LIT FOUNDER’s FOIA REQUEST and APPEAL
USMS continues to delay the request for truthful transparency.
AUGUST 2, 2023 | LAST UPDATE BY LIT: AUGUST 2, 2023
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The Press Act
LIT has been a long-term target of the government and this targeting has now expanded from surveillance and imposter doctors to filing of a baseless lawsuit by a lawyer who works closely with state and federal government agencies. We call him “Bob” and we’ve collected and published many articles on Bob and his co-conspirators.
Furthermore, the blackballin’ of LIT in attempts to obtain open records is unassailable evidence of the fact that LIT is being monitored closely and being denied even basic legal and civil rights. LIT also has pending DOJ and US Marshall open record requests which have percolated for many months.
Democracy in America has been shelved, permanently.
We see that other media outlets are now brave enough to post about unlawful government spying and surveillance and that the Press Act is being touted to defend the first amendment and rights of journalists. It’s a start, but it doesn’t go far enough as it fails to include coverage against attacks from the government using ‘private’ citizens like Bob. This is equivalent to the DOJ and FBI takeover of Twitter, a private entity.
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USMS OGC FOIA <USMS.FOIA@usdoj.gov>
Wed, Mar 29, 1:53 PM
Dear Mr. Burke:
The United States Marshals Service (USMS) is responding to your Freedom of Information Act (FOIA) request 2023-USMS-000157. Please find attached the final disclosure.
USMS FOIA Admin
NOTICE: This email (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If you are not the intended recipient (or the recipient’s agent), you are hereby notified that unauthorized dissemination, distribution, copying, or use of this email or its contents is prohibited and may violate applicable law. If you received this email in error, please notify the sender immediately and destroy all copies.
Subject of Request
Re: Freedom of Information Act Request No. 2023-USMS-000157 Subject: Mark Burke
Dear Mr. Burke:
The United States Marshals Service (USMS) is responding to your Freedom of Information Act (FOIA) request received on January 18, 2023, for records pertaining to the following:
“See attached request (8 page PDF) Formally requests all case file(s), documents, video, phone call data, and recordings, audio or video pertaining to this event, the people involved and their respective information including resumes, along with any related information for the whole period of surveillance, including the time period wherein USMS formally requested removal of Judges data. This should include any judicial requests, whether denied or granted, where USMS sought any orders approving surveillance, not limited to wiretapping or monitoring of home office, residence, personal and business emails, websites, other data or data mining usually associated with a USMS investigation (Date Range for Record Search: From 1/1/2019 To 1/12/2023)”
Pursuant to your request, the USMS conducted a search for records responsive to your request and located no responsive records within the following offices/divisions:
Eastern District of Texas Southern District of Texas
For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c) (2006 & Supp. IV (2010)). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.
If you are not satisfied with the United States Marshals Service (USMS) determination in
response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, 441 G Street, NW, 6th Floor, Washington, D.C. 20530, or you may submit an appeal through OIP’s FOIA STAR portal by creating an account on the following website: https://www.justice.gov/oip/submit-and-track- request-or-appeal. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked “Freedom of Information Act Appeal.”
You may also contact Charlotte Luckstone or our FOIA Public Liaison at (703) 740-3943 for any further assistance and to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at firstname.lastname@example.org; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.
/s/ TB for
Senior Associate General Counsel FOIA/PA Officer
Office of General Counsel
Basis for Appeal
Description of Appeal
Re: Freedom of Information Act Request No. 2023-USMS-000157 Subject: Mark Burke
In light of WOODWARD v. UNITED STATES DEPARTMENT OF JUSTICE (1:18-cv-01249) District Court, District of Columbia and MEMORANDUM OPINION issued on Dec. 27, 2022 Denying Defendant’s Motion for Summary Judgment; Granting Plaintiff’s Cross- Motion for Summary Judgment and which was not appealed, I seek reconsideration of the denials received by USMS based on a curt and narrowed search for known documents in the final response to my FOIA request. The denial letter is dated March 29, 2023 by USMS, Re: Freedom of Information Act Request No. 2023-USMS-000157 Subject: Mark Burke.
Based on Denial of Fee Waiver
Based on Denial of Expedited Processing
Requester Item Type 1
Requester Items 1
Requester Item Type 2
Requester Items 2
Requester Item Type 3
Requester Items 3
Appeal Expedited Determination for Appeal Number A-2023-00982
Administrator Email <email@example.com>
Mon, Apr 3, 2023 at 6:51 AM
Expedited Determination decision has been made on Appeal Number A-2023-00982 with the decision of Improper.
Your request for expedited handling of your appeal is unperfected.
You have not provided a statement certified to be true and correct, nor have you provided any facts to support your assertion that expedited processing is warranted under standards one, two, three, or four. See 28 C.F.R. 16.5(e)(3).
Your appeal is currently being processed and this Office will respond to you once a final determination has been made on your appeal.
If you are dissatisfied with my action on your request for expedited treatment of your appeal, you may file a lawsuit in accordance with 5 U.S.C. § 552(a)(6)(E)(iii).
Mark Burke <firstname.lastname@example.org>
9:03 AM – Aug. 2, 2023
I returned to your CRM website which incorrectly states the appeal is closed. It was remanded to your offices on May 22, 2023, see attached letter.
I called the phone number but it went straight to voicemail.
I would like an update on the status of my FOIA request which has been percolating at your office for over 71 days.
12:51 PM, Aug. 2, 2023
Dear Sir or Madam,
Could you explain how your letter is dated May 16, 2023 when today is August 2, 2023?
It appears to be backdated, as the appeal was not remanded until May 22, 2023 and you had closed your file, pending this appeal decision. Your response pre-dates the official decision and raises material concerns.
Furthermore, is this all the information you have that is subject to release per my FOIA request? There has to be much, much more than you’ve provided in this response, including the subsequent take-down request by DeleteMe (Abine Inc) on June 2, 2023?
For example, what about the email communications from the US Marshals around Jan 4, 2021, and which should include internal emails between USMS’s Steven Gandre and Michael Witkowski and the Federal Court(s) re 11th Cir. Judge Rosenbaum?
Please provide a full response by return.
The Honorable Enix Smith III was nominated by President Joseph R. Biden Jr., confirmed by the United States Senate, and appointed on July 25, 2022, to serve as the United States Marshal (USM) for the Eastern District of Louisiana.
United States Marshal Smith is responsible for protecting the federal judiciary, apprehending federal fugitives, managing and selling seized assets acquired by criminals through illegal activities, housing and transporting federal prisoners, and operating the Witness Security Program.
Prior to United States Marshal Smith’s appointment, he served in the Office of Congressman Cedric L. Richmond from 2011 to 2021. He served as Chief of Staff and Deputy Chief of Staff from 2015 to 2021, Law Enforcement Coordinator from 2011 to 2021, and District Director in 2011. Before joining Congressman Richmond, USM Smith worked as a Quality Control Supervisor for Quadel Consulting, Program Site Administrator for Louisiana Community Developers, and was a teacher for New Orleans Public Schools from 1998 to 2005.
United States Marshal Smith received his Bachelor of Arts from Xavier University in 1998, and is Louisiana Department of Education Certified in Special Education, Early Childhood Education, and Elementary Education.
President Joe Biden is nominating Enix Smith III, who served as former Congressman Cedric Richmond’s top aide, for the U.S. marshal in the U.S. Eastern District Court of Louisiana in New Orleans.
Smith is one three new nominees for U.S. marshal and five U.S. attorney nominees that Biden will announce today.
Smith served as Richmond’s 2nd Congressional District chief of staff and deputy chief of staff from 2015 to 2021, law enforcement coordinator from 2011 to 2021 and district director in 2011.
Richmond gave up his congressional seat to join Biden’s administration as the president’s senior advisor.
Democratic Congressman Troy Carter of New Orleans won a special election last summer to replace Richmond.
“He will prove to be an incredible public servant,”
Carter told USA Today Network.
“He has the proper temperament, integrity and is above reproach.”
Smith’s nomination must be confirmed by the U.S. Senate.
Republican Louisiana U.S. Sens. Bill Cassidy and John Kennedy haven’t commented about Smith’s nomination.
Before Smith joined Richmond, he worked as a quality control supervisor for Quadel Consulting Corporation from 2006 to 2010 and as a field supervisor for Eagle Environment from 2005 to 2006.
He was the Program Site Administrator for the Louisiana Community Developers, Inc. from 2002 to 2005 and the assistant director for New Orleans Community Enhancement, Inc. from 2002 to 2005.
Smith, an Xavier University graduate, began his career as a public school teacher in New Orleans.
Biden said Smith and his other nominees were chosen “for their devotion to enforcing the law, their professionalism, their experience and credentials in this field, their dedication to pursuing equal justice for all, and their commitment to the independence of the Department of Justice.”
Biden has now announced 48 nominees to serve as U.S. attorneys and five nominees to serve as U.S. marshals since beginning his presidency.
Greg Hilburn covers state politics for the USA TODAY Network of Louisiana. Follow him on Twitter @GregHilburn1.
Eastern District of Louisiana
U.S. Marshal: Enix Smith III
Courthouse: Hale Boggs Federal Building-Courthouse
Address: 500 Poydras Street, Suite 724
New Orleans, LA 70130-3326
Phone: (504) 589-6079
Established on January 12, 1827
LIT: The FOIA request was made in 2015. As such, it has taken 7+ years to reach this latest summary judgment decision in favor of the Plaintiff and against the government agency.
The question remains, will USMS comply?
Mario Woodward submitted FOIA requests to the U.S. Marshals Service and the Civil Rights Division of the Department of Justice for records concerning the use of Stingray devices during an investigation that led to his conviction.
The agency acknowledged receipt of the requests, but told Woodward it did not have the specific records he was seeking.
Woodward filed administrative appeals of the decisions.
The Civil Rights decision was upheld by the Office of Information Policy, but the Marshals Service failed to respond.
Woodward then filed suit.
Failure to respond within statutory time limit, Litigation – Attorney’s fees
Denying Defendant’s Motion for Summary Judgment; Granting Plaintiff’s Cross- Motion for Summary Judgment
DEC 27, 2022 | REPUBLISHED BY LIT: MAR 29, 2023
Plaintiff Mario Dion Woodward filed a Freedom of Information Act (“FOIA”) request in 2015 seeking records pertaining to the use of any cell phone tracking technology during a criminal investigation that ultimately led to his conviction and death sentence for capital murder.
