Summary of Freedom of Information Act Litigation:
Russell v. United States Department of State et. al.
(Case No. CV09-06050 PSG)
The most recent hearing was on May 21, 2012
By Daniel J. Stotter
Attorney for Maxine B. Russell
Attorney for Maxine B. Russell
On August 19, 2009, Maxine Russell filed a Freedom of Information Act (“FOIA”) court action in the United States District Court for the Central District of California (Los Angeles) against Co-Defendants United States Department of State and the United States Federal Bureau of Investigation (FBI) to obtain copies of agency records concerning the murder of her son Darren Russell in Guangzhou, China, and those agencies’ actions in response to this incident.
The case was assigned to United States District Court Judge Philip S. Gutierrez.
This case filed by the Russell family sought to address the failure of the Department of State and the FBI to provide any responsive records to four separate FOIA requests associated with the April 14, 2005 murder of Darren E. Russell in Guangzhou China. Prior to filing this lawsuit, the Russell family sent FOIA requests to the United States Department of State and to the FBI seeking copies of agency records. However, these agencies refused to provide any responsive records to the family, and after extensive correspondence requesting these agency records, and after exhausting all agency administrative remedies, a lawsuit was filed in federal court to compel these federal agencies to provide these records.
The first FOIA request at issue in this court action was sent to the Department of State on August 9, 2006 by Maxine Russell, seeking copies of “all documents, cables, memoranda, memoranda attachments, reports, pictures, video, audio recording, meeting transcripts, official note taking etc. relating to the life and death of Darren Evan Russell in the People’s Republic of China.” The agency initially provided no records, but after the federal court case was filed in 2009, and although the Department of State finally began providing some responsive records for this FOIA request, the agency has still failed and refused to provide many records sought by the Russell family for this FOIA request.
In addition, there are pending issues in this federal court case challenging the agency’s failure to perform an adequate search for responsive records at the State Department’s consulate and embassy offices in China, and at several Department of State offices in the U.S. that processed records concerning Darren Russell’s death, and that document the agency’s response to this incident.
The second FOIA request at issue in this court at issue in this litigation was sent to the Department of State on February 9, 2006 by Maxine Russell, requesting copies of all records and documents that discuss, or which otherwise describe (1) the security measure actions taken by the State Department Diplomatic Security Services to prevent Ms. Russell from delivering written materials pertaining to the death of her son Darren Russell to the Chinese Consulate in Los Angeles, California, on April 11, 2007, and (2) any subsequent reports or communications pertaining to this April 11, 2007 incident sent to or received from any public officials of the Department of State, to the Chinese Consulate, or to any other public officials, from April 11, 2007 to the date of this FOIA request.”
The State Department also refused to provide any records for this FOIA request until after the federal court case was filed in 2009, and to date, the agency has still not provided any contemporaneous records that were created at the time of this incident at the Chinese Consulate in Los Angeles, California (on April 11, 2007), and has instead only provided the Russell family with records that were created several years later, summarizing this incident in response to a subsequent media investigation, and the agency still claims that there were no investigatory notes, or other records created by the State Department Diplomatic Security agents who were directly involved in preventing Ms. Russell from presenting documents to Chinese government officials at their Los Angeles Consulate Office.
The third FOIA request at issue in this litigation was sent to the Department of State on February 9, 2006, by Ms. Russell’s attorney, requesting copies of “all documents that describe or which otherwise document any actions taken by Department of State employee Charles Henning, who worked in the Guangzhou, China office of the Consulate General of the United States, which involve his posting or writing of any inappropriate comments or other remarks about Darren Russell to an online blog or computer website in 2005 or 2006, and any records of any State Department discussion, review, investigation or reprimands associated with Mr. Henning’s actions as described above.” To date, the Department of State has refused to even undertake a search to locate any responsive records for this FOIA request, and has refused to provide any responsive records to the Russell family, and also refuses to admit or deny whether or not there are any responsive records for this FOIA request. The legal issues involving the agency’s failure to search and their failure to provide any responsive records are currently the subject of cross motions for summary judgment court filings, and the federal Court is anticipated to issue a ruling to resolve this claim later this year (2011).
The fourth FOIA request in this lawsuit involves a February 5, 2009, FOIA request by Maxine Russell that was sent to headquarters of the Federal Bureau of Investigation (FBI), requesting copies of all agency records that document or describe any actions taken by the FBI (including any communications with other federal agencies) with respect to any investigations of the death of Darren Russell, in April 2005, while he was in China, as described in a letter of August 1, 2006 from James H. Burrus, Acting Assistant Director of the FBI’s Criminal Investigative Division, sent to Rep. Henry A. Waxman. This FOIA request included the above referenced letter, describing the FBI’s alleged “thorough review’ of this incident by that agency’s legal attache in China, and the Russell family sought copies of the investigation undertaken by the FBI that was described in the above referenced letter sent by the FBI to a Member of Congress.
However, after extensive briefing and court filings on this issue, the FBI has finally admitted, in a January 11, 2011 declaration by a representative of the FBI’s legal attache in China that was filed with the Court, that in fact the FBI had no records of having ever undertaken any investigation s to the cause of Darren Russell’s death, notwithstanding their claim to have done so set forth in their prior letter to Congress. As a result of learning that there was actually no FBI investigation of Darren Russell’s death, the Russell family will be seeking reimbursement for their attorney fees and costs associated with this claim based upon the agency’s change in position.
Both parties to this litigation have filed motions for summary judgment setting forth their legal positions as to all claims, and have also filed extensive response and rely memorandum and supporting declarations and evidence to the Court, and it is anticipated that there will be a final ruling issued sometime in late 2011 (or early 2012) by the Court in this federal FOIA litigation.
June 7, 2012 Case Update: On December 27, 2012, the Court issued a preliminary ruling in this case, granting partial Summary Judgment to Plaintiff Maxine Russell against the Department of State in this FOIA action. The Court expressly found that the State Department was improperly withholding many responsive records to Ms. Russell’s FOIA requests, and ordered the agency to release many records previously withheld by the State Department. Among the Court’s key findings and rulings, the agency was ordered to release all records pertaining to Ms. Russell’s third FOIA request described above, the February 9, 2006, FOIA request by Ms. Russell’s attorney, requesting copies of “all documents that describe or which otherwise document any actions taken by Department of State employee Charles Henning, who worked in the Guangzhou, China office of the Consulate General of the United States, which involve his posting or writing of any inappropriate comments or other remarks about Darren Russell to an online blog or computer website in 2005 or 2006, and any records of any State Department discussion, review, investigation or reprimands associated with Mr. Henning’s actions as described above.” However, the agency remains uncooperative in providing these records, notwithstanding the Court’s Order, and has already indicated that it plans to appeal the Court’s ruling to the Ninth Circuit Court of Appeals, rather then releasing these records to Ms. Russell at this time. In addition, the Court also ordered the State Department to release a number of agency “draft” documents that the agency had prepared to various members of Congress, describing their actions in response to Mr. Russell’s death. The Court expressly ruled that the agency had not met its claim to a “b5" FOIA exemption for these records, finding that these records were not in fact “pre-decisional” since they did not pertain to any actual
agency decisions. The Court allowed the agency to submit these records to the Court for “in camera” review (review of all responsive records without the redactions), and upon completing that review, the Court ruled that the agency had not met its claim that these records were exempt from disclosure, and ordered the agency to provide those records to Ms. Russell. However, rather then providing copies of these responsive records, per the Court’s Order, the State Department has instead filed an appeal with the Ninth Circuit Court of Appeals, seeking to get a reversal of the federal district court’s ruling that these records were not exempt from disclosure under FOIA, and therefore should be provided to Ms. Russell at this time. It is anticipated that this federal court appeal filed by the agency may take several years to complete, in order for Ms. Russell to finally get all of the records that were ordered to be released by the district court judge’s rulings.
The District Court Judge also found that the agency had not met its burden in demonstrating it had performed an “adequate search” for records relating to its investigation of any interactions between the State Department and a Chinese national, identified as Miracle Gan, who was reported to be the last person known to have seen Darren Russell alive before he was murdered. Based upon evidence within agency records proving that the State Department had some interactions with Ms. Gan, subsequent to Mr. Russell’s death, the Court has now ordered the agency to allow Ms. Russell’s attorneys to undertake discovery depositions of several key State Department staff, in order to make inquiries as to the nature of any further records that the agency may have gathered from Ms. Gan concerning the circumstances of Mr. Russell’s death in China.
Lastly, the Court has very recently ordered the parties to undertake a further supplemental summary judgment briefing schedule to address several remaining issues in this case, including the agency’s more recent additional withholdings and redactions of some further responsive records that the agency has only belatedly produced (with significant withholdings and redactions) per the Court’s ruling that they needed to perform an additional and better search for some responsive records requested by Ms. Russell’s FOIA requests.
It is anticipated that this supplemental briefing and court filings will be completed by August of 2012, and that the Court will thereafter issue a ruling as to these additional issues, and the release of these additional responsive records, sometime in the Fall of 2012. However, based upon the agency’s pattern of actions in this case, and its response to the Court’s earlier rulings ordering the release of records, it is expected that the State Department will also likely appeal any additional rulings by the federal District Court ordering the agency to release further records to Ms. Russell in this court action.
