Kovalevich v. Bureau of Indian Affairs
Civil Action No. 2018-0610
| D.D.C. | Jun 14, 2021Background:
- Plaintiff Sean Kovalevich, a North Dakota prisoner, submitted a FOIA/Privacy Act request (Dec 2016) to the Bureau of Indian Affairs/Turtle Mountain Law Enforcement for records concerning him; he said he would pay fees if notified when >$10.
- The Bureau estimated seven hours of processing and $215 in fees, requested written assurance of payment, and closed the file when plaintiff did not agree to pay within 20 workdays.
- Plaintiff appealed the fee determination and filed a renewed request after the Bureau closed the file; appeals to the Department of the Interior received no response.
- Plaintiff sued (Mar 2018). During litigation the Bureau searched, located ~260 pages, and produced 83 responsive documents (Oct 2018), redacting third‑party identifying information under FOIA Exemptions 6 and 7(C).
- Plaintiff conceded the adequacy of the search and the claimed exemptions but sought an order forbidding assessment of search fees, an injunction against alleged agency practices of ignoring FOIA deadlines, and attorney’s fees/costs.
- The Court granted the Bureau’s cross‑motion and denied plaintiff’s motion: search was adequate, redactions proper and segregable, fee challenge moot, no evidence of an agency‑wide policy of delay, and pro se plaintiff not entitled to attorney’s fees now (may renew costs post‑judgment).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search for responsive records | Kovalevich challenged delays but does not dispute search results | Bureau conducted a reasonable, documented 7‑hour search across relevant databases and files | Search was adequate; agency entitled to summary judgment |
| Withholding/redaction under FOIA Exemptions 6 and 7(C) | Plaintiff no longer contests exemptions but sought in camera review earlier | Bureau withheld third‑party names/photos/phones from law‑enforcement files invoking privacy exemptions | Withholdings properly justified under Exemption 7(C); Exemption 6 subsumed; redactions lawful |
| Segregability of nonexempt information | Plaintiff asked full disclosure of nonexempt material | Bureau produced/redacted documents and supplied a Vaughn index showing limited withholdings | Agency satisfied segregability obligation; presumption of compliance unrebutted |
| Fee assessment after untimely response | Kovalevich contends agency cannot assess search fees because it missed statutory deadlines | Bureau initially estimated fees but ultimately produced records without charging plaintiff | Claim moot: production without fee removes live controversy; Court lacks jurisdiction to order future fee prohibition |
| Alleged policy/practice of ignoring FOIA and deadlines | Plaintiff claims Bureau systematically ignores requests/appeals and delays responses | Bureau points to this case’s facts and the production; no proof of formal/informal policy of systemic delay | No record evidence of a policy/practice of delay; claim fails (delay alone insufficient) |
| Attorney’s fees and costs | Plaintiff seeks fees/costs as prevailing party | Bureau opposes; plaintiff is pro se and ineligible for FOIA attorney’s fees; costs not briefed | Attorney’s fees denied (pro se ineligible); costs denied without prejudice—plaintiff may renew a properly supported post‑judgment motion |
Key Cases Cited
- Oglesby v. U.S. Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990) (standard for adequacy of FOIA search)
- Valencia‑Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agency must demonstrate search reasonably calculated to uncover relevant documents)
- Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (segregability requirement for nonexempt material)
- Roth v. U.S. Dep't of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (relationship between Exemptions 6 and 7(C) and privacy balancing)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (presumption that agency complied with segregability duties)
- Hall v. CIA, 437 F.3d 94 (D.C. Cir. 2006) (challenge to fee waiver moot where agency produced records without seeking payment)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements: injury must be concrete, particularized, and imminent)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (threatened injury must be certainly impending to confer standing)
- Muckrock, LLC v. CIA, 300 F. Supp. 3d 108 (D.D.C. 2018) (reasonableness standard for agency search in FOIA cases)
- Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (privacy interests in law‑enforcement files justify withholding identities)