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Case TitleELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2006cv01708
Date Filed2006-10-03
Date Closed2009-08-31
JudgeJudge Colleen Kollar-Kotelly
PlaintiffELECTRONIC FRONTIER FOUNDATION
Case DescriptionThe Electronic Frontier Foundation submitted a FOIA request to the FBI for records concerning electronic surveillance systems known as DCS-3000 and Red Hook. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, EFF filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantDEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [16]
FOIA Project Annotation: When Congress passed the EFOIA amendments in 1996, one of its primary features was a legislative attempt to solve the intractable problems caused by agency backlogs. The amendments specifically indicated that routine consistent backlogs did not qualify as exceptional circumstances. Further, the amendments required that agencies become more proactive in dealing with requesters to help narrow the scope of large requests. Finally, Congress increased the statutory time limits from 10 to 20 working days, essentially telling agencies it recognized that more time was needed, but that an extra two weeks was as far as Congress was willing to go. Skeptics in the FOIA community felt that nothing Congress did would affect the problem since its root cause had more to do with lack of resources than pure obstruction. But the key to even partial success lay in the willingness of the courts to follow congressional intent and hold the line on time limits. Ten years later, it is clear that the courts consider the EFOIA amendments as nothing more than window-dressing and agencies that tell the court that they just can't make the time limits are almost invariably granted stays. The most recent illustration of how courts tend to respond to requests for stays is a case brought by the Electronic Frontier Foundation against the FBI for its failure to respond to the organization's request for records concerning two previously undisclosed surveillance techniques " DCS-3000 and Red Hook " that were mentioned in a March 2006 report by the Justice Department's Inspector General. EFF made its request in August 2006 and filed suit in October after the agency failed to respond. In conversations with EFF in December 2006 and January 2007, the agency indicated that it had located 20,000 potentially responsive records. The agency asked EFF if it would be willing to narrow its request by dropping various categories of records from the scope of the request. EFF declined to do so at the time and later explained to the court that "because the number of potentially responsive pages was so indefinite. . .[EFF] was unwilling to remove broad categories of documents from the scope of the request without a better understanding of their content." In February 2007, the FBI moved for a stay, claiming that it had a significant increase in requests in 2006, that it was facing several court litigation deadlines, and that it had experienced a high volume of administrative appeals as well. The agency also brought up the fact that it was in the process of moving its FOIA operations to Winchester, VA, which had resulted in the loss of 58 FOIA processors who had declined to relocate. The agency indicated that its FOIA operation was short 115 staff members and that no new staff could be hired because of a government hiring freeze. The FBI told the court that it was in the process of digitizing its records and hoped that this project, along with the new records center in Winchester, would reduce processing times by 40 percent. Judge Colleen Kollar-Kotelly first took up a stark pitfall in the EFOIA amendments that has not been the subject of much litigation. In codifying the practice of contacting requesters and trying to narrow the scope of a request in exchange for faster processing, Congress set up a system whereby an agency's obligation was only to contact the requester and suggest an alternative mode of processing. The requester can accept or decline the alternative, but a requester's refusal to narrow the request can be used in court as evidence supporting the agency's motion for a stay. In other words, as the provision is written, the requester is required to accept the agency's offer or else severely diminish his or her ability to persuade the court that he or she acted reasonably in dealing with the agency and that a stay is not appropriate. In practice, the agency and requester should continue to negotiate until a compromise agreeable to both parties is worked out. However, while Congress probably intended the latter result, the language of the provision supports the former. In this case, the FBI claimed that EFF's challenge to the stay was suspect because it had failed to narrow the scope of the request when offered the chance to do so. But Kollar-Kotelly noted that "the Court understands EFF's response to argue that it did not refuse to 'reasonably modify' the scope of its FOIA request, but rather that the FBI did not provide EFF with sufficient information to allow an informed decision that modification was appropriate. It therefore appears that EFF's refusal to narrow the scope of its FOIA request, in and of itself, would not justify the granting of an Open America stay." Kollar-Kotelly next rejected the agency's claims that its litigation deadlines and increase in administrative appeals were reasons to grant a stay. She pointed out that "the two specific litigation deadlines to which DOJ points have already passed, DOJ has not indicated a particular deadline for a third litigation, and DOJ has not indicated the scope of records requiring processing in a fourth litigation." The FBI stated that it had received 1015 appeals in 2006 and that as of January 31, 2007, 525 appeals were still pending. However, the agency admitted that "this number does not represent an increase" and Kollar-Kotelly observed that "DOJ therefore has not shown that the number of administrative appeals facing the FBI is anything other than a predictable and regular contributor to its backlog of FOIA requests." But Kollar-Kotelly found that the agency's staffing problems constituted exceptional circumstances for purposes of granting an Open America stay. She pointed out that the agency's number of requests had increased by one-third and explained that "this increase has been coupled with a significant and unexpected decrease in the staff available to process those requests, as a result of the relocation of certain [records information] sections to interim locations in Frederick County, Virginia. As such, DOJ has established that the FBI is facing more than just a routine backlog of FOIA requests or ordinary personnel problems." She indicated that the agency had reduced its processing time for small and medium request by 10 percent and 16 percent respectively, although its processing time for large FOIA requests had increased by 22 percent. She pointed out that "the FBI continues to make efforts to reduce the backlog and processing time for FOIA requests by developing the [digitizing project] and establishing the Central Records Complex." The agency had requested a two-year stay, but Kollar-Kotelly, saying that "the Court is desirous that EFF's FOIA request be processed as expeditiously as possible," granted a one-year stay instead and indicated that the agency would release documents on a rolling basis approximately every four weeks.
Issues: Delay - Stay of proceedings
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2006-10-031COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350 receipt number 139010.)filed by ELECTRONIC FRONTIER FOUNDATION (EFF). (Attachments: # 1 Civil Cover Sheet)(td, ) (Entered: 10/05/2006)
2006-10-03SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 10/05/2006)
2006-10-032LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC FRONTIER FOUNDATION (EFF) (td, ) (Entered: 10/05/2006)
2006-11-133ANSWER to Complaint by DEPARTMENT OF JUSTICE. Related document: 1 Complaint filed by ELECTRONIC FRONTIER FOUNDATION,.(Phillips, Heather) (Entered: 11/13/2006)
2006-11-304ORDER. Defendant's Answer to Plaintiff's Complaint, filed November 13, 2006, admits that the Federal Bureau of Investigation, a component of Defendant Department of Justice, has not responded to Plaintiff's FOIA request, filed August 11, 2006. In light of this filing, it is this 30th day of November, 2006, hereby ORDERED that the parties shall confer and propose a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, etc. The parties shall file the schedule not later than December 29, 2006. Signed by Judge Colleen Kollar-Kotelly on November 30, 2006. (lcckk2) (Entered: 11/30/2006)
2006-12-285NOTICE of Proposed Schedule by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE (Phillips, Heather) (Entered: 12/28/2006)
2007-01-046NOTICE of Errata by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE re 5 Notice (Other) (Attachments: # 1 Corrected Proposed Briefing Schedule)(Phillips, Heather) (Entered: 01/04/2007)
2007-01-09MINUTE ENTRY ORDER (Paperless) adopting "Plaintiff and Defendant's Proposed Schedule" (Docket #6-2). Accordingly, the following dates have been agreed upon by the parties for briefing of Defendant's motion for an Open America stay: Defendant shall file its Opening Brief by February 9, 2007; Plaintiff shall file its Brief in Opposition by March 9, 2007; and Defendant shall file its Reply Brief by March 30, 2007. Signed by Judge Colleen Kollar-Kotelly on January 9, 2007. (SM) (Entered: 01/09/2007)
2007-02-097MOTION to Stay (Open America) by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit Exhibit 1 - Declaration of David Hardy# 2 Exhibit Exhibits A-D to the Declaration of David Hardy)(Phillips, Heather) (Entered: 02/09/2007)
2007-03-068ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on March 6, 2007. (SM) (Entered: 03/06/2007)
2007-03-089MOTION for Extension of Time to File Response/Reply to Defendant DOJ's Open America Stay Motion by ELECTRONIC FRONTIER FOUNDATION. (Hofmann, Marcia) (Entered: 03/08/2007)
2007-03-0910PROCEDURES ORDER. The parties are directed to pay particular attention to the fact that motions for extensions of time are strongly discouraged and shall be filed at least four business days prior to the deadline the motion is seeking to extend. Signed by Judge Colleen Kollar-Kotelly on March 9, 2007. (lcckk2) (Entered: 03/09/2007)
2007-03-0911MINUTE ENTRY ORDER (paperless) granting 9 Plaintiff's Unopposed Motion for Extension of Time to File Response. Plaintiff's response to Defendant's motion for an Open America stay shall be filed on or before March 14, 2007 and Defendant's reply shall be filed on or before April 5, 2007. Signed by Judge Colleen Kollar-Kotelly on March 9, 2007. (lcckk2) (Entered: 03/09/2007)
2007-03-1412Memorandum in opposition to re 7 MOTION to Stay (Open America) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Declaration of Marcia Hofmann# 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Hofmann, Marcia) (Entered: 03/14/2007)
2007-04-0513REPLY to opposition to motion re 7 MOTION to Stay (Open America) filed by DEPARTMENT OF JUSTICE. (Phillips, Heather) (Entered: 04/05/2007)
2007-04-1114NOTICE of Errata by DEPARTMENT OF JUSTICE re 13 Reply to opposition to Motion (Phillips, Heather) (Entered: 04/11/2007)
