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Otero v. Department of Justice

United States District Court, District of Columbia

February 12, 2018

ROLANDO OTERO, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         The 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.[1]

         I. BACKGROUND

         In 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.

         The 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.

         In 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.[2] 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.

         By 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.

         FBI 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. ¶ 30.

         At the 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)).[3] 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. ¶ 31.

         In 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.

         II. ...


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