Case 2:12-cv-01605-DLR-BSB Document 127 Filed 01/12/15 Page 1 of 6 1 KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel David Rigmaiden, 10 11 12 No. CV 12-1605-PHX-DLR (BSB) Plaintiff, vs. ORDER Federal Bureau of Investigation, et al., 13 Defendants. 14 15 Plaintiff Daniel David Rigmaiden, who was a federal prisoner at the time of filing 16 his Complaint, brought this civil rights action pursuant to the Freedom of Information Act 17 (“FOIA”) against the Federal Bureau of Investigation (“FBI”), the Executive Office for 18 United States Attorneys (“EOUSA”), the Office of Information Policy, and the United 19 States Department of Justice (“DOJ”). (Doc. 1). In a November 14, 2014 Order, the 20 Court granted Plaintiff’s Motion for Summary Judgment in part and denied it in part and 21 granted Defendants’ Motion for Summary Judgment in part and denied in part. Because 22 there remain outstanding issues, the Court directed the Parties to file a Joint Status Report 23 advising the Court how they propose to proceed to the resolution of this case. On 24 December 22, 2014, the Parties complied with the Court’s Order and filed the Joint Status 25 Report. (Doc. 126). 26 Pursuant to the Court’s November 14, 2014 Order, the remaining issues in this 27 case are: (1) aspects of the adequacy of the search responsive to Plaintiff’s November 10, 28 2011 Request to the FBI (the “WSJ Search”); (2) aspects of the adequacy of the search Case 2:12-cv-01605-DLR-BSB Document 127 Filed 01/12/15 Page 2 of 6 1 responsive to Plaintiff’s October 10, 2011 Request to the Executive Office for United 2 States Attorneys (the “EOUSA Search); (3) Exemption 7(E) on the EOUSA Request; (4) 3 aspects of the adequacy of the search responsive to Plaintiff’s October 10, 2011 Request 4 to the FBI (the “Harris Search”); and (5) aspects of the claimed Exemption 7(E) on the 5 Harris Request. 6 I. 7 In its November 14, 2014 Order, the Court found that EOUSA did not adequately 8 explain why it did not search all United States Attorneys’ Offices within California, 9 Arizona, and New York in response to Plaintiff’s WSJ Request. (Doc. 122 at 38-41). Remaining Issues as to the Adequacy of the EOUSA Search 10 In the Joint Status Report, EOUSA states that it will conduct searches in the 11 United States Attorneys’ Offices located in California, Arizona, and New York by 12 following the same type of procedure that it followed with the offices from which it did 13 seek responsive records (Doc. 126 at 1). Plaintiff agrees that those offices should be 14 searched, but requests that all searches and responsive records be given to him within 60 15 days. (Id. at 2). Plaintiff also requests that the Court order Defendant EOUSA to provide 16 the records on CD or DVD “at the going market price” or email the records to Plaintiff at 17 no cost or upload the records to the internet where Plaintiff can download them at no 18 cost. 19 Defendants argue that Plaintiff cannot challenge the duplication fees, as those fees 20 are set pursuant to Department of Justice regulations, which are not being challenged in 21 this lawsuit, and the issue of proper duplication fees is an issue being raised for the first 22 time in this status report. 23 regulatory scheme in place, which guides the agency in determining the fees it charges 24 and there has been no challenge to that scheme in this lawsuit. See generally 28 C.F.R. 25 §16.11. Plaintiff has made no showing that Defendants are not complying with the 26 regulations instructing what fees may be charged and his requests for the Court to deviate 27 from the regulatory scheme are inappropriate. Accordingly, Plaintiff’s request for the 28 Court to set different duplication fees and deviate from the regulatory scheme in place for The Court agrees with Defendants. -2- There is a specific Case 2:12-cv-01605-DLR-BSB Document 127 Filed 01/12/15 Page 3 of 6 1 charging such fees is denied. The Court will discuss the scheduling issues raised with 2 regard to the additional searching below. 3 II. 4 In its November 14, 2014 Order, the Court denied Defendants’ Motion for 5 Summary Judgment as to Exemption 7(E) of the EOUSA Request because the Court 6 found that “EOUSA has not given the Court or Plaintiff enough information to determine 7 whether it properly withheld information pursuant to Exemption 7(E).” (Doc. 122 at 42). 8 In the Joint Status Report, EOUSA proposes to file a supplemental declaration to 9 address the deficiency that the Court identified along with another motion for summary 10 judgment. In Response, Plaintiff states that “this issue is no longer outstanding” and 11 argues that EOUSA must provide Plaintiff with the records that were withheld. Plaintiff 12 is misreading the Court’s November 14, 2014 Order. Plaintiff appears to believe that 13 because the Court denied summary judgment to Defendants on this issue, Plaintiff was 14 implicitly granted summary judgment on this issue. That belief is incorrect. The Court 15 denied Defendants’ Motion for Summary Judgment on this issue and did not grant 16 summary judgment to Plaintiff on this issue. As a result, this issue remains outstanding. Remaining Issues as to Exemption 7(E) on the EOUSA Request 17 Plaintiff also objects to the Court entertaining a second round of motions for 18 summary judgment. However, the Court has discretion in allowing successive motions 19 for summary judgment, Hoffman v. Tonnemacher, 593 F.3d 908, 909 (9th Cir. 2010), and 20 has determined that such a procedure is appropriate in this case. Accordingly, the Court 21 will allow a second motion for summary judgment on this issue and will discuss the 22 timeline for such a motion below. 