                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                              )
JEFFREY STEIN,                                )
                                              )
              Plaintiff,                      )
                                              )
      v.                                      )      Civil Action No. 13-cv-571 (TSC)
                                              )
U.S. DEPARTMENT OF JUSTICE,                   )
                                              )
              Defendant.                      )
                                              )

                                MEMORANDUM OPINION
       This action concerns six unrelated Freedom of Information Act (“FOIA”) requests that

Plaintiff Jeffrey Stein made to the Federal Bureau of Investigation (the “FBI”), the Civil Division

of the United States Department of Justice, and the Executive Office for United States Attorneys,

all of which are components of the United States Department of Justice (“DOJ” or “Defendant”).

       Defendant has previously filed two motions for summary judgment. This court issued a

Memorandum Opinion and Order on those motions in September 2015. See generally Stein v.

U.S. Dep’t of Justice, 134 F. Supp. 3d 457 (D.D.C. 2015).

       Presently before the court are Defendant’s renewed motions for summary judgment on

Counts V and VI of Plaintiff’s Complaint, both of which pertain to FBI records requested by

Plaintiff. Plaintiff has also cross-moved for summary judgment on Count VI.

       Upon consideration of the parties’ motions and briefs, and for the reasons set forth below,

Defendant’s renewed motion for summary judgment on Count V is hereby GRANTED,

Defendant’s renewed motion for summary judgment on Count VI is hereby DENIED and

Plaintiff’s cross-motion for summary judgment on Count VI is hereby GRANTED.
   I.      BACKGROUND AND PROCEDURAL HISTORY

           a. Count V (FBI Records Regarding Christopher Hitchens)

        On January 9, 2012, Plaintiff submitted a FOIA request to the FBI for all records,

including cross-references, regarding the late Christopher Hitchens, the noted British author

and journalist. (Fourth Decl. of David M. Hardy, dated May 15, 2014 (“Fourth Hardy Decl.”),

Ex. A; Compl. ¶ 45).

        In March 2012, the FBI released to Plaintiff 19 pages of material previously processed

for another requester, with certain information redacted pursuant to FOIA exemptions. (Fourth

Hardy Decl. ¶ 8 (citing Ex. C thereto); Compl. ¶ 47). Plaintiff appealed the adequacy of the

search and the FBI’s assertion of exemptions to DOJ’s Office of Information Policy (“OIP”).

(Fourth Hardy Decl. Ex. D; Compl. ¶ 48). OIP remanded Plaintiff’s request for additional

searches, but otherwise affirmed the FBI’s determination, including the assertion of all

exemptions. (Fourth Hardy Decl. Ex. F; Compl. ¶¶ 49-50). After conducting additional

searches, the FBI reviewed 65 pages of records and released 42 of those pages to Plaintiff in full

or in part, with certain information again redacted. (Fourth Hardy Decl. ¶ 13).

        The first round of summary judgment briefing on Count V concerned Plaintiff’s challenge

to the FBI’s assertion of FOIA exemption (b)(7)(D). In its September 2015 Memorandum

Opinion and Order, the court found that while the FBI had properly withheld information

pursuant to exemption (b)(7)(D) on the one page for which it had asserted an express assurance of

confidentiality, it had not met its burden of establishing that it properly withheld information

pursuant to exemption (b)(7)(D) on the 28 pages of records for which it had asserted an implied

assurance of confidentiality. See Stein, 134 F. Supp. 3d at 483-87. Accordingly, the court

ordered Defendant to provide a sufficient explanation for its assertion that an implied assurance of

confidentiality permitted the withholding of information on these 28 pages. See id. at 487.


                                                  2
       The declaration accompanying Defendant’s renewed motion for summary judgment on

Count V avers as follows:

       The FBI’s conclusion that the foreign government agency at issue here expected
       confidentiality in its dealings with the FBI and with regard to the information it
       provided to the FBI is based on the Foreign Government Information Classification
       Guide #1 (the “G-1 Guide”). . . . The G-1 Guide governs classification of foreign
       government information that foreign governments have asked the FBI to protect
       over the course of time. The FBI uses the G-1 Guide to determine the level and
       duration of derivative classification of foreign government information. . . .

