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Curtis Monroe-Bey v. Federal Bureau of Investigation

September 13, 2012


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


In this action brought pro se by a Maryland state prisoner under the Freedom of Information Act ("FOIA"), 5. U.S.C. § 552, Plaintiff Curtis Monroe-Bey challenges the Federal Bureau of Investigation's denial of his request for a fee waiver to obtain records responsive to his FOIA request. The FBI moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure [Dkt. 12]. In his opposition to the FBI's motion, Mr. Monroe-Bey cross moves for summary judgment [Dkt. 19, 20]. Upon consideration of the parties' submissions and the entire record, the Court will grant the FBI's motion, deny Mr. Monroe-Bey's motion, and enter judgment accordingly.*fn1


By letter of December 25, 2009, Mr. Monroe-Bey requested from the FBI basically all information pertaining to publicized reports of "discredited FBI laboratory analysts." Decl. of David M. Hardy [Dkt. 12-1], Ex. A (FOIA Request).*fn2 The FBI's initial denial of records was overturned by the Office of Information Policy ("OIP"), which remanded the request in August 2010 to the FBI to conduct a search for responsive records. Ex. D. By letter of January 10, 2011, the FBI informed Mr. Monroe-Bey that it had located approximately 23,730 pages of responsive records and assessed an estimated copying fee of $2,363 for paper copies or $710 for a compact disc. Ex. H.

By letter of January 23, 2011, Mr. Monroe-Bey requested a fee waiver, citing, inter alia, his "actual innocence," which he has been claiming "[f]or more than 28 years," as "a matter of public interest." Ex. I (Fee Waiver Request ("Request") ¶¶ 8-10). Mr. Monroe-Bey explained that "the information he seeks is in the public's interest in view of a public trial in which the public was significantly involved; and that the public would now know of the operations and activities of the State of Maryland and the U.S. government agency employees responsible for conduct detrimental to equal justice." Id. ¶ 9. In addition, Mr. Monroe-Bey stated that he "is the producer and editor of the 'Lex Fori', a free legal newsletter provided to prisoners and others throughout Maryland and other states," and indicated that any responsive records would be "subject to being disseminated to those prisoners who are noted on a collected mailing list, and others who are and were effected [sic] by the testimony of any one or more of the 13 discredited F.B.I. analysts." Id. ¶ 12. Mr. Monroe-Bey cited to a newspaper article in the Washington Post to show that "others have been provided said responsive documents, presumably without costs[.]" Id. ¶ 15. He had previously included several other Washington Post articles on the subject in his successful administrative appeal in April 2010. See Ex. D.

By letter of January 28, 2011, the FBI denied Mr. Monroe-Bey's fee waiver request on the basis that it did not meet the requirements for a fee waiver set forth in 5 U.S.C. § 552(a)(4)(A)(iii). Ex. K. Specifically, the FBI determined that Mr. Monroe-Bey's request did "not satisfy the first requirement [of contributing substantially to the public's interest] because the [requested] records have previously been disclosed to the public [via] another requester who previously submitted a request for the same material and demonstrated their [sic] capacity to place the records in the public domain . . . ." Id. at 1. And "[d]isclosure of information that already is in the public domain will not be as likely to contribute to an increased understanding of government operations or activities where nothing new will be added to the public's understanding." Id. (citing 28 C.F.R. § 16.11(k)(2)(ii)).

Mr. Monroe-Bey appealed the fee waiver denial to OIP, which affirmed the FBI's decision by letter of August 11, 2011. Ex. M. He filed this civil action on October 31, 2011.


Summary judgment is appropriate "if the movant shows [through facts supported in the record] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This procedural device is not a "disfavored legal shortcut" but a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of material fact exists, the Court must view all facts and reasonable inferences in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

Summary judgment is the frequent vehicle for resolution of a FOIA action because the pleadings and declarations in such cases often provide undisputed facts on which the moving parties are entitled to judgment as a matter of law. McLaughlin v. U.S. Dep't of Justice, 530 F. Supp. 2d 210, 212 (D.D.C. 2008) (citations omitted). Agencies may rely on affidavits or declarations of government officials, as long as they are sufficiently clear and detailed and submitted in good faith. Id. (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The Court may award summary judgment solely on the basis of information provided in such affidavits or declarations when they describe "the documents and the justifications for nondisclosure with reasonably specific detail . . . 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).


A FOIA requester must exhaust his administrative remedies by paying any assessed fees or appealing the denial of a fee waiver request before obtaining judicial review of a FOIA claim. Oglesby, 920 F.2d at 66; see accord Smith v. Fed. Bureau of Prisons, 517 F. Supp. 2d 451, 455 (D.D.C. 2007) (concluding that "[b]ecause defendant properly denied plaintiff's fee waiver request, . . . [p]laintiff will be required to pay the assessed fee before pursuing his FOIA requests or obtaining judicial review of unfavorable action thereafter" (citing cases)). An agency must waive fees for processing a FOIA request when "[1] disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and [2] is not primarily in the commercial interest of the requester." Research Air, Inc. v. Kempthorne, 589 F. Supp. 2d 1, 8 (D.D.C. 2008) (quoting 5 U.S.C. § 552(a)(4)(A)(iii)) (citation omitted). The FOIA empowers each agency to "promulgate regulations . . . specifying the schedule of fees applicable to the processing of [FOIA] requests . . . and establishing procedures and guidelines for determining when such fees should be waived or reduced." Research Air, Inc., 589 F. Supp. 2d at 8-9 (quoting 5 U.S.C. § 552(a)(4)(A)(i)). A court must consider both the statute and the regulations promulgated by the agency when determining whether a fee waiver request was properly denied. See Campbell v. DOJ, 164 F.3d 20, 35 (D.C. Cir. 1998); VoteHemp, Inc. v. DEA, 237 F. Supp. 2d 55, 59 (D.D.C. 2002). Although the Court's review of a fee waiver denial is de novo, it is limited to the record that was before the agency at the time of the request, Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988), and the plaintiff has the burden of demonstrating that the requirements for a fee waiver are satisfied. Id.

As a component of DOJ, the FBI properly applied DOJ's regulations governing fee waivers set forth at 28 C.F.R. § 16.11(k). That provision requires the furnishing of responsive records "without charge or at a [reduced] charge . . . where a component determines, based on all available information, that the requester has demonstrated" the requisite level of public interest and is not seeking the information primarily for a commercial interest. 28 C.F.R. § 16.11(k). The FBI determined that Mr. ...

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