Case Detail

FOIA Project Annotation: A judge in Michigan has ruled that the FBI failed to conduct an adequate search for records concerning the investigation and determination to identify the "Juggalos" as a gang, but that it properly withheld records under a variety of exemptions. The law firm Hertz Schram made a multi-part request concerning the gang. In response, the FBI located 63 pages and released 62 pages with redactions. The agency subsequently found another 93 pages, disclosing 40 pages. At about the same time, the FBI received a request from MuckRock.com for records concerning the Insane Clown Posse, noting that they were also referred to as the Juggalos. The FBI released 121 pages in response to MuckRock's request. Hertz Schram argued that because MuckRock received more records pertaining to essentially the same topic the agency's search was inadequate. The court disagreed, noting that "even if the extra documents submitted in response to the MuckRock request would have been responsive to Plaintiff's request as well, the mere fact that additional responsive documents exist that were not disclosed does not, without more, indicate that the FOIA search was inadequate." Nevertheless, the court found the agency's search was inadequate. After a search of the central records system, the court observed, the FOIA office properly concluded that the National Gang Intelligence Center was the only office likely to have responsive records. But the court noted that "the declaration of the NGIC's search for records is insufficient. . .The declaration does not describe how the NGIC organized or searched its files, nor does the declaration provide information regarding 'the procedures the NGIC used to process the request and to ensure that it appropriately responded to the request." Further, the NGIC misinterpreted the request as limited to the records relied upon to classify the Juggalos as a gang. The court pointed out that "the language of the request encompasses not only documents relating to the decision to classify the Juggalos as a gang, but also, more generally, the investigation of the Juggalos for suspected gang activity in preparation for the report." The court agreed that the agency had improperly narrowed the scope of the request by ending its search at 2011 when the NGIC report was issued, rather than in 2012, the date of the request. The court indicated that "Plaintiff's FOIA request expressly sought records 'regarding' two underlying events�"the investigation and determination to classify the Juggalos as a gang in the 2011 report�"and the request expressly encompassed records relating to, but dating after, the report. Because Plaintiff's request sought records 'from 2007 to the present,' the appropriate temporal scope of the FBI's request would have been 2007 to the start date of the FBI's search." The court found that information from law enforcement agencies to the NGIC was protected by Exemption 5 (privileges). The court explained that "the intra-agency notes reflected the thoughts of the FBI analyst, and the law enforcement memos were prepared in consultation with the FBI on the subject of gang reports, detailed gang intelligence, and reports of gang-related criminal activity." The court also agreed that information from law enforcement sources was protected by Exemption 7(D) (confidential sources). The FBI argued that "these law enforcement agencies did not intend or expect that this cooperative exchange of detailed and singular law enforcement information and intelligence, which was provided to the FBI solely for purposes of furthering NGIC's research, would be publicly disclosed by the FBI." The court accepted the agency's argument, noting that "the nature of the investigation�"ongoing research into the possibly gang-related criminal activities of members of an organization�"supports a conclusion that the state and local law enforcement agencies submitted the bulletins, identification forms, and police report under an implied assurance of confidentiality."
Issues: Adequacy - Search

FOIA Project Annotation: The court ruled that the FBI has shown that it conducted an adequate search for records concerning the inclusion of the "Juggalos" as a gang in the 2011 National Gang Intelligence Center report. In a prior ruling, the court indicated the agency had failed to adequately explain its search, including its decision not to search for other FBI records pertaining to investigations of the Juggalos after the 2011 report. This time the agency submitted a supplementary affidavit from the Unit Chief of the NGIC to satisfy the court's remaining concerns. The new affidavit indicated that the NGIC analyst responsible for the inclusion of the Juggalos as a gang in the 2011 report relied on a 156-page hard copy file compiled from contributions by local and state law enforcement and that the file was produced in response to the request. With this new information, the court agreed with the FBI that the plaintiffs' request pertained only to the agency's decision to classify the Juggalos as a gang in the 2011 NGIC report and not any subsequent agency records pertaining to the Juggalos. The court noted that "the [affidavit] indicates that the NGIC uses information it receives from state and local law enforcement agencies to identify emerging trends in gang activity and, in this case, when it identified the Juggalos as one such trend, it solicited additional information on the topic from state and local agencies. Using the information received by state and local agencies, as well as open-source reporting, the NGIC then reported on the Juggalos in its 2011 report. . .Because the analyst compiled and relied exclusively on the materials contained in the hard-copy file folder, the contents of the folder would have contained all of the information concerning the Juggalos for the report, including information in favor of characterizing the Juggalos as a gang, as well as information that weighed against characterizing the Juggalos as such."
