Clemente v. FBI, No. 16-5067, 2017 WL 3443034 (D.C. Cir. Aug. 11, 2017) (Srinivasan, J.)

Clemente v. FBI, No. 16-5067, 2017 WL 3443034 (D.C. Cir. Aug. 11, 2017) (Srinivasan, J.)

Re:  Request for records concerning former informant

Disposition:  Affirming district court's grant in part and denial in part of government's motion for summary judgment; affirming district court's denial of requester's request for interim attorney fees; affirming district court's denial of requester's motion for reconsideration; affirming district court's sua sponte dismissal of requester's remaining claims

• Procedural Requirements:  The Court of Appeals for the District of Columbia Circuit is "unpersuaded" by "[the requester's] conten[tion] that the scope of her FOIA request was broader than the terms laid out in [her] first . . . letter."  The court relates that "[the requester] alleges that she sent a second – and more expansive – letter," but "[t]here is no evidence, however, that [the requester's] attorney ever sent, or the FBI ever received, the second . . . letter."
   
• Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the District of Columbic finds that the FBI's search was reasonable.  First, the court finds that "[t]he agency had no obligation to conduct further searches once it found the [requested] informant file, the precise records covered by [the requester's] request."  "Contrary to her argument, the FBI had no need to conduct a full-text search, examine a separate electronic surveillance records system, or search for 'tickler files' (duplicate files containing copies of records informally kept by supervisors)."  "As the FBI explained in its declarations, those searches would have been redundant or beyond the scope of [the requester's] specific request."  "Similarly, because [the requester's] request was directed to [the requested] informant file, the FBI was not required to search cross-references, which by definition indicate references to [the informant] in files on different subject matters."  The court also relates that "[the requester] seeks to demonstrate the inadequacy of the agency's search by pointing to the agency's failure to release certain records relocated from the [requested] informant file."  The court finds that "[t]he agency's affidavits explain that one of those records had been incorrectly indexed to the informant file, and that, upon review, that record is unresponsive to [the requester's] request."  "[The requester] offers no basis to doubt the agency's conclusion."  Finally, the court holds that "[it has] no basis to conclude that the FBI acted unreasonably in requiring requests for records held by a field office to be directed to the relevant office."  "[The FBI's] regulation by nature generally aims to promote an agency's ability to respond to requests in an efficient manner."
   
• Exemption 7, Threshold:  "[The Court of Appeals for the District of Columbia Circuit] conclude[s] that the agency properly invoked FOIA's law-enforcement exemption."  The court finds that "[defendant's] declarations . . . demonstrate the requisite connection between [the informant], potential violations of a law targeting organized criminal activity, and the FBI's duty to enforce that law."  The court also rejects the requester's "argu[ment] that the records fail to meet the exemption-seven, 'law enforcement purposes' threshold because [the informant] and his handler allegedly used the information gathered by the FBI for unlawful purposes[]" and finds that "[e]ven if [the informant] and his handler took and misused FBI information, however, records reflecting some of the same information could have been compiled for a law enforcement purpose."
   
• Attorney Fees:  "[The Court of Appeals for the District of Columbia Circuit] find[s] an insufficient basis for concluding that the court abused its discretion in denying [the requester] interim fees."  Specifically, "[the court] find[s] no error in the district court's decision to account for financial hardship, delay, and the duration of the litigation in considering whether to award interim fees."  "It is eminently reasonable for a district court, in determining whether to award interim fees or instead wait to award fees until the end of the litigation, to consider factors going to the plaintiff's ability to continue the litigation."
   
• Litigation Considerations:  "[The Court of Appeals for the District of Columbia Circuit] conclude[s] that the district court did not abuse its discretion in dismissing the remainder of the case."  The court finds that "the district court made it clear that [the requester] would waive any remaining objections to the government's latest Vaughn index if she failed to raise objections by a certain date."  "Once [the requester] waived those objections, there appear to be few if any remaining unresolved issues on the merits of the case."  "More significantly, [the requester] indicated in her briefing, and her attorney conceded at oral argument, that she intentionally let the district court dismiss the case so that she could more quickly bring issues – particularly the denial of interim attorney fees – to our court for review."