BERNICE EB LING ,

Plaintif f , v. UNITED STAT ES DEPARTMENT OF JUSTICE , Defendant

. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 10-00914 ( CKK)

MEMORAN DUM OP INION (Jul y 11, 2011) Plaintiff Be rnice Ebling br ings this ac tion ag ainst the United States Depa rtment of Just ice (the “ DOJ”) under the Fr eedom of I nformation Ac t (“F OI A”) . Presently befor e the Court is the DOJ’s [ 9] Mot ion to Dismi ss, or Alternatively , for Summary J udg ment (“Motion for Summary J udg ment”). U

pon consideration of the parties’ submissi ons, the rele vant authorities, and the

rec ord as a

whole, the motion will be g rante d-in-par t and denied- in-part. I. OVERVIEW

w a i v e r ( w a y - v d r ) , n . ( 1 7 c ) 1 . T h e v o l u n t a r y r e l i n q u i s h m e n t o r a b a n d o n m e n t

— e x p r e s s o r i m p l i e d

— o f a l e g a l r i g h t o r a d v a n t a g e . . . . T h e p a r t y a l l e g e d t o h a v e w a i v e d a r i g h t m u s t h a v e h a d b o t h k n o w l e d g e o f t h e e x i s t i n g r i g h t a n d t h e i n t e n t i o n o f f o r g o i n g i t
. B L A C K ’ S L A W D IC T IO N A R Y 1 7 1 7 ( 9 t h e d

. 2 0 0 9 )

. I n late 2009 and e arly

2010, Ms. Ebling filed a

series of FOIA re quests with two ag encie s under the auspice s of the DOJ—namely , the Executive Off ice f or United States Attorne y s (the “EOU SA”) a

nd the Fe dera l Bure au of I nvestig ation (the “ FB I ”). F rom both the EOUSA and the FB I , she soug ht rec ords conc erningthe cr iminal investigation and pr osecution of William S

. Price, who is alleg ed to be Ms. Ebling ’s nephe w. Fr om the FB Ionly , she also soug ht rec ordsconce rning the par ticipation of Tami Ly

nn Price, who is alleg ed to be Mr. Pric e’s f ormer spouse , in the criminal investig ation and prose cution of Mr. Price

. The EOU SA and the F BI ref used to proce ss Ms. Ebling’s re quests for r ecor ds relatingto Mr. Price. A s g rounds, they cited the ter

ms of Mr. Price’ s plea a g ree ment, in which he wa ived his right to use e ither F OI A or the Privac y Act of 1974 ( “PA”) as a me ans of obtainingrec ords

conce rning his criminal case . Even thoug h Ms. Ebling wa s not a party to that ag ree ment, the EOUSA and the FB Iclaimed that the F OI A/PA waiver in Mr. Price’s ple a agree ment prese nted an absolute ba

r to her e ffor

ts to obtain recor ds conce rning the cr iminal investigation and prosec ution of Mr. Price. B efor e this Court, the DOJ defends the EOU SA and the F BI ’s ac tions on the same ba sis. I n essenc e, the DO J maintains that Ms. Ebling’s r equests ar e a subte rfug e for circ umventing the FOIA/PA waiver in Mr. Price’s ple a agree ment. I n contra st, the FB Iactua lly proce ssed Ms. Ebling’ s reque sts for re cords r elatingto Ms. Price. How ever , it concluded that the r esponsive re cords that we re loc ated we re a ll ex empt from disclosure. B efor e this Court, the DOJ defends the F BI ’s dec ision on another basis entire ly

. Her e, the DO J contends that Ms. Ebling failed to e x haust her a dminist rative r emedies be cause she did not file an a dminist rative a ppeal in ac corda

nce w ith the DOJ ’s re g ulations. The DO J ’s Motion for Summary J udg ment will be g rante d-in-par t and denied- in-part. Wit h respe ct to Ms. Ebling’s r equests for rec ords re lating to Mr. Pric e, the EO USA and the F BI improperly

relied upon the FOI

A/PA waiver

in Mr. Price’s ple a agree ment as a r eason f or ref using to proc ess Ms. Ebling’ s reque sts. See infra Part VI .A. Ms. Ebling simply is not a party to that ag ree ment and, as a result, it cannot be e nforc ed ag ainst her. See id. Ms. Ebling ha s an independe nt rig ht to request re cords unde r F OI A, and Mr. Pric e could not, and did not,

2unilatera lly waive that rig ht merely

by executing his plea

ag ree ment. See id. There fore , the Court will deny

the DOJ’s Motion for Summ ary J udg ment with respec t to Ms. Ebli ng ’s re quests relating to Mr. Price

. Meanwhile, the Court ag ree s with the DOJ t hat Ms. Ebling ha s failed to fully exhaust her administrative re medies with respe ct to her r equests re lating to Ms. Price . As an initial matter, Ms. Ebling ha s failed to come forwa rd with enoug h evidenc e to cr eate a g enuine dispute that she

ever filed an a dminist rative a

ppeal. See infra Part I V.B . Moreove r, eve n cre diting Ms. Ebling ’s alleg ations that she attempted to file a n administrative appe al, it is clear that she did not do so in

acc ordanc e with the DOJ’s regulations. See id. There fore , the Court will gr ant the DOJ’s Motion for Summary

J udg ment with respec t to Ms. Ebli ng ’s re quests relating to Ms. Price.

II. P RELIMINARY M ATTERS Although styled in the alter native as a

motion for judgme nt on the pleading s pursuant to Rule 12(c) of the F eder al Rules of Civil P roce dure, the DOJ’s moti on plainly turns upon the 1 consideration of materials outside the sc ope of the pleading s. I ndeed, in the c ourse of briefing the motion, both parties eff ectively treat the motion as one for summar y judgme nt. For he r par

t, Ms. Ebling doe s not sugg est that she has be en depr ived “a rea sonable opportunity

to present a ll the mater ial that is pertinent to the motion.” Fe d. R. Civ. P . 12(d). In fac t, in opposit ion to the DOJ’s mot ion, Ms. Ebling re fer ence s, and re lies heavily upon, materia ls outside the scope of the pleading s. Acc ording ly , the Court shall treat the motion solely as one f or summary

judgme nt.

