The New York Times Company et al v. Federal Bureau of Investigation

Filing 19

REPLY MEMORANDUM OF LAW in Support re: 12 CROSS MOTION for Summary Judgment and Motion to Dismiss for Lack of Subject Matter Jurisdiction. and in opposition to Plaintiffs' Motion for Summary Judgment. Document filed by Federal Bureau of Investigation. (Onozawa, Tomoko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE NEW YORK TIMES COMPANY and
:
CHARLES SAVAGE,
:
:
Plaintiffs,
:
:
v.
:
:
FEDERAL BUREAU OF INVESTIGATION,
:
:
Defendant.
:
:
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ECF CASE
10 Civ. 7920 (RPP)

DEFENDANT’S REPLY MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN
FURTHER SUPPORT OF DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT AND MOTION TO DISMISS FOR
LACK OF SUBJECT MATTER JURISDICTION

PREET BHARARA
United States Attorney for the
Southern District of New York
Attorney for Defendant
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: [phone]
Facsimile: [phone]
TOMOKO ONOZAWA
Assistant United States Attorney
– Of Counsel –

TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 
ARGUMENT ...................................................................................................................................3 
THIS COURT LACKS JURISDICTION TO DECIDE WHETHER THE INFORMATION
REQUESTED BY THE ASSESSMENT STATISTICS REQUEST IS RELEASABLE UNDER
FOIA AFTER THE FBI HAS FULLY COMPLIED WITH THE REQUEST ...............................3 
A. 

No Exceptions to the Mootness Doctrine Apply .....................................................3 

B. 

Plaintiffs Have Failed to Establish a Pattern or Practice That Warrants the
Application of the Voluntary Cessation Doctrine ....................................................6 

C. 

Plaintiffs Cannot Seek an Advisory Opinion on the Merits on the FBI’s
Previously Asserted Exemptions .............................................................................8 

D. 

Plaintiffs Must Exhaust Their Administrative Remedies Under FOIA
Before This Court Can Exercise Subject Matter Jurisdiction Over Any
Claims Related to the Second Statistics Request .....................................................9 

CONCLUSION ..............................................................................................................................10 

PRELIMINARY STATEMENT
Defendant the Federal Bureau of Investigation (the “FBI” or the “Government”) by its
attorney, Preet Bharara, United States Attorney for the Southern District of New York,
respectfully submits this reply memorandum of law in further support of its cross-motion for
summary judgment with respect to selected documents under the Freedom of Information Act, 5
U.S.C. § 522 (“FOIA”), and its motion to dismiss under Federal Rule of Civil Procedure
12(b)(1).
Plaintiffs have agreed to dismiss Count II of their complaint, which relates to the FBI’s
Shooting Incident Review Team reports (“SIRT Request”). See Pls.’ Mem. of Law in Reply in
Further Support of Their Mot. for Summ. Judg. and in Opp. to Def.’s Cross-Mot. (“Pls.’ Reply”)
at 3 n.1. As a result, the remaining disputed issue before the Court is Plaintiffs’ erroneous
assertion that this Court has jurisdiction to render an advisory opinion regarding the FBI’s initial
withholding of statistics on the aggregate results of investigative “assessments” conducted by the
FBI pursuant to Attorney General Guidelines (“Assessment Statistics Claim”), even though
Plaintiffs’ FOIA claim as to the Assessment Statistics (“Assessment Statistics Request”) was
mooted by the Government’s release of the requested information. Moreover, while the parties
were briefing the instant motion, Plaintiffs filed a second FOIA request (“Second Statistics
Request”) with the FBI on April 14 and 15, 2011, seeking statistics on various categories of
assessments conducted by the FBI during various time periods. See Declaration of Charles
Savage dated April 15, 2011 (“Savage Decl.”) ¶ 12 & Ex. E; Declaration of Dennis J. Argall
dated April 28, 2011 (“Argall Decl.”) ¶ 6 & Exs. A & B. Although the FBI is still in the process
of searching for documents responsive to that request, Plaintiffs suggest, absent any factual basis,
that “the unlawful conduct complained of by NYT will continue” if the Court declines to issue a