2007-05-0715ORDER. For the reasons set forth in the accompanying Memorandum Opinion, Defendant Department of Justice's 7 Motion for an Open America Stay is GRANTED-IN-PART such that proceedings against the Department of Justice in this matter are stayed until May 9, 2008. Defendant may move to extend the Open America stay, on or before May 9, 2008, in the event that Defendant believes such an extension is warranted. During the pendency of the stay, Defendant shall make interim releases of records responsive to Plaintiff's FOIA request every four (4) weeks, and shall file a status report with the Court every ninety (90) days, providing the Court with the following information: the status of Plaintiff's request in the agency queue; the number of records that have been released in full or in part during the status period; the number of records determined thus far to be responsive to Plaintiff's FOIA requests; and an estimate of the length of time still needed to complete the processing and release of responsive records; it is further. Signed by Judge Colleen Kollar-Kotelly on May 7, 2007. (lcckk2) Modified on 5/7/2007 (lcckk2, ). (Entered: 05/07/2007)
2007-05-0716MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on May 7, 2007. (lcckk2) (Entered: 05/07/2007)
2007-08-0517STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 2d Hardy Declaration# 2 Exhibit A-C attachments to 2d Hardy Declaration)(Phillips, Heather) (Entered: 08/05/2007)
2007-09-1818NOTICE of Change of Address by Marcia Clare Hofmann (Hofmann, Marcia) (Entered: 09/18/2007)
2007-11-0519STATUS REPORT (Second) by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A to Second Status Report# 2 Exhibit A-C Exhibits to Third Hardy Declaration)(Phillips, Heather) (Entered: 11/05/2007)
2008-02-0120STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - Hardy Declaration, # 2 Exhibit Exhibits to Fourth Hardy Declaration)(Phillips, Heather) (Entered: 02/01/2008)
2008-05-0121STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A)(Phillips, Heather) (Entered: 05/01/2008)
2008-05-05MINUTE ORDER. Defendant's May 1, 2008 21 Fourth Status Report indicates that Defendant has made its tenth, and final, interim release of documents to Plaintiff. The Court notes that Defendant has not moved to extend the Open America stay in this case, which is currently set to be lifted on May 9, 2008. Accordingly, on or before May 30, 2008, the parties shall file a Joint Status Report with the Court setting forth how they propose to proceed in this action, including a briefing schedule, if necessary. Signed by Judge Colleen Kollar-Kotelly on May 5, 2008. (lcckk2) (Entered: 05/05/2008)
2008-05-05Set/Reset Deadlines: Joint Status Report due by 5/30/2008. (dot, ) (Entered: 05/07/2008)
2008-05-2922STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION. (Hofmann, Marcia) (Entered: 05/29/2008)
2008-06-09MINUTE ORDER (paperless). The Court has reviewed the parties' 22 May 29, 2008 Joint Status Report. As requested by the parties in that Report, the parties shall file another Joint Status Report by July 11, 2008, in which they shall advise the Court as to any agreements reached to limit the scope of this litigation, as well as their proposed schedule for dispositive briefing in this matter. Signed by Judge Colleen Kollar-Kotelly on June 9, 2008. (lcckk2) (Entered: 06/09/2008)
2008-07-1123STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE. (Phillips, Heather) (Entered: 07/11/2008)
2008-07-11MINUTE ORDER (paperless). The Court has reviewed the parties' 23 Joint Status Report and notes that they disagree as to whether or not to proceed in this FOIA litigation via representative sampling. Accordingly, the Court shall conduct a hearing on this issue at 9:00 a.m. on Thursday, August 7, 2008. On or before August 1, 2008, each party shall file a brief addressing the issue of, and providing any relevant legal authority regarding, the Court's ability to order the parties to proceed by representative sample in a FOIA action over the objection of one party, in addition to any other arguments the parties wish to raise regarding the sampling. Each party's brief shall be limited to ten pages.Signed by Judge Colleen Kollar-Kotelly on July 11, 2008. (lcckk2) (Entered: 07/11/2008)