On occ asion, the DOJ errone ously cites to Rule 12(b)( 6), but bec ause the pleading s in 1 this action are closed, the D OJ ’s motion would actually arise unde r Rule 12(c ). 3III. FA CTUAL BACK GR OUND

Wil liam S. P rice was indicted in the U nited States District Court for the Western D istrict of Missouri on J une 28, 2006, cha rg ed with five c ounts relatingto the possession and produc tion of child pornog raphy

. SeeI ndictment, United States v. Price , Criminal Action No. 5:06-cr06012-NKL -1 (W.D. Mo. J une 28, 2006), ECF No. [5] . On Marc h 22, 2007, afte r re achinga plea a g ree ment, Mr. Price ple aded guilty to one count of pr oduction of child pornog raphy and one count of

rec eipt of child pornog raphy

. SeeJ . in a Criminal Case, United States v. Price , Criminal Action No. 5:06-cr- 06012-NKL -1 (W.D. Mo. Oct. 9, 2008), E CF No. [94] . On Octobe r 8, 2008, he wa s sentence d to a total term of imprisonment of 600 months, to be followed by lifetime supervised r elea se. Id. at 2. Subsequently , the sentenc e and the judgme nt were aff irmed by the United States Court of Appe als for the Eig hth Circuit. See United States v. Price , 326 F. App’x 985 (8th Ci r.), cert. de nied, __ U.S. __, 130 S. C t. 294 (2009). Rec ently , Mr. Price’ s petition for post-conviction re lief wa s denied by the district court. See Price v . United States , Civil Action No. 5:10-c v-06120-NKL , 2011 WL 1357498 (W.D. Mo. Apr. 11, 2011). Mr. Price’s a ppeal of that decision re mains pending

. A. Mr. Price’s Ple a Agreement Of pa rticular r eleva

nce to this ac tion, Mr. Price’s g uilty plea in his criminal ca se wa s

secur ed throug h a for

mal plea a g ree ment. SeePl.’s St mt. of Genuine I ssues, Pursuant to L ocal Rule 7(h) (“ Pl.’s St mt.”), ECF N o. [10] , Ex . D (Plea A g ree ment (“Plea Ag mt.”)). The pa

rties to 2 A copy of the plea

agree ment is attache d to Ms. Ebling’s opposition paper s. Even 2 though Mr . Price’s ple a agree ment is the cente rpiec e of the DOJ’s mot ion, the DOJ failed to include a c opy

with its m oving pa

pers. Where , as her e, a pa rty contends that it is entitled to judgme nt as a matter

of law on the basis of docume ntary evidenc e, it should go w ithout say ing that it is prudent to introduce that docume ntary evidenc e into the re cord f or the Court’s 4that ag ree ment are descr ibed as follows: The P artie s. The parties to this ag ree ment are the Un ited States Attorney ’s Of

fi ce for the Western District of Missouri

. . . and the defe ndant, Wil liam S. Price (“the defe ndant”) , repr esente d b y J ohn Gromowsky , Criminal J ustice Ac t appointed counse l. The defe ndant understands and ag ree s that this plea ag ree ment is only betwee n him and the United States Attorney for the Western District of Missouri, and i t d o es not bind any other fede ral, state, or local p ro s ecution authority or any other g overnme nt ag ency , unles s otherwise spe cified in this ag ree ment. Id. ¶ 1. Consistent with thi s descr iption, the ag ree ment was sig ned by only three individuals—an Assistant United States Attorney , Mr. Price, a nd Mr. Price’ s attorney
. Id. at 20. For purposes of this F OI A ac tion, the operative provision of the plea ag ree ment provides: Waiver of FO I A Requ est. The defe ndant waives all of his rig hts, whether asser

ted direc tly or by a repr esentative, to reque st or rec eive fr o m any depar

tment or ag ency of the United States any rec ords perta ining to the investig ation or prosecution of t his case including, without limit ation, any rec ords that may be soug ht under the Fr eedom of Information Ac t, 5 U.S.C. § 552, or the Privacy Act of 1974, 5 U.S.C. § 552a.

consideration. Appare ntly by way of explanation for its failure , the DOJ states that the plea ag ree ment was filed unde r sea l in Mr. Price’s c riminal case

. See Def .’s Stmt. of Material F acts as to Which There I s No Genuine I ssue, Pursuant to L ocal Rule 7(h) , ECF No. [9-1], at 2 n.3. But that is not a valid excuse. This Court, like any other, ha s proce dures a llowing f or the submissi on of docume nts under sea l. See L CvR 5.1(j). Nonetheless, the Court obse rves that Mr. Price’s ple a agree ment, which wa s filed by Ms. Ebling on the public doc ket, contains potentially sensitive information about the f actua l basis for Mr. Price ’s g uilty plea, including , but not lim ited to, fac ts that touch upon the identity of one of the minor victims of Mr. Price’ s criminal conduc t. Out of an a

bundance of ca

ution, the Court will di rec t the Clerk of the Court to tempora rily maintain the plea a g ree ment under se al until and including F riday , J uly 29, 2011, in order to aff ord any interested pa

rty an opportunity

to file a motion to seal all or pa rt of its contents. Any such motion shall, at a minimum, be made in acc ordanc e with the L ocal Rules of this Court and addre ss eac h of the fa ctors set for th in United States v. Hubbard , 650 F.2d 293 ( D.C. Cir. 1980). I f a motion is not filed by the desig nated date, the Court will direct the Cler k of the Court to unseal the ple a agree ment. 5Pl.’s St mt. Ex . D (Plea A g mt.), ¶ 16. I t is thi s FOIA/PA waiver that the EOUSA a

nd the FB I later r elied upon in deny

ing Ms. Ebling ’s FO IA re quests relating to Mr. Price

. B. Request No. 1: Ms. Eblin g’s Request to the EOUSA for Records Relating to Mr. Price ( Adm inis trative Contr ol No. 09-4676) By letter da ted Dec ember

31, 2009, Ms. Ebling submitted a F OI A re quest to the EOUSA seekingrec ords conc erningMr. Price ( “Reque st No. 1”). SeePl.’s St mt. Ex . B ( L tr. from B

. Ebling to the EO USA dated De c. 31, 2009); see also Dec l. of J ohn F. B oseker (“B oseker

Dec l.”), ECF No. [9-4], ¶ 6. I n the letter, Ms. Price reque sts the following r ecor ds reg arding Mr. Price: 3 1. printouts of the sear ch scre en display s encount ered while perf orming a sear ch of the L eg al I nformation Offic e Networ k Sy stem (L I ONS), as wel l as the indices and the rec ords responsive to the se arc h; 2. printouts of the sear ch scre en display s encounte red while perf orming a sear ch of the Trac king Assistance for the L eg al Offic e Networ

k (TAL ON), as well as the indices and th e rec ords re sponsive to the sear ch; 3. pri n t o uts of the sear ch scre en display s and indices encounte red while perf

orming a sear ch of any other databa se sear ched in r esponse to this reque st; 4. any

and all records of communication, reg ardle ss of form or format, involving AUSA Cy nthia Phill ips/Cordes, S p ecial

Whil e the DO J conce des that the EOU SA rec eived Ms. Ebling ’s Dec ember 31, 2009 3 letter, it failed to include a copy with its m oving pa

pers. B y way of explanation, the DOJ avers that Ms. Ebling’s D ece mber 31, 2009 letter is a “duplica

te” a nd “identica l in substance” to a letter she se nt to the EOUSA on or about De cembe r 4, 2009. B oseker Dec l. ¶ 6. Althoug h the two letters ar e indee d very simil ar, the y

are not identical. Wherea s Ms. Ebling’s De cembe r 4, 2009 letter e rrone ously

reque sted rec ords conc erning“the unde rsig ned,” he r De cembe r 31, 2009 corr ecte d the mistake to clar ify that her r equest only

soug ht rec ords conc erningMr. Price. Compare Bose ker D ecl. Ex. A (L tr. from B . Ebling to the EO USA dated De c. 4, 2009), with Pl.’s Stmt . Ex . B ( L tr. from B . Ebling to the EO USA dated De c. 31, 2009). B eca use only the Dec ember

31, 2009 letter is re fer ence d in Ms. Ebling’s Complaint, see Compl., EC F No. [1], ¶ 8, the Court shall treat that letter as the ope rative r equest.

