Chelmowski v. United States

JAMES CHELMOWSKI, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Civil Action No. 17-1394 (JEB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 21, 2021

MEMORANDUM OPINION

Pro se Plaintiff James Chelmowski has made sixteen Freedom of Information Act and Privacy Act requests to three different Defendants — the Federal Communications Commission, the Environmental Protection Agency, and the National Archives and Records Administration. When the responses did not satisfy Chelmowski, he initiated this action. The FCC and NARA, to whom twelve requests are directed, have now filed a joint Motion for Summary Judgment. Plaintiff opposes, arguing that the FCC improperly assessed search fees, that neither agency provided sufficient information for him to determine whether an adequate search had been conducted, that both agencies improperly withheld records, and, finally, that limited discovery is necessary before the Court rules. Having a multitude of arguments, however, does not necessarily mean that any will stick. Finding for the Government on all issues, the Court will grant its Motion.

I. Background

The backdrop for this case began in 2011, when Plaintiff alleged that two informal complaints were filed with the FCC — one by him and the second perhaps by AT&T Mobility LLC "impersonating him." See ECF No. 1 (Compl.), ¶¶ 11-12, 13, 16. Chelmowski subsequently filed a formal complaint with the FCC. Id., ¶ 21. While waiting for the agency to address that complaint — which he alleges it did on July 9, 2016, id., ¶ 28 — Plaintiff filed two FOIA requests on September 11, 2015, seeking information about the 2011 informal complaints. Id., ¶ 36. After the FCC responded by "provid[ing] . . . FOIA logs," id., ¶ 38, Plaintiff filed a "FOIA Administrative Appeal" on September 30, 2015, concerning solely the informal complaint that he had filed. Id., ¶ 44. The FCC "refused to produce these records," id., ¶ 44, and so Chelmowski requested that the "Office of Government Information Services ('OGIS') . . . help mediat[e] to obtain the FCC's Informal Complaint final determination and other withheld records in full or in part." Id., ¶ 46. To Plaintiff's chagrin, OGIS denied him mediation services. Id., ¶ 51.

Convinced that the FCC and NARA, of which OGIS is a part, were withholding pertinent information, Plaintiff then filed sixteen FOIA and Privacy Act (PA) requests seeking all records that concerned the agencies' handling of his informal and formal complaints, previous FOIA requests and subsequent litigation, and information regarding their FOIA policies and guidelines more generally. See ECF No. 35 (Renewed Second Amended Complaint), ¶¶ 37-38; see also ECF No. 99 (Def. Reply) at 1, 3. The Court will briefly introduce the twelve requests at issue in this case.

A. FCC Records

1. FCC Request No. 2017-511

On March 27, 2017, Plaintiff made a PA request for "all records about [himself] . . . in all databases from January 1, 2011, to date of search and production." ECF No. 68-4, Exh. 1 (Chelmowski 4/3/17 Letter) at 1 (emphasis removed). One month later, he followed up and identified ten systems of records for the agency to search. Id., Exh. 3 (Chelmowski 4/24/17Letter) at 2. The FCC subsequently identified individuals responsible "for maintaining each of the specified systems of records and directed each of those custodians to search the associated system of records for Mr. Chelmowski's name." ECF No. 68-3 (Leslie Smith Declaration), ¶ 7. The agency additionally informed Plaintiff that, following Department of Justice guidelines, his request would be processed under both the PA and FOIA, and that while the PA component of the search was being processed without charge, the FOIA request required search fees. See ECF No. 68-6 (Andrea Kearney Decl.), ¶¶ 19-23. Chelmowski's subsequent administrative appeal, arguing that the charge of search fees was "illegal," ECF No. 68-8, Exh. 14 (Chelmowski 5/16/17 Letter) at 4, was dismissed by the FCC "for failure to articulate specific grounds for review." Id., Exh. 17 (Brendan Carr 8/3/17 Letter) at 6. His PA request, however, yielded results: on July 6, 2017, the FCC released over 1,000 pages of responsive records. See Smith Decl., ¶ 9; see also ECF No. 68-4, Exh. 8 (Leslie Smith 7/6/17 Letter).

2. FCC Request Nos. 2018-410 and 2018-425

On February 6, 2018, Plaintiff made a joint FOIA and PA request for all records related to prior requests and appeals in Nos. 2016-0768, 2015-769, and 2015-889. See Smith Decl., ¶ 14; ECF No. 68-5, Exh. 14 (Chelmowski 2/6/18 FOIA PA Request). Two weeks later, he submitted another request, seeking additional records related to two more prior requests, Nos. 2016-345 and 2016-487. See Smith Decl., ¶ 15; ECF No. 68-5, Exh. 15 (Chelmowski 2/21/18 FOIA PA Request). On February 21, after determining that the two requests had substantial overlap, the FCC alerted Chelmowski that they had been consolidated. See Smith Decl., ¶ 16.

