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Case TitleKEEPING GOVERNMENT BEHOLDEN, INC. v. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv01569
Date Filed2017-08-02
Date ClosedOpen
JudgeJudge Ketanji Brown Jackson
PlaintiffKEEPING GOVERNMENT BEHOLDEN, INC.
Case DescriptionKeeping Government Beholden submitted FOIA requests to the FBI for records concerning its records management and retention policies. The agency told Keeping Government Beholden that several requests were too vague. The organization appealed that decision to the Office of Information Policy. After hearing nothing further from the agencies, Keeping Government Beholden filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantDEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [18]
FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that Keeping Government Beholden failed to state a claim when it asked Jackson to allow it to add an expedited processing charge pursuant to the Federal Courts Civil Priorities Act to its FOIA suit against the FBI for emails sent or received by former FBI Director James Comey between January 1, 2017 and May 9, 2017 containing the word transitory. Keeping Government Beholden argued that 28 U.S.C. § 1657(a) allowed litigants to ask a federal court to expedite its review of a case for good cause. Rejecting the claim, Jackson noted that "Plaintiff has not clearly demonstrated that section 1657(a) is a generally acceptable route for seeking expedition of the processing of documents under the FOIA. By its terms, that statute authorizes a court to 'expedite the consideration of any action' filed pursuant to various provisions and says nothing about a court's authority to order an agency to expedite its own processing of records under FOIA." Further, Jackson pointed out that FOIA already contained a specific provision for requesting and litigating expedited processing. "By contrast," she explained, "the FOIA itself expressly addresses that authorized procedure for the expedition of the agency's processing obligations. . .The fact that Congress has provided an avenue for requesters seeking expedited processing for an agency and also judicial review of that agency decision, renders dubious Plaintiff's contention that FOIA requesters can do an end-run around the prescribed procedures by requesting that a court order the agency to expedite its document processing under 28 U.S.C. § 1657(a) instead." Keeping Government Beholden pointed to two cases in which courts suggested that court-ordered expedition was available. Finding neither case supported Keeping Government Beholden's claim, Jackson observed that "Plaintiff here has not made any similar showing of significant need, much less the kind of urgent need that could possibly justify this Court's application of section 1657(a) to excuse Plaintiff's failure to seek expedition directly from the agency. There is nothing about the requested records themselves that indicates that fast processing is warranted; in fact, Plaintiff appears to acknowledge that very little is even known about the content of these records." She indicated that "moreover, the fact that these particular records may be of public interest at the moment is not, standing alone, sufficient to justify expedited processing of Plaintiff request. And this is especially so where, as here, there are other potential avenues for public release of the same information that Plaintiff has requested." Jackson also rejected Keeping Government Beholden's assertion that the FBI might potentially destroy the records. She pointed out that the FBI "has already located all documents potentially responsive to [the request] and that those documents have been preserved. Thus, rather than creating additional delay by continuing to press for expedition under a statutory provision that is not plainly applicable to the instant circumstances, this Court suggests that Plaintiff engage with the government to negotiate a processing and production schedule that is more generous than the one that the government intends to follow."
Issues: Expedited processing, Litigation - Jurisdiction - Failure to State a Claim
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-08-021COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5059599) filed by Keeping Government Beholden, Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(McClanahan, Kelly) (Entered: 08/02/2017)
2017-08-04Case Assigned to Judge Ketanji Brown Jackson. (zsb) (Entered: 08/04/2017)
2017-08-042SUMMONS (3) Issued Electronically as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 08/04/2017)
2017-08-143GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 8/14/2017. (lckbj1) (Entered: 08/14/2017)
2017-08-184RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/10/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 9/9/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/9/17., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 8/9/2017 (McClanahan, Kelly) (Entered: 08/18/2017)
