by Mark Wilson

The United States Court of Appeals for the Third Circuit reversed the dismissal of a federal prisoner’s Freedom of Information Act (FOIA) requests.

Federal prisoner James Biear made FOIA requests of the Criminal Division of the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI) and several other agencies. He sought documents of any investigations containing his name or aliases.

DOJ directed Biear to verify his identity and indicate which Criminal Division section maintained responsive records. DOJ also informed Biear that his request would be administratively closed if he did not respond within 30 days.

Biear verified his identity but did not specify which DOJ section likely maintained the requested records. As such, DOJ closed his request. Biear appealed the decision to DOJ’s Office of Information Policy (OIP), which upheld DOJ’s decision.

Four months after receiving Biear’s request, the FBI informed him that it was searching for responsive records. Biear then preemptively appealed the FBI’s anticipated denial of his request to OIP.

The FBI subsequently informed Biear that the responsive records were exempt from disclosure because they were contained in an active investigative file. One month later, however, OIP closed Briear’s appeal as moot because the FBI reopened and resumed processing his request.

Biear brought federal suit on July 31, 2014, challenging the denial of his DOJ and FBI FOIA requests. After the litigation commenced, the FBI found that the criminal investigative file was no longer active and produced 1,188 pages of responsive records. Of those, 670 pages contained redactions and 159 pages were withheld in full.

The district court granted the government’s motion to dismiss his DOJ request, concluding that Biear failed to exhaust his administrative remedies by declining to speculate which DOJ section maintained the requested records. Given that the FBI had produced documents after commencement of the action, the district court also concluded that Biear’s FBI request was moot.

The Third Circuit reversed the denial of Biear’s DOJ request. “It would be counterintuitive in the extreme to require such an individual to have sufficient knowledge of an agency’s organizational unit to be able to identify the specific units of an agency that might contain the records sought,” the Court held.

The Court also held that the FBI request was not moot. “Because Biear’s lawsuit was underway when the adequacy of the FBI’s disclosure became ripe for disposition, the District Court should have continued to exercise jurisdiction over the issue and declined to dismiss as moot,” the court held. See: Biear v. Attorney General, 905 F.3d 151 (3rd Cir. 2018).

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