Pursuant to Plaintiff's PA request, the agency provided him with 31 pages of responsive records. Id., ¶ 23. With regard to the FOIA portion of his request, however, the FCC informed him that it would send him a bill once the search was completed unless he notified the agencynot to proceed. See Kearney Decl., ¶¶ 49-52. Chelmowski did so, thereby forestalling the search. Id., ¶¶ 53-54. Chelmowski then filed another administrative appeal arguing, among other things, that the agency had artificially "inflated fees" to discourage him from further pursuing his request. See ECF 68-10, Exh. 38 (Chelmowski 2/23/18 Email) at 11. The FCC dismissed the appeal with respect to the consolidated requests, finding that Plaintiff had again failed to articulate why the search-fee estimate was unreasonable. Id., Exh. 40 (Thomas M. Johnson, Jr. 3/23/18 Letter) at 1-4.

3. FCC Request No. 2017-903

On August 15, 2017, Plaintiff requested "'written FOIA Requester's Appeal withdraw letters or emails to document all those FOIA withdraws and withdraw/close dates' for 20 enumerated FOIA appeals." Kearney Decl., ¶ 26 (quoting ECF No. 68-8, Exh. 18 (Chelmowski 8/15/17 FOIA Request)). One week later, the FCC notified him that search fees were associated with his request and that he had 30 days to make a payment. Id., ¶ 27. True to form, Chelmowski appealed the reasonableness of the search fees, and the appeal was dismissed. ECF 68-9, Exh. 21 (Johnson 11/3/17 Letter) at 2.

4. FCC Request No. 2018-311

On January 10, 2018, Plaintiff requested "electronic cop[ies] of the slides, handouts, notes, details, etc. from the following: 1) Joint FCC/Department of Justice FOIA Training . . . [and] 2) FCC FOIA Improvement Act Meeting (July 20, 2016)." Id., Exh. 22 (Chelmowski 1/10/18 FOIA Request) at 2. The FCC released 194 pages in response to this request, withholding phone numbers under FOIA Exemption 4 and other information that it determined fell under Exemption 5's attorney-client privilege. Id., Exh. 23 (Vanessa Lamb 2/6/18 Letter) at 1.

5. FCC Request No. 2018-326

On January 17, 2018, Plaintiff submitted another request, this time seeking "[a]ll policies, handbooks, procedures, documents, correspondence, etc. regarding FCC's Formal Complaint" procedures. Id., Exh. 26 (Chelmowski 1/17/18 FOIA Request) at 2. Again, the FCC notified him of the estimated search fee. Id., Exh. 27 (William Knowles-Kellett 2/21/18 Letter) at 1. Plaintiff responded that the search fees were "gross[ly] exaggerated" and declined to pay. Id., Exh. 28 (Chelmowski 6/19/18 Email) at 1. This time, however, Plaintiff did not file an administrative appeal "or otherwise exhaust the agency's administrative appeals process." Kearney Decl., ¶ 41.

6. FCC Request No. 2018-337

On January 23, 2018, Chelmowski requested "electronic copies of the manuals, internal communications (memos, emails, etc.), all the details, etc. regarding the FCC email system" and asked for the "administrators of the FCC email" so that he could ask them some questions. Id., Exh. 29 (Chelmowski 1/23/18 FOIA Request) at 2. The FCC responded to the first inquiry by explaining that it did not have such a manual, and to the second by informing him that FOIA "does not require [the FCC] to answer questions or provide justifications for decisions." Id., Exh. 30 (Elizabeth Lyle 2/20/18 Letter) at 1-2.

B. NARA Records

1. NARA-NGC-2016-000555

On May 31, 2016, Plaintiff submitted a request to NARA seeking "[t]he entire file for OGIS Case No. 201600177 Chelmowski and FCC. . . . All communications internal and external including but not limited to electronic communications, email, letters, memos, handwritten notes, conversation logs, etc." ECF No. 68-12, Exh. A (Chelmowski 5/31/16 FOIA Request) at 1. Inresponse, NARA released 163 pages in part, with some information withheld pursuant to Exemptions 3 (statutorily prohibited information), 5 (deliberative-process privilege), and 6 (personal privacy). Id., Exh. B (Jodi L. Foor 6/11/16 Letter) at 1.

2. NARA-NGC-2017-000437

On March 28, 2017, Plaintiff requested "all records about [himself] and/indexed to [his] name . . . in all databases." Id., Exh. E (Chelmowski 3/28/17 Email) at 2. Three days later, NARA informed him that it had located 63 responsive documents, totaling 376 pages, id., Exh. H (Floor 5/31/17 Letter) at 1, of which 325 were released in full. Id. The other 51 pages were released in part, with information withheld pursuant to Exemptions 5 (deliberative-process) and 6. Id. at 2. On June 20, 2017, NARA told Plaintiff that it had found additional documents responsive to his request, and it subsequently released another 38 pages in part, with information withheld pursuant to Exemption 5 (deliberative-process). Id., Exh. M (Foor 7/20/17 Letter) at 1-2.

3. NARA-NGC-2018-455

On April 5, 2018, Chelmowski requested "all the FCC compliance documents/records and requirements provided to the National Archives for the FCC e-mails and electronic document management." Id., Exh. N (Chelmowski ...