Isiwele v. HHS, No. 12-1447, 2015 WL 1423740 (D.D.C. Mar. 30, 2015) (Jackson, J.)

Isiwele v. HHS, No. 12-1447, 2015 WL 1423740 (D.D.C. Mar. 30, 2015) (Jackson, J.)

Re: Request for records concerning government employees, records concerning certain Medicare beneficiaries, records concerning certain Medicare claims, records concerning plaintiff, and United States Attorneys' Manual

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Procedural Requirements, Entities Subject to the FOIA:  "[T]he Court grants defendants' motion to dismiss the claims against the Administrative Office of the United States Courts."  The court finds that "defendants argue correctly that the FOIA does not apply to the Administrative Office of the United States Courts because it is an arm of the judicial branch, which is not subject to FOIA."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "summary judgment based on plaintiff's purported failure to exhaust his administrative remedies . . . is denied."  The court finds that "the record contains no evidence to trigger the exhaustion requirement with regard to the HHS requests."  The court finds that "defendants have not sustained their burden by showing that plaintiff was advised about his right to appeal administratively, and an agency's failure to 'provide notice [to the requester] of [his] right to appeal' an adverse decision to the head of the agency is 'insufficient under the FOIA to trigger the exhaustion requirement.'"  However, regarding a request to EOUSA which "plaintiff did appeal . . . , but the OIP closed . . . as untimely[,]" the court "finds that addressing the merits of that claim 'presents no risk of undermining the purposes and policies underlying the exhaustion requirement,' and it declines to dismiss the claim . . . for failure to exhaust."  "Plaintiff does not dispute that he failed to pay the duplication fees assessed for [the request] seeking the U.S. Attorneys' Manual" and, therefore, the court finds that "summary judgment is granted as to that request due to plaintiff's failure to exhaust."  "Like the EOUSA, [DHS] closed plaintiff's administrative appeal of its decision to withhold information as untimely," but "[t]he Court does not find the purposes of exhaustion undermined by reaching the merits of the claim . . . and, it also declines to dismiss that claim for failure to exhaust."
   
• Litigation Considerations, Pleadings:  The court finds that, "[u]pon reviewing the defendants' supporting memorandum, statement of material facts, and declarations supplied by HHS, EOUSA and NRC, the Court finds the declarants' descriptions of the withheld information too sweeping and vague to permit an assessment of the asserted exemptions."  "Therefore, summary judgment is denied without prejudice to reconsideration upon defendants' filing of Vaughn indexes or some equivalent documents that would reasonably describe the records at issue and explain with specificity how the claimed exemptions apply to the withheld material."
   
• Exemption 3:  The court holds that "USCIS properly applied exemption 3 to 'federal income tax returns, which are specifically exempt from disclosure pursuant to ... § 6103 of the Internal Revenue Code.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "USCIS properly redacted the 'handwritten notes' of a USCIS adjudicator from an immigration worksheet . . . as deliberative process material because 'the notes [are pre-decisional] and reveal the adjudicator's impressions and recommendations to a supervisor regarding agency action on' a form application for immigration benefits."
   
• Exemption 6:  The court holds that "USCIS properly redacted under exemption 6 'personally identifiable information pertaining to third parties,' which, if disclosed, 'would pose an unwarranted invasion' of personal privacy and that has no discernible public interest."
   
• Exemption 7(C):  The court holds that "USCIS properly redacted under exemption 7(C) 'personal[ ] identifying information of federal law enforcement personnel involved in compiling information relevant to the [law enforcement] record(s) in question.'"  Additionally, "[f]or the reasons stated above, the Court finds that ICE properly redacted third-party information from the twelve pages referred from USCIS under FOIA exemptions 6 and 7(C)."
   
• Exemption 7(E):  The court holds that "summary judgment is warranted on the exemption 7(E) withholdings."  The court relates that "USCIS withheld information concerning 'the use of electronic database systems, communications and instructions for Agency personnel related to possible interactions with applicants, and information gathering techniques' for preventing and investigating immigration fraud."  "The release of such information could 'allow applicants to circumvent immigration laws, alter behaviors, or tailor actions' and, thus, weaken or defeat 'the Agency's ability to effectively investigate and compile the information necessary to adjudicate immigration applications.'"
   
• Fees and Fee Waivers, Fees:  "[T]he Court finds that it lacks authority to consider plaintiff's refund request" which is based on plaintiff's argument that "he 'was deceived into paying for the same documents, which are already in my possession.'"  The court explains that "the request does not concern the agency's denial of a fee waiver, which is subject to judicial review under the FOIA, nor is it premised on the statutory reasons for considering a fee waiver."