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16 April 2000. Thanks to Lee Tien.

April 13, 2000

John Gilmore, a FOIA and civil liberties advocate, has settled a "pattern-and-practice of delay" claim against the Department of Energy's Albuquerque Operations Office (AOO), now part of the new National Nuclear Security Agency (NNSA).   The agreement technically applies only to Gilmore's own FOIA requests to AOO, but it is expected that AOO will comply with the agreement's terms for all FOIA requesters.

The agreement requires AOO to institute various internal procedures to make AOO accountable for complying with FOIA's time limits.  It establishes deadlines for processing steps within the statutory 20-working-day period for initial determinations.  It requires AOO to maintain a tracking system to ensure that FOIA processing complies with the agreement's deadlines.  It also requires AOO to make partial responses to FOIA requests on a staggered basis when a request cannot be fully answered within the statutory time limits, to follow up with agency components every ten days as necessary to keep processing moving, and to make periodic status reports.

"I expect the agreement to benefit everyone who makes FOIA requests to the Albuquerque office," said Lee Tien, attorney for Gilmore.  "By making the agreement publicly available, we'll enable other FOIA requesters to argue that they're entitled to the same treatment.  I think courts will take a dim view of any argument that AOO can't process other people's requests with the same diligence that it processes Gilmore's, especially since AOO is essentially being required to comply with the statute."

"Following its own laws is a basic prerequisite for a credible government," said John Gilmore, plaintiff in the case.  "It's crazy that we had to fight the government for years to establish this basic principle.  DoE/NNSA is just one of many agencies that have refused to follow the law.  I hope this example will inspire DoJ, NSA, State, and other agencies which routinely delay FOIA requests for months or years."

John added, "If you file a FOIA request with AOO or Sandia, and they refuse to comply with the statutory FOIA deadlines, please send a copy of your FOIA request to Lee Tien or me.  I can submit a duplicate request myself, and then go back to the judge to get the time limits quickly enforced."  A copy of the agreement [below] will soon be electronically published, probably at <www.toad.com>, Gilmore's home website

AOO oversees the Amarillo, Carlsbad, Kansas City, Kirtland, and Los Alamos area offices.  Facilities within its jurisdiction include Los Alamos National Laboratory, Sandia National Laboratories, the Pantex Plant in Amarillo, Texas, and the Kansas City Plant in Kansas City, Missouri.  AOO has a website at <http://www.doeal.gov>.

The case arose out of Gilmore's request for a computer program called CLERVER developed at Sandia National Laboratories, a DOE-owned, contractor-operated facility.  DOE took about six months to deny Gilmore's request.  The lawsuit claimed not only improper withholding of the software but also a pattern and practice of agency delay based on the delayed response.

Although the record denial was upheld, U.S. District Judge William H. Orrick found that Gilmore had properly stated a claim of agency delay independent of the underlying record request.  Gilmore v. DOE, 4 F.Supp.2d 912, 925 (N.D.Cal.1998)   DOE's own FOIA web site showed that in ten FOIA cases, "DOE took more than six months to issue an initial determination, and in one instance took nearly seven years."  Ibid.

Judge Orrick reaffirmed this holding in denying DOE's motion to dismiss. Gilmore v. DOE, 33 F.Supp.2d 1184 (N.D.Cal.1998).  "DOE's failure to make a timely determination as to whether CLERVER and its associated documents should be disclosed constituted an improper withholding of those documents in violation of the FOIA, even though the documents were later correctly determined not to be subject to disclosure."   Id. at 1188.  Judge Orrick also found that the delay in processing Gilmore's request created procedural standing.  Id. at 1189.

Discovery showed that DOE had major problems in complying with FOIA time limits, partly because of its decentralized organization.  Headquarters FOIA officials had relatively little control over FOIA activities at field offices.  DOE also had inadequate systems for tracking requests and analyzing processing.

Tien explained that while he had been optimistic about litigating DOE's overall delay pattern, Congress's 1999 creation of NNSA as a separately organized agency in DOE made it unlikely that a remedy would have extended beyond the Albuquerque office.  The relationship between DOE and NNSA is unclear, he said, but it is likely that NNSA will be a distinct FOIA agency.

NNSA was created in response to well-publicized concerns about security at DOE's nuclear weapons labs.   Control over AOO was transferred from DOE to NNSA earlier this year under Title XXXII of the National Defense Authorization Act of Fiscal Year 2000, Pub. L. No. 106-65, 113 Stat. 512 (1999).  Information about NNSA is available at <http://www.nnsa.doe.gov>.

For further information, please contact Lee Tien at tien@well.com.

