United States District Court, District of Columbia
A. HOWELL Chief Judge
plaintiff brings this action under the Freedom of Information
Act (“FOIA”), see 5 U.S.C. § 552,
and the Privacy Act, see 5 U.S.C. § 552a,
against the United States Department of Justice
(“DOJ”), seeking information from the Federal
Bureau of Investigation (“FBI”) about himself,
see generally Defs.' Mem. of P. & A. in
Support of Defs.' Mot. for Summ. J. (“Defs.'
Mem.”), Ex. 1 (“Hardy Decl.”), Ex. A, ECF
No. 14-3. Pending before the Court is the defendants'
Motion for Summary Judgment, ECF No. 14, which, for the
reasons discussed below, is granted.
connection with this litigation, FBI staff conducted
“[a] thorough review of the many years of
correspondence” with the plaintiff, and concluded that
his prior FOIA request had been “fulfilled
appropriately.” Hardy Decl. ¶ 5. This review also
revealed that the plaintiff “still owes $20.10 for
duplication fees associated with [the] June 2000
release” of records responsive to FOIPA No. 430046-001.
Id. ¶ 5 n.2; see id., Ex. A (Letter to
the plaintiff from John M. Kelso, Jr., Chief, Freedom of
Information-Privacy Acts Section, dated June 7, 2000 at 2).
Only two FOIA requests are relevant to this civil action: the
first submitted on June 18, 2012, and the second on August 8,
2014. See Am. Compl. at 8. The plaintiff's
Privacy Act claim pertains to his efforts, beginning in 1997,
to remove an allegedly false “‘warning'
stamped on top of his [FBI] file [suggesting] that he was an
infected person or carrier of the AIDS/HIV virus.”
Id. at 7.
plaintiff addressed his 2012 FOIA request to the FBI's
Miami Field Office and sought “[c]opies of [his] U.S.
Passport and the Naturalization for U.S. Citizenship
Certificate.” Hardy Decl. ¶ 8; id., Ex. C
at 1. Field Office staff forwarded the request to the
FBI's headquarters in Washington, DC
(“FBIHQ”) for processing. Id. ¶ 9.
FBIHQ staff acknowledged receipt of the request, which was
assigned FOIPA No. 1193637-000, by letter dated July 2, 2012.
Id.; see id. Ex. D.
response to the 2012 FOIA request, on “March 5, 2014,
the FBI released seven (7) pages of responsive material . . .
with no redactions.” Id. ¶ 12; see
id., Ex. G. The plaintiff timely filed an
administrative appeal of the FBI's determination to the
DOJ's Office of Information Policy (“OIP”),
id. ¶ 13, and OIP assigned the matter a
tracking number, AP-2014- 02553, see Am. Compl. Ex.
F. He not only challenged the FBI's determination, but
also mentioned additional items described by the FBI's
declarant as follows:
First, he claimed that the FBI had improperly withheld agency
records. He referenced and included his FOIPA request of
November 15, 1996, and appeared to be untimely appealing the
withholding of those records. Second, he claimed that the FBI
had improperly failed to correct his records under the
Amendment request. Third, he appeared to claim that the FBI
needed to correct another aspect of his record and that the
FBI did not follow correct extradition procedures in his
arrest. Fourth, he appeared to be making a new request for
records related to the Top Ten Most Wanted. This appeal
letter contained multiple exhibits of correspondence from
former FOIPA requests, as well as FBI documents that had been
released to Plaintiff.
Hardy Decl. ¶ 13; see generally id., Ex. H. OIP
affirmed, concluding that the FBI had “conducted an
adequate, reasonable search for responsive records subject to
the [FOIA].” Am. Compl., Ex. G at 1. With respect to
the “various additional records” the plaintiff
sought, OIP advised that the plaintiff could “not on
appeal expand the scope of [his] original request, which was
limited to a copies of [his] U.S. Passport and [his]
‘Naturalization for U.S. Citizenship
Certificate.'” Id., Ex. G at 1. Rather,
OIP suggested that the plaintiff submit a new FOIA request to
the FBI. Id., Ex. G at 1. Similarly, insofar as the
plaintiff sought “amendment of the medical information
maintained in the FBI's files, ” OIP advised the
plaintiff to “make an amendment request directly to the
FBI” under the Privacy Act. Id., Ex. G at 1.
letter dated August 8, 2014, the plaintiff submitted a new
FOIA request to the FBI. Hardy Decl. ¶ 16. Contained
therein was a request for amendment of FBI records. See
id., Ex. K at 3, 7-10. The FOIA portion of this second
request, which was assigned FOIPA No. 1304654-000, see
id., Ex. L, sought “his entire FBI file from
January 1, 1990, through January 1, 2000[, ] copies of floppy
discs, computer programs, documents, and files that the FBI
seized, ” as well as “copies of all documents and
posters related to the ‘Ten Most Wanted, '”
id. ¶ 16; see id., Ex. K at 1, 4-6,
10. The FBI assigned plaintiff's request for amendment of
records a separate tracking number, FOIPA No. 1308572-000.