6Agent Kurt L ipanovich, or any other person in which t h e subject is mentioned or re fer red; 5. any and all rec ords at the Kansa s City United States Att o rn ey ’s Offic e (USAO) or any other USAO, whether or not such rec ords have been uploaded to EOUSA, including sear ch scre en display s and i n dices encounte red while perf orming the sea

rch f or re sponsive rec ords. Pl.’s St mt. Ex . B ( Ltr. from B . Ebling to the EO USA dated De c. 31, 2009), at 1. Attached to Ms. Ebling’ s letter wa s a Certification of I dentity and Authorization to Release Information to Another Per son from Mr. Price , indicating that he author ized the relea se of r ecor ds pertainingto him to Ms. Ebl ing. Id. at 2. By letter da ted J anuar

y 7, 2010, the EOUSA notified Ms. Ebling that it had rec eived he r Request No. 1. SeeBose ker D ecl. Ex. B (Ltr. from the EO USA to B. Eblingdated Jan. 7, 2010), 4 at 1. Subsequently , the EOUSA for war ded the r equest to the United States Attorne y ’s Off ice f or the Western District of Missouri to sear ch for responsive r ecor ds. Id. ¶ 8. On January 26, 2010, that office informed the E OUSA that Mr. Price ’s plea a g ree ment included a F OI A/PA waiver

. Id. ¶ 9. B y

letter dated April 13, 2010, the EOU SA denied Ms. Ebling ’s Request No. 1. See Bose ker D ecl. Ex. C (L tr. from the EO USA to B. Eblingdated Apr . 13, 2010), at 1. B y way of explanation for its decision, the EOUSA stated:

Pursuant to the filed Memorandum of Plea Ag ree ment you executed on Marc h 22, 2 0 0 7 , you have waived all rig hts, whether asser ted direc t l y o r by a repr esentative, to reque st or rec eive from any depar tment or age ncy of t he United States any rec ords pertaining to the investig ation or prose cution of this case

. . . . Id. (empha sis added; under lining omitted).

Whil e the Court will ref er to Ms. Ebling ’s re quest as Reque st No. 1 for purpose s of this 4 action, the a dminist rative c ontrol number wa s 09-4676. 7By letter da ted April 22, 2010, Ms. Ebling f iled an appe al of the EO USA’s denial of her Request No. 1 with the DOJ’s Offic e of Information Policy (the “ OI P”), the off

ice r esponsible for adjudicatingsuch appe als. See Bose ker D ecl. Ex. D (L tr. from B . Ebling to the O I P dated Apr. 22, 2010), at 1. B y

letter dated J une 14, 2010, the OI P upheld the EOUSA’s initial denial of Ms. Ebling’ s Request No. 1, providingas follows:

EOUSA deter

mined that under the terms of a signe d plea ag ree ment

. . . , Wil liam Price had waived all rig hts to make an y re q u es t or rec eive any rec ords pursuant to the Fr eedom of I n formation Act conce rning his criminal case . This waiver applies t o s u ch FOI A reque sts that are submitt ed direc tly by Mr. Price as well as those submitt ed by a repr esentative. * * * [F]or purposes of y our reque st, the waiver of Mr. P rice ’s FOI A and Privacy Act ri g hts contained in his plea ag ree ment i s p re s u med to be valid, and EOUSA proper ly ref used to proce ss y our re quest. Bose ker D ecl. Ex. F (Ltr. from the O I P to B. Ebling dated J une 14, 2010), at 1. C. Request No. 2: Ms. Eblin g’s Request to the FB I for Records Relating to Mr . Price ( Adm inis trative Contr ol No. 1141512) By letters date d November

23, 2009 and Nove mber 27, 2009, Ms. Ebling submitt ed thre e identical re quests to the FB I(collec tively , “Reque st No. 2”): one to the F BI ’s hea dquarte rs (the “F BI -HQ” ); a sec ond to the FB I ’s Kansa s City Field Of fice (the “ FB I -KCFO ”); a nd a third to the FB I ’s St. J oseph Resident Ag ency (the “ FB I -SJ RA”). SeeDec l. of David M. Ha rdy (“H ardy Dec l.”), ECF No. [9-5] , Ex . A (Ltr. from B . Ebling to the F BI -HQ dated Nov. 23, 2009), Ex. B (L tr. from B . Ebling to the F BI -KCFO dated Nov. 23, 2009) , & E x . C (L tr. from B . Ebling to the FB I -SJ RA dated Nov. 27, 2009)

. Eac h letter re quested “ any and all re cords” reg ardingMr. 5

The thre e letter s are coter minous in scope; for purpose s of ec onomy , the Court will cite 5 exclusively

to Ms. Ebling’s letter

to the FB I -HQ.

8Price, including , but not lim ited to, the following : 6 1. printouts of the sear ch scre en display s of the Universa l Name I nd ex (U NI ) and Gene ral I ndices, both main and ref ere nce, encounte red while perf

orming the reque sted sear ch, as well as the re cords to which the indices point; 2. printouts of the sear ch scre en display s of the EL SUR indices, both m ain and ref

ere nce, encounte red while perf orming the reque sted sear ch, as well as the records to which the indices point; 3. copies of all sear ch slips, FD- 160 indices sear ch slips, wher e t h e sear ch was conducte d, the databa ses sear ched, when the s ea rc h was conducted, and the s ear ch terms used, as well as all other rec ords g ener ated by perf orming t he reque sted sear ch; 4. all documents in ca se file number 305C-KC-89543. Har dy Dec l. Ex . A (Ltr. from B . Ebling to the F BI -HQ dated Nov. 23, 2009), at 1. Ms. Ebling’s Request No. 2 wa s acc ompanied by a Certific ation of I dentity and Authorization to Release I nformation to Another

