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Espinoza v. Department of Justice

United States District Court, D. Columbia

February 27, 2014

Alejandro Espinoza, Plaintiff,
Department of Justice et al., Defendants

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COLLEEN KOLLAR-KOTELLY, United States District Judge.

In this action brought pro se, plaintiff claims that the Executive Office for United States Attorneys (" EOUSA" ) violated the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, by withholding responsive records and denying his requests for expedited processing and a fee waiver. Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff has failed to exhaust his administrative remedies or for summary judgment under Rule 56. Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. [Dkt. # 12].[1] Plaintiff has opposed the motion [Dkt. # 22] and cross moved for summary judgment, Pl.'s Cross-Mot. for Summ. J. [Dkt. # 23], and defendants have replied, Defs.' Reply in Support of Mot. to Dismiss, or, in the Alternative, for Summ. J. and Opp'n to Pl.'s Cross-Motion for Summ. J. [Dkt. # 27-1]. Upon consideration of the parties' submissions and the entire record, the Court will grant defendants' motion, deny plaintiff's motion, and enter judgment accordingly.


Plaintiff was convicted in 2005 of drug charges following a trial held in the United States District Court for the District of New Mexico. See U.S v. Espinoza, 545 F.App'x 783, 2013 WL 6183847 (10th Cir. Nov. 27, 2013) (denying request for certificate of appealability). On June 19, 2012, plaintiff requested from EOUSA all records " related to the U.S. Attorney's discovery that evidence was withheld from me during my trial," including " emails and other electronically stored information." Am. Compl. [Dkt. # 18] ¶ 11; Defs' Ex. 1 [Dkt. # 12-5] (" Request" ). In addition, plaintiff " requested Debra James's Pre-Sentence Report (PSR) generated for Case Number 04-cr-479. Specifically, the date the PSR was generated, and any information concerning Debra James's positive drug tests within the PSR," and he sought a fee waiver " because the production of the requested information could serve the substantial public interest in setting free an innocent man." Request at 2. Plaintiff stated: " [i]f your office cannot waive the duplication and search fees[,] please forward any responsive records to which I'm entitled free of charge, and let me know what the fees are relating to the rest of the responsive record[s]." Id. at 3. On September 3, 2012, plaintiff " lodge[d] a complaint [with EOUSA] concerning the delay of the processing of my requests, and to clarify that I sought expedited processing of my requests," while acknowledging

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that he had " inadvertently failed to specify that I was seeking expedited processing" in the FOIA request. Defs.' Ex. 2 [Dkt. 12-6].

Meanwhile, by letter dated July 11, 2012 -- which plaintiff in the September 3 letter acknowledged receiving -- EOUSA informed plaintiff that the request for his records was designated Request No. 12-2643 (Self), that the request for Debra James's records was designated Request No. 12-2644 (Third Party), and that each request would be processed separately and a " response on each" request would be sent " as soon as [processing] is finished." Decl. of Kathleen Brandon, Ex. A [Dkt. # 12-3]. The letter also informed plaintiff that " EOUSA makes every effort to process most requests within a month (20 working days)" but that " a very large request," e.g., one seeking " all information about myself in criminal case files," is treated as a " Project Request" that " usually take[s] approximately nine months to process." Id. Finally, plaintiff was told that pursuant to 28 C.F.R. § 16.3(c), by making a FOIA request, he had " agreed to pay fees up to $25, . . . unless you have requested a fee waiver" ; that absent a fee waiver, he would be assessed search and duplication fees after the first two hours of the search and the first 100 pages; that the agency " will normally notify you of our estimate of fees" exceeding $25; that " [a]fter we have received your agreement to pay for the expected fees (or you have narrowed your request to reduce fees) and we have processed your request," his payment of any assessed fees would be required before the release of any responsive records; and that " [w]ithout such payment, your request file will be closed without further action." Id.

