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PW Arms, Inc. v. United States

United States District Court, W.D. Washington, Seattle

January 23, 2017

P.W. ARMS, INC., Plaintiff,
v.
UNITED STATES OF AMERICA and the BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, Defendants.

          ORDER ON THE PARTIES' CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         The 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.)

         On 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[1], outlining why responsive documents were withheld or redacted. (See Dkt. Nos. 43-1 at 24-108 and 43-2 at 2-188)

         The 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.)

         II. DISCUSSION

         A. FOIA Motion for Summary Judgment Standard

         Because 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).

         B. Reasonably Calculated Search

         Plaintiff 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, [2] (id. at 6-7, 11).

         1. Unreasonable Delay

         Plaintiff 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).

         Pursuant 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 may ...


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