Lapp v. FBI, No. 14-160, 2016 WL 737933 (N.D. W. Va. Feb. 23, 2016) (Keeley, J.)

Lapp v. FBI, No. 14-160, 2016 WL 737933 (N.D. W. Va. Feb. 23, 2016) (Keeley, J.)

Re: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

Disposition: Request for records concerning Public Housing Agencies and fingerprint submissions to FBI

• Exemption 7(E):  "[T]he Court finds that the FBI properly exempted the [Originating Agency Identifiers, "'unique nine character identifier and/or access code developed by the FBI . . . provided only to authorized entities to access and/or add data to CIJS systems'"] under the 7(E) exemption."  The court finds that "according to the FBI, '[d]isclosure of . . . ORIs to the public could reasonably be expected to risk circumvention of the law by allowing individuals and/or entities unauthorized access to CJIS systems and/or NCIC criminal record information.'"  Additionally, "the Court is confounded by [plaintiff's] assertion that, just because a criminal actor would have to jump over additional hurdles, the FBI is required to give them a boost over the first hurdle by releasing the ORIs."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "the FOIA 'does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.'"  The court finds that, "[b]ased on [defendant's] declarations . . ., the FBI would be required to 'dig out' the answer to [plaintiff's] questions regarding the channelers used and number of fingerprint submissions from a variety of locations, as well as requiring them to research outside the FBI."  "Moreover, it would require them to perform calculations relating to the number of fingerprint submissions based on accounting data inside and outside the FBI."  "This is beyond what the FOIA requires."  "[Plaintiff] does not merely seek 'documents' prepared or retained by the FBI; he seeks 'answer[s] [to] questions disguised as a FOIA request.'"
   
• Attorney Fees, Eligibility:  The court holds that plaintiff is "not eligible for an award of attorney fees and litigation costs."  The court finds that "[plaintiff] has not received relief through a judicial order" and it rejects plaintiff's claim that "but for his filing of that complaint, the FBI would not have released the responsive documents."  The court explains that "evidence establishes that efforts by the FBI to locate and provide responsive documents to [plaintiff] were ongoing prior to the filing of his suit."