2017-09-125NOTICE of Appearance by Jason Todd Cohen on behalf of DEPARTMENT OF JUSTICE (Cohen, Jason) (Entered: 09/12/2017)
2017-09-136ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Cohen, Jason) (Entered: 09/13/2017)
2017-09-15MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, on or before 9/29/2017. Signed by Judge Ketanji Brown Jackson on 09/15/2017. (lckbj1) (Entered: 09/15/2017)
2017-09-157MOTION to Clarify Deadline for Defendant to Answer or Otherwise Respond to Complaint by DEPARTMENT OF JUSTICE (Attachments: # 1 Attachment 1 - Email Correspondence re Answer Deadline, # 2 Proposed Order)(Cohen, Jason) (Entered: 09/15/2017)
2017-09-188Memorandum in opposition to re 7 MOTION to Clarify Deadline for Defendant to Answer or Otherwise Respond to Complaint filed by KEEPING GOVERNMENT BEHOLDEN, INC.. (Attachments: # 1 Exhibit A - McClanahan declaration, # 2 Exhibit B - Clemmons motion, # 3 Exhibit C - Clemmons docket, # 4 Text of Proposed Order)(McClanahan, Kelly) (Entered: 09/18/2017)
2017-09-18MINUTE ORDER. The government has filed a 7 Motion to Clarify, in which it seeks clarification that the correct answer deadline was September 13, 2017. Having reviewed the government's motion and the Plaintiff's 8 Opposition, the Court will deem the government's 6 Answer to be timely, and will accept it. The government's 7 Motion is MOOT. The parties' deadline to submit a joint proposed schedule for briefing or disclosure remains September 29, 2017. Signed by Judge Ketanji Brown Jackson on September 18, 2017. (lckbj2) (Entered: 09/18/2017)
2017-09-299Joint MOTION for Extension of Time to File Joint Proposed Schedule by KEEPING GOVERNMENT BEHOLDEN, INC. (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 09/29/2017)
2017-10-03MINUTE ORDER granting, for good cause shown, 9 Motion for Extension of Time to File Proposed Briefing Schedule, nunc pro tunc. It is hereby ORDERED that the parties' proposed briefing schedule is due on or before 10/3/2017. Any further requests for extensions of time must comply with 3 the Court's General Order and Guidelines for Civil Cases. Counsel is specifically directed to Section 5 of the Appendix to the General Order and Guidelines. Signed by Judge Ketanji Brown Jackson on 10/3/2017. (lckbj1, ) (Entered: 10/03/2017)
2017-10-0310PROPOSED BRIEFING SCHEDULE and Production Schedule by KEEPING GOVERNMENT BEHOLDEN, INC.. (McClanahan, Kelly) (Entered: 10/03/2017)
2017-10-06MINUTE ORDER setting a Status Conference for 10/18/2017 at 11:00 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 10/6/2017. (lckbj1) (Entered: 10/06/2017)
2017-10-1011Consent MOTION to Continue Change Date of Hearing by DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Cohen, Jason) Modified event title on 10/11/2017 (znmw). (Entered: 10/10/2017)
2017-10-1012RESPONSE re 11 Consent MOTION to Change Date of Hearing filed by KEEPING GOVERNMENT BEHOLDEN, INC.. (McClanahan, Kelly) (Entered: 10/10/2017)
2017-10-11MINUTE ORDER granting 11 Motion to Change Date of Hearing. It is hereby ORDERED that the Status Conference currently set for 10/18/2017 is VACATED and RESET for 10/26/2017 at 02:00 PM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 10/11/2017. (lckbj1) (Entered: 10/11/2017)
2017-10-26Minute Entry for proceedings held before Judge Ketanji Brown Jackson. Status Conference held on 10/26/2017. Plaintiff's Briefing Schedule due by 11/1/2017; Response due 11/15/2017; Reply due 11/20/2017. Plaintiff's Motion to Compel due by 11/14/2017; Response due by 12/22/2017; Reply due by 1/12/2018. Scheduling order forthcoming via Chambers. (Court Reporter: Barbara DeVico) (jd) (Entered: 10/26/2017)
2017-10-27MINUTE ORDER. The parties appeared before the Court on October 26, 2017, for a status conference regarding this FOIA case. Upon consideration of the parties representations and dispute over the production schedule, it is hereby ORDERED that, on or before November 30, 2017, the FBI and OIP shall produce all of the responsive, non-exempt documents that pertain to Counts 6 and 7 of the 1 Complaint. It is FURTHER ORDERED that Plaintiff shall submit a proposed disclosure schedule regarding the FBIs production of the documents at issue in Count 5, along with its reasons for any request for expedition, on or before November 1, 2017; the FBI shall file its response thereto on or before November 15, 2017; and Plaintiff shall file any reply on or before November 20, 2017. It is FURTHER ORDERED that Plaintiff shall file any motion pertaining to the preservation of the documents at issue in Count 3 on or before November 14, 2017; the FBI shall file its response thereto on or before December 22, 2017; and Plaintiff shall file any reply on or before January 12, 2018. Signed by Judge Ketanji Brown Jackson on 10/27/2017. (lckbj1) (Entered: 10/27/2017)
