Filing 74

MEMORANDUM OPINION to the Order denying Plaintiff's Third Motion for Discovery, Plaintiff's Motion to Submit a Supplement to His Reply in Support of Partial Summary Judgment; and Plaintiff's Motion for Limited In Camera Review. Signed by Judge Gladys Kessler on 4/25/17. (CL)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GEORGE CANNING, Civil Action No. 11-1295(GK) Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. MEMORANDUM OPINION On December 15, 2013, the Parties completed briefing cross- motions for summary judgment on Plaintiff's Freedom of Information Act ("FOIA") Plaintiff claims, filed a 5 U.S.C. series of 522 et seq. On January 2, ยง motions: ( 1) a 2014, Third Motion for Discovery and for a Stay of the Case While Discovery Is Conducted ("Mot. Disc.") [Dkt. No. 66], (2) a Motion to Submit a Supplement to His Reply in Support of Partial Summary Judgment ("Mot. Supp.") [Dkt. No. 67], and (3) a Motion for Limited In Camera Review ("Mot. In Camera Opposition Review" ) on [Dkt. January 15, No. 6 8] 2014 Defendant ("Opp'n") filed [Dkt. an omnibus No. 69] and Plaintiff declined to file a Reply. For the reasons provided below, the Court shall deny each of Plaintiff's motions. -1- I. Plaintiff's Third Motion for Discovery In his Third Motion for Discovery, limited discovery is necessary to Plaintiff contends that complete Defendant's Motion for Summary Judgment. discovery Plaintiff seeks concerns: (1) his Mot. opposition Disc. at 1. to The the presence of Lyndon LaRouche's name on files provided to Plaintiff in response to his September 2007 receipt of FOIA request; FOIA requests and made to (2) the Defendant's alleged nonFBI' s headquarters. See generally id. As this Court explained when it denied Plaintiff's Second Motion for Discovery, discovery is rarely allowed in FOIA actions. Wheeler v. C.I.A., 271 F. Supp. 2d 132, 129 (D.D.C. 2003). If the Court deems the declarations of an agency deficient, then it may request that the agency supplement those disclosures rather than order discovery. Hall v. C.I.A., 881 F. Supp. 2d 38, 73 (D.D.C. 2012) . This Court has already concluded that additional discovery would not be appropriate in this case in view of the pending crossmotions for summary judgment. See Op. at 2 [Dkt. No. 44]. Because the subjects of Plaintiff's most recent discovery motion have been extensively briefed by the Parties, much of the discovery sought may well be rendered moot after the Court resolves the pending Motions for Summary Judgment. Moreover, Plaintiff admits that the -2- discovery he seeks "is derived from interrogatories and document requests" the ~ previously-submitted discovery requests this Court has twice denied. Not only is it clear that at least some of the information that Plaintiff seeks is irrelevant or protected by various FOIA exemptions, but Plaintiff has not offered an explanation as to why circumstances have changed since the Court's previous denials so that discovery at this late stage in the case is now warranted. Accordingly, Plaintiff's Third Motion for Additional Discovery shall be denied. II. Plaintiff's Motion to Submit a Supplement to His Reply Plaintiff also requests that the Court permit him to file a Supplement to his Reply in Support of his Cross-Motion for Partial Summary Judgment. Plaintiff explains that "he discovered on a rereading of Mr. Hardy's Fourth Declaration ... that defendant has made a substantial change in its factual account regarding the 2007 FOIA request to FBI Headquarters." Mot. Supp. at 1. Plaintiff "would like to bring this to the Court's attention, in the event it also missed that change on its first reading of the Fourth Hardy Declaration." Id. Plaintiff, in short, seeks to file a surreply. A district court "may grant leave to file a surreply at its discretion." Am. Forest & Paper Ass'n, Inc. v. E.P.A., 1996 WL 509601, at *3 (D.D.C. 1996). "The standard for granting leave to file a -3- surreply is whether the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party's reply." Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (quoting Lewis, 154 F.Supp.2d at 61). Plaintiff has not alleged that Defendant raised new arguments or issues for the first time in his Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Partial Summary Judgment. On the contrary, Plaintiff explains that he merely encountered information "on a re-reading of Mr. Hardy's Fourth Declaration" that he wished "to bring ... to the Court's attention [.]" Mot. Supp. at 1. Even if Defendant had raised new arguments in its motion, Plaintiff, as the last party to respond pursuant to the summary judgment briefing schedule, had ample opportunity to address those arguments in his Reply Motion. For this reason, and in light of the fact that the Court already afforded Plaintiff an opportunity to supplement his Opposition Motion, see Minute Entry of Sept. 10, 2013, the Court shall deny Plaintiff's Motion to Submit a Supplement to His Reply in Support of Partial Summary Judgment. III. Plaintiff's Motion for Limited In Camera Review Plaintiff moves the Court to conduct an in camera review of the FBI's withholdings under FOIA -4- Exemption 7(E) because he suspects that the FBI has improperly withheld material that demonstrates well-known or illegal investigative techniques. See Mot. In Camera Review at 1. Whether in camera inspection of contested FOIA material is appropriate is a question that lies within the district court's discretion. See Ctr. for Auto Safety v. E.P.A., 731 F.2d 16, 22 (D.C. Cir. 1984). "[W]hen the agency meets its burden [under FOIA] by means of affidavits, in camera review is neither necessary nor appropriate." Id. at 23. A court sufficient if they "show, may find affidavits with reasonable specificity, to be why the documents fall within the exemption," are not "conclusory ... too vague or sweeping," and "there is no evidence in the record of agency bad faith." Id. (citing Hayden v. N.S.A., 608 F.2d 1381, 1387 (D.C. Cir. 1979)). In this support of extensive exemptions. affidavits, case, its Motion detail, In the for of filed numerous Summary Judgment applicability reviewing the Court has agency bad faith. withholding Defendant has the pleadings that the and justify, asserted in in FOIA accompanying found no evidence or allegations of Furthermore, material of affidavits the appropriateness of the FBI's documenting certain investigative techniques is an issue that has been well-briefed by the Parties in their cross-motions for summary judgment. -5- In his Motion for Limited In Camera Review, issues. Accordingly, Plaintiff does not raise any novel the Court will resolve the pending summary judgment motions and deny Plaintiff's Motion for Limited In Camera Review. IV. CONCLUSION For the foregoing reasons, Plaintiff's Third Motion for Discovery and for a Stay of the Case While Discovery is Conducted, Motion to Submit a Supplement to His Reply In Support of Partial Summary Judgment, and Motion for Limited In Camera Review shall be denied. An Order shall accompany this Memorandum Opinion. April r;;}_f, 2 01 7 Gladys Kesser United States District Judge Copies to: attorneys on record via ECF and to George Canning 60 Sycolin Road Leesburg, VA 20175 -6-

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