The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
AYYAKKANNU MANIVANNAN,
Plaintiff,
v. Civ. Action No. 1:17-cv-192
(Kleeh)
DEPARTMENT OF ENERGY
(National Energy Technology
Laboratory),
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Pending before the Court is a Report and Recommendation
(“R&R”) entered by United States Magistrate Judge Michael J. Aloi.
Judge Aloi recommends that the Court grant Defendant’s Motion for
Summary Judgment; deny as moot Plaintiff’s “Note and
Clarification,” construed as a Motion to Compel; and dismiss the
Amended Complaint with prejudice. For the reasons discussed below,
the Court adopts the R&R in part.
I. BACKGROUND
Plaintiff is a former employee of the Department of Energy’s
National Energy Technology Laboratory (“NETL”) in Morgantown, West
Virginia. ECF No. 12 at ¶ 1. On April 8, 2017, Plaintiff’s
supervisor proposed his removal from NETL and federal service due
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
to improper conduct involving an intern whom Plaintiff had been
assigned to mentor. Id. ¶ 3. At the time of the notice, Plaintiff
was facing criminal charges in Pennsylvania regarding harassment
and unlawful use of computers. Id. On April 19, 2016, Plaintiff
was convicted by a jury for these crimes. Id. Plaintiff was placed
on administrative leave from August 12, 2015, during an internal
investigation. Id. ¶ 4. He was forbidden from accessing NETL
property, and his former office at NETL was secured under lock and
key. Id. He resigned, effective June 17, 2016. Id. Plaintiff’s
claims in this case stem from his attempts to retrieve his personal
belongings after being placed on administrative leave, along with
his attempts to gather information about the investigations
conducted at NETL and in Centre County, Pennsylvania.
A. Original Complaint [ECF No. 1]
On November 6, 2017, Plaintiff filed a Complaint (the
“Original Complaint”) against Grace Bochenek (“Bochenek”), Susan
Malie (“Malie”), and Isabel Cotero (“Cotero”) (together, the
“Original Defendants”), all of whom were employees of NETL. ECF
No. 1 at 1. First, Plaintiff claimed that in violation of 18 U.S.C.
§ 21 (Stolen or Counterfeit nature of property for certain crimes
defined) and since the summer of 2016, NETL had refused to return
his personal belongings, despite repeated requests. Id. ¶ 1. He
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
also cited a parallel case in Morgantown Magistrate Court. Id.
Second, he claimed that Malie “blocked” his certified registered
court summons by opening it when it was addressed to Bochenek, in
violation of 18 U.S.C. § 1702 (Obstruction of correspondence). Id.
¶ 2. The summons allegedly opened by Malie related to the
Monongalia County Magistrate Court case.
Third, Plaintiff argued that Cotero inappropriately signed
the certified registered Court Summons addressed to Bochenek, in
violation of 18 U.S.C. § 1701 (Obstruction of mails generally).
Id. ¶ 3. Fourth, Plaintiff wrote that he sent several FOIA requests
to NETL, and NETL failed to provide a determination letter for
FOIA HQ-2017-00946-F/NETL-2017-01081-F (“Request 946”). Id. ¶ 4.
Request 946, he said, specifically requested all paperwork and
records related to the alleged official delivery of Plaintiff’s
personal belongings to him by NETL. Id. Request 946 is the only
FOIA request specifically listed in Plaintiff’s Original
Complaint.
Fifth, Plaintiff argued that this Court had jurisdiction
because the case involved obstruction of mails, obstruction of
correspondence, federal employees, Plaintiff’s personal belongings
being left at a federal site, and denial of responses to FOIAs.
Id. at ¶ 5. Plaintiff wrote that the Department of Energy’s Office
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
of Hearing and Appeals (“OHA”) indicated to him that he was deemed
to exhaust his administrative remedies for Request 946 and may
proceed with the matter in federal district court pursuant to 5
U.S.C. § 552(a)(6)(C)(i). Id.
B. Motion to Dismiss [ECF No. 11]
On January 8, 2018, the Original Defendants moved to dismiss
Plaintiff’s Original Complaint for lack of subject matter
jurisdiction and failure to state a claim. ECF No. 11. Bochenek
argued that she “never personally directed any action taken by
NETL concerning the Plaintiff’s belongings at issue, and in fact,
has never had any contact with the Plaintiff through her employment
at NETL’s Pittsburgh, PA office.” ECF No. 12 at 2.
The Original Defendants argued that Cotero signed for the
summons, Malie signed an internal correspondence accountability
log, and Bochenek never received a copy of the summons or signed
a receipt for one. Id. at 6. They argued that the claims against
them should be dismissed for failing to meet the standards under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Id. at 7,
8. Plaintiff had cited criminal statutes in the Original Complaint,
for which no civil relief was available, and to the extent he cited
5 U.S.C. § 552(a) regarding FOIA requests, the Original Defendants
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
argued that the Original Complaint did not request the provision
of documents pursuant to that statute. Id. at 9, 10.
On January 22, 2018, Plaintiff filed a response to the Motion
to Dismiss. ECF No. 17. Plaintiff emphasized that several requests
were made to NETL about his belongings, and “[n]o proper response
was received.” Id. at 11. He argued that NETL failed to respond to
Plaintiff’s Request 946. Id. at 12. He provided his version of the
history of Request 946: (1) FOIA applied in May 20181; (2) NETL
responded with “No Records”; (3) Plaintiff appealed to OHA; (4)
NETL withdrew its “No Records” response and stated that a new
determination letter would be issued. Id. at 13. Plaintiff stated
that it had not been issued. Id. OHA informed him that because
NETL had not issued a final determination as to Request 946,
Plaintiff might be deemed to have exhausted his administrative
remedies for that Request and proceed in federal court. Id.
C. Judge Aloi’s First R&R [ECF No. 30]
On February 21, 2018, Judge Aloi entered an R&R on the pending
motion to dismiss. ECF No. 30. Judge Aloi recommended that the
action be dismissed against Cotero, Bochenek, and Malie. Id. at
16. He concluded that the Court lacked subject matter jurisdiction
1 This was likely a typographical error because the Response was
filed on January 22, 2018.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
over the criminal allegations by Plaintiff. Id. at 11. He further
found that the Court lacked jurisdiction over the claims
potentially made under the Federal Tort Claims Act (“FTCA”). Id.
at 13. To the extent the complaint could be read as a request for
injunctive relief, neither the FTCA nor the Administrative
Procedure Act (“APA”) would be an adequate remedy. Id.
Construing the complaint liberally, however, Judge Aloi found
that Plaintiff may proceed in federal court under 5 U.S.C.
§ 552(a)(6)(C)(i). Id. at 15–16. He recommended that the request
to dismiss Plaintiff’s FOIA claims be denied and that NETL be
substituted as a defendant, noting that “[t]he claim under
FOIA . . . must proceed against NETL.” Id. at 16. He deemed the
following FOIA requests exhausted because there was no evidence
that a revised fee letter was sent:
•
HQ-2017-01069-F/NETL-2017-01141-F (Request
1069);
•
HQ-2017-01268-F/NETL-2017-01260-F (Request
1268); and
•
HQ-2017-01284-F/NETL-2017-01308-F (Request
1284).
Id. at 15. He also found that NETL had not issued final
determinations within the statutory time limit for the following
six FOIA requests: 833, 890, 1070, 946, 1347, and 1348. Id.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Therefore, he deemed those Requests exhausted as well. Id. Judge
Aloi directed NETL to respond to the nine FOIA requests listed
above. Id. at 16–17. Judge Keeley adopted the R&R on May 21, 2018,
and substituted NETL as the defendant. ECF No. 52.
