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Case TitleNATIONAL SECURITY COUNSELORS et al v. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2013cv00556
Date Filed2013-04-24
Date Closed2015-02-18
JudgeJudge Tanya S. Chutkan
PlaintiffNATIONAL SECURITY COUNSELORS
PlaintiffJEFFREY STEIN
PlaintiffTRUTHOUT
DefendantDEPARTMENT OF JUSTICE
AppealD.C. Circuit 15-5117
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [27]
FOIA Project Annotation: Judge Tanya Chutkan has ruled that the FBI's CD interim release policy is permitted under the fee provisions of FOIA and that the Civil Division properly denied National Security Counselors a fee waiver for its request for information about how DOJ attorneys were assigned to FOIA litigation. NSC was joined by Truthout and Jeffrey Stein in the litigation. All three had requested voluminous records from the FBI and specifically requested the agency provide them on the smallest number of CDs possible, rather than following the agency's CD interim release policy which provided CDs containing 500 pages each at $15 per CD. Under that policy, NSC was charged $65 for five CDs, Truthout was charged $765 for 52 CDs, and Stein was charged $665 for 44 CDs. All three argued that if the agency maximized the amount of information on each CD their costs would be less. Chutkan noted that "plaintiffs raise the possibility that the cost to process a single CD filled to capacity might be less than the cost of processing the same number of pages in 500-page batches. While possible, that scenario is irrelevant to the question at handâ€"whether the fee charged for the 500-page CD ($15.00) is in excess of the fee permitted by the regulation: 'the direct costs, including operator time, of producing the copy.' Plaintiffs concede it is not, and point to no authority suggesting that agencies must release documents according to a policy that ensures the lowest possible cost for each requester under any scenario." The plaintiffs argued that since they would continue to make large requests to the agency this policy created a pattern and practice that harmed them. But Chutkan pointed out that "to the contrary, the undisputed facts demonstrate that the IRP provides medium- and large-queue requesters with records faster than if all records were produced simultaneously. . .and that the IRP presents requesters with cost savings over hard copy duplication. Rather than a refusal to supply information, the undisputed facts show that the CD IRP is the FBI's attempt to produce portions of large FOIA requests more expeditiously and economically for the agency and requesters and is consistent with its obligation" to provide records promptly. Civil Division had denied NSC's fee waiver for the data on FOIA litigation assignments, claiming it was public record. But Chutkan observed that NSC would have to find the records at various courthouses and that "this process would pose significant logistical and financial obstacles, as compared to obtaining the materials through FOIA requests." Affirming the agency's denial of the fee waiver, Chutkan agreed that NSC had not shown an ability to disseminate the information. She pointed out that "NSC presented no specific plans to disseminate the information it sought, other than its plan to analyze the information. The theoretical possibility of future articles is insufficient to establish that public understanding will be increased." She added that NSC had failed to "indicate what segment of the public beyond itself may be interested in these highly specific administrative matters."
Issues: Fees, Public Interest Fee Waiver
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-04-241COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350 receipt number 0090-3294015) filed by NATIONAL SECURITY COUNSELORS, TRUTHOUT, JEFFREY STEIN. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit - LCvR 7.1 certificate (NSC), # 3 Exhibit - LCvR 7.1 certificate (Truthout), # 4 Summons, # 5 Summons, # 6 Summons)(McClanahan, Kelly) (Entered: 04/24/2013)
2013-04-24Case Assigned to Judge Rudolph Contreras. (kb) (Entered: 04/24/2013)
2013-04-242ELECTRONIC SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Summons, # 2 Summons, # 3 Consent Form, # 4 Notice of Consent)(kb) (Entered: 04/24/2013)
2013-04-243LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL SECURITY COUNSELORS, TRUTHOUT (Attachments: # 1 Exhibit - LCvR 7.1 certificate)(McClanahan, Kelly) (Entered: 04/24/2013)
2013-04-304RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 4/29/2013, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/29/2013., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/29/2013. ( Answer due for ALL FEDERAL DEFENDANTS by 5/29/2013.) (Attachments: # 1 Exhibit)(McClanahan, Kelly) (Entered: 04/30/2013)
2013-05-225NOTICE of Appearance by Jeremy S. Simon on behalf of DEPARTMENT OF JUSTICE (Simon, Jeremy) (Entered: 05/22/2013)
2013-05-236MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/23/2013)
2013-05-29MINUTE ORDER granting 6 Motion for Extension of Time to Answer or Otherwise Respond to Complaint: Pursuant to Fed. R. Civ. P. 6(b)(1), it is hereby ORDERED that Defendant's answer or other responsive pleading will be due on June 28, 2013. SO ORDERED. Signed by Judge Rudolph Contreras on 5/29/2013. (lcrc3) (Entered: 05/29/2013)
2013-05-307Memorandum in opposition to re 6 MOTION for Extension of Time to Answer or Otherwise Respond to Complaint and Request for Modification of the Court's 5/29/13 Scheduling Order filed by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT. (Attachments: # 1 Exhibit A - Simon-McClanahan email chain, # 2 Exhibit B - Shapiro motion for extension, # 3 Exhibit C - Shapiro order to sever, # 4 Text of Proposed Order)(McClanahan, Kelly) (Entered: 05/30/2013)
2013-05-30Reset Deadlines: Answer due by 6/28/2013. (tj ) (Entered: 05/30/2013)
2013-06-048REPLY to Opposition re 6 MOTION for Extension of Time and Request for Modification of the Court's May 29, 2013 Order filed by DEPARTMENT OF JUSTICE. (Simon, Jeremy) Modified event title and link on 6/5/2013 (znmw, ). (Entered: 06/04/2013)
2013-06-289ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Simon, Jeremy) (Entered: 06/28/2013)
2013-07-01MINUTE ORDER: It is hereby ORDERED that the parties shall submit a joint status report including a proposed briefing schedule on or before July 15, 2013. SO ORDERED. Signed by Judge Rudolph Contreras on 7/1/2013. (lcrc3) (Entered: 07/01/2013)
2013-07-0910STATUS REPORT (Joint Status Report and Proposed Briefing Schedule) by DEPARTMENT OF JUSTICE. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 07/09/2013)
2013-07-09MINUTE ORDER re 10 Joint Status Report and Proposed Briefing Schedule: It is hereby ORDERED that the following schedule for the briefing of dispositive motions shall apply to this matter: DOJ's motion for summary judgment is due on August 27, 2013; Plaintiffs' combined opposition and cross-motion is due September 30, 2013; DOJ's reply in support of its motion and opposition to Plaintiffs' cross-motion are due October 30, 2013; and Plaintiffs' reply is due December 2, 2013. SO ORDERED. Signed by Judge Rudolph Contreras on 7/9/2013. (lcrc3) (Entered: 07/09/2013)
2013-08-2311Consent MOTION for Extension of Time to File Motion for Summary Judgment and to Adjust Related Deadlines in Briefing Schedule by DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 08/23/2013)
2013-08-23MINUTE ORDER granting 11 Consent Motion for Extension of Time: It is hereby ORDERED that the following amended schedule for the briefing of dispositive motions shall apply to this matter: DOJ's motion for summary judgment is due on September 17, 2013; Plaintiffs' combined opposition and cross-motion is due October 21, 2013; DOJ's combined reply in support of its motion and opposition to Plaintiffs' cross-motion is due November 19, 2013; and Plaintiffs' reply is due December 20, 2013. SO ORDERED. Signed by Judge Rudolph Contreras on 8/23/2013. (lcrc3) (Entered: 08/23/2013)
2013-08-27Set Deadlines: Dispositive Motions due by 9/17/2013; Response to Dispositive Motions due by 10/21/2013; Reply to Dispositive Motions due by 11/19/2013; Cross Motions due by 10/21/2013; Response to Cross Motions due by 11/19/2013; Reply to Cross Motions due by 12/20/2013. (tj) (Entered: 08/27/2013)
2013-09-1712MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum by DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order, # 2 Declaration of David M. Hardy, # 3 Declaration of James M. Kovakas)(Simon, Jeremy) (Entered: 09/17/2013)
2013-10-2213Consent MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 10/22/2013)
2013-10-22MINUTE ORDER granting 13 Consent Motion for Extension of Time: It is hereby ORDERED that Plaintiffs' combined opposition and cross-motion is due November 4, 2013; DOJ's combined reply in support of its motion and opposition to Plaintiffs' cross-motion is due December 3, 2013; and Plaintiffs' reply is due January 3, 2014. SO ORDERED. Signed by Judge Rudolph Contreras on 10/22/2013. (lcrc3) (Entered: 10/22/2013)
2013-11-0414Consent MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/04/2013)
2013-11-04MINUTE ORDER granting 14 Consent Motion for Extension of Time: It is hereby ORDERED that Plaintiffs' combined opposition and cross-motion is due November 6, 2013; DOJ's combined reply in support of its motion and opposition to Plaintiffs' cross-motion is due December 5, 2013; and Plaintiffs' reply is due January 6, 2014. SO ORDERED. Signed by Judge Rudolph Contreras on 11/4/2013. (lcrc3) (Entered: 11/04/2013)
2013-11-0715Memorandum in opposition to re 12 MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum filed by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT. (Attachments: # 1 Exhibit A - Sample OIP appeal records, # 2 Exhibit B - McClanahan declaration, # 3 Exhibit B-1 - Previous request letter, # 4 Exhibit B-2 - Previous supplement, # 5 Exhibit B-3 - Previous denial, # 6 Exhibit C - Civil request email, # 7 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/07/2013)
2013-11-0716MOTION for Partial Summary Judgment , MOTION for Discovery in the Alternative by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Exhibit A - Sample OIP appeal records, # 2 Exhibit B - McClanahan declaration, # 3 Exhibit B-1 - Previous request letter, # 4 Exhibit B-2 - Previous supplement, # 5 Exhibit B-3 - Previous denial, # 6 Exhibit C - Civil request email, # 7 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/07/2013)
2013-11-0717Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum (Nunc Pro Tunc) by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/07/2013)
2013-11-07MINUTE ORDER granting 17 Unopposed Motion for Extension of Time: It is hereby ORDERED that the deadline for Plaintiffs' 16 Motion is extended, nunc pro tunc , to November 7, 2013. SO ORDERED. Signed by Judge Rudolph Contreras on 11/7/2013. (lcrc3) (Entered: 11/07/2013)
2013-12-0518Memorandum in opposition to re 16 MOTION for Partial Summary Judgment MOTION for Discovery in the Alternative filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Supplemental Declaration of David Hardy, # 2 Proposed Order)(Simon, Jeremy) (Entered: 12/05/2013)
2013-12-0519REPLY to opposition to motion re 12 MOTION for Summary Judgment , Local Rule 7(h) Statement and Accompanying Memorandum filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Supplemental Declaration of David Hardy)(Simon, Jeremy) (Entered: 12/05/2013)
2014-01-0620Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Partial Summary Judgment MOTION for Discovery in the Alternative by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 01/06/2014)
2014-01-07MINUTE ORDER granting 20 Consent Motion for Extension of Time: It is hereby ORDERED that Plaintiffs' reply shall be due on January 7, 2014. SO ORDERED. Signed by Judge Rudolph Contreras on 1/7/2014. (lcrc3) (Entered: 01/07/2014)
2014-01-0721REPLY to opposition to motion re 16 MOTION for Partial Summary Judgment MOTION for Discovery in the Alternative filed by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT. (McClanahan, Kelly) (Entered: 01/08/2014)
2014-02-2522MOTION for Leave to File Additional Exhibit by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Exhibit C - 2d McClanahan Declaration, # 2 Text of Proposed Order)(McClanahan, Kelly) (Entered: 02/25/2014)
2014-03-1423Memorandum in opposition to re 22 MOTION for Leave to File Additional Exhibit filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Proposed Order, # 2 Argall Declaration)(Simon, Jeremy) (Entered: 03/14/2014)
2014-03-2424REPLY to opposition to motion re 22 MOTION for Leave to File Additional Exhibit filed by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT. (Attachments: # 1 Exhibit D - FDPS Operations Guide, App'x L)(McClanahan, Kelly) (Entered: 03/24/2014)
2014-06-10Case reassigned to Judge Tanya S. Chutkan. Judge Rudolph Contreras no longer assigned to the case. (ztnr, ) (Entered: 06/10/2014)
2014-08-2225ORDER: Granting 22 Motion for Leave to File Additional Exhibit. Signed by Judge Tanya S. Chutkan on 8/22/14. (lctsc3, ) (Entered: 08/22/2014)
2014-08-2226Additional Exhibits by NATIONAL SECURITY COUNSELORS, JEFFREY STEIN, TRUTHOUT (Attachments: # 1 Declaration of Dennis J. Argall)(Second Declaration of Kelly McClanahan, Esq - main document)(rdj) (Entered: 08/22/2014)
2015-02-1827MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 2/18/15. (lctsc3) (Entered: 02/18/2015)
2015-02-1828ORDER dismissing Counts I and II as moot; granting 12 Defendant's Motion for Summary Judgment as to Counts III and IV; denying 16 Plaintiffs' Motion for Partial Summary Judgment; and denying 16 Plaintiffs' Motion for Discovery. Signed by Judge Tanya S. Chutkan on 2/18/15. (lctsc3) (Entered: 02/18/2015)
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