VENKATARAM v. OFFICE OF INFORMATION POLICY et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/9/2012. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATARAJAN VENKATARAM,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 09-6520 (JBS/AMD)
v.
OFFICE OF INFORMATION POLICY,
et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, Chief Judge:
This matter is before the Court on Plaintiff’s motion for
an order to show cause why Defendant Office of Information Policy
should not be held in contempt [Docket Item 28] and Plaintiff’s
subsequently filed motion to hold Defendant in contempt [Docket
Item 36].
THE COURT FINDS AS FOLLOWS:
1. This matter involves Plaintiff’s request, pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for certain
records related to a criminal investigation.
Plaintiff fully
exhausted his request for such records before the Department of
Justice; his request was denied by the agency without conducting
a search for responsive documents based on certain categorical
exceptions.
May 25, 2011 Opinion at *3-4 [Docket Item 18].
2. Plaintiff then brought this action seeking judicial
review of Defendant’s denial of his request.
Defendant moved for
summary judgment based on the claimed categorical exceptions; the
Court denied, in part, Defendant’s motion on May 25, 2011.
Id.
On October 13, 2011, the Court remanded the matter to the
Department of Justice so that a search for responsive documents
could be conducted and a particularized analysis of the documents
could be produced.
3.
[Docket Items 26 & 27.]
On May 30, 2012, Plaintiff then filed his instant motion
for an order to show cause, stating that he had received no
response to the Court’s order and no indication that the
particularized analysis, commonly known as a Vaughn Index, was
forthcoming.
Defendant initially responded to Plaintiff’s motion
with the declaration that Defendant, in fact, complied with the
Court’s order and had provided 90 pages of records to Plaintiff,
along with a particularized analysis of the information withheld.
Kornmeier Decl. ¶ 5 [Docket Item 30].
On July 16, 2012, AUSA
Ruymann advised that Mr. Kornheiser’s earlier declaration was
incomplete because additional records needed to be searched, and
Defendant sought more time to respond as these documents were to
be examined.
[Docket Item 34.]
Defendant notified the Court
that its previous representations were in error, and that, in
fact, a comprehensive search for records responsive to
Plaintiff’s FOIA request had not yet been completed.
Id.
On
July 23, 2012, AUSA Ruymann’s letter set out a proposed schedule
under which the search would be completed.
[Docket Item 35.]
Namely, Defendant disclosed that the additional documents were
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located by the U.S. Attorney’s Office in the Southern District of
New York and that they would have to be searched and examined for
disclosability in response to this Court’s Orders.
There was no
explanation given for the reasons for Mr. Kornheiser’s erroneous
certification nor for why these SDNY documents were not
identified sooner in response to Plaintiff’s FOIA request and
this Court’s Order of October 13, 2011.
4.
Defendant represents that a comprehensive search for
responsive documents in the Southern District of New York will
take an estimated 20 hours of search time, which would then be
reviewed by the EOUSA in Washington, and could be completed by
November 1, 2012.
Defendant further explained that Plaintiff
will be required to pre-pay the anticipated cost of the search
before Defendant will conduct the search for records responsive
to Plaintiff’s request.
5.
Plaintiff then filed the instant motion for civil
contempt.
[Docket Item 36.]
Plaintiff objects to both the
requirement that he pay the cost of the search and the proposed
timeline, suggesting that an additional delay of several months
is unwarranted and demonstrates bad faith on the part of
Defendant.
6.
The Court will deny Plaintiff’s motion for contempt,
finding the proposed timeline and fee schedule to be in
accordance with relevant FOIA statute and regulations, and seeing
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no evidence of bad faith on the part of Defendant.
7.
The FOIA statute, 5 U.S.C. § 522(a)(4)(A)(ii)(III),
permits the agency conducting a search to charge “reasonable
standard charges for document search and duplication” according
to published agency regulations.
The Department of Justice has
promulgated regulations specifying the costs of searches based on
the qualifications of the personnel needed to conduct the search.
See 28 C.F.R. § 16.11(c)(1)(ii).
The estimated cost of
conducting a search for documents responsive to Plaintiff’s
request exceeds $250 under this fee schedule.1
8.
When the estimated cost of a search exceeds $250, the
agency may require payment of the estimated fee before beginning
the search.
16.11(i)(2).
See 5 U.S.C. § 522(a)(4)(A)(v); 28 C.F.R. §
Plaintiff has not, apparently, requested a waiver
of fees on the grounds provided in 28 C.F.R. § 16.11(k)(1).2
1
The fee schedule sets out three separate fee rates,
depending on the level of expertise required to conduct the
search. Searches conducted by clerical staff are charged at a
rate of $4.00 for each fifteen minutes of search; searches
conducted by professional personnel are charged at a rate of
$7.00 per fifteen minutes; searches conducted by managerial
personnel are charged at $10.25 per fifteen minutes. 28 C.F.R. §
16.11(c)(1)(ii). The record in this case does not reflect
Defendant’s estimate of what rate(s) Plaintiff’s record search
will be charged. However, the Court notes that even if it is
charged entirely at $16.00 per hour for 18 hours of search time
(Defendant states that it does not charge for the first two hours
of search time), the cost of Plaintiff’s search will be no less
than $288.00.
2
The only grounds for waiver of fees under FOIA requires
that the requester demonstrate to the agency that disclosure of
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Therefore, the Court sees no reason why Plaintiff should not be
required to comply with agency regulations and pre-pay the
estimated search fees before the Department of Justice undertakes
a time-consuming search.
9.
As to the length of the delay, the Court is concerned
about Mr. Kornheiser’s erroneous certification but finds no
evidence of bad-faith delay or that the amount of time proposed
is unreasonable for a comprehensive search for records responsive
to Plaintiff’s request.
The Court trusts that Defendant has
located the potentially responsive documents and will proceed
with all due haste when the Plaintiff has paid his search fee.
Plaintiff points to no statute or regulation, and the Court finds
none in its own research, that would suggest that Defendant’s
proposed schedule is unusually or unacceptably slow.
The Court
herein sets a firm date for Defendant’s compliance, which will be
45 days after the date Plaintiff tenders his search fee payment.
10.
Therefore, for the reasons stated above, the Court will
deny Plaintiff’s motion for contempt.
Defendant’s revised
response to Plaintiff’s FOIA request, including an updated
Vaughn index will be due to Plaintiff on the date 45 days after
the requested information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and that it is not
primarily in the commercial interest of Plaintiff. To the
Court’s knowledge, Plaintiff has not requested a fee waiver in
this action.
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Plaintiff has tendered full pre-payment of the estimated search
fee, and Defendant’s revised response to Plaintiff’s pending
motion for an order to show cause will be due seven (7) days
thereafter.
The Court reiterates that these deadlines are
conditional upon Plaintiff pre-paying Defendant the estimated
cost of search in a timely manner.
The accompanying Order will
be entered.
August 9, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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