Person from Mr. Pric e author izi ng the re lease of re cords pe rtaining to him to Ms. Ebl ing. See id. at 2. The F BI acknow ledg ed re ceipt of Ms. Ebling ’s Request No. 2. SeeHar dy Dec l. Ex . D 7 (L tr. from the F BI

to B. Eblingdated Jan. 4, 2010), at 1. The FB Iconsolidated Ms. Ebling ’s three letters as a

single reque st. See id. ; Hardy Dec l. Ex . G (Ltr. from the O I P to B. Ebling dated
Although not mate rial to the pendingmotion, the Court observes that Ms. Ebling’ s 6 reque st to the FB Iseeks “ any and all re cords” conce rning Mr. Price, a nd then sets forth a

n illust rative list of re cords. SeeHar dy Dec l. Ex . A (Ltr. from B . Ebling to the F BI -HQ dated Nov. 23, 2009), at 1. In contra st, Ms. Ebling’s compa rable reque st to the EOUSA is less ex pansive, framed as see king f

ive spec ific categ ories of r ecor ds conce rning Mr. Price. See Pl.’s St mt. Ex . B (L tr. from B . Ebling to the EO USA dated De c. 31, 2009), at 1. Whil e the Court will ref er to Ms. Ebling ’s re quest as Reque st No. 2 for purpose s of this 7 action, the a dminist rative c ontrol number wa s 1141512. 9May

3, 2010), at 1. By letter da ted J anuar

y 4, 2010, the FB Idenied Ms. Ebling ’s Request No. 2. SeeHar dy Dec l. Ex . D (Ltr. from the F BI to B. Eblingdated Jan. 4, 2010), at 1. L ike the EOU SA, the FB I conclude d that Ms. Ebling ha d waived he r rights under F OI A “pur suant to the terms of [the] P lea Ag ree ment . . . that Mr. Price . . . e ntere d into with the United States of Americ a.” Id. By letter da ted J anuar

y 26, 2010, Ms. Ebling a

ppeale d the FB I ’s dec ision to t he OI P. See Har dy Dec l. Ex . E (L tr. from B . Ebling to the O I P dated J an. 26, 2010), at 1. I n so doing, Ms. Ebling state d that she had “ not waived a ny rig hts” and maintaine d that, reg ardle ss of the terms of the ag ree ment that Mr. Price sig ned, he c ould not “waive [the] rights g rante d [her].” Id. By letter da ted May 3, 2010, the OI P upheld the FB I ’s initial decision. See Har dy Dec l. Ex . G (Ltr. from the O I P to B. Ebling da ted May 3, 2010), at 1. Explaining the ba sis for its decision, the OI P stated:

The FB I deter

mined that under the terms of a signe d plea ag ree ment

. . . , Mr. P rice waived all rig hts to make any re q u es t or receive any rec ords conce rning his criminal case . Fur thermore, t he ag ree ment cover s not only reques t s m ade by Mr. Price himself, but anyone acting on his behalf

. * * * [F]or purposes of y our reque st, the waiver of Mr. Price’s Fr eedom of I nformation Act and Privacy Act rig hts contained in his plea ag ree ment is presumed to be valid, and the FB I proper ly ref used to proce ss y our re quest. Id. D. Request No. 3: Ms. Eblin g’s Request to the FB I for Records Relating to Ms . Price ( Adm inis trative Contr ol No. 1143733) By letters date d Fe bruar

y 8, 2010, Ms. Ebling submitted three identical re quests to the FB I -HQ, the FB I -KF CO, and the F BI -SJ RA seekingrec ords re lating to Ta mi L y nn Price

10(collec tively , “Reque st No. 3”). See Har dy Dec l. Ex . H (Ltr. from B . Ebling to the F BI -HQ 8 dated F eb. 8, 2010), Ex. I(L tr. from B . Ebling to the F BI -KF CO dated F eb. 8, 2010), & Ex . J (L tr. from B . Ebling to the F BI -SJ RA dated F eb. 8, 2010). For rea sons that will soon become 9 clea r, the pre cise c ontours of Ms. Ebling’ s Request No. 3 ar e not mater ial to the pendingmotion. For prese nt purposes, suffic e it to say that her r equest soug ht “any and all re cords” reg ardingMs. Price, a nd specific ally

enumer ated e ight c ateg ories of r ecor ds reque sted. See Har dy Dec l. Ex . H (L tr. from B . Ebling to the F BI -HQ dated Fe b. 8, 2010), at 1-2. E ach of Ms. Ebling’s le tters was

acc ompanied by

a Certific ation of I dentity and Authorization to Release Information to Another Person from Ms. Price authorizing the r elea se of r ecor ds pertainingto her to Ms. Ebling. See id. at 3. The F BI

acknow ledg ed re ceipt of Ms. Ebling ’s Request No. 3. SeeHar dy Dec l. Ex . K 1 0 (L tr. from the F BI

to B. Eblingdated F eb. 28, 2010), at 1. All three letter s were consolidated a nd treated as a

single reque st. See id. By letter da ted Fe bruar

y 28, 2010, the FB Idenied Ms. Ebling ’s Request No. 3 in its entirety

. SeeHar dy

Dec l. Ex . K (Ltr. from the F BI to B. Eblingdated F eb. 28, 2010), at 1. As g rounds for its dec ision, the FB Istated that the mate rial re quested “ is located in an inve stigative

Acc ording to the DOJ, Ms . Price is Mr. Price ’s forme r spouse, thoug h the evidenc e 8 relied upon f

or this assertion is almost certa inly inadmissible hearsa

y . SeeHar dy

Dec l. at 11 n.4 (“I have be en informe d by

the [S pecia l Ag ent] for this case tha t Tami L y nn Price is Will iam Steven Price’ s ex-wife.”)

. The thre e letter s are coter minous in scope; for purpose s of ec onomy , the Court will cite 9 exclusively

to Ms. Ebling’s letter

to the FB I -HQ. Whil e the Court will ref er to Ms. Ebling ’s re quest as Reque st No. 3 for purpose s of 1 0 this action, the administrative control number was 1143733. 11file which is exempt from disclosure pur suant to 5 U.S.C. § 552(b)(7)( A).” Id. Ms. Ebling wa s

advised of he r rig ht to appeal the F BI ’s dec ision:

You may file an appea l by writing the Direc tor, Offic e of I nformation Policy (OI P), U.S. Depa

rtment of J ustice, 1425 New York Ave., NW, Suite 11050, Washington, D. C

. 20530-0001. Your appea l must be rec eived by

OI P within s ix ty (60) day s from the date of this letter in order to be considere d timely

