                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


Alejandro Espinoza,                          :
                                             :
                      Plaintiff,             :
               v.                            :               Civil Action No. 12-1950 (CKK)
                                             :
Department of Justice et al.,                :
                                             :
                      Defendants.            :



                                     MEMORANDUM OPINION

       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]. 1 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.




1
   In response to plaintiff’s Amended Complaint [Dkt. # 18] lodged after their initial dispositive
motion, defendants filed a supplemental brief renewing their arguments set out in the initial brief
and addressing plaintiff’s additional claims raised in the Amended Complaint. Suppl. Mem. of
P. & A. in Support of Defs.’ Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. # 20-1].
                                                     1
                                        BACKGROUND

       Plaintiff was convicted in 2005 of drug charges following a trial held in the United States

District Court for the District of New Mexico. See U.S v. Espinoza, --- Fed. Appx. ---, 2013 WL

6183847 (10th Cir. Nov. 27, 2013) (denying request for certificate of appealability). On June 19,

2012, plaintiff requested from EOUSA all records “related to the U.S. Attorney’s discovery that

evidence was withheld from me during my trial,” including “emails and other electronically

stored information.” Am. Compl. [Dkt. # 18] ¶ 11; Defs’ Ex. 1 [Dkt. # 12-5] (“Request”). In

addition, plaintiff “requested Debra James’s Pre-Sentence Report (PSR) generated for Case

Number 04-cr-479. Specifically, the date the PSR was generated, and any information

concerning Debra James’s positive drug tests within the PSR,” and he sought a fee waiver

“because the production of the requested information could serve the substantial public interest

in setting free an innocent man.” Request at 2. Plaintiff stated: “[i]f your office cannot waive

the duplication and search fees[,] please forward any responsive records to which I’m entitled

free of charge, and let me know what the fees are relating to the rest of the responsive record[s].”

Id. at 3. On September 3, 2012, plaintiff “lodge[d] a complaint [with EOUSA] concerning the

delay of the processing of my requests, and to clarify that I sought expedited processing of my

requests,” while acknowledging that he had “inadvertently failed to specify that I was seeking

expedited processing” in the FOIA request. Defs.’ Ex. 2 [Dkt. 12-6].

       Meanwhile, by letter dated July 11, 2012 -- which plaintiff in the September 3 letter

acknowledged receiving -- EOUSA informed plaintiff that the request for his records was

designated Request No. 12-2643 (Self), that the request for Debra James’s records was

designated Request No. 12-2644 (Third Party), and that each request would be processed

separately and a “response on each” request would be sent “as soon as [processing] is finished.”



                                                     2
Decl. of Kathleen Brandon, Ex. A [Dkt. # 12-3]. The letter also informed plaintiff that “EOUSA

makes every effort to process most requests within a month (20 working days)” but that “a very

large request,” e.g., one seeking “all information about myself in criminal case files,” is treated

as a “Project Request” that “usually take[s] approximately nine months to process.” Id. Finally,

plaintiff was told that pursuant to 28 C.F.R. § 16.3(c), by making a FOIA request, he had “agreed

to pay fees up to $25, . . . unless you have requested a fee waiver”; that absent a fee waiver, he

would be assessed search and duplication fees after the first two hours of the search and the first

100 pages; that the agency “will normally notify you of our estimate of fees” exceeding $25; that

“[a]fter we have received your agreement to pay for the expected fees (or you have narrowed

your request to reduce fees) and we have processed your request,” his payment of any assessed

fees would be required before the release of any responsive records; and that “[w]ithout such

payment, your request file will be closed without further action.” Id.

       Request No. 12-2644 (third-party records)

       By letter dated July 31, 2012, EOUSA denied plaintiff’s request for James’s records due

to his failure to provide James’s “express authorization and consent” to release such records,

proof of her death, or “a clear demonstration” of an overriding public interest in disclosing such

records. Id., Ex. B. The letter informed plaintiff that third-party information is “generally

exempt from disclosure” under FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b), and that he

had the right to appeal the decision to the Office of Information Policy (“OIP”) in 60 days.

