Appointment of Counsel to be denied as moot.

Co Me OSadl

Milton I. Shadur
Senior United States District Judge

Date: June 11, 2001


+ le Departin

Central Imelligence Agency

‘Washington, D.C. 20505

APR 24 2000

Mr. Richard V, Malak, Sr.
313 E, Oak Street, Apt. 1
. Watseka, Illinois 60970

Reference: F-2000-00621
Dear Mr. Malak:

. This acknowledges receipt of your letter dated 18 April 2000 concerning
your 8 March 200 Freedom of Information Act (FOIA) request for the list of

guard’s names that you located on the FOIA database on or about
17 December 1999,

..., response to your request the FOIA does not authorize or require

al agencies to answer questions.on behalf of requesters. Please note that
itional information you provided still does not sufficiently describe your

equest in such a manner that would allow us to locate any records concerning

the subject, if any exist. Therefore we cannot process your request. I note that

you mention that the list was headed “4th Infantry Division, Special Guards

Company.” In this light, we recommend that you direct your request to the
‘the Army,

’ We regret that we are unable to be of further assistance to you,

Sincerely,

Majo

Kathryn I, Dyer
Information and Privacy Coordinator .



delivered to Tenet (as the fax “ERROR TX Report” seems to
negate), its discursive narrative doesn’t even begin to approach
doing the necessary job to permit CIA’s performance of its FOIA
responsibilities.

It is of course worth noting parenthetically that the level
of sensitivity that attaches to many CIA documents might well
call into play one or more of the FOIA exemptions listed in
Section 552(b). This Court of course makes no ruling in that
respect, but that possibility makes it all the more important
that a requesting party provide the appropriate particulars to
enable the agency to determine what its disclosure obligations
may or may not be.

In any event, what the matter comes down to is that Malak
still has not made the necessary showing of having exhausted his
administrative remedies, a precondition to his calling on the
federal courts for assistance. Hence Malak’s accompanying
Application To Proceed Without Prepayment of Fees is denied once
again, and both the Complaint and this action are dismissed

without prejudice.* That in turn again causes his Motion for

3. Just because a putative plaintiff can obtain a free ride
into the federal court system by showing inadequate financial
resources, that does not justify such a party in abusing the
system through the filing of repeated unripe lawsuits. If Malak
were to try once again with another premature FOIA action, this
Court would have to consider dismissing that action with
prejudice (on the familiar premise that “three strikes are out”).



Central Intelligence Agency

iN

Washington, D.C. 20505

MAR 3 1 2000

___ Mx, Richard V. Malak, Sr.
” 313 EY'Oak Street, Apt. 1
Watseka, Illinois 60970

Dear Mr, Malak:
oa rb de”
“This acknowledges receipt of your 8 March 2000 letter faxed to our
airs Office, who then forwarded it to this office for consideration
Freedom of Information Act (FOIA). Specifically, you would like
’s names that you located on the FOIA database on or
mber 1999, For identification purposes we have assigned your
ber referenced above. Please refer to this number in future

correspondence.

Your request, because of its lack of specificity, cannot be processed. The FOIA
provides for public access to “reasonably described” records. This means that
the requester must describe records sufficiently to enable a professional
iki ith the subject to locate the records without an
aunt:of effort. This generally requires that the records must
h our indexing systems. The FOIA does not require federal
“ay perform research or to.conduct unreasonable searches through a
body of material to see if any of it is related to a particular request.

‘Further, the review of such records would impose an excessive and
‘unreasonable burden on the Agency, and pursuant to relevant precedent, we
moust decline to process such requests.

. In an effort to assist you, however, we have searched our system of
prev iously-released documents. but located no records matching those you
described: If wish to pursue your request further, we ask you provide
additional information surrounding the subject of your request.



Minote Order Form (36/9°5

United States District Court, Northern District of Illinois

Name of Assigned Judge ‘ Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 01 C 3996 DATE 6/11/2001
CASE Richard V. Malak, Sr. vs. George J. Tenet, et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented}
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
G3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
7) QO Trial{set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) General Rule21 CIFRCP41(a)(1) C FRCP41(a\(2).
do) [Other docket entry] | Enter Memorandum Opinion and Order. Malak’s Application to Proceed
without Prepayment of fees is denied once again, and both the Complaint and this action are dismissed
without prejudice. That in turn again causes his motion for appointment of counsel is denied as moot.
a) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required, umber of notices
J | Notices mailed by judge’s staff.
Notified counsel by telephone, st
Docketing to mail notices. @ . 4 -
Mail AO 450 form. Pipe bp % * dockgbah Hobe initials
Copy to judge/magistrate judge. FG crs
CTINg 1172081
91 yyy | Yersies nice
courtroom PH h:
SN deputy’s 05 SN
initials -
Date/time received in
central Clerk’s Office mailing deputy initials



oF . uy ww,

. For your information, the FOIA authorizes federal agencies to collect
fees for records services. You will note on the enclosed fee schedule that we

eis
ied any
even if our search resulis are negative or rif we determine that no

information is releasable under the FOIA.

. ‘upon:the information provided in your letter, we have determined
that your request falls into the “all other” fee category, which means that you

will be required to pay charges which recover the cost of searching for and

ag responsive records (if any) beyond the first 100 pages of

tion and the first two hours of search time, which will be furnished

opying costs will be assessed at the rate of ten cents per

we can begin processing your request, we must receive your
; tO | pay all fees incurred and under the conditions stated above.

The search fees for each item in a request are usually about $150.

Loe “We will he i dye you request in abeyance for 45 days from the date of this
letter pendin your response.

Sincerely,

bop

Kathryn I. Dyer
Information and Privacy Coordinator



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RICHARD V. MALAK, SR.

DOCKETED

JUN 1 2 2004

Plaintiff,
Vv. No. 01 C 3996

GEORGE J. TENET, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER

On May 22, 2001 this Court issued a brief memorandum order
in Case No. 01 C 3460, which Richard Malak (“Malak”) sought
to file against two CIA-affiliated defendants. As reflected in
that memorandum order, this Court surmised that Malak was
attempting to file a claim under the Freedom of Information Act
(“FOIA,” 5 U.S.C. §552'), but dismissal of his action was
required because he had made no showing of his having first
pursued the matter at the administrative level.

Now Malak has tried again, this time by tendering a
handwritten Complaint to which he has annexed photocopies of two
letters that the CIA sent him last year (both of those
photocopies are attached) plus a photocopy of a handwritten

April 14, 2001 letter that he attempted to send® to CIA Director

1 Purther citations to FOIA’s provisions will simply take
the form “Section 552--.”

2 “Attempted to send” is used advisedly, because the
photocopy shows its fax transmittal was unsuccessful. But
nothing hangs on that question.


George Tenet, one of the two defendants again named in this
action. But those documents carry their own death warrant in
terms of the viability of any current FOIA-based lawsuit by
Malak.

Section 552(a) (3) (emphasis added) states the obligations of
an agency to which a FOIA request is directed:

Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency,
upon any request for records which (A) reasonably
describes such records and (B) is made in accordance
with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the
records promptly available to any person.

And Section 552 (a) (4) (B) (emphasis added) sets out the
jurisdiction of a federal court where the agency has not complied
with its statutory obligation:

On complaint, the district court of the United States
in the district in which the complainant resides, or
has his principal place of business, or in which the
agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production
of any agency records improperly withheld from the
complainant.

As the attached photocopies reflect, CIA was entirely
amenable to meeting Malak’s requests, but it was frustrated by
xeason of Malak’s imprecision in identifying just what he was
requesting. It appears from the other Complaint exhibit (Malak’s
handwritten letter to Director Tenet) that Malak allowed nearly a
year to elapse without taking any steps after he had received

CIA’s request for more particulars--and even if that letter was