Espinoza v. Dep't of Justice

COLLEEN KOLLAR–KOTELLY

Defendant's motion granted.

Alejandro Espinoza, Lompoc, CA, pro se. Kimberly J. Duplechain, U.S. Attorney's Office, Washington, DC, for Defendant.

COLLEEN KOLLAR–KOTELLY, United States District Judge

In this action brought pro se, plaintiff claims that the Executive Office for United States Attorneys (“EOUSA”) violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by withholding responsive records and denying his requests for expedited processing and a fee waiver. Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff has failed to exhaust his administrative remedies or for summary judgment under Rule 56. Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. [Dkt. # 12]. Plaintiff has opposed the motion [Dkt. # 22] and cross moved for summary judgment, Pl.'s Cross–Mot. for Summ. J. [Dkt. # 23], and defendants have replied, Defs.' Reply in Support of Mot. to Dismiss, or, in the Alternative, for Summ. J. and Opp'n to Pl.'s Cross–Motion for Summ. J. [Dkt. # 27–1]. Upon consideration of the parties' submissions and the entire record, the Court will grant defendants' motion, deny plaintiff's motion, and enter judgment accordingly.

The problem for defendants, though, is that EOUSA has never rendered a final decision on plaintiff's fee waiver request to trigger the exhaustion requirement. See Oglesby, 920 F.2d at 67 (finding agency's failure to “provide notice of [requester's] right to appeal” adverse decision to the head of the agency “insufficient under the FOIA to trigger the exhaustion requirement”). Defendants state that they “notified Plaintiff of the fee waiver denial [and] provided adequate justification for the denial,” Defs.' Reply at 3, but they cite only to the January 2, 2013 fee letter, which does not specifically address plaintiff's request for a fee waiver. Defendants contend that “[b]y conveying the estimated charges for performing a search, the request for a fee waiver was denied, and the reason for the denial was plainly visible through the explicit mention of the governing statute, 28 C.F.R. § 16.11(i).” Id. at 4.

Defendant's implicit denial rationale flies in the face of FOIA's particularized fee provisions and DOJ's implementing regulations and, if accepted, would improperly render those provisions meaningless. See TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (It is “a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”) (citation and internal quotation marks omitted); id. (quoting United States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute.”). The following aspects of the law and regulations inform the Court's decision.

First, the FOIA requires each agency to “promulgate regulations ... specifying the schedule of fees applicable to the processing of requests ... and establishing procedures and guidelines for determining when such fees should be waived or reduced.” 5 U.S.C. § 552(4)(A)(i).

Second, fee waiver requests made to DOJ are governed by a detailed scheme set out at 28 C.F.R. § 16.11(k) to guide a component in reaching a decision consistent with the FOIA by determining whether “[d]isclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government,” and whether “[d]isclosure ... is not primarily in the commercial interest of the requester.” 28 C.F.R. § 16.11(k)(1)(i)(ii).

Third, DOJ regulations single out “a determination on any disputed fee matter, including a denial of a request for a fee waiver” as one of several “adverse determinations, or denials of a request” that require a “denial letter” containing “(2) [a] brief statement of the reason(s) for the denial ... and (4) [a] statement that the denial may be appealed under § 16.9(a) and a description of the requirements of § 16.9(a).” 28 C.F.R. § 16.6(c).

Fourth, in reviewing an agency's decision, the Court must consider both the FOIA statute as well as the agency's assessment in accordance with its regulations to decide whether the agency improperly denied a fee waiver request. See PEER v. U.S. Dep't of Commerce, No. 12–1293, 968 F.Supp.2d 88, 97–98, 2013 WL 4830966, at *7 (D.D.C. Sept. 11, 2013) (citing Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313 (D.C.Cir. 2003)). The Court, however, is not bound by the agency's guidelines, and it “owes no particular deference” to the agency's interpretation of the FOIA's fee-waiver provision. Id. (quoting Judicial Watch, Inc.)

Since this record is devoid of an administrative review of and final decision on plaintiff's clearly articulated fee waiver request, the Court finds that the exhaustion requirement was not triggered. Hence, defendants' motion to dismiss the fee waiver claim based on plaintiff's failure to exhaust is denied. 2. Plaintiff's Entitlement to a Fee Waiver

The FOIA permits the court to “determine the [fee waiver issue] de novo: Provided, That [its] review of the matter [is] limited to the record before the agency.” 5 U.S.C. § 552(a)(4)(A)(vii). Since plaintiff's FOIA request includes his reasons for seeking a fee waiver, the Court has sufficient information to resolve this issue without delaying the inevitable denial.

