ROSEMARY M. COLLYER, United States District Judge.
Leon Maryland, proceeding pro se, brings suit against the U.S. Department of
CVE is an office within the VA's Office of Small and Disadvantaged Business Utilization (OSDBU). See VA Mot. for Summ. J. [Dkt. 42] (Def.Mot.), Supp. Decl. of Laurie Karnay (Karnay Decl.) ¶ 5. CVE
Mr. Maryland has repeatedly requested "information regarding businesses that have applied, or have applications pending, for verification. This includes those businesses that have been approved or denied, or that have withdrawn from, or been cancelled from, the verification program." Id. ¶ 6.
Only two of Mr. Maryland's FOIA requests are the subject of this action: a FOIA request dated August 13, 2013 with an addendum dated August 22, 2013 (collectively, the August 2013 Request) which CVE assigned tracking number 13-06522-F, and a FOIA request dated November 5, 2014 (November 2014 Request) which CVE assigned tracking number 15-00846-F. Id. ¶¶ 6, 9, 16.
1. August 2013 Request
Mr. Maryland's August 2013 Request "included four parts, each of which consisted of a list of items of information about business applications that had applied to CVE for certification and inclusion in CVE's VIP database for a period `within thirty (30) days before the date' that VA responded to the request." Id. ¶ 9; see Karnay Decl., Ex. 1 (August 2013 Letter) at 18-21
Mr. Maryland appealed CVE's September 2013 Determination to VA's Office of General Counsel (OGC). OGC issued its final administrative decision on November 26, 2013, granting Mr. Maryland's appeal in part. See id., Ex. 5 (OGC's November 2013 Remand) at 42-43. OGC determined that "applicable law requires the release of the names and locations of businesses which were denied inclusion in the VIP database." Id. at 42. OGC further concluded that CVE's determination that Mr. Maryland was a commercial use requester required further elucidation and that "CVE's fee determination was not made in accordance with the FOIA or VA's FOIA regulations." Id. at 42-43. OGC remanded the case to CVE for further processing. Id. at 43.
On remand, CVE conducted a de novo review of Mr. Maryland's August 2013 Request and issued its response on January 27, 2014. See id., Ex. 6 (January 27 Letter Part 1) at 45-49; id., Ex. 7 (January 27 Letter Part 2) at 51-53. CVE released certain responsive records and specified that the remaining items were publicly viewable, not maintained by CVE, or withheld pursuant to FOIA Exemption 5. Id. at 46-47. CVE again placed Mr. Maryland's request in the commercial requester category because his "response did not adequately satisfy the requirements to receive a Fee Waiver." Id. at 45-46. CVE reasoned that Mr. Maryland planned to disseminate the requested information through a private Facebook page and a closed email list so that only people invited by Mr. Maryland would have access to the information. CVE contrasted Mr. Maryland to "representatives of the media [who] have full and open disclosure to all citizens." Id. at 45. CVE also justified placing Mr. Maryland in the commercial fee category based on his purported statement to a VA FOIA Office that it was important for him to receive the information as soon as possible because he had been paid for it and the payers were expecting him to deliver the information. Id. at 46. CVE informed Mr. Maryland that the revised fee estimate for processing his request would be $241.69. Id. However, CVE did not assess a fee because it had failed to comply with FOIA time limits for completing the search and was prohibited by regulation for charging a fee in such situation. Id. at 46 (citing 38 C.F.R. Part 1). CVE continued to withhold "individual names in email addresses that identified an individual under FOIA Exemption 6 and disclosed the remaining email addresses of initially or finally denied businesses." Karnay Decl. ¶ 12. CVE reasoned that "FOIA Exemption 6 ... protects all information which, if disclosed, would constitute a clearly unwarranted invasion of an individual's personal privacy." Id., Ex. 7 (January 27 Letter Part 2) at 52.
