UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) ADAM DAVIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0098 (EGS) ) Document No. 26 FEDERAL BUREAU ) OF INVESTIGATION et al., ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION
In this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
plaintiff sues several federal agencies and agency components for allegedly failing to respond to
his requests for records pertaining to himself. He names as defendants the Federal Bureau of
Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), the
Departments of Treasury, Justice (“DOJ”) and Homeland Security, the Internal Revenue Service
(“IRS”), the Financial Crimes Enforcement Network (“FinCen”), the Secret Service, and the
Securities and Exchange Commission (“SEC”). Pending before the Court is the motion of
Treasury, FinCen, Homeland Security, the SEC and the Secret Service to dismiss or for summary
judgment on the ground that plaintiff failed to exhaust his administrative remedies [Dkt. # 26].
Plaintiff has not opposed this motion. Upon consideration of the parties’ submissions and the
relevant parts of the record, and for the reasons explained below, the Court will grant the moving
defendants’ motion for summary judgment. 2
I. BACKGROUND
Plaintiff alleges that he requested from each defendant all records pertaining to himself,
“including, but not limited to, Criminal, Civil, Corporate, Individual, and Bond Information
and/or Commercial Crimes Bonding Information and/or Case Bonding Information and/or
Commercial Crimes Bonding Certification . . . .” Compl. Attach. The moving defendants’
responses are as follows.
Treasury’s Response
Treasury’s Office of Disclosure Services received plaintiff’s request dated October 5,
2009, on October 13, 2009. Declaration of Hugh Gilmore (“Gilmore Decl.”) [Dkt. # 26- 8] ¶ 3,
Ex. A. By letter of October 20, 2009, Disclosure Services informed plaintiff that it could not
process his request for several reasons. It informed plaintiff, among other things, that he had to
provide verification of his identity, that Treasury had no centralized file or central index and,
therefore, he “should submit [his] request to the [enclosed list of] Treasury bureaus that [he]
believe[d] would maintain responsive records[,]” and that he had to agree to pay any assessed
fees prior to the processing of his request. Id., Ex. B.
By letter of November 3, 2009, plaintiff agreed to pay $25 in search fees and provided a
photo identification card, but provided no further clarification of his request. Id., Ex. C. By
letter of November 5, 2009, Disclosure Services again advised plaintiff that it maintained no
central index, that he would need to target specific bureaus and that it maintained no
“information, or documentation of the nature you have requested . . . .” Id., Ex. D. It referred
plaintiff to websites that may contain information about “Treasury Contract Trust Accounts and
Bills of Exchange” and “Treasury’s list of companies approved to serve as sureties on federal 3
bonds,” and advised plaintiff that it would not respond “to further correspondence of this nature”
and was returning his request pursuant to 31 C.F.R. Part 1, Subpart A. Id. Treasury has no
record of having received subsequent correspondence from plaintiff. Id. ¶ 6.
FinCen’s Response
FinCen received plaintiff’s request dated October 5, 2009, on October 9, 2009.
Declaration of Amanda Michanczyk [Dkt. # 26-3] ¶ 6, Ex. A. Following a search, FinCen
informed plaintiff by letter of October 15, 2009 that it had located no responsive records and
advised him of his right to appeal administratively within 35 days of the determination. Id. ¶ 8 &
Ex. C. [Dkt. # 40-1]. FinCen has no record of an appeal from plaintiff. Michanczyk Decl. ¶ 8.
Homeland Security’s Response
Homeland Security received plaintiff’s request dated September 28, 2009, on October 7,
2009. Declaration of Vania T. Lockett [Dkt. # 26-1] ¶ 9 & Ex. A. By letter of October 15, 2009,
Homeland Security informed plaintiff that it could not search for responsive records because the
request was not sufficiently specific. Id., Ex. B. It advised plaintiff to perfect his request within
30 days or it would assume he was no longer interested in the request and close his file. Id.
Homeland Security has no record of having received a response from plaintiff. Id. ¶ 14.
