UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Maximus Strahan

v. Civil No. 18-cv-752-LM Opinion No.

National Oceanic and Atmospheric Administration, Administrator et al.

O R D E R

Richard Maximus Strahan, proceeding pro se, brings this

suit against the National Oceanic and Atmospheric Administration

(“NOAA”) and the National Marine Fisheries Service (“NMFS”).

Strahan alleges that NOAA and NMFS have failed to produce

records in response to seven requests purportedly brought under

the Freedom of Information Act (“FOIA”),

Defendants move to dismiss for lack of subject matter

jurisdiction or, in the alternative, for summary judgment. More

than two weeks have passed since Strahan’s deadline to respond

to defendants’ motion and Strahan has yet to file a response.

For the following reasons, the court grants defendants’ motion.

1 On September 17, 2019, the court granted defendants’ motion to dismiss three additional counts. On January 15, 2020, Strahan voluntarily dismissed an additional count against Michael Pentony, the Chief Administrator for NMFS’s Greater Atlantic Regional Fisheries Office. See doc. no. 65. The FOIA claim at issue in this order is the sole remaining count in this case. STANDARD OF REVIEW

Defendants move to dismiss this action on the ground that

this court lacks subject matter jurisdiction because defendants

have not unlawfully withheld records. See Kissinger v.

Reporters Comm. for Freedom of the Press,

(1980). Ordinarily, a motion to dismiss for lack of subject

matter jurisdiction is analyzed under Rule 12(b)(1). However, a

court must treat a motion challenging subject matter

jurisdiction as a motion for summary judgment “where

jurisdictional issues cannot be separated from the merits of the

case.” Gonzalez v. United States,

(1st Cir.

2002); see Valentin v. Hosp. Bella Vista,

, 363 & n.

3 (1st Cir. 2001). “A jurisdictional issue is intertwined with

the merits where the court's subject matter jurisdiction depends

upon the statute that governs the substantive claims in the

case.” Gonzalez,

.

To invoke subject matter jurisdiction under the FOIA, the

plaintiff must allege that the agency “(1) ‘improperly’ (2)

‘withheld’ (3) ‘agency records.’” Kissinger,

;

see

(a)(4)(B). If the elements of jurisdiction

are properly alleged, the burden shifts to the agency to show

that the records sought by the plaintiff either are not agency

records or were properly withheld. See U.S. Dep't of Justice v.

2 Tax Analysts,

, 142 n.3 (1989). Here, because FOIA

serves as the source of both this court's subject matter

jurisdiction and plaintiff’s cause of action, the jurisdictional

inquiry is intertwined with the merits of plaintiff’s claim.

See Sensor Sys. Support, Inc. v. F.A.A.,

(D.N.H. 2012); Wilkinson v. Chao,

(D.N.H. 2003); see also United States ex rel. Fine v. MK–

Ferguson Co.,

(10th Cir. 1996). Accordingly,

the court will treat defendants’ motion as one for summary

judgment and analyze it under Rule 56.

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

it] is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc.,

(1st Cir. 2013). To obtain summary judgment, “the moving

party must affirmatively demonstrate that there is no evidence

in the record to support a judgment for the nonmoving party.”

Celotex Corp. v. Catrett,

(1986). Once the

moving party makes the required showing, “the burden shifts to

the nonmoving party, who must, with respect to each issue on

which [it] would bear the burden of proof at trial, demonstrate

that a trier of fact could reasonably resolve that issue in

3 [its] favor.” Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016) (citation omitted). “This demonstration must be

accomplished by reference to materials of evidentiary quality,”

and that evidence must be “significantly probative,” and “more

than merely colorable.”

(citations omitted). A nonmoving

party’s failure to make the requisite showing “entitles the

moving party to summary judgment.”

BACKGROUND

Strahan alleges in his second amended complaint that he

requested documents from defendants pursuant to FOIA seven times

in 2018. His complaint alleges defendants “refused to comply in

any meaning[ful] manner” and that he has not received any

documents in response to his FOIA requests. Doc. no. 36 at

¶¶ 66, 67. Strahan further contends that employees from NOAA

and NMFS told him that they were “refusing to comply with his .

. . FOIA requests in retaliation for his commencing lawsuits”

against them. Id. at ¶ 67.

As required by the local rules, defendants’ motion for

summary judgment includes a “short and concise statement of

material facts, supported by appropriate record citations, as to

which the moving party contends there is no genuine issue to be

tried.” See L.R. 56.1(a). The local rules require that a party

opposing summary judgment give the court a short and concise

4 statement of facts, supported by record citations, “as to which

the adverse party contends a genuine dispute exists.” See L.R.

56.1(b). Strahan has not filed a motion or memorandum in

opposition to defendants’ motion for summary judgment;

therefore, he has failed to demonstrate that a genuine dispute

exists as to any of the material facts in this case.

Accordingly, the court admits the following facts, which are

drawn from defendants’ memorandum in support of summary judgment

and supported by appropriate record citations. See id. (“All

properly supported material facts set forth in the moving

party’s factual statement may be deemed admitted unless properly

opposed by the adverse party.”).

On July 3, 2018, Strahan asked NOAA to provide him with an

excel spreadsheet containing the contact information for a list

of people he believed to be on the Atlantic Large Whale Take

Reduction Team. Six working days later, NOAA informed Strahan

that it did not create or maintain the list or information he

sought. NOAA then provided him a weblink to a publicly

accessible contact list maintained by the Atlantic Large Whale

Take Reduction Team. The Department of Commerce Office of

General Counsel (“OGC”) denied Strahan’s subsequent appeal. It

concluded Strahan’s request had been fully satisfied when NOAA

directed him to the weblink and held that FOIA did not require

5 NOAA to create a new document in the excel format requested by

Strahan.

On July 10, 2018, Strahan made a FOIA request to NOAA for

e-mails between NOAA employees and two persons outside the

agency. After an extension and an appeal, NOAA released 116

documents: 112 in full and four redacted to protect the privacy

of third parties.

On July 19, 2018, Strahan requested additional records from

NOAA related to whale sightings. NOAA invoked a regulatory

extension and Strahan appealed. In September 2018, NOAA

released 2,191 pages in full. In October 2018, the OGC denied

Strahan’s appeal as moot because NOAA had fully processed his

request.

On August 31, 2018, Strahan e-mailed NOAA stating that he

was gathering information to be used as evidence in his lawsuit

against NOAA. His email did not request specific information;

rather, it demanded that someone from NOAA call him to answer

questions about a dead Northern Right Whale. Because FOIA

requires agencies to disclose records but does not prescribe

agency action in response to a request for a telephone call,

NOAA did not interpret Strahan’s email as a FOIA request. NOAA

directed Strahan to contact defendants’ counsel.

On September 6, 2018, Strahan requested information from

NOAA about whale entanglement and asked NOAA to waive any fees

6 related to his request. NOAA asked Strahan to provide

information in support of his fee waiver. After Strahan did not

respond, NOAA denied his request for the fee waiver. NOAA

provided a fee estimate and notified Strahan that the fee needed

to be submitted before NOAA could release any documents. The

OGC denied Strahan’s subsequent appeal as premature. Then,

because the FOIA implementing regulations allow a requester two

hours of search time without paying the estimated fee, see

(d), NOAA spent two hours searching for documents

without requiring Strahan to pay a fee. It released the 23

documents found during that two hours of search time to Strahan.

On September 30, 2018, Strahan sought records from NOAA

about the production and distribution of a technical memorandum

and asked NOAA to waive fees. As before, NOAA requested

information to support a fee waiver, Strahan failed to respond,

and NOAA stopped processing Strahan’s request. OGC declined

Strahan’s appeal as premature and informed Strahan that NOAA’s

deadline to respond was stayed pending receipt of Strahan’s fee

waiver information. NOAA ultimately determined that it would

take less than two hours to search for the records Strahan

requested and so provided Strahan with the requested records

without requiring him to pay a fee.

On December 7, 2018, Strahan emailed NOAA asking for

additional records. Although Strahan’s request specified that

7 he was not making the request pursuant to FOIA, NOAA processed

his request as a FOIA request and provided Strahan with 19

responsive records.

In August 2018 Strahan filed suit against defendants. In

June 2019, he amended his complaint to include a FOIA count,

alleging defendants violated FOIA by “refusing to comply” with

Strahan’s seven FOIA requests in 2018. Doc. no. 36 at ¶ 67.

Defendants move for summary judgment, arguing that the

undisputed facts prove defendants fully complied with FOIA.

DISCUSSION

FOIA serves to expose the operations of federal agencies

“to the light of public scrutiny.” Dep't of the Air Force v.

Rose,

(1976) (internal quotation marks

omitted). The statute embodies a broad policy in favor of

disclosure, reflecting the notion that “promot[ing] an informed

citizenry ... is vital to democracy.” Carpenter v. U.S. Dep't of

Justice,

(1st Cir. 2006).

Strahan contends defendants violated FOIA by refusing to

respond to his requests for information. Defendants argue that

they responded to each of Strahan’s requests in a manner that

fulfilled their FOIA obligations. The court will review the

undisputed facts and record citations and first determine

8 whether defendants responded to Strahan’s requests and, if so,

whether those responses complied with FOIA.

