Shapiro v. SSA, No. 19-000238, 2021 WL 858693 (D. Vt. Mar. 8, 2021) (Reiss, J.)

Shapiro v. SSA, No. 19-000238, 2021 WL 858693 (D. Vt. Mar. 8, 2021) (Reiss, J.)

Re:  Request for records concerning inclusion or exclusion of proposed listing for impairments due to migraine and other headache disorders in Social Security Administration ("SSA") Listing of Impairments (Blue Book)

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "Defendant's motion to dismiss or, in the alternative, for summary judgment because Plaintiff failed to exhaust his administrative remedies is denied."  The court addresses defendant's argument "that Plaintiff’s FOIA request was not 'perfected' and therefore he did not exhaust his administrative remedies because he did not reasonably describe the records sought."  The court finds that "[h]ere, Defendant opted to respond to Plaintiff's FOIA request by producing two memoranda and withholding 1,377 pages of responsive documents under FOIA Exemptions 5 and 6."  "Although Defendant may have been under no obligation to process Plaintiff's FOIA request, it chose to do so and made no initial claim that it was unreasonably broad or burdensome."  "In such circumstances, Defendant should not be heard to belatedly assert that Plaintiff's claim was not perfected."
   
• Procedural Requirements, Proper FOIA Requests:  The court holds that "Defendant has sustained its burden of demonstrating that Plaintiff's FOIA request was unreasonably broad and burdensome based not only on [defendant's] Declaration, but due to the breadth of the records sought."  The court finds that "[o]n its face, Plaintiff's FOIA request had no time limits, no document type limitations, no custodian limitations, no geographic locations, and encompassed numerous subject matters."  "It extends not only to the documents within Defendant's offices but also between Defendant and all 'offices of other Federal Government agencies.'"  "It was therefore clearly unreasonably broad in the breadth of records it sought."  "Defendant contends that reviewing the identified 1,581,644 pages alone would take at least 193,311 hours of full-time work and would cost approximately $7,293,140.00 because, based on the type of records sought, it would require a line-by-line manual review of documents likely to contain deliberative process exemptions."
   
• Fees and Fee Waivers:  The court holds that "[b]ecause no exception excuses Defendant's non-compliance with FOIA deadlines, Plaintiff's cross-motion for summary judgment for a refund of his fee is granted."  "Defendant is therefore prevented from assessing a fee when it fails to comply with FOIA time requirements unless there is an exception under 5 U.S.C. § 552(a)(4)(viii)(II)."
   
• Attorney Fees:  The court holds that "although Plaintiff's FOIA request was unreasonably broad and burdensome, Defendant provided Plaintiff with no opportunity to narrow it but instead waited until Plaintiff filed an appeal to conduct a more thorough search."  "In doing so, Defendant failed to comply with FOIA's deadlines."  "Had Defendant acted in a timely manner and rejected Plaintiff's initial request, Plaintiff could have narrowed it and obtained responsive documents for his scholarly endeavors."  "Defendant offered Plaintiff no explanation as to why the withheld documents were supported by FOIA exemptions and offers no explanation to this court."  "Until it does so, the court cannot evaluate whether its first response to Plaintiff's FOIA request wrongfully withheld responsive documents."  "As Defendant concedes its first search was too narrow, it not only substantially contributed to the delay in this case, but impeded Plaintiff's request for documents in furtherance of the public interest."  "Plaintiff has no apparent commercial interest in the information, and the Agency's piecemeal response to his request frustrated the legislative purpose of FOIA."  "Defendant has, however, prevailed in its argument that Plaintiff's FOIA request was unreasonably broad and burdensome."  "Because this case presents a close call as to which party is the prevailing party, the court awaits Defendant's submission of information in support of the withheld documents under FOIA Exemptions 5 and 6."