Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the FBI failed to show the existence of exceptional circumstances that would qualify it for a stay until October 2014 in order to finish processing a request from EPIC on its "StingRay" cell-site simulator technology designed to allow it to track and locate cellular phones and other wireless devices. The agency estimated EPIC's request could encompass 25,000 pages and that about 5,000 pages would require classification review. Kollar-Kotelly noted that "the bottom line is that the FBI failed to show that it is 'deluged with [a] volume of requests. . .vastly in excess of that anticipated by Congress.' The number of FOIA/Privacy Act requests received by the FBI increased from 17, 755 in FY 2011 to 19,599 through the first eleven months of FY 2012. . .[B]ut the publicly available data reported by the Department of Justice indicates that the number of FOIA requests received by the FBI dropped by over 25% between FY 2008 (17,241 requests) and FY 2012 (12,783 requests). . .[T[he data strongly suggests that the number of requests received by the FBI in the past two fiscal years is not 'vastly in excess' of the volume anticipated by Congress, and, if anything, has dropped substantially over the past several fiscal years." The FBI argued that the complexity of its requests had increased, but admitted that the increase was due to a change in Justice Department policy. Kollar-Kotelly observed that "beyond emphasizing the increased average of size of incoming requests, the FBI fails to articulate why the agency's own policy change should support a finding of exceptional circumstances, as opposed to being considered part of the 'predictable workload' the statute specifically states does not justify a stay." Kollar-Kotelly also rejected the agency's claim that its FOIA litigation workload had increased. Instead, she indicated that "without more elaboration as to the FBI's litigation-related processing obligations over specific periods of time, the Court cannot determine what, if any, impact these obligations should have on the Court's analysis of the FBI's FOIA workload. If anything, the fact that the FBI indicated on August 1, 2012, that it anticipated being able to process approximately 5,000 pages per month in another case demonstrates that the FBI is not facing such exceptional circumstances that it can only review 1,500 pages per month in response to EPIC's request." Kollar-Kotelly also dismissed the agency's claim that it was making reasonable progress in reducing its backlog. Instead, she noted that "using the publicly available data, the number of FOIA requests received by the FBI increased by 15% in FY 2012, but the backlog of requests increased by 65%. For broader context, consider that the FBI backlog of FOIA requests increased by 55% between FY 2008 (1476 pending requests) and FY 2012 (2296 pending requests), despite a 27% decrease in new FOIA requests. The FBI's efforts to increase the efficiency of its system for processing FOIA requests are certainly commendable, but on this record the Court cannot find that these efforts have led to 'reasonable progress' in reducing the agency's backlog."
Issues: Delay - Exceptional circumstance

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has awarded EPIC nearly $30,000 in attorney's fees for its suit against the FBI for records pertaining to Stingray technology for tracking cell phones. After the FBI failed to respond, EPIC filed an administrative appeal with OIP, which also failed to respond. EPIC then filed suit and the FBI indicated it needed two and a half years to process the request. Kollar-Kotelly denied the agency's motion for an Open America stay. EPIC and the agency then agreed on a 500-page sample of released documents selected by EPIC. The parties ultimately settled their differences except for the matter of attorney's fees. EPIC's attorney's fees motion was heard by Magistrate Judge Alan Kay, who