SEC’s Response
Plaintiff alleges that he submitted a FOIA request to the SEC. Compl. at 8-9. The SEC
has no record of having received plaintiff’s request. See Declaration of Margaret Celia Winter
[Dkt. # 26-6] ¶¶ 4-6.
Secret Service’s Response
The Secret Service received plaintiff’s requested dated September 28, 2009, on October 4
9, 2009. Declaration of Craig W. Ulmer [Dkt. # 26-7] ¶ 5 & Ex. A. Following a search, the
Secret Service informed plaintiff by letter of October 21, 2009, that it had located no responsive
records, invited him to provide additional information to refine his request and advised him of
his right to appeal administratively within 35 days of the determination. Id., Ex. C. The Secret
Service has no record of having received a response or an appeal from plaintiff. Id. ¶ 18.
Plaintiff filed this civil action on January 20, 2010.
II. DISCUSSION
Summary judgment is warranted “if the movant shows [by affidavit or other admissible
evidence] 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 party opposing a summary judgment
motion must show that a genuine factual issue exists by “(A) citing to particular parts of
materials in the record. . . or (B) showing that the materials cited do not establish the absence . . .
of a genuine dispute[.]” Fed. R. Civ. P. 56(c). Any factual assertions in the moving party’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, 456 (D.C.
Cir. 1992). In a FOIA action, the Court may award summary judgment solely on the information
provided in agency 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); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied,
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) ADAM DAVIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0098 (EGS) ) Document No. 26 FEDERAL BUREAU ) OF INVESTIGATION et al., ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION
In this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
plaintiff sues several federal agencies and agency components for allegedly failing to respond to
his requests for records pertaining to himself. He names as defendants the Federal Bureau of
Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), the
Departments of Treasury, Justice (“DOJ”) and Homeland Security, the Internal Revenue Service
(“IRS”), the Financial Crimes Enforcement Network (“FinCen”), the Secret Service, and the
Securities and Exchange Commission (“SEC”). Pending before the Court is the motion of
Treasury, FinCen, Homeland Security, the SEC and the Secret Service to dismiss or for summary
judgment on the ground that plaintiff failed to exhaust his administrative remedies [Dkt. # 26].
Plaintiff has not opposed this motion. Upon consideration of the parties’ submissions and the
relevant parts of the record, and for the reasons explained below, the Court will grant the moving
defendants’ motion for summary judgment. 2
I. BACKGROUND
Plaintiff alleges that he requested from each defendant all records pertaining to himself,
“including, but not limited to, Criminal, Civil, Corporate, Individual, and Bond Information
and/or Commercial Crimes Bonding Information and/or Case Bonding Information and/or
Commercial Crimes Bonding Certification . . . .” Compl. Attach. The moving defendants’
responses are as follows.
Treasury’s Response
Treasury’s Office of Disclosure Services received plaintiff’s request dated October 5,
2009, on October 13, 2009. Declaration of Hugh Gilmore (“Gilmore Decl.”) [Dkt. # 26- 8] ¶ 3,
Ex. A. By letter of October 20, 2009, Disclosure Services informed plaintiff that it could not
process his request for several reasons. It informed plaintiff, among other things, that he had to
provide verification of his identity, that Treasury had no centralized file or central index and,
therefore, he “should submit [his] request to the [enclosed list of] Treasury bureaus that [he]
believe[d] would maintain responsive records[,]” and that he had to agree to pay any assessed
fees prior to the processing of his request. Id., Ex. B.
By letter of November 3, 2009, plaintiff agreed to pay $25 in search fees and provided a
photo identification card, but provided no further clarification of his request. Id., Ex. C. By
letter of November 5, 2009, Disclosure Services again advised plaintiff that it maintained no
central index, that he would need to target specific bureaus and that it maintained no
“information, or documentation of the nature you have requested . . . .” Id., Ex. D. It referred
plaintiff to websites that may contain information about “Treasury Contract Trust Accounts and
Bills of Exchange” and “Treasury’s list of companies approved to serve as sureties on federal 3
bonds,” and advised plaintiff that it would not respond “to further correspondence of this nature”
and was returning his request pursuant to 31 C.F.R. Part 1, Subpart A. Id. Treasury has no
record of having received subsequent correspondence from plaintiff. Id. ¶ 6.
