Shapiro v. Dep't of Justice

Decision Date02 July 2020
Docket NumberCivil Action No. 12-cv-313 (BAH)
PartiesRYAN NOAH SHAPIRO, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.
CourtU.S. District Court — District of Columbia

RYAN NOAH SHAPIRO, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 12-cv-313 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 2, 2020


Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff, "a longtime animal rights activist" and "Ph.D. candidate"1 whose research "focuses on disputes over animals and national security from the late nineteenth century to the present," First Amended Compl. ("FAC") ¶ 2, ECF No. 13, challenges the Federal Bureau of Investigation's ("FBI") and the Bureau of Alcohol, Tobacco, Firearms, and Explosives' ("ATF") responses to 83 requests for records he made under the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552 et seq., and the Privacy Act ("PA"), id. § 552a. Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem.") at 1, ECF No. 97-1; FAC ¶ 518. Over the lengthy course of this litigation, the Department of Justice ("DOJ"), of which both the FBI and ATF are components, has released thousands of pages of records responsive to those requests. DOJ now believes its obligations under both the FOIA and PA are met and seeks summary judgment. Def.'s Mot. Summ. J., ECF No. 97. Plaintiff has requested time to conduct discovery to defend against DOJ's motion, Pl.'s Request for Discovery Pursuant to Rule 56(d) ("Pl.'s 56(d) Mot."), ECF No. 102, while

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simultaneously filing his own motion for summary judgment, Pl.'s Cross-Mot. Summ. J. ("Pl.'s Summ. J. Mot."), ECF No. 105. For the reasons set forth below, plaintiff's motions for discovery and summary judgment are denied, and DOJ's motion for summary judgment is granted in part and denied in part.

I. BACKGROUND

As this Court has previously pointed out, "[t]he plaintiff . . . is among the most prolific requesters of materials from [DOJ]." Shapiro v. United States Dep't of Justice, Civ. Action No. 12-313 (BAH), 2014 WL 12912625, *1 (D.D.C. Dec. 8, 2014). As relevant to the instant litigation, plaintiff seeks information about what he calls the "Green Scare," which he describes as "the ongoing disproportionate, heavy-handed government crackdown on the animal rights and environmental movements." FAC ¶ 3 (citation and internal quotation marks omitted). Beginning in 2005, as part of his doctoral research, plaintiff began submitting numerous FOIA requests to the FBI and ATF. Id. ¶ 261. Over the next seven years, plaintiff submitted close to 500 such requests seeking records concerning individuals, organizations, books and other publications, and events related to animal rights activism. See 2d Decl. of David M. Hardy ("2d Hardy Decl.") at 3 n.1, ECF No. 17-1.

At issue in this litigation are a fraction of those requests regarding 69 separate topics covered in 83 requests that plaintiff submitted to the FBI and ATF between 2005 and 2012.2 These requests sought records from these two DOJ components regarding 42 named individuals,

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including the plaintiff himself,3 21 organizations,4 and 6 events or publications purportedly concerning animal rights.5

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DOJ 's response to this deluge of requests, however, was not as quick as plaintiff hoped, and on October 18, 2011, he initiated this lawsuit, alleging the agency's failure to produce records in response to his requests regarding himself and COK violated FOIA. Complaint, Shapiro v. United States Dep't of Justice, Civ. Case No. 11-1835 (BAH) (D.D.C. Oct. 18, 2011). On February 21, 2012, the parties agreed that DOJ would disclose records responsive to those requests by May 15, 2012, with a schedule for any necessary dispositive motions. Min. Order (Feb. 21, 2012), Shapiro v. United States Dep't of Justice, Civ. Case No. 11-1835 (BAH) (D.D.C. Feb. 21, 2012).

Six days later, however, plaintiff filed three additional lawsuits alleging that DOJ's failure to produce records in response to a number of his other requests also constituted violations of FOIA.6 This Court directed the parties to show cause why all four cases should not be consolidated. Min. Order (Mar. 1, 2012). Plaintiff agreed to consolidation of only three of

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the four cases, as the parties had already made some progress in the earliest filed case, see Pl.'s 1st Mot. for Leave to File FAC at 1, ECF No. 6, while DOJ wanted all four cases consolidated, see Def.'s Opp'n to Pl.'s Mot. for Leave to File FAC at 1, ECF No. 9. The Court ordered all four cases to be consolidated, Mem. Op. & Order (Jun. 12, 2020) at 3, ECF No. 11, and subsequently granted plaintiff leave to file a first amended complaint, which was filed on June 19, 2012, setting forth all of the claims asserted in the four separate actions "together with several additional claims against the same defendant." Pl.'s 2d Mot. for Leave to File FAC at 1, ECF No. 12.

The parties then set out to determine how DOJ would respond to this omnibus action. DOJ was ordered to produce records responsive to plaintiff's COK request by July 20, 2012, and plaintiff was directed to submit a "priority list" of his requests in order for the FBI and ATF to determine a schedule for subsequent disclosures. Min. Order (Jul. 11, 2012). After plaintiff submitted his priority list, DOJ moved to stay the case until September 30, 2019. Def.'s Mot. for Open America Stay ("Def.'s Stay Mot.") at 1, ECF No. 17. Litigation over the stay motion then took center stage until, on December 8, 2014, DOJ's motion was granted, in part, with litigation stayed until September 30, 2017, owing to the "unusually voluminous, complicated, and interconnected" nature of plaintiff's requests. Mem. Opinion and Order (Dec. 8, 2014) ("Stay Order") at 2, ECF No. 61.

