Case Detail

FOIA Project Annotation: Judge Christopher Cooper has ruled that the FBI properly withheld records on Marie Mason, an environmental activist serving a 20-year prison term, under Exemption 7(A) (interference with ongoing investigation or proceeding), but has admonished the agency to review investigative files for any non-exempt materials before making a blanket exemption claim. Susan Tipograph, Mason's attorney, requested the records. The agency told her it had an investigative file on Mason but that it was entirely exempt under Exemption 7(A). When Tipograph sued, the FBI disclosed 199 pages of public source information, but continued to assert Exemption 7(A), along with Exemption 7(D) (confidential sources) and Exemption 5 (privileges). Noting he was satisfied that the remainder of the file was protected by Exemption 7(A), Cooper rejected Tipograph's argument that the agency had failed to divide the files into functional categories, and then review each document to determine if they qualified for that category. Instead, he pointed out that "the [agency] declarations provide sufficient detail for the Court to trace a rational link between the information contained in the records and the potential interference with law enforcement proceedings." He added that "because this explanation describes the nature of the information contained in the records, rather than merely the nature of the records themselves, it permits the court to infer a rational link between the records and an investigative purpose." Tipograph had also charged that the FBI had a practice of failing to review investigative records it claimed fell under Exemption 7(A) until a requester filed suit. Cooper expressed sympathy, but observed that "because Tipograph has not established that foregoing the document-by-document review required by Exemption 7(A) is a widespread practice at the FBI, the Court declines to issue a declaratory judgment or injunction. But because the Court has doubts about whether the FBI conducted the required review at the administrative stage in this case, it will remind the Bureau of its obligation to perform such reviews in the future."
Issues: Exemption 7(A) - Categorical exemption

FOIA Project Annotation: Judge Christopher Cooper has ruled that civil rights attorney Susan Tipograph does not have standing to pursue her pattern or practice claim against the FBI because she has not shown that she is likely to make FOIA requests to the agency in the near future. Tipograph had made a request to the FBI for records about her client Marie Mason, an environmental activist currently serving a lengthy federal prison term for arson and other acts of property destruction. The agency withheld everything but public source information under Exemption 7(A) (ongoing investigation or proceeding). Tipograph filed suit challenging the agency's denial, but also what she characterized as the agency's improper routine policy of invoking 7(A) at the file level rather than at the record level. Judge Robert Wilkins, who previously was assigned Tipograph's case, ruled against her on both counts. Tipograph moved for reconsideration and Cooper agreed to review the pattern or practice claim more closely. The government initially claimed Tipograph's challenge was moot because she had received all non-exempt records. But Cooper noted that "because Tipograph alleges that a policy or practice of the FBI will impact her lawful access to information in the future, her claim for prospective declaratory and injunctive relief is not moot simply because the FBI has now provided her with the records to which she is entitled." However, Cooper found the government's standing argument more persuasive. He pointed out that "at present, Tipograph's claim of future injury remains just thatâ€"speculative." He added that "Article III [of the Constitution outlining the jurisdiction of federal courts] requires Tipograph to provide more than generalized plans to file unspecified requests for information at some uncertain point in the future." He indicated that "when it is similarly clear that a plaintiff will continue filing FOIA requests that are likely to be subjected to the agency's policy or practice, a court should find that the plaintiff has satisfied the injury requirement. But when a plaintiff's very business does not depend on filing FOIA requests, the inquiry can be more difficult. In these situations, it is incumbent upon plaintiffs to present concrete plans showing their intent to file those requests." Cooper observed that "it is certainly plausible that Tipograph will file FOIA requests in the future that could implicate the alleged policy or practice that she challenges here." But he noted that Tipograph had not submitted another FOIA request to the FBI since this one in 2012 and that her only previous FOIA requests to the FBI were in 1999 and 1988. He concluded that "Tipograph has no consistent history of filing these types of requests and the Court has before it no indication when she might file her next one. On this record, 'the Court cannot say that [her] alleged future injury is either real or imminent.'"
