Manivannan v. DOE, No. 19-2188, 2021 WL 99719 (4th Cir. Jan. 12, 2021) (per curiam)

Manivannan v. DOE, No. 19-2188, 2021 WL 99719 (4th Cir. Jan. 12, 2021) (per curiam)

Re:  Requests for records concerning alleged official delivery of requester's personal belongings to him by NETL

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

• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the Fourth Circuit holds that "NETL was entitled to summary judgment with respect to [seven FOIA requests] because [the requester] failed to pay fees that NETL was permitted to assess."  Also, the court finds that "NETL was entitled to summary judgment with respect to [another request] because [the requester] did not exhaust his administrative remedies prior to filing suit."  "Further, [the requester] did not constructively exhaust his administrative remedies because NETL cured the statutory violation based on its failure to timely respond to [the requester's] request by responding before he filed suit."
  
  However, the court holds that "the district court erred in finding that [the requester] did not constructively exhaust his administrative remedies with respect to [one request]."  The court explains that "after the request was [administratively] remanded, NETL did not send [the requester] a new determination letter before he filed suit on November 6, 2017."  "Since more than 20 working days had elapsed, [the requester] had constructively exhausted his claim with respect to [the request], and he was entitled to seek 'judicial enforcement without appealing to the agency head or seeking further explanation from the agency as to why his request had not been timely processed.'"  "While the district court determined that NETL cured its failure to respond by sending a determination letter . . . two weeks before [the requester] filed his amended complaint . . . the date on which [the requester] filed his initial complaint is the appropriate benchmark for determining if NETL cured its failure to respond to [the request]."  "Indeed, we have held that an agency can defeat a requester's constructive exhaustion only if it responds to the request before the plaintiff 'files suit.'"
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Fourth Circuit holds that "NETL was entitled to summary judgment on the basis that its searches with respect to [two requests] were adequate."  "The agency met its burden of showing that it 'made a good faith effort to conduct a search . . . using methods which can be reasonably expected to produce the information requested.'"
   
• Exemption 6:  The Court of Appeals for the Fourth Circuit holds that "the agency met its burden to show that it properly redacted or withheld information pursuant to [Exemption 6] relating to personal privacy, and [the requester] failed to overcome the presumption of good faith accorded to the agency's relatively detailed and nonconclusory affidavits."
   
• Litigation Considerations, In Camera Inspection:  The Court of Appeals for the Fourth Circuit holds that "the district court did not abuse its discretion in determining that an in camera review was unnecessary to determine whether the agency validly applied the personal privacy exemption."
   
• Exemption 5, Deliberative Process Privilege & "Inter-Agency" or "Intra-Agency" Threshold Requirement:  The Court of Appeals for the Fourth Circuit "conclude[s] that the district court erred in finding that NETL met its burden to show that it properly redacted or withheld information pursuant to [Exemption 5] relating to legal privileges."  The court explains that "the district court lacked an adequate factual basis to rule on the propriety of NETL's redactions and withholding of documents under this exemption . . . ."  "Specifically, some of the responsive documents appear to have been sent to employees of Penn State University or attorneys in the district attorney's office that oversaw [the requester's] prosecution in Pennsylvania."  "As a threshold matter then, the district court should first determine if the records were 'inter-agency or intra-agency' before deciding whether NETL stated a good faith basis for applying the exemption.