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2008 hillaryhealthcare

2008 hillaryhealthcare

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 
JUDICIAL WATCH, Inc.,  
Plaintiff,  Civil Action No. 07-1987 (PLF)  

U.S. NATIONAL ARCHIVES AND 
RECORDS ADMINISTRATION, 

Defendant. __________________________________________) 
OPINION AND ORDER this action brought under the Freedom Information Act (FOIA), U.S.C.  552, plaintiff challenges defendants failure, date, produce responsive records. 
Before the Court defendants motion dismiss or, the alternative, for stay the 
proceedings.  Upon consideration the parties submissions and the entire record this case, 
the Court denies defendants motion dismiss and grants defendants motion for stay part 
and denies part.1 FACTUAL BACKGROUND April 2006, plaintiff submitted FOIA request the Clinton Presidential 
Library, component defendant National Archives.  Plaintiff requested [a]ny and all records 
The papers submitted connection with this matter include: Defendants Motion Dismiss or, the Alternative, for Stay the Proceedings (Mot.); Plaintiffs Opposition Defendants Motion Dismiss or, the Alternative, for Stay the Proceedings and Support Plaintiffs Motion for Limited Discovery (Opp.); Defendants Reply Plaintiffs Opposition Defendants Motion Dismiss or, the Alternative, for Stay the Proceedings (Rep.); and the Second Supplemental Declaration Emily Robison, Deputy Director the Clinton Presidential Library (2nd Robison Decl.). the Task Force National Health Care Reform, chaired First Lady Hillary Rodham Clinton, include but not limited any and all sub-elements the Task Force.  Mot., Exhibit Robison Decl.   Defendants preliminary search for records responsive the request revealed over three million potential records.  Id.  13. 
From correspondence with the defendant, plaintiff learned that the Task Force records are organized into six broad categories.  See Opp. Opp., Exhibit  Plaintiff then agreed limit its request one the categories: Working Files; Staff Office Files and Memoranda.  See Opp. Opp., Exhibit  This category still large, including approximately one million records.  See Mot. Opp., Exhibit 
Two earlier pending FOIA requests made third parties the defendant encompass part plaintiffs request.  Upon completing processing those requests, defendant indicates that will notify both the requester and plaintiff that the records are available.  See Robison Decl.  38. 
Defendants supplemental declaration regarding the status the requests indicates that defendant completed processing the first these third-party requests (approximately 50,000 pages) September 2008.  See 2nd Robison Decl.   Defendant then notified representatives the former President that the records were eligible for disclosure. See id.  7.2   Upon completion the review process former President Clinton, defendant will 
Before any Presidential Records may released, both the former and incumbent presidents must notified the records disclosed and afforded right review the records for the opportunity assert constitutionally-based privileges.  See U.S.C.  2206; C.F.R.  1270.46. 
notify the incumbent President.  See id.3    Defendant estimates that the presidential review process may take approximately three months, upon completion which the records will available plaintiff.  See id. the time defendants supplemental declaration, the second third-party request was thirtieth line the defendants complex queue system.  See 2nd Robison Decl.  Sixty-six requests are line before defendant begins processing the remainder plaintiffs request.  See id. These requests will, course, also reviewed former and incumbent Presidents before release plaintiff.   
II. DISCUSSION  Motion Dismiss 
Defendant moves dismiss pursuant Rule 12(b)(1) and 12(b)(6) the Federal Rules Civil Procedure the ground that plaintiffs FOIA request inadequate. motion under Rule 12(b)(1) appropriate when court lacks subject matter jurisdiction hear claim.  FED. CIV. 12(b)(1).  Defendant argues that because the Courts jurisdiction under the FOIA extends only claims arising from the improper withholding agency records, see Kissinger Reporters Comm. for Freedom the Press, 445 U.S. 136, 150 (1980), when the request itself inadequate (as defendant asserts here), the agency has not made any improper withholdings.  See Mot. 14. Therefore, the argument goes, the Court lacks 
Defendants operating regulation requires that [c]opies all notices provided former Presidents under this section shall provided the same time the incumbent President. C.F.R.  1270.46(e).  Defendant appears not compliance with its own regulation.  Defendant ordered show cause why not notifying the former and incumbent Presidents simultaneously.  
subject matter jurisdiction. defendants motion points out, however, courts have evaluated issues relating subject matter jurisdiction FOIA actions inconsistently.  See Mot. 14-15. The Court 
believes that Judge Gerard Lynchs thoughtful explanation the application Rule 12(b)(1) 
FOIA actions instructive: 
[A]s subsequent passages Kissinger make clear the tripartite showing [(1) improper; (2) withholding; (3) agency records] not prerequisite federal subject-matter jurisdiction, properly speaking, but the authority the federal courts to devise remedies and enjoin agencies, that is, fashion appropriate relief redress FOIA violation.  
