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Freedom Watch, Inc v. Federal Bureau of Investigation

United States District Court, District of Columbia

January 4, 2019

FREEDOM WATCH, INC., Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. Background

         Little 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 sought:

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.

         One 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.

         With 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.

         II. Legal Standard

         Although “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).

         Rule 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)).

         III. Analysis

         A 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 process.”).

         FOIA 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 ...


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