UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
JOHN DASTA, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1034 (EGS)
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HARLEY G. LAPPIN, Director, )
Federal Bureau of Prisons, )
)
Defendant. )
___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on the parties’ cross-motions for summary judgment. For
the reasons discussed below, the Court will grant summary judgment for defendant.
I. BACKGROUND
Plaintiff, a federal prisoner, submitted to the Director of the Federal Bureau of Prisons
(“BOP”) a request under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, for the
following information:
1. ADDENDUM TO THE FOOD POLICY 4700.05 FOR THE CHOICES OF
MENUS EITHER 1, 2, OR 3 FOR THE NATIONAL FOOD SERVING
THAT BEGAN JAN. 06, 08
2. THE MEMO TO FCI ELKTON EXPLAINING HOW TO CHOOSE
MENUS 1, 2 OR 3 FOR THE NATIONAL FOOD SERVING THAT
STARTED JAN. 06, 08.
Pl.’s Cross-Mot. for Summ. J., Ex. 1 (January 24, 2008 Freedom of Information/Privacy Act
Request) (capital letters in original); see Compl. ¶ 1. According to plaintiff, as of the filing of
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his complaint in June 2008, he “ha[d] not had a response from [BOP]” to his request. Compl. ¶
6. In this action, which the Court construes as a civil action against the BOP under the FOIA, see
5 U.S.C. § 552(a)(4)(B), plaintiff has demanded a declaratory judgment, an order directing the
BOP to produce the requested records, and reimbursement of costs incurred in this action.1 Id. ¶
9.
The BOP received plaintiff’s FOIA request on February 6, 2008, and assigned it FOIA
Request No. 08-03833. Def.’s Mem. of P. & A. (“Def.’s Mot.”), Declaration of Monica Potter-
Johnson (“Potter-Johnson Decl.”) ¶ 3 & Ex. A. Although BOP staff identified no addenda to
Program Statement 4700.05, Food Service Manual, the current version of which is dated June 12,
2006, staff located a “memorandum titled National Menu Implementation Procedures,” a copy of
which had been “forwarded to all Wardens.” Potter-Johnson Decl. ¶ 4-5. On June 24, 2008,
BOP sent plaintiff “a copy of the memorandum titled National Menu Implementation
Procedures.” Id. ¶ 6.
II. DISCUSSION
The BOP moves for summary judgment on the ground that it already has released
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The proper defendant to a FOIA action is the federal government agency, not
its Director. See 5 U.S.C. § 552(a)(4)(B) (granting a federal district court
“jurisdiction to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant)
(emphasis added). Accordingly, the Court will dismiss Harley Lappin as a party
defendant. See, e.g., Prison Legal News v. Lappin, 436 F. Supp. 2d 17, 22 (D.D.C.
2006) (concluding that “the BOP, despite its status as a component agency of the
DOJ, is a proper defendant in this FOIA action”); Whittle v. Moschella, 756 F. Supp.
589, 596 (D.D.C. 1991) (citing Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987))
(holding that the Court’s jurisdiction is “limited to enjoining agency noncompliance,
§ 552(a)(4)(B), and consequently no [FOIA] claim may be asserted . . . against
individual federal officials”)
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unredacted copies of the requested records, rendering the case moot. See Def.’s Mot. at 5-6.
Plaintiff counters that he is entitled to summary judgment because the BOP failed to
acknowledge receipt of and respond to his requests timely in accordance with 5 U.S.C.
§552(a)(6)(A)(i). See Pl.’s Cross-Mot. for Summ. J. at 2-3. Only after he filed this civil action
did the BOP release the requested records. Id. at 3. For this reason, plaintiff demands an award
of costs to cover the portion of the court’s filing fee paid to date and photocopies. Id.
A. Summary Judgment Standard
The Court may grant a motion for summary judgment if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits or declarations, show
that there is no genuine issue of material fact and that the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless
the opposing party submits his own affidavits or declarations or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
In a FOIA case, the Court may grant summary judgment based on the information
provided in affidavits or declarations when the affidavits or declarations describe “the documents
and 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 Hertzberg v. Veneman, 273
F.Supp.2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded “a presumption of
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good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency,
692 F.2d 770, 771 (D.C. Cir. 1981)).
B. The BOP’s Compliance with the FOIA
Under the FOIA, federal jurisdiction is dependent upon a showing that the agency has
withheld agency records improperly. See 5 U.S.C. § 552(a)(4)(B) (stating that the district court
“has jurisdiction to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant”); Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). “Once the records are
produced[,] the substance of the controversy disappears and becomes moot since the disclosure
which the suit seeks has already been made.” Crooker v. United States State Dep’t, 628 F.2d 9,
10 (D.C. Cir. 1980) (per curiam).
