UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) Y AHMII BALOGUN UHURU, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0566 (RJL) ) UNITED STATES PAROLE ) COMMISSION, et al., ) ) Defendants. ) ---------------------------)

MEMORANDUM OPINION

Plaintiff brings this action under the Freedom ofInformation Act ("FOIA"), see 5 U.S.c.

§ 552, against the United States Parole Commission ("USPC") alleging its failure to respond

timely to his request for USPC records. This matter is before the Court on defendant's motion

for summary judgment. For the reasons discussed herein, the motion will be granted.

I. BACKGROUND

Plaintiff is a military prisoner who currently is incarcerated in a federal correctional

institution. CompI. ~ 5. He alleges that he sent a FOIA request to the USPC on November 3,

2008, id. ~ 13, for the following information:

[M]y complete file, copies of all recordings and transcripts of all hearings conducted for me, all documents showing how my salient factor score was calculated, all notes, reports and summaries from hearing examiners, all documents relied upon by the examiners or the U.S.P.c. to make decisions about my parole eligibility, and any information relied upon to take me outside the guidelines.

-1- Mem. of P. & A in Supp. of the Mot. for Summ. 1. ("Def.·s Mem."), Decl. of Anissa N. Hunter

("Hunter Decl."), Ex. A (November 3,2008 FOIA request).

The US PC acknowledged receipt of plaintiffs FOIA request, and informed him of "a

backlog of unfilled request and limited personnel resources with which to process a large volume

of FOIA requests." Compl., App. A (November 10,2008 letter from M. Doherty, Student Intern,

USPC) at 1. The USPC further notified plaintiff that it was "operating under exceptional

circumstances as defined in 5 U.S.c. § 552(a)(6)(C), and [would] exercise due diligence in

responding to [his] request." Id. Plaintiff did not avail himself of the option to "modifY the

scope of [his] request to limit [the] request to only a few documents which may result in priority

processing." Id. at 2.1

The Clerk of Court received plaintiff's complaint on March 16,2009. See Compl. at 1.

He brought this action seeking "injunctive and all other appropriate relief and ... expedited

processing and release of agency records requested ... from the ... [USPC]." Id. ~ 1.

On July 22,2009, the USPC released "all of the documents [he] requested ... in [his]

active file as of the date of this response, except ... copies of presentence reports or any

document that states reasons for a sentencing decision." Notice of Withdraw[ al] of Mot. and

FOIA Processing [Dkt. #16], Ex. A (July 22, 2009 letter from AN. Hunter, FOIA Specialist,

USPC) at 1. Plaintiff challenged this decision by filing an administrative appeal to the USPC's

Chairman. Id., Ex. B (August 4, 2009 letter to the Chairman), explaining that the records

The USPC "has instituted a two-tiered system in which requests less voluminous than [plaintiffs] request are queued for processing separately and quicker than requests for containing greater quantities of information." Mem. of P. & A in Supp. of Def. 's Mot. for an Open America Stay and to Dismiss Individual Defs.[Dkt. #12], Decl. of Anissa N. Hunter ~ 10.

-2- released did not include transcripts or tape recordings of parole hearings in 2001, 2003, and

2007, id. at l. Subsequently, the USPC released "audio recordings for [his] parole hearings dated

July 23,2001 and June 30, 2003," Id., Ex. C (August 19,2009 letter from 1. Fulwood, Chairman,

USPC), as well as "an audio recording[l of[hisJ parole hearing dated June 25, 2007," id., Ex. D

(September 8, 2009 letter from 1. Fulwood). For reasons that are not explained in the record,

plaintiff did not receive these recordings. Notice of Response to Def.'s Notice to Withdraw [sic]

of Mot. and of FlO A [sic] Processing at l. On October 20,2009, the US PC sent "copies of the

audio recordings of his hearings that occurred on July 23,2001, June 30, 2003, and June 29,

2005." Hunter Dec!. ~ 4; see id., Ex. E (October 20,2009 letter from A.N. Hunter). The USPC

did not send an audio recording of the June 25, 2007 parole hearing because the original

recording was no longer functioning and no other recordings were available. Id. The recordings

were sent by first class mail to plaintiff at the Hazelton United States Penitentiary, care of

plaintiffs case manager. Id. ~ 5.