But this not question the Courts subject matter 
jurisdiction; question the merits [plaintiffs] claim. 
Subject matter jurisdiction refers authority hear and determine case.  Here, [plaintiff] asserts claim arising under FOIA, 
federal statute. The Court clearly has jurisdiction hear that claim. 
See U.S.C.  1331; U.S.C.  552(a)(4)(B). [plaintiff] 
cannot establish element his claim, that would not defeat the 
Courts power determine the claim; would mean that the Court 
would required exercise its jurisdiction, hear the claim, and 
deny the merits.  See Bell Hood, 327 U.S. 678, 682 (1946) 
(Jurisdiction not defeated the possibility that the 
averments might fail state cause action.). 
Megibow Clerk the United States Tax Court, Civil Action No. 04-3321, 2004 U.S. Dist. 
LEXIS 17698 *5-6 (S.D.N.Y. Aug. 31, 2004) (quoting Kissinger Reporters Comm. for 
Freedom the Press, 445 U.S. 150) (selected citations omitted).  See also Sweetland 
Walters, F.3d 852, 855 (D.C. Cir. 1995) (district court had subject matter jurisdiction over 
substantive claims, such FOIA action, arising under the laws the United States; Rule 
12(b)(6) dismissal was appropriate where the request was improper); cf. Arbaugh 
Corp., 546 U.S. 500, 511 (2006) (Subject matter jurisdiction federal-question cases sometimes erroneously conflated with plaintiffs need and ability prove the defendant bound the federal law asserted the predicate for relief  merits-related determination.) (citations omitted). 
For these reasons appropriate for the Court consider the motion dismiss under Rule 12(b)(6) for failure state claim.  Although defendant has submitted declaration support its motion, well supplemental declaration, filed September 24, 2008, these declarations primarily relate the motion for stay.  The question whether the FOIA request adequate does not turn the facts alleged the declarations other than insofar they refer the size the request itself.  Since the Court not relying the declarations the issue, the Court does not find necessary convert the motion dismiss into motion for summary judgment.  See FED. CIV. 12(d). 
Rule 12(b)(6) the Federal Rules Civil Procedure permits dismissal complaint plaintiff fails to state claim upon which relief can granted.  FED. CIV. 12(b)(6). Bell Atlantic Corp. Twombly, 127 Ct. 1955 (2007), the Supreme Court clarified the standard pleading that plaintiff must meet order survive motion dismiss under Rule 12(b)(6).  Although detailed factual allegations are not necessary withstand Rule 12(b)(6) motion dismiss, provide the grounds entitle[ment] relief, plaintiff must furnish more than labels and conclusions a formulaic recitation the elements cause action.  Bell Atlantic Corp. Twombly, 127 Ct. 1964-65; see also Papasan Allain, 478 U.S. 265, 286 (1986). The Court stated that there was probability requirement the pleading stage, Bell Atlantic Corp. Twombly, 127 Ct. 1965, but something beyond mere possibility must alleged[.]  Id. 1966. motion dismiss under Rule 12(b)(6), the Court must accept true all the factual allegations contained the complaint.  Erickson Pardus, 127 Ct. 2197, 2200 (2007); see also Bell Atlantic Corp. Twombly, 127 Ct. 1965.  The complaint is construed liberally the plaintiffs favor, and [the Court should] grant plaintiffs the benefit all inferences that can derived from the facts alleged.  Kowal MCI Commcn Corp., F.3d 1271, 1276 (D.C. Cir. 1994). While the complaint construed liberally plaintiffs favor, the Court need not accept inferences drawn the plaintiff those inferences are unsupported facts alleged the complaint; nor must the Court accept plaintiffs legal conclusions.  See Kowal MCI Commcn Corp., F.3d 1276. 
Defendant argues that the request inadequate because overbroad.  See Mot. 20-23.  The sheer size the request, according defendant, inflicts undue unreasonable burden the Library.  See Mot. 15-16.  The FOIA does require that request reasonably describe the records sought. U.S.C  552(a)(3)(A).  Yet otherwise valid FOIA requests are not overbroad unreasonable simply because they seek very large number documents.  The cases cited defendant not support such proposition. Meeropol Meese, 790 F.2d 942, 945-46 (D.C. Cir. 1986), for example, even though the request was enormous and perhaps the most extensive FOIA request ever made, nowhere did the court question the legitimacy the request itself because its size. 
The case law, including that cited defendant, shows that the key question whether the level difficulty imposed the agency identifying the responsive documents unreasonable.  A description the requested documents adequate enables professional agency employee familiar with the subject area locate the record with reasonable amount effort. Accordingly, the requesters responsibility frame requests with sufficient particularity ensure that searches are not unreasonably burdensome.  Judicial Watch, Inc. Exp.-Imp. Bank, 108 Supp. 19, (D.D.C. 2000). contrast, plaintiffs request relates discrete and logically coherent category documents  the records relating the Task Force National Health Care Reform. defendants own representation, identifying responsive documents its preliminary search was relatively straightforward.  See Mot. Robison Decl.  29-31.   The concern that overbroad FOIA request would require the agency reorganize its filing system, Goland CIA 607 F.2d 339, 370 (D.C. Cir. 1978), search for potentially responsive documents broad categories unindexed files, see, e.g., Nation Magazine U.S. Customs Serv., F.3d 885, 892 (D.C. Cir. 1990), not implicated here. 
