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Case TitleDAILY CALLER NEWS FOUNDATION v. FEDERAL BUREAU OF INVESTIGATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv01833
Date Filed2018-08-06
Date ClosedOpen
JudgeJudge Colleen Kollar-Kotelly
PlaintiffDAILY CALLER NEWS FOUNDATION
Case DescriptionThe Daily Caller Foundation submitted a FOIA request to the FBI for records concerning Daniel Richman, a Special Government Employee hired by former FBI Director James Comey. DCF also requested a fee waiver and expedited processing. The FBI acknowledged receipt of the request and granted DCF news media fee status and told DCF that its request for a fee waiver was pending. After hearing nothing further from the agency, DCF filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantFEDERAL BUREAU OF INVESTIGATION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [21]
FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the FBI has not shown that it is entitled to an Open America stay to delay processing of the Daily Caller News Foundation's FOIA request for records pertaining to FBI Special Government Employee Daniel Richman largely because she accepted the Daily Caller News Foundation's statistics on the agency's recent backlog over those presented by the agency itself. DCNF had also requested expedited processing. The agency denied DCNF's request for expedited processing and told DCNF that it had located 11,000 potentially responsive records and told DCNF that if it was willing to narrow the scope of the request it might qualify for a smaller processing queue. DCNF indicated that it did not need any of Richman's final work product, which narrowed the universe of potentially responsive records to 7,000. After DCNF filed suit, the agency argued that it could not respond to the request within the statutory time limit because of its increasing number of FOIA requests and FOIA-related litigation and asked Kollar-Kotelly for a stay until December 2020. The FBI contended that a "statistical analysis show[ed] that in fiscal years 2011-2015, the FBI received an average of approximately 19,400 requests, but starting in F 2016, the number of requests grew18 percent, and in FY 2017, 'the growth trend increased at an even more accelerated pace' with an increase of 23 percent over FY 2016, and a subsequent 18 percent rise in FY 2018." DCNF argued that the FBI's statistics included both FOIA and Privacy Act requests and that the increase in requests was largely due to a change in administration. DCNF presented its own statistical analysis covering 2005-2017 showing that "the FBI has received fewer FOIA requests during the first two years of the Trump election and Administration than it did under the first two years of the Obama election and administration" and that the "backlog of FOIA requests has only gotten worse." DCNF produced a blizzard of statistics, noting that in 2008 the FBI received 17,241 requests " the highest number in the past decade " which was 4,732 more requests than had been received the previous year. However, in 2016, the FBI received 15,202 requests, which was 2,039 fewer than 2008 and only 2,271 more than the previous year. DCNF argued that the agency's level of requests had remained more or less constant. Agreeing with DCNF's statistical analysis, Kollar-Kotelly noted that "the statistical analysis cited by Defendant shows a steady increase in FOIPA requests (about 20 percent annually) from 2016-2018. Accordingly, the increase in the amount of FOIA requests cannot be said to be unforeseen or remarkable." While the FBI argued that the requests it received had become more complex over time and required more resources, Kollar-Kotelly again sided with DCNF, even though at one point she referred to its claims as "surmises." She pointed out that "the FBI provides no evidence to support these claims other than anecdotal evidence, and accordingly, there is not enough information from which the Court could conclude that the overall complexity of the FBI's workload has increased over time or that technological advances have slowed the process." Kollar-Kotelly also agreed with DCNF that the FBI's FOIA-related litigation had not increased substantially from its normal rate. She also indicated that while the FBI's backlog in 2008-2009 stood at 1,400 requests, its backlog in 2016 and 2017 had risen to 4,400 requests. She denied the agency's request for a stay but rejected DCNF's suggestion that the agency be required to process its FOIA request at a rate of 1,200 pages a month, opting instead for the traditional rate of 500 pages a month.