Issues: Exemption 7(A) - Categorical exemption

Date Filed	Doc #	Docket Text
2013-02-25	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 350 receipt number 0090-3229835) filed by SUSAN V. TIPOGRAPH. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney for D.C., # 3 Summons U.S. Department of Justice)(Light, Jeffrey) (Entered: 02/25/2013)
2013-02-25		Case Assigned to Judge Robert L. Wilkins. (md, ) (Entered: 02/25/2013)
2013-02-25	2	ELECTRONIC SUMMONS Issued (2) as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Notice of Consent, # 3 Consent Form)(md, ) (Entered: 02/25/2013)
2013-02-27	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/27/2013. Answer due for ALL FEDERAL DEFENDANTS by 3/29/2013. (Light, Jeffrey) (Entered: 02/27/2013)
2013-02-27	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 02/27/2013. (Light, Jeffrey) (Entered: 02/27/2013)
2013-04-01	5	AFFIDAVIT FOR DEFAULT by SUSAN V. TIPOGRAPH. (Light, Jeffrey) (Entered: 04/01/2013)
2013-04-01	6	ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Guzman, Javier) (Entered: 04/01/2013)
2013-06-19		MINUTE ORDER: Plaintiff filed an Affidavit in Support of Default 5 in this matter on April 1, 2013. Before the Clerk took any action and before any default was entered, however, Defendant filed its Answer that same day, April 1, 2013. As a consequence, and since our judicial system strongly favors resolution on the merits, rather than through default, the Court finds Plaintiff's request for entry of default unwarranted and denies that request. See, e.g., Light for Life, Inc. v. Our Firm Found. for Koreans, 2013 U.S. Dist. LEXIS 41764 (M.D. Ga. Mar. 26, 2013). SO ORDERED. Signed by Judge Robert L. Wilkins on 6/19/2013. (lcrlw3) Modified on 6/20/2013 to add correct linkage (tcb). (Entered: 06/19/2013)
2013-06-19		MINUTE ORDER: Before the Court in this FOIA case are a Complaint and an Answer. The requirements of LCvR 16.3 and Federal Rule of Civil Procedure 26(f) appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when any party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a Joint Status Report that addresses these issues and that contains a proposed schedule and order by not later than July 1, 2013. Signed by Judge Robert L. Wilkins on 6/19/2013. (lcrlw3) (Entered: 06/19/2013)
2013-06-20		Set/Reset Deadlines: Joint Status Report due by 7/1/2013 (tcb) (Entered: 06/20/2013)
2013-06-27	7	Unopposed MOTION for Extension of Time to File Joint Status Report by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 06/27/2013)
2013-06-28	8	ORDER granting 7 Unopposed MOTION for Extension of Time to File Joint Status Report ; and it is FURTHER ORDERED that the partiesjoint status reportis due by July 12, 2013. Signed by Judge Robert L. Wilkins on 6/28/2013. (tcb) (Entered: 06/28/2013)
2013-07-12	9	STATUS REPORT Joint by SUSAN V. TIPOGRAPH. (Light, Jeffrey) (Entered: 07/12/2013)
2013-07-17		MINUTE ORDER: The parties shall appear on Thursday, July 25, 2013 in Courtroom 27A at 10:30 AM before Judge Robert L. Wilkins for a status hearing. Signed by Judge Robert L. Wilkins on 7/17/2013. (tcb) (Entered: 07/17/2013)
2013-07-25		Minute Entry for proceedings held before Judge Robert L. Wilkins: Status Conference held on 7/25/2013. Parties directed to meet and confer and submit a proposed order to the Court based on the schedule stated on the record in open Court by no later than August 9, 2013. The parties were further advised that any motions for extension of time will be looked upon with disfavor. (Court Reporter Pat Kaneshiro- Miller) (tcb) (Entered: 07/25/2013)
2013-08-05	10	NOTICE of Proposed Order (JOINT) by UNITED STATES DEPARTMENT OF JUSTICE (Guzman, Javier) (Entered: 08/05/2013)
2013-08-06	11	SCHEDULING ORDER: ORDERED that Defendant shall file its motion for summary judgment and Vaughn declaration by July 15, 2014; Plaintiff shall file her opposition and any cross-motion for summary judgment by August 15, 2014; and Defendant shall file its reply and opposition to any cross-motion for summary judgment by September 15, 2014; and it is FURTHER ORDERED that, in processing Plaintiffs FOIA request at issue, Defendant will prioritize those records created on or after February 5, 2009, the date of Marie Masons incarceration; and it is FURTHER ORDERED that as it processes Plaintiffs FOIA request, Defendant shall release on a rolling basis any responsive, non-exempt records that are processed; and it is FURTHER ORDERED that Defendant shall file a status report every 60 days advising of its progress in processing Plaintiffs FOIA request, including whether it has released any responsive, non-exempt records. Signed by Judge Robert L. Wilkins on 8/6/2013. (tcb) (Entered: 08/06/2013)