On February 27, 2014, Mr. Maryland appealed parts of CVE's determinations on his August 2013 Request to OGC: (1) CVE's placement of his request in the commercial requester category and (2) CVE's decision to withhold personal names in email addresses under FOIA Exemption 6. Karnay Decl. ¶ 15; id., Ex. 8 (Second Appeal) at 55-71. OGC had not acted on
2. November 2014 Request
Pursuant to his November 2014 Request, Mr. Maryland "requested fifteen items of information related to each Veteran-Owned Small Business, Service-Disabled Veteran-Owned Small Business, or Joint Venture (i) for which CVE had approved inclusion in its VetBiz Vendor Information Pages (VIP) database; (ii) that had applied for inclusion in VetBiz VIP; (iii) that CVE had denied, by means of a final denial letter, inclusion in VetBiz VIP; (iv) that CVE denied, by means of an initial denial letter, inclusion in VetBiz VIP; and (v) that withdrew their application for inclusion in VetBiz VIP." Karnay Decl. ¶ 16; see id., Ex. 9 (November 2014 Request) at 73-77. By letter dated November 25, 2014, the VA informed Mr. Maryland that it placed his request in the "All Other" fee category and requested payment of $183.08 to process his November 2014 Request. Id., Ex. 10 (2014 Fee Estimate Letter) at 79. Mr. Maryland paid the requested fee. Karnay Decl. ¶ 17.
On December 10, 2014, CVE issued an initial agency determination, releasing some of the information requested in November 2014 and concluding that the rest of the requested information was publicly available or subject to withholding pursuant to FOIA Exemptions 5 or 6. Id. ¶ 18. Consistent with its response to Mr. Maryland's August 2013 Request, "[w]ith regard to email addresses of the businesses initially or finally denied, CVE released the email addresses in part, withholding the names of individuals when they appeared in an email address, based upon FOIA Exemption 6." Id.
Mr. Maryland appealed CVE's December 2014 determination in part. He appealed CVE's invocation of Exemptions 5 and 6 to withhold records and CVE's referral to other government websites to obtain information in lieu of providing the information itself. Id. ¶ 19, Ex. 12 (2014 Appeal) at 88. He also requested a refund of the fee paid for records that were not provided to him. Id.
On March 6, 2015, VA OGC issued a final agency decision, upholding CVE's invocation of Exemption 6 as to individual names in email addresses for businesses denied inclusion on the VetBiz database and concluding that "CVE's action with regard to the fee assessment associated with the November 5, 2014 request had been in accordance with the law and agency practice." Id. ¶ 20. Subsequent to VA OGC's decision, CVE re-evaluated its withholding of information in response to the November 2014 Request and made a supplemental release of information to Mr. Maryland on May 29, 2015 and August 3, 2015. Def. Reply [Dkt. 53], Second Supp. Decl. of Laurie Karnay (Karnay Supp. Decl.) ¶¶ 8, 11. CVE continued to withhold personal names in email addresses that were also withheld in response to the August 2013 Request. Karnay Decl. ¶ 22.
B. Procedural History
Mr. Maryland filed his original Complaint on August 4, 2014 and filed an Amended Complaint on October 28, 2014, which the Court accepted due to Mr. Maryland's pro se status. See 10/28/14 Minute Order. Mr. Maryland's Amended Complaint alleged two counts. Count One was styled as a request for an injunction against the VA. Am. Compl. [Dkt. 14] ¶¶ 58-69. Count Two alleged violations of
On December 19, 2014, Mr. Maryland moved for entry of a preliminary injunction and restraining order against the VA due to his dissatisfaction with how VA's FOIA Officer, Karen Zhussanbay, was handling his FOIA request. See Mot. for PI & Restraining Order [Dkt. 16]. The Court denied his request. See Order [Dkt. 27]. The Court also sua sponte dismissed Count Two of the Amended Complaint with prejudice for failure to state a claim upon which relief can be granted and dismissed Ms. Zhussanbay and Mr. Leney as parties to the case. See Order [Dkt. 29].
Mr. Maryland filed a second motion for leave to amend his amended complaint, Dkt. 32, which the Court granted on March 20, 2015. See 3/20/15 Minute Order; Second Am. Compl. [Dkt. 33].
VA has moved for summary judgment and Mr. Maryland has cross-moved for summary judgment.
II. LEGAL STANDARD
Summary judgment is justified when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A motion under Rule 56 is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When evaluating cross-motions for summary judgment, each motion is reviewed "separately on its own merits to determine whether [any] of the
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C. 1980), aff'd, Rushford v. Smith, 656 F.2d 900 (D.C.Cir.1981). In a FOIA case, a court may award summary judgment solely on the basis of information provided by the agency in affidavits or declarations when the affidavits or declarations 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, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir. 1973) (requiring agencies to prepare an itemized index correlating each withheld document, or portion thereof, with a specific FOIA Exemption and the relevant part of the agency's nondisclosure justification). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt" from FOIA's requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978) (internal quotation marks and citation omitted).