On April 6, 2018, Judge Aloi directed NETL to provide certain
documents to the Court for in camera review. ECF No. 44. On April
10, 2018, NETL filed a Motion for Relief from Requirements of that
order, arguing, among other things, that Plaintiff had been adding
new claims without amending his complaint. ECF No. 46. Judge Aloi
then ordered NETL to provide Plaintiff a response to Request 946
by April 26, 2018. ECF No. 48 at 3. He also found that NETL cured
its violation as to Request 1070 before this cause of action was
initiated on November 6, 2017. Id. at 4–5. Judge Aloi directed
Plaintiff to file an Amended Complaint, including the FOIA requests
for which he had exhausted his administrative remedies, on or
before April 26, 2018. Id. at 5.
D. Amended Complaint [ECF No. 50]
Plaintiff filed an Amended Complaint on April 25, 2018. ECF
No. 50. He did not reference whether administrative remedies had
been exhausted for each of the FOIA requests in the Amended
Complaint. Plaintiff states in his Amended Complaint that its
purpose is “to obtain the documented truth through the opportunity
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
FOIA request.” Id. at 1. He argues that “[a]ccording to FOIA
regulation 5 U.S.C. § 552(a)(6)(A), the Agency must issue a
determination letter within 20 days of receiving a FOIA request,”
and in this case, “[t]he determination letter response for many
FOIA requests took months.” Id. Plaintiff generally objects to
NETL’s alleged destroying and withholding of records and its claims
of attorney-client privilege and confidentiality.
Plaintiff discusses the following Requests in his Amended
Complaint: 1070, 946, 833, 890, 1347, 1759, 78, 1348, 1069, 1268,
and 1284. Specific arguments made by Plaintiff as to each Request
are included in the Discussion section below. Plaintiff reiterates
requests for documentation and, generally, argues that NETL is not
in compliance with the Court Order. He asks the Court to do the
following: “order the Agency to release all the records/documents
that have been withheld, redacted, and allegedly destroyed. A
proper judicial review is requested to determine the matter de
novo and may examine the contents of the Agency records in camera
that are withheld/redacted from the complainant.” Id. at 20. NETL
filed an Answer to the Amended Complaint on May 10, 2018. ECF No.
51. Plaintiff then filed a “Note and Clarification,” which Judge
Aloi has construed as a Motion to Compel, asking the Court to
compel NETL to respond to his FOIA requests. ECF No. 60.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
E. Motion for Summary Judgment [ECF No. 61]
NETL filed a Motion for Summary Judgment, which is now ripe
for consideration. ECF No. 61. NETL attached to its Motion an
affidavit from Ann C. Guy, a Paralegal Specialist for NETL who
manages all FOIA requests sent to the laboratory. ECF No. 62-1. In
support of the Motion, NETL argues that the FOIA action began on
April 25, 2018, with the filing of the Amended Complaint, because
the Original Complaint was against three individual employees for
obstruction of correspondence and merely contained a reference to
FOIA requests. ECF No. 62 at 3. NETL discusses the four FOIA
requests for which OHA determined Plaintiff could not be assessed
fees: 833, 890, 946, and 1070. Requests 833 and 1070, NETL argues,
were properly exhausted, and Plaintiff was permitted to seek
judicial review. Id. at 6, 9. Requests 890 and 946, on the other
hand, were not properly exhausted. Id. at 7.
In its Motion, NETL explains the standard for summary judgment
pursuant to FOIA. Id. at 9. It then argues that NETL conducted an
adequate search for responsive records. Id. at 10. It also argues
that the exemptions applied by NETL in providing responsive records
were properly applied. Id. at 15. In conclusion, NETL wrote the
following:
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
The plaintiff, as a result of nine FOIA
requests which demanded the search and
production of thousands of documents, received
each document to which he was entitled, and
which NETL was obligated to provide. Searches
were not conducted for five of the requests
because the plaintiff failed to provide the
fee required. The plaintiff failed to exhaust
his administrative remedies with regard to
another two requests. The remaining two
requests moved carefully and diligently
through the system set up to address FOIA
matters within NETL, as did the requests that
were not exhausted. Each decision by OHA
analyzed NETL’s response to each request,
often requiring additional searches or less
redaction, until the Office of Hearing Appeals
was satisfied that NETL had complied with its
obligation under FOIA. Hence, as the
Declarations and Exhibits demonstrate, there
is no genuine issue of material fact and NETL
is entitled to judgment as a matter of law.
Id. at 24–25. Plaintiff filed a Response to the Motion, primarily
arguing that exemptions were improperly applied and an in camera
review of the documents by the Court is warranted. ECF No. 69. He
also argues that NETL never performed an adequate search and that
constructive exhaustion applies to all requested FOIAs. He
believes NETL is destroying or hiding evidentiary records.
F. Judge Aloi’s Second R&R [ECF No. 79]
On February 8, 2019, Judge Aloi issued an R&R on the Motion
for Summary Judgment. ECF No. 79. He recommended that the Court
dismiss Requests 1069, 1268, 1284, 1347, 1348, 78, and 1759 because
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
they were closed for failure to pay fees. Id. at 18. He recommended
that the Court find that Plaintiff failed to exhaust his
administrative remedies for Requests 890 and 946 and that
constructive exhaustion is not available. Id. at 19. He recommended
that the Court find that NETL performed an adequate search for
Requests 833, 1070, and 1284. Id. at 20. He also recommended that
the Court find that NETL properly applied Exemptions 5 and 6. Id.
at 22. Plaintiff filed Objections to the R&R on March 18, 2019.
ECF No. 86.
II. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the [parties do] not object.” Dellarcirprete v. Gutierrez,
479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold
portions of a recommendation to which no objection has been made
unless they are clearly erroneous. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Here, Plaintiff objected to Judge Aloi’s findings that
exemptions were proper, along with his “contradictory” analysis
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
between this R&R and the first R&R. Plaintiff’s objections
reiterate many of his points raised earlier: that he exhausted his
remedies for multiple Requests, that NETL did not make timely
disclosures, and that exemptions were improperly applied. Due to
the broad scope of Plaintiff’s objections, the Court will review
the R&R de novo. Plaintiff’s Amended Complaint will be liberally
construed because he is proceeding pro se. See Estelle v. Gamble,
429 U.S. 97 (1976).
Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
nonmoving party must “make a sufficient showing on an essential
element of her case with respect to which she has the burden of
proof.” Id. Summary judgment is proper “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the
non-moving party, there [being] no ‘genuine issue for trial.’”
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288 (1968)).
Cases brought under FOIA “are generally resolved on summary
judgment once the documents at issue have been properly
identified.” Wickwire Gavin, P.C v. U.S. Postal Serv., 356 F.3d
588, 591 (4th Cir. 2004). “In a suit brought to compel production,
an agency is entitled to summary judgment if no material facts are
in dispute and if it demonstrates ‘that each document that falls
within the class requested either has been produced . . . or is
wholly exempt from the Act’s inspection requirements.’” Students
Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir.
2011) (citing Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
“[T]he district court has the discretion to limit discovery in
FOIA cases and to enter summary judgment on the basis of agency
affidavits in a proper case.” Simmons v. DOJ, 796 F.2d 709, 711–
12 (4th Cir. 1978). These affidavits are required to be
“‘relatively detailed’ and nonconclusory and must be submitted in
good faith.” Goland, 607 F.2d at 352.
