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Nondisclosure Of Government Records Not Justified By FOIA

The U.S. District Court for the District of Columbia ruled that certain
records withheld by the Federal Bureau of Prisons (BOP) and the Federal
Bureau of Investigation (FBI) was not properly exempted under the Freedom
of Information Act (FOIA).

Kieth Maydak, a federal prisoner, brought pro se action under the FOIA (5
U.S.C. § 552 (2000)) and the Privacy Act (PA) (5 U.S.C. § 552a (2000))
against various government agencies challenging their responses to his
requests for information pursuant to the FOIA and the PA. Maydak had made
"38 FOIA requests to the BOP for information pertaining to himself, and a
hosts (sic) of events related to the conditions of his confinement," and
under the PA, a "'copy of the log of disclosures of information relating to
[him] to other federal agencies or third parties, whether such disclosure
was oral, written or electronic.'"

The district court granted the government's motion for summary judgment,
and Maydak appealed. The United States Court of Appeals for the District of
Columbia, Madak v. United States Department Of Justice, 218 F.3d. 760 (DC
Cir. 2000) reversed. On remand, Maydak moved for summary judgment and
voluntary dismissal of the government's motions for summary judgment.

The district court held:
1) The BOP failed to justify, under the FOIA exemption, the nondisclosure
of staff statements about internal matters, portions of staff manuals, or
information contained in medical or personnel files.
2) The BOP failed to show that entire records were exempt from disclosure
or that its record search procedure was adequate.
3) The FBI's nondisclosure of certain third-party documents in their
entirety was not justified by FOIA exemption.
4) The Executive Office for United States Attorneys failed to aver in its
affidavit that its file search procedures for responsive records was
adequate; "'at the very least, [the agency is] required to explain in its
affidavit that no other record system was likely to produce responsive
records.'"

See: Maydak v. United States Department Of Justice, 254 F.Supp.2d 23 (D DC
2003).

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Related legal case

Maydak v. United States Department of Justice

By letter dated October 3, 1998, plaintiff requested the following information from the DEA:
1. All reference material which teaches how to become a successful drug dealer; 2. A list of sources in Pennsylvania where drugs (e.g., cocaine, heroin, marijuana, etc.) can be obtained at good prices; 3. A guidebook or manual which gives advice on avoiding detection; 4. A list of crooked D.E.A. agents who sell drugs on the side; 5. A list of all informants and snitches in Pennsylvania so I can avoid them; 6. Instructions on converting cocaine to crack; 7. A list of police departments which do not have drug sniffing dogs; 8. Any instructions on successfully growing marijuana; 9. Anything else good that you have lying around that will aid me in my goal to become an honest, fair, and successful drug dealer.
Defendants' Partial Motion to Dismiss or, in the Alternative, for Summary Judgment [Doc.# 52], Exhibit D. Neither party provides evidence of the DEA's response to the request, but it is undisputed that the DEA did not conduct a search for responsive records. See id., Defendants' Statement of Material Facts Not in Dispute ¶¶ 48-49 (citing amended complaint).
The DEA argues that the Court lacks subject matter jurisdiction over the claim related to the request for the above nine items because plaintiff did not submit a proper FOIA request. Id., Memorandum of Points and Authorities at 15-16. Specifically, the DEA argues that plaintiff submitted a request for information not records which would have been created or in the control of the agency. Id at 15. It therefore argues that it had no obligation to conduct a search because it would not have records which would help plaintiff achieve his goal of becoming an honest fair and successful drug dealer, which, in any event, would be contrary to its mission and the statutes which it is charged with enforcing[ ] the nation's drug laws. Id. Despite the DEA's position, the Court finds that it has subject matter jurisdiction to determine the propriety of the request and the DEA's response to it. See5 U.S.C. § 552(a)(3)(A) (an agency is obligated to make records available upon any request """ which (i) reasonably describes such records).

