Lorber v. Dep't of Treasury, No. 14-675, 2016 WL 4581334 (E.D.N.Y. Sept. 1, 2016) (Kuntz, II, J.)

Lorber v. Dep't of Treasury, No. 14-675, 2016 WL 4581334 (E.D.N.Y. Sept. 1, 2016) (Kuntz, II, J.)

Re: Request for e-mails concerning plaintiff, as well as for e-mails concerning agency's hiring practices

Disposition: Adopting Magistrate Judge's Report and Recommendation; granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Fees and Fee Waivers, Fees: First, "the Court concludes that Defendant is permitted to request advance fees for covering the cost of Plaintiff's FOIA request." "The Court finds . . . that Plaintiff cannot evade the FOIA search fee by claiming that his request also falls under the scope of the Privacy Act." "Plaintiff cannot transform his FOIA request into a Privacy Act request, especially when Plaintiff has made no effort to satisfy the requirements of the Privacy Act through his FOIA requests." Second, "[t]he Court finds . . . that Defendant did not waive its rights to collect fees." "Defendant complied with FOIA's requests for seeking extension requests by filing multiple letters requesting extensions of time to respond to Plaintiff’s requests and asking Plaintiff to consider limiting the scope of his response, between . . . when Plaintiff filed his original FOIA request[] and . . . when Plaintiff filed the instant action." "Plaintiff's requests also presented 'unusual' and 'exceptional' circumstances, . . . because Plaintiff’s original request would have required Defendant to search between 750,000 and 1.5 million emails and to collect Blackberry PIN-to-PIN messages and text messages for seven employees from five offices over a 220 month period, and Plaintiff's modified request would have required Defendant to obtain up to 1.5 million emails from five offices." "Furthermore, because the '[c]ommencement of a civil action pursuant to the FOIA does not relieve a requester of his obligation to pay any required fees,' . . . the Court finds that Defendant's denial of the fee waiver request after the instant litigation was commenced does not amount to a waiver of its rights to collect the fee."
   
• Attorney Fees, Eligibility: The court "adopts the recommendation for the finding that Plaintiff is not entitled to attorney's fees and costs[]" because, "even if he succeeded on his claims, . . . Plaintiff is a pro se litigant."
   
• Litigation Considerations, Special Counsel Provision: "[T]he Court adopts the recommendation finding that Defendant did not act arbitrarily and capriciously" and, therefore the court will not "order referral to Special Counsel."