United States District Court, District of Columbia
RYAN NOAH SHAPIRO; JEFFREY STEIN; NATIONAL SECURITY COUNSELORS; TRUTHOUT, Plaintiffs,
U.S. DEPARTMENT OF JUSTICE, Defendant
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
This FOIA action is before the Court on the parties’ joint status report, Dkt. 51, regarding the appropriate course of action following the Court’s January 22, 2016 Memorandum Opinion, Dkt. 48. In their joint report, the parties dispute the following issues: (a) whether the FBI should be required to produce all search slips and processing notes subject to the Court’s opinion or may advance a new policy that would protect some of those records; (b) whether the FBI may assert new exemptions to withhold portions of those records that it will produce; (c) whether additional briefing is required with respect to the plaintiffs’ request for declaratory and injunctive relief on the now-abandoned policy; (d) whether the Court should enter final judgment with respect to one of the plaintiffs, Ryan Noah Shapiro; and (e) the timing of any additional briefs and evidentiary submissions that may be required. This Opinion and Order resolves these outstanding issues.
A. New Policy
The FBI states in the status report that it has “discontinued the practice of categorically denying FOIA requests for all administrative processing records less than 25 years old.” Dkt. 51 at 2. It explains that in May 2015, without informing the Court or the plaintiffs in this case, it “modified its then-existing categorical denial policy” and adopted “a more balanced, narrowly-tailored approach.” Dkt. 51-1 at 2-3 (Fourth Hardy Decl. ¶ 5). Under the new policy, the FBI proposes to deny requests for search slips and processing notes “only . . . where the FBI issued a ‘No Records’ or a Glomar response to the underlying FOIPA request.” Id. at 3 (Fourth Hardy Decl. ¶ 6). It states that it intends to produce all records to the plaintiffs that do not fall within the scope of the new policy, “subject to other FOIA Exemptions, ” Dkt. 51 at 2, but it “requests that the Court permit it to submit further briefing . . . on this modified policy” and whether it comports with FOIA, id. at 3. The plaintiffs oppose the FBI’s request. Id. at 5-7.
The FBI’s request turns on the scope of the rule set out by the D.C. Circuit in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000). In Maydak, a defendant in a federal criminal prosecution submitted a FOIA request for records concerning his case. Id. at 761-62. The government “denied Maydak’s request in full, relying solely on Exemption 7(A).” Id. at 762. After lengthy motions practice, the district court accepted the government’s assertion of Exemption 7(A), id. at 763, but on appeal the government abandoned the exemption and filed a motion to remand the case “based on changed circumstances” and “requesting the opportunity . . . to reprocess Maydak’s FOIA request and determine whether other FOIA exemptions might apply, ” id. at 764.
The D.C. Circuit rejected the government’s request. It explained that it had “plainly and repeatedly told the government that, as a general rule, it must assert all exemptions at the same time, in the original district court proceedings.” Id. It further stated that “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.’” Id. (quoting Senate of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 580 (D.C. Cir. 1987)). And it specifically rejected the government’s argument that it should be permitted to assert categorical exemptions (such as the Exemption 7(A) assertion) at a preliminary stage of the proceedings, then “start back at the beginning” in assessing whether an additional, more targeted, exemption would apply. Id. at 766. Accordingly, the D.C. Circuit rejected the government’s request for a remand. Id. at 769.
The Maydak rule, however, is not an absolute one. As the Court of Appeals stated in that case, the D.C. Circuit has consistently recognized “two exceptions for unusual situations”:
 where, from pure human error, the government failed to invoke the correct exemption and will have to release information compromising national security or sensitive, personal, private information unless the court allows it to make an untimely exemption claim; and  where a substantial change in the factual context of the case or an interim development in the applicable law forces the government to invoke an exemption after the original district court proceedings have concluded.
Id. at 767. This understanding of the Maydak rule was confirmed in August v. FBI, 328 F.3d 697 (D.C. Cir. 2003). In August, the government again categorically asserted Exemption 7(A) before the district court and again sought a remand on appeal to assert additional exemptions. See Id. at 698-99. But because the government argued that its “failure to invoke all applicable exemptions . . . was the result of a reasonable mistake, rather than an attempt to gain a tactical advantage over the FOIA requester, ” and because the government provided “clear evidence that wholesale disclosure would jeopardize the safety and privacy of third parties, ” the D.C. Circuit concluded that the case fell within the first exception to the Maydak rule, and granted a remand. Id. at 698.
