                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


DEMETRIUS MCLAUGHLIN,                                 )
                                                      )
                       Plaintiff,                     )
                                                      )
                       v.                             ) Civil Action No. 07-2347 (RMC)
                                                      )
U.S. DEPARTMENT OF JUSTICE, et al.,                   )
                                                      )
                       Defendants.                    )

                                    MEMORANDUM OPINION

               In this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, plaintiff Demetrius McLaughlin challenges the response of the Executive Office for United

States Attorneys (“EOUSA”), a Department of Justice component, to his request for records.

Pending before the Court is Defendants’ motion to dismiss or for summary judgment [Dkt. # 13].

Upon consideration of the parties’ submissions and the entire record, the Court will grant

Defendants’ motion for summary judgment.1

                                       I. BACKGROUND

               On May 30, 2007, Mr. McLaughlin made a FOIA request “in regards to the [o]ne

thousand page[s] of Public Records” pertaining to “the investigation that [led] to the indictment[.]”

Compl. Attachment. By acknowledgment letter of August 21, 2007, EOUSA informed Mr.

McLaughlin that it had located about 1,000 public records for release but that he would need to

commit to paying the anticipated fee exceeding $25.00 prior to any further processing of his request

for “public records in your case.” Def.’s Mot., Decl. of David Luczynski (“Luczynski Decl.”) [Dkt.



       1
         Because this disposition will resolve the case, the Court will deny as moot Defendants’
Motion for a Protective Order [Dkt. # 26].
# 13-4], Ex. E. EOUSA further informed Mr. McLaughlin that he could reduce his costs by

narrowing the request, that he should respond “within 30 days of the date of this letter or we will

close your request” and that he could appeal to the Office of Information and Privacy within 60 days.

Id. In September 2007, EOUSA received Mr. McLaughlin’s response dated September 5, 2007, in

which he agreed to pay the fee but corrected EOUSA on its claim that he had received the first 100

pages to which he was entitled at no cost, id., Ex. F, a mistake that EOUSA has acknowledged.

Luczynski Decl., n.2.

               Following Mr. McLaughlin’s filing of this civil action in December 2007, EOUSA

completed its search for responsive records in the United States Attorney’s Office for the Middle

District of Florida. Id. ¶ 8. By an undated notice, EOUSA informed Mr. McLaughlin that it had

located 3,178 pages of public records available for release in their entirety, of which 100 enclosed

pages were being released for free. Id., Ex. H. EOUSA assessed a duplication fee of $307.80 for

the remaining 3,078 pages and informed Mr. McLaughlin that the request would be closed if

payment was not received within 30 days. Id. The notice provided Mr. McLaughlin with the option

of receiving all of the pages at the assessed fee or receiving “the corresponding number of pages”

at a fee that he was willing to pay. Id.

               By letter of May 8, 2008, Mr. McLaughlin proposed “a payment contract to make

twice a month payments of twenty-five dollars in order [to obtain] the full 3,078 pages of the

request[ed] documents,” and enclosed a $25.00 money order. Def.’s Reply, Second Decl. of David

Luczynski (“2nd Luczynski Decl.”) [Dkt. # 20-2], Ex. A. By letter of August 26, 2008, EOUSA

informed Mr. McLaughlin that it could not “process fees on a multiple payment basis” and returned

the money order. Id., Ex. C.


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                                     II. LEGAL STANDARD

                Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

appropriate if 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 a judgment as

a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that “might affect the outcome of the

suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d

635, 638 (D.C. Cir. 1994). In considering whether there is a triable issue of fact, the Court must

draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also

Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The

party opposing a motion for summary judgment, however, “may not rest upon the mere allegations

or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 248. The mere existence of a factual dispute is not enough to bar

summary judgment, and the non-moving party must do more than simply “show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). To be material, the fact must be capable of affecting the outcome of the

litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a

reasonable trier of fact to find in favor of the nonmoving party. See Anderson, 477 U.S. at 247-48;

Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). Finally, “any factual assertions

in the movant’s affidavits will be accepted as being true unless [the opposing party] submits his own

affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d 453,


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456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

               Under the FOIA, 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.” Id. § 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).

