Case Detail

FOIA Project Annotation: Judge John Bates has ruled that the Justice Department conducted an adequate search for records pertaining to a fraud case referred to DOJ by the World Bank and properly withheld most of the records it found under Exemption 5 (privileges). Bates also found that the Government Accountability Project failed to exhaust its administrative remedies because it did not file a proper appeal. GAP originally requested records of correspondence between the World Bank or Diligence LLC and the Criminal Division regarding Satyam Computer Services, the Development Gateway Foundation, or Mohamed Vazir Mushin. The Criminal Division found no responsive records and GAP followed up with a similar request from specific offices within the Criminal Divisionâ€"the Fraud Section, the Computer Crime and Intellectual Property Section, and the Office of International Affairs. Again, no responsive records were located. Based on information from the World Bank concerning a meeting between the Fraud Section and the World Bank and a follow-up letter from DOJ regarding "its review of the case for possible prosecution," GAP contacted the Public Liaison at the Criminal Division, describing the DOJ letter. As a result of that contact, the Fraud Section found responsive documents, but not the DOJ letter, and withheld most of them. The agency argued that GAP failed to appeal its second request for records from specific agencies. GAP asserted that its contact with the Criminal Division's Public Liaison constituted "a request to perform a better search" or "an administrative appeal." DOJ contended the contact was not an administrative appeal, which requires a written letter sent to the Office of Information Policy. Bates sided with DOJ, noting that "even though GAP claims that its informal communication should be considered a 'request to perform a better search' or alternatively, 'an administrative appeal,' GAP does not seriously contest that it failed to comply with DOJ's published regulations governing administrative appeals for FOIA requests. . .These procedures for appealing FOIA responses are not merely technical requirements. 'Rather, they are designed to create a uniform and streamlined process to ensure that appeals are received and processed, and the DOJ is entitled to insist that requestors adhere to their strictures.' Because GAP failed to comply with these procedures, its FOIA claims relating to the July 27, 2009 response [to its second request] must be dismissed." Rejecting GAP's contention that the search was inadequate, Bates noted that "DOJ performed four separate searches for records in the sections requested by GAP. . .DOJ also modified and expanded its search, after GAP provided additional information about the kinds of documents and information it sought. These efforts more than satisfied DOJ's obligation to conduct a good faith search using 'methods that can reasonably be expected to produce the information requested.'" GAP largely attacked the agency's privilege claims by arguing that the attorney who signed the agency affidavit did not have the authority to invoke either the deliberative process privilege or the attorney work-product privilege. Bates found the attorney was the deputy chief of the FOIA unit and did have the authority to invoke the privilege. He also dismissed GAP's assertion that only the attorneys involved in litigation could claim the work-product privilege. He noted that "GAP cites to no caselaw standing for the proposition that only the attorneys directly involved in the actual potential litigation can determineâ€"on behalf of the agency as a wholeâ€"whether certain documents should be withheld under FOIA."
Issues: Adequacy - Search, Exemption 5 - Privileges, Litigation - Jurisdiction - Failure to Exhaust

Date Filed	Doc #	Docket Text
2011-02-09	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616036359) filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 02/09/2011)
2011-02-09		SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (dr) (Entered: 02/09/2011)
2011-03-02	2	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed in a FOIA Case as to the U.S. Attorney, served on 2/14/2011, answer due 3/16/2011 for U.S. Attorney. (Condit, Richard) Modified on 3/3/2011 to edit text (dr). (Entered: 03/02/2011)
2011-03-02	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 02/14/2011. (Condit, Richard) (Entered: 03/02/2011)
2011-03-02	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to DEPARTMENT OF JUSTICE, served 2/14/2011. (Condit, Richard) Modified on 3/3/2011 to edit text (dr). (Entered: 03/02/2011)
2011-03-04	5	NOTICE of Appearance by Marina Utgoff Braswell on behalf of U.S. DEPARTMENT OF JUSTICE (Braswell, Marina) (Entered: 03/04/2011)
2011-03-15	6	ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Braswell, Marina) (Entered: 03/15/2011)
2011-03-16	7	ORDER directing the parties to confer and submit a proposed briefing schedule by not later than April 6, 2011. See text of order. Signed by Judge John D. Bates on 3/16/2011.(lcjdb3) (Entered: 03/16/2011)
2011-03-18		Set/Reset Deadlines: Proposed Briefing Schedule due by 4/6/2011. (tb, ) (Entered: 03/18/2011)
2011-04-06	8	NOTICE of Propose Briefing Schedule by GOVERNMENT ACCOUNTABILITY PROJECT (Condit, Richard) (Entered: 04/06/2011)
