United States District Court, District of Columbia
Kesser United States District Judge.
December 15, 2013, the Parties completed briefing
cross-motions for summary judgment on Plaintiff's Freedom
of Information Act ("FOIA") claims, 5 U.S.C. §
522 et seq. On January 2, 2014, Plaintiff filed a
series of motions: (1) a Third Motion for Discovery and for a
Stay of the Case While Discovery Is Conducted ("Mot.
Disc") [Dkt. No. 66], (2) a Motion to Submit a
Supplement to His Reply in Support of Partial Summary
Judgment ("Mot. Supp.") [Dkt. No. 67], and (3) a
Motion for Limited In Camera Review ("Mot. In Camera
Review") [Dkt. No. 68] . Defendant filed an omnibus
Opposition on January 15, 2014 ("Opp'n") [Dkt.
No. 69] and Plaintiff declined to file a Reply. For the
reasons provided below, the Court shall deny
each of Plaintiff's motions.
Plaintiff's Third Motion for Discovery
Third Motion for Discovery, Plaintiff contends that limited
discovery is necessary to complete his opposition to
Defendant's Motion for Summary Judgment. Mot. Disc, at 1.
The discovery Plaintiff seeks concerns: (1) the presence of
Lyndon LaRouche's name on files provided to Plaintiff in
response to his September 2007 FOIA request; and (2)
Defendant's alleged non-receipt of FOIA requests made to
the FBI's headquarters. See generally id.
Court explained when it denied Plaintiff's Second Motion
for Discovery, discovery is rarely allowed in FOIA actions.
Wheeler v. C.I.A., 271 F.Supp.2d 132, 129 (D.D.C.
2003). If the Court deems the declarations of an agency
deficient, then it may request that the agency supplement
those disclosures rather than order discovery. Hall v.
C.I.A., 881 F.Supp.2d 38, 73 (D.D.C. 2012).
Court has already concluded that additional discovery would
not be appropriate in this case in view of the pending
cross-motions for summary judgment. See Op. at 2
[Dkt. No. 44]. Because the subjects of Plaintiff's most
recent discovery motion have been extensively briefed by the
Parties, much of the discovery sought may well be rendered
moot after the Court resolves the pending Motions for Summary
Judgment. Moreover, Plaintiff admits that the discovery he
seeks "is derived from the previously-submitted
interrogatories and document requests" - discovery
requests this Court has twice denied. Not only is it clear
that at least some of the information that Plaintiff seeks is
irrelevant or protected by various FOIA exemptions, but
Plaintiff has not offered an explanation as to why
circumstances have changed since the Court's previous
denials so that discovery at this late stage in the case is
now warranted. Accordingly, Plaintiff's Third Motion for
Additional Discovery shall be denied.
Plaintiff's Motion to Submit a Supplement to His
also requests that the Court permit him to file a Supplement
to his Reply in Support of his Cross-Motion for Partial
Summary Judgment. Plaintiff explains that "he discovered
on a rereading of Mr. Hardy's Fourth Declaration ... that
defendant has made a substantial change in its factual
account regarding the 2007 FOIA request to FBI
Headquarters." Mot. Supp. at 1. Plaintiff "would
like to bring this to the Court's attention, in the event
it also missed that change on its first reading of the Fourth
Hardy Declaration." Id.
in short, seeks to file a surreply. A district court
"may grant leave to file a surreply at its
discretion." Am. Forest & Paper Ass'n, Inc.
v. E.P.A., 1996 WL 509601, at *3 (D.D.C. 1996) .
"The standard for granting leave to file a surreply is
whether the party making the motion would be unable to
contest matters presented to the court for the first time in
the opposing party's reply." Lewis v.
Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 001); see
also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.
Cir. 2003) (quoting Lewis, 154 F.Supp.2d at 61).
has not alleged that Defendant raised new arguments or issues
for the first time in his Reply in Support of its Motion for
Summary Judgment and Opposition to Plaintiff's
Cross-Motion for Partial Summary Judgment. On the contrary,
Plaintiff explains that he merely encountered information
"on a re-reading of Mr. Hardy's Fourth
Declaration" that he wished "to bring...to the
Court's attention[.]" Mot. Supp. at 1. Even if
Defendant had raised new arguments in its motion, Plaintiff,
as the last party to respond pursuant to the summary judgment
briefing schedule, had ample opportunity to address those
arguments in his Reply Motion. For this reason, and in light
of the fact that the Court already afforded Plaintiff an
opportunity to supplement his Opposition Motion, see
Minute Entry of Sept. 10, 2013, the Court shall deny
Plaintiff's Motion to Submit a Supplement to His Reply in
Support of Partial Summary Judgment.
Plaintiff's Motion for Limited In Camera Review
moves the Court to conduct an in camera review of
the FBI's withholdings under FOIA Exemption 7(E) because
he suspects that the FBI has improperly withheld material
that demonstrates well-known or illegal investigative
techniques. See Mot. In Camera Review at 1.
in camera inspection of contested FOIA material is
appropriate is a question that lies within the district
court's discretion. See Ctr. for Auto Safety v.
E.P.A., 731 F.2d 16, 22 (D.C. Cir. 1984). "[W]hen
the agency meets its burden [under FOIA] by means of
affidavits, in camera review is neither necessary nor
appropriate." Id. at 23. A court may find
affidavits to be sufficient if they "show, with
reasonable specificity, why the documents fall within the
exemption, " are not "conclusory...too vague or
sweeping, " and "there is no evidence in the record
of agency bad faith." Id. (citing Hayden v.
N. S. A., 608 F.2d 1381, 1387 (D.C. Cir. 1979)) .
case, Defendant has filed numerous affidavits in support of
its Motion for Summary Judgment that justify, in extensive
detail, the applicability of the asserted FOIA exemptions. In
reviewing the pleadings and accompanying affidavits, the
Court has found no evidence or allegations of agency bad
faith. Furthermore, the appropriateness of the FBI's
withholding of material documenting certain investigative
techniques is an issue that has been well-briefed by the
Parties in their cross-motions for summary judgment. In his
Motion for Limited In Camera Review, Plaintiff does not ...