Case Detail

FOIA Project Annotation: Two recent decisions by long-time district court judges have expressed frustration with the FBI's apparent inability and unwillingness to accommodate complex historical requests that require more than a first-in, first out approach, instead taking positions in court that require requesters to either accept decades long delays in processing voluminous records or limiting search parameters in ways that are likely to produce far fewer responsive records. Both Judge Gladys Kessler and Judge Royce Lamberth took the agency to task for failing to explain why delay and search problems could not be resolved in ways that better served the goals of public disclosure of government information. Lamberth's ruling involved a request by the Mattachine Society of Washington, D.C., for records concerning the implementation of Executive Order 10450, which was signed in 1953 by President Dwight Eisenhower, allowing then FBI Director J. Edgar Hoover to purge gay and lesbian employees previously identified under the agency's "Sex Deviate Program." In the following decades, the EO was used by the FBI and the U.S. Civil Service Commission to fire thousands of federal employees. Because the program was originally overseen by Warren Burger when he served as head of the Justice Department's Civil Division, the MSDC also requested records concerning Burger's participation in the EO's implementation. The FBI disclosed 552 pages and withheld an additional 583 documents. Believing there must be more records on the program that was in place for 40 years, MSDC filed suit, arguing the agency's search was not adequate. Lamberth agreed. He initially noted that the FBI had limited its search to "Executive Order 10450," "Sex Deviate" and "Sex Deviate Program." He explained that although those search terms might be adequate to uncover records leading up to the EO, the EO itself shifted to using the term "sexual perversion," suggesting that the earlier descriptors would not be likely to uncover subsequently created records. MSDC had suggested broader search terms such as "gay," "lesbian" and "homosexual," but the FBI had rejected them as being too broad. Lamberth, however, noted that "while broad, those terms. . .are directly related to MSDC's specific request; even if there is a large volume of responsive documents, MSDC's request would compel their production." In its defense, the FBI explained that the term "pervert" yielded 5,500 hits. But Lamberth responded that "the FBI has not reviewed any portion of this search or others like it, offers no projections of what the results might be, and does not estimate the number of additional hours, resources, or funds [that] make these searches rise to the level of being an undue burden." He added that the Government provides no context in which to assess the volume of responses as being disproportionately burdensome as compared to similar requests. The FBI is asking the Court to declare that these searches would be unduly burdensome merely because the FBI suspects that they might be so, and that is not sufficient." Lamberth was disturbed by the FBI's response to MSDC's contention that it initially failed to search for records on Burger. Now the agency claimed it had searched all permutations of Burger's name and found no responsive records. Lamberth indicated that "respectfully, this strains credulity. It is suspicious at best, and malicious at worst, for the FBI to assert in one paragraph that the review of 5,500 documents would be too burdensome, and in the next claim to have conducted a review of every document related to any permutation of Warren E. Burger â€" Chief Justice of the United States from 1969 to 1986, D.C. Circuit Judge from 1956 to 1969, and Chief of the Civil Division of the Justice Department from 1953 to 1956. This absurd dichotomy stretches credulity further, as the FBI claims that the review of that search did not yield a single responsive document. The Court finds it nearly impossible to believe that a search for every permutation of the name of the man charged with carrying out EO 10540, a robust federal mandate that built upon an established FBI initiative, yielded zero responsive documents." In a rather unusual step, Lamberth found that the FBI had properly claimed Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records) to protect the names of individuals identified in the records, but because there was a strong public interest in disclosure of the records he required the agency to replace the names with unique alphanumeric markers. This result, he observed, 'will sufficiently protect the privacy interests of all parties involved, while also allowing the public to better study the effects of EO 10450 on lesbian, gay, bisexual, and transgender federal employees who were surveilled, harassed, and/or terminated under this program and others like it."
Issues: Search - Reasonableness of search, Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2016-04-27	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4501514) filed by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Civil Cover Sheet, # 26 Summons U.S. Attorney, # 27 Summons Att'y Gen., # 28 Summons U.s. Dep't Justice)(Rogaczewski, Joshua) (Entered: 04/27/2016)
2016-04-27	2	Corporate Disclosure Statement by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Rogaczewski, Joshua) (Entered: 04/27/2016)
2016-04-27		Case Assigned to Judge Royce C. Lamberth. (sth) (Entered: 04/27/2016)
2016-04-27	3	NOTICE of Appearance by Paul Michael Thompson on behalf of MATTACHINE SOCIETY OF WASHINGTON, D.C. (Thompson, Paul) Modified on 4/28/2016 (zrdj). (Entered: 04/27/2016)
2016-04-28	4	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 04/28/2016)
2016-05-13	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/29/2016. Answer due for ALL FEDERAL DEFENDANTS by 5/29/2016. (Thompson, Paul) (Entered: 05/13/2016)
2016-05-13	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/2/16. (Thompson, Paul) (Entered: 05/13/2016)
2016-05-13	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 5/2/2016 (Thompson, Paul) (Entered: 05/13/2016)
2016-05-13	8	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Ashley N. Evans, :Firm- McDermott Will & Emery LLP, :Address- 340 Madison Avenue, New York, NY 10173-1922. Phone No. - (212) 547-5772. Fax No. - (212) 547-5444 Filing fee $ 100, receipt number 0090-4527821. Fee Status: Fee Paid. by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 05/13/2016)
2016-05-13	9	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael R. Huttenlocher, :Firm- McDrmott Will & Emery LLP, :Address- 340 Madison Avenue, New York, NY 10173-1922. Phone No. - (212) 547-5482. Fax No. - (212) 547-5444 Filing fee $ 100, receipt number 0090-4527857. Fee Status: Fee Paid. by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 05/13/2016)
2016-05-13	10	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lisa A. Linsky, :Firm- McDermott Will & Emery LLP, :Address- 340 Madison Avenue, New York, NY 10173-1922. Phone No. - (212) 547-5587. Fax No. - (212) 547-5444 Filing fee $ 100, receipt number 0090-4527875. Fee Status: Fee Paid. by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 05/13/2016)
2016-05-13	11	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lisa Ann Gerson, :Firm- McDermott Will & Emery LLP, :Address- 340 Madison Avenue, New York, NY 10173-1922. Phone No. - (212) 547-5769. Fax No. - (212) 547-5444 Filing fee $ 100, receipt number 0090-4528150. Fee Status: Fee Paid. by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 05/13/2016)
2016-05-16	12	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Krista A. Meany, :Firm- McDermott Will & Emery LLP, :Address- 340 Madison Avenue, New York, NY 10173-1922. Phone No. - (212) 547-5692. Fax No. - (212) 547-5444 Filing fee $ 100, receipt number 0090-4528807. Fee Status: Fee Paid. by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 05/16/2016)
2016-05-31	13	Consent MOTION for Extension of Time to File Answer re 1 Complaint,,, by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Ross, Carl) (Entered: 05/31/2016)
2016-06-03	14	ORDER granting 13 Motion for Extension of Time to Answer 1 Complaint by UNITED STATES DEPARTMENT OF JUSTICE; it is hereby ORDERED that defendant's Answer and/or other response to the Complaint shall be due on or before June 30, 2016. Signed by Judge Royce C. Lamberth on 6/1/2016. (tg) (Entered: 06/03/2016)
2016-06-09	15	NOTICE of Appearance by Irene Angelica Firippis on behalf of MATTACHINE SOCIETY OF WASHINGTON, D.C. (Firippis, Irene) (Entered: 06/09/2016)
2016-06-20	16	ORDER granting 8 Motion for Leave to Appear Pro Hac Vice as to Ashley N. Evans. Signed by Judge Royce C. Lamberth on June 20, 2016.(lcrcl3) (Entered: 06/20/2016)
2016-06-20	17	ORDER granting 9 Motion for Leave to Appear Pro Hac Vice as to Michael R. Huttenlocher. Signed by Judge Royce C. Lamberth on June 20, 2016.(lcrcl3) (Entered: 06/20/2016)
2016-06-20	18	ORDER granting 10 Motion for Leave to Appear Pro Hac Vice as to Lisa A. Linsky. Signed by Judge Royce C. Lamberth on June 20, 2016.(lcrcl3) (Entered: 06/20/2016)
2016-06-20	19	ORDER granting 11 Motion for Leave to Appear Pro Hac Vice as to Lisa Ann Gerson. Signed by Judge Royce C. Lamberth on June 20, 2016.(lcrcl3) (Entered: 06/20/2016)
2016-06-20	20	ORDER granting 12 Motion for Leave to Appear Pro Hac Vice as to Krista A. Meany. Signed by Judge Royce C. Lamberth on June 20, 2016.(lcrcl3) (Entered: 06/20/2016)
2016-06-30	21	ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Ross, Carl) (Entered: 06/30/2016)
2016-07-05	22	ORDER: An answer having been filed herein in this case brought under the Freedom of Information Act, the defendant shall file any dispositive motions within 10 days of this date, or such time as the Court allows upon proper motion. Signed by Judge Royce C. Lamberth on 7/05/2016. (ad). (Entered: 07/06/2016)
2016-07-08	23	Unopposed MOTION for Extension of Time to File Motion for Production Schedule and Extension of Time to File Dispositive Motion by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Ross, Carl) (Entered: 07/08/2016)
2016-07-12	24	ORDER granting 23 Defendant's Unopposed Motion for Production Schedule and Extension of Time to File Dispositive Motions. It is ORDERED that the Defendant shall complete its processing and release of responsive documents within 60 days; it is further ORDERED that the Defendant's Motion for Summary Judgment shall be due on or before 10/6/2016. Signed by Judge Royce C. Lamberth on 7/11/2016. (tg) (Entered: 07/12/2016)
2016-09-09	25	CONSENT TO THE FILING OF AN AMENDED COMPLAINT by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Attachments: # 1 Certificate of Service)(Thompson, Paul) (Entered: 09/09/2016)
2016-09-09	26	AMENDED COMPLAINT For Injunctive Relief Under the Freedom of Information Act against UNITED STATES DEPARTMENT OF JUSTICE filed by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Certificate of Service)(Thompson, Paul) (Entered: 09/09/2016)
2016-10-04	27	Consent MOTION for Extension of Time to File by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Ross, Carl) (Entered: 10/04/2016)
2016-10-17	28	ORDER granting 27 Motion for Extension of Time to File. Signed by Judge Royce C. Lamberth on 10/14/2016. (lcrcl3, ) (Entered: 10/17/2016)
2016-10-17		Set/Reset Deadlines: Defendant's Summary Judgment motion due by 11/21/2016. (tg) (Entered: 10/17/2016)
2016-11-01	29	MOTION for Extension of Time to File Answer re 26 Amended Complaint,, by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Ross, Carl) (Entered: 11/01/2016)
2016-11-01	30	ANSWER to 26 Amended Complaint,, by UNITED STATES DEPARTMENT OF JUSTICE. Related document: 26 Amended Complaint,, filed by MATTACHINE SOCIETY OF WASHINGTON, D.C..(Ross, Carl) (Entered: 11/01/2016)
2016-11-18	32	ORDER granting 29 Motion for Extension of Time to Answer: It is hereby ORDERED that Defendant's Answer and/or other response to Plaintiff's Amended Complaint shall be due on or before November 1, 2016, nunc pro tunc. Signed by Judge Royce C. Lamberth on 11/17/2016. (ad) Modified on 11/21/2016 to correct the filed date(ad). (Entered: 11/21/2016)
2016-11-18	33	ORDER: The Court hereby ORDERS that the parties shall meet and confer regarding a proposal scheduling order for further proceedings herein, and shall submit a proposed scheduling order by December 1, 2016, jointly if possible, separately if necessary. Signed by Judge Royce C. Lamberth on 11/18/2016. (ad) (Entered: 11/21/2016)
2016-11-21	31	Consent MOTION for Extension of Time to File by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Ross, Carl) (Entered: 11/21/2016)
2016-11-21		Set/Reset Deadline: The parties shall meet and confer regarding a proposal scheduling order for further proceedings herein, and shall submit a proposed scheduling order by 12/1/2016. (ad) (Entered: 11/21/2016)
2016-11-29	34	PROPOSED BRIEFING SCHEDULE re Set/Reset Deadlines by the Parties by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Thompson, Paul) (Entered: 11/29/2016)
2016-11-29	35	ORDER granting 31 Consent Motion for Extension of Time to File: It is hereby ORDERED that Defendant's Motion for Summary Judgment shall be due on or before November 30, 2016. Signed by Judge Royce C. Lamberth on 11/28/2016. (ad) (Entered: 11/29/2016)
2016-11-29		Set/Reset Deadline: Defendant's Motion for Summary Judgment shall be due on or before 11/30/2016. (ad) (Entered: 11/29/2016)
2016-12-01	36	ORDER ADOPTING the parties 34 Proposed Briefing Schedule. The parties shall comply with the following schedule: Defendant's Summary Judgment motion due by 12/6/2016; Plaintiff's Opposition to Motion for Summary Judgment due by 1/30/2017; Defendant's Reply to Opposition to Motion for Summary Judgment due by 2/21/2017. Signed by Judge Royce C. Lamberth on 11/30/2016. (tg) (Entered: 12/01/2016)
2016-12-06	37	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit 1 - Hardy Declaration and Exhibits, # 2 Exhibit 2 - Pineiro Declaration and Exhibits, # 3 Exhibit 3 - Kim Declaration, # 4 Text of Proposed Order)(Ross, Carl) (Entered: 12/06/2016)
2017-01-18	38	NOTICE OF SUBSTITUTION OF COUNSEL by Melanie Dyani Hendry on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Carl Ross (Hendry, Melanie) (Entered: 01/18/2017)
2017-01-30	39	Consent MOTION to Amend/Correct Scheduling Order by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Text of Proposed Order)(Thompson, Paul) (Entered: 01/30/2017)
2017-01-30	40	RESPONSE re 37 MOTION for Summary Judgment filed by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Attachments: # 1 Memorandum in Support of Opposition, # 2 Text of Proposed Order)(Thompson, Paul) (Entered: 01/30/2017)
2017-01-30	41	Cross MOTION for Summary Judgment by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Memorandum in Support, # 2 Statement of Undisputed Material Facts, # 3 Text of Proposed Order)(Thompson, Paul) (Entered: 01/30/2017)
2017-02-01	42	ORDER granting 39 Motion to Amend/Correct. Signed by Judge Royce C. Lamberth on 2/1/2017. (lcrcl1, ) (Entered: 02/01/2017)
2017-03-27	43	REPLY to opposition to motion re 37 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration Second Declaration of David M. Hardy, # 2 Declaration Second Declaration of Susan L. Kim)(Hendry, Melanie) (Entered: 03/27/2017)
2017-03-27	44	RESPONSE re 41 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Declaration of David M. Hardy, # 2 Second Declaration of Susan L. Kim, # 3 Defendant's Response to Plaintiff's Statement of Material Facts)(Hendry, Melanie) (Entered: 03/27/2017)
2017-03-28	45	Consent MOTION for Scheduling Order Amendment by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Text of Proposed Order)(Thompson, Paul) (Entered: 03/28/2017)
2017-04-07	46	ORDER granting 45 Motion for Scheduling Order. Plaintiff's Reply to Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment due by 4/14/2017. Signed by Judge Royce C. Lamberth on 4/6/17. (zlsj) (Entered: 04/07/2017)
2017-04-14	47	REPLY to opposition to motion re 41 Cross MOTION for Summary Judgment filed by MATTACHINE SOCIETY OF WASHINGTON, D.C.. (Thompson, Paul) (Entered: 04/14/2017)
2017-07-03	48	ORDER re 40 cross-motion filed by MATTACHINE SOCIETY OF WASHINGTON, D.C. DOJ shall promptly produce unredacted documents for ex parte, in camera review.. Signed by Judge Royce C. Lamberth on 7/3/17. (lcrcl1, ) (Entered: 07/03/2017)
2017-07-07	49	NOTICE of Submission for In Camera Review by UNITED STATES DEPARTMENT OF JUSTICE re 48 Order (Hendry, Melanie) (Entered: 07/07/2017)
2017-07-19	50	NOTICE of Submission for In Camera Review by UNITED STATES DEPARTMENT OF JUSTICE (Hendry, Melanie) (Entered: 07/19/2017)
2017-07-28	51	MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on 7/28/17. (lcrcl1, ) (Entered: 07/28/2017)
2017-07-28	52	ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting in part and denying in part 41 Motion for Summary Judgment. Signed by Judge Royce C. Lamberth on 7/28/17. (lcrcl1, ) (Entered: 07/28/2017)
2017-08-08	53	MOTION for Extension of Time to File Its Motion for Attorney's Fees and Costs and Supporting Memorandum by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Text of Proposed Order)(Thompson, Paul) (Entered: 08/08/2017)
2017-08-18	54	ORDER granting 53 Motion for Extension of Time to August 25, 2017.. Signed by Judge Royce C. Lamberth on 8/18/2017. (lcrcl1, ) (Entered: 08/18/2017)
2017-08-25	55	MOTION for Attorney Fees and Costs by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A - Francis Declaration, # 3 Exhibit B - Thompson Declaration, # 4 Text of Proposed Order)(Thompson, Paul) (Entered: 08/25/2017)
2017-09-08	56	Consent MOTION to Stay re 55 MOTION for Attorney Fees and Costs Pending Conclusion of Litigation by MATTACHINE SOCIETY OF WASHINGTON, D.C. (Attachments: # 1 Text of Proposed Order)(Firippis, Irene) (Entered: 09/08/2017)
2017-09-13	57	ORDER denying 55 Motion for Attorney Fees without prejudice at this time. Further ORDERED that 56 Motion to Stay Plaintiff's Motion for Attorneys' Fees and Costs Pending Completion of Litigation is hereby DENIED. Signed by Judge Royce C. Lamberth on 9/13/17. (lsj) (Entered: 09/13/2017)
2018-10-05	58	ORDER directing the parties to meet and confer and file a joint status report, including a proposed scheduling order. Signed by Judge Royce C. Lamberth on 10/05/2018. (lcrcl3) Modified on 10/9/2018 (zlsj). (Entered: 10/05/2018)
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