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Judicial Watch • JW v DOJ ammo brief and stay 00600

JW v DOJ ammo brief and stay 00600

JW v DOJ ammo brief and stay 00600

Page 1: JW v DOJ ammo brief and stay 00600

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Number of Pages:15

Date Created:May 15, 2018

Date Uploaded to the Library:May 21, 2018

Tags:00600, ATF, request, records, DOJ, FOIA, CIA


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Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Case No. 17-600-CKK
PLAINTIFF CONSOLIDATED REPLY BRIEF SUPPORT ITS CROSSMOTION FOR SUMMARY JUDGMENT AND MEMORANDUM SUPPORT
MOTION STAY
Defendant U.S. Department Justice has failed refute Plaintiff arguments for
summary judgment. Plaintiff should awarded judgment and Defendant should ordered
produce the 1,900 pages disputed records issue.
The key issue this case that Defendant component, the Bureau Alcohol,
Tobacco, Firearms, and Explosives ATF knew should have known which documents
Plaintiff was seeking. Rather than release those records, ATF instead chose insist its own
narrow reading Plaintiff request. Defendant initial narrow reading Plaintiff request
might have been innocent misunderstanding even impermissible under FOIA. However,
once Judicial Watch corrected ATF and explained its request its opposition brief and response Defendant statement facts (ECF pp. 4-6, ECF 16-1 2), ATF should have
changed its position. Defendant ATF has not done so. ATF violation FOIA for failing
release the records after being informed its mistaken reading Plaintiff FOIA request.
Yeager Drug Enforcement Admin., 678 F.2d 315, 326 (DC Cir. 1982).
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Furthermore, Defendant mistakenly suggests that the Court should not order the release the 1,900 pages because such order not proper remedy. ECF the contrary,
courts regularly order remedial measures when agencies have not performed adequate searches
and releases records under FOIA, and the remedy Plaintiff proposes well within the Court
power.
Finally, conserve the Court time and avoid unnecessary imposition its limited
resources, Plaintiff asks the Court hold both cross-motions for summary judgment (ECF
and 15) abeyance and stay this case for days. Plaintiff has now filed new FOIA request
with Defendant for the 1,900 pages disputed records. See Exhibit Defendant complies
with this request, such compliance could potentially render this lawsuit and both parties
summary judgment motions moot.
Argument
Defendant Has Failed Show That Reading Plaintiff FOIA Request Liberally
and Reasonably Required
ATF wrong about what FOIA requires the agency release this case. Under FOIA,
Defendant agencies must release records reasonably described FOIA request the extent
agency can discern what being requested. See Yeager Drug Enforcement Admin., 678 F.2d
315, 326 (DC Cir. 1982) (the linchpin whether agency misreading request avoid
the production records whether the agency able determine precisely what records are
being requested. impossible for ATF still claim does not know what Judicial Watch seeking after reading Judicial Watch opposition brief and response Defendant statement facts. ECF pp. 4-6, ECF 16-1 Instead, ATF wrongly claiming that may
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
continue willfully read the request narrowly avoid releasing records wishes so.
ECF
ATF correct that the relevant FOIA standard whether the agency reading the
request liberal and reasonable. ECF see also Weisberg U.S. Dep Justice, 745
F.2d 1476, 1489 (D.C. Cir. 1984). ATF incorrect, however, argue that its reading the
Judicial Watch FOIA request was reasonable fact was not. FOIA requires federal agencies produce records when requestor reasonably describes them. U.S.C. 552(a)(3)(A).
Judicial Watch request was fair and sensible description the records sought. However,
ATF narrow and restrictive reading the request was not reasonable. Accordingly, ATF has
violated the plain meaning the statute. ATF focus the single word decision the
request violates FOIA. ECF The arguments ATF advances would take the words
reasonably describe out the FOIA statue. Instead, ATF wants replace the words
reasonably describe with perfectly describe, describes with exact precision Section
552. This not what Congress intended when passed FOIA, the purpose which ensure
the conduct government business transparent citizens.
