Stein v. U.S. Dep't of Justice
| Decision Date | 30 September 2015 |
| Docket Number | Civil Action No. 13–cv–00571 (TSC) |
| Citation | 134 F.Supp.3d 457 |
| Parties | Jeffrey Stein, Plaintiff, v. U.S. Department of Justice, Defendant. |
| Court | U.S. District Court — District of Columbia |
Kelly Brian McClanahan, National Security Counselors, Rockville, MD, for Plaintiff.
Claire M. Whitaker, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
Plaintiff Jeffrey Stein brings six claims under the Freedom of Information Act, 5 U.S.C. § 552 et seq., as amended ("FOIA"), concerning six unrelated FOIA requests he made to the Federal Bureau of Investigation (the "FBI"), the Civil Division of the United States Department of Justice (the "Civil Division") and the Executive Office for United States Attorneys (the "Executive Office"), all of which are components of Defendant the United States Department of Justice ("DOJ").
Defendant moved for summary judgment as to all six claims, with the parties briefing Counts I, II and III (which pertain to records sought from the FBI and the Civil Division) separately from Counts IV, V and VI (which pertain to records sought from the FBI and the Executive Office), per the court's order.
Upon consideration of Defendant's motions for summary judgment, the responses thereto and the replies in support thereof, and for the reasons set forth below, summary judgment is GRANTED on Counts I, II, III and VI; DENIED on Count IV; and GRANTED IN PART and DENIED IN PART on Count V.
For the sake of clarity, and because each count of the Complaint relates to a different FOIA request, each count will be discussed separately. Counts I and II were previously part of the case Ryan Shapiro, et al. v. Dep't of Justice, Civ. A. No. 1:12–cv–01883 (BAH) (D.D.C.), but were severed from that case and refiled in this action.
On September 13, 2011, Plaintiff submitted a FOIA request to the FBI for all Work Processing Unit ("WPU") Case Evaluation Forms that it had completed since October 2008. According to Plaintiff, these forms are completed during random quality control audits of FOIA requests. (Compl. ¶ 8).
In December 2011, the FBI informed Plaintiff that it had failed to find any responsive records during a two-hour search of approximately 345 records, and estimated that searching approximately 18,322 additional potentially responsive records would consume over 106 hours of search time. (First Hardy Decl. ¶ 9). The FBI further stated that it would be unreasonably burdensome to search every FOIA request file to locate the requested Case Evaluation Forms, and that it would close Plaintiff's request unless he agreed to limit its scope. .
The FBI eventually advised Plaintiff that it had learned that WPU Case Evaluation Forms are normally maintained in employees' personnel folders for a period of one year before they are destroyed. (First Hardy Decl. Ex. G). Based on this fact, the FBI took the position that retrieval and reproduction of the forms would be a "clearly unwarranted" invasion of personal privacy, and that the forms were therefore exempt entirely from FOIA pursuant to exemptions (b)(2) and (b)(6). (First Hardy Decl. Ex. G).
In response, Plaintiff limited the scope of his request to all Case Evaluation Forms located in WPU employees' personnel folders, regardless of their creation date, and stated that the FBI could redact its employees' personally identifiable information from the forms. . The FBI responded by again asserting exemptions (b)(2) and (b)(6) as to all the forms. .
Plaintiff appealed the FBI's assertion of exemptions (b)(2) and (b)(6) to DOJ's Office of Information Policy ("OIP"), and OIP eventually closed the appeal after Plaintiff challenged the FBI's assertion of these exemptions in the Shapiro case, which Plaintiff filed in November 2012. .
Here, Plaintiff does not challenge the adequacy of the FBI's search, but challenges both claimed exemptions.
On September 13, 2011, Plaintiff submitted a FOIA request to the FBI for all manuals, training materials and similar reference materials regarding the Automated Case Support ("ACS") and FOIA Document Processing System ("FDPS") programs utilized by the FBI's Record/Information Dissemination Section. .
The FBI released a number of records to Plaintiff in March 2012. . It stated that it had reviewed 643 pages of records, 376 pages of which it released to Plaintiff in full or in part, with the balance withheld pursuant to FOIA exemptions (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). (First Hardy Decl. Ex. R). These 643 pages comprised two documents: The 274–page ACS Basic Reference Guide and the 369–page FDPS Manual.
Plaintiff appealed the FBI's assertion of FOIA exemption (b)(7)(E) to OIP, specifically noting that he did not appeal the FBI's assertion of the other three FOIA exemptions. . Subsequently, OIP remanded the FOIA request to the FBI for reprocessing to determine whether any additional material could be released to Plaintiff. .
In October 2012, after re-reviewing the same 643 pages of records, the FBI released to Plaintiff 396 pages in full or part—20 more pages than it had released in March 2012—with certain information again withheld pursuant to the same four FOIA exemptions. .
