Blakeney v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STEVEN BLAKENEY,

Plaintiff,
Civil Action No. 17-cv-2288 (BAH)
v.
Chief Judge Beryl A. Howell
FEDERAL BUREAU OF INVESTIGATION,
et al.

Defendants.

MEMORANDUM OPINION

The plaintiff, Steven Blakeney, is a federal prisoner who brings this action under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the Executive Office for United

States Attorneys (“EOUSA”) and the Federal Bureau of Investigation (“FBI”), seeking

information about himself and the criminal case resulting in his conviction, in the United States

District Court for the Eastern District of Missouri, see generally Compl., ECF No. 1; Suppl. to

Compl., ECF No. 1-2 (plaintiff’s letter, dated September 20, 2017, to EOUSA attaching his

FOIA request and related correspondence). After completing processing of responsive records,

defendant EOUSA has filed the pending Motion for Summary Judgment (“EOUSA’s MSJ”),

ECF No. 15. By contrast, defendant FBI made four productions of responsive records between

July and October 2018, but has withheld further releases over the last four months, until the

plaintiff fulfills his agreed-to obligation to pay “all unpaid money owed for previously released

material and pay [] for future anticipated processing.” Pl.’s Mot. for FBI to Produce a Vaughn

Index (“Pl.’s Mot. for Vaughn Index”) ¶ 15, ECF No. 31; FBI’s Consent Mot. for Enlargement

of Time (“FBI’s Consent Mot.”) at 1, ECF No. 33. Instead of fulfilling his payment obligations,

1
the plaintiff has filed the pending Motion for FBI to Produce a Vaughn Index, ECF No. 31.1 For

the reasons discussed below, EOUSA’s Motion for Summary Judgment is granted, the plaintiff’s

Motion for FBI to Produce a Vaughn Index is denied, and this case is dismissed.

I. BACKGROUND

The plaintiff submitted his FOIA request, dated April 11, 2017, to the “Department of

Justice’s FOIA/PA Mail Referral Unit” (“MRU”), seeking records, for the years 2010 through

2017, pertaining to himself and the federal criminal case resulting in his conviction in the Eastern

District of Missouri. EOUSA’s Statement of Material Facts (“EOUSA’s SMF”) ¶ 5, ECF No.

15. MRU notified the plaintiff of receipt of his request by letter and routed the plaintiff’s request

to EOUSA. Id. ¶ 6.

Upon receipt, EOUSA asked the U.S. Attorney’s Office for the Eastern District of

Missouri (“USAO-MOE”) to search for responsive records because USAO-MOE “was primarily

responsible for handling the prosecution of” the criminal case underlying the plaintiff’s FOIA

request. Id. ¶¶ 7–8. After conducting a search, USAO-MOE submitted to EOUSA all

“responsive, non-public records.” Id. ¶ 8.

EOUSA reviewed those records and sent the plaintiff “a final determination response,”

releasing 242 pages “in full,” 144 pages “with minor redactions,” and withholding 59 pages “in

full,” pursuant to FOIA Exemptions 5, 6, and 7(C). Id. ¶ 9. The plaintiff communicated no

objections to EOUSA after receiving EOUSA’s final determination. Id. ¶ 13. As a result,

EOUSA filed the pending motion for summary judgment, arguing that the case became moot

1
The plaintiff initially brought this action pro se, see Pro Se Order, ECF No. 3, but after EOUSA filed the
pending motion for summary judgment, the plaintiff retained counsel and is now represented, see Notice of
Appearance of Counsel, ECF No. 19 (noticing counsel’s appearance on behalf of the plaintiff); Pl.’s Resp. to
EOUSA’s MSJ (“Pl.’s Opp’n”) at 1, ECF No. 26 (plaintiff’s opposition to EOUSA’s motion for summary judgment
“by and through his attorney”).

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because the agency had produced all responsive, non-exempt records and received no objection

from the plaintiff, leaving no live dispute between the parties. EOUSA’s Mem. Supp. MSJ

(“EOUSA’s Mem.”) at 20, ECF No. 15. Despite his silence as to the sufficiency of EOUSA’s

handling of his FOIA request, the plaintiff opposed EOUSA’s motion with a short, four-page

opposition largely devoted to reciting the procedural history. See Pl.’s Opp’n at 1–2. EOUSA’s

motion for summary judgment is now ripe for resolution.

