Case Detail

FOIA Project Annotation: A federal court in Florida has ruled that various components of the Justice Department properly invoked a Glomar response neither confirming nor denying the existence of records concerning an investigation of Guy Lewis, a former head of EOUSA during the Bush administration, under Exemption 7(C) (invasion of privacy concerning law enforcement records). The Miccosukee Tribe of Indians of Florida had hired Lewis as their attorney. The Tribe later accused Lewis of fraud and legal malpractice and made a number of FOIA requests to DOJ for records showing that Lewis had left EOUSA because of misconduct. After finding that the Tribe had failed to exhaust its administrative remedies for all the DOJ components except for EOUSA and the Office of Tribal Justice, both of which had failed to respond to the Tribe's requests until after they had filed suit. The court addressed whether the Glomar responses were appropriate. The Tribe argued that since Lewis had testified in a deposition that no records existed because he had not been terminated as a result of misconduct, EOUSA could not refuse to either confirm or deny the existence of records. The court rejected the argument, noting that "his testimony says next to nothing about any wrongdoing or malfeasance on his part, or any investigation, internal inquiry, or discipline against him: the most one could know from Lewis's testimony was that such alleged events, assuming they happened and corroborating documents exist, were not his reason for leaving EOUSA. The fallacy in the Tribe's argument is that if one of those events occurred, Lewis either would have been terminated or would have left his job because of the occurrence. But that is not necessarily true. For example, an internal inquiry or disciplinary action can be a means to correct an employee's behavior in order to avoid firing him." The court indicated that "based on the evidence submitted, the Court finds the existence, or non-existence, of the records the Tribe is seeking has not been publicly disclosed." The court observed that "Lewis's testimony about why he voluntarily left the EOUSA does not open the door to all matters potentially related to his employment at the EOUSA, especially matters that could associate him with criminal activity. Lewis therefore has a substantial privacy interest under Exemption 7(C)." The Tribe tried to analogize its request with those in CREW v. Dept of Justice, 746 F.3d 1082 (D.C. Cir. 2014), in which the D.C. Circuit found that the public interest in disclosure of information about an acknowledged investigation of a member of Congress outweighed any privacy interest served by a Glomar response. But the court pointed out that "in contrast [to CREW], the Tribe's request is premised on unsubstantiated speculation of wrongdoing, which is not a cognizable public interest under the FOIA. To allow the Tribe to override Lewis's significant privacy interest for the sake of finding out whether an imagined investigation actually took place is to read Exemption 7(C) as tolerating fishing expeditions, which would leave the FOIA's privacy concerns meaning little to nothing."
Issues: Determination - Glomar response, Litigation - Jurisdiction - Failure to Exhaust

Date Filed	Doc #	Docket Text
2014-02-20	1	COMPLAINT for Injunctive Relief against All Defendants. Filing fees $ 400.00 receipt number 113C-6503944, filed by Miccosukee Tribe of Indians of Florida. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Exhibit 1 - Composite- Amended Complaint 13-35956-CA 40, # 3 Exhibit Exhibit 2 - FOIA DOJ Office of the Inspector General July 2012 7-14-12, # 4 Exhibit Exhibit 3 - FOIA DOJ Executive Office for US Attorney July 2012 Guy Lewis to FOIA Privacy Staff 7-16-12, # 5 Exhibit Exhibit 4 - FOIA DOJ Office of Information Policy July 2012 Guy Lewis to Carmen Mallon 7-16-12 11, # 6 Exhibit Exhibit 5 - FOIA DOJ July 2012 Guy Lewis to Marlene Wahowiak 7-16-12, # 7 Exhibit Exhibit 6 - FOIA DOJ July 2012 Guy Lewis to Susan B Gerson 7-18-12 Without Attachments, # 8 Exhibit Exhibit 7 - FOIA Letter regarding Documents, # 9 Exhibit Exhibit 8 - Letter from USDept of Justice denying FOIA request 11-2-12, # 10 Exhibit Exhibit 9 - FOIA Appeal Letter 12-28-12, # 11 Exhibit Exhibit 10 - Letter from the U.S. Department of Justice dated 1-10-13)(Roman, Bernardo) (Entered: 02/20/2014)
2014-02-20	2	Judge Assignment to Judge Cecilia M. Altonaga (ail) (Entered: 02/21/2014)
2014-02-21	3	NOTICE of Filing Proposed Summons(es) by Miccosukee Tribe of Indians of Florida re 1 Complaint,,,, filed by Miccosukee Tribe of Indians of Florida (Attachments: # 1 Summon(s) Summons for Office of Information Policy, # 2 Summon(s) Summons for Office of Tribal Justice 2-21-14, # 3 Summon(s) Summons for the Executive office for US Attorneys 2-21-14, # 4 Summon(s) Summons for the Inspector General 2-21-14, # 5 Summon(s) Summons for the Office of Professional Responsibility 2-21-14, # 6 Summon(s) Summons for US Department of Justice 2-21-14)(Roman, Bernardo) (Entered: 02/21/2014)
2014-02-24	4	Summons Issued as to Executive Office for United States Attorneys, Office of Information Policy, Office of Professional Responsibility, Office of Tribal Justice, Office of the Inspector General, United States Department of Justice, U.S. Attorney and U.S. Attorney General (yar) (Entered: 02/24/2014)
2014-03-17	5	ORDER requiring service to be perfected by 6/20/2014. Signed by Judge Cecilia M. Altonaga on 3/17/2014. (ps1) (Entered: 03/17/2014)
2014-03-17	6	Plaintiff's NOTICE of Filing Verified Return of Service by Miccosukee Tribe of Indians of Florida (Attachments: # 1 Exhibit Proof of Return of Service)(Roman, Bernardo) Modified text on 3/18/2014 (yar). (Entered: 03/17/2014)
2014-03-17	7	Order Requiring Joint Scheduling Report and Certificates of Interested Parties to be filed by 5/6/2014. Signed by Judge Cecilia M. Altonaga on 3/17/2014. (ps1) (Entered: 03/17/2014)
2014-04-04	8	Case Reassignment of Paired Magistrate Judge pursuant to Administrative Order(s) 2013-63 to Magistrate Judge John J. O'Sullivan. (vp) (Entered: 04/04/2014)
2014-04-14	9	NOTICE by United States Department of Justice of Lack of Service . Attorney Carlos Javier Raurell added to party United States Department of Justice(pty:dft). (Raurell, Carlos) (Entered: 04/14/2014)
2014-05-06	10	CERTIFICATE of Interested Parties by Executive Office for United States Attorneys, Office of Information Policy, Office of Professional Responsibility, Office of Tribal Justice, Office of the Inspector General, United States Department of Justice (Raurell, Carlos) Modified text on 5/8/2014 (yar). (Entered: 05/06/2014)
2014-05-06	11	CERTIFICATE of Interested Parties and Corporate Disclosure Statement by Miccosukee Tribe of Indians of Florida (Roman, Bernardo) Modified text on 5/8/2014 (yar). (Entered: 05/06/2014)
2014-05-06	12	Joint SCHEDULING REPORT - Rule 16.1 by Miccosukee Tribe of Indians of Florida (Roman, Bernardo) Modified text on 5/8/2014 (yar). (Entered: 05/06/2014)
2014-05-07	13	ORDER Setting Trial and Pre-Trial Schedule, Requiring Mediation, and Referring Certain Matters to Magistrate Judge John J. O'Sullivan: Bench Trial set for 2 week trial period beginning 1/12/2015 in Miami Division before Judge Cecilia M. Altonaga. Calendar Call set for 1/6/2015 09:00 AM in Miami Division before Judge Cecilia M. Altonaga. Motions to amend pleadings or join parties due by 6/9/2014. All discovery due by 9/8/2014. Proposed order scheduling mediation due by 5/28/2014. Mediation Deadline 9/15/2014. In Limine Motions due by 10/27/2014. All pre-trial motions due by 9/22/2014. Pretrial Stipulation due by 10/27/2014. Signed by Judge Cecilia M. Altonaga on 5/7/2014. (ps1) (Entered: 05/07/2014)
2014-05-08	14	ORDER requiring Plaintiff to perfect service by 6/20/14, re: 9 Notice Regarding Lack of Service filed by United States Department of Justice as to the 6 Notice of Filing Verfied Return of Service filed by Miccosukee Tribe of Indians of Florida. Signed by Judge Cecilia M. Altonaga on 5/8/2014. (ps1) (Entered: 05/08/2014)