. The envelope and the letter should be clea rly marke d “F ree dom of Information [Act] Appeal.” Id. As a re sult, Ms. Ebli ng had until April 29, 2010 to submit a timely appea l of the F BI ’s denial of Request No. 3. H oweve r, the OI P has twice re viewed its ele ctronic tra ckingsy stem of administrative appe als, and ha s no rec ord of e ver r ece iving a n appea l from Ms. Ebling

conce rning Request No. 3. SeeDec l. of Priscilla T. J ones (“ J ones De cl.”) , ECF No. [9-6], ¶ 2; Dec l. of Nake itha D. Gilbert (“ Gilbert De cl.”) , ECF No. [11-1], ¶ 2. IV. P ROCEDURAL BACK GR OUND On J une 2, 2010, Ms. Ebling , proce eding pro se , commence d this action under F OI A. SeeCompl. for I njunctive Relief, ECF No. [1]

. On September 22, 2010, the DOJ filed its 1 1 Answer

. SeeAnswer , ECF No. [6]. Subsequently , the Court set a brie fing schedule for dispositive motions. SeeOrde r (Sept. 24, 2010), ECF N o. [8] . I n so doing, the Court advised Ms. Ebling of her oblig ations in respondingto the DOJ’s anticipated motion. Id. at 2 (c iting Fox v . Strickland , 837 F.2d 507 (D.C. Cir. 1988); Neal v. Kelly , 963 F.2d 453 ( D.C. Cir. 1992)).

Ms. Ebling a lso cites in passing to the PA in her Complaint, but that statute “g ive[s] 1 1 parties a cce ss only

to their own re cords.” Sussman v. U.S. M arshals Serv. , 494 F.3d 1106, 1121 (D.C. Cir. 2007) (c iting 5 U.S.C. § 552a(d) (1)) . I n this case, be cause eac h of Ms. Ebling’ s reque sts sought re cords pe rtaining to third parties, the PA has no a pplicability . Wis ely , Ms. Ebling ha s not relied upon the PA in opposition to t he pendingmotion. 12The pa rties complied with the sche dule set by the Court. On Novembe r 4, 2010, the DO J filed its opening memorandum. SeeDef .’s Mem. of P. & A. in Supp. of Def.’ s Mot. to Dism iss, or Alternatively , for Summ. J . (“D ef.’ s Mem.”), ECF No. [9-2] . On Dec ember 17, 2010, Ms. Ebling f iled a timely

opposition. SeePl.’s Mem. of P. & A. in Supp. of Pl.’s Opp’n to Def .’s Mot. to Dismi ss, or Alterna tively , for Summ. J . (“Pl.’s Opp’n” ), ECF N o. [10] . On J anuar y 7, 2011, the DOJ filed a timely reply

. SeeDef

.’s Reply to Pl.’s Opp’n to Def.’ s Mot. to Dism iss, or Alternatively , for Summ. J . (“D ef.’ s Reply ”), ECF No. [11] . The motion is now fully briefe d and ripe for adjudication. V. LEGAL STANDARD Congr ess ena cted F OI A to introduce tra nspare ncy

into gove rnment ac tiviti es. Stern v. Fed. Bure au of Inve

stigati on , 737 F.2d 84, 88 ( D.C. Cir. 1984). Congr ess re mained sensitive, howeve r, to the nee d to achieve balanc e betwe en this objective a nd the vulnera

bility of “leg itimate gove rnmental a nd private inter ests [t hat] could be harme d by rele ase of

cer tain ty pes of information.” Criti cal Mass Energy Project v. Nuc lear Regulatory Comm’n , 975 F.2d 871, 872 (D.C. Cir. 1992), cert. de nied, 507 U.S. 984 (1993). In revie wingmotions for summary judgme nt in this context, the dist rict cour t must conduct a de novo revie w of the r ecor d, 5 U.S.C. § 552(a) (4)( B) , which “r equire s the court to asc erta in whether the ag ency

has sustained its burden of demonstrating that the doc uments reque sted . . . are exempt from disclosure,” Assassinati on Archive s & Researc h Ctr. v. Cent. Intelligence A gency , 334 F.3d 55, 57 ( D.C. Cir. 2003) (interna l quotation marks omitted). “Consistent with the purpose of the A ct, the burde n is on the ag ency to justi fy withholding re quested doc uments.” Bec k v. D ep’t of Justice , 997 F.2d 1489, 1491 (D.C. Cir. 1993). Summary judgme nt is proper whe n the pleading s, the discover y materia ls
13on file, and a ny aff idavits or decla

rations “show[] t hat there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P . 56(a)

. The mer e existence of some fac tual dispute is insufficient on its own to bar summary judgme nt; the dispute must pertain to a “mate rial” f act, a nd there fore “[o] nly

disputes over fa cts that might af

fec t the outcome of the suit under the g overninglaw will proper ly prec lude the entr

y of summary

judgme nt.” Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986). Nor may summary judgme nt be avoided ba sed on just any disag ree ment as to the re levant fa cts; the dispute must be “g enuine,” meaningthat there must be sufficient a dmissibl e evide nce f or a

rea sonable trier

of fa ct to find for the non-movant. Id. In this reg ard, the non-movant must “do more than simply

show that there is some metaphy sical doubt as to the mater ial fac ts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986); “[i] f the evidenc e is mere ly

colora ble, or is not sufficie ntly

probative, summar

y judgme nt may

be g rante d,” Liberty Lobby , 477 U.S. at 249-50 (c itations omi tted). Whil e “[a]ll pleadings sha ll be so construed a s to do substantial just ice,” Fe d. R. Civ. P

. 8(f) , pleading s filed by

a par ty proce eding pro se must be “libera lly construed,” Erickson v

. Pardus , 551 U.S. 89, 94 (2007) ( per curiam ) (quotation mar ks omitt ed). F or example, wher e a pro se party

has filed multiple submissi ons, the district court must g ener ally consider those filings tog ether

and as a whole. See R ichardson v. United States , 193 F.3d 545, 548 ( D.C. Cir. 1999). Howe ver, e ven with the libera lity aff orded pro se pleading s, the district court “ne ed not

acc ept infer ence s unsupported by the fa cts alleg ed in the complaint or le g al conc lusions cast in the form of

fac tual alleg ations.” Kaemme rling v. Lappin , 553 F.3d 669, 667 ( D.C. Cir. 2008) (quotation marks omitted).

