Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the FBI properly responded to two FOIA requests filed by attorneys Kel McClanahan and Cori Crider concerning contacts McClanahan had with the FBI after they came into possession of records they suspected contained classified information. As a result of his suit against the CIA, McClanahan received a redacted copy of the table of contents for the CIA in-house journal, Studies in Intelligence. After posting the redacted copy on his website, McClanahan was contacted by a third party who gave him an unredacted copy. Suspecting that copy contained classified information, McClanahan contacted a DOJ attorney for guidance. He was interviewed twice by the FBI in conjunction with the classified indices. Crider, a human rights attorney from the United Kingdom, asked McClanahan to represent Sharif Mobley, an American citizen detained in Yemen on murder charges, in FOIA litigation. While litigating the murder charges in Yemen, Crider received an unredacted copy of the FBI's interview report. Realizing that report might contain classified information, Crider forwarded it to McClanahan. Both documents were discussed during McClanahan's interviews with the FBI. McClanahan and Crider submitted separate FOIA requests to the FBI for records concerning McClanahan's interviews pertaining to the classified information. Both requests were denied under Exemption 7(A) (interference with ongoing investigation or proceeding). Crider submitted another request for records about herself. McClanahan and Crider sued and the FBI, concluding its investigation had ended, processed the requests, disclosing 76 pages in full, 14 pages in part, and withholding 24 pages entirely in response to McClanahan's request, and disclosing 153 pages in full, 101 pages in part, and withholding 27 pages in full in response to Crider's request. McClanahan and Crider requested the agency search a number of locations, but the FBI relied primarily on searches of its Central Records System and its Electronic Surveillance Index. The agency also searched the email accounts of the two employees McClanahan was in contact with, yielding an additional 90 pages from their email accounts. McClanahan and Crider argued the agency had failed to conduct an adequate search because it had not explained why it chose to limit its search. Howell noted that "far from undermining the reasonableness of its searches, as posited by the plaintiffs, the FBI's searches only underscore the fact that the FBI reasonably set the scope of the search and pursued 'clear and certain' leads. The plaintiffs' requests for searches of other specific record systems were 'mere fiat' without explanation as to why those specified record systems would reasonably contain responsive records." Howell found the FBI's use of the same date as the cut-off date for subsequent searches was appropriate. Howell then approved the agency's use of Exemption 3 (other statutes), Exemption 5 (attorney work-product privilege) and Exemption 7(E) (investigative methods and techniques). McClanahan and Crider argued that while some of the records the agency claimed were privileged under the attorney work-product privilege, some of them might not qualify for the privilege. Howell pointed out that "that agency attorneys would discuss and share, among themselves and with FBI agents, factual developments, legal opinions and theories crucial to the legal defense in connection with the [related] FOIA cases is both logical and plausible. Furthermore, as the D.C. Circuit has explained, once 'a document is fully protected as work product, segregability is not required.'" The FBI had cited Exemption 7(E) to protect certain databases. McClanahan and Crider argued non-federal members of FBI task forces were able to access such databases, suggesting they were known to the public. Howell indicated that "merely because deputized non-federal members of the FBI task forces may be authorized to access a database does not somehow render the database public. The databases are plainly neither accessible nor known to the public at large." McClanahan and Crider suggested the FBI may have used an exclusion under Section (c). Howell, however, observed only that if an exclusion had been warranted it had been properly applied.
Issues: Adequacy - Search, Exemption 5 - Privileges - Attorney work-product privilege, Exemption 7(E) - Unknown to public

Date Filed	Doc #	Docket Text
2014-03-21	1	COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-3660551) filed by CORI CRIDER, KELLY MCCLANAHAN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(McClanahan, Kelly) (Entered: 03/21/2014)
2014-03-21		Case Assigned to Judge Beryl A. Howell. (kb) (Entered: 03/24/2014)
2014-03-24	2	ELECTRONIC SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 03/24/2014)
2014-03-24	3	STANDING ORDER. Signed by Judge Beryl A. Howell on March 24, 2014. (lcbah1) (Entered: 03/24/2014)
2014-04-01	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 3/31/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/31/14., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/1/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 5/1/2014.) (McClanahan, Kelly) (Entered: 04/01/2014)
2014-04-30	5	NOTICE of Appearance by Marcia Kay Sowles on behalf of DEPARTMENT OF JUSTICE (Sowles, Marcia) (Entered: 04/30/2014)
2014-04-30	6	Unopposed MOTION for Extension of Time to Respond to Complaint by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Sowles, Marcia) (Entered: 04/30/2014)
2014-04-30		MINUTE ORDER (paperless) GRANTING the defendant's 6 Motion for Extension of Time to Respond to Complaint. The defendant shall, by May 22, 2014, file a response to the plaintiffs' 1 Complaint. Signed by Judge Beryl A. Howell on April 30, 2014. (lcbah1) (Entered: 04/30/2014)
2014-04-30		Set/Reset Deadlines: Answer to the Complaint due by 5/22/2014. (tg, ) (Entered: 05/01/2014)
2014-05-22	7	ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Sowles, Marcia) (Entered: 05/22/2014)
2014-06-27		MINUTE ORDER TO SHOW CAUSE (1) why the plaintiff failed to file a joint meet and confer statement per Local Civil Rule 16.3(d) and paragraph 3 of the Court's 3 Standing Order, and (2) why this action should not be dismissed for failure to prosecute. The plaintiff shall respond by July 7, 2014. Signed by Judge Beryl A. Howell on June 27, 2014. (lcbah2) Modified title on 6/30/2014 (tg, ). (Entered: 06/27/2014)
2014-06-27		Set/Reset Deadlines: Response to Show Cause due by 7/7/2014. (tg, ) (Entered: 06/27/2014)
2014-07-07	8	RESPONSE TO ORDER TO SHOW CAUSE by CORI CRIDER, KELLY MCCLANAHAN re Order to Show Cause, . (McClanahan, Kelly) (Entered: 07/07/2014)
2014-07-07	9	MEET AND CONFER STATEMENT. (McClanahan, Kelly) (Entered: 07/07/2014)
2014-07-08		MINUTE ORDER (paperless) DISCHARGING this Court's Minute Order to Show Cause of June 27, 2014. In light of the parties' 9 Meet and Confer Statement, the parties shall, by October 20, 2014, submit to the Court a status report detailing (1) what issues remain in dispute between the parties and (2) a proposed briefing schedule to control further proceedings in this matter. Signed by Judge Beryl A. Howell on July 8, 2014. (lcbah1) (Entered: 07/08/2014)
2014-07-08		Set/Reset Deadlines: Joint Status Report due by 10/20/2014. (tg, ) (Entered: 07/08/2014)
2014-10-17	10	STATUS REPORT of the Parties by DEPARTMENT OF JUSTICE. (Sowles, Marcia) (Entered: 10/17/2014)
2014-10-17		MINUTE ORDER (paperless) AMENDING this Court's Minute Order of July 8, 2014, in light of the parties' 10 Joint Report, as follows: the parties shall, by November 10, 2014, submit to the Court a status report detailing (1) what issues remain in dispute between the parties and (2) a proposed briefing schedule to control further proceedings in this matter. Signed by Judge Beryl A. Howell on October 17, 2014. (lcbah1) (Entered: 10/17/2014)
2014-10-17		Set/Reset Deadlines: Joint Status Report due by 11/10/2014. (tg, ) (Entered: 10/17/2014)