He believes that investigating authorities, including members of Defendant United States Marshals Service (“USMS”), may have used cellphone tracking technology without a warrant in furtherance of that investigation.
After Plaintiff filed suit in 2018, this Court considered and denied the parties’ cross-motions for summary judgment in 2021, finding that further explanation and in camera review of redactions applied to the documents USMS produced to Plaintiff was required.
Woodward v. U.S. Marshals Serv. (“Woodward I”), 534 F. Supp. 3d 121 (D.D.C. 2021).
After in camera review, in February of this year the Court granted in part and denied in part the parties’ renewed cross-motions for summary judgment and, as relevant here, ordered USMS to submit proof that sealed electronic surveillance orders and related materials, redacted in full at pages 71–127 of the production, were in fact prohibited from disclosure under the analysis laid out in Morgan v. U.S. Dep’t of Just., 923 F.2d 195 (D.C. Cir. 1991).
Woodward v. U.S. Marshals Serv. (“Woodward II”), No. 18-cv-1249, 2022 WL 296171 (D.D.C. Feb. 1, 2022).1
In response to the Court’s opinion in Woodward II, USMS made a supplemental production on April 11, 2022 replacing the total withholding of pages 71, 79, 104, 118, and 119 with line-by-line redactions, but leaving the remainder of pages 71–127 fully redacted.
See Joint Status Report ¶ 6, ECF No. 50.
The propriety of that continued withholding is the sole issue remaining in this case and the subject of the parties’ second renewed cross-motions for summary judgment, which are ripe for consideration.
For the reasons stated below, USMS’s motion for summary judgment is denied and Plaintiff’s cross-motion for summary judgment is granted.
II. LEGAL STANDARD
The Freedom of Information Act is meant “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”
U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)).
The FOIA statute “directs that ‘each agency, upon any request for records . . . shall make the records promptly available to any person’ unless the requested records fall within one of the statute’s nine exemptions.”
Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C.
Howdy @USMarshalsHQ we’re readin’:
The agency’s “hide the ball” approach to FOIA is not consistent with its obligations under the statute and is unacceptable. The Court is left to wonder: what other representations made in this case and, perhaps, others may be equally misleading?
— lawsinusa (@lawsinusa) March 29, 2023
§ 552(a)(3)(a)). Review of an agency’s FOIA determination is de novo. 5 U.S.C. § 552(a)(4)(B).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)).
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A “material” fact is one capable of affecting the substantive outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant.
See Scott v. Harris, 550 U.S. 372, 380 (2007).
To prevail on a motion for summary judgment in a FOIA case, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act’s inspection requirements.”
Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).
“The agency bears the burden of establishing that a claimed exemption applies,”
Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014),
and exemptions are “given a narrow compass,”
U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989).
“At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’”
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
USMS originally withheld pages 71–127, which consist mostly of pen register2 orders and related application materials, in full pursuant to FOIA Exemption 7(E) and “the privacy exemptions”—namely, Exemptions 6, 7(C), and 7(F).3
See Ex. 2 to 1st Luckstone Decl. (“1st Vaughn Index”) at 3, ECF No. 27–3; Ex. A to 2d Luckstone Decl. (“2d Vaughn Index”) at 16, ECF No. 40–4.
In Woodward II, the Court acknowledged that certain material in this page range could be permissibly redacted under the privacy exemptions, but that Exemption 7(E) was inapplicable.
Woodward II, 2022 WL 296171, at *11–12 & n.15.
In addition, though not raised by USMS, the Court noted that the withheld documents were ordered sealed by another court.
Id. at *11.
The Court explained that “the mere existence of a sealing order does not necessarily mean that an agency record is exempt under FOIA,” and that it was “USMS’s burden to show that the court’s sealing order in fact functions as a ban on the voluntary release of these materials.”
Id. (citing Morgan, 923 F.2d at 197–98).
In its second renewed motion for summary judgment, USMS makes a limited attempt to carry that burden but mainly focuses on a new claim that FOIA Exemption 3 shields the records from disclosure.
Def.’s Renewed Mot. for Summ. J. (“Def.’s Mot.”) at 3–6, ECF No. 53.
Plaintiff’s cross-motion contends that the seal
does not bar disclosure under FOIA, that USMS waived it ability to assert Exemption 3 because it failed to raise it and in fact expressly abandoned any claim to it earlier in the litigation, and that regardless Exemption 3 would not justify the near-total withholding of pages 71–127.
Pl.’s Mem. of Law in Supp. of Renewed Cross-Mot. for Summ. J. (“Pl.’s Cross-Mot.”) at 6–23, ECF No. 56–1.
A. USMS Has Not Shown that the Sealing Order Prohibits Disclosure
In GTE Sylvania v. Consumers Union of U.S., Inc., 445 U.S. 375 (1980), the Supreme Court held that documents are not “improperly” withheld from a FOIA plaintiff where an injunction renders the agency with “no discretion” to disclose them.
Id. at 386.
In Morgan, the D.C. Circuit distinguished GTE Sylvania, which involved an injunction prohibiting the agency from disclosing the records, from cases involving sealing orders that only “prohibit the public from viewing the notes in the public court record” but were not “intended to affect any future decision by [the government] to release the [records] voluntarily or pursuant to a FOIA request.”
Morgan, 923 F.2d at 197.
The Circuit held that “[i]f the seal was designed only to prohibit [plaintiff] from obtaining the [records] from the court record of his criminal trial, [plaintiff’s] FOIA complaint is a valid attempt to obtain those notes under the FOIA, not a collateral attack on the sealing order.”
Id. at 198.
Accordingly, the agency bears to burden to prove that a sealing order was also intended to prohibit future disclosure pursuant to FOIA with evidence from
“(1) [the] sealing order from the court . . .; (2) extrinsic evidence about the intended scope of a purported sealing order; (3) orders of the same court in similar circumstances; and (4) the issuing court’s general rules or procedures.”
Judicial Watch v. U.S. Dep’t of Just., 813 F.3d 380, 383 (D.C. Cir. 2016) (citing Morgan, 923 F.2d at 197–98).
Because pages 71–127 are subject to sealing orders, in Woodward II the Court, quoting Morgan at length, ordered USMS to provide such evidence. Woodward II, 2022 WL 296171, at *12 (quoting Morgan, 923 F.2d at 198). Despite the Court’s clear instructions, including a warning that this would be USMS’s “final chance to meet its burden,” id., USMS’s motion fails to even mention Morgan, let alone grapple directly with the substantive analysis it requires.
Remarkably, USMS also fails to respond to extensive argument based on Morgan in Plaintiff’s cross-motion.
See, e.g., Pl.’s Cross-Mot. at 7–8 (“Under the controlling rule of Morgan, the Court need not reach any further to dispose of this case.”).
The closest USMS got was to cite a later D.C. Circuit case interpreting Morgan in an erroneous attempt to merge the Morgan analysis with the analysis of its claim to Exemption 3.
Def.’s Combined Reply in Further Supp. of Renewed Mot. for Summ. J. && Opp’n to Pl.’s Renewed Cross-Mot. for Summ. J. (“Def.’s Reply”) at 2, ECF No. 57 (citing Jud. Watch v. Dep’t of Just.813 F.3d 380 (D.C. Cir. 2016)).4
However, the third declaration of USMS Senior Associate General Counsel Charlotte Luckstone,
attached to USMS’s motion, see 3d Suppl. Luckstone Decl., ECF No. 53–2,
does include relevant argument and factual allegations responsive to the question of whether the sealing orders were intended to permanently enjoin disclosure pursuant to FOIA, which the Court has endeavored to retrofit to the Morgan analysis.5
As explained below, the Court finds that USMS has not carried its burden to show that the sealing orders were intended to bar disclosure.
1. Evidence from the Sealing Orders6
Pages 71–127 consist of several nearly identical sets of pen register orders and related application materials, as well as cover sheets for faxes transmitting those materials.
A section of each order requires that “this order and the application be sealed until otherwise ordered by the court and that [the relevant telecommunications company], and any other telecommunications related carrier, its agents and employees shall not disclose the existence of this order or the existence of this investigation to the subscriber or to any other person, unless or until otherwise ordered by the court.”
See e.g., Production Page 90.7
As the Court explained in Woodward II, the orders “prohibit the phone company and its employees from disclosing the existence of the order or the investigation, but there is no similar prohibition directed toward the government.”
Woodward II, 2022 WL 296171, at *12.
In addition, the orders contain predicate findings that “the information sought is relevant and material to an ongoing criminal investigation, and that disclosure to any person of this investigation or of this application and order entered in connection therewith, would seriously jeopardize the investigation.”
See, e.g., Production Page 88.
Because the text of the orders does not bind the government to nondisclosure, and because the stated goal of the nondisclosure obligations the orders place on phone companies and their employees is to protect an investigation that ended in 2008, nothing in the orders supports an inference that they were intended to forever enjoin the government from disclosure pursuant to FOIA.
See Judicial Watch, 813 F.3d at 383–84
(“An ambiguous court order does not protect a record from disclosure pursuant to the FOIA.”).
USMS points out that the orders state that they are issued pursuant to the Pen Register Act, 18 U.S.C. § 3123, which provides for the issuance of ex parte orders authorizing the installation and use of pen registers and trap and trace devices.8
The Pen Register Act also requires that such orders contain sealing and nondisclosure provisions:
An order authorizing or approving the installation and use of a pen register or trap and trace device shall direct that—
(1) the order be sealed until otherwise ordered by the court; and
(2) the person owning or leasing the line or other facility to which the pen register or a trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
Id. § 3123(d).
USMS argues that the “statutory language” of Pen Register Act binds USMS “to not disclose the existence of the pen register or the existence of the underlying investigation publicly unless or until otherwise ordered by the court.”
3d Suppl. Luckstone Decl. ¶ 24.
The Court cannot agree.
The D.C. Circuit has found that that the Pen Register Act’s nondisclosure requirement, § 3123(d)(2), “does not apply to the government.”
Labow v. U.S. Dep’t of Just., 831 F.3d 523, 527–28 (D.C. Cir. 2016); see also In re Leopold, 300 F. Supp. 3d 61, 86 (D.D.C. 2018).
In addition, mirroring the language in the orders quoted above, the Pen Register Act requires the court, before ordering a pen register or trap and trace device, to confirm “that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”
18 U.S.C. § 3123(a)(1) (emphasis added).
This suggests that sealing orders entered pursuant to the Pen Register Act are primarily intended to prevent disclosure during the pendency of the relevant criminal investigation and prosecution, and perhaps even during related prosecutions, but not that they are intended to restrict “any future decision by [the government]
to release the [records] . . . pursuant to a FOIA request.”
Morgan, 923 F.2d at 195; compare, e.g., Concepcion v. FBI, 699 F. Supp. 2d 106, 112 (D.D.C. 2010)
(disagreeing with the government’s assertion that the existence of sensitive information in a sealed affidavit “strongly support[s] the conclusion that the Sealing Order was meant to prohibit any future disclosure” because the “Sealing Order itself presents no rationale for its issuance . . . and the defendant presents no transcript or other documentation to cast light on the factors that motivated the court to impose the seal”),
with Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 336 (D.D.C. 2015)
(“The text of the [nondisclosure order] makes plain the NSA’s lack of discretion to access and disclose to the plaintiff the requested metadata.”).
USMS’s additional arguments about the text and structure of the Pen Register Act are unpersuasive.
USMS makes a structural argument based on the fact that the Pen Register Act includes both a sealing provision, 18 U.S.C. § 3123(d)(1), and a nondisclosure provision, id.
It argues that “[i]f (d)(1) were not intended to control the discussion or dissemination of the order by the requesting Department of Justice entities (the U.S. Attorney’s Office and the law enforcement agency), it would be superfluous to (d)(2).”
3d Suppl. Luckstone Decl. ¶ 25.
But these provisions serve different purposes: the sealing provision in (d)(1) restricts access, while the nondisclosure provision in (d)(2) restricts disclosure.
This is precisely the distinction that the D.C. Circuit identified in Morgan, and on which the propriety of USMS’s withholding turns.
See Morgan, 923 F.2d at 197
(distinguishing a seal intended to “prohibit the public from viewing the [records] in the public court record” from one intended “to affect any future decision by [the government] to release the [records] voluntarily or pursuant to a FOIA request”).
This is why it is of central importance that the D.C. Circuit has found that the nondisclosure provision “does not apply to the government.”
Labow, 831 F.3d at 528.
USMS also argues that the Pen Register Act bars disclosure because it is a “predicate statute for withholding information from public access” under Exemption 3.9 3d Suppl.
Luckstone Decl. ¶ 23.
To be sure, the D.C. Circuit has held that the Pen Register Act is a qualifying statute under Exemption 3 because it “refers to particular types of matters to be withheld.”
Labow, 831 F.3d at 527–28 (citing 5 U.S.C. § 552(b)(3)(A)(ii)).
But whether a statute “refers to particular types of matters to be withheld” for purposes of Exemption 3 is separate from whether it independently prohibits the government from disclosing the information.
The Pen Register Act provides for the entry of sealed court orders in response to applications for pen register or trap and trace devices, but as explained above, it neither requires that pen register orders enjoin the government from disclosure nor binds the government to any nondisclosure requirement independent of such orders.
As Plaintiff notes, that Congress declined to place any such nondisclosure obligation on the Government is instructive for purposes of the Morgan analysis.
Pl.’s Cross-Mot. at 16–17.
In summary, USMS has not identified anything in the text of the sealing orders at issue or in the statute that dictated their contents to support an inference that the issuing court intended them to permanently bar the government from future disclosure pursuant to FOIA.10
1. Extrinsic Evidence
The Morgan court held that agencies can present evidence of the intended scope of a sealing order from “transcripts and papers filed with the sealing court, casting light on the factors that motivated the court to impose the seal.”
Morgan, 923 F.2d at 198.
Beyond noting that the sealing court has not entered an order unsealing the relevant records, USMS has pointed to no such extrinsic evidence to suggest that the sealing orders were intended to enjoin any future disclosure pursuant to FOIA. 3d Suppl. Luckstone Decl. ¶ 5
(explaining only that a “review of records associated with the federal criminal matter reveals only the initial complaint . . . , arrest warrant with supporting affidavit, and motion to dismiss”).
However, the applications for the pen register orders all request that the application and order be sealed “since disclosure at this time would seriously jeopardize the investigation.”
See, e.g., Production Page 125.
They further request that the court order only the relevant telecommunications companies and their agents and employees “not to disclose the existence of this order or of this investigation.” Id.
Just as with the corresponding language in the orders themselves, the text of these applications suggests that the sealing court would have been primarily concerned with disclosure during the pendency of the criminal investigation and does not support an inference that the seal was intended to enjoin any future disclosure by the government pursuant to FOIA.
2. Evidence from the Sealing Court’s General Rules or Procedures11
USMS argues that communications with the U.S. Attorney’s Office for the Middle District of Alabama, where the sealing court sits, together with references to administrative procedures in that district, show that the sealing orders were intended to bar disclosure under
Specifically, both the Civil Chief and Criminal Chief of the U.S. Attorney’s Office “informed” USMS that the “practice in that jurisdiction” is for sealed documents to remain sealed unless otherwise ordered, and specifically for “pen-trap orders and applications/affidavits (such as the ones at issue in the present litigation) [to] remain under seal and not subject to release pursuant to discovery or FOIA obligations unless first unsealed by the appropriate Court.”
3d Suppl. Luckstone Decl. ¶¶ 7–8.
USMS states that the Criminal Chief added that “pen-trap orders and applications/affidavits remain under seal as they are indicative of sensitive law enforcement techniques and procedures.” Id. ¶ 8.
But it is the intention of the sealing court, not the opinion of the U.S. Attorney’s Office, that matters under Morgan.
The D.C. Circuit stated clearly that, “in order to meet its burden of proof, the [government] may need to seek a clarification from the court that issued the seal.”
Morgan, 923 F.2d at 198 (emphasis added).
Courts in this District have relied on such clarifying instructions obtained by agencies in FOIA litigation in order to hold that otherwise ambiguous sealing orders prohibit disclosure.
See, e.g., Awan v. U.S. Dep’t of Just., 46 F. Supp. 3d 90, 92 (D.D.C. 2014)
(“[D]efendants have supplied an order issued by the Southern District of New York . . . stating that the material witness warrant application ‘was sealed with the intent to prohibit its disclosure . . . for as long as the seal remains in effect.”);
Borda v. U.S. Dep’t of Just., 306 F. Supp. 3d 306, 316 (D.D.C. 2018)
(“The Department has now submitted documentation from each of the judges who originally sealed the four plea agreements regarding the status and intent of those sealing orders. Each verifies that the relevant plea agreement remains under seal and may not be disclosed.”).
Here, USMS does not claim to have contacted the sealing court and has not provided any instruction or order from the sealing court clarifying its intent.
See Pl.’s Reply at 1
(“The USMS’[s] opposition to the Cross-Motion does not point to any order or instruction from the Alabama Court forbidding the USMS from disclosing pages 71–127[.]”).
Instead, it cites to the local rules for making sealed filings in civil cases, which it argues “indicate there is no public right of access to documents filed under seal” and thereby “reinforce the concept that documents filed under seal are subject to additional protections.”
3d Suppl. Luckstone Decl. ¶ 12; id. Ex. B at 12.
Again, this overlooks the distinction at the heart of Morgan between a sealing order that limits access and an injunction that restricts disclosure.
Moreover, the local rules for filing under seal in civil cases have limited relevance to the present case, which involves sealed court orders in a criminal case.12
This is not enough.
See Judicial Watch, 813 F.2d at 383–84
(“An ambiguous court order does not protect a record from disclosure pursuant to the FOIA.”).
In sum, evidence from the text of the sealing orders and the statute that dictates their contents, and extrinsic evidence from the applications for those orders, does not support USMS’s argument that the seal was intended to function as a permanent injunction barring the government from disclosing the materials pursuant to FOIA.
While USMS has pointed to limited evidence from the Middle District of Alabama that the seal has not been ordered removed, it has not met its burden to show that the “intended effect of the sealing order” was to “prohibit [the government] from releasing the [records].”
Morgan, 923 F.2d at 198.
Justice Seeker’s Trip to ER Last Week Leads to Terrifying Visits By Imposter Doctor to His Bedside https://t.co/SzjvEVGdLx @FBI @FBIHouston @USAO_SDTX @USMarshalsHQ @HCAhealthcare @MethodistHosp @memorialhermann @uscourts @publicjustice @Public_Justice #txlege #appellatetwitter pic.twitter.com/VRdRJu1AkJ
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1. Respect for the Judicial Process
USMS makes a final argument, referring to the sealing orders entered by the Alabama court, that this Court “lacks the authority to review, let alone nullify, the decisions of other federal courts.”
Def.’s Mot. at 5.
USMS cites three cases to support its argument.
Two of these are one-page unpublished orders affirming the district court’s finding that it “lacked the authority to review decisions of other federal courts.”
Snipes v. Chutkan, 839 F. App’x 563 (D.C. Cir. 2021); Nie v. Gov’t of United States, No. 21-cv-5227, 2022 WL 412479, at *1 (D.C. Cir. Feb. 9, 2022).
But the plaintiffs in those cases sought to challenge, in the nature of a direct appeal, adverse rulings on motions duly issued by other district courts.
See Snipes v. Chutkan, No. 20- cv-1477, 2020 WL 3265428 (D.D.C. June 16, 2020); Nie v. Gov’t of United States, No. 21-cv- 1229,2021 WL 3510656 (D.D.C. Aug. 5, 2021).
USMS’s third citation is to a wholly irrelevant case in which the Supreme Court decided that certain fines levied for contempt of court were criminal and therefore could be imposed only by a jury.
See Int’l Union, United Workers of America v. Bagwell, 512 U.S. 821, 823 (1994).
These cases say nothing about whether a court may require disclosure under FOIA of documents sealed in a proceeding before another court.
By contrast, the D.C. Circuit has held, in the context of interpreting whether a seal also prohibits disclosure, that “a defendant’s right to obtain information from the government in discovery under the Federal Rules of Criminal Procedure is separate and independent from his right to obtain the information under the FOIA” and therefore that “there are situations in which FOIA will permit access to information that would not be available through discovery.”
Morgan, 923 F.2d at 198 (second part quoting North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989)).
Accordingly, where “the seal was not intended to prohibit the [government] from releasing the [records],” a FOIA request is “a valid attempt to obtain the [records] under the FOIA, not a collateral attack on the sealing order.” Id.
Because USMS has not shown that the sealing orders here prohibited disclosure pursuant to FOIA, such disclosure “shows no lack of respect for the judicial process or the . . . [sealing] court.” Id.
A. USMS Waived Its Ability to Assert Exemption 3
Plaintiff argues that USMS waived its ability to assert Exemption 3 because it did not substantively assert it earlier and in fact explicitly disclaimed its applicability.
