United States District Court, D. Columbia.
MARYLAND, Plaintiff, Pro se, Greenbelt, MD.
DEPARTMENT OF VETERAN AFFAIRS, Center for Verification and
Evaluations, Defendant: Jeremy S. Simon, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
M. COLLYER, United States District Judge.
Maryland, proceeding pro se, brings suit against the
U.S. Department of
Veteran Affairs (VA), Center for Verification and Evaluations
(CVE) under the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552, seeking the release of records relating to the VA
website that serves as a federal government portal for
veteran-owned businesses, https://www.vip.vetbiz.gov/ . The
VA has moved for summary judgment, and Mr. Maryland has
cross-moved for summary judgment. For the reasons below, the
Court will grant VA's motion and deny Mr. Maryland's
an office within the VA's Office of Small and
Disadvantaged Business Utilization (OSDBU). See VA
Mot. for Summ. J. [Dkt. 42] (Def. Mot.), Supp. Decl. of
Laurie Karnay (Karnay Decl.) ¶ 5. CVE
seeks to enable service-disabled Veteran-owned small
businesses (SDVOSB) and Veteran-owned small businesses
(VOSB), to compete for and win contracts with VA. CVE
verifies applications submitted by Veteran small business
owners interested in competing for Veteran set-aside
procurement opportunities. If approved, businesses are listed
on the Vendor Information Pages (VIP), which is a database
used by the VA Acquisition community to find firms for
Veteran set-aside procurement opportunities. CVE maintains
the VIP " Vetbiz" database, which contains data on
approved Veteran-owned companies, such as business addresses.
. . . The information regarding businesses in the VIP
database is regularly updated to reflect the current status
of businesses that have applied for inclusion in the
Maryland has repeatedly requested " information
regarding businesses that have applied, or have applications
pending, for verification. This includes those businesses
that have been approved or denied, or that have withdrawn
from, or been cancelled from, the verification program."
Id. ¶ 6.
two of Mr. Maryland's FOIA requests are the subject of
this action: a FOIA request dated August 13, 2013 with an
addendum dated August 22, 2013 (collectively, the August 2013
Request) which CVE assigned tracking number 13-06522-F, and a
FOIA request dated November 5, 2014 (November 2014 Request)
which CVE assigned tracking number 15-00846-F. Id.
¶ ¶ 6, 9, 16.
August 2013 Request
Maryland's August 2013 Request " included four
parts, each of which consisted of a list of items of
information about business applications that had applied to
CVE for certification and inclusion in CVE's VIP database
for a period 'within thirty (30) days before the
date' that VA responded to the request."
Id. ¶ 9; see Karnay Decl., Ex. 1
(August 2013 Letter) at 18-21 and Ex. 2 (August 2013
Addendum) at 23-27. Mr. Maryland requested a fee waiver
for the August 2013 Request. Id., Ex. 3 (Fee Waiver
Request) at 29-34.
response to Mr. Maryland's August 2013 Request, CVE
explained that it was withholding certain responsive records
under FOIA Exemptions 3, 5, and 6 and directed Mr. Maryland
to www.vip.vetbiz.gov where the other requested information
was publicly available. Id., Ex. 4 (September 2013
Determination) at 36-40. CVE placed Mr. Maryland's
request in the commercial requester category and determined
that the fees associated with " search, review,
duplication and mailing" would be $18,447.58.
Id. at 37. CVE informed Mr. Maryland that he was
required to pay the fee before CVE would process his request.
Maryland appealed CVE's September 2013 Determination to
VA's Office of General Counsel (OGC). OGC issued its
final administrative decision on November 26, 2013, granting
Mr. Maryland's appeal in part. See id., Ex. 5
(OGC's November 2013 Remand) at 42-43. OGC determined
that " applicable law requires the release of the names
and locations of businesses which were denied
inclusion in the VIP database." Id. at 42. OGC
further concluded that CVE's determination that Mr.
Maryland was a commercial use requester required further
elucidation and that " CVE's fee determination was
not made in accordance with the FOIA or VA's FOIA
regulations." Id. at 42-43. OGC remanded the
case to CVE for further processing. Id. at 43.
remand, CVE conducted a de novo review of Mr.
Maryland's August 2013 Request and issued its response on
January 27, 2014. See id., Ex. 6 (January 27 Letter
Part 1) at 45-49; id., Ex. 7 (January 27 Letter Part
2) at 51-53. CVE released certain responsive records and
specified that the remaining items were publicly viewable,
not maintained by CVE, or withheld pursuant to FOIA Exemption
5. Id. at 46-47. CVE again placed Mr. Maryland's
request in the commercial requester category because his
" response did not adequately satisfy the requirements
to receive a Fee Waiver." Id. at 45-46. CVE
reasoned that Mr. Maryland planned to disseminate the
requested information through a private Facebook page and a
closed email list so that only people invited by Mr. Maryland
would have access to the information. CVE contrasted Mr.