With respect to the FBI, the other defendant in this action, EOUSA informed the plaintiff

in the final determination that “additional records located in the USAO-MOE’s files originated

with the [FBI],” and those records “were referred” to the FBI “for review and direct response” to

the plaintiff. EOUSA’s SMF ¶ 9.2 The FBI subsequently identified “potentially responsive”

material, including 3,104 pages, 130 photographs, 15 videos, and 8 audio recordings, and agreed

to process and produce the responsive materials to the plaintiff at a rate of 500 pages per month.

FBI’s Notice to the Court at 1, ECF No. 13. After producing materials to the plaintiff, with

certain redactions, over the course of four months, the FBI stopped releasing material because

the plaintiff failed to pay the FBI’s processing fees for “previously released material” and

refused to prepay for future releases. FBI’s Consent Mot. at 1; FBI’s Status Report at 1, ECF

No. 35; Pl.’s Mot. for Vaughn Index ¶¶ 15, 16. The FBI conferred with the plaintiff’s counsel

and the parties reached the following agreement: “The parties have agreed that: 1) Plaintiff must

pay Defendant FBI all unpaid money owed for previously released material and pay Defendant

FBI for future anticipated processing 2) Once the payment is received, Defendant will resume

processing material at 500 pages a month as previously agreed upon.” FBI’s Consent Mot. at 1.

2
EOUSA also referred certain records to DOJ’s Civil Rights Division (“CRT”) for review and direct
response to the plaintiff, but the CRT records are not at issue here. See EOUSA’s SMF ¶ 9; Compl; EOUSA’s
Reply Supp. MSJ (“EOUSA’s Reply”) at 2, ECF No. 29.

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The FBI further agreed to continue releasing records “within 15 days of receiving payment by

Plaintiff,” id., and “in two installments” thereafter, “each 30 days after the prior release,” id. at 2.

Notwithstanding the parties’ agreement, the plaintiff has made no payments and instead

seeks an order compelling the FBI to produce a Vaughn Index for the materials that the FBI

disclosed. See Pl.’s Mot. for Vaughn Index ¶ 19; FBI’s Status Report at 1. Due to the plaintiff’s

failure to fulfill his obligations to pay the FBI for months, the Court addresses the plaintiff’s

pending motion and dismissal of the plaintiff’s FBI claim sua sponte.

II. LEGAL STANDARD

“The doctrine of administrative exhaustion applies to” FOIA cases “and limits the

availability of judicial review.” Elec. Privacy Info. Ctr. v. IRS, 910 F.3d 1232, 1238 (D.C. Cir.

2018). “Although exhaustion of a FOIA request is not jurisdictional,” this “jurisprudential

doctrine” precludes “judicial review if the purposes of exhaustion and the particular

administrative scheme support such a bar.” Id. (internal quotation marks and citations omitted).

When a FOIA plaintiff satisfies the exhaustion requirement, a federal agency must show

that it “disclose[d] information . . . upon reasonable request,” unless “the records at issue fall

within” FOIA’s “specifically delineated exemptions.” People for the Ethical Treatment of

Animals v. U.S. Dep’t of Health & Human Servs., 901 F.3d 343, 349 (D.C. Cir. 2018) (internal

quotation marks and citations omitted). A “strong presumption in favor of disclosure places the

burden on the agency to justify the withholding of any requested documents.” Id. An agency

may satisfy this burden through “affidavits or declarations that 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.” Id. Summary judgment may be

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granted to a federal agency when the agency sustains its burden by showing 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); see also Brayton v. Office of the U.S. Trade Representative, 641

F.3d 521, 527 (D.C. Cir. 2011) (“[T]he vast majority of FOIA cases can be resolved on summary

judgment . . . .”).

III. DISCUSSION

The pending motions by EOUSA for summary judgment and by the plaintiff for the FBI

to produce a Vaughn Index are addressed seriatim below.

A. EOUSA’s Motion for Summary Judgment

EOUSA sets out three grounds for the agency’s entitlement to summary judgment: (1) the

agency adequately searched in response to the plaintiff’s FOIA request; (2) the agency properly

withheld information, pursuant to FOIA Exemptions 5, 6, and 7(C), as demonstrated by

EOUSA’s supporting declaration and Vaughn index, see Decl. of Natasha Hudgins (“Hudgins

Decl.”), ECF No. 15-1; EOUSA’s Vaughn Index, ECF No. 15-2; and (3) the agency disclosed to

the plaintiff all reasonably segregable, non-exempt responsive information, see generally

EOUSA’s Mem.

In response, the plaintiff offers no challenge to EOUSA’s search and provides only five

brief paragraphs critical of EOUSA’s withholdings, but without any factual or legal analysis.

