Virginian-Pilot Media Companies, LLC et al v. Federal Bureau of Investigation

Filing 61

MEMORANDUM OPINION AND ORDER: granting in part and denying in part 28 Motion for Summary Judgment; granting in part and denying in part 39 MOTION for Summary Judgment That Defendant has Violated the Freedom of Information Act and that Plaintiff s are the Prevailing Parties in this Suit ; denying 44 Motion to Lift Stay on Discovery, to Expedite Responses to the Discovery that has been Filed, and to Allow the Deposition of the Individual Who Made the Decisions Involved in this Lawsuit. D efendant's Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART. The Court finds Defendant violated FOIA's statutory time to respond and failed to initially conduct a reasonable search in response to Plaintiffs' FOIA reque st. Plaintiffs' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The Court finds that Plaintiffs are the prevailing party, but Defendant properly withheld exempt material and an in camera inspection is declined. Plaintiffs' Motion to Lift Stay on Discovery is DENIED. Plaintiffs shall file documentation to support their request for attorney's fees within FOURTEEN (14) DAYS) of this Order. Signed by District Judge Raymond A. Jackson on 11/25/2015. (bgra)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

NOV 2 5 2015
CLERK, US DISTRICT COURT
NORFOLK, VA

VIRGINIA-PILOT MEDIA COMPANIES, LLC
and SCOTT DAUGHERTY,
Plaintiffs,

CIVIL ACTION NO. 2:14cv577

V.

DEPARTMENT OF .JUSTICE,
Defendant.

MEMORANDUM OPINION & ORDER

Before the Court are cross Motions for Summary Judgment and Plaintiffs" Motion to Lift

Stay on Discovery. ECF Nos. 28, 39, 44. On November 5. 201 5, the Court held a hearing on
these motions. The Department of Justice ("Defendant*') asserts that they are the prevailing

party because they have complied with the Freedom of Information Act ("FOIA") by releasing
all non-exempt material to Plantiffs. Virginia-Pilot Media Co., LLC and Scott Daughcrty.
reporter for The Virginia Pilot. ("Plaintiffs") contend that they arc the prevailing party because
Defendant only released documents in response to the filing of this lawsuit and because
Defendant is erroneously claiming certain material as exempt. Plaintiffs have also filed a Motion
to Lift Stay on Discovery in order to obtain more information to evaluate whether the

exemptions Defendant claims apply to the withheld material. ECF Nos. 44. 45. For the reasons
stated herein. Defendant's Motion for Summary Judgment is DENIED IN PAR'F finding that
Defendant violated FOIA and GRANTED IN PART upholding the exemptions claimed for the
withheld material. Plaintiffs' Motion for Summary Judgment is GRANTED IN PART finding

Plaintiffs are the prevailing party and DENIED IN PART finding Defendant properly withheld

exempt material and denying Plaintiffs' request for an in camera inspection. Plaintiffs Motion
to Lift Stay on Discovery is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY

On May 17, 2013, two Federal Bureau of Investigation ("FBI") special agents were killed

in Virginia Beach, Virginia during a training exercise involving a special technique called fast
roping. Compl. ^ 3, ECF No. 1. On May 30, 2013, Plaintiffs wrote a letter to the FBI requesting
any reports or memos regarding the accident pursuant to the Freedom of Information Act
("FOIA"). Ex. A, ECF No. 1. On July 2. 2013, David M. Hardy, Section Chief,
Record/Information Dissemination Section of the Records Management Division of the U.S.

Department of Justice, Federal Bureau of Investigation, wrote a letter to Plaintiffs indicating that
the May 30, 2013 FOIA request was received and review of the request was pending. Ex. B,

ECF No. 30. On July 10, 2014, Defendant issued a letter to Plaintiffs indicating that 29 pages of

material responsive to their FOIA request was recovered from a search of records but was being
withheld pursuant to FOIA exemptions 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(E).
Ex. B, ECF No. 1.

On July 30, 2014, Plaintiffs' counsel wrote a letter appealing Defendant's refusal to
release records in response to their FOIA request. Ex. C, ECF No. 1. On August 7, 2014,

Priscilla Jones, Supervisory Administrative Specialist for the U.S. Department of Justice, Office

of Information Policy, sent a letter to Plaintiffs acknowledging receipt of their appeal. Ex. D,
ECF No. 1. On October 23, 2014, by letter from Sean R. O'Neill, Chief, Administrative Appeals
Staff, Defendant affirmed the decision not to release any material in response to Plaintiffs" FOIA

request pursuant to exemptions 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). Ex. E,
ECF No. 1. On November 7, 2014, Plaintiffs filed this action challenging Defendant's

compliance with FOIA and its withholding of records pursuant to the exemptions claimed.
Compl., ECF No. 1. On December 31. 2014, Defendant filed its Answer reasserting application
of exemptions 5 U.S.C. §§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(E) to the withheld material.
ECF No. 10.

On April 1, 2015, "in an attempt to resolve this action without extensive litigation,"
Defendant conducted another search using a cut-off date of November 27,2014, the date this suit
was filed. Def.'s Mem. in Supp. of Mot. for Summ. J. 3, ECF No. 29. This search identified 889

pages of material responsive to Plaintiffs' FOIA request, of which Defendant released 65 partly

redacted pages and an additional 23 pages identifying other pages that were entirely withheld and
the exemptions claimed for the withheld material. Id. at 4; see also ECF No. 22. On April 4,
2015, Plaintiffs published a front page newspaper story about the FBI helicopter training
accident citing the materials Defendant released. Ex. 1, ECF No. 42.

On May 7,2015, Magistrate Judge Tommy Miller ordered Defendant to file its Motion
for Summary Judgment with a Vaughn index by June 5, 2015 and stayed discovery until further
order of the Court. On June 5, 2015, Defendant filed their Motion for Summary Judgment and

Memorandum in Support and released 28 additional pages to Plaintiffs, including a redacted
version of the 29 page report mentioned in Defendant's initial response to Plaintiffs' FOIA
request. ECF Nos. 28,29. This resulted in a total of 10 pages released in full, 83 pages released
in part, and 796 pages withheld in full of the 889 responsive pages. Def.'s Mem. in Supp. of
Mot. for Summ. J. 4.

On June 26, 2015, Plaintiffs filed a Motion for Summary Judgment. Opposition to

Defendant's Motion for Summary Judgment, and a Motion to Lift Stay on Discovery. ECF Nos.

39,41,44. On July 2, 2015, Defendant filed its Reply to Plaintiffs' Response to Defendant's

3

Motion for Summary Judgment. ECF No. 46. On July 10, 2015, Defendant filed an Opposition
to Plaintiffs' Motion to Lift Stay on Discovery. ECF No. 51. On July 17, 2015, Defendant filed
its Opposition to Plaintiffs' Motion for Summary Judgment. ECF No. 53. On July 27, 2015,
Plaintiffs filed their Reply in Support of Motion for Summary Judgment. ECF No. 56.
On October 29, 2015, the Court scheduled a hearing on the pending motions for
November 5, 2015. On November 5, 2015, a hearing was held on these matters, and the Court
took them under advisement.
II. LEGAL STANDARD

A. Summary'Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, "[t]he Court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also McKinney v.
Bd. ofTrs. ofMd. Only. Coll., 955 F.2d 924, 928 (4th Cir. 1992) ("[SJummary judgments should
be granted in those cases where it is perfectly clear that no issue of fact is involved and inquiry

into the fact is not necessary to clarify the application of the law.") (citations omitted). In

deciding a motion for summary judgment, the court must view the facts, and inferences to be
drawn from the facts, in the light most favorable to the nonmoving party. United Stales v.
Diebold, Inc., 369 U.S. 654, 655 (1962).

Once a motion for summary judgment is properly made and supported, the opposing

party "must come forward with specific facts showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal

quotation marks omitted). Summary judgment will be granted "against a party who fails to make

a showing sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, All U.S. 317,
322 (1986). Theevidence "must create fair doubt; wholly speculative assertions will not
suffice." Ross v. Commc ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogatedon

other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); see also Ash v. United
Parcel Serv.. Inc.. 800 F.2d 409,411-12 (4th Cir. 1986) (noting that the nonmoving party must

offer more than unsupported speculation to withstand a motion for summary judgment). The
Court must review cross-motions for summary judgment individually on their own merits to
determine whether either of the parties is entitled to judgment as a matter of law. Rossignol v.
Voorhaar. 316 F.3d 516, 523 (4th Cir. 2003).
B. Freedom of Information Act

A district court reviews a FOIA determination de novo. 5 U.S.C. § 552(a)(4)(B). The

court should construe FOIA exemptions narrowly in favor of disclosure. F.B.I, v. Abramson,
456 U.S. 615 (1982); Wickwire Gavin, P.C. v. US. Postal Serv., 356 F.3d 588, 591 (4th Cir.
2004). Further, FOIA determinations should generally be resolved on summary judgment.

Hanson v. U.S. Agencyfor Int'l Dew, 372 F.3d 286, 290 (4th Cir. 2004) (citing Miscavige v.
I.R.S.. 2 F.3d 366, 369 (11th Cir. 1993)).

The burden is on the agency to sustain its action in response to a FOIA request. 5 U.S.C.

§ 552(a)(4)(B); see also Willardv. I.R.S., 776 F.2d 100, 102 (4th Cir. 1985) ("The agency
refusing to release the information bears the burden of proving that its actions were correct.").

An agency is entitled to summary judgment in a FOIA action if, viewing the facts in the light
most favorable to the requestor, no material facts are in dispute with regard to the agency's
compliance. Rein v. US. Patent and Trademark Office, 553 F.3d 353, 358 (4th Cir. 2009);

Wicbvire, 356 F.3d at 590. To prevail on a motion for summary judgment the agency must

demonstrate that each responsive document has been produced or is exempt. Carter, Fullerton
& Hayes, LLC v. F.T.C, 601 F. Supp. 2d 728, 734 (E.D. Va. 2009).
In response to a FOIA request, an agency must conduct a search that is "reasonably
calculated to uncover all relevant documents." Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1246

(4th Cir. 1994); see also Rein, 553 F.3d at 362. An agency may prove the reasonableness of its
search through "relatively detailed, nonclusory" affidavits submitted in good faith. Carter,

Fullerton & Hayes, LLC, 601 F. Supp. 2d at 734 (citing McCoy v. United States, No. 1:04cvl01,
2006 WL 463106 at *5 (N.D.W. Va. Feb. 24, 2006)) (internal quotation marks omitted). An

agency may not rely on an affidavit that simply states that the search was conducted "consistent
with customary practice and established procedure." Ethyl, 25 F.3d at 1246 (citing Oglesby v.

U.S. Dep't ofArmy, 920 F.2d 57,68 (D.C. Cir. 1990)) (internal quotation marks omitted). The
affidavit must be "reasonably detailed, 'setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such records exist)
were searched'" to allow the requesting party to challenge the adequacy of the search. Id. at
1247.

A court shall accord substantial weight to an affidavit of an agency concerning their
determination as to technical feasibility and reproducibility. 5 U.S.C. § 552(a)(4)(B). With

respect to exemptions claimed, an affidavit must:"(1) describe the withheld documents and the
justifications for nondisclosure with reasonably specific detail; (2) demonstrate that the
information withheld falls logically within the claimed exemption; (3) remain uncontroverted by
either contrary factual evidence in the record or by evidence of agency bad faith." Pully v. I.R.S.,

939 F. Supp. 429, 433 (E.D. Va. 1996) (citing Young v. C.I.A., 972 F.2d 536, 538 (4th Cir.

1992)). The district court should uphold the Government's position "[i]f the Government fairly

describes the content of the material withheld and adequately states its grounds for

nondisclosure, and if those grounds are reasonable and consistent with the applicable law."

Spannaus v. D.O.J., 813 F.2d 1285, 1289 (4th Cir. 1987) (quoting Barney v. I.R.S., 618 F.2d
1268, 1272 (8th Cir. 1980)) (internal quotation marks omitted). The Fourth Circuit has further
held. "The court is entitled to accept the credibility of the affidavits, so long as it has no reason to
question the good faith of the agency.** Id.

A party must provide more than conclusory statements in opposing a motion for
summary judgment in a FOIA action. Carter, Fullerton & Hayes, LLC, 601 F. Supp. 2d at 734
(citing Carter, Fullerton & Hayes, LLC v. F.T.C, 520 F. Supp. 2d 139 (D.D.C. 2007)). A
plaintiffpursuing a FOIA action must establish that either: "(1) the Vaughn index does not
establish that the documents were properly withheld; (2) the agency has improperly claimed an

exemption as a matter of law; or (3) the agency has failed to segregate and disclose all nonexempt material in the requested documents." Id.
III. DISCUSSION

A. Defendant's Motion for Summary Judgment

Defendant has filed a Motion for Summary Judgment on the grounds of mootness. Def.'s

Mem. in Supp. of Mot. for Summ. J. 10, ECF No. 29. Defendant asserts that Plaintiffs' claim for
relief under FOIA is moot because Defendant has provided Plaintiffs with all non-exempt

responsive material to their FOIA request. Id. Defendant further asserts that it has complied
with FOIA by turning over all non-exempt responsive materials and that FOIA Exemptions 5 and
7 create a privilege for the material that has been withheld. Id. at 12-23; Def.'s Reply 3-16, ECF

No. 46. Therefore, Defendant argues that summary judgment should be granted in its favor

because there is no genuine material issue of fact regarding its compliance with FOIA.

