Light v. Dep't of Justice

• Citation: 968 F.Supp.2d 11
• Decision Date: 17 July 2013
• Docket Number: Civil Action No. 12–1660 (RMC).
• Parties: Truthout and Jeffrey LIGHT, Plaintiffs, v. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

968 F.Supp.2d 11

Truthout and Jeffrey LIGHT, Plaintiffs,

v.DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 12–1660 (RMC).

United States District Court,

District of Columbia.

July 17, 2013.

Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, District Judge.

Plaintiffs Truthout and Jeffrey Light are suing the Federal Bureau of Investigation (FBI) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the release of records concerning the protest movement and encampment known as “Occupy Wall Street.” The FBI has moved to dismiss or for summary judgment.¹ The motion will be granted.

I. FACTS

Plaintiffs sent to the FBI six FOIA requests for records on the Occupy Wall Street and other Occupy encampments across the country. They challenge the Government's response to five: Request Nos. 1176349–000, 1176937–000 (reopened as 1176937–001), 1177831–000, 1178216–000, and 1191931–000.²

1. Request No. 1176349–000

On October 31, 2011, Plaintiffs sent an email to FBI Headquarters (FBIHQ) seeking the following materials related to the protest movement known as ‘Occupy Wall Street’ ” from August 1, 2011 to October 31, 2011: “all emails, memos, letter[s], audio/video, transcript[s], reports, Threat Assessments, between FBI personnel, including field agents and officers, and law enforcement agencies, including but not limited to, local police personnel, CIA and Department of Homeland.” See Mot. to Dismiss or for Sum. J. (MSJ) [Dkt. 9], Ex. A (Hardy Decl.) [Dkt. 9–1] ¶ 7; Notice of Exs. to Hardy Decl. [Dkt. 10], Ex. A [Dkt. 10–1] (Oct. 31, 2011 Request). The FBI designated this Request No. 1176349–000 and responded on November 15, 2011, indicating that it had searched its Central Records System (CRS, described below in Part III.B.) and found no responsive records. Plaintiffs appealed to DOJ's Office of Information and Privacy (OIP), and OIP affirmed. See Hardy Decl. ¶¶ 7–11. Despite its initial response, on January 10, 2013, the FBI released 37 pages in response to Request No. 1176349–000.³ The FBI stated that it had located and reviewed 162 pages of records and had withheld certain records under FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).⁴ Hardy Decl. ¶ 12.

2. Request Nos. 1176937–000 and 1176937–001

On October 31, 2011, Plaintiffs submitted their second FOIA request to FBIHQ, Request No. 1176937–000. This time Plaintiffs sought “all documents, including emails, notes, memoranda, from the department pertaining to threat assessments of the protest movement organization known as Occupy Wall Street from August 1, 2011 to October 18, 2011.” Hardy Decl. ¶ 13, Ex. G [Dkt. 10–7] (October 31, 2011 Request). As with the first Request, the FBI sent a letter to Plaintiffs dated November 15, 2011, indicating that it had searched CRS and found no responsive records. Hardy Decl. ¶ 14. The FBI later re-opened Request No. 1176937–000, labeling the reopened matter as Request No. 1176937–001. Id. ¶ 15. On January 10, 2013, the FBI released 24 pages of records in response to Request No. 1176937–001. The FBI had reviewed 105 pages, but withheld certain records under the same FOIA Exemptions that were invoked with respect to Plaintiffs' first FOIA request, Exemptions 1, 3, 6, 7A, 7C, 7D, and 7E. Id. ¶ 24.

3. Request No. 1177831–000

Plaintiffs submitted their third FOIA request to the FBIHQ on November 16, 2011, No. 1177831–000, asking for “records relating to the Occupy DC and Occupy Wall Street protests in McPherson Square [in Washington, D.C.] and Zucotti Park [in New York City], respectively.” Id. ¶ 25, Ex. R [Dkt. 10–18] (Nov. 16, 2011 Request). On January 10, 2013, the FBI responded, releasing 80 pages, after reviewing 288 pages of records, and withholding information under Exemptions 1, 3, 6, 7A, 7C, 7D, and 7E. Hardy Decl. ¶ 32.

4. Request No. 1178216–000

On November 18, 2011, Plaintiffs sent a fourth FOIA request to the FBI. This time, they sought to amend their first request, Request No. 1176349–000, to cover documents regarding all Occupy Wall Street and Occupy Encampments across the country for the period November 1 through 18, 2011. Hardy Decl. ¶ 33, Ex. X [Dkt. 10–24] (Nov. 18, 2011 Request). On January 10, 2013, after reviewing 125 pages of records, the FBI released 37 pages in response to the fourth request. The FBI withheld the balance of the pages exempt under the same FOIA Exemptions. Id. ¶ 43.

5. Request No. 1191931–000

Finally, on June 4, 2012, Plaintiffs submitted the fifth request that is the subject of this litigation. This fifth request, Request No. 1191931–000, sought “all emails, memos, letters, audio/video, transcripts, reports, including FBI Threat Assessments, written between November 1, 2011 to the present related to the protest movement known as ‘Occupy Wall Street.’ ” Hardy Decl. ¶ 48, Ex. JJ [Dkt. 10–36] (June 4, 2011 Request). On January 10, 2013, after reviewing 245 pages of records, the FBI released 61 pages of records in response to the fifth request and withheld records under the same FOIA Exemptions listed above. Hardy Decl. ¶ 58. Plaintiffs claimed that an additional two-page record had been released to other FOIA requesters and that this record also was responsive to the fifth request. The FBI then reexamined the fifth request and the record and released it to Plaintiffs. See Reply [Dkt. 20] at 1 n. 1.

II. LEGAL STANDARD

A. Motion to Dismiss

The FBI asserts two bases for dismissing this suit. First, the FBI contends that because it conducted an adequate search and released all non-exempt records, this case is moot. Second, the FBI claims that Plaintiffs have failed to state a claim under FOIA.

1. Lack of Jurisdiction Due to Mootness

The FBI also asserts that the Court lacks jurisdiction because Plaintiffs' claims are moot, i.e., the FBI conducted an adequate search and released all non-exempt records. A motion to dismiss for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1). Flores ex rel. J.F. v. District of Columbia, 437 F.Supp.2d 22, 27 (D.D.C.2006). That rule imposes on a court “an affirmative obligation to insure that it is acting within the scope of its jurisdictional authority.” Jones v. Ashcroft, 321 F.Supp.2d 1, 5 (D.D.C.2004). Under the Constitution, federal courts are limited to deciding “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). “Even where the litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if ‘events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.’ ” Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990) (citations omitted).

Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When reviewing such a motion, a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C.Cir.2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003).

2. Failure to State a Claim

The FBI contends that Plaintiffs failed to state a claim under FOIA because it has searched for records and released all that are not covered by an Exemption. A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. A complaint must be sufficient to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation and citation omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to providethe grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Id. at 570, 127 S.Ct. 1955. Although a court must treat the complaint's factual allegations as true, “even if doubtful in fact,” id. at 555, 127 S.Ct. 1955, it need not accept as true legal conclusions set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007).

B. Motion for Summary Judgment

Further, the FBI contends that it is entitled to summary judgment because there is no genuine dispute as to any material fact and the FBI is entitled to judgment as a matter of law. SeeFed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden...