Freedom Watch, Inc. v. Dep't of State

• Decision Date: 27 February 2013
• Docket Number: Civil Action No. 12–314 (RMC).
• Citation: 925 F.Supp.2d 55
• Parties: FREEDOM WATCH, INC., Plaintiff, v. DEPARTMENT OF STATE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

925 F.Supp.2d 55

FREEDOM WATCH, INC., Plaintiff,

v.DEPARTMENT OF STATE, et al., Defendants.

Civil Action No. 12–314 (RMC).

United States District Court, District of Columbia.

Feb. 27, 2013.

Larry E. Klayman, Law Office of Larry Klayman, Washington, DC, for Plaintiff.

Gregory Peter Dworkowitz, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Freedom Watch, Inc., sues the United States Departments of State, Treasury, Defense, and Commerce, the Board of Governors of the Federal Reserve Board, the Central Intelligence Agency, and the National Security Agency for allegedly failing to respond properly to its Freedom of Information Act requests. Because Freedom Watch did not file proper requests, it has not exhausted its administrative remedies and has raced to court too soon. The Complaint will be dismissed and Freedom Watch's motion for partial summary judgment will be denied as moot.

I. FACTS

The Complaint says only that Freedom Watch is a public interest foundation that seeks “to promote openness within the federal government and their actions.” Compl. [Dkt. 1] ¶ 2. On January 23, 2012, Freedom Watch sent a request under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), to the Defendant Agencies. Compl. ¶ 4. Freedom Watch says that it wanted information about waivers the Department of State may have granted to citizens, corporations, or other countries to trade with Iran despite very tough sanctions against that country to prevent its development of nuclear missiles. Id. Specifically, Freedom Watch sought:

[A]ll correspondence, memoranda, documents, reports, records, statements, audits, lists of names, applications, diskettes, letters, expense logs and receipts, calendar or diary logs, facsimile logs, telephone records call sheets, tape recordings, video/movie recordings, notes, examinations, opinions, folders, files, books, manuals, pamphlets, forms, drawings, charts, photographs, electronic mail, and other documents and things that refer or relate to the following in any way, within (10) business days as set forth below....

Id.

Thereafter, a list of 63 categories of records was described, as set forth in the Complaint, ranging from “(1) [i]nternational sanctions (diplomatic, economic, military, or otherwise) created and/or signed into law by the United States, United States [sic] or the European Union against the country of Iran,” to (63) “[a]ny and all enumerated documents and things which discuss Iran in the context of American politics and/or elections from 1992 to the present.” Id. ¶ 4(1) & (63). As to each category, Freedom Watch requested “all” records that “refer or relate” to that category. Id. ¶ 4. Freedom Watch also sought a fee waiver from each agency on the basis that “[a]ny waiver of these sanctions may aid Iran in achieving nuclear weapons and thus put [ ] American citizens at risk,” which waivers, if any, it would publicize on its website. See, e.g., Decl. of Justin Guz, Defs. Mem. Supp. Mot. Dismiss (“MTD Mem.”), Ex. A [Dkt. 4–1], Ex. 1, at 5 (fee waiver request as to Department of Commerce). From each agency, Freedom Watch requested expedited processing because the records are “of urgent importance and ... in the extreme public interest,” about which “[t]he American people need to be informed expeditiously ... as it [sic] affects their immediate well being, economically and otherwise.” Compl. ¶ 6; see also, e.g., Guz Decl., Ex. 1, at 5 (discussing request to expedite as to Department of Commerce).

A. Defendant Agencies' Responses

1. Department of Commerce

Commerce received the FOIA request on January 24, 2012, and responded in writing on February 3, 2012, ten days later. Guz Decl. ¶ 2. Commerce denied the request for a fee waiver and expedited processing and explained its administrative appeals procedure. Id. ¶ 3. Freedom Watch did not appeal and the time to do so has passed. Id. ¶ 5. Commerce wrote to Freedom Watch again on March 27, 2012, providing an estimate of fees for search and duplication costs and querying whether Freedom Watch would agree to narrow its request. Id. ¶ 6. Freedom Watch never responded. Id. ¶ 7.

2. Board of Governors of the Federal Reserve System

The Federal Reserve Board of Governors (“FRB”) received the FOIA request on January 23, 2012, and began attempting to reach Freedom Watch by telephone on February 10, 2012. Decl. of Odelle Quisumbing, MTD Mem., Ex. B [Dkt. 4–2], ¶¶ 1, 6–8. Some calls were directed to a voice mailbox in which no message could be left. Id. ¶ 7. On three occasions, an FRB representative spoke to Larry Klayman, Esquire, counsel for Freedom Watch, who said that he was unavailable and requested that the FRB call back. Id. ¶ 8. On February 28, 2012, the FRB sent a letter to Freedom Watch stating that the FOIA request was overbroad and unduly burdensome and that FRB would not process the request unless Freedom Watch provided a narrower construction. Id. ¶ 9. Freedom Watch never responded and never appealed. Id. ¶ 10.

3. National Security Agency

The FOIA request was received at the National Security Agency (“NSA”) on January 23, 2012. Decl. of Pamela Phillips, MTD Mem., Ex. C [Dkt. 4–3], ¶ 3. NSA telephoned Freedom Watch on January 25, 2012, and asked if Freedom Watch would agree to narrow its request. Id. ¶ 4. Freedom Watch declined. Id. On February 1, 2012, NSA sent Freedom Watch a letter in which NSA denied the expedited-processing request and noted that Freedom Watch had a right to appeal, but Freedom Watch did not do so. Id. ¶ 5. On March 20, 2012, NSA sent a second letter, this time denying the fee-waiver request and responding to some of Freedom Watch's document requests. Id. ¶ 6. In the second letter, NSA stated: (1) it had searched and located no records responsive to forty-five requests; (2) it could neither confirm nor deny the existence of records responsive to two requests; (3) two other requests would involve an overly broad and costly search, and thus NSA would not search unless Freedom Watch provided a narrower construction; and (4) NSA would only search as to the remaining fourteen requests if Freedom Watch paid the search costs as stated on an enclosed estimate. Id. As of the filing of the motion to dismiss, Freedom Watch had not responded to NSA and had not appealed. Id. ¶ 7.

4. Department of Treasury

On January 27, 2012, Treasury received Freedom Watch's FOIA request. Decl. Hugh Gilmore, MTD Mem., Ex. D [Dkt. 4–4], ¶ 4. Treasury responded on January 31, 2012, denying the expedited-processing request and stating that the request as formulated was too broad to be processed. Id. ¶ 5. Treasury further stated that Freedom Watch had thirty days to respond, which Freedom Watch did not do. Id. ¶¶ 5–7.

5. Central Intelligence Agency, Department of Defense, and Department of State

The Central Intelligence Agency wrote to Freedom Watch on February 1, 2012, informing it that the FOIA request should be directed to State and Treasury. MTD Mem. 5–6. DoD, in a letter dated January 30, 2012, “stated that it could not process the request, that the request was not reasonably described to support processing, and that Freedom Watch might consider seeking the requested records from other agencies.” Id. at 6. State never responded to Freedom Watch's request. Id.

B. Litigation

Freedom Watch filed its Complaint on February 27, 2012, just over a month after it submitted its FOIA requests. It averred that “Defendant[s] [were] required and failed to respond to Plaintiff's FOIA requests within ten (10) working days for expedited processing, February 6, 2012, or even the standard twenty (20) days, February 21, 2012.... Nor have they indicated whether or when any responsive records will be produced.” Compl. ¶¶ 8–9. Because the Defendant Agencies “failed to comply” with the short timelines set forth in FOIA, Freedom Watch declared that it “is deemed to have exhausted any and all administrative remedies....” Id. ¶ 10.

The Defendant Agencies filed a joint motion to dismiss on May 4, 2012. See [Dkt. 4]. After three extensions, Freedom Watch filed its Opposition on June 29, 2012. See Pl. Opp. (“Opp.”) [Dkt. 8]. A reply was filed by the Defendant Agencies on July 6, 2012, see Dkt. 9, and shortly thereafter, on July 13, 2012, Freedom Watch filed a motion for partial summary judgment against State, which, as indicated, failed to answer the FOIA request, see Dkt. 10. State filed its opposition to the motion for partial summary judgment immediately, see Dkt. 11, along with a motion to stay the motion for partial summary judgment, see Dkt. 12. In addition, Freedom Watch filed a motion for attorney's fees and costs on August 22, 2012. When the Federal Reserve filed a notice of supplemental authority on October 9, 2012, regarding the motion to dismiss, see Dkt. 20, Freedom Watch instantly filed its response on October 11, see Dkt. 21.

Not needing more lawyers to spend more time on more briefs on more subjects in order to decide the motion to dismiss, the Court granted the motion to stay and ordered that no additional pleadings could be filed without leave. See First Minute Order dated Oct. 26, 2012. The same day, the Court denied the motion by Freedom Watch for attorney's fees without prejudice as premature. See Second Minute Order dated Oct. 26, 2012. Freedom Watch has complained volubly by phone and by mail—but has avoided complicating the docket more.

II. LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1). A complaint must be sufficient “to give a defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl....