Reggie B. Walton, United States District Judge.
The plaintiff, proceeding pro se, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), to compel the release of records from the Executive Office for United States Attorneys
The defendants' undisputed material facts are as follows. The plaintiff submitted a request to the EOUSA in May 2010, for what was characterized as "Authorization Documents." Declaration of David Luczynski ("Luczynski Decl."), ECF No. 18-2, ¶¶ 4-5. By letter dated August 27, 2010, the EOUSA informed the plaintiff that it had processed 372 pages of records that were being withheld completely under FOIA exemptions 5 and 6.
In response to the plaintiff's appeal, the Office of Information Policy ("OIP") remanded the plaintiff's request to the EOUSA to conduct a search for additional records in the United States Attorney's Office for the Western District of Kentucky. See id. ¶ 9. By letter dated November 19, 2010, the EOUSA informed the plaintiff that the remanded request was a duplicate of the previously processed request. Id. ¶ 10. By letter dated May 31, 2011, the OIP informed the plaintiff, among other things, that the additional search had located no additional records and "noted that you have not appealed [the November 19, 2010] response." Luczynski Decl., Ex. I.
In May 2010, the USDA's Farm Service Agency received the plaintiff's request for documents pertaining to him. Declaration of Marcinda M. Kester ("Kester Decl."), ECF No. 18-3, ¶ 3. "On or about May 18, 2010," the Farm Service Agency "issued a response ... indicating [that] no responsive records were found[.]" Id. ¶ 5; see Compl. Attachment ("May 18, 2010 Letter"). The letter informed the plaintiff about his right to appeal the decision to the Farm Service Agency Administrator within 45 days. See May 18, 2010 Letter at 2. The Farm Service Agency has no record of an administrative appeal from the plaintiff. Kester Decl. ¶ 6 (paragraph number supplied).
Under Rule 56 of the Federal Rules of Civil Procedure, "[t]he 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 court reviews an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and "FOIA cases typically and appropriately are decided on motions for summary judgment," ViroPharma Inc. v. Dep't of Health & Human Servs., 839 F.Supp.2d 184, 189
"To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with `specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. DOJ, 696 F.Supp.2d 113, 119 (D.D.C.2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)). On the other hand, "[a] non-moving party's complete failure to come forward with evidence to demonstrate the existence of a genuine issue of material fact constitutes a reason for the grant of summary judgment under [Rule 56(e)]." Smith v. United States Dep't of Justice, 987 F.Supp.2d 43, 47 (D.D.C.2013).
Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are "relatively detailed and nonconclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotations and citations omitted), and when they "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 [or] by evidence of agency bad faith," Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see Beltranena v. Clinton, 770 F.Supp.2d 175, 181-82 (D.D.C.2011).
The EOUSA has properly justified withholding responsive records in their entirety under FOIA exemption 5 as attorney work product and deliberative process material. See Luczynski Decl. ¶¶ 16-20, 25 and Ex. J. (Vaughn Index); Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment, ECF No. 18-1, at 6-8; cf. Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 371 (D.C.Cir.2005) ("If a document is fully protected as [attorney] work product, then segregability is not required."); Citizens For Responsibility & Ethics in Wash. v. Nat'l Archives & Records Admin., 583 F.Supp.2d 146, 156-58 (D.D.C.2008) (discussing deliberative process privilege and attorney work product doctrine). The plaintiff has not come forward with any contrary evidence. Therefore, the Court will grant summary judgment to the EOUSA on its processing of responsive records.
The Court's review with regard to the EOUSA's referral of records compels a different result. The referral of records to the originating agency does not automatically relieve the EOUSA of its disclosure responsibility. This is because agencies are "obligated to account for the responsive materials located in their records, even if the decision to release or withhold information is left to the component where those records originated[.]" Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 67 F.Supp.3d 290, 296, n. 2, 2014 WL 4536909, at `3, n. 2 (D.D.C. Sept. 15, 2014). The EOUSA's declarant has not addressed the outcome of the referral, and "a referral of records could constitute an improper withholding if the `net effect [of the referral procedure] is
The plaintiff has not come forward with any evidence to rebut the USDA's evidence that he failed to exhaust his administrative remedies, see Kester Decl. ¶ 6, notwithstanding the advisements that were provided in the no-records response attached to the complaint. Although in this circuit, failure to exhaust administrative remedies is treated as a jurisprudential, not a jurisdictional, bar to judicial review, the FOIA's administrative scheme favors dismissal of an unexhausted claim, see Calhoun v. Dep't of Justice, 693 F.Supp.2d 89, 91 (D.D.C.2010) (citing Wilbur v. CIA, 355 F.3d 675, 676 (D.C.Cir. 2004); Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C.Cir.2003)). Hence, the Court will grant summary judgment to the USDA on this ground alone.
For the foregoing reasons, the Court will grant the defendants' uncontested motion for summary judgment in part and deny it in part; in all other respects, the case will be dismissed.