United States District Court, District of Columbia
For LAWRENCE ROSENBERG, Plaintiff: John Matthew Gore, LEAD ATTORNEY, Lawrence D. Rosenberg, JONES DAY, Washington, DC.
For UNITED STATES DEPARTMENT OF IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES MARSHALS SERVICE, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEY, FEDERAL BUREAU OF INVESTIGATION, Defendants: Sobia Haque, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin.  Dissatisfied with the agencies' responses to his request, the Plaintiff filed suit against United States Immigration and Customs Enforcement, the United States Marshals Service (the " Marshals Service" ), the Executive Office for United
States Attorneys (the " EOUSA" ), and the Federal Bureau of Investigation. Presently before the Court is the EOUSA and Marshals Service's  Motion to Dismiss, or Alternatively, Motion for Summary Judgment, and the Plaintiff's  Cross-Motion for Summary Judgment. Upon consideration of the pleadings,  the relevant legal authorities, and the record as a whole, the Court finds that because the Plaintiff failed to pay the reasonable search fees requested by the EOUSA for request number 2011-3284, and failed to exhaust his administrative remedies for requests numbered 2011-3285 and 2011USMS18477. Accordingly, the EOUSA and the Marshals Service are entitled to summary judgment.
By letter dated September 28, 2011, the Plaintiff submitted a Freedom of Information Act (" FOIA" ) request to the EOUSA seeking, among other things: (1) " any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (" the raid" ) and the subsequent prosecution of Sholom Rubashkin" ; (2) " any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register's August 6, 2011 article, 'Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says'" ; (3) " any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA" ; (4) " any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N.D. Iowa 2007)" ; and (5) any and all documents reflecting communications between " any government agency or official" and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Vanek Decl., Ex. A (Pl.'s FOIA Request to EOUSA), at 2-7. The Plaintiff's request included 40 numbered paragraphs outlining his specific requests. Defs.' Stmt., ECF No. , ¶ 2.  The Plaintiff also submitted a signed privacy waiver by Mr. Rubashkin authorizing the EOUSA to release documents concerning Mr. Rubashkin, but did not submit privacy waivers for any other individual referenced in the Plaintiffs request. Id. at ¶ ¶ 5-6.
EOUSA notified the Plaintiff on October 3, 2011, that his request had been split into 2 separate requests with two separate request numbers:
o Request No. 2011-3284: " Agriprocessors, Inc. (Corp.Docs. Only)& Sholom Rubashkin; and
o Request No. 2011-3285: " (Third Parties)"
Brandon Decl., Ex. C (10/3/11 Ltr. to Pl. re Request No. 2011-3284) at 2 (all errors in original). The letter further indicated that request number 2011-3284 would be processed in the order in which it was received, unless it is a very large request, in which case it would be placed in the " Project Requests" group and processed in the order received. Id. at 1. Under separate
cover that same day, with respect to request number 2011-3285, the EOUSA informed the Plaintiff:
It is the policy of the Executive Office neither to confirm nor deny that records concerning living third parties exist. Further, any release to you of such records, if they do exist, would be in violation of the Privacy Act. 5 U.S.C. § 552a. The requested material would also be exempt from release pursuant to 5 U.S.C. § 552(b)(6) and/or (b)(7)(C) which pertain to records whose disclosure would result in an unwarranted invasion of personal privacy.
Brandon Decl., Ex. B (10/3/11 Ltr. to Pl. re Request No. 2011-3285). The letter advised the plaintiff that " [t]his is a final action" on request number 2011-3285, and any appeal must be received by the Office of Information Policy within 60 days of the date of the letter. Id. The Plaintiff did not file an administrative appeal of the EOUSA's decision regarding request number 2011-3285. Defs.' Stmt. ¶ 10.
In response to request number 2011-3284, the EOUSA directed the United States Attorney's Office for the Northern District of Iowa (" USAO/NDIA" ) to conduct a search of physical and electronic records in response to the Plaintiffs request. Defs.' Stmt. ¶ 13. USAO/NDIA provided to the Executive Office an outline of the search efforts it would need to undertake in response to the Plaintiff's request, and estimated at least 18,738 hours of search time would be required to search the its physical records. Id. at ¶ ¶ 14-15. The USAO/NDIA concluded that such extensive search efforts would be required because, among other things, enforcement action against Agriprocessors resulted in approximately 305 cases and involved the majority of employees in the USAO/NDIA, and a substantial number of documents were sent to the Litigation Technology Service Center to be digitized. Id. at ¶ ¶ 16-17. The estimate did not include time needed to search archived emails of former and current USAO/NDIA employees, and the files of four previous United States Attorneys who might have responsive records. Id. at ¶ 18. The Information Technology department for the EOUSA estimated that it would cost approximately $158,000 to restore back-up tapes that may contain email or other electronic records responsive to the Plaintiff's request. Id. at ¶ ¶ 19-22; see also id. at ¶ ¶ 23-27 (providing estimates based on specific types of back-up tapes at issue). The EOUSA further approximated that it would cost $37,684.68 to extract recent emails archived in an " Integrated Archive Platform." Id. at ¶ ¶ 28-30. Overall, the EOUSA estimates that " the cost of hosting and processing the data into a database where search terms could be applies would be approximately $120,000.00," based on an estimate of 1500 staff hours. Id. at ¶ 31.
