United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge.
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  is granted
in part and denied in part, and the FCC's motion for
summary judgment  is granted in part and denied in part.
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.
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.
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.
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”.
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.
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.
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.
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).
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