Rosenfeld v. DOJ, FBI

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1 ROSENFELD V. DOJ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case No. [ ] DWT 28595362v4 0200966-000001

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THOMAS R. BURKE (SBN 141930) KATHLEEN CULLINAN (SBN 287604) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111-6533 Telephone: 415.276.6500 Facsimile: 415.276.6599 [email protected]; [email protected] Attorneys for Plaintiff SETH ROSENFELD

IN THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SETH ROSENFELD, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION, an agency of the United States Department of Justice, Defendants.

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Case No. [ ] PLAINTIFF SETH ROSENFELD’S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATING THE FREEDOM OF INFORMATION ACT

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 1 of 17

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Plaintiff, Seth Rosenfeld, alleges as follows:

INTRODUCTION

1. Seth Rosenfeld, a professional journalist for more than 33 years, brings this action

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., as amended, seeking an

order that the U.S. Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”)

have wrongfully denied that he is entitled to fee waivers under FOIA as a representative of the

news media, whose request for records pertaining to government activities concerning the Black

Panther Party is clearly a matter of public interest. As the FBI knows, having fought Mr.

Rosenfeld for decades in previous rounds of FOIA litigation – and repeatedly lost – his status as a

journalist is beyond question. Indeed, the government’s sudden amnesia about Mr. Rosenfeld’s

professional background, and its decision to close not only the FOIA request at issue here but all

of Mr. Rosenfeld’s other pending requests, as well, are so bizarre as to suggest retaliation for his

resounding successes in his earlier FOIA lawsuits and his reporting based on FBI records.

Regardless of the motive, the plain and obvious truth is that Mr. Rosenfeld is, of course, a

representative of the news media within the meaning of FOIA, his request for records here is a

matter of public interest, and the government has stepped well beyond the limits of the law in both

assessing and refusing to waive his fees, and closing all his requests. If allowed to stand, the

government’s position would unlawfully bar an entire class of journalists – independent

investigative reporters – from receiving news media representative status, and subject them to

improper fees. It would interfere with their ability to gather news and impede the flow of

independently gathered information about important government operations, and thus harm the

public interest.

JURISDICTION

2. This court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and

28 U.S.C. § 1331.

VENUE

3. Venue in the Northern District of California is proper under 5 U.S.C. §

552(a)(4)(B), both because the records Mr. Rosenfeld seeks in the operable Newton Request are


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located or originated in the FBI’s San Francisco office, and because Mr. Rosenfeld lives in San

Francisco.

PARTIES

4. Plaintiff Seth Rosenfeld is a professional journalist who has focused much of his

career on investigating and reporting on the FBI’s activities during the latter half of the 20th

century, and particularly its conduct concerning social and political movements during the 1960s.

Mr. Rosenfeld is the author of a book on this subject, and his work has been widely published in

national newspapers and other media outlets, as will be discussed in greater detail below.

5. Defendants U.S. Department of Justice and Federal Bureau of Investigation are

federal agencies within the meaning of 5 U.S.C. § 552(f).

FACTS

6. The Freedom of Information Act provides that government agencies may collect

fees from requesters to cover the costs of searching for, reviewing, and duplicating the records

they seek. See 5 U.S.C. § 552(a)(4)(A). Only duplication fees may be charged to certain

categories of noncommercial requesters – including “a representative of the news media,” which is

defined as “any person or entity that gathers information of potential interest to a segment of the

public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that

work to an audience.” Id. at (ii) (the “News Media Waiver”). In addition, a requester should be

charged a reduced rate or nothing at all “if disclosure of the information is in the public interest

because it is likely to contribute significantly to public understanding of the operations or

activities of the government and is not primarily in the commercial interest of the requester.” Id.

at (iii) (the “Public Interest Waiver”).

Mr. Rosenfeld’s Decades-Long Career as a Journalist

7. Mr. Rosenfeld is an award-winning investigative journalist whose career in news

began in the late 1970s, when he was a University of California at Berkeley journalism student

writing for the Daily Californian student newspaper. He was hired in 1984 to work as a reporter

for the San Francisco Examiner, and moved in 2000 to a reporting position at the San Francisco

Chronicle, where he stayed until 2009. During that three-decade span, Mr. Rosenfeld spent


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considerable time independently investigating and reporting on the FBI’s domestic intelligence

operations during the Cold War with respect to First Amendment activities, particularly in regard

to the University of California, the Free Speech Movement, the civil rights, antiwar and other

social protest movements, and Ronald Reagan in the years before he became president. Mr.

Rosenfeld’s published news reports shed light on how the FBI’s clandestine activities interfered

with academic freedom, infringed on civil liberties, and influenced the political system. Much of

this work was based on documents Mr. Rosenfeld sought and received – often only in response to

a court order – under FOIA. For instance, in 2002, Mr. Rosenfeld wrote a series of articles for the

San Francisco Chronicle entitled “The Campus Files,” which used FBI records to expose the

agency’s unconstitutional and unlawful activities at the University of California, such as its efforts

to have Clark Kerr fired as president of the university because of his political views and campus

policies. That series won multiple awards and received widespread national media attention.

8. In 2009, Mr. Rosenfeld left the Chronicle to continue his investigative reporting

career as a freelance journalist and book author, which he has pursued ever since. His freelance

work has been published in The New York Times, the Los Angeles Times, California Magazine,

and Harper’s Magazine, among others. Mr. Rosenfeld also is and has been since 2012 a

correspondent for the Center for Investigative Reporting, a widely respected news media

organization that produces and nationally distributes investigative reports for print and electronic

media through its website and through Reveal, its nationally syndicated radio program. At all

times, Mr. Rosenfeld has continued his journalistic research into the FBI’s activities during the

Cold War – particularly as they concern social and political movements and important

constitutional rights – and has relied on FOIA, as well as the News Media and Public Interest

Waivers he routinely received, to obtain the records that illuminate these issues. As is typical for

investigative reporters, Mr. Rosenfeld’s articles require extensive research, not to mention time

spent pressing the government to process his FOIA requests, and so he publishes less frequently

than a daily journalist might. But when he publishes his reports, Mr. Rosenfeld’s readership and

the broader public reap the benefits of that extra labor.


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Mr. Rosenfeld Authors Subversives After Obtaining FBI Records

Through Decades of FOIA Litigation

9. In 2012, for instance, Mr. Rosenfeld’s acclaimed investigative book Subversives:

The FBI’s War on Student Radicals, and Reagan’s Rise to Power was published, a result of Mr.

Rosenfeld’s decades-long FOIA litigation with the FBI over the release of, ultimately, about

300,000 pages of public records:

a. Between 1981 and 1984, Mr. Rosenfeld submitted a series of FOIA requests to the FBI for records pertaining to its investigation of, among other things, the Free Speech Movement, which protested against restrictions on campus-based political activities in the 1960s. Mr. Rosenfeld filed a lawsuit in 1985 in the Northern District of California, seeking release of documents the FBI withheld in response to his requests. Notably, the court ruled relatively early in the litigation that Mr. Rosenfeld was entitled to a Public Interest Waiver. See Rosenfeld v. Dep’t of Justice, Memorandum and Order, Case No. C-85-2247-MHP, at 2 (N.D. Cal. Oct. 29, 1985). Attached as Exhibit A is a true and correct copy of that ruling.

b. The district court issued a ruling on the applicability of certain FOIA exemptions that ultimately led to the release of information in about 200,000 pages of documents; in 1995, the Ninth Circuit largely affirmed that ruling. The court concluded, based on the records at issue, that the FBI had not had a legitimate law enforcement purpose for portions of its investigation of the 1964 Free Speech Movement, and that it had compiled some of the records to harass political opponents. A 2006 internal FBI memorandum reviewing Mr. Rosenfeld’s litigation quoted the former FBI general counsel as saying that, while there must be another side to the story, “it appears that we were advancing arguments that bordered on the frivolous in order to cover our own previous misconduct.” Attached as Exhibits B and C are true and correct copies of that ruling and the memorandum.

c. In 1996, Mr. Rosenfeld and the FBI entered into a settlement agreement requiring the FBI to process and produce certain records within one year, and to pay his attorney’s fees in the amount of $560,000. In 2006, Mr. Rosenfeld brought a motion challenging the government’s compliance with the settlement agreement and again prevailed, with the court ordering the FBI to search for and process additional records and awarding Mr. Rosenfeld an additional $107,242.15 in attorney’s fees. Significantly, in its fee order, the court noted that “Seth Rosenfeld is a professional journalist” whose writing on “the FBI’s activities in connection with the University of California during the Cold War” drew “extensively on FBI records released pursuant to the Freedom of Information Act.” Rosenfeld v. Dep’t of Justice, 903 F. Supp. 2d 859, 863 (N.D. Cal. Oct. 17, 2012) (internal quotations omitted). Attached as Exhibit D is a true and correct copy of that ruling.

10. Subversives expanded on Mr. Rosenfeld’s earlier publications and examined the

FBI’s secret activities concerning the statewide UC system, as well as political and cultural figures

in the greater community. It was a New York Times bestseller, reviewed in the Times as well as

the Wall Street Journal, the Boston Globe, the San Francisco Chronicle, and the New York Review


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of Books. Mr. Rosenfeld was interviewed by numerous national news outlets about his reporting,

including C-SPAN and the radio program Fresh Air, and again won several literary and journalism

awards for his work. This attention demonstrates the keen public interest in, and broad national

audience for, Mr. Rosenfeld’s reporting on the FBI.

Mr. Rosenfeld Uses Documents From Another FOIA Victory To Publish National

Articles on the FBI

11. More recently, Mr. Rosenfeld successfully sued the Department of Justice under

FOIA for records concerning, among other things, the FBI’s relationship with Ronald Reagan in

the years before he became president, and in this matter he ultimately received thousands of pages

of records and an attorney’s fee award of $363,217.60. In one ruling, the court noted that

“Rosenfeld is a professional journalist who, over the past 30 years, has extensively researched and

written about the FBI’s activities in connection with the University of California during the Cold

War.” Rosenfeld v. Dep’t of Justice, Memorandum & Order, No. 3:07-cv-03240-EMC, Dkt. 115

(Feb. 23, 2011). Mr. Rosenfeld used the records he received in this litigation to write Subversives

as well as articles for the New York Times, Harper’s Magazine, and other publications. A true and

correct copy of the court’s ruling is attached as Exhibit E.

12. From courts to the government itself, no one has doubted Mr. Rosenfeld’s status as

a representative of the news media – until this year, when the FBI and DOJ suddenly determined

that he was no longer eligible for the fee waivers that journalists are statutorily entitled to receive,

unilaterally closing multiple then-pending FOIA requests to the FBI that Mr. Rosenfeld had made

to further his reporting on FBI activities.

Mr. Rosenfeld’s FOIA Requests Concerning the FBI’s Investigation of Huey Newton

13. On Oct. 17, 2014, Mr. Rosenfeld submitted a written FOIA request to the FBI

seeking “any and all records in any way concerning Huey P. Newton … a founder of the Black

Panther Party” (the “Newton Request”). In the interest of “expediting this request,” Mr. Rosenfeld

committed to paying up to $200 for the records and reserved his right to pursue a fee waiver at a

later point. Attached as Exhibit F is a true and correct copy of Mr. Rosenfeld’s FOIA request.


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14. On Nov. 10, 2014, the FBI acknowledged receipt of the Newton Request, assigned

it FOIPA Request No. 1307712-000, and indicated that it was “searching the indices to our Central

Records System for the information responsive to this request.” Attached as Exhibit G is a true

and correct copy of that letter.

15. On December 22, 2014, the FBI wrote to Mr. Rosenfeld that it had located records

that were potentially responsive to the Newton Request. In the process, the FBI wrote, it had

exhausted the two hours of free search time that FOIA provides to non-commercial requesters, 5

U.S.C. § 552(a)(4)(A)(iv)(II), as well as a third hour at a cost of $25. “In order to continue

processing [the] request,” the FBI instructed that Mr. Rosenfeld had to pay the $25 and “advise if

you want us to continue searching for additional records and state how much you are willing to

pay for additional search fees.” If he did not pay the $25 within 30 days, the FBI wrote that it

would close the Newton Request. Attached as Exhibit H is a true and correct copy of that letter.