III. GOVERNING LAW
Under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
subject to certain exemptions, “federal agencies generally must
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
make their internal records available to the public upon
request[.]” Coleman v. Drug Enf’t Admin., 714 F.3d 816, 818 (4th
Cir. 2013). FOIA disclosure “shines a light on government
operations ‘to check against corruption and to hold the governors
accountable to the governed.’” Id. (citing NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978)).
The FOIA expressly requires an agency receiving an
information request to do the following:
(i) determine within 20 days (excepting
Saturdays, Sundays, and legal public
holidays) after the receipt of any
such request whether to comply with
such request and . . . immediately
notify the person making such request
of . . . such determination and the
reasons therefor . . . [and] in the
case of an adverse determination the
right of such person to appeal to the
head of the agency . . . ; and
(ii) make a determination with respect to
any appeal within twenty days
(excepting Saturdays, Sundays, and
legal public holidays) after the
receipt of such appeal.
5 U.S.C. § 552(a)(6)(A)(i)–(ii).
To determine whether an agency has met its obligation under
the FOIA, “[i]n the absence of countervailing evidence or apparent
inconsistency of proof, affidavits that explain in reasonable
detail the scope and method of the search conducted by the agency
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
will suffice to demonstrate compliance with the obligations
imposed by the FOIA.” Ginarte v. Mueller, 496 F. Supp. 2d 68, 69
(D.C. Cir. 2007) (citing Perry v. Block, 684 F.2d 121, 126 (D.C.
Cir. 1982)). Agency declarations are “accorded a presumption of
good faith.” Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994), cert.
denied, 513 U.S. 823 (1994) (citing Safecard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991)).
An agency has conducted an adequate search when it shows “that
is has conducted a search reasonably calculated to uncover all
relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.
Cir. 1983). The adequacy of an agency’s search for records is
“generally determined not by the fruits of the search, but by the
appropriateness of the methods used to carry out the search.”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). It is “dependent upon the circumstances of the case.” Truitt
v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The FOIA
“does not obligate agencies to create or retain documents; it only
obligates them to provide access to those which it in fact has
created and retained.” Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 152 (1980).
If responsive documents are withheld, the agency must
demonstrate that they fall within one of the nine disclosure
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
exemptions set forth in the FOIA. See 5 U.S.C. § 552(b). A
government agency’s burden of demonstrating the applicability of
the exemption may be met by affidavits, as long as those affidavits
are, again, “‘relatively detailed’ and nonconclusory
and . . . submitted in good faith.” Simmons, 796 F.2d at 711-12.
“The court is entitled to accept the credibility of the affidavits,
so long as it has no reason to question the good faith of the
agency.” Bowers v. DOJ, 930 F.2d 350, 357 (4th Cir. 1991) (citing
Spannaus v. DOJ, 813 F.2d 1285, 1289 (1987)).
To overcome the presumption of an affidavit’s credibility, “a
requestor must demonstrate a material issue by producing evidence,
through affidavits or other appropriate means, contradicting the
adequacy of the search or suggesting bad faith.” Havemann v.
Colvin, 629 F. App’x 537, 539 (4th Cir. 2015) (citing Miller v.
U.S. Dep’t of State, 779 F.2d 1378, 1384 (8th Cir. 1985)). Courts
have held that if an agency provides a reasonably detailed
explanation of the applicability of a claimed exemption, and there
is no contradictory evidence of bad faith, the in camera inspection
of contested documents is unnecessary. Silets v. DOJ, 945 F.2d
227, 229 (7th Cir. 1991) (en banc) (writing that “[b]ecause the
Government’s affidavits adequately explain the redacted material,
the information logically fits within the claimed exemptions, and
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
there exists no contrary evidence or evidence of bad faith, the
District Court did not abuse its discretion in denying in camera
review”), cert. denied, 112 S. Ct. 2991 (1992).
As stated above, the FOIA has nine exemptions. See 5 U.S.C.
§ 552(b)(1)–(9). Most relevant here are Exemptions 5 and 6.
Exemption 5 provides that FOIA disclosure rules do not apply to
“inter-agency or intraagency memorandums or letters that would not
be available by law to a party other than an agency in litigation
with an agency, provided that the deliberative process privilege
shall not apply to records created 25 years or more before the
date on which the records were requested[.]” 5 U.S.C. § 552(b)(5).
“Courts have interpreted Exemption 5 to exclude from disclosure
documents produced under the attorney work product doctrine and
the deliberative process privilege.” Hanson v. U.S. Agency for
Int’l Dev., 372 F.3d 286, 290–91 (4th Cir. 2004). Exemption 6
applies to “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy[.]” Id. § 552(b)(6).
A. Exhaustion
In FOIA cases, “a plaintiff must exhaust administrative
remedies prior to seeking judicial review.” Schwarz v. FBI, 31 F.
Supp. 2d 540, 542 (N.D.W. Va. 1998), aff’d, 166 F.3d 334 (4th Cir.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
1998). The Fourth Circuit has provided the following guidance as
to when constructive exhaustion is available to a requester:
[A] requester “shall be deemed to have
exhausted his administrative remedies” and may
commence litigation immediately if “the agency
fails to comply with the applicable time limit
provisions” of the FOIA statute, . . . so long
as the agency has not cured its violation by
responding before the requester files suit .
. . . This constructive exhaustion provision
allows a requester to break out of the
administrative process and proceed directly to
federal court in the face of an unresponsive
agency.
Coleman v. Drug Enf't Admin., 714 F.3d 816, 820 (4th Cir. 2013)
(emphasis added).
B. Fees
Agencies are authorized to charge a “reasonable” amount “for
document search and duplication” in a case that is not for
commercial, educational, scientific, or news media use. See 5
U.S.C. § 552(a)(4)(A)(i)–(ii). Advanced fees may not be required
“unless the requester has previously failed to pay fees in a timely
fashion, or the agency has determined that the fee will exceed
$250.” Id. § 552(a)(4)(A)(v).
When an agency has determined that a total fee “will exceed
$250, it may require that the requester make an advance payment up
to the amount of the entire anticipated fee before beginning to
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
process the request.” 28 C.F.R. § 16.10(i)(2). It may do the same
if a requester has failed to make a timely payment in the past.
Id. § 16.10(i)(3). When an advance payment is required, “the
request shall not be considered received and further work will not
be completed until the required payment is received. If the
requester does not pay the advance payment within 30 calendar days
after the . . . fee determination, the request will be closed.”
Id. § 16.10(i)(4). If the agency fails to comply with FOIA’s time
limits in responding to a request, it may not charge search fees.
Id. § 16.10(d)(2). Requesters may seek a fee waiver under 28 C.F.R.
§ 16.10(k).
IV. DISCUSSION
The Court finds that Plaintiff has failed to overcome the
presumptive validity of NETL’s affidavit as it relates to each
FOIA Request in issue. NETL was not named as a defendant in this
action until Plaintiff filed his Amended Complaint. For purposes
of determining when Plaintiff filed suit and whether NETL cured
various violations before suit, the filing of the Amended Complaint
will serve as the date Plaintiff “filed suit” against NETL.2
2 The Court is giving Plaintiff the benefit of this earlier date,
as opposed to the date on which NETL was served.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
NETL’s Declaration from Ann C. Guy is sufficient to establish
that the methods used by NETL to conduct FOIA searches can be
reasonably expected to produce Plaintiff’s requested information.
Guy’s responsibilities include searching for information in
response to FOIA requests, reviewing the information to determine
whether it is exempt from release, and providing information to
those who have requested it pursuant to FOIA. See Guy Decl., ECF
No. 62-1, at ¶ 2. She has held her position since December 1991.