For further information about the Russell v. Department of State et. al. FOIA litigation, contact attorney Daniel J. Stotter, Stotter & Associates LLC, at dstotter@qwestoffice.net
The case was assigned to United States District Court Judge Philip S. Gutierrez.
This case filed by the Russell family sought to address the failure of the Department of State and the FBI to provide any responsive records to four separate FOIA requests associated with the April 14, 2005 murder of Darren E. Russell in Guangzhou China. Prior to filing this lawsuit, the Russell family sent FOIA requests to the United States Department of State and to the FBI seeking copies of agency records. However, these agencies refused to provide any responsive records to the family, and after extensive correspondence requesting these agency records, and after exhausting all agency administrative remedies, a lawsuit was filed in federal court to compel these federal agencies to provide these records.
The first FOIA request at issue in this court action was sent to the Department of State on August 9, 2006 by Maxine Russell, seeking copies of “all documents, cables, memoranda, memoranda attachments, reports, pictures, video, audio recording, meeting transcripts, official note taking etc. relating to the life and death of Darren Evan Russell in the People’s Republic of China.” The agency initially provided no records, but after the federal court case was filed in 2009, and although the Department of State finally began providing some responsive records for this FOIA request, the agency has still failed and refused to provide many records sought by the Russell family for this FOIA request.
In addition, there are pending issues in this federal court case challenging the agency’s failure to perform an adequate search for responsive records at the State Department’s consulate and embassy offices in China, and at several Department of State offices in the U.S. that processed records concerning Darren Russell’s death, and that document the agency’s response to this incident.
The second FOIA request at issue in this court at issue in this litigation was sent to the Department of State on February 9, 2006 by Maxine Russell, requesting copies of all records and documents that discuss, or which otherwise describe (1) the security measure actions taken by the State Department Diplomatic Security Services to prevent Ms. Russell from delivering written materials pertaining to the death of her son Darren Russell to the Chinese Consulate in Los Angeles, California, on April 11, 2007, and (2) any subsequent reports or communications pertaining to this April 11, 2007 incident sent to or received from any public officials of the Department of State, to the Chinese Consulate, or to any other public officials, from April 11, 2007 to the date of this FOIA request.”
The State Department also refused to provide any records for this FOIA request until after the federal court case was filed in 2009, and to date, the agency has still not provided any contemporaneous records that were created at the time of this incident at the Chinese Consulate in Los Angeles, California (on April 11, 2007), and has instead only provided the Russell family with records that were created several years later, summarizing this incident in response to a subsequent media investigation, and the agency still claims that there were no investigatory notes, or other records created by the State Department Diplomatic Security agents who were directly involved in preventing Ms. Russell from presenting documents to Chinese government officials at their Los Angeles Consulate Office.
The third FOIA request at issue in this litigation was sent to the Department of State on February 9, 2006, by Ms. Russell’s attorney, requesting copies of “all documents that describe or which otherwise document any actions taken by Department of State employee Charles Henning, who worked in the Guangzhou, China office of the Consulate General of the United States, which involve his posting or writing of any inappropriate comments or other remarks about Darren Russell to an online blog or computer website in 2005 or 2006, and any records of any State Department discussion, review, investigation or reprimands associated with Mr. Henning’s actions as described above.” To date, the Department of State has refused to even undertake a search to locate any responsive records for this FOIA request, and has refused to provide any responsive records to the Russell family, and also refuses to admit or deny whether or not there are any responsive records for this FOIA request. The legal issues involving the agency’s failure to search and their failure to provide any responsive records are currently the subject of cross motions for summary judgment court filings, and the federal Court is anticipated to issue a ruling to resolve this claim later this year (2011).
The fourth FOIA request in this lawsuit involves a February 5, 2009, FOIA request by Maxine Russell that was sent to headquarters of the Federal Bureau of Investigation (FBI), requesting copies of all agency records that document or describe any actions taken by the FBI (including any communications with other federal agencies) with respect to any investigations of the death of Darren Russell, in April 2005, while he was in China, as described in a letter of August 1, 2006 from James H. Burrus, Acting Assistant Director of the FBI’s Criminal Investigative Division, sent to Rep. Henry A. Waxman. This FOIA request included the above referenced letter, describing the FBI’s alleged “thorough review’ of this incident by that agency’s legal attache in China, and the Russell family sought copies of the investigation undertaken by the FBI that was described in the above referenced letter sent by the FBI to a Member of Congress.
