Wednesday, September 25, 2013
Re: Request for records concerning any nongovernment organizations that paid the United States Army for use of its computer network testing facility Disposition: Granting defendant's motion in part and denying defendant's motion in part
- Litigation Considerations, Exhaustion of Administrative Remedies: First, the court denies "[d]efendant's motion for summary judgment . . . as it relates to Plaintiff's 2008 FOIA request" because "[t]he parties do not dispute that Plaintiff has exhausted his administrative remedies regarding his 2008 FOIA request." Second, the court grants "[d]efendant's motion for summary judgment . . . as to Plaintiff's 2007 and 2009 FOIA requests" because "[p]laintiff failed to pursue appellate review from the head of the agency" and, therefore, "has failed to actually exhaust his administrative remedies under the FOIA." The court explains that "[r]egardless of the timeliness of [defendant's] initial response to Plaintiff's FOIA requests, Plaintiff has also failed to constructively exhaust his administrative remedies, as Defendant issued its  decision, appealable to the Secretary of the Army, prior to Plaintiff's filing suit." "As a result, the FOIA requires Plaintiff to complete the administrative appeal process prior to seeking judicial review." Third, that court finds that "Defendant is entitled to summary judgment . . . as it relates to Plaintiff's 2012 FOIA request" because "[r]egardless of whether [plaintiff] has constructively exhausted his administrative remedies . . . he is not entitled to judicial review." The court explains that "Plaintiff is statutorily obligated to pay all fees which [defendant] is authorized to collect, and constructive exhaustion does not relieve him of this obligation."
Updated August 6, 2014