ruling that the withholdings asserted for a specific request in this case were improper. See Pls.’
Reply at 8-9.
A straightforward application of the law compels dismissal for lack of subject matter
jurisdiction of Plaintiffs’ FOIA claim with respect to the Assessment Statistics. First, the law is
clear that a FOIA claim – including one for declaratory relief − is mooted by the release of
documents sought by the FOIA requestor, and that this Court cannot render an advisory opinion
with respect to the Government’s initial withholdings of the Assessment Statistics under
Exemptions 2 and 7(E). Second, to the extent Plaintiffs wish to use this action to guarantee the
full release of the information sought in a second FOIA request just submitted on April 14 and
15, 2011, they cannot do so through an impermissible end-run around FOIA’s administrative
exhaustion requirement based on mere speculation that “unlawful conduct complained of by
NYT will continue.” See Pls.’ Reply at 9. Under the law, a FOIA requester must exhaust
administrative remedies, or otherwise be deemed to have constructively exhausted, prior to
seeking judicial review. Plaintiffs have done neither. Requiring Plaintiffs to exhaust
administrative remedies serves the salutary purposes underlying the exhaustion doctrine: that is,
to provide the FBI with an opportunity to exercise its discretion and expertise on the matter, and
conserve judicial resources by enabling agency supervisors to rectify any erroneous denials of
meritorious requests.
Therefore, this Court should grant both the Government’s cross-motion for summary
judgment on Plaintiffs’ FOIA claims with respect to the SIRT Request and the Assessment
Statistics Request, and the Government’s Rule 12(b)(1) motion to dismiss Plaintiffs’ FOIA claim
with respect to the Assessment Statistics Request.

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ARGUMENT
THIS COURT LACKS JURISDICTION TO DECIDE WHETHER THE
INFORMATION REQUESTED BY THE ASSESSMENT STATISTICS
REQUEST IS RELEASABLE UNDER FOIA AFTER THE FBI HAS
FULLY COMPLIED WITH THE REQUEST
A.

No Exceptions to the Mootness Doctrine Apply
Because the FBI has now released the documents sought by their complaint, Plaintiffs

cannot meet their burden of establishing that subject matter jurisdiction exists over their
complaint. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).
Indeed, as Plaintiffs have not rebutted, numerous cases in this and other Circuits make clear that
FOIA confers jurisdiction on this Court to enjoin the FBI from “withholding agency records and
to order the production of any agency records improperly withheld,” such that the release of
information responsive to a request moots the underlying claim and the Court’s jurisdiction to
provide further relief under FOIA. See Def.’s Mem. of Law in Opp. to Pl.’s Mot. for Summ. J.
(“Def.’s Br.”) at 13-14 (citing cases); see also Isasi v. Office of the Attorney Gen., No. 09-5122,
2010 WL 2574048, at *1 (D.C. Cir. June 2, 2010) (“The FOIA claim against the agency was
properly dismissed as moot, because the two pages appellant had requested were subsequently
released to him in their entirety….”); Armstrong v. Executive Office of the President, 97 F.3d
575, 582 (D.C. Cir. 1996) (government’s release of document at issue “moots the question of the
validity of the original exemption claim”); Anderson v. U.S. Dep’t of Health & Human Servs., 3
F.3d 1383, 1384 (10th Cir. 1993) (same).
In response, Plaintiffs argue that even if all the relief sought in their FOIA complaint has
been satisfied, the Assessment Statistics Claim falls under an exception to the mootness doctrine,
which involves defendants that voluntarily discontinue a challenged action to avoid judicial
review even if their conduct was capable of recurring. See Pls.’ Reply at 4-5 (citing cases). This
doctrine does not support Plaintiffs’ contention here.