2013-10-01	12	Unopposed MOTION to Stay by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 10/01/2013)
2013-10-02	13	ORDER granting 12 Unopposed MOTION to Stay; and it is FURTHER ORDERED that Defendant will notify the Court upon the appropriation by Congress of funds for the Department of Justice. Signed by Judge Robert L. Wilkins on 10/2/2013. (tcb) (Entered: 10/02/2013)
2013-10-18	14	Unopposed MOTION to Lift Stay by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 10/18/2013)
2013-10-22	15	ORDER granting 14 Unopposed MOTION to Lift Stay; and it is FURTHER ORDERED that Defendant shall file its first status report no later than October 23, 2013. Signed by Judge Robert L. Wilkins on 10/22/2013. (tcb) (Entered: 10/22/2013)
2013-10-23	16	STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Guzman, Javier) (Entered: 10/23/2013)
2013-12-06	17	STATUS REPORT (Second) by UNITED STATES DEPARTMENT OF JUSTICE. (Guzman, Javier) (Entered: 12/06/2013)
2014-01-24		Case reassigned to the Calendar Committee who will oversee it until it is reassigned to another judge. Judge Robert L. Wilkins has been elevated to the U.S. Court of Appeals for DC and is no longer assigned to the case. Any questions should be directed to Terri Barrett, formerly Judge Wilkins deputy clerk, at 202-354-3179 or terri_barrett@dcd.uscourts.gov (ztcb, ) (Entered: 01/24/2014)
2014-02-04	18	STATUS REPORT (THIRD) by UNITED STATES DEPARTMENT OF JUSTICE. (Guzman, Javier) (Entered: 02/04/2014)
2014-04-07		Case directly reassigned to Judge Christopher R. Cooper. Calendar Committee no longer assigned to the case. (gt, ) (Entered: 04/07/2014)
2014-04-07	19	STATUS REPORT (Fourth) by UNITED STATES DEPARTMENT OF JUSTICE. (Guzman, Javier) (Entered: 04/07/2014)
2014-06-06	20	STATUS REPORT (FIFTH) by UNITED STATES DEPARTMENT OF JUSTICE. (Guzman, Javier) (Entered: 06/06/2014)
2014-06-20	21	Unopposed MOTION for Extension of Time to Summary Judgment Briefing Schedule by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Guzman, Javier) (Entered: 06/20/2014)
2014-06-20		MINUTE ORDER granting 21 Defendant's Motion for Extension of Time. It is FURTHER ORDERED that Defendant's motion for summary judgment shall be due by July 23, 2014; Plaintiff's opposition shall be due by August 25, 2014; and Defendant's reply shall be due by September 23, 2014. Signed by Judge Christopher R. Cooper on 6/20/2014. (lccrc2, ) (Entered: 06/20/2014)
2014-07-23	22	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit Hardy Declaration, # 2 Exhibit Hardy Declaration Exs. A-K, # 3 Exhibit Hardy Declaration Ex. L Part 1, # 4 Exhibit Hardy Declaration Ex. L Part 2, # 5 Exhibit Hardy Declaration Ex. L Part 3, # 6 Text of Proposed Order)(Guzman, Javier) (Entered: 07/23/2014)
2014-07-23	23	NOTICE OF FILING REDACTED DOCUMENT to 22 MOTION for Summary Judgment (Giacalone Public Declaration) by UNITED STATES DEPARTMENT OF JUSTICE (The original PDF Document contained privacy information and was restricted pursuant to the E-Government Act.) (Attachments: # 1 Declaration)(Guzman, Javier) (Entered: 07/23/2014)
2014-07-28	24	NOTICE of Ex Parte, In Camera Filing by UNITED STATES DEPARTMENT OF JUSTICE re 23 NOTICE OF FILING REDACTED DOCUMENT, 22 MOTION for Summary Judgment (Guzman, Javier) (Entered: 07/28/2014)
2014-07-28	25	Emergency MOTION for Order to Show Cause why ex parte declaration should not be struck or made public by SUSAN V. TIPOGRAPH (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 07/28/2014)
2014-07-29	26	RESPONSE re 25 Emergency MOTION for Order to Show Cause why ex parte declaration should not be struck or made public filed by UNITED STATES DEPARTMENT OF JUSTICE. (Guzman, Javier) (Entered: 07/29/2014)
2014-07-30	27	REPLY to opposition to motion re 25 Emergency MOTION for Order to Show Cause why ex parte declaration should not be struck or made public filed by SUSAN V. TIPOGRAPH. (Light, Jeffrey) (Entered: 07/30/2014)
2014-07-30		MINUTE ORDER denying 25 Plaintiff's Motion for Order to Show Cause. The Court advises the Defendant, in the future, to file a motion for leave before filing ex parte, in camera documents. Signed by Judge Christopher R. Cooper on 7/30/2014. (lccrc2, ) (Entered: 07/30/2014)
