OPINION AND ORDER
MICHAEL B. MUKASEY, U.S.D.J.
Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1988), challenging agency denials of FOIA and fee waiver requests. Defendant moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, respectively. Both parties also cross-move for summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons set forth below, part of defendant's motion to dismiss for lack of subject matter jurisdiction, and part of its motion for summary judgment, are granted, and the complaint is dismissed.
Plaintiff is an author under contract with Doubleday to publish a book about Abbie Hoffman, a political activist during the 1960s. (Complaint Ex. 1) He requested information about Hoffman from the FBI and the Executive Office for United States Attorneys (EOUSA) pursuant to the Freedom of Information Act. (Complaint PP 5, 14, 19, 24, 29, 34, 38, 42, 47, 52)
On March 10, 1990 plaintiff submitted a request pursuant to FOIA to FBI metropolitan field offices located in Albany, Boston, Chicago, Jackson, New York City, Newark, Philadelphia, San Francisco, and Washington. (Def. Mem. Ex. B-1, C-1, D-1, E-1, F-1, G-1, H-1, I-1, J-1) As a representative of the news media, plaintiff asked for a waiver of search and duplication fees in excess of $ 50.00 per request because the information sought was "likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in his commercial interest." (Id.) Plaintiff also sought expedited treatment of his requests because he faced publishing deadlines. (Id.)
Plaintiff requested information that was kept in records maintained at FBI headquarters and the various field offices. FBI headquarters denied plaintiff's fee waiver request for 7,501 previously processed pages because the Hoffman records had been "previously processed under FOIA" and released to Hoffman, who was an author who "had the ability to put [the information] in the public domain." The FBI asserted that "additional disclosure of the same information [which is readily available in the public reading room] will not add to the public's understanding." (Def. Mem. Ex. K-1) Plaintiff appealed the FBI denial on December 18, 1990. The Department of Justice's Office of Information and Privacy ("OIP") denied that appeal on December 18, 1990, reasoning that the release of the previously processed information would not contribute significantly to public understanding of government operations because the information was already in the public domain. (Bolthouse Decl. Ex. K-4). In addition to the release of the information to Hoffman himself, OIP wrote that:
a portion of the Hoffman material has been released to a well-known syndicated columnist. Release of this same information to [plaintiff] would not contribute to public understanding of government operations or activities as nothing new would be added to the public record. Furthermore, the previously processed records on Mr. Hoffman are available for inspection in the public reading room at the Federal Bureau of Investigation in Washington, D.C., from where it has been widely distributed.
Various FBI field offices recovered the Hoffman records and notified plaintiff that those records were forwarded to FBI headquarters ("headquarters") and would be processed after headquarters properly assessed, and plaintiff paid, the search and duplication fees. Headquarters also denied plaintiff's fee waiver request for the field office records because those records substantially duplicated the information contained in the previously processed package which was already in the public domain. (Complaint Ex. 33, FBI letter Feb. 18, 1992, and Bolthouse Decl. PP 8-9, 31, 32) Finally, the FBI notified plaintiff that the records would not be processed until he notified headquarters that he would pay approximately $ 2,900 for the estimated 29,000 pages of documents. (Pl. Mem. at 5) Plaintiff appealed the denial of his fee waiver request, challenging the FBI assertion that the field office records were largely the same as the previously processed package. (Def. Mem. K-6, Sloman letter March 14, 1992) The OIP affirmed the FBI decision on May 14, 1992. (Bolthouse Decl. Ex. K-4)
Plaintiff submitted his FOIA request to EOUSA on March 12, 1990. (Complaint Ex. 1) EOUSA acknowledged receipt of plaintiff's request, requested more information regarding which offices plaintiff thought maintained the Hoffman files, and advised him that the request would be addressed when reached for processing and that each request is handled in the order received. (Complaint Ex. 2, EOUSA letter March 22, 1990) Within days, EOUSA granted plaintiff's expedited treatment and fee waiver requests. (Complaint Ex. 4, EOUSA letter March 27, 1990) Although EOUSA supplied IS pages of various documents, five of which were partially redacted, defendant denied plaintiff access to many records pursuant to 5 U.S.C. 552(b)(6) and (7)(c) because release of these records would constitute an invasion of Hoffman's privacy, and 5 U.S.C. 552a(j)(2) because they were compiled in the course of a law enforcement investigation. (Complaint Ex. 6; Boseker Supp. Decl. P 2(B)) Defendant also advised plaintiff that records from the Northern District of Illinois had been destroyed, and that no records were found in nine other offices. (Complaint Ex. 6, EOUSA letter Sept. 12, 1990) By letter dated September 12, EOUSA notified plaintiff that its decisions were final and that he could appeal the decision. Plaintiff did not appeal. (Boseker Decl. P 5) Thereafter, plaintiff filed the complaint in this action, appealing the FBI and EOUSA decisions.
Defendant moves to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), because plaintiff failed to exhaust administrative remedies before seeking judicial review. "The court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Insurance Guaranty Assn., 896 F.2d 674, 678 (2d Cir. 1990), (quoting 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1350, p. 548 (1969)).
Exhaustion of the prescribed administrative remedy is required in FOIA cases. Dettmann v. U.S. Dept. of Justice, 256 U.S. App. D.C. 78, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986). Requiring litigants to exhaust their administrative remedies insures that there is no premature interruption of the administrative process and that the administrative agency involved has an opportunity to correct its own errors. McKart v. United States, 395 U.S. 185, 193-94, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969), cited in McLaughlin v. NASD, 733 F. Supp. 694, 696 (S.D.N.Y. 1990).
FOIA specifically provides for an administrative appeal process following an agency's denial of a FOIA request. An agency must
determine within ten days after the receipt of [a FOIA] request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefore, and of the right of such person to appeal to the head of the agency any adverse determination . . . .