Issues: Adequacy - Search

FOIA Project Annotation: A federal court in Michigan has ruled that the law firm of Hertz Schram is not entitled to attorneys fees for its FOIA litigation on behalf of the "Juggalos," a group that had allegedly been improperly classified as a gang by the FBI, because it did not substantially prevail in the litigation. The agency argued that Hertz Schram's FOIA suit was filed prematurely before the expiration of the 20-day statutory time limit. The court agreed with Hertz Schram that the 20-day response period began when an agency received a request, not when it acknowledged receipt. The court observed that "plaintiff's FOIA request was submitted by email on August 24, 2012, making it received by the agency on the same date. According to the Court's calculations, 20 days from August 24, 2012, excluding weekends and legal holidays, expired at the close of business on September 21, 2012. Therefore, it appears that Plaintiff's suit, filed on September 25, 2012, was not premature." But the court proceeded to note that there was no reason to conclude that Hertz Schram's lawsuit was necessary to force the agency to respond. Rather, the court agreed that the agency had begun processing the request before the lawsuit was filed. The court observed that 'the lag in the FBI's response time appears to be the product of administrative delay that is routinely associated with bureaucratic processes and procedures; there is no suggestion that the FBI was intentionally resisting or obstructing Plaintiff's request." Hertz Schram argued that its representation of the Juggalos was solely for purposes of seeking injunctive relief, not damages. But the court pointed out that "that fact does not change the underlying commercial nature of Plaintiff's relationship with those litigants. Notably, Plaintiff has not indicated that it is representing its clients pro bono; therefore Plaintiff is presumably being compensated for its services in the underlying litigation, and to the extent the request was made in furtherance of that litigation, Plaintiff has a pecuniary interest in obtaining the documents."
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Entitlement - Commercial interest

Date Filed	Doc #	Docket Text
2012-09-25	1	COMPLAINT filed by All Plaintiffs against Federal Bureau of Investigation. Plaintiff requests summons issued. Receipt No: 0645-3732515 - Fee: $ 350. County of 1st Plaintiff: Oakland - County Where Action Arose: Oakland - County of 1st Defendant: USA. [ Previously dismissed case: No] [ Possible companion case(s): None ] (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Thomson, Elizabeth) (Entered: 09/25/2012)
2012-09-25	2	SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (TMcg) (Entered: 09/25/2012)
2012-09-25	3	SUMMONS Issued for *Federal Bureau of Investigation* (TMcg) (Entered: 09/25/2012)
2012-09-25		A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (TMcg) (Entered: 09/25/2012)
2012-10-03	4	CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of Federal Bureau of Investigation served on 9/27/2012, answer due 11/26/2012. (Thomson, Elizabeth) (Entered: 10/03/2012)
2012-10-04	5	NOTICE of Appearance by Howard Hertz on behalf of Hertz Schram PC, Insane Clown Posse, LLC, Psychopathic Records, Inc.. (Hertz, Howard) (Entered: 10/04/2012)
2012-10-16	6	CERTIFICATE of Service/Summons Returned Executed. Federal Bureau of Investigation served on October 3, 2012. (Thomson, Elizabeth) Modified on 10/16/2012 (PMil).[WRONG DOCKET EVENT SELECTED - DOCUMENT IS A CERTIFICATE OF MAILING] (Entered: 10/16/2012)
