Lapp v. The Federal Bureau Of Investigation

Filing 34

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT: It is ORDERED that Defendant's 26 Motion for Summary Judgment is GRANTED; Plaintiff's 28 Mot ion for Summary Judgment is DENIED; Plaintiff's Complaint as it pertains to information sought in Requests 1 and 2 is DISMISSED AS MOOT; the remainder of Plaintiff's Complaint is DISMISSED WITH PREJUDICE. The Court CANCELS the Status Conference scheduled for 2/24/16. The Clerk is directed to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 2/23/16. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ERIC M. LAPP,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:14CV160
(Judge Keeley)

THE FEDERAL BUREAU OF INVESTIGATION,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT NO. 28]
Pending

before

the

Court

are

cross

motions

for

summary

judgment filed by the parties. The first is the motion for summary
judgment (dkt. no. 26), filed by the defendant, the Federal Bureau
of

Investigation

(“FBI”).

The

second

the

motion

for

summary

judgment (dkt. no. 28), filed by the plaintiff, Eric M. Lapp
(“Lapp”). For the reasons that follow, the Court

GRANTS

the

defendant’s motion and DENIES the plaintiff’s motion.
BACKGROUND
I.

Factual Background
The plaintiff, Lapp, is the owner of Fingerprint Solutions,

Inc.

(“FSI”)

(dkt.

no.

1

at

1).

FSI

has

“expertise

in

the

acquiring, storage, and submission of fingerprints to authorized
recipients.” Id. Lapp’s complaint alleges that various Public
Housing Agencies (“PHA”) have informed the FBI that they desire to
submit fingerprints to the FBI’s Criminal Justice Information

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
Services Division (”CJIS”) for “noncriminal justice purposes.” Id.
The PHAs seek to utilize the CJIS system to cross-reference
fingerprints with the FBI’s criminal history database in order to
“assist them in their applicant screening, lease enforcement and
eviction responsibilities.” Id.

at 2.

Lapp filed a Freedom of Information Act (“FOIA”) request with
the FBI on March 23, 2013, seeking a variety of information
relating to the PHAs and their fingerprint submissions to the FBI’s
CJIS. Id. Specifically, Lapp’s request sought:
1.

2.
3.

4.

a complete listing of addresses of public housing
agencies/authorities (PHA) that have been approved
to submit fingerprints to the FBI's Criminal
Justice Information Services (CJIS) Division for
applicant
screening,
lease
enforcement,
and
eviction purposes;
the addresses of all PHAs that have requested
[Originating Agency Identifiers1] pursuant to
legislative or regulatory authority;
if reasonably available, the number of fingerprint
submissions that were provided to the CJIS Division
by each authorized PHA during Calendar Years 2011
and 2012;
if reasonably available, the address of the

1

The parties identify these as “ORIs.” ORIs are “a unique nine
character identifier developed by the FBI National Crime
Information Center (“NCIC”)and assigned to qualified agencies to
access CJIS systems. This code is used by agencies to track NCIC
submissions and for billing purposes. An ORI is akin to a User ID;
there is no separate PIN or password.” (Dkt. No. 21 at 3).
2

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]

5.

channeling agency2 (public or private) used by each
PHA; and
if reasonably available and not a national security
issue, the specific ORI that has been issued to
each PHA.

(Dkt. No. 1-1 at 1-2) (each of the five categories requested are
hereinafter referred to as “Request #_”). Lapp contends that the
information he seeks would “permit coordination with those public
housing

agencies

fingerprints

to

that
the

have

FBI’s

expressed
CJIS

a

Division

desire
for

to

submit

comparison

to

fingerprints associated with the criminal history database” (dkt.
no. 1 at 1). Essentially, Lapp’s FOIA request is a commercial data
mining endeavor.3
2

The FBI provides the following definition of an FBI-approved
channeler:
An FBI-approved Channeler is a contractor that serves as
the conduit for submitting fingerprints to the FBI and
receiving the FBI criminal history record information
(CHRI), on behalf of an Authorized Recipient (AR), for
authorized noncriminal justice purposes.
See
https://www.fbi.gov/about-us/cjis/cc/current-initiatives/channele
r-faqs.
3

This is clear from Lapp’s claim that the delay in receiving
the requested information has adversely impacted his business.
Although requests under the FOIA are not forbidden simply because
they are for commercial purposes, the FOIA’s purpose is to
encourage public disclosure of information so citizens may
understand what their government is doing.” Office of the Capitol
Collateral Counsel v. Dept. of Justice, 331 F.3d 799 (11th Cir.
2003).
3

