Requester exhausted remedies before filing suit 

Where a plaintiff’s initial complaint challenging the government’s response to requests under the Freedom of Information Act was filed more than 20 business days after the request was made, the administrative remedies were exhausted.

Background

Ayyakkanu Manivannan filed a complaint pursuant to FOIA against the Department of Energy’s National Energy Technology Laboratory, or NETL, alleging that NETL failed to adequately respond to several requests for records pursuant to FOIA. The district court granted summary judgment in favor of NETL.

Analysis

First, NETL was entitled to summary judgment with respect to FOIA requests 78, 1069, 1268, 1284, 1347, 1348 and 1759 because Manivannan failed to pay fees that NETL was permitted to assess. Second, NETL was entitled to summary judgment with respect to request 890 because Manivannan did not exhaust his administrative remedies before filing suit. Further, Manivannan did not constructively exhaust his administrative remedies because NETL cured the statutory violation based on its failure to timely respond to Manivannan’s request by responding before he filed suit.

 Third, NETL was entitled to summary judgment on the basis that its searches with respect to requests 833 and 1070 were adequate. Fourth, the agency met its burden to show that it properly redacted or withheld information pursuant to the statutory exemption in 5 U.S.C. § 552(b)(6) relating to personal privacy, and Manivannan failed to overcome the presumption of good faith accorded to the agency’s relatively detailed and nonconclusory affidavits. Finally, the district court did not abuse its discretion in determining that an in camera review was unnecessary to determine whether the agency validly applied the personal privacy exemption.

The district court erred, however, in finding that Manivannan did not constructively exhaust his administrative remedies with respect to request 946. An agency must ordinarily notify a requester of its “determination and the reasons therefor” within 20 business days of receiving a FOIA request. NETL did not send Manivannan a new determination letter before he filed suit Nov. 6, 2017. Since more than 20 working days had elapsed, Manivannan had constructively exhausted his claim with respect to request 946.

While the district court determined that NETL cured its failure to respond by sending a determination letter April 11, 2018, two weeks before Manivannan filed his amended complaint, the date on which Manivannan filed his initial complaint is the appropriate benchmark for determining if NETL cured its failure to respond to request 946. Because request 946 was constructively exhausted, the district court should determine on remand whether the agency’s search was adequate and whether any exemptions were applicable.

The district court also erred in finding that NETL met its burden to show that it properly redacted or withheld information pursuant to the statutory exemption in 5 U.S.C. § 552(b)(5) relating to legal privileges. From the record, the district court lacked an adequate factual basis to rule on the propriety of NETL’s redactions and withholding of documents under this exemption pursuant to request 833. 

Specifically, some of the responsive documents appear to have been sent to employees of Penn State University or attorneys in the district attorney’s office that oversaw Manivannan’s prosecution in Pennsylvania. As a threshold matter then, the district court should first determine if the records were “inter-agency or intra-agency” before deciding whether NETL stated a good faith basis for applying the exemption. If a document is neither inter-agency nor intra-agency, then NETL may not withhold it under this exemption, regardless of whether it reflects the deliberative process of the agency, is attorney work product or is an attorney-client communication.

Affirmed in part, vacated in part and remanded. 

Ayyakkanu Manivannan v. Department of Energy, Appeal No. 19-2188, Jan. 12, 2021. 4th Cir. (per curiam), from NDWVA at Clarksburg (Kleeh). Ayyakkanu Manivannan for Appellant, Tara Noel Tighe for Appellee. VLW 021-2-015. 8 pp.