Union Leader Corporation v. U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement
Filing
16
///ORDER granting 8 Motion to Dismiss for Failure to State a Claim; denying without prejudice 12 Motion to Amend Complaint; denying as moot 4 Motion for Preliminary Injunction and Request for Expedited Hearing. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Union Leader Corporation
v.
Civil No. 12-cv-18-JL
U.S. Department of Homeland
Security, U.S. Immigration
and Customs Enforcement
SUMMARY ORDER
In this action under the federal Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, from which this court derives its
jurisdiction, id. § 552(a)(4)(B), Union Leader Corporation seeks
an injunction ordering United States Immigration and Customs
Enforcement (“ICE”) to produce to it the names and addresses of
six individuals who were arrested in New Hampshire during 2011.
ICE moved to dismiss the complaint, see Fed. R. Civ. P. 12(b)(6),
arguing that Union Leader had made only an informal e-mail
request for the information in question, rather than a formal
FOIA request pursuant to the agency’s regulations, and had
therefore failed to exhaust its administrative remedies.
In its
opposition, Union Leader conceded that it had not made a formal
FOIA request with ICE prior to filing suit (though it did make
one after filing, and after ICE moved to dismiss), but argued
that this defect should not result in dismissal of the suit.
The court held a telephone conference with the parties on
March 15, 2012, at which it requested their positions on how to
proceed in light of Union Leader’s belated FOIA request.
At the
conference, the parties agreed that they would file a joint
stipulation on that matter no later than March 21, 2012, or the
court would issue an order regarding the disposition of this
case.
The parties did not file any stipulation on or before
March 21.
Instead, Union Leader filed a motion to amend its
complaint that day, seeking to add allegations regarding its
formal FOIA request to ICE, including that (1) ICE responded to
that request by producing certain documents, albeit with the
relevant information (i.e., the names and addresses of the six
individuals) redacted, and (2) Union Leader administratively
appealed those redactions.
Because no stipulation was filed, in
accordance with the parties’ agreement at the March 15 telephone
conference, the court issues this order granting (without
prejudice) ICE’s motion to dismiss and denying Union Leader’s
motion to amend.
FOIA “vests jurisdiction in federal courts to enjoin an
‘agency from withholding agency records and to order the
production of any agency records improperly withheld from the
complainant.’”
Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 139 (1980) (citing 5 U.S.C. § 552(a)(4)(B)).
“It cannot be said, however, that an agency improperly withheld
records if the agency did not receive a request for those
records.”
Kottori v. FBI, 784 F. Supp. 2d 83, 85 (D. Mass.
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2011).
To request agency records under FOIA, a party must comply
with the agency’s “published rules stating the time, place, fees
(if any), and procedures to be followed.”
5 U.S.C. § 552(3)(A).
“Where a FOIA request is not made in accordance with the
published regulations, the FOIA claim is subject to dismissal for
failure to exhaust administrative remedies.”
Calhoun v. Dep’t of
Justice, 693 F. Supp. 2d 89, 91 (D.D.C. 2010).
It is undisputed that Union Leader, prior to filing this
action, failed to make a request in accordance with the published
rules governing FOIA requests to ICE.
Those rules require a
party requesting records to send its request to either ICE’s FOIA
office in Washington, D.C. or the Departmental Disclosure Officer
for ICE’s parent agency, the Department of Homeland Security.
See 6 C.F.R. § 5.3(a).
Rather than requesting records from
either of those sources, Union Leader requested the information
in question from an ICE Public Affairs Officer, first via e-mail,
then by letter.
As of the date this action was filed, then,
Union Leader had failed to exhaust its administrative remedies
and the complaint failed to state a claim upon which relief could
be granted.
See Kottori, 784 F. Supp. 2d at 85; Calhoun, 693 F.
Supp. 2d at 91-92; see also Kessler v. U.S., 899 F. Supp. 644,
645 (D.D.C. 1995) (dismissing FOIA claim where plaintiff “did not
address and mail his FOIA request to the office of the official
who is responsible for control of the records requested”).
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The additional facts pled in the proposed amended complaint
do not remedy this deficiency.