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As a preliminary matter, Plaintiffs rely on cases applying the voluntary cessation doctrine
to non-FOIA claims with entirely dissimilar facts and where, unlike here where the requested
documents have irreversibly been released, there was a legitimate reason to believe that the
challenged action would be reinstated. See Parents Involved in Comty. Schools v. Seattle School
Dist. No. 1, 551 U.S. 701, 719 (2007) (holding that 14th Amendment equal protection claim
challenging school district’s use of racial “tiebreakers” to determine school assignments was not
mooted by district’s cessation of racial tiebreaker practice pending the outcome of litigation);
City News and Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283 (2001) (holding that
challenge brought by unsuccessful renewal applicant of adult business license was moot after
petitioner withdrew its application and closed its business); Friends of the Earth, Inc. v. Laidlaw
Envtl. Services (TOC), Inc., 528 U.S. 167, 193 (2000) (holding that citizens’ suit for Clean Water
Act penalties against polluter for violations of environmental permit could be mooted by
polluter’s subsequent voluntary compliance with its permit if it was “absolutely clear” that the
“permit violations could not reasonably be expected to recur”), City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 288-90 (1982) (holding that challenge to constitutionality of
prohibitions and restrictions in municipal ordinance was not moot, even where the city amended
the ordinance while the case was pending before the Sixth Circuit, because the city could reenact the challenged provision later); United States v. Concentrated Phosphate Export Ass’n,
Inc., 393 U.S. 199, 202-03 (1968) (holding that civil antitrust complaint filed by Government
against export association and five of its members was not mooted by the defendant association’s
subsequent dissolution and the amendment of a regulation); United States v. W.T. Grant Co., 345
U.S. 629, 632-33 (1953) (holding that civil enforcement actions brought by Government against
corporate defendants for violations of the Clayton Act were not mooted by defendants’ cessation
of illegal activity).

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Nor is there merit to Plaintiffs’ assertion that courts have declined to dismiss FOIA cases
as moot even after the agency has released the requested documents in advance of a ruling, “if
the agency’s policy or practice remains in place.” See Pls.’ Reply at 6. Again, the cases cited
by Plaintiffs are simply not on point, because they support a different proposition − that an
agency’s release of documents under FOIA does not moot a tandem claim or claims asserted
under other statutes challenging Government action or inaction. For example, in Payne Enters.
Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988), plaintiff filed a FOIA action seeking an
order to compel the Air Force to supply him with copies of bid abstracts. Id. at 487. The D.C.
Circuit observed that, aside from FOIA, plaintiff’s complaint cited the federal question statute,
the federal mandamus statute, and the All Writs Act, which the court collectively construed as a
“claim of ‘unreasonable agency delay.’” Id. at 487 n.1. Although the Air Force moved to
dismiss plaintiff’s lawsuit as moot because the agency eventually released the bid abstracts and
promised to grant future requests for bid abstracts, the D.C. Circuit held that these acts did “not
render moot [plaintiff’s] challenge to the Air Force’s practice of unjustified delay.” Id. at 488
(emphasis added).
Similarly, in Oregon Natural Desert Ass’n v. Gutierrez, 409 F. Supp. 2d 1237 (D. Or.
2006), plaintiff challenged certain agency regulations under FOIA and Section 706(2) of the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, which allows a court to overturn
an agency action or decision if it was “arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with law.” Id. at 1242 (citing 5 U.S.C. § 706(2)(A)). Although the
Government moved to dismiss plaintiff’s claims as moot because the agency had produced all
responsive documents under FOIA, the court denied the motion because “the release of
documents did not moot the claim that the agency policy or practice impaired the party’s lawful
access to information in the future.” Id. at 1245 (quoting Payne Enters., 837 F.2d at 491).

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Likewise, in Center for Biological Diversity v. Gutierrez, 451 F. Supp. 2d 57 (D.D.C. 2006),
plaintiff asserted a FOIA claim and claims under Section 706(1) and 706(2) of the APA,
contending that the agency’s delays in processing plaintiff’s FOIA requests and appeals
“establish a pattern and practice of unresponsiveness in violation of the [APA].” Id. at 64, 69
(citing 5 U.S.C. § 706(1), (2)(A)). Because “a party’s challenge to the policy or practice cannot
be mooted by the release of the specific documents that prompted the suit,” the court rejected the
agency’s arguments and held that that Counts IV and V of plaintiff’s complaint – the APA claims
– were not moot. Id. at 64, 70 (quoting Payne Enters., 837 F.2d at 491).
Here, by contrast, Plaintiffs’ complaint in this case asserts only a claim under FOIA,
which provides only prospective relief – i.e., the production of requested documents – and the
complaint asserts no other claim under any other statute that awards declaratory relief through a
successful challenge of an agency’s policies, practices, or timeliness with respect to the general
processing and release of documents under FOIA.
B.

