                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA


 BERNICE EBLING,

           Plaintiff,

      v.                                                                Civil Action No. 10-00914 (CKK)
 UNITED STATES DEPARTMENT
 OF JUSTICE,

           Defendant.


                                        MEMORANDUM OPINION
                                            (July 11, 2011)

       Plaintiff Bernice Ebling brings this action against the United States Department of Justice

(the “DOJ”) under the Freedom of Information Act (“FOIA”). Presently before the Court is the

DOJ’s [9] Motion to Dismiss, or Alternatively, for Summary Judgment (“Motion for Summary

Judgment”). Upon consideration of the parties’ submissions, the relevant authorities, and the

record as a whole, the motion will be granted-in-part and denied-in-part.

                                                 I. OVERVIEW

                  waiver (way-vdr), n. (17c) 1. The voluntary relinquishment or abandonment —
                  express or implied — of a legal right or advantage . . . . The party alleged to have
                  waived a right must have had both knowledge of the existing right and the intention
                  of forgoing it.

                  B LACK ’S L AW D IC TIO N ARY 1717 (9th ed. 2009).


       In late 2009 and early 2010, Ms. Ebling filed a series of FOIA requests with two agencies

under the auspices of the DOJ—namely, the Executive Office for United States Attorneys (the

“EOUSA”) and the Federal Bureau of Investigation (the “FBI”). From both the EOUSA and the

FBI, she sought records concerning the criminal investigation and prosecution of William S.

Price, who is alleged to be Ms. Ebling’s nephew. From the FBI only, she also sought records
concerning the participation of Tami Lynn Price, who is alleged to be Mr. Price’s former spouse,

in the criminal investigation and prosecution of Mr. Price.

       The EOUSA and the FBI refused to process Ms. Ebling’s requests for records relating to

Mr. Price. As grounds, they cited the terms of Mr. Price’s plea agreement, in which he waived

his right to use either FOIA or the Privacy Act of 1974 (“PA”) as a means of obtaining records

concerning his criminal case. Even though Ms. Ebling was not a party to that agreement, the

EOUSA and the FBI claimed that the FOIA/PA waiver in Mr. Price’s plea agreement presented

an absolute bar to her efforts to obtain records concerning the criminal investigation and

prosecution of Mr. Price. Before this Court, the DOJ defends the EOUSA and the FBI’s actions

on the same basis. In essence, the DOJ maintains that Ms. Ebling’s requests are a subterfuge for

circumventing the FOIA/PA waiver in Mr. Price’s plea agreement.

       In contrast, the FBI actually processed Ms. Ebling’s requests for records relating to Ms.

Price. However, it concluded that the responsive records that were located were all exempt from

disclosure. Before this Court, the DOJ defends the FBI’s decision on another basis entirely.

Here, the DOJ contends that Ms. Ebling failed to exhaust her administrative remedies because

she did not file an administrative appeal in accordance with the DOJ’s regulations.

        The DOJ’s Motion for Summary Judgment will be granted-in-part and denied-in-part.

With respect to Ms. Ebling’s requests for records relating to Mr. Price, the EOUSA and the FBI

improperly relied upon the FOIA/PA waiver in Mr. Price’s plea agreement as a reason for

refusing to process Ms. Ebling’s requests. See infra Part VI.A. Ms. Ebling simply is not a party

to that agreement and, as a result, it cannot be enforced against her. See id. Ms. Ebling has an

independent right to request records under FOIA, and Mr. Price could not, and did not,


                                                 2
unilaterally waive that right merely by executing his plea agreement. See id. Therefore, the

Court will deny the DOJ’s Motion for Summary Judgment with respect to Ms. Ebling’s requests

relating to Mr. Price.

       Meanwhile, the Court agrees with the DOJ that Ms. Ebling has failed to fully exhaust her

administrative remedies with respect to her requests relating to Ms. Price. As an initial matter,

Ms. Ebling has failed to come forward with enough evidence to create a genuine dispute that she

ever filed an administrative appeal. See infra Part IV.B. Moreover, even crediting Ms. Ebling’s

allegations that she attempted to file an administrative appeal, it is clear that she did not do so in

accordance with the DOJ’s regulations. See id. Therefore, the Court will grant the DOJ’s

Motion for Summary Judgment with respect to Ms. Ebling’s requests relating to Ms. Price.

                                 II. PRELIMINARY MATTERS

       Although styled in the alternative as a motion for judgment on the pleadings pursuant to

Rule 12(c) of the Federal Rules of Civil Procedure,1 the DOJ’s motion plainly turns upon the

consideration of materials outside the scope of the pleadings. Indeed, in the course of briefing

the motion, both parties effectively treat the motion as one for summary judgment. For her part,

Ms. Ebling does not suggest that she has been deprived “a reasonable opportunity to present all

the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). In fact, in opposition to the

DOJ’s motion, Ms. Ebling references, and relies heavily upon, materials outside the scope of the

pleadings. Accordingly, the Court shall treat the motion solely as one for summary judgment.




       1
          On occasion, the DOJ erroneously cites to Rule 12(b)(6), but because the pleadings in
this action are closed, the DOJ’s motion would actually arise under Rule 12(c).