2008-07-11Set/Reset Deadlines/Hearings: Parties Brief due by 8/1/2008. Status Conference set for 8/7/2008 09:00 AM in Courtroom 28A before Judge Colleen Kollar-Kotelly. (dot, ) (Entered: 07/17/2008)
2008-08-0124MEMORANDUM re Order,,, by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1)(Phillips, Heather) (Entered: 08/01/2008)
2008-08-0125MEMORANDUM re Order,,, by ELECTRONIC FRONTIER FOUNDATION. (Hofmann, Marcia) (Entered: 08/01/2008)
2008-08-0426NOTICE of Appearance by David L. Sobel on behalf of ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 08/04/2008)
2008-08-07MINUTE ORDER (paperless). The Court held a hearing in this case at 9:00 a.m. on Thursday, August 7, 2008 regarding the parties' disagreement over how to proceed in this FOIA action. The Court expressly incorporates herein the discussion on the record during that hearing. As set forth during that hearing, no later than August 29, 2008, the FBI shall (1) produce to Plaintiff a new package of all previously released documents with Bates numbers added to the documents; and (2) provide Plaintiff with a list of all documents withheld in whole or in part. For each document the FBI shall identify the Bates range of the pages withheld in whole or in part, indicate whether the document has been produced to Plaintiff, indicate whether the document is a duplicate or draft of another document, and identify the FOIA exemption claimed as to that document. The parties shall then engage in a discussion of how to proceed in this action and whether it is possible to narrow the scope of the documents at issue. On or before September 29, 2008, the parties shall file a Joint Status Report with the Court regarding the outcome of their discussions and whether they have been able to reach an agreement as to how to proceed. In the event that the parties have not reached an agreement and the Court's intervention is still required, a Status Hearing shall be held in this matter at 9:30 a.m. on Monday, October 6, 2008. Signed by Judge Colleen Kollar-Kotelly on August 7, 2008. (lcckk2) (Entered: 08/07/2008)
2008-08-07Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Status Conference held on 8/7/2008. Status Report due by 8/29/2008. Status Conference set for 10/6/2008 09:30 AM in Courtroom 28A before Judge Colleen Kollar-Kotelly. (Court Reporter Lisa Hand.) (dot, ) (Entered: 08/08/2008)
2008-09-18MINUTE ORDER (paperless): Due to a scheduling conflict, the Court has rescheduled the Status Hearing from 9:30 a.m. to 2:30 p.m on October 6th. Accordingly, the Status Hearing scheduled for Monday, October 6, 2008, will be held at 2:30 p.m. in Courtroom 28A. Signed by Judge Colleen Kollar-Kotelly on September 18, 2008. (SM) (Entered: 09/18/2008)
2008-09-18Set/Reset Hearings: Status Conference set for 10/6/2008 02:30 PM in Courtroom 28A before Judge Colleen Kollar-Kotelly. (clv, ) (Entered: 09/18/2008)
2008-09-2927STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE. (Hofmann, Marcia) (Entered: 09/29/2008)
2008-10-02MINUTE ORDER: By request of the parties and pursuant to the information provided in their Joint Status Report dated September 29, 2008, the Court hereby vacates the Status Hearing scheduled for October 6, 2008; it is FURTHER ORDERED that the parties shall file a Joint Status Report by no later than February 13, 2009. Signed by Judge Colleen Kollar-Kotelly on October 2, 2008. (SM) (Entered: 10/02/2008)
2009-01-1628NOTICE OF SUBSTITUTION OF COUNSEL by Bryan Scott Dearinger on behalf of DEPARTMENT OF JUSTICE Substituting for attorney Heather R. Phillips (Dearinger, Bryan) (Entered: 01/16/2009)
2009-01-1629Unopposed MOTION for Extension of Time to File Joint Status Report by DEPARTMENT OF JUSTICE (Dearinger, Bryan) (Entered: 01/16/2009)
