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Cole v. Department of Justice

United States District Court, District of Columbia

November 28, 2012

James COLE, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

James Cole, Atlanta, GA, pro se.

Jenny Marie Knopinski, U.S. Attorney's Office, Washington, DC, for Defendants.

Page 294

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff, proceeding pro se, challenges the Department of Justice's (" DOJ" ) response to his request for his records maintained by the Federal Bureau of Investigation (" FBI" ).[1] The FBI, having released the first 100 pages of responsive records to which plaintiff is entitled for free and assessed a fee to cover the processing of additional records, moves to dismiss or for summary judgment on the ground that plaintiff has not exhausted his administrative remedies [Dkt. # 15]. Plaintiff has opposed defendant's motion and has cross moved for summary judgment [Dkt. 20, 21]. Since the record establishes that plaintiff has not exhausted his administrative remedies and the processing of his request is under way, the Court will grant defendant's motion for summary judgment, deny plaintiff's motion for summary judgment, and enter judgment accordingly.

BACKGROUND

By letter of December 13, 2011, addressed to FBI Headquarters, plaintiff requested " all records ... pertaining to myself" maintained between June 1974 and June 2005. (Decl. of David M. Hardy [Dkt. # 15-1], Ex. A (" Req." ).) [2] Plaintiff requested, inter alia, " reference cards, abstracts, search slips ..., file covers, multiple copies of the same document ..., and taped [ ] electronic surveillance." (Req. at 1.) He requested that the search encompass the " ‘ DO NOT FILE’ files, SAC safes, special file rooms, and office of FBI officials," and the " ELSUR Index." ( Id. ) Plaintiff stated that he " believe[d]" his request qualified for a fee waiver " since the release of [the] requested information would primarily benefit the general public ... notwithstanding the fact that I am an indigent person, and need these materials to perfect an appeal of what I perceive as an unjust conviction." ( Id. at 2.) He also requested that he be consulted before proceeding " [if] a fee waiver is not granted [and] the fee is in excess of $100.00." ( Id. )

By letter of December 28, 2011, the FBI denied plaintiff's request for a fee waiver. (Hardy Decl., Ex. B.) In a separate letter also dated December 28, 2011, the FBI informed plaintiff that it had searched its Central Records System (" CRS" ), located records that would be " reviewed for responsiveness," and had exhausted the mandatory two hours of free search time.

Page 295

( Id., Ex. C.) Plaintiff was informed generally about how search fees are computed, given 30 days to commit in writing to paying any fees to cover the FBI's search and processing of records beyond the two free hours, and advised about his right to appeal to the Office of Information Policy (" OIP" ). ( Id. ) By letter of January 6, 2012, plaintiff committed to paying fees and requested the FBI to " continue the search." ( Id., Ex. E.) By letter also dated January 6, 2012, plaintiff appealed to OIP " any adverse decision by the [FBI] not to release and or failure to follow FOIA procedures, with regards to the FOIA Act." ( Id., Ex. F.) By letter of March 12, 2012, the OIP, having treated the appeal as one from the FBI's fee waiver denial, affirmed the FBI's decision. ( Id., Ex. H.) By letter of April 20, 2012, the FBI assessed plaintiff a fee of $252.42 based on nine hours of search time, informed him that it would stop processing the request if he failed to pay within 30 days, and advised him of his right to appeal the decision to the OIP. ( Id., Ex. I.)

Plaintiff filed this action on May 24, 2012. On July 31, 2012, the FBI released 100 of 402 pages it had reviewed. From the released pages, the FBI redacted material under FOIA exemptions 6, 7(C), 7(D) and 7(E). ( Id., Exs. J, K.) The FBI informed plaintiff that the initial release constituted the 100 pages located within the first two hours of its search, which " included only those serials which mention James T. Cole, Jr. by name and/or shows the context in which the name James T. Cole, Jr. was mentioned." (Ex. J. at 2.) The FBI further informed plaintiff that it would release additional material found during the first two hours of the search if he committed to paying a duplication fee of $50, and that he would be billed for the processing of the remainder of his file consisting of approximately 500 pages, which he then must pay before additional pages were released to him. Finally, plaintiff was informed that " [t]his is only a portion of the additional fees. The processing of additional records will require the payment of further search and duplication fees.... As suggested by OIP, you may wish to identify a specific amount up to which you will pay or request an estimate of the total fees that would be due if all remaining records are processed." ( Id. ) By letter of August 3, 2012, plaintiff committed to paying the additional fees. (Def.'s Opp'n to Pl.'s Mot. for Summ. J. and Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J., Second Decl. of David M. Hardy [Dkt. # 23-1], Ex. A [Dkt. # 23-2].)

By letter of November 7, 2012, the FBI informed plaintiff that a " second interim release of [219 pages] is available" upon his payment of $21.90 to cover duplication costs. ( Id., Ex. D.) The FBI further informed plaintiff that after receipt of that payment, it would process additional records and advise him of the associated costs. Plaintiff was advised to notify the FBI in writing if he wished to reduce his costs by reformulating his request or limiting its scope. ( Id. )

Meanwhile, by letter of September 13, 2012, plaintiff lodged an appeal with OIP of " the 100 pages of documents that Mr. Hardy sen[t] to me free which was only newspaper articles and a ruse." ( Id., Ex. B.) By letter of November 8, 2012, the OIP advised plaintiff that his appeal was closed in ...


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