2012-10-16	7	CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of Federal Bureau of Investigation served on 10/4/2012, answer due 12/3/2012. (Thomson, Elizabeth) Modified on 10/16/2012 (PMil).[WRONG DOCKET EVENT SELECTED - DOCUMENT IS A CERTIFICATE OF MAILING] (Entered: 10/16/2012)
2012-10-24	8	NOTICE of Appearance by Laura A. Sagolla on behalf of Federal Bureau of Investigation. (Sagolla, Laura) (Entered: 10/24/2012)
2012-10-29	9	MOTION to Dismiss (PARTIAL) by Federal Bureau of Investigation. (Sagolla, Laura) (Entered: 10/29/2012)
2012-10-29	10	ANSWER to Complaint with Affirmative Defenses by Federal Bureau of Investigation. (Sagolla, Laura) (Entered: 10/29/2012)
2012-11-02	11	REPLY to 10 Answer to Complaint Affirmative Defenses by Hertz Schram PC, Insane Clown Posse, LLC, Psychopathic Records, Inc.. (Thomson, Elizabeth) (Entered: 11/02/2012)
2012-11-02	12	NOTICE of Hearing on 9 MOTION to Dismiss (PARTIAL) . Motion Hearing set for 2/7/2013 @ 1:30 PM **LOCATION: FLINT, MICHIGAN** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 11/02/2012)
2012-12-05	13	STIPULATION AND ORDER to Dismiss Psychopathic Records, Inc. and Insane Clown Posse, LLC as Plaintiffs and to Amend Case Caption. Signed by District Judge Mark A. Goldsmith. (KKra) (Entered: 12/05/2012)
2012-12-06	14	ORDER REGARDING TELEPHONIC SCHEDULING CONFERENCE: Telephonic Scheduling Conference set for 1/7/2013 @ 3:30 PM before District Judge Mark A. Goldsmith . ELIZABETH C. THOMSON, ATTORNEY FOR PLAINTIFF, SHALL INITIATE THE CALL. SEE IMAGE FOR MORE INFORMATION. (Goltz, D) (Entered: 12/06/2012)
2013-01-02	15	DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Thomson, Elizabeth) (Entered: 01/02/2013)
2013-01-04		TEXT-ONLY NOTICE: The Telephonic Scheduling Conference set for 1/7/2013 is CANCELLED. *Case Management and Scheduling Order to be issued.* (Goltz, D) (Entered: 01/04/2013)
2013-01-10		TEXT-ONLY NOTICE: The Motion Hearing set for 2/7/2013 is CANCELLED. (Goltz, D) (Entered: 01/10/2013)
2013-01-15	16	CASE MANAGEMENT AND SCHEDULING ORDER: Fact/Expert Discovery due by 6/3/2013, Dispositive Motion Cut-off set for 7/1/2013, All Other Motion Cut-Off set for 12/30/2013, Settlement Conference set for 1/13/2014 @ 1:30 PM before District Judge Mark A. Goldsmith, Joint Final Pretrial Order due by 1/27/2014, Final Pretrial Conference set for 2/10/2014 @ 1:30 PM before District Judge Mark A. Goldsmith, Jury Trial set for 3/10/2014 @ 8:30 AM before District Judge Mark A. Goldsmith . Signed by District Judge Mark A. Goldsmith. (Refer to image for additional dates) (Goltz, D) (Entered: 01/15/2013)
2013-01-15	17	ORDER REFERRING OTHER MATTERS to Magistrate Judge Whalen : * Early Settlement Conference.* Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 01/15/2013)
2013-01-16	18	NOTICE TO APPEAR: Settlement Conference set for 5/21/2013 at 01:30 PM before Magistrate Judge R. Steven Whalen . (THac) (Entered: 01/16/2013)
2013-04-22	19	Exhibit List by Hertz Schram PC. (Thomson, Elizabeth) (Entered: 04/22/2013)
2013-04-22	20	WITNESS LIST by Hertz Schram PC (Thomson, Elizabeth) (Entered: 04/22/2013)
2013-04-22	21	Exhibit List by Federal Bureau of Investigation. (Sagolla, Laura) (Entered: 04/22/2013)
2013-04-22	22	Defendant's Lay WITNESS LIST by Federal Bureau of Investigation (Sagolla, Laura) (Entered: 04/22/2013)
2013-05-21		Minute Entry - Settlement Conference held on 5/21/2013 before Magistrate Judge R. Steven Whalen. Disposition: Parties DID NOT settle. (MWil) (Entered: 05/21/2013)
