UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gregory Alan Gaylor

v. Civil No. 05-cv-414-PB

United States Department of Justice

O R D E R

Gregory Gaylor has filed a complaint seeking the release of

information and documents from the United States Department of

Justice (“DOJ”), pursuant to the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, et seq., and the Privacy Act, 5 U.S.C.

§ 552a, et seq. Because Gaylor is a prisoner proceeding pro se

and in forma pauperis, the matter is before me for preliminary

review to determine whether or not Gaylor has stated any claim

upon which relief might be granted. Because I determine that he

has, I direct that the complaint be served on the defendant.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to either direct service of the complaint against one or more of

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the defendants, or to prepare a report and recommendation

advising the district judge that the complaint or some portion

thereof should be dismissed because:

(i) the allegation of poverty is untrue, the action 

is frivolous, malicious, or fails to state a claim 

upon which relief may be granted, or seeks monetary 

relief from a defendant who is immune from such 

relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2)(A)-(C). In conducting the preliminary review, the

Court construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

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1Gaylor has attached Huff’s letter to his complaint.

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of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). 

Application of this standard ensures that pro se pleadings are

given fair and meaningful consideration. See Eveland v. Dir. of

C.I.A., 843 F.2d 46, 49 (1st Cir. 1988).

Background

In 2001, Gregory Gaylor requested, pursuant to FOIA and the

Privacy Act, that the DOJ release all information and documents

in their possession concerning Gaylor. FOIA allows the federal

government twenty days to respond to such a request. In the five

years since Gaylor made his request, however, the DOJ has

entirely failed to comply with or even properly respond to

Gaylor’s 2001 request. 

In January of 2005, Gaylor appealed to the DOJ’s Office of

Information and Privacy (“OIJ”) the DOJ’s failure to respond to

his request for records. In February of 2005, Gaylor received a

letter from Richard L. Huff, the co-director of the OIJ.1

Although Gaylor describes the letter as an apology, Huff did not

apologize for the four year delay in providing any response or

documents, but rather advised Gaylor that the DOJ’s criminal

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division was “still processing” his request. Huff went on to

explain that Gaylor had the option to wait until the criminal

division finishes processing his request and re-appeal if any of

the desired documents are actually denied to him, or to treat

Huff’s letter as a denial, in which case, Gaylor may then bring

an action in federal court. Huff’s letter also expressed hope

that Gaylor “in making a decision ... will give sympathetic

consideration to the fact that the Department of Justice has many

requests pending at this time and is making every possible,

reasonable effort to process them.”

Discussion

1. FOIA Claim

“FOIA requires government agencies to ‘make ... promptly

available’ to any person, upon request, whatever ‘records’ the

agency possesses unless those ‘records’ fall within any of nine

listed exemptions. 5 U.S.C. § 552(a)(3).” Church of Scientology

Int’l v. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir. 1994);

Dep’t of Interior & Bureau of Indian Affairs v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 7 (2001) (“Upon request, FOIA

mandates disclosure of records held by a federal agency”). Once

a proper request is made the Agency is required to determine,

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within twenty working days of receiving the request, whether to

comply with the request. 5 U.S.C. § 552(a)(6)(A)(i). The agency

need not fulfill the request within twenty days, but must “notify

the requester of its decision whether and how it will comply, its

reasons for that decision, and the requester’s right to appeal

any adverse determination to the agency head.” Pollack v. Dep’t

of Justice, 49 F.3d 115, 118 (4th Cir.), cert. denied, 516 U.S.

843 (1995). Although a person requesting documents must

ordinarily exhaust administrative remedies before seeking a

review of the agency’s denial in the federal court, the agency’s

failure to respond to the initial request within the statutory

20-day time limit may constitute “constructive exhaustion.” Id.,

see 5 U.S.C. § 552(a)(6)(C). A person who has constructively

exhausted his administrative remedies may proceed in the federal

court. 

Under FOIA, requested records must be provided within the

time limits set under the statute, if they are properly requested

under the statute. To make a proper request, a requester must

submit a request which (A) reasonably describes such records and

(B) is made in accordance with published procedural rules or

requesting records. 5 U.S.C. § 552(a)(3). Here, Gaylor alleges

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that his request was for all records pertaining to himself, which

appears to be a reasonable description of the records sought. 

Further, the fact that Huff’s letter concedes that the request is

being processed indicates that Gaylor likely complied with the

procedural requirements for making a request. Accordingly, I

find for purposes of preliminary review that Gaylor has made a

proper FOIA request which has not been adequately complied with

and that this claim may proceed against the United States.

2. Privacy Act Claim

The Privacy Act requires federal agencies to, upon request,

grant individuals access to records pertaining to themselves

within ten days of such a request. 5 U.S.C. § 552a(d)(1). When

any agency refuses access to certain records or fails to provide

access to records within the time frame prescribed by statute,

the individual may bring an action in federal court. 5 U.S.C. §

552a(g)(1). Exhaustion of administrative remedies is required

under the privacy act. 5 U.S.C. § 552a(a)(6)(C). As stated

earlier, Gaylor has made a proper request for access to records

pertaining to himself. Huff’s letter to Gaylor indicates that

Gaylor has exhausted his administrative appeal to the DOJ. 

Accordingly, I will allow the Privacy Act claim to proceed.

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Conclusion

Without further comment on the merits of the complaint, I

order that the complaint be served upon defendant. The Clerk’s

office is directed to issue the necessary summons form and

forward to (i) the United States Attorney for the District of New

Hampshire, (ii) the Attorney General of the United States, and

(iii) United States Department of Justice, by certified mail,

return receipt requested, the summons and copies of the Complaint

(document no. 1) and this Order. See Fed. R. Civ. P. 4(c)(2) and

4(i). 

Defendant is instructed to answer or otherwise plead within

thirty days of service. See 5 U.S.C. § 552(a)(4)(C). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendant by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 14, 2006

cc: Gregory Alan Gaylor, pro se

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