To address plaintiff's record requests, DOJ divided plaintiff's priority list into five tiers, 2d Hardy Decl. ¶ 38, and over the following three years, set about searching for, reviewing, processing, and releasing records responsive to plaintiff's requests. For "Tier 1" requests, DOJ reviewed 56,581 responsive pages and released 17,727 pages in part or in full, 5th Decl. of David M. Hardy ¶ 5, ECF No. 67-1, and also reviewed 29 pieces of non-documentary media (i.e., CDs

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and DVDs) and released 23, 6th Decl. of David M. Hardy ¶ 5, ECF No. 70-1. For "Tier 2" requests, out of 41,028 pages reviewed, 1,851 pages were released, 7th Decl. of David M. Hardy ¶ 5, ECF 71-1, and out of 14 CDs/DVDs reviewed, 1 was released, 8th Decl. of David M. Hardy ¶ 5, ECF 72-1. For "Tier 3" requests, out of 39,125 pages reviewed, 12,186 pages were released, 9th Decl. of David M. Hardy ¶ 5, ECF No. 73-1, and out of 64 CDs/DVDs reviewed, 3 were released, 10th Decl. of David M. Hardy ¶ 5,7 ECF No. 74-1. For "Tier 4" requests, out of 12,862 pages reviewed, 5,391 pages were released, 11th Decl. of David M. Hardy ¶ 5, ECF No. 76-1, and all 13 CDs/DVDs responsive to those requests were withheld, 12th Decl. of David M. Hardy ¶ 5, ECF No. 77-1. Finally, for "Tier 5" requests, out of 1,774 pages reviewed, 904 pages were released, 13th Decl. of David M. Hardy ¶ 5, ECF No. 78-1, and out of 37 CDs/DVDs, 1 was released, 14th Decl. of David M. Hardy ¶ 5, ECF No. 79-1. In preparing these "tiered" releases, the FBI also reviewed and withheld "approximately 460,054 pages" related to then-pending investigations. 15th Declaration of David M. Hardy ("15th Hardy Decl.") ¶ 47, ECF No. 97-3. In all, then, the FBI reviewed over 614,000 pages of records and nearly 160 CDs/DVDs responsive to plaintiff's requests and released approximately 38,788 pages and 28 CDs/DVDs to plaintiff.

Some of the requests plaintiff sent to the FBI turned up records that belonged to the ATF. Decl. of Peter J. Chisholm ("Chisholm Decl.") ¶ 3, ECF No. 97-11. When that would happen, the FBI would refer the documents to the ATF for determination of whether any of the documents could be released. The ATF thus processed 509 pages of records pursuant to the FBI's referrals or requests for consultation, 17 of which were withheld in full and the remainder of which were released in full or in part. See generally, Chisholm Decl.; Chisholm Decl., Ex. A

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("ATF Vaughn Index"), ECF No. 97-12. Plaintiff also sent a single FOIA request directly to the ATF. Chisholm Decl. ¶ 10. That request led to the partial disclosure to the plaintiff of a single 4-page document. Id. ¶ 25; ATF Vaughn Index at 23.

After DOJ completed its disclosures, the parties agreed on a "sample" briefing method. Joint Status Report ("JSR") (Oct. 20, 2017), ECF No. 86. Under this sampling method, explained below in greater detail, the parties selected a small sample of the records responsive to plaintiff's requests to use in testing the propriety of FBI's withholdings. Id. The parties adopted a more traditional briefing method to test the validity of the ATF's withholdings. DOJ relies on FOIA Exemptions 1, 3, 4, 5, 6, 7(A), 7(C), 7(D), and 7(E) to justify its withholdings as set out in the FBI's and ATF's Vaughn Indexes, see 15th Hardy Decl., Ex. A ("FBI Vaughn Index"), ECF No. 97-4; ATF Vaughn Index, and further explained in two declarations from David M. Hardy, Section Chief of the FBI's Record/Information Dissemination Section ("RIDS"), see 15th Hardy Decl.; 16th Decl. of David M. Hardy ("16th Hardy Decl."), ECF No. 113-1, and the declaration of Peter J. Chisholm, Chief of the Disclosure Division at the ATF, see Chisholm Decl. Plaintiff objects to the invocation of each FOIA exemption. See generally Pl.'s Mem. Supp. Cross-Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. ("Pl.'s Opp'n"), ECF No. 105-1.

Based on the sample of processed records and the accompanying government filings, the parties have cross-moved for summary judgment. Def.'s Summ. J. Mot., ECF No. 97; Pl.'s Summ. J. Mot. Plaintiff also contends that he cannot adequately defend against DOJ's summary judgment motion with respect to the adequacy of the FBI's search for responsive records and has thus requested time to undertake discovery on that issue. Pl.'s 56(d) Mot. Over a year after the filing of DOJ's initial motion for summary judgment, including the submission of three...

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