FinCen’s Response
FinCen received plaintiff’s request dated October 5, 2009, on October 9, 2009.
Declaration of Amanda Michanczyk [Dkt. # 26-3] ¶ 6, Ex. A. Following a search, FinCen
informed plaintiff by letter of October 15, 2009 that it had located no responsive records and
advised him of his right to appeal administratively within 35 days of the determination. Id. ¶ 8 &
Ex. C. [Dkt. # 40-1]. FinCen has no record of an appeal from plaintiff. Michanczyk Decl. ¶ 8.
Homeland Security’s Response
Homeland Security received plaintiff’s request dated September 28, 2009, on October 7,
2009. Declaration of Vania T. Lockett [Dkt. # 26-1] ¶ 9 & Ex. A. By letter of October 15, 2009,
Homeland Security informed plaintiff that it could not search for responsive records because the
request was not sufficiently specific. Id., Ex. B. It advised plaintiff to perfect his request within
30 days or it would assume he was no longer interested in the request and close his file. Id.
Homeland Security has no record of having received a response from plaintiff. Id. ¶ 14.
SEC’s Response
Plaintiff alleges that he submitted a FOIA request to the SEC. Compl. at 8-9. The SEC
has no record of having received plaintiff’s request. See Declaration of Margaret Celia Winter
[Dkt. # 26-6] ¶¶ 4-6.
Secret Service’s Response
The Secret Service received plaintiff’s requested dated September 28, 2009, on October 4
9, 2009. Declaration of Craig W. Ulmer [Dkt. # 26-7] ¶ 5 & Ex. A. Following a search, the
Secret Service informed plaintiff by letter of October 21, 2009, that it had located no responsive
records, invited him to provide additional information to refine his request and advised him of
his right to appeal administratively within 35 days of the determination. Id., Ex. C. The Secret
Service has no record of having received a response or an appeal from plaintiff. Id. ¶ 18.
Plaintiff filed this civil action on January 20, 2010.
II. DISCUSSION
Summary judgment is warranted “if the movant shows [by affidavit or other admissible
evidence] 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 party opposing a summary judgment
motion must show that a genuine factual issue exists by “(A) citing to particular parts of
materials in the record. . . or (B) showing that the materials cited do not establish the absence . . .
of a genuine dispute[.]” Fed. R. Civ. P. 56(c). Any factual assertions in the moving party’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, 456 (D.C.
Cir. 1992). In a FOIA action, the Court may award summary judgment solely on the information
provided in agency 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); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974). 5
An agency’s disclosure obligations under the FOIA 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). Plaintiff has not refuted Treasury’s and Homeland Security’s evidence
establishing that his requests to those agencies failed to comply with the foregoing requirements.
In addition, plaintiff has not presented any evidence to refute the SEC’s declaration stating that it
never received a FOIA request from him.
As for the claims against the remaining defendants, FinCen and the Secret Service, the
District of Columbia Circuit has interpreted the exhaustion provisions of the FOIA as "requiring
the completion of the administrative appeal process before courts become involved, if the agency
has responded to the request before suit is filed." Oglesby v. Dep't of the Army, 920 F.2d 57, 65
(D.C. Cir. 1990). While exhaustion is not jurisdictional, "as a jurisprudential doctrine, failure to
exhaust precludes judicial review" if a merits determination would undermine the purpose of
permitting an agency to review its determinations in the first instance. Hidalgo v. FBI, 344 F.3d
1256, 1258-59 (D.C. Cir. 2003). FinCen and the Secret Service each provided timely responses
to plaintiff before his commencement of this civil action. He therefore will be required to
exhaust his administrative remedies prior to obtaining judicial review of those entities’
responses. See id. (discussing factors weighing in favor of exhaustion).
For the foregoing reasons, the defendants’ motion for summary judgment is granted. A
separate Order accompanies this Memorandum.
DATE: March 7, 2011 SIGNED: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE