Chelmowski v. Federal Communication Commission

Filing 53

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 2/24/2017:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES CHELMOWSKI,

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Plaintiff,
v.
FEDERAL COMMUNICATIONS
COMMISSION,
Defendant.

Case No. 16 cv 5587
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff James Chelmowski filed a complaint pro se alleging violations of the Freedom of
Information Act (“FOIA”). Chelmowski contends that the Federal Communications Commission
(“FCC”) is unlawfully withholding records that Chelmowski requested. The parties filed crossmotions for summary judgment and this Court heard oral arguments on the motions. For the
reasons stated below, Chelmowski’s motion for summary judgment [38] is granted in part and
denied in part, and the FCC’s motion for summary judgment [35] is granted in part and denied in
part.
Background:
Plaintiff James Chelmowski filed a complaint pro se alleging violations of FOIA. Chelmowski
contends that the FCC is unlawfully withholding records that Chelmowski requested. He asks the
Court to (1) order the FCC to search for and produce all responsive records and to submit a Vaughn
index of any responsive records withheld under any FOIA exemption; (2) to enjoin the FCC from
withholding any non-exempt records that are responsive to his FOIA requests; and (3) to award him
costs and attorneys’ fees.
The case stems from four overlapping FOIA requests filed with the FCC. On September 11,
2015, Chelmowski filed two FOIA requests that were assigned FOIA Nos. 2015-768 and 2015-769,
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and consolidated by the FCC. The first one, 2015-768 requests all documents relating to FCC
informal complaint 11-C00292341, and the second one, requests all documents relating to FCC
informal complaint 11-C00325771. On September 17, 2015, the FCC responded to FOIA Nos.
2015-768 and 2015-769 by letter with 14 pages of responsive records and advising Chelmowski that
if considered the response to be a denial of his request, he had 30 calendar days to file an application
for review with the FCC’s Office of General Counsel. Dkt. 27-1, Ex. 5. On September 30, 2015,
Chelmowski filed an administrative appeal of the consolidated response. On October 20, 2015, the
FCC sent Chelmowski a response to his administrative appeal with 87 pages of additional material.
Dkt. 27-1, Ex. 7. In that letter, the FCC informed Chelmowski that he had until November 20,
2015, to contact the FCC with objections and that if he failed to object the FCC would consider the
appeal resolved. Id.
Before the November 20th deadline, Chelmowski submitted a request for assistance to the
Office of Governmental Information Services (OGIS), which is a separate agency from the FCC.
The next day, on November 13, 2015, Chelmowski tried to electronically file his letter to OGIS in
the FCC’s electronic filing system and emailing it to the FCC’s Enforcement Bureau. He filed the
OGIS request for assistance in proceeding No. 14-260, which was a separate non-FOIA proceeding
before the FCC’s Enforcement Bureau. Proceeding No. 14-260 was no longer active because it
related to a formal complaint Chelmowski made against AT&T Mobility that was dismissed as
untimely on July 10, 2015. The FCC also denied Chelmowski’s motion for reconsideration of that
dismissal on October 15, 2015, with no further agency proceedings. The FCC asserts that this
submission of the OGIS letter therefore was not received by the FCC staff responsible for FOIA
requests (Consumer and Governmental Affairs Bureau and the Office of General Counsel) until
December 21, 2015.

