WIDI v. MCNEIL et al

Filing 172

ORDER denying 44 Motion to Dismiss and for Summary Judgment on Count XIV; dismissing without prejudice 59 Cross-Motion for Summary Judgment By JUDGE JOHN A. WOODCOCK, JR. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.
Plaintiff,
v.
PAUL MCNEIL, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

2:12-cv-00188-JAW

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS COUNT XIV,
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO
COUNT XIV, AND DENYING PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT AS TO COUNT XIV
David J. Widi Jr., a prisoner in Federal Correctional Institution Otisville
(FCI Otisville), alleges in Count XIV of his Amended Complaint that the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Executive Office of the
United States Attorneys (EOUSA) failed to comply with his lawful Freedom of
Information Act (FOIA) and Privacy Act (PA) requests.

The Defendants have

moved to dismiss Count XIV or in the alternate to grant summary judgment in their
favor; Mr. Widi has opposed dismissal and cross-claimed for summary judgment.
First, the Court concludes that dismissal on the merits would be improper because
Count XIV of the Amended Complaint states a claim on which the law may grant
relief.

Furthermore, there remain genuine disputes as to material facts that

preclude summary judgment for either side.

I.

PROCEDURAL POSTURE
Mr. Widi filed his original Complaint on June 13, 2012, ECF No. 1, and an

Amended Complaint on August 8, 2012.

Am. Compl. (ECF No. 15).

ATF and

EOUSA jointly moved to dismiss Count XIV, or in the alternate for summary
judgment, on November 11, 2012. Mot. to Dismiss and for Summ. J. (ECF No. 44)
(Motion). They filed with this motion a Statement of Undisputed Material Facts, as
required by Local Rule 56(b). Defs.’ Statement of Undisputed Material Facts (ECF
No. 45) (DSMF). With their Statement of Undisputed Material Facts came two
affidavits and several other exhibits. Mr. Widi replied in opposition on November
28, 2012, and also filed a cross-motion for summary judgment. Pl.’s Opp’n to Mot. to
Dismiss and for Summ. J. and Pl.’s Cross-Mot. for Summ. J. or Mot. for Vaughn
Index (ECF No. 58, 59) (Pl.’s Opp’n) (Pl.’s Cross Mot.). In accordance with Local
Rule 56(c), Mr. Widi also provided an Opposing Statement of Material Facts
(PRDSMF), ECF No. 60, and his own Statement of Undisputed Material Facts
(PSAMF). He also filed a supporting affidavit. PRDSMF Attach. 1 Decl. of David J.
Widi, Jr. Regarding Count XIV (Widi First Decl.). On January 3, 2013, Mr. Widi
provided two supplementary attachments in support of his opposition to the motion
to dismiss and his cross-motion for summary judgment. Letter from David J. Widi,
Jr. to U.S. District Court (Dec. 26, 2012) Attach. 1 Disposition Form Federal Bureau
of Prisons dated Nov. 22, 2012, Attach. 2 Envelope (ECF No. 75).
The Defendants replied to Mr. Widi’s opposition on January 24, 2013. Reply
to Pl.’s Opp’n to Dismiss and for Summ. J. (ECF No. 83) (Defs.’ Reply). In response

2

to Mr. Widi’s Opposing Statement of Material Facts, the Defendants provided a
Reply Statement of Material Facts under Local Rule 56(d). Defs.’ Reply Statement
of Material Facts (ECF No. 84) (DRPSAMF). On the same day, the Defendants filed
a short reply to Mr. Widi’s cross-motion for summary judgment, incorporating the
legal arguments of their reply brief. Opp’n to Pl.’s FOIA Cross-Mot. (ECF No. 85);
Opposing Statement of Material Facts (ECF No. 86) (DRPSMF).
Mr. Widi replied to the Defendants’ opposition to his cross-motion for
summary judgment on March 14, 2013.

Reply to Def.’s Opp’n of Cross-Mot. for

Summ. J. (ECF No. 115). He also offered a Reply Statement of Material Facts.
Reply Statement of Material Facts (ECF No. 116) (Widi Second Reply Statement).1
With it came a second affidavit. Second Decl. of David J. Widi, Jr. Regarding Count
XIV (ECF No. 117) (Widi Second Decl.).
II.

LEGAL STANDARD
A.

Rule 12(b)(6)

When evaluating a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim, a court must determine “whether, construing
the well-pleaded facts of the complaint in the light most favorable to the plaintiffs,
the complaint states a claim for which relief can be granted.” Oscasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011). The Court need not assume the truth

This is not the normal procedure under the Local Rules, because the Defendants did not
introduce any new facts in their statement of facts in opposition to Mr. Widi’s cross motion for
summary judgment. D. ME. LOC. R. 56(d). However, in light of Mr. Widi’s status as a pro se litigant
and the highly relevant affidavit attached to the Widi Second Reply Statement, the Court will
consider it.
1

3

of conclusory allegations, and the complaint must state at least a “plausible claim
for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). However, “non-conclusory
factual allegations in the complaint must . . . be treated as true, even if seemingly
incredible.”

Oscasio-Hernández, 640 F.3d at 12.

A court may not “attempt to

forecast a plaintiff’s likelihood of success on the merits.” Id. at 13. Furthermore,
courts should be “solicitous of the obstacles that pro se litigants face, and . . .
endeavor, within reasonable limits, to guard against the loss of pro se claims due to
technical defects.”

Dutil v. Murphy, 550 F.3d 154, 158-59 (1st Cir. 2008).

In

deciding a Rule 12(b)(6) motion, the Court may consider any documents attached to
the complaint as well as any other documents “integral to or explicitly relied upon
in the complaint, even though not attached to the complaint.” Trans-Spec Truck
Servs. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008) (quoting Clorox Co. v.
Proctor & Gambel Comm. Co., 228 F.3d 24, 32 (1st Cir. 2000)).
B.

Rule 56

A court may grant summary judgment under Federal Rule of Civil Procedure
56 if the record demonstrates that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. “Material”
means that the fact has the potential to change the outcome of the litigation;
“genuine” means that a reasonable jury could resolve the matter in favor of the nonmoving party. Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting
McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). The Court must
examine the record evidence “in the light most favorable to, and drawing all

4

reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El
Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
C.

The Freedom of Information Act and the Privacy Act

FOIA provides in relevant part that a government agency must, with certain
enumerated exceptions, produce records upon request by any person. 5 U.S.C. §
552(a)(3) (2012) .

The fees the agency may charge depend on the use for which the

records are requested; for uses other than commercial, scientific, and educational,
the fees are limited to “reasonable standard charges for document search and
duplication.”