2013-05-24	23	NOTICE of Appearance by Derri T. Thomas on behalf of Federal Bureau of Investigation. (Thomas, Derri) (Entered: 05/24/2013)
2013-05-24		Set/Reset Scheduling Order Deadlines: Fact/Expert Discovery due by 8/5/2013, Dispositive Motion Cut-off reset for 9/3/2013, All Other Motion Cut-Off reset for 2/24/2014, Settlement Conference reset for 3/10/2014 @ 1:30 PM, Joint Final Pretrial Order due by 3/31/2014, Final Pretrial Conference reset for 4/14/2014 @ 1:30 PM, Jury Trial reset for 5/12/2014 @ 8:30 PM before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 05/24/2013)
2013-08-19	25	ORDER Striking 24 MOTION for Summary Judgment, ( Responses due by 8/26/2013 ). Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 08/19/2013)
2013-08-23	26	Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT by Federal Bureau of Investigation. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Declaration of David M. Hardy, # 3 Exhibit 1-A - 8/24/12 email, # 4 Exhibit 1-B - 8/27/12 email, # 5 Exhibit 1-C - 9/25/12 letter, # 6 Exhibit 1-D - 12/6/12 letter, # 7 Exhibit 1-E - 1/30/13 letter, # 8 Exhibit 1-F - FBI- 1- FBI-156, # 9 Exhibit 2 - Vaughn Index) (Thomas, Derri) (Entered: 08/23/2013)
2013-08-30	27	NOTICE OF HEARING on 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT . Motion Hearing set for 10/25/2013 @ 1:30 PM **LOCATION: FLINT, MICHIGAN** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 08/30/2013)
2013-09-03		Set/Reset Deadlines as to 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT . Motion Hearing reset for 11/7/2013 @ 1:30 PM **LOCATION: FLINT, MICHIGAN** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 09/03/2013)
2013-09-13	28	NOTICE of Appearance by Matthew J. Turchyn on behalf of Hertz Schram PC. (Turchyn, Matthew) (Entered: 09/13/2013)
2013-09-13	29	RESPONSE to 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT filed by Hertz Schram PC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3) (Turchyn, Matthew) (Entered: 09/13/2013)
2013-09-30	30	STIPULATED ORDER for Extension of Time for Defendant to File Its Reply Brief in Support of 26 Amended MOTION for Summary Judgment, ( Replies due by 10/4/2013 ). Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 09/30/2013)
2013-10-04	31	REPLY to Response re 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT filed by Federal Bureau of Investigation. (Thomas, Derri) (Entered: 10/04/2013)
2013-11-04		Set/Reset Deadlines as to 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT . Motion Hearing reset for 12/12/2013 @ 1:30 PM **AT THE REQUEST OF COUNSEL** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 11/04/2013)
2013-12-10		Set/Reset Deadlines as to 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT . Motion Hearing RESET for 1/16/2014 @ 1:30 PM **AT THE REQUEST OF COUNSEL** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 12/10/2013)
2014-01-13	32	NOTICE by Hertz Schram PC of Potentially Related Cases (Hertz, Howard) (Entered: 01/13/2014)
2014-01-15		Set/Reset Deadlines as to 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT . Motion Hearing RESET for 1/16/2014 @ 9:00 AM before District Judge Mark A. Goldsmith **LOCATION: DETROIT, MICHIGAN - COURTROOM #242** (Goltz, D) (Entered: 01/15/2014)
2014-01-15		Set/Reset Deadlines as to 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT . Motion Hearing set for 1/16/2014 @ 9:00 AM **LOCATION CHANGE ONLY: DETROIT, MICHIGAN - COURTROOM #110 (JUDGE DRAIN'S COURTROOM)** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 01/15/2014)
2014-01-16		Minute Entry for proceedings held before District Judge Mark A. Goldsmith: Motion Hearing held on 1/16/2014 re 26 Amended MOTION for Summary Judgment AND BRIEF IN SUPPORT OF AMENDED MOTION FOR SUMMARY JUDGMENT filed by Federal Bureau of Investigation. Disposition: TAKEN UNDER ADVISEMENT. Court Reporter David Yarbrough) (Goltz, D) (Entered: 01/16/2014)
2014-02-25	33	OPINION AND ORDER Granting in Part and Denying in Part Defendant Federal Bureau of Investigation's 26 Motion for Summary Judgment, ( Plaintiff's Supplemental Brief due by 3/5/2014, Defendant's Supplemental Brief due by 3/12/2014 ). Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 02/25/2014)
2014-03-03		TEXT-ONLY NOTICE: The Settlement Conference set for 3/10/2014 is CANCELLED. (Goltz, D) (Entered: 03/03/2014)
2014-03-05	34	SUPPLEMENTAL BRIEF re 33 Order, Terminate Motions, Set Deadlines/Hearings,,, filed by Hertz Schram PC. (Hertz, Howard) (Entered: 03/05/2014)
2014-03-13	35	Ex Parte MOTION for Leave to File Supplemental Brief One Day Late by Federal Bureau of Investigation. (Attachments: # 1 Exhibit A Defendant's Supplemental Brief) (Thomas, Derri) (Entered: 03/13/2014)
2014-03-13		TEXT-ONLY ORDER Granting 35 Ex Parte MOTION for Leave to File Supplemental Brief One Day Late filed by Federal Bureau of Investigation, ( Response due by 3/13/2014 ). Issued by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 03/13/2014)
2014-03-13	36	SUPPLEMENTAL BRIEF re 33 Order, Terminate Motions, Set Deadlines/Hearings,,, filed by Federal Bureau of Investigation. (Attachments: # 1 Exhibit 3 Declaration of Diedre Butler) (Thomas, Derri) (Entered: 03/13/2014)
2014-04-09	37	ORDER Granting Leave for Defendant Federal Bureau of Investigation to File a Second Summary Judgment Motion and Adjourning Scheduling Dates Pending Further Order of the Court, ( Response due by 4/23/2014 ). Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 04/09/2014)
2014-04-23	38	Second MOTION for Summary Judgment by Federal Bureau of Investigation. (Attachments: # 1 Exhibit 1 - Declaration of Diedre D. Butler) (Thomas, Derri) (Entered: 04/23/2014)
2014-04-28	39	NOTICE OF HEARING on 38 Second MOTION for Summary Judgment . Motion Hearing set for 6/26/2014 @ 1:30 PM **LOCATION: FLINT, MICHIGAN** before District Judge Mark A. Goldsmith (Goltz, D) (Entered: 04/28/2014)
2014-05-13	41	ORDER Striking 40 Stipulation filed by Hertz Schram PC. Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 05/13/2014)
2014-05-14	42	STIPULATION AND ORDER for Extension of Time to File a Response re 38 Second MOTION for Summary Judgment , ( Response due by 6/4/2014 ). Signed by District Judge Mark A. Goldsmith. (Goltz, D) (Entered: 05/14/2014)
2014-05-21	43	RESPONSE to 38 Second MOTION for Summary Judgment filed by Hertz Schram PC. (Hertz, Howard) (Entered: 05/21/2014)
2014-05-23		TEXT-ONLY NOTICE: The Motion Hearing set for 6/26/2014 is CANCELLED re 39 Notice of Hearing on Motion. (Goltz, D) (Entered: 05/23/2014)
2014-05-23	44	Notice of Determination of Motion Without Oral Argument re 38 Second MOTION for Summary Judgment . (Goltz, D) (Entered: 05/23/2014)
2014-06-20		TEXT-ONLY NOTICE: The Motion Hearing set for 6/26/2014 is CANCELLED. (Goltz, D) (Entered: 06/20/2014)
2014-11-05	45	OPINION and ORDER Granting Defendant Federal Bureau Of Investigation's Second Motion For Summary Judgment 38 . Signed by District Judge Mark A. Goldsmith. (JCur) (Entered: 11/05/2014)
2014-11-05	46	JUDGMENT signed by District Judge Mark A. Goldsmith. (JCur) (Entered: 11/05/2014)
Hide Docket Events