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
The FBI denied Lapp’s request by letter dated May 9, 2013,
noting that the requested records were “not searchable in [their]
indices” (dkt. no. 1-2 at 2). Moreover, the letter explained that
FOIA does not require the FBI to “answer inquiries, create records,
conduct research, or draw conclusions concerning queried data.” Id.
at 1. Instead, “FOIA merely requires agencies to provide access to
reasonably described, nonexempt records.” Id. Finally, the letter
informed Lapp that he could appeal the decision to the Office of
Information Policy (“OIP”) within sixty days Id. at 2. Lapp filed
a letter of appeal, which was received by the OIP on June 18, 2013
(dkt. no. 1-3; dkt. no. 1-4).
By letter dated March 19, 2014, the OIP denied Lapp’s appeal
after a “full review” (dkt. no. 1-5). The denial affirmed the FBI’s
initial denial and reiterated that the FOIA does not require
agencies to answer questions or create records. Id. at 1. It
concluded by informing Lapp that he could file a lawsuit in federal
court or, alternatively, engage in mediation services provided by
the Office of Governmental Information Services (“OGIS”).4 Lapp
chose to pursue mediation, emailing his formal request to the OGIS
4

The denial letter notes that mediation is “non-exclusive
alternative to litigation” that “does not affect [one’s] right to
pursue litigation.” (Dkt. No. 1-5 at 1).
4

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
on June 6, 2014 (dkt. no. 1-6). The OGIS responded to Lapp’s
request by seeking additional information (dkt. no. 1-7), which
Lapp provided on June 11, 2014 (dkt. no. 1-8).5 On August 14, 2014,
Lapp emailed the OGIS inquiring as to the status of his mediation
(dkt. no. 1-10). The OGIS responded via email dated August 20,
2014, which simply notes that a facilitator at OGIS had been
assigned to Lapp’s case, and that she was proceeding to work on his
request

(dkt.

no.

1-11).

The

parties

provided

no

further

correspondence, but on November 18, 2014, the FBI provided Lapp
with 119 pages of responsive documents (dkt. no. 25 at 3; dkt. no.
28 at 10).
II.

Procedural Background
Lapp filed his complaint with this Court on September 1, 2014

(dkt. no. 1). The complaint seeks: (1) an order by the Court
requiring the FBI to provide the requested documents; (2) expedited
proceedings pursuant to 28 U.S.C. § 1657; (3) costs and attorney’s
fees pursuant to 5 U.S.C. § 522(a)(4)(E); and (4) other just and
proper relief, including “reasonable business losses.” Id. at 3. In
its answer, the FBI generally denies Lapp’s allegations and states

5

Lapp also attached a discovery request titled “Request for
FBI Admissions.” (Dkt. No. 1-9).
5

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
that the documents speak for themselves (dkt. no. 10).
On

January

13,

2015,

the

FBI

filed

its

motion

to

stay

discovery and for a continuance of this Court’s first order and
notice regarding discovery and scheduling (dkt. no. 12). According
to the FBI, this Freedom of Information Act case should be decided
by way of dispositive motions, thus making discovery unnecessary.
Moreover, the FBI asserted in its motion that it was “diligently
collecting information and drafting affidavits to submit to this
Court in a Motion for Summary Judgment.” Id. at 1. The Court
granted the motion on January 21, 2015, to the extent it sought a
stay of any discovery disclosures (dkt. no. 14), and also set a
scheduling conference for March 4, 2015.
At the scheduling conference, the Court ordered the FBI to
file its declaration on or before March 20, 2015, and scheduled a
follow up status conference for March 26, 2015 (dkt. no. 18).
Pursuant to that order, the FBI timely filed the declaration of
David M. Hardy (“Hardy”), Section Chief of the Record/Information
Dissemination Section, Records Management Division (“RIDS/RMD”),
for its Winchester, Virginia, facility (dkt. no. 21). The Court
followed with a status conference on March 27, 2015, during which
it ordered the parties to file any additional declarations by April
6

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
24, 2015, and also furnished a briefing schedule for any motions
for summary judgment (dkt. no. 24).
In accordance with the Court’s order, the FBI filed the
affidavit of J. Kevin Grant (“Grant”), Chief, Administrative Unit,
Resource