2014-05-08	15	NOTICE by Miccosukee Tribe of Indians of Florida Notice of Filing Verified Return of Service (Attachments: # 1 Appendix Proof of Service)(Roman, Bernardo) (Entered: 05/08/2014)
2014-05-12	17	Clerks Notice of Docket Correction re 16 Order Requiring Joint Scheduling Report. Document Restricted Due to Error . Please disregard document - scheduling order has been entered. (ps1) (Entered: 05/12/2014)
2014-05-12		SYSTEM ENTRY - Docket Entry 16 [order] restricted/sealed until further notice. (ps1) (Entered: 05/12/2014)
2014-05-16	18	Unopposed MOTION for Extension of Time to File Answer RE: Complaints re 1 Complaint,,,, by Executive Office for United States Attorneys, Office of Information Policy, Office of Professional Responsibility, Office of Tribal Justice, Office of the Inspector General, United States Department of Justice. Attorney Carlos Javier Raurell added to party Executive Office for United States Attorneys (pty:dft), Attorney Carlos Javier Raurell added to party Office of Information Policy(pty:dft), Attorney Carlos Javier Raurell added to party Office of Professional Responsibility(pty:dft), Attorney Carlos Javier Raurell added to party Office of Tribal Justice(pty:dft), Attorney Carlos Javier Raurell added to party Office of the Inspector General(pty:dft). (Raurell, Carlos) (Entered: 05/16/2014)
2014-05-16	19	ORDER granting 18 Motion for Extension of Time to Answer, RE: Complaints: Defendants' response due 6/18/2014. Signed by Judge Cecilia M. Altonaga on 5/16/2014. (ps1) (Entered: 05/16/2014)
2014-05-28	20	NOTICE by Miccosukee Tribe of Indians of Florida JOINT NOTICE OF FILING SELECTION OF MEDIATOR (Roman, Bernardo) (Entered: 05/28/2014)
2014-05-29	21	NOTICE of Mediator Selection: Karen Evans selected. See image at DE 20 (lk) (Entered: 05/29/2014)
2014-05-29	22	Clerks Notice to Filer re 20 Notice (Other). Wrong Event Selected ; ERROR - The Filer selected the wrong event. The document was re-docketed by the Clerk, see [de#21]. It is not necessary to refile this document. (lk) (Entered: 05/29/2014)
2014-06-05	23	ORDER requiring the parties to comply with the Court's 13 Order requiring a proposed order scheduling mediation; the parties are to submit a proposed order, in Word format via email, by 6/9/2014. The procedures for submitting a proposed order are in the CM/ECF Administrative Procedures, located on the Court's website. Signed by Judge Cecilia M. Altonaga on 6/4/2014. (ps1) Modified Signature Date on 6/5/2014 (ra). (Entered: 06/05/2014)
2014-06-06	24	NOTICE by Miccosukee Tribe of Indians of Florida re 23 Order to Show Cause, 13 Scheduling Order, Order Referring Case to Judge, Order Referring Case to Mediation,,,,,, JOINT PROPOSED ORDER SELECTING MEDIATOR (Attachments: # 1 Text of Proposed Order)(Roman, Bernardo) (Entered: 06/06/2014)
2014-06-06	25	NOTICE by Miccosukee Tribe of Indians of Florida re 24 Notice (Other), 23 Order to Show Cause, 13 Scheduling Order, Order Referring Case to Judge, Order Referring Case to Mediation,,,,,, CORRECTED JOINT PROPOSED ORDER SELECTING MEDIATOR (Attachments: # 1 Text of Proposed Order)(Roman, Bernardo) (Entered: 06/06/2014)
2014-06-09	26	ORDER Scheduling Mediation before Karen Evans; Mediation Hearing set for 8/28/2014 10:00 AM. Signed by Judge Cecilia M. Altonaga on 6/9/2014. (ps1) (Entered: 06/09/2014)
2014-06-09	27	First AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by Miccosukee Tribe of Indians of Florida. (Attachments: # 1 Exhibit 1 - Composite- Amended Complaint 13-35956-CA 40, # 2 Exhibit 2 - FOIA DOJ Office of the Inspector General July 2012 7-14-12, # 3 Exhibit 3 - FOIA DOJ Executive Office for US Attorney July 2012 Guy Lewis to FOIA Privacy Staff 7-16-12, # 4 Exhibit 4 - FOIA DOJ Office of Information Policy July 2012 Guy Lewis to Carmen Mallon 7-16-12 11, # 5 Exhibit 5 - FOIA DOJ July 2012 Guy Lewis to Marlene Wahowiak 7-16-12, # 6 Exhibit 6 - FOIA DOJ July 2012 Guy Lewis to Susan B Gerson 7-18-12 Without Attachments, # 7 Exhibit 7 - FOIA Letter regarding Documents, # 8 Exhibit 8 - Letter from US Dept of Justice denying FOIA request 11-2-12, # 9 Exhibit 9 - FOIA Appeal Letter 12-28-12, # 10 Exhibit 10 - Letter from the U.S. Department of Justice dated 1-10-13)(Roman, Bernardo) (Entered: 06/09/2014)