16. On January 16, 2015, Mr. Rosenfeld paid the $25 that the FBI had requested.

Attached as Exhibit I is a true and correct copy of the webpage where he submitted that payment.

17. On March 18, 2015, Mr. Rosenfeld wrote to ask the FBI to “refund search fees that

were improperly charged to me in 2014 and 2015” in several of his FOIA requests, including the

$25 he had paid for the Newton Request. Mr. Rosenfeld explained that, “[a]t all times the FBI

knew that I was a news media requester and/or a noncommercial requester … and that I was

therefore statutorily entitled to a waiver of all search fees.” Attached as Exhibit J is a true and

correct copy of that letter.

18. On April 9, 2015, the FBI responded that the fees were “properly assessed” in the

Newton Request, among others, and specifically determined that Mr. Rosenfeld did “not qualify”

under FOIA as a representative of the news media for four reasons: (1) “You failed to

demonstrate that you or your entity gathers information of potential interest to a segment of the

public”; (2) “[y]ou failed to demonstrate that you or your entity use editorial skills to turn raw

information into a distinct work”; (3) “[y]ou failed to demonstrate that you or your entity can

distribute a distinct work to an audience”; and (4) “[y]ou failed to provide a solid basis to


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demonstrate that you are a freelance journalist expecting publication through a news-media

entity”. Attached as Exhibit K is a true and correct copy of that letter.

19. On April 20, 2015, Mr. Rosenfeld appealed to the Office of Information and Policy

(“OIP”), an office within the Department of Justice, from the FBI’s determination that he is not a

representative of the news media for purposes of the Newton Request, among others. Mr.

Rosenfeld described his extensive career as a journalist, working for the San Francisco Examiner

and Chronicle and, “[f]rom 2009 to date,” publishing his works through numerous other national

outlets. He described his work on Subversives and the centrality of public records to his reporting.

He also quoted the court opinions that described him as a professional journalist. Attached as

Exhibit L is a true and correct copy of that letter.

20. Also on April 20, 2015, in a supplementary letter to OIP, Mr. Rosenfeld provided

four links to webpages, including his biography as a correspondent for the Center for Investigative

Reporting, that “confirm I am a professional journalist[.]” Attached as Exhibit M is a true and


21. On May 4, 2015, in another supplementary letter to OIP, Mr. Rosenfeld attached a

September 17, 2012 letter he had received from the FBI granting him a News Media Waiver in

another FOIA request and refunding him for fees that he had paid. Attached as Exhibit N is a true

and correct copy of Mr. Rosenfeld’s letter and the attachment.

22. On June 29, 2015, the FBI wrote Mr. Rosenfeld to tell him that, in accordance with

his commitment to pay up to $200 in search fees for the Newton Request, it had exhausted the

statutorily provided two free hours’ worth of search time, and continued searching for a total cost

of $200, which was now due. If he did not pay that amount within 30 days, the FBI warned that

the Newton Request would be closed. Attached as Exhibit O is a true and correct copy of that

letter.

23. On July 1, 2015, OIP ruled on Mr. Rosenfeld’s April 20, 2015 appeal in the

Newton Request, among others, and affirmed the FBI’s determination that he was not a

“representative of the news media” for fee-waiver purposes. Relying in part on DOJ’s regulatory

definition of the term, which has not been updated to reflect Congress’s 2007 amendments to


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FOIA, OIP determined that, as a freelance journalist, Mr. Rosenfeld had not demonstrated a solid

basis for expecting publication through a news media entity. Based on the web addresses Mr.

Rosenfeld provided, OIP wrote that “it does not appear that you have published a news article

since 2012.” Instead, “it seems from a few of the links you provided that you are now writing a

follow-up book to Subversives rather than preparing news articles.” OIP determined that Mr.

