Mckinley v. Fed. Deposit Ins. Corp..

• Decision Date: 23 December 2010
• Docket Number: Civ. Action No. 10–420 (EGS).
• Citation: 756 F.Supp.2d 105
• Parties: Vern McKINLEY, Plaintiff,v.FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

756 F.Supp.2d 105

Vern McKINLEY, Plaintiff,

v.FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.

Civ. Action No. 10–420 (EGS).

United States District Court, District of Columbia.

Dec. 23, 2010.

Michael Bekesha, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.Alexander Daniel Shoaibi, U.S. Attorney's Office, Barbara Katron, Federal Deposit Insurance Corporation, Washington, DC, Daniel Harold Kurtenbach, Federal Deposit Insurance Corporation, Arlington, VA, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Pending before the Court in this Freedom of Information Act (“FOIA”) case is defendant's motion to dismiss and plaintiff's motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, the entire record, and for the reasons set forth below, the defendant's motion to dismiss is DENIED, and the plaintiff's motion for summary judgment is GRANTED in part and DENIED WITHOUT PREJUDICE in part. ¹ The Court orders defendant to supplement its responses to plaintiff's requests as described below.

I. BACKGROUND

Plaintiff Vern McKinley is a private citizen who works “as an advisor to governments worldwide on financial sector policy and legal issues.” Complaint (“Compl.”) ¶ 3. In December, 2009, plaintiff submitted three FOIA requests to the Federal Deposit Insurance Corporation (“FDIC”) seeking information regarding the FDIC's response to the global financial crisis of 2008. Specifically, plaintiff seeks records about the agency's creation and use of a then-new program, the Temporary Liquidity Guarantee Program (“TLG”), to provide assistance to banks and other financial institutions. On December 4, 2009, plaintiff sent a request for “records about the FDIC's determination on November 23, 2008 to provide financial assistance to Citigroup, Inc.” Pl.'s Statement of Material Facts Not in Dispute (“Pl.'s Facts”) ¶ 1. On December 20, 2009, plaintiff sent two additional FOIA requests to the FDIC. Plaintiff requested records about the FDIC's “determination on October 14, 2008 to create a new program,” the TLG program, “to provide financial assistance to banks, thrift institutions, and certain bank holding companies.” Pl.'s Facts ¶ 2. He also requested records about FDIC's “determination on January 16, 2009 to provide financial assistance to Bank of America Corp.” Pl.'s Facts ¶ 3. In all three requests, plaintiff specifically asked for “any information available on” these determinations “such as meeting minutes or supporting memos.” Pl.'s Facts ¶¶ 1, 2, 3.

The FDIC did not respond to plaintiff's requests within the time limits set forth in 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B)(i). Pl.'s Facts ¶ 4. Accordingly, plaintiff initiated this lawsuit on March 15, 2010. See generally Compl. In his complaint, Plaintiff alleges that the FDIC violated the FOIA by “failing to produce any and all non-exempt records responsive to Plaintiff's requests,” Compl. ¶ 19, and requests, inter alia, that defendant “search for and produce any and all non-exempt records responsive to plaintiff's requests.” Compl. p. 5.

On April 15, 2010, the FDIC responded to all three requests. Def.'s Statement of Undisputed Facts (“Def.'s Facts”) ¶¶ 6–8. The FDIC provided the plaintiff with 101 pages of material responsive to his FOIA requests, but redacted information from every document it produced pursuant to several FOIA and Government in the Sunshine Act (“Sunshine Act”) exemptions. Def.'s Facts ¶¶ 6–8. Shortly thereafter FDIC moved to dismiss the case, arguing that its responses to plaintiff's FOIA requests render the case moot. See generally Def.'s Motion to Dismiss. Plaintiff opposed the motion to dismiss and simultaneously moved for summary judgment. In his motion for summary judgment, plaintiff challenges the adequacy of the agency's search and its reliance on the FOIA and Sunshine Act exemptions to withhold the redacted information. See generally Pl.'s Mem. in Opposition to Motion to Dismiss and In Support of Motion for Summary Judgment (“Pl.'s Mem.”). Both motions are now ripe for decision by the Court.