Id. ¶ 1. Guy explains in detail NETL’s system of records, how the
system is searched, and how she personally conducted searches for
Plaintiff’s requests. She also explains considerations made for
redactions and assertions of exemptions under FOIA. The Court will
now examine in turn, based on Guy’s declaration and any evidence
presented by Plaintiff, each FOIA Request.
A. NETL’s searches for Requests 833 and 1070 were adequate.
Request 833
On April 5, 2017, Plaintiff filed Request 833. Id. ¶ 15 (Ex.
1). Request 833 involved “19 categories of records including NETL’s
internal MDI and the related communications between NETL’s Counsel
and the Penn State and Centre County Assistant District Attorney.”
Id. Plaintiff argues that the information received for Request 833
was deficient. ECF No. 50 at 8. He argues that he exhausted his
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
administrative remedies long ago. Id. Much of the information, he
says, has been withheld or destroyed. Id.
Guy states that she “conducted a search of Agency records to
determine if responsive records exist.” See Guy Decl., ECF No. 62-
1, at ¶ 24. She worked with NETL’s attorney to locate files. Id.
She “determined that the MDI and numerous emails were responsive
to the request; however, all the information [she] discovered
during this search was withheld under Exemption 5 and because of
potential litigation.” Id. She also determined that certain
information Plaintiff requested did not exist. Id. ¶ 25. Still,
even though under no obligation, she “informed Plaintiff that the
decision to investigate was made by senior management officials
after a telephone call from the Penn State Affirmative Action
Office reported a complaint had been made by his former student
intern.” Id.
NETL sent a response to Plaintiff on May 22, 2017, denying
his request pursuant to exemptions 5 and 6 of the FOIA, 5 U.S.C.
§ (b)(5) and 5 U.S.C. § (b)(6). Id. (Ex. 2). On June 6, 2017,
Plaintiff appealed NETL’s response. Id. ¶ 26. On June 15, 2017,
OHA received the appeal. Id. (Ex. 3). NETL agreed to reopen the
request, and OHA dismissed the appeal. Id. (Ex. 4).
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Request 833 was one of seven Requests consolidated into a
single request.3 Id. ¶ 27. The consolidated Requests were not
assigned a new identification number. Id. When the consolidation
took place, Plaintiff was sent a letter notifying him of the
consolidation. Id. (Ex. 5). NETL also notified Plaintiff that he
did not qualify for a fee waiver, and NETL assessed fees for
continued processing of the seven consolidated requests. Id.
In the same letter, NETL informed Plaintiff that the estimated
fee for processing his Requests would be over $7,000. Id. ¶ 28.
NETL asked Plaintiff for partial payment in advance. Id. On July
5, 2017, Plaintiff appealed the denial of the fee waiver. Id. (Ex.
6). In the consolidated requests, Plaintiff made multiple requests
for a video tape created and used by the independent investigator
hired by NETL. Id. ¶ 29. Guy learned that the investigator created
3 The seven consolidated requests were Requests 833, 890, 946,
1069, 1070, 1268, and 1284. NETL, after consulting with DOE HQ’s
Office of Public Information, determined that these requests
should be consolidated based on the similarity and repetitiveness
among them, “mostly dealing [with] the Plaintiff’s hearing in
Centre County, communications between NETL’s legal office and
Centre County, emails of his supervisors during the time of the
investigation, a video/audio tape, and the MDI.” Guy Decl., ECF
No. 62-1, at ¶ 27. Plaintiff also withdrew Request 1284 and
resubmitted it to DOE HQ because it was more appropriately
addressed by HQ personnel. Id. ¶ 28. Therefore, on July 5, 2017,
the seven consolidated requests were reduced to six consolidated
requests. Id.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
the video tape on her own. Id. Creating the video tape was never
a requirement under NETL’s contract with the investigator. Id.
Further, the video tape was never in NETL’s possession. Id. The
investigator destroyed it when she no longer needed it.4 Id.
On August 7, 2017, OHA issued a Decision and Award, finding
that Plaintiff could not be assessed fees on four of the seven
consolidated requests, including Request 833, because NETL did not
respond within the 20-day period required by FOIA. Id. ¶ 30. NETL
continued the search for Request 833. Id. ¶ 32. On October 6, 2017,
NETL sent a new determination letter to Plaintiff for Request 833.
Id. ¶ 33 (Ex. 10). On October 12, 2017, Plaintiff appealed,
claiming that NETL did not release all of the requested documents,
including the audio/video tape of the investigation. Id. ¶ 34 (Ex.
11). On November 2, 2017, OHA issued a decision on this appeal,
finding that NETL reasonably interpreted and adequately searched
for all but two items of the 19-item request. Id. It instructed
NETL to conduct an additional search for those two items. Id. (Ex.
12). NETL conducted an additional search and sent a new
determination letter on November 22, 2017. Id. (Ex. 13).
4 In OHA’s decision dated January 11, 2018, OHA explained this to
Plaintiff. Guy Decl., ECF No. 62-1, at ¶ 29.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
On November 29, 2017, Plaintiff appealed, asking for the same
documents and the video tape and claiming that NETL was withholding
information. Id. ¶ 35 (Ex. 14). On January 11, 2018, OHA issued an
order addressing Request 833 along with Request 890. Id. ¶ 36 (Ex.
15). OHA stated that NETL conducted an adequate search for 833 but
was to reexamine several redactions under Exemption 5 and issue a
new determination.5 Id. On January 25, 2018, NETL released emails
and information requested in OHA’s order from January 11, 2018.
Id. ¶ 38 (Ex. 17). On January 29, 2018, Plaintiff appealed, stating
that NETL was not in compliance with OHA’s order. Id. (Ex. 18).
Guy then divided up Requests 833 and 890 and responded to
each separately. Id. ¶ 39. On February 7, 2018, she issued a new
determination letter for Request 833 to comply with the January
11, 2018, order, including 99 pages of documents with nine
redactions pursuant to Exemption 5. Id. (Ex. 19). On February 8,
2018, Plaintiff appealed, arguing that redactions were improper.
Id. (Ex. 20). On February 12, 2018, OHA issued an order denying
5 Guy cites clerical confusion after this because she, Plaintiff,
and OHA all, at one point, mismatched the requests numbers and the
appeal numbers. She says that Plaintiff appealed the two requests
before receiving a determination letter, which added to the
confusion. OHA issued a letter stating that the appeals were moot
because NETL had yet to issue a new determination letter. See Guy
Decl., ECF No. 62-1, at ¶ 36 (Ex. 16).
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Plaintiff’s appeal and finding that NETL was in full compliance
with the order dated January 11, 2018, therefore closing Request
833. Id. (Ex. 21). As such, Plaintiff’s appeal was exhausted, and
he was permitted to seek judicial review.
Because Plaintiff’s appeal was exhausted as to Request 833,
the questions before the Court are whether the search was adequate
and whether any exemptions were proper. Guy reconsidered several
exemptions after OHA determined that legal advice was not included.
See id. ¶ 38 (Ex. 17). She took into careful consideration OHA’s
decisions and incorporated its guidance in each determination
letter sent. NETL released many documents in response to Request
833, and OHA – after denying a few earlier searches – found that
NETL fully complied with all of its Decisions and Orders. See id.
¶ 39 (Ex. 21).