concluded that EPIC should be awarded $21,000 in fees. Both EPIC and the FBI objected, leaving Kollar-Kotelly as the final arbiter. Kollar-Kotelly noted that since Kay had found that EPIC was both eligible and entitled to fees, the only remaining issues concerned disputes over the amount. EPIC particularly challenged Kay's finding that EPIC had overbilled for work on its complaint and that it was not entitled to compensation for reviewing documents during the litigation. Kollar-Kotelly agreed with Kay that EPIC's fee request for drafting its complaint was excessive. She noted that "a review of the case billing record reveals inefficiencies and redundancies that makes EPIC's fee request for the Complaint unreasonable." As a result, she reduced the fee request by $2,773. She disagreed, however, with Kay as to the compensation for reviewing documents. She pointed out that "to the extent an attorney spends time reviewing released documents for a purpose unrelated to the FOIA litigation. . .fees should not be awarded for that time." But, in this case, the review of documents by EPIC's attorneys "was directly related to the ongoing FOIA litigation, specifically, challenging the sufficiency of the FBI's document release and the propriety of the FBI's withholding." She added that 'the time EPIC attorney's spent reviewing the released documents was an integral part of this FOIA litigation and crucial to EPIC's success in the litigation." Kay had left the consideration of a fees-on-fees award�"fees awarded for the time spent litigating the attorney's fee award�"to Kollar-Kotelly. EPIC argued its fees-on-fees request was for $8,145, but the FBI contended that all fees requested after the merits of the case had been resolved qualified as fees-on-fees, which it calculated as $21,664. Pointing out that this fee was excessive, Kollar-Kotelly explained that to award EPIC fees for its objections to Kay's recommendation would "effectively be a 'fees-on-fees-on-fees' award because EPIC's Opposition only addresses its request for a fees-on-fees award. Such a 'fees-on-fees-on-fees' award is too attenuated from original adjudication to be compensable." Further, she noted that "the Court is mindful that the amount billed by EPIC for these activities totals $18,244, nearly 90% of the amount the Court is awarding EPIC in attorney's fees for litigating the merits of their FOIA action." She denied EPIC's fee request for its objections to Kay's recommendation and reduced EPIC's fees-on-fees request by an additional 21 percent, awarding a total of $9,175 for the fees-on-fees litigation.
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award

Date Filed	Doc #	Docket Text
2012-04-26	1	COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 350 receipt number 0090-2911667) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons, # 3 7.1 Certificate)(McCall, Ginger) (Entered: 04/26/2012)
2012-04-26		Case Assigned to Judge Colleen Kollar-Kotelly. (ls, ) (Entered: 04/27/2012)
2012-04-27	2	NOTICE Revised Civil Cover Sheet by ELECTRONIC PRIVACY INFORMATION CENTER re 1 Complaint, (McCall, Ginger) (Entered: 04/27/2012)
2012-04-27	3	ELECTRONIC SUMMONS (3) Issued as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent)(ls, ) (Entered: 04/27/2012)
2012-04-27	4	ORDER Establishing Procedures for Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on April 27, 2012. (SM) (Entered: 04/27/2012)
2012-05-08	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/7/2012. Answer due for ALL FEDERAL DEFENDANTS by 6/6/2012. (Attachments: # 1 Affidavit of Mailing Summons and Complaint)(McCall, Ginger) (Entered: 05/08/2012)
2012-05-09	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/7/2012. (See Docket Entry 5 to view document). (znmw, ) (Entered: 05/09/2012)
2012-05-09	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 5/7/2012. (See Docket Entry 5 to view document). (znmw, ) (Entered: 05/09/2012)
2012-06-05	8	NOTICE of Appearance by Kimberly Lynn Herb on behalf of FEDERAL BUREAU OF INVESTIGATION (Herb, Kimberly) (Entered: 06/05/2012)
2012-06-05	9	Consent MOTION for Extension of Time to File Answer by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Herb, Kimberly) (Entered: 06/05/2012)
2012-06-05	10	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 06/05/2012)
2012-06-08		MINUTE ORDER (paperless). Presently before the Court is Defendant's 9 Motion for an Extension of Time, seeking a one week extension in which to file its answer. Plaintiff does not oppose the request. Accordingly, for good cause shown, Defendant's motion is GRANTED. Defendant shall have up to and including June 13, 2012 in which to file its answer or other responsive pleading. Signed by Judge Colleen Kollar-Kotelly on 6/8/12. (lcckk2) (Entered: 06/08/2012)
2012-06-13	11	ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION.(Herb, Kimberly) (Entered: 06/13/2012)
2012-06-14		MINUTE ORDER (paperless). By no later than June 27, 2012, the parties shall file a joint proposed schedule, including all necessary dates for proceeding in this matter. Signed by Judge Colleen Kollar-Kotelly on 6/14/12. (lcckk2) (Entered: 06/14/2012)
2012-06-27	12	STATUS REPORT Joint Proposed Schedule by ELECTRONIC PRIVACY INFORMATION CENTER, FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Text of Proposed Order by Plaintiff, # 2 Text of Proposed Order by Defendant)(McCall, Ginger) (Entered: 06/27/2012)
2012-07-01	13	ORDER. The parties shall adhere to the following briefing schedule: Defendant's Motion for an Open America Stay due July 30, 2012; Plaintiff's Opposition due August 20, 2012; Defendant's Reply due August 30, 2012. If Defendant fails to timely seek an Open America stay, the Court shall adopt Plaintiff's proposed schedule for proceeding in this matter. Signed by Judge Colleen Kollar-Kotelly on 7/1/12. (lcckk2) (Entered: 07/01/2012)
2012-07-30	14	MOTION to Stay under Open America by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Exhibit 1, Declaration of David Hardy, # 2 Text of Proposed Order)(Herb, Kimberly) (Entered: 07/30/2012)
2012-08-20	15	Memorandum in opposition to re 14 MOTION to Stay under Open America filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1 - Declaration of Ginger P. McCall, # 2 Text of Proposed Order)(McCall, Ginger) (Entered: 08/20/2012)
2012-08-30	16	REPLY to opposition to motion re 14 MOTION to Stay under Open America filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Second Declaration of David M. Hardy)(Herb, Kimberly) (Entered: 08/30/2012)
2012-12-12	17	NOTICE of Errata by FEDERAL BUREAU OF INVESTIGATION re 16 Reply to opposition to Motion (Attachments: # 1 Third Declaration of David M. Hardy)(Herb, Kimberly) (Entered: 12/12/2012)
2013-03-28	18	ORDER. For the reasons stated in the accompanying Memorandum Opinion, the FBI's 14 Motion for an Open America Stay is DENIED. The FBI shall produce all responsive, non-exempt records not subject to classification review to the Plaintiff on a rolling basis, but by no later than August 1, 2013. By no later than May 31, 2013, the FBI shall identify how many pages are subject to classification/declassification review and propose a deadline for completing production of all responsive, non-exempt records after classification/declassification review. Signed by Judge Colleen Kollar-Kotelly on 3/28/13. (lcckk2) (Entered: 03/28/2013)
2013-03-28	19	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 3/28/13. (lcckk2) (Entered: 03/28/2013)
2013-03-29	20	NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 03/29/2013)
2013-05-30	21	NOTICE Regarding Number of Classified Pages by FEDERAL BUREAU OF INVESTIGATION (Herb, Kimberly) (Entered: 05/30/2013)
2013-05-31		MINUTE ORDER (paperless). In light of the Defendant's 21 Notice Regarding Number of Classified Pages, it is hereby ORDERED that the Defendant shall produce all responsive, non-exempt records, including records subject to classification review, on a rolling basis by no later than August 1, 2013. On or before August 30, 2013, the parties shall file a joint status report proposing a schedule for proceeding in this matter. Signed by Judge Colleen Kollar-Kotelly on 5/31/13. (lcckk2) (Entered: 05/31/2013)
2013-05-31		Set/Reset Deadlines: Joint Status Report due by 8/30/2013. (dot ) (Entered: 06/03/2013)
2013-08-02	22	NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/02/2013)
2013-08-29	23	STATUS REPORT Joint Status Report by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 08/29/2013)
2013-08-29	24	ORDER. The parties shall adhere to the following schedule: (1) Plaintiff shall select a sample of documents and provide the information to Defendant on or before August 30, 2013; (2) Defendant shall produce a representative sample Vaughn Index by no later than October 1, 2013; and (3) the parties shall submit a further joint status report by no later than November 1, 2013. Signed by Judge Colleen Kollar-Kotelly on 8/29/13. (lcckk2) (Entered: 08/29/2013)
2013-11-01	25	STATUS REPORT Joint Status Report by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 11/01/2013)
2013-11-04	26	ORDER Joint Status Report due by 11/14/2013. Signed by Judge Colleen Kollar-Kotelly on 11/4/13. (dot ) (Entered: 11/04/2013)
2013-11-04		Set/Reset Deadlines: Joint Status Report due by 11/14/2013. (dot ) (Entered: 11/05/2013)
2013-11-12	27	STATUS REPORT Joint Status Report by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 11/12/2013)
2013-11-14		MINUTE ORDER (paperless). Upon consideration of the parties' 27 Joint Status Report, the Court hereby ORDERS that the Plaintiff's Motion for Attorneys' Fees shall be filed with the Court by no later than December 19, 2013. The Defendant's Response to the Plaintiff's Motion for Attorney's Fees shall be filed no later than January 9, 2014. The Plaintiff shall file any Reply by no later than January 16, 2014. Signed by Judge Colleen Kollar-Kotelly on 11/14/2013. (lcckk3) (Entered: 11/14/2013)
2013-11-14		Set/Reset Deadlines: Motion for Attorneys' Fees due by 12/19/2013. Response due by 1/9/2014. Reply due by 1/16/2014. (dot ) (Entered: 11/15/2013)
2013-12-19	28	MOTION for Attorney Fees and Costs by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Affidavit Marc Rotenberg, # 4 Affidavit Alan Butler, # 5 Affidavit Julia Horwitz, # 6 Affidavit Ginger McCall, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Text of Proposed Order)(Rotenberg, Marc) (Entered: 12/19/2013)
2014-01-03	29	Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION for Attorney Fees and Costs by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Herb, Kimberly) (Entered: 01/03/2014)
2014-01-06	30	ORDER granting 29 Motion for Extension of Time to File Response/Reply re 29 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION for Attorney Fees and Costs ; Set/Reset Deadlines: Defendant's Response due by 1/16/2014. Plaintiff's Reply due by 1/30/2014. Signed by Judge Colleen Kollar-Kotelly on 1/6/14. (dot ) (Entered: 01/06/2014)
2014-01-16	31	RESPONSE re 28 MOTION for Attorney Fees and Costs filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 First Hardy Declaration, # 2 Fifth Hardy Declaration, # 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 Herb Declaration, # 20 Exhibit 20)(Herb, Kimberly) (Entered: 01/16/2014)
2014-01-30	32	REPLY to opposition to motion re 28 MOTION for Attorney Fees and Costs filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Supplemental Affidavit of Julia Horwitz, # 7 Supplemental Affidavit of Alan Butler, # 8 Supplemental Affidavit of Marc Rotenberg, # 9 Exhibit 9)(Butler, Alan) (Entered: 01/30/2014)
2014-01-31		NOTICE OF ERROR re 32 Reply to opposition to Motion; emailed to butler@epic.org, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. No signature block/page. Please file an Errata with signature page attached, using the event Errata. (znmw, ) (Entered: 01/31/2014)
