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Case TitleKansas, State of, v. United States Department of Defense
DistrictDistrict of Kansas
CityTopeka
Case Number5:2016cv04127
Date Filed2016-07-22
Date ClosedOpen
JudgeDistrict Judge Daniel D. Crabtree
PlaintiffKansas, State of ex rel. Derek Schmidt, in his official capacity as Attorney General of the State of Kansas
Case DescriptionThe State of Kansas submitted a multi-part FOIA request to the Department of Defense for records, including any expenditures pertaining to the transfer of detainees currently housed at Guantanamo to the U.S. mainland. Kansas also asked for a fee waiver. The agency agreed to respond to parts of the State's request, but denied the State's request for a fee waiver. After hearing nothing further from the agency, the State filed suit.
Complaint issues: Failure to respond within statutory time limit, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantUnited States Department of Defense
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [31]
FOIA Project Annotation: A federal court in Kansas has ruled that in response to a FOIA request from the State of Kansas, the Department of Defense conducted an adequate search for records concerning the Obama administration's plan to close the detention facility at Guantanamo Bay and to incarcerate the remaining detainees in facilities in the United States and that except for a handful of documents, the agency properly withheld records under Exemption 5 (privileges), but that Exemption 7(F) (harm to any person) does not apply to cost estimates. Since the federal prison at Leavenworth was one of the sites considered, Kansas had a particular interest in the proposal and to make responding to the request more manageable, Kansas agreed to narrow parts of its request to focus on Leavenworth. The agency had a single office, the Office of Detainee Policy, that was responsible for the policy. Since that office had sole responsibility for the policy, DOD decided ODP would have access to all responsive records. The agency ultimately disclosed more than 2,000 pages. Kansas challenged the search, expressing incredulity that a single office allegedly had all responsive records. The court noted that "defendant has explained that while other agencies helped with the closure plan, ODF was the hub. It oversaw all communication about the project " both within and outside defendant. While it's possible that other information may reside in another department's system, FOIA does not require an agency to search everywhere " only those places reasonably likely to have relevant information. Since ODP coordinated the entire GTMO closure effort, it is the only place likely to have relevant information." Kansas faulted the search because it did not use keywords like "detain," "transfer," and "survey." The court found that not using these terms was a reasonable decision on the part of the agency. The court pointed out that "any search for the word 'detain' likely would produce a vast load of unresponsive documents. And defendant has explained that 'transfer' and 'survey' are not terms unique to the GTMO closure process, which is why defendant chose not to use those terms." Addressing the agency's exemption claims, Kansas argued that the deliberative process privilege could be outweighed by a showing of need on the part of the requester, based on In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), a case in which the D.C. Circuit recognized that a grand jury's need for privileged documents could overcome a deliberative process privilege claim. However, here, the court observed that "plaintiff has asserted a FOIA claim. It is not a grand jury subpoenaing documents. So, plaintiff's need for the information plays no role in the court's determination whether defendant has discharged its FOIA obligations." The court found that the agency had not sufficiently explained its Exemption 5 claims for several documents that dealt with possible costs. Noting the information could include raw data that would not be protected or cost estimates