United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
1998, the Indianapolis Colts drafted Peyton Manning, Britney
Spears released her hit single “Baby One More Time,
” and Fielding McGehee submitted a Freedom of
Information (“FOIA”) request to the FBI. While
the heydays of Mr. Manning and Ms. Spears have come and gone,
Mr. McGehee's FOIA request lingers.
response to Mr. McGehee's requests, the FBI has produced
thousands of pages of responsive records, CDs, audio tapes,
video tapes, and photographs. After twenty years of
negotiation and litigation, the FBI insists that it has
satisfied its statutory obligations and that this litigation
should be retired. Mr. McGehee and his wife Rebecca Moore
(collectively the “Plaintiffs”) disagree. Both
sides have moved for summary judgment. For the reasons below,
the Plaintiffs' motion will be denied, and
Government's motion will be granted.
1998, the Plaintiffs submitted a FOIA request to FBI
Headquarters, beginning their twenty-year quest for
information about the victims and investigations of the
Jonestown Massacre in Jonestown, Guyana. See McGehee v.
U.S. Dep't of Justice, 800 F.Supp.2d 220, 226
(D.D.C. 2011). The Plaintiffs eventually filed a Complaint
against the FBI's parent agency, the Department of
Justice, alleging that the production that they received from
the FBI was inadequate. Id. After years of
negotiation, searches, and productions, the parties filed
cross-motions for summary judgment. Id. Judge
Kessler, who was then overseeing this case, granted in part
and denied in part both motions. Id. The court ruled
that the FBI's search was adequate. Id. at 230.
It also held that the Bureau's application of Exemptions
3, 7(C), 7(D), and 7(E) were proper. Id. at 230-37.
But it determined that FBI's Vaughn Index was
deficient, so the court could not decide whether the FBI had
disclosed all segregable information. Id. at 238.
The court did not rule on the FBI's withholdings based on
Exemptions 1 and 2 and a sealing order. Id. Instead,
the court ordered the Government to file an updated
Vaughn Index after it processed the material
previously withheld under Exemptions 1 and 2 and a sealing
order. Id. at 239.
this material, the FBI discovered and then released more
material to the Plaintiffs. Seventeenth Hardy Decl.
(“Hardy Decl.”) ¶ 15, ECF No. 256-3.
Eventually, in 2014, the court ordered the Plaintiffs to
“submit a final comprehensive list of document
requests” to the FBI. ECF No. 191. In response to the
Plaintiffs' list, the FBI conducted additional searches
and released more material including photographs, audio
tapes, and video tapes. Hardy Decl. ¶ 23.
parties have again moved for summary judgment. Pls.' Mot.
for Summ. Judgment (“Pls.' Mot.”), ECF No.
253; Def.'s Cross-Mot. for Summ. Judgment
(“Def.'s Mot.”), ECF No. 256.
“vast majority” of FOIA cases are resolved on
summary judgment motions. Brayton v. Office of the U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To
prevail on a motion for summary judgment, a movant must show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual
dispute is material if it could alter the outcome of the suit
under the substantive governing law. Anderson, 477
U.S. at 248. A dispute is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
FOIA context, an agency is entitled to summary judgment if it
establishes “beyond material doubt that it has
conducted a search reasonably calculated to uncover all
relevant documents, ” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (cleaned up), and that each
relevant record has been produced or is exempt from
disclosure. Students Against Genocide v. U.S. Dep't
of State, 257 F.3d 828, 833 (D.C. Cir. 2001). FOIA
permits agencies to withhold information that falls under
“one of nine specific exemptions, which are construed
narrowly in keeping with FOIA's presumption in favor of
disclosure.” Pub. Citizen, Inc. v. Office of Mgmt.
& Budget, 598 F.3d 865, 869 (D.C. Cir. 2010)
“bears the burden of establishing that a claimed
exemption applies.” Citizens for Resp. & Ethics
in Wash. v. U.S. Dep't of Justice, 746 F.3d 1082,
1088 (D.C. Cir. 2014). It can carry this burden “by
submitting sufficiently detailed affidavits or declarations,
a Vaughn index of the withheld documents, or both, to
demonstrate that [it] has analyzed carefully any material
withheld and provided sufficient information as to the
applicability of an exemption to enable the adversary system
to operate.” Brennan Ctr. for Justice v. U.S.
Dep't of State, 296 F.Supp.3d 73, 80 (D.D.C. 2017).
If this information “is not contradicted in the record,
and if there is no evidence in the record of agency bad
faith, then summary judgment is appropriate without in camera
review of the documents.” ACLU v. U.S. Dep't of
Defense, 628 F.3d 612, 626 (D.C. Cir. 2011). In other
words, “[u]ncontradicted, plausible affidavits showing
reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011).
2018, the Court set a briefing schedule which required the
Plaintiffs to file their Opposition to FBI's Motion for
Summary Judgment by December 15, 2018. Minute Order of July
26, 2018. The Court later granted the Plaintiffs' motion
for extension of time, allowing them to file on or before
January 4, 2019. Minute Order of Dec. 12, 2018. And again,
the Court moved the deadline, allowing the Plaintiffs to file
on or before January 31, 2019. Minute Order of Jan. 4, 2019.
The January 31 deadline passed with no filing from the
Plaintiffs. Minute Order of Feb. 5, 2019. So the Court issued
a show-cause order. Id. After the Plaintiffs asked
for more time to respond to the Court's show-cause order,
the Court set a revised briefing schedule, warning the
parties that further extensions would be disfavored.
See ECF No. 264.
Plaintiffs' Opposition was due February 28, 2019, but no
brief was ever filed. The Plaintiffs have not
received—or even asked for—an extension of time.
Instead, they have submitted a “Notice of Filing”
in which they merely notify the Court of computer trouble and
that they intend file their Opposition “within a
week” after ...