Case Detail

FOIA Project Annotation: A federal court in New Hampshire has accepted the Interior Department's explanation for inconsistencies in its processing of Harold Caton's request, but not after criticizing the agency's behavior and suggesting that Interior Secretary Gale Norton conduct a thorough review of the agency's FOIA practices. The case provides an object lesson in how a fairly inconsequential mistake in processing can snowball. Caton asked for records from the Lowell National Historical Park. He was first allowed to come to the office and look at records that had not been reviewed for exemption claims. When he then asked for copies of the records he had reviewed, the agency withheld 75 documents pursuant to Exemption 5 (deliberative process privilege). After Caton appealed, 30 documents were disclosed completely, 43 were redacted, and only two pages were withheld completely. An agency attorney provided park administrator Lee Hammond with a copy of the 75 documents originally withheld from Caton with instructions to redact and disclose them. They were sequentially numbered with a handwritten circled numeral in the upper corner of each page. Hammond did not make a copy of the unredacted pages, but instead redacted them with black marker, then made a copy of the redacted version, and disclosed the records to Caton. Caton then filed suit and the agency agreed to disclose all the documents. However, Hammond no longer had a complete set of unredacted records. She was able to put together a complete set from various file sources, although some of the information appeared on slightly different documents. The page that was numbered "60" in the original packet somehow ended up as "6" in this packet. Caton noticed the discrepancy and pointed it out to the judge as evidence of bad faith. Instead of explaining what had really happened, Hammond filed an affidavit saying that the "0" on the page originally released as page "60" must have been chopped off when it was copied and appeared now only as a "6." Caton quickly realized that this explanation could not be true since the circle around the number, which was complete, would have been partially missing if that area had been chopped off in the photocopying process. The court agreed and sent the case back to the agency in May to provide a better explanation of what had happened. This time, the court severely criticized the agency's performance. The court noted that "the very documents the Department later claimed were privileged had been disclosed to Caton himself, so the asserted waiver was not based on the agency's release of exempt information to a third party or the agency's release of different records covering a similar subject" and pointed out that the documents could not very well remain privileged as to Caton himself. The court observed that "for the purposes underlying FOIA to be given full effect, however, an agency must thoroughly examine and re-examine its invocation of any FOIA exemptions before forcing the requester to resort to the judicial process. Ignoring this responsibility. . .leaves the impression that the agency is hoping the requester will simply give up on his or her rights under the statute rather than starting what could become a protracted and expensive court battle with the federal government." But the court concluded that "the Department's mistakes in handling Caton's FOIA request do not suffice to overcome the presumption of good faith which accompanies the Second Hammond Declaration. . . Hammond has by now convincingly explained those mistakes, and her explanations leave no room for any real possibility that further documents exist which are responsive to Caton's request." The court ended by lamenting the waste of resources expended for "litigation that did not have to occur." The court added that "Secretary Norton would be well advised to undertake a comprehensive review of all aspects of how the Department responds to FOIA requests. What happened in this case is not good government and should not be repeated."