i. Compliance with FOIA

On July 2, 2013, Defendant issued a letter acknowledging receipt of Plaintiffs' May 30,
2013 FOIA request. Ex. B, ECF No. 30. In response to Plaintiffs' FOIA request, the FBI
Records Division initially searched its Central Records System and asked the Norfolk Field

Office, the Inspection Division, and the Critical Incident Response Group for responsive records.
Hardy Decl. ffl| 14-15, ECF No. 30. On July 10, 2014, over a year after the request was made
and without any other communication regarding the status of the request, Defendant indicated

that a 29 page report from the Inspection Division was the only responsive material located and
was completely exempt from disclosure. Ex. B, ECF No. 1. Notably, Defendant admits that the
last page of this report contains a table of contents incorporating other responsive documents.
Def.'s Mem. in Supp. of Mot. for Summ. J. 5, ECF No. 29.
After this lawsuit was initiated, Defendant conducted another search on April 1, 2015

using the date that this suit was filed, November 7, 2014, as an extended cut-off date for the
search. Id. at 3. Defendant concluded that the attachments to the 29 page report originally

processed should be incorporated into the responsive documents. Hardy Decl. ^ 16. As a result
of this second search, the Critical Incident Response Group Surveillance and Aviation Section

turned over 11 additional responsive documents. Def.'s Mem. in Supp. of Mot. for Summ. J. 6.
Defendant indicated that this second search discovered a total of 889 pages of responsive

material, of which Defendant released 10 pages in full, 83 pages in part, and withheld 796 pages
entirely. Id. at 4.
Defendant describes its search process in response to FOIA requests as "first-in, first-out'

and a "by-size tracking approach." Def.'s Opp'n to PL's Mot. for Summ. J. 4, ECF No. 53;

Hardy Second Decl. U5, ECF No. 53-1. Defendant cites finite resources and 4,434 other

8

pending requests as contributing to the delay in their response. Def.'s Opp'n to PL's Mot. for
Summ. J. 4-5; Hardy Second Decl. fflj 4-5. Defendant also offers that the investigation was

ongoing, and therefore Defendant kept this request open until completion of the 29 page report to
respond to Plaintiffs' FOIA request. Hardy Second Decl. ffi| 7-12. Nevertheless, Defendant
admits that it was aware of other responsive documents at the time of its initial search although it
only disclosed the 29 page report in its initial response. Id. at ^ 12. In its Opposition, Defendant

argues that although it knew of additional responsive documents before Plaintiffs filed this
lawsuit, no bad faith is established. Def.'s Opp'n to PL's Mot. for Summ. J. 7.
Nevertheless, it is clear that Defendant failed to timely notify Plaintiffs of the status of

their FOIA request. FOIA requires an agency to respond within 20 days of a request under the
Act. 5 U.S.C. § 552(a)(6)(A)(i). This 20 day time period may only be extended to receive

additional information from the requesting party, to clarify issues regarding fee assessment, or
for unusual circumstances. 5 U.S.C. §§ 552(a)(6)(A)(ii)(I)-(II), (a)(6)(B)(i). The agency must

provide written notice to the requesting party if an extension beyond the 20 day time period is

required. 5 U.S.C. § 552(a)(6)(B)(i). Defendant failed to respond or provide written notice of an
extension within the 20 day period mandated by FOIA. Defendant did not respond to Plaintiffs'
FOIA request until over a year later and never communicated the need for additional information
or unusual circumstances involving the request. While Defendant claims that the high volume of

FOIA requests delayed their response, "a defendant's failure to produce documents due to
backlog or administrative issues does not constitute a 'reasonable basis in law."* Jarno v. Dep't
ofHomeland Sec, 365 F. Supp. 2d 733, 740 (E.D. Va. 2005) (citing Miller v. U.S. Dep't ofState,
779 F.2d 1378, 1390 (8th Cir. 1985)) (deciding the fourth factor in awarding attorney's fees in

favor of plaintiff when the agency failed to respond within the FOIA statutory time frame).

Further, Defendant did not initially conduct an adequate search in compliance with the

requirements of FOIA. The 29 page report originally disclosed as the only responsive material
clearly identified other documents that were in existence at the time of the initial search.
Defendant admits to knowledge of the existence of these documents and their failure to disclose
or review for disclosure these additional documents until after this lawsuit was initiated.

