UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEREMY PINSON, : : Plaintiff, : Civil Action No.: 12-01872 (RC) : v. : Re Document No.: 187 : UNITED STATES DEP’T OF STATE, et al. : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Pro se Plaintiff Jeremy Pinson is currently an inmate at ADX Florence, a federal prison

located in Colorado. While in Prison, Mr. Pinson has filed multiple Freedom of Information Act

(“FOIA”),

, requests with different components of the U.S. Department of Justice

(“DOJ”). On several occasions, the DOJ has asked Mr. Pinson to clarify his records requests,

told him that it could not find records that are responsive to his requests, or informed him that the

records he sought were exempt from disclosure by law. Mr. Pinson took issue with some of

these determinations, so he filed a complaint claiming that the DOJ improperly withheld

numerous records from him in violation of FOIA. In response, the DOJ filed several pre-answer

motions, each asking the Court to dismiss or grant summary judgment in its favor on different

portions of Mr. Pinson’s complaint.

On March 12, 2014, the DOJ moved the Court for partial summary judgment as to FOIA

Request Numbers 145-FOI-10314 and 145-FOI-10573, both directed to DOJ’s Civil Division.

The Court granted Defendants’ motion with respect to Request Number 145-FOI-10314, but denied the motion with respect to Request Number 145-FOI-10573, reasoning that the Civil

Division failed to sufficiently describe why the search would be unreasonably burdensome. On

March 19, 2015, Defendants filed a renewed motion for partial summary judgment addressing

Request Number 145-FOI-10573, which is now before the Court. For the reasons stated below,

the Court grants the motion.

II. FACTUAL BACKGROUND

By letter dated April 20, 2011, Mr. Pinson made a FOIA request (Request Number 145-

FOI-10573) to the Civil Division requesting copies of “all settlement agreements entered into, or

involving, the Bureau of Prisons arising from civil litigation challenging the conditions, or

conduct of staff, at the U.S. Penitentiary Administrative Maximum at Florence, Colo[rado].”

Pinson Letter, ECF No. 187-1 at 5. The request also instructed that Defendants “not use more

than 2 hours search time when processing this request and . . . not produce more than 100 pages

of information.”

Because of the broad scope of the request and the nature of the Civil Division’s records

system, the Civil Division believed that Mr. Pinson’s request required an unreasonable amount

of effort to conduct a search for responsive records. See Defs.’ Statement of Facts (“SOF”) ¶ 2,

ECF No. 187 (citing Kovakas 1st Decl. ¶¶ 8, 12, ECF No. 55-3). The Civil Division sent a letter

dated May 17, 2011, notifying Mr. Pinson of its refusal to conduct the search and inviting Mr.

Pinson to narrow the scope of his request or to provide additional information that would allow a

search to be conducted with a reasonable amount of effort. See

The letter explained to Mr.

Pinson that “the broad scope of this . . . request did not allow . . . a search for records responsive

to his request with a reasonable amount of effort as required by DOJ regulations at

(b).” Kovakas 1st Decl. ¶ 8. It also informed Mr. Pinson that if the Civil Division did not

2 receive a response to its letter within 10 business days, it would close the request.

The Civil

Division did not receive any response from Mr. Pinson to the May 17, 2011 letter, and it closed

the request.

By letter dated May 30, 2011, Mr. Pinson administratively appealed the Civil Division’s

decision, which was subsequently reviewed by DOJ’s Office of Information Policy.

.

The Office of Information Policy (“OIP”) affirmed DOJ’s refusal, reasoning that the retrieval of

the requested information “would require [the Civil Division] to conduct an unreasonably

burdensome search.” OIP Letter, Sept. 19, 2011, Def.’s Ex. E, ECF No. 55-8. OIP advised that

“the Civil Division does not catalog its cases in such a way that it would be able to search for

civil litigation pertaining to a particular [Federal Bureau of Prisons (“BOP”)] facility,” and it

encouraged Mr. Pinson to submit a request to the BOP for the desired information.

Mr.

Pinson instead filed this lawsuit, alleging that the Civil Division’s refusal to conduct a search and

produce responsive documents violated FOIA.

