United States District Court, District of Columbia
Kessler United States District Judge
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
conducting research for her film, Professor Seavey submitted
numerous Freedom of Information Act ("FOIA")
requests to the FBI beginning in 2013.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
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.
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.
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].
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.
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.
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 ...