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Maryland v. United States Dep't of Veteran Affairs

United States District Court, D. Columbia.

September 17, 2015


Page 343

          LEON MARYLAND, Plaintiff, Pro se, Greenbelt, MD.

         For 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, Washington, DC.


Page 344

         ROSEMARY M. COLLYER, United States District Judge.

          Leon Maryland, proceeding pro se, brings suit against the U.S. Department of

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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, . 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 cross-motion.

         I. BACKGROUND

         A. Facts

         CVE is 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 database.


         Mr. 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 This includes those businesses that have been approved or denied, or that have withdrawn from, or been cancelled from, the verification program."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.

         Only 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.

         1. August 2013 Request

         Mr. 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[1] and Ex. 2 (August 2013 Addendum) at 23-27.[2] Mr. Maryland requested a fee waiver for the August 2013 Request. Id., Ex. 3 (Fee Waiver Request) at 29-34.

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          In 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 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. Id.

         Mr. 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.

         On 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.

         On 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

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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).

         2. November 2014 Request

         Pursuant 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.

         On 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.

         Mr. 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.

         On 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.

         B. Procedural History

         Mr. 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 ...

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