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June 29, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


I. Factual Background

On October 29, 1996, Thomas Eison, a pro se plaintiff, submitted a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request to the Long Island Field Office of the FBI, seeking information regarding his arrest for first degree robbery. See Declaration of Scott A. Hodes ("Hodes Dec."), Freedom of Information-Privacy Acts Section attorney-advisor for the FBI, Ex. A. The FBI acknowledged receipt of plaintiff's request in a letter dated November 21, 1996, which informed Eison that while the FBI had initiated a search for responsive material, there would be a considerable delay due to the high volume of requests made to that office. Id. Ex. B.

In a letter dated February 3, 1997, the FBI informed plaintiff that approximately 900 pages of documents had been identified as responsive to his request, and informed Eison that the duplication charges would cost approximately $80. Id. Ex. F. On February 10, Eison replied that he accepted this cost estimate. Id. Ex. G. After several subsequent letters from Eison to the FBI inquiring as to the status of his request, the FBI sent Eison a letter on June 20, 1997, which indicated that due to a lack of resources and a tremendous volume of requests, the FBI was extremely backlogged in FOIA responses. Id. Ex. K. Eison was given no estimated date by which his request would be completed. Id. Ex. L. A similar letter was sent to Eison on August 26. In a letter dated September 30, plaintiff again wrote to the FBI stressing his need for the materials in order to timely appeal his conviction. Id. Ex. M.

By letter dated April 29, 1998, plaintiff filed a Notice of Appeal with the Office of Information and Privacy ("OIP") and the Justice Department, asserting that the FBI's delay in responding to his request was a constructive denial. Id. Ex. Q. On May 20, the OIP sent plaintiff a letter instructing him to consider that letter, "as a denial of your appeal," and informing him that he could bring any further actions concerning this matter in "an appropriate federal court." Id. Ex. R.

On July 16, 1998, plaintiff filed a Notice of Motion for a Preliminary Injunction with an accompanying Affidavit and Memorandum of Law. On October 29, 1998, this Court denied that motion. See Eison v. Kallstrom et. al., 98 Civ. 6277(SAS) (S.D.N.Y. October, 29, 1998). In light of Plaintiff's pro se status, the Court construed plaintiff's Memorandum of Law as a complaint and ordered plaintiff to serve his Complaint by January 15, 1999. On December 15, 1998, plaintiff served his Complaint alleging that the FBI demonstrated a "pattern and practice" of delaying plaintiff's FOIA request, and sought injunctive relief requiring the FBI to provide an expedited response.

On December 28, 1998, the FBI sent plaintiff a letter informing him that 249 pages of his request were available for release. See Hodes Dec. Ex. S. The documents were sent with a Form 4-694 dated January 27, 1999. This form explained that only 235*fn1 of 971 pages were being released and indicated that the remaining pages were being withheld due to provisions in 5 U.S.C. § 552(b)(2), (b)(3), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E), and 5 U.S.C. § 552a (j)(2). Id. Ex. U. No specific explanations were provided beyond checkmarks on the form which indicated these sub-sections.

By letter dated March 8, 1999, plaintiff informed the FBI that he intended to appeal the FBI's decision due to the withholding of the bulk of his requested documents and the inadequate explanation for that determination. See Supplemental Declaration of Scott A. Hodes Ex. A. Eison received a response dated April 28, 1999, from an OIP FOIA Specialist who informed him that his appeal was received on March 17, 1999, but that due to a backlog of pending appeals, there would again be a delay in processing his request. Id. Ex. B.

On May 19, 1999, defendants brought these motions for dismissal, or in the alternative, summary judgement, pursuant to Federal Rules of Civil Procedure ("Fed. R Civ. P.") 12(b)(1), 12(b)(6), and 56. Eison responded with a Memorandum in Opposition expressing his desire to amend his initial Complaint. Eison seeks to replace his now moot request for timely compliance with his FOIA request with a petition that the Court instruct the FBI to release the aforementioned withheld documents.

II. Discussion

Defendants make three arguments in support of their motions. First, defendants claim that Eison has sued individual federal officials, while FOIA only permits suits against agencies. Second, defendants argue that the Complaint should be dismissed as moot because it sought injunctive relief expediting the FBI's response to plaintiff's FOIA request, which was no longer necessary in view of the production of the documents. Finally, defendants assert that this Court lacks subject matter jurisdiction as plaintiff has failed to exhaust his administrative remedies.

A. FOIA Only Permits Suits Against Agencies

Defendants argue that Kallstrom, Roth, and O'Brien must be dismissed as defendants under Rules 12(b)(1) and 12(b)(6) on the ground that FOIA only authorizes suits against federal agencies and not individuals. Defendants are correct. See Mamarella v. County of Westchester, 898 F. Supp. 236, 238 (S.D.N.Y. 1995) ("Nor can Pirro individually be required to comply with his request under the FOIA or the Privacy Act because the plain language of both acts provides that only `agencies' are subject to the FOIA and the Privacy Act. It follows that the statutes do not create a cause of action against individuals."). Plaintiff has ...

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