The Plaintiff filed suit on March 22, 2012. On June 8, 2012, the EOUSA notified the Plaintiff via letter that " [d]ue to the size of your request and the time period from which you seek records, it will be necessary to restore at least 33 backup tapes containing potentially responsive records." Vanek Decl., Ex. G (6/8/12 Ltr. to Pl.) at 1. The EOUSA indicated that approximately " 462.9 hours will be needed for this restoration at a cost of $81.41 per hour," for a total of $37,684.68. Id. Furthermore, the EOUSA advised the Plaintiff that " [b]ased on our experience," hosting and processing the restored data to allow search terms to be applied would require 1,500 hours at a cost of $80.00 per hour, for a total of $120,000. Id. The letter also advised that the Plaintiff would also incur a $0.10 per page duplication fee for every page after the first 100 pages released to the Plaintiff. Id. The letter
requested an advance payment of $157,684.68, and stated that " [p]er 28 C.F.R. § 16.11(f), your request is not considered received until we receive a response from you. Please respond within 30 days of the date of this letter, or this matter will be closed." Id. at 1-2. The letter provided that if the Plaintiff wished to reduce the fees, he could " reformulate [his] request by limiting the documents to a specific category or categories," or " specify that [he would] only pay up to a certain amount." Id. at 1. The Plaintiff also had the option to appeal the EOUSA's response to the OIP within sixty days of the date of the letter. Id. at 2. The Plaintiff alleges he did not receive the letter until August 2012. Pl.'s Resp. to Defs.' Stmt., ECF No. [35-2], ¶ 32. There is no record indicating Mr. Rosenberg ever filed an appeal of the EOUSA's June 8, 2012, letter. Defs.' Stmt. ¶ 38. The EOUSA notified the Plaintiff on July 11, 2012, that it had closed request number 2011-3284 after the Plaintiff failed to pay the search fees within thirty days of the agency's June 8, 2012, letter. Brandon Decl., Ex. E (7/11/12 Ltr. to Pl.).
B. FOIA Request to the Marshals Service
William Bordley, Associate General Counsel for the Marshals Service, received a letter from the Plaintiff on September 28, 2011, seeking, among other things: (1) " any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (" the raid" ) and the subsequent prosecution of Sholom Rubashkin" ; (2) " any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register's August 6, 2011 article, 'Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says'" ; (3) " any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA" ; (4) " any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N.D. Iowa 2007); and (5) any and all documents reflecting communications between " any government agency or official" and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Bordley Decl., Ex. A (Pl.'s FOIA Request to Marshals Serv.) at 2-7. The request included written authorization from Mr. Rubashkin to release records to the Plaintiff. Defs.' Stmt. ¶ 41.
The Marshals Service acknowledged receipt of the Plaintiff's request in a letter dated October 11, 2011. Defs.' Stmt. ¶ 42. The letter advised the Plaintiff that the Marshals Service had assigned request number 2011USMS18477 to the Plaintiff's submission, and had " commenced a search for documents responsive to your request and will contact you when our processing is complete." Bordley Decl., Ex. B. (10/11/11 Ltr. to Pl.). The Marshals Service also informed the Plaintiff that " [a]s it appears that some of the documents you request may be maintained by the [EOUSA], we have forwarded a copy of your request to that office for their direct response to you." Id. Under separate cover that same day, the Marshals Service forwarded the Plaintiff's request to the EOUSA. Bordley Decl., Ex. C (10/11/11 Ltr. to S. Gerson, Acting Assistant Director, FOIA/Privacy Unit, EOUSA).
The Marshals Service district office for the Northern District of Iowa conducted the search for documents responsive to the Plaintiff's request. Defs.' Stmt. ¶ 44. Mr Bordley indicates that the Northern District of Iowa " was the district where the [Marshals Service] would reasonably be expected to find responsive records as the [sic] Sholom Mordechai Rubashkin's criminal case arose in the Northern District of
Iowa." Bordley Decl. ¶ 5. The FOIA liaison for the Northern District of Iowa office was asked to search for " records pertaining to Sholom Mordechai Rubashkin and [quoting the request] 'a raid' on Agriprocessors, Inc., in Postville, Iowa, on May 12, 2008, and actions against Iowa Turkey Products, Inc., Postville, Iowa." Id.
On November 2, 2011, the Marshals Service notified the Plaintiff that it had located 166 pages responsive to the Plaintiff's request. Bordley Decl., Ex. D (11/2/11 Ltr. to Pl.) at 1. The agency determined 98 pages originated with or contained information which originated from the EOUSA or Immigration and Customs Enforcement, and referred those pages to the originating agencies for disclosure determination and a direct response to the Plaintiff. Id. at 1. The November 2 letter enclosed 68 pages that were released in full or in part. Id. at 1; see id. (identifying exemption pursuant to which information was withheld from the 68 pages). The letter informed the Plaintiff that " [i]f you are dissatisfied with [the agency's] action on this request, you may appeal by writing to the Director, Office of Information Policy." Id. ...