In general, “ ‘a FOIA requester must pay reasonable costs for the search, review, and duplication of the records sought.’ ” Schoenman v. FBI, 604 F.Supp.2d 174, 188 (D.D.C.2009) (quoting Judicial Watch, Inc. v. Dep't of Transp., Civ. No. 02–566, 2005 WL 1606915, at *3 (D.D.C. July 7, 2005)). But an agency must waive or reduce such fees “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). The FOIA requester bears the initial burden of proving that the foregoing requirements exist. Schoenman, 604 F.Supp.2d at 188. “According to legislative history, the FOIA fee waiver provision “ ‘is to be liberally construed in favor of waivers for noncommercial requesters.’ ” Id. (quoting McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir.1987), quoting 132 Cong. Rec. 27, 90 (1986) (Sen.Leahy)). However, “[c]onclusory statements that the disclosure of the requested documents will serve the public interest are not sufficient” to support a fee waiver. Judicial Watch, Inc. v. Dep't of Justice, 185 F.Supp.2d 54, 60 (D.D.C.2002).

It is reasonably safe to conclude that plaintiff has not requested the records for a commercial interest. Hence, the only question is whether he has demonstrated the requisite public interest in disclosing the requested information.

Plaintiff states that “a fee waiver is warranted[ ] because the production of the requested information could serve the substantial public interest in setting free an innocent man.” Request at 3. He states that “the federal government obtained a conviction through the corruption of truth-seeking function of the trial process,” apparently through “a confirmed perjurious informant,” and that the public has an interest in knowing this. Id. Plaintiff has not proffered anything to substantiate these assertions, the merits of which have already been rejected by the U.S. Court of Appeals for the Tenth Circuit and the U.S. District Court for the District of New Mexico in plaintiff's unsuccessful habeas corpus proceedings. See Espinoza, 2013 WL 6183847, at *3 (determining that suppressed impeachment evidence about James's drug use would not have changed the outcome of plaintiff's trial since “the government's case against [plaintiff] would have been compelling even if the [evidence] had been available to the defense”). Furthermore, court “decisions clearly tie fee waivers to public benefit ... and establish that where the requester seeks information concerning himself only,” the denial of a fee waiver request “will be upheld....” Ely v. Postal Service, 753 F.2d 163, 165 (D.C.Cir.1985) (citations and internal quotation marks omitted); see accord Ortloff v. Dep't of Justice, No. 02–5170, 2002 WL 31777630 (D.C.Cir. Dec. 11, 2002) (per curiam) (“Insofar as appellant seeks information to facilitate a challenge to his conviction, the court considers disclosure less likely to contribute to public understanding.”) (citations omitted); Monroe–Bey v. FBI, 890 F.Supp.2d 92, 98 (D.D.C.2012) (requester's “need for the records to prove his innocence—a theme throughout his fee waiver request—works against a fee waiver”) (quoting Ortloff ); Banks v. Dep't of Justice, 605 F.Supp.2d 131, 139 (D.D.C.2009) (“A requester's private interest is not relevant to the fee waiver analysis, and an attack on a criminal conviction is a private interest.”); Brunsilius v. U.S. Dep't of Energy, 514 F.Supp.2d 30, 35 (D.D.C.2007) (“a private litigation interest is not relevant to the fee waiver analysis”); Harrington v. Dep't of Justice, No. 06–0254, 2007 WL 625853, at *2 (D.D.C. Feb. 27, 2007) (“At most, granting a fee waiver and disclosing [requested criminal case] records advances nothing other than plaintiff's own understanding of his criminal case.”).

Besides, plaintiff does not state his “ability and intention” to disseminate the requested information to the public, which “alone [provides] a sufficient basis for denying the fee waiver request.” Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C.Cir.1988); see Prison Legal News v. Lappin, 436 F.Supp.2d 17, 26 (D.D.C.2006) (“In assessing whether a public interest fee waiver request should be granted, the Court must consider the requester's ability and intention to effectively convey or disseminate the requested information to the public.”) (citation and internal quotation marks omitted). The Court therefore finds that plaintiff has not shown that he is entitled to a fee waiver.

Since EOUSA failed to act on plaintiff's fee waiver request, the Court will now decide if EOUSA is foreclosed from assessing fees in light of the following FOIA provision:

An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request.
5 U.S.C. § 552(a)(4)(A)(viii). Since the Court has found paragraph 6 inapplicable to a fee waiver request, supra at 240–41, it finds no hindrance to EOUSA's ability to assess search fees. And, having found that plaintiff is not entitled to a fee waiver, the Court determines that he must pay the reasonably assessed search fees (and any subsequently imposed duplication fees) before obtaining judicial review of EOUSA's treatment of his request for first-party records. See Rosenberg v. U.S. Dep't of Immig. and Customs Enforcement, 954 F.Supp.2d 1, 10 (D.D.C.2013) (“The fact that a fee request was made after the [p]laintiff commenced litigation does not excuse the [p]laintiff from paying the requested fees.”) (citing Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.1995), cert denied, 516 U.S. 843, 116 S.Ct. 130, 133 L.Ed.2d 78 (1995)) (other citations omitted).