Rosenfeld had not shown “any connection to a news organization for purposes of writing news

articles about the subject of your request” and, therefore, had not established that he is “a

representative of the news media for fee category purposes.” Attached as Exhibit P is a true and


24. On August 15, 2015, Mr. Rosenfeld wrote a “further appeal” in response to OIP’s

July 1, 2015 letter, providing additional information to prove that he is, in fact, a journalist. In

response to OIP’s determination that he had failed to show a connection to a news organization,

Mr. Rosenfeld pointed again to the link he had sent for the Center for Investigative Reporting’s

website, which lists him as a correspondent. To show that he has published continually since

2012, Mr. Rosenfeld pointed to his original statement that he had been a working freelance

journalist continually since 2009, and provided links to articles he had written between 2013 and

2015. Attached as Exhibit Q is a true and correct copy of that letter.

25. On August 18, 2015, Mr. Rosenfeld wrote to the FBI, in response to its June 29,

2015 request for $200 in search fees, renewing his request for a News Media Waiver of the search

fees and now seeking a Public Interest Waiver of any applicable duplication fees, as well. To ease

the burden of processing, he also reduced the scope of the Newton Request from records kept at

FBI headquarters and in any field office, to solely the responsive San Francisco field office

records. Once again, Mr. Rosenfeld provided his professional biography to demonstrate his

entitlement to the News Media Waiver, and provided information about the historical importance

of the records sought in the Newton Request in order to establish that he deserved a Public Interest

Waiver. Mr. Rosenfeld explained that the FBI’s focus on Huey Newton is of great and

longstanding interest to the public. He wrote that the FBI investigative records he sought were

unique in comparison with other Newton documents the agency has previously released because


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the San Francisco field office played a lead role in carrying out the Newton investigations, and

would have kept records containing “voluminous” new and more detailed information that, “taken

as a whole[,] show[s] how that investigation was conducted at the field level on a day-to-day

basis.” Mr. Rosenfeld wrote that he intended to use the records not to package and resell the data,

or for some other commercial purpose, but rather “to research articles and books for publication

that will distribute newsworthy information concerning the aforementioned government

operations[.]” He concluded: “Given the public’s great interest in the FBI’s activities concerning

Newton, there is no doubt that the release of the San Francisco FBI records concerning him will

substantially enhance the public understanding of this subject, as well as of FBI operations in

regard to other matters described above such [as] civil and constitutional rights during a time of

great racial unrest and societal change.” Attached as Exhibit R is a true and correct copy of that

letter.

26. Also on August 18, 2015, Mr. Rosenfeld appealed to OIP from the FBI’s June 29,

2015 demand that he pay search and duplication fees, and provided OIP with much the same

information in support of his appeal as he had given the FBI in the letter described in Exhibit R.

Attached as Exhibit S is a true and correct copy of that letter to OIP.

27. On September 3, 2015, the FBI denied Mr. Rosenfeld’s August 18, 2015 request

for fee waivers. The FBI concluded that he was not entitled to a Public Interest Waiver because

the public “understanding of the subject in question would not be enhanced by the disclosure to a

significant extent.” Nor did the FBI budge from its determination that Mr. Rosenfeld was not

entitled to a News-Media Waiver, since OIP had affirmed that ruling in its July 1, 2015 letter.

Finally, the FBI advised that, until Mr. Rosenfeld paid the $200 in search fees that were due, the

Newton Request “will remain closed.” Attached as Exhibit T is a true and correct copy of that

letter.

The FBI Closes Mr. Rosenfeld’s FOIA Requests

28. On September 16, 2015, the FBI wrote to advise Mr. Rosenfeld that, because he

had not paid the $200 search fee in the Newton Request, “any requests you currently have open

are being closed administratively. In addition, no action is being taken for any requests you


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recently submitted due to your failure to pay search fees [in this request].” The agency would only

resume processing the Newton Request if he paid the $200 he owed. Attached as Exhibit U is a

true and correct copy of that letter.

