Opinion
Civil Action No. 04-1100 (ESH).
March 9, 2005
MEMORANDUM OPINION
Plaintiff, a federal inmate proceeding pro se, brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against the Criminal Division, United States Department of Justice, the United States Probation Office for the Eastern District of Missouri, the United States Parole Commission, the United States Marshals Service, and the Executive Office for United States Attorneys. Defendants have filed a motion to dismiss and for summary judgment. Based on the applicable law and the undisputed material facts, the Court will grant defendants' motion.
Background
On March 4, 2004, plaintiff sent a letter to the United States Probation Office in Saint Louis, Missouri ("U.S. Probation") "seeking all information in your files that bears my name, all documents of reports, warrants of arrest, any investigative information furnished to the U.S. Marshal concerning violations, any electronic e-mails that bears my name." Defendants' Motion to Dismiss and for Summary Judgment ("Defts' Mtn."), Exhibit ("Ex.") 1. On March 11, 2004, U.S. Probation responded by stating that the Court was excluded from the provisions of the FOIA and the Privacy Act. Id., Ex. 2. Plaintiff appealed this decision to the Office of Information and Privacy ("OIP"). Id., Ex. 3. On March 31, 2004, the OIP informed plaintiff that it only adjudicated appeals from denials of access to information by components of the Department of Justice. Id., Ex. 4. The OIP also stated that the FOIA does not apply to Congress, the courts, or state or local government agencies. Id.
In a letter dated March 8, 2004, plaintiff requested that the United States Parole Commission ("Parole Commission") provide all records related to him. Id., Ex. 5. The Parole Commission has no record of receiving this request from plaintiff. Id., Ex. 8, Declaration of Michael A. Stover ("Stover Decl.") ¶ 5. After receiving no response from the Parole Commission, plaintiff appealed to the OIP on March 15, 2004. Id., Ex. 6. The OIP informed plaintiff that appeals of FOIA denials by the Parole Commission were adjudicated by that agency. Id., Ex. 7. The OIP provided plaintiff with the name of the FOIA officer at the Parole Commission and the agency's address. Id. The Parole Commission did not receive any correspondence from plaintiff. Stover Decl., ¶ 5.
On April 23, 2004, plaintiff sent a letter to the United States Marshals Service ("USMS") requesting all records pertaining to him, including seized asset records in his criminal forfeiture case and the agency's file pertaining to Bryant Troupe. Defts' Mtn., Ex. 9. On May, 10, 2004, the USMS acknowledged receipt of plaintiff's FOIA request and informed him that the agency had commenced a search for documents. Id., Ex. 23, Declaration of Shaaron L. Keys ("Keys Decl.") ¶ 3. Plaintiff appealed to the OIP on May 14, 2004, alleging that the USMS had not responded to his FOIA/Privacy Act request. Id., Ex. 10. The OIP informed plaintiff that it was closing his appeal file because he had filed the complaint in this case. Id., Ex. 10.
On August 6, 2004, the USMS informed plaintiff that, absent a written waiver, the USMS would neither confirm nor deny the existence of records pertaining to Bryant Troupe. Keys Decl. ¶ 4, Ex. C. The USMS also stated that the records, if they existed, would not be disclosed pursuant to Exemption 7 (C) of the FOIA and that disclosure would also violate the Privacy Act. Id. The USMS released 10 pages of documents to plaintiff on October 4, 2004, with minimal deletions, pursuant to FOIA Exemptions 2 and 7(C). Keys Decl. ¶ 7. The USMS also noted that it had provided plaintiff with 237 pages of records in response to his FOIA request in 1998. Id., Ex. E. Plaintiff was also advised by the USMS that in order for the agency to search for seized asset records he must provide the civil case number, the asset identification number, or a description of the assets. Id.
In prior litigation, this Court upheld the non-disclosure of this information from plaintiff pursuant to Exemption 7 (C). See id., Ex. 22, Memorandum, Boyd v. United States Marshals Service, No. 99-2712 (D.D.C. March 31, 2001).
On October 29, 2004, the Executive Office for United States Attorneys ("EOUSA") requested that the USMS reprocess plaintiff's request in light of ten third-party individual Privacy Act waivers received by the EOUSA from plaintiff. Id. ¶ 8, Ex. F. In response, on December 15, 2004, the USMS released 18 additional pages of records and withheld information pursuant to FOIA Exemptions 7 (C) and 7(D). Id. ¶ 10, Ex. H.
