McKathan v. DHS, No. 22-1865, 2025 WL 2779934 (D.D.C. Sept. 30, 2025) (Friedrich, J.)

McKathan v. DHS, No. 22-1865, 2025 WL 2779934 (D.D.C. Sept. 30, 2025) (Friedrich, J.)

Re: Request for records concerning plaintiff’s prosecution for child pornography

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that “[plaintiff’s] failure to exhaust the EOUSA’s administrative process bars his claim for judicial review.” “[Plaintiff] does not contest that the EOUSA responded to his request before he filed this action.”  “The EOUSA thus cured any timeliness issues.”  “Even so, [plaintiff] argues that he is entitled to judicial review because the EOUSA never made a ‘determination’ that would trigger his duty to exhaust.”  “But this argument fails because in its May 12, 2022 response, the EOUSA made two determinations:  (1) to comply with [plaintiff’s] request for records and (2) to deny his fee-waiver request.”  “[Plaintiff] neither paid the fee nor narrowed his request.”  “Nor did he appeal the assessment of fees or the denial of his fee-waiver request.”  “Such ‘failure to comply with an agency’s FOIA regulations is the equivalent of a failure to exhaust.’”  “[Plaintiff] further suggests that constructive exhaustion applies here because the EOUSA failed to include in its letter information about his right to appeal.” “But the statute requires notice of the right to administrative appeal as to adverse determinations of records requests.”  “The EOUSA’s denial of the fee-waiver request was adverse, but it was not an adverse determination of a request for records.”  “And although the EOUSA impliedly denied the waiver by requesting [plaintiff] pay a $456 fee, the EOUSA explicitly stated its determination to comply with the request for records.”  “Without an adverse determination with respect to the records request, the lack of information in the EOUSA letter about the right to appeal does not trigger constructive exhaustion.”  “[Plaintiff] was therefore required to exhaust his administrative remedies before seeking judicial review.”
   
• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The court holds that “the Criminal Division’s search was adequate.”  “As an initial matter, neither [plaintiff’s] cross-motion for summary judgment nor his opposition to the defendants’ motion for summary judgment disputes the adequacy of the Criminal Division’s search.”  “But even considering the forfeited argument, it fails on the merits.”  “The Criminal Division’s search was ‘reasonably calculated to discover’ the requested documents.”  “The Criminal Division followed its standard procedure to process the FOIA requests.” “Once the Criminal Division’s FOIA Unit learned that [plaintiff’s] conviction pertained to child pornography, it determined that the Obscenity Section was the office most likely to maintain responsive records.”  “Consistent with [plaintiff’s] request for ‘[a]ny and all records of any kind,’ ‘located in any location’ that mention his name, address, or phone number, . . . the Obscenity Section searched its case-management system for mentions of [plaintiff], his address, or his phone number.”  “In these circumstances, the fact that the searches turned up no responsive records, . . . bears little on the adequacy of the search.”  “As explained, the adequacy of the search is ‘judged by a standard of reasonableness and depends . . . upon the facts of each case.’”