                                                   3
                                III. FACTUAL BACKGROUND

       William S. Price was indicted in the United States District Court for the Western District

of Missouri on June 28, 2006, charged with five counts relating to the possession and production

of child pornography. See Indictment, United States v. Price, Criminal Action No. 5:06-cr-

06012-NKL-1 (W.D. Mo. June 28, 2006), ECF No. [5]. On March 22, 2007, after reaching a

plea agreement, Mr. Price pleaded guilty to one count of production of child pornography and

one count of receipt of child pornography. See J. in a Criminal Case, United States v. Price,

Criminal Action No. 5:06-cr-06012-NKL-1 (W.D. Mo. Oct. 9, 2008), ECF No. [94]. On October

8, 2008, he was sentenced to a total term of imprisonment of 600 months, to be followed by

lifetime supervised release. Id. at 2. Subsequently, the sentence and the judgment were affirmed

by the United States Court of Appeals for the Eighth Circuit. See United States v. Price, 326 F.

App’x 985 (8th Cir.), cert. denied, __ U.S. __, 130 S. Ct. 294 (2009). Recently, Mr. Price’s

petition for post-conviction relief was denied by the district court. See Price v. United States,

Civil Action No. 5:10-cv-06120-NKL, 2011 WL 1357498 (W.D. Mo. Apr. 11, 2011). Mr.

Price’s appeal of that decision remains pending.

       A.      Mr. Price’s Plea Agreement

       Of particular relevance to this action, Mr. Price’s guilty plea in his criminal case was

secured through a formal plea agreement. See Pl.’s Stmt. of Genuine Issues, Pursuant to Local

Rule 7(h) (“Pl.’s Stmt.”), ECF No. [10], Ex. D (Plea Agreement (“Plea Agmt.”)).2 The parties to


       2
            A copy of the plea agreement is attached to Ms. Ebling’s opposition papers. Even
though Mr. Price’s plea agreement is the centerpiece of the DOJ’s motion, the DOJ failed to
include a copy with its moving papers. Where, as here, a party contends that it is entitled to
judgment as a matter of law on the basis of documentary evidence, it should go without saying
that it is prudent to introduce that documentary evidence into the record for the Court’s

                                                   4
that agreement are described as follows:

               The Parties. The parties to this agreement are the United States
               Attorney’s Office for the Western District of Missouri . . . and the
               defendant, William S. Price (“the defendant”), represented by John
               Gromowsky, Criminal Justice Act appointed counsel.

               The defendant understands and agrees that this plea agreement is only
               between him and the United States Attorney for the Western District
               of Missouri, and it does not bind any other federal, state, or local
               prosecution authority or any other government agency, unless
               otherwise specified in this agreement.

Id. ¶ 1. Consistent with this description, the agreement was signed by only three individuals—an

Assistant United States Attorney, Mr. Price, and Mr. Price’s attorney. Id. at 20.

       For purposes of this FOIA action, the operative provision of the plea agreement provides:

               Waiver of FOIA Request. The defendant waives all of his rights,
               whether asserted directly or by a representative, to request or receive
               from any department or agency of the United States any records
               pertaining to the investigation or prosecution of this case including,
               without limitation, any records that may be sought under the Freedom
               of Information Act, 5 U.S.C. § 552, or the Privacy Act of 1974, 5
               U.S.C. § 552a.



consideration. Apparently by way of explanation for its failure, the DOJ states that the plea
agreement was filed under seal in Mr. Price’s criminal case. See Def.’s Stmt. of Material Facts
as to Which There Is No Genuine Issue, Pursuant to Local Rule 7(h), ECF No. [9-1], at 2 n.3.
But that is not a valid excuse. This Court, like any other, has procedures allowing for the
submission of documents under seal. See LCvR 5.1(j). Nonetheless, the Court observes that Mr.
Price’s plea agreement, which was filed by Ms. Ebling on the public docket, contains potentially
sensitive information about the factual basis for Mr. Price’s guilty plea, including, but not limited
to, facts that touch upon the identity of one of the minor victims of Mr. Price’s criminal conduct.
Out of an abundance of caution, the Court will direct the Clerk of the Court to temporarily
maintain the plea agreement under seal until and including Friday, July 29, 2011, in order to
afford any interested party an opportunity to file a motion to seal all or part of its contents. Any
such motion shall, at a minimum, be made in accordance with the Local Rules of this Court and
address each of the factors set forth in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980).
If a motion is not filed by the designated date, the Court will direct the Clerk of the Court to
unseal the plea agreement.

                                                 5
Pl.’s Stmt. Ex. D (Plea Agmt.), ¶ 16. It is this FOIA/PA waiver that the EOUSA and the FBI

later relied upon in denying Ms. Ebling’s FOIA requests relating to Mr. Price.

       B.      Request No. 1: Ms. Ebling’s Request to the EOUSA for Records Relating to Mr.
               Price (Administrative Control No. 09-4676)

       By letter dated December 31, 2009, Ms. Ebling submitted a FOIA request to the EOUSA

seeking records concerning Mr. Price (“Request No. 1”). See Pl.’s Stmt. Ex. B (Ltr. from B.

Ebling to the EOUSA dated Dec. 31, 2009); see also Decl. of John F. Boseker (“Boseker Decl.”),

ECF No. [9-4], ¶ 6.3 In the letter, Ms. Price requests the following records regarding Mr. Price:

               1.     printouts of the search screen displays encountered while
                      performing a search of the Legal Information Office Network
                      System (LIONS), as well as the indices and the records
                      responsive to the search;

               2.     printouts of the search screen displays encountered while
                      performing a search of the Tracking Assistance for the Legal
                      Office Network (TALON), as well as the indices and the
                      records responsive to the search;

               3.     printouts of the search screen displays and indices
                      encountered while performing a search of any other database
                      searched in response to this request;

               4.     any and all records of communication, regardless of form or
                      format, involving AUSA Cynthia Phillips/Cordes, Special


