Rosenfeld v. DOJ, FBI

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 1 of 17
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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
thomasburke@dwt.com; kathleencullinan@dwt.com
Attorneys for Plaintiff SETH ROSENFELD
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IN THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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SETH ROSENFELD,
Plaintiff,
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v.
UNITED STATES DEPARTMENT OF
JUSTICE; FEDERAL BUREAU OF
INVESTIGATION, an agency of the United
States Department of Justice,
Defendants.
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PLAINTIFF SETH ROSENFELDS

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF FOR
VIOLATING THE FREEDOM OF
INFORMATION ACT
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ROSENFELD V. DOJ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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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
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journalist is beyond question. Indeed, the governments sudden amnesia about Mr. Rosenfelds
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professional background, and its decision to close not only the FOIA request at issue here but all
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of Mr. Rosenfelds other pending requests, as well, are so bizarre as to suggest retaliation for his
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resounding successes in his earlier FOIA lawsuits and his reporting based on FBI records.
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Regardless of the motive, the plain and obvious truth is that Mr. Rosenfeld is, of course, a
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representative of the news media within the meaning of FOIA, his request for records here is a
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matter of public interest, and the government has stepped well beyond the limits of the law in both
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assessing and refusing to waive his fees, and closing all his requests. If allowed to stand, the
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governments position would unlawfully bar an entire class of journalists independent
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investigative reporters from receiving news media representative status, and subject them to
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improper fees. It would interfere with their ability to gather news and impede the flow of
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independently gathered information about important government operations, and thus harm the
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public interest.
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JURISDICTION
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2.
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28 U.S.C. 1331.
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This court has jurisdiction over this action pursuant to 5 U.S.C. 552(a)(4)(B) and
VENUE
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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 FBIs San Francisco office, and because Mr. Rosenfeld lives in San
Francisco.
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4.
Plaintiff Seth Rosenfeld is a professional journalist who has focused much of his
career on investigating and reporting on the FBIs 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.
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PARTIES
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Defendants U.S. Department of Justice and Federal Bureau of Investigation are
federal agencies within the meaning of 5 U.S.C. 552(f).
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FACTS
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The Freedom of Information Act provides that government agencies may collect
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fees from requesters to cover the costs of searching for, reviewing, and duplicating the records
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they seek. See 5 U.S.C. 552(a)(4)(A). Only duplication fees may be charged to certain
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categories of noncommercial requesters including a representative of the news media, which is
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defined as any person or entity that gathers information of potential interest to a segment of the
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public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that
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work to an audience. Id. at (ii) (the News Media Waiver). In addition, a requester should be
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charged a reduced rate or nothing at all if disclosure of the information is in the public interest
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because it is likely to contribute significantly to public understanding of the operations or
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activities of the government and is not primarily in the commercial interest of the requester. Id.
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at (iii) (the Public Interest Waiver).
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Mr. Rosenfelds Decades-Long Career as a Journalist

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Mr. Rosenfeld is an award-winning investigative journalist whose career in news
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began in the late 1970s, when he was a University of California at Berkeley journalism student
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writing for the Daily Californian student newspaper. He was hired in 1984 to work as a reporter
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for the San Francisco Examiner, and moved in 2000 to a reporting position at the San Francisco
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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 FBIs 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.
Rosenfelds published news reports shed light on how the FBIs 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
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agencys unconstitutional and unlawful activities at the University of California, such as its efforts
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to have Clark Kerr fired as president of the university because of his political views and campus
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policies. That series won multiple awards and received widespread national media attention.
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In 2009, Mr. Rosenfeld left the Chronicle to continue his investigative reporting
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career as a freelance journalist and book author, which he has pursued ever since. His freelance
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work has been published in The New York Times, the Los Angeles Times, California Magazine,
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and Harpers Magazine, among others. Mr. Rosenfeld also is and has been since 2012 a
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correspondent for the Center for Investigative Reporting, a widely respected news media
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organization that produces and nationally distributes investigative reports for print and electronic
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media through its website and through Reveal, its nationally syndicated radio program. At all
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times, Mr. Rosenfeld has continued his journalistic research into the FBIs activities during the
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Cold War particularly as they concern social and political movements and important
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constitutional rights and has relied on FOIA, as well as the News Media and Public Interest
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Waivers he routinely received, to obtain the records that illuminate these issues. As is typical for
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investigative reporters, Mr. Rosenfelds articles require extensive research, not to mention time
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spent pressing the government to process his FOIA requests, and so he publishes less frequently
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than a daily journalist might. But when he publishes his reports, Mr. Rosenfelds readership and
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the broader public reap the benefits of that extra labor.
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Mr. Rosenfeld Authors Subversives After Obtaining FBI Records
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Through Decades of FOIA Litigation

