Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has granted the FBI an Open America stay to give it a 12-month extension for responding to EPIC's request concerning the agency's use of commercial data vendors, particularly ChoicePoint. The agency found thousands of pages of documents, particularly two contracts with ChoicePoint, one of which was classified. Kollar-Kotelly found that the agency had shown "exceptional circumstances" that warranted a stay, noting that "FOIA places an extreme burden on the FBI's information processing resources: the FBI receives an average of 700 FOIA requests each month, and due to the rise in litigation and appeals over the last twenty years, the FBI's FOIA backlog jumped from its 1985 level of 4,736 requests to a high of 16,244 requests on December 31, 1996." Congress gave the agency extra funding as a result of its huge backlog and, Kollar-Kotelly pointed out, "the FOIA backlog has fallen from the high of 16,244 on December 31, 1996 to the August 30, 2004 figure of 1,7623 requests currently outstanding â€" a reduction of roughly 89%. The FBI anticipates that future totals will reflect a continuation of this downward trend. As such, while the FBI currently faces a large backlog of requests, the recent reduction of that unanticipated backlog certainly constitutes 'reasonable progress' as required by Section 552(a)(6)(C)(ii)." She observed that the agency's FOIA office had taken on greater litigation responsibilities and that resources has been shifted to work on the "war on terrorism." She indicated that "the FBI has demonstrated the 'due diligence' necessary to substantiate an Open America stay. Plaintiff's request, which covers more than 5,000 pages, is certainly a 'large request' as defined by the FBI, as it stretches beyond 2,500 pages. It is not surprising that large requests such as the present one take additional amounts of time." She added that "the 5,000 pages of documents associated with the classified contract must go through a review by the [Classification Unit] to determine the applicability of Exemption (b)(1)[national security], then must be reviewed by the [Department Review Committee]. . .After this, the Disclosure Unit will be required to conduct page-by-page, line-by-line review of the information to determine if any exemptions other than Exemption (b)(1) might apply. Given this system, the real improvements made, and the FBI's stated progress, the Court finds that the efforts made by the FBI constitute the 'due diligence' necessary for the imposition of an Open America stay." One of the puzzling elements of this case is why the FBI had a classified contract with ChoicePoint. EPIC has speculated that several years ago ChoicePoint was developing a MATRIX system for the agency, which was abandoned after similar efforts on the state level were criticized as overreaching invasions of privacy.
Issues: Delay - Exceptional circumstance

Date Filed	Doc #	Docket Text
2002-01-14	1	COMPLAINT for injunctive relief filed by plaintiff ELECTRONIC PRIVACY (cdw) (Entered: 01/15/2002)
2002-01-14		SUMMONS (4) issued to federal party(s) federal defendant DOJ, federal defendant DEPT OF THE TREASURY , and non-parties: U.S. Attorney and U.S. Attorney General. (cdw) (Entered: 01/15/2002)
2002-01-14	2	LCvR 26.1 Certificate of disclosure of corporate affiliations and financial interests by plaintiff ELECTRONIC PRIVACY (cdw) (Entered: 01/15/2002)
2002-02-12	3	ANSWER TO COMPLAINT [1-1] by federal defendant DOJ, federal defendant DEPT OF THE TREASURY . (cdw) (Entered: 02/14/2002)
2002-02-12	4	MOTION filed by federal defendant DOJ to dismiss complaint [1-1] ; exhibits (2) (cdw) (Entered: 02/14/2002)
2002-02-28	5	STIPULATION filed and fiated regarding dismissal as to claims concerning the Internal Revenue Service. "APPROVED" JUDGE COLLEEN KOLLAR-KOTELLY (N) (dot) (Entered: 02/28/2002)
2002-07-08	6	ORDER by Judge Colleen Kollar-Kotelly : Initial Scheduling Conference hearing set for 9:45 8/8/02 . (N) (dot) (Entered: 07/08/2002)
2002-08-01	7	MOTION filed by plaintiff ELECTRONIC PRIVACY for Vaughn Index (aet) (Entered: 08/05/2002)
2002-08-01	8	MEET AND CONFER STATEMENT/REPORT PURSUANT TO L.R. 16 filed by plaintiff ELECTRONIC PRIVACY, federal defendant DOJ, federal defendant DEPT OF THE TREASURY . (aet) (Entered: 08/05/2002)
2002-08-08		INITIAL SCHEDULING CONFERENCE before Judge Colleen Kollar-Kotelly : Reporter: Edward Hawkins (ldc) (Entered: 08/08/2002)
2002-08-08	9	ORDER by Judge Colleen Kollar-Kotelly: that in regard to briefing on the FBI's Open America stay plaintiff's motion due 9/27/02 ; response to motion due 10/11/02 ; reply to motion due 10/25/02 ; , and that by 8/29/02, plaintiff shall file a praecipe with the Court indicating whether it will be contesting the Department of Justice release of documents discussed at the initial status conference. denying motion for Vaughn Index [7-1] by ELECTRONIC PRIVACY (N) (see order for further instruction to counsel) (kmk) (Entered: 08/11/2002)
2002-08-08	10	SCHEDULING ORDER by Judge Colleen Kollar-Kotelly: see order for insturction to counsel. (N) (kmk) (Entered: 08/12/2002)
2002-08-13	11	NOTICE OF DISMISSAL as to party DOJ (aet) (Entered: 08/28/2002)
2002-08-29	12	MOTION filed by plaintiff ELECTRONIC PRIVACY for status conference (aet) (Entered: 08/30/2002)
2002-08-29	13	STATUS REPORT by plaintiff ELECTRONIC PRIVACY (aet) (Entered: 08/30/2002)
2002-09-09	14	MOTION (CONSENT) filed by plaintiff ELECTRONIC PRIVACY for a briefing schedule (aet) (Entered: 09/10/2002)
2002-09-10	15	ORDER (AMENDED) by Judge Colleen Kollar-Kotelly :that in regard to briefing on the F.B.I.'s Open America stay, defendants' motion due 9/27/02 ; response to motion due 10/11/02 ; reply to motion due 10/25/02. By August 29, 2002, plaintiff shall file a praecipe with the Court indicating whether it will be contesting the Department of Justice release of documents discussed at the initial status conference. If plaintiff will be contesting this issue, they shall propose a briefing schedule, discussed with defendant, regarding dispositive motions on the issures raised in the Department of Justice documents. If plaintiff is not contesting the documents they shall file a praecipe with the Court dismissing the Department of Justice as a defendant in this action. Denying at this time motion for Vaughn Index [7-1] by ELECTRONIC PRIVACY. If and when the Court set a briefing schedule for dispositive motions it will set a briefing schedule which includes the filing of a Vaughn Index. (N) (dot) Modified on 09/11/2002 (Entered: 09/11/2002)
2002-09-11	16	ORDER by Judge Colleen Kollar-Kotelly : granting motion for a briefing schedule [14-1] by ELECTRONIC PRIVACY. Defendant DOJ will complete processing and release responsive documents to plaintiff on 12/6/02. On or before 12/13/02, plaintiff will state its objections in writing, if any, to defendant's search and withholding. On or before 1/22/03, defendant will file its motion for summary judgment addressing the withholdings and/or objections raised by plaintiff in its letter of 12/13/02. On or before 2/5/03, plaintiff will file its response to defendant's motion for summary judgment. On or before 2/14/03, defendant will file a reply to plaintiff's response. (N) (dot) (Entered: 09/12/2002)
2002-09-27	17	MOTION filed by federal defendant DOJ to stay proceedings for FBI ; declarations (1); exhibits (6) (aet) (Entered: 09/30/2002)
2002-10-10	18	RESPONSE by plaintiff ELECT. PRIV./CENTER to motion to stay proceedings for FBI [17-1] by DOJ (bm) (Entered: 10/16/2002)
2002-10-21	19	REPLY by federal defendant DEPT OF THE TREASURY to plaintiffs response to motion to stay proceedings for FBI [17-1] by DOJ (bcs) (Entered: 10/22/2002)
2002-11-19	20	NOTICE OF CHANGE OF ADDRESS by Jennifer Paisner representing federal defendant DEPT OF THE TREASURY . New address: US Department of Justice, PO Box 883, Washington DC 20044. (aet) (Entered: 11/20/2002)
2003-01-22	21	MOTION filed by federal defendant DOJ for summary judgment ; exhibits (13) (tb) (Entered: 01/23/2003)
2003-01-31	23	MOTION filed by federal defendant DOJ (FBI) to extend time to 4/30/03 of Open America stay ; attachment (1) (bm) Modified on 02/04/2003 (Entered: 02/04/2003)
2003-02-03	22	ORDER by Judge Colleen Kollar-Kotelly : granting defendant FBI's motion for extension of Open America stay. FBI shall produce the requested records on or before 4/30/03. (N) (dot) (Entered: 02/03/2003)
2003-02-05	24	RESPONSE by plaintiff ELECT. PRIV./CENTER in opposition to motion for summary judgment [21-1] by DOJ.; exhibits (1) (aet) (Entered: 02/06/2003)
2003-02-13	26	MOTION filed by federal defendant DOJ to extend time to 2/19/03 to reply to its motion for summary judgment (nmr) (Entered: 02/21/2003)
2003-02-19	25	ORDER by Judge Colleen Kollar-Kotelly : granted DOJ's unopposed motion for extension of time. Reply shall be filed no later than 2/19/02. (N) (dot) (Entered: 02/20/2003)
2003-02-19	27	REPLY by federal defendant DOJ to response in opposition to motion for summary judgment [21-1] by DOJ; declaration (1), exhibit (1) (aet) (Entered: 02/21/2003)
2003-12-31	28	NOTICE of Appearance by Vesper Mei on behalf of DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF JUSTICE (Mei, Vesper) (Entered: 12/31/2003)
2003-12-31	29	MOTION for Extension of Time to Exclude Classified Documents from Plaintiff's FOIA Request, or in the Alternative, to Brief FOIA Exemption (b)(1) Issues First, or in the Alternative, for an Extension of Time by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1- Public Declaration of J. Stephen Tidwell)(Mei, Vesper) (Entered: 12/31/2003)
2004-01-12	30	Memorandum in opposition to motion of DOJ to exclude classified doucments from plaintiff's FOIA request, or in the alternative, to brief FOIA Exemption (B)(1) Issues First, or in the alternative for an extension of time re 29 filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Burgess, Joe) (Entered: 01/16/2004)
2004-01-12	32	Memorandum in opposition to motion re 29 to exclude classified documents from plaintiff's FOIA request, or in the alternative, to brief FOIA exemption (B)(1) issues first, or in the alternative, for an extension of time filed by ELECTRONIC PRIVACY INFORMATION CENTER. (td, ) (Entered: 01/23/2004)
2004-01-21	31	Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Extension of Time to Exclude Classified Documents from Plaintiff's FOIA Request, or in the Alternative, to Brief FOIA Exemption (b)(1) Issues First, or in the Alternative, for an Extension of Time by DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF JUSTICE. (Mei, Vesper) (Entered: 01/21/2004)
2004-01-30		MINUTE ENTRY: ORDER granting 31 Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Extension of Time to Exclude Classified Documents from Plaintiff's FOIA Request; extension of time granted until February 3, 2004, to file reply. Signed by Judge Colleen Kollar-Kotelly on January 30, 2004 nunc pro tunc.(SM) (Entered: 01/30/2004)
2004-02-03	33	REPLY in support of motion re 29 to Exclude Classified Documents from Plaintiff's FOIA Request, or, in the Alternative, to Brief FOIA Exemption (b)(1) Issues First, or, in the Alternative, for an Extension of Time filed by DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF JUSTICE. (Mei, Vesper) (Entered: 02/03/2004)
2004-03-11	34	ORDER granting 21 Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 3/11/2004. (lcckk2) (Entered: 03/11/2004)
2004-03-11	35	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 3/11/2004. (lcckk2) (Entered: 03/11/2004)
2004-08-23	36	ORDER denying 29 Motion for Extension of Time to Exclude Classified Documents from Plaintiff's FOIA Request, or in the Alternative, to Brief FOIA Exemption B(1) Issues First, denial of request for extension of time is without prejudice; and ordering the parties to file a Joint Status Report no later than September 7th, 2004, indicating the status of Plaintiff's request and the issues remaining in this case. Signed by Judge Colleen Kollar-Kotelly on 8/23/2004. (lcckk2) (Entered: 08/23/2004)