       While ostensibly a classification document, the G-1 Guide also provides for
       confidentiality in non-national security areas. Specifically, it provides that the
       relationships between certain foreign law enforcement entities and the FBI will not
       be disclosed and will remain confidential, at the request of those foreign entities.

       As relevant here, according to the G-1 Guide, the foreign agency referenced in the
       records at issue here requested its relationship with the FBI be classified. . . . [T]he
       fact that the foreign intelligence agency referenced in the responsive records here
       specifically requested its relationship with the FBI be classified evidences that it
       expected and expects confidentiality in its interactions with the FBI and with regard
       to the information it provided to the FBI for law enforcement/national security
       purposes under applicable information sharing agreements.

(Sixth Decl. of David M. Hardy, dated Jan. 11, 2016 (“Sixth Hardy Decl.”), ¶¶ 7-9). In his

response brief, Plaintiff concedes that, based on this new evidence, the court must find that the

information at issue in Count V was provided under an implicit assurance of confidentiality.

(Pl.’s Count V Resp. at 1).

           b. Count VI (FBI Records Regarding Gwyneth Todd)

       In May 2012, Plaintiff and Gwyneth Todd jointly submitted a FOIA request to the FBI

for all of the agency’s records regarding Todd. (Fourth Hardy Decl. Ex. G). The request

specified that the requesters sought “all records about the events last year” involving an FBI

agent whom Todd claimed had visited her Canberra, Australia home under false pretenses. (Id.)

(citing Dylan Welch, Bungling Spy Comes in for a Cold Shoulder, Sydney Morning Herald

(Mar. 2, 2011), http://www.smh.com.au/national/bungling-spy-comes-in-for-a-cold-shoulder-



                                                  3
20110301-1bd6u.html) (emphasis removed). The requesters also sought a public interest fee

waiver. (Id.).

        In November 2013, the FBI denied the public interest fee waiver request and informed

Plaintiff that it had located what it estimated to be approximately 10,000 pages of potentially

responsive material. (Fourth Hardy Decl. Ex. I). Plaintiff was also advised that the fee for the

request was estimated to be $290. (Id.). Since the estimated fee exceeded $250, the FBI

requested a 25% partial advance payment of $72.50 within thirty days. (Fourth Hardy Decl. ¶ 17

(citing Ex. I thereto)).

        In the meantime, the FBI reviewed one file consisting of 174 pages and released 147

pages to Plaintiff in full or in part, with certain information redacted pursuant to FOIA

exemptions. (Id. ¶ 18 & n.2). In February 2014, the FBI advised Plaintiff that, due to his

unwillingness to pay fees, it had administratively closed his FOIA request without processing

any records beyond these 174 pages. (Id. ¶ 18). The parties subsequently litigated the denial of

Plaintiff’s fee waiver request, with the court concluding in its September 2015 Memorandum

Opinion and Order that Plaintiff was not entitled to a public interest fee waiver because he had

not met his burden of demonstrating that the release of the requested records would be in the

public interest. See Stein, 134 F. Supp. 3d at 487-89.

        In October 2015, Plaintiff indicated that he was willing to pay the $290 fee, while still

reserving his right to challenge it on the basis of the FBI’s delay in processing his request, which

he considered to be a separate issue from the public interest fee waiver issue. (Joint Mot. for

Additional Enlargement of Time to File Joint Proposed Schedule at 1; Pl.’s Count VI Opp’n &

Cross-Mot. Ex. A). Plaintiff did not actually remit any payment to the FBI, however. (Def.’s

Count VI Statement of Material Facts (“SOF”) ¶ 8) (citing Seventh Decl. of David M. Hardy,

dated Feb. 17, 2016 (“Seventh Hardy Decl.”), ¶ 10).