As a general rule, a FOIA requester's purpose is irrelevant to an agency's FOIA obligations. See Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); North v. Walsh, 881 F.2d 1088, 1096 (D.C.Cir.1989). The DEA's response based on plaintiff's reprehensible reasons for wanting the information therefore appears at first blush unjustified. However, when the request here is stripped of plaintiff's motives, it fails to qualify as a reasonable FOIA request. Under [the] FOIA, an individual may obtain access to records written or transcribed to perpetuate knowledge or events. """ [The] FOIA neither requires an agency to answer questions disguised as a FOIA request, [n]or to create documents or opinions in response to an individual's*46 request for information. Hudgins v. IRS, 620 F.Supp. 19, 21 (D.D.C.1985), aff'd,808 F.2d 137 (D.C.Cir.1987), cert. denied,484 U.S. 803, 108 S.Ct. 47, 98 L.Ed.2d 12 (1987) (citations omitted). Plaintiff's request was no more than a series of questions or requests for information that went beyond the scope of the FOIA.FN10 Accordingly, the Court will dismiss plaintiff's claim against the DEA sua sponte for failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915A (requiring the district court to screen and dismiss as soon as practicable a prisoner's complaint or portions thereof that fail to state a claim).
FN10. Plaintiff's description of the request set forth in his opposition to the DEA's motion is substantially different from the one he submitted to the agency for processing. See Opposition [# 84] at 2-3; compare with the original request set forth above. Perhaps, had plaintiff formulated his original request as he does in his opposition, the DEA would have had some basis to conduct a search for records. However, the Court cannot compel a search of what effectively is a new request because its jurisdiction extends only to the DEA's response to the request submitted in October 1998. See Bonner v. Dep't of State, 928 F.2d 1148, 1152-53 (D.C.Cir.1991) (judicial review of a FOIA claim generally is limited to the time of the agency determination).

(4.) The Executive Office for United States Attorneys

As mentioned above, plaintiff has voluntarily dismissed most of his claims against this DOJ component in light of subsequent disclosures made in an unrelated case. See supra at 32. However, plaintiff maintains his challenges to the EOUSA's responses related to the United States Attorneys Office for the Northern District of New York (Count 11) and the Southern District of West Virginia (Count 24).FN11 By letter dated April 6, 1998, plaintiff requested records about himself located in the Northern District of New York, the Southern District of West Virginia and the Northern District of Illinois. Plaintiff also sought records from those offices pertaining to the Pegrine Financial Group. Defendants' Partial Motion to Dismiss, or in the Alternative, for Summary Judgment [Doc. # 52], Declaration of Suzanne Little (Little Decl.), Exhibit 18. The EOUSA located no responsive records.
FN11. The EOUSA processes FOIA and PA requests for all Offices of the United States Attorneys. See Defendants' Partial Motion to Dismiss, or in the Alternative, for Summary Judgment [Doc. # 52], Declaration of Suzanne Little ¶ 1.
Plaintiff challenges the adequacy of the search for responsive records. Although the EOUSA avers that the FOIA contact at the respective offices conducted searches, it neither identifies those individuals nor provides any details about the searches. See discussion supra at 39-40. Moreover, it has not averred that it searched all files reasonably likely to contain responsive records or provided any evidence from which an inference may be reasonably drawn. At the very least, [the agency is] required to explain in its affidavit that no other record system was likely to produce responsive records. Oglesby, 920 F.2d at 68. Accordingly, the EOUSA's motion for summary judgment must be denied.
B. Executive Office of the President's Office of Science and Technology Policy (EOPOSTP)

In support of its motion [Doc.# 70], the EOPOTSP proffers the declaration of Shana Dale (Dale Decl.), Chief of Staff and General Counsel of the EOPOTSP. By letter dated January 13, 1998, plaintiff requested records concerning reports, complaints, investigations and inquiries *47 pertaining to AT & T or Bell Laboratories. Dale Decl., Exhibit 1. Plaintiff narrowed his request by letter dated February 4, 1998, to include only responsive records that were eighteen (18) months old or less. Id., Exhibit 3. By letter dated April 27, 1998, the EOPOTSP informed plaintiff that it had located seventeen documents and was releasing six of the documents in their entirety. The EOPOTSP withheld nine of the documents, citing FOIA exemptions 1 and 4, and referred two documents to the Department of Defense's Defense Logistics Agency (DLA). Id, Exhibit 4. Upon the advise of the DLA, the EOPOTSP withheld the two referred documents in their entirety under exemption 3. Id., Exhibits 7-8.
On administrative appeal of its decision, the EOPOTSP reconsidered the number of documents it was obligated to disclose (increasing it from six to seven), and then determined that those seven documents could be released in their entirety. Id., Exhibit 6. The EOPOTSP upheld the initial decision to withhold three documents in their entirety under exemption 4. Id. The EOPOTSP did not address the DLA records at the administrative appeal level and now acknowledges that the administrative appeal response letter contained errors. Dale Decl. ¶ 10. Those errors do not affect this litigation, however, because the exhaustion of administrative remedies is not at issue here. The EOPOTSP continues to maintain that its decision to withhold records in their entirety under exemptions 3 and 4 was proper. Plaintiff counters that the EOPOTSP has not justified withholding the records in their entirety and under the claimed exemptions.
(1.) Exemption 3