that would be protected, the court indicated that "while the withheld documents may include estimates and assumptions that defendant made when projecting costs, the court cannot conclude with reasonable certainty that the documents contain that kind of information." To help the court make such a determination, it ordered the agency to provide the records for in camera review. Finding several memos dealing with costs were protected by Exemption 5, the court rejected the agency's claim that they were also protected by Exemption 7(E) (investigative methods and techniques) and Exemption 7(F). The court pointed out that "law enforcement costs do not implicate the harms 7(E) and 7(F) are designed to protect. Costs, without copious amounts of detail, cannot disclose law enforcement techniques, procedures, or guidelines in a way that could allow someone to circumvent the law. Nor would the disclosure of costs put anyone's life or physical safety in danger. Indeed, the court can find no case where a court protected information about costs under Exemption 7(E) or 7(F)."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(E) - Investigative methods or techniques, Exemption 7(F) - Harm to safety of any person
Opinion/Order [34]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-07-221COMPLAINT with trial location of Topeka ( Filing fee $400, Internet Payment Receipt Number AKSDC-3895415.), filed by Kansas, State of,. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Schmidt, Derek) (Entered: 07/22/2016)
2016-07-222CIVIL COVER SHEET by Plaintiff Kansas, State of,. (Schmidt, Derek) (Entered: 07/22/2016)
2016-07-22NOTICE OF JUDGE ASSIGNMENT: Case assigned to District Judge Daniel D. Crabtree and Magistrate Judge K. Gary Sebelius for all proceedings. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (daw) (Entered: 07/22/2016)
2016-07-22SUMMONS ISSUED as to United States Department of Defense. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry), SUMMONS ISSUED as to United States Department of Defense, U.S. Attorney and U.S. Attorney General (issued to Attorney for service) (daw) (Entered: 07/22/2016)
2016-08-263SUMMONS RETURNED EXECUTED -- Certified Mail by Kansas, State of, upon U.S. Attorney for the District of Kansas, Department of Defense, and U.S. Attorney General (Clark, Bryan) (Entered: 08/26/2016)
2016-08-264ANSWER to Complaint by United States Department of Defense.(Bernie, Andrew) (Entered: 08/26/2016)
2016-08-305INITIAL ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 11/2/2016 at 1:30 PM by telephone before Magistrate Judge K. Gary Sebelius. Participants shall dial in to the conference call at 888-363-4749, then enter access code 3977627# and follow the prompts to join the call as a participant. Report of Parties' Planning Meeting and copies of Rule 26 Initial Disclosures due to the magistrate judge by 10/26/2016. Signed by Magistrate Judge K. Gary Sebelius on 8/30/16. (bh) (Entered: 08/30/2016)
2016-09-156MOTION for Judgment on the Pleadings and Request for Expedited Consideration by Plaintiff Kansas, State of, (Schmidt, Derek) (Entered: 09/15/2016)
2016-09-157MEMORANDUM IN SUPPORT of 6 MOTION for Judgment on the Pleadings and Request for Expedited Consideration by Plaintiff Kansas, State of, (Attachments: # 1 Exhibit A)(Schmidt, Derek) (Entered: 09/15/2016)
2016-09-308NOTICE of Withdrawal of Motion for Partial Judgment on the Pleadings by Kansas, State of, re 7 Memorandum in Support of Motion, 6 MOTION for Judgment on the Pleadings and Request for Expedited Consideration (Schmidt, Derek) (Entered: 09/30/2016)
2016-10-059ORDER withdrawing Motion for Partial Judgment on the Pleadings and Request for Expedited Consideration (Doc. 6) and Memorandum in Support (Doc. 7) in light of Notice of Withdrawal (Doc. 8). Signed by District Judge Daniel D. Crabtree on 10/05/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mig) (Entered: 10/05/2016)
2016-11-0210MINUTE ENTRY for proceedings held before Magistrate Judge K. Gary Sebelius: SCHEDULING CONFERENCE held on 11/2/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bh) (Entered: 11/02/2016)
2016-11-0411SCHEDULING ORDER: Dispositive motion deadline 5/1/2017. Status Conference set for 1/18/2017 at 3:00 PM by telephone before Magistrate Judge K. Gary Sebelius. Participants shall dial in to the conference call at 888-363-4749, enter access code 3977627#, and follow the prompts to join the call as a participant. See text of order for additional deadlines. Signed by Magistrate Judge K. Gary Sebelius on 11/4/16. (bh) (Entered: 11/04/2016)
2017-01-1112ORDER Canceling Status Conference. The parties have informed the court that the January 18, 2017 status conference is no longer necessary. Accordingly, the court cancels the status conference. Signed by Magistrate Judge K. Gary Sebelius on 1/11/2017. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(bh) (Entered: 01/11/2017)
2017-03-1313Unopposed MOTION for extension of time to Complete Processing of Responsive Records by Defendant United States Department of Defense (referred to Magistrate Judge K. Gary Sebelius) (Bernie, Andrew) (Entered: 03/13/2017)
2017-03-1414ORDER granting 13 Unopposed Motion for Extension of Time. Defendant has up to and including March 17, 2017, to complete the processing of responsive records. Signed by Magistrate Judge K. Gary Sebelius on 3/14/17. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bh) (Entered: 03/14/2017)
2017-04-2015Unopposed MOTION for extension of time to File Motion for Summary Judgment by Defendant United States Department of Defense (referred to Magistrate Judge K. Gary Sebelius) (Bernie, Andrew) (Entered: 04/20/2017)
2017-04-2016ORDER granting 15 Unopposed Motion for Extension of Time to File Dispositive motions. All potentially dispositive motions must be filed by May 22, 2017. Signed by Magistrate Judge K. Gary Sebelius on 4/20/17. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bh) (Entered: 04/20/2017)
2017-05-1217Unopposed MOTION for extension of time to file Motion for Summary Judgment by Defendant United States Department of Defense (referred to Magistrate Judge K. Gary Sebelius) (Bernie, Andrew) (Entered: 05/12/2017)
2017-05-1618ORDER granting 17 Unopposed Motion for Extension of Time to File Summary Judgment Motions. All summary judgment motions shall be filed by June 21, 2017. Signed by Magistrate Judge K. Gary Sebelius on 5/16/17. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bh) (Entered: 05/16/2017)
2017-06-2119Unopposed MOTION for extension of time to file Motion for Summary Judgment by Defendant United States Department of Defense (referred to Magistrate Judge K. Gary Sebelius) (Bernie, Andrew) (Entered: 06/21/2017)
2017-06-2120ORDER granting 19 Unopposed Motion for Extension of Time. All summary judgment motions shall be filed by July 12, 2017. Signed by Magistrate Judge K. Gary Sebelius on 6/21/17. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(bh) (Entered: 06/21/2017)
2017-07-1221MOTION for Summary Judgment by Defendant United States Department of Defense (Bernie, Andrew) (Entered: 07/12/2017)
2017-07-1222MEMORANDUM IN SUPPORT of 21 MOTION for Summary Judgment by Defendant United States Department of Defense (Attachments: # 1 Herrington Declaration and Exhibits 1 and 2 to Herrington Declaration)(Bernie, Andrew) (Entered: 07/12/2017)
2017-07-3123Unopposed MOTION for Extension of Time to File Response as to 21 MOTION for Summary Judgment by Plaintiff Kansas, State of, (referred to Magistrate Judge K. Gary Sebelius) (Clark, Bryan) (Entered: 07/31/2017)
2017-07-31MOTION REFERRAL to Magistrate Judge REMOVED as to: 23 Unopposed MOTION for Extension of Time to File Response as to 21 MOTION for Summary Judgment . The motion will be resolved by the District Judge.(bh) (Entered: 07/31/2017)
2017-08-0124ORDER granting 23 Motion for Extension of Time to File Response re 21 MOTION for Summary Judgment . Response deadline extended to 9/1/2017. Signed by District Judge Daniel D. Crabtree on 08/01/2017. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mig) (Entered: 08/01/2017)
2017-08-3025Unopposed MOTION for Extension of Time to File Response as to 21 MOTION for Summary Judgment by Plaintiff State of Kansas (Clark, Bryan) (Entered: 08/30/2017)