Management

Section,

CJIS

Division

of

the

FBI,

in

Clarksburg, West Virginia (dkt. no. 25). In addition, both parties
filed their motions for summary judgment on May 29, 2015 (dkt. nos.
26 and 28). Both motions are fully briefed and ripe for review.
LEGAL STANDARD
Summary
documents,

judgment

is

electronically

appropriate
stored

where

the

information,

“depositions,
affidavits

or

declarations, stipulations ..., admissions, interrogatory answers,
or other materials” show that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A). When ruling on a
motion for summary judgment, the Court reviews all the evidence “in
the light most favorable” to the nonmoving party. Providence Square
Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).
The Court must avoid weighing the evidence or determining the truth
and limit its inquiry solely to a determination of whether genuine
issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477
7

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
U.S. 242, 249 (1986).
To survive a motion for summary judgment in a FOIA action,
“the defending agency must prove that each document that falls
within

the

class

requested

either

has

been

produced,

is

unidentifiable, or is wholly exempt from the Act's inspection
requirements.” Goland v. Central Intelligence Agency, 607 F.2d 339,
352 (D.C.Cir.

1978); Students Against Genocide v. Department of

State, 257 F.3d 828, 833 (D.C.Cir. 2001) (quoting Goland). “A
defendant agency has the burden of establishing the adequacy of its
search and that any identifiable document has either been produced
or is subject to withholding under an exemption.” Havemann v.
Colvin, 2015 WL 7423196, at *1 (4th Cir. 2015).
The agency may meet its burden through the production of
affidavits

describing

the

manner

requested information search. See

in
id.

which

it

undertook

the

In order to invoke an

exception, however, the agency’s affidavits “must be relatively
detailed and nonconclusory.” Id. (citing Simmons v. United States
Dep't of Justice, 796 F.2d 709, 711–12 (4th Cir. 1986)). The court
may presume “the credibility of such affidavits, so long as it has
no reason to question the good faith of the agency.” Id. (citing
Bowers v. United States Dep't of Justice, 930 F.2d 350, 357 (4th
8

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
Cir. 1991)). In order to overcome the presumption, “a requestor
must demonstrate a material issue by producing evidence, through
affidavits or other appropriate means, contradicting the adequacy
of the search or suggesting bad faith.” Id. (citing

Miller v.

United States Dep't of State, 779 F.2d 1378, 1384 (8th Cir. 1985)).
APPLICABLE LAW
Under

the

Freedom

of

Information

Act

(“FOIA”),

federal

agencies “shall make [agency] records promptly available to any
person,” so long as the person’s request “(i) reasonably describes
such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be
followed . . . .” 5 U.S.C. § 522(a)(3)(A). Courts have long held
that “‘FOIA reflects a general philosophy of full agency disclosure
unless information is exempted under clearly delineated statutory
language.’” Id.

(quoting Dep’t of Defense v. FLRA, 510 U.S. 487,

494 (1994)). Notably, the FOIA does not require an agency to create
or retain any document; rather, it only “‘obligates them to provide
access to those which it in fact has created and retained.’”
Turner

v.

U.S.,

736

F.3d

274,

283

(4th

Cir.

2013)

(quoting

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136, 152 (1980)).
9

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
There are, however, certain enumerated exemptions from the
FOIA’s mandate to disclose. See 5 U.S.C. § 522(b)(1)-(9); New
Hampshire Right to Life v. Dep’t of Health and Human Svcs., 13 S.
Ct. 383, 383 (2015). The Court must decide as a matter of law
whether a document falls within one of the exemptions. Wickwire
Gavin, P.C. v. U.S. Postal Service, 356 F.3d 588, 591 (4th Cir.
2004). In addition, courts must construe the FOIA’s exemptions
narrowly and place the burden on the agency to show that its
exemptions are proper. Id. (citing 5 U.S.C. § 552(a)(4)(B); J.P.
Stevens Co. v. Perry, 710 F.2d 136, 139 (4th Cir. 1983)).
ANALYSIS
The FBI assets that it is entitled to summary judgment because
no material facts are in dispute and because it has demonstrated
that each document falling within Lapp’s request either has been
produced, is unidentifiable, or is exempt from the FOIA. Dkt. No.
27 at 3 (citing Students Against Genocide v. Dept. of State, 257
F.3d 828, 833 (D.C. Cir. 2001) for summary judgment standard).
Specifically, of the five categories of information Lapp has
requested, the FBI contends that it has fully responded to Requests
#1 and #2, and has properly withheld the ORIs sought in Request #5
as exempt under 5 U.S.C. § 522(b)(7)(E). In addition, the FBI
10

