Rolling Stone, LLC v. Department of Justice

Background

Rolling Stone, LLC submitted a Freedom of Information Act (FOIA) request to the Federal Bureau of Investigation (FBI), a component of the Department of Justice, seeking “all FBI records about Henry Kissinger” without a date limit. Rolling Stone specifically requested searches of several FBI record systems and field-office emails. It also asked for expedited processing, arguing that it was a news organization with an urgent need to inform the public about federal government activity involving Kissinger and that the request concerned widespread and exceptional media interest raising possible questions about the government’s integrity.

The FBI denied expedited processing, stating that Rolling Stone had not provided enough information about the statutory requirements. The FBI continued processing the underlying records request. It had identified approximately 7,900 potentially responsive pages, imported approximately 6,000 pages for processing, and made an interim release after reviewing 506 pages, releasing 392 pages in full or in part. The court noted that the expedited-processing request did not appear to be moot because the FBI was still processing the records.

Legal Standard

FOIA requires agencies to provide expedited processing in limited circumstances when a requester demonstrates a “compelling need.” For a person primarily engaged in disseminating information, that includes an urgency to inform the public about actual or alleged federal government activity. Department of Justice regulations also provide for expedited processing when a request concerns widespread and exceptional media interest involving possible questions about the government’s integrity that affect public confidence.

The requester bears the burden of proving a basis for expedited processing. For the urgency-to-inform standard, courts consider whether the request concerns a matter of current exigency to the American public, whether delay would compromise a significant recognized interest, and whether the request concerns federal government activity. The court independently reviewed the FBI’s denial.

Court’s Analysis

The court found no dispute that Rolling Stone was primarily engaged in disseminating information and that Kissinger’s activities and the FBI’s investigations relating to him involved actual or alleged federal government activity. However, the court held that Rolling Stone did not establish that the request concerned a matter of current exigency or that delaying production would compromise a significant recognized interest.

The court emphasized that the request sought all records concerning Kissinger over his entire career. Although Kissinger’s government activities had historical and public importance, Rolling Stone did not identify a specific subject within that six-decade period that involved a current public emergency. The court also found that the FBI’s investigation connected to the Mueller investigation was not part of a currently unfolding story because the Mueller report had been released more than four years before Rolling Stone’s request. Rolling Stone did not identify a specific deadline or event after which the information would lose its value.

The court separately held that Rolling Stone had not met the Department of Justice regulation concerning widespread and exceptional media interest and possible questions about government integrity. Before the agency, Rolling Stone had cited a Washington Post obituary and described Kissinger as polarizing, but the court found that this evidence did not show that the subject was widespread and exceptional or that it raised questions about the government’s integrity.

The court also rejected Rolling Stone’s argument that the FBI had failed to engage in reasoned decision-making. Unlike a case in which an agency had given only a conclusory response to a detailed request supported by evidence, Rolling Stone had not provided reasons or evidence explaining how the requested records could bear on government integrity. The court stated that it denied the motion based on its own review and conclusion that Rolling Stone had not established any standard for expedited processing, rather than out of deference to the FBI.

Disposition

Judge Lewis J. Liman denied Rolling Stone’s motion for partial summary judgment. The order directed the Clerk of Court to close the motion. The opinion did not order the FBI to stop processing the underlying FOIA request, and it stated that the FBI was continuing to process and respond to Rolling Stone’s requests.