Viola v. DOJ, No. 16-1411, 2018 WL 1583307 (D.D.C. Mar. 31, 2018) (Chutkan, J.)

Viola v. DOJ, No. 16-1411, 2018 WL 1583307 (D.D.C. Mar. 31, 2018) (Chutkan, J.)

Re: Request for records concerning third parties

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court relates the facts of defendant's search and then finds that "Plaintiff has not presented sufficient evidence to rebut the presumption of good faith accorded [defendant's] declaration regarding the search."  Specifically, the court holds that "Plaintiff presented no evidence that EOUSA failed to properly search its records."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that, while "there is no evidence that Plaintiff exhausted his administrative remedies regarding his request for . . . records before he filed this lawsuit[,]" "[i]n the absence of any argument from Defendant regarding the significance – if any – of Plaintiff's administrative appeal of the FBI's second determination letter during litigation, as well as the significance of the second FOIA request and appeal, [the] court finds that Defendant has not shown that Plaintiff failed to exhaust his administrative remedies with regard to his request for documents[.]"
   
• Exemptions 6, 7(A), 7(C), 7(D), 7(E) & Waiver:  The court relates that "Plaintiff did not respond to the FBI’s exemption arguments, nor did he respond to its Statement of Facts."  "However, he asserts that the tapes were 'widely' disseminated during discovery[.]"  "Construing Plaintiff's assertions as a challenge to the exemptions, the court finds his argument unavailing."  "Plaintiff has proffered no evidence that the recordings were played in court or were disclosed without a protective order."  "In sum, Plaintiff has offered no arguments or evidence that the FBI violated FOIA in withholding the responsive records and the court will therefore grant Defendant's motion for summary judgment on this issue."
   
• Litigation Considerations:  The court denies plaintiff's request for the court to appoint him counsel and holds that "Plaintiff has not established that there is any potential merit to his claims."  "Instead, he has barely survived summary judgment on a single issue, which the Defendant failed to address in its reply brief, and which, even if resolved in his favor, may not lead to disclosure of the records he seeks."  "Plaintiff also has failed to demonstrate that he is unable to retain counsel by other means."  "Accordingly, the interests of justice would not be served by appointing counsel in this action, and his request will be denied."