UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2188

AYYAKKANNU MANIVANNAN,

Plaintiff - Appellant,

v.

DEPARTMENT OF ENERGY, National Energy Technology Laboratory,

Defendant - Appellee,

and

GRACE M. BOCHENEK; SUSAN MALIE; ISABEL COTERO,

Defendants.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, District Judge. (1:17-cv-00192-TSK-MJA)

Submitted: December 1, 2020 Decided: January 12, 2021

Before KEENAN and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Ayyakkannu Manivannan, Appellant Pro Se. Tara Noel Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Ayyakkanu Manivannan filed a complaint pursuant to the Freedom of Information

Act (FOIA),

, against the Department of Energy’s National Energy

Technology Laboratory (NETL or “the agency”), alleging that NETL failed to adequately

respond to several requests for records pursuant to FOIA. The district court granted

summary judgment in favor of NETL. For the reasons that follow, we affirm the district

court’s judgment in part, vacate in part, and remand.

When reviewing a district court’s grant of summary judgment in favor of the

Government in a FOIA action, we review de novo whether, after taking the evidence in the

light most favorable to the nonmovant, there remains any genuine issue of material fact

and whether the Government is entitled to summary judgment as a matter of law. See

Wickwire Gavin, P.C. v. United States Postal Serv.,

(4th Cir. 2004).

We have reviewed the record and discern no reversible error as to the following

determinations made by the district court. First, NETL was entitled to summary judgment

with respect to FOIA request Numbers 78, 1069, 1268, 1284, 1347, 1348, and 1759

because Manivannan failed to pay fees that NETL was permitted to assess. See Coleman v.

Drug Enf’t Admin.,

(4th Cir. 2013); see also

(a)(4)(A)(v);

(i). Second, NETL was entitled to summary judgment with respect to

request Number 890 because Manivannan did not exhaust his administrative remedies prior

to filing suit. Further, Manivannan did not constructively exhaust his administrative

remedies because NETL cured the statutory violation based on its failure to timely respond

to Manivannan’s request by responding before he filed suit. See Coleman,

.

3 Third, NETL was entitled to summary judgment on the basis that its searches with respect

to request Numbers 833 and 1070 were adequate. The agency met its burden of showing

that it “made a good faith effort to conduct a search . . . using methods which can be

reasonably expected to produce the information requested.” DiBacco v. Dep’t of the Army,

(D.C. Cir. 2019) (internal quotation marks omitted). Fourth, the agency

met its burden to show that it properly redacted or withheld information pursuant to the

statutory exemption in

(b)(6) relating to personal privacy, and Manivannan

failed to overcome the presumption of good faith accorded to the agency’s relatively

detailed and nonconclusory affidavits. See Bowers v. United States Dep’t of Just.,

(4th Cir. 1991); Miller v. United States Dep’t of State,

(8th

Cir. 1985). Finally, the district court did not abuse its discretion in determining that an in

camera review was unnecessary to determine whether the agency validly applied the

personal privacy exemption. See Rein v. U.S. Patent and Trademark Off.,

,

377 n.34 (4th Cir. 2009) (stating standard of review).

We conclude, however, that the district court erred in finding that Manivannan did

not constructively exhaust his administrative remedies with respect to request Number 946.

An agency must ordinarily notify a requester of its “determination and the reasons therefor”

within 20 business days of receiving a FOIA request.

(a)(6)(A)(i). “FOIA

provides that a requester may be treated as if []he exhausted the administrative appeals

process where the agency did not provide a timely determination.” Khine v. United States

Dep’t of Homeland Sec.,

(D.C. Cir. 2019); see Coleman,

(citing

(a)(6)(C)(i)). However, the constructive exhaustion provision

4 only applies “so long as the agency has not cured its violation by responding before the

requester files suit.” Coleman,

; see also Pollack v. Dep’t of Just.,

(4th Cir. 1995).

NETL issued its initial determination letter for request Number 946 on May 5, 2017.