Id. at § 552(a)(4)(A)(ii)(III).

However, an agency may not charge

“advance fees”—fees that must be paid by the requestor before any work being done
or continued by the agency. Id. at § 552(a)(4)(A)(v); 28 C.F.R. § 16.11(i)(1) (2013)
(regulating fees charged by Department of Justice components). At the same time,
an agency may require pre-payment before copies are sent. 28 C.F.R. § 16.11(a) (“A
component ordinarily shall collect all applicable fees before sending copies of
requested records to a requester”); Farrugia v. Exec. Office for U.S. Attorneys, 366 F.
Supp. 2d 56, 57 (D.D.C. 2005).
Among the records exempt from disclosure under FOIA are “records or
information compiled for law enforcement purposes, but only to the extent that
[their production] . . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” § 552(b)(7). However, when an agency refuses to
provide information because it is exempt, “the exemption under which the deletion
is made, shall be indicated on the released portion of the record, unless including

5

that indication would harm an interest protected by the exemption in this
subsection under which the deletion is made.” Id. at § 552(b).
The PA requires that any government agency subject to FOIA provide any
person “his record or . . . any information pertaining to him which is contained in
[the agency’s system of records].”

5 U.S.C. § 552a(d)(1) (2012).

Under the

regulations promulgated by the Department of Justice (DOJ) under the PA, a
component subject to a PA request may charge fees for duplication of records, but
not for search or review, unless the records are themselves subject to an exemption
under the PA. 28 C.F.R. § 16.49 (2013).
The DOJ has established a categorical exemption from the PA for records in
criminal case files, but only to the extent permitted by PA §§ 552a(j)(2), (k)(1), and
(k)(2). 28 C.F.R. § 16.81(a) (2013). PA subsection (j) does not permit exemptions
from subsection (d)—the provision allowing individuals to access their own records.
§ 552a(j).

However, PA subsection (k) does permit records to be exempt from

disclosure under PA subsection (d) if the system of records is “investigatory
material compiled for law enforcement purposes” other than records of a law
enforcement or criminal prosecution agency that fall into PA subsection (j)(2). Id. §
552a(k), (k)(2). These records, which are in effect not permitted to be exempt under
PA subsection (k)(2), include “reports of informants and investigators, and
associated with an identifiable individual.” § 552a(j)(2)(B). The net effect is that
DOJ regulation 28 C.F.R. § 16.81(a), exempting criminal case files from disclosure
under the PA, does not by its own terms apply to “reports of informants and

6

investigators, and associated with an identifiable individual.”

Finally, DOJ

regulations state that the Department will limit disclosure “to the extent that the
identity of confidential sources will not be compromised . . . the privacy of third
parties will not be violated . . . and . . . the disclosure would not otherwise impede
effective law enforcement. 28 C.F.R. § 16.81(i).
III.

THE MOTION TO DISMISS
Deciding the Defendants’ Motion to Dismiss requires the Court to determine

whether Count XIV, considering the contents of the documents on which it relies,
states a claim on which the law will grant relief.
A.

Facts Relevant to the Motion to Dismiss

First, Mr. Widi alleges that on March 28, 2011, he sent a FOIA and PA
request to ATF, seeking records of statements made by five individuals concerning
Mr. Widi in his criminal case. Am. Compl. at 19. He further alleges that ATF did
not respond to this FOIA request. Id.
Second, Mr. Widi alleges that on April 21, 2011 he sent a FOIA and PA
request to EOUSA. Id. at 20. EOUSA replied on August 12, 2011, assigning it a
request number of 11-1399 and indicating that it had located 280 pages of
potentially responsive records in 3.5 hours of search time. Id. On August 20, 2011,
Mr. Widi responded with a letter agreeing to pay all associated fees relating to the
release of these documents. Id. On November 25, 2011, he alleges that EOUSA
sent him a letter stating that the records had been “processed.” Id. However, this
letter also stated that EOUSA would not produce grand jury material; that some

7

documents “originated with another government component which would have to
forward the documents”; and that “the records were public documents that could be
obtained from the clerk of the court or EOUSA upon specific request.”2 Id. The
letter identified no documents that could actually be released, and also did not
identify any exemptions applicable to the documents that were not to be released.
Id.

Critically, but ambiguously, the Amended Complaint alleges that “the

paragraph associated with fees for the search request was not checked off indicating
that Mr. Widi owed fees because the EOUSA was not releasing any documents.” Id.
Finally, Mr. Widi alleges that he appealed to the Office of Information Policy
(OIP) on December 20, 2011. Id. Mr. Widi’s grounds for appeal were apparently
that
(1) the documents are in the possession of the EOUSA, thus they
should be released; (2) the response did not list any specific exemptions
as requested; (3) the statement that once the search fees are paid the
documents will be forwarded to another agency is nonsensical because
Mr. Widi was not supposed to be charged for review of material to
determine whether it falls within the purview of any FOIA/PA
exemptions.
Id. at 20-21.

Although OIP replied by mail on January 6, 2012, assigning an

appeals number, it did not answer the appeal until June 18, 2012, and then only
addressed the “fee determination” of the EOUSA. Id. at 21. OIP apparently did not
reach any other merits of Mr. Widi’s appeal because he had not paid the fees, the
validity of which Mr. Widi disputed. Id.
Much of the Court’s recitation of facts relevant to the Motion to Dismiss is taken verbatim
from the Amended Complaint. The Court quotes this particular material because it is both
ambiguous and highly relevant to the determination of the merits of the dispositive motions on
Count XIV.
2

8

B.

Position of the Parties

The Defendants do not dispute that Count XIV states a claim on its face as to
the ATF. See Motion at 8 (requesting only summary judgment as to ATF).3 The
Defendants contend the Court should dismiss Count XIV as to EOUSA because Mr.
Widi failed to pre-pay for delivery of the documents. They point out that an agency
may charge an advance fee before delivering copies of material relevant to a FOIA
request and that failure to pay such a fee amounts to a failure to exhaust
administrative remedies. Because failure to exhaust administrative remedies is a
“condition precedent to filing a FOIA action,” Motion at 9, the Defendants contend
that it is appropriate to dismiss a pleading if it fails to allege proper payment of
fees.
Mr. Widi, for his part, responds that the Amended Complaint alleges he was
never assessed any fees by EOUSA because the November 25 letter did not have the
box checked indicating that he should pay any fees. Mr. Widi’s position on the
Motion to Dismiss appears to be that EOUSA improperly refused to produce any
documents at all, that the “paragraph associated with fees . . . was not checked off,”
Am. Compl. at 20, because no documents were to be delivered, and that EOUSA’s
refusal to deliver any documents (and consequently to charge any fees) was
improper under FOIA and PA.