       3
            While the DOJ concedes that the EOUSA received Ms. Ebling’s December 31, 2009
letter, it failed to include a copy with its moving papers. By way of explanation, the DOJ avers
that Ms. Ebling’s December 31, 2009 letter is a “duplicate” and “identical in substance” to a
letter she sent to the EOUSA on or about December 4, 2009. Boseker Decl. ¶ 6. Although the
two letters are indeed very similar, they are not identical. Whereas Ms. Ebling’s December 4,
2009 letter erroneously requested records concerning “the undersigned,” her December 31, 2009
corrected the mistake to clarify that her request only sought records concerning Mr. Price.
Compare Boseker Decl. Ex. A (Ltr. from B. Ebling to the EOUSA dated Dec. 4, 2009), with Pl.’s
Stmt. Ex. B (Ltr. from B. Ebling to the EOUSA dated Dec. 31, 2009). Because only the
December 31, 2009 letter is referenced in Ms. Ebling’s Complaint, see Compl., ECF No. [1], ¶ 8,
the Court shall treat that letter as the operative request.

                                                6
                      Agent Kurt Lipanovich, or any other person in which the
                      subject is mentioned or referred;

               5.     any and all records at the Kansas City United States
                      Attorney’s Office (USAO) or any other USAO, whether or
                      not such records have been uploaded to EOUSA, including
                      search screen displays and indices encountered while
                      performing the search for responsive records.

Pl.’s Stmt. Ex. B (Ltr. from B. Ebling to the EOUSA dated Dec. 31, 2009), at 1. Attached to Ms.

Ebling’s letter was a Certification of Identity and Authorization to Release Information to

Another Person from Mr. Price, indicating that he authorized the release of records pertaining to

him to Ms. Ebling. Id. at 2.

       By letter dated January 7, 2010, the EOUSA notified Ms. Ebling that it had received her

Request No. 1.4 See Boseker Decl. Ex. B (Ltr. from the EOUSA to B. Ebling dated Jan. 7, 2010),

at 1. Subsequently, the EOUSA forwarded the request to the United States Attorney’s Office for

the Western District of Missouri to search for responsive records. Id. ¶ 8. On January 26, 2010,

that office informed the EOUSA that Mr. Price’s plea agreement included a FOIA/PA waiver.

Id. ¶ 9. By letter dated April 13, 2010, the EOUSA denied Ms. Ebling’s Request No. 1. See

Boseker Decl. Ex. C (Ltr. from the EOUSA to B. Ebling dated Apr. 13, 2010), at 1. By way of

explanation for its decision, the EOUSA stated:

               Pursuant to the filed Memorandum of Plea Agreement you executed
               on March 22, 2007, you have waived all rights, whether asserted
               directly or by a representative, to request or receive from any
               department or agency of the United States any records pertaining to
               the investigation or prosecution of this case . . . .

Id. (emphasis added; underlining omitted).


       4
          While the Court will refer to Ms. Ebling’s request as Request No. 1 for purposes of this
action, the administrative control number was 09-4676.

                                                  7
       By letter dated April 22, 2010, Ms. Ebling filed an appeal of the EOUSA’s denial of her

Request No. 1 with the DOJ’s Office of Information Policy (the “OIP”), the office responsible for

adjudicating such appeals. See Boseker Decl. Ex. D (Ltr. from B. Ebling to the OIP dated Apr.

22, 2010), at 1. By letter dated June 14, 2010, the OIP upheld the EOUSA’s initial denial of Ms.

Ebling’s Request No. 1, providing as follows:

               EOUSA determined that under the terms of a signed plea agreement
               . . . , William Price had waived all rights to make any request or
               receive any records pursuant to the Freedom of Information Act
               concerning his criminal case. This waiver applies to such FOIA
               requests that are submitted directly by Mr. Price as well as those
               submitted by a representative. * * * [F]or purposes of your request,
               the waiver of Mr. Price’s FOIA and Privacy Act rights contained in
               his plea agreement is presumed to be valid, and EOUSA properly
               refused to process your request.

Boseker Decl. Ex. F (Ltr. from the OIP to B. Ebling dated June 14, 2010), at 1.

       C.      Request No. 2: Ms. Ebling’s Request to the FBI for Records Relating to Mr.
               Price (Administrative Control No. 1141512)

       By letters dated November 23, 2009 and November 27, 2009, Ms. Ebling submitted three

identical requests to the FBI (collectively, “Request No. 2”): one to the FBI’s headquarters (the

“FBI-HQ”); a second to the FBI’s Kansas City Field Office (the “FBI-KCFO”); and a third to the

FBI’s St. Joseph Resident Agency (the “FBI-SJRA”). See Decl. of David M. Hardy (“Hardy

Decl.”), ECF No. [9-5], Ex. A (Ltr. from B. Ebling to the FBI-HQ dated Nov. 23, 2009), Ex. B

(Ltr. from B. Ebling to the FBI-KCFO dated Nov. 23, 2009), & Ex. C (Ltr. from B. Ebling to the

FBI-SJRA dated Nov. 27, 2009).5 Each letter requested “any and all records” regarding Mr.




       5
         The three letters are coterminous in scope; for purposes of economy, the Court will cite
exclusively to Ms. Ebling’s letter to the FBI-HQ.

                                                 8
Price, including, but not limited to, the following:6

               1.      printouts of the search screen displays of the Universal Name
                       Index (UNI) and General Indices, both main and reference,
                       encountered while performing the requested search, as well as
                       the records to which the indices point;

               2.      printouts of the search screen displays of the ELSUR indices,
                       both main and reference, encountered while performing the
                       requested search, as well as the records to which the indices
                       point;

               3.      copies of all search slips, FD-160 indices search slips, where
                       the search was conducted, the databases searched, when the
                       search was conducted, and the search terms used, as well as
                       all other records generated by performing the requested
                       search;

               4.      all documents in case file number 305C-KC-89543.

