Opinion
Case No. 2:03CV 0619 DB
May 14, 2004
REPORT AND RECOMMENDATION
This matter came before Magistrate Brooke Wells from a referral by District Judge Dee Benson pursuant to 28 U.S.C. § 636(b)(1)(B). Before the Court are approximately nine motions. Plaintiff's motions include, inter alia, judgment on the pleadings, to compel initial disclosures, to stay proceedings on Defendant's summary judgment motion and for a hearing to resolve all issues pending before this Court. Defendant has filed a motion for summary judgment. The Court has carefully reviewed the memoranda and pursuant to Utah local rule 7-1(f) elects to determine the motions on the basis of the written memoranda and finds that oral argument would not be helpful. See DUCivR 7-1(f).
After reviewing the memoranda, the facts of this case, and the relevant law, the court now enters this Report and Recommendation to the District Court recommending that Defendant's Motion for Summary Judgment be granted and Plaintiff's case be dismissed with prejudice for the reasons discussed below.
BACKGROUND
Plaintiff, Roger Liverman, pro se, has filed a series of complaints concerning records and information pertaining to Oversight Review #97-6-028. Plaintiff first filed a Freedome of Information Act (FOIA) request in 1997 (1997 FOIA request). On October 15, 1997, Plaintiff filed an action in this court concerning the 1997 FOIA request against the Office of Oversight, Office of Inspector General (OIG) and the United States Department of the Treasury (Liverman I). The district court entered summary judgment on March 25, 1998 for the Defendants after the court concluded that the OIG conducted an investigation that was reasonable. See Order in Case No. 2:97cv802 Doc. #30.
On approximately July 20, 1998, Plaintiff filed a FOIA request with the Office of Disclosure Services for copies of any and all documents concerning Oversight Review #97-6-028. In
October of 1998, Plaintiff filed his second action in this court against the OIG, based on the OIG's alleged failure to respond to Plaintiff's 1998 FOIA request (Liverman II). See Complaint in Case No. 2:98cv717. Following a review of Plaintiff's request by the OIG additional documents were released to Plaintiff. Based on the release of these documents, Plaintiff represented to the court that his case was moot and could be properly dismissed. See Report and Recommendation Doc. #38. The district court then dismissed Plaintiff's complaint with prejudice on February 23, 2000. See Doc. #40.
On approximately March 5, 2003, Plaintiff sent his third FOIA request to the OIG, requesting a "[c]opy of any and all documents concerning OVERSIGHT REVIEW #97-6-028" (2003 FOIA request). See Letter from Roger Liverman Jr. to Jeffrey Rush Jr. dated March 5, 2003, Pla.'s Complaint Ex. 1. On July 14, 2003, Plaintiff filed the instant action alleging that Defendants violated FOIA, 5 U.S.C. § 552, by failing to respond to Plaintiff's 2003 FOIA request. See Complaint p. 4-5. Plaintiff's complaint sought: (1) a permanent injunction prohibiting Defendants from committing "future violations of the [FOIA]"; (2) an order that "all such forms and record, wherever held by the Defendant, are documents disclosable to the Plaintiff under the Act"; (3) payment to Plaintiff of his filing fee; (4) "a written finding that the circumstances surrounding the withholding raises questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding"; and (5) referral to Special Counsel for an investigation. See Pla.'s Complaint.
DISCUSSION
Defendants have moved for summary judgment under Fed.R.Civ.P. 56. "Summary judgment is available to the defendant in a FOIA case when the agency proves that is has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester."Miller v. United States Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985). "In order to discharge this burden, the agency `must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements.'" Id. (quoting National cable Television Ass.'n, Inc. v. Federal Communications Comm'n, 156 U.S.App.D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973)). As provided in 5 U.S.C. § 552(a)(4)(B), in the FOIA context, the district court is to review an agency action de novo.