-30-

DAVID W. OGDEN
Acting Assistant Attorney General

ROBERT S. MUELLER III, CA Bar No. 59775
United States Attorney

GAIL KELLEHER
Assistant United States Attorney

ANNE L. WEISMANN, D.C. Bar No. 298190
Assistant Director

HERBERT E. FORREST, D.C. Bar No. 4432
Trial Attorney

Federal Programs Branch
Civil Division -- Room 1050
U.S. Department of Justice
901 E Street, N.W.
Washington, DC 20530
Telephone:  (202) 514-2809
Facsimile:   (202) 616-8470

Attorneys for Defendant

LEE TIEN, CA Bar No. 148216
1452 Curtis Street
Berkeley, CA  94702
Telephone:  (510) 525-0817
Facsimile:   (510) 525-3015

Attorney for Plaintiff

WHEREAS, by decision entered in this action by the Court on March 13, 1998, the Court upheld the denial by the defendant U.S. Department of Energy ("DOE") of a request by the Plaintiff John Gilmore under the Freedom of Information Act ("FOIA") to the Albuquerque Operations Office ("AOO"), for access to all agency records concerning video conferencing software called "CLERVER."  The Court held that the documents requested by the Plaintiff are not "agency records," the national laboratory in control of the documents is not a "government agency" under FOIA, and the documents are protected by a FOIA exemption for trade secrets and commercial or financial information, Gilmore v. DOE, 4 F.Supp.2d 912, 916-24 (N.D. Cal. 1998);

WHEREAS, by the same decision, the Court also held that the Plaintiff has an independent cause of action against DOE for the alleged failure of AOO to respond to FOIA requests within statutory limits, id. at 924-925

WHEREAS, by decision entered in this action by the Court on September 14, 1998, the Court held that it has jurisdiction to hear a claim against DOE, and the Plaintiff has standing to bring a claim, on the issue of whether DOE has a pattern and practice of untimely responses to FOIA requests, Gilmore v. DOE, 33 F.Supp.2d 1184 (N.D. Cal. 1998);

WHEREAS, the parties have completed discovery and trial is scheduled for July 10, 2000, unless the parties enter into a settlement agreement or the Court grants either of the parties' motions for summary judgment;

WHEREAS, the parties have mutually agreed to conclude this action by settlement and compromise on the terms set forth herein without further litigation, subject to the review and approval of this Court;

NOW THEREFORE, THE PREMISES CONSIDERED, this Settlement Agreement ("Agreement") is made and entered into this 29th day of March, 2000, by and between John Gilmore, by his undersigned counsel Lee Tien, and the United States Department of Energy, by its undersigned counsel the United States Department of Justice (collectively, "the parties").

1.  Definitions.  As used herein, the following terms have the following meanings:

a.  "Gilmore Suit" means the action entitled John Gilmore v. U.S. Department of Energy, Civil Action No. 95-0285 (WHO) (N.D. Cal.).

b.  "Plaintiff" means John Gilmore, the plaintiff in the Gilmore Suit.

c.  "Defendant" means the U.S. Department of Energy ("DOE"), the named defendant in the Gilmore Suit.

d.  "Albuquerque Operations Office" ("AOO") means the Albuquerque Operations Office, a DOE operations office which was transferred to the National Nuclear Security Administration ("NNSA"), a "separately organized" agency established under DOE under Title XXXII of the National Defense Authorization Act of Fiscal Year 2000, Pub. L. No. 106-65, 113 Stat. 512 (1999).

e.  "FOIA" means the Freedom of Information Act, as amended, 5 U.S.C. § 552 (1999).

f.  "DOE Regulations" means the DOE regulations implementing FOIA as set forth in 10 C.F.R. Part 1004 (1999).

g.  "Responsive Records" means those records maintained by AOO that are deemed responsive, within the meaning of FOIA.

h.  "Points of Contact" means employees within the AOO, which includes the Albuquerque headquarters office located in Albuquerque and any of its five area offices located in Colorado, Missouri, New Mexico, and Texas where Responsive Records are likely to be located.

i.  "Contractor Records" refers to those records as described in 10 C.F.R. § 1004.3(e) (1999).

j.  "Day" refers to business day, not including Saturday, Sunday, or legal holiday.

2.  Processing Procedures.  In full and final settlement of the Gilmore Suit:

a.  AOO will diligently make every reasonable effort to process future FOIA requests by the Plaintiff for Responsive Records (hereinafter referred to as "Request") in accordance with FOIA, DOE Regulations, and applicable AOO procedures.

