Chelmowski v. United States, No. 17-1394, 2021 WL 3077919 (D.D.C. July 21, 2021) (Boasberg, J.)
Chelmowski v. United States, No. 17-1394, 2021 WL 3077919 (D.D.C. July 21, 2021) (Boasberg, J.)
Re: Sixteen requests seeking records concerning handling of plaintiff's informal and formal complaints, previous FOIA requests and subsequent litigation, as well as agencies' FOIA policies and guidelines more generally
Disposition: Granting defendants' motion for partial summary judgment
- Fees and Fee Waivers, Fees: "[The] Court is satisfied that . . . Defendant has provided detailed affidavits that successfully demonstrate the reasonableness of the search fees as well as the appropriateness of requiring advance payment for the searches." "For each of Plaintiff's contentions regarding fees, the Government articulates where the argument falls short and why the payments are still required." "With respect to Plaintiff's contention that the requirement of an advance payment was illegal, he neglects to mention that he had failed to pay a search fee for a previous request, thus allowing the FCC to mandate advance payment."
- Litigation Considerations, Mootness and Other Grounds for Dismissal: "[T]he Court agrees with the Government that [one request] was 'substantially similar' to two of Plaintiff's prior requests at issue in a previous FOIA lawsuit in which the FCC had prevailed on the issue of search fees." "Therefore, under the doctrine of res judicata, he is precluded from re-litigating the issue of fees here."
Separately, the court finds that "[t]o the extent Plaintiff makes arguments about the withholdings of other records, he speaks of documents that are not at issue in this lawsuit – namely, FOIA . . . requests and appeals submitted by Plaintiff to the FCC and NARA after the agencies filed their Motion for Summary Judgment." "Any such allegations . . . are not of relevance to the Court here."
- Litigation Considerations, Adequacy of Search: The court holds that "[s]ummary judgment is . . . proper on the adequacy of the searches." The court relates that defendants "all explain in detail the steps that [they] took to search for responsive records." The court relates that "Plaintiff maintains that the agencies 'did not meet search requirements' because they failed to provide 'the names of who conducted the searches.'" The court finds that "[h]e is wrong." "'Courts in this District have repeatedly rejected the argument that an agency's [FOIA] declaration must identify the individuals, by name, who conducted the searches.'" "[Plaintiff] also argues that the searches were inadequate because the agencies provided neither the locations nor dates of the various searches." "On the contrary, the FCC and NARA did provide information about the locations searched for requests that they processed under FOIA . . . ."
- Litigation Considerations, Vaughn Index/Declaration: The court notes that "Plaintiff does not directly challenge the applicability of any of the exemptions." "Instead, he contends that 'the NARA are withholding many documents in full without identifying [ ] their withholdings' and concludes that this '[p]roves the NARA withholding[s] . . . were not FOIA Exemptions[.]'" The court finds that "for the documents that were withheld in full or in part, the agency prepared a detailed Vaughn Index for each withholding noting the corresponding Bates-stamped pages."
- Litigation Considerations, Discovery: "The Court cannot find that [plaintiff] has demonstrated ongoing deficiencies or otherwise 'made a sufficient showing that the agency acted in bad faith' in processing his requests." "The only supposed indications of bad faith that he provides are that the individuals personally responsible for the searches were not the ones who submitted the affidavits and that he was not notified of consultations and referrals between the FCC and NARA." "This is not proof of bad faith, however, as 'an agency need not submit an affidavit from the employee who actually conducted the search' and may instead 'rely on an affidavit of an agency employee responsible for supervising the search,' as occurred in this case." "Given that 'discovery is an extraordinary procedure in a FOIA action,' and given that the Court finds no evidence of bad faith, it will deny [plaintiff's] Motion."