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
claims that documents responsive to Requests #3 and #4 do not
exist, and the FOIA does not require it to create such documents.
Thus, according to the FBI, it has fulfilled Lapp’s FOIA request to
the fullest extent required by law and his complaint is now moot.
Lapp’s motion, while conceding that Requests #1 and #2 have
been satisfied, contends that he is entitled to summary judgment on
three matters. First, he claims that the FBI has erroneously
classified the ORIs sought in Request #5 as exempt under 5 U.S.C.
§ 522(b)(7)(E). Next, Lapp contends that the FBI has improperly
withheld Request #3, seeking the address of the specific channeling
agency each PHA has used, and Request #4, seeking the number of
fingerprints each PHA has submitted to CJIS during 2011 and 2012.
Finally, Lapp’s motion asserts that he is entitled to recover
reasonable attorney fees and litigation costs against the United
States pursuant to 5 U.S.C. § 522(a)(4)(E)(ii).
As there is no dispute that Requests #1 and #2 have been fully
satisfied, the Court need not address those requests further. The
It must address, however, (1) whether the ORIs sought in Request #5
are exempt from disclosure, (2) whether the FBI has improperly
failed to provide documents responsive to Requests #3 and #4, and
(3) whether Lapp is entitled to attorney fees and litigation costs
11

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
under the FOIA.
I.

The FBI Properly Exempted the ORIs from Disclosure
Under the FOIA, agencies must disclose requested records,

except those that fall within one of nine exemptions outlined in 5
U.S.C. § 552(b). See Milner v. Department of Navy, 562 U.S. 562,
565 (2011). Among those exemptions are:
certain records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records or information
. . . (E) would disclose techniques and procedures for
law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law . . . .
5

U.S.C.

§

552(b)(7)

(hereinafter

referred

to

as

the

“7(E)

exemption”). The declaration of James Hardy clearly explains the
FBI’s basis for exempting the ORIs under the 7(E) exemption:
The records responsive to plaintiffs request contain
information pertaining to access to the CJIS systems.
CJIS is the focal point and central repository for
criminal justice information services. It possesses the
world largest repository of criminal fingerprints and
history records. CJIS provides an array of services that
are a lifeline to law enforcement and cornerstone of
protecting the nation.
. . .
[A]n ORI is a unique nine character identifier and/or
access code developed by the FBI NCIC. ORIs are provided
only to authorized entities to access and/or add data to
CIJS systems, as appropriate in given situations. PHAs
are provided access to CJIS system and are entities
12

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
authorized
to
receive
criminal
history
record
information to fulfill its statutory obligations.
Consequently, each PHA has its own and unique ORI
number. The PHA's specific ORI number allows the PHA
access to CJIS systems, including access to NCIC
criminal history information through its local or state
law enforcement agencies and/or its submission of
applicant fingerprint cards to CJIS.
(Dkt. No. 21 at 9-10).
Thus, according to the FBI, “[d]isclosure of PHA ORIs to the
public could reasonably be expected to risk circumvention of the
law by allowing individuals and/or entities unauthorized access to
CJIS systems and/or NCIC criminal record information.” (Dkt. No. 27
at 8 (citing Hardy Declaration, at ¶ 25; Grant Declaration, at ¶¶
26, 28). Moreover, the FBI asserts that lawbreakers could utilize
this information to access the CJIS systems and obtain non-public
information, and to “potentially add/manipulate data to their
advantage and criminal interests.” Id. (citing Hardy Declaration,
at

¶

25).

Finally,

declarations

that

both

Hardy

“unauthorized

and
access

Grant
to

stated

these

in

CJIS

their

systems

presents privacy concerns, since information in these systems
pertains to individuals nationwide.” Id. (citing Hardy Declaration,
at ¶ 25; Grant Declaration, at ¶ 28).
Lapp, on the other hand, contends that the FBI’s reasons for
exempting

the

ORIs

are

“ludicrous”
13

(dkt.

no.

28

at

23).

He

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
vehemently asserts that “ORIs are not compiled for law enforcement
purposes! How could they be?” Id. Lapp goes on to state that, even
though

an

ORI

is

one

of

the

requirements

to

accessing

CJIS

information, it is but one of “several hurdles.” Id. at 24.
Finally, Lapp states that “[i]t is not reasonable to believe the
criminal element” could utilize the ORI to circumvent the law. Id.
The Court discounts Lapp’s underestimation of the criminal element
and gives deference to the declarations of FBI professionals in
that arena over the bare conclusory assertions of Lapp. See e.g.
Havemann v. Colvin, 2015 WL 7423196, at *1 (4th Cir. 2015) (noting
that the court may presume the credibility of agency declarations
absent any indication of bad faith). Furthermore, the Court is
confounded by Lapp’s assertion that, just because a criminal actor
would have to jump over additional hurdles, the FBI is required to
give them a boost over the first hurdle by releasing the ORIs.6
Other courts are in agreement. For example, in Brown v. F.B.I.
6

Lapp’s motion also provides various circumstances where
“stray ORIs” have been found on the internet or other public
locations. He fails to explain, however, how the imprudent
disclosure by an entity of their own ORI, or “stray” exposures of
other ORIs, somehow obligates the FBI to provide other ORIs through
a FOIA request. This is akin to claiming that, because some social
security numbers can be found in the public arena, the Social
Security Administration must release them all through a FOIA
request.
14

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
the DEA sought to exempt vehicle identification numbers (“VINs”)
from a FOIA request. 873 F.Supp.2d 388 (D.D.C. 2012). There, the
court held that “[p]ublic disclosure of VINs could allow clever
criminals to circumvent the law by determining which vehicles are
used in DEA's law enforcement operations.” Id. at 403. The ORIs in
this case, as the VINs in Brown, are compiled by their respective
agencies for law enforcement purposes. The VINs are collected to
denote which vehicles are used by the DEA in law enforcement
operations; the ORIs are compiled to provide authorized users
access to criminal databases at the FBI.
Based on the foregoing, the Court FINDS that the FBI properly
exempted the ORIs under the 7(E) exemption.7 Accordingly, it GRANTS
7

The Court must note that, although the FBI did not explicitly
rely on exemption of the ORIs under 5 U.S.C. § 552(b)(7)(C) (the
“7(C) exemption”), it did make reference to the privacy concerns
implicated by disclosure of the ORIs. The 7(C) exemption covers
“records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement
records or information . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” "[T]he
only public interest relevant for purposes of Exemption 7(C) is one
that focuses on the citizens' right to be informed about what their
government is up to." Brown, 873 F.Supp.2d at 403 (quotations
omitted). "Even if a particular privacy interest is minor,
nondisclosure is justified where ... the public interest in
disclosure is virtually nonexistent.” Id. The Court cannot fathom
how production of the ORIs would add any value to Lapp’s or any
other person’s understanding about what their government is up to.
Accordingly, the Court would also find that the FBI would be
15

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
the FBI’s motion for summary judgment and DENIES Lapp’s motion for
summary judgment as they pertain to the disclosure of the ORIs.
II.

Documents Responsive to Requests #3 and #4 Do Not Exist and
the FBI is not Required to Create Them
In Requests #3 and #4, Lapp seeks, respectively, the number of

fingerprint requests each PHA submitted to CJIS in 2011 and 2012,
and which channeling agency each PHA utilized.8 The FBI asserts
that there are no documents containing this information (dkt. no.
29 at 4; dkt no. 27 at 9). In Hardy’s declaration, he states that
this information “is not readily available to CJIS and it cannot be
rendered with a few keystrokes” (dkt. no. 21 at 11). He goes on,
explaining

that,

“[i]n

order

to

provide

this

information

to

plaintiff, CJIS would have to contact multiple sources to retrieve
the information and would then have to create a special report to
capture the specific information requested.” Id.
Grant’s declaration further explains the non-existence of

warranted to
exemption.

exempt

disclosure

8

of

the

ORIs

under

the

7(C)

Although Lapp specifically requests “the address of the
channeling agency (public or private) used by each PHA,” he admits
that the FBI supplies a public list of the channeling agencies,
including links to each of their websites (dkt. no. 28 at 13-14).
Thus, it appears evident that Lapp seeks a listing of which
channeler(s) each PHA utilizes.
16