Here, defendant establishes that the BOP has released in full the records plaintiff
requested. Absent any showing by plaintiff to the contrary, this matter is moot. See, e.g., Isasi v.
Office of Attorney General, 594 F. Supp. 2d 12, 14 (D.D.C. 2009) (dismissing a FOIA action as
moot where there was no dispute that the requested records had been released without any
redactions); West v. Spellings, 539 F. Supp. 2d 55, 61 (D.D.C. 2008) (dismissing Count I of the
Complaint as moot “because [the agency] released the records requested”). “[H]owever fitful or
delayed the release of information under the FOIA may be, once all requested records are
surrendered, federal courts have no further statutory function to perform.” Perry v. Block, 684
F.2d 121, 125 (D.C. Cir. 1982).
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C. Plaintiff’s Demand for Costs
Release of the requested records does not resolve the matter of plaintiff’s demand for
costs. The Court may “assess against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case . . . in which the [plaintiff] has substantially
prevailed.” ” 5 U.S.C. § 552(a)(4)(E)(i). A plaintiff substantially prevails if he “has obtained
relief through either . . . a judicial order, or an enforceable written agreement or consent decree[,]
or . . . a voluntary or unilateral change in position by the agency, if the complainant’s claim is not
insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). The decision to award attorneys’ fees and costs is
left to the Court’s discretion. See Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 705-
06 (D.C. Cir. 1977) (commenting that the Section 552(a)(4)(E) “contemplates a reasoned
exercise of the courts’ discretion taking into account all relevant factors”). In making this
decision, the Court considers “(1) the public benefit derived from the case; (2) the commercial
benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the
reasonableness of the agency’s withholding of the requested documents.” Davy v. Central
Intelligence Agency, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations omitted). “No one factor is
dispositive, although the [C]ourt will not assess fees when the agency has demonstrated that it
had a lawful right to withhold disclosure.” Id.
The BOP does not dispute plaintiff’s assertion that it failed to “determine within 20 days .
. . after the receipt of [plaintiff’s] request whether to comply with such request and . . .
immediately notify [plaintiff] . . . of such determination and the reasons therefore.” 5 U.S.C.
§552(a)(6)(A)(i). Its supporting declaration does not explain the delay between its receipt of
plaintiff’s request and its release of the requested information, and the Court cannot determine on
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this record whether the BOP’s actions were reasonable. It appears that the BOP released the
requested records only after plaintiff filed this action, and plaintiff thus demonstrates that he
“obtained relief through . . . a voluntary or unilateral change in position by the agency.” 5 U.S.C.
§ 552(a)(4)(E)(ii). The flaw in plaintiff’s position, however, is its failure to show that his “claim
is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).
Plaintiff’s interest in and intended use of the information appears to be personal. This is
not a case where the public derives some benefit from plaintiff’s claim or the BOP’s release of
the information plaintiff requested. See Davy v. Central Intelligence Agency, 550 F.3d at 1159
(finding that the public benefit derived from the plaintiff’s FOIA request and subsequent
litigation, which “were intended to compel disclosure of information relating to the activities of
[the CIA] in relation to a significant historical event,” was a factor favoring the plaintiff’s request
for fees and costs); Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F. Supp. 2d 159, 172-74
(D.D.C. 2008) (finding that not-for-profit organization’s claim was substantial, because it
“attempted to expose the precise connection between three high-ranking elected officials and real
estate developer [as such information] surely would aide individuals in making” a political
choice” and because its “sole goal . . . was to investigate potential official misconduct”). The
Court concludes that an award of costs in this case is not warranted.
III. CONCLUSION
The Court concludes that the BOP has fulfilled its obligations under the FOIA by
releasing all of the information plaintiff requested. In addition, the Court concludes that
plaintiff’s claim is insubstantial and denies his demand for costs. Accordingly, the Court grants
defendant’s motion for summary judgment and denies plaintiff’s motion for summary judgment.
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An Order accompanies this Memorandum Opinion.
Signed: EMMET G. SULLIVAN
United States District Judge
Dated: September 25, 2009
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