Id. ¶ 18; see id., Ex. M.
staff conducted a search of the Central Records System using
variations of the plaintiff's name and potential aliases
as search terms. Id. ¶ 29. The FBI responded to
the plaintiff's 2014 FOIA request by letter, dated
January 21, 2015, advising “that search fees pursuant
to 28 C.F.R. § 16.11(c)(1) were due in the amount of $25
for search time already completed concerning his request,
” since “the FBI had exhausted the allowable two
(2) hours of free search time, and had conducted
approximately one additional hour of searching.”
Id. ¶ 21. The plaintiff was cautioned
“that his request would be closed if he failed to pay
the search fees within thirty (30) days from the date of its
fee letter.” Id.; see id., Ex. O at 1
(“This agency will not conduct any additional searching
for responsive records for the subject of your FOIPA if
payment is not received for search fees already incurred.
Additional search fees will be assessed even if no additional
records are located, and/or the records located are entirely
exempted from disclosure pursuant to the FOIA.”).
Although staff “identified numerous potentially
responsive records, ” they neither continued the search
nor “review[ed] the identified records to determine
responsiveness, because [p]laintiff failed to pay the fees
billed in [the] January 21, 2015 letter.” Id.
¶ 29. “The expiration date for either paying the
$25 fee or responding to the fee letter was February 20,
2015, ” Defs.' Mem. at 2 n.1, and because the FBI
did not receive the plaintiff's payment, it
administratively closed FOIPA No. 1304654-000, Hardy Decl.
time the FBI received the plaintiff's 2014 Privacy Act
request for amendment of records, its staff did not realize
that the FBI had adjudicated the same request in 2002.
Id. ¶¶ 5, 31; see id., Ex. B. The
plaintiff had been detained at the Indianapolis County Jail
in January 1996, during which time he learned “that
numerous documents were stamped with an accusatory
‘warning' stating that he was a ‘known, '
infected person, or carrier of the dangerous and lethal virus
AIDS/HIV.” Am. Compl. at 9. For this reason, the
plaintiff allegedly suffered “embarrassment,
humiliation and mental suffering” after other prisoners
read the warning, yet his “efforts to clarify this . .
. issue” since 1997 were unsuccessful. Id. at
10. His request for “expunction of records indicating
that [he] may be a ‘known or suspected HIV (human
immunodeficiency virus) infected person'” had been
denied because the relevant records “are exempt from
the amendment provision of the Privacy Act . . . pursuant to
5 U.S.C. § 552a(j)(2).” Hardy Decl., Ex. B (citing
28 C.F.R. § 16.96 (2001)). Thus, the FBI took “no
action on this duplicative [a]mendment request, ” not
only because it had been “denied properly, ” but
also because “it is time barred.” Id.
addition to challenging the sufficiency of the
defendants' responses to his 2012 and 2014 FOIA and the
Privacy Act requests, the plaintiff alleges that the FBI
tampered with his legal mail, see Am. Compl. at 13,
“vandalized his personal computer [by] tampering with
the software(s) and programs, ” and otherwise by
“maliciously caus[ing] catastrophic damages to
documents, ” id. at 17; see id. at
21. According to the plaintiff, the FBI took possession of
his personal computer, read the draft of the manuscript, and
thereafter “tamper[ed] with computer software(s),
program(s), document(s) and manuscript editing and delet[ed
the manuscript] as cover-up.” Id. at 21.
(emphasis removed). These events allegedly occurred after the
plaintiff's arrest by FBI agents in December 1995 and
after the FBI “requested authorization” and the
plaintiff granted permission “to search and read his
personal computer's software(s), program(s), document(s),
manuscript(s) and nearly 40 Floppy Diskette(s), back-up
drives.” Id. at 16. Although the plaintiff
authorized the FBI to inspect documents, he later learned
“that the FBI had vandalized his personal
computer.” Id. at 17. According to the
plaintiff he “spent five . . . years conducting and
writing” the manuscript, and invested $15, 000 in his
personal computer and related equipment, as well as
“professional services of editing and typing.”
Id. at 21. He considered “[a]ll the computer
items . . . ‘proprietary, '” and alleged that
“the FBI was not authorized to vandalize and tamper
with” the equipment or the manuscript. Id. at
22. The plaintiff deems these actions violations of his
rights to due process and equal protection of the law,
id. at 22, for which he demands actual damages of
$15, 000, compensatory damages of $500, 000, and punitive
damages of $25, 000, id. at 24; see also
id. at 24-26; Pl.'s Resp. and Opp'n to
Defs.' Mot. for Summ. J . and Mem. (“Pl.'s
Opp'n”), ECF No. 47 at 26-27, 32-33, 39-40.