Kovalevich v. Bureau of Indian Affairs
| Decision Date | 14 June 2021 |
| Docket Number | No. 18-cv-0610 (KBJ),18-cv-0610 (KBJ) |
| Parties | SEAN MICHAEL KOVALEVICH, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
On March 9, 2018, pro se Plaintiff Sean Michael Kovalevich filed the instant lawsuit to obtain records from the Bureau of Indian Affairs ("the Bureau") in response to a document request that he had submitted under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. (See Compl., ECF No. 1, ¶¶ 18, 28.) During the course of the ensuing litigation, the Bureau released 83 responsive documents to Kovalevich, either in full or in part, while justifying its withholdings on the basis of FOIA Exemptions 6 and 7(C). (See Pl.'s Statement of Material Facts to Which There Is No Genuine Issue ("Pl.'s Statement of Undisputed Material Facts"), ECF No. 18, ¶¶ 10-12; Defs.' Statement of Material Facts to Which There Is No Genuine Issue ( ), ECF No. 16-1 The Bureau now insists that it has fully complied with its obligations under the FOIA, because it conducted an adequate search for responsive records, properly redacted or withheld personal information concerning third parties, and disclosed all non-exempt portions of responsive documents. (See Defs.' Opp'n to Pl.'s Mot. for Summ. J. & Cross-Mot. for Summ. J. ( ), ECF No. 16, at 4-9.)1 Kovalevich concedes that the Bureau has complied with its search and disclosure obligations, but maintains that the agency has violated the FOIA nevertheless, by attempting to assess search fees after failing to respond to his request in a timely manner, and also by engaging in a practice of ignoring FOIA requests and disregarding the statute's response deadlines. (See Pl.'s Opp'n to Defs.' Cross-Mot. for Summ. J. & Reply in Supp. of Pl.'s Mot. ("Pl.'s Combined Reply"), ECF No. 18, at 4-5.) Kovalevich further argues that he is entitled to attorney's fees and costs, because his lawsuit caused the Bureau to release the requested records. (See id. at 6.)
Before this Court at present are Kovalevich's Motion for Summary Judgment and the Bureau's Cross-Motion for Summary Judgment. For the reasons explained fully below, the Court has concluded that the Bureau has fully (and concededly) discharged its duties under the FOIA and that Kovalevich has failed to demonstrate his entitlement to any of his requests for relief. Therefore, the Bureau's motion must be GRANTED, and Kovalevich's motion must be DENIED. A separate Order consistent with this Memorandum Opinion will follow.
Kovalevich is a North Dakota state prisoner who is incarcerated in Bismarck, North Dakota. (See Compl. ¶ 2.) On December 12, 2016, Kovalevich sent a letter tothe Turtle Mountain Law Enforcement Agency's Office of Justice Services requesting "all documents and records maintained by the Bureau of Indian Affairs, Belcourt Police Department concerning [him]." (Defs.' Statement of Undisputed Material Facts ¶ 2; Decl. of Sean Kovalevich ("Kovalevich Decl."), ECF No. 12, ¶ 1; Ex. 1 to Compl., ECF No. 1-2, at 1.) In his letter, Kovalevich explained that he was "willing to pay reasonable search and duplication fees[,]" but asked the agency to notify him "ahead of time" if the estimated fees exceeded $10.00. (Ex. 1 to Compl. at 1.) After 20 workdays passed without receiving any response, Kovalevich sent another letter to the Bureau on January 29, 2017, reiterating his request for records pertaining to him. (See Defs.' Statement of Undisputed Material Facts ¶ 2; Kovalevich Decl. ¶ 2.)
The Bureau responded to Kovalevich's letters on February 27, 2017, acknowledging that it had received his request. (See Ex. 2 to Compl., ECF No. 1-2, at 3.) The Bureau further informed Kovalevich (1) that processing his request would likely take seven hours and the estimated cost of search and review fees was $215; (2) that there would be no charge for duplication of records, because his request involved 85 pages and duplication of the first 100 pages is free; and (3) that the Bureau would not begin processing Kovalevich's FOIA request until he provided "written assurance" of his "willingness to pay [the] associated fees[.]" (Id. at 3-4.) The Bureau additionally warned Kovalevich that if he did not reply within "20 workdays on the fee issue," the Bureau would "assume that [he was] no longer interested in this matter and [would] close the file on [his] request." (Id. at 4.)
