United States District Court, D. Columbia.
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[Copyrighted Material Omitted]
JUAN CARLOS OCASIO, Plaintiff, Pro se, Bronx, NY.
For DEPARTMENT OF JUSTICE, Defendant: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
TANYA S. CHUTKAN, United States District Judge.
Before the Court is Defendant U.S. Department of Justice's (" DOJ" ) motion to dismiss, or in the alternative motion for summary judgment. (ECF No. 8) Upon consideration of the motion, the response and reply thereto, and for the following reasons, the Court GRANTS in part and DENIES in part DOJ's motion.
Pro se plaintiff Juan Carlos Ocasio brought this action under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § § 552 et seq., challenging DOJ's response to his FOIA request. The FOIA request sought a DOJ Office of Inspector General (" OIG" ) investigation file concerning a complaint Ocasio filed with the Federal Bureau of Investigation (" FBI" ). (ECF No. 1 at 2) Ocasio alleged in his FBI complaint that a third party had illegally impersonated a federal officer and also violated the Stolen Valor Act by falsely claiming the receipt of military honors. (ECF No. 1 at 2; ECF No. 10 at 2-5)
Ocasio submitted his FOIA request seeking the records of the OIG investigation, specifically DOJ-OIG case file number 9402553, on June 11, 2012. (ECF No. 4 at 3) OIG notified Ocasio on June 14, 2012 that it had received his request and assigned it control number 12-OIG-174. Over two months later, on August 23, 2012, Ocasio mailed a letter to OIG inquiring as to the status of his FOIA request. ( Id. at 9) On November 19, 2012, OIG denied Ocasio's FOIA request, stating that " the documents responsive to your request have exceeded the OIG's five-year retention policy and therefore have been destroyed pursuant to that policy." ( Id. at 11)
On November 30, 2012, Ocasio filed an administrative appeal regarding his request with the DOJ Office of Information Policy (" OIP" ). ( Id. at 13) OIP responded to the appeal on May 29, 2013, affirming OIG's initial denial on partly modified grounds and stating that " [w]hile OIG informed you that records that might have been responsive to your request were destroyed pursuant to the agency's record retention and disposition schedules . . . to the extent that responsive records exist, without consent, proof of death, official
acknowledgement of an investigation, or an overriding public interest . . . [s]uch records responsive to your request would be categorically exempt from disclosure" pursuant to 5 U.S.C. § 552(b)(7)(C). ( Id. at 17) Ocasio thereafter filed the instant lawsuit.
DOJ states that, in preparing its declaration for this litigation, it undertook an additional search for the requested file. Deborah Marie Waller, Paralegal Specialist and FOIA Officer for OIG, revisited her search to record the destruction date of the file, and noted that the date was missing. (ECF No. 18-2, Waller Suppl. Dec. ¶ 4) As a result, she decided to once again search for the investigation file, and learned that, contrary to information reported to her during her initial search, it was possible that the file requested by Ocasio may have been located in off-site storage. (Waller Decl. ¶ 10) Notwithstanding OIP's previous determination that any responsive records would be categorically exempt from disclosure to the extent they existed, Waller nonetheless located the records and had them recalled. ( Id.) The file contained a total of 296 pages. (Waller Suppl. Decl. ¶ 5) After retrieving the records from archives, Waller conducted a page-by-page review of the documents, and, based on that review, determined that the file " was comprised of law enforcement records of an individual that are categorically exempt from disclosure under FOIA exemption 7(C), and that the exemption applies to all documents maintained in the file." (Waller Decl. ¶ 11-13; Def. Mot. 10) DOJ has not produced any records in response to Ocasio's request.
II. LEGAL STANDARD
a. Motion to Dismiss Pursuant to Rule 12(b)(6)
" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where " recovery is very remote and unlikely[,]" the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level[.]" Bell A. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than " labels and conclusions" or a " formulaic recitation of the elements of a cause of action[.]" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C. 2013).
b. Motion for Summary Judgment
Summary judgment may be granted if " the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006). Summary judgment may be rendered on a " claim or defense . . . or [a] part of each claim or defense." Fed.R.Civ.P. 56(a). " A party asserting
that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A). " A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, 477 U.S. at 248). An issue is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. The party seeking summary judgment " bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297, 260 U.S.App.D.C. 334 (D.C. Cir. 1987).
In considering a motion for summary judgment, " the evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850, 371 U.S.App.D.C. 68 (D.C. Cir. 2006). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242, 259 U.S.App.D.C. 115 (D.C. Cir. 1987).
" FOIA provides a 'statutory right of public access to documents and records' held by federal government agencies." Citizens for Responsibility & Ethics in Washington v. DOJ, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413, 218 U.S.App.D.C. 17 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such " information is exempted under [one of nine] clearly delineated statutory language." Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b).
" 'FOIA cases typically and appropriately are decided on motions for summary judgment.'" Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). Thus, the burden is on the agency to show that nondisclosed, requested material falls within a stated exemption. Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1433, 298 U.S.App.D.C. 125 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)); Liberty Lobby, 477 U.S. at 254. In cases concerning the applicability of exemptions and the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU v. U.S. Dept. of Def., 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011); Students Against Genocide v. Dep't of State, 257 F.3d 828, 838, 347 U.S.App.D.C. 235 (D.C. Cir. 2001). " If an agency's affidavit describes the justifications for withholding the information with specific detail, ...