(i)  AOO's search for records responsive to the Plaintiff's Request will include only those records maintained within AOO.  AOO is responsible for records existing at its headquarters office in Albuquerque and in the five area offices located in four states (Colorado, Missouri, New Mexico, and Texas).  AOO will also direct its Management and Operating Contractors ("M&O Contractors") located at the sites of AOO's area offices, to search their files when the Request seeks records subject to the DOE "contractor records" provision found in 10 C.F.R. § 1004 (3)(e) (1999).

(ii)  AOO is not obligated to search for, review, produce, or otherwise process records maintained outside of the jurisdiction of AOO.

Notwithstanding the limitations of the paragraph immediately preceding, AOO shall provide information identifying the Authorizing Officials, as defined in 10 C.F.R. § 1004.2 (1999), outside the jurisdiction of AOO, who reasonably may be expected to have records responsive to the Plaintiff's Request, for purposes of facilitating an additional FOIA Request by the Plaintiff at a later date.  To the extent AOO identifies other Authorizing Officials who reasonably may be expected to have responsive records, AOO makes no representation that any such Authorizing Official will, in fact, have responsive documents.  AOO does not have any other obligation with respect to records that are maintained outside the jurisdiction of AOO under this Agreement.

(iii)  In the event any Responsive Records are subject to coordination or referral to other agencies pursuant to 10 C.F.R. § 1004.4(f) (1999) and /or 10 C.F.R. § 1004.6(e) (1999), such records will be exempt from any deadline set forth in this Agreement for final production to the Plaintiff, except that AOO will make good-faith efforts to obtain expedited review of such records from other agencies and inform Plaintiff of those efforts, where possible, without compromising information that is deemed classified under 10 C.F.R. § 1004.6 (1999) and DOE Manual § 475.1-1 (5/8/98), and AOO will not delay production or denial of these records beyond the additional time necessary to gain input from other agencies.

b.  AOO will process the Plaintiff's FOIA Request on a first in, first out basis, unless the Plaintiff requests expedited processing of his Request. If the Plaintiff demonstrates a compelling need for such expedited processing, and AOO grants the Plaintiff's Request for  expedited processing, AOO will process as soon as practicable the Plaintiff's Request for Responsive Records.

c.  Within two days after AOO receives and reviews the Plaintiff's FOIA Request, the FOIA officer at AOO headquarters will conduct a preliminary review of the Request to determine whether the Request meets the threshold requirements as set forth in 5 U.S.C. § 552(a)(3)(A) (1999) and 10 C.F.R. § 1004.4 (1999).  For example, the Request must reasonably describe the records sought, provide an assurance to pay fees incurred to process the Request, or must request a fee waiver and provide information that addresses the criteria established in 10 C.F.R. § 1004.9 (1999).  If it is determined that the Plaintiff's Request meets the threshold requirements of FOIA, AOO will notify the Plaintiff of:  (1) the receipt of the Plaintiff's Request; (2) the tracking number assigned to the Request; and (3) the name and telephone number of the AOO officer who will be responsible for processing the Request and responding to any questions by the Plaintiff concerning the processing of his Request.  If the Plaintiff's Request does not meet the threshold requirements of FOIA, AOO will notify the Plaintiff promptly of that preliminary determination and the reasons for such determination.

d.  Within two to five days after the receipt and review of the Plaintiff's FOIA Request, AOO will identify each Point of Contact within AOO where Responsive Records are believed likely to be located, and will direct the Point of Contact in writing to begin processing the Request forthwith.  The written communication will direct the Point of Contact to identify and forward to AOO promptly those records responsive to the Plaintiff's Request which are subject to disclosure, advise AOO whether specific records or portions thereof appear to be subject to withholding under applicable FOIA Exemptions, and, where such records are not immediately available but are believed to exist in the Point of Contact organization, advise AOO of the anticipated time required to complete the process.

e.  Within ten days after receipt of the Plaintiff's FOIA Request by AOO, the FOIA officer at AOO headquarters may determine, based on further review and information provided by the Points of Contact, that the Request does not meet the applicable criteria as set forth in 10 C.F.R. § 1004.9 (1999). The FOIA officer at headquarters will, in writing:  (1) notify the Plaintiff why his Request fails to meet the applicable criteria; (2) offer assistance to help modify the Plaintiff's Request to bring it into his compliance; and (3) afford the Plaintiff an opportunity to amend his Request and submit additional information.

f.  AOO will maintain a tracking system to insure that the processing of the Plaintiff's FOIA Request complies with this Agreement.

g.  Within seventeen days from the receipt by AOO of the Plaintiff's FOIA Request, the Point of Contact will provide a progress report to AOO.  When it appears to the AOO that the Plaintiff's Request cannot be processed to completion within twenty days from the receipt and review of the Plaintiff's FOIA Request by AOO or that the AOO is not able to otherwise meet any of the time deadlines set forth in this Agreement, AOO shall so notify the Plaintiff and provide the Plaintiff an opportunity either to limit the scope of the Request so that it may be processed within the time limit, or to arrange with AOO an alternative time frame for processing the Request or modified Request.  Some of the reasons that a time limitation or deadline would not be met would include, but are not limited to, the following:  (1) the Plaintiff requests a very large volume of records; (2) the requested records are located at multiple AOO area offices; (3) the requested records are in the possession of a management and operating contractor; (4) the requested records contain proprietary information which has to be reviewed by the persons or entities that submitted the proprietary information; or (5) the Request seeks records which are "classified" under the provisions of the Atomic Energy Act, the National Nuclear Security Administration Act, or other national security statutes.

h.  When the Point of Contact determines that specific records or portions thereof may be subject to withholding under the FOIA exemptions, the Point of Contact will thereupon forward the specific records to AOO with a recommendation that they be withheld, and state the basis for withholding such records.  As soon as all records and required information, including the recommendations, are provided to AOO, AOO shall, on a first in, first out basis, furnish to Plaintiff those Responsive Records which AOO concludes are subject to disclosure under FOIA.  AOO shall also identify to the Plaintiff those records or portions thereof which it concludes should be withheld, together with an explanation of the applicability of one or more FOIA exemptions that permits the withholding, the identification of the individual responsible for the determination, and notification to the Plaintiff of the availability of administrative and judicial review of the agency's action.

i.  Within twenty days from receipt of the Plaintiff's Request, AOO will notify the Plaintiff of the status of his Request.  AOO will transmit all records within its possession and custody and records received from the Points of Contact at that time which are determined to be Responsive Records and not subject to withholding under FOIA exceptions.  For those records which cannot be provided at that time, AOO will thereafter follow up with the Point of Contact every ten days as necessary to assure that the Request is being processed to an early conclusion, and advise the Plaintiff periodically of the status of his Request.

j.  Except as specifically stated in this Agreement, this Agreement imposes no additional requirements or obligations whatsoever upon DOE or AOO with respect to the processing of Plaintiff's Request, beyond those provided by FOIA or DOE Regulations.  The standards set forth in FOIA, DOE's Regulations, and DOE guidelines apply to all aspects of AOO's processing of the Plaintiff's Request, including, without limitation, the adequacy of AOO's search for Responsive Records, and review of records and exemptions for withholding information from the Plaintiff.  In the event the Plaintiff makes any claim, administrative or judicial, for alleged noncompliance by DOE with the terms of this Agreement, DOE expressly retains any legal defenses it may have under FOIA and DOE Regulations, including, without limitation, a stay of proceedings under 5 U.S.C. § 552(A)(6)(c) (1999).

k.  In the event the Plaintiff claims noncompliance by AOO with any term of this Agreement, including, without limitation, the time limits applicable to AOO's processing of the Plaintiff's Request, the adequacy of AOO's search for Responsive Records, AOO's review of records, or the exemptions for AOO's withholding of information from the Plaintiff, prior to seeking any judicial enforcement of the terms of this Agreement the Plaintiff will do the following:

(i)  To the extent the Plaintiff challenges AOO's denial of the Plaintiff's Request because AOO has determined that there are no documents responsive to the Plaintiff's Request, the Plaintiff shall first exhaust his rights to an administrative appeal pursuant to 10 C.F.R. § 1004.8 (1999).

(ii)  To the extent the Plaintiff challenges any aspect of the AOO's performance under this Agreement, the Plaintiff will first notify AOO in writing of AOO's alleged noncompliance and allow AOO a period of thirty days in which AOO may seek to address or rectify those actions challenged by Plaintiff.  During this thirty-day period, the Plaintiff will make good faith efforts to resolve any disputes with AOO.  The Plaintiff will not seek judicial enforcement regarding any of AOO's actions until the thirty-day period has expired.

3.  Performance Consistent with Law and Regulations.  The parties to this Agreement agree that nothing contained herein shall be construed to impose upon any party any duty, obligation, or requirement, the performance of which would be inconsistent with federal law or governmental rules or regulations at the time of such performance.

4.  No Remaining Issues.  The parties agree that this Agreement shall resolve all remaining matters upon which this action is brought, and that there are no other remaining issues of fact or law requiring further proceedings before the Court.