2011-04-07		MINUTE ORDER: Upon consideration of 8 the parties' joint memorandum proposing a briefing schedule, it is hereby ORDERED that defendant's dispositive motion and Vaughn index shall be filed by not later than May 6, 2011; plaintiff's opposition and cross-motion shall be filed by not later than June 6, 2011; defendant's reply and opposition brief shall be filed by not later than July 8, 2011; and plaintiff shall seek leave to file a reply to defendant's opposition, if necessary. Signed by Judge John D. Bates on 4/7/2011. (lcjdb3) (Entered: 04/07/2011)
2011-04-08		Set/Reset Deadlines: Defendant;s Dispositive Motions and Vaughn Index due by 5/6/2011. Plaintiff's Response and Cross Motion to Dispositive Motions due by 6/6/2011. Defendant's Reply and Oppositon to Dispositive Motions due by 7/8/2011. (tb, ) (Entered: 04/08/2011)
2011-05-05	9	Unopposed MOTION for Extension of Time to File Dispositive Motion by U.S. DEPARTMENT OF JUSTICE (Braswell, Marina) (Entered: 05/05/2011)
2011-05-06		MINUTE ORDER: Upon consideration of 9 defendant's consent motion for an extension of time to file a dispositive motion, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall file a dispositive motion by not later than May 10, 2011. SO ORDERED. Signed by Judge John D. Bates on 5/6/11. (lcjdb1) (Entered: 05/06/2011)
2011-05-06		Set/Reset Deadlines: Defendant shall file a dispositive motion by not later than 5/10/2011. (lcjdb1) (Entered: 05/06/2011)
2011-05-10	10	MOTION to Dismiss and for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration of Krstin Ellis and Vaughn Index, # 2 Exhibits to Ellis Declaration)(Braswell, Marina). Added MOTION for Summary Judgment on 5/11/2011 (dr). (Entered: 05/10/2011)
2011-06-03	11	MOTION for Extension of Time to File Opposition and Cross Motion for Summary Judgment by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Text of Proposed Order)(Condit, Richard) (Entered: 06/03/2011)
2011-06-06		MINUTE ORDER: Upon consideration of 11 plaintiff's consent motion for an extension of time to file its opposition to and cross-motion for summary judgment, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the opposition to and cross-motion for summary judgment shall be filed by not later than June 14, 2011. SO ORDERED. Signed by Judge John D. Bates on 6/06/2011. (lcjdb3) Modified on 6/6/2011 (tb, ). (Entered: 06/06/2011)
2011-06-06		Set/Reset Deadlines: Cross Motion/Response to Motion for Summary Judgment due by 6/14/2011. (tb, ) (Entered: 06/06/2011)
2011-06-14	12	Cross MOTION for Summary Judgment by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Condit, Richard) (Entered: 06/14/2011)
2011-06-14	13	Memorandum in opposition to re 10 MOTION to Dismiss and for Summary Judgment MOTION for Summary Judgment filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Attachments: # 1 Exhibit Aff't of Beatrice Edwards with Attachments)(Condit, Richard) (Entered: 06/14/2011)
2011-07-07	14	Unopposed MOTION for Extension of Time to File Response/Reply as to 12 Cross MOTION for Summary Judgment, 10 MOTION to Dismiss and for Summary Judgment MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Braswell, Marina) (Entered: 07/07/2011)
2011-07-08		MINUTE ORDER: Upon consideration of 14 defendant's consent motion for an extension of time to respond to plaintiff's cross-motion for summary judgment and opposition to defendant's dispositive motion, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant's response to plaintiff's cross-motion for summary judgment and opposition to defendant's dispositive motion shall be filed by not later than July 21, 2011. SO ORDERED. Signed by Judge John D. Bates on 7/8/2011. (lcjdb3) (Entered: 07/08/2011)
2011-07-08		Set/Reset Deadlines: Responses due by 7/21/2011 (lcjdb3) (Entered: 07/08/2011)
2011-07-21	15	REPLY to opposition to motion re 10 MOTION to Dismiss and for Summary Judgment MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Supplemental Ellis Declaration and Vaughn Index)(Braswell, Marina) (Entered: 07/21/2011)
2011-07-21	16	Memorandum in opposition to re 12 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Objections and Response to Plaintiff's Statement of Material Facts, # 2 Supplemental Ellis Declaration and Vaughn Index)(Braswell, Marina) (Entered: 07/21/2011)
2011-07-25	17	Consent MOTION for Leave to File Reply by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Text of Proposed Order)(Gray, Karen) (Entered: 07/25/2011)
2011-07-26		MINUTE ORDER: Upon consideration of 17 plaintiff's consent motion for leave to file a reply to defendant's opposition to plaintiff's cross motion for summary judgment, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that plaintiff's reply to defendant's opposition to plaintiff's cross motion for summary judgment shall be filed by not later than August 8, 2011. SO ORDERED. Signed by Judge John D. Bates on 7/26/2011. (lcjdb3) (Entered: 07/26/2011)
2011-07-26		Set/Reset Deadlines: Plaintiff's reply due by 8/8/2011. (tb, ) (Entered: 07/26/2011)
2011-08-08	18	REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Condit, Richard) (Entered: 08/08/2011)
2012-03-29	19	MEMORANDUM OPINION. Signed by Judge John D. Bates on 3/29/2012. (lcjdb3) (Entered: 03/29/2012)
2012-03-29	20	ORDER granting 10 Motion to Dismiss and for Summary Judgment; denying 12 Cross-Motion for Summary Judgment. See text of Order and accompanying Memorandum Opinion for details. Signed by Judge John D. Bates on 3/29/2012. (lcjdb3) (Entered: 03/29/2012)
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