For purposes of exhaustion, it is
not enough that a plaintiff has filed an initial FOIA request and
that the agency denied the request.
Rather, the plaintiff must
also exhaust the right to administratively appeal that denial
before filing suit.
See Oglesby v. U.S. Dep’t of Army, 920 F.2d
57, 61-62 (D.C. Cir. 1990) (“Courts have consistently confirmed
that the FOIA requires exhaustion of [the statutory] appeal
process before an individual may seek relief in the courts.”).
As noted, the proposed amendments allege that ICE withheld
the information Union Leader sought and that Union Leader filed
an administrative appeal with respect to that information.
But
the right to appeal is not exhausted merely by filing an appeal;
it is only exhausted when the agency either (a) issues a final
decision denying the appeal, or (b) fails to act on the appeal
within twenty days, as mandated by 5 U.S.C. §§ 552(a)(6)(A)(ii) &
(C)(i).
See, e.g., Taitz v. Obama, 707 F. Supp. 2d 1, 4-5
(D.D.C. 2010); see also Oglesby, 920 F.2d at 64 (“[C]ongress
intended that the administrative route be pursued to its end.
It
did not mean for the court to take over the agency's decisionmaking role in midstream or to interrupt the agency's appeal
process when the agency has already invested time, resources, and
expertise into the effort of responding.”).
Neither is the case
here--Union Leader does not allege that ICE has denied its
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appeal, and that appeal was taken on March 14, 2012, so ICE still
has until April 3, 2012, to issue a final decision on the
appeal.1
Union Leader’s proposed amendment would therefore be
futile, and its motion to amend is denied.
See Abraham v. Woods
Hole Oceanographic Inst., 553 F.3d 114, 117 (1st Cir. 2009) (“If
the proposed amendment would be futile because, as thus amended,
the complaint still fails to state a claim, the district court
acts within its discretion in denying the motion to amend.”).
This court has no desire to elevate bureaucratic form over
substance.
The exhaustion requirement serves important public
interests.
It provides the agency with “an opportunity to
exercise its discretion and expertise on the matter and to make a
factual record to support its decision.”
Oglesby, 920 F.2d at 61
(citing McKart v. United States, 395 U.S. 185, 194 (1969)).
It
also allows agency supervisors an opportunity to correct mistaken
denials of meritorious FOIA requests, thereby obviating the need
for judicial review by the courts.
1
Id.
Those interests would
Union Leader has argued that because 6 C.F.R. § 5.9(a)(3),
which governs appeals of adverse FOIA decisions by ICE, provides
that “[a]n appeal ordinarily will not be acted on if the request
becomes a matter of FOIA litigation,” it has constructively
exhausted its administrative remedies. But “‘ordinarily’ does
not mean ‘always.’” Penalbert-Rosa v. Fortuno-Burset, 631 F.3d
592, 595 (1st Cir. 2011); see also Alison v. United States, 344
U.S. 167, 170 (1952) (same). There is still a chance that ICE
will grant Union Leader’s appeal, and this court “cannot leapfrog
[ICE’s] appellate process by speculating as to how the agency
will amend [or implement] its decision-making process . . . .”
Jarvik v. CIA, 495 F. Supp. 2d 67, 72 (D.D.C. 2007).
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not be served by permitting Union Leader to forego the agency
appeal process in this case.
As the Oglesby court explained,
“[i]f there is to be any uniformity in FOIA interpretations
within a given agency, and if the agencies are to have an
opportunity to revise their responses . . . , such uniformity can
best be afforded through the administrative appeal process.”
at 65.
Id.
Union Leader must allow that appeal process to run its
course before resorting to the courts.
For the reasons set forth above, ICE’s motion to dismiss2 is
GRANTED, Union Leader’s motion to amend3 is DENIED, and the suit
is dismissed without prejudice.
Union Leader’s motion for
preliminary injunction and request for expedited hearing4 is
DENIED as moot.
The clerk shall enter judgment accordingly and
close the case.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
March 23, 2012
Gregory V. Sullivan, Esq.
Gretchen Leah Witt, Esq.
2
Document no. 8.
3
Document no. 12.
4
Document no. 4.
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