14VI. DISCUSSIO N

The Court’s discussion proc eeds in two pa rts. The Court will first explain why the EOUSA and the FB Iimproperly ref used to proce ss Ms. Ebling’s Reque sts Nos. 1 and 2 based on the FO I A/PA waiver

in Mr. Price’s ple a agree ment. See infra Part VI .A. Ther eaf ter, the Court will ex plain why

Ms. Ebling’s c laims relatingto Request No. 3 ar e subjec t to dism issal beca use Ms. Ebling ha s failed to exhaust her a dminist rative r emedies. See infra Part VI .B. A. The EOUSA an d the FBI Im properly Refused to Proc ess Ms. Eblin g’s Requests Nos. 1 and 2 Based on t

he FOIA/PA Waiver in Mr. Price’s Plea Agree m ent I n this case, the D OJ ’s def ense of the EOUSA’s de nial of Request No. 1 a nd the FB I ’s denial of Reque st No. 2 rises and f alls on Mr. Price’ s plea a g ree ment. Distill ed to its essence , the DOJ’s arg ument is this: (i) Mr. Price enter ed into a valid and bindingplea a g ree ment; (ii) under the terms of that ag ree ment, Mr. Price w aived his rig ht to make a F OI A re quest perta ining to the investigation or prosec ution of his criminal case either on his own be half or “ by a repr esentative”; (iii) in reque sting re cords pe rtaining to Mr. Price, Ms. Ebling is acting as Mr. Price’s “ repr esentative”; (iv) ther efor e, Ms. Ebling ’s FO I A re quests are barr ed by the plea ag ree ment. SeeDef

.’s Mem. at 9-11; De f.’s Reply at 4-6. F or the re asons set for th below, the Court finds the argument to be without merit.

1. Ms. Eblin g Has a Statutory Right to Re quest Recor ds Und er F OIA, Ind ependent of An y Right that Mr . P rice May Have Waived Congr ess deliber ately

confe rre d the rig ht to make a F OI A re quest upon “a ny person,” 5 U.S.C. § 552(a)(3) (A), a

term that is define d broadly to include any

individual or org anization other than a

fede ral a g ency , id. § 551(2). Consistent with this broad “any person” standard, “ the identity of the re questing party

[gene rally ] has no bearingon the merits of his or he r F OIA

15reque st.” U.S. Dep’ t of Justice v. Re porters Comm. for Freedom of Pre ss , 489 U.S. 749, 771 (1989). The re ason is simple: the statute’s exclusive conce rn is with what must, and what must

1 2 not, be made public. North v. W alsh , 881 F.2d 1088, 1096 ( D.C. Cir. 1989). For this reason, whether disclosure is re quired turns on the nature of the rec ords re quested, a nd reque stors are not require d to expl ain who they are or why

they seek infor

mation. See Nat’l Archives &Rec ords Admin. v. Fav ish , 541 U.S. 157, 172 (2004). I n this case, the D OJ alleg es that Ms. Ebling is a relative of Mr. Price (spec ifically , his pater nal aunt) a

nd contends that, in pursuingher F OI A re quests, Ms. Ebling ha s been a cting on Mr. Price’ s behalf. SeeDef .’s Mem. at 9-11; De f.’s Reply at 4-6. Eve n assuming tha t is the

case , it is, at least for purpose s of FO I A, irre levant. Unde r the statute, Ms. Ebling ’s identity is “of no sig nificanc e,” Swan v. Secs. & Exc h. Comm’n , 96 F.3d 498, 499 ( D.C. Cir. 1996), and her rig hts are no dif

fer ent than those that mig ht be asser ted by any other pe rson. Ms. Ebling ha s a statutory rig ht to make a F OIA re quest, and that rig ht exi sts independently of whatever

rig ht Mr. Price may have onc e had to do the sa me. 2. Ms. Eblin g is Not Boun d by th e P lea Agre em ent and it Does Not Ef fectuate a Waive r of Her Independ ent Statutory Rights I n light of the fore g oing, the DOJ’s entire ar g ument hinge s on the premise that Mr. Price’s ple a agree ment binds Ms. Ebling or somehow e ffe ctuated a waiver of Ms. Ebling’ s rig hts under F OI A. That pre mise is both unproven and untena ble. True, a s the DOJ sugg ests, “in the abse nce of an af firmative indica

tion that Congre ss

The princ ipal exception is where “ the objection to disclosure is base d on a cla im of 1 2 privileg e and the person r equestingdisclosure is the par ty protec ted by

the privileg e.” Reporters Comm. for Freedom of Pre ss , 489 U.S. at 771. 16intended to pre clude or to limi t the waiver

of statutory

protec tions . . . volunt ary ag ree ments to waive [those] protections are presumptively enfor cea ble.” United States v. Burc h , 156 F.3d 1315, 1321 (D.C. Cir. 1998) (c iting United States v. Me zzanatto , 513 U.S. 196, 201-02 (1995)) , cert. de nied , 526 U.S. 1011 (1999). Consistent with that propositi on, sever al cour ts have he ld that a F OI A/PA waiver

in a cr iminal defenda

nt’s plea a g ree ment may

be enf orce d ag ainst the criminal def

endant. See, e .g. , Caston v. Exec . Office for U.S. Attorneys , 572 F. Supp. 2d 125, 129 (D.D.C. 2008); Boyc e v. U nited States , Civil Action No. 1:08cv535, 2010 WL2691609, at *1 (W.D.N.C. J uly

6, 2010); Patterson v. Fed. B ureau of Inve stigati on , Civil Action No. 3:08cv186, 2008 WL2597656, at *2 (E.D. V a. June 27, 2008). Whatever the merits of that particula r outcome, that is not what the DOJ i s attempting to do in this case . Her e, the DO J seeks to invoke a

FOIA/PA waiver

in a cr iminal defenda

nt’s plea a g ree ment ag ainst a third par ty who is alleg ed to be a

relative of the c riminal defe ndant. Without some indication that the third party is bound by

the terms of the plea a g ree ment, this is patently impermissible. Plea ag ree ments are essentially contra cts like any

other a nd are subject to g ener al principles of c ontrac t interpretation. See U nited States v. Jone

s , 58 F.3d 688, 691 ( D.C. Cir.), cert. de nied , 516 U.S. 970 (1995). I t is a fundamenta l and unobjectionable principle that a contra ct ca

nnot bind a non-par

ty

— i.e. , someone who ha s not assented to be bound to its terms. Equal Empl. Opportunity Comm’n v. W affle House, Inc

. , 534 U.S. 279, 294 (2002). In this case, no fac t-finder

could re asonably

conclude that Ms. Ebling is bound by the terms of Mr . Price’s plea a g ree ment. By

its plain langua g e (a

nd obvious context ) there are only two parties to the plea ag ree ment—Mr. Price a

nd the United States Attorney ’s Off ice f or the Western D istrict of Missouri. SeePl.’s St mt. Ex . D (Plea A g mt.), ¶ 1. Ms. Ebling is not a pa rty to Mr. Price’s ple a 17ag ree ment, and the DO J could not cre dibly contend other

wise. Entirely consistent with this understanding , the FO IA/PA waiver in Mr. Price’s ple a ag ree ment provides only

that “[t] he def

endant wa ives all of his rig hts . . . to request or r ece ive . . .

