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Seavey v. Department of Justice

United States District Court, District of Columbia

July 20, 2017

NINA GILDEN SEAVEY, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          Gladys Kessler United States District Judge

         I. BACKGROUND

         A. Factual Background

         Plaintiff, Professor Nina Gilden Seavey, is a documentary film maker and academic. She holds the rank of full research professor in the Department of History and the School of Media and Public Affairs at George Washington University, here in the District of Columbia. Professor Seavey has, for an extended period of time, been working on a project designed to explain the role played by the United States Government's intelligence and law enforcement agencies in the movement against our participation in the Vietnam War, focusing on the St. Louis, Missouri, area. She has worked on her project-a feature length documentary titled My Fugitive-for decades, and is giving particular emphasis to the role played by the FBI.

         In conducting research for her film, Professor Seavey submitted numerous Freedom of Information Act ("FOIA") requests to the FBI beginning in 2013.[1]Her requests sought records about individuals, organizations, events, publications, and file numbers relating to the FBI's role in the anti-war movement in St. Louis in the 1960s and 1970s. Most relevant here, on March 3, 2015, Professor Seavey submitted a particularly large FOIA request for records to pertaining to hundreds of such individuals, organizations, etc. Amended Complaint, Ex. G [Dkt. No. 7-1] ("March 3 FOIA Request").

         On March 23, 2015, the FBI sent a letter to Professor Seavey acknowledging receipt of the March 3 FOIA Request. Def.'s Motion for Summary Judgment in Part, Hardy Decl. Exhibits, Ex. H ("March 23 Letter") [Dkt. No. 17-2]. The letter informed Professor Seavey that she had been granted news media status and denied her request for a fee waiver. Id. It also determined that "unusual circumstances" applied to the processing of the March 3 FOIA Request, which therefore would delay the FBI from making a "determination" on her request. Id. On April 21, 2015, Professor Seavey sent a letter amending and updating her March 3 FOIA Request. It appears that the FBI did little further to respond to the March 3 FOIA Request, other than to assign tracking numbers to the various subjects of the Request. See Amended Complaint ¶¶ 34-37.

         B. Procedural Background

         Given this lack of action by the FBI, Professor Seavey filed suit on August 12, 2015. See Complaint [Dkt. No. 1]. The case was stayed from November 19, 2015, until July 21, 2016, pursuant to a joint motion by the parties. See Order Granting the Joint Motion to Stay [Dkt. No. 10] and Order [Dkt. No. 20]. While the case was stayed, the FBI produced documents responsive to a small number of subjects contained in the March 3 FOIA Request.

         After the stay was lifted, Professor Seavey filed her Motion for Partial Summary Judgment, arguing that the FBI had violated FOIA-by failing to make a determination on her March 3 FOIA Request within the required statutory timeframe-and that the FBI should be ordered to process 5, 000 pages per month until her Request was complete. The FBI filed an Opposition, arguing that it should only be required to process 500 pages per month, consistent with its internal policies for processing FOIA requests. [Dkt. No. 45]. Professor Seavey has filed a Reply, and the Motion is ripe. [Dkt. No. 49].

         Subsequently, the FBI filed a Status Report updating the Court on its progress in responding to Professor Seavey's March 3 FOIA Request. [Dkt. No. 61]. The Status Report indicated that the FBI had processed 7, 574 pages of responsive records as of May 31, 2017. Id. Additionally, the FBI had identified approximately 151, 500 pages of potentially responsive records which it has yet to process. Id. On June 8, 2017, the parties filed a motion asking that the case be held in abeyance to allow the parties to discuss settlement of the Motion for Partial Summary Judgment, [Dkt. No. 62], which the Court granted, Order [Dkt. No. 63]. Then, on July 14, 2017, the parties filed a Joint Status Report, indicating that the parties had made significant progress in reducing the number of pages of potentially responsive documents the FBI would need to process. Supplemental Joint Status Report [Dkt. No. 65]. Rather than 151, 500 potentially responsive pages, there are now only 102, 385 pages that need to be processed. Id.

         Unfortunately, the parties have not been able to reach any sort of understanding as to the rate at which the FBI is to process these pages. The FBI continues to propose that processing occur at a rate of 500 pages per month, while Professor Seavey continues to propose that processing occur at a rate of 5, 000 pages per month. Based on the current estimate of 102, 385 pages, the FBI's proposal would result in the completion of processing in approximately 201 months, while Professor Seavey's proposal would result in the completion of processing in approximately 21 months.

         II. ANALYSIS

         A. FOIA Framework

         Once an individual makes a FOIA request, "an agency usually has 20 working days to make a 'determination'" as to the request. Citizens for Resp. and Ethics in Washington v. Fed-Election Commn.,711 F.3d 180, 189 (D.C. Cir. 2013) ("CREW") (citing 5 U.S.C. § 552(a)(6)(A)(i)). "[I]n order to make [this] 'determination'... the agency must at least: (i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the 'determination' is adverse." CREW, 711 F.3d at 188. "An agency can extend that 20-working-day timeline to 30 working days if unusual circumstances ...


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