The Court will address later the Defendants’ request that it grant summary judgment in
favor of ATF on Count XIV.
3

9

C.

Discussion

“To invoke subject matter jurisdiction under the FOIA, a plaintiff must allege
that the agency ‘(1) “improperly”, (2) “withheld” (3) “agency records.”’” Union Leader
Corp. v. U.S. Dep’t of Homeland Sec., No. 12-cv-134-PB, 2013 U.S. Dist. LEXIS
55775 (D.N.H. Apr. 18, 2013) (quoting Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C. § 552(a)(4)(B))). Mr. Widi
alleges he sent ATF a FOIA request and ATF never responded. These allegations
are sufficient to constitute an improper withholding of records. See U.S. Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 149-50 (1989) (“When the Department refused
to grant Tax Analysts’ requests for the district court decisions in its files, it
undoubtedly ‘withheld’ these decisions in any reasonable sense of that term”).
Count XIV survives dismissal as to ATF.
As to EOUSA, Defendants move to dismiss Count XIV because Mr. Widi fails
to allege that he has actually paid fees. Mr. Widi asserts that, although he had
earlier agreed to pay “all associated fees” relating to the records he requested, the
face of the November 25 letter did not levy any fees he could pay and in fact
indicated that no documents would be released for which he could be charged a fee.
The text of the November 25 letter is indeed ambiguous on this point, and the Court
cannot conclude that Mr. Widi’s claim is without merit. The box next to the fee
payment paragraph is not checked, but other boxes are. Even assuming that Mr.
Widi was on notice that at some point he would have to pay some fees (and had in

10

fact agreed to do so), the letter is not clear enough for the Court to determine that,
as a matter of law, EOUSA had put him on notice that he owed a fee.
Furthermore, EOUSA located records responsive to Mr. Widi’s request but
refused to release them because some “originated with another government
component” and others were “grand jury material.” DSMF at Ex. H, at 3 (ECF No.
47-7). Defendants have not cited any provision of FOIA or PA that would permit an
agency to withhold records within its possession simply because they originated
with another government component, and the Court cannot locate any such
exemption.

Likewise, the grand jury testimony might well fit into a statutory

exemption from FOIA and PA, but again the Defendants have not brought it to the
Court’s attention. FOIA requires an agency, denying access to records, to state the
specific exemptions on which the denial is based, 5 U.S.C. § 552(b), but at least up
to now, EOUSA has failed to comply with this FOIA requirement. Absent some
other justification, the letter of November 25 amounts to an improper withholding
of records.
Mr. Widi’s appeal to OIP constituted, for the purposes of the Motion to
Dismiss, an exhaustion of his administrative remedies. The Amended Complaint
alleges, and the Defendants’ Exhibit K corroborates, that OIP refused to consider
his claim that EOUSA improperly withheld records because Mr. Widi had not paid
the fees. DSMF Attach. 10 Letter from Office of Information Policy to David J. Widi,
Jr. (Government Ex. K). However, under Mr. Widi’s allegations—supported by at
least one reasonable interpretation of the November 25 letter—EOUSA never

11

assessed any fees and improperly withheld the records he requested. Because OIP
did not make a satisfactory or complete “determination with respect to any appeal,”
5 U.S.C. § 552(a)(6)(A)(ii), this Court may properly hear his case. See Woodford v.
Ngo, 548 U.S. 81, 90-91 (2006) (“[E]xhaustion requirements are designed . . . to give
the agency a fair and full opportunity to adjudicate . . . claims”).4
In sum, Count XIV of the Amended Complaint, together with the letter of
November 25 and the OIP response to Mr. Widi’s appeal, state a colorable claim
that both ATF and EOUSA improperly withheld records under FOIA and PA. This
is a claim for which the law may grant relief, and the Court has subject matter
jurisdiction. Count XIV survives dismissal as to both ATF and EOUSA.5
IV.

THE MOTION FOR SUMMARY JUDGMENT
A.

Facts Relevant to the Motion for Summary Judgment
1.

ATF

On March 27, 2011, Mr. Widi drafted two documents entitled “Freedom of
Information and Privacy Act of 1974 Request.” PSAMF ¶ 25; DRPSAMF ¶ 25. Mr.
Widi directed one request to ATF and the other to EOUSA.

PSAMF ¶ 25;

DRPSAMF ¶ 25. On March 28, 2011, he mailed these two documents, one to ATF

Because the Court concludes that OIP failed to address the merits of Mr. Widi’s claim, the
Court does not yet reach Mr. Widi’s argument that the OIP response was untimely. The Court will
address this assertion in its summary judgment analysis.
5
The specific relief for which Mr. Widi prays—$100,000,000.00 per defendant in money
damages—is improper. However, the fact that the plaintiff requests a remedy that is beyond the
Court’s power to grant does not necessarily mean that it must dismiss an otherwise meritorious
complaint. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 66 (1978).
4

12

and one to EOUSA, through the FCI Otisville internal legal mail log.6 PSAMF ¶ 26;
DRPSAMF ¶ 26. Mr. Widi addressed the request to the ATF as follows: “Bureau of
Alcohol, Tobacco, Firearms, & Explosives, U.S. Department of Justice, 650
Massachusetts Avenue, N.W., Washington, D.C. 20226.”7 PSAMF ¶ 27; DRPSAMF
¶ 27. A partially obscured excerpt from the FCI Otisville mail log shows a record of
the request sent to this address but does not include the zip code. Pl.’s Opp. to Mot.
to Dismiss and for Summ. J. Attach. 2 Mail Log. Mr. Widi insists that he did
include the zip code in the mailing, but that prison officials would only allow him to
use one line of the mail log, and so he did not have space to include the zip code.
Widi Second Reply Statement ¶ 27 (citing Widi Second Decl. ¶¶ 3-4).

The

reproduced version of the mail log does appear to show that the writer exhausted
the available space. Mail Log. Mr. Widi further claims that prison staff check
every piece of outgoing mail in the FCI Otisville internal legal mail system to
ensure that the address is complete. Widi Second Reply Statement ¶ 5. Mr. Widi’s
mailing was never returned to him by the U.S. Postal Service.