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       In a December 1, 2015 status report, Defendant notified the court that, despite the fact

that Plaintiff had not remitted any payment, it had begun to process the first 500 pages of

records. (Def.’s Dec. 1, 2015 Status Report). Shortly thereafter, however, the FBI concluded

that the number of potentially responsive pages was actually 20,000, double its previous

estimate. (SOF ¶ 10 (citing Seventh Hardy Decl. ¶ 12 & n.3)). The FBI notified Plaintiff of the

increased page count estimate on December 9, 2015, and advised him that the fee estimate and

advance payment amount had also increased, to $610 and $146.25, respectively. (Seventh Hardy

Decl. ¶ 12 (citing Ex. A thereto)).

       Given Plaintiff’s stated willingness, in October 2015, to pay the originally estimated

$290 fee, “the FBI processed and released an interim response to plaintiff on January 4, 2016,

even though [he] had still not made the required partial advance payment.” (Id. ¶ 13 (citing

Ex. B thereto)). The FBI again reminded Plaintiff that “he needed to submit partial advance

payment in the amount of $146.25 within thirty days of its December 9, 2015 letter (i.e.,

by January 9, 2016), or his request would otherwise be closed.” (Id.) (footnote omitted).

       One week later, on January 11, 2016, Plaintiff’s counsel emailed defense counsel, stating

that Plaintiff was still considering his response to the December 9, 2015 letter, and that the FBI

“should not consider [Plaintiff’s] lack of response as an indication that [he] will not pay.”

(Pl.’s Count VI Opp’n & Cross-Mot. Ex. B). Plaintiff’s counsel also stated that Plaintiff was

entitled to “20 CDs of records with no less than 500 pages on each CD” as a result of Plaintiff’s

agreement to pay the previously estimated fee of $290. (Id.). Defense counsel responded two

days later, on January 13, 2016, stating that “the deadline for submitting the advance payment of

fees to the FBI expired on January 9th,” and that if Plaintiff failed “to remit any advance

payment, the FBI [would have] no alternative but to discontinue processing [his] request under




                                                  5
its regulations.” (Id.). Defense counsel also asked Plaintiff’s counsel to give her an idea of what

his intentions were concerning the overdue payment. (Id.).

          Plaintiff’s counsel replied the next day, January 14, 2016, posing a number of questions

regarding what would happen if Plaintiff immediately paid either $72.50 or $146.25. (Id.).

Defense counsel did not respond to this email, or to a follow-up email on January 27, 2016.

(Third Decl. of Kelly McClanahan, dated Apr. 4, 2016 (“Third McClanahan Decl.”), ¶¶ 3-4).

On February 10, 2016, one of defense counsel’s colleagues contacted Plaintiff’s counsel and

stated that he had been asked by the FBI to advise Plaintiff’s counsel that the FBI “would not

provide any of the clarifications requested” in the January 14, 2016 email. (Id. ¶ 5).1

          The FBI subsequently stopped processing Plaintiff’s request due to his failure to pay any

portion of the assessed fees. (Seventh Hardy Decl. ¶ 14). On June 1, 2016, however, Plaintiff

filed a notice with the court informing it that he had remitted the $72.50 advance payment

initially requested by the FBI. (Pl.’s Notice of New Factual Development).

    II.      LEGAL STANDARD

             a. Motion for Summary Judgment

          Summary judgment may be granted if a movant “shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (“the mere

existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact.”) (emphasis removed); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.

2006). Summary judgment may be rendered on a “claim or defense . . . or [a] part of each claim


1
 Paragraph 5 of the Third McClanahan Declaration mistakenly refers to the January 14, 2016
email as “the 14 February email.”


                                                  6
or defense.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by . . . citing to particular parts of materials in the record.”

Fed. R. Civ. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the outcome of

a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the

summary judgment determination. An issue is ‘genuine’ if ‘the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Holcomb, 433 F.3d at 895

(quoting Liberty Lobby, 477 U.S. at 248) (citation omitted). The party seeking summary

judgment “bears the heavy burden of establishing that the merits of his case are so clear that

expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir.

