Reaves v. Jewell
Filing
15
MEMORANDUM OPINION (c/m to Plaintiff 11/26/14 sat). Signed by Judge Deborah K. Chasanow on 11/26/2014. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
OSBORNE MARK REAVES
:
v.
:
Civil Action No. DKC-14-2245
:
SALLY JEWELL, Secretary
Department of Interior
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Freedom
of Information Act (“FOIA”) case are three motions: (1) a motion
for redaction of personal contact information filed by Plaintiff
Osborne Mark Reaves (“Plaintiff” or “Mr. Reaves”) (ECF No. 7);
(2)
a
motion
to
dismiss
or
for
summary
judgment
filed
by
Defendant (ECF No. 8); and (3) a motion to strike Plaintiff’s
surreply filed by Defendant (ECF No. 14).
no hearing being deemed necessary.
The court now rules,
Local Rule 105.6.
For the
following reasons, Plaintiff’s motion to redact will be granted.
Defendant’s motion to dismiss will be granted, but Plaintiff may
submit
an
amended
complaint
within
fourteen
(14)
days.
Defendant’s motion to strike will be granted.
I.
Background
A.
Factual Background
Plaintiff Osborne Mark Reaves, proceeding pro se, filed a
complaint on July 14, 2014 against the United States Department
of
the
Interior
(“Defendant”)
under
the
federal
Freedom
of
Information Act (“FOIA”), 5 U.S.C. § 552 et seq.
facts
are
lieutenant
Police”).1
alleged
employed
in
his
by
the
complaint.
United
Plaintiff
States
Park
The following
is
a
police
Police
(“Park
Plaintiff received a letter of reprimand issued by
the Park Police on April 23, 2014, stemming from an incident
that occurred on July 4, 2013.
(ECF No. 1 ¶ 3).
Plaintiff
represents that he filed an EEO Complaint regarding the July 4,
2013 incident.
(Id.).
He states that he filed a FOIA request
by email dated May 19, 2014 directed to Charis Wilson, a FOIA
Officer with the National Park Service, “request[ing] access to
documents
in
connection
with
U.S.
Park
Complaint #13-33392 and CN# 13-25704.”
Police
Administrative
(Id. ¶ 5).
Plaintiff
requested:
Any and all documents located in the case
jacket of the above referenced case numbers
to
include
the
entire
report
of
investigation;
the
Internal
Affairs
disposition
report;
transcripts
of
interviews taken during the investigation;
handwritten notes generated by members of
the Internal Affairs Unit; the interoffice
memorandum concerning CN #13-33392 that
states
the
disposition
and
proposed
discipline, any and all written reports
submitted by witnesses/suspects; any and all
materials produced or reviewed by the Acting
Commander of the Office of Professional
Responsibility Captain Michael Libby.
1
Plaintiff asserts that the U.S. Park Police is an arm of
the National Park Service, which is a bureau with the Department
of the Interior. (ECF No. 1 ¶ 4).
2
(ECF No. 1-1, at 1-2).
In a follow-up email dated May 19, 2014
to Charis Wilson, Plaintiff requested “any and all emails sent
or
received
by
the
Acting
Commander
of
the
Office
of
Professional Responsibility Captain Michael Libby regarding U.S.
Park Police Administrative Complaint #13-33392 and CN#13-25705.”
(ECF No. 1-2, at 1).
By email dated June 3, 2014, Captain
Michael Libby stated:
This is the Administrative release of the
file for IAU case # 130089. As an employee
you[] are entitled to a copy of the file.
This is NOT a release under FOIA or by your
request. The FOIA request you filed will be
handled
under
the
normal
process
and
regulations.
(ECF No. 1-3) (emphasis in original).2
Plaintiff contends that
he reviewed the IAU case jacket and found that the IAU “violated
policy
and
made
investigation.”
investigatory
errors
(ECF No. 1 ¶ 8).
while
conducting
this
In the complaint, Plaintiff
indicated that he had not received any correspondence regarding
his FOIA request from Defendant since the email from Captain
Libby on June 3, 2014.
(Id. ¶ 9).
Plaintiff believes that
Defendant is withholding records that were part of the May 19,
2014 FOIA request.
(Id.).
2
Plaintiff also asserts that on May 14, 2014, he contacted
Karlyn Payton of the U.S. Park Police Employee Relation Unit and
attempted to obtain the case jacket justifying the issuance of
the April 2014 letter of reprimand.
(ECF No. 1-4, at 1).
Plaintiff alleges that he did not receive the file when the
April 2014 letter of reprimand was issued, nor was he sent the
file following his May 14, 2014 request. (ECF No. 1 ¶ 8).
3
B.
Procedural History
On August 25, 2014, Plaintiff filed an unopposed motion for
redaction of personal contact information.
(ECF No. 7).
On
September 19, 2014, Defendant filed a motion to dismiss or, in
the alternative, for summary judgment.
(ECF No. 8).
Plaintiff
opposed the motion (ECF No. 10), and Defendant replied (ECF No.
12).
On November 7, 2014, Plaintiff filed a surreply.
13).
On
surreply.
II.
November
25,
2014,
Defendant
moved
to
(ECF No.
strike
the
(ECF No. 14).
Analysis
A.
Plaintiff’s Motion to Redact
Plaintiff’s motion to redact is in essence a motion to seal
his
complaint
and
accompanying
exhibits.
Plaintiff
requests
that certain personal identifying information be redacted from
those filings.
complaint,
personal
(See ECF No. 7).
summonses,
e-mail,
redacted.
and
and
Plaintiff asserts that the
exhibits
phone
contain
number,
his
which
he
home
address,
seeks
to
be
Plaintiff explains that he is a police officer and
“the release of this information to the general public could
place [him] in danger or make [him] susceptible to harassment.”
(Id.).
Plaintiff
documents
with
his
several websites.
also
asserts
personal
that
contact
he
has
information
already
found
displayed
on
Plaintiff provides redacted versions of the
4
complaint and accompanying exhibits.
7-6).
(See ECF Nos. 7-1 through
Defendant does not oppose Plaintiff’s request.
Plaintiff’s motion will be granted.
enables
the
court
for
good
cause
to
Fed.R.Civ.P. 5.2(e)
order
redaction
of
additional information beyond what is enumerated in Fed.R.Civ.P.
5.2(a).3
Plaintiff has “proposed reasons supported by specific
factual representations to justify the [requested]” redactions.
See Loc.R. 105.11.
Protecting the safety of law enforcement
qualifies as good cause.
Thus, the clerk will be directed to
seal the complaint, summons, and accompanying exhibits, which
have
been
replaced
with
the
redacted
versions
Plaintiff
supplied.4
B.
Defendant’s Motion
Defendant
argues
that
Plaintiff’s
complaint
should
be
dismissed for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1) or, in the alternative, summary judgment
should be granted.
The motion will be construed as a motion to
dismiss.
3
Fed.R.Civ.P. 5.2(a) requires parties to redact social
security numbers, taxpayer-identification numbers, birth dates,
names of minors, and a financial-account number.
4
It appears that the certificate of service page and some
of the accompanying exhibits attached to Defendant’s motion and
reply brief also contain personal identifying information that
Plaintiff seeks redacted. Defendant will have seven (7) days to
redact Plaintiff’s home address, email, and phone number from
its filings.
5
Defendant first argues that the case should be dismissed as
moot5
because
withholding
it
and
has
produced
redacting
responsive
those
only
all
documents,
documents
subject
to
exemptions under FOIA.
According to Defendant, Plaintiff filed
his
14,
complaint
on
July
2014,
while
Defendant
was
in
the
process of locating 111 pages of responsive documents, which
were then sent to Plaintiff on September 16, 2014.
(ECF No. 8,
at 4).
Thus, Defendant maintains that “there is no further
judicial
function
Defendant
for
argues
the
that
court
because
to
perform.”
the
(Id.
release
of
at
9).
documents
eliminates any live controversy between the parties, the court
lacks
jurisdiction.
Defendant
because
contends
it
(Id.
that
conducted
it
an
at
9-10).
In
the
is
entitled
to
summary
adequate
search
alternative,
for
judgment
responsive
documents, and only withheld or redacted documents that were
exempt
under
FOIA.
(Id.
at
11).
Defendant
attaches
a
declaration from Lieutenant John Dillon, Assistant Commander in
the Planning and Development Unit of the United States Park
Police, who avers that he performed an exhaustive search for
responsive documents.
