Conley v. FBI, No. 16-1953, 2017 WL 5712793 (3rd Cir. Nov. 28, 2017) (per curiam)

Conley v. FBI, No. 16-1953, 2017 WL 5712793 (3rd Cir. Nov. 28, 2017) (per curiam)

Re: Request for records concerning requester, as well as Restriction Fragment Length Polymorphism ("RFLP") DNA analysis

Disposition: Affirming in part, vacating in part, and remanding in part district court's grant of defendant's motion for summary judgment

• Fees and Fee Waivers, Fee Waivers:  The Court of Appeals for the Third Circuit holds that "[t]he District Court properly concluded that [the requester] did not qualify for a fee waiver."  Regarding the request for records concerning the requester, the court explains that "[t]he District Court properly concluded . . . that the 'requested documents do not contribute to the public understanding of the operations and activity of government, especially since they were to [the requester's] concern of developing a new criminal defense to [the requester's] prior conviction.'"  Additionally, the court finds that, "[t]o the extent that [the requester] sought a fee waiver request for the RFLP request, his claim was moot because those documents were released with no fees assessed."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  "[The Court of Appeals for the Third Circuit] also agree[s] with the District Court that [the requester] did not exhaust his administrative remedies with respect to the FBI's responses to the . . . [r]equest [for records concerning the requester][]" "[b]ecause the administrative appeal was untimely."  Additionally, the court finds that "[c]onley's failure to pay the assessed fees [for additional records located] constituted a failure to exhaust administrative remedies."
   
• Exemption 7(E):  "Because the FBI did not meet its burden 'to justify the withholding of [the] requested documents[,] . . . [the Court of Appeals for the Third Circuit] must vacate in part the District Court's order."  The court notes that "the FBI did not argue in the District Court that the redactions were proper, and the District Court did not address the issue."  "On remand, the District Court should determine whether the FBI has waived its ability to apply Exemption (b)(7)(E) to the redactions from the . . . RFLP manual."