Freedom Watch v. Bureau of Land Management ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREEDOM WATCH,
Plaintiff,
v.
Civil Action No. 16-2320 (CKK)
BUREAU OF LAND
MANAGEMENT, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(September 25, 2018)
In this Freedom of Information Act (“FOIA”) case, Plaintiff Freedom Watch once again
seeks discovery from Defendants Bureau of Land Management (“BLM”) and U.S. Department of
Justice—specifically the Federal Bureau of Investigation (“FBI”)—due to developments in the
criminal prosecution of Cliven Bundy, who is not a party here. Pl.’s Mot. for Leave to Conduct
Discovery, ECF No. 51 (“Pl.’s Mot.”). Upon consideration of the pleadings, 1 the relevant legal
authorities, and the record as a whole, the Court DENIES Plaintiff’s latest request for discovery.
The Court shall also address certain of the parties’ other filings that affect further
proceedings in this case. Among these are the FBI’s [39] Declaration of David M. Hardy, and
Plaintiff’s [40] Response to Court’s Order of August 11, 2017. Based on these filings, the Court
shall not vary the FBI’s current processing rate for Plaintiff’s FOIA request, nor, at this time, shall
the Court facilitate summary judgment briefing as to Exemption 7(A). Lastly, the Court considers
various filings regarding Defendants’ live video feed that ultimately do not affect the course of
proceedings in this case.
A. Relevant Background
The Court begins by reviewing certain prior orders in this case that are pertinent to both
discovery and processing speed. At the threshold, the Court observes that on at least three prior
occasions, Plaintiff has requested discovery in this case, and the Court has denied each such
request.
On May 15, 2017, the Court found that Plaintiff did not originally request expedited
treatment of its FOIA request to the BLM, and rejected Plaintiff’s argument that, inter alia, alleged
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The Court’s consideration of Plaintiff’s Motion for Leave to Conduct Discovery has focused on
the following pleadings:
• Pl.’s Mot. for Leave to Conduct Disc., ECF No. 51 (“Pl.’s Mot.”);
• Defs.’ Opp’n to Pl.’s Mot. for Leave to Conduct Disc., ECF No. 52 (“Defs.’ Opp’n”); and
• Pl.’s Reply to Defs.’ Opp’n to Mot. for Leave to Conduct Disc., ECF No. 53 (“Pl.’s
Reply”).
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malfeasance of the Government in other cases warranted expedited treatment now. Mem. Op. and
Order, ECF No. 29, at 2 & n.2. “[U]ntil Plaintiff can proffer actual evidence of misconduct specific
to this matter, the Court shall pay no credence to Plaintiff’s generalized and unsupported claims of
misconduct against either Defendants or their attorneys.” Id. at 2. The Court also determined that,
in “the absence of any indicia of bad faith by the government in this matter,” there was “no reason
to permit discovery at [that] time.” Id. at 2 n.2 (citing Landmark Legal Found. v. E.P.A., 959 F.
Supp. 2d 175, 183 (D.D.C. 2013); Justice v. I.R.S., 798 F. Supp. 2d 43, 47 (D.D.C. 2011), aff’d,
485 F. App’x 439 (D.C. Cir. 2012)). Plaintiff’s substantive basis for requesting expedited
treatment—the exigencies of Mr. Bundy’s criminal trial—was not justifiable because, among other
reasons, “the proper mechanism for Mr. Bundy to obtain potentially exculpatory evidence is
through the criminal discovery process,” or, failing that, through a request to the judge hearing that
case. Id. at 2-3.
Subsequently, the FBI indicated that it expected to require approximately 500 months to
complete the processing of Plaintiff’s FOIA request. See Min. Order of June 13, 2017.