Maryland to " representatives of the media [who] have
full and open disclosure to all citizens." Id.
at 45. CVE also justified placing Mr. Maryland in the
commercial fee category based on his purported statement to a
VA FOIA Office that it was important for him to receive the
information as soon as possible because he had been paid for
it and the payers were expecting him to deliver the
information. Id. at 46. CVE informed Mr. Maryland
that the revised fee estimate for processing his request
would be $241.69. Id. However, CVE did not assess a
fee because it had failed to comply with FOIA time limits for
completing the search and was prohibited by regulation for
charging a fee in such situation. Id. at 46 (citing
38 C.F.R. Part 1). CVE continued to withhold "
individual names in email addresses that identified an
individual under FOIA Exemption 6 and disclosed the remaining
email addresses of initially or finally denied
businesses." Karnay Decl. ¶ 12. CVE reasoned that
" FOIA Exemption 6 . . . protects all information which,
if disclosed, would constitute a clearly unwarranted invasion
of an individual's personal privacy." Id.,
Ex. 7 (January 27 Letter Part 2) at 52.
February 27, 2014, Mr. Maryland appealed parts of CVE's
determinations on his August 2013 Request to OGC: (1)
CVE's placement of his request in the commercial
requester category and (2) CVE's decision to withhold
personal names in email addresses under FOIA Exemption 6.
Karnay Decl. ¶ 15; id., Ex. 8 (Second Appeal)
at 55-71. OGC had not acted on
Mr. Maryland's appeal when he filed suit here in August
2014. Karnay Decl. ¶ 15. OGC must decide appeals within
20 working days of their receipt. See 5 U.S.C.
§ 552(a)(6)(A)(ii). Mr. Maryland is deemed to have
exhausted his administrative remedies with respect to his
appeal because OGC failed to comply with the applicable time
provisions. Id. § 552(a)(6)(C).
November 2014 Request
to his November 2014 Request, Mr. Maryland " requested
fifteen items of information related to each Veteran-Owned
Small Business, Service-Disabled Veteran-Owned Small
Business, or Joint Venture (i) for which CVE had approved
inclusion in its VetBiz Vendor Information Pages (VIP)
database; (ii) that had applied for inclusion in VetBiz VIP;
(iii) that CVE had denied, by means of a final denial letter,
inclusion in VetBiz VIP; (iv) that CVE denied, by means of an
initial denial letter, inclusion in VetBiz VIP; and (v) that
withdrew their application for inclusion in VetBiz VIP."
Karnay Decl. ¶ 16; see id., Ex. 9 (November
2014 Request) at 73-77. By letter dated November 25, 2014,
the VA informed Mr. Maryland that it placed his request in
the " All Other" fee category and requested payment
of $183.08 to process his November 2014 Request.
Id., Ex. 10 (2014 Fee Estimate Letter) at 79. Mr.
Maryland paid the requested fee. Karnay Decl. ¶ 17.
December 10, 2014, CVE issued an initial agency
determination, releasing some of the information requested in
November 2014 and concluding that the rest of the requested
information was publicly available or subject to withholding
pursuant to FOIA Exemptions 5 or 6. Id. ¶ 18.
Consistent with its response to Mr. Maryland's August
2013 Request, " [w]ith regard to email addresses of the
businesses initially or finally denied, CVE released the
email addresses in part, withholding the names of individuals
when they appeared in an email address, based upon FOIA
Exemption 6." Id.
Maryland appealed CVE's December 2014 determination in
part. He appealed CVE's invocation of Exemptions 5 and 6
to withhold records and CVE's referral to other
government websites to obtain information in lieu of
providing the information itself. Id. ¶ 19, Ex.
12 (2014 Appeal) at 88. He also requested a refund of the fee
paid for records that were not provided to him. Id.
March 6, 2015, VA OGC issued a final agency decision,
upholding CVE's invocation of Exemption 6 as to
individual names in email addresses for businesses denied
inclusion on the VetBiz database and concluding that "
CVE's action with regard to the fee assessment associated
with the November 5, 2014 request had been in accordance with
the law and agency practice." Id. ¶ 20.
Subsequent to VA OGC's decision, CVE re-evaluated its
withholding of information in response to the November 2014
Request and made a supplemental release of information to Mr.
Maryland on May 29, 2015 and August 3, 2015. Def. Reply [Dkt.
53], Second Supp. Decl. of Laurie Karnay (Karnay Supp. Decl.)
¶ ¶ 8, 11. CVE continued to withhold personal names
in email addresses that were also withheld in response to the
August 2013 Request. Karnay Decl. ¶ 22.
Maryland filed his original Complaint on August 4, 2014 and
filed an Amended Complaint on October 28, 2014, which the
Court accepted due to Mr. Maryland's pro se
status. See 10/28/14 Minute Order. Mr.
Maryland's Amended Complaint alleged two counts. Count
One was styled as a request for an injunction ...