The FBI’s present request clearly does not fall into the second exception to the Maydak rule. The FBI does not contend that some change in law or fact has required it to reevaluate its policy with respect to requests for search slips or processing records. Indeed, it represents that it changed its policy in May 2015, eight months before the Court issued its opinion in this matter, “after extensive analysis and experience in responding to this new genre of FOIA requests.” Dkt. 51-1 at 2 (Fourth Hardy Decl. ¶ 5). The FBI does not point to any “interim development, ” at least not to one outside its control; it only represents that has developed a new policy that it would like to apply to the plaintiffs’ requests.
Instead, the FBI’s request must proceed, if at all, under the second of the two exceptions outlined in Maydak. Under that exception, an agency can assert a new rationale for withholding records if (1) it “failed to invoke the correct exemption” as a result of “pure human error” and (2) it “will have to release information compromising national security or sensitive, personal, private information unless the court allows it to make an untimely exemption claim.” Maydak, 218 F.3d at 767. The Court concludes that the FBI cannot satisfy this standard. First, its request to apply its new policy to the plaintiffs’ long-pending FOIA requests bears more resemblance to “an attempt to gain a tactical advantage over the FOIA requester” than it does to a simple mistake. August, 328 F.3d at 698. The FBI represents that it adopted its new policy in May 2015, after briefing in this case was complete but well before the Court heard oral argument and issued its decision. Dkt. 51-1 at 2 (Hardy Decl. ¶ 5). But the FBI did not inform the Court about the existence of its new policy at any point between May 2015, when the new policy was adopted, and February 26, 2016, when the Court held a status conference to discuss the implementation of its December 2015 opinion. The FBI has not lacked for opportunities to inform the Court or the plaintiffs that it had adopted a new policy regarding search slips. The Court provided the parties with the chance to submit supplemental briefing in this case, which the FBI did on December 4, 2015. See Dkt. 43. And at oral argument, the Court explicitly asked the FBI’s counsel whether the FBI had considered (or could consider) adopting a narrower policy regarding search slips and processing notes. See Dkt. 52 at 30-31 (Hr’g Tr. 30:24-31:22) (“[THE COURT: H]as the FBI given thought to whether there are narrower ways to address this? . . . [COUNSEL FOR THE FBI:] The answer is I don’t know whether something else has been contemplated.”). It would be difficult-perhaps impossible-for the FBI to represent that its failure to advance its new policy sooner was the result of “pure human error.” Maydak, 218 F.3d at 767.
In light of the FBI’s inability to establish that its failure to invoke the new policy in a timely manner was the result of a simple mistake, the Court will decline to permit it to rely on that policy at this stage in the proceeding. See August, 328 F.3d at 699 (noting that courts have been “wary of agency attempts to play cat and mouse by withholding its most powerful cannon until after the District Court has decided the case” (internal quotation marks omitted)). Still, in light of the security and privacy interests implicated by this case, the Court will permit the FBI to submit briefing on whether specific records sought by the plaintiffs should be withheld under a FOIA exemption or exclusion because their disclosure would “compromis[e] national security or sensitive, personal, private information.” Maydak, 218 F.3d at 767. In doing so, the FBI should explain why the disclosure of specific records (or specific portions of records) would cause harm cognizable under a FOIA exemption or exclusion-and under Maydak-and shall propose a solution that is tailored to the specific harm identified. This is not an opportunity for the FBI to advance its new policy regarding search slips. The FBI is free to apply that policy to future FOIA requests (and future FOIA requesters are, in turn, free to challenge it). But this is not the forum for such a proceeding.
Accordingly, the FBI may file a renewed motion for summary judgment, addressing the records that it believes should be withheld consistent with this Order, according to the schedule set out below. If the FBI wishes to proceed by filing an in camera brief and/or evidentiary submissions, it may do so. In all other aspects, the FBI’s request to submit further ...