However, after extensive briefing and court filings on this issue, the FBI has finally admitted, in a January 11, 2011 declaration by a representative of the FBI’s legal attache in China that was filed with the Court, that in fact the FBI had no records of having ever undertaken any investigation s to the cause of Darren Russell’s death, notwithstanding their claim to have done so set forth in their prior letter to Congress. As a result of learning that there was actually no FBI investigation of Darren Russell’s death, the Russell family will be seeking reimbursement for their attorney fees and costs associated with this claim based upon the agency’s change in position.
Both parties to this litigation have filed motions for summary judgment setting forth their legal positions as to all claims, and have also filed extensive response and rely memorandum and supporting declarations and evidence to the Court, and it is anticipated that there will be a final ruling issued sometime in late 2011 (or early 2012) by the Court in this federal FOIA litigation.
June 7, 2012 Case Update: On December 27, 2012, the Court issued a preliminary ruling in this case, granting partial Summary Judgment to Plaintiff Maxine Russell against the Department of State in this FOIA action. The Court expressly found that the State Department was improperly withholding many responsive records to Ms. Russell’s FOIA requests, and ordered the agency to release many records previously withheld by the State Department. Among the Court’s key findings and rulings, the agency was ordered to release all records pertaining to Ms. Russell’s third FOIA request described above, the February 9, 2006, FOIA request by Ms. Russell’s attorney, requesting copies of “all documents that describe or which otherwise document any actions taken by Department of State employee Charles Henning, who worked in the Guangzhou, China office of the Consulate General of the United States, which involve his posting or writing of any inappropriate comments or other remarks about Darren Russell to an online blog or computer website in 2005 or 2006, and any records of any State Department discussion, review, investigation or reprimands associated with Mr. Henning’s actions as described above.” However, the agency remains uncooperative in providing these records, notwithstanding the Court’s Order, and has already indicated that it plans to appeal the Court’s ruling to the Ninth Circuit Court of Appeals, rather then releasing these records to Ms. Russell at this time. In addition, the Court also ordered the State Department to release a number of agency “draft” documents that the agency had prepared to various members of Congress, describing their actions in response to Mr. Russell’s death. The Court expressly ruled that the agency had not met its claim to a “b5" FOIA exemption for these records, finding that these records were not in fact “pre-decisional” since they did not pertain to any actual
agency decisions. The Court allowed the agency to submit these records to the Court for “in camera” review (review of all responsive records without the redactions), and upon completing that review, the Court ruled that the agency had not met its claim that these records were exempt from disclosure, and ordered the agency to provide those records to Ms. Russell. However, rather then providing copies of these responsive records, per the Court’s Order, the State Department has instead filed an appeal with the Ninth Circuit Court of Appeals, seeking to get a reversal of the federal district court’s ruling that these records were not exempt from disclosure under FOIA, and therefore should be provided to Ms. Russell at this time. It is anticipated that this federal court appeal filed by the agency may take several years to complete, in order for Ms. Russell to finally get all of the records that were ordered to be released by the district court judge’s rulings.
The District Court Judge also found that the agency had not met its burden in demonstrating it had performed an “adequate search” for records relating to its investigation of any interactions between the State Department and a Chinese national, identified as Miracle Gan, who was reported to be the last person known to have seen Darren Russell alive before he was murdered. Based upon evidence within agency records proving that the State Department had some interactions with Ms. Gan, subsequent to Mr. Russell’s death, the Court has now ordered the agency to allow Ms. Russell’s attorneys to undertake discovery depositions of several key State Department staff, in order to make inquiries as to the nature of any further records that the agency may have gathered from Ms. Gan concerning the circumstances of Mr. Russell’s death in China.
Lastly, the Court has very recently ordered the parties to undertake a further supplemental summary judgment briefing schedule to address several remaining issues in this case, including the agency’s more recent additional withholdings and redactions of some further responsive records that the agency has only belatedly produced (with significant withholdings and redactions) per the Court’s ruling that they needed to perform an additional and better search for some responsive records requested by Ms. Russell’s FOIA requests.
It is anticipated that this supplemental briefing and court filings will be completed by August of 2012, and that the Court will thereafter issue a ruling as to these additional issues, and the release of these additional responsive records, sometime in the Fall of 2012. However, based upon the agency’s pattern of actions in this case, and its response to the Court’s earlier rulings ordering the release of records, it is expected that the State Department will also likely appeal any additional rulings by the federal District Court ordering the agency to release further records to Ms. Russell in this court action.
For further information about the Russell v. Department of State et. al. FOIA litigation, contact attorney Daniel J. Stotter, Stotter & Associates LLC, at dstotter@qwestoffice.net
This section was last updated / modified on June 11, 2012
