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United States Court of Appeals,
Fifth Circuit.
No. 93-3796
Summary Calendar.
Harry GOLDGAR, Plaintiff-Appellant,
v.
OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE PRESIDENT,
Defendant-Appellee.
July 18, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
Introduction
Plaintiff-appellant Harry Goldgar is appealing the dismissal
of his pro se civil lawsuit brought under the Freedom of
Information Act ("FOIA").1 Goldgar, 73, states in his brief that
he is a "telepath" and "has an innate condition of thought
transparency, enabling any person anywhere at any time who so
chooses to read his mind." Goldgar claims that the United States
government has, since the mid-1940s, been conducting therapy upon
him for his "thought transparency" condition without telling him
about such therapy. By filing and pursuing this FOIA action
against the Office of Administration, Executive Office of the
President ("OA-EOP"), Goldgar seeks to obtain "the name and address
of the U.S. government agency which has conducted his treatment so
15 U.S.C. § 552 (West 1977 & Supp.1994).
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that he can plead his case for release."
The trial court, following the magistrate's recommendation,
entered an order dismissing Goldgar's action for failure to meet
the jurisdictional requirements under the FOIA.2 See Goldgar v.
Office of Admin., Executive Office of the President, No. CIV. A 93-
1402, 1993 WL 370620 at *2 (E.D.La., Sept. 10, 1993) (unpublished).
We AFFIRM the decision of the trial court.
Standard of Review
We review a dismissal for lack of subject matter jurisdiction
de novo under 5 U.S.C. § 552(a)(4)(B). We hold that because the
OA-EOP does not have any records responsive to Goldgar's request,
it has not "improperly withheld" agency "records," and thus Goldgar
did not meet the jurisdictional requirements of the Freedom of
Information Act. See, e.g., Morris v. Department of Justice, 540
F.Supp. 898, 900 (S.D.Tex.1982), aff'd, 696 F.2d 994 (5th Cir.)
(TABLE), cert. denied, 460 U.S. 1093, 103 S.Ct. 1794, 76 L.Ed.2d
360 (1983).
Facts and Procedural History
Goldgar commenced this action against the OA-EOP after the
agency failed to comply with his FOIA request for
"the name, address, and telephone number of the agency,
bureau, or other entity of the U.S. Government which conducts
or supervises a project of psychiatric or psychological
2On complaint, the district court of the United States in
the district in which the complainant resides, or has his
principal place of business, or in which the agency records are
situated, or in the District of Columbia, has jurisdiction to
enjoin the agency from withholding agency records and to order
the production of any agency records improperly withheld from the
complainant." 5 U.S.C. § 552(a)(4)(B) (Emphasis added).
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treatment based upon Plaintiff's condition of thought
transparency, and the name of the director of the project."
The FOIA officer for the OA-EOP responded to Goldgar's request
indicating that the agency had "no records responsive to [his]
request." Goldgar appealed this denial to the deputy director of
the OA-EOP, who reviewed the request and reaffirmed the decision of
the FOIA officer. Goldgar filed suit in federal court to force
production of the information sought.
The district court dismissed the complaint because: (1) it
failed to allege that the OA-EOP had improperly withheld agency
records such as to give the court jurisdiction over the matter, and
(2) it was harassing. We will examine each rationale.
Jurisdictional Issue: No Improper Withholding of Records
Jurisdiction in a FOIA suit is based upon the plaintiff's
showing that an agency has (1) improperly (2) withheld (3) agency
records. Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). The
plaintiff has the initial burden of establishing that the court has
jurisdiction over his claims. See FEDERAL RULE OF CIVIL PROCEDURE
8(a)(1); Morris, 540 F.Supp. at 900. Plaintiffs who do not allege
any improper withholding of agency records fail to state a claim
for which a court has jurisdiction under the FOIA. Cf. National
Federation of Federal Employees v. United States, 695 F.Supp. 1196,
1204 (D.D.C.1988). It is the agency's burden to prove the
non-existence of the records sought, and we hold that the OA-EOP
met this burden. The OA-EOP did not improperly withhold any
"agency records." Upon receipt of Goldgar's letter, the FOIA
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officer conducted a thorough search of the agency's records and
determined that "there were no records responsive to [his]
request." The OA-EOP deputy director affirmed this response.
Goldgar argues that he is not seeking agency "records," but
only "information" readily available to the OA-EOP. He also
contends that "his fame as a telepath and as subject of this
government therapeutic project is so widespread that virtually
every reasonably well informed adult citizen in the United States
possesses the information he seeks," and thus, "it is inconceivable
that any officer of the federal government could lack the
information."
The distinction that Goldgar attempts to make between
"information" and "records" does not advance his case; in fact,
such a distinction supports the trial court's dismissal of his
suit, because the FOIA applies only to information in record form.
"The Freedom of Information Act deals with "agency records,' not
information in the abstract," Forsham v. Harris, 445 U.S. 169, 100
S.Ct. 977, 63 L.Ed.2d 293 (1980). In Kissinger, the Supreme Court
said:
The act does not obligate agencies to create or retain
documents; it only obligates them to provide access to those
which it in fact has created and retained. It has been
settled by decision of this Court that only the Federal
Records Act, and not the FOIA, requires an agency to actually
create records, even though the agency's failure to do so
deprives the public of information which might have otherwise
been available to it.