Request No. 12-2644 (third-party records)

By letter dated July 31, 2012, EOUSA denied plaintiff's request for James's records due to his failure to provide James's " express authorization and consent" to release such records, proof of her death, or " a clear demonstration" of an overriding public interest in disclosing such records. Id., Ex. B. The letter informed plaintiff that third-party information is " generally exempt from disclosure" under FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b), and that he had the right to appeal the decision to the Office of Information Policy (" OIP" ) in 60 days. EOUSA has no record or notice from OIP that plaintiff appealed this decision. Brandon Decl. ¶ 9.

Request No. 12-2643 (first-party records)

In August 2012, at EOUSA's direction, the United States Attorney's Office for the District of New Mexico searched for records responsive to plaintiff's request for his records but stopped the search after reaching the two-hour limit. Id. ¶ ¶ 10-11; Decl. of Diane Tapia [Dkt. # 12-4] ¶ ¶ 3-12. On August 16, 2012, Tapia informed EOUSA that the local office had " exceeded the two hours of free search and had stopped the search process," but had " found nothing responsive to the request except for the James [PSR]." Tapia Decl. ¶ 12. The search did not include " archived electronic records from January 1, 2006 through August 31, 2008, because those records were archived at EOUSA[,] [which] would have to assist with that part of the search." Id. Tapia sought " further instructions [on] how [the local office] should proceed." Id. ¶ 13.

EOUSA responded in October and November 2012, instructing the local office not to include James's PSR in its response since it was protected by the Privacy Act, and " to have the [local] information technology staff contact Diane Heintzelman of EOUSA to coordinate and determine the appropriate fee to charge for searching the

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archived electronic records." Id. ¶ 15. On December 14, 2012, Tapia received an email from Heintzelman stating that the local " office emails were migrated to USAMAIL" in May 2008 and estimating that it would take four hours of search time at $84.41 per hour for a total of $325.64 to search the archived records. Id. ¶ 16. On that same day, Ed Lee of the local office's technology staff informed Tapia that " he did not run the electronic search" but that he had " spent approximately two hours preparing the parameters for the search and locating the records to be searched." Id. Tapia received no further instructions from EOUSA prior to the commencement of this action. See id. ¶ 17.

Meanwhile, plaintiff filed this civil action on December 4, 2012, " having received no further communication regarding his request . . . ." Pl.'s Statement of Material Facts Not in Genuine Dispute [Dkt. # 23] ¶ 18. By letter of January 2, 2013, EOUSA informed plaintiff that " [w]e are currently searching for documents responsive to your FOIA/PA request, and we have reached the two hours free search time provided to you at no charge." Brandon Decl., Ex. D. The letter stated that DOJ regulation 16.11(i) " provide that our office may collect an advance payment before we continue processing your request if we estimate fees will exceed $250.00" ; that an additional four hours had been estimated to complete the search of the requested " archived email records" ; that the hourly fee for searching the archived email records was $81.41; and that plaintiff's payment of $325.64 was required to continue the processing of his request. Brandon Decl., Ex. D.

Plaintiff was further informed that the number of responsive records was not known " prior to a complete search" but that he could reduce his costs by limiting the scope of his request, specifying the maximum amount he was willing to pay, or terminating the search at the two hours' free time. The letter further stated that pursuant to 28 C.F.R. § 16.11(i), plaintiff's request was not " considered received" until EOUSA received his response and that his failure to act within 30 days would result in the closing of his request. Id. A form was included for plaintiff to " indicate [his] wishes." Id. The letter also contained a note informing plaintiff about his right to appeal to OIP within 60 days while acknowledging that " this FOIA request is currently the subject of litigation." Id.

By letter dated February 21, 2013, EOUSA informed plaintiff that his request was closed due to his failure to respond to the January 2, 2013 letter and, since " [t]his is the final action," he could appeal to OIP within 60 days. Id., Ex. E. Again, EOUSA has no record or notice from OIP that plaintiff appealed this decision. Brandon Decl. ¶ 17.


Summary judgment is appropriate upon a showing 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). " [A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The FOIA requires a federal agency to release all records responsive to a properly submitted request except those protected from disclosure by one or more of nine enumerated exemptions. See 5 U.S.C. ยง 552(b). The agency's disclosure obligations are triggered by its receipt of a request that " reasonably describes [the ...

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