In a letter dated March 2, 2017, Kovalevich notified the Bureau of his intent to appeal the fee estimate (see Kovalevich Decl. ¶ 4; Answer & Defenses, ECF No. 11,¶ 11; Ex. 4 to Compl., ECF No. 1-2, at 9), and he submitted a FOIA appeal letter to the Department of the Interior's Office of the Solicitor a few days later (see Kovalevich Decl. ¶ 5; Answer & Defenses ¶ 12; Ex. 3 to Compl., ECF No. 1-2, at 5-8). In his appeal letter, Kovalevich asserted that the cost estimate was "excessive[,]" and that there was "no reason that 7 hours would be required to search and review 85 pages" of records. (Ex. 3 to Compl. at 5-6.) The Bureau responded to Kovalevich's March 2, 2017 letter on May 25, 2017, informing him that, although its search for responsive records had begun, the Bureau had decided to close his file because he had "not agreed to pay" the estimated fee. (Ex. 4 to Compl. at 9-10.)
Kovalevich's criminal defense attorney then contacted the Bureau about the fee issue (Kovalevich Decl. ¶ 7; Answer & Defenses ¶ 14), offering to pay the estimated fees on Kovalevich's behalf (Ex. 7 to Compl., ECF No. 1-2, at 18). However, according to Kovalevich, the Bureau rejected his lawyer's offer and insisted that Kovalevich needed to "personally file" a new request since his prior request had been closed. (See id.) Kovalevich renewed his request on August 18, 2017, and he sent a follow-up letter on September 26, 2017. (See Exs. 5 & 6 to Compl., ECF No. 1-2, at 12-14.) After 75 business days passed without receiving any response to his renewed request, Kovalevich submitted another "FOIA appeal" letter to the Office of the Solicitor, stating that he was "appealing the non-response of BIA Belcourt PD which is a denial of [his] request[,]" and that he was additionally "renewing [his] appeal of the agency's fee determination as being excessive and unjustifiable." (Ex. 7 to Compl. at 19.) Kovalevich did not receive a response to his appeal letter. (Kovalevich Decl. ¶ 11.)
Kovalevich filed the instant legal action against the Bureau on March 9, 2018 (see Compl. at 1), and moved for summary judgment on August 3, 2018 (see Pl.'s Mot. at 1).2 In his motion, Kovalevich argues that the "uncontested facts" demonstrate that the Bureau missed the statutory deadline to respond to his FOIA request, and that "the [Bureau] quoted [him] a fee . . . totaling $215.00"—even though "an agency may not assess search fees if it failed to comply with the [FOIA's] time limit[.]" (Id. at 2.) Kovalevich's summary judgment motion further contends that, "to the extent that [the Bureau] now allege[s] that any or all of the requested documents are exempt from release[,]" the Court should conduct an in camera review of the withheld records; "require indexing, justification, and itemization" of the records pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); and order the agency to release all non-exempt records without charge. (Pl.'s Mot. at 3-4.) Kovalevich's motion also asks the Court to enjoin the Bureau "from relying on the invalid practices of ignoring FOIA requests and appeals and of claiming that the . . . twenty workday time limit does not apply until they respond to the request" (id. at 4), and to award him reasonable attorney's fees and costs (id.). The motion additionally requests that the Court "declare the [Bureau's] actions to be in violation of the FOIA" (id.); "make a specific finding of fact" that the agency's "actions were so flagrant as to be arbitrary and capricious" (id.); and "refer the matter to Special Counsel for investigation" (id.).
After Kovalevich filed his motion for summary judgment, the Bureau filed a Status Report on August 20, 2018, stating that it had completed the search of its records in response to Kovalevich's request and had found "85 potentially responsive documents consisting of approximately 260 pages." (Status Report, ECF No. 13, ¶ 2.) The Status Report also expressed the Bureau's intention to "process th[e] records and produce any responsive non-exempt documents to [Kovalevich] no later than September 20, 2018." (Id. ¶ 3.) The Bureau ultimately produced 83 responsive documents to Kovalevich on October 2, 2018 (Status Report, ECF No. 14, ¶ 2), and then filed a cross-motion for summary judgment on November 5, 2018 (see Defs.' Cross-Mot. at 1).
In its cross-motion, the Bureau argues that it has discharged its duties under the FOIA, because it has conducted an adequate search of its records and has produced all non-exempt documents. (See id. at 4.) The Bureau has also attached to its motion the declaration of Renee Parisien—the Law Enforcement Assistant who processed Kovalevich's request (see Decl. of Renee Parisien ("Parisien Decl."), ECF No. 16-2, ¶¶ 1, 4)—as well as a Vaughn index that describes the 260 pages of responsive records and sets forth Parisien's reasons for redacting or withholding records pursuant to Exemptions 6 and 7(C) of the FOIA (see Vaughn Index, Ex. 1 to Parisien Decl., ECF No. 16-3, at 1-8).
Notably, in his combined opposition and reply brief, which was filed on December 13, 2018, Kovalevich asserts that he is "satisfied" with the Bureau's document production, and that he "does not dispute any exemptions claimed in [the Bureau's Vaughn Index]." (Pl.'s Combined Reply at 4.) As a result, Kovalevich has...
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