On the DLA's advise, the EOPOTSP withheld the two referred records pursuant to FOIA exemption 3, described as briefing slides, claiming that they were protected from disclosure under 10 U.S.C. § 130 (1998). See exemption 3 discussion supra at 40-41. This statute provides, in relevant part, as follows:
(a) Notwithstanding any other provision of law, the Secretary of Defense may withhold from public disclosure any technical data with military or space application in the possession of, or under the control of, the Department of Defense, if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the Export Administration Act of 1979 (50 U.S.C.App. 2401-2420) or the Arms Export Control Act (22 U.S.C. 2751 et seq.). However, technical data may not be withheld under this section if regulations promulgated under either such Act authorize the export of such data pursuant to a general, unrestricted license or exemption in such regulations""""
(c) In this section, the term technical data with military or space application means any blueprints, drawings, plans, instructions, computer software and documentation, or other technical information that can be used, or be adapted for use, to design, engineer, produce, manufacture, operate, repair, overhaul, or reproduce any military or space equipment or technology concerning such equipment.
Section 130 is clearly an exemption 3 statute where it clearly and specifically identifies the particular types of matters to be withheld. Colonial Trading Corp. v. Dep't of Navy, 735 F.Supp. 429, 431 (D.D.C.1990) (quoting 5 U.S.C. § 552(b)(3)(B)). However, the EOPOTSP relies only on the DLA's unsworn memorandum that was submitted in response to the referral, which merely states that [t]he information contained in these papers*48 falls within FOIA exemption category 3, reason e, specifically technical data developed exclusively with Federal funds and within the meaning of [the statute]. Dana Decl., Exhibit 8. The EOPOTSP has not provided a declaration from anyone at the DLA stating that the documents were reviewed for FOIA purposes. Moreover, the EOPOTSP has not provided a description of the documents' content or averred that the documents contain technical data with military or space application, as defined by subsection (c) of the statute, that is not otherwise authorized to be disclosed pursuant to subsection (a) of the statute. Therefore, the Court cannot determine if the slides fit within the narrow parameters of information § 130 is designed to protect and therefore exempt from disclosure under exemption 3.
(2.) Exemption 4

FOIA Exemption 4 protects from disclosure trade secrets and commercial or financial information obtained from a person and privileged or confidential. 5 U.S.C. § 552(b)(4). To prevail on this exemption, the EOPOTSP must show that the information is (a) commercial or financial, (b) obtained from a person [or corporation], and (c) privileged or confidential. National Parks and Conservation Association v. Morton, 498 F.2d 765, 766 (D.C.Cir.1974) (citations omitted); see Allnet Communication Services v. FCC, 800 F.Supp. 984, 988 (D.D.C.1992) (including corporations among the wide range of entities exemption 4 covers). Under the circumstances of this case, where it appears that the information was provided to the government voluntarily, the EOPOTSP satisfies the privileged or confidential requirement if it shows that the information is of a kind that would customarily not be released to the public by the person from whom it was obtained. Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871, 879 (D.C.Cir.1992) (modifying National Parks test for determining whether information is confidential or privileged).FN12
FN12. In National Parks, the Court concluded that a commercial or financial matter is confidential """ if disclosure """ is likely """ either (1) to impair the Government's ability to obtain necessary information in the future; or (2)[ ] cause substantial harm to the competitive position of the person from whom the information is obtained. 498 F.2d at 770. In Critical Mass, the Court reaffirmed that test but limited it to cases where the person was required to provide the information to the government. 975 F.2d at 877-79. In cases where the person voluntarily supplies information to the government, the Court adopted the customarily privileged or confidential test quoted above. Id. at 879. Here, under either test, the EOPOTSP has failed to satisfy its burden.
Here, the EOPOTSP invoked exemption 4 to withhold information relat [ing] to a meeting attended by an EOPOSTP staff member at which a Bell Communications Research, Inc. (Bellcore) report on the potential for a widespread outage of the public switched network was presented and discussed. Dale Decl. ¶ 15. The EOPOTSP withheld the Bellcore Report itself, as well as the meeting notice and agenda and the EOPOTSP staff member's notes of the meeting. Id.
Plaintiff challenges the withholding of documents in their entirety and argues that the EOPOTSP has failed to show that the Bellcore documents contain trade secrets or commercial or financial information. He is correct on both points. The EOPOTSP avers that the Bellcore Report is clearly labeled on its face, on every page, as proprietary and confidential to Bellcore, Dale Decl. ¶ 16, but it has not provided any description of the report's content. Compare with Critical Mass Energy Project, 975 F.2d at 874 (describing withheld safety reports as, *49 inter alia, generated from a system for collecting, analyzing, and distributing information concerning the construction and operation of nuclear facilities """ [that] requires the solicitation of candid comments and evaluations from nuclear power plant employees.); and Trans-Pacific Policing Agreement, 177 F.3d. at 1026 (defendant's affidavits """ explain precisely potential for serious competitive harm upon disclosure of withheld information). The Court therefore has no basis upon which it can independently find that the EOPOTSP has correctly concluded that the report contains the type of information exemption 4 is intended to protect, i.e.,trade secrets and commercial or financial information.