In the January 2, 2013 fee assessment letter, EOUSA informed plaintiff that his request would be closed if he failed to pay the fees and that he could appeal the decision to OIP. See Brandon Decl., Ex. D. Hence, the Court concludes that EOUSA acted properly under the applicable DOJ regulation, 28 C.F.R. § 16.11(i), when it closed FOIA No. 12–2643 nearly 45 days later despite the current litigation. Since under DOJ regulations, the request is “not ... considered received” until the requester agrees to pay assessed fees, EOUSA is under no statutory obligation to produce responsive records; therefore, no improper withholding has yet occurred.

The Court finds no genuinely disputed material fact with regard to EOUSA's closing of Request No. 12–2643 and concludes that defendants are entitled to judgment as a matter of law on its treatment of this request. Request No. 12–2644 for Third–Party Records

Plaintiff alleges that he did not receive EOUSA's July 31, 2012 letter denying his request for James's records and, thus, he could not have timely exhausted his administrative remedies as to that decision. Pl.'s Opp'n at 6–7. Plaintiff also argues that defendants improperly applied FOIA exemptions 6 and 7(C) and the Privacy Act to his request for James's records. Id. at 11–14.

Since the failure to exhaust is not a jurisdictional barrier, and the parties have briefed the substantive questions, the Court will address EOUSA's asserted exemptions. Before proceeding, however, the Court finds that any claim arising under the Privacy Act is moot because the Privacy Act specifically exempts from its nondisclosure provisions documents that are otherwise required to be disclosed under the FOIA, which is the focus of this litigation. 5 U.S.C. § 552a(b)(2); see Greentree v. United States Customs Serv., 674 F.2d 74, 79 (D.C.Cir.1982) (concluding “that section (b)(2) of the Privacy Act represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA access”).

In enacting FOIA, Congress “underst[ood] that disclosure of records containing personal details about private citizens can infringe significant privacy interests.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 766, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Under FOIA's personal privacy exemptions 6 and 7(C), relied upon here, records pertaining to third-party individuals typically are exempt from disclosure absent the subject's written authorization or a showing that an overriding public interest exists to compel disclosure. Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects records compiled for law enforcement purposes if the disclosure of such records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

Plaintiff does not dispute that some of the information contained in James's PSR is law enforcement material, and he states that he is not interested in James's personal information or the fact that she was the subject of an investigation. Pl.'s Opp'n at 13. Plaintiff “does dispute whether the date the government generated that PSR ... was compiled for such purposes in mind.” Id. He states that he is “interested in whether the government had indeed generated James's PSR at the time that Plaintiff sought its disclosure.” Id.

Plaintiff's dispute is based on the faulty premise that the FOIA obligates the government to answer questions apparently about any governmental action. The FOIA is not so sweeping but rather provides individuals “access to [agency] records ‘written or transcribed to perpetuate knowledge or events.’ ” Hudgins v. IRS, 620 F.Supp. 19, 21 (D.D.C.1985), aff'd, 808 F.2d 137 (D.C.Cir.1987), cert. denied, 484 U.S. 803, 108 S.Ct. 47, 98 L.Ed.2d 12 (1987) (citations omitted); see Kissinger, 445 U.S. at 151–52, 100 S.Ct. 960 (“FOIA is only directed at requiring agencies to disclose those ‘agency records' for which they have chosen to retain possession or control.”) (citations omitted). The FOIA places no obligation on an agency “to answer questions disguised as a FOIA request ... or to create documents or opinions in response to an individual's request for information,” Hudgins, 620 F.Supp. at 21, nor is an agency obligated “to obtain a duplicate of or to re-create a record [not in its control or possession] in order to fulfill a FOIA request.” James v. U.S. Secret Serv., 811 F.Supp.2d 351, 358 (D.D.C.2011), aff'd, No. 11–5299, 2012 WL 1935828 (D.C.Cir. May 11, 2012) (per curiam). Furthermore, the Court takes judicial notice of the fact that the U.S. Probation Office is responsible for generating presentence reports, and that office, as an arm of the court, is not subject to FOIA's disclosure requirements. See Ruiz v. U.S Dep't of Justice, 636 F.Supp.2d 85, 89, n. 4 (D.D.C.2009) (citing 5 U.S.C. § 551); Maydak v. U.S. Dep't of Justice, 254 F.Supp.2d 23, 40 (D.D.C.2003). Hence, to the extent that plaintiff faults EOUSA for failing to address “whether the government had memorialized James's drug usage in her PSR when Plaintiff's trial attorney sought its disclosure,” Pl.'s Opp'n at 13, this question is wholly irrelevant to the FOIA analysis.