rec ords per

taining to the inve stigation or prosec ution of his case.” Pl.’s St mt. Ex . D (Plea Ag mt.), ¶ 16 (e mphasis added) . I t does not purport to waive the rig hts of any third parties, including those of Ms. Ebling. N or could it. “[W] aiver is the ‘intentional relinquishment or abandonme nt of a known r ight.’ ” United States v. Olano , 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst , 304 U.S. 458 (1938)). A s such, waive r is within the control of the pa rty who holds the rig ht. That is, one per son’s waive r ca nnot, on its own, work a wa iver of a nother person’ s independe nt leg al rig ht. Cf. United States v. W ilson , 26 F.3d 142, 151 ( D.C. Cir. 1994), cert de nied , 514 U.S. 1051 (1995). In this case, the me re f act that Mr. Pric e ele cted to wa ive his rig hts under F OIA ca

nnot constitute a basis for c oncluding that Ms. Ebling did the same . There is no evidence — none—that Ms. Eblingever intended to re linquish or abandon her rig hts under FOIA. The r eason is simple: Ms. Ebling is not a par ty to the agree ment. The plea ag ree ment prese nts no bar to Ms. Ebling’ s FOIA re quests. 1 3 The Court notes additionally that the question of whe ther Ms. Eblingis actingas Mr. Price’s “ repr esentative” in pursuingher F OI A re quests is, quite simpl y , irrele vant to this action. Pursuant to his plea ag ree ment, Mr. Price “ waive[d] all of his rig hts, whether a sserted dire ctly or

I ndeed, the DOJ’s insi stence that Mr. Price’ s plea a g ree ment prese nts an absolute bar 1 3 to her attempts to secure r ecor ds pertainingto Mr. Price’s c riminal case is belied by the fa ct that the EOUSA did, in fac t, produce some rec ords to Ms. Ebling—namely , the plea a g ree ment. See Pl.’s Ex . D (Ltr. from the EO USA to B. Eblingdated Apr . 13, 2010). Given the DOJ’s stated position t hat Ms. Ebling is not entitled to anyrec ords per taining to Mr. Pric e’s c riminal case , this production, limited though it may be, is inexpl icable.

18by

a re prese ntative, to reque st or rec eive . . . a ny rec ords per

taining to the inve stigation or prosec ution of [hi s] case.” Pl.’s Stmt. Ex . D (Plea A g mt.), ¶ 16 (e mphasis added) . That contra ctual promise r

uns to the g overnme nt only from Mr. Price , and him alone. B eca use the plea a g ree ment does not bind Ms. Ebling, it cannot be enfor ced a g ainst her. B ut the DOJ i s not without a reme dy . To the extent that it genuine ly believes that Ms. Ebling is actingas Mr. Price’s “ repr esentative,” it may seek to e nforc e the ter

ms of the plea a g ree ment against Mr. Price in a cour t of compete nt jurisdiction. I n this action, the Court cannot c ondone the DO J ’s attempts to wield Mr. Price’ s plea a g ree ment as a swor d to defe at Ms. Ebling’ s FOIA re quests. I n any event, de spite its ins istence that “[i] t is clear that Plainti ff is ac ting a s Mr. Price’ s repr esentative,” De f.’s Mem. at 11, the DOJ has fallen woe fully short of establishing that the

rec ord is “so one- sided” that it is entitled to judgment as a matter of la

w on that question. Liberty Lobby , 477 U.S. at 251-52. Ms. Ebling ha s steadfa stly denied that she is “ac ting a s the ag ent or re prese ntative of a ny other pe rson” a

nd maintains that her r equests ar e animate d purely by her “ own per sonal interest.” Dec l. of Be rnice Ebling, ECF No. [10-1] , ¶ 10. B alanc ed ag ainst this, the DOJ aver s that Ms. Ebling is Mr. Price’ s paterna l aunt and under score s that eac h of Ms. Ebling’ s reque sts were acc ompanied by a Certific ation of I dentity and Authorization to Release I nformation to Another

Person executed by

Mr. Price a

uthorizi ng the re lease of re cords perta ining to him to Ms. Ebling. SeeDef .’s Mem. at 11. De spite the DOJ’s appare nt belief to 1 4

Both of the se fa ctual alleg ations are undisputed. Whi le the DOJ supports the first 1 4 alleg ation only

with what is almost certa inly inadmissible hearsa

y , see Har dy

Dec l. ¶ 29 (“I

have been inf ormed by the [S pecia l Ag ent] who investigate d Price’s c hild pornog raphy alleg ations that plaintiff, B ernic e Ebling , is W illiam P rice ’s pater nal aunt.”) , Ms. Ebling doe s not contest that she is, in fact, Mr. Price ’s pater nal aunt, see Pl.’s Opp’n at 8. Ac cording ly , for pur poses of re solving the pendingmotion, the Court will assume this to be the ca se. SeeFe d. R. Civ. P . 56(e) (2). The second a lleg ation is established by clea r docume ntary

evidenc e, as e ach of

Ms. Ebling’s r equests 19the contra

ry , this is far from de finitive evidenc e that Ms. Ebling is “ac ting in collusion” with Mr. Price. De f.’s Reply

at 6. Mr. Price ’s ce rtifications ar e mer e priva cy waiver s, the condition prec edent to an a g ency ’s re lease of private information per taining to him to any

third party

. Absent such c ertifica

tions, Ms. Ebli ng , like any other F OI A re questor, would sure ly have encounte red substantial diff iculties obtaining a

ny rec ords re sponsive to her re quests. I n conclusion, the Court re iterate s for e mphasis that whether or not Ms. Ebling is ac ting as Mr. Price ’s “r epre sentative” is only rele vant if the g overnme nt wants to enfor ce the FOIA/PA waiver in Mr. Price’s ple a agree ment ag ainst Mr. Price. It has no bea ringupon Ms. Ebling’s FOIA re quests. There fore , the Court shall deny the DOJ’s Motion for Summ ary J udg ment insofar a s it seeks dismissal of these claims. I n fac t, in light of the Court’s c onclusion that the DOJ’s proffe red justification for the EOUSA and the FB I ’s re fusal to proc ess Ms. Ebling’ s Requests Nos. 1 and 2 is without merit, it appea rs that Ms. Ebling ma

y be entitled to judg ment as a ma tter of law

in her fa vor. Howe ver, beca use Ms. Ebling ha s not cross-moved f or summary

judgme nt, the Court cannot orde r the DO J to beg in proce ssing these reque sts in the posture that this case now sta nds. There fore , the Court will require the DOJ t o show ca use, on or be fore Fr iday , J uly 29, 2011, as to why

the Court should not gra

nt partial summary

judgme nt in Ms. Ebli ng ’s favor base d on its decision today and direc t the DOJ t o immediately beg in proce ssing Reque sts Nos. 1 and 2. SeeFe d. R. Civ. P

. 56(f) (1) ( “Af

ter g iving notice and a r easona ble time to respond, the c ourt may . . . g rant summary judgme nt for a nonmova

nt.”).

