Smith v. Bharara
- Laura Swain
- 1:19-cv-03572
- U.S. District Court · Southern District of New York
- 9
In Smith v. Executive Office for United States Attorneys, Judge Swain granted reconsideration only for $401.89 in costs and otherwise denied it.
John Smith received a $401.89 cost award; the Executive Office for United States Attorneys must reimburse him within 30 days. The earlier judgment for the agency was otherwise left undisturbed.
What happened
In Smith v. Executive Office for United States Attorneys, John Smith asked the court to reconsider its earlier decision granting the agency’s summary-judgment motion in a Freedom of Information Act case.
The court rejected Smith’s arguments about bad faith, withheld grand-jury materials, information that he said was already public, and separating releasable information from withheld material. It also declined to order disclosure of a withheld transfer document based on Smith’s speculation about possible claims concerning his transfer between state and federal custody.
Judge Swain granted reconsideration to the extent Smith sought litigation costs and otherwise denied the motion. She awarded Smith $401.89—his $350 filing fee and $51.89 in documented postage—and ordered the agency to reimburse him within 30 days.
The detailed version
- Smith v. Bharara · No. 1:19-cv-03572
- Laura Swain
- June 22, 2022
Background
John Smith, proceeding without a lawyer, moved for reconsideration of the court’s February 9, 2022, order. That earlier order granted the Executive Office for United States Attorneys’ renewed motion for summary judgment and directed entry of judgment for the agency in Smith’s Freedom of Information Act case. The earlier order also denied Smith’s request for attorney’s fees.
Smith raised five grounds for reconsideration: the agency’s alleged bad faith in responding to his requests; the argument that some withheld information was already public; the argument that some material could be separated from properly withheld material; his contention that withheld documents could help him challenge his transfer between state and federal custody in 2011; and his request for reimbursement of litigation costs.
Rulings on reconsideration
The court denied reconsideration of Smith’s first three arguments. It said Smith identified no change in controlling law, new evidence, clear error, or manifest injustice concerning the agency’s alleged bad faith. The court also adhered to its conclusion that the agency properly withheld the documents under Freedom of Information Act Exemption 3 and Federal Rule of Criminal Procedure 6(e), which protects grand-jury secrecy. The court further found Smith’s argument about separating releasable material from withheld material both late and too general and speculative to overcome the agency’s evidence that it had met its disclosure obligations.
The court also denied Smith’s request for disclosure of the withheld writ authorizing his transfer to federal custody. The court explained that a Freedom of Information Act case seeking disclosure does not itself qualify as the separate judicial proceeding that can support disclosure of grand-jury material under Rule 6(e). It also found no non-speculative basis to conclude that the writ was invalid or that Smith had a plausible basis for a separate proceeding. Smith’s theory that the document might help him frame a future claim was insufficient.
Costs
The court granted reconsideration to the extent Smith sought litigation costs. Under the Freedom of Information Act, a court may award reasonable litigation costs when a requester has substantially prevailed. The court found that Smith qualified because earlier court orders required the agency to conduct searches that produced at least one document and identified the existence of the relevant transfer writ. The court also found him entitled to costs because the agency had initially failed to search in response to at least two requests, later conducted a flawed search, and took three years to reveal that responsive transfer documentation existed.
Smith requested $500, consisting of a $350 filing fee and more than $150 in mailing and copying expenses. The court awarded the full $350 filing fee and $51.89 in documented postage, but did not award undocumented mailing and copying costs. The total award was $401.89. The court ordered the agency to reimburse Smith within 30 days.
Disposition
The court’s order states that Smith’s motion for reconsideration was granted to the extent it sought an award of costs incurred in the action, in the amount of $401.89, and was otherwise denied. The order resolved docket entry number 82.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.