See Pl.’s Opp’n ¶¶ 9–13. Nevertheless, the plaintiff requests in camera review of certain

EOUSA withholdings. Id. ¶¶ 12–13. In light of the plaintiff’s cursory opposition, the only issue

presented is whether EOUSA has made a sufficient showing to obtain summary judgment. FED.

R. CIV. P. 56(a) (summary judgment is warranted only 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”); Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (explaining that
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“a motion for summary judgment cannot be conceded for want of opposition,” and the

nonmoving party’s “failure to oppose summary judgment does not shift” the moving party’s

burden (internal quotation marks and citation omitted)). As discussed below, EOUSA is entitled

to summary judgment.

1. EOUSA’s Search for Responsive Records Was Adequate

According to EOUSA, the agency conducted a good faith search, “reasonably calculated

to uncover all relevant documents.” EOUSA’s Mem. at 5 (internal quotation marks omitted)

(quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). An agency

may show the adequacy of its search by “setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such records exist)

were searched.” Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 402 (D.C. Cir.

2017) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Based on

the detailed description of EOUSA’s search, see EOUSA’s SMF ¶ 8, the Court finds that the

agency’s search was adequate, particularly in face of no objection raised by the plaintiff, see

generally Pl.’s Opp’n.

EOUSA searched for responsive records at USAO-MOE, the office “likely [to] have

responsive records” because that office was “primarily responsible” for prosecuting the criminal

case resulting in the plaintiff’s conviction. EOUSA’s SMF ¶ 8. EOUSA searched “for

electronic and hard copies of responsive material” held by USAO-MOE personnel, including “all

criminal AUSAs, civil AUSAs, and all support staff,” as well as the “criminal docket clerk, civil

docket clerk, the systems manager, and the assistant systems manager.” Id. EOUSA’s thorough

search targeted responsive records, applying “search terms and personal identifiers,” such as the

plaintiff’s name, “Steven Blakeney,” the criminal case number identified in the plaintiff’s FOIA

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request, and the plaintiff’s “date of birth and social security number.” Id. Accordingly, EOUSA

has adequately explained “in reasonable detail the scope and method of the search conducted,”

which “suffice[s] to demonstrate compliance with the obligations imposed by the FOIA.” Perry

v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).

2. EOUSA Properly Withheld Information Under FOIA’s Exemptions

EOUSA has minimally redacted 144 pages and withheld 59 pages in full, pursuant to

FOIA Exemptions 5, 6, and 7(C). See EOUSA’s Mem. at 9–18 (citing 5 U.S.C. §§ 552(b)(5),

(b)(6), (b)(7)(C)); EOUSA’s SMF ¶ 9. To justify these withholdings, EOUSA submitted a

declaration, see Hudgins Decl., and a Vaughn index, see EOUSA’s Vaughn Index.

The plaintiff’s sole response to EOUSA’s withholdings is a bald statement that he

“contest[s]” EOUSA’s “assertions” with respect to Exemptions 5, 6, and 7(C). See Pl.’s Opp’n

¶¶ 11–12 (“[P]laintiff does contest the [E]OUSA assertion as to all of those matters . . . covered

by medical, personal, and privacy exemptions,” as well as by “work product” and the

“deliberative process privilege.”).3 This “mere, unsubstantiated” claim is not sufficient to defeat

summary judgment, Durant v. D.C. Gov’t, 875 F.3d 685, 697 (D.C. Cir. 2017) (internal

quotation marks and citation omitted), leaving only the question of whether EOUSA provided

sufficient reasons for withholding of information pursuant to FOIA Exemptions 5, 6, and 7(C).

In FOIA cases, an agency must “demonstrate that the records have not been ‘improperly

withheld.’” Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 874 F.3d 287,

288 (D.C. Cir. 2017) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

An agency may carry its burden of showing an exemption was properly invoked by submitting

sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or

3
Confusingly, and without any explanation, the plaintiff also claims that he “does not contest” EOUSA’s
“assertions as to privacy concerns.” Pl.’s Opp’n ¶ 10.

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both, to demonstrate that the government has analyzed carefully any material withheld and

provided sufficient information as to the applicability of an exemption to enable the adversary

system to operate. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746

F.3d 1082, 1088 (D.C. Cir. 2014).

EOUSA has met its burden and properly withheld information pursuant to the FOIA’s

Exemptions 5, 6, and 7(c), each of which is addressed below.

a) Exemption 5

Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or

letters that would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). Two conditions must be met for a record to qualify for this

exemption: (1) the record’s “source must be a Government agency,” and (2) the record “must fall

within the ambit of a privilege against discovery under judicial standards that would govern

litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective

Ass’n, 532 U.S. 1, 8 (2001); see also Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d

677, 680 (D.C. Cir. 2008).

Exemption 5 may be used to withhold records subject to, inter alia, “the attorney work-

product privilege” and “the deliberative-process privilege.” Nat’l Ass’n of Criminal Def.

Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246, 249 (D.C. Cir.

2016) (citing Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)).

The attorney work-product privilege applies to “documents prepared in contemplation of

litigation,” providing “a working attorney with a ‘zone of privacy’ within which to think, plan,

weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories.” Coastal

States Gas Corp., 617 F.2d at 864. The deliberative process privilege “protects ‘documents

8
reflecting advisory opinions, recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated.’” Abtew v. U.S. Dep’t of Homeland

Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

150 (1975)).

Here, EOUSA appropriately relied on Exemption 5 to withhold “attorney work-product”

and records protected by the “deliberative process privilege.” EOUSA’s Mem. at 10. EOUSA’s

declarant averred that the information withheld under Exemption 5 includes “draft pleadings and

email communications” among “the AUSAs who were assigned to” the plaintiff’s criminal case,

and “attorneys from [CRT] who assisted in the investigation.” Hudgins Decl. ¶ 22. Withholding

of this material under Exemption 5 “protect[s] from disclosure the email communications among

the AUSAs analyzing the facts and evidence . . . to determine what charges to bring against

Plaintiff, which witnesses should be utilized by the government at each stage of the prosecution,”

and “the handling of” the plaintiff’s “appeal of his criminal conviction.” Id. ¶ 25. EOUSA’s

Vaughn index also includes descriptions of, and indicates the applicable privilege for, each

Exemption 5 record. EOUSA’s declaration and Vaughn Index, therefore, provide sufficient

justification for withholding under Exemption 5.

Without providing any basis for contesting EOUSA’s Exemption 5 withholdings, the

plaintiff requests in camera review of these records. See Pl.’s Opp’n ¶¶ 12–13. Documents may

be reviewed in camera when an “agency cannot describe the document fully enough to show that

it is exempt from disclosure without in the course of doing so disclosing the very information

that warrants exemption.” Simon v. Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir. 1992). In the

instant case, EOUSA submitted a declaration and a Vaughn index, demonstrating that the agency

properly applied Exemption 5 to withhold material, and, thus, an in camera review of the

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disputed records is not necessary. See Lam Lek Chong v. U.S. Drug Enf’t Admin., 929 F.2d 729,

735 (D.C. Cir. 1991) (affirming denial of in camera review where district court “ruled the DEA

index and . . . affidavits sufficient”).

b) Exemption 6

Exemption 6 protects “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(6). EOUSA asserts Exemption 6 in conjunction with the agency’s assertions of

Exemption 7(C) because both exemptions concern balancing “personal privacy” against the

public’s interest in disclosure. EOUSA’s Mem. at 16; see also EOUSA’s Reply at 1–2. In this

case, all responsive records withheld under Exemption 6 “were compiled for law enforcement

purposes,” and are “properly . . . withheld under Exemption 7(C),” as discussed infra in Section

III.A.2.c. Smith v. Sessions, 247 F. Supp. 3d 19, 26 (D.D.C. 2017) (citing Simon, 980 F.2d at

785, and Williams & Connolly LLP v. Office of the Comptroller of the Currency, 39 F. Supp. 3d

82, 89 (D.D.C. 2014)). Thus, “the Court need not consider whether Exemption 6 applies to the

same information.” Id.

c) Exemption 7(C)

Exemption 7(C) authorizes an agency to withhold law enforcement records if disclosure

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,

an individual’s interest in privacy must be balanced against the public interest in disclosure. See

ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy interest at stake

belongs to the individual, not the government agency, see U.S. Dep’t of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 763–65 (1989), and an individual has “a strong

10
interest in not being associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737

F.2d 84, 91–92 (D.C. Cir. 1984). “[T]he only public interest relevant for purposes of Exemption

7(C) is one that focuses on ‘the citizens’ right to be informed about what their government is up

to.’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters

Comm., 489 U.S. at 773). The FOIA requester is obliged to articulate a public interest sufficient

to outweigh an individual’s privacy interest, and the public interest must be significant. Nat’l

Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 175 (2004) (explaining that the

requester must make a “meaningful evidentiary showing” of a public interest “to balance against

the cognizable privacy interests in the requested records”).