Hardy Decl. Ex. A (Ltr. from B. Ebling to the FBI-HQ dated Nov. 23, 2009), at 1. Ms. Ebling’s

Request No. 2 was accompanied by a Certification of Identity and Authorization to Release

Information to Another Person from Mr. Price authorizing the release of records pertaining to

him to Ms. Ebling. See id. at 2.

       The FBI acknowledged receipt of Ms. Ebling’s Request No. 2.7 See Hardy Decl. Ex. D

(Ltr. from the FBI to B. Ebling dated Jan. 4, 2010), at 1. The FBI consolidated Ms. Ebling’s

three letters as a single request. See id.; Hardy Decl. Ex. G (Ltr. from the OIP to B. Ebling dated


       6
           Although not material to the pending motion, the Court observes that Ms. Ebling’s
request to the FBI seeks “any and all records” concerning Mr. Price, and then sets forth an
illustrative list of records. See Hardy Decl. Ex. A (Ltr. from B. Ebling to the FBI-HQ dated Nov.
23, 2009), at 1. In contrast, Ms. Ebling’s comparable request to the EOUSA is less expansive,
framed as seeking five specific categories of records concerning Mr. Price. See Pl.’s Stmt. Ex. B
(Ltr. from B. Ebling to the EOUSA dated Dec. 31, 2009), at 1.
       7
          While the Court will refer to Ms. Ebling’s request as Request No. 2 for purposes of this
action, the administrative control number was 1141512.

                                                  9
May 3, 2010), at 1.

       By letter dated January 4, 2010, the FBI denied Ms. Ebling’s Request No. 2. See Hardy

Decl. Ex. D (Ltr. from the FBI to B. Ebling dated Jan. 4, 2010), at 1. Like the EOUSA, the FBI

concluded that Ms. Ebling had waived her rights under FOIA “pursuant to the terms of [the] Plea

Agreement . . . that Mr. Price . . . entered into with the United States of America.” Id.

       By letter dated January 26, 2010, Ms. Ebling appealed the FBI’s decision to the OIP. See

Hardy Decl. Ex. E (Ltr. from B. Ebling to the OIP dated Jan. 26, 2010), at 1. In so doing, Ms.

Ebling stated that she had “not waived any rights” and maintained that, regardless of the terms of

the agreement that Mr. Price signed, he could not “waive [the] rights granted [her].” Id.

       By letter dated May 3, 2010, the OIP upheld the FBI’s initial decision. See Hardy Decl.

Ex. G (Ltr. from the OIP to B. Ebling dated May 3, 2010), at 1. Explaining the basis for its

decision, the OIP stated:

               The FBI determined that under the terms of a signed plea agreement
               . . . , Mr. Price waived all rights to make any request or receive any
               records concerning his criminal case. Furthermore, the agreement
               covers not only requests made by Mr. Price himself, but anyone
               acting on his behalf. * * * [F]or purposes of your request, the waiver
               of Mr. Price’s Freedom of Information Act and Privacy Act rights
               contained in his plea agreement is presumed to be valid, and the FBI
               properly refused to process your request.

Id.

       D.      Request No. 3: Ms. Ebling’s Request to the FBI for Records Relating to Ms.
               Price (Administrative Control No. 1143733)

       By letters dated February 8, 2010, Ms. Ebling submitted three identical requests to the

FBI-HQ, the FBI-KFCO, and the FBI-SJRA seeking records relating to Tami Lynn Price




                                                 10
(collectively, “Request No. 3”).8 See Hardy Decl. Ex. H (Ltr. from B. Ebling to the FBI-HQ

dated Feb. 8, 2010), Ex. I (Ltr. from B. Ebling to the FBI-KFCO dated Feb. 8, 2010), & Ex. J

(Ltr. from B. Ebling to the FBI-SJRA dated Feb. 8, 2010).9 For reasons that will soon become

clear, the precise contours of Ms. Ebling’s Request No. 3 are not material to the pending motion.

For present purposes, suffice it to say that her request sought “any and all records” regarding Ms.

Price, and specifically enumerated eight categories of records requested. See Hardy Decl. Ex. H

(Ltr. from B. Ebling to the FBI-HQ dated Feb. 8, 2010), at 1-2. Each of Ms. Ebling’s letters was

accompanied by a Certification of Identity and Authorization to Release Information to Another

Person from Ms. Price authorizing the release of records pertaining to her to Ms. Ebling. See id.

at 3.

        The FBI acknowledged receipt of Ms. Ebling’s Request No. 3.10 See Hardy Decl. Ex. K

(Ltr. from the FBI to B. Ebling dated Feb. 28, 2010), at 1. All three letters were consolidated and

treated as a single request. See id.

        By letter dated February 28, 2010, the FBI denied Ms. Ebling’s Request No. 3 in its

entirety. See Hardy Decl. Ex. K (Ltr. from the FBI to B. Ebling dated Feb. 28, 2010), at 1. As

grounds for its decision, the FBI stated that the material requested “is located in an investigative



        8
          According to the DOJ, Ms. Price is Mr. Price’s former spouse, though the evidence
relied upon for this assertion is almost certainly inadmissible hearsay. See Hardy Decl. at 11 n.4
(“I have been informed by the [Special Agent] for this case that Tami Lynn Price is William
Steven Price’s ex-wife.”).
        9
         The three letters are coterminous in scope; for purposes of economy, the Court will cite
exclusively to Ms. Ebling’s letter to the FBI-HQ.
        10
           While the Court will refer to Ms. Ebling’s request as Request No. 3 for purposes of
this action, the administrative control number was 1143733.