Pl.’s Cross-Mot. at 12–15.
The D.C. Circuit has established a “general rule” that FOIA defendants “must assert all exemptions at the same time, in the original district court proceedings” because “the delay caused by permitting the government to raise its FOIA exemption claims one at a time interferes both with the statutory goals of efficient, prompt, and full disclosure of information . . . and with interests of judicial finality and economy.”
Maydak v. Dep’t of Just., 218 F.3d 760, 765 (D.C. Cir. 2000) (cleaned up) (emphasis in original).
However, it has endorsed a “flexible approach” to enforcing this rule in recognition of the reality that FOIA exemptions protect “‘legitimate governmental and private interests’ that might be ‘harmed by release of certain types of information.’”
August v. FBI, 328 F.3d 697, 699–700 (D.C. Cir. 2003) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).
Specifically, the D.C. Circuit has identified “two exceptions for unusual situations, largely beyond the government’s control,” in which an untimely assertion of FOIA exemptions may be overlooked:
(1) in “extraordinary circumstances, where, from pure human error, the government failed to invoke the correct exemption and will have to release information compromising national security or other sensitive, personal, private information;”
(2) where a “substantial change in the factual context of the case or an interim development in the applicable law forces” the delay.
Maydak, 218 F.3d at 767.
While the D.C. Circuit laid out this framework in the context of an agency seeking to raise exemptions for the first time on appeal, courts in this District routinely apply its principles in exercising discretion over whether to accept belated invocations of FOIA exemptions during the pendency of district court proceedings.
See, e.g., Shapiro v. U.S. Dep’t of Just., No. 13-cv- 555, 2016 WL 3023980, at *3–4 & n.1 (D.D.C. May 25, 2016)
(explaining that the D.C. Circuit has “recognize[d] that a district court retains the discretion to find that such an untimely assertion has been forfeited” and listing illustrative cases).
This makes sense, as unnecessary delay at the district level equally undermines FOIA’s purpose to promote “efficient, prompt, and full disclosure of information” and the interest of judicial economy.
Maydak, 218 F.3d at 765 (emphasis in original); see, e.g., Farahi v. FBI, No. 15-cv-2122, 2017 WL 11662716, at *3 (D.D.C. Jan. 23, 2017)
(denying the government’s motion to assert additional exemptions in a future motion because it would run afoul of these interests).
It would also be arbitrary and create bad incentives for the applicability of the Maydak waiver rule to turn on whether the district court simply denied the agency’s summary judgment motion or also entered judgment for the plaintiff.
For example, the rule would be rendered a nullity where the plaintiff has not also moved for summary judgment, such that there is no risk of an appealable final judgment.
See August, 328 F.3d at 699
(explaining that the “general rule” against belated assertions of FOIA exemptions serves the goal of avoiding “cat and mouse” litigation tactics).
Accordingly, the Court considers Plaintiff’s waiver claim under the Maydak framework.
As an initial matter, it is in fact the case that, not only did USMS fail to timely assert Exemption 3, it expressly abandoned it in favor of Exemption 7(E)13 before filing its first motion for
summary judgment in September 2020.14
In the roughly 27 months since, during which the Court considered two sets of cross-motions for summary judgment, USMS did not raise Exemption 3 again.
In Woodward I, issued on April 20, 2021, the Court held, with respect to pages 72–127,15 that USMS’s explanation for invoking Exemption 7(E) was “vague” and ordered USMS to “do more to justify its withholdings.”
Woodward I, 534, F. Supp. 3d at 131–32.
Considering the parties’ renewed cross-motions for summary judgment almost ten months later, the Court in Woodward II again explained that USMS’s explanation for invoking Exemption 7(E) was “vague and incomplete,” and held that Exemption 7(E) was inapplicable because “[t]here is . . . no risk of future circumvention of the law inherent in revealing the fact that the USMS sought and obtained court orders for certain cell phone records in the course of investigating Mr. Woodward.”
Woodward II, 2022 WL 296171, at *11–12.
Still, recognizing that the records were sealed, “out of an abundance of caution and respect for the judicial process of another district court,” the Court permitted USMS a “third and final chance to meet its
Id. at *12.
This was not an open invitation to invoke new exemptions; rather, the Court specified that USMS was to provide the particular types of evidence identified in Morgan to show whether the seal covering pages 71–127 was intended to prohibit disclosure irrespective of a statutory exemption. Id.
As explained above, USMS largely ignored this instruction, failing even to reference the Morgan analysis in its present filings and instead focusing almost exclusively on its new claim to Exemption 3.
Plaintiff makes two principal arguments as to why the Court should deem any claim to Exemption 3 waived as untimely.
First, Plaintiff argues generally that USMS, after failing to “substantively raise Exemption 3” and then “explicitly abandon[ing] the argument,” should not be permitted to “ambush Plaintiff and the Court with it years into litigation after other arguments have failed.”
Pl.’s Cross-Mot. at 13.
USMS does not contest that the Exemption 3 stamp that appeared on the original production pages was not a proper invocation of the exemption, nor that it expressly abandoned its claim to it more than two years ago.
Second, Plaintiff argues that USMS has failed to show that its belated assertion of Exemption 3 should be excused under the two exceptions identified in Maydak.
Id. at 14–15.
USMS does not directly dispute that neither exception applies.
Instead, it first argues, based on the D.C. Circuit’s opinion in August v. FBI, 328 F.3d 697 (D.C. Cir. 2003), that the Court should not adopt a “rigid interpretation” of the Maydak waiver rule.
Def.’s Reply at 3.
The Court agrees that, in line with the “flexible approach” favored by the D.C. Circuit, August, 328 F.3d at 700, many cases involving belated assertions of exemption call for leniency,
see, e.g., Nat’l Assoc. of Minority Veterans v. U.S. Dep’t of Veterans Affairs, No. 21-cv-1298, 2022 WL 17082841, at *10 (D.D.C. Nov. 18, 2022)
(denying the agency’s summary judgment motion but permitting it to raise new exemptions in a renewed motion in part due to “the important third-party privacy interests protected by FOIA exemptions”).
But this is not such a case.
In August, the D.C. Circuit permitted new exemptions to be raised on remand because the case fell within the exceptions identified in Maydak.
Specifically, the court found that government’s untimely assertion was due to “human error”—in large part because “Maydak was not decided until well after the district court granted summary judgment”—and because “disclosure would pose a significant risk to the safety and privacy of third parties.”
Id. at 701–02.
Curiously, USMS cites to the passage in August referring to these “extraordinary” circumstances, but then fails to make any argument that such circumstances are present here.
Def.’s Reply at 3.
In fact, USMS expressly states that its failure to timely assert Exemption 3 was intentional and the only “human error” was stamping the since-retracted reference to Exemption 3 on the original production pages.
Id. at 4.
USMS also does not assert that disclosure would risk harm to third parties—a position with which the Court agrees, subject to the limitations described infra Section III.C, based on its in camera review and the fact that Mr. Woodward’s prosecution ended in 2008.
See Def.’s Mot. at 5 (“USMS need not show that it reasonably foresees that disclosure would harm an interest protected by Exemption 3”).
USMS next argues that the Maydak wavier rule only applies to exemptions raised for the first time on appeal because the D.C. Circuit’s principal concern was “finality.”
Def.’s Reply at 3–4 (citing Elec. Priv. Info. Ctr. v. Dep’t of Just., 296 F. Supp. 3d 109, 122 (D.D.C. 2017)).
This is belied by Maydak itself, which makes clear that finality is just one of several interests protected by the waiver rule: “the delay caused by permitting the government to raise its FOIA exemptions claims one at a time interferes both with the statutory goals of efficient, prompt, and full disclosure of information and with interests of judicial finality and economy.”
Maydak, 218 F.3d at 764 (cleaned up) (emphasis in original).
In service of these interests, it makes good sense that district courts routinely apply the Maydak analysis to belated assertions of FOIA exemptions during the pendency of district court proceedings.
See Shapiro, 2016 WL 3023980, at *3–4 & n.1 (listing cases).
In addition, as explained above, confining the Maydak waiver rule to exemptions raised for the first time on appeal would be arbitrary and encourage the type of gamesmanship that the D.C. Circuit discouraged.
See August, 328 F.3d at 699.
Finally, USMS claims that it could not have raised Exemption 3 earlier because “if the Marshals Service had asserted Exemption 3 and the Pen Register Act earlier in this action, that would have disclosed the existence of the pen register, contrary to the Pen Register Act and the United States District Court for the Middle District of Alabama’s Orders sealing records concerning such surveillance.”
16 Def.’s Reply at 4.
This is unconvincing.
Other agencies do not adhere to this logic.
See, e.g., Shapiro v. Dep’t of Just., No. 21-cv-313, 2020 WL 3615511, at *25 (D.D.C. July 2, 2020)
(FBI claiming Exemption 3 to shield pen register records).
And regardless, courts in this Circuit have rejected similar arguments on grounds that there are other “mechanisms by which [the agency] can accomplish the goal of protecting sensitive information while at the same time satisfying its burden of proof,” such as in camera review.
Maydak, 218 F.3d at 766–77
(rejecting the agency’s argument that invoking Exemption 7(A) released it from the obligation to assert any other exemptions because “the mere act of producing a Vaughn index for the purpose of substantiating its invocation of another FOIA exemption will itself disclose the very information that the more generalized categorical showing required for Exemption 7(A) was
designed to protect”);
see also Shapiro v. U.S. Dep’t of Just., 239 F. Supp. 3d 100, 110–11 (D.D.C. 2017)
(permitting ex parte, in camera review of an agency declaration submitted to justify a FOIA exemption);
see also Mobley v. CIA, 924 F. Supp. 2d 24, 68 (D.D.C. 2013)
(relying on ex parte, in camera review of a declaration to find Exemption 1 was properly invoked).
In Woodward II, the Court gave USMS leave to present arguments that the seal on pages 71–127 was intended to prevent future disclosure under the Morgan analysis.
2022 WL 296171, at *12.
Instead, USMS focused on a new claim to Exemption 3.
Because USMS not only failed to raise but specifically abandoned Exemption 3 earlier in this lengthy litigation, and because it has presented no “convincing reason” for its failure to do so, the Court finds that it has waived its ability to raise it now.17
Maydak, 218 F.3d at 769.
Therefore, after applying the redactions described below, USMS must produce the remainder of pages 71–127 to Plaintiff.
