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Chelmowski v. Federal Communication Commission

United States District Court, N.D. Illinois, Eastern Division

February 24, 2017

JAMES CHELMOWSKI, Plaintiff,
v.
FEDERAL COMMUNICATIONS COMMISSION, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN United States District Judge.

         Plaintiff James Chelmowski filed a complaint pro se alleging violations of the Freedom of Information Act (“FOIA”). Chelmowski contends that the Federal Communications Commission (“FCC”) is unlawfully withholding records that Chelmowski requested. The parties filed cross-motions for summary judgment and this Court heard oral arguments on the motions. For the reasons stated below, Chelmowski's motion for summary judgment [38] is granted in part and denied in part, and the FCC's motion for summary judgment [35] is granted in part and denied in part.

         Background:

         Plaintiff James Chelmowski filed a complaint pro se alleging violations of FOIA. Chelmowski contends that the FCC is unlawfully withholding records that Chelmowski requested. He asks the Court to (1) order the FCC to search for and produce all responsive records and to submit a Vaughn index of any responsive records withheld under any FOIA exemption; (2) to enjoin the FCC from withholding any non-exempt records that are responsive to his FOIA requests; and (3) to award him costs and attorneys' fees.

         The case stems from four overlapping FOIA requests filed with the FCC. On September 11, 2015, Chelmowski filed two FOIA requests that were assigned FOIA Nos. 2015-768 and 2015-769, and consolidated by the FCC. The first one, 2015-768 requests all documents relating to FCC informal complaint 11-C00292341, and the second one, requests all documents relating to FCC informal complaint 11-C00325771. On September 17, 2015, the FCC responded to FOIA Nos. 2015-768 and 2015-769 by letter with 14 pages of responsive records and advising Chelmowski that if considered the response to be a denial of his request, he had 30 calendar days to file an application for review with the FCC's Office of General Counsel. Dkt. 27-1, Ex. 5. On September 30, 2015, Chelmowski filed an administrative appeal of the consolidated response. On October 20, 2015, the FCC sent Chelmowski a response to his administrative appeal with 87 pages of additional material. Dkt. 27-1, Ex. 7. In that letter, the FCC informed Chelmowski that he had until November 20, 2015, to contact the FCC with objections and that if he failed to object the FCC would consider the appeal resolved. Id.

         Before the November 20th deadline, Chelmowski submitted a request for assistance to the Office of Governmental Information Services (OGIS), which is a separate agency from the FCC. The next day, on November 13, 2015, Chelmowski tried to electronically file his letter to OGIS in the FCC's electronic filing system and emailing it to the FCC's Enforcement Bureau. He filed the OGIS request for assistance in proceeding No. 14-260, which was a separate non-FOIA proceeding before the FCC's Enforcement Bureau. Proceeding No. 14-260 was no longer active because it related to a formal complaint Chelmowski made against AT&T Mobility that was dismissed as untimely on July 10, 2015. The FCC also denied Chelmowski's motion for reconsideration of that dismissal on October 15, 2015, with no further agency proceedings. The FCC asserts that this submission of the OGIS letter therefore was not received by the FCC staff responsible for FOIA requests (Consumer and Governmental Affairs Bureau and the Office of General Counsel) until December 21, 2015.

         After Chelmowski failed to file objections or any response to the FCC's October 20, 2015, letter, the FCC categorized Chelmowski's FOIA Nos. 2015-768 and 2015-769 as “Closed for Other Reasons - Request Withdrawn”.

         On February 10, 2016, Chelmowski filed a new request that was given No. 2016-345. This request (and another Chelmowski filed, No. 2016-665), requested all documents from January 1, 2011 to February 10, 2016, between the FCC and AT&T (or its subsidiaries) regarding: (1) various permutations of the spelling of Chelmowski's name; (2) informal complaint No. 11-C00292341; (3) informal complaint No. 11-C00325771; (4) formal complaint No. EB-14-MD-016 and associated proceeding No. 14-260; and (5) D.C. Circuit case No. 15-1292.

         On March 11, 2016, the FCC responded to FOIA request No. 2016-345, stating that it found no material responsive to the request that the FCC had not already provided to Chelmowski, and gave him 30 calendar days to file an application for review. Dkt. 27-2, Ex. 12. On March 16, 2016, Chelmowski filed an administrative appeal of the FCC's response in FOIA No. 2016-345. FCC admits that it did not timely respond to Chelmowski's appeal in FOIA No. 2016-345 within the 20 working days provided in 5 U.S.C. § 552 (a)(6)(A)(ii), and thus, the agency deems Chelmowski to have exhausted his administrative remedies for 2016-345.

         On August 4, 2016, the FCC sent Chelmowski a consolidated response to his FOIA request Nos. 2016-345 and 2016-665, notifying him that a further search of FCC databases, including FCC's email system is necessary to respond fully to the request and that the time involved with conducting the search would result in a fee of $917.28. Dkt. 27-3, Ex. 17. Chelmowski has not remitted payment and the FCC has not yet conducted the search.

         Legal Standard

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Evans v. U.S. Dep't of Interior, 135 F.Supp.3d 799, 809 (N.D. Ind. 2015) (quoting Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Veterans Affairs, 828 F.Supp.2d 325, 329-330 (D.D.C.2011)). Summary judgment is proper only if “the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In FOIA cases, the Court can resolve summary judgment solely on the basis of affidavits or declarations from agency employees if they are “relatively detailed and non-conclusory.” Evans, 135 F.Supp.3d at 809 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991)). A genuine issue of material fact exists whenever “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a genuine dispute exists as to any material fact, a court must view all the evidence and draw all reasonable inferences in favor of the non-moving party. See Weber v. Univ. Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir.2010).

         Discussion

         The FCC moves for summary judgment in its favor, arguing that it is undisputed that Chelmowski failed to exhaust his administrative remedies with respect to FOIA Nos. 2015-768 and 2015-769. The FCC also moves for summary judgment on FOIA Nos. ...


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