On March 12, 2014, Defendants moved for partial summary judgment with respect to Mr.

Pinson’s FOIA Request Numbers 145-FOI-10314 and 145-FOI-10573. See Defs.’ 1st Mot.

Summ. J., ECF No. 55. Although the Court granted the motion with respect to Request Number

145-FOI-10314, it denied summary judgment with respect to Request Number 145-FOI-10573.

See Mem. Op., Feb. 23, 2015, ECF No. 169. The Court reasoned that Defendants “failed to

sufficiently describe why the search would be unreasonably burdensome.”

. The Court

explained that Defendants had not offered any “estimate of the time required to conduct Mr.

Pinson’s requested search, the cost of a search, or the number of files that would have to be

searched,” nor had it “explain[ed] why a more limited search would be unfruitful or whether

3 other parts of the Civil Division might have easier access to, at least, some of the requested

information.”

.

On March 19, 2015, Defendants renewed their motion for partial summary judgment as

to FOIA Request Number 145-FOI-10573, which is now before the Court. Defendants have

provided a detailed declaration in support of their position that the search would be too

burdensome, including estimates of the cost and time required to perform an appropriate search.

See Defs.’ 2nd Mot. Partial Summ. J., ECF No. 187 at 10–11. In response, Mr. Pinson argues

that Defendants’ motion for summary judgment must be denied because the estimated cost of the

requested search was “manufactured” and could potentially be reduced if the DOJ took

“common sense steps” and sought input from local U.S. Attorneys. See Pl.’s Resp. Mot. Partial

Summ. J. (“Pl.’s Resp.”), ECF No. 205 at 2–3. Mr. Pinson also argues that he is entitled to

amend his FOIA request to include a fee waiver request, because he is a “writer for Prison Legal

News and the San Francisco Bay View Newspaper,” who is “operating on a non-profit basis and

will receive no commercial benefit from the dissemination of the information.”

.

III. ANALYSIS

A. Legal Standard

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support

the assertion by: (1) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other

materials; or (2) showing that the materials cited do not establish the absence or presence of a

4 genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c). However, the mere existence of a factual dispute, by itself, is

insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc.,

(1986). “Only disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.”

Conclusory assertions offered

without any factual basis in the record cannot create a genuine dispute. See Ass’n of Flight

Attendants-CWA v. U.S. Dep’t of Transp.,

(D.C. Cir. 2009). “FOIA cases

typically and appropriately are decided on motions for summary judgment.” ViroPharma Inc. v.

Dep’t. of Health & Human Servs.,

(D.D.C. 2012).

B. Request Number 145-FOI-10573

Defendants argue that the Civil Division reasonably refused to conduct a search in

response to request number 145-FOI-10573, because the request was overly broad and would

have required an unreasonably burdensome search. Mr. Pinson argues that Defendants should be

denied summary judgment because Defendants’ estimate of cost needed for the requested search

did not account for simple approaches to obtain the information requested, like sending emails to

the U.S. Attorney’s Office for the District of Colorado. Although the Court agrees that

Defendants’ explanation is still lacking in some respects, the Court concludes that Defendants

have sufficiently established that they cannot conduct a reasonable search within the two-hour

time limit imposed by Mr. Pinson.

In its previous memorandum opinion, this Court explained that it denied Defendants’

motion because they “failed to sufficiently describe why the search would be unreasonably

burdensome.” Mem. Op. at 7. Indeed, Defendants failed to offer any estimate of the time

required to conduct Mr. Pinson’s requested search, the cost of such a search, or the number of

5 files that would have to be manually searched. See generally Defs.’ 1st Mot. Partial Summ. J. In

the renewed motion, however, Defendants explained that a search of the Civil Division case file

database identified “more than 29,920 cases relating to BOP civil litigation.” Defs.’ 2nd Mot.

Partial Summ. J. at 10. Because the database does not contain “indexes or codes that would

permit the identification and selection of case files that might contain the settlement

agreements,” the only way that Civil Division could respond to Mr. Pinson’s request is to search

all of the identified files.