EOUSA has no record or notice from OIP that plaintiff appealed this decision. Brandon Decl. ¶

9.




                                                      3
        Request No. 12-2643 (first-party records)

        In August 2012, at EOUSA’s direction, the United States Attorney’s Office for the

District of New Mexico searched for records responsive to plaintiff’s request for his records but

stopped the search after reaching the two-hour limit. Id. ¶¶ 10-11; Decl. of Diane Tapia [Dkt. #

12-4] ¶¶ 3-12. On August 16, 2012, Tapia informed EOUSA that the local office had “exceeded

the two hours of free search and had stopped the search process,” but had “found nothing

responsive to the request except for the James [PSR].” Tapia Decl. ¶ 12. The search did not

include “archived electronic records from January 1, 2006 through August 31, 2008, because

those records were archived at EOUSA[,] [which] would have to assist with that part of the

search.” Id. Tapia sought “further instructions [on] how [the local office] should proceed.” Id.

¶ 13.

        EOUSA responded in October and November 2012, instructing the local office not to

include James’s PSR in its response since it was protected by the Privacy Act, and “to have the

[local] information technology staff contact Diane Heintzelman of EOUSA to coordinate and

determine the appropriate fee to charge for searching the archived electronic records.” Id. ¶ 15.

On December 14, 2012, Tapia received an email from Heintzelman stating that the local “office

emails were migrated to USAMAIL” in May 2008 and estimating that it would take four hours

of search time at $84.41 per hour for a total of $325.64 to search the archived records. Id. ¶ 16.

On that same day, Ed Lee of the local office’s technology staff informed Tapia that “he did not

run the electronic search” but that he had “spent approximately two hours preparing the

parameters for the search and locating the records to be searched.” Id. Tapia received no further

instructions from EOUSA prior to the commencement of this action. See id. ¶ 17.




                                                     4
        Meanwhile, plaintiff filed this civil action on December 4, 2012, “having received no

further communication regarding his request . . . .” Pl.’s Statement of Material Facts Not in

Genuine Dispute [Dkt. # 23] ¶ 18. By letter of January 2, 2013, EOUSA informed plaintiff that

“[w]e are currently searching for documents responsive to your FOIA/PA request, and we have

reached the two hours free search time provided to you at no charge.” Brandon Decl., Ex. D.

The letter stated that DOJ regulation 16.11(i) “provide that our office may collect an advance

payment before we continue processing your request if we estimate fees will exceed $250.00”;

that an additional four hours had been estimated to complete the search of the requested

“archived email records”; that the hourly fee for searching the archived email records was

$81.41; and that plaintiff’s payment of $325.64 was required to continue the processing of his

request. Brandon Decl., Ex. D.

        Plaintiff was further informed that the number of responsive records was not known

“prior to a complete search” but that he could reduce his costs by limiting the scope of his

request, specifying the maximum amount he was willing to pay, or terminating the search at the

two hours’ free time. The letter further stated that pursuant to 28 C.F.R. § 16.11(i), plaintiff’s

request was not “considered received” until EOUSA received his response and that his failure to

act within 30 days would result in the closing of his request. Id. A form was included for

plaintiff to “indicate [his] wishes.” Id. The letter also contained a note informing plaintiff about

his right to appeal to OIP within 60 days while acknowledging that “this FOIA request is

currently the subject of litigation.” Id.

        By letter dated February 21, 2013, EOUSA informed plaintiff that his request was closed

due to his failure to respond to the January 2, 2013 letter and, since “[t]his is the final action,” he




                                                       5
could appeal to OIP within 60 days. Id., Ex. E. Again, EOUSA has no record or notice from

OIP that plaintiff appealed this decision. Brandon Decl. ¶ 17.