FOIA also requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b)(9); see also Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C.Cir.1996). A district court has "`an affirmative duty to consider the segregability issue sua sponte.'" Juarez v. Dep't of Justice, 518 F.3d 54, 60 (D.C.Cir.2008) (citation omitted).
FOIA obligates Mr. Maryland to exhaust his administrative remedies before he may seek judicial review of his claims in this Court. See Dettmann v. Dep't of Justice, 802 F.2d 1472, 1476-77 (D.C.Cir.1986) ("[E]xhaustion of such administrative remedies is required under the Freedom of Information Act before a party may seek judicial review."). Although Mr. Maryland lodges a range of complaints about CVE's handling of his August 2013 Request and November 2014 Request, this lawsuit is limited to those issues for which Mr. Maryland exhausted his administrative remedies. See Kenney v. DOJ, 603 F.Supp.2d 184, 190 (D.D.C.2009) ("It is appropriate for the Court to consider only those aspects of plaintiff's request which he properly exhausted.").
A. August 2013 Request
Mr. Maryland has been tenacious in his attack on CVE's handling of his FOIA requests. Mr. Maryland has repeatedly pressed his position that CVE improperly placed him in the commercial fee requester
The Second Amended Complaint alleges that Mr. Maryland sought in his August 2013 Request "a list of those companies that Defendant scheduled or planned to schedule for an on-site inspection" and that the VA has "refused to release the requested information with regards to companies that Defendant site visited." Second Am. Compl. ¶ 5. Mr. Maryland, however, did not appeal this issue to OGC. See Karnay Decl. ¶ 15; id., Ex. 8 (Second Appeal) at 55-71. By failing to appeal CVE's determination on this issue to OGC, Mr. Maryland has failed to exhaust his administrative remedies with respect to it and the issue is therefore not subject to judicial review. See Dettmann, 802 F.2d at 1476-77; see also Kenney, 603 F.Supp.2d at 190.
Mr. Maryland appealed to OGC two issues from CVE's de novo review of his August 2013 Request: (1) CVE's placement of his request in the commercial requester category, and (2) CVE's determination to withhold personal names in email addresses under FOIA Exemption 6. Karnay Decl. ¶ 15; id., Ex. 8 (Second Appeal) at 55-71. These are the only two issues that have been exhausted administratively and are subject to judicial review.
CVE argues that the issue of Mr. Maryland's fee requester status is moot because CVE did not ultimately charge Mr. Maryland a fee to process the August 2013 Request. Mr. Maryland responds that the issue is not moot because CVE allegedly "continues to place Plaintiff in the commercial fee category without complying with the VA's OGC's November 26, 2013 Remand." See Pl. Reply [Dkt. 56] at 1. Mr. Maryland requests a declaration that his use of the requested information qualifies him as a "representative of the news media" and that he "be categorized as a member of the media in all past, present, and future FOIA requests to Defendant." See Cross-Mot. Mem. [Dkt. 43-24] at 5, 11-18; Cross-Mot. at 2.
The "rule against deciding moot cases forbids federal courts from rendering advisory opinions or decid[ing] questions that cannot affect the rights of litigants in the case before them." Hall v.
CVE is correct that the first issue is moot. A FOIA requester's fee category determines how much an individual is charged by an agency to process a particular FOIA request. 5 U.S.C. § 552(a)(4)(A)(i). FOIA provides that a representative of the news media may only be charged for document duplication, whereas a commercial requester may be charged for document search, duplication and review. See id. §§ 552(a)(4)(A)(ii)(I)-(II). Because no fee was ultimately assessed for answering the August 2013 Request, determining whether CVE properly placed Mr. Maryland in the commercial requester category would not affect Mr. Maryland's rights in this case.
VA invokes FOIA Exemption 6 to withhold the names of individuals that are contained in the email addresses of businesses whose applications were rejected for inclusion on the VetBiz database.
CVE states that it performed the requisite balancing test and concluded that Exemption 6 applies here. CVE argues that the public interest in an individual's name that appears in an email address is minimal compared with the substantial privacy interest these individuals have in their anonymity. See Karnay Decl. ¶ 13. CVE maintains that "there may be an unwarranted stigma or negative connotation associated with CVE's denial of a business for inclusion in CVE's database" and that "[t]hese negative references or presumptions would then extend to the individual identified if personal names were released." Karnay Decl. ¶ 14.
