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