for r ecor ds relating

to Mr. Price we re a ccompa nied by a Certific ation of I dentity and Authorization to R elea se Information to Another Person from Mr. Pric e. 20B. Ms. Ebling Has Not E xhaus ted Her Adm inis trative Rem edies With Respect to Request No. 3 Ex haustion of administrative re medies is not a jurisdictional require ment under F OI A. Hidalgo v. Fed. Bure au of Inve stigati on , 344 F.3d 1256, 1258- 59 (D.C. Cir. 2003). None theless, it is a jurisprudential considera tion, id. , and the f

ailure to file a

timely administrative appe al as specifie d by

an ag ency ’s FO IA re g ulations will gene rally prec lude a f

uture suit, W

ilbur v. Cent. IntelligenceAgenc

y , 355 F.3d 675, 676 ( D.C. Cir. 2004) ( per curiam ). In this case, Ms. Ebling failed to e x haust her a dminist rative r emedies w ith respec t to Request No. 3, throug h which she soug ht rec ords from the F BI perta ining to Ms. Price. On this point, t he DOJ has introduced unr efute d evidenc e esta blishing that the OIP has no

rec ord of e ver r ece iving a n appea l from Ms. Ebling in c onnection with this particular reque st, see J ones De cl. ¶ 2; Gilbert De cl. ¶ 2, a nd in this contex t the evidenc e prof fer ed by the DOJ is entitled to a “pr esumption of g ood faith.” SafeCard Servs., Inc . v. Sec s. & Exc h. Comm’n , 926 F.2d 1197, 1200 ( D.C. Cir. 1991). True, Ms. Eblingpurports to dispute the DOJ’s contention, but her re sponse is insufficient to cr eate a g enuine dispute. Spec ifically , Ms. Ebling a lleg es that she fax ed a le tter to the OI P appealingthe FB I ’s initial denial of Request No. 3. See Pl.’s St mt. Ex . P (L tr. from B . Ebling to the O I P dated Mar. 15, 2010) . Howeve r, the only support for he r alleg ation that she ac tually sent the letter is a

putative fax confirmation pag e, but that document is dated Mar ch 23, 2010—more than a we ek af ter the ostensible date of the le tter. See Pl.’s St mt. Ex . P (Fax Confirmation Pag e date d Mar. 23, 2010)

. See id. More to the point, the fax confirmation pag e nowhe re e vidence s what wa s actua lly sent to the listed fax number. See id. I n other wor ds, there is nothing to link the letter and the f ax confirmation pag e. The ref ore, e ven

cre diting Ms. Ebling ’s alleg ation that, whateve r she se nt on March 23, 2010, she sent it to the 21same fax number a s her pr ior submissions to the OI P, there still is no basis for a re asonable fac tfinder to c onclude that wha t she sent was, in fa ct, a letter appea ling he r Request No. 3. B eca use the DOJ has introduced unre futed e vidence that it has no rec ord of e ver r ece iving a n appea l from Ms. Ebling with re spect to this reque st, the absenc e of a ffirmative evidenc e that would allow a

rea sonable fa ct-finde r to find that what Ms. Ebling sent on Marc h 23, 2010 was in fa ct a letter appea ling he r Request No. 3 is fatal to her position. See Liberty Lobby , 477 U.S. at 257. I n short, her r esponse is insufficie nt to create a g enuine dispute. Howeve r, there is a separ ate, a nd equally

compelling , rea son to find that Ms. Ebling has failed to e x haust her a dminist rative r emedies in c onnection with Request No. 3. Eve n cre diting all of Ms. Ebling’ s alleg ations, they would, at best, sug g est that she faxed an appe al letter to the OI P. However , the applica ble DOJ reg ulations contemplate that a ppeal letter s should be phy sically

mailed to the OI P’s office s in W ashing ton, D.C. See28 C.F.R. § 16.9(a) . I n this reg ard, the regulations advise that individuals seekingto appea l an adve rse de termination should “mar k [t heir] appea l letter and the envelope ‘F ree dom of Information Ac t Appeal.’ ” Id. I n this

case , the FB Iexpressly

informed Ms. Ebling of these r equire ments when it denied Reque st No. 3: You may file an appea l by writing the Direc tor, Offic e of I nformation Policy (OI P), U.S. Depa

rtment of J ustice, 1425 New York Ave., NW, Suite 11050, Washington, D.C. 20530-0001. Your appeal m u s t be rec eived by

OI P within s ix ty (60) day s from the date of this letter in order to be considere d timely

. The envelope and the letter should be clea rly marke d “F ree dom of Information [Act] Appeal.” Har dy Dec l. Ex . K (Ltr. from the F BI to B. Eblingdated F eb. 28, 2010), at 1. These require ments are not purely technica l. Rather, they

are desig ned to cr eate a uniform a nd streamlined pr ocess to ensur e that appe als are rec eived a nd proce ssed, and the D OJ is entitled to insist t hat re questors adhe re to their stric tures. Where , as her e, a “ reque st is not m ade in 22acc ordanc e with [the ag ency ’s] publi shed re gulations, the FOI A claim is subject to dismissal for failure to exhaust admini strative re medies.” Calhoun v. Dep’t of Justice , 693 F. Supp. 2d 89, 91 (D.D.C. 2010), aff’d , No. 10-5125, 2010 WL4340370 (D.C. Cir. Oct. 19, 2010); see also Picke ring-Georgev. Re

gistrati on Unit, DEA/DOJ , 553 F. Supp. 2d 3, 5 (D.D .C. 2008); Thorn v. United States , Civil Action No. 04-1185 ( RJ L ), 2005 WL3276285, at *3 (D.D .C. Aug . 11, 2005). Ther efor e, the Court will g rant summary judgme nt in the DOJ ’s favor insofar as it seeks dismiss al of Ms. Ebling ’s claims re lating to Reque st No. 3. VII. CONCLUSION For the re asons set for

th above, the Court will g rant-in- part a nd deny -in-par

t the DOJ’s [9] Motion for Summary

J udg ment. Specifica lly , the Court will gr ant the motion insofar a s it seeks dismissal Ms. Ebling’s c laims relatingto Request No. 3; howeve r, the Court will deny the motion ins ofar

as it seeks dismissal of Ms. Ebling’ s claims relating to Reque sts Nos. 1 and 2. Moreove r, the Court will direct the D OJ to show cause , on or bef ore F riday , J uly

29, 2011, as to why the Court should not gra

nt summary

judgme nt in Ms. Ebli ng ’s favor with respe ct to her claims based on Re quests Nos. 1 and 2 a nd direc t the DOJ t o immediately beg in proce ssing those reque sts. An appropriate Orde r ac companies this Memora ndum Opinion.

Date: J uly

11, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

23