29. Also on September 16, 2015, Mr. Rosenfeld appealed to OIP from the FBI’s

September 3, 2015 denial of his request for News Media and Public Interest Waivers. He noted

that, since OIP first affirmed the denial of his news-media status in July, he had “provided both the

FBI and you … with additional information concerning my status” as a professional journalist.

Mr. Rosenfeld also appealed the FBI’s decision to close the Newton Request. Attached as Exhibit

V is a true and correct copy of that letter.

30. On September 22, 2015, Mr. Rosenfeld wrote to OIP to “further appeal” the FBI’s

denial of his fee-waiver requests, as well as its closure of the Newton Request and “all of my

pending FOIA requests because I have not paid the $200 that the FBI is demanding in this case.”

Attached as Exhibit W is a true and correct copy of that letter.

The FBI Confirms Its Closure and Vows Not to Process New FOIA Requests Made

By Mr. Rosenfeld

31. On November 24, 2015, the FBI again advised Mr. Rosenfeld that it had closed the

Newton Request and numerous others for non-payment of the $200 in search fees, would not

process new requests from Mr. Rosenfeld until that amount was paid, and even then would require

him to submit all new requests for the records that he had been seeking. Attached as Exhibit X is

a true and correct copy of that letter.

32. Among the requests the FBI closed were Nos. 1329141-000, in which Mr.

Rosenfeld sought agency records pertaining to the World War II-era Topaz Internment Camp in

Utah (the “Topaz Request”), and 1331946-000, in which he sought FBI files on the Black Panther

Party’s involvement with weapons (the “Black Panther Weapons Request”). Mr. Rosenfeld

requested fee waivers for both, and submitted essentially the same documentation of his

professional background and plans for publication as he had provided the FBI in the Newton

Request. Notably, in a letter dated May 28, 2015 responding to the Topaz Request, the FBI

acknowledged Mr. Rosenfeld’s status as a representative of the news media and granted his


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request for a News Media waiver. But in a comparable letter on the Black Panther Weapons

Request, dated July 11, 2015, the FBI rejected his News-Media waiver request. Of course,

nothing about Mr. Rosenfeld’s professional status changed between (1) April 9, when the FBI

determined that he was not a journalist for purposes of the Newton Request; (2) May 28, when it

decided he was a journalist for purposes of the Topaz Request; and (3) July 11, 2015, when the

agency flip-flopped once again and relegated him to the category of a general requester for

purposes of the Black Panther Weapons Request. Moreover, the agency unilaterally closed the

Topaz Request – even after concluding in it that Mr. Rosenfeld qualified for a News Media Waiver

– because it had inexplicably reached the opposite conclusion about his professional standing in

the Newton Request. Attached as Exhibits Y and Z are true and correct copies of the relevant

correspondence between Mr. Rosenfeld and the government relating to these requests.

33. On December 9, 2015, Mr. Rosenfeld appealed to OIP “all of the actions taken by

the FBI in its letter to me dated November 24, 2015” in the Newton Request, including its refusal

to waive search and duplication fees; its closure of the Newton Requests and others; and its refusal

to open and process new requests from him. In support of his appeal, Mr. Rosenfeld incorporated

all of his prior correspondence with OIP in the Newton Request and other matters. Attached as

Exhibit AA is a true and correct copy of that letter.

34. On December 14, 2015, OIP acknowledged that it had received Mr. Rosenfeld’s

appeal on December 9, 2015, but to date has issued no decision on it. Attached as Exhibit BB is a

true and correct copy of that letter.

35. By the terms of 5 U.S.C. § 552(a)(4)(A)(ii), Mr. Rosenfeld is – and repeatedly has

proven to OIP and the FBI that he is – a representative of the news media entitled to a waiver of

search fees. Nothing in the nature of his profession has changed since September 17, 2012, when

the FBI readily granted him a News Media Waiver in the letter attached at Exhibit N. The only

obstacle standing in the way of Mr. Rosenfeld’s journalism is the FBI, which, by closing each of

his pending FOIA requests, shut off a vital source of the information he needs in order to report.