Guy states that Plaintiff’s concerns stem from the following
information continuing to be redacted/withheld: (1) “an accusatory
investigation report devoid of evidence to support it”; (2) “an
unfounded personal action of Notice of Proposed Removal (NPR)”;
(3) “unsupported accusations in employee’s SF-50 form”; and (4)
two amendments to SF-50 form.” Id. ¶ 67. Guy states that Hunzeker
personally delivered this information to Plaintiff’s counsel and
received a signed confirmation of receipt. Id.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
The search NETL undertook for Request 833 was adequate. In
OHA’s Decision and Order issued November 2, 2017, it found that
NETL performed an adequate search relating to Request 833 for all
but two items (items 12 and 16). OHA describes the search process
undertaken by NETL as to Search 833:
To process the request, NETL identified the
individuals who were most likely to locate
responsive records and contacted those
individuals, provided them a copy of the FOIA
request, and asked them to conduct a search of
their records for anything that may be
responsive to the request. Those individuals
searched their physical and electronic
records, including Outlook emails, using the
search term “Manivannan.” Additionally, the
FOIA Officer at NETL conducted an electronic
and hard copy file search using “Manivannan”
and “Mani.” The FOIA Officer also searched the
Sharepoint database, which allows access to
all NETL personnel email, using the search
terms “Manivannan,” “Mani,” “Centre County,”
and the names of two individuals relevant to
the Appellant’s request. Subsequently, the
FOIA Officer reviewed the results of the above
searches to determine which information was
responsive to the Appellant’s requests. After
concluding its review, NETL determined that it
had searched all locations where responsive
records may reside.
(Ex. 12) (internal citations omitted). After this Decision and
Order, NETL performed a new search (for items 12 and 16) and issued
another redetermination letter, which led to another appeal and
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
another Decision and Order on January 11, 2018. In this Decision
and Order, OHA described the search as follows:
Beginning with item 12, NETL explained that it
searched its email database using the search
terms “Manivannan,” “investigation,”
“Management Directed Investigation (MDI),”
Centre County,” and the name of the former
NETL Chief Counsel. NETL also explained that
it examined its investigative file and
contacted multiple individuals and offices
throughout NETL who may have had additional
documentation. Within the investigative file,
NETL located the requested phone call lists
and provided them to the Appellant in a
previous determination letter. NETL clarified
that these phone call lists were comprehensive
and would not be located anywhere else. NETL
stated that there is “nowhere remaining to
search.”
With regard to the requested video/audio
recordings, NETL explained that any recordings
were made by a non-DOE investigator for
transcription purposes only. NETL contacted
this investigator when the FOIA request was
submitted, and the investigator explained that
she deleted any recordings once she had
completed her investigative report.
Therefore, any such recording no longer exists
and cannot be provided in response to the FOIA
request.
Turning to item number 16, in conducting its
additional search, NETL explained that it
searched its email database using the term
“Manivannan.” Then within the emails that
surfaced, it searched the terms “removal,”
“discipline,” and “Management Directed
Investigation.” NETL also searched for the
name of the NETL Attorney, and the name of a
human resources specialist. Although it could
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
find no document identifying the person who
drafted the Notice of Proposed Removal, NETL
provided the Appellant with 41 pages of
relevant, responsive records.
(Ex. 15). OHA found that the searches for the two previously-
inadequate items — 12 and 16 — were adequate. Based on the
description of the search conducted, this Court agrees. NETL “has
conducted a search reasonably calculated to uncover all relevant
documents.” See Weisberg, 705 F.2d at 1351. In conclusion, the
Court finds that the search for Request 833 was adequate.
Exemptions will be discussed below.
Request 1070
On May 11, 2017, Plaintiff filed Request 1070. Guy Decl., ECF
No. 62-1, at ¶ 52 (Ex. 45). It included “11 categories of records
related to the MDI and a video tape prepared by the contract
investigator.” Id. ¶ 19. It also included “information on the names
of all NETL personnel who initiated and were involved with his
investigation and information on the investigator hired by NETL to
do the investigation.” Id. ¶ 52. Plaintiff argues that the
information he has received for Request 1070 is deficient, that he
exhausted his administrative remedies long ago, and that NETL made
“numerous questionable redactions.” ECF No. 50 at 11.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Request 1070 was one of the seven consolidated requests. Id.
¶ 27. On August 7, 2017, OHA issued a Decision and Award finding
that Plaintiff could not be assessed fees on four of the seven
consolidated requests, including Request 1070, because NETL did
not respond within 20 days. Guy Decl., ECF No. 62-1, at ¶ 30.
NETL continued the search for Request 1070. Id. ¶ 32. On
October 24, 2017, NETL sent Plaintiff a determination letter
including approximately 227 pages of information. Id. ¶ 53. Guy
could not find responsive documents to some of the items in his
request. Id. Certain portions were redacted under Exemption 5. Id.
On October 29, 2017, Plaintiff appealed, arguing that Exemption 5
did not apply to him. Id. ¶ 54. He asked again for the video/audio
tape. Id. On November 29, 2017, OHA granted the appeal in part,
writing that NETL did an adequate search for most items listed,
but OHA ordered NETL to do an additional search using more search
terms for two items in the request. Id. (Ex. 48).
On January 4, 2018, NETL sent Plaintiff a new determination
letter based on this request. Id. ¶ 55 (Ex. 49). On January 16,
2018, Plaintiff appealed, stating that the search was incomplete.
Id. (Ex. 50). NETL withdrew its determination and issued a new
determination on February 27, 2018, “correctly listing and marking
the exemptions used.” Id. (Ex. 51). Plaintiff again appealed,
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
arguing that the search was inadequate. Id. ¶ 56 (Ex. 52). On March
29, 2018, OHA issued a final order denying Plaintiff’s appeal and
closing Request 1070. Id. (Ex. 53). Plaintiff, therefore,
exhausted his administrative remedies and could seek judicial
review of Request 1070.
Because Plaintiff exhausted his administrative remedies for
Request 1070, the questions before the Court are whether the search
was adequate and whether any exemptions were proper. The search
NETL undertook for Request 1070 was adequate. In OHA’s Decision
and Order dated November 29, 2017, it found that NETL performed an
adequate search relating to Request 1070 for all but two items.
OHA describes the search process undertaken by NETL as to Request
1070:
NETL identified the individuals who were most
likely to locate responsive records, contacted
those individuals, and requested that they
conduct a search of their records. Those
individuals searched their physical and
electronic records, including Outlook emails,
using relevant search terms such as
“Manivannan,” “investigation,” “Management
Directed Inquiry,” and “final SF-50.”
Additionally, the FOIA officer at NETL
conducted electronic and hard copy file
searches using the Appellant’s name and the
names of other individuals relevant to the
particular request. The FOIA Officer also
searched the eDiscovery (or Sharepoint)
database, which allows access to all NETL
personnel email. Subsequently, the FOIA
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Officer reviewed the results of the above
searches to identify information responsive to
the Appellant’s requests. After concluding its
review, NETL determined that it had searched
all locations were responsive records may
reside.
(Ex. 48) (internal citations omitted). After this Decision and
Order, NETL performed a new search (for items 1 and 2) and issued
a new determination letter. Plaintiff again appealed, which led to
another Decision and Order on March 29, 2018. In this Decision and
Order, OHA described the search as follows for item 1:
NETL explained that it conducted a broader
search and there was “no document that
list[ed] the names of NETL personnel who
initiated and were involved in the internal
investigation.” NETL explained that the
released documents, however, show an outline
of the investigation and discuss the
Management Directed Inquiry (MDI). NETL
additionally provided our office with
information regarding the additional search it
conducted. NETL explained that on remand, it
broadened the search of its electronic
database to include the terms “MDI,”
“investigation,” and “Manivannan.” This
search revealed 46 pages of documents that
were released to Appellant in their entirety.