1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980).

       In considering a motion for summary judgment, “[t]he evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn in [their] favor.” Liberty Lobby, 477

U.S. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see also Mastro

v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (“We view the evidence in the

light most favorable to the nonmoving party and draw all reasonable inferences in its favor.”).

The nonmoving party’s opposition, however, must consist of more than mere unsupported

allegations or denials, and must be supported by affidavits, declarations or other competent

evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.

Civ. P. 56(c), (e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is

required to provide evidence that would permit a reasonable jury to find in his favor. See

Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).

           b. FOIA

        “FOIA provides a ‘statutory right of public access to documents and records’ held by

federal government agencies.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t


                                                   7
of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413

(D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their

records available to the public, unless such “information is exempted under [one of nine] clearly

delineated statutory [exemptions].” Id. (internal quotation marks omitted); see also 5 U.S.C.

§§ 552(a)-(b).

       “‘FOIA cases typically and appropriately are decided on motions for summary

judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defs. of

Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). The district court

conducts a de novo review of the government’s decision to withhold requested documents under

any of FOIA’s specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). Thus, the burden is

on the agency to show that nondisclosed, requested material falls within a stated exemption. See

Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing

5 U.S.C. § 552(a)(4)(B); Liberty Lobby, 477 U.S. at 254).

       Summary judgment may be based solely on information provided in the agency’s

supporting declarations. See, e.g., ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.

2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). “If an

agency’s affidavit describes the justifications for withholding the information with specific

detail, demonstrates that the information withheld logically falls within the claimed exemption,

and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad

faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d

at 619 (citing Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). “Ultimately, an

agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or

‘plausible.’” Id. (quoting Larson, 565 F.3d at 862). However, an agency’s “affidavits must

show, with reasonable specificity, why the documents fall within [a given] exemption. The

                                                 8
affidavits will not suffice if the agency’s claims are conclusory, merely reciting statutory

standards, or if they are too vague or sweeping.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv.,

608 F.2d 1381, 1387 (D.C. Cir. 1979) (citations omitted). This requirement is consistent with an

agency’s general obligation to create “as full a public record as possible, concerning the nature of

the documents and the justification for nondisclosure.” Id. at 1384 (citations omitted).

Additionally, a motion for summary judgment should be granted in favor of a FOIA requester

“[w]hen an agency seeks to protect material which, even on the agency’s version of the facts,

falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48

(D.D.C. 2004) (alteration in original) (quoting Petroleum Info. Corp., 976 F.2d at 1433).

          FOIA also requires that “[a]ny reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of the portions which are exempt.”

5 U.S.C. § 552(b). More specifically, “[i]t has long been a rule in this Circuit that non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)

(citations omitted). In order to withhold a record or portion thereof under a FOIA exemption,

“the Government must make that showing in its Vaughn index and in such affidavits as it may

submit therewith.” Kimberlin v. Dep’t of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998) (citing

Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)).

   III.      ANALYSIS

             a. Count V (FBI Records Regarding Christopher Hitchens)

          The parties agree that the only question for the court to determine in ruling on

Defendant’s renewed motion for summary judgment on Count V is whether the FBI has provided

a sufficient explanation for its assertion that an implied assurance of confidentiality permits the

withholding of information on 28 pages of records related to Christopher Hitchens pursuant to


                                                   9
FOIA exemption (b)(7)(D). The declaration accompanying Defendant’s renewed motion for

summary judgment on Count V avers that the G-1 Guide, which the FBI uses “to determine the

level and duration of derivative classification of foreign government information,” states that

“the foreign agency referenced in the records at issue here requested its relationship with the FBI

be classified.” (Sixth Hardy Decl. ¶¶ 7, 9). Plaintiff concedes that, based on this new evidence,

the court must find that the information at issue in Count V was provided under an implicit

assurance of confidentiality. (Pl.’s Count V Resp. at 1).

