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February 18, 2014

Another Judge Calls DOJ to Task for Its FOIA Processing

By Anne Weismann

Ex-Sen. John Ensign (R-NV)Last Friday U.S. District Court Judge John Bates joined a growing list of district court judges unhappy with how the Department of Justice is processing CREW’s FOIA requests.  In CREW v. DOJ, CREW’s lawsuit seeking documents related to DOJ’s investigation of former Senator John Ensign (R-NV), Judge Bates issued an opinion and order requiring DOJ to submit declarations describing the efforts of the FBI, the Criminal Division, and the Executive Office of U.S. Attorneys to process CREW’s requests, and denying DOJ’s request to process only a tiny sample of the documents.

DOJ had made the extraordinary request to conduct what it termed a “representative sampling” in lieu of processing all responsive documents.  Not only did Judge Bates describe this as “putting the cart before the horse,” but he called DOJ’s bluff, explaining what the agency really wants is “an advisory opinion on how the Court views its preliminary stances on withholding.”  The judge demurred, stating the court already has issued “a lengthy opinion ... on whether it [DOJ] appropriately withheld documents.”  Further, Judge Bates signaled his overall disagreement with the exemptions DOJ has claimed to date, advising DOJ components to “heed those views.”

In case after case where CREW has sought documents related to closed DOJ investigations of current and former members of Congress, DOJ has dragged its feet, making CREW wait years to receive any documents, and claiming broad exemptions the courts previously have rejected.  Judge Bates’ recent decision should cause DOJ to reevaluate its litigating stance, as well as the way in which DOJ components are handling CREW’s requests.

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