2009-01-22MINUTE ORDER granting 29 Defendant's Unopposed Motion for Extension of Time to File Joint Status report, until and including April 13, 2009, as requested. Signed by Judge Colleen Kollar-Kotelly on January 22, 2009. (SM) (Entered: 01/22/2009)
2009-01-22Set/Reset Deadlines: Joint Status Report due by 4/13/2009. (dot, ) (Entered: 02/02/2009)
2009-04-1330STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE. (Dearinger, Bryan) (Entered: 04/13/2009)
2009-04-14MINUTE ORDER (paperless). The parties filed their 30 Joint Status Report on April 13, 2009, in which the parties request that: (a) Plaintiff have until and including May 4, 2009 to further review the Vaughn index in this case; and (b) the parties thereafter have until and including May 18, 2009 to confer regarding a schedule for proceeding with this matter. The Court GRANTS the parties' request. Accordingly, the parties shall file a joint status report on or before May 18, 2009, informing the Court of the results of any agreements reached by the parties to limit the scope of litigation and proposing a schedule for dispositive briefing in this matter. Signed by Judge Colleen Kollar-Kotelly on April 14, 2009. (lcckk2 ) (Entered: 04/14/2009)
2009-04-14Set/Reset Deadlines: Joint Status Report due by 5/18/2009. (dot, ) (Entered: 04/15/2009)
2009-05-1831STATUS REPORT by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hofmann, Marcia) (Entered: 05/18/2009)
2009-05-29MINUTE ORDER (paperless). The parties filed a 31 Joint Status Report on May 18, 2009. Upon consideration of the parties' positions as expressed in that Joint Status Report, the Court hereby requires the parties to file a joint notice, by no later than June 12, 2009, proposing a schedule for proceeding with dispositive motions in this matter. Plaintiff may raise its concerns, as expressed in the Joint Status Report, in its dispositive motions briefing, as it deems appropriate. Signed by Judge Colleen Kollar-Kotelly on May 29, 2009. (lcckk2 ) (Entered: 05/29/2009)
2009-06-1232Joint MOTION for Order Setting Briefing Schedule for Dispositive Motions by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE (Dearinger, Bryan) (Entered: 06/12/2009)
2009-06-1533SCHEDULING ORDER. Upon consideration of the parties' 32 Joint Motion for Entry of Briefing Schedule, it is this 15th day of June, 2009, herebyORDERED that the parties shall abide by the following schedule, as modified by the Court: (1) Defendant shall serve its motion for summary judgment by August 3, 2009; (2) Plaintiff shall serve its combined cross-motion for summary judgment (if any) and opposition to defendants motion by August 31, 2009; (3) Defendant shall serve its combined reply in support of its motion for summary judgment and opposition to plaintiffs motion for summary judgment (if any) by September 28, 2009; (4) Plaintiff shall serve its reply in support of its motion for summary judgment (if any) by October 26, 2009. Signed by Judge Colleen Kollar-Kotelly on June 15, 2009. (lcckk2 ) (Entered: 06/15/2009)
2009-08-0334MOTION for Summary Judgment (Defendant's Motion for Summary Judgment) by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration Eighth Declaration of David M. Hardy, # 4 Exhibit A-N, # 5 Exhibit O (Part 1), # 6 Exhibit O (Part 2), # 7 Exhibit O (Part 3), # 8 Exhibit O (Part 4), # 9 Exhibit O (Part 5), # 10 Exhibit O (Part 6), # 11 Exhibit O (Part 7), # 12 Exhibit O (Part 8), # 13 Exhibit O (Part 9), # 14 Exhibit O (Part 10), # 15 Exhibit O (Part 11A), # 16 Exhibit O (Part 11B), # 17 Exhibit O (Part 12), # 18 Exhibit O (Part 13), # 19 Exhibit O (Part 14), # 20 Exhibit O (Part 15), # 21 Exhibit O (Part 16), # 22 Exhibit O (Part 17), # 23 Exhibit O (Part 18), # 24 Exhibit O (Part 19), # 25 Exhibit O (Part 20), # 26 Exhibit O (Part 21))(Dearinger, Bryan) (Entered: 08/03/2009)
2009-08-3135NOTICE of Voluntary Dismissal by ELECTRONIC FRONTIER FOUNDATION, DEPARTMENT OF JUSTICE (Dearinger, Bryan) (Entered: 08/31/2009)
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