(Ex. 53). OHA described the search as follows for item 2:
NETL explained that the Appellant has already
received “a copy of the purchase requisition
for the hiring of” the investigator, without
redaction, in a previous release of documents,
and NETL disclosed to the Appellant previously
that no “written instructions” to the
investigator exist.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Nonetheless, in order to ensure a thorough
search, NETL searched its electronic database
for the terms “Manivannan” and the first and
last name of the investigator. NETL stated
that it noticed that its files utilized two
different spellings of the investigator’s
first name. As such, NETL utilized both
spellings in its search. NETL additionally
searched the Equal Employment Opportunity
(EEO) Office. NETL clarified that “there is
nowhere else to look.” This search produced 89
pages of documents.
Id. OHA found that the searches for the two previously-inadequate
items — 1 and 2 — were adequate. Based on the description of the
search conducted, this Court agrees. NETL “has conducted a search
reasonably calculated to uncover all relevant documents.” See
Weisberg, 705 F.2d at 1351. In conclusion, Court finds that the
search for Request 1070 was adequate. Exemptions will be discussed
below.
B. NETL cured its violations for Requests 890 and 946 before
Plaintiff filed suit.
Request 890
On April 12, 2017, Plaintiff filed Request 890. Guy Decl.,
ECF No. 62-1, at ¶ 40. Request 890 related to “eight categories of
documents, the bulk of which pertained to email between NETL
counsel and a Centre County Pennsylvania Assistant District
Attorney.” Id. (Ex. 22). Plaintiff argues that the information he
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
received for Request 890 was deficient, that he exhausted his
administrative remedies long ago, and that it would be futile to
appeal at this point. ECF No. 50 at 10.
Guy worked with NETL’s attorney to search for documents in
response to Request 890. Guy Decl., ECF No. 62-1, at ¶ 41. They
used search terms such as “Penn State,” “Centre County,” “McGoran,”
“Miller,” and “Hundt.” Id. She also searched for testimony
involving “David Alman,” whom Plaintiff specifically named in his
Request. Id. On May 19, 2017, NETL sent its initial determination
letter to Plaintiff, with redacted records based on attorney work
product and attorney-client privilege, under Exemption 5 of FOIA.
Id. (Ex. 23).
On June 6, 2017, Plaintiff appealed the initial
determination. Id. ¶ 42 (Ex. 24). He argued that NETL failed to
release the video/audio tape records used during the investigation
and requested additional information from his personnel file. Id.
NETL agreed to issue a new determination letter including personnel
file information, so OHA remanded the request on June 16, 2017.
Id. (Ex. 25). On June 20, 2017, NETL sent Plaintiff his personnel
file. Id. On August 7, 2017, NETL sent Plaintiff a new
determination letter that included the previously redacted
information. Id. (Ex. 26).
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Request 890 was one of the consolidated requests. Id. ¶ 27.
On August 7, 2017, OHA issued a Decision and Award finding that
Plaintiff could not be assessed fees on four of the seven
consolidated requests, including Request 890, because NETL did not
respond to it within the 20-day response time required by FOIA.
Id. ¶ 30. NETL then continued the search for Request 890. Id. ¶
32.
On November 3, 2017, NETL issued a determination letter. Id.
¶ 43 (Ex. 27). On November 29, 2017, Plaintiff appealed, arguing
that Exemption 5 did not apply and stating that all of NETL’s
communications should be provided to him without redaction. Id. ¶
44 (Ex. 28). He also asked for the video tape again. Id. On January
11, 2018, OHA remanded the decision to NETL, writing that the
search was adequate but several redactions under Exemption 5 were
improper. Id. ¶ 45 (Ex. 29). On January 25, 2018, NETL issued a
second redetermination letter, releasing the previously redacted
communications. Id. (Ex. 30).
On January 29, 2018, Plaintiff appealed. Id. ¶ 46 (Ex. 31).
OHA dismissed the appeal after NETL agreed to withdraw its
determination letter and issue another one. Id. (Ex. 32). On
January 30, 2018, NETL issued another redetermination letter,
releasing additional portions of previously redacted emails. Id.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
(Ex. 33). On January 31, 2018, Plaintiff appealed. Id. ¶ 47. He
argued that all redacted information should be released and NETL
was intentionally hiding information. Id. (Ex. 34). OHA dismissed
the appeal because Plaintiff appealed before receiving the
redetermination letter. Id. (Ex. 35). On February 27, 2018, NETL
issued another redetermination letter. Id. (Ex. 36).
On March 1, 2018, Plaintiff appealed again. Id. ¶ 48 (Ex.
37). NETL withdrew the letter to issue a new one so it could
correct several redactions and appropriately mark the exemptions,
so OHA dismissed the appeal. Id. (Ex. 39). On March 8, 2018, NETL
sent Plaintiff two corrected letters, sending the final
determination on March 8, 2018, and releasing 157 pages of
information. Id. (Ex. 38). Plaintiff never appealed the
determination letter from March 8, 2018, and, therefore, failed to
exhaust his administrative remedies. See id. NETL sent Plaintiff
its most recent determination letter for Request 890 over a month
before Plaintiff filed his Amended Complaint. Because NETL “cured
its violation before the person making the request” filed suit
against NETL, constructive exhaustion does not apply. See Coleman,
714 F.3d at 820.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Request 946
On April 24, 2017, Plaintiff filed Request 946. Guy Decl.,
ECF No. 62-1, at ¶ 49 (Ex. 40). It included “14 categories of
records pertaining to his personal belongings that he alleged were
still on NETL property and emails regarding work he had done while
employed by NETL and . . . records on NETL’s counsel arranging a
visit for Dr. Manivannan and his supervisor to pick up his personal
belongings.” Id.
On May 5, 2017, NETL sent Plaintiff its initial response to
request 946 — “no records” — because Plaintiff’s request was for
information, not actual records or documents. Id. ¶ 50 (Ex. 41).
On May 22, 2017, Plaintiff appealed. Id. (Ex. 42). NETL agreed to
withdraw its determination and issue a new one after conducting an
additional search, so OHA dismissed the appeal as moot. Id. (Ex.
43). Then, Request 946 became one of the consolidated requests.
Id. ¶ 27.
On August 7, 2017, OHA issued a Decision and Award, finding
that Plaintiff could not be assessed fees on four of the seven
consolidated requests, including Request 946, because NETL did not
respond within 20 days. Id. ¶ 30. NETL continued the search for
documents related to Request 946. Id. ¶ 32. NETL’s search relating
to Request 946 included “contacting all NETL personnel named in
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Plaintiff’s requests, the security office, the property office,
NETL’s counsel and searching electronically through all emails
using eDiscovery.” Id. ¶ 51. On April 11, 2018, NETL sent a
redetermination letter to Plaintiff including approximately 689
pages with no redactions. Id. (Ex. 44). Plaintiff did not appeal
to OHA, which closed Request 946. Id.
Plaintiff now argues that NETL provided a partial response,
and it “was not made available until last week” (last week being
the week before he filed his Amended Complaint). ECF No. 50 at 5.
He argues that he exhausted his administrative remedies long ago.
He cites concerns with the sufficiency of NETL’s responses. Id.
Because Plaintiff has not appealed the most recent determination
letter from NETL, he has failed to exhaust his administrative
remedies. NETL “cured its violations by responding before the
person making the request” filed suit against it, so constructive
exhaustion does not apply. See Coleman, 714 F.3d at 820.