That letter was rendered moot when the request was remanded by the Department of

Energy’s Office of Hearings and Appeals on August 7, 2017, for NETL to continue its

search for responsive records, which restarted the constructive exhaustion period. See

Coleman,

(noting that “[a] request upon remand [from an administrative

appeal] is still a request” and “it, too, must be acted upon within twenty working days,

pursuant to

(a)(6)(A)(i)”). However, after the request was remanded, NETL

did not send Manivannan a new determination letter before he filed suit on November 6,

2017. * Since more than 20 working days had elapsed, Manivannann had constructively

exhausted his claim with respect to request Number 946, and he was entitled to seek

“judicial enforcement without appealing to the agency head or seeking further explanation

from the agency as to why his request had not been timely processed.” Pollack,

.

* Manivannan specifically pled in his initial complaint that NETL failed to timely respond to request Number 946 and his allegations were effectively against NETL because he sued the agency director in her official capacity. See Andrews v. Daw,

(4th Cir. 2000) (noting that “official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent and in essence are suit[s] against the entity”) (internal quotation marks omitted).

5 While the district court determined that NETL cured its failure to respond by

sending a determination letter on April 11, 2018—two weeks before Manivannann filed

his amended complaint—the date on which Manivannann filed his initial complaint is the

appropriate benchmark for determining if NETL cured its failure to respond to request

Number 946. Indeed, we have held that an agency can defeat a requester’s constructive

exhaustion only if it responds to the request before the plaintiff “files suit.” Pollack,

; Coleman,

(describing important date as the date that “this

litigation began”). Allowing agencies to cure their failure to timely respond only after a

plaintiff has waited 20 business days and initiated proceedings in federal court would cut

against the rationale of the constructive exhaustion rule, since, “[i]n setting a time limit for

agencies to respond to initial requests and establishing constructive exhaustion as a means

to enforce that limit, Congress expressed a clear intent to ensure that FOIA requests receive

prompt attention from the applicable agencies.” Coleman,

. Accordingly,

because request Number 946 was constructively exhausted, the district court should

determine on remand whether the agency’s search was adequate and whether any

exemptions were applicable.

We also conclude that the district court erred in finding that NETL met its burden

to show that it properly redacted or withheld information pursuant to the statutory

exemption in

(b)(5) relating to legal privileges. We review factual findings

as to the applicability of a FOIA exemption for clear error and legal conclusions de novo.

See Wickwire Gavin,

. We “narrowly construe the FOIA exemptions in

favor of disclosure.”

6 Exemption 5 provides that FOIA disclosure rules do not apply to “inter-agency or

intra-agency memorandums or letters which would not be available by law to a party other

than an agency in litigation with the agency.”

(b)(5). This exemption

applies to materials that fall under, as relevant here, the attorney-client privilege, the

attorney work product doctrine, and the deliberative process privilege. See Hall & Assocs.

v. Env’t Prot. Agency,

(D.C. Cir. 2020); Hanson v. U.S. Agency for Int’l

Dev.,

, 290–91 (4th Cir. 2004). The exempted records must be inter-agency

or intra-agency documents. See

(b)(5); Dep’t of the Interior v. Klamath

Water Users Protective Ass’n,

(2001).

We have reviewed the record and conclude that the district court lacked an adequate

factual basis to rule on the propriety of NETL’s redactions and withholding of documents

under this exemption pursuant to request Number 833. Specifically, some of the responsive

documents appear to have been sent to employees of Penn State University or attorneys in

the district attorney’s office that oversaw Manivannann’s prosecution in Pennsylvania. As

a threshold matter then, the district court should first determine if the records were “inter-

agency or intra-agency” before deciding whether NETL stated a good faith basis for

applying the exemption.

(b)(5). If a document is neither inter-agency nor

intra-agency, then NETL may not withhold it under this exemption, regardless of whether

it reflects the deliberative process of the agency, is attorney work product, or is an attorney-

client communication. See Klamath,

. We therefore remand for the district

court to apply Klamath and determine whether the nature of the relationships between

7 agency employees and any third party recipients of the requested records bar NETL’s

application of the exemption.

We accordingly affirm the district court’s grant of summary judgment in part, vacate

in part, and remand for further proceedings consistent with this opinion. We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

8