PSAMF ¶ 28;

Defendants interpose a qualified response to paragraph 26, asserting that “Widi failed to
include the requisite zip code.” DRPSAMF ¶ 26. The Defendants cite only their response to
paragraph 27, and so the Court will address the issue of the zip code in its treatment of that
paragraph.
7
Defendants deny paragraph 27, asserting that Mr. Widi omitted the zip code from the
address. DRPSAMF ¶ 27 (citing Pl.’s Opp. to Mot. to Dismiss and for Summ. J. Attach. 2 (ECF No.
75) (Mail Log)). Mr. Widi responds, under oath and penalty of perjury, that he included the zip code
but the prison officials would not permit him to use more than one line of the mail log, and so he did
not have space to write the zip code in the mail log. Widi Second Decl. ¶¶ 3-4. Because Mr. Widi’s
position is supported by the record, and the Court must view the record in a light most favorable to
the non-movant, the Court credits Mr. Widi’s version of paragraph 27. There is, however, a clear
factual dispute about whether the address contained a zip code.
6

13

DRPSAMF ¶ 28. The ATF has not responded to Mr. Widi’s request, nor has it
released the requested records. PSAMF ¶ 29; DRPSAMF ¶ 29.
Peter Chisholm is the Acting Chief, Disclosure Division, Bureau of Alcohol,
Tobacco, Firearms, and Explosives.8 DSMF ¶ 1; PRDSMF ¶ 1. In this capacity he
is familiar with the applicable procedures in responding to a FOIA or PA request,
and he is familiar with Mr. Widi’s current lawsuit.9 DSMF ¶ 2; PRDSMF ¶ 2.
When ATF receives a FOIA or PA request, it is immediately logged into the
Disclosure Division tracking database under the requestor’s name; this database
includes every FOIA request received by the Division over the last six years.10
DSMF ¶ 4; PRDSMF ¶ 4. However, ATF, after a keyword search of its database,
can find no record of any correspondence from Mr. Widi regarding any FOIA or PA
request.11 DSMF ¶¶ 3, 5; PRDSMF ¶¶ 3, 5.

Mr. Widi “denied” paragraph 1, citing his own affidavit for the proposition that he has no
personal knowledge of Mr. Chisholm’s position. The record supports the Defendants’ claim. DSMF
Attach. 1, Decl. of Peter J. Chisholm ¶ 1 (Chisholm Decl.). Because Mr. Widi cites no portion of the
record suggesting that Mr. Chisholm is not the Acting Chief of the Disclosure Division, the Court
treats this “Denied” response as “Admitted” for the purposes of summary judgment pursuant to
Local Rule 56(g). The Court treats Mr. Widi’s other “denials” of this sort in the same fashion.
9
This statement is supported by the record. Chisholm Decl. ¶ 2. Therefore, the Court treats
Mr. Widi’s “Denied” response as “Admitted” under Local Rule 56(g). See supra note 8.
10
This statement is supported by the record. Chisholm Decl. ¶ 6. Mr. Widi’s response to
paragraph 4 is “Denied or Qualified,” with a citation only to his own affidavit. His explanation of his
response to paragraph 4 does not address the substance of DSMF ¶ 4, and so the Court treats Mr.
Widi’s “Denied or Qualified” response as “Admitted” under Local Rule 56(g).
11
This statement is supported by the record. Chisholm Decl. ¶¶ 5, 7. Mr. Widi’s responses to
paragraphs 3 and 5 do not address whether ATF received his request; rather, they address whether
Mr. Widi sent the request and whether ATF has responded. Therefore, the Court treats Mr. Widi’s
“Denied” response as “Admitted” under Local Rule 56(g). See supra note 8.
8

14

2.

EOUSA

John Boseker is an Attorney Advisor in the EOUSA, assigned to the
component of EOUSA designated to administer FOIA and PA requests.12 DSMF ¶
8; PRDSMF ¶ 8.

Due to his official duties, Mr. Boseker is familiar with the

applicable procedures in responding to a FOIA or PA request and is familiar with
Mr. Widi’s lawsuit.13

DSMF ¶ 9; PRDSMF ¶ 9.

Mr. Boseker’s official duties

include: having the authority to make final disclosure determinations on records
requested by an individual using the FOIA/PA; to assure compliance with the
provisions of FOIA and PA and related DOJ regulations; to defend EOUSA’s
position in litigation challenges to its actions; to liaise between EOUSA and the
components within the DOJ regarding FOIA/PA requests; to review requests for
records sought from EOUSA and/or the 94 U.S. Attorney’s Offices; to review
request-related correspondence; to review searches performed in response to
requests; and to review responses made to those requests.14

DSMF ¶¶ 10-11;

PRDSMF ¶¶ 10-11.
On April 4, 2011, EOUSA received Mr. Widi’s letter dated March 28, 2011,
which sought “any and all statements made by” five specifically named third party
individuals in connection with the criminal case of United States v. Widi, 09-CR-

This statement is supported by the record. DSMF Attach. 2 Decl. of John F. Boseker ¶ 1
(Boseker Decl.). Therefore, the Court treats Mr. Widi’s “Denied” response as “Admitted” under Local
Rule 56(g). See supra note 8.
13
This statement is supported by the record. Boseker Decl. ¶¶ 2-4. Therefore, the Court treats
Mr. Widi’s “Denied” response as “Admitted” under Local Rule 56(g). See supra note 8.
14
These statements are supported by the record. Boseker Decl. ¶¶ 3-4. Therefore, the Court
treats Mr. Widi’s “Denied” responses as “Admitted” under Local Rule 56(g). See supra note 8.
12

15

000009-GZS.15 DSMF ¶ 12, PRDSFM ¶ 12. The requested statements concerned
those made to law enforcement personnel, and the EOUSA interpreted the records
as being non-public in nature. DSMF ¶ 12, PRDSMF ¶ 12. By letter dated April
18, 2011, EOUSA advised Mr. Widi that it was categorically denying access to all
the records under various FOIA and PA exemptions, absent express authorization
of the individuals, proof of death, or a clear demonstration that public interest
outweighed protected personal privacy interests of these individuals.16 DSMF ¶ 13;
PRDSMF ¶ 13. This letter did not include a “certificate of identity form” that Mr.
Widi could use to obtain authorization from the third parties.17

DSMF ¶13;

PRDSMF ¶ 13. However, the letter did notify Mr. Widi that if he wished to obtain
public records he could make a specific request for such, and that he had the right
to appeal this determination to OIP within 60 days of the letter. DSMF ¶ 13;
PRDSMF ¶ 13. Mr. Widi elected not to challenge this determination.18 DSMF ¶ 14;
PRDSMF ¶ 14.