                                                 11
file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A).” Id. Ms. Ebling was

advised of her right to appeal the FBI’s decision:

               You may file an appeal by writing the Director, Office of Information
               Policy (OIP), U.S. Department of Justice, 1425 New York Ave., NW,
               Suite 11050, Washington, D.C. 20530-0001. Your appeal must be
               received by OIP within sixty (60) days from the date of this letter in
               order to be considered timely. The envelope and the letter should be
               clearly marked “Freedom of Information [Act] Appeal.”

Id. As a result, Ms. Ebling had until April 29, 2010 to submit a timely appeal of the FBI’s denial

of Request No. 3. However, the OIP has twice reviewed its electronic tracking system of

administrative appeals, and has no record of ever receiving an appeal from Ms. Ebling

concerning Request No. 3. See Decl. of Priscilla T. Jones (“Jones Decl.”), ECF No. [9-6], ¶ 2;

Decl. of Nakeitha D. Gilbert (“Gilbert Decl.”), ECF No. [11-1], ¶ 2.

                            IV. PROCEDURAL BACKGROUND

       On June 2, 2010, Ms. Ebling, proceeding pro se, commenced this action under FOIA.

See Compl. for Injunctive Relief, ECF No. [1].11 On September 22, 2010, the DOJ filed its

Answer. See Answer, ECF No. [6].

       Subsequently, the Court set a briefing schedule for dispositive motions. See Order (Sept.

24, 2010), ECF No. [8]. In so doing, the Court advised Ms. Ebling of her obligations in

responding to the DOJ’s anticipated motion. Id. at 2 (citing Fox v. Strickland, 837 F.2d 507

(D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992)).



       11
           Ms. Ebling also cites in passing to the PA in her Complaint, but that statute “give[s]
parties access only to their own records.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1121
(D.C. Cir. 2007) (citing 5 U.S.C. § 552a(d)(1)). In this case, because each of Ms. Ebling’s
requests sought records pertaining to third parties, the PA has no applicability. Wisely, Ms.
Ebling has not relied upon the PA in opposition to the pending motion.

                                                12
       The parties complied with the schedule set by the Court. On November 4, 2010, the DOJ

filed its opening memorandum. See Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss,

or Alternatively, for Summ. J. (“Def.’s Mem.”), ECF No. [9-2]. On December 17, 2010, Ms.

Ebling filed a timely opposition. See Pl.’s Mem. of P. & A. in Supp. of Pl.’s Opp’n to Def.’s

Mot. to Dismiss, or Alternatively, for Summ. J. (“Pl.’s Opp’n”), ECF No. [10]. On January 7,

2011, the DOJ filed a timely reply. See Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss, or

Alternatively, for Summ. J. (“Def.’s Reply”), ECF No. [11]. The motion is now fully briefed and

ripe for adjudication.

                                   V. LEGAL STANDARD

       Congress enacted FOIA to introduce transparency into government activities. Stern v.

Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive,

however, to the need to achieve balance between this objective and the vulnerability of

“legitimate governmental and private interests [that] could be harmed by release of certain types

of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871,

872 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993). In reviewing motions for summary

judgment in this context, 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)

(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). Summary judgment is proper when the pleadings, the discovery materials


                                                13
on file, and any affidavits or declarations “show[] 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).

       The mere existence of some factual dispute is insufficient on its own to bar summary

judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes over facts

that might affect the outcome of the suit under the governing law will properly preclude the entry

of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nor may

summary judgment be avoided based on just any disagreement as to the relevant facts; the

dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a

reasonable trier of fact to find for the non-movant. Id. In this regard, the non-movant must “do

more than simply show that there is some metaphysical doubt as to the material facts,”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the

evidence is merely colorable, or is not sufficiently probative, summary judgment may be

granted,” Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

       While “[a]ll pleadings shall be so construed as to do substantial justice,” Fed. R. Civ. P.

8(f), pleadings filed by a party proceeding pro se must be “liberally construed,” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation marks omitted). For example, where a

pro se party has filed multiple submissions, the district court must generally consider those

filings together and as a whole. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir.

1999). However, even with the liberality afforded pro se pleadings, the district court “need not

accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in

the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669, 667 (D.C. Cir. 2008)

(quotation marks omitted).


                                                 14
                                       VI. DISCUSSION

       The Court’s discussion proceeds in two parts. The Court will first explain why the

EOUSA and the FBI improperly refused to process Ms. Ebling’s Requests Nos. 1 and 2 based on

the FOIA/PA waiver in Mr. Price’s plea agreement. See infra Part VI.A. Thereafter, the Court

will explain why Ms. Ebling’s claims relating to Request No. 3 are subject to dismissal because

Ms. Ebling has failed to exhaust her administrative remedies. See infra Part VI.B.

       A.      The EOUSA and the FBI Improperly Refused to Process Ms. Ebling’s Requests
               Nos. 1 and 2 Based on the FOIA/PA Waiver in Mr. Price’s Plea Agreement

       In this case, the DOJ’s defense of the EOUSA’s denial of Request No. 1 and the FBI’s

denial of Request No. 2 rises and falls on Mr. Price’s plea agreement. Distilled to its essence, the

DOJ’s argument is this: (i) Mr. Price entered into a valid and binding plea agreement; (ii) under

the terms of that agreement, Mr. Price waived his right to make a FOIA request pertaining to the

investigation or prosecution of his criminal case either on his own behalf or “by a

representative”; (iii) in requesting records pertaining to Mr. Price, Ms. Ebling is acting as Mr.