2014-06-18	28	ANSWER and Affirmative Defenses to Amended Complaint by United States Department of Justice. (Raurell, Carlos) (Entered: 06/18/2014)
2014-08-28	29	MEDIATION REPORT by Karen Evans. Disposition: Adjourned.(Evans, Karen) (Entered: 08/28/2014)
2014-08-28	30	Joint MOTION for Extension of Time to file pretrial motions by United States Department of Justice. Responses due by 9/15/2014 (Raurell, Carlos) (Entered: 08/28/2014)
2014-08-28	31	Administrative Order Closing Case. Motions terminated: 30 Joint MOTION for Extension of Time to file pretrial motions filed by United States Department of Justice. Signed by Judge Cecilia M. Altonaga on 8/28/2014. (ps1) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. (Entered: 08/28/2014)
2014-09-30	32	ORDER re 31 Administrative Order Closing Case; stipulation of dismissal due by 10/15/2014. Signed by Judge Cecilia M. Altonaga on 9/30/2014. (ps1) (Entered: 09/30/2014)
2014-10-15	33	Joint STATUS REPORT by Miccosukee Tribe of Indians of Florida (Roman, Bernardo) Modified text on 10/15/2014 (yar). (Entered: 10/15/2014)
2014-11-25	34	ORDER requiring the parties to comply with the Court's 32 Order by 12/15/2014. Signed by Judge Cecilia M. Altonaga on 11/25/2014. (ps1) (Entered: 11/25/2014)
2014-12-15	35	Joint STATUS REPORT AND PROPOSED REVISION TO TRIAL AND PRE-TRIAL SCHEDULE by Miccosukee Tribe of Indians of Florida (Roman, Bernardo) Modified text on 12/17/2014 (yar). (Entered: 12/15/2014)
2014-12-16	36	ORDER REOPENING CASE and amending 13 Order Setting Trial as follows: Jury Trial set for 5/18/2015 in Miami Division before Judge Cecilia M. Altonaga. Calendar Call set for 5/12/2015 09:00 AM in Miami Division before Judge Cecilia M. Altonaga. Discovery due by 1/19/2015. Expert Discovery due by 1/19/2015. In Limine Motions due by 3/16/2015. All pretrial and Daubert Motions due by 2/16/2015. Pretrial Stipulation due by 3/16/2015. ORDER REFERRING CASE to Magistrate Judge John J. O'Sullivan for Discovery Matters. Signed by Judge Cecilia M. Altonaga on 12/16/14. (wc) (Entered: 12/16/2014)
2015-02-17	37	Unopposed MOTION for Two-Day Extension of Dispostive Motions Deadline re 36 Order Reopening Case, Set/Reset Deadlines/Hearings, Order Referring Case to Judge,,,,,, by Executive Office for United States Attorneys, Office of Information Policy, Office of Professional Responsibility, Office of Tribal Justice, Office of the Inspector General, United States Department of Justice. Responses due by 3/6/2015 (Raurell, Carlos) Modified text on 2/18/2015 (yar). (Entered: 02/17/2015)
2015-02-18	38	ORDER granting 37 Motion for Extension of Time. Dispositive Motions due by 2/19/2015. Signed by Judge Cecilia M. Altonaga on 2/17/2015. (ps1) (Entered: 02/18/2015)
2015-02-19	39	Defendant's MOTION for Summary Judgment by Executive Office for United States Attorneys, Office of Information Policy, Office of Professional Responsibility, Office of Tribal Justice, Office of the Inspector General, United States Department of Justice. Responses due by 3/9/2015 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Raurell, Carlos) (Entered: 02/19/2015)
2015-02-19	40	Statement of: Material Facts by Office of the Inspector General, Office of Tribal Justice, Office of Professional Responsibility, United States Department of Justice, Office of Information Policy, Executive Office for United States Attorneys re 39 Defendant's MOTION for Summary Judgment (Raurell, Carlos) (Entered: 02/19/2015)
2015-02-19	41	Plaintiff's MOTION for Summary Judgment by Miccosukee Tribe of Indians of Florida. Responses due by 3/9/2015 (Attachments: # 1 Exhibit A)(Roman, Bernardo). Added MOTION/Request for Hearing on 2/20/2015 (yar). (Entered: 02/19/2015)