Plaintiffs Have Failed to Establish a Pattern or Practice That Warrants the
Application of the Voluntary Cessation Doctrine
To the extent the voluntary cessation doctrine applies to this case, Plaintiffs present no

evidence of either a “pattern” or a “policy or practice” that will negatively impact Plaintiffs’
access to FBI data in the future. Instead, Plaintiffs cite only a single oral representation made by
an Assistant United States Attorney that “the FBI was not taking the position that FOIA required
the release of the Assessment Statistics” that were the subject of the instant complaint. See
Declaration of David McCraw dated April 15, 2011 (“McCraw Decl.”) at ¶ 5. This single
statement, which was a response to counsel’s inquiry regarding the FBI’s initial application of
two FOIA exemptions to a specific document expressly requested by Plaintiffs, is plainly
insufficient to establish a “pattern” that merits the application of the voluntary cessation doctrine
here.

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Although Plaintiffs speculate that the FBI’s decision to release the Assessment Statistics
was made “only hours” after the Supreme Court’s decision on FOIA Exemption 2 in Milner v.
Dep’t of Navy, 131 S. Ct. 1259, 2011 U.S. LEXIS 2101 (2011), see Pls.’ Reply at 9, the
document was, in fact, released after further thorough review by operational internal units within
the FBI, which determined that the information could be released without harming an interest
protected by either Exemptions 2 or 7(E). See Argall Decl. ¶ 3. In addition, the FBI has only
begun to search for documents responsive to the Second Statistics Request and thus cannot
ascertain whether responsive documents even exist, and whether any responsive documents can
be released in full, or may contain information subject to any FOIA Exemptions. Id. ¶¶ 7-8.
Finally, it is impossible and unreasonable for the FBI to concede or agree in advance that
statistics for different categories of assessments for criminal activity and natural security
throughout different time periods (which are distinct from the information sought in the
Assessment Statistics Request) would not trigger any applicable FOIA exemption, because the
two requests are separate from and do not overlap with each other. Id. ¶¶ 6, 8. Accordingly,
Plaintiffs’ FOIA claim as to the Assessment Statistics must be dismissed for lack of subject
matter jurisdiction because Plaintiffs have failed to articulate an “unlawful policy” of the FBI,
and have not shown that the FBI will “continue” to engage in any so-called “unlawful conduct,”
in a way that warrants declaratory relief for an already-moot claim. See Long v. U.S. Dep’t of
Justice, 450 F. Supp. 2d 42, 62 (D.D.C. 2006) (declining to apply voluntary cessation doctrine
and dismissing FOIA claim as moot after Government released the records at issue, because, as
here, plaintiffs were “challenging the application of a specific FOIA exemption to specific
records in the context of a specific FOIA request,” and “there is no indication” that the
Government “intends to assert unsupported Exemption 5 claims in the future”) (emphasis in
original).

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C.

Plaintiffs Cannot Seek an Advisory Opinion on the Merits on the FBI’s Previously
Asserted Exemptions
Despite having already received and published the Assessment Statistics, see Savage

Decl. ¶ 8 & Ex. C, Plaintiffs persist in seeking a judicial finding “that documents showing the
number of assessments conducted by the FBI are public records pursuant to FOIA.” See Pls.’
Reply at 4. However, FOIA does not provide the Court with jurisdiction to issue a declaratory
judgment that Defendants’ initial refusal to disclose the information was unlawful, after the
agency has made that information available. See, e.g., Payne Enters., 837 F.2d at 489 (“A
declaration that an agency’s initial refusal to disclose requested information was unlawful, after
the agency made that information available, would constitute an advisory opinion in
contravention of Article III of the Constitution.”) (citing Better Gov’t Ass’n v. Dep’t of State, 780
F.2d 86, 91 (D.C. Cir. 1986)); Riser v. U.S. Dep’t of State, No. 09-3273, 2010 WL 4284925, at
*7 (S.D. Tex. Oct. 22, 2010) (declining plaintiff’s request for declaratory judgment that agencies
improperly withheld records that were later produced, because “claim for declaratory relief is
now moot”); Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 676 (7th Cir. 2009)
(affirming district court’s dismissal of FOIA claim as moot after agency produced the requested
documents, despite plaintiff’s insistence that court was “free to issue a declaratory judgment that
the [agency] violated FOIA,” because plaintiff “does not seek any response to its FOIA request
beyond what it already has received”); Nat’l Security Archive v. CIA, 564 F. Supp. 2d 29, 34
(D.D.C. 2008) (declining to enjoin the CIA to treat plaintiff as a representative of the news
media for all future FOIA requests, because “any attempt by this Court at this time to ‘prevent
the CIA from future illegal conduct’ would amount to providing the parties an advisory

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opinion.”) (emphasis in original). Accordingly, Plaintiffs’ request for declaratory relief has been
mooted by the FBI’s release of the Assessment Statistics.1
D.