Moreover, since defendant filed its motion, plaintiff has agreed narrow the scope its request.  Indeed plaintiff appears willing further narrow its request more information about the Task Force documents becomes available.  See Opp. 
For these reasons, the Court denies defendants motion dismiss. Motion for Stay 
Under the FOIA, agency that has received request for records must respond that request within twenty working days the date receipt the request. U.S.C.  552(a)(6)(A).  If the Government can show exceptional circumstances exist and that the agency exercising due diligence responding the request, the court may retain jurisdiction and allow the agency additional time complete its review the records. U.S.C.  552(a)(6)(C)(i).  Exceptional circumstances exist when agency is deluged with volume requests for information vastly excess that anticipated Congress, when the existing resources are inadequate deal with the volume such requests within the time limits subsection (6)(A), and when the agency can show that is exercising due diligence processing the requests.  Open America The Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976) (quoting the statute). 
Courts this circuit typically apply Open Americas interpretation subsection (6)(C) as excusing any delays encountered responding request long the agencies are making good faith effort and exercising due diligence processing the requests first-in first-out basis. Elec. Privacy Info. Ctr. Dept Justice, Civil Action No. 02-0063, 2005 U.S. Dist. LEXIS 18876 (D.D.C. Aug. 31, 2005) (citations omitted).  See also Edmond U.S. Atty., 959 Supp. (D.D.C. 1997) (Courts have uniformly granted the government reasonable periods time which review FOIA requests when there backlog.). 
Giving defendants declarations presumption good faith, required, the Court will grant temporary stay.  See Elec. Privacy Info. Ctr. U.S. Dept Justice, 2005 
U.S. Dist. LEXIS 18876 *10.  Defendant has demonstrated that has substantial backlog, and limited resources, and that processing requests multi-track first-in, first-out system. See Robison Decl.  16-19, 21-23.  See also Judicial Watch, Inc. Natl Archives and Records Admin., Civil Action No. 07-1297 (D.D.C. May 20, 2008) (Robertson, J.) (finding that the Clinton Presidential Library met all the stay requirements under Open America) (attached Notice Supplemental Authority [19]); Govt Accountability Project United States Dept Health and Human Servs., Civil Action No. 07-1702, 2008 U.S. Dist. LEXIS 59135 *24 (D.D.C. Aug. 2008) (multi-track first-in, first-out processing policy may show due diligence).   
The Court acknowledges plaintiffs argument that the defendant should have been better prepared process the large number FOIA requests received upon making President Clintons records available.  See Opp. 12-13.  Under the FOIA, [e]xceptional circumstances not include delays stemming from predictable agency workload requests unless the agency demonstrates reasonable progress reducing its backlog pending requests. U.S.C.  552(a)(6)(C)(ii).  Defendant appears making good faith effort, however, improve its processing methods for FOIA requests.  See Robison Decl.  24-27.  Given that defendant has been processing FOIA requests for relatively short period time and has scarce resources contrast the volume requests, the Court accepts defendants representation that making good faith effort reduce its backlog. 
Finally, plaintiff has not shown any urgency exceptional need for defendant process its request before all others.  See, e.g., Open America Watergate Special Prosecution Force, 547 F.2d 614. 
Defendant seeks stay one year respond plaintiffs request.  Plaintiff opposes any such stay.  The Court hesitant grant such lengthy stay.  The Court will deny defendants request for stay one year, and instead grant stay six months.  Defendant ordered provide the Court with status report regarding the processing responsive documents approximately thirty days before the expiration the stay.  For the reasons set forth above, hereby 
ORDERED that defendants motion dismiss DENIED; FURTHER ORDERED that defendants motion for stay GRANTED part and DENIED part.  The matter will stayed until March 31, 2009.  Defendant shall submit report identifying the status production plaintiffs FOIA request before February 28, 2009; and 
FURTHER ORDERED that defendant show cause writing before October 14, 2008 why not increasing the speed production simultaneously notifying former and incumbent Presidents that records are eligible for disclosure required C.F.R.  1270.46(e). ORDERED. 
/s/__________________________ 
PAUL FRIEDMAN 
United States District Judge DATE: September 30, 2008



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