5.  Release.  The Plaintiff hereby releases and forever discharges DOE and any department, agency, or establishment from any and all claims and causes of action that plaintiff asserts or could have asserted against defendant in this litigation or administrative proceedings, or which hereafter could be asserted, by reason of, or with respect to, or in connection with, or which arise out of, any of the matters alleged in the Gilmore Suit.  The Plaintiff shall be barred from raising or using any of the matters alleged in the Gilmore Suit, including, without limitation, matters pertaining to AOO's processing of the Plaintiff's Request in the Gilmore Suit, in connection with any other administrative or judicial proceeding against DOE, including, without limitation, any claim that DOE has a pattern or practice of violating FOIA or its implementing regulations.

6.  No Admissions.  The parties to this Settlement Agreement acknowledge that this Agreement is entered into solely for the purpose of settling and compromising the remaining claims in this action without further litigation, and is not and shall not be construed as an admission by DOE of the truth of any allegation or the validity of any claim asserted in the Gilmore Suit, or of DOE's liability therein.  This Agreement also is not to be construed as a concession or admission of any fault or omission in any act or failure to act, nor shall the terms hereof be offered or received in evidence or in any way referred to by the parties in any civil, criminal, or administrative action or proceeding, except that this Agreement may be published and may be used as evidence in any subsequent proceeding in which either party alleges a breach of the Settlement Agreement, nor shall any of the terms be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of DOE, nor an admission by DOE that the consideration to be given hereunder represents the relief which could be recovered after further litigation of the Gilmore Suit.  DOE denies specifically that it has engaged in any unlawful pattern or practice of delay in responding to FOIA requests, and the Plaintiff does not admit that his assertions that DOE engaged in an unlawful pattern or practice of delay in responding to FOIA requests lack merit, but nothing in this Agreement shall be construed to waive the Plaintiff's rights to assert a claim against DOE alleging a failure by DOE in the future to comply with FOIA after this litigation is concluded.

7.  Subsequent Legislation or Regulations.  The parties to this Agreement agree that nothing in this Agreement shall abridge or nullify the authority of the Congress to enact legislation, or the authority of DOE or NNSA to promulgate, revise, or amend its regulations to prescribe, govern, or modify its procedures by appropriate administrative procedures, for the processing of requests by any person for FOIA records.

8.  Amendments.  The parties to this Agreement agree that this Agreement shall remain in full force and effect for three years from the date of approval by the Court, except as it is or may become inconsistent with or contrary to statutory provisions duly enacted by Congress or administrative regulations duly promulgated by DOE or NNSA, or as it may be modified and amended, or a provision thereof waived, by an instrument in writing signed by the parties.

9.  Complete Agreement.  The terms of this Agreement constitute the entire agreement of the parties, and no statement, remark, agreement, or understanding, oral or written, which is not contained herein, shall be recognized or enforced.

10.  Binding on Successors.  This Agreement shall be binding on the parties and their successors, assigns, representatives, and trustees, and shall become final and effective upon the review and approval of this Court, but shall be null, void, and of no force or effect if the Court does not approve this Settlement Agreement.

11.  Attorney's Fees, Costs, and Expenses.  [omitted]

Dated: March 29, 2000 Respectfully submitted, /s/  Lee Tien LEE TIEN, CA Bar No. 148216 1452 Curtis Street Berkeley, CA  94702 Telephone:  (510) 525-0817 Facsimile:   (510) 525-3015 Attorney for Plaintiff

Dated: March 29, 2000 Respectfully submitted, /s/ Herbert E. Forrest HERBERT E. FORREST D.C. Bar No. 4432 Trial Attorney DAVID W. OGDEN Acting Assistant Attorney General ROBERT S. MUELLER III, CA Bar No. 59775 United States Attorney GAIL KELLEHER Assistant United States Attorney ANNE L. WEISMANN, D.C. Bar No. 298190 Assistant Director HERBERT E. FORREST, D.C. Bar No. 4432 Trial Attorney Federal Programs Branch Civil Division -- Room 1050 U.S. Department of Justice 901 E Street, N.W. Washington, DC 20530 Telephone:  (202) 514-2809 Facsimile:   (202) 616-8470 Attorneys for Defendant OF COUNSEL: MARILYN MADARANG Department of Energy Office of General Office of General Counsel U.S. Department of Energy Washington, D.C. 20585 1000 Independence Ave., N.W. Washington, D.C.  20585 RONALD B. O'DOWD Deputy  Chief Counsel for Legal Affairs Albuquerque Field Office U.S. Department of Energy P.O. Box 5400 Albuquerque, New Mexico 87185-5400