A. Redactions Are Appropriate Under the Privacy Exemptions
While the Court finds that pages 71–127 are not enjoined from disclosure based on the sealing orders or subject to withholding under Exemption 3, as noted in Woodward II, the Court recognizes that this page range does contain information that may be permissibly redacted under one or more of the privacy exemptions
—Exemptions 6, 7(C) and 7(F).18 2022 WL 296171, at
USMS asserted these exemptions as to all documents in its initial Vaughn index, see 1st Vaughn Index at 3, and the Court held in Woodward II that redaction of personally identifying information and telephone numbers for law enforcement and third parties was proper because the privacy interests outweighed any public interest in disclosure, Woodward II, 2022 WL 296171, at *4, 9.
In accordance with the Court’s ruling, USMS then made line-by-line redactions to pages 71, 79, 104, 118, and 119, which Plaintiff does not contest.
See Pl.’s Cross- Mot. at 30 (“Plaintiff does not dispute that the USMS is entitled to follow the Court’s previous decision[.]”).
As the remainder of pages 71–127 also appears to contain similar personally identifying information, including names, telephone numbers, and license-plate numbers of law enforcement and third parties, redaction of this information pursuant to the privacy exemptions is appropriate before USMS provides an otherwise unredacted version of the records to Plaintiff consistent with this opinion.
For the foregoing reasons, USMS’s Motion for Summary Judgment (ECF No. 53) is
DENIED and Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 56) is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: December 27, 2022
United States District Judge
1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking an order requiring the United States Department of Justice, Civil Rights Division (the “Civil Rights Division”) and the United States Marshals Service (the “USMS”) (together, “Defendants”) to immediately produce agency records requested by Plaintiff Mario Dion Woodward (“Plaintiff” or “Woodward”).
2. Defendants’ failures to comply with their statutory obligations under the Freedom of Information Act have significantly prejudiced and harmed Mr. Woodward by denying him records necessary to the effective exercise of his constitutional and statutory rights, hence Mr. Woodward’s recourse to this Court to compel Defendants’ compliance.
3. On September 28, 2006, Officer Keith Houts of the Montgomery Police Department was shot repeatedly in the line of duty and died two days later. The shooting was captured on video by Officer Houts’s dashboard camera, although the shooter remained unseen and his identity unknown. In the hours following the shooting, the police determined that Mr. Woodward, already a suspect, was likely in Atlanta, and a “be-on-the-lookout” alert was issued for Mr. Woodward. On September 29, one Joe Parker of the USMS arrested Mr. Woodward in Atlanta. Mr. Woodward was indicted on two counts of capital murder, tried, and convicted on August 25, 2008. A sentencing hearing was duly held, and pursuant to Alabama’s capital sentencing scheme at the time, the jury recommended by a vote of 8-4 that Mr. Woodward be sentenced to life imprisonment without possibility of parole. However, following a subsequent sentencing hearing before the trial judge, the judge overrode the jury’s advisory verdict and imposed the death sentence, a practice which the Alabama legislature has since banned. Mr. Woodward has been on death row since, as appellate proceedings remain pending.
4. Mr. Woodward has a good-faith basis to believe that the investigation which preceded his arrest may have involved the use of a cell-site simulator, more colloquially known by the trade name “stingray,” a device capable of not only intercepting cell phone metadata and tracking a cell phone user’s location, but also eavesdropping on conversations and intercepting text messages, as well as otherwise collecting sensitive and constitutionally-protected content.
As multiple courts have recognized, the use of stingrays is a law enforcement technique fraught with constitutional questions, and directly impinges upon the validity of Mr. Woodward’s arrest.
5. Further, Mr. Woodward likewise has a good-faith basis to suspect the taint of police and prosecutorial misconduct in the investigation which led to his arrest.
6. Mr. Woodward is unable to secure documents which would shed much-needed light on these concerns without resort to the disclosure mandated by the Freedom of Information Act. Accordingly, he has requested that documents related to both issues be provided by the Department of Justice. Both his requests have been denied, however, and administrative appeals have simply met with further denial, compounding the errors of the initial denials. Having exhausted his administrative options, therefore, Mr. Woodward now seeks an order from this Court requiring the disclosure of the requested documents.
7. Plaintiff Mario Dion Woodward (“Woodward”) resides in Bessemer, Alabama, on death row at the William E. Donaldson Correctional Facility.
8. Defendant the USMS is a federal law enforcement agency overseen and controlled by the United States Department of Justice.
9. Defendant the Civil Rights Division is a subdivision of the United States Department of Justice, responsible for enforcing federal law prohibiting discrimination on the basis of protected characteristics such as race, color, sex, or disability.
10. Both of the Defendants, as “establishment[s] in the executive branch of the Government ” are “agencies” as defined in FOIA at 5 U.S.C. § 552(f)(1).
III. Jurisdiction and Venue
11. This Court has jurisdiction over this action and these parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
12. Venue properly lies in this district pursuant to 5 U.S.C. § 552(a)(4)(B), which permits a plaintiff to bring an action such as the instant suit in the District Court of the United States for the District of Columbia, and 28 U.S.C. § 1391, because Defendants reside in this district.
IV. Factual Background
The Houts Shooting and Mr. Woodward’s Conviction
13. On September 28, 2006, Officer Keith Houts of the Montgomery Police Department in Montgomery, Alabama made a routine traffic stop, pulling over a silver 2006 Chevrolet Impala. As recorded by the dashboard camera on Officer Houts’s vehicle, as he approached the stopped car, its driver shot Officer Houts five times without warning. Officer Houts died two days later without having regained consciousness.
14. The car in question was registered to Morrie Surles, who had purchased it for her daughter, Tiffany Surles. Tiffany Surles was Mr. Woodward’s girlfriend at the time.
15. On the morning of the shooting, Ms. Surles’s car was not at the apartment she shared with Mr. Woodward. At no point during that day did Ms. Surles have personal knowledge that Mr. Woodward was driving or using her silver Impala.
16. The day of the shooting, Ms. Surles’s car was found burned in Montgomery. No fingerprints or DNA evidence were found in or on the burned Impala. Indeed, no eyewitness testimony or physical evidence was ever adduced which identified Mr. Woodward as the individual who had been driving the Impala at the time of the shooting.
17. The day after the shooting, September 29, 2006, the USMS had been notified via anonymous tip that Mr. Woodward had been dropped off in Atlanta. Pursuant to that tip, Agent Joe Parker of the Atlanta USMS investigated an address provided by the Alabama authorities.
While doing so, he saw Mr. Woodward at a gas station, and after getting a closer look at Mr. Woodward, arrested him for the shooting of Officer Houts.
18. Mr. Woodward’s capital murder trial began on August 18, 2008. Jury selection lasted two and a half days, after which the guilt phase occupied the afternoon of August 20 through August 25. On August 25, 2008, Mr. Woodward was convicted of two counts of capital murder as defined in Alabama law: murder of an on-duty police officer and murder with a weapon fired from a vehicle.
19. The penalty phase before the jury took place from August 26 to August 27, 2008.
On August 27, the jury recommended by a vote of 8-4 a verdict of life imprisonment without the possibility of parole.
20. On September 25, 2008, the trial court held a sentencing hearing, following which it overrode the jury’s life verdict recommendation, as then permitted under Alabama law, and sentenced Mr. Woodward to death.
21. Since his sentencing, Mr. Woodward has been engaged in the process of securing postconviction relief on the basis of the numerous legal deficiencies afflicting the trial and sentencing process, including, inter alia, ineffective assistance of counsel, the offering of improper and racially-biased testimony, and the unconstitutionality of judicial override in capital sentencing.
Mr. Woodward’s FOIA Requests
22. Mr. Woodward has reason to believe that the authorities investigating the shooting of Officer Houts may have used cellphone tracking technology, or a “stingray” device, in furtherance of that investigation. Specifically, the State’s claim that investigators identified Mr. Woodward’s precise location in Atlanta due to an anonymous tip is unsubstantiated, unverifiable, and therefore subject to doubt. Further, the USMS and the local police department of Gwinnett County, Georgia, a component of the Atlanta metropolitan area, are publicly known to possess stingray technology.1
23. Stingray devices operate by mimicking cell phone towers, which prompts nearby cell phones to connect to them. This connection allows the stingray to identify and track specific cell phones.
24. While federal law enforcement agencies, including the Department of Justice, have testified before Congress that as a matter of policy they use stingray devices in a manner akin to pen registers, i.e. to collect metadata such as “dialing, routing, signaling and addressing information” rather than the content of telephone conversations,
there is no technical obstacle to configuring or equipping stingray devices to eavesdrop on the content of calls.2
25. Information about stingray use by law enforcement agencies remains scarce, due in large part to agencies’ fierce opposition to disclosing any such information, to the point of dismissing cases or withdrawing evidence rather than admit that stingray technology was used in a given investigation.3
Law enforcement’s refusal to permit open discussion of stingray use, furthermore, has perpetuated the shroud of uncertainty surrounding the technology’s capabilities
1 See Am. Civil Liberties Union, Stingray Tracking Devices: Who’s Got Them?, ACLU, https://www.aclu.org/issues/privacy-technology/surveillance-technologies/stingray-tracking- devices-whos-got-them?redirect=map/stingray-tracking-devices-whos-got-them (last visited May 24, 2018).
2 STAFF OF H. COMM. ON OVERSIGHT AND GOVERNMENT REFORM, 114TH CONG., LAW ENFORCEMENT USE OF CELL-SITE SIMULATION TECHNOLOGIES: PRIVACY CONCERNS AND RECOMMENDATIONS 12-13 (Dec. 19, 2016).
3 See, e.g., U.S. v. Patrick, 842 F.3d 540, 546 (7th Cir. 2016) (Wood, J., dissenting)
(“Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used. Indeed, in this case, the government appears to have purposefully concealed the Stingray’s use from the issuing magistrate, the district court, defense counsel, and even this court.”)
and the constitutionality of its usage: courts cannot investigate these questions if prosecutors are willing, as they generally have been, to go to any lengths to keep the relevant information secret.
26. Notwithstanding the foregoing, numerous courts confronted with the issue have held that the use of a stingray device constitutes a search under the Fourth Amendment for which a warrant is required.4
27. Given the potential implications of stingray usage for the validity vel non of Mr. Woodward’s arrest, and by extension the admissibility of evidence obtained pursuant thereto, information regarding the use of stingray technology or other cell phone tracking technology in the investigation of Officer Houts’s death is of considerable importance to Mr. Woodward in the preparation of his appellate claims.