In a letter dated August 16, 2003, plaintiff sent a FOIA request to the Department of Justice's Criminal Division for records of electronic interceptions in his criminal case and any documents related to the release of grand jury transcripts to the Saint Louis, Missouri City Attorney's Office. Defts' Mtn., Ex. 12. The Criminal Division has no record of receiving this request. Id., Ex. 24, Declaration of Kathy Hsu ("Hsu Decl.") ¶ 5. Plaintiff sent a letter of appeal to the OIP . Id., Ex. 13. The OIP was informed that the Criminal Division had not received his request, but that a copy of plaintiff's request would be forwarded to that office. Id., Ex. 14. On August 10, 2004, the Criminal Division informed plaintiff that it had located an index reference that appeared to identify files responsive to his request, but that the files had been destroyed pursuant to a record destruction schedule. Id., Ex. 17.
The Criminal Division had previously provided records to plaintiff in 1999 pursuant to a FOIA request. Hsu Decl. ¶ 13 n. 2.
On June 26, 2000, pursuant to an earlier FOIA request, plaintiff sent the EOUSA Privacy Act waivers from ten individuals. Complaint ("Compl.") at 5. Following the initiation of this case, on October 29, 2004, the EOUSA released all information in plaintiff's file relating to the ten individuals with the exception of grand jury information. Defts' Mtn., Ex. 18, Declaration of John W. Kornmeier ("Kornmeier Decl.") ¶ 5.
Standard of Review
Defendants have moved to dismiss the claims against certain agencies and for summary judgment against others. In ruling on a motion to dismiss, the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 761 (D.C. Cir. 1997). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Swierkiewicz v. Sorema, 534 U.S. 506, 515 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c) . Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).
The mere existence of a factual dispute by itself, however, is not enough to bar summary judgment. The party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C. 1980). In a FOIA case, the court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations must be "relatively detailed and nonconclusory. . . ." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).
Discussion United States Probation Office
Plaintiff filed a request with the United States Probation Office in the Eastern District of Missouri for all records concerning his criminal case. A United States Probation Office is not subject to FOIA's disclosure requirements because it is an arm of the federal courts. Maydak v. U.S. Dep't of Justice, 254 F.Supp. 23, 40 (D.D.C. 2003). The statute specifically excludes "the courts of the United States" from its provisions. See 5 U.S.C. § 552(f). Therefore, plaintiff's claim against the United States Probation Office must be dismissed, since that office is not required to comply with FOIA.
United States Parole Commission
Defendants move to dismiss the claim against the Parole Commission on the ground plaintiff has failed to exhaust his administrative remedies. A party must exhaust the available administrative remedies under FOIA prior to seeking relief in federal court. Oglesby, 920 F.2d at 61-62; Nurse v. Sec'y of Air Force, 231 F.Supp.2d 323, 327 (D.D.C. 2002). The FOIA's exhaustion requirement, however, is not jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). Failure to exhaust precludes judicial review if "the purposes of exhaustion" and the "particular administrative scheme" support such a bar. Id. at 1258-59 (quoting Oglesby, 920 F.2d at 61).
The FOIA's administrative scheme favors treating failure to exhaust as a bar to judicial review. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004); Hidalgo, 344 F.3d at 1259. The Parole Commission has thus satisfied one of the jurisdictional factors. As to the other factor, whether "the purposes of exhaustion" support a bar to judicial relief, exhaustion is generally required "so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby, 920 F.2d at 61. The purposes and policies of the exhaustion requirement are to prevent premature interference with agency processes, to give the parties and the courts the benefit of the agency's experience and expertise, and to compile an adequate record for review. Wilbur, 355 F.3d at 677; Hidalgo, 344 F.3d at 1259. Plaintiff never gave the Parole Commission an opportunity to act on his records request.
The Parole Commission contends plaintiff has not complied with the exhaustion requirement because he has not provided a payment for processing his records or requested a fee waiver from the agency. Generally, requestors must pay reasonable charges associated with processing their FOIA requests. Judicial Watch, Inc. v. Rossotti, 326 F.2d 1309, 1310 (D.C. Cir. 2003); see also 5 U.S.C. § 552(a). Agencies, however, are required to waive fees if a requestor demonstrates that "disclosure of the information is in the public interest." 5 U.S.C. § 552(a)(4)(A)(iii). Failure to pay the requested fees or to appeal the denial from a refusal to waive fees constitutes a failure to exhaust administrative remedies. Oglesby, 920 F.2d at 66; Judicial Watch, Inc., 190 F.Supp.2d at 33. Moreover, judicial review of an agency's denial of a fee waiver request cannot be sought until a plaintiff appeals that decision or pays the assessed fee. Judicial Watch, Inc., 326 F.3d at 1310; Trulock v. U.S. Dep't of Justice, 257 F.Supp.2d 48, 52 (D.D.C. 2003).