(ECF No. 8-2 ¶¶ 5, 8) (“U.S. Department
of
certain
Interior
withheld
information
5
from
the
provided
“[M]ootness
[is]
derived
from
the
Constitution,
specifically Article III, which requires a ‘case or controversy’
as the fundamental ingredient of subject matter jurisdiction.”
Mobley v. Acme Mkts., Inc., 473 F.Supp. 851, 858 (D.Md. 1979).
6
documents insofar as they are records or information that are
protected under FOIA exemptions.”).
Defendant broadly discusses
how the documents withheld are covered under FOIA exemptions,
specifically 5 U.S.C. § 552(b)(5), (b)(6), and (b)(7).
(Id. at
12-15).
In his opposition, Plaintiff indicates that he “would like
to initiate an administrative appeal to contest the redactions
in
the
records
[he]
received.”
(ECF
No.
10).
Plaintiff
maintains that he has not received the full record he requested.
Plaintiff
proposes
a
stay,
“so
[that
he]
can
contest
the
redactions with the agency through an administrative appeal.”
(Id.) (emphasis in original).
In its reply brief, Defendant
points out that Plaintiff “fails to offer an iota of detail as
to why the U.S. Department of Interior failed to perform an
adequate search.”
(ECF No. 12, at 3).
Defendant also objects
to a stay, arguing that it “has already produced the responsive
documents
to
Plaintiff
and
properly
withheld
information
pursuant to the FOIA exemptions.
To allow Plaintiff to litigate
a
agency’s
separate
appeals
appeal
process
through
would
be
the
redundant
litigation regarding the same matter.”
FOIA
administrative
lead
to
additional
(Id. at 5).
Defendant
and
acknowledges in a footnote in its reply brief that Plaintiff
filed
an
administrative
appeal
with
the
Department
Interior’s FOIA Appeals Office on October 9, 2014.
7
of
the
(Id. at 5
n.2).
of
However, Defendant cites its authority to suspend review
Plaintiff’s
appeal
pending
the
pursuant to 43 C.F.R. § 2.60(c).
court
can
easily
dispose
of
findings
of
this
court,
Defendant avers that “[t]his
this
litigation
by
ruling
that
Plaintiff’s [c]omplaint is moot given the fact that Defendant
has already produced all responsive documents with appropriate
redactions.
through
issues.”
a
It
is
separate
wholly
unnecessary
administrative
for
appeals
Plaintiff
process
to
on
go
these
(Id.).6
FOIA provides a mechanism for citizens to obtain documents
from
federal
jurisdiction
requests.
agencies,
to
and
review
grants
agency
federal
compliance
district
with
citizens’
Sanders v. United States, Civ. Action No. DKC-06-
1528, 2006 WL 4707001, at *3 (D.Md. Nov. 14, 2006).
requests
courts
under
FOIA,
a
citizen
must
follow
the
To make
agency’s
published regulations regarding procedures to be followed.
6
See
Plaintiff has filed a surreply, in which he reiterates his
request to stay court proceedings to “allow the administrative
process to run its course” and attaches as an exhibit the
administrative appeal he filed with Defendant’s Appeals Office.
(See ECF Nos. 13, 13-1, 13-2). Local Rule 105.2(a) states that
“[u]nless otherwise ordered by the court, surreply memoranda are
not permitted to be filed.” Here, Plaintiff did not seek leave
to file a surreply.
A surreply may be permitted “when the
moving party would be unable to contest matters presented to the
court for the first time in the opposing party’s reply.” Khoury
v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citation
omitted). It does not appear that Defendant presented any new
arguments in the reply brief; instead, Defendant replied to
Plaintiff’s request for a stay. Accordingly, Defendant’s motion
to strike the surreply will be granted.
8
5 U.S.C. § 552(a)(3)(A)(ii); Pollack v. Dep’t of Justice, 49
F.3d 115, 118 (4th Cir. 1995).
FOIA provides that, subject to
certain statutory exemptions, federal agencies shall “upon any
request for records which reasonably describe such records . . .
make the records promptly available to any person.”
522(a)(3)(A).