9.
The FBIs War on Student Radicals, and Reagans Rise to Power was published, a result of Mr.
Rosenfelds 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. Dept
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.
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In 2012, for instance, Mr. Rosenfelds acclaimed investigative book Subversives:
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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. Rosenfelds
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.
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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 attorneys fees in the amount of $560,000. In 2006, Mr. Rosenfeld brought
a motion challenging the governments 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
attorneys fees. Significantly, in its fee order, the court noted that Seth Rosenfeld
is a professional journalist whose writing on the FBIs 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. Dept
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.
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10.
Subversives expanded on Mr. Rosenfelds earlier publications and examined the
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FBIs secret activities concerning the statewide UC system, as well as political and cultural figures
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in the greater community. It was a New York Times bestseller, reviewed in the Times as well as
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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. Rosenfelds 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 FBIs relationship with Ronald Reagan in
the years before he became president, and in this matter he ultimately received thousands of pages
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of records and an attorneys fee award of $363,217.60. In one ruling, the court noted that
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Rosenfeld is a professional journalist who, over the past 30 years, has extensively researched and
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written about the FBIs activities in connection with the University of California during the Cold
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War. Rosenfeld v. Dept of Justice, Memorandum & Order, No. 3:07-cv-03240-EMC, Dkt. 115
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(Feb. 23, 2011). Mr. Rosenfeld used the records he received in this litigation to write Subversives
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as well as articles for the New York Times, Harpers Magazine, and other publications. A true and
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correct copy of the courts ruling is attached as Exhibit E.
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From courts to the government itself, no one has doubted Mr. Rosenfelds status as
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a representative of the news media until this year, when the FBI and DOJ suddenly determined
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that he was no longer eligible for the fee waivers that journalists are statutorily entitled to receive,
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unilaterally closing multiple then-pending FOIA requests to the FBI that Mr. Rosenfeld had made
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to further his reporting on FBI activities.
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Mr. Rosenfelds FOIA Requests Concerning the FBIs Investigation of Huey Newton
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13.
On Oct. 17, 2014, Mr. Rosenfeld submitted a written FOIA request to the FBI
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seeking any and all records in any way concerning Huey P. Newton a founder of the Black
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Panther Party (the Newton Request). In the interest of expediting this request, Mr. Rosenfeld
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committed to paying up to $200 for the records and reserved his right to pursue a fee waiver at a
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later point. Attached as Exhibit F is a true and correct copy of Mr. Rosenfelds FOIA request.
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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.
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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
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you want us to continue searching for additional records and state how much you are willing to
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pay for additional search fees. If he did not pay the $25 within 30 days, the FBI wrote that it
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would close the Newton Request. Attached as Exhibit H is a true and correct copy of that letter.
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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.
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On March 18, 2015, Mr. Rosenfeld wrote to ask the FBI to refund search fees that
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were improperly charged to me in 2014 and 2015 in several of his FOIA requests, including the
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$25 he had paid for the Newton Request. Mr. Rosenfeld explained that, [a]t all times the FBI
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knew that I was a news media requester and/or a noncommercial requester and that I was
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therefore statutorily entitled to a waiver of all search fees. Attached as Exhibit J is a true and
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correct copy of that letter.
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18.
On April 9, 2015, the FBI responded that the fees were properly assessed in the
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Newton Request, among others, and specifically determined that Mr. Rosenfeld did not qualify
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under FOIA as a representative of the news media for four reasons: (1) You failed to
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demonstrate that you or your entity gathers information of potential interest to a segment of the
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public; (2) [y]ou failed to demonstrate that you or your entity use editorial skills to turn raw
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information into a distinct work; (3) [y]ou failed to demonstrate that you or your entity can
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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.
On April 20, 2015, Mr. Rosenfeld appealed to the Office of Information and Policy
(OIP), an office within the Department of Justice, from the FBIs 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
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Exhibit L is a true and correct copy of that letter.
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Also on April 20, 2015, in a supplementary letter to OIP, Mr. Rosenfeld provided
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four links to webpages, including his biography as a correspondent for the Center for Investigative
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Reporting, that confirm I am a professional journalist[.] Attached as Exhibit M is a true and
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On May 4, 2015, in another supplementary letter to OIP, Mr. Rosenfeld attached a
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September 17, 2012 letter he had received from the FBI granting him a News Media Waiver in
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another FOIA request and refunding him for fees that he had paid. Attached as Exhibit N is a true
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and correct copy of Mr. Rosenfelds letter and the attachment.
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22.
On June 29, 2015, the FBI wrote Mr. Rosenfeld to tell him that, in accordance with
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his commitment to pay up to $200 in search fees for the Newton Request, it had exhausted the
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statutorily provided two free hours worth of search time, and continued searching for a total cost
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of $200, which was now due. If he did not pay that amount within 30 days, the FBI warned that
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the Newton Request would be closed. Attached as Exhibit O is a true and correct copy of that
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letter.
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On July 1, 2015, OIP ruled on Mr. Rosenfelds April 20, 2015 appeal in the
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Newton Request, among others, and affirmed the FBIs determination that he was not a
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representative of the news media for fee-waiver purposes. Relying in part on DOJs regulatory
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definition of the term, which has not been updated to reflect Congresss 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
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24.
On August 15, 2015, Mr. Rosenfeld wrote a further appeal in response to OIPs
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July 1, 2015 letter, providing additional information to prove that he is, in fact, a journalist. In
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response to OIPs determination that he had failed to show a connection to a news organization,
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Mr. Rosenfeld pointed again to the link he had sent for the Center for Investigative Reportings
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website, which lists him as a correspondent. To show that he has published continually since
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2012, Mr. Rosenfeld pointed to his original statement that he had been a working freelance
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journalist continually since 2009, and provided links to articles he had written between 2013 and
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2015. Attached as Exhibit Q is a true and correct copy of that letter.
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25.
On August 18, 2015, Mr. Rosenfeld wrote to the FBI, in response to its June 29,
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2015 request for $200 in search fees, renewing his request for a News Media Waiver of the search
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fees and now seeking a Public Interest Waiver of any applicable duplication fees, as well. To ease
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the burden of processing, he also reduced the scope of the Newton Request from records kept at
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FBI headquarters and in any field office, to solely the responsive San Francisco field office
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records. Once again, Mr. Rosenfeld provided his professional biography to demonstrate his
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entitlement to the News Media Waiver, and provided information about the historical importance
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of the records sought in the Newton Request in order to establish that he deserved a Public Interest
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Waiver. Mr. Rosenfeld explained that the FBIs focus on Huey Newton is of great and
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longstanding interest to the public. He wrote that the FBI investigative records he sought were
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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 publics great interest in the FBIs 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
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regard to other matters described above such [as] civil and constitutional rights during a time of
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great racial unrest and societal change. Attached as Exhibit R is a true and correct copy of that
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letter.
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Also on August 18, 2015, Mr. Rosenfeld appealed to OIP from the FBIs June 29,
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2015 demand that he pay search and duplication fees, and provided OIP with much the same
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information in support of his appeal as he had given the FBI in the letter described in Exhibit R.
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Attached as Exhibit S is a true and correct copy of that letter to OIP.
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27.
On September 3, 2015, the FBI denied Mr. Rosenfelds August 18, 2015 request
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for fee waivers. The FBI concluded that he was not entitled to a Public Interest Waiver because
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the public understanding of the subject in question would not be enhanced by the disclosure to a
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significant extent. Nor did the FBI budge from its determination that Mr. Rosenfeld was not
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entitled to a News-Media Waiver, since OIP had affirmed that ruling in its July 1, 2015 letter.
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Finally, the FBI advised that, until Mr. Rosenfeld paid the $200 in search fees that were due, the
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Newton Request will remain closed. Attached as Exhibit T is a true and correct copy of that
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letter.
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The FBI Closes Mr. Rosenfelds FOIA Requests