2014-11-10	11	STATUS REPORT of the Parties by DEPARTMENT OF JUSTICE. (Sowles, Marcia) (Entered: 11/10/2014)
2014-11-12		MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER in light of the parties' 11 Joint Report: the defendant shall, by March 2, 2015, file any motion for summary judgment; the plaintiffs shall, by March 27, 2015, file any opposition; the defendant shall, by April 27, 2015, file any reply. Signed by Judge Beryl A. Howell on November 12, 2014. (lcbah1) (Entered: 11/12/2014)
2014-11-12		Set/Reset Deadlines: Summary Judgment motion due by 3/2/2015; Opposition to Motion for Summary Judgment due by 3/27/2015; Reply due by 4/27/2015. (tg, ) (Entered: 11/12/2014)
2015-03-02	12	MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration David M. Hardy, # 2 Exhibits to Hardy Declaration, # 3 Declaration Priscilla Jones, # 4 Declaration Anna Harrison, # 5 Declaration Mark Bradley, # 6 Statement of Material Facts as to which There is No Genuine Dispute, # 7 Text of Proposed Order)(Sowles, Marcia) (Entered: 03/02/2015)
2015-03-02	13	NOTICE of Ex Parte, In Camera Submission of Classified Declaration of David Hardy by DEPARTMENT OF JUSTICE re 12 MOTION for Summary Judgment (Sowles, Marcia) (Entered: 03/02/2015)
2015-03-11	14	MOTION to Strike 13 Notice (Other) and Ex Parte, In Camera Declaration by CORI CRIDER, KELLY MCCLANAHAN (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 03/11/2015)
2015-03-11		MINUTE ORDER (paperless) DENYING the plaintiffs' 14 Motion to Strike and ACCEPTING the defendant's in camera filing as necessary to provide "a sufficient basis for making a decision" in the instant matter. See Hayden v. NSA , 608 F.2d 1381, 1384 (D.C. Cir. 1979). Signed by Judge Beryl A. Howell on March 11, 2015. (lcbah1) (Entered: 03/11/2015)
2015-03-27	15	Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment by CORI CRIDER, KELLY MCCLANAHAN (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 03/27/2015)
2015-03-27		MINUTE ORDER (paperless) GRANTING the plaintiffs' 15 Unopposed Motion for Brief Enlargement of Time and AMENDING this Court's scheduling order of November 12, 2014 as follows: The plaintiffs shall, by March 30, 2015, file any opposition to the defendants' 12 Motion for Summary Judgment; the defendant shall, by April 30, 2015, file any reply. Signed by Judge Beryl A. Howell on March 27, 2015. (lcbah1) (Entered: 03/27/2015)
2015-03-30		Set/Reset Deadlines: Opposition to 12 Motion for Summary Judgment due by 3/30/2015; Reply due by 4/30/2015. (tg, ) (Entered: 03/30/2015)
2015-03-31	16	Memorandum in opposition to re 12 MOTION for Summary Judgment filed by CORI CRIDER, KELLY MCCLANAHAN. (Attachments: # 1 Exhibit A - McClanahan 2d appeal, # 2 Exhibit B - Sowles-McClanahan email, # 3 Exhibit C - McClanahan declaration, # 4 Exhibit D - Dillon Reply, # 5 Exhibit E - Mobley 2d Argall declaration, # 6 Text of Proposed Order)(McClanahan, Kelly) (Entered: 03/31/2015)
2015-03-31	17	ERRATA by CORI CRIDER, KELLY MCCLANAHAN 16 Memorandum in Opposition, filed by CORI CRIDER, KELLY MCCLANAHAN. (McClanahan, Kelly) (Entered: 03/31/2015)
2015-04-02	18	Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment (Nunc Pro Tunc) by CORI CRIDER, KELLY MCCLANAHAN (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 04/02/2015)
2015-04-02		MINUTE ORDER (paperless) GRANTING, nunc pro tunc , the plaintiff's 18 Unopposed Motion for Brief Enlargement of Time to File Opposition. The plaintiff's 16 Opposition to the defendant's 12 Motion for Summary Judgment is deemed timely filed. Signed by Judge Beryl A. Howell on April 2, 2015. (lcbah1) (Entered: 04/02/2015)
2015-04-24	19	Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Sowles, Marcia) (Entered: 04/24/2015)
