United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
Freedom Watch, Inc., wants access to any communications
between Defendant Federal Bureau of Investigation and a
nonprofit organization, the Southern Poverty Law Center. It
thus filed a Freedom of Information Act request to this
effect. After the FBI pointed out that the request contained
insufficient detail to allow it to perform a proper search,
Plaintiff, instead of providing the requested detail or
administratively appealing the Bureau's initial
assessment, skipped right to this Court. Defendant now moves
to dismiss, arguing that Freedom Watch thereby failed to
exhaust its administrative remedies. The Court agrees and
will grant the Motion.
need be said by way of background. Freedom Watch is a
nonprofit organization that “seeks to promote openness
within the federal government.” ECF No. 1 (Compl.),
¶ 3. Apparently alerted by a press report that the FBI
was working with the Southern Poverty Law Center to address
hate crimes, id., Attach. 1 at ECF pp. 7-9, Freedom
Watch sent a FOIA request to the Bureau on July 31, 2018. It
Any and all documents that refer or relate in any way to
collaboration and/or communication by and between the Federal
Bureau of Investigation and Southern Poverty Law Center and
any of its agents from January 20, 2008 to the present. See
attachment incorporated herein by reference.
Id. at ECF p. 3. The “attachment”
referenced appears to be the press clipping mentioned above.
week later, on August 6, 2018, the FBI responded, informing
Plaintiff that, pursuant to statute, the records sought must
be “reasonably described” and that Freedom
Watch's submission missed the mark. See ECF No.
8, Attach. 2, Exh. B (Letter from David M. Hardy to Larry
Klayman) at 1; see also 5 U.S.C. § 552(a)(3)(A)
(requiring agencies to make records available following
“any request for records which  reasonably describes
such records”). According to the letter,
Plaintiff's FOIA request did “not contain enough
descriptive information to permit a search of [the
Bureau's] records.” Hardy Letter at 1. The FBI then
detailed two possible avenues for Freedom Watch. It first
asked Plaintiff to “provide us with more specific
information” and included a list of types of
information that would permit Defendant to conduct a search
that could locate any responsive records. Id. As an
alternative, the FBI notified Freedom Watch that it could
file an administrative appeal. The letter provided the
logistical details necessary to do so. Id.
these two options on the table, Plaintiff chose neither.
Instead, less than ten days later, it filed suit in this
Court. Defendant now moves to dismiss under Rule 12(b)(6),
contending that Freedom Watch's failure to exhaust its
administrative remedies dooms its Complaint.
“FOIA cases typically and appropriately are decided on
motions for summary judgment, ” Kearns v. Federal
Aviation Admin., 312 F.Supp.3d 97, 104 (D.D.C. 2018),
the D.C. Circuit has instructed courts to analyze the issue
of exhaustion under Rule 12(b)(6). See Hidalgo v.
FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003) (vacating
grant of summary judgment and remanding FOIA case “with
instructions to the district court to dismiss the complaint
under [Rule] 12(b)(6) . . . for failure to exhaust
administrative remedies”); see also Acosta v.
FBI, 946 F.Supp.2d 47, 49-50 (D.D.C. 2013) (proceeding
this way); Jean-Pierre v. BOP, 880 F.Supp.2d 95, 100
n.4 (D.D.C. 2012) (stating similarly); Jones v. U.S.
DOJ, 576 F.Supp.2d 64, 66 (D.D.C. 2008) (same).
12(b)(6) permits a court to dismiss any count of a complaint
that fails “to state a claim upon which relief can be
granted.” In evaluating a motion to dismiss, the Court
must “treat the complaint's factual allegations as
true and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts
alleged.'” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)) (citation omitted). The court need not accept as
true, however, “a legal conclusion couched as a factual
allegation” or an inference unsupported by facts set
forth in the complaint. See Trudeau v. FTC, 456 F.3d
178, 193 (D.C. Cir. 2006) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
plaintiff seeking to bring a FOIA suit in federal court must
generally exhaust her administrative remedies before filing
suit. See Oglesby v. U.S. Dep't of Army, 920
F.2d 57, 61 (D.C. Cir. 1990). Exhaustion requires a plaintiff
to file a FOIA request with the relevant agency and then
appeal a denial of that request within the agency.
Id. If a request does not comply with the
statute's mandate or the agency's regulations, that
deficiency, too, dooms a challenge on exhaustion grounds.
See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.
2004); see also West v. Jackson, 448 F.Supp.2d 207,
211 (D.D.C. 2006) (“The failure to comply with an
agency's FOIA regulations is the equivalent of a failure
to exhaust.”); Kalu v. IRS, No. 14-998, 2015
WL 4077756, at *4 (D.D.C. July 1, 2015) (stating similarly
with respect to statute's requirements). If a requester,
therefore, “does not comply” with the statutory
requirement to submit a request that “reasonably
describes the records sought, ” but “nonetheless
files suit, she is said to have failed to exhaust her
administrative remedies, and she must file a perfected
request before a court will compel the agency to
respond.” Kalu, 2015 WL 4077756, at *4
(internal quotation marks omitted); see also Middle East
Forum v. U.S. Dep't of Treasury, 317 F.Supp.3d 257,
264 (D.D.C. 2018) (“Without a perfected request, an
agency has no duty to respond to FOIA requests, and the
requester fails to exhaust the administrative
exhaustion is a “jurisprudential doctrine, ”
rather than a jurisdictional one. See Hidalgo, 344
F.3d at 1258. Failure to exhaust thus does not always require
dismissal. Rather, “failure to exhaust precludes
judicial review if ‘the purposes of exhaustion' and
the ‘particular administrative scheme' support such
a bar.'” Wilbur, 355 F.3d at 677 (quoting Hidalgo,
344 F.3d at 1258-59). So, while dismissal is generally
appropriate if a plaintiff has failed to exhaust her FOIA
claims, it is not warranted in a particular case if enforcing
the requirement would subvert the purposes of exhaustion and
FOIA more generally. Id. The purpose of the
exhaustion requirement is to give ...