United States District Court, W.D. Washington, Seattle
P.W. ARMS, INC., Plaintiff,
UNITED STATES OF AMERICA and the BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendants.
ORDER ON THE PARTIES' CROSS MOTIONS FOR PARTIAL
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the parties' cross
motions for partial summary judgment on the Freedom of
Information Act (FOIA) claim (Dkt. Nos. 41 and 46). Having
thoroughly considered the parties' briefing and the
relevant record, the Court finds oral argument unnecessary
and hereby GRANTS in part and DENIES in part the parties'
motions for the reasons explained herein.
facts of this case have been discussed in the Court's
previous order granting Defendants the United States and the
federal Bureau of Alcohol, Tobacco, Firearms, and
Explosives's (ATF) first motion for partial summary
judgment. (Dkt. No. 37 at 2-3.) The additional relevant facts
are as follows. On July 18, 2014, Plaintiff P.W. Arms, Inc.
submitted a multi-part FOIA request to ATF. (Dkt. No. 43-1 at
2.) There is no dispute that ATF failed to respond to or
acknowledge the July 2014 letter due to an
“oversight.” (Dkt. No. 43 at ¶ 43.) Seven
months later on February 11, 2015, Plaintiff, viewing the
lack of determination within the applicable statutory time
period as a denial of the request, sent an appeal. (Dkt. No.
43-1 at 6.) ATF received the appeal on March 30, 2015, and
responded on April 13, 2015. (Dkt. No. 43-1 at 13.) On August
25, 2015, ATF determined that no action needed to be taken on
the appeal because there had been no adverse determination on
the FOIA request. (Dkt. No. 43-1 at 15.)
December 18, 2015, Plaintiff filed this action alleging a
violation of FOIA, (Dkt. No. 1), and ATF was served on
December 21, 2015, (Dkt. No. 2). One day after being served
the complaint and nearly a year and a half after receiving
the original FOIA request, ATF issued its first internal
search requests for responsive documents. (Dkt. No. 43 at
¶ 8.) On March 31, 2016, 622 days after Plaintiff made
its initial request, ATF produced responsive documents. (Dkt.
No. 43-1 at 17.) ATF supplemented its initial response on
June 24, 2016, and September 20, 2016. (Dkt. No. 43-1 at 19,
21.) ATF also provided a Vaughn index, outlining why
responsive documents were withheld or redacted. (See
Dkt. Nos. 43-1 at 24-108 and 43-2 at 2-188)
parties now move for partial summary judgment on the FOIA
claim (Dkt. Nos. 41 and 46.) Plaintiff also asks the Court to
find that it is the prevailing party on the issue of whether
ATF violated FOIA so it may pursue attorney fees and costs.
(Dkt. No. 46 at 14-20; Dkt. No. 49 at 10-12.)
FOIA Motion for Summary Judgment Standard
the facts are rarely in dispute in a FOIA case, the Court
need not ask whether there is a genuine dispute of material
fact. Minier v. Central Intelligence Agency, 88 F.3d
796, 800 (9th Cir. 1996). Rather, the standard for summary
judgment in a FOIA case generally requires a two-stage
inquiry. First, the Court must determine whether ATF fully
discharged its obligations under FOIA by establishing that it
conducted a search “reasonably calculated” to
uncover all responsive documents. Zemansky v. EPA,
767 F.2d 569, 571 (9th Cir. 1995) (citing Weisberg v.
United States Dep't. of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984)). This can be shown with “reasonably
detailed, nonconclusory affidavits submitted in good
faith.” Id. Then, the Court must decide if the
information or redactions ATF did not disclose fall within a
FOIA exception. Id.; see 5 U.S.C.
§§ 552(a)(3), (b)(1)-(9). This burden may be
satisfied with a Vaughn index describing the
withheld material, explaining the reasons for non-disclosure,
and demonstrating that reasonably segregable material has
been released, all with reasonable specificity. See Bowen
v. U.S. Food & Drug Admin., 925 F.2d 1225, 1227 (9th
Cir. 1991). These indexes are given a presumption of good
faith and that presumption “cannot be rebutted by
purely speculative claims about the existence and
discoverability of other documents.” Grand Cent.
P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir.
1999) (internal quotations and citations omitted). The burden
of proof for both inquiries is on ATF and the Court reviews
ATF's response to the FOIA request on a de novo
basis. 5 U.S.C. § 552(a)(4)(B).
Reasonably Calculated Search
argues that ATF violated FOIA by (1) unreasonably delaying
production of documents until Plaintiff initiated this case,
(Dkt. No. 46 at 8-10), and (2) failing to produce all
responsive documents in regards to Plaintiff's fifth,
seventh and eight requests,  (id. at 6-7, 11).
argues, “ATF conducted a wholly unreasonable search
when it failed to even begin looking for documents until
after [Plaintiff] filed suit.” (Dkt. No. 46 at 8.) ATF
argues that it has fulfilled its obligation to conduct an
adequate search, (Dkt. No. 41 at 8), and that Ninth Circuit
case law does not support a finding of a FOIA violation for a
delayed FOIA request response, (Dkt. No. 48 at 7-11).
to FOIA, an agency must “determine within 20 days . . .
after the receipt of any such request whether to comply with
such request.” 5 U.S.C. § 552(a)(6)(A)(i). In the
Ninth Circuit, many courts have found a FOIA violation
independent of underlying disclosure issues “when the
violation is ‘egregious' or when there is
a ‘pattern or practice' of delay.”
Munger, Tolles & Olson LLP ex rel. Am. Mgmt. Servs.
LLC v. U.S. Dep't of Army, 58 F.Supp.3d 1050, 1054
(C.D. Cal. 2014) (emphasis added) (collecting cases);
Prison Legal News v. U.S. Dep't of Homeland
Sec., 113 F.Supp.3d 1077, 1084 (W.D. Wash. 2015);
see Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982).
For example, courts have found that delays between five to
eight months were improper and egregious withholdings in
violation of FOIA. See Gilmore v. U.S. Dep't of
Energy, 33 F.Supp.2d 1184, 1188 (N.D. Cal. 1998) (five
month delay); Oregon Natural Desert Ass'n v.
Gutierrez, 409 F.Supp.2d 1237, 1248 (D. Or. 2006) (eight
month delay). Additionally, a pattern or practice of delay