In conducting the latter inquiry, the court must consider

whether Strahan exhausted his administrative remedies, “a

mandatory prerequisite to a lawsuit under FOIA.” Wilbur v.

C.I.A.,

(D.C. Cir. 2004). The FOIA statutory

scheme sets forth an administrative appeal process. See

(a)(6)(A)(i), (ii); Oglesby v. U.S. Dep't of Army,

(D.C. Cir. 1990). “[A] requester under FOIA

must file an administrative appeal within the time limit

specified in an agency's FOIA regulations or face dismissal of

any lawsuit complaining about the agency's response.” Wilbur,

; see also Oglesby, 920 F.2d at 61–62 (collecting

cases).

The first inquiry is straightforward. On this record, the

court concludes that defendants responded appropriately and

meaningfully to each of Strahan’s requests for information. In

brief, defendants fully responded to Strahan’s July 10, July 19,

September 30, and December 7 FOIA requests by releasing

thousands of pages of records. Defendants responded to

Strahan’s September 6 request by releasing those records Strahan

was entitled to absent payment of the search fee authorized by

regulation. See

(d). Defendants responded to

Strahan’s July 3 request by giving him the information he

9 desired, albeit in a different electronic form than Strahan

requested (weblink as opposed to an excel spreadsheet).

This leaves Strahan’s August 31 e-mail request, which

specified it was “NOT a FOIA request” and demanded that a NOAA

employee call him. Doc. no. 71-17 at 1. Defendants responded

within the week explaining that, because Strahan had filed a

lawsuit against the defendant and was requesting information

related to that lawsuit, he should direct his communication to a

Department of Justice attorney. Id. at 2. There is no evidence

that Strahan contacted the attorney, renewed his request to

NOAA, or communicated that he was making his request pursuant to

FOIA. The undisputed facts do not support Strahan’s contention

that defendants refused to meaningfully comply with Strahan’s

requests for information.

The second inquiry, whether those responses complied with

FOIA, requires a threshold showing that Strahan properly

exhausted his administrative remedies. Wilbur,

.

Strahan cannot satisfy that requirement with respect to six of

his seven FOIA requests. Strahan did not appeal defendants’

responses to the July 10, July 19, August 31, September 6,

September 30, and December 7, 2018 requests for information.

The court is, therefore, precluded from judicially reviewing

defendants’ responses to these requests. See, e.g., Oglesby,

. However, because Strahan appealed his July 3

10 request to the OGC, he properly exhausted his administrative

remedies with regard to that request. Thus, the court may

review whether defendants’ response to that request complies

with their FOIA obligations as a matter of law.

Strahan’s July 3, 2018 FOIA request sought contact

information for a “list of Public figures who are apparently on

the [Atlantic Large Whale Take Reduction Team] contact list.”

Doc. no. 71-3 at 1. Strahan’s request specified that if

defendants had a more current list with contact information for

the Atlantic Large Whale Take Reduction Team members, it would

be “acceptable” for defendants to send that contact information

by excel spread sheet.

Defendants notified Strahan that

they did not create or maintain a list with the contact

information he sought and provided Strahan with a weblink to a

publicly accessible contact list created by the Atlantic Large

Whale Take Reduction Team. Doc. no. 71-4 at 1. Strahan

appealed to OGC, asserting defendants had categorically refused

to provide him with any information. Doc. no. 71-5 at 1. The

OGC denied the appeal because “FOIA does not require the

creation of new documents in formats other than the format

natively maintained.” Doc. no. 71-6 at 2.

FOIA does not obligate agencies to create documents in

response to FOIA requests; it only obligates them to provide

access to documents which it has created and retained. See,

11 e.g., Reporters Comm.,

. In addition, an agency

may fulfill its FOIA obligation by directing a plaintiff to

publicly available records which are responsive to plaintiff’s

request. See Shurtleff v. United States Envtl. Prot. Agency,

(D.D.C. 2013). Applying these principles

to Strahan’s July 3, 2018 request, the court concludes

defendants were under no obligation to create an excel

spreadsheet containing the information Strahan sought.

Defendants fulfilled any obligation they may have had under FOIA

by directing Strahan to a publicly available website that

contained the exact information Strahan requested.

CONCLUSION

For the foregoing reasons, the court grants defendants’

motion for summary judgment (doc. no. 71). The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 28, 2020

cc: Richard Maximus Strahan, pro se Frederick H. Turner, Esq. Michael T. McCormack, Esq.

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