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Marcusse v. OIP, No. 12-1025, 2013 WL 4046704 (D.D.C. August 12, 2013) (Kollar-Kotelly, J.)

Re: Request for records concerning plaintiff's criminal case Disposition: Granting defendants' motion for judgment
  • Exhaustion:  The court "dismiss[es] the claim arising from [one defendant's] response . . . albeit on a different ground from that advanced by the defendants."  The court declines to dismiss this particular claim for failure to exhaust because, "[this defendant's] response to plaintiff's May 12, 2009, request did not advise plaintiff about her right to appeal the determination and thus 'was insufficient under the FOIA to trigger the exhaustion requirement.'"  However, the court finds that, "[s]ince it not disputed that plaintiff failed to respond to [one defendant's] reasonable request for additional information so that it could process her broadly worded May 2009 request, the court finds either that it lacks jurisdiction over this claim since no improper withholding has yet occurred or that no claim capable of being redressed has been stated."  The court "declines defendants' invitation to dismiss some of the claims against [another defendant] for plaintiff's failure to exhaust administrative remedies with [that defendant]."  The court explains that, "the factual record is sufficiently developed to resolve the claims against EOUSA on the merits, and the FOIA's exhaustion requirement is not jurisdictional."
  • Searching for Responsive Records:  The court holds that it is "satisfied from the moving defendants' unrefuted declarations describing their searches that [two defendants] conducted searches reasonably calculated to locate all responsive records."
  • Exemption 7(C):  The court finds that, "summary judgment is warranted on the moving defendants' application of exemption 7(C) to the withheld third-party information."  The court first notes that although, "both exemptions [6 and 7(C)] are properly invoked, the court will address only exemption 7(C) since it is obvious from the requests themselves that the records plaintiff seeks were compiled for her criminal prosecution and, thus, satisfy exemption 7's threshold law enforcement requirement."  The court notes that, "plaintiff makes widespread, unsubstantiated accusations of governmental misconduct during her criminal prosecution."  The court finds that, "[t]he fact that plaintiff has been unsuccessful on direct appeal and in post-conviction proceedings tends to belie her claim of 'a nonexistent crime.'"  "Regardless, as a general rule applicable here, plaintiff's personal stake in obtaining documents in order to attack her conviction 'does not count in the calculation of the public interest.'"
Court Decision Topic(s)
District Court opinions
Exemption 7(C)
Litigation Considerations, Exhaustion of Administrative Remedies
Updated August 6, 2014