28.
On September 16, 2015, the FBI wrote to advise Mr. Rosenfeld that, because he
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had not paid the $200 search fee in the Newton Request, any requests you currently have open
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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.
Also on September 16, 2015, Mr. Rosenfeld appealed to OIP from the FBIs
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 FBIs decision to close the Newton Request. Attached as Exhibit
V is a true and correct copy of that letter.
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30.
On September 22, 2015, Mr. Rosenfeld wrote to OIP to further appeal the FBIs
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denial of his fee-waiver requests, as well as its closure of the Newton Request and all of my
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pending FOIA requests because I have not paid the $200 that the FBI is demanding in this case.
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Attached as Exhibit W is a true and correct copy of that letter.
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The FBI Confirms Its Closure and Vows Not to Process New FOIA Requests Made
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By Mr. Rosenfeld
31.
On November 24, 2015, the FBI again advised Mr. Rosenfeld that it had closed the
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Newton Request and numerous others for non-payment of the $200 in search fees, would not
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process new requests from Mr. Rosenfeld until that amount was paid, and even then would require
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him to submit all new requests for the records that he had been seeking. Attached as Exhibit X is
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a true and correct copy of that letter.
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32.
Among the requests the FBI closed were Nos. 1329141-000, in which Mr.
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Rosenfeld sought agency records pertaining to the World War II-era Topaz Internment Camp in
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Utah (the Topaz Request), and 1331946-000, in which he sought FBI files on the Black Panther
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Partys involvement with weapons (the Black Panther Weapons Request). Mr. Rosenfeld
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requested fee waivers for both, and submitted essentially the same documentation of his
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professional background and plans for publication as he had provided the FBI in the Newton
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Request. Notably, in a letter dated May 28, 2015 responding to the Topaz Request, the FBI
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acknowledged Mr. Rosenfelds 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. Rosenfelds 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
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the Newton Request. Attached as Exhibits Y and Z are true and correct copies of the relevant
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correspondence between Mr. Rosenfeld and the government relating to these requests.
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33.
On December 9, 2015, Mr. Rosenfeld appealed to OIP all of the actions taken by
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the FBI in its letter to me dated November 24, 2015 in the Newton Request, including its refusal
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to waive search and duplication fees; its closure of the Newton Requests and others; and its refusal
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to open and process new requests from him. In support of his appeal, Mr. Rosenfeld incorporated
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all of his prior correspondence with OIP in the Newton Request and other matters. Attached as
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Exhibit AA is a true and correct copy of that letter.
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34.
On December 14, 2015, OIP acknowledged that it had received Mr. Rosenfelds
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appeal on December 9, 2015, but to date has issued no decision on it. Attached as Exhibit BB is a
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true and correct copy of that letter.
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35.
By the terms of 5 U.S.C. 552(a)(4)(A)(ii), Mr. Rosenfeld is and repeatedly has
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proven to OIP and the FBI that he is a representative of the news media entitled to a waiver of
