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Poitras v. Department of Homeland Security

United States District Court, District of Columbia

April 11, 2019

LAURA POITRAS, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         Pending before the Court is the plaintiff Laura Poitras's motion for attorneys' fees and costs, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), against the defendants Department of Homeland Security (“DHS”), the Department of Justice, and the Office of the Director of National Intelligence (“ODNI”). See Pl.'s Mot. Att'ys Fees (“Pl.'s Mot.”), ECF No. 45. The underlying FOIA requests sought records related to the “plaintiff and her repeated border stops and detentions at airports while traveling in pursuit of her journalistic endeavors.” Id. at 1. Shortly after the plaintiff initiated this lawsuit, several of the defendants' components released previously withheld records responsive to the plaintiff's FOIA requests, prompting the plaintiff to contend that she is both eligible for, and entitled to, attorneys' fees. See generally Id. The defendants concede the plaintiff's eligibility but contest her entitlement to attorneys' fees. See generally Defs.' Opp'n to Pl.'s Mot. (“Defs.' Opp'n”), ECF No. 48. For the following reasons, the plaintiff's motion is denied.

         I. BACKGROUND

         Set out below is the procedural and factual background relevant to the plaintiff's pending motion, with a fuller account provided in the Court's previous opinions resolving the parties' cross-motions for summary judgment. See Poitras v. U.S. Dep't of Homeland Sec. (“Poitras II”), 303 F.Supp.3d 136, 143-49 (D.D.C. 2018); Poitras v. U.S. Dep't of Homeland Sec. (“Poitras I”), No. 15-CV-1091 (KBJ), 2017 WL 7053929 (D.D.C. Mar. 31, 2017).

         A. The Plaintiff's FOIA requests

         The plaintiff is a U.S. citizen, a journalist, and an Oscar-winning filmmaker who, between July 2006 and April 2012, was subjected to “Secondary Security Screening Selection” at the United States border for every international flight she took into the country. Compl. ¶¶ 2- 3. The plaintiff was subjected to the same screening prior to several international flights out of the United States and some domestic flights. Id. ¶ 3. In total, the plaintiff was detained for secondary screening more than 50 times over the six-year period. Id. ¶ 3.

         “[O]ut of [her] desire to understand why she was stopped, detained, and questioned at the U.S. border by her own government for every international flight she took entering her own country for six years, ” see Pl.'s Mem. Opp'n to Defs.' Second Mot. Summ. J. & Mem. Supp. Pl.'s Second Cross-Mot. Summ. J. (“Pl.'s Second Mem.”) at 1, ECF No. 26 (emphasis in original), the plaintiff, on January 24, 2014, sent FOIA requests to the Federal Bureau of Investigation (“FBI”), to ODNI, to DHS, and to several DHS components, including U.S. Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), the Transportation Security Administration (“TSA”), for “all agency records concerning, naming, or relating to Ms. Poitras.” Compl. ¶¶ 27-29.

         B. The Defendants' Responses to the Plaintiff's FOIA Requests

         Initial responses to the plaintiff's FOIA requests varied. DHS sent the plaintiff a letter on February 3, 2014 confirming receipt of her request and asking for additional search parameters. Defs.' First. Mot. Summ. J. (“Defs.' First Mot.”), Decl. of Kevin L. Tyrell (“DHS Decl.”) ¶ 8, ECF No. 14-8. After the plaintiff provided clarification, DHS responded, on March 26, 2014, informing the plaintiff that her request had been referred to CBP and TSA. Id. ¶¶ 10-11.

         TSA, for its part, on February 6, 2014, and again on March 26, 2014, acknowledged receipt of the plaintiff's FOIA request but asked for additional information to help identify the requested records. Defs.' First Mot., Decl. of Regina Ann McCoy (“TSA Decl.”) ¶¶ 7, 10, ECF No. 14-4. The plaintiff never provided the information TSA solicited. Id. ¶¶ 9, 11.

         Although CBP did not acknowledge to the plaintiff receipt of her FOIA request, Compl. ¶ 37, upon such receipt, CBP began searching databases thought most likely to have responsive records, Defs.' First Mot., Decl. of Sabrina Burroughs (“CBP Decl.”) ¶ 5, ECF No. 14-3.

         The FOIA request sent to ICE was delivered to the wrong address, and so, unremarkably, ICE was unaware of the plaintiff's request until the civil complaint was filed. Defs.' First Mot., Decl. of Fernando Pineiro (“ICE Decl.”) ¶¶ 5-11, ECF No. 14-7. In any event, ICE did not have responsive records. Id. ¶ 37.

         USCIS, upon receipt of the plaintiff's request, sent two letters-one on January 30, 2014 and the other on April 2, 2014-informing the plaintiff that USCIS had no responsive records. Defs.' First Mot., Decl. of Jill A. Eggleston (“USCIS Decl.”) ¶¶ 7-8, ECF No. 14-6. The plaintiff administratively appealed USCIS's determination that it had no responsive records, but that appeal was denied. Id. ¶ 9.

         ODNI, on January 31, 2014, confirmed receipt of the plaintiff's FOIA request, Compl. ¶ 67, but informed her, on February 25, 2014, that the agency could neither confirm nor deny the existence of responsive information that may have been classified, Defs.' First Mot., Decl. of Jennifer L. Hudson (“ODNI Decl.”) ¶ 21, ECF No. 14-2. The plaintiff administratively appealed the denial the request sent to ODNI, id. ¶ 22, which appeal was pending at the time the plaintiff filed her complaint, Compl. ¶¶ 69, 71.