Notwithstanding this long timeline, on June 13, 2017, the Court adopted the FBI’s proposed
schedule of 500 pages per month because Plaintiff did not provide any “objective evidence” in
support of its otherwise unsubstantiated objections. Id. Yet, the Court “remain[ed] amenable to
receiving reasonable proposals from Plaintiff to expedite the production of responsive materials
(e.g., by limiting the scope of its requests).” Id.
On August 11, 2017, the Court again denied a request from Plaintiff for expedited
production and for discovery. With regard to production speed, the Court reiterated that the
immediacy predicated on Mr. Bundy’s criminal case did not warrant expedited treatment in this
case; rather, Mr. Bundy ought to take up the matter with the judge hearing his criminal case. Min.
Order of Aug. 11, 2017. As for discovery, the Court found that Plaintiff had still failed to identify
any indicia in this case of Defendants’ bad faith. Id. The Court adopted BLM’s proposed
processing schedule of 1,000 documents per month and, yet again, “for the time being,” FBI’s
proposed schedule of 500 pages per month. Id. The Court ordered each party to submit further
briefing regarding aspects of FBI’s production rate. That further briefing resulted in the FBI’s [39]
Declaration of David M. Hardy, and Plaintiff’s [40] Response to Court’s Order of August 11, 2017,
to which the Court shall turn below.
On November 30, 2017, the Court once more denied Plaintiff’s request for discovery,
referencing some of the prior orders discussed above and finding that “Plaintiff [had] not provided
any details in support of its assertion that the search is in bad faith.” Mem. Op. and Order, ECF
No. 49, at 3-4.
B. Plaintiff’s Motion for Leave to Conduct Discovery
Filed December 19, 2017, Plaintiff’s [51] Motion seeks discovery once more, this time
based on the purported findings of a whistleblower report that came to light in Mr. Bundy’s
criminal case. “A district court has ‘broad discretion’ in denying discovery in FOIA cases.” Cole
v. Rochford, 285 F. Supp. 3d 73, 77 (D.D.C. 2018) (quoting Beltranena v. Clinton, 770 F. Supp. 2d
175, 187 (D.D.C. 2011)). “[I]n the FOIA context, courts have permitted discovery only in
exceptional circumstances where a plaintiff raises a sufficient question as to the agency’s good
faith in searching for or processing documents.” Id. (citing, e.g., Baker & Hostetler LLP v. U.S.
Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006)). The cases cited by Plaintiff are consistent
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with these propositions and resulted in denials of discovery requests. See Pl.’s Mot. at 4; Defs.’
Opp’n at 3.
According to Plaintiff’s Motion, the whistleblower report alleges significant misconduct
within the BLM and FBI in the events precipitating the Bundy prosecution and in the prosecution
itself. See Pl.’s Mot. at 2-3. Yet again, however, Plaintiff has failed to substantiate his allegations
that any such misconduct taints Defendants’ processing and production in this case. See, e.g., id.
at 3 (“Given these damning revelations, it is no wonder that Defendants here have provided
blatantly inflated and outrageous timelines for the production of documents in an attempt to further
the cover-up . . . .”).
Moreover, the Court’s review of the District of Nevada docket in the criminal case against
Cliven Bundy illustrates that any urgency to uncover bad faith in this case appears to be largely
moot. Shortly after Plaintiff’s Motion was filed and fully briefed, the criminal case against Mr.
Bundy in Nevada was dismissed with prejudice on January 8, 2018. Judgment of Dismissal,
United States v. Bundy, 2:16-cr-00046-GMN-PAL (D. Nev. Jan. 8, 2018) (Bundy), ECF No. 3117.
The Government sought reconsideration of that decision, which the court denied on July 3, 2018.
Order, Bundy, ECF No. 3273. In justifying its prior decision, the court stated that “a universal
sense of justice was violated by the Government’s failure to provide evidence that is potentially
exculpatory.” Id. at 11. The District of Nevada docket reflects the Government’s filing of an
appeal to the United States Court of Appeals for the Ninth Circuit on August 2, 2018.