It is an undisputed fact that plaintiff never requested a fee waiver or paid the assessed fee in response to the letter from the Parole Commission. See Stover Decl. ¶ 4. Thus, the agency has not been able to consider plaintiff's eligibility for a fee waiver. For these reasons, plaintiff's failure to exhaust precludes judicial review at this time.
Adequacy of the Search
The remaining claims concern the record requests made by plaintiff to the USMS, the EOUSA, and the Criminal Division of the Department of Justice. To obtain summary judgment on the issue of the adequacy of the search for records under FOIA, an agency must show "viewing the facts in the light most favorable to the requester, that . . . [it] `has conducted a search reasonably calculated to uncover all relevant documents.'" Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with FOIA. Id. at 127. The agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68.
Plaintiff's complaint is premised on the claim that the agencies have not responded to his requests. The agencies have provided declarations that they searched their records in response to plaintiff's requests and disclosed the responsive documents in their possession to plaintiff. See Hsu Decl. ¶¶ 10-11; Keys Decl. ¶¶ 5-10; Kornmeier Decl. ¶ 18. It is apparent from the declarations that the agencies made a "good faith effort to conduct a search for the requested records, using methods which reasonably can be expected to produce the information requested." Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Oglesby, 920 F.2d at 68). Plaintiff has not identified any particular missing records or suggested other files that defendants should have searched. "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducts a reasonable search for them." SafeCard Services, Inc., 926 F.2d at 1201. The defendants' searches for plaintiff's requested records were adequate to fulfill their obligations under the FOIA.
Exemption 3
The only information the agencies withheld from plaintiff were the names of individuals who had appeared before the grand jury. See Kornmeier Decl. ¶ 5. Exemption 3 of the FOIA covers records that are "specifically exempted from disclosure by statute . . . provided that such statute either "(A) [requires withholding] in such a manner as to leave no discretion on the issue," or "(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3); see also Senate of the Commonwealth of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). Rule 6(e) of the Federal Rules of Criminal Procedure qualifies as statute under this exemption because it was affirmatively enacted by Congress. Fund for Constitutional Gov't v. National Archives and Records Serv., 656 F.2d 856, 867-68 (D.C. Cir. 1981).
Rule 6(e)(2) prohibits disclosure of matters occurring before a grand jury. In re Motions of Dow Jones Co., 142 F.3d 496, 498-501 (D.C. Cir. 1998). FOIA Exemption 3 permits the withholding of materials that, if disclosed, would "tend to reveal some secret aspect of the grand jury's investigation, such matters as the identities of witnesses or jurors, the substance of testimony, the strategy or directions of the investigation, the deliberations or questions of jurors, and the like." Senate of the Commonwealth of Puerto Rico, 823 F.2d at 582 (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir.) ( en banc), cert. denied, 449 U.S. 993 (1980). The documents containing identities of grand jury witnesses were properly withheld under Exemption 3.
Disclosure of Records by Agencies
To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). A suit is only authorized under the FOIA against federal agencies and injunctive relief is only available to remedy an agency's improper withholding of information. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B) (f)(1).
Defendants have provided declarations stating that all responsive records, with the exception of the grand jury material noted above, have been disclosed to plaintiff. Plaintiff has not offered any evidence to suggest that he made a request for records, that an agency possessed the requested records, or that an agency has not disclosed records in its possession. Therefore, the Court will grant summary judgment in favor of the USMS, the EOUSA, and the Criminal Division.
CONCLUSION
For the reasons stated above, the United States Probation Office for the Eastern District of Missouri will be dismissed with prejudice and the United States Parole Commission will be dismissed without prejudice based on plaintiff's failure to exhaust his administrative remedies. Summary judgment will be granted in favor of the United States Marshals Service, the Executive Office for United States Attorneys and the Criminal Division of the Department of Justice. An appropriate order accompanies this Memorandum Opinion.