Plaintiffs Must Exhaust Their Administrative Remedies Under FOIA Before This
Court Can Exercise Subject Matter Jurisdiction Over Any Claims Related to the
Second Statistics Request
To the extent Plaintiffs are asserting claims regarding the Second Statistics Request, this

Court lacks jurisdiction to grant relief because Plaintiffs have not exhausted their administrative
remedies under FOIA.
“[E]xhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under
FOIA.” Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (per curiam) (citation and internal
quotation marks omitted); see 5 U.S.C. § 552(a)(6)(A)-(C) (requester is deemed to have
exhausted administrative remedies when agency exceeds 20-day time limit for its initial response
to a request, or 20-day limit for adjudicating an administrative appeal of the response to the
request, or its 10-day extension, if any, of either time limit); 6 C.F.R. § 5.9(c) (“If you wish to
seek review by a court of any adverse determination, you must first appeal it under this
section.”); 28 C.F.R. § 16.9(c) (same). Relatedly, courts have found it “impermissible” for a
FOIA requester “to expand a FOIA request after the agency has responded and litigation has
commenced.” Gillin v. IRS, 980 F.2d 819, 823 n.3 (1st Cir. 1992); see also Thomas v. Office of
U.S. Attorney, 171 F.R.D. 53, 55 (E.D.N.Y. 1997); Pray v. DOJ, 902 F. Supp. 1, 2-3 (D.D.C.

1

One outlier decision from the Northern District of Ohio, cited by Plaintiffs in their brief,
did hold that plaintiff “remains entitled to a declaration” of whether the agency’s initial refusal to
produce booking photographs requested by plaintiff violated FOIA, even after the agency had
produced those photographs. See Pls.’ Reply at 7-8 (citing Beacon Journal Publishing Co. v.
Gonzalez, No. 05CV1396, 2005 WL 2099787, at *2 (N.D. Ohio Aug. 30, 2005). The Court
should not follow Beacon Journal’s holding, which is contrary to those of circuit and district
courts around the country that have consistently held that an agency’s production of disputed
documents renders the underlying FOIA claim moot and precludes declaratory relief, see supra
Point I.A & C.

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1995) (disallowing request made in response to summary judgment motion), aff’d in part &
remanded in part on other grounds, No. 95-5383, 1996 WL 734142, at *1 (D.C. Cir. Nov. 20,
1996).
Exhaustion serves several important purposes. As a general matter, exhaustion provides
the agency “an opportunity to exercise its discretion and expertise on the matter and to make a
factual record to support its decision.” Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 61 (D.C. Cir.
1990) (citing McKart v. United States, 395 U.S. 185, 194 (1969)). Moreover, the administrative
appeals process affords agencies the opportunity to “correct or rethink initial misjudgments or
errors,” thus obviating the need for judicial review by the courts. Taylor v. Appleton, 30 F.3d
1365, 1369 (11th Cir. 1994). Accordingly, any judicial review regarding any documents
responsive to the Second Statistics Request must and should wait until the FBI has an
opportunity to locate and review and documents responsive to that request, see Argall Decl. ¶ 8,
and after Plaintiffs have fully exhausted their administrative remedies with the FBI and have
filed suit with this Court to the extent they disagree with the agency’s final determination.
CONCLUSION
For the foregoing reasons, this Court should deny Plaintiffs’ motion for summary
judgment and grant the Government’s cross-motion for summary judgment and its motion to
dismiss for lack of subject matter jurisdiction.

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Dated:

New York, New York
April 29, 2011
PREET BHARARA
United States Attorney for the
Southern District of New York,
Attorney for Defendant
By:

/s/ Tomoko Onozawa
TOMOKO ONOZAWA
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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