               Summary judgment is the frequent vehicle for resolution of a FOIA action because

the pleadings and declarations in such cases often provide undisputed facts on which the moving

parties are entitled to judgment as a matter of law. Miscavige v. IRS, 2 F.3d 366, 360 (11th Cir.

1993); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C. Cir. 1988); Weisberg v. DOJ, 627

F.2d 365, 368 (D.C. Cir. 1980). Agencies may rely on affidavits or declarations of government

officials, as long as they are sufficiently clear and detailed and submitted in good faith. See Oglesby

v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Such 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). The Court may award summary judgment solely on the basis of

information provided in such affidavits or declarations when they describe “the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information


                                                 -4-
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); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

                                         III. ANALYSIS

               EOUSA asserts that it is entitled to relief because Mr. McLaughlin has not exhausted

his administrative remedies by paying the assessed duplication fee. As part of the FOIA’s exhaustion

requirement, the payment or waiver of assessed fees, or an administrative appeal from the denial of

a fee waiver request, is required prior to a requester’s obtaining judicial review. Oglesby, 920 F.2d

at 65-67; Trueblood v. U.S. Dep’t. of Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996) (citing Pollack

v. Dep’t of Justice, 49 F.3d 115, 120 (4th Cir. 1995)).

               Mr. McLaughlin does not dispute that he has not paid the assessed duplication fee.

Rather, he argues that EOUSA acted in bad faith (1) by not including the public records in the

processing of his earlier request in September 2006 for “any and all documents, records, information

in connection with [his criminal indictment],” Pl.’s Aff. in Supp. of Mot. in Opp’n to Summ. J.

[Dkt. # 17-2] at 4, and (2) by refusing his request to pay the $307 duplication fee in installments.

Id. at 5. To sustain his claim of bad faith, Mr. McLaughlin “must point to evidence sufficient to put

the Agency’s good faith into doubt.” Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C.

Cir. 1981). Agency action “performed in accordance with specified guidelines[] would not imply

bad faith.” Boyd v. Criminal Div. of U.S. Dep’t. of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007).

               In response to Mr. McLaughlin’s first point, Mr. Luczynski explains that “whenever

possible[,] EOUSA considers a request as [one] for non-public source records and asks that a new

request for public source records be submitted separately.” 2nd Luczynski Decl. ¶ 9. That way, the


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requester would have quicker access to public records because they “generally can be released

without the need for processing [them] in order to redact them.”2 Id. In addition, EOUSA’s practice

of separating the two types of requests is based on its “experience” that “many requesters do not

want public source records[.]” Id. Thus, “EOUSA is able to prevent requesters from being charged

certain fees for [unwanted] records[.]”     Id.    As to the second point, EOUSA rejected Mr.

McLaughlin’s proposed payment plan because it was not an available option. Mr. McLaughlin has

not cited a statutory or regulatory provision requiring EOUSA’s consideration of such a plan, and

he has not countered EOUSA’s reasonable explanation for why such a plan is not feasible. See 2nd

Luczynski Decl. ¶¶ 7-8. No reasonable fact finder could imply agency bad faith from the

aforementioned conduct.3

                                      IV. CONCLUSION

               For the foregoing reasons, the Court will grant the Defendants’ motion for summary

judgment [Dkt. # 13] and, thus, will deny its pending motion for a protective order [Dkt. # 26] as

moot. A separate Order accompanies this Memorandum Opinion.

                                                                    /s/
                                                        ROSEMARY M. COLLYER
Date: February 23, 2009                                 United States District Judge



       2
         This comports with the statutory requirement that agencies “make [responsive] records
promptly available.” 5 U.S.C. § 552(a)(3)(A).
       3
          The record demonstrates just the opposite. By submitting a separate request for public
records, Mr. McLaughlin was entitled by statute to free copies of the first 100 pages of just those
records. See 5 U.S.C. § 552(a)(4)(A)(iv). In addition, had he chosen the available option of
paying a reduced fee for fewer responsive pages, Mr. McLaughlin could have sampled the public
records before paying “a substantial sum of money” for the entire lot. 2nd Luczynski Decl. ¶ 10;
see 5 U.S.C. § 552(a)(4)(A)(ii)(III) (requiring an agency to assess “reasonable standard charges
for search and duplication” to requesters who do not qualify for a fee waiver).

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