II. DISCUSSION

A. Summary Judgment Standard

The Court grants a motion for summary judgment if the pleadings, the discovery and

disclosure materials on file, together with any affidavits or declarations, show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a

genuine issue of material fact. Celotex Corp. v. Catrelf,

(1986). "rA] material

fact is 'genuine' ... if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party" on an element of the claim. Anderson v. Liberty Lobby, Inc.,

,

-3- 248 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted

as true unless the opposing party submits his own affidavits or declarations or documentary

evidence to the contrary. Neal v. Kelly,

(D.C. Cir. 1992). In opposing a

summary judgment motion, a party may not "replace conclusory allegations of the complaint or

answer with conclusory allegations of an affidavit," Lujan v. Nat 'I Wildlife Fed'n,

(1990), but rather must "set forth specific facts showing that there is a genuine issue for

trial." Liberty Lobby,

.

In a FOIA case, the Court may grant summary judgment based on information provided

in an agency's affidavits or declarations when they describe "the documents and the justifications

for nondisclosure with reasonably specific detail, demonstrate that the information withheld

logically falls within the claimed exemption, and are not controverted by either contrary evidence

in the record nor by evidence of agency bad faith." Military Audit Project v. Casey,

(D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good

faith, which cannot be rebutted by 'purely speCUlative claims about the existence and

discoverability of other documents. '" Safe Card Servs., Inc. v. Sec. & Exch. Comm 'n,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency,

(D.C. Cir. 1981 )).

B. Plaint~ff Is Not Entitled to Judgment In His Favor Due (0 the USPC's Delay in Responding to his FOIA Request

Under the FOIA, an agency "shall ... determine within 20 days (excepting Saturdays,

Sundays, and legal public holidays) after the receipt of [a FOIA] request whether to comply with

[the] request and shall immediately notify the person making [the] request of [its] determination

-4- and the reasons therefor." 5 U.S.c. § 552(a)(6)(A). If the agency "can show exceptional

circumstances exist[,]" and if it shows that it "is exercising due diligence in responding to the

request," the agency may be granted "additional time to complete its review of the records." 5

U.S.c. § 552(a)(6)(C)(i).

Plaintiff does not contend that the USPC has refused to release the records he requested,

and he raises no challenge to the method by which the USPC conducted its search for the

responsive records. 2 Rather, he characterizes "[t]he central issue before this Court [as the]

USPC's failure to comply with [his] FOIA request within a timely manner." Pl.'s Mem. ofP. &

The USPC's supporting declaration explains its filing system and the search for responsive records as follows:

Files containing paper documents are maintained in the [USPC's] central office for inmates and parolees. All materials pertaining to the [US PC]' s decision to grant, deny, rescind, and/or revoke parole of an inmate under the [USPC's] jurisdiction ... are placed in a parole tile retrievable by that inmate's name and register number. A parole file is established for an inmate following his first parole determination hearing and initially contains those materials considered at the inmate's first parole hearing. Any materials concerning the inmate[] received subsequent to the initial hearing[] are placed in the file in chronological order. Parole files are maintained in the [USPC's] Records Center. In answering a FOIA request, [the FOIA Specialist] uses the [USPC's] electronic TRAK program to request the inmate parole file from the ... Records Center[, and the request is made] either by inmate name or register number. The Records Center then delivers the file to the Office of General Counsel for ... review and action.

Mem. of P. & A. in Supp. of Def.'s Mot. for an Open America Stay and to Dismiss Individual Defs., Decl. of Anissa N. Hunter ~ 4. It is apparent that the FOIA Specialist retrieved records responsive to plaintitrs FOIA request using his name and register number as search terms. The Court finds that the USPC's search for responsive records was reasonable and adequate under the circumstances. And because the US PC has released all the records in their entirety, the Court concludes that all segregable records have been released.

-5- A. in Opp'n to Def. 's Mot. for Summ. J. ("PI. 's Opp'n") at 1. He asserts that the USPC "allowed

344 days to elapse before meeting [his] FOIA request [and] [i]n so doing [the] USPC wrongfully

withheld the requested records from plaintiff." ld. at 4. In his view, the USPC has not

established that exceptional circumstances exist, id. at 3, and its "decision to release records ...

only after the filing of a complaint does not absolve or release USPC from the legal duty and

responsibility of responding within the statutory time limitations," id. at 4. For these reasons, he

demands judgment in his favor. See id. at 2.

The Court's authority under the FOIA is neatly summarized as follows:

The FOIA authorizes the court only "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.c. § 552(a)( 4)(B). Thus, the elements of a FOIA claim are (l) improperly (2) withheld (3) agency records. "Judicial authority to devise remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5 U.S.c.] § 5521 (a)(4)(B)], if the agency has contravened all three components of this obligation." Kissinger v. Reporters Comm. for Freedom of the Press,

(1980).