Government’s Protective Notice of Appeal, Bundy, ECF No. 3306. Regardless of the outcome of
that appeal, however, developments in Mr. Bundy’s prosecution have vindicated this Court’s
decision to defer, repeatedly, to the criminal discovery process and the Nevada judge’s handling
of any breakdowns in that process. 2
The closest Plaintiff comes to furnishing any basis for discovery in this case is his argument
that “what Defendants have produced thus far are overwhelmingly only press articles.” Pl.’s Reply
at 2-3 (citing Aff. of Dina James, Pl.’s Ex. 3, ECF No. 53-3). Plaintiff does not mention, however,
the reason that Defendants have given, if any, for not producing many other kinds of documents.
It is quite possible, for example, that Defendants assert FOIA exemptions, such as Exemption 7(A),
as to other responsive documents that they have reviewed. The Court shall require a response from
the FBI and, in an abundance of caution, the BLM, regarding the nature of documents that they
are not producing.
But absent any affirmative indicia of Defendants’ bad faith, the Court is not persuaded at
this time that discovery is warranted. Accordingly, in an exercise of its discretion, the Court shall
DENY Plaintiff’s [51] Motion for Leave to Conduct Discovery.
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Purportedly on Mr. Bundy’s behalf, Plaintiff’s counsel in this matter filed a petition for writ of
mandamus in the Ninth Circuit regarding the denial of his pro hac vice application to represent
Mr. Bundy in the District of Nevada. See Copy of Petition for Writ of Mandamus, Bundy, ECF
No. 3181. The Ninth Circuit denied the petition on April 24, 2018. Order of USCA, Bundy, ECF
No. 3234. Accordingly, that petition is not a reason for granting discovery here either.
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C. FBI Processing Rate
The Court now turns to several factors that will affect the FBI’s processing speed going
forward. The Court’s Minute Order of August 11, 2017, instructed the FBI to “file a declaration
of the responsible FOIA official explaining in detail why its processing is limited to 500 pages per
month, and what the consequences would be if the processing speed were increased for Plaintiff’s
FOIA request.” Simultaneously, the Court required Plaintiff to “file a notice stating its position
regarding Defendants’ proposal to seek summary judgment on Exemption 7(A), which may
considerably limit the number of documents that need to be processed by Defendant FBI.” Min.
Order of Aug. 11, 2017.
The FBI has submitted a declaration regarding its processing rate from David M. Hardy,
the Section Chief of its Record/Information Dissemination Section, Records Management
Division. Decl. of David M. Hardy, ECF No. 39, ¶ 1. Mr. Hardy documents at length the rationale
for the FBI’s interim release policy of 500 pages per month. In summary terms, the FBI is
experiencing ever-increasing “volume and complexity” of both FOIA requests and FOIA litigation.
Id. ¶¶ 9-16. The agency has devised methods for allocating its finite FOIA resources between
competing demands. Id. ¶¶ 5-8. Plaintiff’s own FOIA request is exemplary of the strain placed
on the FBI’s resources: According to the FBI’s four-queue classification system for FOIA requests,
“[P]laintiff’s overall multi-subject request equates to an extra-large queue request as it is in excess
of approximately 100,000 pages.” Id. ¶ 13 n.4.
Just last year, in another case discussing a declaration from Mr. Hardy, the Court of Appeals
approved of his “reasonable, non-obstructionist explanation for the interim release policy’s 500-
page-per-CD limitation,” recognizing that this “policy serves to promote efficient responses to a
larger number of requesters.” Nat’l Sec. Counselors v. U.S. Dep’t of Justice, 848 F.3d 467, 471-
72 (D.C. Cir. 2017).
The processing rate in this case was also justified by the then-ongoing prosecution of Mr.
Bundy, together with related investigations and prosecutions. Decl. of David M. Hardy, ECF No.
