Cottom v. United States Department of Justice (DOJ)

- 1 -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KIRK COTTOM,
Plaintiff,
DECISION AND ORDER
v.
6:23-CV-6307 EAW
UNITED STATES DEPARTMENT OF
JUSTICE (DOJ),
Defendant.

I. 	INTRODUCTION
Pro se plaintiff Kirk Cottom (“Plaintiff”) alleges that the United States Department
of Justice (“DOJ” or “Defendant”) has violated the Freedom of Information Act (“FOIA”).
(Dkt. 1). 	Plaintiff has filed a motion for a preliminary injunction, asking the Court to
require Defendant to complete the processing of his FOIA request within 20 days. (Dkt.
9). 	Because he has not made a showing of irreparable harm, Plaintiff’s request for a
preliminary injunction is denied.
II. 	BACKGROUND
Plaintiff submitted a request under FOIA to the Federal Bureau of Investigation
(“FBI”) on March 14, 2022, seeking “all ‘Operation Torpedo’ Network Investigation
Technique (NIT) Reports.” 	(Dkt. 15 at 2). 	On March 22, 2022, the FBI sent a letter to
Plaintiff acknowledging his FOIA request and indicating that it “did not contain sufficient
information to conduct an accurate search of the Central Records System.” (Id. at 4). This
Case 6:23-cv-06307-EAW-CDH Document 16 Filed 10/16/23 Page 1 of 4

- 2 -
letter further requested that Plaintiff provide any additional information he had to assist the
FBI in searching for records. (Id.).
On March 27, 2022, Plaintiff sent a reply letter indicating he was seeking “the 15
FBI ‘Interface Reports’ used to initiate the prosecution of Nebraska Case Nos. 8:13CR105,
8:13CR106; 8:13CR107 & 8:13CR108.” (Id. at 8). The FBI sent Plaintiff a letter on April
11, 2022, advising that his request had been received at FBI Headquarters for processing.
(Id. at 10). On December 22, 2022, the FBI sent Plaintiff a letter advising him that it had
conducted a search of the Central Records System and had been unable to identify
responsive records. (Id. at 25).
Plaintiff filed an administrative appeal on February 1, 2023. 	(Id. at 30). 	On
February 14, 2023, the DOJ Office of Information Policy (“OIP”) sent Plaintiff a letter
advising him that his appeal had been received. 	(Id. at 33). 	On April 7, 2023, OIP sent
Plaintiff a letter affirming the FBI’s action on his request and determining that “the FBI’s
action was correct and that it conducted an adequate, reasonable search” for the requested
records. (Id. at 35).
Plaintiff submitted a second FOIA request via letter dated February 1, 2023, to
DOJ’s Criminal Division. (Dkt. 12 at 8). In this letter, Plaintiff requested “copies of all
‘correspondence’ (formal and informal) from DOJ Attorney Keith A. Becker (‘Becker’) to
FBI Special Agents, Foreign Law Enforcement Agents, Prosecution & Defense Attorneys
and Prosecution & Defense Experts, regarding the FBI’s Operation Torpedo (2012 to
2015) & Operation Pacifier (2015 to 2018) that were run by Becker.” (Id.). 	On June 22,
2023, the Criminal Division sent Plaintiff a letter acknowledging that his request had been
Case 6:23-cv-06307-EAW-CDH Document 16 Filed 10/16/23 Page 2 of 4

- 3 -
received on February 16, 2023, and indicating that a search was ongoing. (Id. at 11). In a
declaration dated September 13, 2023, Christina Butler, the Chief of the Freedom of
Information Act/Privacy Act Unit in the Office of Enforcement Operations in the Criminal
Division, explained that a search for documents responsive to Plaintiff’s request continues
and that the Criminal Division would “not be able to provide Plaintiff with a potentially
responsive page count until at least October 30, 2023.” (Dkt. 12 at ¶ 12).
Plaintiff commenced this action on June 5, 2023. (Dkt. 1). He filed his motion for
a preliminary injunction on August 23, 2023 (Dkt. 9), and Defendant filed its opposition
on September 15, 2023 (Dkt. 11; Dkt. 12; Dkt. 13).
III. 	DISCUSSION
The standard for a preliminary injunction in the Second Circuit is as follows:
In general, district courts may grant a preliminary injunction where a plaintiff
demonstrates irreparable harm and meets one of two related standards: either
(a) a likelihood of success on the merits, or (b) sufficiently serious questions
going to the merits of its claims to make them fair ground for litigation, plus
a balance of the hardships tipping decidedly in favor of the moving party.
Otoe-Missouria Tribe of Indians v. N.Y. State Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d
Cir. 2014) (quotations omitted). 	“A showing of irreparable harm is the single most
important prerequisite for the issuance of a preliminary injunction.” 	JTH Tax, LLC v.
Agnant, 62 F.4 th 658, 672 (2d Cir. 2023) (citation and internal quotation marks omitted).
In his motion for a preliminary injunction, Plaintiff has made no showing that he is
likely to suffer irreparable harm if he is not granted relief—the words “irreparable harm”
do not even appear in his motion papers. Indeed, as discussed in Defendant’s opposition
papers (see Dkt. 13 at 5-7), a showing of irreparable harm is rare in the context of a FOIA
Case 6:23-cv-06307-EAW-CDH Document 16 Filed 10/16/23 Page 3 of 4

- 4 -
case like this, where Plaintiff “has failed to demonstrate any time sensitive need for [the
requested] information that will be irreparably lost if disclosure does not occur immediately
and this case is allowed to proceed down the typical path of FOIA litigation.” 	Sai v.
Transportation Sec. Admin., 54 F. Supp. 3d 5, 11 (D.D.C. 2014) (quotation omitted).
Absent such a showing, Plaintiff’s request for a preliminary injunction must be denied. See
Nat’l Rifle Ass’n of Am. V. Cuomo, No. 1:18-CV-0566, 2020 WL 13179551, at *10
(N.D.N.Y. July 13, 2020) (“Absent a clear demonstration of irreparable harm if the sought-
after injunction is not issued, Plaintiff’s motion for a preliminary injunction must be denied
and the Court need not address the remaining preliminary injunction elements.”).
IV. 	CONCLUSION
Because Plaintiff has not satisfied the standard for issuance of a preliminary
injunction, his motion for that relief (Dkt. 9) is denied.
SO ORDERED.
_________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: October 16, 2023
Rochester, New York
______________________________	__ 	___________________	__
ELIZA	AB	B	BE	ET	T	T	TH A. W	W	W	WO	O	O	OL	L	LF	F	FO	ORD
C	Chief Judddggggee
Case 6:23-cv-06307-EAW-CDH Document 16 Filed 10/16/23 Page 4 of 4