5 U.S.C. §
In a lawsuit seeking the release of documents
under FOIA, “[o]nce the records are produced[,] the substance of
the controversy disappears and becomes moot since the disclosure
which the suit seeks has already been made.”
Jacobs v. Fed.
Bureau of Prisons, 725 F.Supp.2d 85, 89 (D.D.C. 2010) (internal
quotation marks omitted); Morales v. Pension Ben. Guar. Corp.,
Civ. Case No. L-10-1167, 2012 WL 253407, at *4 (D.Md. Jan. 26,
2012) (“A FOIA action becomes moot when, during the pendency of
a lawsuit seeking the disclosure of document, the requester is
provided
with
all
documents
responsive
to
his
request.”);
Regional Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457, 465
(4th Cir. 1999).
In his opposition, Plaintiff does not address Defendant’s
arguments
regarding
mootness.
Instead,
he
disputes
Defendant provided him with all responsive documents.
that
The basis
of Plaintiff’s complaint, however, is that Defendant had not
responded to his FOIA request at all.
In Taitz v. Colvin, Civ.
Action No. ELH-13-1878, 2013 WL 6623196, at *1 (D.Md. Dec. 13,
2013), plaintiff also filed a federal lawsuit under FOIA because
9
the
Social
request.
Security
Security
During
Administration
the
Administration
pendency
of
produced
did
that
not
respond
lawsuit,
responsive
to
the
his
Social
documents,
and
plaintiff then argued in her opposition to defendant’s motion to
dismiss or for summary judgment that defendant “did not conduct
an
adequately
alternatively,
thorough
that
which it withheld.
“[p]laintiff’s
search
defendant
for
possessed
Id. at *2.
Amended
responsive
documents”
responsive
and
documents
Judge Hollander concluded that
Complaint
was
filed
before
the
SSA
responded to her FOIA request, and has been rendered moot by the
SSA’s response to her FOIA request.”
Id.
Judge Hollander noted
that “[i]f plaintiff takes issue with the adequacy of the SSA’s
response, she must amend her complaint to add allegations that
the SSA’s response was deficient.”
Here, Defendant’s production of documents also renders the
complaint moot.
Plaintiff now objects to the redactions and
believes he has not received the full record he requested.
“A
party cannot alter his or her claim through briefs[, however].
Instead, ‘the proper procedure for plaintiff[] to assert a new
claim is to amend the complaint in accordance with Fed.R.Civ.P.
15(a).’”
Taitz, 2013 WL 6623196, at *2 (quoting Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)).
Plaintiff
requests
a
stay
so
that
he
may
pursue
his
objections administratively, but it is unnecessary to keep this
10
case open, especially considering that his complaint has been
rendered
moot.
(holding
that
sought
See,
e.g.,
plaintiff’s
fulfillment
of
Morales,
WL
253407,
at
*4
was
moot
insofar
as
it
outstanding
FOIA
requests,
complaint
his
2012
but
conducting an in camera review of all redacted documents after
plaintiff challenged the sufficiency of defendant’s production).
Moreover, Defendant informs that since it filed the reply brief,
“the FOIA Appeals Officer has, in fact, declined to take any
action on Plaintiff’s administrative filing.”
n.1).
(ECF No. 14, at 2
Defendant represents that in a letter dated November 14,
2014, “the FOIA Appeals Officer explained to Plaintiff that his
appeal was rejected as this Court will make a determination on
the disposition of his records request.”
n.1).
(21)
(ECF No. 14, at 2
Plaintiff may file an amended complaint within twenty-one
days
identifying
the
basis
for
his
FOIA
claim
against
Defendant.7
III. Conclusion
For
the
foregoing
will be granted.
reasons,
Plaintiff’s
motion
to
redact
Defendant’s motion to dismiss will be granted,
but Plaintiff will have twenty-one (21) days to file an amended
7
Plaintiff attached as an exhibit to his surreply the
appeal that he filed with Defendant’s FOIA & Privacy Act Appeals
Office. (See ECF Nos. 13-1 & 13-2). It appears that the appeal
was prepared by an attorney on behalf of Plaintiff.
(See ECF
No. 13-1, at 9).
If Plaintiff has retained an attorney to
represent him in this case, the attorney must enter his
appearance.
11
complaint.
Defendant’s motion to strike will be granted.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
12
A
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