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Case TitleBUZZFEED, INC. et al v. FEDERAL BUREAU OF INVESTIGATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv02567
Date Filed2018-11-07
Date Closed2020-05-07
JudgeChief Judge Beryl A. Howell
PlaintiffBUZZFEED, INC.
PlaintiffJASON LEOPOLD
Case DescriptionBuzzFeed reporter Jason Leopold submitted a FOIA request to the FBI for records concerning the final report and investigation of allegations against Supreme Court nominee Brett Kavanaugh. Leopold also requested expedited processing. The agency acknowledged receipt of the request and granted Leopold's request for expedited processing. The agency told Leopold that his request qualified for unusual circumstances and would take more time to process. After hearing nothing further from the agency, Leopold filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees, Adequacy - Search

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 [31]
FOIA Project Annotation: Judge Beryl Howell has ruled that the FBI's limited supplemental background investigation of Brett Kavanaugh while his nomination to the Supreme Court was temporarily stalled after allegations that he sexually assaulted Christine Blasey Ford at a party when they were both in high school, as well as other allegations that he had mistreated several women when he was at Yale University, is protected by the presidential communications privilege, regardless of whether it was ever shared with members of Congress. To assuage doubts expressed by then Sen. Jeff Flake (R-AZ), who, as a member of the Senate Judiciary Committee, indicated that he would not vote to approve Kavanaugh's nomination unless Blasey Ford's accusations were further investigated, the FBI was tasked with doing a supplemental background investigation (SBI) limited to Blasey Ford's allegations only. That investigation yielded a 527-page file. In response to requests from BuzzFeed reporter Jason Leopold, who couched his requests in terms of documents shared with the Senate Judiciary Committee, the agency withheld the entire file under Exemption 5 (privileges), claiming the presidential communications privilege., arguing that "this privilege 'squarely' applies because the SBI " and therefore the SBI File " was solicited by the White House Counsel's Office in the service of a core, nondelegable function, namely, the appointment of a Supreme Court Justice, and, further, the privilege remains intact, without the need for personal invocation by the President and despite the furnishing of the file to the Senate Judiciary Committee." Leopold argued that the presidential communications privilege was not applicable since the SBI was done for the benefit of the Senate Judiciary Committee and was not intended to be part of presidential decision-making, that the FBI had not established that the file was received by the White House Counsel's Office, that the privilege was waived when the SBI was shared with the Senate Judiciary Committee, which published a summary, and that the presidential communications privilege could only be invoked by the President. Howell first addressed whether such records qualified under the inter- or intra-agency threshold of Exemption 5. She noted that "to be sure, FOIA applies only to federal agencies and 'Congress did not intend the word "agency' to include the President, his 'immediate personal staff, or units in the Executive Office whose sole function is to advise and assist the President.'" But she pointed out that "the D.C. Circuit has explained, 'the Supreme Court [has] deemed it 'beyond question' that documents prepared by agency officials to advise the President were within the coverage of Exemption 5 because they were 'intra-agency' or 'inter-agency' memoranda or letters that were used in the decision-making processes of the Executive Branch.' For this reason, the D.C. Circuit has consistently viewed Exemption 5 as covering the presidential communications privilege, among other privileges." Noting that case law approved of the application of privileges recognized under Exemption 5 to such records, Howell