2015-04-24		MINUTE ORDER (paperless) GRANTING the defendant's 19 Unopposed Motion for Extension of Time to File a Reply. The defendant shall, by May 8, 2015, file any reply in support of its 12 Motion for Summary Judgment. Signed by Judge Beryl A. Howell on April 24, 2015. (lcbah1) (Entered: 04/24/2015)
2015-04-24		Set/Reset Deadlines: Reply in support of 12 Motion for Summary Judgment due by 5/8/2015. (tg, ) (Entered: 04/24/2015)
2015-05-08	20	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Supplemental Declaration of David Hardy, # 2 Declaration of Sean O'Neil)(Sowles, Marcia) (Entered: 05/08/2015)
2015-05-08	21	NOTICE of Submission of Ex Parte, In Camera Declaration of David Hardy by DEPARTMENT OF JUSTICE re 20 Reply to opposition to Motion (Sowles, Marcia) (Entered: 05/08/2015)
2015-07-28	22	ORDER GRANTING in part and DENYING in part the defendant's 12 Motion for Summary Judgment. The 12 Motion is GRANTED as to Counts Three, Four, and Five of the plaintiffs' 1 Complaint and DENIED, without prejudice, in all other respects. Plaintiff McClanahan's appeal of the denial of his October 10, 2013 FOIA request is REMANDED to the defendant to be processed in the first instance. The parties shall submit jointly, by September 28, 2015, a report apprising the Court of the status of the defendant's processing of the aforementioned FOIA appeal, and every thirty (30) days thereafter, until the defendant's processing is complete, at which time the parties shall submit a proposed schedule to govern further proceedings in this matter. See Order for further details. Signed by Judge Beryl A. Howell on July 28, 2015. (lcbah1) (Entered: 07/28/2015)
2015-07-28		Set/Reset Deadlines: Joint Status Report due by 9/28/2015, and every thirty (30) days thereafter. (tg) (Entered: 07/28/2015)
2015-09-28	23	Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Sowles, Marcia) (Entered: 09/28/2015)
2015-10-28	24	Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Sowles, Marcia) (Entered: 10/28/2015)
2015-10-28		MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER to control the timing of the dispositive motions in this matter, upon consideration of the parties' 24 Joint Report. The defendant shall, by December 18, 2015, file its motion for summary judgment; the plaintiffs shall, by January 19, 2016, file their opposition and any cross-motion for summary judgment; the defendant shall, by February 17, 2016, file any reply and opposition to any cross-motion; and the plaintiffs shall, by March 1, 2016, file any reply in support of any cross-motion. Signed by Judge Beryl A. Howell on October 28, 2015. (lcbah1) (Entered: 10/28/2015)
2015-10-28		Set/Reset Deadlines: Summary Judgment motions due by 12/18/2015; Cross-Motion and Opposition to Motion for Summary Judgment due by 1/19/2016; Opposition to Cross-Motion and Reply to Opposition to Motion for Summary Judgment due by 2/17/2016; Reply to Opposition to Cross Motion due by 3/1/2016. (tg) (Entered: 10/28/2015)
2015-12-18	25	MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Fifth Declaration of David M. Hardy, # 2 Statement of Facts, # 3 Text of Proposed Order)(Sowles, Marcia) (Attachment 1 replaced on 12/18/2015) (td). (Entered: 12/18/2015)
2015-12-18	26	NOTICE of Ex Parte, In Camera Filing by DEPARTMENT OF JUSTICE re 25 MOTION for Summary Judgment (Sowles, Marcia) (Entered: 12/18/2015)
2016-01-19	27	Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment by CORI CRIDER, KELLY MCCLANAHAN (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 01/19/2016)
2016-01-20		MINUTE ORDER (paperless) GRANTING nunc pro tunc the plaintiffs' 27 Unopposed Motion for Enlargement of Time to file Their Opposition to Defendant's Renewed Motion for Summary Judgment. Accordingly, the plaintiffs shall, by January 29, 2016, file their opposition to the defendant's renewed motion for summary judgment and any cross-motion for summary judgment; the defendant shall, by March 9, 2016, file any reply in support of its renewed motion for summary judgment and any opposition to the plaintiffs cross-motion for summary judgment; the plaintiffs shall, by April 1, 2016, file any reply in support of their cross-motion for summary judgment. Signed by Judge Beryl A. Howell on January 20, 2016. (lcbah1) Modified deadline date on 1/20/2016 (tg). (Entered: 01/20/2016)
2016-01-20		Set/Reset Deadlines: Cross-Motion/Opposition to Motion for Summary Judgment due by 1/28/2016; Opposition to Cross-Motion/Reply to Motion for Summary Judgment due by 3/9/2016; Reply to Opposition to Cross-Motion due by 4/1/2016. (tg) (Entered: 01/20/2016)
2016-01-29	28	Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment by CORI CRIDER, KELLY MCCLANAHAN (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 01/29/2016)
2016-02-01		MINUTE ORDER (paperless) GRANTING nunc pro tunc the plaintiffs' 28 Unopposed Motion for Enlargement of Time to File Their Opposition to Defendant's Renewed Motion for Summary Judgment. Accordingly, the plaintiffs shall, by February 4, 2016, file their opposition to the defendant's 25 Motion for Summary Judgment. Signed by Judge Beryl A. Howell on February 1, 2016. (lcbah1) (Entered: 02/01/2016)
2016-02-01		Set/Reset Deadlines: Plaintiffs' Opposition to Motion for Summary Judgment due by 2/4/2016. (tg) (Entered: 02/01/2016)
2016-02-05	29	Memorandum in opposition to re 25 MOTION for Summary Judgment filed by CORI CRIDER, KELLY MCCLANAHAN. (Attachments: # 1 Exhibit A - Redacted emails, # 2 Exhibit B - 1999 delegation memo, # 3 Exhibit C - DOJ classification guidance, # 4 Exhibit D - NSC JMD response, # 5 Text of Proposed Order)(McClanahan, Kelly) (Entered: 02/05/2016)
2016-02-05	30	Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment by CORI CRIDER, KELLY MCCLANAHAN (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 02/05/2016)
2016-02-08		MINUTE ORDER (paperless) GRANTING nunc pro tunc the plaintiffs' 30 Unopposed Nunc Pro Tunc Motion for Brief Enlargement of Time to File Their Opposition to Defendant's Renewed Motion for Summary Judgment. Accordingly, the plaintiffs' 29 Opposition to Defendants' Renewed Motion for Summary Judgment was timely filed. Signed by Judge Beryl A. Howell on February 8, 2016. (lcbah1) (Entered: 02/08/2016)
2016-03-04	31	Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Sowles, Marcia) (Entered: 03/04/2016)
2016-03-04		MINUTE ORDER (paperless) GRANTING the defendant's 31 Unopposed Motion for Extension of Time to File Reply in Support of Defendant's Motion for Summary Judgment. Accordingly, the defendant shall, by March 15, 2016, file any reply in support of its 25 Motion for Summary Judgment. Signed by Judge Beryl A. Howell on March 4, 2016. (lcbah1) (Entered: 03/04/2016)
2016-03-04		Set/Reset Deadlines: Defendant's Reply in support of 25 Motion for Summary Judgment due by 3/15/2016. (tg) (Entered: 03/04/2016)
2016-03-15	32	REPLY to opposition to motion re 25 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration Seventh Declaration of David M. Hardy)(Sowles, Marcia) (Entered: 03/15/2016)
2016-09-01	33	ORDER GRANTING the defendant's 25 Renewed Motion for Summary Judgment. The Clerk is directed to close this case. See Order for further details. Signed by Chief Judge Beryl A. Howell on September 1, 2016. (lcbah1) (Entered: 09/01/2016)
2016-09-01	34	MEMORANDUM OPINION regarding the defendant's 25 Renewed Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on September 1, 2016. (lcbah1) (Entered: 09/01/2016)
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