Mr. Widi denies this statement, asserting instead that his request of March 28, 2011 was for
“records maintained on himself.” PRDSMF ¶ 12. The dispute between the parties on this paragraph
is largely a matter of description. Mr. Widi’s own description of the March 28 letter in the Amended
Complaint suggests that EOUSA’s interpretation of the letter is reasonable. However, because Mr.
Widi never pursued his FOIA/PA request of March 28, it is not material to the present dispute and
the Court need not resolve the disagreement. Widi First Decl. ¶ 10.
16
Mr. Widi interposes a qualified response, asserting that the Defendants’ letter cited only §
552a generally, not the specific exemption subsection § 552a(b) as claimed by the Defendants in their
paragraph 13. Widi First Decl. ¶ 9. This difference is not material to the dispute. See supra note 15.
17
The Defendants claim that the April 18 letter did include a certification of identity form.
DSMF ¶ 13. Mr. Widi’s version is supported by the record. Widi First Decl. ¶ 9. This difference is
not material to the dispute. See supra note 15.
18
Mr. Widi interposes a qualified response, but his qualification is not relevant to the factual
assertions in Defendants’ paragraph 14. PRDSMF ¶ 14. Therefore, the Court treats Mr. Widi’s
“Qualified” response as “Admitted.”
15

16

On April 27, 2011, EOUSA received a letter from Mr. Widi that expanded his
request to include all records on himself, including the statements of the five
individuals named in the request of March 28, 2011.19 DSMF ¶ 15; PRDSMF ¶ 15.
The only completed certification of identity form provided by Mr. Widi was his own.
DSMF ¶ 15; PRDSMF ¶ 15. By letter dated May 10, 2011, EOUSA acknowledged
that Mr. Widi’s letter had been received and assigned it FOIA tracking number 111399. DSMF ¶ 16; PRDSMF ¶ 16. The letter of May 10 explained that “by making
a request for all information on himself, the time for processing might take up to
nine months to respond, and that by making this request, he was agreeing to pay
fees up to $25.00, and the basis for charging fees was also explained.” DSMF ¶ 16;
PRDSMF ¶ 16.
Based upon the response received by EOUSA from the U.S. Attorney’s Office
for the District of Maine, EOUSA advised Mr. Widi by letter dated August 12, 2011,
that the search for documents had been completed, that 3.5 hours had been
expended, and that the fee for the work performed to date was $42.00 (at the rate of
$28.00 per hour with two hours free). DSMF ¶ 17; PRDSMF ¶ 17. The relevant
text of the letter of August 12 follows:
[W]e have determined that the fee for search is $42.00. In addition,
the District has forwarded to us approximately 280 pages of potentially
responsive records. Although not all of these pages are likely to be
Mr. Widi interposes a qualified response, asserting that “the records requested were never
those of a third party.” PRDSMF ¶ 15 (citing Widi First Decl. ¶¶ 10-11 and DSMF at Exs. A, C
(Government Ex. A) (Government Ex. C)). The Defendants maintain that Mr. Widi requested
“records of the specifically identified third party individuals” named in the request of March 28.
DSMF ¶ 15 (citing Government Ex. C). The parties do not appear to dispute the factual contents of
the letter of March 28, but rather the legal status of the statements of the five named individuals.
Thus, the Court adopts a hybrid of both parties’ versions of paragraph 15.
19

17

released to you, you should note that we charge $0.10 per page for
duplication of documents that are released to you after the first 100
pages, which are free. Therefore, we estimate duplication fees will be
at least $18.00. Once processing has been completed and a final
charge is known, you will be required to submit the remaining fee
before documents will be released to you.
In accordance with Department of Justice Regulation . . . the request
shall not be considered received and further work shall not be
completed until the requester agrees to pay the anticipated fees. . . .
Records identified for release after processing will not be released until
payment has been received.
In order for your request to be processed, we must hear from you
within 30 days of the date of this letter or we will close your request.
Please complete the attached form and return to the above address.
DSMF Attach. 4 (Government Ex. E). EOUSA informed Mr. Widi that “until he had
agreed to pay the $42.00 fee (within 30 days), all work on his case would cease.” 20
DSMF ¶ 17; PRDSMF ¶ 17.

On August 30, 2011, EOUSA received Mr. Widi’s

response, dated August 19, in which he agreed to pay the search fee detailed in the
letter of August 12 and acknowledged that he might be charged an additional
duplication fee.21

DSMF ¶ 18; PRDSMF ¶ 18.

On October 28, 2011, EOUSA

received a letter from Mr. Widi dated October 20, 2011, requesting a status update
and reaffirming his agreement to pay fees. DSMF ¶ 19; PRDSMF ¶ 19.

Mr. Widi interposes a qualified response, asserting that “Mr. Widi was only provided with an
estimate of possible fees. Mr. Widi was not required to pay fees within 30 days.” PRDSMF ¶ 17.
This appears to be consistent with EOUSA’s claim that “until [Mr. Widi] had agreed to pay the
$42.00 fee (within 30 days), all work on his case would cease.” DSMF ¶ 17 (emphasis added). In
other words, it does not appear that EOUSA claims that its letter of August 12 amounted to a
demand that Mr. Widi immediately pay fees, only that he agree to pay fees in the future. See also
PRDSMF ¶ 20 (claiming that EOUSA first made a demand for the $42.00 fee on November 25, 2011).
Therefore, the Court treats Mr. Widi’s “Qualified” response as “Admitted.”
21
Mr. Widi interposes a qualified response, asserting that he “agreed to pay the estimated
fees.” PRDSMF ¶ 18. This qualification does not change the meaning of EOUSA’s paragraph 18,
and so the Court treats Mr. Widi’s “Qualified” response as “Admitted.”
20

18

By letter dated November 25, 2011, EOUSA notified Mr. Widi that it had
processed responsive records. DSMF ¶ 20; PRDSMF ¶ 20. This letter recites a list
of records that would not be provided (grand jury material and public records), or
that would be provided by other government components only after “referral” for
“review” (records “that originated with another government component”).22
Government Ex. H. Most paragraphs in the letter have a bracketed space for a
check box, which appears to indicate that the paragraph applies or does not apply to
the recipient’s request.23 Id. Of the five paragraphs with brackets, three have a
bold X in the bracket, indicating that they apply to the request. Id. The paragraph
that indicates that Mr. Widi must pay the $42.00 search fee is not checked, nor is
the paragraph whose text reads: “See additional information attached.” Id.
EOUSA claims, but Mr. Widi disagrees, that the letter of November 25
assessed a fee of $42.00, due and payable prior to release of any records to Mr. Widi
or referral of records to other government entities. DSMF ¶ 20; PRDSMF ¶ 20. The
letter also informed Mr. Widi that grand jury records were being “withheld in the
District [of Maine]” and that public records were available upon request and
copying charge.

DSMF ¶ 20; PRDSMF ¶ 20.

