The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Plaintiff Charles Robert brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Robert alleges that Defendants the Department of Justice and the Social Security Administration ("SSA") failed to release documents responsive to a number of FOIA requests he made. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56.
In his Amended Complaint, Robert attacks Defendants' treatment of 11 FOIA requests, termed requests A through K. (Amended Complaint (Docket Entry # 44).) Defendants argue that Robert's claims must be dismissed because (1) requests G and H were never received; (2) Robert did not exhaust administrative remedies with respect to requests F, I, and K; and (3) Defendants either did not find, were not required to search for, or properly withheld documents responsive to requests A, B, C, D, E, and J. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Mem.") (Docket Entry # 70) at 6, 7, and 12.) In response, Robert asks the court to allow him to withdraw without prejudice his claims relating to requests A, B, C, F, G, H, I, J, and K. Robert also argues that Defendants' motion for summary judgment relating to requests D and E should be denied, because the requested documents exist and are not exempt from disclosure under FOIA.*fn1 (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Mem.") (Docket Entry # 61).)
I. Robert's Request to Withdraw Claims Without Prejudice
Robert explains that he wishes to withdraw without prejudice his claims relating to requests A, B, C, F, G, H, I, J, and K because he wishes to submit these claims to mediation pursuant to a provision newly added to FOIA in 2007. This provision, 5 U.S.C. § 552(h), establishes an Office of Government Information Services within the National Archives and Records Administration, one of whose duties is to "offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation." Robert also argues that dismissal of these claims is appropriate in light of statements by Social Security Administration Commissioner Michael J. Astrue to the Senate Finance Committee during a January 24, 2007 hearing. Robert believes that these statements indicate that mediation of his claims will be successful and that Defendants will now likely accept his offer of settlement. (Affidavit in Opposition to Defendants' Motion for Summary Judgment (Docket Entry # 62) ¶¶ 1-32.)
Defendants do not oppose Robert's request to withdraw without prejudice those claims relating to requests G and H. They do, however, object to Robert's request to withdraw without prejudice the claims relating to requests A, B, C, F, I, J, and K. Defendants argue that they have appropriately responded to these requests, that they are entitled to summary judgment, and that their response to Robert's requests would not be different after mediation. Defendants further argue that they have "fully briefed the issues and should not be required to process new, duplicative FOIA requests or re-litigate the same issues." (Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Rep.") (Docket Entry # 71) at 6.)
Robert's request to withdraw without prejudice his claims relating to requests A, B, C, F, I, J, and K is denied. "Factors relevant to the consideration of a motion to dismiss without prejudice include the plaintiff's diligence in bringing the motion; any 'undue vexatiousness' on plaintiff's part; the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; the duplicative expense of relitigation; and the adequacy of plaintiff's explanation for the need to dismiss." Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990). These factors clearly weigh in favor of denying Robert's motion. First, Robert has a documented history as a vexatious litigant, and has failed to prosecute numerous actions in the past. See Charles Robert VIII v. Dep't of Justice, No. 05-CV-2543 (NGG) (ETB), 2005 WL 3371480 (E.D.N.Y. Dec. 12, 2005). Second, Defendants have been put to the considerable expense of preparing affidavits and memoranda of law in favor of their motion for summary judgment. Third, Robert's reasons for withdrawing his claims are not convincing. As Robert himself concedes, the statements by Commissioner Michael J. Astrue upon which he relies are consistent with previous testimony before the Senate Finance Committee on June 22, 1989, and therefore do not reflect a change of position making it more likely that Defendants will accept Robert's offer of settlement. In any case, although the court recognizes the value of mediation, 5 U.S.C. § 552(h) does not require or encourage the staying of ongoing FOIA litigation in favor of mediation. In light of Robert's litigation history, the court does not believe that it is likely that mediation would result in a settlement of Robert's claims. Allowing Robert to withdraw these claims without prejudice would therefore be inappropriate.
Accordingly, the court will consider Defendants' motion for summary judgment with respect to Robert's requests A, B, C, F, I, J, and K. However, as Defendants do not object to Robert's withdrawal without prejudice of his claims relating to requests G and H, those claims are dismissed without prejudice.
II. Defendants' Motion for Summary Judgment
Because of the discreet nature of the legal and factual issues presented, the factual background relevant to each of Robert's claims will be presented below, along with the legal discussion thereof.
When deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court will only accept as fact those facts included in the parties' Local Civil Rule 56.1 statements of material fact and supported by citations to the record. Local Civil Rule 56.1. Any numbered paragraph in Defendants' statement of material facts will be deemed to be admitted for purposes of Defendants' motion unless specifically controverted by a correspondingly numbered paragraph in Robert's statement. Id.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e., "where the record taken as a whole could not lead a rational trier of fact to find for the non- moving party," Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). "A fact is 'material' for these purposes if it might affect the outcome of the suit under the governing law. An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The moving party has the burden of establishing the absence of a genuine issue of material fact. Liberty Lobby, 477 U.S. at 256. If the moving party meets its burden, the non-moving party must then "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
Because Robert is proceeding pro se, the court has read his papers liberally, and has interpreted them "to raise the strongest arguments they suggest." Burgos v. ...