28. Additionally, the specter of misconduct by law enforcement authorities in Montgomery, including racial discrimination, pervaded Mr. Woodward’s trial. As such, Mr. Woodward has ample reason to seek disclosure of records related to any Department of Justice investigations of law enforcement in Montgomery County.
29. Examples of misconduct by law enforcement authorities in connection with Mr. Woodward’s case include the following:
A. The State used eleven of its twelve peremptory jury strikes to remove black jurors from the jury venire who shared virtually nothing in common except their race, raising the inference of racial discrimination by the prosecution. The prosecutor in this case, furthermore, has been recognized by the Alabama Supreme Court to have engaged in a pattern of racially-discriminatory jury strikes. Such discrimination is particularly pernicious in Mr. Woodward’s case, given that he is African-American and was being tried for the murder of a white police officer.
B. The State improperly adduced racially discriminatory expert testimony, to wit, the testimony of Agent Al Mattox, a video enhancement expert with
4 See, e.g., U.S. v. Lambis, 197 F.Supp.3d 606, 611 (S.D.N.Y. 2016); Jones v. U.S., 168 A.3d 703, 714-15 (D.C. 2017).
the Alabama Bureau of Investigation, that Agent Mattox could tell from video of the shooting that the shooter was a black male based on the shooter’s “mannerisms, movements, character traits [and] physical traits” as observed from the video.
C. Investigators threatened key witnesses, including Tiffany Surles, with prosecution in order to secure their compliance with the investigation and their support of the State’s theory of the case.
D. Judge Truman Hobbs, who pursuant to Alabama law not only presided over Mr. Woodward’s trial but also his petition for postconviction relief, refused to recuse himself from hearing the latter despite (i) Judge Hobbs’s public admission that he felt significant public pressure in connection with judicial override in Mr. Woodward’s case, and (ii) empirical data showing that Alabama judges had not once, between 1990 and 2005, provided postconviction relief to the same defendants they have sentenced to death by judicial override.
E. The trial court permitted the overbearing and overwhelming presence of uniformed police officers in the courtroom, to the point that Mr. Woodward’s sentencing proceedings had to be moved to a larger courtroom to accommodate the crowd, as well as the presence of Officer Houts’s wife at the prosecution’s table, moves plainly intended to show Montgomery law enforcement’s determination to see Mr. Woodward convicted and to stir the jury’s sympathies for the decedent and his family, respectively.
30. Given the particularly sensitive context of a black man’s capital trial for the murder of a white police officer, misconduct and racial discrimination on the part of law enforcement in Mr. Woodward’s case is especially noxious and highly prejudicial to his rights. Correspondingly, records related to any federal investigations of civil rights violations by law enforcement in Montgomery County are indispensable to the proper preparation of Mr. Woodward’s claims for appellate relief.
31. On December 28, 2015, Mr. Woodward sent a letter via electronic mail and overnight mail (the “Request”) to the Department of Justice, by and through counsel, requesting access to or the production of:
All records in any way relating to, pertaining to, or mentioning Department of Justice investigations of law enforcement located in the County of Montgomery, Alabama for civil rights violations during the time period of January 1, 1994 through today, December 28, 2015, including but not limited to investigations of the Montgomery Police Department or the Montgomery District Attorney’s Office [as well as] [a]ll records in any way relating to, pertaining to or mentioning the use of any cell phone tracking technology during the investigation of the shooting death of Officer Keith Houts on September 28, 2006, by state and/or federal law enforcement located in the State of Alabama and/or the State of Georgia, including but not limited to the use of any GPS or “stingray” technology by the Alabama Bureau of Investigations or the U.S. Marshalls [sic] located in Alabama and Georgia.
A true and correct copy of the Request is attached hereto as Exhibit A.
The Department of Justice’s Responses
32. On December 31, 2015, the Civil Rights Division responded to the Request, noting that it had been assigned the tracking number “FOI/PA No. 16-00086-F” and advising that:
As a result of the large number of Freedom of Information and Privacy Acts requests received by the Civil Rights Division, some delay may be encountered in processing your request. In an attempt to treat each requester fairly, we have adopted a policy of processing requests in the approximate order of receipt. Please be assured that your request is being handled as equitably as possible. We appreciate your patience and will provide you with a response at the earliest possible date.
A true and correct copy of the Civil Rights Division’s response dated December 31, 2015 is attached hereto as Exhibit B.
33. On January 6, 2016, the Department of Justice responded to the Request as well, via the Justice Management Division. In its reply, the Justice Management Division acknowledged receipt of the Request, stated that the Request had been assigned the tracking number EMRUFOIA122815 and that federal agencies are required by law to respond to FOIA requests within 20 business days of the earlier of (i) the request’s receipt by the DOJ component which actually maintains the records sought, or (ii) 10 business days after the request’s receipt by the Justice Management Division, and advised that the Request had been referred to the Civil Rights Division and the USMS. A true and correct copy of the Justice Management Division’s response dated January 6, 2016 is attached hereto as Exhibit C.
34. FOIA explicitly requires that an agency in receipt of a FOIA request is required to determine whether to comply with the request, and then immediately notify the requester of that determination, within twenty business days. 5 U.S.C. § 552(a)(6)(A)(i).
35. Under the terms of the statute, the latest permissible deadline for the Civil Rights Division and USMS to respond to the Request would have been February 19, 2016. This deadline passed without incident or acknowledgement.
36. On June 9, 2016, the USMS belatedly responded to the Request (the “USMS Denial”). Specifically, the USMS acknowledged the specific language of the Request, and advised that “[p]ursuant to [the Request], the USMS conducted a search of the Investigative Operations Division. The search located no records responsive to [the Request].” The USMS Denial further advised of the option to appeal, and concluded with the following language:
For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c) (2006 & Supp. IV (2010)). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.
A true and correct copy of the USMS Denial is attached hereto as Exhibit D.
37. On August 9, 2016, Mr. Woodward appealed the USMS Denial to the Department of Justice’s Office of Information Policy (the “OIP”), by and through counsel (the “USMS Appeal”), via overnight mail and the online portal for FOIA requests. A true and correct copy of the USMS Appeal is attached hereto as Exhibit E.
38. The USMS Appeal noted that the USMS’ search for records was by its own admission limited to the Investigative Operations Division, thus failing to extend to potentially- responsive documents “in any other database or repository within the USMS’ possession, custody and control . . . .” The USMS Appeal further pointed out that the USMS Denial “does not indicate whether the USMS’ search included a search for records possessed by the Alabama and Georgia District – which were specifically identified in the Request.”
39. The USMS Appeal requested that the OIP expedite its consideration thereof “in every way possible,” and noted that in any event, Mr. Woodward “[would] expect to receive a decision within twenty (20) business days, as required by law.”
40. The OIP timely responded to the USMS Appeal by letter dated August 23, 2016 (the “First OIP Denial”). A true and correct copy of the First OIP Denial is attached hereto as Exhibit F. The OIP affirmed the USMS Denial, averring that the databases searched included certain Georgia and Alabama records and contending via boilerplate language that the USMS’ search was proper and adequate.
41. The Civil Rights Division responded to the Request on May 15, 2017, nearly a year and a half after the Request was originally submitted, addressing each of the Request’s two prongs in turn and declining to produce any documents in response to either (the “CRD Denial”). A true and correct copy of the CRD Denial is attached hereto as Exhibit G. As with the USMS Denial, the CRD Denial advised of the option to administratively appeal the decision.
42. As to documents pertaining to investigations of law enforcement in Montgomery, Alabama, the Civil Rights Division stated that, after review of responsive documents, it had been determined that:
[A]ccess to the documents should be denied pursuant to 5 U.S.C. § 552(b)(5) since the records constitute predecisional deliberative material and attorney work product and pursuant to 5 U.S.C. § 552(b)(7)(E) since the records consist of sensitive investigation techniques which, if released, could reasonably be expected to risk circumvention of the law.
43. As to documents pertaining to the use of cell phone tracking technology during the investigation of Officer Houts’s shooting, the CRD Denial stated that “after a thorough search,” it had been determined that the Civil Rights Division has no records on the subject.
44. On August 10, 2017, Mr. Woodward timely submitted his appeal of the CRD Denial by and through counsel (the “CRD Appeal”), via overnight mail and the online portal for FOIA requests. A true and correct copy of the CRD Appeal is attached hereto as Exhibit H.
45. The CRD Appeal raised three deficiencies with the CRD Denial. First, the refusal to produce any records relating to investigations of law enforcement in Montgomery, Alabama was insufficiently supported relative to its very broad scope (i.e. the period of 21 years established in the Request). Second, if any portions of requested documents were withheld on the basis of privilege or a statutory exemption, the Civil Rights Division was obligated to describe the withheld material and explain the basis for the conclusion that a statutory exemption or privilege applies. Third, the Civil Rights Division’s statement that it has no records on cell phone tracking technology used in connection with the investigation of Officer Houts’s shooting failed to specify the nature or category of documents searched, as well as conflicting with publicly-available information about the use of stingray technology by law enforcement in Georgia.
46. The Office of Information Policy acknowledged that it had received the CRD Appeal on August 11, 2017 (the “OIP Acknowledgement”). A true and correct copy of the OIP Acknowledgement is attached hereto as Exhibit I.
47. In addition to noting the statutorily-mandated deadline of twenty days for the Office of Information Policy to issue its decision, barring limited extenuating circumstances, the CRD Appeal requested expedited consideration. By letter dated August 14, 2017 (the “Expedited Processing Notice”), the Office of Information Policy advised Mr. Woodward that “expedited processing of your appeal is warranted. Accordingly, your appeal will be administratively adjudicated as quickly as practicable.” A true and correct copy of the Expedited Processing Notice is attached hereto as Exhibit J.
48. The statutory deadline for the Office of Information Policy to make a determination with respect to the CRD Appeal was September 8, 2017. That date passed without any action by the Civil Rights Division or Office of Information Policy.
49. The Office of Information Policy belatedly responded to the CRD Appeal by letter dated September 29, 2017 (the “Second OIP Denial”). A true and correct copy of the Second OIP Denial is attached hereto as Exhibit K. The Second OIP Denial affirmed the CRD Denial, on both stated grounds (i.e., 5 U.S.C. § 552(b)(5) and 5 U.S.C. § 552(b)(7)(E)), denied the CRD Appeal’s request for an itemized list of information withheld, and contended that “the Civil Rights Division’s response was correct and that it conducted an adequate, reasonable search for [responsive] records.”
