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Shapiro v. DOJ, No. 20-5318, 2022 WL 2760812 (D.C. Cir. July 15, 2022) (Tatel, J.)


Shapiro v. DOJ, No. 20-5318, 2022 WL 2760812 (D.C. Cir. July 15, 2022) (Tatel, J.)

Re:  Request for records concerning animal rights movement

Disposition:  Affirming in part and remanding in part district court's grant in part and denial in part of defendant's motion for summary judgment, defendant's motion to stay, and requester's motion for discovery and summary judgment

  • Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit largely finds that the FBI's search was adequate.  The court explains that “[i]n its declarations, the FBI explained which recordkeeping systems it searched and how.”  “Moreover, it set forth the search terms that it used . . . .”  Additionally, responding to the requester’s argument, the court finds that “[a]s government counsel explained at oral argument, the additional systems [the requester] identified [that he argues the FBI needs to search] are ‘systems that maintain records as opposed to the indices of records,’ and the files in those systems ‘would show up [in] the indices.’”  “Essentially, [the requester] faults the FBI for searching its card catalogues rather than leafing through every book in the library.”  “But our FOIA precedent, under which an agency’s search need only be ‘reasonably expected to produce the information requested,’ does not require what the government represents would be a redundant search of individual electronic surveillance files.”

    “Despite the FBI’s good-faith effort to process the voluminous requests, [the court] agree[s] with [the requester] that its declarations inadequately address one class of records:  those related to individuals mentioned in monitored communications but not directly targeted for surveillance.”  “According to its declarations, the FBI’s electronic surveillance indices include ‘the names of all individuals whose voices have been monitored,’ but for many years field offices have not been ‘required to forward to [FBI headquarters] the names of all individuals mentioned during monitored conversations.’”  “Although ‘some’ field offices continue to include mentioned names in their local indices, ‘the names of such individuals cannot be retrieved through the [headquarters] [Electronic Surveillance (“ELSUR”) Index[, which includes “individuals who were the targets of surveillance, other participants in monitored conversations and the owners, lessees, or licensors of the premises where the FBI conducted the electronic surveillance”’].”  “The FBI’s declarations do not explain how the [Automated Case Support] search conducted in this case[, which “‘equate[s] to searches of the ELSUR indices,’”] would have revealed electronic surveillance ‘mentions’ if Bureau field offices omit those references from ELSUR indices.”  “A limited remand is appropriate for the FBI to fill this gap in its declarations.”
  • Litigation Considerations, Discovery:  “Finding no evidence of bad faith – a finding [the requester] does not challenge on appeal – [the Court of Appeals for the District of Columbia Circuit holds that] the district court acted within its ‘broad discretion to manage the scope of discovery’ when it denied [the requester’s] request for extensive document production and oral depositions of FBI personnel.”  The court “note[s] that [the requester’s] FOIA requests presented the FBI with a Herculean task, and nothing in the record suggests that it approached this task with anything less than utmost seriousness.”  “Following the district court’s Open America stay order, the FBI promptly processed tens of thousands of pages that [the requester] identified as his highest priorities for disclosure.”  “It then continued to process his requests at an impressive clip until it ultimately completed its disclosures well within the time the district court allowed.”  Therefore, the court finds that, “[c]onsistent with these principles, on remand the district court need not allow discovery if further declarations will suffice.”
  • Litigation Considerations, Mootness and Other Grounds for Dismissal:  The Court of Appeals for the District of Columbia Circuit holds that “[the requester’s] challenge to the district court’s stay order is moot.”  The court explains that “[t]he Open America stay expired years ago after the FBI finished processing documents responsive to [the requester’s] FOIA requests.”  “Now that the FBI has turned over all responsive documents, [the court] lack[s] authority to turn back the clock and compel the FBI to hand them over faster.”  “Accordingly, [the court is] unable to offer [the requester] ‘any effectual relief’ related to the stay.”

    “Conceding that the Open America stay ‘is no longer live,’ [the requester] contends that we may nonetheless review it because it presents an issue ‘“capable of repetition, yet evading review.”’”  The court finds that “[t]he dispute here is incapable of repetition because, rather than presenting ‘legal questions’ likely to recur in future litigation, it turns on ‘highly fact-specific’ details of [the requester’s] requests.”  “Observing that ‘the FBI could not reasonably have planned for a single citizen to consume such a vast quantity of the agency’s FOIA resources,’ the district court found that a stay was warranted because [the requester’s] requests were ‘unusually voluminous, complicated, and interconnected.’”   And [the requester], for his part, disputes the district court’s finding that the FBI exercised due diligence in responding to these extraordinary requests.”  “That is, he contends that the district court ‘erred factually.’”  “But ‘[a]s [the court has] made clear, a legal controversy so sharply focused on a unique factual context will rarely present a reasonable expectation that the same complaining party would be subjected to the same actions again.’”
  • Litigation Consideration, In Camera Inspection:  The Court of Appeals for the District of Columbia Circuit relates that “[f]inally, [the requester] seeks to unseal a declaration filed in camera in support of the government’s stay motion.”  The court finds that “[i]f [the requester] wishes to press his argument that the right of public access requires unsealing, he must do so in the first instance before the district court.”
Court Decision Topic(s)
Court of Appeals opinions
Litigation Considerations, Adequacy of Search
Litigation Considerations, Discovery
Litigation Considerations, In Camera Inspection
Litigation Considerations, Mootness and Other Grounds for Dismissal
Updated August 16, 2022