Even if the EOPOTSP can justify withholding the report, it is questionable whether the meeting notice and quite possibly even the agenda, which the EOPOTSP acknowledges to be very broad[ ], are subject to the exemption 4 protection either in whole or in part. Moreover, the EOPOTSP has not justified withholding its staff member's notes under exemption 4. As a general rule, exemption 4 does not apply to information generated by the government because such information is not obtained from a person within the meaning of the statute. Allnet Communication Services, 800 F.Supp. at 988 ( person refers to a wide range of entities """ other than agencies). Exemption 4 is intended to encourage individuals to provide certain kinds of confidential information to the Government, and it must be read narrowly in accordance with that purpose. National Parks and Conservation Association, 498 F.2d at 768 (citation omitted).
The EOPOTSP has not satisfied its burden of proving its application of exemptions 3 and 4. Its motion for summary judgment therefore is denied.
C. Department of the Treasury

Plaintiff's claims against this agency are directed to the United States Secret Service (USSS) and the IRS. Pending before the Court are Defendants' Partial Motion for Summary Judgment on Behalf of the Internal Revenue Service [Doc. # 68] (IRS Mot.), Plaintiff's Motion for Summary Judgment Against the Department of Treasury (Internal Revenue Service) With Respect to Count LV; Supporting Brief and Evidence; And, Brief in Opposition to the Defendant's Motion for Summary Judgment as to Count LV (Pl.'s IRS Opp.), and Plaintiff's Motion for Summary Judgment Against the United States Treasury Department (United States Secret Service) With Respect to Count LVII; Supporting Brief and Evidence; and, Brief in Opposition to the Defendants' Motion for Summary Judgment as to Count LVII (If It Exists).

As an initial matter, defendant has not filed a dispositive motion on behalf of the USSS. Plaintiff therefore argues that this omission constitutes a default with respect to his claims against the USSS. A default occurs when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend""""Fed. R Civ. P. 55(a). The agency has neither failed to plead or to defend and therefore is not in default. Arguably, the agency may have waived any defenses it may have with respect to the claims against the USSS. This is an issue, however, that the Court will not address now and that the parties may choose to raise in future motions.
By letter dated March 10, 1998, plaintiff requested from the USSS all information that mention, relate, or pertain to myself. IRS Motion, Exhibit A1. It is undisputed that the USSS located records that were responsive and referred five of the *50 pages to the IRS. IRS Mot., Statement of Material Facts Not in Dispute ¶ 2. It is also undisputed that the IRS released to plaintiff portions of three pages of information by letter dated August 13, 1999. Id. ¶ 3. The IRS withheld other information under FOIA exemption 3 in conjunction with 26 U.S.C. § 6103(a). FN13 Id.
FN13. The IRS refers to its Exhibit A3, which is its response letter to the USSS about the referred documents. The letter authorizes the release of the enclosed [ ] document in its entirety. The IRS has not included the enclosed document in the court record. The Court assumes that this omission was inadvertent. The IRS is instructed to supplement the record by making this omitted document part of the record.
By letter dated September 2, 1999, plaintiff requested directly from the IRS information about himself located in its criminal files. IRS Mot., Declaration of Kevin McClincy (McClincy Decl.) ¶ 4. By letter dated April 17, 2002, during the course of this litigation, the IRS informed plaintiff that it had located 2,783 pages of records that were responsive to his two requests, and assessed a photocopying fee of $466.40. The IRS advised plaintiff that upon payment of the fee, it would release to him 1,721 pages in their entirety and 711 pages with redactions. It also advised plaintiff that it was withholding 351 pages of information in their entirety. The IRS invoked FOIA exemptions 3, 7(C) and 7(D) as the grounds for withholding the information in whole and in part. IRS's Mot., Exhibit A4. At the time it filed its summary judgment motion, the IRS stated that [a]s of this date, plaintiff has not remitted the assessed fees to the IRS. IRS Mot., Statement of Undisputed Facts ¶ 5.
The IRS argues that it is entitled to summary judgment on the ground that plaintiff has not paid the assessed fees and therefore has not exhausted his administrative remedies. Plaintiff counters that the fees will be paid [b]y the time the government responds to this motion. Pl.'s IRS Opp. at 3 [page number supplied]. Plaintiff has not, however, supplemented the record with evidence that he has now actually paid the fees.