In response to Plaintiff's request the OIG over the course of approximately eight months conducted a thorough search and corresponded with Plaintiff in an attempt to meet his requests. See Def.'s Cross-Motion for Summ. Judgment p. 5-9, and attachments. A stay was even granted by the Court at Plaintiff's request so that Defendants could exercise "due diligence in responding to the request." Pla.'s Motion for Stay p. 1, Doc #5. The search resulted in the production of one document that was responsive to Plaintiff's FOIA request. See Letter from R.K. Delmar, Counsel to the Inspecter General, to Roger Liverman, Jr. dated Nov. 5, 2003.
Based on the Court's consideration of the record before it, including the affidavit provided by Richard K. Delmar, Counsel to the Inspector General and the supervisor of the Office of Counsel, OIG, the Court finds that Defendant carried its burden by being responsive to Plaintiff's March, 2003 FOIA request. See Declaration of Richard K. Delmar, Doc. #36. Defendants conducted a. reasonable search and produced all documents that were not exempt from FOIA's inspection requirements.
Accordingly, summary judgment for Defendants is appropriate in the instant case. See Lehrfeld v. Richardson, 954 F. Supp. 9 (D.D.C. 1996) (concluding that summary judgment is available to defendant agency in FOIA case when agency proves that it has fully discharged its obligations under FOIA); see also Anderson v. United States Dep't of Health Human Servs., 3 F.3d 1383, 1384 (10th Cir. 1993) ("Once the government produces all the documents a plaintiff requests, [their] claim for relief under the FOIA becomes moot [and] [o]nce the merits of plaintiff's FOIA action became moot, it was proper for the court to dismiss the action."). The affidavit submitted by Mr. Delmar in support of Defendant's motion was sufficiently detailed and nonconclusory. See Declaration of Richard K. Delmar; see also Fully v. I.R.S., 939 F. Supp. 429 (E.D. Va. 1995) ("Courts, . . ., may grant summary judgment based on sufficiently detailed affidavit testimony."). Therefore, this Court recommends that the District Court grant Defendant's Motion for Summary Judgment.
REMAINING ISSUES
Plaintiff also requests an order from this Court awarding him filing fees. See Pla.'s Complaint p. 5. However, "[t]o be entitled to fees under 552(a)(4)(E), plaintiff must establish that [he] substantially prevailed in the litigation and that a fee award is otherwise justified."Anderson, 3 F.3d at 1384. Plaintiff did not prevail in the litigation, there is no demonstrable positive public benefit from Plaintiff's 2003 FOIA request that involved Plaintiff and his family's claim for reward and there is no evidence indicating that the OIG improperly withheld information from Plaintiff. See Trenerry v. Dep't of Treasury, 986 F.2d 1430, 1993 WL 26813, *6 (10th Cir. February 5, 1993). Furthermore, there is no evidence demonstrating a causal connection between Plaintiff's district court case and the OIG's final response to Plaintiff's 2003 FOIA request. See id.
Accordingly, the Court finds that an award of costs is inappropriate in this case.
Finally, Plaintiff seeks a referral to Special Counsel because of the alleged arbitrary and or capricious acts by Defendant in withholding documents. See Pla.'s Complaint p. 5. Presumably this is based on 5 U.S.C. § 552(a)(4)(F), which provides for an investigation by the United States Office of Special Counsel in certain situations. After analyzing the facts of this case, the Court finds that Plaintiff's request should be denied because no agency records were withheld and Plaintiff fails to establish that he is entitled to an award of litigation costs. See, Landmark Legal Foundation v. E.P.A., 272 F. Supp.2d 59, 69 n. 4 (D.D.C. 2003) ("To refer an employee to the Special Counsel, the court must order the production of improperly withheld documents and award attorney's fees and litigation costs, in addition to issuing a written finding of suspected arbitrary or capricious conduct.").
RECOMMENDATION
IT IS HEREBY RECOMMENDED that Defendant's Motion for Summary Judgment be granted. After considering the remaining motions this Court recommends that they be denied because they are without merit and/or in the alternative be deemed moot in light of granting Defendant's Motion for Summary Judgment.Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.