2017-08-30MOTION REFERRAL to Magistrate Judge REMOVED as to: 25 Unopposed MOTION for Extension of Time to File Response as to 21 MOTION for Summary Judgment . The motion will be resolved by the District Judge.(bh) (Entered: 08/30/2017)
2017-08-3026ORDER granting 25 Motion for Extension of Time to File Response re 21 MOTION for Summary Judgment . Response deadline extended to 10/2/2017. Signed by District Judge Daniel D. Crabtree on 08/30/2017. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mig) (Entered: 08/30/2017)
2017-10-0227RESPONSE by Plaintiff Kansas, State of, re 21 MOTION for Summary Judgment (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C)(Clark, Bryan) (Entered: 10/02/2017)
2017-10-1128Unopposed MOTION for Extension of Time to File Reply as to 21 MOTION for Summary Judgment by Defendant United States Department of Defense (Bernie, Andrew) (Entered: 10/11/2017)
2017-10-11MOTION REFERRAL to Magistrate Judge REMOVED as to: 28 Unopposed MOTION for Extension of Time to File Reply as to 21 MOTION for Summary Judgment . The motion will be resolved by the District Judge.(bh) (Entered: 10/11/2017)
2017-10-1229ORDER granting 28 Motion for Extension of Time to File Reply re 21 MOTION for Summary Judgment . Reply deadline extended to 10/23/2017. Signed by District Judge Daniel D. Crabtree on 10/12/2017. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mig) (Entered: 10/12/2017)
2017-10-2330REPLY TO RESPONSE TO MOTION by Defendant United States Department of Defense re: 21 MOTION for Summary Judgment (Attachments: # 1 Supplemental Declaration of Mark Herrington)(Bernie, Andrew) (Entered: 10/23/2017)
2018-03-2131MEMORANDUM AND ORDER granting in part and denying in part 21 Motion for Summary Judgment. See Order for details. Signed by District Judge Daniel D. Crabtree on 03/21/2018. (mig) (Entered: 03/21/2018)
2018-04-0432NOTICE of Submission of Documents for In Camera Inspection by United States Department of Defense (Attachments: # 1 Supplemental Declaration of Mark Herrington)(Bernie, Andrew) (Entered: 04/04/2018)
2018-04-1833RESPONSE to 32 Notice (Other) re: Filing of Documents for Ex Parte In Camera Inspection by Plaintiff Kansas, State of. (Clark, Bryan) (Entered: 04/18/2018)
2018-07-2334MEMORANDUM AND ORDER granting in part and denying in part 21 Motion for Summary Judgment. See Order for details. Telephone Status Conference set for 8/9/2018 at 01:30 PM - CONFERENCE LINE 1-888-363-4749, ACCESS CODE 8354715 before District Judge Daniel D. Crabtree. Signed by District Judge Daniel D. Crabtree on 07/23/2018. (mig) (Entered: 07/23/2018)
2018-08-0235WITHDRAWAL OF COUNSEL by Stephen R. McAllister and ENTRY OF APPEARANCE OF SUBSTITUTED COUNSEL by Toby Crouse on behalf of Kansas, State of (Crouse, Toby) (Entered: 08/02/2018)
2018-08-0936MINUTE ENTRY for proceedings held before District Judge Daniel D. Crabtree: TELEPHONE STATUS CONFERENCE held on 8/9/2018. (Court Reporter Sherry Harris.) (mig) (Entered: 08/14/2018)
2018-08-1437ORDER - The court conducted a status conference with counsel by telephone on August 9, 2018. After considering the parties' recommendations, the court has decided to give the parties 45 days to try to resolve the remaining disputes in the case. The court thus orders the parties to file one mutually acceptable status report no later than September 24, 2018. If the parties disagree about aspects of the report, their filing should reflect each parties' position in the report they file. If the parties do not succeed in their efforts to resolve the remaining disputes, the court promptly will establish a schedule to bring those issues to the court for decision. If the parties wish to make a proposal (or proposals) about the means and schedule they believe the court should adopt, they should include the proposal in their status report. IT IS SO ORDERED. Signed by District Judge Daniel D. Crabtree on 08/14/2018. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(mig) (Entered: 08/14/2018)
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