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2004-11-23	1	COMPLAINT against US Department of Interior, Secretary with Jury Demand ( Filing fee $ 150 receipt number 026390) filed by Harold W. Caton. (Attachments:, # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H (Attachments 7-18), # 9 Exhibit H (Attachments 22-28), # 10 Exhibit H (Attachments 30-37), # 11 Exhibit H (Attachments 38-53), # 12 Exhibit H (Attachments 59-75), # 13 Exhibit J (Attachments 1-19), # 14 Exhibit J (Attachments 20-35), # 15 Exhibit J (Attachments 40-54), # 16 Exhibit J (Attachments 55-71))(jeb,). (Entered: 11/30/2004)
2004-11-26		Summons Issued as to US Department of Interior, Secretary.(jeb, ) (Entered: 11/30/2004)
2004-11-26		NOTICE sent. This is not an Electronic Case. The case will be maintained in paper format. (jeb, ) (Entered: 11/30/2004)
2004-12-16	2	Return of Service Executed by Harold W. Caton. Served/mailed on 12/21/2004. Answer due by 2/22/2005.(amm, ) (Entered: 12/17/2004)
2005-01-03	3	MOTION to Extend Time to Answer to 1/24/05 filed by US Department of Interior, Secretary.Served on 1/3/05. Follow up on Objection on 1/24/2005 (amm, ) (Entered: 01/04/2005)
2005-01-10	4	OBJECTION to 3 MOTION to Extend Time to Answer to 1/24/05, served on 1/6/05, filed by Harold W. Caton. (amm, ) (Entered: 01/12/2005)
2005-01-13		ENDORSED ORDER granting 3 Motion to Extend Time to Answer re 1 Complaint. Text of Order: Granted. Signed by Judge James R. Muirhead. Answer due by 1/24/2005.(djb, ) (Entered: 01/13/2005)
2005-01-13		Attorney T. David Plourde for US Department of Interior, Secretary added. (amm, ) (Entered: 01/13/2005)
2005-01-24	5	2ND MOTION to Extend Time to Answer to 2/4/05 filed by US Department of Interior, Secretary.Served on 1/24/05. Follow up on Objection on 2/14/2005 (amm, ) (Entered: 01/25/2005)
2005-02-04	6	MOTION to Dismiss filed by US Department of Interior, Secretary, with memorandum, and declaration.Served on 2/4/05. Follow up on Objection on 2/24/2005 (amm, ) (Entered: 02/07/2005)
2005-02-11		ENDORSED ORDER granting 5 Motion to Extend Time to Answer re 1 Complaint Text of Order: Granted. Signed by Judge James R. Muirhead. Answer due by 2/4/2005.(djb, ) (Entered: 02/11/2005)
2005-02-14	7	OBJECTION to 6 MOTION to Dismiss, served on 2/14/05, filed by Harold W. Caton. Follow up on Objection on 2/17/2005 (amm, ) (Entered: 02/14/2005)
2005-02-15	8	ORDER on Nonconforming Document re: 7 Objection to Motion filed by Harold W. Caton,. Fails to comply with LR7.1(a)(1)Document treated as an objection to the motion to dismiss. Separate motions to be filed.. Cure Document by 2/25/2005. Signed by Judge Joseph A. DiClerico Jr. (amm, ) (Entered: 02/15/2005)
2005-02-16		Govt's Oral Notice of Intent to Reply to Objection to 6 MOTION to Dismiss. Follow up on Reply on 2/24/2005.(amm, ) Modified on 2/17/2005 (amm, ). (Entered: 02/17/2005)
2005-02-22	9	MOTION to Strike Declaration of Ms. Lee A. Hammond dated 2/3/05 6 Motion to Dismiss filed by Harold W. Caton, with memorandum and attachments.Served on 2/22/05. Follow up on Objection on 3/14/2005 (amm, ) (Entered: 02/22/2005)
2005-02-22	10	MOTION for Leave to File amended complaint filed by Harold W. Caton.Served on 2/22/05. Follow up on Objection on 3/14/2005 (amm, ) (Entered: 02/22/2005)
2005-03-01	11	REPLY to Objection to Motion re 6 MOTION to Dismiss filed by US Department of Interior, Secretary. (amm, ) (Entered: 03/02/2005)
2005-03-08	12	OBJECTION to 9 MOTION to Strike Declaration of Lee Hammond 6 Motion to Dismiss, served on 3/8/05, . (amm, ) (Entered: 03/10/2005)
2005-03-08	13	OBJECTION to 10 MOTION for Leave to File amended complaint, served on 3/8/05, . (amm, ) (Entered: 03/10/2005)
2005-03-11	14	MOTION for Leave to File Surreply to motion to dismiss filed by Harold W. Caton, with attachments.Served on 3/11/05. Follow up on Objection on 3/31/2005 (amm, ) (Entered: 03/11/2005)
2005-03-14	15	OBJECTION to 14 MOTION for Leave to File Surreply to motion to dismiss, served on 3/14/05 . (amm, ) (Entered: 03/14/2005)
2005-03-18	16	MOTION for Leave to File Reply to Deft's Obj to Pltf's Motion to Strike Declaration of Lee Hammond filed by Harold W. Caton.Served on 3/18/05. Follow up on Objection on 4/7/2005 (dae, ) (Entered: 03/18/2005)
2005-03-18	17	MOTION for Leave to File Reply to Deft's Obj to Pltf's Motion to Amend Complaint filed by Harold W. Caton.Served on 3/18/05. Follow up on Objection on 4/7/2005 (dae, ) (Entered: 03/18/2005)
2005-03-21	18	OBJECTION to 17 MOTION for Leave to File Reply to Deft's Obj to Pltf's Motion to Amend Complaint, served on 3/21/05, . (amm, ) (Entered: 03/21/2005)
2005-03-21	19	OBJECTION to 16 MOTION for Leave to File Reply to Deft's Obj to Pltf's Motion to Strike Declaration of Lee Hammond, served on 3/21/05, . (amm, ) (Entered: 03/21/2005)
2005-05-02	20	ORDER denying 6 Motion to Dismiss, denying as moot 9 Motion to Strike Declaration of Ms. Lee A. Hammond, denying 10 Motion for Leave to File amended complaint, granting 14 Motion for Leave to File Surreply to motion to dismiss, granting 16 Motion for Leave to File Reply to Deft's Obj to Pltf's Motion to Strike Declaration of Lee Hammond, granting 17 Motion for Leave to File Reply to Deft's Obj to Pltf's Motion to Amend Complaint. Signed by Judge Joseph A. DiClerico Jr.(ga, ) (Entered: 05/02/2005)
2005-05-02	21	REPLY to Objection to Motion re 9 MOTION to Strike 6 Motion to Dismiss filed by Harold W. Caton. (amm, ) (Entered: 05/05/2005)
2005-05-02	22	REPLY to Objection to Motion re 10 MOTION for Leave to File amended complaint filed by Harold W. Caton. (amm, ) (Entered: 05/05/2005)
2005-05-02	23	REPLY MEMORANDUM to Defendants' response to plaintiff's Objection to Motion re 6 MOTION to Dismiss filed by Harold W. Caton. (amm, ) (Entered: 05/05/2005)
2005-05-18	24	MOTION to correct the record filed by US Department of Interior, Secretary, with declarations, and attachments.Served on 5/18/05. Follow up on Objection on 6/7/2005 (amm, ) (Entered: 05/18/2005)
2005-05-27	25	OBJECTION to 24 MOTION for Leave to File motion to correct the record, served on 5/26/05, filed by Harold W. Caton. (amm, ) (Entered: 05/27/2005)
2005-06-02	26	MOTION for Leave to File reply to motion to correct the record filed by US Department of Interior, Secretary.Served on 6/2/05. Follow up on Objection on 6/22/2005 (amm, ) (Entered: 06/02/2005)
2005-06-09	27	REPLY to Objection to Motion re 24 MOTION for Leave to File motion to correct the record filed by US Department of Interior, Secretary. (amm, ) (Entered: 06/10/2005)
2005-06-17	28	MOTION for Leave to File surreply and supporting memorandum to correct statements asserted in deft's reply to plaintiff's objection to correct record filed by Harold W. Caton.Served on 6/15/05. Follow up on Objection on 7/7/2005 (amm, ) (Entered: 06/22/2005)
2005-06-20	30	Assented to MOTION for Extension of Discovery for an additional 30 days filed by Harold W. Caton. (amm, ) (Entered: 06/23/2005)
2005-06-21	29	MOTION to Compel defendant to answer interrogatories and document request filed by Harold W. Caton, with attachments.Served on 6/20/05. Follow up on Objection on 7/11/2005 (amm, ) (Entered: 06/23/2005)
2005-06-24		ENDORSED ORDER granting 30 Motion For Extension of Discovery. Text of Order: Granted. So Ordered by Judge James R. Muirhead. (djb, ) (Entered: 06/24/2005)
2005-07-08	31	MOTION for Protective Order filed by US Department of Interior, Secretary, with attachments.Served on 7/8/05. Follow up on Objection on 7/28/2005 (amm, ) (Entered: 07/11/2005)
2005-07-08	32	OBJECTION to 29 MOTION to Compel defendant to answer interrogatories and document request with memorandum, served on 7/8/05, filed by US Department of Interior, Secretary. (amm, ) (Entered: 07/11/2005)
2005-07-11	33	ORDER on Nonconforming Document re: 31 Motion for Protective Order filed by US Department of Interior, Secretary,. Fails to comply with LR7.1(c) no statement of concurrence. Cure Document by 7/21/2005. Signed by Judge Joseph A. DiClerico Jr. (amm, ) (Entered: 07/12/2005)
2005-07-13	34	Nonconforming Document(DEFENDANT'S MOTION FOR PROTECTIVE ORDER) 33 Order on Nonconforming Document, cured with statement of concurrence included by US Department of Interior, Secretary. Follow up on Objection on 8/2/2005 (amm, ) (Entered: 07/19/2005)
2005-07-18	35	SUR-REPLY to Defts' Objection to Motion re 29 MOTION to Compel defendant to answer interrogatories and document request filed by Harold W. Caton. (amm, ) (Entered: 07/19/2005)
2005-07-21	36	2ND MOTION to Dismiss filed by US Department of Interior, Secretary, with memorandum and attachments.Served on 7/21/05. Follow up on Objection on 8/10/2005 (amm, ) (Entered: 07/21/2005)
2005-07-25	37	OBJECTION to 31 MOTION for Protective Order, served on 7/24/05, filed by Harold W. Caton. (amm, ) (Entered: 07/27/2005)
2005-07-26		ENDORSED ORDER granting 26 Motion for Leave to File A Reply. Text of Order: Granted. So Ordered by Judge James R. Muirhead. (djb, ) (Entered: 07/26/2005)
2005-07-26		ENDORSED ORDER granting 28 Motion for Leave to File Surreply. Text of Order: Granted. So Ordered by Judge James R. Muirhead. (djb, ) (Entered: 07/26/2005)
2005-07-26		ENDORSED ORDER mooting 24 Motion for Leave to File. Text of Order: Ms. Hammond's declaration of her prior error and of her current explanation is noted, otherwise moot. So Ordered by Judge James R. Muirhead. (djb, ) (Entered: 07/26/2005)
2005-07-29	38	ORDER,denying 29 Motion to Compel, granted 34 Cure on Nonconforming Document, 31 Motion for Protective Order. Signed by Judge James R. Muirhead. (amm, ) (Entered: 08/01/2005)
2005-07-29	39	ORDER denying 29 Motion to Compel, granting 31 Motion for Protective Order. So Ordered by Judge James R. Muirhead. (amm, ) Modified on 8/2/2005 to term motions, same as doc. #38 (amm, ). (Entered: 08/02/2005)
2005-08-05	40	OBJECTION to 36 MOTION to Dismiss with memorandum, served on 8/5/05, filed by Harold W. Caton. (amm, ) (Entered: 08/12/2005)
2005-09-29	41	NOTICE. Effective October 1, 2005, electronic case filing is mandatory in this district. Thus, this case is designated for Electronic Case Filing. All future submissions shall be filed in compliance with the Administrative Procedures for Electronic Case Filing for this district. Please note that pro se litigants, as well as any attorneys who have not yet registered for ECF, must continue to be served in paper. (Lynch, Daniel) (Entered: 09/29/2005)
2005-11-21	42	ORDER granting 36 2ND Motion to Dismiss. CLerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico Jr. (ga, ) (Entered: 11/21/2005)
2005-11-21	43	JUDGMENT is hereby entered in accordance with 42 Order on Motion to Dismiss. Signed by Clerk James R. Starr. (Case Closed) (amm, ) (Entered: 11/21/2005)
2005-12-27	44	MOTION for Bill of Costs filed by Harold W. Caton.Served on 12/24/05. Follow up on Objection on 1/17/2006 (amm, ) (Entered: 01/04/2006)
2005-12-27	45	BILL OF COSTS by Harold W. Caton. Follow up on Bill of Costs on 1/17/2006. (Attachments:, # 1 Exhibit 1 (Receipts), # 2 Exhibit 2 (Memos), # 3 Exhibit 3 ( memo))(amm, ) (Entered: 01/04/2006)
2006-01-13	46	RESPONSE to Motion re 44 MOTION for Bill of Costs filed by US Department of Interior, Secretary. (Plourde, T.) (Entered: 01/13/2006)
2006-01-20		ENDORSED ORDER Granting in part, denying in part 45 Bill of Costs. Text of Order: Granted as to the $866.00 in costs, Denied as to the request of $123,637.50 valuation of plaintiff's time. See Aronson v. United States Department of Housing and Urban Renewal, 866F2d 1, 5-6 (1st Cir 1989) Signed by Judge James R. Muirhead. (amm, ) (Entered: 01/20/2006)
2007-04-20		File located at National Archives and Records Administration (NARA), Waltham, MA. Transfer No. 021-07-0024, Location No. A105138, Box No. 16(cmp, ) (Entered: 04/20/2007)
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