       The court agrees, and finds that the FBI’s assertion of FOIA exemption (b)(7)(D) with

regard to these 28 pages of records was properly supported by an implied assurance of

confidentiality. Accordingly, Defendant’s renewed motion for summary judgment on Count V is

hereby GRANTED.

       The court is puzzled by Plaintiff’s assertion that, while he does not oppose Defendant’s

renewed motion for summary judgment on Count V, he “renews his argument” from the prior

round of briefing. (Id. at 1-2). As Plaintiff has not framed his “renewed” argument as a

cross-motion for reconsideration, or as a cross-motion for any other kind of relief, and as he cites

no case law or authorities other than the fact that Federal Rule of Civil Procedure 54(b) allows a

court “to revise any previous partial opinion at any time prior to closing the case,” the court

declines to consider his “renewed” argument at this time. (Id. at 2).

           b. Count VI (FBI Records Regarding Gwyneth Todd)

       Defendant’s argument in its renewed motion for summary judgment on Count VI is

straightforward: Because Plaintiff has never paid any portion of the fees requested by the FBI,

the FBI is not required to process his request. (See generally Def.’s Count VI Mot. at 5-7).

Plaintiff proffers two arguments in his opposition and cross-motion for summary judgment on

Count VI. The court will only address the first of those two arguments because it is dispositive


                                                 10
of both Defendant’s renewed motion for summary judgment on Count VI and Plaintiff’s

cross-motion for summary judgment on Count VI.

       Plaintiff argues that the FBI is not permitted to charge fees to process his request because

it made no progress on the request until he filed the instant lawsuit eleven months after first

submitting the request. (Pl.’s Count VI Opp’n & Cross-Mot. at 6-7). FOIA provides that an

agency “shall not” assess duplication fees to members of the news media such as himself “if the

agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional

circumstances . . . apply to the processing of the request.” 5 U.S.C. § 552(a)(4)(A)(viii).

Paragraph (6) requires agencies to “determine within 20 days . . . after the receipt of [a FOIA]

request whether to comply with such request,” and to “immediately notify the person making

such request of such determination and the reasons therefor, and of the right of such person to

appeal to the head of the agency any adverse determination.” Id. § 552(a)(6)(A)(i). It also

provides that this 20-day time period “shall commence on the date on which the request is first

received by the appropriate component of the agency,” and that “[t]he 20-day period shall not be

tolled by the agency except” in certain limited instances, none of which appear to be relevant

here. Id. § 552(a)(6)(A)(ii)(I)-(II). Plaintiff asserts that no “unusual or exceptional

circumstances” apply here, as those terms are used in § 552(a)(4)(A)(viii). (Pl.’s Count VI

Opp’n & Cross-Mot. at 7-8). Accordingly, Plaintiff contends that, because the FBI “simply took

its time and then assessed fees after [he] had filed suit,” the court should find that it is prohibited

from assessing any duplication fees for the request. (Id. at 8).

       Defendant does not respond to this argument or even mention § 552(a)(4)(A)(viii) in its

reply brief. Instead, Defendant construes Plaintiff’s cross-motion as seeking reconsideration of

the court’s September 2015 Memorandum Opinion and Order and argues that Plaintiff has failed

to establish grounds for reconsideration. (See generally Def.’s Count VI Reply and Opp’n). The

                                                  11
closest that Defendant comes to actually addressing Plaintiff’s § 552(a)(4)(A)(viii) argument is

to cite a recent case from this court, Bartko v. U.S. Dep’t of Justice, 102 F. Supp. 3d 342, 351-

353 (D.D.C. 2015). Bartko, 102 F. Supp. 3d at 349, quotes Pollack v. Dep’t of Justice, 49 F.3d

115, 119-20 (4th Cir. 1995), in which the Fourth Circuit held that it was unable to “find a

provision which states that when an agency acts untimely, it is obliged to provide the requester

with unlimited documentation free of charge.”