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
documents listing the channeling agencies each PHA used:
This is statistical information that is not already
compiled with CJIS. Neither the CJIS Division, nor the
FBI as a whole, maintains a document which contains this
information, and agencies are not required to create
records under the FOIA. . . . In order to compile the
requested information in the manner Plaintiff has
requested, the FBI would be required to conduct inquiries
(including many outside the FBI), conduct research, and
compile that information to create a new document. . . .
As part of its application for an ORI, a PHA may, but
need not submit the name of a channeling agent that PHA
intends to use. These application are maintained
electronically in the CRS, however, they are not readily
searchable.”
(Dkt. No. 25 at 4-5). Grant’s declaration also discusses the nonexistence

of

documents

containing

the

number

of

fingerprint

submissions by each PHA:
The ORI is assigned to qualified agencies to access the
CJIS systems and is utilized for billing purposes. The
CJIS Division collects user fees for some fingerprint
submissions by a civil agency such as a PHA. Typically,
these fees are collected from the channeling entity,
which could be either a state government or a private
business, and not from the PHA itself. . . . Even if the
FBI were required to create a document using the user fee
information, which it is not, an employee would have to
audit the user fees per PHA and per channeling agent,
mathematically manipulate that information, and create a
new statistical report that does not exist in the CJS
Division, nor in the FBI’s CRS.
Id. at 6.
Lapp disputes the FBI’s claims. First, he concludes that the
“channeler’s identity (per PHA) should be readily available,” and
17

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
that “it is beyond belief” that the FBI would not know which
channeler each PHA is using. Next, while admitting that, “whether
the requested numbers [of fingerprint submissions] are ‘readily
available to CJIS’ is totally within the FBI’s knowledge,” Lapp
simultaneously expresses doubt, and insinuates that lack of this
information would “approach malfeasance” and breach of “fiduciary
duties” (dkt. no. 28 at 27).9
It has long been held that the FOIA “does not obligate
agencies to create or retain documents; it only obligates them to
provide access to those which it in fact has created and retained.”
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S.
136, 152 (1980) (citing N.L.R.B. v. Sears, Roebuck & Co., 421 U.S.
132, 161-62 (1975)); see also Weisberg v. U.S. Dept. of Justice,
705 F.2d 1344, 1363 (D.C. Cir. 1983) (“The Supreme Court, however,
has made clear that FOIA puts an agency under no obligation to
create documents. . . .”). Moreover, the FOIA does not require
agencies “to dig out all the information that might exist, in
9

In his reply brief to the FBI’s response to his motion for
summary judgment, Lapp also admits that he is “without absolute
knowledge that the identity of the channeling agency used by each
approved PHA is maintained in a database under the FBI’s control,
but Defendant has not provided convincing evidence that it does
not.” The FBI, however, has produced presumptively credible
evidence—the declarations of Hardy and Grant.
18

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
whatever form or place it might be found, and to create a document
that answers plaintiff's question.” Frank v. U.S. Dept. of Justice,
941 F.Supp. 4, 5 (D.D.C.,1996); see also Amnesty Int’l v. CIA, 2008
WL

2519908

at

*12-13

(S.D.N.Y.

June

19,

2008)

(noting

that

compiling a list and searching for entries on that list was
essentially

answering

the

requestor’s

questions

instead

of

providing responsive documents). Nor does it require agencies to
“answer questions disguised as a FOIA request.” Hudgins v. IRS, 620
F.Supp. 19, 21 (D.D.C. 1985).
Lapp counters, stating that “[c]ourts have ruled that agencies
may be required to perform relatively simple computer searches to
locate requested records, or for the agencies to demonstrate why
such searches are unreasonable in a given case.” In support of this
contention, he cites one case, Thompson Publ’g Group, Inc. v.
Health Care Fin. Admin., 1994 WL 116141, at *1 (D.D.C. Mar. 15,
1994). This case actually provides little support for Lapp’s
contentions.

Because

the

Thompson

court

ultimately

ruled

the

records there were properly exempted from disclosure, it is only in
dicta that it stated the FOIA “require[s] [agencies] to conduct

19

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
relatively simple computer searches . . . .”10 Id. at *2. Notably,
the

Thompson

court

tempered

even

that

statement:

“This

acknowledgement that an agency is required to conduct relatively
simple computer searches is limited to retrieval of parts of
existing records and does not require an agency to conduct analyses
of existing records.” Id. (emphasis added).
Based on the declarations of Hardy and Grant, the FBI would be
required to “dig out” the answer to Lapp’s questions regarding the
channelers used and number of fingerprint submissions from a
variety of locations, as well as requiring them to research outside
the FBI. Moreover, it would require them to perform calculations
relating

to

the

number

of

fingerprint

submissions

based

on

accounting data inside and outside the FBI. This is beyond what the
FOIA requires. Lapp does not merely seek “documents” prepared or
retained by the FBI; he seeks “answer[s] [to] questions disguised
as a FOIA request.”11 Hudgins, 620 F.Supp. at 21.
10