EOUSA claims, but Mr. Widi

disagrees, that the letter informed Mr. Widi that he had 30 days within which to

Mr. Widi interposes a qualified response to paragraph 20, asserting that he “was notified
that he did not owe any fees and was not notified that he owed fees within 30 days.” PRDSMF ¶ 20
(citing Widi First Decl. ¶ 15 and DSMF Attach. 7 (Government Ex. H)). This disagreement over the
interpretation of the letter of November 25 goes to the heart of the dispute between the parties, and
the Court cannot resolve it merely with reference to the parties’ statements of material facts.
Therefore, at this stage the Court can only acknowledge the interpretational difference.
23
E.g., “[ ] Our office located records that originated with another government component.”
Government Ex. H.
22

19

pay this fee.24 DSMF ¶ 20; PRDSMF ¶ 20. Mr. Widi, for his part, asserts that the
letter of November 25 “informed Mr. Widi that it had determined it would not
release any records requested,” without citing any statutory exemptions.25 PSAMF
¶ 30; DRPSAMF ¶ 30. Mr. Widi further asserts that he “has not been presented
with a fee by the EOUSA.”26 PSAMF ¶ 32; DRPSAMF ¶ 32. He also claims that he
“has exhausted all administrative remedies.”27 PSAMF ¶ 33; DRPSAMF ¶ 33.
Mr. Widi appealed EOUSA’s disposition of the matter to OIP, receipt of which
appeal OIP acknowledged by letter dated December 20, 2011. DSMF ¶¶ 21-22;
PRDSMF ¶¶ 21-22.

EOUSA claims that by letter dated June 18, 2012, OIP

“affirmed the EOUSA action and that no payment had been received.”28 DSMF ¶
23; PRDSMF ¶ 23. EOUSA claims that because Mr. Widi has “refused to pay fees
respecting the processing of his request, he has failed to exhaust administrative

Mr. Widi’s qualified response to paragraph 20 disputes that he was notified that payment
was due within 30 days. PRDSMF ¶ 20 (citing Government Ex. H); supra note 22.
25
EOUSA denies paragraph 30, but its explanation does not address Mr. Widi’s assertion that
the letter communicated that no records would be released and that it cited no statutory exemptions.
DRPSAMF ¶ 30. Mr. Widi’s position is supported by record evidence, Government Ex. H, but the
Court adopts Mr. Widi’s paragraph 30 only to the extent that it states purely factual assertions. The
assertion that the letter “informed Mr. Widi that it had determined it would not release any records
requested” is a matter of interpretation. Whether the language of the letter is susceptible to an
interpretation as a matter of law, rather than by a fact-finder, is precisely the question the parties
have called on the Court to answer at the summary judgment stage. On the other hand, there is no
genuine dispute that the letter cites no statutory exemptions.
26
EOUSA denies paragraph 32. DRPSAMF ¶ 32. Its denial is not one of pure fact, and the
Court will determine in due course if it can adopt EOUSA’s preferred interpretation as a matter of
law. See supra note 25. Neither party disputes the contents of the letter of November 25 or any of
the preceding letters. Government Ex. H.
27
EOUSA denies paragraph 33. DRPSAMF ¶ 33. Its denial is not one of pure fact, and the
Court will determine in due course if it can adopt EOUSA’s preferred interpretation as a matter of
law. See supra note 25. Neither party disputes the contents of the letter of November 25 or any of
the preceding letters. Government Ex. H
28
Mr. Widi denies paragraph 23. PRDSMF ¶ 23. His denial is a matter of law, not of fact,
since he disputes the legal effect of OIP’s letter of June 18. Neither party disputes the contents of
the letter of June 18. DSMF Attach. 8 (Government Ex. I).
24

20

remedies, and is deemed by EOUSA to have no valid request.”29

DSMF ¶ 24;

PRDSFM ¶ 24. Mr. Widi, by contrast, claims that OIP “treated Mr. Widi’s appeal
as one from a fee determination, even though that was never mentioned.”30 PSAMF
¶ 31; DRPSAMF ¶ 31. Furthermore, he asserts that “[t]he OIP blatantly ignored
and refused to address Mr. Widi’s claim that the EOUSA had improperly withheld
requested records.”31 PSAMF ¶ 31; DRPSAMF ¶ 31. Finally, Mr. Widi “wants to
pay fees for the 280 pages of [responsive] records.”32 PSAMF ¶ 34; DRPSAMF ¶ 34.
B.

Genuine Dispute of Material Fact as to ATF

Mr. Widi has presented a genuine dispute of material fact as to the FOIA
request that he alleges he sent to ATF.

Specifically, he has produced record

evidence to support his assertion that he included a zip code on the envelope in
which he sent the request. Widi Second Decl. ¶¶ 4-6. If a fact-finder were to credit
that assertion, a presumption would arise that his mail, properly addressed, was
delivered to ATF. See United States v. Stewart, 472 F.2d 1114, 1118 (1st Cir. 1973)
(adopting the common law “presumption of regularity in mail delivery”). From this
presumption, a fact-finder could conclude that ATF received Mr. Widi’s FOIA

Mr. Widi denies paragraph 24. PRDSMF ¶ 24. As with paragraph 23, the dispute between
the parties is legal, not factual. The parties’ paragraphs 24 state different opinions about the legal
result of the facts.
30
EOUSA denies paragraph 31. DRPSAMF ¶ 31. Its denial addresses a matter of law, not of
fact, and the Court will address this legal dispute in due course. Neither party disputes the contents
of the letter of June 18. Government Ex. I.
31
This statement is subject to the same legal denial noted above. Supra note 30.
32
EOUSA interposes a qualified response, stating that “[t]he fees that Widi asserts he wants to
pay are the same fees that EOUSA assessed and were not paid.” DRPSAMF ¶ 34. Since Mr. Widi’s
paragraph 34 goes to his present intention and desire to have the records released, and the dispute
between Mr. Widi and the EOUSA centers around whether EOUSA has actually assessed any fees,
the EOUSA’s qualifier does not add any additional dimension to the factual and legal dispute
presented by paragraphs 9 through 24 and 30 through 33.
29

21

request and failed entirely to respond. This, in turn, would cause ATF to be liable
for improperly withholding records. 5 U.S.C. § 552(a)(4)(B); see also Open Am. v.
Watergate Special Prosecution Force, 547 F.2d 605, 615-16 (D.C. Cir. 1976) (stating
that federal court process is available “when the agency [is] not showing due
diligence in processing plaintiff’s individual request”).

The factual dispute is

“genuine” because a reasonable fact-finder could resolve it in Mr. Widi’s favor; it is
“material” because, if proved, it will change the outcome of the litigation in Mr.
Widi’s favor. Consequently, the Court does not grant summary judgment on Count
XIV as to ATF.
C.

