Apotosky v. FBI, No. 15-1619, 2017 WL 1093890 (N.D. Ohio Mar. 23, 2017) (Lioi, J.)

Apotosky v. FBI, No. 15-1619, 2017 WL 1093890 (N.D. Ohio Mar. 23, 2017) (Lioi, J.)

Re: Request for records concerning plaintiff's criminal case

Disposition: Granting defendants' cross-motion for summary judgment; denying plaintiff's dispositive motion

• Litigation Considerations, Pleadings: The court finds that "summary judgment is granted in favor of defendant Executive Office for United States Attorneys[]" because plaintiff does not "even mention defendants' argument regarding waiver/abandonment, much less attempt to refute it[]" and "[t]he Court construes plaintiff's silence to mean either that plaintiff is conceding that he has stated no claims against EOUSA or that he has abandoned any claims that may have been asserted."
   
• Exemption 7(E): "The FBI has demonstrated that documents requested have either been produced, were unidentifiable, or were exempt." Specifically regarding Exemption 7(E), the court finds that defendant's use of this exemption was appropriate because, as defendant explains, "'[p]roviding detailed information about the software, equipment, techniques, procedures, and/or types of reports generated by technicians during their forensic testing processes would impede the FBI's effectiveness in investigating crimes where evidence can be found on computers and other digital media.'" "'It would also aid in circumvention of the law by providing criminals the information necessary for them to adjust behavior in order to avoid detection, develop and/or utilize technology less susceptible to law enforcement detection or scrutiny, and/or use or develop technology to counteract techniques used by forensic computer technicians.'"
   
• Litigation Considerations, Adequacy of Search: The court finds that the FBI demonstrated that it had conducted an adequate search. The court explains that "the FBI has not said that credit card records or reports never existed." "Rather, after again reciting the extensive steps the FBI took to search for documents responsive to this request, the FBI determined that it 'was unable to locate the credit card records Plaintiff seeks.'" "Plaintiff has made no attempt to submit evidence to refute the FBI's declarations or to show any bad faith that might overcome the presumption afforded the declarations." "He simply steadfastly disagrees with them." "That is not enough."
   
• Attorney Fee, Eligibility: The court relates that "plaintiff requests attorney fees and costs pursuant to 5 U.S.C. § 522(a)(4)(E)(i), arguing that, but for this litigation, he would not have received any response to his various FOIA requests and that he has, therefore, 'substantially prevailed.'" However, the court finds that "[defendant's] two declarations establish that defendants have not wrongfully withheld documents from plaintiff." "Therefore, plaintiff has not prevailed in any way, much less in a substantial way." "The fact that defendants may have offered assistance to obtain some documents that had been previously sealed (and which he would not have had any right to obtain, absent unsealing) does not transform him into a prevailing party." "Further, it is well settled that, because plaintiff is not an attorney, he cannot recover attorney fees under FOIA, in any event."