2004-08-23	37	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 8/23/2004. (lcckk2) (Entered: 08/23/2004)
2004-09-02	38	STATUS REPORT (Joint) on Plaintiff's FOIA Requests and Remaining Issues by DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF JUSTICE. (Mei, Vesper) (Entered: 09/02/2004)
2004-09-23	39	MOTION to Stay under Open America by DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Text of Proposed Order)(Mei, Vesper) (Entered: 09/23/2004)
2004-09-30	40	Memorandum in opposition to motion re 39 PLAINTIFF'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTION FOR OPEN AMERICA STAY filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Hoofnagle, Chris) (Entered: 09/30/2004)
2004-10-01	41	MOTION for Extension of Time to Complete Vaughn Declaration by DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Mei, Vesper) (Entered: 10/01/2004)
2004-10-25		MINUTE ENTRY: Paperless ORDER granting nunc pro tunc 41 Defendant's Motion for Extension of Time to Complete Vaughn Declaration. Defendant FBI has until and including November 15, 2004 to complete Vaughn Declaration. NO FURTHER EXTENSIONS even if there are competing demands from other judges. Signed by Judge Colleen Kollar-Kotelly on October 25, 2004. (SM) (Entered: 10/25/2004)
2005-08-25	42	NOTICE of Change of Address by Chris Jay Hoofnagle (Hoofnagle, Chris) (Entered: 08/25/2005)
2005-08-31	43	ORDER granting 39 Defendants' Motion for an Open America Stay until August 31, 2005. Signed by Judge Colleen Kollar-Kotelly on August 31, 2005. (lcckk2) (Entered: 08/31/2005)
2005-08-31	44	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on August 31, 2005. (lcckk2) (Entered: 08/31/2005)
2006-01-11		MINUTE ORDER (paperless): The parties are to provide the Court with a Joint Status Report regarding how this case shall proceed by Wednesday, January 25, 2005, given that no apparent action has occurred in this case since the Court's August 31, 2005 Memorandum Opinion and Order granting Defendants' requested Motion for an Open America Stay through that date. Signed by Judge Colleen Kollar-Kotelly on January 11, 2006. (lcckk2) (Entered: 01/11/2006)
2006-01-24	45	STATUS REPORT (Joint) by ELECTRONIC PRIVACY INFORMATION CENTER. (Hoofnagle, Chris) (Entered: 01/24/2006)
2006-02-02		MINUTE ORDER (paperless): The Court shall grant the proposed schedule announced in 45 the parties' Joint Report on the Status of Plaintiff's FOIA Requests and Remaining Issues. With respect to the previously released FBI material withheld on Exemption 4 grounds, Defendant will complete a Vaughn index and release it to Plaintiff on or before February 28, 2006. With respect to the 5,668 pages of FBI material, Defendant will complete a Vaughn index and release it to Plaintiff on or before June 30, 2006. On or before July 31, 2006, Plaintiff will state its objections in writing -- if any -- to Defendant's withholding. On or before August 31, 2006, Defendant will file its motion for summary judgment addressing the withholdings and/or objections raised by Plaintiff in its July 31, 2006 letter. On or before September 15, 2006, Plaintiff will file its opposition to Defendant's motion for summary judgment. On or before September 25, 2006, Defendant will file a reply to Plaintiff's opposition. Signed by Judge Colleen Kollar-Kotelly on February 2, 2006. (lcckk2) (Entered: 02/02/2006)
2006-05-15	46	NOTICE OF SUBSTITUTION OF COUNSEL by Marcia Clare Hofmann on behalf of ELECTRONIC PRIVACY INFORMATION CENTER Substituting for attorney Chris Jay Hoofnagle (Hofmann, Marcia) (Entered: 05/15/2006)
2006-05-24	47	STIPULATION of Dismissal by ELECTRONIC PRIVACY INFORMATION CENTER, U.S. DEPARTMENT OF JUSTICE. (Hofmann, Marcia) (Entered: 05/24/2006)
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