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980) (citing NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 161-162, 95 S.Ct. 1504, 1521-
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22, 44 L.Ed.2d 29 (1975); Renegotiation Bd. v. Grumman Aircraft
Eng. Corp., 421 U.S. 168, 192, 95 S.Ct. 1491, 1504, 44 L.Ed. 57
(1975)). Thus, the FOIA merely affords the public free access to
"records" which contain information within the control of the
agency at the time of the FOIA request. United States Dept. of
Justice v. Tax Analysts, 492 U.S. 136, 145, 109 S.Ct. 2841, 2848,
106 L.Ed.2d 112 (1989). In this case, the OA-EOP had no records in
its control responsive to Goldgar's request, so Goldgar did not
establish jurisdiction under the Freedom of Information Act.
In Morris, 540 F.Supp. at 900, the plaintiff requested certain
records from the Veterans Administration. The court held that the
plaintiff had failed to establish jurisdiction:
"[A]ll records and documents prepared or created which the
Veterans Administration maintains on the plaintiff have been
disclosed to his attorney upon plaintiff's request. In as
much as all records or documents have been disclosed, there
exists no "improperly withheld records" within the meaning of
§ 552(a)(4)(B) ... and thus no denial of access upon which
jurisdiction can be invoked. In the absence of records
"improperly withheld," this action must be dismissed for want
of subject matter jurisdiction under the FOIA."
Morris, 540 F.Supp. at 900.
The FOIA was enacted to afford the public greater access to
government "records." Department of Air Force v. Rose, 425 U.S.
352, 365-66, 96 S.Ct. 1592, 1601-02, 48 L.Ed.2d 11 (1976). If
Goldgar is not seeking an agency record--the only thing accessible
under the FOIA--then he is abusing and misusing the FOIA. If he is
seeking a record, we hold that no such record exists and that
Goldgar has failed to state a claim under the FOIA which could
confer jurisdiction on the federal district court.
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Dismissal Because Claim was "Harassing"
Goldgar has sought similar information in two prior lawsuits.
The first action was Harry Goldgar v. Administrative Assistant to
the Secretary, Department of the Army, No. 89-4219. Goldgar
voluntarily dismissed that action and brought a second FOIA action
against the director of the Office of Administration, Executive
Office of the President. That lawsuit was very similar to the case
we now review; it also sought records under the FOIA that the
agency did not have, and it also was dismissed for lack of
jurisdiction. See Harry Goldgar v. Office of Administration,
Executive Office of the President, No. CIV. A. 90-270, 1990 WL
32893 at *1 (E.D.La., March 22, 1990) (unpublished).
In his brief, Goldgar attempts to distinguish the present case
from the his two prior FOIA lawsuits. In the voluntarily dismissed
1989 action, Goldgar sued the Administrative Assistant of the
Secretary of the Army for requested records of a "therapeutic
project" concerning "involuntary telepathic transmissions (thought
projections.)" The 1990 suit sought records and/or information on
"thought projections" or "thought transferences," but the present
suit,
Goldgar
explains,
seeks
information
on
"thought
transparency." In the 1990 suit, Goldgar improperly named the
director of the OA-EOP as defendant; he points out that the
present suit is different because it names the OA-EOP agency
itself.
We hold that these distinctions are irrelevant because the
repetition comes from misusing the FOIA. Even Goldgar admits that
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his lawsuits have asked not for existing records, but for
"information." The "information" he seeks--the identity of the
government agency that is reading his mind--does not exist in record
form and cannot be produced.
Therefore, we AFFIRM the district court's dismissal of
Goldgar's suit with prejudice for failure to meet the
jurisdictional requirements of the FOIA. Further, we AFFIRM the
district court's order that Goldgar familiarize himself with Rule
11 of the Federal Rules of Civil Procedure. We join the district
court in warning Goldgar that should he file or appeal another FOIA
complaint against any federal agency, office or department, which
is similarly without jurisdictional basis, he may be assessed
costs, attorney's fees and proper sanctions.3
We AFFIRM the district court's order that all future
complaints and pleadings presented by Goldgar, whether pro se or
through counsel, shall be verified by him prior to submission and
filing with the district court, and that he shall include with
every future complaint or pleading to be filed a list of all causes
3A federal court may structure sanctions necessary or
warranted to control its docket and maintain the orderly
administration of justice. We warn Goldgar in addition that if
he persists in filing FOIA suits without a proper jurisdictional
basis, he may be ordered to obtain judicial pre-approval of all
future filings. See, e.g., Vinson v. Heckmann, 940 F.2d 114,
116-17 (5th Cir.1991) (ordering all trial and appellate courts
within the Fifth Circuit's supervisory jurisdiction to decline
acceptance of any filing from frivolous litigant unless he
obtained specific pre-authorization by a judge of the forum
court); Moody v. Miller, 864 F.2d 1178, 1179 n. 2 (5th Cir.1989)
(noting our decision to prohibit frivolous litigant from
prosecuting any more in forma pauperis appeals until he paid all
previous sanctions or obtained certification of his good faith by
the district court).
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previously filed on that same, similar or related causes of action
and include therein a brief statement regarding the court's ruling
in that previous action.
Finally, we AFFIRM the district court's order that Goldgar
notify any counsel retained in the future of these stipulations and
that any failure of compliance may result in the dismissal of the
action and/or the appropriate sanctions.
AFFIRMED.

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