Of course, the FBI did just that anyway; it expanded its
search after a request from RIDS/RMD, which is what lead to the
responsive documents eventually forwarded to Lapp.
11

Indeed, Lapp persists throughout his filings in equating
“information” with “documents,” in that, according to him, if the
information exists in some form or location that the FBI could
access, they must sort it, compile it, and disclose it to him in
some newly created form. This is beyond the scope of the FOIA. See
20

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
As discussed above, the Court may, and in this case does,
presume that both Hardy’s and Grant’s declarations are credible,
and notes that it has no reason to question the good faith of the
FBI. See Havemann, 2015 WL 7423196, at *1. Although Lapp could
overcome

that

presumption

“by

producing

evidence,

through

affidavits or other appropriate means, contradicting the adequacy
of the search or suggesting bad faith,” he has failed to do so,
instead

making

presumptions

and

conclusory

allegations.

Id.

(emphasis added).
As a consequence, the Court GRANTS the FBI’s motion and DENIES
Lapp’s motion, insofar as it pertains to Requests #3 and #4.
III. Lapp is not Entitled to Monetary
Attorney Fees and Litigation Costs

Damages

or

Reasonable

The FBI seeks summary judgment on Lapp’s claims for monetary
relief. First, it claims that Lapp is not entitled to damages for
“reasonable business losses” under the FOIA (dkt. no. 1 at 3).
Lapp’s response concedes that he has “found no cases to support
monetary relief except for attorney fees and court costs” (dkt. no.
30 at 20). Instead, Lapp asks this Court to exercise its inherent
powers to grant his prayer for monetary relief.

e.g.

Frank, 941 F.Supp. at 5.
21

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
Courts have consistently held that relief under the FOIA is
limited to injunctive relief and there is no provision for the
award of monetary damages.
Dept.

of

Agriculture,

See e.g. Cornucopia Institute v. U.S.

560

F.3d

(“Plaintiffs are not entitled to

673,

675

(7th

Cir.

2009)

monetary damages for violations

of FOIA because 5 U.S.C. § 552(a)(4)(B) authorizes only injunctive
relief.”); Vasquez v. Miles, 2002 WL 31688941, at *1 (5th Cir.
2002) (noting that money damages are unavailable under the FOIA);
Thompson v. Walbran, 990 F.2d 403, 404 (8th Cir. 1993) (same);
Cooper v. Meese, 1989 WL 25765, at *1 (6th Cir. 1989) (“An award of
damages is not authorized for an alleged violation of his Freedom
of Information Act under 5 U.S.C. § 552.”). This Court declines to
stray from such clear precedent, and accordingly, CONCLUDES that
Lapp is not entitled to monetary damages under the FOIA. It
therefore GRANTS the FBI’s motion for summary judgment insofar as
it pertains to such damages.
The FBI also seeks summary judgment on Lapp’s claim for
reasonable attorney fees and litigation costs, claiming that he
cannot “substantially prevail” within the meaning of 5 U.S.C. §
552(a)(4)(E)(ii). Lapp’s entire response to this particular issue
is found, not in the analysis section of his response, but in the
22

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
conclusion section, wherein he states:
[He] disagrees. Defendant refused to release any
responsive information until after Plaintiff had
exhausted his administrative remedies and had filed the
instant lawsuit. Moreover, there is additional responsive
data that has been unjustifiably withheld.
(Dkt. No. 30 at 20). Thus, Lapp makes little effort to refute any
of the FBI’s legal arguments on this issue.
Subsection (a)(4)(E) of the FOIA provides a mechanism for a
requestor to recover reasonable attorney fees and litigation costs
under certain circumstances:
(i)

The court may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section
in
which
the
complainant
has
substantially
prevailed.
(ii) For purposes of this subparagraph, a complainant
has substantially prevailed if the complainant has
obtained relief through either-(I) a judicial order, or an enforceable written
agreement or consent decree; or
(II) a voluntary or unilateral change in position
by the agency, if the complainant's claim is
not insubstantial.
5 U.S.C. § 552(a)(4)(E). The Court undertakes a two-part analysis
to determine first, whether the requestor is eligible to receive an
award, and second, whether they are entitled to receive an award.
See Electronic Privacy Information Center v. National Security
Agency, 87 F.Supp.3d 223, 227 (D.D.C. 2015) (noting that the D.C.
23