Genuine Dispute of Material Fact as to EOUSA

Resolving the Defendants’ Motion for Summary Judgment on Count XIV as
to EOUSA requires the Court to untangle the legal implications of the
correspondence between Mr. Widi and EOUSA. The parties do not dispute the
contents of the letters, which would be a purely factual dispute. Rather, the parties
dispute the meaning and legal result of the words.

The interpretation of non-

statutory words is usually a mixed question of fact and law. See Barrentine v. Ark.Best Freight Sys., Inc., 450 U.S. 728, 743 (1981); see also William W. Schwarzer et
al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 45556 (1992). The Court may only grant summary judgment if there are no genuine
disputes of material fact and the movant is entitled to judgment as a matter of law.
Rule 56(a).

22

First, drawing all reasonable inferences in favor of Mr. Widi, the letter of
November 25 on its face presents a disputed question of material fact. This is so
because the letter is ambiguous about whether it is assessing a fee. Viewing the
letter in the light most favorable to Mr. Widi, the ordinary reader looking over the
letter might be confused about whether the second bracketed paragraph demanded
a fee. Other paragraphs clearly applicable to Mr. Widi’s request are checked, but
not the fee paragraph. A reasonable fact-finder could decide that the unchecked fee
box means that the language in the un-checked paragraph is not applicable to the
request. The fact that the next paragraph, which is checked, states that EOUSA
would “refer” records to other government components “[o]nce we have received the
above payment” does not resolve the ambiguity, because a reasonable fact-finder
could conclude that the un-checked paragraph assessed no fee.

The earlier

correspondence between EOUSA and Mr. Widi only establishes that Mr. Widi
agreed to pay some fees at some point; it does not erase the ambiguity of the
language in the letter of November 25. Although the interpretation of ambiguous
language is a mixed question of fact and law, in this case the Court cannot conclude
as a matter of law that the letter assessed a fee. This determination will have to be
made by a fact-finder. The question is “genuine” because a reasonable fact-finder
could resolve it in Mr. Widi’s favor; it is “material” because, if proved, it will change
the outcome of the litigation in Mr. Widi’s favor.

23

Specifically, if EOUSA never

assessed a fee, then OIP’s resolution of Mr. Widi’s appeal (dismissing for failure to
pay a required fee) was improper.33
This conclusion is strengthened by the related conclusion that EOUSA
apparently presented no legal grounds on which to withhold this information. The
November 25 letter itself cites no statutory exemptions, as it was required to do
under § 552(b) of FOIA. In the context of Mr. Widi’s original FOIA/PA request
(which he later abandoned), the EOUSA response letter did cite three provisions of
FOIA and PA: 5 U.S.C. § 552(b)(6), § 552(b)(7)(C), and 5 U.S.C. § 552a(b). DSMF
Attach. 1 (Government Ex. B). However, even assuming that these sections are
applicable to the second FOIA/PA request, they do not justify the withholding.
Section 552(b)(6) exempts personnel and medical files, “the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.” But there is
no indication that the records Mr. Widi requested contain such information.
Likewise, § 552(b)(7)(C) exempts “records or information compiled for law
enforcement purposes, but only to the extent that production . . . could reasonably
be expected to constitute an unwarranted invasion of personal privacy.” Again, the
Defendants offer no argument about why disclosure even of the statements made by
Mr. Widi also argues that he should never have been assessed a fee in the first place because
the request was properly construed under the PA. Under the DOJ regulations covering PA requests,
“[n]o search or review fee may be charged for any record unless the record has been exempted from
access under Exemptions (j)(2) or (k)(2) of the Privacy Act.” 28 C.F.R. § 16.49 (2013). Defendants
counter that records in the Criminal Case File System are categorically exempt from PA requests.
As discussed in section I.C, supra, neither § 552a(j)(2) nor (k)(2) exempts reports of informants, and
so § 16.49 does appear to apply at the very least to the statements of the five named individuals from
both FOIA/PA requests. However, because the Court has concluded that there exists a genuine
dispute of material fact as to whether EOUSA actually assessed a fee, it need not at this stage decide
Mr. Widi’s alternate argument that no fees could be properly assessed under § 16.49. The Court
addresses this argument in connection with Mr. Widi’s cross-motion for summary judgment.
33

24

the five named individuals would be an invasion of personal privacy.

Even

assuming it would be, there is no reason the personally identifying information
could not be redacted. See Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d 15,
27 (D.D.C. 2008) (holding that the names of informants were properly redacted from
otherwise responsive records under § 552(b)(7)(C)). Finally, § 552a(b) is inapposite
because it is explicitly preempted by the requirements of § 552.

5 U.S.C. §

552a(b)(2).
EOUSA does not argue that any provision of FOIA or PA permits an agency
to withhold information simply because it is grand jury material, as asserted by the
letter of November 25.34 Nor does any provision of either statute permit the agency
receiving the request to “refer” records in its possession to other government
components for “review and direct response,” as the letter claimed. Government Ex.
H. FOIA requires that the agency produce the records, not refer them to another
agency.

Finally, the letter instructed Mr. Widi to make a separate request for

certain “public records.” Id. It is true that FOIA contains a special provision for
certain records that, “because of the nature of their subject matter, the agency
determines have become or are likely to become the subject of subsequent requests
for substantially the same records.”

5 U.S.C. § 552(a)(2)(D).

The disclosure

requirements in § 552(a)(3)(A) exclude records already released under § 552(a)(2).
However, the letter instructs Mr. Widi to make, in essence, a second, duplicate

Although not argued, the Court is concerned about grand jury secrecy. See FED. R. CRIM. P.
6(E)(2)(B). As this Order does not require the release of grand jury material to Mr. Widi, the Court
leaves this issue for another day.
34

25

FOIA/PA request, without indicating which records were “public” or how his second
request would produce a result in any way different than his first request. The
Court is not convinced that this instruction, or the withholding of the records, is
justified under the law, and the Defendants have made no effort to defend it.
Furthermore, Mr. Widi has exhausted his administrative remedies by
appealing to OIP. As a preliminary matter, Mr. Widi’s claim that no fee could be
assessed because no documents would be released lacks merit. The parties do not
dispute that Mr. Widi agreed to pay a lawful search fee entirely independent of the
document duplication fees; the search fee properly accrued, even if the EOUSA
never actually assessed it against Mr. Widi.35

