                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
Anthony Roberson,                         )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )    Civil No. 18-1593 (APM)
                                          )
Federal Bureau of Investigation,          )
                                          )
      Defendant.                          )
_________________________________________ )

                                  MEMORANDUM OPINION

I.     INTRODUCTION

       Plaintiff, a Texas state prisoner appearing pro se, brought this action under the Freedom of

Information Act (“FOIA”) to compel production of records from Defendant Federal Bureau of

Investigation (“FBI”). Contending that Plaintiff failed to exhaust his administrative remedies

before filing suit, Defendant moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure or for summary judgment under Rule 56 and proffers in support the Declaration of

Michael G. Seidel, ECF No. 20-1. Plaintiff has produced no evidence showing that he pursued,

much less exhausted, his administrative remedies. Therefore, the court will grant Defendant’s

motion and dismiss the case for the reasons explained more fully below.

II.    BACKGROUND

       Defendant’s declarant is Acting Section Chief of the FBI’s Record/Information

Dissemination Section. His statements are based on personal knowledge and information obtained

in his official capacity. The declarant states that the FBI received Plaintiff’s 27-part FOIA request

on May 23, 2018, determined that it “sought records concerning three distinct subjects,” and
“assigned each subject a separate tracking number in order to conduct organized searches and

properly address all parts of the request[.]” Seidel Decl. ¶ 5.

       FOIA Request Number 1406341-000 sought “the genetic loci showing the number of loci

required to provide identity.” Id. ¶ 6. In a letter dated May 29, 2018—a mere three business days

after receipt of the request—the FBI informed Plaintiff that responsive records “were available for

review on the FBI’s public website” at a link provided in the letter. Seidel Decl., Ex. B. The letter

notified Plaintiff of his right (and the process) to appeal the determination to DOJ’s Office of

Information Policy (“OIP”) within 90 days from the date of the letter. It further informed about

the agency’s dispute resolution services and provided several contacts. Id.

       FOIA Request Number 1406324-000 sought records of a third party, Charlie Scott.

See Seidel Decl., Ex. C. In a letter also dated May 29, 2018, the FBI issued its “standard response”

of neither confirming nor denying the existence of third-party records. Id. The FBI cited FOIA

Exemptions 6 and 7(C), codified in 5 U.S.C. § 552(b), and directed Plaintiff to specific locations

on its website “for more information about making requests for records on third party individuals

(living or deceased).” Id.    The letter ended with the same information described above about

appealing the determination and seeking dispute resolution services.

       FOIA Request Number 1406303-000 sought records pertaining to a laboratory file. Seidel

Decl. ¶ 8. In a letter dated June 5, 2018—eight work days after receiving Plaintiff’s FOIA

request—the FBI informed Plaintiff that his request for a fee waiver was being considered. Seidel

Decl., Ex. D. Then, on June 20, 2018—19 work days after receiving the request—the FBI released

“at no charge” to Plaintiff “123 pages of previously-processed documents” found responsive. Id.,

Ex. E. The letter informed Plaintiff about appealing the determination and seeking dispute

resolution services.



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III.      LEGAL STANDARD

          Federal Rule of Civil Procedure 12(d) states: “If, on a motion under Rule 12(b)(6) . . . ,

matters outside the pleadings are presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.” Rule 56 provides that a court should grant

summary judgment if “there is no genuine dispute as to any material fact and [the moving party]

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that is

capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

          FOIA authorizes district courts to enjoin federal agencies from withholding agency records

and to order the production of any improperly withheld records. 5 U.S.C. § 552(a)(4)(B). An

agency’s obligation “to search for and disclose all responsive records” is triggered when it receives

a request, Ctr. for the Study of Servs. v. United States Dep't of Health & Human Servs., 874 F.3d

287, 288 (D.C. Cir. 2017), that “reasonably describes” the records sought and “is made in

accordance with [the agency’s] published rules,” 5 U.S.C. § 552(a)(3)(A). If a requester believes

that the agency has not responded adequately, he generally must exhaust his administrative

remedies before filing suit in federal court. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004);

Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990); see Elec. Privacy Info. Ctr. v.

Internal Revenue Serv., 910 F.3d 1232, 1238 (D.C. Cir. 2018) (“A FOIA requester must complete

the ‘statutory administrative appeal process, allowing the agency to complete its disclosure process

before courts step in.’”) (quoting Oglesby, 920 F.2d at 65)). FOIA’s administrative scheme “favors

treating failure to exhaust as a bar to judicial review,” Wilbur, 355 F.3d at 677 (internal quotation

marks omitted), and “exhaustion . . . can be a substantive ground for rejecting a FOIA claim in




                                                  3
litigation,” Bayala v. United States Dep’t of Homeland Sec., Off. of Gen. Counsel, 827 F.3d 31, 35

(D.C. Cir. 2016).

IV.    DISCUSSION

       Plaintiff does not dispute that he did not pursue any administrative remedies. See Seidel

Decl. ¶ 11 (In response to the FBI’s inquiry on November 19, 2018, “OIP advised it had no record

of receiving any administrative appeals concerning” the three FOIA Request Numbers discussed

above.).   Instead, Plaintiff counters with two arguments.         First, Plaintiff challenges facts

concerning his criminal prosecution, see Decl. in Opp’n to Def’s Mot., ECF No. 24 at 10-14, which

are immaterial to FOIA analysis. See Stonehill v. IRS., 558 F.3d 534, 538-39 (D.C. Cir. 2009)

(“the identity of the requester” and his purpose for seeking records are generally “irrelevant to

whether disclosure is required” under FOIA) (citing cases); accord Dugan v. Dep’t of Justice, 82

F. Supp. 3d 485, 495 (D.D.C. 2015) (declining to “address plaintiff’s arguments concerning his

criminal prosecution or his purported innocence”).

       Second, and more on point, Plaintiff posits that “once constructive exhaustion occurred

any available administrative appeal, i.e. actual exhaustion becomes permissive.” Decl. ¶ 24. FOIA

requires an agency to “determine within 20 days (excepting Saturdays, Sundays, and legal public

holidays) after the receipt of any such request whether to comply” and to “immediately notify”

the requester. 5 U.S.C. § 552(a)(6)(A)(i) (emphasis added). If “the agency fails to answer the

request within twenty [work] days,” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C.

Cir. 2003), the requester “shall be deemed to have exhausted his administrative remedies” and may

proceed directly to court, 5 U.S.C. § 552(a)(6)(C)(i). However, if “the agency responds to the

request after the twenty-day statutory window, but before the requester files suit, the administrative

exhaustion requirement still applies.” Rossotti, 326 F.3d at 1310 (citing Oglesby, 920 F.2d at 64-



                                                  4
65). In this case, Defendant has shown that it received Plaintiff’s request on May 23, 2018. Seidel

Decl. ¶ 23. With respect to two categories of Plaintiff’s requests, the FBI answered them on May

29, 2018, a mere three business days after receipt. Id., Exs. B, C. As for the third category of

Plaintiff’s requests, the FBI answered them by producing 123 pages of records on June 20, 2018,

19 work days after receipt. Id., Ex. E. Thus, the agency’s determinations with respect to Plaintiff’s

requests all came not only within the 20-day timeframe but also the latest of the three issued five

days before Plaintiff filed suit on June 25, 2018. Therefore, Plaintiff’s constructive exhaustion

argument is unfounded.

V.     CONCLUSION

       For the foregoing reasons, Defendant’s motion is granted, and this case is dismissed.

A separate final order accompanies this memorandum opinion.




Dated: November 12, 2019                              Amit P. Mehta
                                                      United States District Judge




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