questioned Leopold's claim that because the recent Supreme Court decision in Food Marketing Institute v. Argus Media Leader, 139 S. Ct. 2356 (2019), in which the Supreme Court found that the substantial harm test under Exemption 4 (confidential business information) was not supported by the plain language of the exemption, articulated the elements for promises of confidentiality by the government, "the transmittal of the SBI File to the White House Counsel's Office, a non-agency government entity, stripped these records of protection under Exemption 5." She pointed out that "to the extent plaintiffs believe that Argus Leader requires new attention to the text of Exemption 5's first condition of an inter- or intra-agency communication, binding precedent in this circuit again dictates the result." She explained that in Dept of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001), the Supreme Court recognized that deliberations between agencies and outside entities could be privileged if the outside entity's interests were not adversarial. She observed that "the D.C. Circuit has continued, post-Klamath, to apply its functional approach to find that communications between agencies and outside, or non-agency, entities may indeed meet the statutory condition of Exemption 5." Howell then rejected Leopold's claim that the presidential communications privilege did not apply because the SBI was not used for presidential decision-making. Instead, she noted that "even if the activity on the Senate Judiciary Committee prompted the SBI, the White House Counsel's Office, not the Committee, actually 'solicited' the SBI in connection with the nomination of a Supreme Court Justice. . .and, thus, this request was made in the service of a nondelegable presidential duty." Leopold argued that pressure from Congress resulted in the SBI and that Howell should take that into consideration. But Howell observed that "even if the court were equipped to test the motivations for a specific presidential action in a dynamic political context, doing so would turn the whole point of the presidential communications privilege on its head by undermining the President's ability to 'make decisions confidentially.' This Court declines to proceed down this proverbial rabbit hole." She then rejected Leopold's waiver argument as well. She pointed out that "disclosure by Congress alone cannot result in a waiver of privilege because 'we do not deem "official" a disclosure made by someone other than the agency from which the information is being sought.' Thus, the D.C. Circuit has repeatedly confirmed that disclosure by Congress does not prevent the Executive Branch from asserting privilege to withhold records under FOIA." Leopold also contended that notes used by FBI agents in preparing their FD-302s were not protected. But Howell pointed out that "the privilege applies to the SBI File in full and covers those pages of hand-written interview notes and administrative notes containing information presented elsewhere in the File, even if the FBI is unable to establish that those notes were transmitted to the White House Counsel's Office."
Issues: Exemption 5 - Privileges, Exemption 5 - Privileges - Waiver of privilege
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-11-071COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 400 receipt number 0090-5781247) filed by BUZZFEED, INC., JASON LEOPOLD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet, # 6 Summons)(Schafer, Matthew) (Entered: 11/07/2018)
2018-11-07Case Assigned to Chief Judge Beryl A. Howell. (zmd) (Entered: 11/08/2018)
2018-11-082SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice and Consent) (zmd) (Entered: 11/08/2018)
2018-11-213STANDING ORDER. Signed by Chief Judge Beryl A. Howell on November 21, 2018. (lcbah3) (Entered: 11/21/2018)
2018-12-034RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/19/2018. Answer due for ALL FEDERAL DEFENDANTS by 12/19/2018. (Schafer, Matthew) (Entered: 12/03/2018)
2018-12-035RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/19/2018. (Schafer, Matthew) (Entered: 12/03/2018)
2018-12-076AMENDED COMPLAINT AS OF RIGHT against FEDERAL BUREAU OF INVESTIGATION filed by BUZZFEED, INC., JASON LEOPOLD. (Attachments: # 1 Exhibit A - Request #1, # 2 Exhibit B - Acknowledgment #1, # 3 Exhibit C - Expedited Processing #1, # 4 Exhibit D - Unusual Circumstances #1, # 5 Exhibit E - Request #2, # 6 Exhibit F - Acknowledgment #2, # 7 Exhibit G - Expedited Processing #2, # 8 Exhibit H - Unusual Circumstances #2, # 9 Exhibit I - Request #3, # 10 Exhibit J - Acknowledgment #3, # 11 Exhibit K - Expedited Processing #3, # 12 Exhibit L - Unusual Circumstances #3, # 13 Exhibit M - Request #4, # 14 Exhibit N - Acknowledgment #4, # 15 Exhibit ) - Expedited Processing #4, # 16 Exhibit P - Unusual Circumstances #4)(Schafer, Matthew) (Entered: 12/07/2018)
2018-12-077NOTICE to Reissue Summons by BUZZFEED, INC., JASON LEOPOLD (Attachments: # 1 Summons, # 2 Summons)(Schafer, Matthew) (Entered: 12/07/2018)
2018-12-108SUMMONS (3) REISSUED Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (zrdj). Modified event title on 12/13/2018 (znmw). (Entered: 12/10/2018)
2018-12-209NOTICE of Appearance by Cristen Cori Handley on behalf of FEDERAL BUREAU OF INVESTIGATION (Handley, Cristen) (Entered: 12/20/2018)
2018-12-2010Consent MOTION for Extension of Time to File Answer re 6 Amended Complaint,,, by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Handley, Cristen) (Entered: 12/20/2018)
2018-12-21MINUTE ORDER (paperless) GRANTING the defendant's 10 Consent Motion for Extension of Time to Respond to Amended Complaint. Accordingly, the defendant shall, by January 16, 2019, file any response to the plaintiffs' 6 Amended Complaint. Signed by Chief Judge Beryl A. Howell on December 21, 2018. (lcbah3) (Entered: 12/21/2018)
2018-12-21Set/Reset Deadlines: Answer to the Amended Complaint by Federal Bureau of Investigation due by 1/16/2019. (tg) (Entered: 12/21/2018)
2019-01-0811MOTION to Stay Deadline to Respond to Amended Complaint by FEDERAL BUREAU OF INVESTIGATION (Handley, Cristen) (Entered: 01/08/2019)
2019-01-0812Memorandum in opposition to re 11 MOTION to Stay Deadline to Respond to Amended Complaint filed by BUZZFEED, INC., JASON LEOPOLD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Schafer, Matthew) (Entered: 01/08/2019)
2019-01-08MINUTE ORDER (paperless) GRANTING the defendant's 11 Motion for a Stay in Light of Lapse in Appropriations, notwithstanding the plaintiffs' 12 Opposition to Defendant's Motion to Stay. Accordingly, the January 16, 2019 deadline for the defendant to respond to the plaintiffs' 6 Amended Complaint is stayed until Congress appropriates funds for the defendant, and it is ordered that the defendant shall file any response to the plaintiffs' 6 Amended Complaint within five days of Congress appropriating funds for the defendant. Signed by Chief Judge Beryl A. Howell on January 8, 2019. (lcbah3) (Entered: 01/08/2019)
2019-01-2813NOTICE of Restoration of Appropriations by FEDERAL BUREAU OF INVESTIGATION (Handley, Cristen) (Entered: 01/28/2019)
2019-01-3014ANSWER to 6 Amended Complaint,,, by FEDERAL BUREAU OF INVESTIGATION.(Handley, Cristen) (Entered: 01/30/2019)
2019-02-1315Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATION. (Handley, Cristen) (Entered: 02/13/2019)
2019-02-15MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 15 Joint Status Report, the parties to file, by March 15, 2019, a joint status report advising the Court of (1) the status of the defendant's searches, including an estimate of when those searches will be completed; (2) when the defendant expects to make a final determination for each of the plaintiffs' FOIA requests; and (3) a proposed schedule for the processing and production of records. Signed by Chief Judge Beryl A. Howell on February 15, 2019. (lcbah3) (Entered: 02/15/2019)
2019-02-15Set/Reset Deadlines: Joint Status Report due by 3/15/2019. (tg) (Entered: 02/19/2019)
2019-03-0116NOTICE of Appearance by Matthew Topic on behalf of BUZZFEED, INC., JASON LEOPOLD (Topic, Matthew) (Entered: 03/01/2019)
2019-03-0417NOTICE OF WITHDRAWAL OF APPEARANCE as to BUZZFEED, INC., JASON LEOPOLD. Attorney Matthew Lynn Schafer terminated. (Schafer, Matthew) (Entered: 03/04/2019)