C. Requests 1069, 1268, 1284, 1347, 1348, 1759, and 78 were
properly closed because Plaintiff failed to pay fees.
Request 1069
NETL received Request 1069 on May 12, 2017. See Guy Decl.,
ECF No. 62-1, at ¶ 18. It included “20 categories of documents
related to emails of prior supervisor’s and management of Plaintiff
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
pertaining to prior complaints Plaintiff had made during his
employment.” Id.
Request 1069 was one of the consolidated requests. Id. ¶ 27.
On August 7, 2017, OHA issued a Decision and Order finding that
NETL must issue a revised search fee for three of the seven
consolidated requests, including 1069. Id. ¶ 30 (Ex. 7). On
September 22, 2017, NETL sent a new fee determination letter for
Request 1069. Id. ¶ 31 (Ex. 8). NETL requested advanced payment of
fees (based an estimated $5,000 in cost) within 30 days and advised
that future requests would not be processed without payment of
fees. Id. Plaintiff never tendered payment of fees for Request
1069. Id. As such, this Request was closed without NETL taking any
action. Id. Guy avers that she “contacted Plaintiff several times
when subsequent requests were received that his requests were on
hold and any future requests would not be processed without the
payment of fees . . . .” Id.
Plaintiff has not submitted any evidence to contradict Guy’s
declaration as to the status of Request 1069. He argues that NETL
announced a fee, Plaintiff requested a fee revision, NETL indicated
that Plaintiff missed the deadline, and NETL closed the FOIA
Request. ECF No. 50 at 19. Plaintiff argues, therefore, that he
has the right to seek judicial review. Id. The Court finds that
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
this argument fails to overcome the presumption of validity of
Guy’s declaration. Plaintiff is not entitled to judicial review of
Request 1069 because he has failed to pay the required fees.
Request 1268
NETL received Request 1268 on June 16, 2017. See Guy Decl.,
ECF No. 62-1, at ¶ 20. It included “six categories of records
pertaining to the SF-50 documents prepared when he resigned his
employment and about the MDI.” Id. Request 1268 was one of the
consolidated requests. Id. ¶ 27. On August 7, 2017, OHA issued a
Decision and Order finding that NETL must issue a revised search
fee for three of the seven consolidated requests, including 1268.
Id. ¶ 30 (Ex. 7).
NETL sent Plaintiff a new fee determination letter on
September 22, 2017, pursuant to OHA’s order, estimating a cost of
$5,000 and “requesting advanced payment of processing fees within
30 days and advising that any further requests would not be
processed without payment of fees.” Id. ¶ 31 (Ex. 8). Plaintiff
never paid the advanced fees for this request. Id. As such, Request
1268 was closed by NETL without taking any action. Id. Guy
“contacted Plaintiff several times when subsequent requests were
received” to notify him that his requests were on hold until he
made his payments. Id.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Plaintiff argues that NETL announced a fee, Plaintiff
requested a fee revision, NETL indicated that Plaintiff missed the
deadline, and NETL closed the FOIA Request. ECF No. 50 at 20.
Plaintiff argues, therefore, that he has the right to seek judicial
review. Id. The Court finds that this argument fails to overcome
the presumption of validity of Guy’s declaration. Plaintiff is not
entitled to judicial review of Request 1268 because he has failed
to pay the required fees.
Request 1284
NETL received Request 1284 on June 19, 2017. Id. ¶ 21. It
included “information pertaining to DOE HQ activities in this
case.” Id. Request 1284 was one of seven requests consolidated
into a single request. Id. ¶ 27. As discussed above, Plaintiff
removed Request 1284 from the consolidated group because it was
more appropriately submitted to DOE HQ. Id. ¶ 28. On August 7,
2017, OHA issued a Decision and Order finding that NETL must issue
a revised search fee for three of the seven consolidated requests,
including 1284. Id. ¶ 30 (Ex. 7).
On September 22, 2017, NETL sent a new fee determination
letter for Request 1284. Id. ¶ 31 (Ex. 8). NETL requested advanced
payment of fees within 30 days (based an estimated $5,000 in cost)
and advised that future requests would not be processed without
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
payment of fees. Id. Plaintiff never tendered payment of fees for
Request 1284. Id. As such, this Request was closed without NETL
taking any action. Id. Guy avers that she “contacted Plaintiff
several times when subsequent requests were received that his
requests were on hold and any future requests would not be
processed without the payment of fees . . . .” Id.
Plaintiff argues that he exhausted his administrative
remedies long ago and has the right to seek “proper judicial
review” of this Request. ECF No. 50 at 20. Plaintiff has not
overcome the presumption of validity of Guy’s declaration.
Plaintiff is not entitled to judicial review of Request 1070
because he has failed to pay the required fees.
Request 1347
NETL received Request 1347 on July 5, 2017. See Guy Decl.,
ECF No. 62-1, at ¶ 22. It included “16 categories of records
pertaining to his criminal hearing in Centre County, Pennsylvania
and again requested the video tape prepared by the contract
investigator.” Id. Guy states that Plaintiff never paid his fees,
resulting in the closure of Request 1347. Id. ¶ 70. Presumably,
Guy is referring to Plaintiff’s failure to pay his fees for
Requests 1069, 1268, and 1284. See id. ¶ 31 (Ex. 8). If Plaintiff
had failed to pay his fee for those Requests, NETL was free to
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
refuse to process Request 1347 until that payment was made.6 Guy
writes that despite Plaintiff’s contentions, he never asked for
any fee revision. Id. ¶ 71.
Plaintiff argues that he exhausted his administrative
remedies long ago. ECF No. 50 at 16. He argues that NETL “is not
in compliance with the Court Order for [this] FOIA request[].” Id.
Plaintiff also argues that NETL “never issued a determination
letter for [this] FOIA request[].” Id. He believes NETL misled the
Court when NETL said that Plaintiff’s appeal of the FOIA response
was denied on October 22, 2017. Id. Plaintiff has failed to
overcome the presumption of the validity of Guy’s declaration.
Plaintiff is not entitled to judicial review of Request 1347
because he has failed to pay fees.
Request 1348
NETL received Request 1348 on July 6, 2017. See Guy Decl.,
ECF No. 62-1, at ¶ 23. It included “eight categories of records
6 See 28 C.F.R. § 16.10(i)(3) (“Where a requester has previously
failed to pay a properly charged FOIA fee to any component or
agency within 30 calendar days of the billing date, a component
may require that the requester pay the full amount due, plus any
applicable interest on that prior request, and the component may
require that the requester make an advance payment of the full
amount of any anticipated fee before the component begins to
process a new request or continues to process a pending request or
any pending appeal.”).
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
pertaining to the NETL director, her assigned duty station, and
procedures for sending certified mail to the Director.” Id. Guy
states that Plaintiff never paid his fees, resulting in the closure
of Request 1348. Id. ¶ 70. Presumably, Guy is referring to
Plaintiff’s failure to pay his fees for Requests 1069, 1268, and
1284. See id. ¶ 31 (Ex. 8). If Plaintiff had failed to pay his fee
for those Requests, NETL was free to refuse to process Request
1348 until that payment was made.7 Guy writes that despite
Plaintiff’s contentions, he never asked for any fee revision. Id.
¶ 71.
Plaintiff argues that he exhausted his administrative
remedies long ago. ECF No. 50 at 16. He also argues that NETL “is
not in compliance with the Court Order for [this] FOIA request[].”
