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Hicks v. Executive Office for U.S. Attys.

United States District Court, D. Columbia.

December 20, 2013

ERIC A. HICKS, Plaintiff,

ERIC A. HICKS, Plaintiff, Pro se, MINERSVILLE, PA.



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ELLEN SEGAL HUVELLE, United States District Judge.

Plaintiff, proceeding pro se, challenges the responses of the Executive Office for United States Attorneys (" EOUSA" ) to his request for information under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. EOUSA released responsive records during the course of this litigation and now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or for summary judgment under Rule 56. Def.'s Mot. to Dismiss or for Summ. J. [Dkt. # 14]. Plaintiff has opposed the motion, see Pl.'s Response to Def.'s Mot. to Dismiss or for Summ. J. (" Pl.'s Opp'n" ) [Dkt. # 21], and defendant has replied [Dkt. #26]. In addition, plaintiff has filed a Motion to Amend his opposition [Dkt. # 25], which the Court will grant over defendant's objection [Dkt. # 27], and treat as a supplemental opposition (" Pl.'s Suppl. Opp'n" ). Upon consideration of the parties' submissions and the entire record, the Court will grant summary judgment to defendant and enter judgment accordingly.


In December 2011, plaintiff requested " all fact witness vouchers" issued for his criminal case in this Court ( U.S. v. Hicks, No. 93-cr-97), including " the records with dollar amounts of all witnesses, . . . friends, relatives of and standby witnesses who were paid with fact witness vouchers," and those pertaining to " non-testifying witnesses."

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(Decl. of Kathleen Brandon [Dkt. # 14-2], Ex. A.) Plaintiff requested that the search include the names of his co-defendants and encompass, inter alia, the Federal Records Center and the U.S. Marshals Service. Id. On April 25, 2012, EOUSA informed plaintiff that pursuant to policy, it was neither confirming nor denying the existence of the requested records " concerning living third parties," and if such records existed, they would be exempt from disclosure under FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b), and the Privacy Act, 5 U.S.C. § 552a (Brandon Decl., Ex. B.)

In his appeal to the Office of Information Policy (" OIP" ) on May 1, 2012, plaintiff stated that EOUSA's determination was unwarranted because he had " granted full permission to the . . . agency to redact and/or delete [third-party] source identification only from the material for purpose of release." ( Id., Ex. C.) On September 20, 2012, OIP affirmed EOUSA's decision on " partly modified grounds," explaining that to the extent responsive records exist, they would be categorically exempt under exemption 7(C) absent the third parties' consent, proof of death, official acknowledgement of an investigation, or an overriding public interest. Thus, according to OIP, EOUSA's assertion of exemption 7(C) was proper and EOUSA " was not required to conduct a search for the requested records." ( Id., Ex. D.)

Plaintiff initiated this action in January 2013, and EOUSA " reconsidered its initial categorical denial and initiated a search for responsive records." (Brandon Decl. ¶ 10.) On June 12, 2013, EOUSA released 718 pages of witness vouchers to plaintiff with third-party information redacted under exemption 7(C) ( id. ¶ 16 & Ex. G) and moved for dispositive relief on July 24, 2013. On November 21, 2013, plaintiff moved to amend his opposition filed on October 7, 2013, to include his " omitted . . . reference to the Defendant's failure to disclose the information reflecting the per diem charges and net totals of the vouchers . . . excluded from a substantial portion of the vouchers." (Pl.'s Mot. at 2.) On December 5, 2013, defendant filed an opposition to plaintiff's motion to amend, characterizing the motion as an improper filing and an attempt to amend the complaint. (Def.'s Opp'n to Pl.'s Mot. to Amend [Dkt. # 27] at 1.)


The Court is authorized under the FOIA " to devise remedies and enjoin agencies . . . if the agency has [improperly withheld agency records]" responsive to a properly submitted request. McGehee v. CIA,697 F.2d 1095, 1105, 225 U.S. App. D.C. 205 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)). An inadequate search for records may also constitute an ...

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