Chase v. United States of America

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UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 DENNIS CHASE,

          Plaintiff,
                 v.                                        Civil Action No. 17-274 (JEB)
 UNITED STATES DEPARTMENT OF
 JUSTICE, et al.,

          Defendants.


                                 MEMORANDUM OPINION

       Pro se Plaintiff Dennis Chase, a federal prisoner, seeks to obtain documents relating to

his 2011 arrest, booking, and detention in Minnesota. To that end, he submitted several Freedom

of Information Act requests to Defendants Department of Justice, Executive Office for U.S.

Attorneys, U.S. Marshals Service, and Federal Bureau of Investigation in late 2015 and early

2016. When these requests were left unanswered for over a year, he filed this civil action to

compel Defendants to respond. Defendants thereafter released several hundred pages of

information; claiming that they have fully satisfied their FOIA obligations, they now move for

summary judgment. Believing the opposite, Chase has cross-moved for summary judgment.

Finding Defendants have adequately complied with FOIA’s dictates, the Court will grant their

Motion.

I.     Background

       Beginning in November 2015, Plaintiff sent FOIA requests to USMS and EOUSA

seeking, inter alia, all records concerning his detention, arrest, booking, and criminal prosecution

for the transportation and possession of child pornography in 2011. See ECF No. 1 (Complaint),


                                                 1
Exhs. A (USMS FOIA Request); E (EOUSA FOIA Request). Both agencies proceeded to

request verification of identity – although EOUSA did so 44 days beyond the 20 business days

required by FOIA – which Chase then provided. See Compl., Exhs. A; B (US Marshal

Verification Request); C (Certification of Identity); D (Letter to USMS); E; F (EOUSA

Verification Request); G (Certification of Identity). Several months of follow-up calls by Chase

and delayed or limited responses by EOUSA and USMS ensued. See Compl. at 4-6. Having

grown frustrated with this non-responsiveness, Plaintiff filed this Complaint on February 23,

2017. Spurred to action, those agencies then conducted a search for relevant documents and

have now released 458 pages to Plaintiff, 15 of which are partially redacted. See ECF Nos. 28-2

(Declaration of Princina Stone), ¶ 13; 28-9 (Declaration of William E. Bordley), ¶ 7. EOUSA

additionally referred approximately 1,216 pages of records to the FBI for its review and direct

response to Plaintiff. See ECF No. 28-11 (Declaration of David M. Hardy), ¶ 5.

       The Bureau then sent Plaintiff a letter notifying him that it had received the records from

EOUSA and informing him of the estimated total cost for processing his request. See Hardy

Decl., Exh. A. Chase responded with a request for a waiver of those fees pursuant to
28 C.F.R.

§§ 16.10
(K), which requires agencies to waive fees when disclosure of the requested information

is in the public interest.
Id.,
Exh. B. The FBI denied his request.
Id.,
Exh. C. Plaintiff then

appealed to DOJ’s Office of Information Policy,
id.,
Exh. E, but that appeal was denied.
Id.,
Exh. F. In response, Chase successfully sought leave to add the FBI as a party to this suit. See

Minute Order of October 10, 2017. Given this state of affairs, both parties have now filed for

summary judgment.




                                                 2
II.    Legal Standard

       Summary judgment may be granted if “the movant shows 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 fact is “material” if it is capable of affecting the substantive outcome of the litigation.

See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986). A dispute is “genuine” if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott

v. Harris,
550 U.S. 372, 380
(2007); Liberty Lobby,
477 U.S. at 248
. “A party asserting that a

fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts

of materials in the record” or “showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.” Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating

the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323
(1986). In the event of conflicting evidence on a material issue, the Court is to construe the

conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau

of Prisons,
466 F.3d 1086, 1087
(D.C. Cir. 2006).

       FOIA cases typically and appropriately are decided on motions for summary judgment.

See Brayton v. Office of U.S. Trade Rep.,
641 F.3d 521, 527
(D.C. Cir. 2011). In a FOIA case,

the Court may accept an “agency’s affidavits, without pre-summary judgment discovery, if the

affidavits are made in good faith and provide reasonably specific detail concerning the methods

used to produce the information sought.” Broaddrick v. Exec. Office of the President,
139 F.

Supp. 2d 55, 64
(D.D.C. 2001). “Agency affidavits are accorded a presumption of good faith,

which cannot be rebutted by purely speculative claims about the existence and discoverability of

other documents.” SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200
(D.C. Cir. 1991)



                                                  3
(quotation marks and citation omitted). “Unlike the review of other agency action that must be

upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly

places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine

the matter de novo.’” Dep’t of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S.

749, 755
(1989) (quoting
5 U.S.C. § 552
(a)(4)(B)).

III.   Analysis

       Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose,
425 U.S. 352, 361
(1976) (quotation marks and citation omitted). “The basic purpose of FOIA is to ensure an

informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &

Rubber Co.,
437 U.S. 214, 242
(1978). The statute provides that “each agency, upon any request

for records which (i) reasonably describes such records and (ii) is made in accordance with

published rules . . . shall make the records promptly available to any person.”
5 U.S.C. §

552
(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order

the production of records that an agency improperly withholds. See
id.
§ 552(a)(4)(B);

Reporters Comm.,
489 U.S. at 754-55
. “At all times courts must bear in mind that FOIA

mandates a ‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v.

Norton,
309 F.3d 26, 32
(D.C. Cir. 2002) (quoting Dep’t of State v. Ray,
502 U.S. 164, 173
(1991)).

       The Court will look first at the adequacy of Defendants’ search for responsive

documents, turn next to the exemptions they claim justify withholding certain documents and




                                                  4
information, then assess the segregability of the withheld information, and finally discuss

whether the FBI properly denied Plaintiff’s fee-waiver request.

          A. Adequacy of Search

          “An agency fulfills its obligations under FOIA if it can demonstrate beyond material

doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-

Lucena v. Coast Guard,
180 F.3d 321, 325
(D.C. Cir. 1999) (quoting Truitt v. Dep’t of State,
897

F.2d 540, 542
(D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice,
23 F.3d 548, 551
(D.C.

Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents

possibly responsive to the request, but rather whether the search for those documents was

adequate.” Weisberg v. Dep’t of Justice,
745 F.2d 1476, 1485
(D.C. Cir. 1984).

          The adequacy of an agency’s search for documents requested under FOIA “is judged by a

standard of reasonableness and depends, not surprisingly, upon the facts of each case.”
Id.
To

meet its burden, the agency may submit affidavits or declarations that explain the scope and

method of its search “in reasonable detail.” Perry v. Block,
684 F.2d 121, 127
(D.C. Cir. 1982)

(per curiam). The affidavits or declarations should “set[] forth the search terms and the type of

search performed, and aver[] that all files likely to contain responsive materials (if such records

exist) were searched.” Oglesby v. Dep’t of Army,
920 F.2d 57, 68
(D.C. Cir. 1990). Absent

contrary evidence, such affidavits or declarations are sufficient to show that an agency complied

with FOIA. See Perry,
684 F.2d at 127
. “If, however, the record leaves substantial doubt as to

the sufficiency of the search, summary judgment for the agency is not proper.” Truitt,
897 F.2d

at 542
.

          Attached to their Motion, Defendants have submitted the Declarations of Princina Stone,

Attorney Advisor with EOUSA; Bernetta Miller, Paralegal Specialist in the Civil Division of the



                                                  5
United States Attorney's Office for the District of Minnesota; William Bordley, Associate

General Counsel of USMS; and David Hardy, Section Chief of the Record/Information

Dissemination Section, Records Management Division, of the FBI, which explain in detail the

steps that Defendants took to search for responsive records, including:

              Searches by the lead attorney assigned to Plaintiff’s case in the U.S. Attorney’s
               Office for the District of Minnesota for all responsive records, see ECF No. 28-10
               (Declaration of Bernetta Miller), ¶¶ 11-12;

              Search of “CaseView” – the system used by the USAO-DMN to track
               investigations and cases – by Plaintiff’s name, see id., ¶ 9;

              Search of USMS systems including the Justice Detainee Information System
               Prisoner Processing and Population Management/Prisoner Tracking System and
               the Warrant Information Network using Plaintiff’s name, date of birth, and USMS
               registration number, see Bordley Decl., ¶¶ 4-5;

              Searches by USMS district personnel in the District of Minnesota for all records
               pertaining to him, see id., ¶ 6; and

              Certification that there were no records systems or locations not searched where
               responsive files might have been found. See Miller Decl., ¶ 17.

       Plaintiff does not allege that the above-detailed search was inadequate, but rather that

Defendants’ delayed responses somehow impair its validity. Chase is indeed correct that

Defendants have taken a considerable amount of time to respond to his requests and seem to

have dropped the ball a few times with regard to their communications with him. Unfortunately

for Chase, however, this type of conduct does not render Defendants’ search inadequate. Absent

contrary evidence – which Plaintiff does not provide – Defendants’ declarations are sufficient to

show that they complied with FOIA. See Perry,
684 F.2d at 127
.

       Chase additionally argues that because EOUSA “needlessly and wrongly [sic]” referred

documents to the FBI, see ECF No. 32 (Pl. Opp. & MSJ) at 13, and that their description of that

referral lacks sufficient detail, their explanation is “less than adequate and responsive.”
Id.
at 5-


                                                  6
6, 8. When an agency receives a FOIA request for records in its possession, “it must take

responsibility for processing the request” even if the documents originated elsewhere. See

McGehee v. CIA,
697 F.2d 1095, 1110
(D.C. Cir. 1983). Yet, when the agency processing the

request concludes that another agency is best able to determine whether to disclose the record, it

should refer those records to that agency. See
28 C.F.R. § 16.4
(a)(2)(i) (“[T]he component or

agency that originated the record will be presumed to be best able to make the disclosure

determination.”). That said, a referral may constitute improper withholding “if its net effect is

significantly to impair the requesters ability to obtain the records or significantly to increase the

amount of time he must wait to obtain them.” McGehee,
697 F.2d at 1110
. The referral is

improper “unless the agency can offer a reasonable explanation for its procedure.”
Id.
Notwithstanding Plaintiff’s allegations, this is not a case where one agency has attempted

to pass off its FOIA responsibilities to another; rather, EOUSA properly referred material to the

FBI, which, after review, was willing to release that material to Chase provided he pay the

duplication fees. As the originating agency, see Hardy Decl., ¶ 5, the FBI could properly review

whether any exemptions might apply before releasing the records to Chase. The only

impediment to the release of the FBI materials is Plaintiff’s own inability or unwillingness to pay

$59.70 or meet the statutory requirements for a fee waiver, as discussed below. See Hardy Decl.,

Exh. A. Finally, Plaintiff protests that the Bureau misstates the number of pages referred to it by

EOUSA (1,294 vs. 1,216), see Pl. Opp. & MSJ at 8, but Hardy’s declaration clarifies that the

larger number was merely an “incorrect[] state[ment],” Hardy Decl. at 3 n.1, assuaging any

potential concerns over the adequacy of Defendants’ search description.

       The Court, therefore, finds summary judgment proper on the adequacy of the search.




                                                  7
        B. Exemptions

        Although Plaintiff’s challenges to Defendants’ withholdings are not particularly direct or

specific, the Court will nonetheless address whether the claimed exemptions apply to the

documents and information withheld.

                1. Exemption 3 (DOJ/EOUSA)

        Fifty-one pages of grand-jury transcripts constitute the entirety of the withheld

documents by DOJ/EOUSA. See ECF No. 28-3 (Stone Decl., Exh. A). As the basis for

withholding these transcripts, Defendants cite, inter alia, FOIA Exemption 3, which covers

records “specifically exempted from disclosure by statute,” provided that such statute either “(i)

requires that the matters be withheld from the public in such a manner as to leave no discretion

on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of

matters to be withheld.”
5 U.S.C. § 552
(b)(3). Two statutes are relevant here: Federal Rule of

Criminal Procedure 6(e) and the Child Victims’ and Child Witnesses’ Rights Act,
18 U.S.C. § 3509
(d).

        Rule 6(e), which bars the disclosure of matters occurring before a grand jury, is

recognized as a “statute” for Exemption 3 purposes. See Fund for Constitutional Gov’t. v. Nat’l

Archives & Records Serv.,
656 F.2d 856, 867
(D.C. Cir. 1981). The Rule’s grand-jury-secrecy

requirement is applied broadly and embraces any information that “tend[s] to reveal some secret

aspect of the grand jury’s investigation, [including] the identities of witnesses or jurors, the

substance of testimony, the strategy or direction of the investigation, the deliberations or

questions of jurors, and the like.” Lopez v. Dep’t. of Justice,
393 F.3d 1345, 1349
(D.C. Cir.

2005) (citation omitted). In the absence of a statutory exception to the general presumption of

grand-jury secrecy – not an issue here – Rule 6 is “quite clear that disclosure of matters



                                                   8
occurring before the grand jury is the exception and not the rule,” and “the rule’s ban on

disclosure is for FOIA purposes absolute and falls within . . . Exemption 3.” Fund for

Constitutional Gov’t.,
656 F.2d at 868
.

       As a separate and independent ground, the Child Victims’ Act protects from disclosure

certain records containing personally identifiable information pertaining to children who were

the victim or in some way involved in criminal proceedings. In this instance, Defendants explain

that Exemption 3, in conjunction with
18 U.S.C. § 3509
(d), is being invoked “to protect grand

jury witnesses who provided descriptions of minor children who were victims of child

pornography or were sexually exploited, and also to protect from disclosure the identity of the

child victims.” Stone Decl., ¶ 21.

       As the documents withheld here encompass transcripts of actual testimony before the

grand jury and, as Stone attests, contain the identity and descriptions of minor children, they

clearly fall within the parameters of Exemption 3. While Defendants also seek to shield the

transcripts based on Exemptions 5 and 7(E), the Court need not consider such argument since

Exemption 3 alone protects the material from disclosure.

               2. Exemptions 7(C) and 7(E) (USMS)

       USMS, in turn, released 15 pages of documents with portions redacted pursuant to FOIA

Exemptions 7(C) and 7(E). See Bordley Decl., ¶ 7. Exemption 7 protects from disclosure

“records or information compiled for law enforcement purposes, but only to the extent that the

production of such records or information” would result in one of six specific harms. See
5

U.S.C. § 552
(b)(7). Exemption 7(C) covers records that “could reasonably be expected to

constitute an unwarranted invasion of personal privacy,” while 7(E) protects documents that

“would disclose techniques and procedures for law enforcement investigations or prosecutions.”



                                                 9
For either exemption, the Government must first show that the documents were in fact “compiled

for law enforcement purposes” and not for some other reason. See Pub. Emps. for

Environmental Responsibility v. U.S. Sec., Int’l Boundary and Water Comm’n, U.S.-Mexico,
740 F.3d 195, 203-04
(D.C. Cir. 2014). Given that all the records at issue relate to USMS’s

pretrial custody of Plaintiff and other USMS prisoners, see Bordley Decl., ¶ 8, the Government

clears this Exemption 7 threshold.

        Relying on Exemption 7(C), USMS withheld information pertaining to the names of law

enforcement and other personnel who prepared or assisted with the preparation of the documents

in performance of their duties.
Id.
The first step in the Exemption 7(C) analysis is to determine

whether there is, in fact, a privacy interest in the materials sought. See Am. Civil Liberties

Union v. Dep’t of Justice,
655 F.3d 1, 6
(D.C. Cir. 2011). This privacy interest must be

“substantial”, but for the purposes of 7(C), “substantial means less than it might seem [–] [a]

substantial privacy interest is anything greater than a de minimis privacy interest.” Pinson v.

U.S. Dep't of Justice,
202 F. Supp. 3d 86, 99-101
(D.D.C. 2016) (applying balancing analysis

from FOIA Exemption 6 to Exemption 7(C) and quoting Multi Ag Media LLC v. USDA,
515

F.3d 1224, 1229-30
(D.C. Cir. 2008)). Given the personal nature of the information withheld

here – e.g., names and phone numbers of third parties, medical personnel, and law-enforcement

agents – the Court finds a substantial privacy interest in the materials. Even if the Court had

found only a modest privacy interest in this personal information, moreover, it would have

reached the same outcome because, as will be discussed below, Chase’s request implicates no

public interest: “[W]here [a court] find[s] that the request implicates no public interest at all, [it]

need not linger over the balance; something . . . outweighs nothing every time.’” Beck v. Dep’t




                                                  10
of Justice,
997 F.2d 1489, 1494
(D.C. Cir. 1993) (quoting Nat’l Ass’n of Retired Fed’l Emps. v.

Horner,
879 F.2d 873, 879
(D.C. Cir. 1989)).

       Finally, USMS is claiming Exemption 7(E) for one discrete redaction – a USMS Fed Ex

account number. See Bordley Decl., ¶ 9. The release of this number, “generally unknown to the

public,” could compromise an investigation and therefore “reasonably be expected to risk

circumvention of the law.” Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs.,
849 F.

Supp. 2d 13, 36
(D.D.C. 2012) (citation omitted). As such, this information was properly

withheld.

       C. Segregability

       Although Chase does not challenge Defendants on this issue, the Court must

independently assess whether “[a]ny reasonably segregable portion” of the records could be

produced “after deletion of the portions which are exempt.”
5 U.S.C. § 552
(b); see Morley v.

CIA,
508 F.3d 1108, 1123
(D.C. Cir. 2007) (district court has “an affirmative duty to consider”

segregability and must “make[] an express finding on segregability” before granting Government

summary judgment) (citations omitted). Although the Government is “entitled to a presumption

that [it] complied with the obligation to disclose reasonably segregable material,” Sussman v.

U.S. Marshals Service,
494 F.3d 1106, 1117
(D.C. Cir. 2007), this presumption of compliance

does not obviate its obligation to carry its evidentiary burden and fully explain its decisions on

segregability. Mead Data Cent., Inc. v. Dep’t of Air Force,
566 F.2d 242, 261
(D.C. Cir. 1977).

Defendants persuasively assert that they examined the documents line by line to determine

whether any reasonably segregable information could be released and proceeded to withhold

only that information that was exempt from disclosure pursuant to a FOIA exemption or so

intertwined with exempt information such that segregation was not possible. See Stone Decl., ¶



                                                 11
42; Bordley Decl., ¶ 10. For example, they only withheld entire pages when covered by a broad

exemption, such as in the case of grand-jury transcripts. As no segregability problem exists here,

the Court grants Defendants’ Motion on this issue.

       D. Fees

       All that is left of the dispute, then, is whether the FBI properly denied Chase’s fee-waiver

request. While the Bureau maintains that no fee waiver is warranted here, Plaintiff disagrees,

additionally implying that the agency’s delay and bad faith should preclude it from seeking fees.

       Agencies are authorized to charge requesters fees to recover costs of processing FOIA

requests and to promulgate regulations outlining procedures and guidelines for charging those

fees. See
5 U.S.C. § 552
(a)(4)(A). “Under well-established case law, fee waiver requests must

be made with ‘reasonable specificity,’ and based on more than ‘conclusory allegations.’ [The

Court is] also mindful that Congress amended FOIA to ensure that it be ‘liberally construed in

favor of waivers for noncommercial requesters.’” Judicial Watch, Inc. v. Rossotti,
326 F.3d

1309, 1312
(D.C. Cir. 2003) (internal citations omitted). The requesting party bears the burden

of proof. See Larson v. CIA,
843 F.2d 1481, 1483
(D.C. Cir. 1988).

       A reduction or waiver of fees is required where disclosure is in the “public interest

because it is likely to [1] contribute significantly to public understanding of the operations or

activities of the government and [2] is not primarily in the commercial interest of the requester.”
5 U.S.C. § 552
(a)(4)(A)(iii). Since the FBI concedes that disclosure is not primarily in Chase’s

commercial interest, see Def. MSJ at 17, the following “public understanding” factors are all

that are relevant: (1) whether the records concern the operations or activities of the government,

(2) whether the disclosure is likely to contribute to an understanding of government operations or

activities, (3) whether disclosure will contribute to public understanding, and (4) the significance



                                                 12
of the contribution to increasing public understanding. See Marino v. Dep’t of Justice,
993 F.

Supp. 2d 14, 19-20
(D.D.C. 2014). For a request to be in the “public interest,” all four criteria

must be satisfied. See
id.
at 20 (citing Judicial Watch v. Dep’t of Justice,
365 F.3d 1108, 1126
(D.C. Cir. 2004)).

        Although the records Chase requested concern the operations or activities of government,

their disclosure is unlikely to contribute to or significantly increase the public’s understanding of

them. First, Plaintiff has not demonstrated an ability or interest in disclosing the records broadly

to the public. See Nat’l Sec. Counselors v. Dep’t of Justice,
848 F.3d 467, 473-74
(D.C. Cir.

2017) (denying waiver where requester “failed to provide adequate evidence suggesting that it

would effectively disseminate its requested information in furtherance of the public’s

understanding”). He has also failed to allege that the release of documents exclusively

concerning him would provide a better understanding of the government at large or be of interest

to the general public. See Forest Guardians v. Dep’t of Interior,
416 F.3d 1173, 1179
(10th Cir.

2005) (emphasizing that “FOIA fee waivers are limited to disclosures that enlighten more than

just the individual requester”); Judicial Watch, Inc. v. Dep’t of Justice,
185 F. Supp. 2d 54, 62
(D.D.C. 2002) (stating that requester must show that disclosure will contribute to understanding

of "reasonably broad audience of persons") (quoting
28 CFR § 16.11
(k)(2)(iii)); see also Pub.

Employees for Envtl. Responsibility v. Dep’t of Commerce,
968 F. Supp. 2d 88, 101-04
(D.D.C.

2013) (Plaintiff failed to satisfy second and fourth “public understanding” factors because

“[i]nformation related to one individual . . . is not likely to clear [the] bar” of increasing public

knowledge of the functions of government). Finally, it appears that Plaintiff’s primary

motivation is to obtain records to assist in challenging his conviction. “Insofar as [Chase] seeks

information to facilitate a challenge to his conviction, the court considers disclosure less likely to



                                                  13
contribute to public understanding.” Ortloff v. Dep’t of Justice & FBI, No. 02-5170,
2002 WL

31777630
, at *1 (D.C. Cir. Dec. 11, 2002) (per curiam) (citations omitted); see also Marino,
993

F. Supp. 2d at 20
n.5 (finding fact that records were requested to “undermine [a] conviction and

term of incarceration greatly undercuts supposed benefit that will accrue to the public if the

records are released”).

       Notwithstanding his lack of qualifications for a waiver, Chase argues that the FBI should

have nonetheless granted his request because EOUSA’s release of 430 pages without cost

demonstrates that a waiver had in fact been granted. See Pl. Opp. & MSJ at 9. Plaintiff’s

argument is a non-starter. Whether an agency provides a requester with documents free of

charge above and beyond what it is required to by statute has no bearing on whether that agency

(or a receiving agency) may later charge that requester for additional material.

       The Court, in fact, noting that Defendants had failed to comply with FOIA’s timelines for

processing requests and appeals, inquired, sua sponte, whether their non-compliance constituted

a waiver of their right to request fees. See ECF No. 33 (Order). Although this would have been

the case had the FBI been requesting search fees, see id. at 1-2, Defendants clarified that the FBI

only requested duplication fees, see ECF No. 34 (Response), which an agency can still request

regardless of its non-compliance with FOIA’s timeliness requirements. See
5 U.S.C. § 552
(a)(4)(A)(viii).

       Finally, throughout Plaintiff’s Opposition, he seems to contend that Defendants are not

entitled to summary judgment because they acted here in bad faith. While it is true that summary

judgment for an agency may be inappropriate in such an instance because such conduct could

undermine the reliability of affidavits the court must rely on, see Hamilton Sec. Grp. Inc. v.

Dep’t of Hous. & Urban Dev.,
106 F. Supp. 2d 23, 33
(D.D.C. 2000), aff’d
2001 WL 238162
14
(D.C. Cir. Feb. 23, 2001), it is less clear that an agency’s bad faith excuses a requester from

paying duplication fees. The Court will nonetheless consider Chase’s arguments.

        In determining what constitutes bad faith, “[c]ourts routinely find that delays in

responding to FOIA requests are not, in and of themselves, indicative of agency bad faith.”

Skurow v. Dep’t of Homeland Sec.,
892 F. Supp. 2d 319, 326
(D.D.C. 2012) (one-year delay

insufficient for finding agency bad faith; claims of bad faith were purely speculative); see also

Competitive Enter. Inst. v. Nat’l Aeronautics & Space Admin.,
989 F. Supp. 2d 74, 88-89
(D.D.C. 2013) (two-year delay from inadequate staffing not caused by bad faith); Thomas v.

Dep’t of Justice,
531 F. Supp. 2d 102, 109
(D.D.C. 2008) (three-year delay in agency’s response

to FOIA request not “purposeful” and absent additional evidence did not indicate bad faith);

Goland v. CIA,
607 F.2d 339, 355
(D.C. Cir. 1978) (“[I]n view of the well-publicized problems

created by the statute’s 10- and 20-day time limits for processing FOIA requests and appeals, the

CIA’s delay alone cannot be said to indicate an absence of good faith.”) (footnote omitted);

Fischer v. Dep’t of Justice,
723 F. Supp. 2d 104, 108
(D.D.C. 2010) (rejecting argument that

failure to produce documents until after litigation commenced evinces bad faith).

       Plaintiff’s Opposition alleges numerous instances of bad faith on the Government’s part.

In addition to Defendants’ repeated failures to respond to his requests before his Complaint was

filed, Chase argues that they used “needless stay[s] of proceedings,” attempts “to confuse the

court,” and other stalling methods to intentionally drag their feet in responding to his requests.

See Pl. Opp. & MSJ at 13. As noted above, while Defendants are clearly not faultless for the

delay in processing and releasing the initial batch of documents, mere delay in responding to a

FOIA request is routinely found to be insufficient to support a finding of bad faith, even in cases

where the agency delay is considerably longer than Defendants’ year-long delay here. See



                                                 15
Competitive Enter. Inst.,
989 F. Supp. 2d at 88-89
(two years); Thomas,
531 F. Supp. 2d at 109
(three years). In addition, Defendants’ repeated failures to respond to Plaintiff’s communications

and apparent misplacement of some of his correspondence do not, without more, constitute bad

faith. See, e.g., Budik v. Dep’t of the Army,
742 F. Supp. 2d 20, 33
(D.D.C. 2010) (ten-month

delay caused by administrative error did not indicate bad faith). The Court concludes,

accordingly, that these circumstances do not warrant denying summary judgment.

IV.    Conclusion

        For the foregoing reasons, the Court will issue a contemporaneous Order granting

judgment in Defendants’ favor.



                                                    /s/ James E. Boasberg
                                                    JAMES E. BOASBERG
                                                    United States District Judge
Date: March 15, 2018




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