Gebert v. Dep’t of State, No. 22-02939, 2025 WL 42703 (D.D.C. Jan. 6, 2025) (Friedrich, J.)

Gebert v. Dep’t of State, No. 22-02939, 2025 WL 42703 (D.D.C. Jan. 6, 2025) (Friedrich, J.)

Re:  Request for records concerning plaintiff and revocation of plaintiff’s security clearance

Disposition:  Granting in part and denying in part plaintiff’s motion for leave to file amended complaint

• Litigation Considerations, Exhaustion of Administrative Remedies: The court holds that “[a]mendment of [plaintiff’s] FOIA . . . claim[] . . . would be futile because [plaintiff] failed to administratively exhaust before bringing his claims in federal court.”  “[Plaintiff’s] argument that he constructively exhausted his claims is unavailing.”  “[Plaintiff] has not constructively exhausted his FOIA claim.”  “Constructive exhaustion occurs when an agency fails to provide any meaningful response at all, thereby preventing the plaintiff from appealing the decision.”  “The Department responded to [plaintiff’s] request in two stages.”  “In the first stage, the response identified 509 responsive pages, but only specifically addressed 435 of those pages in its denial letter, and only provided 414 of the 420 pages it stated it was releasing.”  “In the second stage, the Department identified and discussed 456 responsive pages and stated it was releasing all 456 in whole or in part, but only provided 420 pages.”  “[Plaintiff] argues that the first letter was deficient for failing to discuss 74 of the redacted pages, and that both letters are deficient for failing to release all the approved documents.”  “The latter argument fails because a response ‘does not require actual production of the records to the requester at the exact same time that the “determination” is communicated to the requester.’” “Thus, the letters served as a determination under the meaning of the statute and obligated [plaintiff] to administratively appeal.”  “That leaves the remaining 74 pages that were not addressed in the first letter.” “Although the Court acknowledges this oversight is perplexing, constructive exhaustion is not warranted here.” “Because it is not the Court’s responsibility to unduly intrude in the administration of an agency’s actions, ‘[c]onstructive exhaustion in the FOIA is a privilege granted only to individuals whose requests for records have essentially been ignored by the agency.’”  “[Plaintiff’s] request was not ignored.”  “Indeed, the Department provided a detailed explanation of the number of responsive records, bases for withholding certain documents, and provided notice of his right to appeal.”  “The Department’s oversight of a few pages is the type of error it should have the ‘fair opportunity to resolve’ through the administrative process.”  “Constructive exhaustion is therefore inappropriate here.”