Conley v. Federal Bureau of Investigation
714 F. App'x 191
| 3rd Cir. | 2017Background
- Kevin Conley, a New Jersey state prisoner, submitted FOIA/Privacy Act requests to the FBI in April 2011: one for records about himself and one for the RFLP DNA analysis/policy in effect in January 1995; he also sought a fee waiver.
- For the RFLP request the FBI released 107 pages from a June 1996–July 2000 RFLP manual on Oct. 27, 2011, redacting material under FOIA Exemption (b)(7)(E); OIP affirmed the FBI’s withholding on administrative appeal.
- The FBI later (Sept. 3, 2015) located and released the actual manual in effect in Jan. 1995 with redactions under other exemptions, but Conley did not challenge that release in district court.
- For the Conley (individual) request the FBI denied a fee waiver, produced responsive pages on Dec. 16, 2011 (with some withheld), and Conley’s administrative appeal to OIP arrived late (received Mar. 1, 2012).
- After Conley sued, the FBI located ~1,857 additional pages (July 14, 2015), offered them subject to duplication fees; Conley returned the form with conditional consent, which the FBI treated as nonpayment and closed the request.
- The District Court granted the FBI summary judgment, concluding Conley failed to exhaust administrative remedies and properly denied a fee waiver; Conley appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fee waiver denial | Conley: qualifies (public-interest organizations, use to challenge conviction) | FBI: Conley seeks records for personal use; no proof he represents orgs; not in public interest | Fee waiver denial affirmed (no public-interest showing; moot as to RFLP request released without fees) |
| Timeliness of administrative appeal (Dec. 16, 2011 response) | Conley: did appeal to OIP | FBI: OIP received appeal after regulatory deadline | Appeal untimely; failure to exhaust affirmed |
| Failure to pay duplication fees for additional 1,857 pages | Conley: returned form indicating willingness to pay (with conditions) | FBI: conditional response equated to refusal to pay; closed request | Failure to pay = failure to exhaust; affirmed |
| Withholding under FOIA Exemption (b)(7)(E) for June 1996–July 2000 RFLP manual | Conley: redacted procedures are not investigatory and are public/common scientific tests; FOIA withholding improper | FBI: (did not defend its withholding before district court or adequately on appeal) | Vacated in part: government failed to carry burden justifying (b)(7)(E) redactions; remanded for further proceedings on whether exemption invocation was waived |
Key Cases Cited
- Abdelfattah v. U.S. Dep't of Homeland Sec., 488 F.3d 178 (3d Cir. 2007) (two-tier review for FOIA summary judgment)
- Lame v. U.S. Dep't of Justice, 767 F.2d 66 (3d Cir. 1985) (standard for reversing factual findings at summary judgment)
- Ely v. Postal Serv., 753 F.2d 163 (D.C. Cir. 1985) (fee-waiver standard ties waiver to public benefit and not for information about requester only)
- McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993) (FOIA exhaustion requirement and prudential jurisdictional consideration)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (timely administrative appeal required under FOIA regulations)
- Longenette v. Krusing, 322 F.3d 758 (3d Cir. 2003) (limits on the prison mailbox rule where regulations require actual receipt)
- Pollack v. Dep't of Justice, 49 F.3d 115 (4th Cir. 1995) (fees are necessary component of FOIA administrative process)
- Oglesby v. U.S. Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990) (exhaustion not complete until required fees paid or appeal of fee denial taken)
- Dep't of State v. Ray, 502 U.S. 164 (1991) (agency bears burden to justify FOIA withholding)