The opinion of the court was delivered by: Robertson, District Judge.
Defendants move for summary judgment in this Freedom of
Information Act action, arguing that plaintiff has abandoned its
requests. The motion will be granted.
Judicial Watch of Florida made FOIA requests to the
Immigration and Naturalization Service and to the Office of
Information Privacy (OIP) in the Attorney General's Office in
April 2000, seeking information related to the rescue of Elian
Gonzalez. INS promptly responded, telling Judicial Watch in May
2001 (twice) that narrowing its requests would help speed up the
search and production process. Judicial Watch did not narrow its
requests. Instead, on June 14, 2000, it filed this FOIA action,
in the Southern District of Florida.*fn1
On July 21, 2000, INS notified Judicial Watch that it had
located 42,000 pages of responsive material; that an estimated
11,000 pages likely qualified for a fee waiver but 31,000 pages
did not qualify; that Judicial Watch's request for a blanket fee
waiver was denied; and that INS estimated that total copying
costs would be $3090. INS also informed Judicial Watch that the
requests would not be processed until the $3090 was paid; that
Judicial Watch might contact INS to find ways of reformulating
the search at lower costs; and that Judicial Watch still owed
INS $231.70 from its last FOIA request and that failure to pay
this balance in a timely manner would affect the processing of
its request. Judicial Watch did not respond to this notice.
After nearly ten months had elapsed, INS wrote to Judicial Watch
again, informing it that the processing of the Gonzalez request
was suspended pending Judicial Watch's payment of its $231.70
balance and payment in advance or agreement to pay the $3090
estimated duplication costs of its current request.
On May 16, 2001, I held a status conference. At that time I
noted that, except for a notice of appearance filed in February
2001, plaintiffs had taken no action in the case. I asked
plaintiffs counsel if the case was still alive. Yes, was the
answer, and we wish to pursue it. At that point, government
counsel mentioned the impasse over copying fees and asked that
the government not be put to the expense and burden of filing a
motion for summary judgment if Judicial Watch was simply going
to respond by paying the fees. I ordered Judicial Watch to
notify the government within ten days whether it intended to pay
the fees or whether the government should file its motion. On
May 29, 2001, Judicial Watch effectively invited the government
to file its summary judgment motion, stating that it would pay
duplication fees "if the Court does not grant Plaintiff a fee
waiver." The government then filed its motion (sixteen pages of
undisputed facts, twenty-two pages of argument, twenty-four
attachments) on June 19, 2001.
Judicial Watch's "simple" opposition to that motion was to
withdraw its request for the 31,000 documents that were the only
reason the motion had to be filed. This maneuver appears to the
Court to have been done quite deliberately, and probably with
some malicious glee, in the manner of the Road Runner besting
Wylie Coyote once again. In the context of plaintiffs handling
of this whole matter, however — from its failure to respond to
the INS invitation to narrow its request, to its failure to
prosecute the case at all until prodded by the Court, to its
forked-tongue response to the Court's order that it notify the
government whether or not it would pay the duplication fees —
the maneuver is not funny, and is indeed sanctionable.
I find that Judicial Watch has abandoned its FOIA request.
Defendants' motions for summary judgment will be granted. An
appropriate order accompanies this memorandum.
For the reasons stated in the accompanying memorandum, it is
this-day of August, 2001,
ORDERED that defendants' motions for summary judgment [## ...