V. Administrative Exhaustion
50. Mr. Woodward has constructively exhausted his administrative remedies as to Defendant the USMS, pursuant to 5 U.S.C. § 552(a)(6)(C).
Mr. Woodward filed his FOIA request with the Department of Justice on December 28, 2015, and the USMS received it by January 6, 2016.
The USMS notified Mr. Woodward that it had denied the request on June 9, 2016, long past the statutory deadline to respond.
Mr. Woodward then appealed that denial on August 9, 2016. The Office of Information Policy timely responded on August 23, 2016, affirming the initial denial, constituting exhaustion of Mr. Woodward’s administrative remedies with respect to his request for documents from the U.S. Marshals Service.
51. Mr. Woodward has exhausted his administrative remedies as to Defendant the Civil Rights Division. The Civil Rights Division received Mr. Woodward’s FOIA request by January 6, 2016. After nearly a year and a half, the Civil Rights Division notified Mr. Woodward that it had denied the request on May 15, 2017. Mr. Woodward appealed that adverse determination on August 10, 2017, and the Office of Information Policy acknowledged receipt of the appeal the following day, triggering the statutory twenty-day time limit to notify Mr. Woodward of its determination. That time limit expired without such a determination. The Office of Information Policy eventually affirmed the initial denial, exhausting Mr. Woodward’s administrative remedies with respect to his request for documents from the Civil Rights Division.
VI. Claims for Relief
52. Plaintiff restates and realleges the allegations in the preceding paragraphs and incorporates them as though fully stated here.
53. An agency responding to a FOIA request is obliged to conduct a thorough search, reasonably calculated to uncover all responsive documents, and if it wishes to withhold potentially-responsive documents on the basis of one or more statutory exemptions, the agency bears the burden of justifying the application of any such exemption. An agency may not shirk this responsibility by undertaking an inadequate search for records, nor rely on conclusory and generalized invocations of FOIA’s statutory exemptions.
54. With respect to Defendant the USMS, the USMS Denial states only that “the USMS conducted a search of the Investigative Operations Division[,]” and that “[t]he search located no records responsive to your request.” This indicates that the USMS failed to search for documents responsive to the Request in any other database, collection, or repository within the USMS’ possession, custody, or control, including the records of US Marshals in Alabama and Georgia specifically identified in the Request, as well as records maintained by any of the USMS’ other divisions and offices.
55. As a general matter, the USMS Denial is silent as to how the search was conducted. The only facts set forth are that the Investigative Operations Division was searched, and that no responsive records were located by that search. The USMS Denial does not explain, for instance, the nature of the records searched, the methods employed in searching, the methods by which materials were determined to be responsive or non-responsive, or the scope of the Investigative Operations Division records searched. By definition, a FOIA request denial which tells the requester nothing about the search except its ultimate outcome cannot satisfy the agency’s burden to demonstrate the adequacy of its search efforts.
56. The USMS Denial makes offhanded reference, “[f]or your information,” to the law enforcement and national security exemptions from the scope of FOIA, but adds that the statement “should not be taken as an indication that excluded records do, or do not, exist.” See Exhibit D, at 2. Accordingly, it is unclear whether the USMS is invoking any statutory exemptions in connection with its denial of Mr. Woodward’s requests for documents. To the extent the USMS is relying on the exemptions noted, as opposed to the non sequitur of simply stating that they exist, such reliance is unjustified and improper: the USMS Denial sets forth no facts indicating why otherwise-responsive documents might be determined to fall within the statutory exemptions at issue, and therefore entirely fails to demonstrate the propriety of any reliance on the specified exemptions.
57. In short, the USMS Denial is deficient factually as well as legally: it tells Mr. Woodward virtually nothing about the search conducted, the meager information provided makes it clear that the search was improperly narrow in scope, and inasmuch as the USMS is relying on any statutory exemptions to justify its non-production, it has presented no support for doing so. As the USMS has failed to satisfy its burden of justifying its refusal to produce the documents Mr. Woodward requests, an error compounded by the First OIP Denial’s confirmation of its refusal on appeal, the USMS has unlawfully withheld the requested documents.
58. The Civil Rights Division’s refusal to produce documents similarly violates its obligations under FOIA, being overbroad and excessively vague.
59. The Civil Rights Division’s blanket refusal of Mr. Woodward’s request for documents relating in any way to investigations of law enforcement in Montgomery County, Alabama for civil rights violations is critically unsupported. It is not remotely credible that within the entire array of documents requested, that is, all records “in any way relating to, pertaining to, or mentioning” such investigations in Montgomery over a period of twenty-one years, each and every document in the Civil Rights Division’s possession, custody, or control is either attorney work product or a law enforcement record containing sensitive investigative techniques which, if disclosed, could reasonably be expected to risk circumvention of the law. No facts are set forth to justify the breathtaking scope of this refusal. FOIA does not permit the cavalier invocation of statutory exemptions, without factual support, over the universe of documents requested by Mr. Woodward.
60. In addition to its overbroad scope, the CRD Denial failed to set forth information justifying the Civil Rights Division’s withholding of responsive documents pursuant to claims of statutory exemption or privilege. No facts about the withheld documents are set forth in the CRD Denial. The Civil Rights Division took the initial step of specifying the statutory exemptions supposedly justifying withholding responsive documents, but failed to provide any facts concerning the character and scope of the search, the nature, location, and number of the documents searched, and other factors which bear on the validity of its purported compliance with its obligations under FOIA. As such, the Civil Rights Division failed to carry its burden of establishing not only the statutory basis for withholding given documents, but the factual predicate for its conclusion that each document in question fell within the scope of such exemption or privilege.
61. Similarly, the CRD Denial avers that the Civil Rights Division, after “thorough search,” has “no records pertaining to the use of any cell phone tracking technology during the investigation of the shooting death of Office [sic] Keith Houts.” See Exhibit F, at 1. Here again the CRD Denial omits any details as to the nature of the search conducted, and that of the documents reviewed. Consequently, this statement constitutes a conclusory and unsupported assertion which fails to justify the Civil Rights Division’s refusal to produce documents.
62. In response to Mr. Woodward’s administrative appeal, the Second OIP Denial essentially rubber-stamps the Civil Rights Division’s deficient response, and consequently does nothing to ameliorate the Civil Rights Division’s failure to produce responsive documents as requested. As such, the Civil Rights Division continues to unlawfully withhold documents responsive to Mr. Woodward’s requests, in violation of its obligations under FOIA.
VII. Request for Relief
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in his favor and against Defendants the USMS and the Civil Rights Division, and grant the following relief:
A. Declare that Plaintiff has constructively exhausted his administrative remedies with respect to Defendant the USMS;
B. Declare that Plaintiff has exhausted his administrative remedies with respect to Defendant the Civil Rights Division;
C. Declare that Defendants’ refusal to release the records requested by Plaintiff violates the Freedom of Information Act;
D. Enjoin and order Defendants to disclose the requested records in their entireties and to make copies thereof available to Plaintiff;
E. Retain jurisdiction over this action until Defendants establish that they have complied with the relevant provisions of FOIA and the Order of this Court;
F. Award Plaintiff his costs and reasonable attorneys’ fees incurred in this action as provided for by 5 U.S.C. § 552(a)(4)(E) and/or 28 U.S.C. § 2412(d);
G. Grant Plaintiff such other relief as the Court may deem just and proper.
Dated: May 29, 2018
New York, New York
Reed Smith llp
By: /s/ John Kennedy
John P. Kennedy (Bar No. NY0263)
599 Lexington Avenue
New York, New York 10022
Telephone: (212) 521-5400
Facsimile: (212) 521-5450
Below is the full text of the Freedom of Information Act in a form showing all amendments to the statute made by the “FOIA Improvement Act of 2016.” All newly enacted provisions in boldface type replace the strikethrough text.
Full Text of the FOIA Improvement Act of 2016 (Public Law No. 114-185)
§ 552. Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying for public inspection in an electronic format
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a member of the public;
(D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and copies of all records, regardless of form or format –
(i) that have been released to any person under paragraph (3); and
(ii)(I) that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or
(II) that have been requested 3 or more times; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. Each agency shall also maintain and make available for public inspection and copying current public inspection in an electronic format current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of an index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
(i) it has been indexed and either made available or published as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.
(D) For purposes of this paragraph, the term “search” means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.
(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available under this paragraph to—
(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or
(ii) a representative of a government entity described in clause (i).
(4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.
(ii) Such agency regulations shall provide that—
(I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use;
(II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication.
In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.
(iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section—
(I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii)(II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.
(vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court’s review of the matter shall be limited to the record before the agency.
(viii) An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request. (I) Except as provided in subclause (II), an agency shall not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) under this subparagraph if the agency has failed to comply with any time limit under paragraph (6).
(II)(aa) If an agency has determined that unusual circumstances apply (as the term is defined in paragraph (6)(B)) and the agency provided a timely written notice to the requester in accordance with paragraph (6)(B), a failure described in subclause (I) is excused for an additional 10 days. If the agency fails to comply with the extended time limit, the agency may not assess any search fees (or in the case of a requester is described under clause (ii)(II) of this subparagraph, duplication fees).
(bb) If an agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, an agency may charge search fees (or in the case of a requester described under clause (ii) (II) of this subparagraph, duplication fees) if the agency has provided a timely written notice to the requester in accordance with paragraph 6(B) and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with paragraph (6)(B)(ii).
(cc) If a court has determined that exceptional circumstances exist (as that term is defined in paragraph (6)(C)), a failure described in subclause (I) shall be excused for the length of time provided by the court order.
(B) On 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. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause is shown.
[(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98 Stat. 3357.]
(E)(i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—
(I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.
(F)(i) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.
(ii) The Attorney General shall—
(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and
(II) annually submit a report to Congress on the number of such civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i).
(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall—
(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; making such a request of –
(I) such determination and the reasons therefor;
(II) the right of such person to seek assistance from the FOIA Public Liaison of the agency; and
(III) in the case of an adverse determination –
(aa) the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and
(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and
(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.
The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except—
(I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; or
(II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency’s receipt of the requester’s response to the agency’s request for information or clarification ends the tolling period.
(B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C).
(iii) As used in this subparagraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests—
(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.
(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.
(ii) For purposes of this subparagraph, the term “exceptional circumstances” does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph.
(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests.
(ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing.
(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.
(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—
(I) in cases in which the person requesting the records demonstrates a compelling need; and
(II) in other cases determined by the agency.
(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—
(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and
(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.
(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.
(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.
(v) For purposes of this subparagraph, the term “compelling need” means—
(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.
(vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person’s knowledge and belief.
(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.
(7) Each agency shall—
(A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and
(B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including—
(i) the date on which the agency originally received the request; and
(ii) an estimated date on which the agency will complete action on the request.
(8)(A) An agency shall –
(i) withhold information under this section only if –
(I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or
(II) disclosure is prohibited by law; and
(ii)(I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and
(II) take reasonable steps necessary to segregate and release nonexempt information; and
(B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).
(b) This section does not apply to matters that are—
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute–
(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) geological and geophysical information and data, including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.
(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and—
(A) the investigation or proceeding involves a possible violation of criminal law; and
(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.
(d) This section does not authorize the withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.
(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States and to the Director of the Office of Government Information Services a report which shall cover the preceding fiscal year and which shall include—
(A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), the number of occasions on which each statute was relied upon, a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld;
(C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median and average number of days that such requests had been pending before the agency as of that date;
(D) the number of requests for records received by the agency and the number of requests which the agency processed;
(E) the median number of days taken by the agency to process different types of requests, based on the date on which the requests were received by the agency;
(F) the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests;
(G) based on the number of business days that have elapsed since each request was originally received by the agency—
(i) the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days;
(ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days;
(iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and
(iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days;
(H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;
(I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal;
(J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency;
(K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency;
(L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days;
(M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations;
(N) the total amount of fees collected by the agency for processing requests; and
(O) the number of full-time staff of the agency devoted to processing requests for records under this section, and the total amount expended by the agency for processing such requests;
(P) the number of times the agency denied a request for records under subsection (c); and
(Q) the number of records that were made available for public inspection in an electronic format under subsection (a)(2).
(2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall.
(3) Each agency shall make each such report available to the public including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request. Each agency shall make each such report available for public inspection in an electronic format. In addition, each agency shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be available –
(A) without charge, license, or registration requirement;
(B) in an aggregated, searchable format; and
(C) in a format that may be downloaded in bulk.
(4) The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Government Reform and Oversight Oversight and Government Reform of the House of Representatives and the Chairman and ranking minority member of the Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate, no later than April March 1 of the year in which each such report is issued, that such reports are available by electronic means.
(5) The Attorney General of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful.
(6) The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section. (A) The Attorney General of the United States shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President a report on or before March 1 of each calendar year, which shall include for the prior calendar year –
(i) a listing of the number of cases arising under this section;
(ii) a listing of –
(I) each subsection, and any exemption, if applicable, involved in each case arising under this section;
(II) the disposition of each case arising under this section; and
(III) the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and
(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.
(B) The Attorney General of the United States shall make –
(i) each report submitted under subparagraph (A) available for public inspection in an electronic format; and
(ii) the raw statistical data used in each report submitted under subparagraph (A) available for public inspection in an electronic format, which shall be made available –
(I) without charge, license, or registration requirement;
(II) in an aggregated, searchable format; and
(III) in a format that may be downloaded in bulk;
(f) For purposes of this section, the term—
(1) “agency” as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and
(2) ‘record’ and any other term used in this section in reference to information includes—
(A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and
(B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.
(g) The head of each agency shall prepare and make publicly available upon request available for public inspection in an electronic format, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including—
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintained by the agency; and
(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section.
(h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration. The head of the Office shall be the Director of the Office of Government Information Services.
(2) The Office of Government Information Services shall—
(A) review policies and procedures of administrative agencies under this section;
(B) review compliance with this section by administrative agencies; and
(C) recommend policy changes to Congress and the President to improve the administration of this section. identify procedures and methods for improving compliance under this section.
(3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute. The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to a dispute.
(4)(A) Not less frequently than annually, the Director of the Office of Government Information Services shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President –
(i) A report on the findings of the information reviewed and identified under paragraph (2);
(ii) A summary of the activities of the Office of Government Information Services under paragraph (3), including –
(I) any advisory opinions issued; and
(II) the number of times each agency engaged in dispute resolution with the assistance of the Office of Government Information Services or the FOIA Public Liaison; and
(iii) Legislative and regulatory recommendations, if any, to improve the administration of this section.
(B) The Director of the Office of Government Information Services shall make each report submitted under subparagraph (A) available for public inspection in an electronic format.
(C) The Director of the Office of Government Information Services shall not be required to obtain the prior approval, comment, or review of any officer or agency of the United States, including the Department of Justice, the Archivist of the United States, or the Office of Management and Budget before submitting to Congress, or any committee or subcommittee thereof, any reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed therein are those of the Director and do not necessarily represent the views of the President.
(5) The Director of the Office of Government Information Services may directly submit additional information to Congress and the President as the Director determines to be appropriate.
(6) Not less frequently than annually, the Office of Government Information Services shall conduct a meeting that is open to the public on the review and reports by the Office and shall allow interested persons to appear and present oral or written statements at the meeting.
(i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits.
(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).
(k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency—
(1) have agency-wide responsibility for efficient and appropriate compliance with this section; (2) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section; (3) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section; (4) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing this section; (5) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook issued under subsection (g), and the agency’s annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply; and (6) designate one or more FOIA Public Liaisons.
(j)(1) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).
(2) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency –
(A) have agency-wide responsibility for efficient and appropriate compliance with this section;
(B) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section;
(C) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section;
(D) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing this section;
(E) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook issued under subsection (g), and the agency’s annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply;
(F) offer training to agency staff regarding their responsibilities under this section;
(G) serve as the primary agency liaison with the Office of Government Information Services and the Office of Information Policy; and
(H) designate 1 or more FOIA Public Liaisons.
(3) The Chief FOIA Officer of each agency shall review, not less frequently than annually, all aspects of the administration of this section by the agency to ensure compliance with the requirements of this section, including –
(A) agency regulations;
(B) disclosure of records required under paragraphs (2) and (8) of subsection (a);
(C) assessment of fees and determination of eligibility for fee waivers;
(D) the timely processing of requests for information under this section;
(E) the use of exemptions under subsection (b); and
(F) dispute resolution services with the assistance of the Office of Government Information Services or the FOIA Public Liaison.
(k)(1) There is established in the executive branch the Chief FOIA Officers Council (referred to in this subsection as the ‘Council’).
(2) The Council shall be comprised of the following members:
(A) The Deputy Director for Management of the Office of Management and Budget.
(B) The Director of the Office of Information Policy at the Department of Justice.
(C) The Director of the Office of Government Information Services.
(D) The Chief FOIA Officer of each agency.
(E) Any other officer or employee of the United States as designated by the Co-Chairs.
(3) The Director of the Office of Information Policy at the Department of Justice and the Director of the Office of Government Information Services shall be the Co-Chairs of the Council.
(4) The Administrator of General Services shall provide administrative and other support for the Council.
(5)(A) The duties of the Council shall include the following:
(i) Develop recommendations for increasing compliance and efficiency under this section.
(ii) Disseminate information about agency experiences, ideas, best practices, and innovative approaches related to this section.
(iii) Identify, develop, and coordinate initiatives to increase transparency and compliance with this section.
(iv) Promote the development and use of common performance measures for agency compliance with this section.
(B) In performing the duties described in subparagraph (A), the Council shall consult on a regular basis with members of the public who make requests under this section.
(6)(A) The Council shall meet regularly and such meetings shall be open to the public unless the Council determines to close the meeting for reasons of national security or to discuss information exempt under subsection (b).
(B) Not less frequently than annually, the Council shall hold a meeting that shall be open to the public and permit interested persons to appear and present oral and written statements to the Council.
(C) Not later than 10 business days before a meeting of the Council, notice of such meeting shall be published in the Federal Register.
(D) Except as provided in subsection (b), the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by the Council shall be made publicly available.
(E) Detailed minutes of each meeting of the Council shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the Council. The minutes shall be redacted as necessary and made publicly available.
(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.
(m)(1) The Director of the Office of Management and Budget, in consultation with the Attorney General shall ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency from a single website. The portal may include any additional tools the Director of the Office of Management and Budget finds will improve the implementation of this section.
(2) This subsection shall not be construed to alter the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. The Director of the Office of Management and Budget shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section.
Updated January 21, 2022
FOIA Project Annotation:
Judge Rudolph Contreras has ruled that the U.S. Marshals Service has not yet shown that it conducted an adequate search for records concerning stingray cellphone tracking surveillance that may have been used in the investigation of Mario Dion Woodward, who was convicted of murdering a police officer in Montgomery, Alabama.
After the agency did not provide any records in response to Woodward’s FOIA request, and denied his administrative appeal, Woodward filed suit.
His suit prompted the agency to disclose 300 pages of responsive records with redactions under
Exemption 6 (invasion of privacy),
Exemption 7(C) (invasion of privacy concerning law enforcement record),
Exemption 7(E) (investigative methods or techniques),
Exemption 7(F) (harm to person).
Woodward argued that ACLU v. Dept of Justice, 655 F.3d 1 (D.C. Cir. 2011), in which the D.C. Circuit ruled that disclosure of records on the number of prosecutions based on warrantless surveillance was in the public interest, supported Woodward’s public interest argument here.
But Contreras pointed out that “here, the requested information would not shed ‘light on the scope and effectiveness of cell phone tracking as a law enforcement tool.’ Even derivative uses of the requested information “personally identifying information of individuals involved in Plaintiff’s case” would not plausibly speak to substantive law enforcement policy in general, as the request in ACLU did.
Instead, the requested information might uncover evidence that could be useful in the Plaintiff’s other litigation but that would not implicate a cognizable public interest in the Exemption 7(C) analysis.”
But Contreras agreed with Woodward that the D.C. Circuit’s ruling in Roth v. Dept of Justice, 642 F.3d 1161 (D.C. Cir. 2011), in which the D.C. Circuit recognized a heightened public interest in cases involving death row inmates, suggested further review.
He explained that “the court appreciates the gravity of plaintiff’s status as a death row inmate.
To confirm for itself that the withheld information does not implicate the public interest in knowing whether the federal government engaged in unconstitutional conduct in plaintiff’s case, the court will review in camera the withheld material.”
Contreras also found that while the agency had justified some of its 7(E) claims, it had failed to do so for others.
He observed that “although the court has concluded that some of USMS’s Exemption 7(E) justifications are appropriate, it cannot yet grant partial summary judgment in its favor given these circumstances.
The court will await further justification from USMS on its Exemption 7(E) claims before ruling on segregability.”
Issues: Litigation – Jurisdiction, Exemption 7(E) – Investigative methods or techniques