Bragg v. Federal Bureau of Investigation

• Court: District Court, District of Columbia
• Decided: September 21, 2021
• Docket: Civil Action No. 2020-0214
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________ ) SAMANTHA ELIZABETH BRAGG, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-214 (EGS) ) FEDERAL BUREAU ) OF INVESTIGATION, ) ) Defendant. ) ________________________________ )

MEMORANDUM OPINION

Plaintiff filed this action pro se under the Freedom of Information Act (FOIA) to obtain

records from the Federal Bureau of Investigation (FBI) pertaining to herself (first-party request)

and a third-party individual (third-party request). 1 On September 20, 2020, during the course of

this litigation, Defendant released first-party records to Plaintiff and on February 19, 2021,

moved for summary judgment, ECF No. 19. In the motion, which Plaintiff has not opposed,

Defendant also seeks dismissal of the claim for third-party records based on Plaintiff’s failure to

exhaust her administrative remedies by appealing its denial of such records to the Office of

Information Policy (OIP). For the following reasons, the Court will (1) grant the motion for

summary judgment as to the released records and (2) dismiss the unexhausted claim without

prejudice.

1 “For administrative tracking purposes, FBI separated Plaintiff’s request into two (2) different requests in its FOIA Document Processing System (“FDPS”), assigning a separate FOIPA Request Number, and issued separate responses to address: 1) Plaintiff’s request for records on herself and 2) Plaintiff’s request for [the third-party] records.” Def.’s Stmt. of Material Facts Not in Gen. Dispute ¶ 2, ECF No. 19-2.

1 On February 22, 2021, the Court advised Plaintiff about her obligation to respond to

Defendant’s dispositive motion by March 26, 2021, and the potential adverse consequences if

she failed to comply. Order, ECF No. 20. Plaintiff has neither complied with the order nor

requested additional time to do so. Therefore, with respect to the claim for third-party records,

the Court finds that Plaintiff has conceded the exhaustion defense, which is “a substantive

ground for rejecting a FOIA claim in litigation.” Bayala v. United States Dep't of Homeland

Sec., Office of Gen. Counsel, 827 F.3d 31, 35 (D.C. Cir. 2016); see Decl. of Michael G. Seidel

¶ 7, ECF No. 19-3 (attesting that “the FBI has no record of Plaintiff [having] submitted an appeal

to OIP”). Accordingly, the claim seeking third-party records will be dismissed without

prejudice. See Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003) (vacating summary

judgment and remanding case “with instructions to the district court to dismiss the [unexhausted

FOIA] complaint” under Rule 12(b)(6) for failure to state a claim upon which relief can be

granted).

With respect to the claim seeking first-party records, the Court is satisfied from its

independent examination of the evidentiary record that Defendant has fully complied with FOIA

by disclosing all reasonably segregable responsive records. The declarant has described in

sufficient detail a reasonably calculated search, which located 230 responsive pages. See Seidel

Decl. ¶¶ 19-23. It is undisputed that the pages were released to Plaintiff, and the declarant has

adequately justified the redaction of third-party identifying information from just three of those

pages, pursuant to FOIA Exemptions 6 and (7)(C), codified in 5 U.S.C. § 552(b). See Seidel

Decl.. ¶¶ 39-47; cf. Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (“As a result of

Exemption 7(C), FOIA ordinarily does not require disclosure of law enforcement documents (or

portions thereof) that contain private information.”). In the absence of any contravening

2 evidence, therefore, the Court concludes as to the first-party records that Defendant is entitled to

judgment as a matter of law. A separate order accompanies this Memorandum Opinion.

SIGNED: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

Date: September 21, 2021