2014-07-31		NOTICE of Hearing on Motion 22 MOTION for Summary Judgment :Motion Hearing set for 9/29/2014 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (mac) (Entered: 07/31/2014)
2014-08-25	28	MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by SUSAN V. TIPOGRAPH (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 08/25/2014)
2014-08-27	29	NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES DEPARTMENT OF JUSTICE. Attorney Javier M. Guzman terminated. (McBarnette, Andrea) (Entered: 08/27/2014)
2014-08-27		MINUTE ORDER granting, nunc pro tunc 28 MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment; It is FURTHER ORDERED that Plaintiff shall file her opposition to Defendants Motion for Summary Judgment and Cross-Motion for Summary Judgment by September 29, 2014; Defendant shall file its Reply in Support of Motion for Summary Judgment and Opposition to Plaintiffs Cross-Motion for Summary Judgment by October 28, 2014; and Plaintiff shall file her Reply in Support of Cross-Motion for Summary Judgment by November 17, 2014. It is FURTHER ORDERED that the status hearing scheduled for September 29, 2014 is hereby VACATED. Signed by Judge Christopher R. Cooper on 8/27/2014. (tcr) (Entered: 08/27/2014)
2014-09-29	30	Consent MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment by SUSAN V. TIPOGRAPH (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 09/29/2014)
2014-09-30		MINUTE ORDER granting 30 Motion for Extension of Time to File Response/Reply. Plaintiff shall file her opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by September 30, 2014. Signed by Judge Christopher R. Cooper on 9/30/2014. (lccrc2, ) (Entered: 09/30/2014)
2014-09-30	31	Cross MOTION for Partial Summary Judgment by SUSAN V. TIPOGRAPH (Attachments: # 1 Exhibit 1, # 2 Declaration Ryan Noah Shapiro (Second), # 3 Statement of Facts, # 4 Text of Proposed Order)(Light, Jeffrey) (Entered: 09/30/2014)
2014-09-30	32	Memorandum in opposition to re 22 MOTION for Summary Judgment filed by SUSAN V. TIPOGRAPH. (Attachments: # 1 Declaration Ryan Noah Shapiro (First), # 2 Exhibit 1 - Materials from Mason criminal case, # 3 Statement of Facts, # 4 Text of Proposed Order)(Light, Jeffrey) (Entered: 10/01/2014)
2014-10-11	33	Consent MOTION for Extension of Time to Extend Briefing Schedule by UNITED STATES DEPARTMENT OF JUSTICE (McBarnette, Andrea) (Entered: 10/11/2014)
2014-10-21		MINUTE ORDER granting 33 Defendant's Consent Motion for Extension of Time. It is FURTHER ORDERED that Defendant shall file its reply on or before December 16, 2014, and Plaintiff shall file her reply on or before January 13, 2015. No further extensions to the briefing schedule for the cross motions for summary judgment will be granted. Signed by Judge Christopher R. Cooper on 10/21/2014. (lccrc2, ) (Entered: 10/21/2014)
2014-12-16	34	REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration Second Hardy Decl., # 2 Exhibit Ex. A to Second Hardy Decl., # 3 Exhibit Ex. B to Second Hardy Decl.)(McBarnette, Andrea) (Entered: 12/16/2014)
2014-12-16	35	Memorandum in opposition to re 31 Cross MOTION for Partial Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration Second Hardy Decl., # 2 Exhibit Ex. A to Second Hardy Decl., # 3 Exhibit Ex. B to Second Hardy Decl.)(McBarnette, Andrea) (Entered: 12/16/2014)
2014-12-18	36	NOTICE of Filing by UNITED STATES DEPARTMENT OF JUSTICE re 35 Memorandum in Opposition, 34 Reply to opposition to Motion, (Attachments: # 1 Declaration Second of David M. Hardy)(McBarnette, Andrea) (Entered: 12/18/2014)
2015-01-13	37	REPLY to opposition to motion re 31 Cross MOTION for Partial Summary Judgment filed by SUSAN V. TIPOGRAPH. (Light, Jeffrey) (Entered: 01/13/2015)
2015-03-18	38	MEMORANDUM OPINION re: Defendant's 22 MOTION for Summary Judgment and Plaintiff's 31 Cross MOTION for Partial Summary Judgment. Signed by Judge Christopher R. Cooper on 3/18/2015. (tcr) (Entered: 03/18/2015)
2015-03-18	39	ORDER: For the reasons set forth in the accompanying Memorandum Opinion, it is hereby: ORDERED that Defendant Department of Justices Motion for Summary Judgment 22 is GRANTED. It is FURTHER ORDERED that Plaintiff Susan Tipographs Motion for Summary Judgment 31 is DENIED.This is a final, appealable order. Signed by Judge Christopher R. Cooper on 3/18/2015. (tcr) (Entered: 03/18/2015)
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