United States District Court, D. Columbia.
BRIAN NEARY, Plaintiff, Pro se, Bellmore, NY.
For FEDERAL DEPOSIT INSURANCE COMPANY, Legal Division, Defendant: Andrew A Nicely, Daniel Harold Kurtenbach, LEAD ATTORNEYS, FEDERAL DEPOSIT INSURANCE CORPORATION, Legal Division, Professional Liability Unit, Arlington, VA.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff Brian Neary, proceeding pro se, challenges the response of the Federal Deposit Insurance Corporation (" FDIC" ) to his March 2011 Freedom of Information Act (" FOIA" ) request for records that would identify " all  candidates interviewed for the FDIC, Corporate Employee Program, from its inception to the present."  Compl. at 1. Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, ECF No. 9. Plaintiff has opposed the motion, ECF No. 12, and defendant has filed a reply, ECF No. 13. Since the information plaintiff requests is contained in personnel records that are specifically exempt from disclosure under the statute, and plaintiff has not identified any overriding public interest or agency waiver that would justify compelling their release, the Court will grant defendant's motion and enter judgment accordingly.
By letter dated March 28, 2011, plaintiff requested " the names, addresses & dates interviewed of all applicants from the CEP recruitment events" so that he could identify individuals for a class action in an age discrimination complaint before the Equal Employment Opportunity Commission (" EEOC" ). Decl. of Hugo A. Zia, ECF No. 9-1, Ex. C; see Compl. at 1 (referencing FOIA Request Number 11-0544). On March 30, 2011, defendant informed plaintiff that the requested records were " categorically exempt form disclosure" and were being withheld under FOIA exemptions 2 and 6, codified in 5 U.S.C. § 552(b). Id., Ex. D. In his administrative appeal to the FDIC's General Counsel, plaintiff " emphatically reject[ed]" the FDIC's exemption 6 explanation " on two specific points." Id., Ex. E (Apr. 4, 2011 Appeal). First, plaintiff asserted that the agency was infringing upon his " freedom of speech" by preventing him from notifying " all rejected candidates" who were age 40 and above " with full-disclosure of the ostensible unethical behavior perpetrated within the CEP Program recruitment process," which in turn " impart[s] a valuable service in regard to their respective Title VII Rights as a protected class." Id. Second, plaintiff asserted that the agency was " directly interfering with my ability to construct/define an appropriate 'class' in hiding behind the exemption," which " was the primary reason behind [a judge's] dismissal of my original class complaint." Id.
On April 29, 2011, the General Counsel affirmed FDIC's decision to withhold information under FOIA exemption 6 and informed plaintiff of his right to seek judicial review. Id., Ex. F (Apr. 29, 2011 Dec.). The General Counsel determined that plaintiff had " not offered any persuasive arguments that tip the balance in favor of disclosure." Id. at 3. It further informed plaintiff that " the FDIC does not collect information for the purpose of determining job applicants' ages [and] does not require or request that applicants provide their dates of birth or ages in connection with job applications or during interviews." Id. at 1. Thus, as to that aspect of the request, no responsive records were available. See Id.
" FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). The district court reviews the agency's action de novo and " the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). To prevail in a FOIA action, an agency must demonstrate that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833, 347 U.S.App.D.C. 235 (D.C. Cir. 2001), quoting Goland v. CIA, 607 F.2d 339, 352, 197 U.S.App.D.C. 25 (D.C. Cir. 1978). In other words, the agency must show that " materials that are withheld . . . . fall within a FOIA statutory exemption." Leadership Conf. on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 252 (D.D.C. 2005). Since FOIA mandates a " strong presumption in favor of disclosure," United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), an agency's invocation of exemptions is to be " narrowly construed." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).
On summary judgment, the Court generally " must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706, 383 U.S.App.D.C. 290 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But where, in a FOIA case, a plaintiff has not provided evidence that an agency acted in bad faith, " a court may award summary judgment solely on the basis of information provided by the agency in declarations," Moore, 601 F.Supp.2d at 12, provided the declarations are not " conclusory[,] . . . vague or sweeping." King v. United States Dep't of Justice, 830 F.2d 210, 219, 265 U.S.App.D.C. 62 (D.C. Cir. 1987) (internal citation and quotation marks omitted).
I. Defendant's No-Records Response
The Court finds that the FDIC's no-records response to plaintiff's request for the applicants' ages was proper since the agency does not " require or request that CE Program applicants provide their dates of birth or ages in connection with job applications or during interviews," Zia Decl. ¶ 13, and " [i]t is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request." Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321, 220 U.S.App.D.C. 1 ...