Price’s “representative”; (iv) therefore, Ms. Ebling’s FOIA requests are barred by the plea

agreement. See Def.’s Mem. at 9-11; Def.’s Reply at 4-6. For the reasons set forth below, the

Court finds the argument to be without merit.

               1.      Ms. Ebling Has a Statutory Right to Request Records Under FOIA,
                       Independent of Any Right that Mr. Price May Have Waived

       Congress deliberately conferred the right to make a FOIA request upon “any person,” 5

U.S.C. § 552(a)(3)(A), a term that is defined broadly to include any individual or organization

other than a federal agency, id. § 551(2). Consistent with this broad “any person” standard, “the

identity of the requesting party [generally] has no bearing on the merits of his or her FOIA


                                                 15
request.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 771

(1989).12 The reason is simple: the statute’s exclusive concern is with what must, and what must

not, be made public. North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989). For this reason,

whether disclosure is required turns on the nature of the records requested, and requestors are not

required to explain who they are or why they seek information. See Nat’l Archives & Records

Admin. v. Favish, 541 U.S. 157, 172 (2004).

       In this case, the DOJ alleges that Ms. Ebling is a relative of Mr. Price (specifically, his

paternal aunt) and contends that, in pursuing her FOIA requests, Ms. Ebling has been acting on

Mr. Price’s behalf. See Def.’s Mem. at 9-11; Def.’s Reply at 4-6. Even assuming that is the

case, it is, at least for purposes of FOIA, irrelevant. Under the statute, Ms. Ebling’s identity is

“of no significance,” Swan v. Secs. & Exch. Comm’n, 96 F.3d 498, 499 (D.C. Cir. 1996), and her

rights are no different than those that might be asserted by any other person. Ms. Ebling has a

statutory right to make a FOIA request, and that right exists independently of whatever right Mr.

Price may have once had to do the same.

               2.      Ms. Ebling is Not Bound by the Plea Agreement and it Does Not
                       Effectuate a Waiver of Her Independent Statutory Rights

       In light of the foregoing, the DOJ’s entire argument hinges on the premise that Mr.

Price’s plea agreement binds Ms. Ebling or somehow effectuated a waiver of Ms. Ebling’s rights

under FOIA. That premise is both unproven and untenable.

       True, as the DOJ suggests, “in the absence of an affirmative indication that Congress



       12
           The principal exception is where “the objection to disclosure is based on a claim of
privilege and the person requesting disclosure is the party protected by the privilege.” Reporters
Comm. for Freedom of Press, 489 U.S. at 771.

                                                  16
intended to preclude or to limit the waiver of statutory protections . . . voluntary agreements to

waive [those] protections are presumptively enforceable.” United States v. Burch, 156 F.3d

1315, 1321 (D.C. Cir. 1998) (citing United States v. Mezzanatto, 513 U.S. 196, 201-02 (1995)),

cert. denied, 526 U.S. 1011 (1999). Consistent with that proposition, several courts have held

that a FOIA/PA waiver in a criminal defendant’s plea agreement may be enforced against the

criminal defendant. See, e.g., Caston v. Exec. Office for U.S. Attorneys, 572 F. Supp. 2d 125,

129 (D.D.C. 2008); Boyce v. United States, Civil Action No. 1:08cv535, 2010 WL 2691609, at

*1 (W.D.N.C. July 6, 2010); Patterson v. Fed. Bureau of Investigation, Civil Action No.

3:08cv186, 2008 WL 2597656, at *2 (E.D. Va. June 27, 2008). Whatever the merits of that

particular outcome, that is not what the DOJ is attempting to do in this case. Here, the DOJ

seeks to invoke a FOIA/PA waiver in a criminal defendant’s plea agreement against a third party

who is alleged to be a relative of the criminal defendant. Without some indication that the third

party is bound by the terms of the plea agreement, this is patently impermissible.

       Plea agreements are essentially contracts like any other and are subject to general

principles of contract interpretation. See United States v. Jones, 58 F.3d 688, 691 (D.C. Cir.),

cert. denied, 516 U.S. 970 (1995). It is a fundamental and unobjectionable principle that a

contract cannot bind a non-party—i.e., someone who has not assented to be bound to its terms.

Equal Empl. Opportunity Comm’n v. Waffle House, Inc., 534 U.S. 279, 294 (2002). In this case,

no fact-finder could reasonably conclude that Ms. Ebling is bound by the terms of Mr. Price’s

plea agreement. By its plain language (and obvious context) there are only two parties to the plea

agreement—Mr. Price and the United States Attorney’s Office for the Western District of

Missouri. See Pl.’s Stmt. Ex. D (Plea Agmt.), ¶ 1. Ms. Ebling is not a party to Mr. Price’s plea


                                                 17
agreement, and the DOJ could not credibly contend otherwise.

        Entirely consistent with this understanding, the FOIA/PA waiver in Mr. Price’s plea

agreement provides only that “[t]he defendant waives all of his rights . . . to request or receive . . .

records pertaining to the investigation or prosecution of his case.” Pl.’s Stmt. Ex. D (Plea

Agmt.), ¶ 16 (emphasis added). It does not purport to waive the rights of any third parties,

including those of Ms. Ebling. Nor could it. “[W]aiver is the ‘intentional relinquishment or

abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting

Johnson v. Zerbst, 304 U.S. 458 (1938)). As such, waiver is within the control of the party who

holds the right. That is, one person’s waiver cannot, on its own, work a waiver of another

person’s independent legal right. Cf. United States v. Wilson, 26 F.3d 142, 151 (D.C. Cir. 1994),

cert denied, 514 U.S. 1051 (1995). In this case, the mere fact that Mr. Price elected to waive his

rights under FOIA cannot constitute a basis for concluding that Ms. Ebling did the same. There

is no evidence— none—that Ms. Ebling ever intended to relinquish or abandon her rights under

FOIA. The reason is simple: Ms. Ebling is not a party to the agreement. The plea agreement

presents no bar to Ms. Ebling’s FOIA requests.13

        The Court notes additionally that the question of whether Ms. Ebling is acting as Mr.

