Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives

293 F. Supp. 3d 17
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 9, 2017
DocketCivil Action No. 15–1649 (BAH)
StatusPublished
Cited by7 cases

This text of 293 F. Supp. 3d 17 (Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 293 F. Supp. 3d 17 (D.C. Cir. 2017).

Opinion

BERYL A. HOWELL, United States District Judge

The plaintiff, David T. Hardy, seeks attorneys' fees and costs as a "prevailing party" under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E), Pl.'s Mot. Att'ys' Fees ("Pl.'s Mot.") at 1, ECF No. 36, in this lawsuit challenging aspects of the response by defendants, the Department of Justice Office of Inspector General ("OIG") and Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), to the plaintiff's FOIA request. See Compl. ¶¶ 10, 18, 21, ECF No. 2.1 After the parties' cross-motions for summary judgment were granted in part and denied in part, the parties stipulated to a dismissal of the case, except for the plaintiff's claim for attorneys' fees. Pl.'s Mot. ¶ 15. For the reasons set forth below, the plaintiff's motion for attorneys' fees is GRANTED in part and DENIED in part.

I. BACKGROUND

The factual and procedural history to this case is fully set out in this Court's prior Memorandum Opinion and, consequently, only those facts pertinent to resolving the instant motion are summarized below. See Hardy v. Bur. of Alcohol, Tobacco, Firearms & Explosives (Hardy I) , 243 F.Supp.3d 155, 159-61 (D.D.C. 2017). In March 2015, the plaintiff submitted a FOIA request to OIG and ATF seeking documents regarding ATF's policies on registered handguns and "any statements, surveys, or reports of interviews given" to OIG "in connection with" an OIG report *23issued in June 2007 titled "The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record" ("NFRTR"). Id. at 159-60. The parties agreed that the requested records each fell into one of three categories: "(1) records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of materials and interviews; and summaries of a document and emails that were reviewed." Id. at 160.

In August 2015, OIG prepared a response to the plaintiff's request stating that all responsive records were exempt from disclosure pursuant to the "deliberative process" privilege under Exemption 5 of the FOIA. Id. (citing Defs.' Mot. Summ. J., Ex. 2, Decl. of Deborah M. Waller ("Waller Decl.") ¶¶ 5-6, ECF No. 22-2); see also Defs.' Answer, Ex. 1, OIG Resp. Pl.'s FOIA Request, Aug. 27, 2015 ("OIG Response"), ECF No. 13-1 (stating that "responsive documents have been reviewed" and "[i]t has been determined that these documents be withheld in their entirety"). The plaintiff then initiated this lawsuit in October 2015 challenging both defendants' responses to his FOIA request. Compl. ¶¶ 17-22.

In January 2016, the Court imposed a scheduling order, consistent with the parties' proposal in a Joint Status Report, ECF No. 15, requiring the release of any nonexempt material by February 29, 2016. Minute Order (Jan. 9, 2016). OIG subsequently reviewed sixty responsive documents and determined that the portions that had been directly quoted in the publicly available NFRTR "could be segregated and released without compromising the deliberative processes of the OIG." Waller Decl. ¶ 7. Three days ahead of the Court's February 29, 2016, disclosure deadline, OIG provided forty pages of highly redacted documents and an "index of responsive records withheld under claim of exemption," pursuant to Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973) (the " Vaughn Index"), reflecting the withholding of a total of 511 pages. Hardy I , 243 F.Supp.3d at 160-161, 165. Likewise, after a first release on February 26, 2016, and a rolling production through June 29, 2016, ATF provided 539 documents, a production that the plaintiff acknowledged "complied with [his] FOIA request." Id. at 159 n.1 ; Pl.'s Statement of Facts ("Pl.'s Facts") ¶ 9, ECF No. 36; Defs.' Opp'n Pl.'s Mot. Att'ys' Fees ("Defs.' Opp'n"), Ex. 2, Decl. of Peter J. Chisholm, Acting Chief, Disclosure Division, Bureau of Alcohol, Tobacco, Firearms and Explosives ("Chisholm Decl.") ¶ 5, ECF No. 37-2.

The parties' cross-motions for summary judgment were each granted in part and denied in part. Hardy I , 243 F.Supp.3d at 159. Specifically, of the three categories of withheld records, the Court concluded that OIG was entitled to summary judgment as to the first category of records described as "records of interviews and notes of telephone interviews," id. at 170, but only as to a single document in category two (i.e. , "Survey Draft"), id. at 174, and a single document in category three (i.e. , "Interview Workpaper"), id. at 177. Otherwise, OIG was denied summary judgment. The plaintiff was granted summary judgment and OIG was ordered to disclose three documents in category two (i.e. , two "Survey Results" and "Final Survey Data"). Id. at 173.

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293 F. Supp. 3d 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-bureau-of-alcohol-tobacco-firearms-explosives-cadc-2017.