         Finally, the FBI sent the plaintiff a letter on February 19, 2014 acknowledging receipt of the FOIA request, see Defs.' First Mot., First Decl. of David M. Hardy (“First FBI Decl.”) ¶ 7, ECF No. 14-1, and then, on February 2, 2015, referred “sets of pages to other agencies, including [U.S. Army Criminal Investigation Command], the U.S. Army, the Executive Office for United States Attorneys (“EOUSA”), the Department of the Air Force, the U.S. Army Intelligence and Security Command (“USAISC”), the Central Intelligence Agency (“CIA”), CBP, the Department of State, the Department of Transportation, and the National Guard Bureau for direct response to the plaintiff or for coordination with the FBI, ” Poitras II, 303 F.Supp.3d at 146 (citing First FBI Decl. ¶¶ 96-109). Despite the lack of any adverse determination on the plaintiff's FOIA request, the plaintiff, on May 29, 2015, filed an administrative appeal with the FBI's Office of Information Policy. First FBI Decl. ¶ 8. On July 13, 2015, the same day that the plaintiff initiated this lawsuit, the Office of Information Policy informed the plaintiff that the FBI had not made any decisions about the plaintiff's FOIA request and, consequently, no decision was subject to administrative review. Id. ¶ 9.

         At bottom, although several of the agencies had responded to the plaintiff's FOIA request, or were in the process of doing so, as of July 2015, none of the entities to which the plaintiff had submitted a FOIA request had produced responsive records. See Poitras I, 2017 WL 7053929, at *1. Accordingly, the plaintiff filed her complaint, on July 13, 2015, alleging that each agency to which she submitted a FOIA request had “wrongfully withheld agency records requested by Plaintiff by failing to comply with the statutory time limit for the processing of her FOIA requests, and/or by rendering final decisions to withhold the records Plaintiff requested.” Compl. ¶ 76.

         After the plaintiff filed her complaint, the Court ordered the parties to confer about a proposed schedule either for briefing or for the disclosure of records responsive to the FOIA requests. Min. Order (Sept. 18, 2015). The result was an agreement “that FBI, CBP, and TSA [would] begin producing non-exempt responsive records no later than November 13, 2015.” Joint Status Report (Oct. 1, 2015) at 2, ECF No. 8. Additionally, by the same date, ODNI agreed to “provide Plaintiff with an interim or final response to her administrative appeal.” Id.

         To identify responsive records, the FBI used the search terms “‘Laura Poitras,' ‘Laura Susan Poitras,' ‘Lara Susan Poitras,' a three-way phonetic breakdown of ‘Laura Poitras,' and an on-the-nose search for ‘Laura Susan Poitras' and ‘Lara Susan Poitras.'” Poitras II, 303 F.Supp.3d at 147. From those searches, the FBI made five releases of information between October 14, 2015 and March 4, 2016. First FBI Decl. ¶¶ 12-16.[1] “In total, the FBI identified 350 responsive pages, released in full 1 page, released in part 262 pages, and withheld in full 87 pages.” Poitras II, 303 F.Supp.3d at 146-47. The redactions were applied pursuant to FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E). Id. at 147. Later, between the two rounds of summary judgment briefing that eventually ensued, “the FBI discovered that three records relating to the closure of the investigation into Plaintiff's activities in Iraq had been inadvertently missed and not previously produced to Plaintiff.” Joint Mot. to Temporarily Suspend Briefing at 1, ECF No. 27; see also Defs.' Reply Supp. Second Mot. Summ. J & Opp'n Pl.'s Second Cross-Mot. Summ. J., Fourth Decl. of David M. Hardy (“Fourth FBI Decl.”) ¶ 4, ECF No. 29-1 (“Upon review of the final production of this [FOIA/Privacy Act] request, it was determined that three (3) serials, consisting of six (6) pages related to the closure of the FBI's investigation into Plaintiff's activities in Iraq, had been inadvertently overlooked during the processing phase and were not processed and provided to Plaintiff.”). The plaintiff received those six pages on September 25, 2017, revealing that the FBI had investigated the plaintiff's involvement in a November 2004 ambush of U.S. Soldiers in Iraq, which resulted in the death of one soldier, but, as of August 30, 2012, the FBI had concluded that “[b]ased on the investigation to date, it is not believed that POITRAS is involved in terrorist activities and investigative methods have not revealed threats to national security warranting further action.” Pl.'s Mot., Ex. A, FBI Electronic Communication (Aug. 30, 2012), ECF No. 45-1.

         As for CBP, that agency, upon receipt of the plaintiff's FOIA request, searched two internal systems-TECS and the Automated Targeting System-“using Plaintiff's name and date of birth.” Poitras II, 303 F.Supp.3d at 147. On November 12, 2015, after the plaintiff initiated this lawsuit, CBP released 492 pages of records from TECS and 220 pages of partially redacted records found in the Automated Targeting System. Id. Later, CBP became aware of records likely to be found in a New York office related to an August 1, 2010 incident at JFK International Airport, and, on February 27, 2016, after conducting a supplemental search utilizing search terms including “Poitras, ” “Laura Poitras, ” and the name and email address ...


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