Biear v. Attorney Gen. U.S.

905 F.3d 151

James S. BIEAR, Appellant

v.ATTORNEY GENERAL UNITED STATES of America; United States Department of Justice

No. 15-3873

United States Court of Appeals, Third Circuit.

Argued: January 17, 2018

Opinion filed: October 1, 2018

Michael R. Yellin [ARGUED], Cole Schotz, 25 Main Street, Court Plaza North, P.O. Box 800, Hackensack, NJ 07601, Counsel for Appellant

David J. Freed, United States Attorney, D. Brian Simpson [ARGUED], Assistant United States Attorney, Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee

Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

OPINION OF THE COURT

FUENTES, Circuit Judge.

James S. Biear, a federal prisoner, seeks information from various federal agencies under the Freedom of Information Act ("FOIA").¹ The Criminal Division of Appellee Department of Justice (the "Criminal Division") and the Federal Bureau of Investigation are among these agencies. Biear requested "[a]ny and all documents and electronic media assembled during any investigation (or review) containing the name James S. Biear (aka J. Steven Biear and James C. Biear), DOB: [REDACTED], SSN: [REDACTED]."²

The Criminal Division replied to Biear’s request by requiring him to certify his identity and to submit additional information regarding the records. Biear completed the certification of his identity, but did not further detail his request. The Criminal Division then denied Biear’s request. Biear appealed to the Office of Information Policy ("OIP"), which affirmed the denial. It concluded that Biear failed to provide sufficient information for the Division to identify the records sought by Biear.

The FBI initially denied Biear’s request because all responsive records were contained in an active investigative file and were, therefore, exempt from disclosure.³ After Biear filed his complaint in the District Court, the FBI reopened and resumed processing Biear’s FOIA request on the ground that the criminal investigation had concluded. The FBI produced some documents to Biear in full, some with redactions, and others were withheld as duplicative or containing exempt information that could not be reasonably segregated from nonexempt information.

The District Court dismissed Biear’s claim regarding his Criminal Division request for lack of subject matter jurisdiction, concluding that he failed to exhaust administrative remedies when he refused to reformulate his request and therefore "perfect" it. The District Court found that Biear’s challenge was moot with regard to the FBI request because the FBI subsequently produced documents. For the following reasons, we conclude that Biear exhausted his administrative remedies with respect to his Criminal Division request and that his challenge to the FBI’s response was not mooted by the FBI’s subsequent production of documents. Thus, we will reverse.

I. Facts

A. Biear’s Requests

Biear is a federal prisoner incarcerated at USP Canaan in Wayne County, Pennsylvania. Biear mailed a series of FOIA requests to eight components of the Department of Justice: the Bureau of Prisons, the Criminal Division, the FBI, the Executive Office for United States Attorneys, the United States Marshals Service, the Civil Division of the Department of Justice, the Tax Division of the Department of Justice, and INTERPOL Washington.

Biear’s requests were mailed on various dates in December 2012 and January 2013 and, with the exclusion of the request to the Bureau of Prisons, sought: "Any and all documents and electronic media assembled during any investigation (or review) containing the name James S. Biear (aka J. Steven Biear and James C. Biear), DOB [REDACTED], SSN: [REDACTED]."⁴

Only Biear’s requests to the Criminal Division and the FBI are at issue here. Biear has not claimed before us that the District Court erred with respect to the other requests.

B. The Criminal Division Request

Biear submitted two separate but identical requests to the Criminal Division. In January 2013, the Criminal Division sent separate responses to Biear regarding each request. In both responses, the Criminal Division sent a letter advising Biear that verification of his identity and additional information regarding the records sought were required to process his request. The letter advised Biear that his request would be administratively closed if the required information was not provided within thirty days.