Even ATF initial reading were liberal and reasonable, once the ATF mistaken
assumption about the premise Plaintiff request was corrected (see ECF 16-1 there
remained question whether ATF could determine precisely what records Plaintiff sought.
Yeager Drug Enforcement Admin., 678 F.2d 315, 326 (DC Cir. 1982) (the linchpin
whether agency misreading request avoid the production records whether the
agency able determine precisely what records are being requested. this case,
Defendant has even acknowledged that its misreading was based ATF own assumption
about the premise Plaintiff request. Defendant Statement Facts, ECF 14-2
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
The first time Plaintiff learned that Defendant was fundamentally misreading the FOIA request
was when Defendant filed its motion for summary judgment this case. Plaintiff then explained
that this reading was incorrect its responsive brief. Considering Defendant confusion and
Plaintiff explanation, the appropriate response would have been for Defendant make further
releases. Instead, Defendant has chosen double-down its right read the request narrowly.
Finally, even Defendant continued insistence misreading Plaintiff request was
permissible, some the 1,900 pages described should released. Defendant declarant Peter
Chisholm describes the 1,900 pages withheld records falling into such categories as, drafts
and final versions ATF talking points related the Armor Piercing Ammunition Notice
Proposed Rulemaking (NPRM); emails and attachments discussing the classification 5.56mm
SS109 and M855 ammunition for the NPRM; and drafts and final versions Questions for the
Record subsequent ATF Director Todd Jones testimony before Congress, portions
which mention armor piercing ammunition. Supplemental Declaration Peter Chisholm, ECF
18-1 This statement stops short affirming that none these 1,900 records discuss
both the AR-15 ammunition and the revised 2014 Reference Guide subject Plaintiff request.
See ECF Plaintiff submits that any records that discuss both subjects are responsive
its request, even certain other portions the withheld records are not. Since Defendant
declarant has failed unequivocally state that none the 1,900 pages discuss both the AR-15
ammunition and the Reference Guide, the Court should order the production all records.
minimum, the Court should order the release any pages the 1,900 withheld records that
mention the 2014 Reference Guide.
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
For all the foregoing reasons, Defendant supplemental search declaration (ECF 18-1)
fails satisfy its burden FOIA litigation. Nation Magazine U.S. Customs Service, F.3d
885, 890 (D.C. Cir. 1995).
Courts Routinely Order Remedial Relief When Agencies Have Performed
Inadequate FOIA Searches and Releases, and Defendant Argument the
Contrary Unpersuasive
The ATF wrong suggest that this Court may not order produce the 1,900 pages remedy for its violation FOIA. ECF Indeed, ATF appears expressing doubt
about matter blackletter law FOIA jurisprudence. Section 552(a)(4)(B) states that
district court has the power enjoin [an] agency from withholding agency records and order
the production any agency records improperly withheld from the complainant. U.S.C.
552(a)(4)(B). District courts routinely order agencies conduct additional reviews and releases documents when their FOIA compliance inadequate. See, e.g., Morley CIA, 508 F.3d
1108, 1119-20 (D.C. Cir. 2007); Int Counsel Bureau United States DOD, 657 Supp. 33, (D.C. Cir. 2009) (ordering agency re-conduct its search because its original search was
inappropriately limited scope).
ATF argues that Plaintiff offers support for the claim that the Court may order
Defendant produce the 1,900 pages. ECF While true that Plaintiff did not cite the
statute, should without saying that the Court power order agencies the release
documents fundamental FOIA. Renegotiation Board Bannercraft Clothing Company,
415 U.S. (1974), the Supreme Court explained that since FOIA expressly authorizes district
courts compel the production agency records improperly withheld, (Id. 18) the district
courts injunctive power ensure FOIA compliance was necessarily broad: With the express
vesting equitable jurisdiction the district court 552(a), there little suggest that
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Congress sought limit the inherent powers equity court. Id. 18-20 (internal citations
omitted). This Court may order the relief Plaintiff requests.
