                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

FREDERICK HINES,                                :
                                                :
               Plaintiff,                       :       Civil Action No.:        09-1949 (RMU)
                                                :
               v.                               :       Re Document No.:         11
                                                :
UNITED STATES OF AMERICA et al.,                :
                                                :
               Defendants.                      :

                                   MEMORANDUM OPINION

              GRANTING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

                                        I. INTRODUCTION

       In this pro se action brought against the United States and Wanda Hunt, Chief of the

Freedom of Information Act/Privacy Act Section of the Bureau of Prisons (“BOP”) under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, the

plaintiff challenges the alleged failure of the BOP to timely respond to his request for records

pertaining to the contractual obligations of its contractor, the GEO Group. The defendants move

to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted or, in

the alternative, for summary judgment under Rule 56. Because the defendants are now

processing the plaintiff’s request but have yet to issue a final agency determination, the court,

relying on matters beyond the pleadings, will treat the defendants’ Rule 12(b)(6) motion as one

for summary judgment1 and grant that motion based on the plaintiff’s failure to exhaust his




1
       See FED . R. CIV . P. 12(d) (directing courts to treat a Rule 12(b)(6) motion to dismiss as one for
       summary judgment when “matters outside the pleadings are presented to and not excluded by the
       court”).
administrative remedies.2



                     II. FACTUAL & PROCEDURAL BACKGROUND

       On June 11, 2009, the plaintiff requested from the BOP any records “maintained under

[its] agency and the Wackenhut Corrections Corporation now (GEO Group, Incorporation)

contract No.: (JIPCc-005).” Compl., Ex. A. On August 17, 2009, the BOP informed the plaintiff

that it had located 1,738 pages of responsive material, the first 100 of which he was entitled to at

no charge, and the remainder of which would be provided to him for a duplication fee of

$163.80. See Def.’s Mot., Decl. of Ana L. Velilla-Arce (“Velilla-Arce Decl.”), Ex. B. In

addition, the BOP informed the plaintiff that he could reduce his costs by narrowing the scope of

his request, and further informed him that unless he “indicate[d] [his] willingness to pay [the] fee

. . . or [] reformulate[d] what [he sought], this request [would] not be considered as received and

no further action [would] be taken.” Id.

       The plaintiff commenced this action on October 15, 2009, alleging that the BOP had

failed to adequately respond to his request for records. See generally Compl. On November 5,

2009, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (“the

Committee”) paid the duplication fee on the plaintiff’s behalf. Velilla-Arce Decl., Ex. C. The

Committee stated that it would provide the plaintiff with a copy of the responsive documents

after they were forwarded to the Committee. Id. The defendants represent that the processing of



2
       The court also grants the defendants’ motion to dismiss defendant Hunt from this action under
       Rule 12(b)(1). See Santini v. Taylor, 555 F. Supp. 2d 181, 183-84 (D.D.C. 2008) (holding that
       the court “lacks jurisdiction to hear FOIA claims against individuals, even where such
       individuals are agency heads or other agency officials named in their official capacity”).

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the plaintiff’s request is now underway. Velilla-Arce Decl. ¶ 10.



                                         III. ANALYSIS

       A. Legal Standard for a Motion for Summary Judgment in a FOIA Dispute

       Summary judgment is appropriate when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540

(D.C. Cir. 1995). The FOIA mandates full public disclosure of agency records unless the

requested records “fall squarely” within one or more of the nine statutory exemptions. Wash.

Post Co. v. U.S. Dep’t of Agric., 943 F. Supp. 31, 33 (D.D.C. 1996) (quoting Burka v. U.S. Dep’t

of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)). The court may award summary

judgment solely on the information provided in affidavits or declarations that describe “the

justifications for nondisclosure with reasonably specific detail . . . 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); see also Vaughn v. Rosen, 484 F.2d 820,

826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

            B. The Plaintiff Has Failed to Exhaust His Administrative Remedies

       “Exhaustion of administrative remedies is generally required before seeking judicial

review [of a FOIA claim] ‘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. CIA, 355

F.3d 675, 676 (D.C. Cir. 2004) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir.



                                                  3
1990)). In the FOIA context, the exhaustion requirement is a prudential consideration, not a

jurisdictional prerequisite, and therefore a plaintiff’s failure to exhaust does not deprive the court

of subject-matter jurisdiction. Id. But as a prudential consideration, the exhaustion requirement

may still bar judicial review if both the administrative scheme at issue and the purposes of

exhaustion support such a bar. Id. (citing Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir.

2003)). With regard to the first of these two factors, this Circuit has concluded that the FOIA’s

administrative scheme supports barring judicial review. Id. As for the second factor, the court

must examine whether barring judicial review would “prevent[] premature interference with

agency processes, so that the agency may function efficiently and so that it may have an

opportunity to correct its own errors, to afford the parties and the courts the benefit of its

experience and expertise, and to compile a record which is adequate for judicial review.”

Weinberger v. Salfi, 422 U.S. 749, 765 (1975); see also Hidalgo, 344 F.3d at 1259 (applying

Weinberger in the FOIA context).

       When the plaintiff is challenging a fee waiver determination, “[e]xhaustion does not

occur until the required fees are paid or an appeal is taken from the refusal to waive fees.”

Oglesby, 920 F.2d at 66; accord Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 33 (D.D.C.

2002). In addition, the plaintiff is required to appeal any adverse decision to the Department of

Justice’s Office of Information and Privacy (“OIP”) before seeking review of that decision in this

court. See 28 C.F.R. § 16.9 (setting forth the procedures for obtaining an appeal of an adverse

determination).

       The plaintiff does not dispute that he failed to pay the assessed fee before filing this

lawsuit, and there is no indication that he sought a fee waiver from the agency and was denied.



                                                   4
See generally Pl.’s Opp’n. Nor is there any indication that the plaintiff has sought to appeal the

matter to the OIP. See generally id. Accordingly, the court holds that the plaintiff has failed to

exhaust his administrative remedies. See, e.g., Hidalgo, 344 F.3d at 1259 (affirming the

dismissal of the plaintiff’s claim for failure to exhaust when the plaintiff had not yet had the

“benefit of prior OIP consideration”). Given that the BOP is currently processing the plaintiff’s

FOIA request, the court dismisses this action without prejudice to the plaintiff’s filing of a new

civil action, if necessary, after the administrative process has concluded.



                                       IV. CONCLUSION

       For the foregoing reasons, the court grants the defendants’ motion for summary judgment.

An Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 7th day of September, 2010.



                                                       RICARDO M. URBINA
                                                      United States District Judge




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