2015-02-19	42	Statement of: Undisputed Material Facts in Support of Motion For Summary Judgment by Miccosukee Tribe of Indians of Florida re 41 Plaintiff's MOTION for Summary Judgment (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 (part 1), # 9 Exhibit H (part 2), # 10 Exhibit H (part 3))(Roman, Bernardo) Modified text on 2/20/2015 (yar). (Entered: 02/19/2015)
2015-02-20	43	Clerks Notice to Filer re 41 Plaintiff's MOTION for Summary Judgment . Motion with Multiple Reliefs Filed as One Relief ; ERROR - The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (yar) (Entered: 02/20/2015)
2015-02-23	44	First MOTION for Leave to File Exhibit H Under Seal by Miccosukee Tribe of Indians of Florida. (Attachments: # 1 Exhibit Circuit Court Judge Thornton's Order, # 2 Exhibit District Court Judge Cooke's Order)(Roman, Bernardo) (Entered: 02/23/2015)
2015-02-23	45	ORDER denying 44 Motion for Leave to File. The Motion does not explain the need for allowing documents to be filed under seal, and the attached exhibits (other courts' orders) do not eludicate the reason or reasons why documents should be sealed. Signed by Judge Cecilia M. Altonaga (CMA) (Entered: 02/23/2015)
2015-03-06	46	Defendant's Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 41 Plaintiff's MOTION for Summary Judgment MOTION for Hearing by Executive Office for United States Attorneys, Office of Information Policy, Office of Professional Responsibility, Office of Tribal Justice, Office of the Inspector General, United States Department of Justice. (Raurell, Carlos) Modified text on 3/9/2015 (yar). (Entered: 03/06/2015)
2015-03-09	47	ORDER granting 46 Motion for Extension of Time to File Response to 41 Plaintiff's MOTION for Summary Judgment MOTION for Hearing filed by Miccosukee Tribe of Indians of Florida. Responses due by 3/23/2015. Signed by Judge Cecilia M. Altonaga on 3/6/2025. (ps1) (Entered: 03/09/2015)
2015-03-09	48	RESPONSE in Opposition re 39 Defendant's MOTION for Summary Judgment filed by Miccosukee Tribe of Indians of Florida. Replies due by 3/19/2015. (Roman, Bernardo) (Entered: 03/09/2015)
2015-03-09	49	RESPONSE in Opposition to Defendants' Statement of Material Facts by Miccosukee Tribe of Indians of Florida re 40 Statement, (Roman, Bernardo) Modified text on 3/11/2015 (yar). (Entered: 03/09/2015)
2015-03-16	50	Joint MOTION To Excuse March 16, 2015, Pre-Trial Deadline re 41 Plaintiff's MOTION for Summary Judgment MOTION for Hearing, 39 Defendant's MOTION for Summary Judgment , 36 Order Reopening Case, Set/Reset Deadlines/Hearings, Order Referring Case to Judge,,,,,, by Miccosukee Tribe of Indians of Florida. (Attachments: # 1 Text of Proposed Order)(Roman, Bernardo) (Entered: 03/16/2015)
2015-03-17	51	ORDER granting in part 50 Motion to Excuse March 16, 2015 Pre-Trial Deadline. Signed by Judge Cecilia M. Altonaga on 3/17/2015. (ps1) (Entered: 03/17/2015)
2015-03-23	52	RESPONSE in Opposition re 41 Plaintiff's MOTION for Summary Judgment MOTION for Hearing filed by United States Department of Justice. Replies due by 4/2/2015. (Raurell, Carlos) (Entered: 03/23/2015)
2015-04-02	53	REPLY to Response to Motion re 41 Plaintiff's MOTION for Summary Judgment MOTION for Hearing filed by Miccosukee Tribe of Indians of Florida. (Roman, Bernardo) (Entered: 04/02/2015)
2015-04-14	54	ORDER granting in part 39 Motion for Summary Judgment; denying 41 Motion for Summary Judgment and Motion for Hearing. The determinations of OPR, OTJ, and EOUSA are affirmed. The Clerk is directed to mark this case closed. Signed by Judge Cecilia M. Altonaga on 4/14/2015. (ps1) (Entered: 04/14/2015)
2015-04-14		Civil Case Terminated. Closing Case. (ps1) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. (Entered: 04/14/2015)
2015-04-14	55	PARTIAL FINAL JUDGMENT in favor of United States Department of Justice against Miccosukee Tribe of Indians of Florida. Signed by Judge Cecilia M. Altonaga on 4/14/2015. (ps1) (Entered: 04/14/2015)
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