Mr. Maryland argues that CVE invoked Exemption 6 during the administrative process without much elucidation of its rationale for doing so. By failing to explain its reasons for invoking Exemption 6 at the administrative level, Mr. Maryland insists that CVE is barred from relying on new arguments to defend its invocation of Exemption 6 here. Mr. Maryland further argues that the privacy interests in this case are de minimis because CVE regularly publishes similar information on its website and "all submitters to Defendant's Verification Program are required to register with SAM, which publishes the email addresses of submitters that reveal personal names on its website." Cross-Mot. Mem. at 35.
Mr. Maryland is incorrect that CVE is limited to arguments it made at the administrative level. A district court reviews an agency's invocation of FOIA exemptions de novo. See 5 U.S.C. § 552(a)(4)(B); see also War Babes v. Wilson, 770 F.Supp. 1, 2 (D.D.C.1990). The FOIA provision Mr. Maryland cites in support of his argument — Section 552(a)(4)(A)(vii) — applies to the limited issue of fee waivers and not the
The public interest in the release of email addresses containing individual's names is practically nonexistent. Releasing individuals' names in email addresses will not serve to shed light on CVE's conduct. On the other hand, release of these email addresses would disclose the names of individuals whose applications for inclusion on the VetBiz database were denied. These individuals may be subject to stigma if they are publicly identified as being connected with businesses who were denied inclusion in the VetBiz database. See Washington Post Co., 456 U.S. at 599, 102 S.Ct. 1957 ("Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information."); see also Nat'l Ass'n of Retired Federal Emp. v. Horner, 879 F.2d 873, 874 (D.C.Cir. 1989) (agreeing to withholding of an individual's name and address under Exemption 6 in context of individual's status as a federal annuitant). There is no inconsistency in protecting these email addresses even though the email addresses of submitters whose applications were approved are publicly disclosed on the VetBiz database. By applying to have their business profiles included on the VetBiz database, submitters consent (expressly or impliedly) to the public display of their email addresses. However, it does not follow that individuals whose applications have been denied and whose information is therefore not published on the VetBiz database waive their privacy interest in their identities and email addresses. Further, Mr. Maryland's unsubstantiated claim that all submitters' email addresses are publicly available through the "SAM" website does not suffice to create a genuine issue of material fact that defeats summary judgment. See Military Audit Project, 656 F.2d at 738 (plaintiff must controvert agency affidavits "by either contrary evidence in the record or by evidence of agency bad faith"). On balance, given the complete lack of public interest in disclosure, release of the email addresses would work "a clearly unwarranted invasion of personal privacy." Lepelletier, 164 F.3d at 46; Horner, 879 F.2d at 879 (concluding that "even a modest privacy interest, out-weighs nothing every time"). Therefore, the Court concludes that the email addresses at issue fall within the scope of Exemption 6 and CVE may withhold them. The Court will grant judgment to VA as to Mr. Maryland's August 2013 Request.
Finally, Mr. Maryland requests expenses he incurred in the administrative appeal of his August 2013 Request. FOIA does not provide for the recovery of attorney fees incurred during the administrative process. See, e.g., 5 U.S.C. § 552(a)(4)(E)(i) (The "court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.") (emphasis added); Queen Anne's Conservation Ass'n v. U.S. Dep't of State, 800 F.Supp.2d 195, 201 (D.D.C.2011) ("FOIA does not authorize fees for work performed at the administrative stage.") (citation omitted). In addition, Mr. Maryland proceeds pro se and thus has not incurred attorney fees in bringing his appeal. See, e.g., Benavides v. Bureau of Prisons, 993 F.2d 257, 258-60 (D.C.Cir.1993) (holding that pro se litigants may not recover attorney fees under FOIA).
B. November 2014 Request
CVE contends that "the only issues that Mr. Maryland appealed and which remain in contention concern CVE's withholding of personal names in emails under exemption 6 and Mr. Maryland's request for a refund of his fee payment based on his dissatisfaction with the response that he received." Def. Mot. at 11. CVE maintains that it made a supplemental release of information on May 29, 2015 and August 3, 2015 that satisfies the only outstanding claim from the November 2014 Request that have been administratively exhausted. Id.; see also Karnay Supp. Decl. ¶¶ 8, 11. As before, Mr. Maryland argues that CVE cannot withhold email addresses under Exemption 6. He also contends that CVE has yet to release all of the records to which he is entitled, despite its supplemental May 29, 2015 release.
