United States District Court, District of Columbia
of the five Freedom of Information Act cases consolidated
here, Plaintiff Freedom Watch, Inc. has sought records
broadly related to memoranda prepared by former Federal
Bureau of Investigation Director James Comey that concern
certain prominent government officials. The Department of
Justice now seeks judgment on the pleadings or summary
judgment on this piece of the case, which Motion Plaintiff
has not even opposed. As the Court agrees with DOJ that
Freedom Watch did not sufficiently exhaust its request, the
Motion will be granted.
Plaintiff did not file an opposition to the instant Motion,
the Court draws the following facts from the record,
accepting as true all of Defendant's supported factual
assertions. See Fed.R.Civ.P. 56(e)(2); Winston
& Strawn, LLP v. McLean, 843 F.3d 503, 509 (D.C.
Watch's FOIA request at issue, dated May 18, 2017, sought
from the Criminal Division of DOJ: “Any and all
documents and records as defined . . . which constitute,
refer, or relate in any way to any
memoranda prepared, written and/or issue[d] by former FBI
Director James Comey concerning Barack Obama, Hillary
Clinton, Bill Clinton, Lieutenant General Michael Flynn, and
President Donald Trump.” Def. Statement of Undisputed
Facts, ¶ 1 (emphasis added). On May 30, Justice
acknowledged receipt of the request, but it noted that a
proper FOIA request “must reasonably describe the
records sought” and explained what that entailed.
Id., ¶ 4. Defendant further informed Plaintiff
that, absent a clarification or narrowing within 30 days, the
case would be administratively closed. Id., ¶
5. Freedom Watch did not respond. Id., ¶ 6.
nonetheless brought this action against DOJ and the FBI.
See No. 17-1212, ECF No. 1. Justice alone has now
moved for judgment on the pleadings or, in the alternative,
for summary judgment. Freedom Watch, once again, remains
Court decides the matter under the summary-judgment standard,
it lays out the law relating only to that type of motion.
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). A fact is “material” if it is
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the non-moving party. See Scott v.
Harris, 550 U.S. 372, 380 (2007); Liberty
Lobby, 477 U.S. at 248. “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” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA
case, a court may grant summary judgment based solely on
information provided in an agency's affidavits or
declarations when they “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the
claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith.” Larson v. Dep't of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (citation omitted). “Unlike
the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or
capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” Dep't of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)).
the non-movant fails to file an opposition, the court may not
treat the motion as conceded. See Winston &
Strawn, 843 F.3d at 505-06. Rather, “a district
court must always determine for itself whether the record and
any undisputed material facts justify granting summary
judgment.” Id. at 507 (quoting Grimes v.
Dist. of Columbia, 794 F.3d 83, 95 (D.C. Cir. 2015)). In
doing so, the court may, however, accept the moving
party's uncontested assertions of fact as true.
See Fed.R.Civ.P. 56(e)(2).
seeking summary judgment here, DOJ principally argues that
the overbreadth of Freedom Watch's request means that it
has not complied with the agency's FOIA guidelines.
Courts often talk about the need to abide by such procedures
as the “exhaustion” requirement. Such
“[e]xhaustion of administrative remedies is generally
required before filing suit in federal court.”
Oglesby v. Dep't of Army, 920 F.2d 57, 61 (D.C.
Cir. 1990). A plaintiff's “failure to comply with
an agency's FOIA regulations is the equivalent of a
failure to exhaust” and generally subjects the case to
dismissal. West v. Jackson, 448 F.Supp.2d 207, 211
(D.D.C. 2006); see Hidalgo v. FBI, 344 F.3d 1256,
1258 (D.C. Cir. 2003) (affirming Rule 12(b)(6) dismissal for
failure to exhaust); Hinojosa v. Dep't of
Treasury, No. 06-215, 2006 WL 2927095, at *4 (D.D.C.
2006) (“Failure to file a perfected request constitutes
failure to exhaust administrative remedies and subjects the
requesting party's suit to dismissal.”). To
“maintain a civil action, ” a litigant must thus
first “properly initiate” FOIA's
administrative process by following each agency's
“published rules” on request procedures.
Brown v. FBI, 675 F.Supp.2d 122, 126 (D.D.C. 2009);
see, e.g., Oglesby, 920 F.2d at 66-67
(requiring litigant to comply with published rules on fees
before proceeding); see also Lewis v. DOJ, 733
F.Supp.2d 97, 107 (D.D.C. 2010); Calhoun v. DOJ, 693
F.Supp.2d 89, 91 (D.D.C. 2010); Antonelli v. Fed. Bureau
of Prisons, 591 F.Supp.2d 15, 26 (D.D.C. 2008).
are not mere formalities to be routinely ignored, some
unseemly morass of bureaucratic red tape. Rather,
“[e]xhaustion has long been required in FOIA
cases” as a core component of “‘orderly
procedure and good administration.'” Dettmann
v. DOJ, 802 F.2d 1472, 1476 n.8 (D.C. Cir. 1986)
(quoting United States v. Tucker Truck Lines, 344
U.S 33, 37 (1952)). Complying with the regular process allows
an agency “an opportunity to exercise its discretion
and expertise on the matter and to make a factual record to
support its decision.” Oglesby, 920 F.2d at
61. As a result, “an agency's obligation under FOIA
begins only upon receipt of a valid request.”
Freedom Watch v. U.S. Dep't of State, 925
F.Supp.2d 55, 60 (D.D.C. 2013) (internal quotation marks and
case, DOJ's regulations require that a requester
“describe the records sought in sufficient detail to
enable Department personnel to locate them with a reasonable
amount of effort.” 28 CFR § 16.3(b). “To the
extent possible, requesters should include specific
information that may assist a component in identifying the
requested records, such as the date, title or name, author,
recipient, subject matter of the record, case number, file
designation, or reference number.” Id. If the
DOJ component “determines that [such request] does not
reasonably describe the records sought, the component shall
inform the requester what additional information is needed or
why the request is otherwise insufficient.”