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
Circuit has construed the statute to require the two-prong test and
collecting cases).
The eligibility prong requires the requestor to show that they
“substantially prevailed” by getting the relief they sought through
“(I) a judicial order, or an enforceable written agreement or
consent decree; or (II) a voluntary or unilateral change in
position

by

the

agency,

if

the

complainant's

claim

is

not

insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Here, Lapp has not
received relief through a judicial order, or an enforceable written
agreement or consent decree under subsection (I), but he may still
assert that he is eligible under subsection (II).
Lapp, albeit in a footnote, claims that he received his
relief, the 119 pages of responsive documents, as a result of a
voluntary or unilateral change in position by the FBI (dkt. no. 30
at 4, fn. 5). Specifically, Lapp claims that the filing of his
complaint was the catalyst for his relief and that, but for his
filing of that complaint, the FBI would not have released the
responsive documents. Thus, under the catalyst theory,12 the FBI’s

12

The catalyst theory held that “plaintiffs were eligible for
a fee award if the lawsuit substantially caused the agency to
release the requested records,” thereby satisfying subsection (II).
Davis v. U.S. Dept. of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010).
24

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
release of the responsive documents as a result of Lapp’s lawsuit
would entitle him to attorney fees and litigation costs under
subsection (II). See Davis v. U.S. Dept. of Justice, 610 F.3d 750,
752 (D.C. Cir. 2010) (noting that, although the United States
Supreme Court “rejected the catalyst theory in Buckhannon Board &
Care Home, Inc. v. W. Va.Dept. of Health & Human Resources, 532
U.S. 598 (2001),” Congress’s subsequent 2007 amendments to the FOIA
“establish[ed] that the catalyst theory applied in FOIA cases”).
Unfortunately for Lapp, the evidence in this case belies his
assertions. Grant’s declaration states that CJIS was contacted in
June, 2014, by the OGIS, through a request by RIDS/RMD, as part of
their ongoing mediation efforts (dkt. no. 25 at 3). The ongoing
mediation efforts are further evidenced by the email correspondence
between Lapp and the OGIS facilitator, Christa Lemelin, dated
August 20, 2014, in which she clearly indicates that she is in the
process of handling Lapp’s request for assistance. As part of the
mediation efforts, and after further consultation with persons at
RIDS/RMD familiar with certain documents, CJIS, in September, 2014,
was able to sort through and segregate information into 119
documents responsive to Lapp’s request. These pages were forwarded
to Lapp on November 18, 2014.
25

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
Lapp asserts that the summons served in this suit informed the
FBI that they were required to respond to the complaint by serving
an answer with 60 days or risk default and that, because the FBI
provided Lapp the responsive documents exactly 60 days after
service, this somehow proves that the lawsuit must have been the
catalyst for the release.
The Court disagrees. Notwithstanding Lapp’s confusion between
requiring an answer and providing documents responsive to a FOIA
request, the evidence establishes that efforts by the FBI to locate
and provide responsive documents to Lapp were ongoing prior to the
filing of his suit. Grant’s declaration and correspondence between
the OGIS and Lapp show that the FBI continued efforts, at least as
early as June, 2014, to provide a response to as many of Lapp’s
requests as possible, which it ultimately did.
The Court FINDS that Lapp has failed to meet the first prong
of eligibility, thus, it need not address the second prong of
entitlement. As a consequence, Lapp has not substantially prevailed
under 5 U.S.C. § 552(a)(4)(E)(i)(II), and is, therefore, not
eligible for an award of attorney fees and litigation costs.
Accordingly, the Court GRANTS the FBI’s motion for summary judgment
insofar as it pertains to Lapp’s claim for attorney fees and
26

LAPP V. FEDERAL BUREAU OF INVESTIGATION

1:14cv160

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 26] AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 28]
litigation costs.
SUMMARY OF THE COURT’S RULINGS
In summary, for the reasons discussed, the Court:
1.

DENIES Lapp’s motion for Summary Judgment in its entirety;

2.

GRANTS the FBI’s motion for summary judgment in its entirety;

3.

DISMISSES

as

MOOT

Lapp’s

complaint

as

it

pertains

to

information sought in Requests #1 and #2 of Lapp’s FOIA
request; and
4.

DISMISSES with PREJUDICE the remainder of Lapp’s complaint.
It is so ORDERED.
Finally, as a consequence of its rulings, the Court CANCELS

the status conference in this matter, currently scheduled for
Wednesday, February 24, 2016.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: February 23, 2016
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

27