UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PETER M. BERNEGGER,

Plaintiff,

v. Civil Action No. 18-908 (RDM) EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,

Defendant.

MEMORANDUM OPINION

Peter M. Bernegger, proceeding pro se, brings this Freedom of Information Act

(“FOIA”),

, and Privacy Act, 5 U.S.C. § 552a, action against the Executive Office

for United States Attorneys (“EOUSA”). See Dkt. 1. In the request underlying this action,

Bernegger sought “the complete and total file” related to his prosecution and conviction for mail

and bank fraud in the Northern District of Mississippi. Dkt. 34-3 at 2. The EOUSA has moved

for summary judgment on the grounds that Bernegger has neither paid the duplication fees

associated with his request nor identified any basis to upset the agency’s denial of a fee waiver.

Dkt. 34. For the reasons that follow, the Court will GRANT the EOUSA’s motion.

I. BACKGROUND

A. Factual Background

In 2009, a jury in the Northern District of Mississippi convicted Bernegger of mail and

bank fraud. See Bernegger v. Exec. Off. for United States Att’ys,

(D.D.C.

2018). Bernegger was sentenced to 70 months in prison and ordered to pay $2.1 million in

restitution. See United States v. Bernegger,

(5th Cir. 2011) (per curiam). In the years that followed, “Bernegger filed multiple lawsuits seeking to expose the ‘corrupt[ion,]’

‘misconduct,’ ‘fraud,’ and ‘lies’ of nearly 20 people involved in his criminal case, including

judges, judicial staff, state officials, and prosecutors.” Bernegger,

(quoting

In re Bernegger, No. 3:15-cv-182,

, at *8–10 (N.D. Miss. Dec. 8, 2018)).

After nearly a decade of litigation of this kind, the Northern District of Mississippi “impose[d] a

sanction”—a pre-filing screening requirement—“designed to curb Mr. Bernegger’s penchant for

abusing judicial process by filing frivolous and malicious pleadings, motions, and

communications with the court.” In re Bernegger,

, at *11–12.

Before this Court, Bernegger has filed two lawsuits regarding FOIA and Privacy Act

requests related to his prosecution. Bernegger filed the first in March 2017 regarding a FOIA

and Privacy Act request to the EOUSA seeking “all emails and/or other electronic

communications” of four Assistant U.S. Attorneys who worked on his case. Bernegger, 334 F.

Supp. 3d at 82–83. This Court granted in part and denied in part the EOUSA’s motion for

summary judgment on September 20, 2018, concluding that the EOUSA had yet to carry its

burden of justifying two sets of withholdings.

. The Court resolved both outstanding

issues in favor of the EOUSA after the EOUSA submitted an unredacted version of an email for

in camera review, see Minute Order, Bernegger v. Exec. Off. for United States Att’ys, No. 17-cv-

563 (D.D.C. Sept. 28, 2018), and then renewed its motion for summary judgment with further

justifications for its remaining withholdings, see Mem. Op. and Order, Bernegger v. Exec. Off.

for United States Att’ys, No 17-cv-563 (D.D.C. Aug. 26, 2019).

This is the second FOIA and Privacy Act suit filed by Bernegger in this Court. In the

request underlying this action—submitted on December 11, 2015—Bernegger sought “the

complete and total file” for his case from the U.S. Attorney’s Office for the Northern District of

2 Mississippi. Dkt. 34-3 at 2 (Ex. 2 at 2). This included, according to Bernegger, “all, any[,] and

every . . . hardcopy printed document, note, transcript, fax, email, record, file, exhibit,

communication, letter, memorandum, work product, [and] attorney work product” for each

prosecutor on his case, along with “all, any[,] and every . . . grand jury form/document/paper, . . .

the full grand jury transcript” and “each/every/all documents given to the grand jury and also

received back from the grand jury.”

Bernegger’s request also encompassed “[a]ll, any[,] and

every electronic data/information/record/information/record/file such as but not limited to[]

photographs, computer tapes, videos, emails, file[s], record[s], [and] notes.”