The FBI is well aware that he is a seasoned investigative journalist and a correspondent for a

nationally distributed publication who, following his pattern, uses FOIA to obtain records, studies


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and analyzes the documents he receives, and uses them as the basis for various publications, such

as newspaper, website, and magazine articles, as well as a book. He precisely fits the statutory

definition of a journalist; his intent and ability to disseminate news to the public, and his plans to

do so here, are beyond question. For the government to deny these facts even once, let alone

repeatedly, is patently absurd. He has repeatedly used FOIA to expose improper FBI activities

and has won more than $1 million in attorneys’ fees. Indeed, by refusing to process this or any

other request for records he may submit, despite its longstanding awareness of the crucial role that

FOIA requests play in Mr. Rosenfeld’s journalistic career, the FBI is essentially trying to stop his

reporting on it.

36. Mr. Rosenfeld also has established that the Newton Request will contribute

significantly to public understanding of government operations and activities, as FOIA requires

under 5 U.S.C. § 552(a)(4)(A)(iii) for a Public Interest Waiver of the remaining duplication fees

that Mr. Rosenfeld would otherwise owe. The Newton Request seeks records that directly pertain

to federal government activities – specifically, the FBI investigation of Huey Newton – and would

shed new and meaningful light on significant aspects of that investigation. As the FBI knows,

since it has a standing webpage on FBI.gov devoted to an earlier-released portion of its records on

Huey Newton, the public takes a great interest in Newton’s life and the federal government’s

activities concerning him. Mr. Rosenfeld has amply demonstrated that a Public Interest Waiver is

appropriate here.

37. Moreover, even before the FBI erroneously determined that Mr. Rosenfeld did not

qualify for these fee waivers, it had already waived its entitlement to seek fees of any sort in this

matter under 5 U.S.C. § 552(a)(4)(A)(viii). That subparagraph provides that an agency that “fails

to comply with any time limit” that FOIA imposes on agencies for responding to requests for

records “shall not assess search fees (or in the case of [a journalist], duplication fees)[.]” Id.

FOIA provides agencies with 20 days after receiving a request, excluding weekends and holidays,

to decide whether to comply with it. Id. at (a)(6). That 20-day period can be tolled in limited

circumstances, the only one of which that could apply in this case is to “clarify with the requester

issues regarding fee assessment … [T]he agency’s receipt of the requester’s response to the


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agency’s request for information or clarification ends the tolling period.” Id. at (a)(6)(A)(ii)(II).

Here, Mr. Rosenfeld submitted the Newton Request on October 17, 2014, and on November 10,

2014, the FBI acknowledged that it had received the request (without specifying exactly when).

The FBI’s first substantive response – notifying Mr. Rosenfeld that it had records that were

responsive to his request, and for the first time asking that he submit fee payments – was dated

December 22, 2014. Even if the FBI somehow did not receive Mr. Rosenfeld’s October 17

request until November 10, it had already exceeded the twenty-day FOIA deadline by nine

statutory days in December when it sent its initial substantive response, for the first time tolling

the response date. When Mr. Rosenfeld submitted the requested payment on January 16, 2015, the

tolling period ended; the Newton Request nonetheless languished until June 29, 2015, when the

FBI next substantively responded. Having vastly exceeded, by any measure, the statutory

deadline to respond to the Newton Request, the FBI waived its right to seek fees of any sort from

Mr. Rosenfeld.

38. Nearly lost in this administrative briar patch are the 3,622 pages of FBI records that

the government has acknowledged are responsive to the Newton Request. Both because the FBI

wrongly denied Mr. Rosenfeld’s entitlement to fee waivers, and because it gave up the right to

seek fees against him anyway by responding to him outside the statutory deadline, the government

is now simply violating the law by refusing to release those and other responsive records. They

must be processed and provided to Mr. Rosenfeld at once.

Violation of FOIA for Failure to Acknowledge That Mr. Rosenfeld Is a News-Media

Representative, and the Newton Request Is In The Public Interest

39. Mr. Rosenfeld repeats and realleges the allegations contained in paragraphs 1

through 38 above, inclusive.