Issues: Delay - Stay of proceedings
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-08-061COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 400 receipt number 0090-5622622) filed by DAILY CALLER NEWS FOUNDATION. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet, # 4 Summons FBI, # 5 Summons AG, # 6 Summons Clerk)(Bolinder, Eric) (Entered: 08/06/2018)
2018-08-062Corporate Disclosure Statement by DAILY CALLER NEWS FOUNDATION. (Bolinder, Eric) (Entered: 08/06/2018)
2018-08-063NOTICE of Appearance by Lee A. Steven on behalf of DAILY CALLER NEWS FOUNDATION (Steven, Lee) (Entered: 08/06/2018)
2018-08-08Case Assigned to Judge Colleen Kollar-Kotelly. (zsb) (Entered: 08/08/2018)
2018-08-084ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 08/08/18. (DM) (Entered: 08/08/2018)
2018-08-105SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 08/10/2018)
2018-08-176RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/14/2018. Answer due for ALL FEDERAL DEFENDANTS by 9/13/2018. (Bolinder, Eric) (Entered: 08/17/2018)
2018-08-177RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/14/2018. (Bolinder, Eric) (Entered: 08/17/2018)
2018-08-178RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 8/14/2018 (Bolinder, Eric) (Entered: 08/17/2018)
2018-09-14MINUTE ORDER: The Court notes that Defendant was served with Plaintiff's 1 FOIA complaint on August 14, 2018. Defendant's Answer to Plaintiff's 1 Complaint was due September 13, 2018. The Court has not received Defendant's Answer. The Court ORDERS Defendant to file an Answer by SEPTEMBER 17, 2018. Signed by Judge Colleen Kollar-Kotelly on 9-14-2018. (lcckk3) (Entered: 09/14/2018)
2018-09-149NOTICE of Appearance by Jason Todd Cohen on behalf of FEDERAL BUREAU OF INVESTIGATION (Cohen, Jason) (Entered: 09/14/2018)
2018-09-1710Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Daniel F. Van Horn)(Cohen, Jason) (Entered: 09/17/2018)
2018-09-17MINUTE ORDER: The Court is in receipt of Defendant's 10 Unopposed Motion for Extension of Time to Answer or Otherwise Respond to Complaint. According to the docket, Defendant was served on August 14, 2018, resulting in Defendant's Answer being due on September 13, 2018. In its Motion, Defendant explains that, while the docket indicates that service was executed via certified mail on August 14, 2018, the docket is incorrect. As a result of errors in the way the service envelope was addressed and handled, service was actually not perfected until September 13, 2018. Attached to Defendant's 10 Motion is a Declaration by Assistant United States Attorney for the District of Columbia Daniel Horn attesting to this. As service was not perfected until September 13, 2018, Defendant's Answer is not due until October 13, 2018. Defendant requests until October 15, 2018 to file its Answer. Because the Motion for an extension of time is unopposed and made in good faith, the Court GRANTS Defendant's 10 Motion. The Court ORDERS Defendant to answer Plaintiff's 1 Complaint by OCTOBER 15, 2018. Signed by Judge Colleen Kollar-Kotelly on 9-17-2018. (lcckk3) (Entered: 09/17/2018)
2018-09-17Set/Reset Deadlines: Answer due by 10/15/2018. (dot) (Entered: 09/19/2018)
2018-10-1511ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION.(Cohen, Jason) (Entered: 10/15/2018)
2018-10-1512ORDER: The Parties shall file a Joint Status Report proposing a schedule for proceeding in this matter by 10/29/2018. See Order for details. Signed by Judge Colleen Kollar-Kotelly on 10/15/18. (DM) (Entered: 10/15/2018)
2018-10-15Set/Reset Deadlines: Joint Status Report proposing a schedule for proceeding in this matter due by 10/29/2018. (dot) (Entered: 10/17/2018)
2018-10-2913Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATION. (Cohen, Jason) (Entered: 10/29/2018)