The EOUSA acknowledged this request on January 14, 2016, Dkt. 34-3 at 4 (Ex. 2 at 4),

and sent the request to the U.S. Attorney’s Office for the Northern District of Mississippi “to

perform a search for responsive records,” Dkt. 34-2 at 4 (Hudgins Decl. ¶ 7). On June 22, 2016,

the EOUSA informed Bernegger that the agency had identified “approximately 8,950 pages of

records that [were] potentially responsive” to his request. Dkt. 34-3 at 8 (Ex. 2 at 8). The

estimated duplication fees associated with processing those records totaled $442.50 because

Bernegger would “receive the first 100 pages” without charges and would be charged $0.05 a

page for the remaining 8,850 pages.

(8,850 x .05 = 442.50). The EOUSA further explained

that because the estimated fees exceeded $250.00, Bernegger would need to make “an advance

payment” of $442.50 “before [the EOUSA would] continue processing [his] request.”

(citing

(i)). That letter also apprised Bernegger of his right to appeal the agency’s fee

estimate.

(Ex. 2 at 9).

Bernegger did so on March 9, 2017, filing an appeal with the relevant administrative

body, the Office of Information Policy (“OIP”).

(Ex. 2 at 12). Bernegger advanced

three arguments in favor of a fee waiver. First, according to Bernegger, the requested records

3 were needed for a “criminal investigation” into one of his prosecutors, whom Bernegger

maintained had been “caught lying and cheating in federal court in another case.”

Second,

Bernegger claimed that “3 news media outlets . . . wish[ed] to conduct a story on [that

prosecutor’s] fraud and lies.”

Third, Bernegger “need[ed] the information sought to prove”

what he had claimed about that prosecutor “in regards to a criminal complaint [he] filed with the

proper federal authorities.”

Rather than resolve these arguments in the first instance, the OIP

remanded the matter to the EOUSA to address them.

at 20–21 (Ex. 2 at 20–21).

On remand, the EOUSA found Bernegger’s arguments insufficient to warrant a waiver of

the otherwise applicable fees.

at 23–24 (Ex. 2 at 23–24). As the EOUSA noted, a request for

a fee waiver requires showing that “disclosure of the [requested] information is in the public

interest because it is likely to contribute significantly to public understanding of the operations

and activities of the government and is not primarily in the commercial interest of the requester.”

(a)(4)(A)(iii). Under the relevant regulations, disclosure is “in the public interest

because it is likely to contribute significantly to public understanding of the operations or

activities of the government.”

(k)(2). In making this determination, “[a]

requester’s expertise in the subject area as well as the requester’s ability and intention to

effectively convey information to the public must be considered.”

§ 16.10(k)(2)(ii)(B).

Applying these standards, the EOUSA concluded Bernegger had failed to make several

required showings. See Dkt. 34-3 at 23–25 (Ex. 2 at 23–25). Bernegger had not, according to

the EOUSA, “shown with any specificity what, if any, informative value is contained in the

records [he was] seeking and how that information [wa]s likely to contribute to the public’s

understanding of a specific operation or activity of the government,” much less that it would

“contribute[] in a ‘significant’ way.” Id. at 24 (Ex. 2 at 24). Bernegger also failed to

4 demonstrate his “ability to disseminate the requested records to the public.” Id. “Accordingly,”

the EOUSA concluded, his “request must be denied,” and so directed Bernegger to prepay the

required fees. Id.; see also id. at 26–27 (Ex. 2 at 26–27).

Bernegger again appealed to the OIP. Id. at 33–34 (Ex. 2 at 33–34). This time, however,

the OIP denied his appeal. Id. at 44 (Ex. 2 at 44). Like the EOUSA, the OIP concluded that

Bernegger “failed to explain how providing [the requested] information [would] contribute

significantly to public understanding of the operations and activities of the government.” Id.

The OIP acknowledged Bernegger’s argument “that federal prosecutors tampered with a grand

jury,” but noted that “unsupported allegations of government misconduct do not demonstrate that

requested records are ‘meaningfully informative’ of government operations.” Id. (quoting Klein

v. Toupin, No. 05-cv-647,

, at *4 (D.D.C. May 24, 2006)). Nor, the OIP

continued, had Bernegger demonstrated that he “intend[ed] (and [was] able to) disseminate the

records sought to an interested segment of the public.”