The Cross-Motions Should Held Abeyance for Days Pending Defendant
Response Plaintiff New FOIA Request
Plaintiff entitled judgment its favor. However, avoid potentially unnecessary
imposition the Court time especially considering Defendant continued opposition
Plaintiff arguments Plaintiff moves for brief stay this litigation. Plaintiff has conferred
with opposing counsel, and opposing counsel stated Defendant opposes this motion. its opposition brief, ATF states that Plaintiff may simply file new FOIA request for
the 1,900 pages wants them. ECF Plaintiff has explained, ATF required
release these records substantial portions them regardless whether Plaintiff files new
FOIA request. See supra pp. Nevertheless, avoid unnecessary burden this
Court resources, Plaintiff has now filed new FOIA request with ATF. That new FOIA
request (hereinafter New FOIA Request attached hereto Exhibit
Plaintiff New FOIA Request ATF asks for release the 1,900 pages records
described paragraph the Supplemental Declaration Peter Chisholm. See ECF 18-1, Plaintiff entitled under FOIA the records described the Chisholm declaration, and
Defendant required release them Plaintiff. Accordingly, stay this lawsuit and abeyance the pending cross-motions appropriate. Defendant complies with the New FOIA Request,
this case will moot. However, this case not moot unless and until Defendant complies with
the New FOIA Request. addition, granting Plaintiff motion for stay would also best protect Plaintiff right
relief before the Court. Defendant complies with Plaintiff New FOIA Request this case may moot. However, Plaintiff reminds the Court that Defendant took over two years produce
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
single record response Plaintiff original FOIA request 2015, prompting this lawsuit.
See ECF Stay this case pending Defendant response the New FOIA Request
therefore serves the interests FOIA, which ensuring government transparency. Defendant
should not allowed unjustly delay the release records requesters the public.
Moreover, affording Defendant the opportunity resolve this lawsuit complying promptly
with the New FOIA Request, the Court promoting the efficient resolution legal disputes.
any event, well within this Court discretion stay lawsuit upon request party.
Accordingly, the Court should stay this case and order the parties file Joint Status
Report days from the date the order specifying whether Defendant response the New
FOIA Request has made this case moot, whether the stay should lifted the Court may
rule the cross-motions for summary judgment.
Conclusion
For all the foregoing reasons, the Cross-Motions for Summary Judgment (ECF and
15) should STAYED for days pending Defendant response Plaintiff New FOIA
Request. After that time, this case not made moot Defendant forthcoming response
the New FOIA Request, Plaintiff motion for summary judgment should GRANTED and
Defendant motion for summary judgment should DENIED.
Dated: May 15, 2018
Respectfully submitted,
/s/ Chris Fedeli
Chris Fedeli Bar No. 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Exhibit
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
May 14, 2018
Via Email
Bureau Alcohol, Tobacco, Firearms and Explosives
Attn: Disclosure Division, Room 4E.301 New York Avenue,
Washington, 20226
foiamail@atf.gov
Re: Freedom Information Act Request
Dear Freedom Information Officers:
Pursuant the Freedom Information Act FOIA U.S.C. 552, Judicial Watch,
Inc. hereby requests that the Bureau Alcohol, Tobacco, Firearms and Explosives ATF
produce the following records within twenty (20) business days:
The 1,900 pages records referenced paragraph the Supplemental
Declaration Peter Chisolm, Acting Chief, ATF Disclosure Division, filed
May 2018 the U.S. District Court for the District Columbia, civil action
case number 17-600-CKK.1 relevant part, paragraph the Chisolm
Declaration describes the 1,900 pages request follows:
The approximately 1,900 pages ultimately determined nonresponsive, were carefully reviewed line-by-line for responsiveness the
Disclosure Division. After that extensive review was completed, these
pages were set aside without additional processing because they were nonresponsive. The non-responsive documents fell into such categories as,
drafts and final versions ATF talking points related the Armor Piercing
Ammunition Notice Proposed Rulemaking (NPRM); emails and
attachments discussing the classification 5.56mm SS109 and M855
ammunition for the NPRM; and drafts and final versions Questions for
the Record subsequent ATF Director Todd Jones testimony before
Congress, portions which mention armor piercing ammunition.
