United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey United States District Judge.
the Court is the Report and Recommendation filed June 20,
2016, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 5). Plaintiff Jessie Carter has timely filed objections
to the Report and Recommendation (ECF No. 6), along with an
addendum. (ECF No. 7). The Court finds this matter ripe for
case arises from Freedom of Information Act
(“FOIA”) requests submitted by Plaintiff to the
United States Department of Agriculture (“USDA”).
The record shows that Plaintiff submitted a FOIA
appeal (“FOIA #2015-00207”) with USDA
on June 23, 2015, which was marked as “received”
by USDA on July 8, 2015. Plaintiff submitted a second FOIA
request (“FOIA #2015-04394”), dated July 2, 2015,
which was denied by USDA on August 6, 2015 because the
requested information from the National Disqualification List
violated the privacy rights of individuals. In March 2016,
Plaintiff consulted U.S. Senator John Boozman's office,
and was advised to submit a revised version of FOIA
#2015-04394 to USDA. Plaintiff did so, rewording certain
language in the request and submitting a third FOIA request
to USDA (“FOIA #2016-02999”). On March 28, 2016,
USDA marked FOIA #2016-02999 as “received.”
7, 2016, Plaintiff filed a pro se action in this
Court. Plaintiff's Complaint requested that USDA be
enjoined from withholding requested agency records. On June
20, 2016, Judge Bryant issued a Report and Recommendation,
recommending that Plaintiff's Motion for Service (ECF No.
2) be denied and Plaintiff's case be dismissed in its
entirety. Judge Bryant's Report and Recommendation stated
that Plaintiff has not presented a claim upon which relief
may be sought because he has not shown that he has exhausted
USDA's FOIA administrative appeals process before
initiating this action. Thus, Judge Bryant concluded that the
federal judiciary does not have jurisdiction to hear the FOIA
dispute, and recommends that Plaintiff's case be
dismissed. On July 7, 2016, Plaintiff filed timely objections
to Judge Bryant's Report and
Recommendation. On July 17, 2016, Plaintiff filed an
addendum to his objections.
FOIA was enacted “to facilitate public access to
Government documents.” U.S. Dep't of State v.
Ray, 502 U.S. 164, 173 (1991) (citation omitted). To
obtain access to government records under the FOIA, two
requirements must be met: (1) a reasonable description of the
records must be made; and (2) the requestor must comply with
the agency's published FOIA rules. 5 U.S.C. §
552(3)(A). FOIA requires an agency to determine within 20
days after receiving the request (excluding Saturdays,
Sundays, and legal public holidays) whether documents should
be provided or withheld, and the reasons therefor. 5 U.S.C.
§ 552(a)(6)(A)(i). This same 20-day time limit also
applies to determinations on FOIA appeals. 5 U.S.C. §
552(a)(6)(A)(ii). An agency may, by written notice, obtain an
extension of time for unusual circumstances. 5 U.S.C. §
an agency refuses to furnish the requested records, the
requester may file suit in federal court and obtain an
injunction ‘order[ing] the production of any agency
records improperly withheld.'” Taylor v.
Sturgell, 553 U.S. 880, 885 (2008) (citing 5 U.S.C.
§ 552(a)(4)(B)). A requester must exhaust all
administrative appeals before filing a FOIA suit in federal
court. See Brumley v. U.S. Dep't of Labor, 767
F.2d 444, 445 (8th Cir. 1985). However, a requester is
considered to have exhausted all administrative remedies if
an agency fails to respond to a FOIA request within the time
limit provided by 5 U.S.C. § 552. Wilson v. United
States, No. CIV 08-5022-RHB, 2009 WL 387086, at *4
(D.S.D. Feb. 11, 2009) (citing 5 U.S.C. §
to 28 U.S.C. § 646(b)(1), the Court will conduct a
de novo review of all issues related to
Plaintiff's specific objections. Plaintiff's
objections reference FOIA #2015-00207, stating that USDA did
not make a determination on the appeal within FOIA's
20-day time limit. Plaintiff also states that USDA did not
respond to FOIA #2016-02999 within the 20-day period. Lastly,
Plaintiff states that “USDA has failed to respond
timely . . . [to] the July 2015 request for appeal #
(2015-FNS-04394-F).” (ECF No. 6). Plaintiff concludes
his objections by asking the Court to order USDA to release
the requested information in its entirety. The Court will now
turn its analysis to each of the three FOIA requests at issue
in this case and discuss whether Plaintiff exhausted his
administrative remedies for each.
to evidence provided by Plaintiff, he submitted this FOIA
appeal on June 23, 2015. The record does not contain any
information concerning the original FOIA request that
Plaintiff sought to appeal by submitting FOIA #2015-00207.
The appeal was marked “received” on July 8, 2015.
On July 14, 2015, this appeal was assigned the tracking
number #2015-FNS-00207-A, and Plaintiff was informed that the
appeal had a target response date of August 5, 2015. (ECF No.
1). On January 16, 2016, USDA sent Plaintiff an email with
the subject title “00207-A, ” which stated that
“the matter is currently under review.” (ECF No.
6). As far as the Court can tell, this is the only evidence
in the record concerning FOIA #2015-00207.
argues that USDA failed to make a determination on FOIA
#2015-00207 within the 20-day time limit set by law. The
Court agrees. USDA received FOIA #2015-00207 on July 8, 2015,
and had 20 working days to respond to the appeal.
See 5 U.S.C. § 552(a)(6)(A)(ii). The January
19, 2016 email from USDA to Plaintiff, in which USDA stated
it was still reviewing the appeal, shows that USDA had not
yet made a determination nearly five months after the
determination was due. The record contains no evidence to the
contrary to show USDA responded within the 20-day time limit
or requested an extension of time. Based on the evidence in
the record, the Court concludes that Plaintiff exhausted his
administrative remedies with respect to FOIA #2015-00207
because USDA did not respond to the appeal within the 20-day
time limit set forth in 5 U.S.C. § 552. Therefore, the
Court finds that it was proper for Plaintiff to file a
federal action regarding FOIA #2015-00207.
record shows that Plaintiff submitted FOIA request
#2015-04394 to USDA on July 2, 2015. The record does not
indicate what day USDA received this request, thus beginning
the 20-day response period. On August 6, 2015, USDA
responded, denying the request on the basis that it requested
information that would invade individuals' ...