344 F.3d 1256 (D.C. Cir. 2003), 01-5161, Hidalgo v. F.B.I.

Docket Nº:01-5161
Citation:344 F.3d 1256
Party Name:Hidalgo v. F.B.I.
Case Date:October 03, 2003
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1256

344 F.3d 1256 (D.C. Cir. 2003)

Peter J. HIDALGO, Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION, Appellee.

No. 01-5161.

United States Court of Appeals, District of Columbia Circuit

October 3, 2003

Argued Sept. 11, 2003.

Page 1257

Appeal from the United States District Court for the District of Columbia (No. 00cv00709).

Goodwin Liu argued the cause for amicus curiae in support of the appellant. Walter E. Dellinger, appointed by the court, was on brief.

Diane M. Sullivan, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

Before: GINSBURG, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Peter Hidalgo, a federal inmate in Coleman, Florida, appeals the district court's summary judgment in favor of the government.1 Hidalgo brought this action under the Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 et seq., to challenge the denial by the Federal Bureau of Investigation (FBI) of his FOIA request for information regarding a paid government informant. The district court held that the requested information was exempt from disclosure under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Because Hidalgo did not appeal the FBI's denial to the Office of Information and Privacy (OIP) of the United States Department of Justice (DOJ) as required under the DOJ regulations, we conclude Hidalgo failed to exhaust his administrative remedies and, accordingly, we vacate the district court's summary judgment and remand to the district court to dismiss the complaint for failure to exhaust.

I.

On December 13, 1999 Hidalgo sent the FBI a request seeking information regarding Manny Sanchez, who, he asserts, operated a marine service facility in Miami from 1989-93 as a paid informant assisting the FBI to identify and arrest narcotics smugglers.2 Hidalgo's FOIA request sought an accounting of all payments made to Sanchez by any government agency, a history of all of his convictions and arrests, a list of all claims of misconduct against him while he was an informant and any records related to his failure to pay federal income taxes. On December 29, 1999 Hidalgo submitted an "appeal from the denial of records by the F.B.I." to the OIP, the DOJ component designated to take FOIA appeals, see 28 C.F.R. § 0.23a. The appeal asserted that the FBI had "exceeded the statutory time limits for providing the records requested." JA 39. In fact, however, the statutory 20-day limit had not run as of that date. See 5 U.S.C. § 552(a)(6)(A)(I).3

Page 1258

On January 7, 2000 the FBI sent Hidalgo a timely response denying the FOIA request and informing Hidalgo that he needed either proof of Sanchez's death or Sanchez's privacy waiver to obtain the requested information because "[s]uch records, if they exist, are exempt from disclosure pursuant to Exemptions (b)(6) and/or (b)(7)(C) of the FOIA." JA 41.4

On February 8, 2000 the OIP (apparently unaware of the FBI's January 7, 2000 denial) responded to Hidalgo's December 29, 1999 appeal, stating: "Although the [FOIA] authorizes you to treat the failure of the FBI to act on your request within the specified time limit as a denial thereof, [the OIP] ... cannot act until there has been an initial determination by the [FBI]." JA 43.

On...

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