Notwithstanding that determination, Bernegger “failed to provide advance payment.”

Dkt. 34-2 at 6 (Hudgins Decl. ¶ 18). The EOUSA, accordingly, issued a letter on August 23,

2017, informing Bernegger that his request would “remain closed” and that the letter represented

“the final action” on that request,” Dkt. 34-3 at 31 (Ex. 2 at 31).

B. Procedural History

Bernegger filed this suit on April 17, 2018, alleging that the EOUSA had not adequately

responded to his FOIA request. See Dkt. 1. After the EOUSA answered the complaint on

September 19, 2018, Dkt. 12, the Court directed the parties to “submit a joint status report

proposing a schedule for further proceedings,” Minute Order (Sept. 25, 2018). Rather than

submit such a schedule, Bernegger “request[ed] a jury trial . . . to address massive fraud by [his]

5 prosecutor” in the Northern District of Mississippi, Dkt. 14 at 1, and subsequently filed a litany

of motions, including a motion for discovery, Dkt. 16, a motion to find the EOUSA in contempt,

Dkt. 18, and a motion for “full awarding of all records,” Dkt. 21. The Court denied those

motions, see Minute Order (Nov. 21, 2018); Minute Order (Dec. 22, 2018), Minute Order (Sept.

30, 2019), and the EOUSA eventually moved dismiss or, in the alternative, for summary

judgment, Dkt. 26.

This Court denied that motion without prejudice. See Minute Order (May 20, 2020). The

EOUSA then renewed its motion for summary judgment, Dkt. 34, and submitted in support a

declaration from Natasha Hudgins, an attorney-advisor on the EOUSA’s FOIA and Privacy Act

team, Dkt. 34-2 (Ex. 1), along with materials from the administrative proceedings before the

EOUSA and the OIP, Dkt. 34-3 (Ex. 2). Bernegger opposed that motion, Dkt. 36, and, after this

Court issued a Fox-Neal order warning Bernegger of the consequences of failing to respond in

full to the EOUSA’s assertions, Dkt. 37, Bernegger supplemented that opposition with two

further filings, Dkt. 38; Dkt. 39, and the EOUSA filed a reply brief, Dkt. 40.

II. LEGAL STANDARD

“FOIA cases are typically resolved on motions for summary judgment under Federal

Rule of Civil Procedure 56.” Shapiro v. U.S. Dep’t of Justice,

(D.D.C.

2016). To prevail on a summary judgment motion, the moving party must demonstrate that there

are no genuine issues of material fact and that he or she is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

(1986). “In a FOIA

action, the Court may award summary judgment to an agency solely on the basis of information

provided in [its] affidavits or declarations” so long as they “‘are not controverted by either

contrary evidence in the record nor by evidence of agency bad faith.’” Thomas v. FCC,

6 Supp. 2d 144, 145 (D.D.C. 2008) (quoting Mil. Audit Project v. Casey,

(D.C.

Cir. 1981)). The Court reviews the agency’s determinations de novo, and the agency bears the

burden of sustaining its actions.

(a)(4)(B).

III. ANALYSIS

The EOUSA makes only one argument in favor of summary judgment. “[B]ecause

Plaintiff failed to pay advance duplication fees and failed to demonstrate that he is entitled to a

public interest waiver of those fees,” the EOUSA maintains that Bernegger may not challenge

the adequacy of its response to his FOIA request in this Court. Dkt. 34-1 at 2.

FOIA authorizes each agency to “promulgate regulations . . . specifying the schedule of

fees applicable to the processing of requests . . . and establishing procedures and guidelines for

determining when such fees should be waived or reduced.”

(a)(4)(A)(i). Under

the implementing regulations promulgated by the Department of Justice, most requesters must

pay “[d]uplication fees” to cover the cost of processing their requests.

(c)(2);

see

§ 16.10(b)(3) (defining “[d]uplication” as “reproducing a copy of a record, or of the

information contained in it, necessary to respond to a FOIA request”). And, as relevant here, if

the estimated duplication costs exceed $250, the agency “may require that the requester make an

advance payment up to the amount of the entire anticipated fee before beginning to process the

request.” Id. § 16.10(i)(2) (emphasis added). “Requesters may,” however, “seek a waiver of

fees by submitting a written application” showing, among other things, that “disclosure of the

requested information is in the public interest.” Id. § 16.10(k)(1). Such a request “should be

made when the request is first submitted” and “should address the [relevant] criteria.” Id.

§ 16.10(k)(4). “FOIA requesters generally cannot obtain judicial review of their FOIA claims

until they either pay any fees associated with their records request or establish their entitlement

7 to a fee waiver.” Marino v. Dep’t of Just.,

(D.D.C. 2014).

Here, the EOUSA estimated that the total fee to be charged would exceed $250. Dkt. 34-

3 at 8 (Ex. 2 at 8). As a result, absent a fee waiver, the office was not required to process the

request until it received payment of the total, estimated “fee to be charged.”

(i)(2). There is no dispute, moreover, that Bernegger never made the required

prepayment. Accordingly, the sole question presented by the pending motion is whether

Bernegger was entitled to a fee waiver. To make that showing, Bernegger must demonstrate that

“disclosure of the [requested] information is in the public interest because it is likely to

contribute significantly to public understanding of the operations or activities of the

government.”

(a)(4)(A)(iii). As noted above, the implementing regulations

require that Bernegger establish (among other things) that “disclosure of [the requested] records

would add [something] new to the public’s understanding” of the relevant government entities,

Marino,

, and that he has the “ability and intention to effectively convey or

disseminate the requested information to the public,” Prison Legal News v. Lappin,

(D.D.C. 2006) (quoting Judicial Watch v. Dep’t. of Just.,

(D.D.C. 2002)).1 Bernegger has made neither showing here.

As an initial matter, Bernegger argues that the EOUSA’s motion “must be denied as [the

agency] failed to perform an adequate search.” Dkt. 36 at 5. But that contention, along with

1 Although the Department of Justice has since amended the relevant regulations, those amendments were largely meant “to streamline the description of the factors to be considered when making fee waiver determinations,” Revision of Department of Justice Freedom of Information Act Regulations,

-01 (Jan. 4, 2017), and did not substantively alter either of the requirements relevant to the Court’s analysis. See also Department of Justice Freedom of Information Act Regulations,

-01 (Apr. 23, 2019) (“[A]dopt[ing] without change the interim final rule amending the Department’s regulations under the Freedom of Information Act (FOIA) that was published on January 4, 2017.”).

8 Bernegger’s demand for a Vaughn index, ignores the plain text of the governing regulation,

which provides that the relevant Department of Justice component need not “begin[] to process

the request” until the payment is made.2

(i)(2). The EOUSA, accordingly,

need not defend the adequacy of its search, unless Bernegger can show that he was entitled to a

fee waiver. See Marino,

.

In an effort to meet that burden, Bernegger invokes the “massive corruption” that he

claims to have witnessed during his trial. Dkt. 38 at 3; see also id. at 4 (referencing “a massive

fraud on a federal court in [his] criminal case”). He claims, in particular, that the prosecutors

removed Count One of the indictment from the verdict form, “without the Judge’s knowledge or

permission,” and that, as result, the jury was never allowed to consider that charge. Id. at 3-4.

That contention, however, is far from new, and there is no reason to believe that the records that

he seeks are “likely to contribute significantly to public understanding of the . . . activities of the”

prosecutors in Bernegger’s case or “the government” more generally.

(a)(4)(A)(iii). As the United States District Court for the Northern District of Mississippi

explained over six years ago:

In a discussion out of hearing of the jury, attorneys for both defendants and the court discussed whether the Form of the Verdict should include a space for the Jury to consider Count One as to Mr. Bernegger. Both defendants and the court agreed that Count One did not charge Mr. Bernegger with a crime. No one disputed that the Jury had been told—much earlier in the trial—that Mr. Bernegger had been charged in Count One. The court concluded that the best way to handle the situation was to provide a Form of the Verdict to the Jury that did not include a blank to find Mr. Bernegger guilty as to Count One. Mr.

