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Light v. Department of Justice

United States District Court, District of Columbia

July 17, 2013

TRUTHOUT and JEFFREY LIGHT, Plaintiffs,
v.
DEPARTMENT OF JUSTICE, Defendant

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For TRUTHOUT, JEFFREY LIGHT, Plaintiffs: Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Arlington, VA.

For DEPARTMENT OF JUSTICE, Defendant: William Mark Nebeker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

OPINION

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ROSEMARY M. COLLYER, United States District Judge.

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

I. FACTS

Plaintiffs sent to the FBI six FOIA requests for records on the Occupy Wall Street and other Occupy encampments across the country. They challenge the Government's response to five: Request Nos. 1176349-000, 1176937-000 (reopened as 1176937-001), 1177831-000, 1178216-000, and 1191931-000. [2]

1. Request No. 1176349-000

On October 31, 2011, Plaintiffs sent an email to FBI Headquarters (FBIHQ) seeking the following materials related to the protest movement known as 'Occupy Wall Street'" from August 1, 2011 to October 31, 2011: " all emails, memos, letter[s], audio/video, transcript[s], reports, Threat Assessments, between FBI personnel, including field agents and officers, and law enforcement agencies, including but not limited to, local police personnel, CIA and Department of Homeland." See Mot. to Dismiss or for Sum. J. (MSJ) [Dkt. 9], Ex. A (Hardy Decl.) [Dkt. 9-1] ¶ 7; Notice of Exs. to Hardy Decl. [Dkt. 10], Ex. A [Dkt. 10-1] (Oct. 31, 2011 Request). The FBI designated this Request No. 1176349-000 and responded on November 15, 2011, indicating that it had searched its Central Records System (CRS, described below in

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Part III. B.) and found no responsive records. Plaintiffs appealed to DOJ's Office of Information and Privacy (OIP), and OIP affirmed. See Hardy Decl. ¶ ¶ 7-11. Despite its initial response, on January 10, 2013, the FBI released 37 pages in response to Request No. 1176349-000. [3] The FBI stated that it had located and reviewed 162 pages of records and had withheld certain records under FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). [4] Hardy Decl. ¶ 12.

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

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

3. Request No. 1177831-000

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

4. Request No. 1178216-000

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

5. Request No. 1191931-000

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

II. LEGAL STANDARD

A. Motion to Dismiss

The FBI asserts two bases for dismissing this suit. First, the FBI contends that because it conducted an adequate search and released all non-exempt records, this case is moot. Second, the FBI claims ...


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