United States District Court, D. Connecticut
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Doc. #15]
DOMINIC J. SQUATRITO, UNITED STATES DISTRICT JUDGE
Plaintiff, Russell Peeler, commenced this action by complaint against the Federal Bureau of Investigation. He alleges that the defendant improperly denied his request under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552, for records associated with his personal pager number. The defendant has filed a motion for summary judgment. For the reasons that follow, the defendant’s motion is granted.
I. Standard of Review
A motion for summary judgment may be granted only where there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy its burden “by showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence as would allow a jury to find in his favor in order to defeat the motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). The nonmoving party “must offer some hard evidence showing that its version is not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
The Federal Bureau of Investigation (“FBI”), a bureau of the Department of Justice, provides, inter alia, leadership and criminal justice services to federal, state and municipal agencies. Incident to these services, the FBI maintains investigative and intelligence files on criminal activity.
The plaintiff currently is incarcerated following his state court conviction for capital murder of a mother and her child. He also was convicted of the murder of another individual and related charges. Various telephone calls were the subject of testimony in the plaintiff’s state court criminal trials. The plaintiff contends that certain calls did not occur and has attempted to obtain telephone record information from the FBI under the FOIA.
During the course of prior FOIA litigation,  the plaintiff received a copy of a 1A envelope containing references to various subpoenas including a subpoena to AIMS Communication. The plaintiff assumes that the envelope contained, inter alia, records obtained pursuant to the subpoena to AIMS Communication, his personal pager service provider.
By letter dated April 21, 2014, the plaintiff requested information on all calls to his personal pager during the months of December 1998 and January 1999. He stated that the FBI had served a subpoena on AIMS Communication and provided a case number, i.e., 267C-NH-38899. The FBI responded on May 2, 2014, advising the plaintiff that he had not provided adequate information to enable the FBI to perform an adequate search of the Central Records System. The FBI sent the plaintiff a form seeking additional information and requesting that the form be returned within thirty days. The FBI also assigned the request FOIPA number 1261652-000.
By letter dated May 13, 2014, the plaintiff provided additional information. He stated that he was seeking all information relating to his pager that the government had obtained in response to the subpoena to AIMS Communication. The FBI acknowledged receipt of the request and informed the plaintiff that it was conducting a search for the requested information.
By letter dated July 11, 2014, the FBI informed the plaintiff that it had located 1, 127 pages of records that were potentially responsive to his FOIA request, and advised the plaintiff of the cost for duplication of those pages and the formats in which the information could be provided to him. The plaintiff also was told that, if he wished, he could reduce the scope of his request, which might reduce duplications costs. In response, the plaintiff informed the FBI that he wished to narrow his request to pager calls for January 1999 only. He agreed to pay duplication fees and asked that the information be sent to him on a CD.
In August 2014 the FBI told the plaintiff that it had located 1, 006 pages of records that were potentially responsive to the narrowed request. The FBI also explained that the plaintiff could receive the information on CD only if he provided an alternate address, as FBI policy does not allow information to be sent to a prison on a CD. The FBI further advised the plaintiff that the duplication costs referenced in the letter were only an estimate, since some of the information in the identified pages might not be responsive to his specific request.
The plaintiff requested information on the status of his request in October 2014. By letter dated November 12, 2014, the plaintiff appealed the alleged failure to respond to his request to the Department of Justice Office on Information Policy (“OIP”). In December 2014 OIP acknowledged the receipt of the appeal and assigned it an appeal number. By letter dated January 14, 2015, OIP advised the plaintiff that Department of Justice regulations provide for an appeal to the OIP only after there has been an adverse determination by one of the Department's component agencies. OIP further informed the plaintiff that although he was authorized to file a lawsuit when an agency failed to respond to a request within the statutory time period, OIP had contacted the FBI and learned that the plaintiff’s request was being processed. OIP closed the appeal and advised the plaintiff that he could refile his appeal if he was dissatisfied with the FBI’s final response to his request.
The plaintiff submitted a second appeal by letter dated December 15, 2014. OIP responded by letter dated January 15, 2015, wherein an appeal number was assigned to the second appeal request. On February 1, 2015, the plaintiff commenced this lawsuit. By letter dated February 12, 2015, OIP informed the plaintiff that the ...