                                          LEGAL STANDARD

       Summary judgment is appropriate upon a showing 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). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

       The FOIA requires a federal agency to release all records responsive to a properly

submitted request except those protected from disclosure by one or more of nine enumerated

exemptions. See 5 U.S.C. § 552(b). The agency’s disclosure obligations are triggered by its

receipt of a request that “reasonably describes [the requested] records” and “is made in

accordance with published rules stating the time, place, fees (if any), and procedures to be

followed.” 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only "to enjoin [a federal]

agency from withholding agency records or to order the production of any agency records

improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a

FOIA claim are (1) improperly (2) withheld (3) agency records. “Judicial authority to devise

remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5

U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation.”

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). The

disclosure requirement generally covers only those records that are in the agency’s custody and

control at the time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d

1095, 1110 (D.C. Cir. 1983).



                                                      6
       In a FOIA case, the Court may award summary judgment to an agency solely on the

information provided in affidavits or declarations when they describe “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); accord Am. Civil Liberties Union v. U.S. Dep't of Def., 628

F.3d 612, 619 (D.C. Cir. 2011). see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973),

cert. denied, 415 U.S. 977 (1974). The district court must conduct a “de novo” review of the

record, 5 U.S.C. § 552(a)(4)(B), which “requires the court to ascertain whether the agency has

sustained its burden of demonstrating that the documents requested . . . are exempt from

disclosure.” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55,

57 (D.C. Cir. 2003) (citation and internal quotation marks omitted). “Consistent with the

purpose of the Act, the burden is on the agency to justify withholding requested documents,”

Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has

proven that “it has fully discharged its disclosure obligations” is summary judgment appropriate.

Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983).

       Agency declarations are accorded "a presumption of good faith[.]” Long v. U.S. Dep’t of

Justice, 450 F. Supp. 2d 42, 54 (D.D.C. 2006) (citation and quotation omitted). To rebut the

presumption, a plaintiff “must point to evidence sufficient to put the Agency's good faith into

doubt.” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). In properly

opposing a summary judgment motion, a plaintiff may not merely “replace conclusory

allegations of the complaint or answer with conclusory allegations of an affidavit,” Lujan v. Nat’l

Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must “set forth specific facts showing



                                                    7
that there is a genuine issue for trial.” Anderson, 477 U.S. at 248; see Schoenman v. FBI, 841 F.

Supp. 2d 69, 80 (D.D.C. 2012) (“In other words, ‘uncontradicted, plausible affidavits showing

reasonable specificity and a logical relation to the exemption are likely to prevail.’ ”) (quoting

Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011))

(alteration omitted).

                                              DISCUSSION

       At the outset, plaintiff invokes both the FOIA and the Administrative Procedure Act

(“APA”) to obtain the same relief. See Am. Compl. at 5-8. But the APA authorizes judicial

review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C.

§ 704. It is axiomatic that plaintiff’s remedy lies with the FOIA. His APA claim therefore is

dismissed. See Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 795 F. Supp. 2d 85, 95 (D.D.C.

2011) (“APA claims arising out of an agency's response to a FOIA request must be dismissed

when they seek relief that can be obtained through a FOIA claim itself.”) (citing cases).

       Defendants argue that dismissal of plaintiff’s FOIA claims is warranted because plaintiff

failed to exhaust his administrative remedies by (1) paying the fees assessed for Request No. 12-

2643 (first-party records) and (2) administratively appealing any adverse determinations prior to

filing this action. See Defs.’ Reply at 2-7. In addition, defendants argue that they are entitled to

summary judgment on the adequacy of their search for plaintiff’s records and on their denial of

plaintiff’s request for James’s records pursuant to FOIA exemptions 6 and 7(C) and the Privacy

Act, 5 U.S.C. § 552a. See id. at 8-9. Finally, defendants argue that plaintiff’s claim predicated

on his request for expedited processing is moot. See id. at 6-7.

