By Christopher Zoukis
A judge in the United States District Court for the District of Columbia has ordered the FBI to greatly increase the speed at which it is producing documents responsive to a professor’s Freedom of Information Act (FOIA) request.
The request was made by Professor Nina Gilden Seavey, a documentary filmmaker and professor in the Department of History and the School of Media and Public Affairs at George Washington University. Professor Seavey was working on a feature length documentary detailing the role played by U.S. intelligence and law enforcement agencies in the movement against U.S. participation in the Vietnam War.
In the course of research for the film, Professor Seavey submitted a large number of FOIA requests to the FBI, mostly concerning the FBI’s infiltration of the anti-war movement in St. Louis in the 1960s and 1970s. One specific request, dated March 3, 2015, sought a “particularly large” amount of records.
The FBI determined that unusual circumstances applied to the March 3, 2015 request. Pursuant to statute, this provided the agency 30 days to make a “determination” on the request. Such a determination required the FBI to gather and review the documents, determine and communicate the scope of the documents it intended to produce, and notify the requester of their right to appeal the withholding of any document.
The FBI failed to make a timely determination, and Professor Seavey filed suit on August 12, 2015. Two years of litigation ensued, with the FBI producing some of the records. Ultimately, Professor Seavey filed a Motion for Summary Judgment, arguing that the FBI had violated FOIA by failing to make the statutorily required determination on the request. In the motion, Professor Seavey sought an order that the FBI produce 5,000 records per month until the 151,500 responsive documents were processed. The FBI filed a reply in which it argued that it should process the documents at a rate of 500 per month, pursuant to an internal policy relating to large FOIA document requests.
District Court Judge Gladys Kessler did the math and saw an immediate problem with the FBI’s position: it would result in a decades long wait for the records. The law states that “unreasonable delays in disclosing non-exempt documents violate the intent and purposes of the FOIA.” The court further found that it has “a duty to prevent [such] abuses.”
“If the FBI’s request is granted, it will take just shy of 17 years to complete the processing of Professor Seavey’s request,” wrote the court. “In contrast, Professor Seavey asks that the court order the FBI to process 5,000 pages per month, which will result in completion of processing in less than 2 years.”
The FBI argued that it developed the 500-page policy to ensure internal efficiency and fairness to all FOIA requestors. Essentially, the agency argued that anything more would result in large document requests such as Professor Seavey’s monopolizing its resources. Judge Kessler found this argument unpersuasive.
“In the name of reducing its own administrative headaches, the FBI’s 500-page policy ensures that larger requests are subject to an interminable delay in being completed,” wrote the court. “Under the 500-page policy, requestors must wait 1 year for every 6,000 potentially responsive documents, and those who request tens of thousands of documents must wait decades . . . The agency’s desire for administrative convenience is simply not a valid justification for telling Professor Seavey that she must wait decades for the documents she needs to complete her work.”
The court highlighted an additional nonsensical aspect of the FBI’s 500-page policy. Professor Seavey sought information pertaining to 372 “district subjects” in the March 3, 2015 request. The FBI chose to treat these distinct requests as one large request. Treating the 372 subjects as individual requests would have avoided the invocation of the 500-page policy, and would have radically changed the FBI’s response.
“[H]ad Professor Seavey simply broken her initial request into 372 different letters, one for each subject, and mailed them all to the FBI on the same day, it is exceedingly likely that she would have most, if not all, of the documents she seeks,” wrote Judge Kessler. “Yet, because she chose to include all of the subjects in a single request letter, the FBI proposes that she wait 17 years. The court does not believe that this kind of disparate treatment can be rationally justified.”
The court ultimately granted Professor Seavey’s motion, but gave the FBI three years from the date of the decision to complete processing the March 3, 2015 request. Estimating that 102,000 pages still awaited processing, the court determined that the FBI could meet the deadline by processing 2,850 pages per month.
Assuming no further delays at the FBI, Professor Seavey should have the responsive documents about five years after she submitted her FOIA request.
Case: Seavey v. Department of Justice, et al., United States District Court for the District of Columbia, Case No. 15-1303 (July 20, 2017).