Opinion
Civil Action No. 04-1812 (RBW).
April 11, 2005
MEMORANDUM OPINION
Plaintiff, a federal inmate proceeding pro se, brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against the Bureau of Prisons ("BOP"). Defendant has now filed a motion for summary judgment. For the reasons stated below, the Court will grant in part and deny in part defendant's motion.
Plaintiff filed an identical complaint, six days after this action, in Civil Action No. 04-1855. Defendant has filed a motion to dismiss in that case. The Court will issue a separate order granting that motion.
Background
Plaintiff has been incarcerated at the Federal Correctional Institution in Ray Brook, New York ("FCI Ray Brook") since January, 2002. Complaint ("Compl.") ¶ 6. On August 19, 2003, plaintiff sent the BOP a FOIA request that sought tape recordings of telephone calls he made to (401) 944-4419 on July 5, 2003 and July 6, 2003. Compl., Exhibit ("Ex.") 1. By a letter dated September 15, 2003, the BOP informed plaintiff that the conversations had been preserved, but that plaintiff was required to submit a waiver under the Privacy Act from the other party to the telephone conversations before the BOP would process his request. Defendant's Motion for Summary Judgment ("Def.'s Mot."), Declaration of James A. Vogel, Jr. ("Vogel Decl."), Ex. 3. On September 19, 2003, plaintiff sent a letter to the BOP appealing the "no response/delay" to his FOIA request. Id., Ex. 4. In a letter dated October 24, 2003, the BOP again informed plaintiff that his request would not be processed without a Privacy Act waiver. Id., Ex. 5.
On October 6, 2003, plaintiff filed another FOIA request with the BOP. Id., Ex. 6. In this submission, plaintiff requested copies of the telephone calls he made to the numbers 401-438-6157 on May 8, 2003 and June 17, 2003, and an October 4, 2003 conversation made to number 401-946-6013. Id. On November 5, 2003, plaintiff appealed the BOP's failure to respond to his request. Id., Ex. 7. Plaintiff was then again advised by the BOP on November 24, 2003, that his request would not be processed until the agency received a Privacy Act waiver from the other party to the telephone conversation. Id., Ex. 8.
On April 11, 2004, plaintiff sent another letter to the BOP regarding the July 5, 2003 and July 6, 2003 telephone conversations. Id., Ex. 10. Plaintiff stated that he could not produce the required Privacy Act waivers because he could not locate the other individuals who were parties in the telephone conversations. Id. Plaintiff proposed that the BOP provide him with transcripts of the conversations with any information identifying the other party deleted. Id. In response, on April 28, 2004, the BOP informed plaintiff that the agency did not have the capability to transcribe telephone calls, but could produce the words he spoke during the conversations. Id., Ex. 11.
On May 25, 2004, plaintiff requested that the BOP provide him with his portions of the July 5, 2003, July 6, 2003, and October 4, 2003 telephone conversations. Id., Ex. 12. According to the BOP's FOIA Office, that request is still being processed. Def.'s Mot., Declaration of Ron Hill ("Hill Decl.") ¶ 3. The BOP further stated that plaintiff will be advised on the estimated fee for redacting and duplicating the three conversations and upon payment of the fee BOP personnel will provide plaintiff with the information. Id. ¶ 4.
On June 7, 2004, plaintiff sent a letter to the BOP regarding the May 8, 2003 and June 17, 2003 telephone conversations. Def.'s Mot., Vogel Decl., Ex. 13. Plaintiff stated that he had been informed that a Privacy Act waiver had been sent to the BOP by the other party to those two telephone conversations. Id. Plaintiff also requested that the BOP provide him with the status of the processing of his FOIA request for these two conversations. On July 2, 2004, the BOP informed plaintiff that the period for retaining the requested information had expired and that the conversations were no longer available. Id., Ex. 14. According to the BOP, it only maintains taped telephone conversations for approximately 180 days. Id., Vogel Decl. ¶ 13.
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 ©). 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 Washington Post Co. v. United States Dep't of Health and 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. 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). Moreover, "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, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).
The mere existence of a factual dispute by itself, however, is not enough to bar summary judgment. The party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. 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 id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C. 1980). In a FOIA case, the court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations. 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), cert. denied, 415 U.S. 977 (1974). However, agency affidavits or declarations must be "relatively detailed and non-conclusory . . ." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
Discussion
This case involves two separate FOIA requests. First, plaintiff requested taped telephone conversations made on July 5, 2003, July 6, 2003, and October 4, 2003. In his other request, plaintiff sought tapes of telephone conversations made by him on May 8, 2003 and June 17, 2003.
Plaintiff contends that the BOP violated its statutory duty under the FOIA by failing to preserve the tapes of these two telephone conversations after receiving his FOIA request. Compl. ¶ 14. Plaintiff seeks an order compelling the BOP to conduct a "reasonable and comprehensive search" for the information he requested. Id. at 4. Plaintiff also seeks an affidavit affirming that the two telephone conversations have not been preserved, and for the BOP to provide the information sought in both of his FOIA requests. Id. at 5.
Adequacy of the Search
To obtain summary judgment when the adequacy of a FOIA search for records is at issue, an agency must show "viewing the facts in the light most favorable to the requester, that . . . [it] `has conducted a search reasonably calculated to uncover all relevant documents.'" Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. However, the agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68.