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search fees. Nothing in the nature of his profession has changed since September 17, 2012, when
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the FBI readily granted him a News Media Waiver in the letter attached at Exhibit N. The only
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obstacle standing in the way of Mr. Rosenfelds journalism is the FBI, which, by closing each of
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his pending FOIA requests, shut off a vital source of the information he needs in order to report.
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The FBI is well aware that he is a seasoned investigative journalist and a correspondent for a
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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. Rosenfelds journalistic career, the FBI is essentially trying to stop his
reporting on it.
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36.
Mr. Rosenfeld also has established that the Newton Request will contribute
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significantly to public understanding of government operations and activities, as FOIA requires
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under 5 U.S.C. 552(a)(4)(A)(iii) for a Public Interest Waiver of the remaining duplication fees
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that Mr. Rosenfeld would otherwise owe. The Newton Request seeks records that directly pertain
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to federal government activities specifically, the FBI investigation of Huey Newton and would
15
shed new and meaningful light on significant aspects of that investigation. As the FBI knows,
16
since it has a standing webpage on FBI.gov devoted to an earlier-released portion of its records on
17
Huey Newton, the public takes a great interest in Newtons life and the federal governments
18
activities concerning him. Mr. Rosenfeld has amply demonstrated that a Public Interest Waiver is
19
appropriate here.
20
37.
Moreover, even before the FBI erroneously determined that Mr. Rosenfeld did not
21
qualify for these fee waivers, it had already waived its entitlement to seek fees of any sort in this
22
matter under 5 U.S.C. 552(a)(4)(A)(viii). That subparagraph provides that an agency that fails
23
to comply with any time limit that FOIA imposes on agencies for responding to requests for
24
records shall not assess search fees (or in the case of [a journalist], duplication fees)[.] Id.
25
FOIA provides agencies with 20 days after receiving a request, excluding weekends and holidays,
26
to decide whether to comply with it. Id. at (a)(6). That 20-day period can be tolled in limited
27
circumstances, the only one of which that could apply in this case is to clarify with the requester
28
issues regarding fee assessment [T]he agencys receipt of the requesters response to the
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DWT 28595362v4 0200966-000001
agencys 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 FBIs 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. Rosenfelds 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
10
tolling period ended; the Newton Request nonetheless languished until June 29, 2015, when the
11
FBI next substantively responded. Having vastly exceeded, by any measure, the statutory
12
deadline to respond to the Newton Request, the FBI waived its right to seek fees of any sort from
13
Mr. Rosenfeld.
14
38.
Nearly lost in this administrative briar patch are the 3,622 pages of FBI records that
15
the government has acknowledged are responsive to the Newton Request. Both because the FBI
16
wrongly denied Mr. Rosenfelds entitlement to fee waivers, and because it gave up the right to
17
seek fees against him anyway by responding to him outside the statutory deadline, the government
18
is now simply violating the law by refusing to release those and other responsive records. They
19
must be processed and provided to Mr. Rosenfeld at once.
20
Violation of FOIA for Failure to Acknowledge That Mr. Rosenfeld Is a News-Media
21
Representative, and the Newton Request Is In The Public Interest
22
23
24
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
25
provided in 5 U.S.C. 552(a)(4)(A)(ii), Mr. Rosenfeld has a legal right to a waiver of search fees
26
for the Newton Request, and there exists no legal basis for the governments failure to
27
acknowledge as much and provide him with it.
28
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DWT 28595362v4 0200966-000001
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.
4
5
42.
The governments failure to grant Mr. Rosenfeld these fee waivers violates FOIA,
and applicable regulations thereunder.
6
7
8
Violation of FOIA for Unlawful Assessment of Fees