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After Chelmowski failed to file objections or any response to the FCC’s October 20, 2015,
letter, the FCC categorized Chelmowski’s FOIA Nos. 2015-768 and 2015-769 as “Closed for Other
Reasons – Request Withdrawn”.
On February 10, 2016, Chelmowski filed a new request that was given No. 2016-345. This
request (and another Chelmowski filed, No. 2016-665), requested all documents from January 1,
2011 to February 10, 2016, between the FCC and AT&T (or its subsidiaries) regarding: (1) various
permutations of the spelling of Chelmowski’s name; (2) informal complaint No. 11-C00292341; (3)
informal complaint No. 11-C00325771; (4) formal complaint No. EB-14-MD-016 and associated
proceeding No. 14-260; and (5) D.C. Circuit case No. 15-1292.
On March 11, 2016, the FCC responded to FOIA request No. 2016-345, stating that it
found no material responsive to the request that the FCC had not already provided to Chelmowski,
and gave him 30 calendar days to file an application for review. Dkt. 27-2, Ex. 12. On March 16,
2016, Chelmowski filed an administrative appeal of the FCC’s response in FOIA No. 2016-345.
FCC admits that it did not timely respond to Chelmowski’s appeal in FOIA No. 2016-345 within the
20 working days provided in 5 U.S.C. § 552 (a)(6)(A)(ii), and thus, the agency deems Chelmowski to
have exhausted his administrative remedies for 2016-345.
On August 4, 2016, the FCC sent Chelmowski a consolidated response to his FOIA request
Nos. 2016-345 and 2016-665, notifying him that a further search of FCC databases, including FCC’s
email system is necessary to respond fully to the request and that the time involved with conducting
the search would result in a fee of $917.28. Dkt. 27-3, Ex. 17. Chelmowski has not remitted payment
and the FCC has not yet conducted the search.
Legal Standard
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Evans v. U.S. Dep’t of Interior, 135 F.Supp.3d 799, 809 (N.D. Ind. 2015) (quoting Citizens for
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Responsibility & Ethics in Washington v. U.S. Dep’t of Veterans Affairs, 828 F.Supp.2d 325, 329–330
(D.D.C.2011)). Summary judgment is proper only if “the pleadings, depositions, answers to the
interrogatories, and admissions on file, together with the affidavits, if any, 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). In FOIA cases, the Court can resolve summary judgment solely on the basis of affidavits or
declarations from agency employees if they are “relatively detailed and non-conclusory.” Evans, 135
F.Supp.3d at 809 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991)). A
genuine issue of material fact exists whenever “there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a genuine dispute exists as to any
material fact, a court must view all the evidence and draw all reasonable inferences in favor of the
non-moving party. See Weber v. Univ. Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir.2010).
Discussion
The FCC moves for summary judgment in its favor, arguing that it is undisputed that
Chelmowski failed to exhaust his administrative remedies with respect to FOIA Nos. 2015-768 and
2015-769. The FCC also moves for summary judgment on FOIA Nos. 2016-345 and 2016-665
because Chelmowksi has not paid the required search fees.
Chelmowski also moves for summary judgment, arguing that the FCC has not provided a
sufficiently detailed certification that the searches performed for FOIA Nos. 2015-768 and 2015-769
were complete. With respect to his FOIA Nos. 2016-345 and 2016-665, Chelmowski asserts that the
FCC is misleading him and the court by suggesting that those requests are still open and that the
agency will conduct the searches requested. Chelmowski also argues that the FOIA regulations only
require payment for an initial search not a subsequent review of the records and that he should not
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be required to pay the $917.28 fee assessed for the search following his administrative appeal of
Nos. 2016-345 and 2016-665.
I. FOIA Nos. 2015-768 and 2015-769:
FOIA requires a plaintiff to exhaust his administrative remedies before the filing of a lawsuit.
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 185 (D.C. Cir.
2013); Almy v. U.S. Dep’t of Justice, No. 96-1207, 1997 WL 267884, at *3 (7th Cir. 1997); see also Scherer
v. Balkema, 840 F.2d 437, 443 (7th Cir. 1988), cert. denied, 486 U.S. 1043 (1988) (holding that a
plaintiff fails to state a claim under FOIA if the complaint does not allege that the plaintiff has
exhausted his administrative remedies). An application for review by the Commission is the final
stage of the administrative remedies available to a FOIA requester under the FCC regulations. 47
U.S.C.A. § 155(c)(4), (7); 47 C.F.R. §§0.461(j), 1.115.
The undisputed facts demonstrate that Chelmowski did not file an application for review,
which would exhaust his administrative remedies. The documentation provided by Chelmowski
establishes that the FCC responded to his FOIA Nos. 2015-768 and 2015-769 by letter dated
September 17, 2015, (Dkt. 27-1, Ex. 5), Chelmowski timely filed an administrative appeal, which the
FCC responded to on October 20, 2015, (Dkt. 27-1, Ex. 7). The October 20, 2015, letter informed
Chelmowski that he had until November 20, 2015, to contact “us” with objections and that if he
failed to object within that time frame “we” will consider the appeal resolved. Id. The letter states to
contact the Office of General Counsel and is signed by the Consumer & Governmental Affairs
Bureau with the FCC. Id.
Instead of contacting either of the FCC offices listed in the October 20, 2015, letter,
Chelmowski sent a request for assistance to the Office of Governmental Information Services
(OGIS), which is a separate agency from the FCC. There is no authority on which this Court could
find that submitting a request to OGIS for assistance can supplant an application for review from
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the full Commission, which Congress has specifically stated is a “condition precedent to judicial
review”. See 47 U.S.C. § 155(c)(7). Accordingly, Chelmowski has not provided any basis for relief
from the requirement that he exhaust his administrative remedies nor does the record demonstrate
an alternative avenue for this Court to deem him to have exhausted his administrative remedies on
2015-768 and 2015-769.
II. FOIA Nos. 2016-345 and 2016-665:
With respect to FOIA Nos. 2016-345 and 2016-665, the FCC concedes that it failed to
respond to Chelmowski’s administrative appeal following the FCC’s initial response within the 20
working day time limit for responding. Therefore, the FCC concedes that Chelmowski has
exhausted his administrative remedies. See 5 U.S.C. § 552(a)(6)(C)(i) (“Any person making a request
to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if the agency fails to comply with
the applicable time limit provisions of this paragraph”).
The issue with FOIA Nos. 2016-345 and 2016-665 concerns the $917.28 fee that the FCC
has assessed to complete the requests. Chelmowski posits that he should be exempt from paying the
fee because the FCC did not provide a timely response to his requests. In support of his position,
Chelmowski refers to 5 U.S.C. § 552(a)(4)(A)(viii)(I), which states: “Except as provided in subclause
(II), an agency shall not assess any search fees (…) under this subparagraph if the agency has failed
to comply with any time limit under paragraph (6). It is undisputed that the FCC did not comply
with the time limit under paragraph (6). Therefore, unless one of the exceptions in subclause (II)
applies, it appears that the FCC cannot assess any search fees. FOIA section 552(a)(4)(A)(viii)(II)
provides in relevant part:
(aa) If an agency has determined that unusual circumstances apply (as the term is
defined in paragraph (6)(B)) and the agency provided a timely written notice to the
requester in accordance with paragraph (6)(B), a failure described in subclause (I) is
excused for an additional 10 days. If the agency fails to comply with the extended
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time limit, the agency may not assess any search fees (or in the case of a requester
described under clause (ii)(II) of this subparagraph, duplication fees).
(bb) If an agency has determined that unusual circumstances apply and more than
5,000 pages are necessary to respond to the request, an agency may charge search
fees (or in the case of a requester described under clause (ii)(II) of this subparagraph,
duplication fees) if the agency has provided a timely written notice to the requester in
accordance with paragraph (6)(B) and the agency has discussed with the requester via
written mail, electronic mail, or telephone (or made not less than 3 good-faith
attempts to do so) how the requester could effectively limit the scope of the request
in accordance with paragraph (6)(B)(ii).
(cc) If a court has determined that exceptional circumstances exist (as that term is
defined in paragraph (6)(C)), a failure described in subclause (I) shall be excused for
