Barvick v. Cisneros

• Decision Date: 18 September 1996
• Docket Number: Civil Action No. 95-2245-GTV.
• Citation: 941 F.Supp. 1015
• Parties: Curt BARVICK, Plaintiff, v. Henry CISNEROS, Secretary of the Department of Housing and Urban Development of the United States, Defendant.
• Court: U.S. District Court — District of Kansas

941 F.Supp. 1015

Curt BARVICK, Plaintiff, v. Henry CISNEROS, Secretary of the Department of Housing and Urban Development of the United States, Defendant.

Civil Action No. 95-2245-GTV.

United States District Court, D. Kansas.

September 18, 1996.

COPYRIGHT MATERIAL OMITTED

Andrew C. Marquardt, Marquardt & Associates, L.L.C., Fairway, KS, for Plaintiff.

Robert A. Olsen, Office of United States Attorney, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

This case is before the court upon plaintiff Curt Barvick's motion for summary judgment (Doc. 5) and upon the defendant's motion for summary judgment (Doc. 7). For the reasons stated below, the plaintiff's motion is denied and the defendant's motion is granted.

Barvick is an investigator for the Kansas City, Kansas Office of Inspector General (OIG) of the Department of Housing and Urban Development (HUD). On January 4, 1995, Barvick filed a civil rights grievance against HUD, alleging a pattern and practice of sexual discrimination in his office, particularly with regard to recent GS-12 and GS-13 promotions.¹ On January 31, 1995, Barvick filed a request with HUD's OIG, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking records pertaining to himself. On February 10, 1995, Barvick filed another FOIA request, seeking all records, specifically resumes and job applications (SF-171s), of individuals who had applied for the GS-13 investigator position in his office recently filled by Karen Gleich.

On February 27, 1995, OIG's FOIA officer responded to Barvick's letters, advising that OIG does not maintain official personnel records on employees and applicants. The letter also stated that his FOIA requests were being referred to HUD's Office of the Executive Secretariat, which on March 3, 1995, advised Barvick that his request for records about himself had been referred to HUD's Privacy Act Officer.

On April 11, 1995, Barvick sent similar letters to HUD's FOIA Officer and Executive Secretariat, noting that he had not had a response to his February 10th letter. Additionally, he requested any records referencing his character, qualities, and work habits as well as those of Karen Gleich and Nancy Brown. Barvick also requested the resumes and SF-171s of all candidates for the St. Louis GS-13 position filled by Nancy Brown and for the Kansas City GS-12 position filled by Danny Barbat. On April 27, 1995, Barvick sent a follow-up letter to HUD's Privacy Act Officer.

On May 9, 1995, Barvick received from HUD a redacted SF-171 job application of the successful applicant for the Kansas City GS-13 position, rating worksheets, and the selection roster. Citing Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), HUD informed Barvick that it would release redacted SF-171s for successful candidates but not resumes or SF-171s for unsuccessful applicants. Barvick timely filed an administrative appeal regarding his February 10th FOIA request.

On June 2, 1995, Barvick filed suit under the FOIA to enjoin the defendant from withholding agency records and to order production of such records.²

On July 18, 1995, HUD responded to Barvick's FOIA requests of April 11th, enclosing redacted SF-171s of the successful candidates for the Kansas City GS-12 and the St. Louis GS-13 positions. HUD explained personal information such as dates of birth, home addresses, telephone numbers, social security numbers, performance appraisals, and personal references had been withheld pursuant to Exemption 6. HUD again declined to release resumes or SF-171s for unsuccessful applicants, stating release of such information would be an unwarranted invasion of personal privacy under Exemption 6.³

The parties have filed cross motions for summary judgment, which they agree will resolve this case in its entirety.

Summary Judgment

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All disputed facts, and reasonable inferences derived from the evidence presented, must be resolved in favor of the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Frandsen v. Westinghouse Corp., 46 F.3d 975, 977 (10th Cir.1995); F.D.I.C. v. 32 Edwardsville, Inc., 873 F.Supp. 1474, 1479 (D.Kan.1995). Here, the material facts are not in dispute.

