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Dent v. Executive Office For United States Attorneys

United States District Court, District of Columbia

March 2, 2013

Jason DENT, Plaintiff,

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Jason Dent, Coleman, FL, pro se.

Sean Joseph Vanek, U.S. Department of Justice, Washington, DC, for Defendants.


EMMET G. SULLIVAN, District Judge.

Plaintiff brings this action under the Freedom of Information Act (" FOIA" ), see 5 U.S.C. § 552, seeking disclosure of records maintained by three components of the United States Department of Justice (" DOJ" ): the Executive Office for United States Attorneys (" EOUSA" ), the Federal Bureau of Investigation (" FBI" ), and the Federal Bureau of Prisons (" BOP" ). Now before the Court are the parties' cross-motions for summary judgment. Plaintiff's motions will be denied and defendant's motion will be granted in part and denied in part without prejudice.

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A. Request to the EOUSA (No. 07-1897)

Plaintiff sought information maintained by the United States Attorney's Office for the Eastern District of New York about himself. See Defs.' Mot. to Dismiss, or Alternatively, for Summ. J. (" Defs.' Mem." ), Decl. of David Luczynski (" Luczynski Decl." ) ¶ 4. The EOUSA determined that " a complete search [for responsive records would] take ... fifty-one hours" beyond the two hours of search time afforded to a requester and estimated a fee of $1,428 to conduct the search. Compl., Ex. (Letter to plaintiff from William G. Stewart II, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated March 6, 2008). " In light of the pending fee, plaintiff reformulated and attempted to narrow down his request by restricting the search for information regarding Grand Jury indictment, investigative reports, and information concerning third party individuals." Luczynski Decl. ¶ 7. However, because plaintiff neither paid nor made arrangements to pay the search fees, id., the EOUSA took no further action, see id. ¶ 9.

B. Request to the FBI (FOIPA No. 1092003-000)

From the FBI's New York Field Office (" NYFO" ), plaintiff requested " records ... pertaining to the investigation and prosecution of Criminal Indictment No. 01-CR-1343 (E.D.N.Y.)." Defs.' Mem., Decl. of David M. Hardy (" Hardy Decl." ), Ex. A (Letter to FBI's New York Field Office from plaintiff dated August 8, 2007) at 1. In subsequent correspondence, plaintiff requested Case File # 166E-NY-277771 which pertained to the homicides of Ramel Flower and Theodore Burkowski. Hardy Decl., Ex. C (Letter to FBI NYFO from plaintiff dated September 4, 2007) at 2. The FBI located approximately 810 pages of potentially responsive records, and estimated duplication fees totaling $71.00 if all the pages were released. Id. ¶ 10; see id., Ex. E (Letter to plaintiff from David M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBI, dated November 27, 2007). The FBI reviewed 195 pages of records and released 100 of these pages at no charge to plaintiff after having redacted information under Exemptions 2, 6, 7(C) and 7(D). Id. ¶¶ 16-17. Subsequently, after plaintiff filed this lawsuit, the FBI reopened plaintiff's request, processed an additional 108 pages of records, id. ¶ 29, " from a multi-subject file" but limited its focus to " only the pages that specifically mention [plaintiff] as the subject." Id. ¶ 19. At no cost to plaintiff, the FBI released 87 pages of records after having redacted information under Exemptions 3, 5, 6, 7(C), 7(D) and 7(E). Id. ¶¶ 20-21.

C. Request to the BOP (No. 2008-07087)

According to plaintiff, he submitted a FOIA request to the BOP yet received no response. Compl. at 5. Apparently BOP staff declined to process the request unless and until plaintiff " provide[d] a more specific description (dates and times) of the records [he is] seeking." Id., Ex. (Letter to plaintiff from Henry J. Sadowski, Regional Counsel, Northeast Regional Office, BOP, dated September 22, 2008).


A. Summary Judgment in a FOIA Case

" FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In a

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FOIA action to compel production of agency records, the agency " is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘ that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.’ " Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978)). Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and when they describe " the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, 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).

B. Exhaustion of Administrative Remedies

" Exhaustion of administrative remedies is generally required before seeking judicial review" under the FOIA. Wilbur v. CIA, 355 F.3d 675, 677 (D.C.Cir.2004) (per curiam). Exhaustion allows " the agency [ ] an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Id. (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C.Cir.1990)). It is not a jurisdictional requirement, Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.Cir.2003), but is instead a prudential consideration. Wilbur, 355 F.3d at 677. If a requester has not exhausted his administrative remedies prior to the filing of a civil action, his claim is subject to dismissal. See Hidalgo, 344 F.3d at 1258. A requester's " failure to comply with an agency's FOIA regulations is the equivalent of a failure to exhaust" administrative remedies. West v. Jackson, 448 F.Supp.2d 207, 211 (D.D.C.2006) (citations omitted). " Exhaustion [of administrative remedies] does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees." Oglesby, 920 F.2d at 66.

" [E]ach agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Regulations promulgated by the DOJ specify, among other things, " the schedule of fees applicable to the processing of requests." 5 U.S.C. § 552(a)(4)(A)(i); see 28 C.F.R. § 16.1 et seq. For purposes of these regulations, the term " component" means " each separate bureau, office, board, division, commission, service, or administration of the [DOJ]," 28 C.F.R. § 16.1(b), and the EOUSA, FBI and BOP are DOJ components. See 28 C.F.R. § 0.1 (setting forth DOJ's organizational units). Requests submitted under the Privacy Act by individuals for records about themselves are processed under these regulations also. See 28 C.F.R. §§ 16.1(a), 16.40(a).

Generally, a DOJ component " shall charge for processing requests under the FOIA." 28 C.F.R. § 16.11(a). By making a FOIA request, a requester is deemed to have agreed " to pay all applicable fees charged under [28 C.F.R.] § 16.11, up to $25.00, unless [the requester] seek[s] a waiver of fees." 28 C.F.R. § 16.3(c). In addition, " [s]earch fees shall be charged ... for time spent searching even if [the component does] not ...

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