Shapiro v. DOJ, No. 13-555, 2024 WL 3638334 (D.D.C. Aug. 1, 2024) (Moss, J.)

Shapiro v. DOJ, No. 13-555, 2024 WL 3638334 (D.D.C. Aug. 1, 2024) (Moss, J.)

Re:  Requests for records concerning FBI's processing of nearly a hundred previous (or "parent") FOIA requests from plaintiffs and others

Disposition:  Ordering defendant to continue processing remaining material at issue

• Procedural Requirements, “Agency Records”:  The court notes that “[it] needs to resolve only the narrow question of whether substantive entries contained within fourteen tabs of the FBI’s Freedom of Information and Privacy Act Document Processing System (‘FDPS’) constitute ‘records’ that are subject to FOIA.”  “FDPS ‘is a request management system . . . [that] helps FBI personnel process documents electronically, track workload, and efficiently use subject matter expertise by streamlining the collaboration and review process associated with complex FOIA/Privacy Act requests.’”  “‘The FBI has previously acknowledged that parts of FDPS contain already-extant records that can be exported or extracted per the normal functions of FDPS,’ and it attests that it previously provided ‘[a]ll of these records . . . to Plaintiffs.’”  “On a quick read, one might conclude that there is nothing left for the Court to decide, because the agency has already provided all of the FPDS records at issue to Plaintiffs.”  “But on a closer inspection, that is not what the FBI says – or what it means.”  “In referring to ‘these records,’ the FBI is not referring to all ‘extant’ entries in the FDPS but, rather, is referring to those ‘extant records that can be exported or extracted per the normal functions of FDPS.’”  “That is, the FBI is referring only to materials that [are] exportable using ‘the normal functions of FDPS’ – a category that apparently includes ‘electronic search slips, case notes[,] and records located in the Documents tab.’”  “It is not referring to material found in ‘the fourteen [other] tabs within FDPS,’ which ‘have not been processed.’”
  
  “First, in its initial briefing on the question now before the Court, the FBI argued that . . . any information in the remaining tabs does not qualify as ‘record[s]’ for purposes of FOIA because the ‘FBI has no control’ over the information.”  The court finds that “the FBI struggles to fit a square peg into a round hole.”  “Nothing in this case turns on who ‘controls’ the FDPS – it is a[n] FBI-owned and controlled database, which contains records created and maintained by FBI employees in the performance of their official duties.”  “Moreover, to the extent that the FBI maintains that it lacks ‘control’ of the records at issue because the remaining are analogous to empty drawers of a file cabinet, . . . that contention is either demonstrably false or merely an alternative (and obfuscating) formulation of the FBI’s second and third arguments, which posit that any information contained in the remaining tabs does not qualify as an agency ‘record’ for purposes of FOIA.”  “At the Court’s direction, the FBI has now produced sample screenshots from the tabs at issue, and it has redacted significant portions of the material at issue pursuant to various FOIA exemptions, . . . belying any contention that the ‘drawers’ at issue are simply empty.”  “Indeed, in its most recent, supplemental brief, the FBI softens its contention (albeit only slightly), so that it now claims only that ‘“much of the information is not retained or maintained and is transient.’”
  
  “Second, the FBI repeatedly asserts that ‘[t]he information viewable in the remaining FDPS tabs is not static,’ . . . and the tabs are merely designed ‘to facilitate the workflow of processing FOIA/Privacy Act requests[]’ . . . .”  “This matters, according to the FBI, because the information is ‘administrative data of the case that changes, or in some cases may be overwritten, as the workflow of a request progresses.’”  “It goes without saying that [the] Court does not contemplate ordering the FBI to release data that has been overwritten or otherwise no longer exists.”  “Nor does this case require the Court to grapple with the question of when government-created and controlled information or data is sufficiently ephemeral to fall beyond the reach of FOIA.”  “Rather, the FOIA requests at issue in this case seek records relating to the processing of other FOIA requests well over a decade ago.”  “If the relevant entries in FDPS have been overwritten, so be it – although all responsive records should have been preserved as soon as the FOIA requests at issue in this case were received.”  “But if the relevant information still exists in any of the remaining tabs – as the FBI’s sample screenshots suggest—then the fact that FDPS is an interactive workspace, which can but need not necessarily change over time, should not make a difference.”  “Indeed, the same thing might be said of document prepared using standard word processing software: each key stroke changes the document, and the document can be overwritten or changed at any time.”  “But it would border on the absurd to suggest that a version of the document that has remained on the agency’s word processing file for over a decade is not an agency ‘record’ for purposes of FOIA merely because it can be overwritten and, at least as it was being prepared, it was not static.”
  
  “Third, the FBI argues that the only way that it could comply with Plaintiffs’ requests for information found in the remaining FDPS tabs would be to create screenshots of each page.”  “This argument, however, misunderstands Plaintiffs’ FOIA requests.”  “Those requests do not seek screenshots, and they certainly do not request that the FBI create new, previously non-existent records.”  “Rather, the requests seek the information found in the remaining FDPS tabs, and the screenshots are simply one way – and perhaps the FBI’s preferred way – of producing those extant agency records.”  “As Plaintiffs note, the FBI could fully comply with the FOIA requests by using (and, if necessary, creating) an export script, which would download the data in a readable format.”  “Notably, the FBI acknowledges that it ‘is not taking the position that the information viewable in the FDPS tabs would not be an agency record if it were maintained in another format that the FBI had created or retained, such as a printout or screenshot.’”  “But that information, which is recorded in the remaining FDPS tabs, is no less subject to FOIA than any other information that reflects the workings of government and that cannot be produced by simply hitting print, by copying an electronic file onto a flash drive, or downloading the information to an accessible website.”  “Any doubt regarding this conclusion is put firmly to rest by Congress's enactment of the e-FOIA amendment, which makes clear that an agency ‘record’ includes ‘any information that would be an agency record . . . when maintained by an agency in any format, including an electronic format.’”  “The FBI argues that the ‘“FDPS does not have a function that enables RIDS to print, extract, or export,” this “administrative data.”’”  “But the agency’s existing extraction functionality (or lack thereof) does not divest the public of the right to obtain the underlying information through an otherwise proper FOIA request.”
  
  “Finally, the FBI argues that producing the records at issue would involve a ‘gargantuan’ effort.”  “The Court is skeptical.”  “The FBI has already provided screenshots for 20 of the underlying requests, as it was required to do by the Court’s October 16, 2023 minute order.”  “By the FBI’s own estimate, the task of creating these screenshots required ‘a total estimated time of 9 hours.’”
  
  “The Court will, accordingly, order the FBI to continue the process of producing any non-exempt, responsive material found in the remaining 14 tabs of the FDPS.”  “But to be clear, if there is no data or information in a particular tab, the FBI’s task with respect to that tab has come to an end.”  “It need not, for example, produce a screenshot of an empty tab.”  “Nor is the FBI required to produce (segregable) information that is not responsive to Plaintiffs’ FOIA requests.”  “If the information contained in a tab has been overwritten with information relating to a FOIA request that has no bearing on this case, for example, the FBI need not produce that non-responsive material.”  “But where a tab contains information that is responsive to Plaintiffs’ long-pending FOIA requests, the FBI must release that material in a suitable format.”