39, ¶¶ 17-18. Evidently at least some of the same officials involved in those investigations and
prosecutions would need to divert further attention to Plaintiff’s FOIA request if the processing
speed were increased. Id. ¶ 18. At the time Mr. Hardy produced this declaration, this was a sensible
further reason for the current processing rate, and it may remain so because criminal proceedings
involving some of Mr. Bundy’s co-defendants are ongoing.
The Court turns to Plaintiff’s [40] Response to the Court’s Order of August 11, 2017,
regarding the summary judgment route for facilitating this case. Plaintiff clearly opposes an
assertion of Exemption 7(A) withholding in this case. See Pl.’s Resp. to Ct.’s Order of Aug. 11,
2017, ECF No. 40, at 2. Its response also implies that, at least as of August 25, 2017, it did not
view summary judgment briefing on this topic to be productive. See id. at 1 (“Plaintiff plans to
oppose Defendant FBI’s proposal to seek summary judgment on Exemption 7(A).”). Perhaps
Plaintiff’s view on this latter point has changed now that criminal trial proceedings against Mr.
Bundy have concluded. In the meantime, the Court shall not instruct the parties to brief a motion
for summary judgment as to Exemption 7(A).
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D. Live Video Feed
The Court addresses one final issue that is somewhat distinct from the foregoing. In an
unsolicited filing on November 10, 2017, Plaintiff indicated that it “will substantially narrow the
scope of its original request in order to expedite production of relevant, discoverable
documentation,” and proceeded to describe that narrowed scope. Pl.’s Notice of Narrowing in Part
FOIA Request, ECF No. 41, at 1. It appeared to the Court that “Plaintiff [was] no longer seeking
other documents within the scope of its original request.” Min. Order of Nov. 14, 2017. The Court
permitted Plaintiff to clarify if Plaintiff in fact intended otherwise. Id. Plaintiff responded that it
was “not narrowing its request,” but that it was pursuing an “interim narrowed request.” Pl.’s
Resp. to Ct.’s Min. Order of Nov. 14, 2017, ECF No. 45, at 1.
In any event, Plaintiff’s interim narrowed request pertained to a certain live video feed.
Defendants indicated in response that there was no video recording available, because the
surveillance camera in question had conveyed, but had not recorded, live footage. Defs.’ Status
Report, ECF No. 47, at 1. Notwithstanding the lack of any live feed itself, Defendants represented
that they were “searching for records responsive to the subject Freedom of Information Act request
that pertain to the live video feed and anticipate that they will complete their search for and
production of any non-exempt responsive records located as a result of that search by December
1, 2017.” Id. at 1-2. The Court instructed Plaintiff to respond, by December 6, 2017, regarding
this production. Min. Order of Nov. 28, 2017. Plaintiff’s response did not address Defendants’
production, if any, regarding documents associated with the live video feed. See Pl.’s Resp. to the
Ct.’s Order of Nov. 28, 2017, ECF No. 50.
Accordingly, the Court considers the foray into the “live video feed” to be concluded.
Because Plaintiff did not (permanently) narrow its request, the scope of Plaintiff’s request remains
as it did prior to Plaintiff’s [41] Notice on November 10, 2017.
E. Further Proceedings
For the foregoing reasons, in an exercise of its discretion, the Court DENIES Plaintiff’s
[51] Motion for Leave to Conduct Discovery.
Based on the dismissal with prejudice of the criminal case against Cliven Bundy, Plaintiff
may be interested in proceeding differently in this case. The Court instructs the parties to meet
and confer to identify an appropriate path forward. By OCTOBER 9, 2018, the parties shall
submit a Joint Status Report conveying their proposal for further proceedings. In light of Plaintiff’s
[53] Reply to Defendants’ Opposition to the Motion for Leave to Conduct Discovery, Defendants
shall include in this Joint Status Report a description of the nature of documents that they have
produced and that they have been withholding from production.
SO ORDERED.
Dated: September 25, 2018
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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