Rolling Stone LLC v. DOJ, No. 23-10741, 2024 WL 3362439 (S.D.N.Y. July 8, 2024) (Liman, J.)

Rolling Stone LLC v. DOJ, No. 23-10741, 2024 WL 3362439 (S.D.N.Y. July 8, 2024) (Liman, J.)

Re:  Request for “‘all FBI records about Henry Kissinger’ without any date limitation”

Disposition:  Denying plaintiff’s motion for partial summary judgment

• Procedural Requirements, Expedited Processing:  The court relates that “Plaintiff argues that it is entitled to expedited processing on two grounds:  (i) it is a person primarily engaged in disseminating information, and the request concerns an urgency to inform the public concerning actual or alleged Federal Government activity; and (ii) the matter is one of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.”  “Plaintiff has not satisfied its burden of proof on either ground.”  “The Court reviews de novo the denial of expedition based on an urgency to inform.”  The court finds that “[t]here is no dispute that [plaintiff], as the publisher of a well-known and widely-distributed magazine, is a person ‘primarily engaged in disseminating information.’”  “There also is no dispute that the activities of Kissinger and those of the FBI in conducting its investigations relate to actual or alleged Federal Government activity.”  “But Plaintiff has not established based on the evidence before the agency that its request concerns a matter of current exigency to the American public or that the consequences of delaying a response would compromise a significant recognized interest.”  The court finds that “the historical value of information regarding Kissinger is not alone enough to establish that the request concerns a matter of current exigency.”  “Courts have found that a request concerns a matter of current exigency to the American public where ‘the subject matter of the request was central to a pressing issue of the day,’ . . . or was of ‘immediate public interest in view of [an] ongoing debate,’ . . . .”  “Plaintiff’s request is indiscriminate.”  “It calls for all documents concerning Kissinger during that entire time period.”  “Plaintiff admits that ‘not every record about Kissinger will be of extraordinary public interest,’ . . . but the burden is on Plaintiff to justify expedited processing and Plaintiff fails to identify any specific subject relative to Kissinger’s six-decade career that the requested records relate to that is of current exigency to the American public.”  “Plaintiff also has not shown that there would be ‘any significant adverse consequence[’] if the records they request were received ‘later rather than sooner.’”
  
  “To satisfy subsection (iv) of DOJ’s regulations, a request must (1) concern a ‘matter of widespread and exceptional media interest’ and (2) that matter must raise ‘possible questions about the government’s integrity.’”  “It is not sufficient that the request concerns an individual as to whom there is widespread and exceptional media interest if the subject as to which there is public interest is not one that also raises questions about the government’s integrity.”  “In this case, Plaintiff failed to establish either that the FOIA request concerns a matter of widespread and exceptional media interest or that it raised possible questions about the government’s integrity.”  “Plaintiff cited the single obituary from the Washington Post and made the claim that Kissinger was ‘an extremely polarizing figure in many circles’ and that in the Mueller Investigation, the FBI was looking into his activities.”  “The evidence before the agency did not demonstrate that the information about Kissinger’s death was either ‘widespread’ or ‘exceptional.’”  “And, it did not show that his death (or any other subject that could have attracted widespread and exceptional media interest) raised questions about the government’s integrity.”  “Even applying de novo review, it is apparent that Plaintiff’s FOIA request did not qualify for expedited processing under subsection (iv) of the FOIA regulations.”
  
  “Finally, Plaintiff asserts that the FBI failed to demonstrate reasoned decision-making in denying its request for expedited processing.”  “In its denial, the FBI stated:  ‘You have not provided enough information concerning the statutory requirements for expedition; therefore, your request is denied.’”  “In this case, . . . Plaintiff offered no reasons and no evidence why the documents it requested could bear on government integrity but rather itself simply parroted the statute and the FBI therefore gave the only answer it could have given – that Plaintiff had not provided enough information to support a claim for expedited processing.”  “It is the Plaintiff and not the DOJ that is moving for summary judgment.”  “And the Court denies the motion for partial summary judgment not out of deference to the DOJ or the FBI but based on its own independent review and its conclusion that, based on the information before the agency, Plaintiff did not establish that its request met any of the standards for expedited processing.”