Plaintiff again appealed the FBI's assertion of FOIA exemption (b)(7)(E) to OIP. . OIP eventually closed the appeal after Plaintiff challenged the FBI's assertion of exemption (b)(7)(E) in the Shapiro case. .
Plaintiff does not challenge the adequacy of the FBI's search, and does not challenge any of the withholdings from the 369–page FDPS Manual. Instead, Plaintiff challenges only the FBI's assertion of exemption (b)(7)(E) with regard to the 274–page ACS Basic Reference Guide, only 27 pages of which were released to him.
On September 13, 2011, Plaintiff submitted a FOIA request to the Civil Division for copies of three monographs: Chevron Notes (2009), The Governmental Privileges (September 2006) and Defending Actions Brought Pursuant to the Privacy Act of 1974 (1982). .
In January 2011, the Civil Division advised Plaintiff that it was withholding in full all records responsive to the request—three monographs totaling 166 pages—as "intra-agency monographs consisting of agency attorney opinions" under exemption (b)(5). (Kovakas Decl. Ex. B; id. ¶ 5; see also Compl. ¶ 33).
Plaintiff appealed the withholdings to OIP, which affirmed, advising Plaintiff that it had reviewed his appeal and determined that the records were properly withheld under the exemption. .
Plaintiff does not challenge the adequacy of the Civil Division's search, but challenges its assertion of exemption (b)(5).
On September 13, 2011, Plaintiff submitted a FOIA request to the Executive Office for all records in the USABook Desktop Library maintained by the DOJ Office of Legal Education indexed under the topic "Freedom of Information." .
In November 2011, the Executive Office notified Plaintiff that it was withholding in full 38 print-out pages that captured what it described as "the Chapters relevant to the request in the FOIA portion of the USABook" pursuant to exemptions (b)(5) and (b)(7)(E). .
Plaintiff appealed the Executive Office's assertion of these exemptions and the adequacy of the Executive Office's search to OIP, which subsequently remanded the request to the Executive Office for further processing. (Compl. ¶¶ 40, 41).
In September 2013, counsel for Defendant e-mailed Plaintiff a redacted copy of the list of links on what she referred to as the USABook FOIA Topic Page. (Luczynski Decl. Ex. D; Pl. Second Opp. Ex. C). Defendant states that this list was sent for the sole purpose "of reaching a settlement and without any intentional or inadvertent waiver of the non-responsive determination [the Executive Office] originally made." (Luczynski Decl. ¶ 11 (citing Ex. D thereto)).
In May 2014, counsel for Defendant e-mailed Plaintiff three of the 38 pages being withheld—two pages titled "Freedom of Information" discussing wiretap recordings and a one-page memo titled "FOIA and District Discover[y] Policies"—after confirming that these pages had previously been publicly released. (Luczynski Decl. ¶¶ 12–13 (citing Ex. E thereto)).
Plaintiff argues that the Executive Office construed his FOIA request too narrowly and challenges its assertion of exemptions (b)(5) and (b)(7)(E) over the material withheld.
On January 9, 2012, Plaintiff submitted a FOIA request to the FBI for all records, including cross-references, regarding the late Christopher Hitchens, the noted British author and journalist. .
In March 2012, the FBI released to Plaintiff 19 pages of material previously processed for another requester, with certain information exempted pursuant to FOIA exemptions (b)(1), (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). .
Plaintiff appealed the adequacy of the search and the FBI's assertion of exemptions to OIP. . OIP remanded Plaintiff's request for additional searches, and...
To continue reading
Request your trial
-
Tokar v. U.S. Dep't of Justice
...for use before a congressional committee "certainly satisfies the threshold requirement of Exemption 7"); see also Stein v. DOJ , 134 F.Supp.3d 457, 485 (D.D.C. 2015). Mr. Tokar does not dispute the fact that the table was made from documents that were compiled for law enforcement purposes.......
-
Hall & Assocs. LLC v. U.S. Envtl. Prot. Agency
...burden, the district court will review the agency's evidence and arguments under a de novo standard of review, see Stein v. DOJ , 134 F.Supp.3d 457, 468 (D.D.C. 2015), and it will interpret all of the facts "in the light most favorable to the FOIA requester[,]" Willis v. DOJ , 581 F.Supp.2d......
- Doe v. Cabrera
-
Shapiro v. U.S. Dep't of Justice
...30, 54–55 (D.D.C. 2016), aff'd sub nom. McClanahan v. Dep't of Justice , 712 F. App'x 6 (D.C. Cir. 2018) ; Stein v. U.S. Dep't of Justice , 134 F. Supp. 3d 457, 474–75 (D.D.C. 2015) ; McRae v. U.S. Dep't of Justice , 869 F. Supp. 2d 151, 168–69 (D.D.C. 2012).It is unclear whether the databa......