2017-10-30ENTERED IN ERROR.....MINUTE ORDER. The parties appeared before the Court on October 26, 2017, for a status conference regarding this FOIA case. Upon consideration of the parties representations and dispute over the production schedule, it is hereby ORDERED that, on or before November 30, 2017, the FBI and OIP shall produce all of the responsive, non-exempt documents that pertain to Counts 6 and 7 of the 1 Complaint. It is FURTHER ORDERED that Plaintiff shall submit a proposed disclosure schedule regarding the FBIs production of the documents at issue in Count 5, along with its reasons for any request for expedition, on or before November 1, 2017; the FBI shall file its response thereto on or before November 15, 2017; and Plaintiff shall file any reply on or before November 20, 2017. It is FURTHER ORDERED that Plaintiff shall file any motion pertaining to the preservation of the documents at issue in Count 3 on or before November 14, 2017; the FBI shall file its response thereto on or before December 22, 2017; and Plaintiff shall file any reply on or before January 12, 2018. Signed by Judge Ketanji Brown Jackson on 10/30/2017. (lckbj2) Modified on 10/30/2017 to enter in error as duplicate.(ztnr) (Entered: 10/30/2017)
2017-11-0113MOTION to Expedite Consideration of Count 5 by KEEPING GOVERNMENT BEHOLDEN, INC. (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/02/2017)
2017-11-1414MOTION for Order to Preserve Records by KEEPING GOVERNMENT BEHOLDEN, INC. (Attachments: # 1 Exhibit A - RM Manual (part 1), # 2 Exhibit A - RM Manual (part 2), # 3 Exhibit B - FBI E-Mail Policy, # 4 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/15/2017)
2017-11-1515ENTERED IN ERROR.....Memorandum in opposition to re 13 MOTION to Expedite Consideration of Count 5 filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy)(Cohen, Jason) Modified on 12/20/2017 (jf). (Entered: 11/15/2017)
2017-11-2016TRANSCRIPT OF PROCEEDINGS before Judge Ketanji Brown Jackson held on 10-26-17; Page Numbers: 1-69. Date of Issuance:11-20-17. Court Reporter/Transcriber Barbara DeVico, Telephone number 202-354-3118, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 12/11/2017. Redacted Transcript Deadline set for 12/21/2017. Release of Transcript Restriction set for 2/18/2018.(DeVico, Barbara) (Entered: 11/20/2017)
2017-11-2117REPLY to opposition to motion re 13 MOTION to Expedite Consideration of Count 5 filed by KEEPING GOVERNMENT BEHOLDEN, INC.. (Attachments: # 1 Exhibit A - Seavey status email, # 2 Exhibit B - Boundaoui 3d JSR, # 3 Exhibit C - Boundaoui 4th JSR, # 4 Exhibit D - Lardner JSR, # 5 Exhibit E - ACLU J. Stip., # 6 Exhibit F - NDLON Order, # 7 Exhibit G - Boundaoui 9-26 transcript, # 8 Exhibit H - Boundaoui 9-20 transcript, # 9 Exhibit I - NSC transcript)(McClanahan, Kelly) (Entered: 11/21/2017)
2017-12-0118MEMORANDUM OPINION AND ORDER denying 13 Motion to Expedite. Signed by Judge Ketanji Brown Jackson on 12/1/2017. (lckbj2) Modified event title on 12/4/2017 (znmw). (Entered: 12/01/2017)
2017-12-20NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 15 Memorandum in Opposition was entered in error and counsel was instructed to refile said pleading. (See LCvR 5.4(a) (Sept. 9, 2017 amend. "All documents to be filed with the Court must be filed by electronic text-searchable means) (jf) (Entered: 12/20/2017)
2017-12-2019Memorandum in opposition to re 13 MOTION to Expedite Consideration of Count 5 (Refiled ECF No. 15) filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy dated Nov. 15, 2017)(Cohen, Jason) (Entered: 12/20/2017)
2017-12-2220Memorandum in opposition to re 14 MOTION for Order to Preserve Records filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Declaration of David M. Hardy)(Cohen, Jason) (Entered: 12/22/2017)
2018-01-1221REPLY to opposition to motion re 14 MOTION for Order to Preserve Records filed by KEEPING GOVERNMENT BEHOLDEN, INC.. (Attachments: # 1 Exhibit C - Colgan Hardy Declaration)(McClanahan, Kelly) (Entered: 01/12/2018)
2018-09-3022ORDER, denying KGBs motion (ECF No. 14)for a preservation order. Signed by Judge Ketanji Brown Jackson on 9/30/2018. (lckbj2) (Entered: 09/30/2018)
2018-10-15MINUTE ORDER. It is hereby ORDERED that the parties shall file a joint report regarding the processing and production of records responsive to Plaintiff's FOIA requests on or before 10/29/2018, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 10/15/2018. (lckbj1) (Entered: 10/15/2018)
2018-10-2923PROPOSED BRIEFING SCHEDULE by DEPARTMENT OF JUSTICE. (Cohen, Jason) (Entered: 10/29/2018)
2018-11-0624ORDER setting briefing schedule for summary judgment: Defendant's Motion for Summary Judgment shall be served on or before 2/1/2019; Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be served on or before 3/4/2019; Defendant's Reply and Cross-Motion Opposition shall be served on or before 4/3/2019; Plaintiff's Cross-Motion Reply shall be served on or before 4/19/2019; briefs shall be filed as a batch within three (3) business days of the service of the last reply brief authorized by this Minute Order, but in any event no later than the Final Filing Deadline of 5/24/2019. Signed by Judge Ketanji Brown Jackson on 11/6/2018. (lckbj1) (Entered: 11/06/2018)
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