       In reply, Plaintiff argues that the previously litigated public interest fee waiver issue is

“completely unrelated” to the question of whether § 552(a)(4)(A)(viii) prohibits the FBI from

assessing fees. (Pl.’s Count VI Reply at 2-3). Plaintiff also correctly points out that Bartko did

not concern § 552(a)(4)(A)(viii), and that the Fourth Circuit was unable to “find a provision

which states that when an agency acts untimely, it is obliged to provide the requester with

unlimited documentation free of charge,” Pollack, 49 F.3d at 119-20, because the relevant

statutory language did not exist at the time. (Pl.’s Count VI Reply at 6). Plaintiff further argues

that, because the FBI has offered no direct refutation of his § 552(a)(4)(A)(viii) argument, the

court should deem it conceded. (Id. at 3) (citing Buggs v. Powell, 293 F. Supp. 2d 135, 141

(D.D.C. 2003) (“It is understood in this Circuit that when a [non-moving party] files an

opposition to a dispositive motion and addresses only certain arguments raised by the [moving

party], a court may treat those arguments that the [non-moving party] failed to address as

conceded.”)).

       The court agrees with Plaintiff. Insofar as it addressed Count VI, the court’s September

2015 Memorandum Opinion and Order concerned only the limited issue of whether Plaintiff was

entitled to a public interest fee waiver. See Stein, 134 F. Supp. 3d at 467, 487-89. The question

of whether § 552(a)(4)(A)(viii) prohibits Defendant from charging Plaintiff any duplication fees

is, as Plaintiff correctly told Defendant in October 2015, “a separate issue from the public

                                                 12
interest fee waiver issue.” (Pl.’s Count VI Opp’n & Cross-Mot. Ex. A). Plaintiff is also correct

that Bartko is inapposite and that the reason the Fourth Circuit could not find a FOIA provision

prohibiting agencies from charging fees for requests that had not been timely processed was

because § 552(a)(4)(A)(viii) did not exist at the time Pollack was decided. See 5 U.S.C. § 552(a)

(effective to October 1, 1997).

         Because – aside from its inapposite citations to Bartko and Pollack – Defendant has

ignored Plaintiff’s argument that the FBI’s delay in responding to the FOIA request at issue in

Count VI triggers § 552(a)(4)(A)(viii)’s prohibition on the assessment of duplication fees, the

court will deem Defendant to have conceded the point. See Baptist Mem’l Hosp.-Golden

Triangle v. Leavitt, 536 F. Supp. 2d 25, 40 (D.D.C. 2008), aff’d sub nom. Baptist Mem’l Hosp.-

Golden Triangle v. Sebelius, 566 F.3d 226 (D.C. Cir. 2009) (“A Party that fails to refute an

opposing party’s argument on Summary Judgment may be found to have conceded the point.”);

LCvR 7(b).

         Accordingly, Defendant’s renewed motion for summary judgment on Count VI is hereby

DENIED, and Plaintiff’s cross-motion for summary judgment on Count VI is hereby

GRANTED. Defendant is hereby ORDERED to process the FOIA request at issue in Count VI

of Plaintiff’s Complaint free of charge, and to return the $72.50 advance payment remitted by

Plaintiff on June 1, 2016, with interest.

   IV.      CONCLUSION

         Upon consideration of the parties’ motions and briefs, and for the reasons set forth above,

Defendant’s renewed motion for summary judgment on Count V is hereby GRANTED,

Defendant’s renewed motion for summary judgment on Count VI is hereby DENIED and

Plaintiff’s cross-motion for summary judgment on Count VI is hereby GRANTED.




                                                 13
       Defendant is hereby ORDERED to process the FOIA request at issue in Count VI of

Plaintiff’s Complaint free of charge, and to return the $72.50 advance payment remitted by

Plaintiff on June 1, 2016, with interest.

       An appropriate Order accompanies this Memorandum Opinion.



Date: July 18, 2016


                                            Tanya S. Chutkan
                                            TANYA S. CHUTKAN
                                            United States District Judge




                                               14