2 The regulatory text addresses a second issue as well: In its correspondence with Bernegger, the EOUSA observed that, “[i]n most instances, the first 100 pages to duplicate and the first two hours to search for records . . . , will be provided . . . free of charge.” Dkt. 34-3 at 4 (Ex. 2 at 4). Here, however, the office was under no obligation even to “begin[] to process the request” and, thus, was not required to release even the first 100 pages of responsive materials.

(i)(2). And Bernegger does not allege that he was entitled to receive the first 100 pages without either signicantly reducing the scope of his request or paying the fee.

9 Bernegger has alleged, many times, that this issue was handled entirely off the record – and thus constituted a “fraud upon the court.” However, the trial record of Mr. Bernegger's criminal case paints an entirely different picture.

In re Bernegger,

at *1. Quoting the transcript from Bernegger’s criminal

trial, the court noted that “[c]ounsel for Mr. Bernegger was . . . ‘elated’ to hear that [he] was not

charged in Count One—and asked that the court give the [j]ury an instruction making that clear,”

which the trial court did.

. Finally, the Northern District of Mississippi observed that,

“throughout the rest of the proceedings, Mr. Bernegger’s counsel, codefendant’s counsel, this

court, and later, the Fifth Circuit—all concluded that the removal of Count One from the [j]ury’s

consideration was proper, and indeed inured to Mr. Bernegger’s benefit.”

Under these circumstances, Bernegger faces a high bar in attempting to show that the

records he seeks are “likely to contribute significantly to public understanding of the operations

or activities of the government,”

(a)(4)(A)(iii), and he does not come close to

meeting that burden. Indeed, rather than offer any reason to question the well-documented

decision of the U.S. District Court for the Northern District of Mississippi, Bernegger offers

nothing more than unsupported conclusions and ad hominem attacks. The law is clear, however,

that “[r]equests based on nothing more than bare allegations of malfeasance, unsupported by the

evidence, do not have enough informative value to merit a fee waiver.” Citizens for Resp. &

Ethics in Washington v. U.S. Dep’t of Just.,

(D.D.C. 2009) (quotation

marks omitted). Thus, even assuming that a fraud of the nature that Bernegger alleges would

constitute a matter of public interest, his filings lack any reasonable basis to conclude that the

requested “documents would increase public knowledge of the functions of government.” Pub.

Emps. for Env’t Resp. v. U.S. Dep’t of Com.,

(D.D.C. 2013) (quoting

10 CREW v. U.S. Dep’t of Health & Human Servs.,

(D.D.C. 2006)).3

More generally, Bernegger appears interested in finding some evidence—whatever it

might be—that might upset his criminal conviction. His original FOIA request declared that “the

federal prosecutors” who worked his case were “corrupt” and maintained that he “did not have a

trial by jury” due to their various alleged misdeeds. Dkt. 34-3 at 3 (Ex. 2 at 3). And, in

appealing the EOUSA’s fee estimate, Bernegger argued that he “should not have to pay for the

documents at all” because he needed the information “in regards to a criminal complaint [he]

filed with the proper federal authorities” against one of those prosecutors. Id. at 12 (Ex. 2 at 12).

“A requester’s private interest,” however, “is not relevant to the fee waiver analysis, and an

attack on a criminal conviction is a private interest.” Banks v. Dep’t of Just.,

(D.D.C. 2009) (collecting cases); see also Marino,

n.5. This is

because “[i]nformation related to one individual, such as the requested information at issue here,

is not likely to” “increase public knowledge of the functions of government.” Pub. Emps. for

Env’t Resp.,

. Bernegger, moreover, has had ample opportunity to pursue

those claims, so much so that the Northern District of Mississippi imposed a pre-screening

requirement to prevent him from “abusing judicial process by filing frivolous and malicious

pleadings, motions, and communications.” In re Bernegger,

, at *11–12.