Id. Plaintiff argues that NETL “never issued a determination letter
for [this] FOIA request[].” Id. He believes NETL misled the Court
when NETL stated that Plaintiff’s appeal of the FOIA response was
denied on October 22, 2017. Id. Plaintiff has failed to overcome
the presumption of the validity of Guy’s declaration. Plaintiff is
not entitled to judicial review of Request 1348 because he has
failed to pay fees.
7 See supra n.6.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
Requests 1759 and 78
Guy states that NETL did not issue determination letters for
these Requests because Plaintiff failed to pay fees. See Guy Decl.,
ECF No. 62-1, at ¶ 72. Guy avers that she “sent several emails
explaining that no determination letter would be sent without a
payment of fees.” Id. (Ex. 66). She also says that the requests
“were not requests for documents that existed.” Id. (Ex. 65).
Plaintiff argues that he exhausted his administrative
remedies long ago for these Requests. ECF No. 50 at 16. He also
argues that NETL “is not in compliance with the Court Order for
these FOIA requests.” Id. Plaintiff argues that NETL “never issued
a determination letter for these FOIA requests.” Id. NETL, he says,
misled the Court when NETL stated that Plaintiff’s appeal of the
FOIA response was denied on October 22, 2017. Id. Plaintiff has
failed to overcome the presumption of the validity of Guy’s
declaration. Plaintiff is not entitled to judicial review of
Requests 1759 and 78 because he has failed to pay fees.
D. NETL properly applied Exemptions 5 and 6.
The only exemptions applied by NETL are Exemptions 5 and 6.
Further, as discussed above, the only FOIA Requests for which
exemptions are relevant to the Court’s analysis are 833 and 1070.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
In Guy’s Declaration, she explains her application of Exemption 5,
Deliberate Process Privilege:
The information withheld under Exemption 5 of
the deliberative process privilege consists of
email chain discussions and internal
deliberations on potential agency action
regarding discipline and personnel actions
that resulted from the Management Directed
Inquiry (MDI). The release of such information
release would have a chilling effect on the
ability of NETL staff to have open and frank
discussions and to make decisions on how to
proceed and the appropriate and necessary
agency actions resulting from the findings of
the investigation.
The information redacted and withheld pursuant
to Exemption 5 under the deliberative process
privilege has been reviewed to ensure that all
reasonably segregable information have been
released to Plaintiff. Information contained
in the withheld portions of documents was
determined to be inextricably intertwined with
the privileged information and could not be
reasonably segregated to be released under the
FOIA from the deliberative material.
See Guy Decl., ECF No. 62-1, at ¶¶ 9, 10. She states the following
about Exemption 5, Attorney Client Privilege:
The withheld information consists of legal
advice sought by supervisors, managers, and
other personnel regarding compliance with the
investigation process and attendance at the
hearing of the plaintiff. The disclosure of
the attorney-client communications would
deprive NETL staff of the benefit of
confidential advice from NETL attorneys in
legal matters and agency decision-making and
would have a chilling effect on the ability of
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
staff to have open and frank discussions with
the attorneys.
The information redacted and withheld pursuant
to Exemption 5 under the attorney-client
privilege has been reviewed to ensure that all
reasonably segregable information in the
documents has been released from the documents
to Plaintiff.
Id. ¶¶ 11, 12. Last, she explains her application of Exemption 6,
Personal Privacy:
The information withheld pursuant to this
Exemption consists of private individuals’
names. Access to this withheld information
would violate the privacy interest of the
subject of the information and the private
harm would outweigh any pubic gain from
disclosure.
The information redacted and withheld pursuant
to Exemption 6 has been reviewed to ensure
that all reasonably segregable information in
the documents has been released from the
documents to Plaintiff.
Id. ¶¶ 13, 14. These statements are nonconclusory and relatively
detailed explanations of the claimed exemptions. Plaintiff has not
produced any contradictory evidence of bad faith. Therefore, the
Court finds that the exemptions are proper, and an in camera
inspection of the contested documents is unnecessary.
Additional Information from Ann Guy
Guy writes that “[m]ost of the documents responsive to
Plaintiff’s FOIA request (if not all), including the entire
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
unredacted investigation file, were provided to . . . Plaintiff’s
counsel as part of discovery in a personnel action initiated by
the Agency.” Id. ¶ 57. Further, Guy states that “affidavits by two
of Plaintiff’s co-workers were provided to Plaintiff documenting
the [personal] property that was returned to him.” Id. ¶ 58.
Plaintiff was also provided photographs and security logs. Id. Guy
searched emails of all employees in her attempts to respond to
Plaintiff’s requests. Id. ¶ 59.
Guy writes that she generally reaches out to requesters in
order “to get a better understanding of the scope of the documents
being requested.” Id. ¶ 60. She “tried several times to contact
the Plaintiff for clarification or narrowing of his requests, but
he did not respond to any of [her] efforts to discuss his requests
with him.” Id. (Ex. 55). The only exemptions applied to any
documents were exemptions 5 and 6. Id. ¶ 61. OHA offered guidance
to NETL through this process by asking questions for clarification
and offering guidance, for example, as to search terms. Id. ¶ 62
(Ex. 56).
Guy further avers that documented evidence of communications
between DOE’s counsel and Centre County officials, which was
originally redacted under attorney-client privilege, was later
released to Plaintiff. Id. ¶ 63. As to Plaintiff’s repeated
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
requests for the video tape, the video tape was created and used
by the investigator. Id. ¶ 64. When NETL reached out to request
the video tape, NETL was told that the tape was destroyed after
transcription of the investigation and that this was a normal
business practice. Id. The investigator submitted an affidavit
stating as much. (Ex. 57).
Guy avers that Plaintiff asked NETL to “confirm or deny”
information and also sent NETL interrogatories. Id. ¶ 65. As Guy
explains, this is not how FOIA operates, as FOIA is a tool for
individuals to retrieve existing government documents. Id.
Nonetheless, Guy conducted searches for documents that were
potentially responsive and “released documents that he had not
specifically requested but might help him answer some of his
questions.” Id. Guy also writes that Requests 1347, 1348, 1069,
1268, and 1284, while not addressed due to failure to pay fees,
were “almost entirely repetitive” of other Requests. Id. ¶ 70.
V. CONCLUSION
Most of the FOIA Requests at issue were properly closed based
on Plaintiff’s failure to pay fees (1069, 1268, 1284, 1347, 1348,
1759, and 78). NETL cured its violations for two others before
Plaintiff filed suit against it (890 and 946), so Plaintiff failed
to exhaust his administrative remedies. Finally, as to the
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION
FOR SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF’S NOTE AND CLARIFICATION [ECF NO. 60]
remaining Requests (833 and 1070), NETL performed an adequate
search, and any exemptions applied were proper. NETL has in good
faith produced a nonconclusory and relatively detailed affidavit
indicating the same. Plaintiff has failed to demonstrate a material
issue by producing evidence contradicting the adequacy of the
search or suggesting bad faith. NETL is entitled to judgment as a
matter of law.
For the reasons discussed above, the R&R is ADOPTED IN PART
[ECF No. 79], to the extent consistent with this Memorandum Opinion
and Order; Defendant’s Motion for Summary Judgment is GRANTED [ECF
No. 61]; Plaintiff’s Note and Clarification, construed as a Motion
to Compel, is DENIED AS MOOT [ECF No. 60]; and this action is
DISMISSED WITH PREJUDICE and STRICKEN from the Court’s active
docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record and the pro se Plaintiff
via certified mail, return receipt requested.
DATED: September 30, 2019
___________________________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE