Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that a plea agreement between the government and William Price, convicted on child pornography charges, which prohibits Price from requesting records about his case under FOIA or the Privacy Act, does not constitute a waiver of the right of Bernice Ebling, Price's paternal aunt, to request the records in her name. Ebling made requests to both the Executive Office for U.S. Attorneys and the FBI for records pertaining to Price's case. She provided a Privacy Act authorization from Price to obtain his records. She also made a request to the FBI for records pertaining to Tami Lynn Price, Price's former spouse, and included a Privacy Act waiver for that request as well. EOUSA and the FBI rejected her request for Price's records, pointing to a plea agreement that prohibited Price from requesting his records as well as anyone acting on his behalf. The agencies contended that Ebling was acting as a surrogate for Price and was attempting to avoid the waiver restrictions. Kollar-Kotelly rejected the waiver argument. She noted that "even assuming that [Ebling is acting on Price's behalf], it is, at least for purposes of FOIA, irrelevant. Under the statute, Ms. Ebling's identity is 'of no significance' and her rights are no different than those that might be asserted by any other person. Ms. Ebling has a statutory right to make a FOIA request, and that right exists independently of whatever right Mr. Price may have once had to do the same." She pointed out that "here, the DOJ seeks to invoke a FOIA/PA waiver in a criminal defendant's plea agreement against a third party who is alleged to be a relative of the criminal defendant. Without some indication that the third party is bound by the terms of the plea agreement, this is patently impermissible." She added that "there is no evidenceâ€"noneâ€"that Ms. Ebling ever intended to relinquish her rights under FOIA. The reason is simple. Ms. Ebling is not a party to the agreement. The plea agreement presents no bar to Ms. Ebling's FOIA requests." She indicated that "the contractual promise [contained in the plea agreement] runs to the government only from Mr. Price, and him alone. . .To the extent that [the government] genuinely believes that Ms. Ebling is acting as Mr. Price's 'representative,' it may seek to enforce the terms of the plea agreement against Mr. Price in a court of competent jurisdiction. In this action, the Court cannot condone the DOJ's attempts to wield Mr. Price's plea agreement as a sword to defeat Ms. Ebling's FOIA requests." Kollar-Kotelly agreed with the FBI that Ebling had failed to exhaust administrative remedies for her request concerning Tami Lynn Price because there was no record the agency had received her administrative appeal. Although Ebling contended she had faxed the appeal, the FBI argued that its regulations required that appeals be sent by mail. Kollar-Kotelly noted that "these requirements are not purely technical. Rather, they are designed to create a uniform and streamlined process to ensure that appeals are received and processed, and the DOJ is entitled to insist that requesters adhere to their strictures."
Issues: Request - Perfected request

Date Filed	Doc #	Docket Text
2010-06-02	1	COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616030147) filed by BERNICE EBLING. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 06/07/2010)
2010-06-02		SUMMONS Not Issued as to DEPARTMENT OF JUSTICE (dr) (Entered: 06/07/2010)
2010-06-25	2	Case Randomly Reassigned to Judge Colleen Kollar-Kotelly. Judge Gladys Kessler no longer assigned to the case. (jeb, ) (Entered: 06/25/2010)
2010-07-22		SUMMONS (4) Issued as to DEPARTMENT OF JUSTICE(2), U.S. Attorney and U.S. Attorney General (dr) (Entered: 07/23/2010)
2010-08-30	3	RULE 4(M) ORDER. In order to avoid the finality of a mandatory dismissal, by no later than September 30, 2010, Plaintiff must either cause process to be served and proof of service to be filed with the Court, or file a status report with the Court that indicates why service has not been made. The Clerk of the Court is directed to mail a copy of this Order to Plaintiff, who is currently representing herself pro se in this action, at the address reflected herein. Signed by Judge Colleen Kollar-Kotelly on August 30, 2010. (lcckk2 ) (Entered: 08/30/2010)
2010-09-01	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed in a FOIA Case as to the U.S. Attorney for DC; DEPARTMENT OF JUSTICE served on 8/23/2010, answer due 9/22/2010 for U.S. Attorney. , RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 8/16/10., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 8/23/2010, answer due 9/22/2010 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(td, ) (Entered: 09/02/2010)
2010-09-22	5	NOTICE of Appearance by Sean Joseph Vanek on behalf of DEPARTMENT OF JUSTICE (Attachments: # 1 Certificate of Service)(Vanek, Sean) (Entered: 09/22/2010)
2010-09-22	6	ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE. (Attachments: # 1 Certificate of Service)(Vanek, Sean) (Entered: 09/22/2010)
2010-09-22	7	MOTION for Order to Set Briefing Schedule by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Vanek, Sean) (Entered: 09/22/2010)
2010-09-24	8	ORDER. Defendant's 7 Motion to Set Briefing Schedule is GRANTED and the parties shall abide by the following briefing schedule: (1) Defendant's dispositive motion, including its Vaughn index/declaration, is due on or before November 5, 2010; (2) Plaintiff's opposition to Defendant's dispositive motion and/or cross-motion is due on or before December 20, 2010; (3) Defendant's reply in support of its dispositive motion and/or opposition to Plaintiff's cross-motion, if any, is due on or before January 7, 2011; and (4) Plaintiff's reply, if any, in support of her cross-motion is due on or before February 4, 2011. In addition, Plaintiff, who is representing herself pro se, is advised that she must respond to Defendant's dispositive motion by the deadline set forth herein. If Plaintiff does not respond, the Court shall consider Defendant's motion conceded. Finally, the Clerk of the Court is directed to mail a copy of this Order to Plaintiff at the following address: 2815 Faraon Street, Saint Joseph, MO 64501. Signed by Judge Colleen Kollar-Kotelly on September 24, 2010. (lcckk2 ) (Entered: 09/24/2010)
2010-11-04	9	MOTION to Dismiss or Alternatively, for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order, # 4 Declaration Boseker, # 5 Declaration Hardy, # 6 Declaration Jones, # 7 Certificate of Service)(Vanek, Sean). Added MOTION for Summary Judgment on 11/5/2010 (znmw, ). (Entered: 11/04/2010)
2010-12-17	10	Memorandum in opposition to re 9 MOTION to Dismiss or Alternatively, for Summary Judgment filed by BERNICE EBLING. (Attachments: # 1 Exhibit)(jf, ) (Entered: 12/21/2010)
2011-01-07	11	REPLY to opposition to motion re 9 MOTION to Dismiss or Alternatively, for Summary Judgment MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration Gilbert, # 2 Certificate of Service)(Vanek, Sean) (Entered: 01/07/2011)
2011-07-11	12	ORDER. For the reasons stated in the accompanying Memorandum Opinion, the DOJ's 9 Motion for Summary Judgment is GRANTED-IN-PART and DENIED-IN-PART. Specifically: (a) the motion is DENIED insofar as it seeks dismissal of Ms. Ebling's claims relating to Request No. 1 (Administrative Control No. 09-4676) and Request No. 2 (Administrative Control No. 1141512); and (b) the motion is GRANTED insofar as it seeks dismissal of Ms. Ebling's claims relating to Request No. 3 (Administrative Control No. 1143733). Furthermore, on or before Friday, July 29, 2011, the DOJ shall SHOW CAUSE as to why the Court should not (a) grant summary judgment in Ms. Ebling's favor with respect to her claims based on Request No. 1 (Administrative Control No. 09-4676) and Request No. 2 (Administrative Control No. 1141512) and (b) order the DOJ to immediately begin processing those requests. Finally, the Clerk of the Court shall temporarily SEAL ECF No. [10-1] pending further order of the Court; should any interested party want all or part of the contents of Mr. Price's plea agreement to remain under seal, it must file a motion to seal on or before Friday, July 29, 2011; any such motion shall, at a minimum, be made in accordance with the Local Rules of this Court and address each of the factors set forth in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980); if a motion to seal is not filed by the designated date, the Court will direct the Clerk of the Court to unseal ECF No. [10-1]. The Clerk of the Court shall mail a copy of this Order and the accompanying Memorandum Opinion to Ms. Ebling at her address of record. Set/Reset Deadlines: Response to Show Cause due by 7/29/2011. Motions to Seal due by 7/29/2011. Signed by Judge Colleen Kollar-Kotelly on July 11, 2011. (lcckk3) (Entered: 07/11/2011)
2011-07-11	13	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on July 11, 2011. (lcckk3) (Entered: 07/11/2011)
2011-07-25	14	MOTION for Extension of Time to Respond to the Show Cause Order by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Vanek, Sean) (Entered: 07/25/2011)
2011-07-25	15	ORDER. As set forth herein, Defendant's 14 Motion for Enlargement of Time is GRANTED; Defendant shall have to and including Friday, August 12, 2011, to serve and file: (a) a response to this Court's 12 Order dated July 11, 2011 directing Defendant to show cause as to why the Court should not (i) grant summary judgment in Plaintiff's favor with respect to her claims based on Request No. 1 (Administrative Control No. 09-4676) and Request No. 2 (Administrative Control No. 1141512) and (ii) order Defendant to immediately begin processing those requests; and (b) a motion to seal all or part of William S. Price's plea agreement. On or before Monday, August 8, 2011, Plaintiff shall file a notice with this Court providing a telephone number at which she can be reached, as required by Local Civil Rule 5.1(e)(1). The Clerk of the Court shall mail a copy of this Order to Plaintiff at her address of record. Set/Reset Deadlines: Plaintiff's Notice re: Telephone Number due by 8/8/2011; Defendant's Response to Show Cause due by 8/12/2011. Signed by Judge Colleen Kollar-Kotelly on July 25, 2011. (lcckk3) (Entered: 07/25/2011)
2011-08-04	16	NOTICE of Change of Telephone Number by BERNICE EBLING (td, ) (Entered: 08/08/2011)
2011-08-12	17	RESPONSE TO ORDER OF THE COURT re 15 Order on Motion for Extension of Time to, Set/Reset Deadlines,,,,,,,, filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Vanek, Sean) (Entered: 08/12/2011)
2011-08-12	18	ORDER. For the reasons set forth herein, partial summary judgment is GRANTED in Ebling's favor insofar as she seeks an order requiring the DOJ to immediately begin processing her Request No. 1 (Administrative Control No. 09-4676) and Request No. 2 (Administrative Control No. 1141512). The DOJ shall immediately begin processing those requests and produce all non-exempt, responsive records by no later than September 12, 2011. Following the completion of the DOJ's production, the parties shall promptly meet and confer to discuss any withholding decisions made by the DOJ and the bases for those decisions and, on or before September 26, 2011, file a Joint Status Report with the Court (a) briefly describing the basis of any remaining dispute falling within the scope of the 1 Complaint and requiring further litigation, and (b) proposing a schedule for proceeding in this action. The DOJ's 17 Motion to Stay the Proceedings is GRANTED-IN-PART and DENIED-IN-PART; this action is STAYED to and including September 12, 2011. The parties may not file any additional dispositive motion in this action without first securing the leave of the Court. The Clerk of the Court shall mail a copy of this Order to Ebling at her address of record. Signed by Judge Colleen Kollar-Kotelly on August 12, 2011. (lcckk3) (Entered: 08/12/2011)
2011-09-22	19	STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Vanek, Sean) (Entered: 09/22/2011)
2011-09-27	20	ORDER. Upon consideration of Defendant's 18 Status Report dated September 22, 2011, the parties shall have to and including October 12, 2011, to meet and confer and file a Joint Status Report with the Court (a) briefly describing the basis of any remaining dispute falling within the scope of the 1 Complaint and requiring further litigation, and (b) proposing a schedule for further proceedings in this action. Plaintiff's failure to comply with this Order or her failure to prosecute this action in a timely manner may, if appropriate, result in the imposition of sanctions, up to and including the dismissal of the action in accordance with Federal Rules of Civil Procedure 16(f) and 41(b). Plaintiff is reminded that she is required to maintain a current address and telephone number with the Clerk of the Court and that "[n]otice of a change in address or telephone number . . . must be filed within 14 days of the change." LCvR 5.1(e)(1). The Clerk of the Court shall mail a copy of this Order to Plaintiff at her address of record. Signed by Judge Beryl A. Howell (Sitting as the Motions Judge Under Local Civil Rule 40.8) on 9/27/11. (clv) Modified on 9/27/2011 (lcckk3) (Entered: 09/27/2011)
2011-09-27		Set/Reset Deadlines: Meet & Confer Statement due by 10/12/2011. Joint Status Report due by 10/12/2011 (dot ) (Entered: 10/04/2011)
2011-10-12	21	STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Vanek, Sean) (Entered: 10/12/2011)
2011-10-12	22	ORDER TO SHOW CAUSE. For the reasons set forth herein, by no later than Wednesday, October 26, 2011, Plaintiff shall SHOW CAUSE why this action should not be dismissed with prejudice based upon her failure to comply with the terms of the Court's Orders dated August 12, 2011 and September 27, 2011 and her failure to prosecute this action in a timely manner; Plaintiff's response must identify any and all remaining disputes requiring further litigation; if Plaintiff fails to respond by the designated date, the Court shall assume that there is no remaining dispute requiring litigation and dismiss this action with prejudice. The Clerk of the Court shall mail a copy of this Order to Plaintiff at her address of record. Signed by Judge Colleen Kollar-Kotelly on October 12, 2011. (lcckk3) (Entered: 10/12/2011)
2011-10-31	23	ORDER. Because Plaintiff has failed to respond to the Court's 22 Order to Show Cause, the Court can only assume that there is no remaining dispute requiring litigation. Accordingly, this action is DISMISSED WITH PREJUDICE; the Clerk of the Court shall mail a copy of this Order to Plaintiff at her address of record. Signed by Judge Colleen Kollar-Kotelly on October 31, 2011. (lcckk3) (Entered: 10/31/2011)
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