the length of time provided by the court order.
5 U.S.C. § 552(a)(4)(A)(viii)(I)(II).
The FCC contends that the agency may charge search fees if either “unusual” or
“exceptional” circumstances apply. Subsection (aa) does not apply since the FCC never provided
written notice to Chelmowski that it needed an additional ten days and it is undisputed that the FCC
did not respond to Chelmowski’s March 16, 2016, appeal until August 4, 2016. Subsection (bb) is
also inapplicable. If the FCC had provided Chelmowski with written notice within the appropriate
time-frame, then the situation would fit the definitions of “unusual circumstances” in section
552(a)(6)(B)(iii). The FCC refers to cases in which courts have allowed the assessment of fees
without written notice, but they appear to be in direct contradiction with the plain language of the
statute. For example, in Rosenberg v. U.S. Dep’t of Immigration & Customs Enf’t, 954 F. Supp. 2d 1, 9
(D.D.C. 2013), the court stated that: “The plain text of section 552(a)(4)(A)(viii) requires only that
unusual circumstances as defined by paragraph (6)(B) or (C), not that unusual circumstances exist and
that the agency properly seek additional time to respond to the request in light of unusual
circumstances.” In Davis v. U.S. Dep’t of Homeland Sec., also relied on by the FCC, the court found
that the provision regarding fees was inapplicable because the fees were for duplication not for the
search. No. 11-cv-203, 2013 WL 6145749, at *2 (E.D.N.Y. Nov. 20, 2013). The Davis court further
found that even if section 552(a)(4)(A)(viii) did apply, there were unusual circumstances sufficient to
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excuse the delay. Compare those cases with Citizens for Responsibility & Ethics in Washington “CREW”
v. Fed. Election Comm'n, in which the court states: “The 20–working–day timeline is not absolute. In
‘unusual circumstances,’ an agency may extend the time limit to up to 30 working days by written notice
to the requester.” 711 F.3d 180, 184 (D.C. Cir. 2013) (emphasis added). The “CREW” case leaves open
the “exceptional circumstances” provision as an exception for the agency to avoid the time limits for
responding and still allow the agency to assess fees. Id.
The FCC may assess fees if this Court determines that exceptional circumstances exist.
Paragraph 6(C) provides that “exceptional circumstances” does not include a delay that results from
a predictable agency workload of requests under this section, unless the agency demonstrates
reasonable progress in reducing its backlog of pending requests. 5 U.S.C. § 552(a)(6)(C)(ii). The FCC
does not provide any reason for the delay. The FCC also did not elaborate on this argument during
the hearing.
The FCC also did not elaborate on its remaining argument that, even if this Court finds that
neither unusual circumstances nor exceptional circumstances excuse the FCC’s delay in responding
to Chelmowski’s March 16, 2016, appeal, the agency can still charge Chelmowski for the search. The
FCC contends that its response to the appeal constitutes a new search to determine the applicability
of other exemptions not previously considered and, therefore, the agency may assess fees. See 47
C.F.R. § 0.467(c). This argument is too bare for this Court to properly find as a matter of law that
the FCC may assess the $917.28 fee. In reaching this conclusion, the Court gave no credence to
Chelmowski’s characterization of FCC officials and counsel.
Conclusion
Based on the foregoing discussion, this Court grants summary judgment to the FCC and
denies summary judgment to Chelmowski for FOIA Nos. 2015-769 and 2015-768 since it is clear
from the record that Chelmowski failed to exhaust his administrative remedies. With respect to
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FOIA Nos. 2016-345 and 2016-665, the FCC has not shown that unusual and exceptional
circumstances or other reason exists to excuse the delay in the agency’s response to Chelmowski’s
March 16, 2016, administrative appeal. Therefore, this Court grants summary judgment in favor of
Chelmowski and denies summary judgment for the FCC on FOIA Nos. 2016-345 and 2016-665.
Accordingly, the FCC’s motion for summary judgment [35] is granted in part and denied in part and
Chelmowski’s motion for summary judgment [38] is granted in part and denied in part.
IT IS SO ORDERED.
ENTERED:

Dated: February 24, 2017

____________________________________
SHARON JOHNSON COLEMAN
United States District Judge

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