714 Fed.Appx. 191 (3rd Cir. 2017), 16-1953, Conley v. Federal Bureau of Investigation

Docket Nº:16-1953
Citation:714 Fed.Appx. 191
Opinion Judge:PER CURIAM
Party Name:Kevin CONLEY, Appellant v. FEDERAL BUREAU OF INVESTIGATION; United States Department of Justice
Attorney:Kevin Conley, Pro Se Jordan M. Anger, Esq., Caroline A. Sadlowski, Esq., Office of United States Attorney, Newark, NJ, for Defendants-Appellees
Judge Panel:Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
Case Date:November 28, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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714 Fed.Appx. 191 (3rd Cir. 2017)

Kevin CONLEY, Appellant


FEDERAL BUREAU OF INVESTIGATION; United States Department of Justice

No. 16-1953

United States Court of Appeals, Third Circuit

November 28, 2017


Submitted Pursuant to Third Circuit LAR 34.1(a) November 24, 2017

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

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On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-14-cv-05829), District Judge: Honorable Peter G. Sheridan

Kevin Conley, Pro Se

Jordan M. Anger, Esq., Caroline A. Sadlowski, Esq., Office of United States Attorney, Newark, NJ, for Defendants-Appellees

Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges



Kevin Conley appeals pro se from an order of the United States District Court for the District of New Jersey granting the defendants’ motion for summary judgment in this action brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a. For the following reasons, we will affirm in part, vacate in part, and remand for further proceeding consistent with this opinion.


In April 2011, Conley, a state prisoner in New Jersey, submitted a FOIA/PA request to the FBI. The FBI administratively divided the request into two separate inquiries: (1) records pertaining to Conley himself (Conley Request); and (2) records pertaining to the Restriction Fragment Length Polymorphism (RFLP) DNA analysis that was in effect in January 1995 (RFLP Request). Conley also requested a fee waiver.

In response to the RFLP Request, on October 27, 2011, the FBI released 107 pages in full or in part from the June 1996— July 2000 RFLP manual. The FBI withheld information under 5 U.S.C. § 552(b)(7)(E). Conley timely appealed to the Department of Justice’s Office of Information Policy (OIP), challenging the redactions and arguing that the manual was not responsive to his request for RFLP policy and procedures that were in effect in January 1995. The OIP affirmed the FBI’s response by letter dated August 21, 2012.1

With respect to the Conley Request, the FBI denied a fee waiver. Later, by letter dated December 16, 2011, the FBI provided

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Conley with responsive records. In particular, the FBI advised Conley that it had reviewed 212 pages and that 172 pages were being released in full or in part.[2] The FBI withheld information under 5 U.S.C. § 552(b)(6), (b)(7)(C), and (b)(7)(E). No fees were assessed. Conley filed an administrative appeal, which was received by the OIP on March 1, 2012. The OIP denied the appeal as untimely because it was not received within 60 days of the FBI’s response. See 28 C.F.R. § 16.9(a) (2011).

In September 2014, Conley filed a complaint challenging the FBI’s responses. Thereafter, on July 14, 2015, the FBI notified Conley by form letter that it had located approximately 1,857 additional pages of potentially responsive documents. Noting that Conley’s fee waiver request had already been denied, the FBI instructed Conley to notify it in writing within 30 days whether he wanted to receive the documents in paper format (at a cost of $87.85) or on CDs (which would have to be sent to a non-prison address at a cost of $55). The FBI also notified Conley that he could narrow the scope of his request to reduce the duplication fees. Conley replied by returning the form letter, on which he included check marks indicating his willingness to pay the duplication fees. But next to those check marks Conley wrote "[c]onditional based on compliance with ... ¶ 7 to 38." Those paragraph numbers referred to a Letter Brief in which Conley set forth various "pre-conditions before [he] will provide written consent to settle." The FBI interpreted Conley’s response as a failure to commit to pay the fees and closed his request. Conley claimed that he filed an appeal with the OIP but did not receive a response.

Back in the District Court, the FBI filed a motion to dismiss or in the alternative for summary judgment, arguing that Conley failed to exhaust his administrative remedies and that the FBI properly denied his fee waiver request. Notably, the FBI did not address its use of FOIA exemptions to withhold responsive material. In response, Conley argued that he did appeal from the FBI’s July 14, 2015 response and that there were disputed material facts concerning the redactions. Conley also filed a motion for partial summary judgment regarding the denial of his fee waiver request. The FBI opposed that motion, arguing that Conley’s "interest is purely personal" and that he failed to demonstrate that disclosure was in the public interest. The District Court held a hearing on February 16, 2016, at which it granted the FBI’s motion for summary judgment and denied Conley’s motion for partial summary judgment. The next day, the District Court entered an order to that effect. Conley appealed.


We employ a two-tiered test in reviewing an order granting summary judgment in proceedings seeking disclosure under the FOIA. First, we must "decide whether the district court had an adequate factual basis for its determination[; ]" and, second, we must "decide whether that determination was clearly erroneous." Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quotations, citations omitted). We will reverse only "if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence[,] or where the district court has misapprehended the weight of

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the evidence." Lame v. U.S. Dep’t of Justice, 767 F.2d 66, 70 (3d Cir. 1985).


The District Court properly concluded that Conley did not qualify for a fee waiver. The FOIA permits an agency to recover costs of processing FOIA requests. 5 U.S.C. § 552(a)(4)(A). Fee waivers are available, however, "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). In his FOIA request, Conley...

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