Frost v. United States Department of Homeland Security

Background

Vinton Frost, proceeding without a lawyer, brought a Freedom of Information Act (FOIA) action against the United States Department of Homeland Security. Frost alleged that he delivered a FOIA request to Alexandro Mayorkas, the Secretary of Homeland Security, on February 14, 2022. He sought copies of all documents about him in the Department’s custody. Frost alleged that he did not receive a response within 20 business days and asked the court to order the Department to respond.

The court had previously allowed Frost to proceed without prepaying filing fees. It reviewed the complaint under the screening rules that require dismissal of a qualifying fee-waiver complaint that is frivolous, malicious, fails to state a claim, or seeks money from an immune defendant. The court also noted that it must dismiss claims over which it lacks subject-matter jurisdiction.

Court’s analysis

FOIA gives the public a right to obtain certain records from federal executive agencies. To obtain judicial enforcement, a requester must show that an agency improperly withheld agency records. The court explained that a requester must generally exhaust administrative remedies before seeking judicial review. This means completing the agency’s administrative appeal process.

The court stated that an agency generally must determine within 20 business days whether it will comply with a FOIA request. If the agency denies the request, the requester may appeal to the agency head within 90 days. A requester may also be treated as having exhausted administrative remedies when a timely appeal is filed and the agency does not respond within the applicable period.

Frost’s complaint alleged that he sent the request directly to the Secretary of Homeland Security and did not receive a response within 20 days. It did not provide facts showing that he filed an administrative appeal to the agency head. The court therefore could not determine from the complaint whether Frost had exhausted his administrative remedies.

Ruling and next steps

Because Frost might be able to state a valid FOIA claim by providing additional facts, the court granted him 60 days’ leave to amend his complaint. The amended complaint had to comply with the standards described in the order, be labeled “Amended Complaint,” and include docket number 22-CV-2858 (LTS). It had to be submitted to the court’s Pro Se Intake Unit. No summons would issue at that time.

The court warned that if Frost did not amend within the allowed period and could not show good cause for the failure, the complaint would be dismissed for failure to state a claim. The court did not decide whether the Department improperly withheld records or whether Frost ultimately exhausted the administrative process. It also certified that an appeal would not be taken in good faith and denied fee-waiver status for purposes of an appeal.