Stein v. DOJ, No. 13-571, 2016 WL 3919811 (D.D.C. July 18, 2016) (Chutkan, J.)
Re: Request for records concerning British author and journalist
Disposition: Granting in part and denying in part defendant's renewed motion for summary judgment; granting plaintiff's cross-motion for summary judgment
- Exemption 7(D): The court "finds that the FBI's assertion of FOIA exemption (b)(7)(D) with regard to . . . 28 pages of records was properly supported by an implied assurance of confidentiality." The court relates that "[t]he declaration accompanying Defendant's renewed motion for summary judgment . . . avers that the G-1 Guide, which the FBI uses 'to determine the level and duration of derivative classification of foreign government information,' states that 'the foreign agency referenced in the records at issue here requested its relationship with the FBI be classified.'" "Plaintiff concedes that, based on this new evidence, the court must find that the information at issue . . . was provided under an implicit assurance of confidentiality."
- Litigation Considerations: The court holds that, "[b]ecause . . . Defendant has ignored Plaintiff's argument that the FBI's delay in responding to the FOIA request at issue . . . triggers § 552(a)(4)(A)(viii)'s prohibition on the assessment of duplication fees, the court will deem Defendant to have conceded the point." The court relates that "[d]efendant's argument in its renewed motion for summary judgment on Count VI is straightforward: Because Plaintiff has never paid any portion of the fees requested by the FBI, the FBI is not required to process his request." "Plaintiff argue[d] that the FBI is not permitted to charge fees to process his request because it made no progress on the request until he filed the instant lawsuit eleven months after first submitting the request." The court notes that "[d]efendant does not respond to this argument or even mention § 552(a)(4)(A)(viii) in its reply brief." The court holds that "[d]efendant is . . . ordered to process the FOIA request at issue in Count VI of Plaintiff's Complaint free of charge, and to return the $72.50 advance payment remitted by Plaintiff . . . with interest."