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Judicial Watch, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

September 19, 2019

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge.

         Plaintiff Judicial Watch Inc. has sued Defendant U.S. Department of Justice (“DOJ”) to compel compliance with a Freedom of Information Act (“FOIA”) request under 5 U.S.C. § 552. (ECF No. 1 (“Compl.”)) The DOJ moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff’s complaint for failure to exhaust administrative remedies. (ECF No. 8-1 (“Def.’s Mot. to Dismiss.”)) For the reasons set forth below, the DOJ’s motion will be GRANTED.

         I. BACKGROUND

         Judicial Watch is a not-for-profit, educational organization that “seeks to promote transparency, accountability, and integrity in the government and fidelity to the rule of law.” (Compl. at ¶ 3.)

         Over the past few years, Plaintiff, along with several other organizations and individuals, have sought documents relating to the investigation surrounding former Secretary of State Hillary Clinton’s use of a personal e-mail account. Plaintiff has filed at least three FOIA requests related to the investigation, one of which is the subject of this case. In each of the three cases, Plaintiff is represented by Michael Bekesha and the DOJ is represented by Cesar Lopez-Morales.

         A. Plaintiff’s July 7, 2016 FOIA Request

         On October 13, 2016, Plaintiff sued the DOJ regarding a FOIA request submitted on July 7, 2016, to the Federal Bureau of Investigation (“FBI”), a component of the DOJ. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 16-cv-2046-TSC (D.D.C. Oct. 13, 2016). Plaintiff sought all FD-302 forms, i.e. investigative forms, prepared as part of the FBI’s investigation, along with all records of communications between any FBI personnel concerning the investigation. (16-cv-2046-TSC, ECF No. 1 (“July 7, 2016 Request Compl.”) at ¶ 5.) Plaintiff also requested any records regarding a June 27, 2016 meeting between former Attorney General Loretta Lynch and former President Bill Clinton. (Id.)

         During a status conference on January 17, 2017, the parties discussed the scope of the DOJ’s review and the method by which the DOJ was processing the numerous requests for documents related to the Clinton e-mail investigation. (See 16-cv-2046-TSC, ECF No. 15 (“Jan. 17, 2017 Conf. Tr.”).) DOJ counsel reiterated that the FBI was processing the entire investigative file, containing approximately 10,000 pages, at a rate of 500 pages per month. (See Id. at 10:2–3, 12:6– 12, 13:9–13.) DOJ counsel further explained, and the court agreed, that the 500-page production rate was necessary, in part, because the sensitive nature of the documents required a multi-step, information-security review. (See Id. at 8:20–9:6, 14:5–14.) Counsel for the DOJ stated that the documents were publicly posted the first Friday of every month (see Id. at 6:13–20), and Plaintiff acknowledged that it was able to review the released files-62% of which were responsive to its request-as well as observe that a couple hundred pages had been withheld in their entirety, (see Id. at 3:14–25). In addition, although the DOJ’s custom is to Bates stamp the documents at the conclusion of all releases (see Id. at 5:16–20), it agreed to assign a universal Bates number to all records in the investigative file to facilitate communication with Plaintiff about objections (see Id. at 23:7–11). The parties also agreed to file a joint status report every ninety days. (See Id. at 24:6– 9.)

         B. Plaintiff’s October 12, 2016 FOIA Request

         On December 5, 2016, Plaintiff filed a second lawsuit regarding a FOIA request submitted to the FBI on October 12, 2016. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 16-cv-2369-ABJ (D.D.C. Dec. 5, 2016). Plaintiff sought all records discovered, recovered, retrieved from, or found on any equipment used to support former Secretary Clinton’s email system. (16-cv-2369-ABJ, ECF No. 1 (“October 12, 2016 Request Compl.”) at ¶ 5.) Plaintiff also sought all records related to the FBI’s efforts to discover, recover, retrieve, or find emails or text messages stored on the equipment. (See id.)

         During a status conference in that case before Judge Randolph Moss on January 24, 2017, the parties again discussed the scope of and method by which the DOJ was processing all FOIA requests for documents related to the Clinton email investigation. (See 16-cv-2369-ABJ, ECF No. 8 (“Jan. 24, 2017 Status Conf. Tr.”).) The DOJ restated “its commitment to handle the requests that it was receiving and to release all nonexempt portions of the Clinton investigative file” at a rate of 500 pages per month. (See Id. at 6:11–18.) Plaintiff’s counsel then stated his understanding that the Clinton investigative file is “a little over 10,000 pages . . . so at 500 pages a month,” it would take “between 20 and 24 months for all the material to be produced.” (See Id. at 7:25–8:4.) Plaintiff also challenged the DOJ’s practice of monthly releases to the electronic library as applied to the facts of that case, arguing that because its request was narrower than other earlier requests for the entire file, the DOJ should extract documents responsive to Plaintiff’s request and review those before completing the review of the entire file. (See Id. at 8:4–24, 9:9–10:1.) Judge Moss, concerned with what appeared to be an attempt to jump ahead of others in the queue, asked Plaintiff to review its pending requests and decide whether it would prefer the DOJ to stop working on one of Plaintiff’s pending requests and prioritize Plaintiff’s instant request. (See Id. at 17:10–28:15.)

         During a follow-up status conference on February 7, 2017, the DOJ told Judge Moss that a resource swap was not feasible because the individuals reviewing the Clinton investigative file were reviewing only that file. (See 16-cv-2369-ABJ, ECF No. 9 (“Feb. 7, 2017 Status Conf. Tr.”) at 4:7– 6:6.) The parties then engaged in another discussion regarding the scope of the investigative file and how it was being produced. (See Id. at 6:7–20:16.) At the conclusion of the hearing, the FBI agreed, as it did in the other case, to identify responsive records at the time of release by the universal Bates number. (See Id. at 20:17–21:22.) That case is ongoing.

         C. Plaintiff’s July 25, 2018 FOIA Request

         On July 25, 2018, Plaintiff submitted a third FOIA request to the FBI, this time requesting the entire investigative file of the FBI’s investigation of Hillary Clinton’s use ...


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