Rule 56 should be construed to satisfy one of its principal purposes, namely, to segregate and eliminate factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Entitlement to summary judgment must be proven beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

"Summary judgment may ... be available to a FOIA defendant when the agency offers adequate affidavits establishing that it has complied with its FOIA obligations." Schwarz v. Interpol, Office of Info. & Privacy, 48 F.3d 1232, 1995 WL 94664, *1 (10th Cir.) (citing Miller v. United States Dep't of State, 779 F.2d 1378, 1382-83 (8th Cir.1985)), cert. denied, ___ U.S. ___, 115 S.Ct. 2587, 132 L.Ed.2d 835 (1995). Adequate agency affidavits "(1) `describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exception' ... and (2) `are not controverted by either contrary evidence in the record or evidence of agency bad faith.'" Badalamenti v. United States Dep't of State, 899 F.Supp. 542, 546 (D.Kan.1995) (quoting McDonnell v. United States, 4 F.3d 1227, 1243 (3d Cir.1993)). Here, the defendant has submitted a declaration from the Director of HUD's Office of the Executive Secretariat that satisfies the above criteria.

[T]he strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents. That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document.

United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 546, 116 L.Ed.2d 526 (1991) (citations omitted); see Sheet Metal Workers Int'l Ass'n, Local No. 9 v. United States Air Force, 63 F.3d 994, 996 (10th Cir.1995). In an FOIA action, the court reviews do novo the defendant's decision not to release the requested information. The court "must determine whether all of the requested materials fall within an exemption to the FOIA and may not simply conclude that an entire file or body of information is protected without consideration of the component parts." Anderson v. Department of Health & Human Servs., 907 F.2d 936, 941 (10th Cir.1990); see Gersh & Danielson v. United States Envtl. Protection Agency, 871 F.Supp. 407, 409 (D.Colo.1994).

Freedom of Information Act

Barvick initially argues that he is entitled to relief as a matter of law because the defendant did not respond to his FOIA requests within the ten-day statutory time limit. See 5 U.S.C. § 552(a)(6)(A)(i) ("Each agency, upon any request for records ... shall ... determine within ten days ... after the receipt of any such request whether to comply with such request...."); Eric J. Sinrod, Freedom of Information Act Response Deadlines: Bridging the Gap Between Legislative Intent and Economic Reality, 43 Am. U.L.Rev. 325, 329-30 (1994) (citing Act of Nov. 21, 1974, Pub.L. No. 93-502, 88 Stat. 1561 (1974)) (statutory time limits enacted in 1974). In a case of untimely denial, the plaintiff contends that the statute eliminates the court's discretion and that the court must order production of any withheld and redacted information. Barvick's construction of the statute, for which he cites no authority, is not persuasive.

In Burke Energy Corp. v. Department of Energy for United States, 583 F.Supp. 507 (D.Kan.1984), the Department produced documents or provided justification for withholding them eighteen months after the original FOIA request. Based upon the facts of the case, the court denied the plaintiff's summary judgment motion alleging governmental bad faith. The court declined "to equate delay with bad faith" and found the Department's delay "was not sufficiently significant to permit the extreme remedy of summary judgment in favor of the plaintiff." Id. at 514. Here, the delay was at most five months, a shorter period of time then that at issue in Burke Energy Corp.

Most courts considering the issue have excused governmental delay in complying with the ten-day rule. Sinrod, 43 Am. U.L.Rev. at 342, 347. The issue is not ultimate access to the information, but under what time constraints courts should compel agencies to act upon FOIA requests. Voinche v. F.B.I., 999 F.2d 962, 963 (5th Cir.1993) (per curiam); Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 607-08 (D.C.Cir.1976).

The purpose of the ten-day limit for an agency response is to allow a FOIA requester, who has not yet received a response from the agency, to seek a court order compelling the release of the requested documents. The court may then order the agency to respond to the request. Or, the court may review the request itself under the de novo review provision. Frequently, if the agency is working diligently, but exceptional circumstances have prevented it from responding on time, the court will refrain from ruling on the request itself and allow the agency to complete its determination.

Oglesby v. United States Dep't of Army, 920 F.2d 57, 64 (D.C.Cir.1990) (citations omitted); see Kuffel v. United States Bureau of Prisons, 882 F.Supp. 1116, 1127 (D.D.C.1995); see also Cohen v. F.B.I., 831 F.Supp. 850, 852 (S.D.Fla.1993) (if agency does not respond...