Price’s “representative” in pursuing her FOIA requests is, quite simply, irrelevant to this action.

Pursuant to his plea agreement, Mr. Price “waive[d] all of his rights, whether asserted directly or



       13
           Indeed, the DOJ’s insistence that Mr. Price’s plea agreement presents an absolute bar
to her attempts to secure records pertaining to Mr. Price’s criminal case is belied by the fact that
the EOUSA did, in fact, produce some records to Ms. Ebling—namely, the plea agreement. See
Pl.’s Ex. D (Ltr. from the EOUSA to B. Ebling dated Apr. 13, 2010). Given the DOJ’s stated
position that Ms. Ebling is not entitled to any records pertaining to Mr. Price’s criminal case, this
production, limited though it may be, is inexplicable.

                                                  18
by a representative, to request or receive . . . any records pertaining to the investigation or

prosecution of [his] case.” Pl.’s Stmt. Ex. D (Plea Agmt.), ¶ 16 (emphasis added). That

contractual promise runs to the government only from Mr. Price, and him alone. Because the

plea agreement does not bind Ms. Ebling, it cannot be enforced against her. But the DOJ is not

without a remedy. To the extent that it genuinely believes that Ms. Ebling is acting as Mr.

Price’s “representative,” it may seek to enforce the terms of the plea agreement against Mr. Price

in a court of competent jurisdiction. In this action, the Court cannot condone the DOJ’s attempts

to wield Mr. Price’s plea agreement as a sword to defeat Ms. Ebling’s FOIA requests.

       In any event, despite its insistence that “[i]t is clear that Plaintiff is acting as Mr. Price’s

representative,” Def.’s Mem. at 11, the DOJ has fallen woefully short of establishing that the

record is “so one-sided” that it is entitled to judgment as a matter of law on that question.

Liberty Lobby, 477 U.S. at 251-52. Ms. Ebling has steadfastly denied that she is “acting as the

agent or representative of any other person” and maintains that her requests are animated purely

by her “own personal interest.” Decl. of Bernice Ebling, ECF No. [10-1], ¶ 10. Balanced against

this, the DOJ avers that Ms. Ebling is Mr. Price’s paternal aunt and underscores that each of Ms.

Ebling’s requests were accompanied by a Certification of Identity and Authorization to Release

Information to Another Person executed by Mr. Price authorizing the release of records

pertaining to him to Ms. Ebling.14 See Def.’s Mem. at 11. Despite the DOJ’s apparent belief to


       14
             Both of these factual allegations are undisputed. While the DOJ supports the first
allegation only with what is almost certainly inadmissible hearsay, see Hardy Decl. ¶ 29 (“I have
been informed by the [Special Agent] who investigated Price’s child pornography allegations that
plaintiff, Bernice Ebling, is William Price’s paternal aunt.”), Ms. Ebling does not contest that she
is, in fact, Mr. Price’s paternal aunt, see Pl.’s Opp’n at 8. Accordingly, for purposes of resolving
the pending motion, the Court will assume this to be the case. See Fed. R. Civ. P. 56(e)(2). The
second allegation is established by clear documentary evidence, as each of Ms. Ebling’s requests

                                                  19
the contrary, this is far from definitive evidence that Ms. Ebling is “acting in collusion” with Mr.

Price. Def.’s Reply at 6. Mr. Price’s certifications are mere privacy waivers, the condition

precedent to an agency’s release of private information pertaining to him to any third party.

Absent such certifications, Ms. Ebling, like any other FOIA requestor, would surely have

encountered substantial difficulties obtaining any records responsive to her requests.

       In conclusion, the Court reiterates for emphasis that whether or not Ms. Ebling is acting

as Mr. Price’s “representative” is only relevant if the government wants to enforce the FOIA/PA

waiver in Mr. Price’s plea agreement against Mr. Price. It has no bearing upon Ms. Ebling’s

FOIA requests. Therefore, the Court shall deny the DOJ’s Motion for Summary Judgment

insofar as it seeks dismissal of these claims.

       In fact, in light of the Court’s conclusion that the DOJ’s proffered justification for the

EOUSA and the FBI’s refusal to process Ms. Ebling’s Requests Nos. 1 and 2 is without merit, it

appears that Ms. Ebling may be entitled to judgment as a matter of law in her favor. However,

because Ms. Ebling has not cross-moved for summary judgment, the Court cannot order the DOJ

to begin processing these requests in the posture that this case now stands. Therefore, the Court

will require the DOJ to show cause, on or before Friday, July 29, 2011, as to why the Court

should not grant partial summary judgment in Ms. Ebling’s favor based on its decision today and

direct the DOJ to immediately begin processing Requests Nos. 1 and 2. See Fed. R. Civ. P.

56(f)(1) (“After giving notice and a reasonable time to respond, the court may . . . grant summary

judgment for a nonmovant.”).



for records relating to Mr. Price were accompanied by a Certification of Identity and
Authorization to Release Information to Another Person from Mr. Price.