40. As an established representative of the news media, within the meaning of that term

provided in 5 U.S.C. § 552(a)(4)(A)(ii), Mr. Rosenfeld has a legal right to a waiver of search fees

for the Newton Request, and there exists no legal basis for the government’s failure to

acknowledge as much and provide him with it.


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41. Moreover, because Mr. Rosenfeld has established that the Newton Request falls

within the provision in 5 U.S.C. § 552(a)(4)(A)(iii) for records whose disclosure serves the public

interest, he is entitled to a further waiver of fees on that basis.

42. The government’s failure to grant Mr. Rosenfeld these fee waivers violates FOIA,

and applicable regulations thereunder.

Violation of FOIA for Unlawful Assessment of Fees



44. The government received Mr. Rosenfeld’s October 17, 2014 Newton Request at

least as of November 10, 2014, and probably days or weeks before that. The FBI’s first

substantive response to the Newton Request was dated December 22, 2014. Excluding weekends

and public holidays, that substantive response was at least nine days past the deadline FOIA sets

for agencies to respond to requests, under 5 U.S.C. § 552(a)(6).

45. An agency that violates FOIA’s 20-day deadline for responding to a request waives

its right to assess search fees or, in the case of a journalist to whom search fees already do not

apply, duplication fees.

46. The government’s assessment of fees against Mr. Rosenfeld, even though its first

substantive response to the Newton Request fell well beyond the statutory deadline, also is a

violation of FOIA, 5 U.S.C. § 552(a)(6) and (a)(4)(A)(viii). Indeed, the government’s closure of

the Newton Request, and its refusal to process any other pending or future FOIA requests Mr.

Rosenfeld may submit, for nonpayment of fees that were improperly assessed against him in the

first place, is unlawful and an outright abuse of its authority.

Violation of FOIA for Unlawful Withholding of Records

Responsive to the Newton Request



48. Mr. Rosenfeld has a legal right under FOIA to obtain the agency records he

requested on October 17, 2014. Since the government has acknowledged that it has records that


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are responsive to the Newton Request, and since it has not asserted that the records fall into any of

FOIA’s categorical exemptions for records that may be withheld, there exists no legal basis for the

FBI’s failure to make these records available to him – now more than a year after it received the

request.

49. The government’s failure to promptly make the records available to him violates

FOIA, 5 U.S.C. § 552(a)(3)(A) and (a)(6)(A)(ii), and applicable regulations promulgated

thereunder.

WHEREFORE, Mr. Rosenfeld requests that this Court award it the following relief:

50. Declare that DOJ and the FBI have violated FOIA by repeatedly refusing to

acknowledge that Mr. Rosenfeld qualifies as a representative of the news media under the statute;

51. Declare that DOJ and the FBI have violated FOIA by refusing to grant Mr.

Rosenfeld’s fee-waiver requests;

52. Declare that DOJ and the FBI have violated FOIA by assessing fees against Mr.

Rosenfeld after exceeding the statutory deadline for responding to his request;

53. Declare that DOJ and the FBI have violated FOIA by closing the Newton Request

and all of Mr. Rosenfeld’s other pending requests, and refusing to process any new requests from

him;

54. Declare that DOJ and the FBI have violated FOIA by refusing to release the

records that are responsive to the Newton Request;

55. Order the FBI to immediately grant Mr. Rosenfeld the News Media and Public

Interest Waivers to which he is entitled;

56. Order the FBI to immediately reopen and process the Newton Request, and

immediately release the records that are responsive to that request;

57. Order the FBI to immediately reopen, process, and release records that are

responsive to those of Mr. Rosenfeld’s other pending FOIA requests that it closed for nonpayment

of unlawfully assessed fees, including the Topaz and Black Panther Weapons Requests, and lift its

ban on Mr. Rosenfeld’s submission of future FOIA requests;

58. Award Mr. Rosenfeld his reasonable costs and attorneys’ fees;


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59. Grant such other relief as the Court may deem just and proper.

DATED this 9th day of March, 2016 DAVIS WRIGHT TREMAINE LLP

_/s/ Thomas R. Burke ___________ THOMAS R. BURKE Attorneys for Plaintiff SETH ROSENFELD
