Breaking: Mikey Weinstein FOIA Lawsuit Dismissed with Prejudice

Michael “Mikey” Weinstein settled his FOIA lawsuit with the US Air Force Academy last week (making it the first lawsuit against the military/government he’s filed that wasn’t summarily tossed out). Weinstein had filed the lawsuit after he alleged USAFA was unresponsive to his Freedom of Information Act request.

One of USAFA’s complaints about Weinstein’s FOIA was that it was overly broad, and the settlement appears to specifically address that concern by having Weinstein cite the specific location of record searches and the subjects of the records sought.

(For the uninitiated, that information should have been in the initial FOIA request Weinstein filed. To see that this treatment isn’t limited to Weinstein, you can read an example here of what happened when someone filed a FOIA asking the entire US military for “a copy of all communication to or from Mikey Weinstein.”  It took them 3 years to get a full response to that vague and broad request.)

In one example, USAFA will search for documents:

b) In regards to the Cadets for Christ program: multiple emails to Mikey Weinstein and other MRFF volunteers from officials in the USAFA Public Affairs office, the Chaplain’s office, and the Superintendent’s office in 2010.

That’s pretty specific, and meets USAFA’s demand that Weinstein actually tell them what he wants, as opposed to just saying “any and all records over a period of 10 years, etc.”

But does anyone else think it strange that Mikey Weinstein is having USAFA provide him with copies of emails addressed to him? Shouldn’t he have those emails already? Is Mikey Weinstein using USAFA and FOIA as his cloud storage now?

Not all the requests are as specific, but at least there is some detail to them rather than the broad, decade-long sweep he was originally demanding.

Further, Weinstein conceded in the settlement that the records he wants might not have been kept by USAFA — so they may no longer exist.  Finally, and shockingly:

MRFF will not challenge the sufficiency of the search…

MRFF agrees to dismiss this suit with prejudice.

That’s a concession.  Not only did Mikey Weinstein agree to accept USAFA’s efforts as good enough — even if they produce no records — he also cannot file a lawsuit again if he isn’t happy.

On the Air Force’s part, the settlement provides very specific timelines for review and notification to the MRFF on the status of such reviews (for example, three weeks for the initial search). As has been said before, why USAFA couldn’t manage to come up with or support such a schedule on its own is a mystery.  That said, both Weinstein and USAFA acknowledge USAFA did answer the FOIA, with Weinstein receiving over 8,000 pages of documents — which, as just a partial response to his FOIA, gives an indication of how big his FOIA was and the demand it placed on USAFA’s staff.

USAFA will pay Weinstein’s New Mexico-based attorneys $25,000.

On one hand, USAFA is essentially paying to establish a response schedule it should have created to begin with. On the other, Weinstein was finally required to actually provide USAFA with the data it needed to reasonably scope the search for FOIA records.

In the end, what does Mikey Weinstein’s religious freedom lawsuit have to do with military religious freedom?

Not much.

Weinstein did ask for some records regarding religious-related issues: He has asked for records on Operation Christmas Child from 2011, Cadets for Christ in 2010, and a brief in 2008 (which Weinstein followed). Outside of a fishing expedition, there doesn’t appear to be any new or salient information regarding those events, nor any relevance of those events to anything ongoing.

On the other end of the scale, Weinstein also asked for a word-search of records based on his name and those of his family, without regard to any specific situation or religious liberty. In that case, it seems Weinstein is simply fishing to find out what people are saying about him. More obscurely, he also asked for records related to the security requirements for his 2007 debate with Jay Sekulow. (Ten years ago Weinstein was very proud of the fact he took an armed bodyguard with him everywhere, including ‘bodyguard to the stars’ Anthony Burnside. The debate occurred on an Air Force base — which doesn’t take kindly to civilians carrying concealed weapons. Apparently Weinstein is still smarting from the snub.)

Realistically, there are no winners in this case. USAFA has egg on its face — and a lighter wallet — for either (a) not doing what it was supposed to do, or (b) not more aggressively handling Weinstein to demonstrate it could not do what he wanted them to. For his part, Weinstein did little more than waste time and effort to obtain a remedial lesson on how to submit a FOIA request — had he done so correctly the first time, he might have had what he requested years ago. Instead, he now has a court ruling forcing him to take what he gets and not complain about it.

Actually, there is one winner: Weinstein’s lawyers, Vincent Ward and Amber Fayerberg, have a nice $25,000 paycheck, funded by the taxpayers at Mikey Weinstein’s request.

A few observant readers are probably wondering by now about the seeming disconnect between the sensational headline of this article and its fairly benign content.  The lawsuit was settled last Thursday; this news isn’t “breaking.”  While it is true Weinstein’s suit was dismissed with prejudice, that was but one of several concessions he made to settle the suit — and USAFA made concessions, too.

So why the disparity?  A demonstration of absurdity, if you will:  Yesterday, Mikey Weinstein displayed that very absurdity when he announced this same story by saying [formatting original]:

BREAKING: USAF Academy Agrees to Pay $25,000 to Settle MRFF’s Lawsuit!

As shown above, that’s a pretty prejudicial way of framing what really happened last week — a point even USAFA highlighted in response to Weinstein’s sensationalist headline:

Attorney’s fees are not an uncommon expense for defendants in FOIA litigation, even when the parties settle without attributing fault or liability. This money is not paid directly by USAFA, but rather comes out of a general Air Force Litigation fund used in instances when the Air Force is sued.

Don’t know what to believe?  You can read the settlement agreement for yourself.  Funny that Mikey Weinstein gave his version of events without releasing the actual court documents, don’t you think?

USAFA paid the attorney fees as one concession in the settlement, and Weinstein made concessions of his own. To portray it as USAFA paying its way out of trouble isn’t entirely forthright.

For Mikey Weinstein, though, publicity is more important than principle — or integrity.

Repeated at the Colorado Springs Gazette and Stars and Stripes.

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