Biear submitted a completed Certification of Identity form, but submitted no additional information describing the records he sought. In March 2013, the Criminal Division notified Biear by letter that although it received his Certification of Identity form, his request was being administratively closed because Biear failed to provide a specific description of the subject of his request. Specifically, Biear failed to identify the Criminal Division section he believed would have or maintain responsive records, precluding a search for such records. In its letter, the Criminal Division provided: "If you construe this response to be a denial of your request, you may administratively appeal ...."⁵

In April 2013, Biear appealed the disposition of both Criminal Division requests to OIP, which handles administrative appeals from the Department of Justice’s determinations under FOIA.⁶ OIP affirmed the disposition of Biear’s request in September 2013 on the ground that the Criminal Division properly informed Biear that it required further specification to process his response. It specifically cited Biear’s failure to indicate the section of Criminal Division he believed would maintain responsive records.

C. The FBI Request

Biear submitted a request to the FBI in December 2012. In January 2013, the FBI advised Biear it would require him to verify his identity and provide additional information regarding the records sought to process his request. Biear complied in March 2013. The FBI acknowledged receipt in April 2013 and advised Biear that it had begun searching for responsive records.

Thereafter, Biear sent a letter to OIP to preemptively appeal the anticipated denial of the FBI request. This letter was identical to the letters sent appealing his Criminal Division requests. OIP acknowledged the letter in April 2013.

In May 2013, the FBI informed Biear by letter that all responsive records were contained in an active investigative file and exempt from disclosure under FOIA.⁷ A month later, OIP informed Biear via letter that, because the FBI had reopened and resumed processing his request, his appeal had been closed as moot. The reopening and processing referenced in the OIP letter led to the determination that all responsive records were contained in an active investigative file.

In July 2013, Biear requested that OIP reopen his appeal of the denial of the FBI request because the FBI had "remained silent."⁸ OIP advised Biear in September 2013 that it construed his letter as a new administrative appeal. OIP further advised Biear that this appeal had been closed because the FBI had responded to Biear’s request in May.

Biear then requested the production of a Vaughn index, an itemized index specifying the basis for withholding on a document-by-document basis.⁹ Based on the record, OIP never responded to this letter.

Thereafter, the FBI reopened and resumed processing Biear’s request in October 2014, after the commencement of this action in the District Court, on the ground that the criminal investigative file was no longer active and the applicable exemption no longer applied. On November 25, 2014, and December 22, 2014, the FBI produced a total of 1,188 pages of responsive records; 162 pages were released in full, 670 pages were released with redactions, 197 pages were withheld as duplicative of other pages in the production, and 159 pages were withheld in full because non-exempt information contained therein could not reasonably be segregated from exempt information.

1. The FBI’s Production

The FBI’s production, Bates-labeled in sequence as "Biear-1" through "Biear-1188," indicated which pages were withheld or redacted. It also explained why pages were withheld and redactions were made: the FBI broke down each applicable FOIA exemption into subcategories, which were assigned codes that were then affixed to the withheld or redacted pages to explain which exemption applied to which withholding or redaction.

Where pages were withheld entirely, they were replaced with a "Deleted Page Information Sheet," which identified the reason for withholding by noting the applicable FOIA exemption relied upon. Where pages contained redactions, the reason for withholding and the applicable FOIA exemption relied upon were noted on the face of the released pages.

Biear has not specifically appealed the FBI’s withholding of portions of the records responsive to his request.

D. The District Court Proceedings

Biear filed his complaint pro se in the District Court for the Middle District of Pennsylvania on July 31, 2014. The government filed two motions to dismiss or in the alternative for summary judgment,¹⁰ and Biear cross-moved for summary judgment. The motions were referred to a Magistrate Judge, who issued a comprehensive report and recommendation. The report recommended granting the government’s motion dismissing the complaint and denying Biear’s cross-motion.

It also recommended that Biear’s claim against OIP’s disposition of his Criminal Division request be dismissed because Biear failed to exhaust his administrative remedies when he declined to provide additional information to identify the records he sought. The report recommended that, because the FBI resumed processing Biear’s request and produced documents after the commencement of Biear’s action, his claim regarding the FBI request be dismissed as moot. Biear, still proceeding pro se , made handwritten objections, to which the government responded.

The District Court issued an order adopting the report and...