Mr. Maryland offers no rejoinder to CVE's argument that his dissatisfaction with the results of his November 2014 Request does not entitle him to a refund of the processing fee. See generally Pl. Reply. Therefore, the Court deems the argument conceded. See, e.g., Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (a court may treat arguments plaintiff failed to address as conceded in deciding summary judgment motions), aff'd sub nom. Hopkins v. Women's Div., Gen. Bd. of Global Ministries, United Methodist Church, 98 Fed.Appx. 8 (D.C.Cir.2004). As it did with the August 2013 Request, the Court will uphold CVE's invocation of Exemption 6 to withhold email addresses that identify an individual whose application for inclusion on the VetBiz database was denied. See supra pp. 15-17.
Mr. Maryland complains that CVE's supplemental May 29, 2015 production was incomplete because it provided only three items of information out of the fifteen items of information requested in the November 2014 Request. CVE acknowledges that it only released three items of information in its supplemental release, but explains that
Karnay Supp. Decl. ¶ 10 (emphasis in original). Mr. Maryland does not dispute that he already received twelve out of the fifteen items of information requested in his November 2014 Request or that he received the three remaining items of requested information. See generally Pl. Reply.
Mr. Maryland contends that CVE used the incorrect cut-off date for its supplemental May 2015 release. CVE responds that
Id. ¶ 11. In its supplemental August 3, 2015 production, CVE
Id; see also id., Exhibit 3 (August 3, 2015 Letter). Mr. Maryland makes no objections to CVE's August 3, 2015 production. See generally Pl. Reply. As such, there is no genuine dispute as to any material fact that CVE has satisfied its obligations under FOIA in responding to Mr. Maryland's November 2014 Request. CVE has demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt" from FOIA's requirements. Goland, 607 F.2d at 352. Therefore, the Court will grant judgment to VA as to Mr. Maryland's November 2014 Request.
The Court has an affirmative obligation to consider whether any portion of the information CVE withheld pursuant to Exemption 6 is segregable and subject to release. See Juarez, 518 F.3d at 60 (D.C.Cir.2008). Even if an agency properly withholds responsive records under a FOIA exemption, it nevertheless must disclose any non-exempt information that is "reasonably segregable." 5 U.S.C. § 552(b); Mead Data Cent., 566 F.2d 242, 260 (D.C.Cir.1977) ("It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions."). "The question of segregability is by necessity subjective and context-specific, turning upon the nature of the documents and information in question." Am. Civil Liberties Union v. U.S. Dep't of State, 878 F.Supp.2d 215, 225 (D.D.C.2012) (citing Mead Data Cent., 566 F.2d at 261). Because of the discrete nature of the information withheld under Exemption 6 — email addresses — the Court is satisfied that there are no reasonably segregable portions of that information that can or must be released. The Court will not order CVE to release the "@" symbol or the domain of each withheld email address. See Mead Data Cent., 566 F.2d at 261 n. 55 (A district court need not "order an agency to commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.").
D. Adequacy of Search
In passing, Mr. Maryland argues that he is entitled to summary judgment because CVE did not conduct a reasonable search for records. See Cross-Mot. [Dkt. 43] at 1. The Second Amended Complaint does not allege that CVE's search in response to either the August 2013 Request or November 2014 Request was inadequate. Only those claims in the operative complaint are before the Court. Jo v. Dist. of Columbia, 582 F.Supp.2d 51, 64 (D.D.C. 2008) ("It is well-established in this district that a plaintiff cannot amend his Complaint in an opposition to a defendant's motion for summary judgment."); Sharp v.
VA's motion for summary judgment, Dkt. 42, will be granted and Mr. Maryland's cross-motion for summary judgment, Dkt. 43, will be denied. Judgment will be entered in favor of VA. VA's motion to strike Mr. Maryland's cross-motion for summary judgment, Dkt. 45, and Mr. Maryland's second motion for a preliminary injunction and restraining order, Dkt. 46, will be denied as moot. A memorializing Order accompanies this Opinion.