Perry v. Block, 81-1330

Citation221 U.S.App.D.C. 347,684 F.2d 121
Decision Date30 July 1982
Docket NumberNo. 81-1330,81-1330
PartiesCharles E. PERRY, Appellant, v. John R. BLOCK, Secretary of Agriculture, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-1487).

Sarah M. Vogel, Mandan, N.D., for appellant.

John H. E. Bayly, Jr., Asst. U. S. Atty., Washington, D. C., with whom Stanley S. Harris, U. S. Atty., and Royce C. Lamberth, Kenneth M. Raisler and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on brief, for appellees. Charles F. C. Ruff, U. S. Atty., at the time the case was filed, Washington, D. C., also entered an appearance for appellees.

Before TAMM and GINSBURG, Circuit Judges, and EDMUND L. PALMIERI, * United States Senior District Judge for the Southern District of New York.

Opinion PER CURIAM.

PER CURIAM:

This case comes to us on appeal of a district court decision that the federal appellees had, after some delay, released all documents responsive to appellant's Freedom of Information Act (FOIA) and Privacy Act requests for production. Appellant Charles E. Perry challenges Judge John Lewis Smith's summary disposition of the litigation in appellees' favor, arguing both that nonexempt, requested material remains undisclosed and that an action for damage lies under the Privacy Act as a result of the government's delayed and fitful responses to his document demands. Although it is manifest from the record that the government has been less than forthcoming in its dealings with Mr. Perry, we affirm the district court's rulings. The Privacy Act does not provide a claim for damages in the circumstances presented here, and the affidavits submitted by the government persuade us that all documents held by appellees and requested by Mr. Perry have now been released.

I.

Appellant Perry is a North Dakota farmer who received from the Farmers Home Administration (FmHA) loans totaling roughly $150,000 between 1976 and 1978. Deficiencies in appellant's repayment practices in 1978 prompted the government in the following year to initiate a foreclosure action against the collateral Perry pledged with the FmHA. Appellant has contested the foreclosure proceedings and has made allegations of government wrongdoing in connection with the loans he received. 1 Indeed, even before the government filed the foreclosure action in North Dakota, Perry made in March of 1979 his initial request for the document he was subsequently to pursue for nearly two years. A little background will provide some flavor to this regrettable saga of carelessness and delay.

On March 15, 1979, Perry wrote to the National Director of the FmHA requesting (1) a complete copy of the working file assembled by FmHA officials and used by them to monitor the loans made him and (2) a copy of the investigative reports compiled in connection with those loans. 2 The FmHA claims, however, that it did not receive this letter until a copy of it was included with further correspondence sent by appellant to the Secretary of Agriculture on July 10, 1979. 3 On this July date, Perry wrote the Secretary and requested that the government provide the information sought in the earlier letter, a copy of which was appended. 4 The Secretary responded on July 30, 1979, acknowledging Perry's July 10 letter and stating that a formal response to the document request was in preparation. 5 By letter dated August 21, 1979, the Secretary apparently notified Perry that the records requested were in the possession of the United States Attorney for North Dakota and that inquiries should be directed to that official's office; 6 appellant denies, however, ever receiving this letter. 7

This saga of allegedly crossed and lost correspondence involved as well a problem of roving files. The chief FmHA collection of files relating to and sought by appellant was held between January and May of 1979 by the Denver branch of the Office of General Counsel, Department of Agriculture. After mid-May of that year, these files were held by the United States Attorney in North Dakota, where they remained until after Perry filed the instant action.

In April of 1980, counsel for appellant again wrote the Secretary of Agriculture, demanding production under the FOIA and the Privacy Act of the information sought in the initial letter of March 1979. 8 The FmHA's FOIA Officer responded by advising appellant that the information he sought was held by the North Dakota United States Attorney and suggesting that Perry contact the office of the federal prosecutor there. 9 On May 9, 1980, counsel for appellant lodged with the Executive Office for United States Attorneys a formal request for the documents based on the FOIA and the Privacy Act. 10 In early July, the Acting Director of that office denied the request, citing the law enforcement investigatory files exemption to the FOIA, 5 U.S.C. § 552(b)(7) (A) (1976). 11 Although not necessary in light of the Justice Department delays, Perry subsequently exhausted available administrative remedies in seeking the documents.

On June 16, 1980, Perry filed the instant action seeking production of the requested agency records and damages for the wrongful withholding of the information. The Department of Agriculture and the FmHA responded in late July with a motion to dismiss or for summary judgment on the ground that the documents in question were in the possession and control of the North Dakota United States Attorney. In their affidavits supporting the motion, the federal defendants suggested to the court that the requested materials could be examined by appellant in Bismarck, North Dakota, during normal working hours; this sanguine suggestion was, however, inconsistent with the Justice Department letter of July 2, 1980, claiming the protection of the investigatory files exemption for the very same material. 12

Appellant's difficulties in obtaining the requested material continued. In a statement filed in the district court on September 16, 1980, the federal defendants argued that the relief sought by Mr. Perry had "long (ago) been accorded him," 13 apparently because a private investigator in the employ of Perry's counsel had viewed the requested materials. 14 In mid-October, however, the Department of Justice finally released over 400 pages of documents for inspection and copying by appellant. 15

On December 10, 1980, the district court held a hearing on the government motion, at which representatives of the involved agencies argued that the litigation was moot in light of the October record release. Appellant submitted an affidavit alleging that a number of relevant, nonexempt documents had been improperly withheld by appellees. Although expressing skepticism at Perry's allegations, the district judge ordered appellees to undertake a further search for the "missing" documents. The search proved fruitful for Perry as an additional 160 pages of materials were released on January 9, 1981; 16 appellees, acknowledging a "mistake," claimed unawareness of the additional material. 17 On January 12, 1981, still more documents were released; investigatory papers prepared by agents of the Department of Agriculture's Office of Inspector General and relating to Perry's federal indebtedness were then disclosed.

The district judge conducted a second hearing on January 15, 1981. Appellees once again asserted that the Department of Agriculture possessed no other disclosable documents relating to appellant's request. Six days later, however, still more records were released. 18 Convinced that the federal defendants had at long last surrendered all of the requested documents, the district judge on January 22, 1981, granted the government's motion to dismiss or, in the alternative, for summary judgment. The trial judge also directed Perry's counsel to submit a request for reasonable attorneys' fees and costs. This appeal ensued.

II.

Appellant posits a variety of challenges to the government actions in this case, only two of which merit discussion here. We would simply note at this juncture that, however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform. Although "(t)here may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information require judicial intervention," Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978), the case at bar does not mandate such court action. Under 5 U.S.C. § 552(a)(4)(B), a federal court is authorized only to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld ...." Thus, "(o)nce the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made." Crooker v. United States State Department, 628 F.2d 9, 10 (D.C.Cir.1980). We are not authorized to make advisory findings of legal significance on the character of the agency conduct vis-a-vis any requester of information. In sum, if we are convinced that appellees have, however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA. 19

We turn now to the two arguments proffered by appellant that warrant limited discussion. First, arguing that relevant, nonexempt documents remain undisclosed, appellant contends that the affidavits submitted by appellees were insufficient to establish that the government search had been thorough and that all records had been released. Second, appellant contends that we should remand the case to the district court for a trial on his claim for damages under the Privacy Act.

A. The Adequacy of the Affidavits

Since the district judge considered...

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