As for the claimed exemptions, it cannot be seriously disputed that the requested information was compiled for law enforcement purposes. See Blackwell v. FBI, 646 F.3d 37, 40 (D.C.Cir.2011) (finding law enforcement assertion “especially convincing [where] [requester] explicitly sought records related to his own criminal prosecution”). Hence, the Court will discuss exemption 7(C) but finds that defendants properly invoked exemption 6 to withhold James's PSR since it is a document that is retrievable by her name. See U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982) (threshold requirement of exemption 6 is that the requested information “applies to a particular individual”).

In assessing an agency's claim under exemption 7(C), the district court must look to the balance of the privacy interests asserted and the public interest in disclosure. Voinche v. FBI, 412 F.Supp.2d 60, 68 (D.D.C.2006). As a general matter, the identification of an individual “in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation,” Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C.1987). Therefore, “[a]bsent exceptional circumstances, the balance [of interests] categorically favors withholding the names ... of third parties,” as such information is not probative of an agency's performance of its statutory responsibilities. Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C.Cir.2000). The Court of Appeals for the D.C. Circuit has more recently elaborated that

[a]s a result of [e]xemption 7(C), FOIA ordinarily does not require disclosure of law enforcement documents (or portions thereof) that contain private information .... [because] privacy interests are particularly difficult to overcome when law enforcement information regarding third parties is implicated.... Moreover, the Supreme Court has made clear that requests for such third party information are strongly disfavored. That is particularly true when the requester asserts a public interest—however it might be styled—in obtaining information that relates to a criminal prosecution.
Blackwell, 646 F.3d at 41 (citations and internal quotation marks omitted). Hence, the only relevant question is “whether [plaintiff] has shown government misconduct sufficient to overcome [e]xemption 7(C)'s protection for personal privacy under the test outlined [ Favish].” Id. (citing Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004)).

Under the Favish test, plaintiff “must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake” and that “the information is likely to advance that interest.” Favish, 541 U.S. at 172, 124 S.Ct. 1570. Such a showing requires “more than a bare suspicion” of official misconduct; “the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Id. at 174, 124 S.Ct. 1570. For it is “[o]nly when [such evidence is] produced [that] there [will] exist a counterweight on the FOIA scale for the court to balance against the cognizable privacy interests in the requested records.” Id. at 174–75, 124 S.Ct. 1570.

Plaintiff argues that James's record “is necessary to confirm whether USAO/NM engaged in the corruption of the truth-seeking function of the trial process and actively concealed its misconduct.” Pl.'s Opp'n at 11. As already determined, this argument is unsubstantiated and belied by prior court decisions. Furthermore, plaintiff's personal stake in obtaining documents in order to attack his conviction simply “does not count in the calculation of the public interest.” Oguaju v. United States, 288 F.3d 448, 450 (D.C.Cir.2002), vacated and remanded on other grounds, 541 U.S. 970, 124 S.Ct. 1903, 158 L.Ed.2d 464 (2004), judgment reinstated, 378 F.3d 1115 (D.C.Cir.2004); see Pugh v. FBI, 793 F.Supp.2d 226, 233 (D.D.C.2011) (“That the FBI's denial of [plaintiff's] FOIA requests may hinder his efforts to challenge his conviction or sentence ... is irrelevant.”). “[C]ourts must insist on a meaningful evidentiary showing,” Favish, 541 U.S. at 175, 124 S.Ct. 1570, to even consider the competing interests. Plaintiff's conclusory allegations surrounding his prosecution, “has not come close to meeting the demanding Favish standard for challenging [EOUSA's] invocation of FOIA [e]xemption 7(C).” Blackwell, 646 F.3d at 41. Hence, the Court finds that defendants are entitled to judgment as a matter of law on their invocation of both exemptions 6 and 7(C) to deny plaintiff's request for James's records.

EOUSA rendered a final decision on plaintiff's request for James's records before plaintiff had even requested expedited processing, and “[a] district court ... shall not have jurisdiction to review an agency denial of expedited processing ... after the agency has provided a complete response to the request.” 5 U.S.C. 552(a)(6)(E)(iv). In addition, the delay in processing plaintiff's records is attributable to the outstanding fee dispute. Hence, the Court agrees that this claim is moot.

For the foregoing reasons, the Court finds no genuinely disputed material fact with regard to defendants' satisfaction of their disclosure obligations under the FOIA and concludes that they are entitled to judgment as a matter of law. Consequently, plaintiff's cross-motion for summary judgment is denied. A separate Order accompanies this Memorandum Opinion. -------- Notes: