Brown v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
TIMOTHY DEMITRI BROWN, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1931 (RWR)
)
F.B.I. et al., )
)
Defendants. )
_____________________________ )

MEMORANDUM OPINION

Plaintiff Timothy Demitri Brown filed this pro se complaint

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522,

against the FBI, other components of the Department of Justice

(“DOJ”), and the DOJ itself. The defendants filed a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) or in the

alternative for summary judgment under Rule 56, and Brown filed a

cross-motion for summary judgment. Brown’s claims regarding

“federal questions” will be dismissed for lack of subject matter

jurisdiction because they seek relief that is not available under

the FOIA. As to Brown’s FOIA claims, because two were not

administratively exhausted, and there is no genuine factual

dispute regarding the other and defendants are entitled to

summary judgment as a matter of law, the defendants’ motion will

be granted. All other pending motions will be denied as moot.
 -2-

BACKGROUND

At issue in this case are the defendants’ responses to three

FOIA requests by Brown and requests to answer what Brown

characterizes as “federal questions.” See Pl.’s Decl. and

Response to Defs.’ Motion to Dismiss or, in the Alternative, for

Summary Judgment (“Pl.’s Opp’n”) at 1 (identifying three FOIA

requests and two “federal questions” in dispute); Pl.’s Statement

of Genuine Issues, Supplement to Plaintiff’s Response (“Pl.’s

Suppl.”) at 1-2 (identifying two FOIA requests and two “federal

questions” in dispute).1 Brown sent the oldest of the disputed

FOIA requests to the FBI’s office in Alexandria, Louisiana (the

“Alexandria Request”), and requested records pertaining to

himself. Defs.’ Statement of Material Facts Not in Dispute

(“Defs.’ Facts”) ¶ 5; see Pl.’s Opp’n at 2; Pl.’s Suppl. at 1.

The precise date and scope of the request are unknown, as the

parties have not placed the document in the record.2

1
Given the lack of specificity in the complaint, the
defendants included far more information in their dispositive
motion and related filings than the plaintiff had apparently
intended to put at issue. See Defs.’ Statement of Material Facts
Not in Genuine Dispute ¶¶ 1-27 (describing seven FOIA requests
directed to the FBI); see also Defs.’ Mem. of P. & A. in Supp. of
Defs’ Mot. to Dismiss or, in the Alternative, for Summ. J.
(“Defs.’ Mem.”) at 24-25 (describing other FOIA requests
plaintiff submitted to the Executive Office of the United States
Attorneys and to the DOJ’s Criminal Division). Only the requests
the plaintiff identifies as being disputed in his opposition are
considered here. Pl.’s Opp’n at 1; Pl.’s Suppl. at 1-2.
2
Neither the plaintiff nor the defendants submitted a copy
of this FOIA request. See Defs.’ Facts at 3 n.1 (acknowledging
 -3-

The other two FOIA requests in dispute are both dated

November 9, 2006. Brown sent one to the FBI headquarters in

Washington. See Defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment (“Defs.’ Mot.”), Declaration of

David M. Hardy, March 14, 2008 (“Hardy Decl.”) Ex. I. He sent

the other to the BOP at its South Central Regional Office in

Dallas, Texas. See id., Declaration of Karen Summers, Aug. 11,

2008 (“Summers Decl.”) Ex. 1. Both requests sought information

relating to a book authored by the plaintiff called “Tyrant

Wanted,” and an investigation related to that book. See Hardy

Decl., Ex. I; Summers Decl. Ex. 1.

The record in this case does not reveal any actual FOIA

requests related to “federal questions.” Nonetheless, Brown

mentions the questions in the complaint and his submissions

opposing the defendants’ dispositive motion. The “federal

questions” Brown asks are whether the federal government

“exercised exclusive legislative jurisdiction over the property

located at 3708 Third Street, Alexandria, Louisiana on or before

May 31, 2001[,]” and what is “the legal status of 21 U.S.C. §§

841 and 846,” prohibiting trafficking in controlled or

counterfeit substances, and engaging in a narcotics conspiracy.

Pl.’s Opp’n at 4; Pl.’s Suppl. at 2-3.

that the FBI could not locate this document despite an extensive
search for it).
 -4-

The defendants move under Rule 12(b)(6) to dismiss for

failure to state a claim or alternatively move under Rule 56 for

summary judgment. Brown likewise seeks summary judgment.

DISCUSSION

A FOIA claim should be dismissed if the plaintiff did not

exhaust his administrative remedies before filing suit. Hidalgo

v. FBI, 344 F.3d 1256, 1258-60 (D.C. Cir. 2003) (teaching that a

plaintiff who has not exhausted his administrative remedies has

failed to state a claim upon which relief may be granted). Here,

because both parties have submitted declarations in support of

their positions with respect to the pending dispositive motions,

the motions will be analyzed as ones made under Rule 56. See

Fed. R. Civ. P. 12(d) (requiring a motion made under Rule

12(b)(6) to be treated as one under Rule 56 if matters outside

the pleadings are considered). A motion under Rule 56 must be

granted if the pleadings and evidence on file show that there is

no genuine issue of material fact, and that the moving party is

entitled to judgment as a matter of law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986). A material fact is one

that is capable of affecting the outcome of the litigation. Id.

at 248. A genuine issue is one where the “evidence is such that

a reasonable jury could return a verdict for the nonmoving

party,” id. at 247, as opposed to evidence that “is so one-sided

that one party must prevail as a matter of law.” Id. at 252. In
 -5-

considering whether there is a triable issue of fact, a court

must draw all reasonable inferences in favor of the non-moving

party. Id. at 255. 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.” Id. at 248;

see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)

(stating that a genuine issue is one that would permit a

reasonable jury to find in favor of the non-moving party). 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)).

An agency is entitled to summary judgment if it demonstrates

that no material facts are in dispute and that it conducted a

search of records in its custody or control, Kissinger v.

Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-

51 (1980), that was reasonably calculated to uncover all relevant

information, Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485

(D.C. Cir. 1984), which either has been released to the requestor
 -6-

or is exempt from disclosure. Students Against Genocide v. Dep’t

of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To show that its

search “us[ed] 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 also Campbell v. United

States Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), the

agency may submit affidavits or declarations that explain in

reasonable detail and in a nonconclusory fashion the scope and

method of the search. Perry v. Block, 684 F.2d 121, 126 (D.C.

Cir. 1982). In the absence of contrary evidence, such affidavits

or declarations reflecting a search reasonably calculated to

uncover all relevant information are sufficient to demonstrate an

agency’s compliance with the FOIA. Perry, 684 F.2d at 127. A

search need not be exhaustive, Miller v United States Dep’t of

State, 779 F.2d 1378, 1383 (8th Cir. 1985), and the adequacy of a

search is not determined by its results, but by the method of the

search itself. Weisberg, 745 F.2d at 1485. An agency’s failure

to find a particular document does not necessarily indicate that

its search was inadequate. Wilbur v. CIA, 355 F.3d 675, 678

(D.C. Cir. 2004); Nation Magazine v. United States Customs Serv.,

71 F.3d 885, 892 n.7 (D.C. Cir. 1995).
 -7-

A. The Alexandria Request

“FOIA requires agencies to make records available in

response to any request ‘made in accordance with published rules

stating the time, place, fees (if any), and procedures to be

followed.’” Church of Scientology of California v. IRS, 792 F.2d

146, 150 (D.C. Cir. 1986) (quoting 5 U.S.C. § 552(a)(3)(A));

accord Moayedi v. U.S. Customs and Border Protection, 510 F.

Supp. 2d 73, 81 (D.D.C. 2007) (stating that “the FOIA requires

that a request be made in accordance with the agency’s published

FOIA rules”) (internal alterations and quotation marks omitted).

The DOJ publishes regulations that tell a requester how to make

and where to send a FOIA request. That regulation provides in

pertinent part as follows:

In most cases, your FOIA request should be sent to [the
DOJ] component’s central FOIA office. For records held
by a field office of the . . . FBI, however, you must
write directly to that FBI . . . field office address,
which can be found in most telephone books or by
calling the [FBI’s] central FOIA office. If you cannot
determine where within the Department to send your
request you may send it to the FOIA/PA Mail Referral
Unit, Justice Management Division, U.S. Department of
Justice, 950 Pennsylvania Ave., N.W., Washington, DC
20530-0001. That office will forward your request to
the component(s) it believes most likely to have the
records that you want.

28 C.F.R. § 16.3(a). Here, Brown did not send his Alexandria

Request either to the FOIA/PA Mail Referral Unit or to an FBI

field office, but to the FBI’s Alexandria, Louisiana office,

which is not identified in the applicable regulation and is not
 -8-

an FBI field office. See Defs.’ Reply at 2-3. Thus, Brown’s

Alexandria Request did not comply with “the statutory command

that [FOIA] requests be made in accordance with published rules.”

Church of Scientology of California, 792 F.2d at 150. As such,

the Alexandria Request did not constitute a proper FOIA request

and did not trigger an agency’s obligation to respond. As Brown

never properly initiated, let alone exhausted, the FOIA

administrative process, he is not entitled to maintain a civil

action with respect to the Alexandria Request.

Notwithstanding the fact that the Alexandria Request was not

a proper FOIA request, the FBI’s New Orleans Office conducted a

search that located responsive records in a main file numbered

245F-NO-62649, a file in a “pending investigative status.” See

Hardy Decl. ¶ 47. By letter dated November 29, 2001, the New

Orleans Office informed Brown that it had located responsive

records that were “being withheld in their entirety” as

investigatory material under 5 U.S.C. § 552(b)(7)(A) and 5 U.S.C.

§ 552a(j)(2). Id., Ex. D (noting that subsection (j)(2) pertains

to “material reporting investigative efforts pertaining to

enforcement of criminal law including efforts to prevent, control

or reduce crime or apprehend criminals, except records of

arrests,” and that subsection (b)(7)(A) applies to “records or

information compiled for law enforcement purposes, but only to

the extent that the production of such law enforcement records or
 -9-

information could reasonably be expected to interfere with

enforcement proceedings”). The letter also informed Brown that

he could appeal the determination within 60 days. Id. The

defendants have no record that Brown ever administratively

appealed this response. See Hardy Decl. ¶ 47.

Brown, on the other hand, contends that he never received a

response to his Alexandria Request. Pl.’s Opp’n at 2. He also

contends that by letter dated August 17, 2002, he appealed the

non-response. Pl.’s Opp’n at 2. This construction of events is

not supported by the record. Plaintiff’s August 17, 2002 letter

appeals not from a non-response, but specifically appeals from a

response that cited FOIA exemptions (b)(6) and (b)(7)(C). See

Hardy Decl., Ex. F. Brown also asserts that another letter in

the record constitutes Brown’s appeal with respect to the alleged

non-response to the Alexandria Request. See Pl.’s Opp’n at 2;

Hardy Decl., Ex. G. This construction is more plausible, but

still problematic. The whole of the text of that letter, which

is not dated, states as follows:

This is a follow-up on Request for Administrative
review of denial of information from Federal Agency.
(F.B.I. Alexandria, La.). As of the above date I have
not received a response from you. Therefore I am
requesting immediate delivery of the information
requested. If I have not received the information by
9/17/02, I will con[s]ider it another denial of my
request, and the exhaustion of administrative remedies.

Id. There is good reason why the recipient did not understand

this to be an appeal related to the Alexandria Request. First,
 -10-

the defendant had responded to the Alexandria Request. Second,

there is nearly no information contained in the letter to

indicate what request is at issue.

Apparently, because the Alexandria Request was not properly

submitted and never received an identification number, the

parties miscommunicated on more than one occasion. In any case,

even if Brown did intend to appeal what he perceived to be a non-

response to his Alexandria Request, there is no genuine dispute

that Brown failed to properly submit and therefore to exhaust

this request, therefore creating no obligation on the part of the

defendant to disclose records under the FOIA. However, summary

judgment is appropriate only if a party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). Because this is not

an adjudication as a matter of law on the merits of defendants’

response carrying any preclusive effect should Brown choose in

the future to submit a proper FOIA request for the information he

seeks, the motion to dismiss this claim, rather than the motion

to enter summary judgment on this claim, will be granted. See

Hidalgo, 344 F.3d at 1257.

B. The “Tyrant Wanted” Request to the FBI

Brown’s FOIA request dated November 9, 2006 and directed to

FBI headquarters in Washington, D.C., sought information

regarding the investigation of the book, “Tyrant Wanted,” the

return of any copy of that book, a “copy of the authorization for
 -11-

the thief of the book by Federal Bureau of Prison employee,” and

“all reports, documents, tapes, video, audio or otherwise

concerning the interrogation of . . . Brown about the book

. . . .” Hardy Decl., Ex. I. Although an agency has 20 business

days after receiving a FOIA request to determine whether it will

comply with the request, see 5 U.S.C. § 552(a)(6)(A)(i), Brown

attempted to appeal the FBI’s non-response to this request by a

letter dated only sixteen calendar days later than the date on

his letter request. See Hardy Decl., Ex. J (containing a copy of

Brown’s November 9, 2006 FOIA request and his November 25, 2006

appeal from the “non-response to [his November 9] FOIA request”).

The FBI took no action with respect to Brown’s premature appeal

at that time. See Hardy Decl. ¶ 18 (stating that Brown’s

November 25, 2006 appeal letter was acknowledged by the DOJ’s

Office of Information and Policy on April 20, 2007, after the FBI

had reported to Brown the results of its search in response to

his November 9, 2006 “Tyrant Wanted” Request).

By letter dated February 23, 2007, FBI headquarters notified

Brown that it had not located any records responsive to his

“Tyrant Wanted” Request. See Hardy Decl. Ex. K. The FBI

headquarters’ response was affirmed on administrative appeal, and

Brown was so notified by letter dated July 3, 2007. See Hardy

Decl. Ex. M. That letter also stated that the FBI had “found

that the Houston and the New Orleans field offices might have
 -12-

records responsive to your request,” advised Brown to “submit new

requests directly to the Houston and New Orleans field offices,”

and provided the addresses for those offices. Id. The record

does not indicate whether Brown acted on this advice. He

submitted this complaint for filing on October 11, 2007. See

Compl. at 1.

Brown contends that the FBI did, in fact, respond to this

request by releasing responsive documents with redactions, and

that he appealed the redacted portions. See Pl.’s Opp’n at 2.

Brown provides no evidence to substantiate his contention. While

Brown has submitted redacted documents relating to “Tyrant

Wanted,” see Pl.’s Affidavit and Exhibits at 5-8, there is

nothing in the record to confirm that the released documents came

from FBI headquarters in response to this FOIA request. Indeed,

the document Brown submitted appears to be part of “File No. 89F-

HO-66130” in the U.S. Attorney’s Office in the Eastern District

of Texas, not a document maintained at FBI headquarters. Id.

Moreover, Brown presents no facts to put in dispute the FBI

headquarters’ response that its search located no documents

responsive to this request, which is described in the Hardy

Declaration in detailed and nonconclusory terms. See Hardy Decl.

¶¶ 36-46, 49.3 Without an issue in dispute regarding the FBI

3
Even if Brown’s filings were read as a challenge to
redactions made in the documents he submits, the challenge cannot
be adjudicated since he has left wholly unspecified what the FOIA
 -13-

headquarters’ response, and on the basis of the Hardy

Declaration, the defendants are entitled to summary judgment with

respect to this request.

C. The “Tyrant Wanted” Request to the BOP

By letter dated November 9, 2006, and sent to the BOP’s

South Central Regional Office, Brown asked under the FOIA for a

copy of USP Beaumont’s visitors log book for October 17, 2006,

the return of all copies of the book “Tyrant Wanted,” information

relating to the theft of “Tyrant Wanted” by a BOP employee, and a

copy of the document authorizing the theft of the book. See

Summers Decl., Ex. 1. As he had with the parallel request to FBI

headquarters, Brown filed an appeal by letter dated November 25,

2006 for non-response to this request. See Summers Decl., Ex. 4.

It appears from the record that no action was ever taken with

respect to this premature appeal. By letter dated December 4,

2006, the BOP’s South Central Regional Office advised Brown that

to initiate his FOIA request, he must send it to the BOP Director

in Washington, D.C. See Summers Decl., Ex. 2. In December 2006,

the BOP’s Washington office received Brown’s November 9, 2006

“Tyrant Wanted” Request and acknowledged the request by letter to

Brown dated January 29, 2007. See Summers Decl. ¶ 8 & Ex. 5. By

letter dated January 30, 2007, the BOP notified Brown that the

request sought, to what agency it was sent, what if any exemption
he disputes, and when he sought to appeal the response.
 -14-

only responsive documents located were two pages of the requested

visitor log, which were being released in redacted version, in

accordance with FOIA exemption (b)(7)(C). See Summers Decl.,

Ex. 6. That letter also advised Brown that he could initiate an

administrative appeal of the BOP’s response within 60 days. Id.

Brown did not file an administrative appeal of the BOP’s

response. See Summers Decl. ¶ 20.