§ 552(a)(4)(A)(ii)(III); see also

Stabasefski v. United States, 919 F. Supp. 1570, 1573 (M.D. Ga. 1996) (holding that
payment of FOIA duplication fees is not conditioned on the requesting party’s
satisfaction with the results of the search).
However, Mr. Widi is correct that this record raises a genuine dispute as to
whether OIP wrongly failed to reach the merits of his claim of improper withholding
because its disposition of his appeal was untimely, and therefore search fees were
disallowed. First, OIP is required to “make a determination with respect to any
appeal within twenty days.” § 552(a)(6)(A)(ii). OIP refused to reach any issue other
than the fee assessment, citing 28 C.F.R. § 16.11(i)(3) (2013). DSMF Attach. 10
(Government Ex. K). This regulation provides that if a requester has failed to pay a
properly charged FOIA fee, the component can refuse to “process a new request or
To be clear, the Court does not conclude that EOUSA actually failed to assess a fee. Whether
EOUSA assessed the fee remains a genuine dispute of material fact.
35

26

continue to process a pending request from the requestor” until the outstanding
charge is paid with interest.36 § 16.11(i)(3). However, OIP issued this decision on
June 18, 2012—more than six months after it received Mr. Widi’s appeal of
EOUSA’s letter. FOIA prohibits any agency from charging a search fee if it fails to
comply with a time limit under subsection (a)(6). § 552(a)(4)(A)(viii). Subsection
(a)(6) required OIP to “make a determination with respect to” Mr. Widi’s appeal
within twenty business days of receiving the appeal. § 552(a)(6)(A)(ii). Because the
only fees that EOUSA asserts are due are search fees, see Government Ex. H
(assessing $42.00 for “search”), Mr. Widi’s contention that OIP could not properly
refuse to reach the merits of Mr. Widi’s appeal six months after receiving it, solely
on the grounds that he has not paid the search fees, precludes summary judgment
in favor of the Defendants.37
All the Defendants’ arguments as to why EOUSA is entitled to judgment as a
matter of law hinge on the assumption that Mr. Widi was required to pay a fee and
did not. OIP’s disposition of Mr. Widi’s appeal likewise refused to reach the merits
of his claim of improper withholding because he had failed to pay the fee. However,

The Court is hesitant to conclude that hearing the merits of an appeal is the same thing as
“processing a pending [FOIA] request” within the meaning of § 16.11(i)(3). However, the Court need
not decide this issue because OIP’s untimely response renders EOUSA unable to collect search fees—
the nonpayment of which was the basis of OIP’s refusal to hear the merits of the appeal.
37
Mr. Widi also claims that that EOUSA’s response to his second FOIA request, by the letter of
November 25, was untimely. § 552(a)(6)(A)(i) requires the receiving agency to “determine within 20
[business] days . . . whether to comply with such request and . . . notify the person making such
request of such determination.” EOUSA argues that its letter of May 10 satisfied the requirement;
Mr. Widi counters that the agency did not make a determination of whether to comply until
November 25. The Court need not resolve this disagreement because it has determined that OIP’s
unjustified six month delay in deciding Mr. Widi’s appeal bars the agency from assessing search fees,
pursuant to § 552(a)(4)(A)(viii).
36

27

because the Court has determined that there exists a genuine dispute of material
fact as to whether EOUSA ever assessed the fee in the first place, these arguments
cannot prevail at this stage.
In conclusion, the Court does not grant summary judgment to either
Defendant.

There remain genuine disputes of material fact relevant to both

Defendants, and these matters must be resolved by a fact-finder.
V.

THE CROSS-MOTION FOR SUMMARY JUDGMENT
Mr. Widi also moves the Court for summary judgment in his favor. First, as

to ATF, the Court cannot grant summary judgment because there is a genuine
dispute of material fact as to whether Mr. Widi put a zip code in the address on his
FOIA request and whether ATF actually received his FOIA request. Second, as to
EOUSA, the Court has already determined that there is a genuine dispute of
material fact with regard to whether EOUSA assessed a fee in its letter of
November 25. This would, on its own, preclude summary judgment in Mr. Widi’s
favor as to EOUSA as well. However, Mr. Widi has put forth an alternative theory
as to why he is entitled to judgment as a matter of law: that no fee for the
documents would be proper because his request is covered by the Privacy Act.
The DOJ regulations under the PA require that “[n]o search or review fee
may be charged for any record unless the record has been exempted from access
under Exemptions (j)(2) or (k)(2) of the Privacy Act.” 28 C.F.R. § 16.49.38 The

Since the previous sentence of the regulation limits its reach to duplication of records “under
the Privacy Act,” the Court reads the sentence dealing with search or review fees to apply only to PA
requests as well.
38

28

Defendants do not dispute that the basic, conceptual subject matter of the request—
all documents related to Mr. Widi—is an appropriate one for a PA request. See §
552a(d)(1) (covering any “request by any individual to gain access to his record or to
any information pertaining to him which is contained in the [record] system”).
Rather, the Defendants argue that under subsections (j)(2) and (k)(2) of the PA, and
the DOJ regulations in 28 C.F.R. § 16.81(a)(4), the records in the Criminal Case File
System Justice/USA – 007 are categorically excluded from coverage of the PA.
However, the Court has already explained that that regulation is not applicable to
at least some of the subject matter of the request—the statements about Mr. Widi
from the five named individuals. See Section I.C, supra. In light of this conclusion,
the Defendants are at least partially incorrect that Mr. Widi’s request is cognizable
exclusively under FOIA and not under PA—and, to that extent, Mr. Widi may not
have been required to pay any fees under 28 C.F.R. § 16.49.
However, the Court is not yet prepared to grant summary judgment to Mr.
Widi. Some of the documents responsive to Mr. Widi’s request may fall into the
(j)(2) and (k)(2) exemptions in the PA, and to that extent they are available to Mr.
Widi only through FOIA. If the records are available only through FOIA, Mr. Widi
may be required to pay a search or review fee for them, if and when EOUSA
actually assesses that fee.39

Further discovery is needed to determine which

records, if any, are only available through FOIA, and what the fees for those
documents would be. If it turns out that 100% of the responsive records are

39

Or, perhaps, to the extent EOUSA has already assessed such a fee.

29

available through PA, and that consequently no fees are properly assessed against
Mr. Widi for search or review, Mr. Widi may then be entitled to summary judgment.
Therefore, the Court dismisses without prejudice Mr. Widi’s cross-motion for
summary judgment.
VI.

CONCLUSION
Thus,
1. The Court DENIES the Defendants’ Motion to Dismiss and for
Summary Judgment Regarding Count XIV (ECF No. 44); and
2. The Court DISMISSES WITHOUT PREJUDICE the Plaintiff’s
Cross-Motion for Summary Judgment as to Count XIV (ECF No.
59).

SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 27th day of August, 2013

30