       Failure to Exhaust Request No. 12-2643 (first-party records)

       1. Plaintiff’s Fee Waiver Request



                                                      8
       Under the FOIA, “[e]xhaustion of administrative remedies is generally required before

seeking judicial review ‘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.’ ” Wilbur v. Central

Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (quoting Oglesby v. U.S. Dep't of Army,

920 F.2d 57, 61 (D.C. Cir. 1990)). In this context, the doctrine is “jurisprudential” and “not

jurisdictional.” Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1258 (D.C. Cir. 2003).

Generally speaking, a plaintiff's “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).

       An agency’s disclosure obligation is triggered by its receipt of a request that, inter alia,

“is made in accordance with [the agency’s] published rules stating the time, place, fees (if any),

and procedures to follow.” 5 U.S.C. ' 552(a)(3)(A); see § 552(a)(4)(A) (authorizing the setting

of “reasonable standard charges” for document search and duplication); accord Citizens for

Responsibility and Ethics in Washington v. FEC, 711 F.3d 180, 185, n.2 (D.C. Cir. 2013) (“Of

course, the duties that FOIA imposes on agencies [including the deadlines for making a

determination] apply only once an agency has received a proper FOIA request.”) (quoting §

552(a)(3)(A)). Thus, a requester’s failure to pay assessed fees also constitutes a failure to

exhaust. See Oglesby, 920 F.2d at 66 (“Exhaustion does not occur until the required fees are

paid or an appeal is taken from the refusal to waive fees.”).

       Plaintiff does not dispute that he failed to pay the assessed fees. Rather, he argues that

dismissal for his failure to exhaust is unwarranted because he constructively exhausted his

administrative remedies when defendants failed to respond to his fee waiver request within the




                                                     9
FOIA’s 20-day timeline. See Pl.’s Opp’n at 4-7. Plaintiff’s constructive exhaustion argument is

based on the following provision:

         Any person making a request to any agency for records under paragraph (1),
         (2), or (3) of this subsection shall be deemed to have exhausted his
         administrative remedies with respect to such request if the agency fails to
         comply with the applicable time limit provisions of this paragraph.

5 U.S.C. § 552(a)(6)(C)(i) (emphases added). But this language does not specifically address a

request for a fee waiver and, for reasons discussed below, the Court does not find it applicable to

such a request.

       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 (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.

                                                      10
528, 538-39 (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, --- F. Supp. 2d ---, 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




                                                      11
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



                                                      12
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, 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



                                                     13
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.

       3. Defendants’ Entitlement to Fees

       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.

                                                     14
5 U.S.C. § 552(a)(4)(A)(viii). Since the Court has found paragraph 6 inapplicable to a fee

waiver request, supra at 10, 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 (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. 2 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.




2
    The regulation states in relevant part:

            (4) In cases in which a component requires advance payment or payment
            due under paragraph (i)(2) or (3) of this section, the request shall not be
            considered received and further work will not be done on it until the
            required payment is received.

28 C.F.R. § 16.3(i)


                                                      15
       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”).

       1. The Claimed Exemptions

       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 (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



                                                     16
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 (1987) (citations omitted); see Kissinger, 445 U.S. at

151-52 (“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,



                                                     17
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. 3 See U.S. Dep't of State v.

Wash. Post Co., 456 U.S. 595, 602 (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



3
   Although exemption 7(C) is somewhat broader than exemption 6, see Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 165-66 (2004), the “the privacy inquiry of exemptions
6 and 7(C) [is] essentially the same.” Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108,
1125 (D.C. Cir. 2004).


                                                     18
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 (2004)).

       2. Plaintiff’s Public Interest Justification

       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. 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. 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.




                                                      19
       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 (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, 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.

       Expedited Processing

       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.




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                                            CONCLUSION

       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.




                                                    __________s/s__________________
                                                    COLLEEN KOLLAR-KOTELLY
DATE: February 27, 2014                             United States District Judge




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