2019-03-1518Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATION. (Handley, Cristen) (Entered: 03/15/2019)
2019-03-15MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 18 Joint Status Report, the parties to file, by August 21, 2019, a joint status report advising the Court whether any disputes remain between the parties, and if so, a proposed schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on March 15, 2019. (lcbah3) (Entered: 03/15/2019)
2019-03-15Set/Reset Deadlines: Joint Status Report due by 8/21/2019. (tg) (Entered: 03/15/2019)
2019-03-2519LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BUZZFEED, INC., JASON LEOPOLD (Topic, Matthew) (Entered: 03/25/2019)
2019-08-0620NOTICE of Appearance by Merrick Jason Wayne on behalf of BUZZFEED, INC., JASON LEOPOLD (Wayne, Merrick) (Entered: 08/06/2019)
2019-08-2121Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATION. (Handley, Cristen) (Entered: 08/21/2019)
2019-08-22MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 21 Joint Status Report, the following SCHEDULING ORDER: (1) by October 21, 2019, the defendant shall file any motion for summary judgment; (2) by November 20, 2019, the plaintiffs shall file any consolidated cross-motion for summary judgment and opposition to the defendant's motion for summary judgment; (3) by December 20, 2019, the defendant shall file any consolidated reply in support of its motion for summary judgment and opposition to the plaintiff's cross-motion for summary judgment; and (4) by January 20, 2020, the plaintiffs shall file any reply in support of their cross-motion for summary judgment. A Vaughn Index submitted to the Court to justify any withholding should provide a sequentially numbered separate entry for each document withheld, in full or part, and the following information, at a minimum: (1) the document number; (2) the Bates stamp number range for the withheld document or portion of document; (3) the document description, including type of document ( e.g. , email, email attachment, or document), date and title, if applicable; (4) the author(s); (5) the recipient(s); (6) whether document withheld in full or part; (7) the statutory authority for the withholding; and (8) the reason the exemption applies to the document. Signed by Chief Judge Beryl A. Howell on August 22, 2019. (lcbah3) (Entered: 08/22/2019)
2019-08-22Set/Reset Deadlines: Defendant's motion for summary judgment due by 10/21/2019. Plaintiffs' cross-motion for summary judgment and opposition to defendant's motion for summary judgment due by 11/20/2019. Defendant's reply in support of its motion for summary judgment and opposition to plaintiff's cross-motion due by 12/20/2019. Plaintiffs' reply in support of their cross-motion due by 1/20/2020. (hmc) (Entered: 08/22/2019)
2019-10-1822Consent MOTION for Extension of Time to File Motion for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order Proposed Order)(Handley, Cristen) (Entered: 10/18/2019)
2019-10-21MINUTE ORDER (paperless) GRANTING the defendant's 22 Consent Motion for Extension of Time to File Summary Judgment Motion. Accordingly, by October 25, 2019, the defendant shall file any motion for summary judgment; by November 25, 2019, the plaintiffs shall file any consolidated cross-motion for summary judgment and opposition to the defendant's motion for summary judgment; by December 27, 2019, the defendant shall file any consolidated reply in support of its motion for summary judgment and opposition to the plaintiff's cross-motion for summary judgment; and by January 27, 2020, the plaintiffs shall file any reply in support of their cross motion for summary judgment. Signed by Chief Judge Beryl A. Howell on October 21, 2019. (lcbah3) (Entered: 10/21/2019)
2019-10-21Set/Reset Deadlines: Defendant's summary judgment motion due by 10/25/2019; plaintiffs' cross-motion and opposition to motion for summary judgment due by 11/25/2019; defendant's opposition to cross-motion and reply to opposition to motion for summary judgment due by 12/27/2019; plaintiffs' reply to opposition to cross-motion due by 1/27/2020. (tg) (Entered: 10/21/2019)