3 Bernegger submitted, as a supplement to his opposition to the EOUSA’s motion for summary judgment, an affidavit from someone who describes himself as an eyewitness to Bernegger’s criminal trial. See Dkt. 39. But “the Court’s review of a fee waiver denial . . . is limited to the record that was before the agency at the time of the request,” Marino,

, and there is no indication that Bernegger submitted this affidavit to either the EOUSA or the OIP. The Court cannot, accordingly, consider its contents in resolving the motion before it. But, even if the Court were to consider the affidavit, nothing contained in that document undermines the finding of the U.S. District Court for the Northern District of Mississippi “that the removal of Count One from the [j]ury’s consideration was proper, and indeed inured to Mr. Bernegger’s benefit,” In re Bernegger,

, at *4. 11 Bernegger’s request for a fee waiver fails for a second reason as well: he has failed to

demonstrate that he has “ability and intention to effectively convey or disseminate the requested

information to the public.” Prison Legal News,

. Here again, Bernegger

offer no colorable argument in his opposition to the EOUSA’s motion. To be sure, Bernegger

maintained before the OIP that there were “3 news media outlets [that] wish[ed] to conduct on a

story on [that prosecutor’s] fraud and lies.” Dkt. 34-3 at 12 (Ex. 2 at 12). But “[f]ee-waiver

applicants must support their claims with ‘reasonable specificity,’” including with respect to the

proposed means of dissemination of the requested information. Cause of Action v. FTC,

(D.C. Cir. 2015) (quoting Judicial Watch, Inc. v. Rossotti,

(D.C. Cir. 2003)). Indeed, the D.C. Circuit has held that an assertion of the kind Bernegger made

to the OIP is insufficiently specific, even though, unlike in this case, “the subject matter” in that

case was “undeniably . . . of public interest.” Larson v. CIA,

(D.C. Cir.

1988). In reaching that conclusion, the court of appeals explained that, because the requester

“failed to identify the newspaper company to which he intended to release the requested

information, his purpose for seeking the requested material, or his professional or personal

contacts with any major newspaper companies,” he “was not entitled to the fee waiver.” Id.; cf.

Jud. Watch,

(finding requester had satisfied its burden on this point by

explaining “in detailed and non-conclusory terms . . . exactly how and to whom it will

disseminate the information it receives”). In this case, Bernegger’s failure to elaborate on his

plans to disseminate the requested information further supports the OIP’s decision denying his

waiver request.

Finally, the Court is unpersuaded by Bernegger’s contention that the EOUSA’s motion

fails because it does not separately address his Privacy Act claim. See Dkt. 36 at 12. The

12 governing Department of Justice regulations make clear that the same fees that apply under

FOIA apply for purposes of the Privacy Act. See

. Indeed, because the

Privacy Act regulations simply incorporate the FOIA rules relating to “duplication fees,”

courts often analyze a litigant’s failure to “to pay duplication fees” “with respect to his FOIA and

Privacy Act requests” as a singular issue, Banks,

. Because no daylight

exists between the two regulatory regimes, they require the same result.

The Court, accordingly, concludes that the EOUSA permissibly declined Bernegger’s

request for a fee waiver and, having done so, permissibly declined to process his FOIA and

Privacy Act requests.4

CONCLUSION For the foregoing reasons, the Court will grant the EOUSA’s the motion for summary

judgment and will enter judgment in Defendant’s favor.

A separate order shall issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: February 25, 2022

4 A portion of Bernegger’s opposition is styled as a “Motion to Strike,” and takes umbrage with the EOUSA’s statement in the background section of its brief that Bernegger threatened to sue the EOUSA in a letter responding to its fee estimate. Dkt. 36 at 2–4. The relevant passage of the EOUSA’s motion states that “Plaintiff closed” his letter “by demanding that all of the documents be sent to him within five business days and threatened to sue EOUSA if it did not do so.” Dkt. 34-1 at 4–5. The Court has reviewed the email at issue, which the EOUSA attached to its motion for summary judgment, and concludes that the EOUSA accurately described its contents. See Dkt. 34-3 at 29 (Ex. 2 at 29) (“Given what has happened here, I want all the documents sent out to me within 5 business days. Otherwise I have clear grounds to file another lawsuit against EOUSA.”). The Court will, accordingly, deny Bernegger’s motion to strike. 13