2014-01-31	33	ERRATA by ELECTRONIC PRIVACY INFORMATION CENTER 32 Reply to opposition to Motion, filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Signature Page)(Butler, Alan) (Entered: 01/31/2014)
2014-02-04	34	ORDER. The Plaintiff's Motion for Attorneys' Fees in the above-captioned case has been referred to Magistrate Judge Alan Kay for a Report and Recommendation pursuant to Local Rule of Civil Procedure 72.3(a). The Clerk of Court shall issue a Form 299 in connection with this Order. Signed by Judge Colleen Kollar-Kotelly on 2/4/2014. (lcckk3) (Entered: 02/04/2014)
2014-02-04	35	CASE DIRECTLY REFERRED to Magistrate Judge Alan Kay for 28 Plaintiff's Motion for Attorney's Fees. (md, ) (Entered: 02/05/2014)
2014-04-09	36	NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 04/09/2014)
2014-06-16	37	NOTICE OF SUBSTITUTION OF COUNSEL by Steven A. Myers on behalf of All Defendants Substituting for attorney Kimberly L. Herb (Myers, Steven) (Entered: 06/16/2014)
2014-09-19	38	REPORT AND RECOMMENDATION re 28 MOTION for Attorney Fees and Costs filed by ELECTRONIC PRIVACY INFORMATION CENTER Signed by Magistrate Judge Alan Kay on 9/19/14.(lcak1) (Entered: 09/19/2014)
2014-09-26		MINUTE ORDER (paperless). Magistrate Judge Alan Kay issued his 38 Report and Recommendation regarding Plaintiff's 28 Motion for Attorneys' Fees on September 19, 2014. Per Local Civil Rule 72.3(b), any party may file for consideration by the district judge written objections to the magistrate judge's proposed findings and recommendations within 14 days after being served with a copy of the Report and Recommendations. In the present matter, any objections must be filed by no later than October 3, 2014. The Court hereby ORDERS the parties to file a Notice with the Court by no later than SEPTEMBER 29, 2014 at 5 P.M. indicating whether either party will be filing any objections to Magistrate Judge Kay's 38 Report and Recommendation. Signed by Judge Colleen Kollar-Kotelly on 9/26/2014. (lcckk3) (Entered: 09/26/2014)
2014-09-29	39	NOTICE of Intent by ELECTRONIC PRIVACY INFORMATION CENTER re Order,,, (Butler, Alan) (Entered: 09/29/2014)
2014-09-29	40	NOTICE of Intent to File Objections to Magistrate Judge's Report and Recommendation by FEDERAL BUREAU OF INVESTIGATION (Myers, Steven) (Entered: 09/29/2014)
2014-10-03	41	OBJECTION to 38 Report and Recommendations filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Butler, Alan) (Entered: 10/03/2014)
2014-10-03	42	OBJECTION to 38 Report and Recommendations filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Exhibit A)(Myers, Steven) (Entered: 10/03/2014)
2014-10-17	43	RESPONSE re 42 Objection to Report and Recommendations filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Butler, Alan) (Entered: 10/17/2014)
2014-10-20	44	RESPONSE re 41 Objection to Report and Recommendations filed by FEDERAL BUREAU OF INVESTIGATION. (Myers, Steven) (Entered: 10/20/2014)
2014-10-27	45	REPLY re 42 Objection to Report and Recommendations filed by FEDERAL BUREAU OF INVESTIGATION. (Myers, Steven) (Entered: 10/27/2014)
2014-10-29	46	REPLY re 41 Objection to Report and Recommendations filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Butler, Alan) (Entered: 10/29/2014)
2015-02-20	47	ORDER. For the reasons stated in the accompanying Memorandum Opinion, it isORDERED that Magistrate Judge Kay's September 19, 2014, 38 Report andRecommendation is ADOPTED as modified in the accompanying Memorandum Opinion; IT IS FURTHER ORDERED that Plaintiff's 28 Motion for Attorney's Fees is GRANTED IN PART and DENIED IN PART. The Federal Bureau of Investigation shall pay Electronic Privacy Information Center reasonable attorney's fees and costs in the amount of $29,635; IT IS FURTHER ORDERED that this case is DISMISSED. Signed by Judge Colleen Kollar-Kotelly on 2/20/2015. (lcckk3) (Entered: 02/20/2015)
2015-02-20	48	MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 2/20/2015.(lcckk3) (Entered: 02/20/2015)
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