2019-10-2523MOTION for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Exhibit, # 5 Text of Proposed Order)(Handley, Cristen) (Entered: 10/25/2019)
2019-11-2024Unopposed MOTION for Extension of Time to File Unopposed Motion to Amend Briefing Schedule by BUZZFEED, INC., JASON LEOPOLD (Attachments: # 1 Text of Proposed Order)(Topic, Matthew) (Entered: 11/20/2019)
2019-11-22MINUTE ORDER (paperless) GRANTING the plaintiffs' 24 Unopposed Motion to Amend Briefing Schedule. Accordingly, by December 16, 2019, the plaintiffs shall file any consolidated cross-motion for summary judgment and opposition to the defendant's motion for summary judgment; by February 6, 2020, the defendant shall file any consolidated reply in support of its motion for summary judgment and opposition to the plaintiffs' cross-motion for summary judgment; and by March 9, 2020, the plaintiffs shall file any reply in support of their cross motion for summary judgment. Signed by Chief Judge Beryl A. Howell on November 22, 2019. (lcbah3) (Entered: 11/22/2019)
2019-11-22Set/Reset Deadlines: Plaintiffs' consolidated cross-motion for summary judgment and opposition to the defendant's motion for summary judgment due by 12/16/2019. Defendant's consolidated reply in support of its motion for summary judgment and opposition to the plaintiffs' cross-motion for summary judgment due by 2/6/2020. Plaintiffs' reply in support of their cross-motion for summary judgment due by 3/9/2020.(hmc) (Entered: 11/22/2019)
2019-12-1625MOTION for Summary Judgment by BUZZFEED, INC., JASON LEOPOLD (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Topic, Matthew) (Entered: 12/16/2019)
2019-12-1626Memorandum in opposition to re 23 MOTION for Summary Judgment filed by BUZZFEED, INC., JASON LEOPOLD. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Topic, Matthew) (Entered: 12/16/2019)
2020-01-2327Consent MOTION for Extension of Time to File Combined Summary Judgment Opposition and Reply by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Handley, Cristen) (Entered: 01/23/2020)
2020-01-23MINUTE ORDER (paperless) GRANTING the defendant's 27 Consent Motion for Extension of Time to File Combined Summary Judgment Opposition and Reply. Accordingly, by February 21, 2020, the defendant shall file any consolidated reply in support of its motion for summary judgment and opposition to the plaintiffs' cross-motion for summary judgement; and by March 24, 2020, the plaintiffs shall file any reply in support of their cross motion for summary judgment. Signed by Chief Judge Beryl A. Howell on January 23, 2020. (lcbah3) (Entered: 01/23/2020)
2020-01-23Set/Reset Deadlines: Defendant's consolidated reply in support of its motion for summary judgment and opposition to plaintiffs' cross-motion for summary judgment due by 2/21/2020; plaintiffs' reply in support of their cross-motion due by 3/24/2020. (tg) (Entered: 01/23/2020)
2020-02-2128Memorandum in opposition to re 25 MOTION for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Statement of Facts Response to Plaintiffs' Statement of Material Facts)(Handley, Cristen) (Entered: 02/21/2020)
2020-02-2129REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Statement of Facts Response to Plaintiffs' Statement of Material Facts)(Handley, Cristen) (Entered: 02/21/2020)
2020-03-2430REPLY to opposition to motion re 25 MOTION for Summary Judgment Plaintiffs' Reply in Support of Their Motion for Summary Judgment filed by BUZZFEED, INC., JASON LEOPOLD. (Topic, Matthew) (Entered: 03/24/2020)
2020-05-0731MEMORANDUM OPINION regarding the defendant's 23 Motion for Summary Judgment and the plaintiffs' 25 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on May 7, 2020. (lcbah3) (Entered: 05/07/2020)
2020-05-0732ORDER GRANTING the defendant's 23 Motion for Summary Judgment and DENYING the plaintiffs' 25 Cross-Motion for Summary Judgment. See Order for further details. Signed by Chief Judge Beryl A. Howell on May 7, 2020. (lcbah3) (Entered: 05/07/2020)
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