However, Defendant provides an inadequate explanation for the untimely disclosure of a
substantial amount of additional responsive documents six months after this suit commenced

despite being aware of their existence at the time of the initial search two years prior.
While FOIA does not require that "every single potentially responsive document has been
unearthed," the agency must demonstrate that its search was "reasonably calculated to uncover
all relevant documents." Ethyl, 25 F.3d at 1246 (internal quotation marks omitted). In Ethyl, the
Fourth Circuit found that the EPA failed to meet its burden of showing that an adequate search
was conducted because the release of 17 additional documents after a second FOIA request that

were also responsive to the first FOIA request raised doubts about the adequacy of the initial
search. Id. at 1248. Similarly, here Defendant failed to timely review documents in response to

Plaintiffs' initial FOIA request, and despite admittedly being aware of their existence, Defendant
did not disclose these documents until after this law suit was commenced. Therefore, Defendant

failed to comply with FOIA's statutory response time and to initially conduct a reasonable
search.

ii. Exemptions
Defendant conducted a more thorough search after commencement of this lawsuit that

identified 889 pages of material responsive to Plaintiffs' FOIA request, of which Defendant

released 10 pages in full. 83 pages in part, and withheld 796 pages entirely. Def.'s Mem. in

10

Supp. of Mot. for Summ. J. 4, ECF No. 29; see also ECF No. 22. Plaintiffs have narrowed their
FOIA request to the conclusions regarding the cause of the accident and the content of certain
corrective actions the FBI implemented following the investigation, which Defendants claim as

exempt categories of information. Opp'n to Def.'s Mot. for Summ. J. and in Supp. of Pis.' Mot.
for Summ. J. 9, ECF No. 40. Defendant asserts that the deliberative process privilege

("Exemption 5") and the techniques and procedures for law enforcement investigations or

prosecutions exemption ("Exemption 7") apply to these two categories of information Plaintiffs
seek. Def.'s Reply 1, ECF No. 46.

Plaintiffs argue that the material concerning these two issues are not exempt because the

FBI has published images and information on the Internet and in other mediums (books written

by former agents and insider news reports) regarding fast roping, the training ground, and
equipment agents use. Id. at 27-28. Plaintiffs make an "educated guess" about what the redacted
material says regarding the cause of the accident, and although they concede that portions of the
conclusion and corrective actions may be exempt. Plaintiffs "adamantly disagree, however, that

every substantive portion falls within the scope of the claimed exemptions." Id. at 28-29.
Plaintiffs assert that Defendant makes "conclusory statements and broad assertions" regarding
applicability of the exemptions. Id. at 27.

The deliberative process privilege ("Exemption 5") exempts inter-agency or intra-agency
memoranda or letters which would not be available by law to a party other than an agency in

litigation with the agency. 5 U.S.C. § 552(b)(5). The Fourth Circuit has explained that the
deliberative process privilege "encourages free-ranging discussion of alternatives; prevents

public confusion that might result from the premature release of such nonbinding deliberations;

and insulates against the chilling effect likely were officials to be judged not on the basis of their

final decisions, but for matters they considered before making up their minds." City ofVa.

Beach v. U.S. Dep 7 ofCommerce, 995 F.2d 1247. 1252 (4th Cir. 1993); see also Dep t of
Interior v. Klamath Water Uses Protective Ass 'n. 532 U.S. 1, 8-9 (2001) ("The deliberative

process privilege rests on the obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news ..."). In
order for the deliberative process privilege to apply, the Government must show that the material

is both "predecisonal and deliberative." CityofVa. Beach, 995 F.2d at 1253.
Exemption 7 exempts from disclosure under FOIA material that: "(E) would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would disclose

guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law. or (F) could reasonably be expected to endanger
the life or physical safety of any individual."" 5 U.S.C. § 552(b)(7)(E)-(F). The Supreme Court

has stated. "In most cases involving security information, it is not difficult to show that

disclosure may 'endanger the life or physical safety of any individual.'" Milner v. Dep't ofNavy,
562 U.S. 562, 582 (2011) (quoting 5 U.S.C. § 552(b)(7)(F)). However, the Government bears
the burden of" proving that disclosure of investigative procedures "would give rise to substantial
likelihood that violators could evade detection by deliberately tailoring their conduct in
anticipation of avenues of inquiry to be pursued by agency personnel." Pully v. I.R.S.. 939 F.

Supp. 429, 438 (E.D. Va. 1996). In order to meet its burden, the Government must show that the
technique that would be disclosed is not known to the general public. Id.
Defendant has met its burden of proving that the withheld material is privileged by the

exemptions by providing sworn declarations from David M. Hardy, Section Chief,
Record/Information Dissemination Section of the Records Management Division of the U.S.

12

Department of Justice, Federal Bureau of Investigation, describing the withheld material and
explaining the basis for the claimed exemptions. Mr. Hardy explains that the deliberative

process privilege applies to statements, recommendations, and considerations presented in the
responsive documents, including factual information intertwined with analysis and opinion,
because they reflect "the FBI's deliberation to determine what occurred and what corrective

measures are necessary." Flardy Decl. ^ 30, ECF No. 30. Mr. Hardy also explains that

Exemptions 7 (E) and (F) apply because the records were compiled "in furtherance of the FBI's
law enforcement, national security, and intelligence missions." Id. at ^ 42. Defendant invokes
Exemption 7(E) with respect to sensitive information regarding equipment used, details of

training, internal identifying and contact information, a relationship with a non-FBI entity, and
codes used in operations and training. Id. at ffij 52, 55, 58, 59, 61,62. Mr. Hardy asserts that
disclosure of this information would risk circumvention of the law by terrorists and other
criminals endangering the lives of agents, hostages, and others. Id. at ^ 51.

Further, Defendant argues that Exemption 7(F) shields specific law enforcement
techniques not known to the public. Defendant does not deny that there is information available
to the public regarding the Hostage Rescue Team and Tactical Flelicopter Unit on the Internet
and in various other mediums. However, Defendant contends that how the FBI specifically
trains for, evaluates, and executes its missions is not disclosed to the public. Def.'s Reply 9,

ECF No. 46. Defendant asserts that contrary to commonly known procedures such as ballistics
tests, fingerprinting, and well-known scientific tests, specific details about fast roping are not
publicly available and are exempt from disclosure to protect the interests of the United States.
Id. at 10.

13

Plaintiffs acknowledge that Defendant has released a majority of the information sought,

which was sufficient for Plaintiffs to publish a front page news article on the matter. Plaintiffs
still seek information about the conclusions regarding the cause of the accident and the content
of certain corrective actions. However, Defendant has provided sufficiently detailed, rational,

and nonconclusory explanations in its pleadings and declarations regarding why the withheld

material is exempt. While Plaintiffs allege that Defendant makes conclusory assertions.
Plaintiffs' challenges to the exemptions are in fact conclusory. Plaintiffs do not provide any
evidence of bad faith in Defendant's withholding of material as exempt, and requiring Defendant
to disclose further details would reveal the very information that is protected by the FOIA

exemptions. The Court finds that Defendant has met its burden of showing that the withheld
material is exempt through sufficiently detailed declarations, and there is no evidence that the
material is being withheld in bad faith.
It. Plantiffs' Motion for Summary Judgment

Plaintiffs have filed a Motion for Summary Judgment asserting that they are the

prevailing parties in this suit because Defendant has violated FOIA. Opp'n to Def.'s Mot. for
Summ. J. and in Supp. of Pis.* Mot. for Summ. J. 1, ECF No. 40. Plaintiffs assert that Defendant
failed to timely respond to their FOIA request and did not conduct a proper search until after

litigation commenced. Id. at 11-16. Plaintiffs argue that they arc entitled to summary judgment
as the prevailing party because their filing of this lawsuit was the "catalyst" for production of
responsive documents and Defendant otherwise did not comply with the requirements of FOIA.
Id. at 17-20. Plaintiffs also challenge the exemptions Defendant claims for material withheld

from the responsive documents, specifically the conclusions regarding the cause of*the accident
and the content of certain corrective actions. Id. at 23-29.

14

Based on these assertions, Plaintiffs request an in camera review of the responsive

material and request that the stay on discovery be lifted in order to determine whether the

exemptions Defendant claims correctly apply to the withheld material. Opp'n to Def.'s Mot. for
Summ. J. and in Supp. of Pis.' Mot. for Summ. J. 29; see also Mot. to Lift Stay on Disc, ECF
No. 44. Plaintiffs also argue that they are entitled to attorney's fees because Defendant was
"recalcitrant and obdurate" in failing to conduct an adequate search in response to their initial

FOIA request. Id. at 20-23. Defendant argues that an in camera inspection is premature and that
the Court should first consider the merits of their Motion for Summary Judgment. Def.'s Reply
18-20. ECF No. 46. Defendant asserts that if the Court finds that Defendant does not meet their

burden of proving that the withheld material is exempt, then the Court should order an in camera
inspection. Id.
i. Prevailing Party

The Supreme Court has found a prevailing part)' to be one whose lawsuit resulted in the
"material alteration of the legal relationship of the parties." Buckhannon Bd. and Care Home,

Inc. v. W. Va. Dep't ofHealth and Human Res., 532 U.S. 598, 604 (2001) (quoting Tex. State
Teachers Ass'n v. Garland Indep. School Disl., 489 U.S. 782, 792-93 (1989)). According to
FOIA, "a complainant has substantially prevailed if the complainant has obtained relief through
either—(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a

voluntary or unilateral change in position by the agency, if the complainant's claim is not
insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). In the absence of a final judgment in a FOIA matter,

in order for the requestor to be the prevailing party "the lawsuit must have resulted in the release
of records that would not otherwise have been released." Reinbold v. Evers, 187 F.3d 348, 363

(4th Cir. 1999) (citing Weisberg v. D.O.J., 745 F.2d 1476, 1496 (D.C. Cir. 1984)). However,

15

subsequent release of documents after the filing of a complaint is insufficient alone to establish
causation and courts must consider whether the agency made a "good faith effort to search out

material" upon notice of the request. Weisberg, 745 F.2d at 1496. Plaintiff bears the burden of
showing that "the lawsuit was reasonably necessary and the litigation substantially caused the
requested records to be released." Am. BirdConservancy v. U.S. Fish & Wildlife Serv., No.
1:13-CV-723, 2015 WL 3622459, at *4 (E.D. Va. June 9,2015) (citing Burka v. U.S. Dep't of

Health and Human Servs.. 142 F.3d 1286, 1288 (D.C. Cir. 1998) (internal quotation marks
omitted); see also 5 U.S.C. § 552(a)(4)(E)(i).

The Court has found that Defendant failed to comply with the statutory response time and

reasonable search requirements of FOIA. Defendant did not properly respond until after this suit
was commenced - nearly two years after Plaintiffs' initial FOIA request. This suit caused
Defendant to conduct an adequate search and disclose all responsive documents, which
Defendant failed to do in response to Plaintiffs' initial FOIA request. Therefore, the Court finds
that Plaintiffs are the prevailing party as a matter of law.
ii. In Camera Review

Upon a complaint, a district court may enjoin an agency from withholding records and
order the production of improperly withheld records. 5 U.S.C. § 552(a)(4)(B). The court may
examine the records at issue in camera to determine whether they should be withheld pursuant to

FOIA exemptions. Id. The Fourth Circuit has stated that the legislative history of § 552(a)(4)(B)
"discloses a congressional intention that the judge need not inspect the document in camera or
require its production. He may act on the basis of testimony or affidavits...." Young v. C.I. A.,
972 F.2d 536, 538 (4th Cir. 1992) (quoting Alfred A. Knopf Inc. v. Colby. 509 F.2d 1362, 1367

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(4th Cir. 1975)) (internal quotation marks omitted). Therefore, an abuse of discretion standard

applies when reviewing a district court's decision not to conduct an in camera inspection. Id.
The Supreme Court has also made it clear that an in camera inspection is not always
necessary. E.P.A. v. Mink. 410 U.S. 73, 93 (1973) ("Plainly, in some situations, in camera

inspection will be necessary and appropriate. But it need not be automatic."). The Court held
that an agency should be provided the opportunity to meet their burden through detailed
affidavits or oral testimony establishing that the withheld material is exempt, and if an agency
fails to meet its burden, the district court may order an in camera inspection. Id. The Court

summarized, "In short, in camera inspection of all documents is not a necessary or inevitable
tool in every case. Others are available." Id. at 93.

A court may order an agency to compile a Vaughn index to "assurfe] that allegations of"
exempt status arc adequatelyjustified." Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).
An //; camera review may be warranted if a Vaughn index is "facially inadequate" to serve as a
substitute. Rein v. U.S. Patent & Trademark Office. 553 F.3d 353. 366 (4th Cir. 2009). In

Vaughn, the court instructed that in creating an index an agency must "specify in detail which
portions of the document are disclosable and which are allegedly exempt" through a system of
itemizingand indexing that correlates statements explaining an exemption justification with the
relevant portions of the document. Vaughn, 484 F.2d at 827. A Vaughn index must describe the
withheld material with "reasonable specificity" for the district court to determine whether the
material is exempt from disclosure. Rein. 553 F.3d at 368 (citing Ethyl Corp. v. U.S. E.P.A., 25
F.3d 1241, 1250 (4th Cir. 1994)). If the index is too vague, the court must use other means to
make the determination, such as an in camera review. Id.

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As discussed above, the Court finds that Defendant has met its burden of showing that the

exemptions claimed apply to the withheld material. The Court credits the declarations Mr.