Antonelli v. u.s. Parole Comm 'n,

(D.D.C. 2009) (brackets in original). Where, as here, plaintiff concedes that he has received all the records he requested, it cannot be

said that the USPC improperly withheld agency records. The delay in the release of the

requested records alone is not a basis for granting the relief plaintiff demands. '"[H]owever fitful

or delayed the release of information under the FOIA may be, once all requested records are

surrendered, federal courts have no further statutory function to perform." Perry v. Block,

(D.C. Cir. 1982).

-6- C. Plaintiff Is Not Entitled to an Award of Fees and Costs

Plaintiff asserts that the USPC's "failure to comply in a timely manner has caused [him]

to suffer injury in the form ofa 'cost to abide event' totaling $7,500 to date." P!.'s Opp'n to

Def.'s Mot. for Summ. J. at 1. He claims to have incurred costs in conducting this action, P!.'s

Opp'n at 5, but does not seek an award for attorney fees, id. at 6.

The FOIA permits a district court to "assess ... other litigation costs reasonably incurred

in any case ... in which the [plaintit1] has substantially prevailed." 5 U.S.c. § 552(a)(4)(E)(i).

A party substantially prevails if he "has obtained relief through either ... a judicial order, or an

enforceable written agreement or consent decree[,] or ... a voluntary or unilateral change in

position by the agency, if the complainant's claim is not insubstantia!'''

(a)(4)(E)(ii). The latter provision "essentially codifies the so-called 'catalyst theory' for

determining a fee request against the United States, under which a plaintiff is deemed to have

'substantially prevailed' for purposes of § 552(a)(4)(E) if the 'litigation substantially caused the

requested records to be released. '" N. Y. C. Apparel F. Z. E. v. United States Customs and Border

Protection Bureau,

(D.D.C. 2008) (quoting Chesapeake BcZy Found v.

Dep't ofAgric.,

(D.C. Cir. 1993)); see Zarcon, Inc. v. Nat 'I Labor Relations

Bd., No. 06-3161-CV -S-REO,

, at *2 (W.O. Mo. Mar. 25,2008). '"The

catalyst theory assumes that a voluntary or unilateral change in an agency's position is induced

by the complainant's lawsuit." Wildlands CPR v. United States Forest Serv.,

(D. Mont. 2008).

The decision to award attorneys' fees and costs is left to the Court's discretion. See

Nationwide Bldg. Maint., Inc. v. Sampson,

(D.C. Cir. 1977) (commenting

-7- that § 552(a)(4)(E) "contemplates a reasoned exercise of the courts' discretion taking into

account all relevant factors"). In making this decision, the Court considers .,( 1) the public benefit

derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiffs

interest in the records; and (4) the reasonableness of the agency's withholding of the requested

documents." Davy v. Cent. Intelligence Agency,

(D.C. Cir. 2008) (citations

omitted). "No one factor is dispositive, although the [C Jourt will not assess fees when the

agency has demonstrated that it had a lawful right to withhold disclosure."

Because the USPC released the requested records after plaintiff filed his lawsuit, its

actions reasonably can be considered "a voluntary or unilateral change in position by the

agency."

(a)(4)(E)(ii). This determination alone does not justify an award of

costs, however. Such an award is warranted only if plaintiffs claim is determined not to be

"insubstantial."

(a)(4)(E)(ii).

Although the precise nature of plaintiff s interest in the records is unknown, the Court

presumes that plaintiff has requested records pertaining to his parole hearings for his personal

benefit. For this reason, it appears that the public derives no benefit from this case and that the

plaintifT derives no commercial benefit. The USPC did not withhold records in this case.

Rather, there was a delay in release of the requested records because there had been only one full-

time staff person devoted to processing a large volume of FOIA requests, 67 of which were in the

queue ahead of plaintiffs request. See Mem. ofP. & A. in Supp. ofDef.'s Mot. for an Open

America Stay and to Dismiss Individual Defs., Declaration of Anissa N. Hunter ~~ 8-10. The

Court concludes that plaintiffs claim is insubstantial, and his request for an award of costs will

be denied. Moreover, to the extent that plaintifT demands an award of costs as a sanction for the

-8- USPC's delay in responding to this FOIA request, the FOIA does not recognize such a claim, see

5 U.S.c. § 552(a)(4)(B) (stating that federal courts have jurisdiction only to "enjoin the agency

from withholding agency records and to order the production of any agency records improperly

withheld"), and plaintitT is not entitled to costs as a remedy for the USPC's untimeliness. See

Schmidt v. Shah, No. 08-2185,

, at *10 (D.D.C. Mar 18,2010) (denying

"sanctions as a remedy for the untimeliness of [the agency's] responses").

III. CONCLUSION

The USPC has established its full compliance with the FOIA, and its motion for summary

judgment will be granted. An appropriate Order accompanies this Memorandum Opinion.

-9-