It is apparent from the declarations submitted by defendant that the BOP made a "good faith effort to conduct a search for the requested records, using methods which reasonably can be expected to produce the information requested." Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Oglesby, 920 F.2d at 68). Plaintiff sought tapes of telephone conversations made by him while he was incarcerated at FCI Ray Brook. The BOP searched the telephone records at that institution. See Vogel Decl. ¶ 13. It was reasonable for the BOP to believe that a search of that system of records would yield the information requested. And plaintiff has not identified other files that defendant should have searched. "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducts a reasonable search for them." SafeCard Services, Inc., 926 F.2d at 1201. Here, the search for plaintiff's requested records was adequate to fulfill the BOP's obligations under the FOIA.
Exhaustion of Administrative Remedies
Defendant contends that plaintiff has failed to exhaust his administrative remedies regarding the July 5, 2003, July 6, 2003, and October 4, 2003 telephone conversations. A party must exhaust the available administrative remedies under the FOIA prior to seeking relief in federal court. Oglesby v. United States Dep't of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990); Nurse v. Sec'y of Air Force, 231 F.Supp.2d 323, 327 (D.D.C. 2002). The FOIA's exhaustion requirement, however, is not jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). Failure to exhaust only precludes judicial review if "the purposes of exhaustion" and the "particular administrative scheme" support such a bar. Id. at 1258-59 (quoting Oglesby, 920 F.2d at 61). The FOIA's administrative scheme favors treating failure to exhaust as a bar to judicial review. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004); Hidalgo, 344 F.3d at 1259.
Defendant claims plaintiff has not complied with the exhaustion requirement because he has not provided payment for processing his records or requested a fee waiver from the agency. Generally, requesters must pay reasonable charges associated with processing their FOIA requests. Judicial Watch, Inc. v. Rossotti, 326 F.2d 1309, 1310 (D.C. Cir. 2003); see also 5 U.S.C. § 552(a). Agencies, however, are required to waive fees if a requester demonstrates that "disclosure of the information is in the public interest." 5 U.S.C. § 552(a)(4)(A)(iii).
Failure to pay the requested fees or to appeal the denial from a refusal to waive fees constitutes a failure to exhaust administrative remedies. Oglesby, 920 F.2d at 66; Judicial Watch, Inc., 190 F.Supp.2d at 33. Moreover, judicial review of an agency's denial of a fee waiver request cannot be sought until a plaintiff appeals that decision or pays the assessed fee. Judicial Watch, Inc., 326 F.3d at 1310; Trulock v. U.S. Dep't of Justice, 257 F.Supp.2d 48, 52 (D.D.C. 2003).
Here, defendant's position is disingenuous. In his correspondence with the BOP, plaintiff repeatedly requested information about the duplication fees. See Def.'s Mot., Vogel Decl., Ex. 1, 2, 6. The FOIA regulations provide that the agency " shall notify the requester of the actual or estimated amount of the fees . . ." 28 C.F.R. § 16.11(e) (emphasis supplied); see also Trulock v. U.S. Dep't of Justice, 257 F.Supp.2d 48, 52 (D.D.C. 2003). However, defendant has produced no evidence that plaintiff has ever been informed of the duplication costs. In fact, the agency states that plaintiff "will" be advised of the estimated cost and once he agrees to pay the fee, the request will be processed and the tapes sent to him. See Def.'s Mot., Hill Decl. ¶ 4.
Since the agency failed to notify plaintiff of the required fees, it cannot now claim plaintiff has failed to pay the fee or sought a waiver of the required fee. Summary judgment, therefore, will be denied based on plaintiff's failure to exhaust his administrative remedies regarding the records responsive to July 5, 2003, July 6, 2003, and October 4, 2003 telephone conversations.
Destroyed Records
To prevail in a FOIA case, a plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). A suit is only authorized under the FOIA against federal agencies and injunctive relief is only available to remedy an agency's improper withholding of information. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B) (f)(1). For an agency to have improperly withheld records, it must have possession or control over the record. National Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 546 (D.C. Cir. 1990).
Plaintiff requested the tape recordings of telephone conversations he participated in on May 8, 2003 and June 17, 2003. The BOP informed plaintiff that he would have to provide a Privacy Act waiver from the other party to the conversation to obtain the recordings. By the time the BOP received the waiver from that party, the tapes of the conversations had been destroyed pursuant to the BOP's 180 day retention policy.
The FOIA does not require an agency to create and retain records, but rather to provide access to records that have been retained. Kissinger, 445 U.S. at 151-52. The fact that the agency once possessed documents that have been destroyed does not preclude the entry of summary judgment for the agency. See Piper v. U.S. Dep't of Justice, 294 F.Supp.2d 16, 22 (D.D.C. 2003). Since the FOIA does not contain a document retention requirement, id., and the BOP no longer possesses the records requested by plaintiff, summary judgment will be granted as to records related to the May 8, 2003 and June 17, 2003 telephone conversations.
Conclusion
Based on the foregoing, the Court will grant in part and deny in part defendant's motion for summary judgment. Specifically, the Court will deny defendant's summary judgment on the issue of plaintiff's failure to exhaust his administrative remedies in connection to the records of the July 5, 2003, July 6, 2003 and October 4, 2003 telephone conversations. On the other hand, the Court finds the agency's search was adequate and will grant summary judgment regarding the May 8, 2003 and June 17, 2003 telephone conversations. An appropriate order accompanies this Memorandum Opinion.