lawsuit under 28 C.F.R. § 16.11(d)(5), and (2) plaintiff's non-payment following defendant's second release years into the litigation did not strip this Court of jurisdiction, because the purposes of exhaustion were met and particular administrative scheme was satisfied at the time plaintiff filed his complaint. Having established jurisdiction, this Court will decide the remaining FOIA disputes on their merits.


In response to Defendant's Motion for Summary Judgment, this Court ordered defendant to provide more information regarding why several documents were withheld under particular FOIA exemptions. Having reviewed defendant's Renewed Motion for Summary Judgment further explaining its rationale, this Court returns to each of these documents.

a. Exemption 1

Exemption 1 protects matters that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]" 5 U.S.C. ยง 552(b)(1). Pursuant to Executive Order 13292, 68 Fed. Reg. 15,315 (Mar. ...

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