                                                 20
        B.      Ms. Ebling Has Not Exhausted Her Administrative Remedies With Respect to
                Request No. 3

        Exhaustion of administrative remedies is not a jurisdictional requirement under FOIA.

Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003). Nonetheless,

it is a jurisprudential consideration, id., and the failure to file a timely administrative appeal as

specified by an agency’s FOIA regulations will generally preclude a future suit, Wilbur v. Cent.

Intelligence Agency, 355 F.3d 675, 676 (D.C. Cir. 2004) (per curiam). In this case, Ms. Ebling

failed to exhaust her administrative remedies with respect to Request No. 3, through which she

sought records from the FBI pertaining to Ms. Price.

        On this point, the DOJ has introduced unrefuted evidence establishing that the OIP has no

record of ever receiving an appeal from Ms. Ebling in connection with this particular request, see

Jones Decl. ¶ 2; Gilbert Decl. ¶ 2, and in this context the evidence proffered by the DOJ is

entitled to a “presumption of good faith.” SafeCard Servs., Inc. v. Secs. & Exch. Comm’n, 926

F.2d 1197, 1200 (D.C. Cir. 1991). True, Ms. Ebling purports to dispute the DOJ’s contention,

but her response is insufficient to create a genuine dispute. Specifically, Ms. Ebling alleges that

she faxed a letter to the OIP appealing the FBI’s initial denial of Request No. 3. See Pl.’s Stmt.

Ex. P (Ltr. from B. Ebling to the OIP dated Mar. 15, 2010). However, the only support for her

allegation that she actually sent the letter is a putative fax confirmation page, but that document

is dated March 23, 2010—more than a week after the ostensible date of the letter. See Pl.’s Stmt.

Ex. P (Fax Confirmation Page dated Mar. 23, 2010). See id. More to the point, the fax

confirmation page nowhere evidences what was actually sent to the listed fax number. See id. In

other words, there is nothing to link the letter and the fax confirmation page. Therefore, even

crediting Ms. Ebling’s allegation that, whatever she sent on March 23, 2010, she sent it to the

                                                  21
same fax number as her prior submissions to the OIP, there still is no basis for a reasonable fact-

finder to conclude that what she sent was, in fact, a letter appealing her Request No. 3. Because

the DOJ has introduced unrefuted evidence that it has no record of ever receiving an appeal from

Ms. Ebling with respect to this request, the absence of affirmative evidence that would allow a

reasonable fact-finder to find that what Ms. Ebling sent on March 23, 2010 was in fact a letter

appealing her Request No. 3 is fatal to her position. See Liberty Lobby, 477 U.S. at 257. In

short, her response is insufficient to create a genuine dispute.

       However, there is a separate, and equally compelling, reason to find that Ms. Ebling has

failed to exhaust her administrative remedies in connection with Request No. 3. Even crediting

all of Ms. Ebling’s allegations, they would, at best, suggest that she faxed an appeal letter to the

OIP. However, the applicable DOJ regulations contemplate that appeal letters should be

physically mailed to the OIP’s offices in Washington, D.C. See 28 C.F.R. § 16.9(a). In this

regard, the regulations advise that individuals seeking to appeal an adverse determination should

“mark [their] appeal letter and the envelope ‘Freedom of Information Act Appeal.’” Id. In this

case, the FBI expressly informed Ms. Ebling of these requirements when it denied Request No. 3:

               You may file an appeal by writing the Director, Office of Information
               Policy (OIP), U.S. Department of Justice, 1425 New York Ave., NW,
               Suite 11050, Washington, D.C. 20530-0001. Your appeal must be
               received by OIP within sixty (60) days from the date of this letter in
               order to be considered timely. The envelope and the letter should be
               clearly marked “Freedom of Information [Act] Appeal.”

Hardy Decl. Ex. K (Ltr. from the FBI to B. Ebling dated Feb. 28, 2010), at 1. These

requirements are not purely technical. Rather, they are designed to create a uniform and

streamlined process to ensure that appeals are received and processed, and the DOJ is entitled to

insist that requestors adhere to their strictures. Where, as here, a “request is not made in

                                                 22
accordance with [the agency’s] published regulations, the FOIA claim is subject to dismissal for

failure to exhaust administrative remedies.” Calhoun v. Dep’t of Justice, 693 F. Supp. 2d 89, 91

(D.D.C. 2010), aff’d, No. 10-5125, 2010 WL 4340370 (D.C. Cir. Oct. 19, 2010); see also

Pickering-George v. Registration Unit, DEA/DOJ, 553 F. Supp. 2d 3, 5 (D.D.C. 2008); Thorn v.

United States, Civil Action No. 04-1185 (RJL), 2005 WL 3276285, at *3 (D.D.C. Aug. 11,

2005). Therefore, the Court will grant summary judgment in the DOJ’s favor insofar as it seeks

dismissal of Ms. Ebling’s claims relating to Request No. 3.

                                     VII. CONCLUSION

       For the reasons set forth above, the Court will grant-in-part and deny-in-part the DOJ’s

[9] Motion for Summary Judgment. Specifically, the Court will grant the motion insofar as it

seeks dismissal Ms. Ebling’s claims relating to Request No. 3; however, the Court will deny the

motion insofar as it seeks dismissal of Ms. Ebling’s claims relating to Requests Nos. 1 and 2.

Moreover, the Court will direct the DOJ to show cause, on or before Friday, July 29, 2011, as to

why the Court should not grant summary judgment in Ms. Ebling’s favor with respect to her

claims based on Requests Nos. 1 and 2 and direct the DOJ to immediately begin processing those

requests. An appropriate Order accompanies this Memorandum Opinion.



Date: July 11, 2011

                                                             /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




                                               23