In the instant case, EOUSA asserts Exemption 7(C) “to protect the names and identifying

information relating to third parties” and to “telephone numbers, government attorneys and

government personnel involved in the investigation” of the plaintiff, as well as “additional

personal and confidential information.” Hudgins Decl. ¶ 19. EOUSA’s declarant explained that

disclosure of this information may “subject individuals to an unwarranted invasion of their

personal privacy by leading efforts to contact them directly, gain access to their personal or

financial information, or subject them to harassment or harm,” might “lead to retaliation against

those individuals identified as being connected in some way to [the] investigation,” and could

“unfairly cause damage to those individuals’ careers and reputations.” Id. In addition,

EOUSA’s Vaughn Index indicates the privacy interests implicated by each of the records

withheld under Exemption 7(C). See generally EOUSA’s Vaughn Index.

The plaintiff has identified no public interest in the records withheld under Exemption

7(C). See generally Pl.’s Opp’n. Indeed, EOUSA’s declarant averred that disclosure of the

information withheld under Exemption 7(C) “would provide little or no information regarding

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the government’s performance of its duties,” and thus, “no public interest would counterbalance

the individuals’ privacy right in the information withheld under this exemption.” Hudgins Decl.

¶ 19. “Absent a showing by the plaintiff of a public interest to outweigh” the privacy interests at

stake, EOUSA’s decision to withhold information under Exemption 7(C) is appropriate. Ford v.

Dep’t of Justice, 208 F. Supp. 3d 237, 251 (D.D.C. 2016); see also Nat’l Ass’n of Retired Fed.

Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) (“We have been shown no public interest

[and] need not linger over the balance; something, even a modest privacy interest, outweighs

nothing every time.”).

3. EOUSA Satisfied the Segregability Requirement

Finally, EOUSA argues that FOIA’s segregability requirement has been satisfied. See

EOUSA’s Mem. at 18–19. “The FOIA requires that ‘[a]ny reasonably segregable portion of a

record shall be provided to any person requesting such record after deletion of the portions which

are exempt.’” Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007) (alteration in original)

(quoting 5 U.S.C. § 552(b)). An agency may satisfy this segregability obligation by describing

the materials withheld, the exemption under which they were withheld, and a declaration

attesting that the agency “released all segregable material.” Loving v. Dep’t of Def., 550 F.3d 32,

41 (D.C. Cir. 2008). Notably, “[a]gencies are entitled to a presumption that they complied with

the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494

F.3d 1106, 1117 (D.C. Cir. 2007).

Here, EOUSA fully described the withheld materials and the applicable exemptions in

both the Vaughn Index and a declaration. Specifically, EOUSA’s declarant averred that

“[d]uring the processing of [the plaintiff’s] request, each page was individually examined line

by-line . . . to identify non-exempt information which could be reasonably segregated and

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released,” and that EOUSA has provided the plaintiff with “all non-exempt [records] responsive

to his FOIA request.” Hudgins Decl. ¶¶ 27–28. The plaintiff does not address segregability,

offering no reason to rebut the “presumption that [the agency] complied with the obligation to

disclose reasonably segregable material.” Sussman, 494 F.3d at 1117. Based on EOUSA’s

Vaughn Index and declaration, EOUSA has demonstrated that all reasonably segregable material

has been produced. See Poitras v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 163 (D.D.C.

2018) (finding sufficient to meet the segregability requirement an agency’s Vaughn indices and

declarations that the withheld “responsive documents were reviewed on a line-by-line basis and

that no further segregation would be possible”).

B. The Plaintiff’s Motion for FBI to Produce a Vaughn Index

The plaintiff has failed to pay the FBI’s FOIA processing fees for months, preventing the

agency from completing the processing of his FOIA request and leaving this case in limbo on

this Court’s docket. See FBI’s Consent Mot. at 1; FBI’s Status Report at 1; see also Pl.’s Letter

(June 14, 2018), ECF No. 18 (demanding the processing of responsive records without payment

of fees). This failure to pay comes on the heels of the parties’ agreement that the plaintiff would

fulfill his payment obligations before any further releases by the FBI were made. See generally

FBI’s Consent Mot. In addition, the plaintiff has shirked his responsibilities to this Court. The

Court ordered the parties to file a joint status report on the plaintiff’s payments to the FBI by

February 1, 2019, see Min. Order (Dec. 21, 2018); Min. Order (Jan. 22, 2019), but the plaintiff

failed to file any update. Instead, the FBI alone notified the Court that the plaintiff still had not

paid the FBI’s processing fees, and as a result, the agency “suspended all production releases.”

