United States District Court, District of Columbia
GALE A. RACHUY, Plaintiff,
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
RUDOLPH CONTRERAS, District Judge.
This matter is before the Court on Defendants' Motion to Dismiss or Alternatively, for Summary Judgment. For the reasons discussed below, the motion will be granted.
Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the United States Department of Justice ("DOJ"). Generally, plaintiff demands the release of records maintained by two DOJ components: the Executive Office for United States Attorneys ("EOUSA") and the Federal Bureau of Investigation ("FBI"). See Complaint ("Compl.") ¶¶ 1, 4.
A. Request to the EOUSA
Plaintiff initially submitted his FOIA request to the United States Attorney for the Western District of Wisconsin, who forwarded it to the FOIA/PA Unit of the EOUSA for processing. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss, or, Alternatively, for Summary Judgment, ECF No. 27-1 ("Def.'s Mem."), Declaration of David Luczynski Concerning Fees and Supplemental Release, ECF No. 27-5 ("Supp. Luczynski Decl.") ¶ 3. The EOUSA received the request on June 29, 2012, and assigned the matter a reference number, Request No. 12-2504. Supp. Luczynski Decl. ¶ 4; see id., Ex. B (Letter to plaintiff from Susan B. Gerson, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated June 29, 2012). Plaintiff subsequently clarified his request to include not only "investigative materials under his name in EOUSA's files, " id. ¶ 5, but also "[a]ny Grand Jury minutes, indictments, or any related documentation from January 1, 2010 to November 30, 2012 inclusive, " id., Ex. C (Letter to United States Attorney - Western District of Wisconsin from plaintiff dated November 30, 2012) at 1. On September 13, 2013, the EOUSA released 118 pages of records in full and withheld 2 pages in full, relying on FOIA Exemptions 3, 5 and 7(C). Id. ¶ 6; see generally id., Ex. D (Letter to plaintiff from Susan B. Gerson dated September 13, 2013). The EOUSA released 14 additional pages of records on or about April 1, 2014. Id. ¶ 7.
Due to an "apparent error" at the United States Attorney's Office for the Western District of Wisconsin, id., Ex. E (Letter to David Luczynski from Richard D. Humphrey, Assistant United States Attorney, Western District of Wisconsin, dated April 17, 2014) at 1, "additional records responsive to plaintiff's request" subsequently were located, id. ¶ 7. The FOIA Contact at the Western District of Wisconsin forwarded to the EOUSA three boxes of documents in April 2014. Id. ¶ 9. After a cursory examination of the three boxes, each "nearly filled to capacity, " the EOUSA estimated that it "received between 5500-6000 pages which may be responsive to plaintiff's request and/or duplicative of responsive records previously released." Id. ¶ 10. Based on the "EOUSA's cost for duplicating records [at] $0.10 per page [and] on the total page estimate, " fees would exceed $25.00. Id. ¶ 11. The EOUSA notified plaintiff of the anticipated fees, informed him of "options designed to reduce the anticipated fees, " and advised him that his request would "not be considered received and further work [would] not be completed until [he] agree[d] to pay the anticipated fees." Id. ; see id., Ex. F (Letter to plaintiff from Susan B. Gerson dated April 21, 2014) at 1. Further, the EOUSA advised plaintiff of his opportunity to pursue an administrative appeal of this determination to the DOJ's Office of Information Policy. Id., Ex. F at 1.
In anticipation of plaintiff's agreement to pay fees, the EOUSA continued to process the records received from the United States Attorney's Office for the Western District of Wisconsin. Id. ¶ 13. It released in full 500 pages of records on June 25, 2014, id. ¶ 17, and "released [an] additional 500 pages of records" on July 7, 2014, id. ¶ 18, along with a letter informing plaintiff that his "request [would] be closed and any future requests for records will be rejected until payment is received, " id., Ex. H (Letter to plaintiff from Susan B. Gerson dated July 7, 2014) at 1. As of July 29, 2014, the date of the supporting declaration, the "EOUSA had not received any communication from the plaintiff regarding the additional release [or] fees." Id. ¶ 19.
B. Requests to the FBI
1. FOIPA Request No. 1204483
In his November 2012 FOIA request to the FBI, plaintiff sought reports maintained by its Eau Claire, Wisconsin field office and, specifically, "reports concerning three (3) computers which were taken into custody on December 28, 2007... and delivered to the FBI Laboratory in Milwaukee on or about that same date." Def.'s Mem., Declaration of David M. Hardy, ECF No. 27-3 ("Hardy Decl."), Ex. A (Letter to David M. Hardy, Records/Information Dissemination, FBI, from plaintiff dated November 30, 2012) at 1. He also sought "reports of the investigations, which... resulted in [his] conviction in United States v. Rachuy, Western District of Wisconsin, 10-cr-141-wmc." Hardy Decl., Ex. A at 1. A search of the FBI's Central Records System yielded approximately 1, 216 pages of records deemed potentially responsive to the request, which had been designated FOIPA Request No. 1204483. Id. ¶¶ 9-10.
The FBI ultimately "reviewed 1, 179 pages of records, " and on December 18, 2013, it "released 798 pages of records in full or in part, and released the same pages, on a CD, to plaintiff's wife, " id. ¶ 16, as plaintiff had directed, id. ¶ 11. Although the FBI provided the CD at no cost to plaintiff, it assessed a fee of $79.80 for copying 798 pages of records. Id. ¶ 16 & n.2. Plaintiff was directed to remit payment within thirty days, and was further advised that "non-payment... would result in the closing of any pending FOIPA request from him, including this one, and an automatic denial of any future FOIPA requests." Id. ¶ 16; see id., Ex. H (Letter to plaintiff from David M. Hardy dated December 18, 2013) at 2. The FBI also advised plaintiff that he could appeal the determination to the DOJ's Office of Information Policy. Id., Ex. H at 2.
The FBI's search also yielded records which had originated at the EOUSA. Id. ¶ 19. The FBI referred these ...