For reference, this pending lawsuit concerns March 2015 FOIA request from Judicial Watch ATF, control
number 2015-0705.
For further reference, excerpts the Chisolm Declaration are attached hereto Attachment
425 Third St. SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org www.JudicialWatch.org
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Bureau Alcohol, Tobacco, Firearms and Explosives
May 14, 2018
Concerning this request, please note the following important points:
Waiver Search and Duplication Fees
Judicial Watch requests waiver all search and duplication fees pursuant U.S.C.
552(a)(4)(A)(ii)(II) and U.S.C. 552(a)(4)(A)(iii), well any fee waiver entitled
under U.S.C. 552(a)(4)(A)(viii).
First, with respect U.S.C. 552(a)(4)(A)(ii)(II), Judicial Watch entitled waiver all search fees because member the news media. Cause Action Federal Trade
Comm., 799 F.3d 1108 (D.C. Cir. 2015); National Security Archive Department Defense,
880 F.2d 1381 (D.C. Cir. 1989). Judicial Watch has been recognized member the news
media other FOIA litigation. Judicial Watch, Inc. Department Defense, 2006 U.S. Dist.
Lexis 44003 (D.D.C. June 28, 2006); Judicial Watch, Inc. U.S. Department Justice, 133
Supp. (D.D.C. 2000). Judicial Watch regularly obtains information about the operations
and activities government through FOIA and uses this information produce written
journalism which disseminated the public via our monthly newsletter (circulation over
300,000), weekly email updates (over 600,000 subscribers), the published books THE
CORRUPTION CHRONICLES (Threshold Editions, 2012) and CLEAN HOUSE (Threshold Editions,
2016), and various other formats via our website, social media, and published reports.
tax exempt, 501(c)(3) non-profit corporation, have commercial interests and not seek
the requested records for any commercial use. Rather, intend use the requested records
part our ongoing investigative journalism and public education efforts promote integrity,
transparency, and accountability government and fidelity the rule law.
Second, under U.S.C. 552(a)(4)(A)(iii), this request exempt from both search and
duplication fees. This because: Judicial Watch 501(c)(3) public interest, not-for-profit
organization with commercial purpose; and the requested information will contribute the
public understanding the activities and operations government. Judicial Watch exists
educate the public about the operations and activities government, well increase public
understanding about the importance ethics and the rule law government. are seeking
the records referenced this letter part our ongoing efforts document the operations and
activities the federal government and educate the public about them. Disclosure the
requested records undoubtedly will shed light the operations activities the
government. Cause Action, 799 F.3d 1115. Disclosure also likely contribute
significantly the public understanding those operations activities because Judicial
Watch intends disseminate insightful information gleaned from the records reasonably
broad audience persons interested the subject via its newsletter, email updates, and various
other distribution channels. Cause Action, 799 F.3d 1116, quoting Carney US. Dep
Justice, F.3d 807, 815 (2nd Cir. 1994).
425 Third St. SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org www.JudicialWatch.org
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Bureau Alcohol, Tobacco, Firearms and Explosives
May 14, 2018
Finally, the records are not produced within twenty (20) business days, Judicial Watch
requests the complete waiver search and duplication fees entitled under Section 6(b)
the OPEN Government Act 2007, codified relevant part U.S.C. 552(a)(4)(A)(viii).
Given these various circumstances, Judicial Watch should not charged any search
duplication costs. Nonetheless, the unlikely event our request for waiver search and/or
duplication costs denied, Judicial Watch willing pay $350.00 search and/or
duplication costs. you intend assess these costs, please contact the undersigned before
incurring the costs may decide wish move forward.