43.

44.
The government received Mr. Rosenfelds October 17, 2014 Newton Request at
10
least as of November 10, 2014, and probably days or weeks before that. The FBIs first
11
substantive response to the Newton Request was dated December 22, 2014. Excluding weekends
12
and public holidays, that substantive response was at least nine days past the deadline FOIA sets
13
for agencies to respond to requests, under 5 U.S.C. 552(a)(6).
14
45.
An agency that violates FOIAs 20-day deadline for responding to a request waives
15
its right to assess search fees or, in the case of a journalist to whom search fees already do not
16
apply, duplication fees.
17
46.
The governments assessment of fees against Mr. Rosenfeld, even though its first
18
substantive response to the Newton Request fell well beyond the statutory deadline, also is a
19
violation of FOIA, 5 U.S.C. 552(a)(6) and (a)(4)(A)(viii). Indeed, the governments closure of
20
the Newton Request, and its refusal to process any other pending or future FOIA requests Mr.
21
Rosenfeld may submit, for nonpayment of fees that were improperly assessed against him in the
22
first place, is unlawful and an outright abuse of its authority.
23
Violation of FOIA for Unlawful Withholding of Records
24
Responsive to the Newton Request
25
26
27
28
47.

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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]
DWT 28595362v4 0200966-000001
are responsive to the Newton Request, and since it has not asserted that the records fall into any of
FOIAs categorical exemptions for records that may be withheld, there exists no legal basis for the
FBIs failure to make these records available to him now more than a year after it received the
request.
The governments 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.
10
49.
acknowledge that Mr. Rosenfeld qualifies as a representative of the news media under the statute;
11
12
51.
Declare that DOJ and the FBI have violated FOIA by refusing to grant Mr.
Rosenfelds fee-waiver requests;
13
14
Declare that DOJ and the FBI have violated FOIA by repeatedly refusing to
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;
15
53.
Declare that DOJ and the FBI have violated FOIA by closing the Newton Request
16
and all of Mr. Rosenfelds other pending requests, and refusing to process any new requests from
17
him;
18
19
20
21
22
23
24
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
25
responsive to those of Mr. Rosenfelds other pending FOIA requests that it closed for nonpayment
26
of unlawfully assessed fees, including the Topaz and Black Panther Weapons Requests, and lift its
27
ban on Mr. Rosenfelds submission of future FOIA requests;
28
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.
2
3
DATED this 9th day of March, 2016
_/s/ Thomas R. Burke ___________

THOMAS R. BURKE
Attorneys for Plaintiff SETH ROSENFELD
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Rosenfeld v. DOJ, FBI

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Rosenfeld v. DOJ, FBI

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

THOMAS R. BURKE (SBN 141930)

DAVIS WRIGHT TREMAINE LLP

IN THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

PLAINTIFF SETH ROSENFELDS

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 2 of 17

Plaintiff, Seth Rosenfeld, alleges as follows:

DAVIS WRIGHT TREMAINE LLP

governments position would unlawfully bar an entire class of journalists independent

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

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 3 of 17

DAVIS WRIGHT TREMAINE LLP

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

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

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

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

at (iii) (the Public Interest Waiver).

Mr. Rosenfelds Decades-Long Career as a Journalist

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

DAVIS WRIGHT TREMAINE LLP

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

the broader public reap the benefits of that extra labor.

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 5 of 17

Mr. Rosenfeld Authors Subversives After Obtaining FBI Records

Through Decades of FOIA Litigation

300,000 pages of public records:

DAVIS WRIGHT TREMAINE LLP

In 2012, for instance, Mr. Rosenfelds acclaimed investigative book Subversives:

Subversives expanded on Mr. Rosenfelds earlier publications and examined the

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 6 of 17

audience for, Mr. Rosenfelds reporting on the FBI.

DAVIS WRIGHT TREMAINE LLP

Articles on the FBI

correct copy of the courts ruling is attached as Exhibit E.

to further his reporting on FBI activities.

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 7 of 17

and correct copy of that letter.

DAVIS WRIGHT TREMAINE LLP

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

correct copy of that letter.

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 8 of 17

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

DAVIS WRIGHT TREMAINE LLP

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

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

correct copy of that letter.

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

and correct copy of Mr. Rosenfelds letter and the attachment.

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 9 of 17

correct copy of that letter.

DAVIS WRIGHT TREMAINE LLP

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

DAVIS WRIGHT TREMAINE LLP

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 10 of 17

that will distribute newsworthy information concerning the aforementioned government

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

The FBI Closes Mr. Rosenfelds FOIA Requests

Case 4:16-cv-01154-KAW Document 1 Filed 03/09/16 Page 11 of 17

true and correct copy of that letter.

V is a true and correct copy of that letter.

DAVIS WRIGHT TREMAINE LLP

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