Brown “asserts that the [November 25, 2006] appeal was

proper, where defendants failed to answer the request within the

time allowed by the FOIA.” Pl.’s Suppl. at 2. Brown’s position

is untenable for two reasons. First, because he had originally

sent his request to an office of the BOP which did not accept

FOIA requests, he had not even initiated this FOIA request at the

time he sent his appeal letter on November 25, 2006. There can

be no appeal from an agency response or non-response before a

FOIA request has been initiated. Second, while the record in

this case does not establish that the BOP responded to Brown’s

FOIA request to the Director within the 20 business days

permitted by statute, the BOP did respond before this lawsuit was

filed. Therefore, Brown was required to exhaust his

administrative remedies by appealing the BOP’s response prior to

filing this civil action. See Oglesby v. Dep’t of Army, 920 F.2d

57, 65 (D.C. Cir. 1990) (concluding that “once the agency

responds to the FOIA request, the requester must exhaust his
 -15-

administrative remedies before seeking judicial review”);

Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir.

2003) (stating that “[i]f the agency responds to the request

after the twenty-day statutory window, but before the requester

files suit, the administrative exhaustion requirement still

applies”). On this record, there is no genuine dispute that

Brown did not submit an administrative appeal of the BOP’s

response to his FOIA request and therefore he did not exhaust his

administrative remedies. Accordingly, as with the Alexandria

Request, the motion to dismiss will be granted with respect to

this request directed to the BOP.

D. The Requests with Respect to “Federal Questions”

The record in this case does not contain any FOIA request

directed to any defendant in this action relating to what Brown

characterizes as “federal questions.” Therefore, exactly what

Brown requested, or whether it was a FOIA request for documents,

is unknown. The nature of Brown’s submissions in this case

suggests that he hoped to obtain a legal opinion. See Pl.’s

Opp’n at 4 (describing the two legal questions to which he seeks

a response); Pl.’s Suppl. at 2 (“Plaintiff requested the U.S.

Attorney General[’s] Office answer two Federal Questions. The

U.S. Attorney General[’s] Office did not answer either question.

Petition was filed to resolve the Questions.”).
 -16-

Brown’s pursuit of advisory legal opinions through a FOIA

request is misplaced. The FOIA requires an agency to “make

[requested] records promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). It does not require an agency to create

documents, to answer questions, or to provide legal opinions.

See Coolman v. IRS, 1999 WL 675319, *7 (W.D. Mo. July 12, 1999)

(finding that an agency is not required by the FOIA to answer

questions, conduct research, create records, or provide legal

opinions); accord Barber v. Office of Information and Privacy,

Civil Action No. 02-1748 (JDB), slip. op. at 4 (D.D.C. Sept. 4,

2003) (stating that the FOIA defendant “had no duty to conduct

research or to answer questions”). Thus, Brown has no right of

action under the FOIA for an agency’s non-response to his

“federal questions.” Accordingly, any claims Brown may have

intended with respect to the “federal questions” will be

dismissed for lack of subject matter jurisdiction.

E. The Vaughn Index

Brown requests a Vaughn index.4 See Pl.’s Opp’n at 5. A

FOIA plaintiff is not entitled to a Vaughn index. Rather, he is

entitled to an explanation of why information was redacted or

withheld, which may be conveyed in any number of ways.

[C]ourts have repeatedly held that it is the function
of a Vaughn index rather than its form that is
important, and a Vaughn index is satisfactory as long

4
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
 -17-

as it allows a court to conduct a meaningful de novo
review of the agency’s claim of an exemption. . . .
Thus, an agency does not have to provide an index per
se but can satisfy its burden by other means, such as
submitting the documents in question for an in camera
review or by providing a detailed affidavit or
declaration.

Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006) (citing

Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994)). A Vaughn

index is but one way to convey the required explanation of

withheld information.

Two of the three FOIA requests at issue here did not result

in any documents being released to Brown. Brown received only

two pages of documents, largely redacted, in response to the

other FOIA request at issue. The two released pages are

discussed in and appended to the Summers Declaration, which

provides an explanation and justification for redacting the

visitors’ names from the visitor log for October 17, 2006 at USP

Beaumont. See Summers Decl., ¶¶ 13-17 & Ex. 6. No more than

this is required, and Brown’s request for a Vaughn index under

these circumstances is without merit.

CONCLUSION

The plaintiff’s claims with respect to “federal questions”

will be dismissed for lack of subject matter jurisdiction. His

claims regarding the Alexandria and the BOP requests will be

dismissed for failure to exhaust administrative remedies.

Summary judgment will be entered for defendants on the remaining
 -18-

claim. The plaintiff’s motion for summary judgment will be

denied, and all other pending motions will be denied as moot. A

separate order accompanies this memorandum opinion.

SIGNED this 28th day of December, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge