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Sussman v. United States Dep't of Justice

September 30, 2006

MICHAEL SUSSMAN, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF TRANSPORTATION; TRANSPORTATION SECURITY ADMINISTRATION; UNITED STATES POSTAL SERVICE; UNITED STATES SECRET SERVICE; INTERNAL REVENUE SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

INTRODUCTION

This case arises out of Plaintiff's Freedom of Information Act ("FOIA") and Privacy Act ("PA") requests for all investigative and collection records pertaining to or naming him, made upon various federal agencies (collectively, "government" or "Defendants"). Plaintiff alleges various failures to comply with requests, bringing claims against the United States Department of Justice ("DOJ") in Counts 1-56 and 71; the United States Department of Transportation ("DOT") in Counts 57-60; the Transportation Security Administration ("TSA") in Counts 61-64; the United States Postal Service ("USPS") in Counts 65-66; the United States Secret Service ("USSS") in Counts 67-68; and the Internal Revenue Service ("IRS") in Counts 69-70. In all, Plaintiff brought seventy-one different claims requesting equitable relief. Both parties have moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth herein, the Court grants in part and denies in part Defendants' motion, and grants in part and denies in part Plaintiff's motion.

BACKGROUND

From July 2002 through June 2003, Plaintiff wrote letters to various federal agencies requesting records pursuant to the FOIA and the Privacy Act. Specifically, Plaintiff sent thirty-five letters seeking agency records about himself under the FOIA/PA, four FOIA/PA requests for seven categories of documents and information relating to "No Fly" or "Selectee" lists, i.e. watch lists, three FOIA/PA requests for results of searches of specific databases, and, finally, two FOIA requests for agency records to the DOJ Bureau of Prisons ("BOP"). Because of the number of requests at issue, the Court will not detail the contents of each, but rather will discuss the contents of individual requests as necessary for the below analysis.

Plaintiff brought FOIA and Privacy Act claims with regard to each of these requests, save the request to the BOP (Count 71), which only garnered a claim under the FOIA. Plaintiff filed suit on June 23, 2003. Defendants filed their Answer on December 4, 2003. Defendants then moved for summary judgment on July 16, 2004, and Plaintiff filed a cross-motion for summary judgment on August 16, 2004. On March 31, 2005, this Court issued an order requesting supplemental briefing on four issues. The parties provided the requested briefing.

STANDARD

In FOIA/PA cases, summary judgment is recognized as the primary mechanism by which a district court will resolve the issues presented. See Misciavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified."). A moving party is entitled to summary judgment if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To prevail at the summary judgment stage in a FOIA and Privacy Act case, a defending agency must demonstrate that its search for the requested material was adequate and that any withheld material is exempt from disclosure. See Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994).

DISCUSSION

At issue are thirty-five FOIA/PA requests, and one FOIA request by Plaintiff. Each of the FOIA/PA requests resulted in two legal claims: one under the FOIA and one under the Privacy Act. The government moves for summary judgment as to all seventy-one claims pursuant to a number of theories. First, Defendants argue that the majority of Plaintiff's claims fail for procedural reasons, i.e., Plaintiff failed to exhaust his administrative remedies. Defendants argue that other claims fail for substantive reasons, i.e., the agency did not have the records requested, the agency released all of the records requested, or the requests were inadequate. Finally, Defendants argue that the remaining claims fail because the requested documents were statutorily exempt from release. Plaintiff contests each of these arguments.

One thing to keep in mind while reading the below analysis is that each of the letters consisted of a number of different requests. When a request fails for procedural reasons, the entire request fails. When considering the substantive validity of a request, however, the outcome sometimes depends on the specific request. Therefore, a given letter may contain multiple requests that fail for different reasons.

After briefly surveying the legal landscape of the FOIA and Privacy Act, the Court will address the Government's motion for summary judgment. The Court will then address any remaining claims pursuant to Plaintiff's counter-motion for summary judgment.

I. The Statutes

The FOIA allows persons to request any public records subject to disclosure. See 5 U.S.C. § 552(a)(3). The Privacy Act allows persons to request records pertaining specifically to them. See 5 U.S.C. § 552a(d)(1). Both allow persons to bring suit in federal district court to challenge an agency refusal to disclose. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a(g)(1)(B).