FBI’s Status Report at 1.

Despite the plaintiff’s failure to pursue his FOIA request before the FBI and to comply

with his obligations, he asks that the FBI be ordered to produce a Vaughn Index, presumably for
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the materials already released without payment. Pl.’s Mot. for Vaughn Index ¶ 19. In view of

the plaintiff’s apparent disinterest in following through with his FOIA claim against the FBI, the

Court addresses, sua sponte, dismissal of the plaintiff’s claim for failure to exhaust his

administrative remedies.

“Exhaustion of administrative remedies is generally required before” a FOIA requester

may “seek[] judicial review.” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Exhaustion is

not a jurisdictional requirement, Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003), but

instead is a prudential consideration, Wilbur, 355 F.3d at 677. In FOIA cases, exhaustion “does

not occur until the required fees are paid or an appeal is taken from the refusal to waive fees.”

Oglesby, 920 F.2d at 66. For example, an agency “may require advance payment of any fee [if]

the requester has previously failed to pay fees in a timely fashion[.]” 5 U.S.C. § 552(a)(4)(A)(v);

see also 28 C.F.R. § 16.10(i)(3) (DOJ regulation explaining that for its components, such as the

FBI, “[w]here a requester has previously failed to pay a properly charged FOIA fee . . . a

component may require that the requester pay the full amount due” and “may require that the

requester make an advance payment of the full amount of any anticipated fee before the

component . . . continues to process a pending request or any pending appeal”). If the requester

does not pay or appeal a fee waiver denial, “his claim is subject to dismissal” for failure to

exhaust. Otero v. Dep’t of Justice, 292 F. Supp. 3d 245, 253 (D.D.C. 2018); see also Marcusse

v. U.S. Dep’t of Justice Office of Info. Policy, 959 F. Supp. 2d 130, 141–42 (D.D.C. 2013).

Here, “the FBI is entitled to refuse to perform any additional work on the plaintiff’s

FOIA request because he ha[s] not paid” amounts due on previous releases, and he continues to

ignore the FBI’s requirement that he must prepay for any additional releases. Otero, 292 F.

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Supp. 3d at 253. The plaintiff has not exhausted his administrative remedies, and he “is not

entitled to avoid his fee obligations by filing a lawsuit.” Id.

The remaining question is whether sua sponte dismissal on non-exhaustion grounds is

warranted. Non-exhaustion may be considered “sua sponte” if “the policies underlying the

exhaustion requirement would be served by applying the principle,” such as when permitting a

claim to proceed “would be both contrary to orderly procedure and good administration,” and

unfair “to decide” because “the [agency] never had a fair opportunity to resolve [the claim] prior

to being ushered into litigation.” Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476 n.8

(D.C. Cir. 1986) (internal quotation marks and citation omitted).

Permitting the plaintiff’s claim against the FBI to go forward is both “contrary to orderly

procedure and good administration,” and “unfair” to the FBI. See id. The plaintiff’s

nonpayment, for months, has frozen the FBI’s ability make progress on his FOIA claim, and the

case will continue to sit idly on the Court’s docket until whatever time the plaintiff decides to

pay the FBI, should he choose to pay. Moreover, by withholding payment from the FBI and

simultaneously litigating here, the plaintiff asks for judicial intervention prematurely since the

FBI’s response to the plaintiff’s FOIA request cannot be fully assessed until the agency has “a

fair opportunity to resolve” the plaintiff’s FOIA issues “prior to being ushered into litigation.”

Id. Accordingly, the plaintiff’s claim against the FBI is dismissed, without prejudice, sua sponte.

Indeed, “if exhaustion of remedies is to have meaning, it surely must bar review of” the

plaintiff’s claim against the FBI here. Id. at 1477. This dismissal of the plaintiff’s claim against

the FBI renders moot the plaintiff’s Motion for FBI to Produce a Vaughn Index.

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IV. CONCLUSION

For the foregoing reasons, EOUSA’s Motion for Summary Judgment, ECF No. 15, is

granted; the plaintiff’s Motion for FBI to Produce a Vaughn Index, ECF No. 31, is denied; and

the plaintiff’s claim against the FBI is dismissed, without prejudice. The Clerk of the Court is

directed to close this case. An appropriate Order accompanies this Memorandum Opinion.

Date: February 5, 2019

__________________________
BERYL A. HOWELL
Chief Judge

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