23 III. 24 In its November 14 2014 Order, the Court denied Defendants’ Motion for 25 Summary Judgment as to the adequacy of the WSJ search because the Court found that 26 the FBI did not meet its burden in showing that the search was reasonably calculated to 27 uncover all relevant documents. Remaining Issues as to the Adequacy of the WSJ Search 28 -3- Case 2:12-cv-01605-DLR-BSB Document 127 Filed 01/12/15 Page 4 of 6 1 In the Joint Status report, the FBI proposes to file a supplemental declaration to 2 address the deficiency that the Court identified along with another motion for summary 3 judgment. (Doc. 126 at 4). The FBI also notes that it will conduct a search of the CRS 4 and process any responsive documents to such a search. In Response, Plaintiff agrees 5 that the FBI should search the CRS and requests that any responsive records be provided 6 within 60 days. With regard to the remainder of the search, Plaintiff again argues that 7 this issue is no longer outstanding and Defendants must provide Plaintiff with the 8 Records. For the same reasons discussed with regard to Exemption 7(E) of the EOUSA 9 Request, this issue remains outstanding and the Court will allow a second motion for 10 summary judgment on this issue. The timeline for such a motion and the CRS search will 11 be discussed below. 12 IV. 13 In its November 14 2014 Order, the Court denied Defendants’ Motion for 14 Summary Judgment as to the Adequacy of the Harris search because the Court found that 15 the FBI did not provide enough information that would allow the Court to conclude that 16 the FBI’s search was reasonably calculated to uncover all relevant documents. (Doc. 122 17 at 46). Remaining Issues as to the Adequacy of the Harris Search 18 In the Joint Status report, the FBI proposes to file a supplemental declaration to 19 address the deficiency that the Court identified along with another motion for summary 20 judgment. In Response, Plaintiff again argues that this issue is no longer outstanding 21 because the Court denied summary judgment to Defendants. For the same reasons 22 discussed with regard to Exemption 7(E) of the EOUSA Request, this issue remains 23 outstanding and the Court will allow a second motion for summary judgment on this 24 issue. The timeline for such a motion will be discussed below. 25 V. 26 In its November 14, 2014 Order, the Court denied Defendants’ Motion for 27 Summary Judgment as to Exemption 7(E) of the Harris Request because the Court found Remaining Issues as to Exemption 7(E) on the Harris Request 28 -4- Case 2:12-cv-01605-DLR-BSB Document 127 Filed 01/12/15 Page 5 of 6 1 that the FBI did not provide enough information about the documents withheld and the 2 information withheld in particular documents. (Doc. 122 at 52). 3 In the Joint Status report, the FBI proposes to file a supplemental declaration to 4 address the deficiency that the Court identified along with another motion for summary 5 judgment. In Response, Plaintiff again argues that this issue is no longer outstanding 6 because the Court denied summary judgment to Defendants. For the same reasons 7 discussed with regard to Exemption 7(E) of the EOUSA Request, this issue remains 8 outstanding and the Court will allow a second motion for summary judgment on this 9 issue. The timeline for such a motion will be discussed below. 10 VI. 11 Defendants propose to reprocess records responsive to the Harris request to 12 remove redactions for certain “dirty words” that prompted the Government’s Glomar 13 response if Plaintiff agrees to pay the FBI’s standard duplication fees. Defendants assert 14 that they need 22 months for such reprocessing. In Response, Plaintiff agrees that the 15 11,000 pages should be reprocessed, but argues that the FBI should produce 1,000 pages 16 per month and that the responsive records should be provided on CD or DVD at the going 17 market price. For the same reasons discussed with regard to the adequacy of the EOUSA 18 Search, Plaintiff’s request for the Court to set different duplication fees and deviate from 19 the regulatory scheme in place for charging such fees is denied. The Court will discuss 20 the scheduling issues raised with regard to the production of the 11,000 pages below. 21 IT IS ORDERED: 22 23 24 (1) Other Outstanding Issues Plaintiff’s request for the Court to set different duplication fees and deviate from the regulatory scheme in place for charging such fees is denied. (2) Within 5 days of the date of this Order, Plaintiff shall file a Notice 25 indicating whether he intends to pay the standard duplication fees as to the remaining 26 searches proposed by Defendants. 27 28 (3) If Plaintiff agrees to pay the standard duplication fees, within 90 days of Plaintiff’s Notice, Defendants shall provide Plaintiff with all documents responsive to -5- Case 2:12-cv-01605-DLR-BSB Document 127 Filed 01/12/15 Page 6 of 6 1 the searches, including any documents that were previously withheld due to the Glomar 2 Response on the Harris Request.1 3 (4) If either party seeks to file a second Motion for Summary Judgment on the 4 outstanding issues in this case, such Motion for Summary Judgment shall be filed on or 5 before Wednesday, May 20, 2015. 6 Dated this 12th day of January, 2015. 7 8 9 10 Douglas L. Rayes United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court recognizes that it has set significantly shorter deadlines than those requested by Defendants. However, this case is nearly three years old and has extended well beyond the 18-month trial guideline recommended by Congress in the Civil Justice Reform Act of 1990. See 28 U.S.C. § 473(a)(2)(B). Defendants have had considerable time to adequately respond to Plaintiff’s FOIA requests and the Court will not allow this case to continue indefinitely. -6-