United States District Court, District of Columbia
DAVID W. LINDER, Plaintiff,
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.
N. MCFADDEN, U.S.D.J.
David W. Linder, appearing pro se, filed this action
under the Freedom of Information Act (“FOIA”) to
compel the Executive Office for United States Attorneys
(“EOUSA”) to produce his “evidence book,
” which he characterizes as “essentially trial
exhibits” used during his criminal trial. Compl. 1, 3.
Because Mr. Linder's subsequent filings reiterated his
focus on “the evidence book, ” see
Traverse [sic.] to Gov't Return, ECF No. 13, the Court
determined that EOUSA's sweeping motion for partial
summary judgment, ECF No. 21, had gone well beyond the scope
of Mr. Linder's claim and ordered EOUSA to supplement the
record with a declaration addressing the FOIA request giving
rise to this action. See June 11, 2018 Memorandum
Opinion (“Mem. Op. I”) at 1, 5-6, 8, ECF No. 31.
EOUSA has filed a Response, ECF No. 33, demonstrating its
entitlement to summary judgment. Mr. Linder has not complied
with the July 3, 2018 order to respond to the supplemental
filing by September 10, 2018. Accordingly, for the reasons
explained below, the Court will grant EOUSA's motion and
enter final judgment.
relevant history was set out previously, see Mem.
Op. I at 2-4, and bears no repeating except as follows. In
Request 2015-02765, submitted by letter of May 7, 2015, Mr.
Linder sought the “Evidence Book” which he stated
to be “[a]pproximately 120 pages.” Decl. of
Tricia Francis Ex. X, ECF No. 21-4 at 25. EOUSA originally
informed Mr. Linder that the United States Attorney's
Office for the Eastern District of Virginia had located
“approximately 1, 500 pages of potentially responsive
records” but as the search was ongoing, it did not know
“how many total responsive pages would be found.”
Id. Ex. Z. EOUSA estimated the duplication cost for
the 1, 500 pages to be $70.00, and asked Mr. Linder to agree
to pay the fee or select another option set out in the
form signed on September 10, 2015, Mr. Linder checked the
option stating: “Please do not search any longer. I
understand that I am entitled to the first 100 pages free. If
you have found releasable documents, send me the free
documents and close my case.” Id. Ex. AA. In
an accompanying letter, Mr. Linder confirmed that he was
asking EOUSA to “only include the first 100
pages.” Id. EOUSA conveyed Mr. Linder's
response to the FOIA officer at the United States
Attorney's Office, who “provided EOUSA with only
502 pages of potentially responsive records to review,
” Second Declaration of Tricia Francis (“Supp.
Francis Decl.”) ¶ 5, ECF No. 33-1, “taken
from the contents of the 4-inch 3-ring ‘AUSA Exhibit
Book' binder, ” Second Declaration of Cheryl Root
(“Supp. Root Decl.”) ¶ 10, ECF No. 33-2.
February of last year, during the course of this litigation,
EOUSA informed Mr. Linder that his request number 2015-02765
had been processed. EOUSA released in full 453 of 502
responsive pages. It released the remaining 49 pages in part,
withholding information under FOIA exemptions 6 and 7(C).
Francis Decl. ¶ 57; Traverse to Resp't's Opp. to
Pl.'s Mot. for Summ. J., ECF No. 30 at 22 (release
thereafter, EOUSA received a letter from Mr. Linder, stating:
“The release looks to be the first half. When can I
expect the second half of the evidence?” Francis Decl.,
Ex. BB, ECF No. 21-4 at 49. The record contains no reply to
Mr. Linder's inquiry. Therefore, the Court deferred
ruling on EOUSA's summary judgment motion pending a more
fulsome explanation of its search for responsive records and
claimed exemptions. Mem. Op. I at 1. Ms. Francis states that
in the course of preparing the second declaration, she
discovered that the information contained in the partially
withheld 49 pages was released to Mr. Linder in April 2018,
in response to another request. Supp. Francis Decl. ¶
10. Accordingly, EOUSA re-released those pages to Mr. Linder
in full in July 2018, id., Ex. A, thereby negating
the exemption question.
agency's disclosure obligations are triggered by its
receipt of a request that “reasonably describes [the
requested] records” and “is made in accordance
with published rules stating the time, place, fees (if any),
and procedures to be followed.” 5 U.S.C. §
552(a)(3)(A). The “vast majority” of FOIA cases
can be decided on motions for summary judgment, supported by
an agency's non-conclusory declarations. Brayton v.
Office of U.S. Trade Representative, 641 F.3d 521, 527
(D.C. Cir. 2011); see Mem. Op. I at 4-5 (discussing
FOIA regulations provide in relevant part:
In cases in which a requester has been notified that the
actual or estimated fees are in excess of $25.00, the request
shall not be considered received and further work will not be
completed until the requester commits in writing to pay the
actual or estimated total fee, or designates some amount of
fees the requester is willing to pay, or in the case of a
noncommercial use requester who has not yet been provided
with the requester's statutory entitlements, designates
that the requester seeks only that which can be provided by
the statutory entitlements.
28 C.F.R. § 16.10(e)(2). Mr. Linder clearly chose the
latter option. In reply to EOUSA's fee letter, he
requested that the search be discontinued, the 100 free pages
be released, and the request be closed. Francis Decl., Ex.
AA. Despite confirming this selection in an accompanying
letter, he claimed to have already paid a duplication fee
that would allow for further work on his request to be
completed. Id. However, as the Court noted in its
June 11, 2018 Opinion, Mr. Linder paid these fees for
separate FOIA requests made to EOUSA. See Mem. Op. I
at 6 n.4 (detailing the FOIA requests for which Mr. Linder
has paid the required fees).
Linder's reply thus not only “limited the number of
pages he would receive from EOUSA pursuant to this FOIA
request, ” Supp. Francis Decl. ¶ 3, but ended
EOUSA's obligation to continue searching for responsive
records. So EOUSA's full release of the pages Mr. Linder
opted to receive by statutory right ends this matter. For
“once all the [requisite] documents are released to the
requesting party, there no longer is any case or