"FOIA was enacted in order to promote honest and open government and to assure the existence of an informed citizenry in order to hold the governors accountable to the governed." National Council of La Raza v. Department of Justice, 411 F.3d 350, 355-56 (2d Cir. 2005) (citations and quotation marks omitted). FOIA strongly favors a policy of disclosure, and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act. See La Raza, 411 F.3d at 355; see also 5 U.S.C. § 552(a)(3), (b)(1)-(9). Thus, "[u]pon request, FOIA mandates disclosure of records held by a federal agency unless the documents fall within enumerated exemptions." Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7 (2001) (internal citations omitted); Tigue v. United States Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002). The Supreme Court has counseled that these exceptions are to be interpreted narrowly in the face of the overriding legislative intention to make records public. See Klamath, 532 U.S. at 7-8.

"[I]n order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary . . . to regulate the collection, maintenance, use, and dissemination of information by such agencies." 5 U.S.C. § 552a(5) (quoted in Doe v. Chao, 540 U.S. 614, 618 (2004)). Accordingly, Congress passed the Privacy Act. The relevant provision of the Privacy Act is 5 U.S.C. § 552a(d)(1), which provides that "[e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him . . . ." The Act defines "system of records" as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C.A. § 552a(a)(5); see also Bechhoefer v. United States Dep't of Justice, 312 F.3d 563, 566 (2d Cir. 2002). "[T]he prescriptions of the Act do not come into play whenever a document falls into the possession of an employee of a covered agency. It is only when the document becomes incorporated into a record-keeping system under the agency's control that the Act's prescriptions apply." Bechhoefer, 312 F.3d at 566.

Unlike the FOIA, an information access law, the Privacy Act is an information protection law. In particular, while any individual may make a request for records pursuant to the FOIA, under the Privacy Act, only an individual, or his authorized representative, may request the individual's records. 5 U.S.C. §§ 552, 552a(d)(1). Moreover, while the FOIA applies to any type of record, the Privacy Act narrowly applies to records that agencies maintain within their "systems of records" that are retrievable by an individual's name, social security number or other or personal identifier. 5 U.S.C. §§ 552, 552a(d). Additionally, unlike the FOIA, the Privacy Act allows individuals to request that agencies amend their records. 5 U.S.C. § 552a(d)(2).

The Privacy Act requires agencies that maintain systems of records to establish procedures by which they notify requesters of whether any systems of records contain records pertaining to them. 5 U.S.C. § 552a(f)(1). Moreover, the Privacy Act requires agencies to "define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual." 5 U.S.C. § 552a(f)(2). Furthermore, the Privacy Act requires agencies to "establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under [the Privacy Act]." 5 U.S.C. § 552a(f)(4).

Because of the competing goals of each statute (information access versus information protection and amendment), "each provides or limits access to material not opened or closed by the other." Greentree v. United States Customs Serv., 674 F.2d 74, 78 (D.C. Cir. 1982).

Consequently, requesters seeking the broadest access to information about themselves make their requests pursuant to both statutes. To facilitate an individual's broad access to his files, Congress added a provision to the Privacy Act that specifies that an exemption under the FOIA is not a bar to release files under the Privacy Act and that a Privacy Act exemption is not to bar release of files under the FOIA. See 5 U.S.C. §552a(t). This provision of the Privacy Act, which was added in the 1984 amendments after the circuits were split as to whether an exemption under one statute is a bar to release under the other, yields the curious result that, even if the Privacy Act explicitly exempts an agency from having to disclose a record, if the record is available under the FOIA, the requester is entitled to it. See Greentree, 674 F.2d at 236 ("[T]he Privacy Act represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA access.").

II. Failure to Exhaust Administrative Remedies

A plaintiff must exhaust his administrative remedies under the Privacy Act before the court can exercise jurisdiction over his claim. Larsen v. Hoffman, 444 F. Supp. 245 (D.D.C. 1977). Similarly, under the FOIA, administrative remedies must be exhausted prior to judicial review. Thomas v. Office of the United States Attorney, 171 F.R.D. 53, 55 (E.D.N.Y. 1997). The purpose of the requirement is to allow the agency the opportunity to exercise its expertise and develop a record for review. In re Steele, 799 F.2d 461, 466 (9th Cir. 1986). Thus, when a person asks a court to compel an agency to produce documents before that person has made a formal request to the agency for those documents, the court will decline to act. See id.; Sinito v. United States Dep't of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999); Taylor v. Appleton, 30 F.3d 1365, 1367-68 & n. 3 (11th Cir. 1994) (concluding that exhaustion, although not jurisdictional, is "condition precedent" to filing suit). Permitting a plaintiff to pursue judicial review without benefit of prior administrative consideration would undercut "the purposes of exhaustion, namely, 'preventing premature interference with agency processes, . . . afford[ing] the parties and the courts the benefit of [the agency's] experience and expertise, . . . [and] compil[ing] a record which is adequate for judicial review.'" Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993) (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (alteration original)).

The Acts have slightly different positions when it comes to filing an action without having obtained a response from the relevant agency. The FOIA requires agencies to respond to requests for documents within ten days, and to respond to appeals within twenty. See 5 U.S.C. § 552(a)(6)(A). If the agency fails to comply with these time limits, the person making the request "shall be deemed to have exhausted his administrative remedies." See 5 U.S.C. § 552(a)(6)(c)). Finally, under the FOIA, an interim response informing the plaintiff that the agency is in the process of addressing his request is adequate to satisfy the requirement that the agency reply within the statutory period. Sloman, 832 F. Supp. at 66 (citing Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C. Cir. 1976)).

The Privacy Act, by contrast, does not allow for "constructive exhaustion," and prohibits a requester from filing an action without having obtained a response from the agency. See Davis v. United States, 84 Fed. Appx. 97 (D.C. Cir. 2003) ("he failed to exhaust his administrative remedies, a prerequisite to filing a Privacy Act complaint in district court"); Taylor v. United States Treasury Dep't, 127 F.3d 470, 476-77 (5th Cir. 1997) (applying the "jurisprudential exhaustion doctrine" and dismissing plaintiff's suit against the IRS for failure to exhaust the IRS's non-statutory administrative procedure for Privacy Act requests); Pollack v. Department of Justice 49 F.3d 115, 117 n.1 (4th Cir. 1995) ("In his request and subsequent enforcement action, Pollack also relied on the Privacy Act, 5 U.S.C. § 552a. . . . [T]he Privacy Act contains no equivalent to FOIA's 'constructive exhaustion' provision which, as we point out in this opinion, enabled the district court to review his FOIA request."); Lane v. Department of Justice, No. 02 Civ. 06555 (ENV), 2006 WL 1455459, at *6 (E.D.N.Y. May 22, 2006) ("the Privacy Act also requires a requester to exhaust his or her administrative remedies prior to commencing suit in federal court") (citing Tota v. United States, No. 99 Civ. 0445E (SC), 2000 WL 1160477, at *1 (W.D.N.Y. July 31, 2000)); Schmidt v. United States Dep't of Defense, No. 04 Civ. 1159 (WWE), 2005 WL 1606910, at *3 (D. Conn. July 7, 2005) ("jurisdictional provisions of the Privacy Act are inapplicable where a plaintiff has not exhausted available administrative remedies under the act"); Hogan v. Huff, No. 00 Civ. 6753(VM), 2002 WL 1359722, at *4 (S.D.N.Y. June 21, 2002).

Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies. Thus, if the agency responds to a FOIA request before the requester files suit, the ten-day constructive exhaustion provision in 5 U.S.C. § 552(a)(6)(C) no longer applies; actual exhaustion of administrative remedies is required. Oglesby v. United States Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990); Sloman, 832 F. Supp. at 66.

As a preliminary matter, three of the requests can be considered quickly as the only arguments levied against them by the government is that they were never received. The government asserts that it never received the June 6, 2003 FOIA/PA request to the DOJ Criminal Division (Counts 5-6); the May 31, 2003 FOIA/PA request to the FBI field office in Melville, New York (Counts 29-30); and the May 15, 2003 FOIA/PA request to the FBI field office in Tampa, Florida (Counts 35-36). (See Defs.' Summ. J. Mem. at 10; Defs.' 56.1 Statement ¶ 12, 30.)

With regard to the June 6 DOJ request, Plaintiff argues that "he verified that the USDOJCD did receive delivery" because he sent the request via Priority Mail with tracking. (See Pl.'s Opp'n Re: Counts I-VI at 5.) Plaintiff makes similar contentions with regard to the Melville and Tampa requests. (See Pl.'s Opp'n Re: Counts IX-LVI at 9.) Despite Plaintiff's assertions, he provides no evidence to support his case: he simply provides copies of receipts to confirm that the request was in fact mailed, but nothing to indicate that the requests were in fact received. Furthermore, he has provided no evidence of bad faith on the government that would undermine its assertion. Finally, even if the government had received the request, Plaintiff has not asserted any attempt on his part to exhausted his administrative remedies as to these requests. Accordingly, the Court grants Defendants' motion for summary judgment as to Counts 5-6, 29-30, and 35-36.

A. Failure to Appeal

The government also contends that Plaintiff failed to file appeals for a number of claims. Because the statutes have different approaches to the exhaustion requirement, the Court analyzes the ...


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