(citing Kovakas 1st Decl. ¶ 12). Defendants argue that this would

require the Civil Division to expend 44,886 hours and $1,256,808, which is grossly

disproportionate and in contravention of Mr. Pinson’s instruction not to “use more than 2 hours

search time when processing [his] request.”

at 11 (citing Kovakas Suppl. Decl. ¶ 5). From

these facts it is clear that requiring the Civil Division to perform a responsive search of its case

file database would be unduly burdensome. Cf. Wolf v. CIA,

(D.D.C. 2008)

(finding a search of microfilm that would take an estimated 3675 hours and cost $147,000 to be

unreasonably burdensome).

Mr. Pinson argues that Defendants’ explanation is still insufficient because there may be

less burdensome ways to conduct a responsive search. Specifically, Mr. Pinson notes that

Defendants have “failed to explain why the search could not be reduced by simply emailing the

district involved to seek input from local U.S. Attorneys on any cases they can quickly recall

were settled.” See Pl.’s Response at 3. This Court noted in its prior Memorandum Opinion that

Defendants had “made no effort to conduct a search that is either broader or narrower than Mr.

Pinson’s requested search.” Mem. Op. at 8. In their renewed motion, however, Defendants have

come forward to explain that even a database search restricted to the District of Colorado would

take over 1,300 hours and cost more than $36,000. See Kovakas Suppl. Decl. ¶ 5.

6 Although Mr. Pinson argues that contacting U.S. Attorneys could reduce the scope of the

search, he has provided no authority to suggest that the Civil Division bears the burden under

FOIA of soliciting information from other DOJ components in an effort to narrow an otherwise

unduly burdensome search. 1 See Pl.’s Response at 3. Moreover, it is highly unlikely that even

the type of search that Mr. Pinson suggests could be accomplished within the two-hour limit he

imposed. 2

Mr. Pinson’s final argument is that he is entitled to amend his request and to obtain a fee

waiver. See Pl.’s Response at 2-3. Mr. Pinson, however, never sought to amend his request or to

obtain a fee waiver from the agency. Under FOIA, courts review de novo an agency’s decision

to deny a fee waiver request, looking only at the administrative record available at the time of

decision. See Jarvik v. CIA,

, 70–71 (D.D.C. 2007) (citing

(a)(4)(A)(vii)). Because no record of a fee waiver request exists here, however, there is

nothing to review. Accordingly, Mr. Pinson’s claim that he should have received a fee waiver

cannot be raised for the first time in opposition to a dispositive motion, and it provides no basis

for denying Defendants’ motion for summary judgment. See Hidalgo v. FBI,

,

1258–59 (D.C. Cir. 2003) (finding that failure to exhaust administrative remedies precluded

judicial review because the agency “had no opportunity to consider the very issue that [the

plaintiff] has raised” in court); see also Oglesby v. U.S. Dep’t of Army,

(D.C.

1 Under DOJ’s FOIA regulations, “[t]he Department has a decentralized system for responding to FOIA requests, with each component designating a FOIA office to process records from that component,” so “[t]o make a request for records of that Department, a requester should write directly to the FOIA office of the component that maintains the records being sought.” See

(a)(1). The U.S. Attorney’s Offices are a separate DOJ component from the Civil Division. 2 In the Court’s prior opinion, it noted that among other things, the Civil Division had not explained why it had not queried other branches within the Civil Division. See Mem. Op. at 9. But such a search would also likely require more than two hours of search time.

7 Cir. 1990) (“Exhaustion does not occur until the required fees are paid or an appeal is taken from

the refusal to waive fees.”); Monroe-Bey v. FBI,

, 95–96 (D.D.C. 2012) (“A

FOIA requester must exhaust his administrative remedies by paying any assessed fees or

appealing the denial of a fee waiver request before obtaining judicial review of a FOIA claim.”).

The Court finds that Defendants have established through an adequately detailed declaration that

they cannot conduct a reasonable search within the two-hour time limit imposed by Mr. Pinson.

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendants’ renewed motion for partial

summary judgment. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: August 17, 2015 RUDOLPH CONTRERAS United States District Judge

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