Production Records
For our mutual convenience, please produce all records electronically one more .pdf
documents. You may send electronic productions for this FOIA request via email the address
cfedeli@judicialwatch.org. When necessary, Judicial Watch will also accept the rolling
production documents. you not understand this request any portion thereof, you need clarification
this request, please contact immediately 202-646-5185 cfedeli@judicialwatch.org.
look forward receiving the requested documents and waiver both search and duplication
costs within twenty (20) business days. Thank you for your cooperation.
Sincerely, Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
cfedeli@judicialwatch.org
202-646-5185
425 Third St. SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442
FAX: (202) 646-5199 Email: info@JudicialWatch.org www.JudicialWatch.org
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Attachment
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Case 1:17-cv-00600-CKK Document 18-1 Filed 05/01/18 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________________________________
JUDICIAL WATCH, INC.,
Plaintiff,
Case No. 17-600 (CKK)
U.S. DEPARTMENT JUSTICE
Defendant.
__________________________________
SUPPLEMENTAL DECLARATION PETER CHISHOLM,
ACTING CHIEF, DISCLOSURE DIVISION
BUREAU ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES Peter Chisholm, hereby declare and say: the Acting Chief, Disclosure Division, Bureau Alcohol, Tobacco,
Firearms and Explosives (ATF), Department Justice (DOJ). this capacity, receive all
requests made ATF under the Freedom Information Act (FOIA), U.S.C. 552, and the
Privacy Act 1974 (PA), U.S.C. 552a. this capacity, also review all requests referred
ATF from other agencies that have located ATF-originated documents their records while
processing their FOIA and requests. responsible for processing all FOIA and
requests, initiating searches relevant such requests, supervising the determination what
records should disclosed, processing all documents referred ATF and other agencies, and
recording all administrative appeals filed with ATF. declare that the statements made herein are based knowledge acquired
through the performance official duties. familiar with the procedures followed
this office responding the FOIA request made Mr. William Marshall, behalf
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Case 1:17-cv-00600-CKK Document 18-1 Filed 05/01/18 Page
Accordingly, during the course the review process that material was determined nonresponsive Plaintiff FOIA request and, therefore, was not released Plaintiff. When
performing its searches, ATF cast wide net ensure that Plaintiff received everything
responsive their request. Specifically, any and all records communications, including but
not limited to, emails, from employees officials ATF regarding, concerning, related the decision revise the ATF 2014 Regulations Guide longer exempt 5.56mm, SS109
and M855 (i.e., green tip AR-15) ammunition from the definition armor-piercing
ammunition.
The approximately 1,900 pages ultimately determined non-responsive, were
carefully reviewed line-by-line for responsiveness the Disclosure Division. After that
extensive review was completed, these pages were set aside without additional processing
because they were non-responsive. The non-responsive documents fell into such categories as,
drafts and final versions ATF talking points related the Armor Piercing Ammunition Notice Proposed Rulemaking (NPRM); emails and attachments discussing the classification
5.56mm SS109 and M855 ammunition for the NPRM; and drafts and final versions Questions
for the Record subsequent ATF Director Todd Jones testimony before Congress, portions which mention armor piercing ammunition. These documents were ultimately deemed nonresponsive since, although they contained some the broad search terms used, they were not
related any decision revise the ATF 2014 Regulations Guide longer exempt 5.56mm,
SS109 and M855 (i.e., green tip AR-15) ammunition from the definition armor-piercing
ammunition since, previously noted, such decision was ever made.
10.
The searches described above were conducted all the locations which
reasonably likely that responsive records would reside and using the search terms and methods
Case 1:17-cv-00600-CKK Document 21-1 Filed 05/15/18 Page
Chris Fedeli
From:
To:
Sent:
Subject:
postmaster@atf.gov
foiamail@atf.gov
Monday, May 14, 2018 3:41
Delivered: Judicial Watch FOIA Request AR-15 Ammunition Records
Your message has been delivered the following recipients:
foiamail@atf.gov (foiamail@atf.gov)
Subject: Judicial Watch FOIA Request AR-15 Ammunition Records