The payment or waiver of fees or an administrative appeal from the denial of a fee waiver request is a jurisdictional prerequisite to bringing suit on a FOIA claim in the district court. See Oglesby, 920 F.2d at 65; accord Trueblood v. Dept. of Treasury, I.R.S., 943 F.Supp. 64, 68 (D.D.C.1996) (citing Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.), cert. denied,518 U.S. 1032, 116 S.Ct. 2578, 135 L.Ed.2d 1093 (1995)). Although the IRS's fee assessment came after the filing of this lawsuit, plaintiff is obligated nonetheless to pay the fee or to seek from the agency either a fee waiver or a fee reduction. See Trueblood, 943 F.Supp. at 68 (the payment of fees is a jurisdictional requirement under the FOIA). The IRS processed plaintiff's FOIA request and notified him of the result. It has no further obligation until plaintiff pays the assessed fee. See id. at 69. Accordingly, the Court will grant the IRS's motion for summary judgment without prejudice.
IV. CONCLUSION

For the reasons stated above, the Court will grant plaintiff's motions to dismiss pursuant to Fed.R.Civ.P. 41, deny all of plaintiff's motions for summary judgment, and deny all of the defendants' respective motions for summary judgment, except as follows: the Court will grant the motions brought on behalf of the IRS and the USMS, and part of the motions brought on behalf of the BOP and the FBI. In addition, the Court will dismiss the FOIA *51 claims against the DEA and the PA claims against the BOP.FN14
FN14. A separate Order accompanies this Memorandum Opinion.

ORDER

For the reasons stated in the accompanying Memorandum Opinion, it is
ORDERED that plaintiff's motions to dismiss pursuant to Fed.R.Civ.P. 41 [83-1 93-1, 106-1] are GRANTED; it is further
ORDERED that the Department of State's partial motion for summary judgment [# 53-1] is DENIED as moot and the Clerk is directed to omit the Department of State as a party-defendant; it is further
ORDERED that the Department of Justice's partial motion for summary judgment on behalf of the United States Marshals Service [# 57-1] is GRANTED as conceded; it is further
ORDERED that the Bureau of Prisons' (BOP) motion to dismiss [# 65-1] is GRANTED in part, and the claims brought under the Privacy Act, 5 U.S.C. § 552a, are DISMISSED; it is further
ORDERED that the BOP's motion for partial summary judgment [# 65-2] is GRANTED in part, and accordingly summary judgment as to the claim arising from the withholding of internal codes under FOIA exemption 2 is GRANTED. Summary judgment in all other respects on the arguments advanced by the BOP is DENIED; it is further
ORDERED that the motion for partial summary judgment brought on behalf of the Federal Bureau of Investigation (FBI) [# 69-1] is GRANTED in part, and accordingly summary judgment as to the claim arising from the adequacy of the search for responsive records is GRANTED. Summary judgment in all other respects on the arguments advanced by the FBI is DENIED; it is further
ORDERED that the motion to dismiss brought in part on behalf of the Drug Enforcement Administration (DEA) [# 52-1] is GRANTED in part, and the claim brought under the Freedom of Information Act against the DEA is DISMISSED; it is further
ORDERED that the motion for partial summary judgment brought in part on behalf of the Executive Office for United States Attorneys (EOUSA) [# 52-2] is DENIED; it is further
ORDERED that the motion for partial summary judgment on behalf of the Executive Office of the President's Office of Science and Technology Policy [# 70-1] is DENIED; it is further
ORDERED that the Department of Treasury's motion for partial summary judgment brought on behalf of the Internal Revenue Service [# 68-1] is GRANTED, subject to this defendant supplementing the record by submitting to the Court the enclosure referred to in its Exhibit A3; it is further
ORDERED that the Department of Treasury remains a party-defendant for purposes of addressing plaintiff's claims pertaining to the United States Secret Service; it is further
ORDERED that all other pending motions [64, 84-92, 96-105, 107-127] are DENIED; and it is further
ORDERED that within sixty (60) days from the date of the issuance of this Order, defendants shall supplement the record by addressing the numerous flaws the Court has identified in its Memorandum Opinion, and, if appropriate thereafter, renew their motions for summary judgment, or, within the time provided, release all previously *52 withheld records and thereafter forthwith advise the Court of its decision to do so.

SO ORDERED.

D.D.C.,2003.
Maydak v. U.S. Dept. of Justice
254 F.Supp.2d 23