Shapiro v. DOJ, No. 13-555, 2016 WL 3023980 (D.D.C. May 25, 2016) (Moss, J.)

Shapiro v. DOJ, No. 13-555, 2016 WL 3023980 (D.D.C. May 25, 2016) (Moss, J.)

Re: Request for records created by FBI during processing of other FOIA requests

Disposition: Granting in part and denying in part defendant's motion for reconsideration; granting in part and denying in part defendant's motion for a partial stay

• Litigation Considerations, Waiver of Exemptions in Litigation:  "[T]he Court will grant in part and deny in part the FBI's motion for reconsideration."  "The FBI may assert Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E), as well as the Exemption 5 work-product and attorney-client privileges, in its renewed motion for summary judgment."  "The FBI may not assert the Exemption 5 deliberative-process privilege with respect to those records that are responsive to [plaintiff's] request."  The court explains that "although the D.C. Circuit has not provided any explicit instructions to district courts considering whether to accept an agency's belated assertion of a FOIA exemption, Maydak, August, and Sussman together recognize that a district court retains the discretion to find that such an untimely assertion has been forfeited."  "Basic principles of fairness, efficiency, and finality, moreover – principles inherent in the rules of civil procedure that apply with extra force in the context of FOIA litigation – counsel in favor of requiring the government to make some threshold showing of good cause to avoid a finding of forfeiture."  "Such a showing need not be an onerous requirement."  "The government might in some cases argue that its failure to raise a FOIA exemption earlier was an inadvertent error, or that some intervening change in law or fact excuses it, or that the consequences of not permitting an untimely assertion would be 'dire[.]'"  "The government might also argue that the assertion of additional exemptions would not unreasonably delay proceedings, either because the assertion is de minimis or because the legal issues are identical to issues already present in the case."  "What the government cannot argue is that it is permitted to assert additional FOIA exemptions absent any showing of good cause whatsoever."  The court finds that "[t]o the extent that the FBI argues that the D.C. Circuit's caselaw permits it to advance a FOIA exemption now that it did not advance previously absent a showing of good cause, it is wrong."  Using this reasoning, "the Court will grant the FBI's motion for reconsideration in part and deny it in part."  "Although the Court is not persuaded that the FBI has justified its failure previously to raise the Exemption 5 privileges on which it now seeks to rely – or, more precisely, to raise them with respect to the specific records it now seeks to withhold – it agrees that there is good cause to permit the FBI to raise some of those privileges."  "Specifically, the Court agrees that the FBI's assertion of the attorney work-product privilege and attorney-client privilege are substantially similar to issues already raised in the renewed motion for summary judgment and impact sufficiently few records that the risk of unduly prolonging this litigation is minimal."  However, the court finds that "[t]he equities with respect to the FBI's assertion of the Exemption 5 deliberative-process privilege are thus materially different than its assertion of the work-product and attorney-client privileges."  "First, unlike those assertions, the FBI's assertion of the deliberative-process privilege with respect to [plaintiff's] records rests on a position that it explicitly waived, not one it merely forfeited."  "Moreover, to the extent that the FBI's present argument is not a categorical one, but instead turns on a case-by-case application of the deliberative-process privilege to the records it now seeks to withhold, such an argument presents a substantial risk of expanding the scope and duration of the present litigation."
   
• Litigation Considerations:  "The Court agrees that a stay of the FBI's production obligations with respect to the case evaluation forms is appropriate."  The court lists the factors required for a stay and determines that "[t]he only difficult question is whether the FBI has 'made a strong showing that [it] is likely to succeed on the merits.'"  The court takes note of "the parties' agreement that some stay is warranted," and "concludes that there is a substantial question for appeal, and that in this context, it makes little sense to make the issuance of a stay contingent on the Court's determination that its own ruling was likely wrong."  "[I]n light of the complexity of the litigation – spanning multiple plaintiffs, FOIA requests, and discrete legal issues – [the court finds that ]it is not clear when the case will reach final judgment."  Therefore, "the Court declines to grant a stay pending final judgment" and "will, instead, grant the FBI's motion for a partial stay for 60 days."