II. STANDARD OF REVIEWA. Motion to Dismiss on Mootness Grounds

A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). It is well established that “a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth v. Laidlaw, 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quotation omitted). In order to prevail on a mootness claim occasioned by the defendant's voluntary conduct, the movant must show, inter alia, that “interim relief and events have completely and irrevocably eradicated the effects of the alleged violation.” Albritton v. Kantor, 944 F.Supp. 966, 974 (D.D.C.1996) (citing Davis, 440 U.S. at 631, 99 S.Ct. 1379).

In a FOIA case, “once all requested records are surrendered,” the substance of the controversy disappears and “federal courts have no further statutory function to perform.” Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982). However, as the government itself acknowledges, in “instances where an agency has released documents, but other related issued remain unresolved, courts frequently will not dismiss the action” as moot. GUIDE TO THE FREEDOM OF INFORMATION ACT, U.S. Dep't of Justice Office of Information Policy, 767–68 & n. 180 (2009 Ed.) (citing, e.g., Nw. Univ. v. USDA, 403 F.Supp.2d 83, 85–86 (D.D.C.2005) (refusing to dismiss action as moot despite belated release of documents because plaintiff challenged adequacy of defendant's document production); Looney v. Walters–Tucker, 98 F.Supp.2d 1, 3 (D.D.C.2000) (finding no mootness even after production of requested documents because “[i]n a FOIA case, courts always have jurisdiction to determine the adequacy of the search”), aff'd per curiam sub nom. Looney v. FDIC, 2 Fed.Appx. 8 (D.C.Cir.2001)).

B. Summary Judgment

The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C.Cir.2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof,” then the moving party is entitled to summary judgment. Celotex, 477 U.S. 317, 323, 106 S.Ct. 2548.

In a FOIA case, the burden of proof is always on the agency to demonstrate that it has fully discharged its obligations under the FOIA. See Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (“the burden is on the agency to demonstrate, not the requester to disprove, that the materials sought ... have not been improperly withheld.”). However, when a FOIA plaintiff moves for summary judgment, he “must offer more than conclusory statements.” Schoenman v. Fed. Bureau of Investigation, 573 F.Supp.2d 119, 134 (D.D.C.2008) (citations omitted). Indeed, to prevail on summary judgment on a claim that the agency improperly withheld requested material, a requester must establish that “the requested material, even on the agency's version of the facts, falls outside the proffered exemption.” Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992).

III. ANALYSIS

Pending before the Court is defendant's motion to dismiss and plaintiff's motion for summary judgment. The Court considers each in turn.

A. Mootness

The FDIC argues that the plaintiff's claim is moot because the agency complied with its obligations under the FOIA by producing the requested documents. Def.'s Mem. in Support of Mot. to Dismiss at 4. The plaintiff responds that his claim is not moot because the documents produced are heavily redacted, and the FDIC has not met its statutory burden to “justify its claims of exemption, demonstrate[ ] that all non-exempt information has been segregated and disclosed, or prove[ ] that its searches for responsive information were reasonably calculated to uncover all responsive materials.” Pl.'s Mem. at 5. The Court agrees with plaintiff that his claim is not moot.

It is well established that a case is not moot unless “the parties lack a legally cognizable interest in the outcome.” Davis, 440 U.S. at 631, 99 S.Ct. 1379. As courts in this Circuit have repeatedly held, FOIA requesters have a cognizable interest in having the Court determine (1) whether the search for records was adequate under the standards for adequate records searches required by FOIA, and (2) whether the agency has released all nonexempt material. See, e.g., Perry v. Block, 684 F.2d at 125; Nw. Univ. v. USDA, 403 F.Supp.2d at 86; Looney v. Walters–Tucker, 98 F.Supp.2d at 3. Although the agency has released portions of certain agency documents, these additional issues remain in dispute, and the Court has jurisdiction to hear these claims.² Therefore, defendant's motion to dismiss is DENIED.

B. Motion for Summary Judgment

Plaintiff moves for summary judgment on the grounds that defendant has not met its burden to show it conducted an adequate search and that it has not met its burden to justify nondisclosure of responsive documents. The Court will...