Hardy submitted on behalf of Defendant. The Court also finds the Vaughn index to contain
adequate information to inform the Court's decision. There is no evidence that Defendant has
withheld the material in bad faith. Finding the declarations and Vaughn index Defendant

submitted to contain sufficient information to support their withholding of exempt material, the
Court declines to conduct an in camera inspection.
iii. Attorney's Fees

Plaintiff's assert that they arc entitled to attorney's fees because of Defendant's failure to

comply with FOIA, which in effect forced the filing of this lawsuit to compel the production of
documents Plaintiffs sought in their FOIA request. Reply in Supp. of Pis.' Mot. for Summ. J. 710, ECF No. 56. Defendant argues that a fee award is premature and that the Court should

decide the merits of the case first. Def.'s Opp'n to PL's Mot. for Summ. J. 2. As
aforementioned, the Court has now decided the merits of this case. Despite the procedural

irregularity in requesting attorney's fees, the Court finds that Plaintiffs are entitled to attorney's
fees.

FOIA provides that "courts may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). Attorney's fees are not
automatically awarded but should be granted "where doing so will encourage fulfillment of the

purposes of FOIA." Nix v. United Slates, 572 F.2d 998. 1007 (4th Cir. 1978). In evaluating

whether attorney's fees are warranted in a FOIA dispute, courts often apply a two-step analysis.
First, the court must determine whether the plaintiff substantially prevailed within the meaning

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of the statute and is therefore eligible for attorney's fees. Jarno v. Dep't ofHomelandSec, 365

F. Supp. 2d 733, 737 (E.D. Va. 2005) (citing Tax Analysts v. D.O.J., 965 F.2d 1092, 1093 (D.C.
Cir. 1992)). Next, the plaintiff must demonstrate that it is entitled to attorney's fees. Id. The
court must evaluate four factors to decide whether plaintiff is entitled to an award of attorneys'
fees, including: "(1) the public benefit derived from the case: (2) the commercial benefit to the

complainant: (3) the nature of the complainant's interest in the records sought; and (4) whether
the government's withholding had a reasonable basis in law." Id. at 738; see also Reinboldv.
Evers, 187 F.3d 348, 362 n.16 (4th Cir. 1999).

As discussed above, Plaintiffs are the prevailing party in this action because their filing of
this suit caused Defendant to conduct a proper search and release all non-exempt responsive

material. Plaintiffs argue that each of the four factors considered in awarding attorney's fees
weigh in their favor. Plaintiffs allege that they are members of the media seeking information
for the public's benefit and they had no commercial interest in obtaining the information

requested. Plaintiff's further allege that the sole motivating factor for their FOIA request was to
advise the public of* the agency's activities in dealing with the tragic accident. Lastly, Plaintiffs
contend that Defendant has no reasonable basis for withholding certain material because the

exemptions claimed do not apply to the information requested.
The Court finds that the four factors considered in awarding attorney's fees weigh in
Plaintiffs' favor. However, the fourth factor, whether the government's withholding had a
reasonable basis in law, weighs in Plaintiffs' favor because Defendant improperly withheld
material until after commencement of this lawsuit, not because the exemptions do not apply to

the withheld material as noted above. Therefore, Plaintiffs are entitled to an award of attorney's

fees, the amount to be determined upon further filings regarding this issue.

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C. Plaintiffs' Motion for Lift on Stay of Discovery

The Court has found that the withheld material is exempt from disclosure pursuant to

FOIA exemptions. There are no further issues of fact to be resolved. It is clear that Plaintiffs are

the prevailing party because of Defendant's failure to comply with FOIA. There is no need to
litigate whether the exemptions apply. FOIA eases rarely require a trial, and FOIA
determinations should generally be resolved on summary judgment. Hanson v. U.S. Agencyfor

Ini'l Dev.. 372 F.3d 286. 290 (4th Cir. 2004) (citing Miscavige v. I.R.S.. 2 F.3d 366. 369 (11th
Cir. 1993)). The remaining issue of attorney's lees can be determined upon additional filings.
Therefore, further discovery is not necessary in this matter.
IV. CONCLUSION

For the reasons slated herein. Defendant's Motion for Summary Judgment is DENIED

I.N PART and GRANTED IN PART. The Court finds Defendant violated FOlA's statutory

time to respond and failed to initially conduct a reasonable search in response to Plaintiffs' FOIA
request. Plaintiffs' Motion for Summary Judgment is GRANTED IN PART and DENTED IN
PART. The Court finds that Plaintiffs are the prevailing party, but Defendant properly withheld
exempt material and an in camera inspection is declined. Plaintiffs' Motion to Lift Stay on
Discovery is DENIED. Plaintiffs shall file documentation to support their request for attorney's
fees within FOURTEEN (14) DAYS) of this Order.

The Clerk is DIRECTED to send a copy of this Order to counsel of record.
IT IS SO ORDERED.

Norfolk, Virginia

November 75C 2015
^

Raymond A.lackson
United Mates District Judge

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