2018-10-29MINUTE ORDER: The Court is in receipt of the parties' 13 Joint Status Report. The parties report that, even after narrowing the scope of records potentially responsive to Plaintiff's FOIA request, there remain approximately 7,000 pages of responsive records, well above the FBI's large que cutoff. Accordingly, Defendant has notified Plaintiff that, due to workload and litigation constraints, it intends to file a motion for an Open America stay. The parties report that they conferred but were unable to agree on a briefing schedule. Due to pre-arranged absences from the office and prior litigation commitments, Defendant requests that briefing on the Open America stay begin on December 7, 2018 and conclude by January 24, 2019. Plaintiff argues that, as a news organization, it needs access to the records as soon as possible. Accordingly, Plaintiff asks that briefing begin on November 21, 2018 and conclude by December 19, 2018. The Court will set a compromise briefing schedule. Defendant's Motion to Stay is due by NOVEMBER 30, 2018. Plaintiff's Opposition is due by DECEMBER 21, 2018. And, Defendant's Reply is due by JANUARY 9, 2018. Signed by Judge Colleen Kollar-Kotelly on 10/29/2018. (lcckk3) (Entered: 10/29/2018)
2018-10-29Set/Reset Deadlines: Defendant's Motion to Stay due by 11/30/2018. Response due by 12/21/2018 Reply due by 1/9/2019. (Entered: 11/01/2018)
2018-11-3014MOTION to Stay by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Declaration of David M. Hardy)(Cohen, Jason) (Entered: 11/30/2018)
2018-12-2115Memorandum in opposition to re 14 MOTION to Stay filed by DAILY CALLER NEWS FOUNDATION. (Attachments: # 1 Declaration of Eric R. Bolinder, # 2 Text of Proposed Order)(Bolinder, Eric) (Entered: 12/21/2018)
2019-01-0816MOTION to Stay by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Coles-Huff, Doris) (Entered: 01/08/2019)
2019-01-0817ORDER granting Defendant's 16 Motion to Stay all Proceedings due to lapse of appropriations. Signed by Judge Colleen Kollar-Kotelly on 1/8/2019. (DM) (Entered: 01/08/2019)
2019-01-2818NOTICE of Restored Government Funding by FEDERAL BUREAU OF INVESTIGATION (Cohen, Jason) (Entered: 01/28/2019)
2019-02-1319REPLY to opposition to motion re 14 MOTION to Stay filed by FEDERAL BUREAU OF INVESTIGATION. (Cohen, Jason) (Entered: 02/13/2019)
2019-06-0720ORDER denying 14 Motion to Stay; Status Report due by 6/28/2019. See Order for details. Signed by Judge Colleen Kollar-Kotelly on 06/07/2019. (DM) (Entered: 06/07/2019)
2019-06-0721MEMORANDUM OPINION Re: Motion for an Open America Stay. A separate Order has been filed. Signed by Judge Colleen Kollar-Kotelly on 06/7/2019. (DM) (Entered: 06/07/2019)
2019-06-2822Joint STATUS REPORT by DAILY CALLER NEWS FOUNDATION. (Bolinder, Eric) (Entered: 06/28/2019)
2019-07-01MINUTE ORDER (Paperless). On June 28, 2019, the parties filed their 22 Joint Status Report, as directed by this Court. Plaintiff Daily Caller News Foundation (Daily Caller) and Defendant Federal Bureau of Investigation (FBI) have agreed upon a categorization for the documents which are to be produced by the FBI and an order of production. The FBI will process 500 pages per month. The parties are uncertain at this time whether a Vaughn index will be necessary Plaintiff Daily Caller proposed that the first production occur no later than July 31, 2019, while Defendant FBI proposed a first production date of August 31, 2019. The parties agree that joint status reports should be submitted to the Court 90 days after the first document production and every 90 days thereafter. The Court ORDERS that the first production occur no later than August 15, 2019, and the parties' next Joint Status Report shall be due by November 13, 2019. Signed by Judge Colleen Kollar-Kotelly on 07/01/2019. (DM) (Entered: 07/01/2019)
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