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Judicial Watch • JW v DHS Travel discovery 01983

JW v DHS Travel discovery 01983

JW v DHS Travel discovery 01983

Page 1: JW v DHS Travel discovery 01983


Number of Pages:9

Date Created:February 22, 2016

Date Uploaded to the Library:September 14, 2017

Tags:01983, Compl, practice, claim, Discovery, SECRET, requests, policy, service, complaint, DHS, president, defendant, filed, Obama, plaintiff, travel, document, records, FOIA, IRS

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Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 15-cv-1983 (RJL)
Plaintiff Judicial Watch, Inc., undersigned counsel, respectfully moves this Court for Order, pursuant Rule 26(b) the Federal Rules Civil Procedure, and for good cause,
granting Plaintiff leave conduct discovery its policy and practice claim this Freedom Information Act FOIA lawsuit. Pursuant Local Rule 7(m), Plaintiff certifies that
discussed this motion with Defendant counsel good-faith effort determine whether there any opposition and narrow any areas disagreement. Based that discussion, Plaintiff
understands that Defendants opposes this motion. Plaintiff respectfully submits the attached
Memorandum Law and Proposed Order support its motion.
Procedural Background. November 10, 2015, Plaintiff filed Complaint asserting two claims. Count One
consists traditional FOIA claim, which Plaintiff sued Defendant for violating its FOIA
obligations with respect nineteen (19) travel-related FOIA requests. Compl. (ECF No.
19-20. Count Two asserts that Defendant has policy and practice violating FOIA
procedural requirements connection with the processing Plaintiff requests and,
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page
particular, regularly failing refusing produce requested records otherwise demonstrate
that requested records are exempt from production within the time period required FOIA
least within reasonable period time. Compl. (ECF No. 22-23.
Defendant answered Plaintiff Complaint December 22, 2015, denying Plaintiff
allegation regarding policy practice violating FOIA connection with the processing Plaintiff FOIA requests. Def Answer (ECF Doc. 8).
Defendant subsequently produced records responsive Secret Service Tracking
Numbers 20150067, 20150170, and 2015071 about January 13, 2016. Defendant then
produced records responsive Secret Service Tracking Numbers 20141036 and 20150439
January 15, 2016. Defendant will produce records responsive the outstanding requests before March 18, 2016.
Within one month Plaintiff filing lawsuit against Defendant for violating its FOIA
obligations, Defendant began producing responsive records requests made nearly two years
earlier. Upon final production, promised March 18, 2016, Defendant will have produced
records responsive Plaintiff FOIA requests submitted over period one year from
July 2014 through August 2015 just months. February 12, 2016, Defendant filed Motion for Judgment the Pleadings
Plaintiff Policy and Practice Claim. (ECF Doc. 11.) The parties dispute whether discovery necessary for further litigation regarding Plaintiff policy and practice claim given
Defendant commitment producing all requested records before March 18, 2016
Factual Background.
Plaintiff not-for-profit, educational organization incorporated under the laws the
District Columbia. Plaintiff seeks promote transparency, integrity, and accountability
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page
government and fidelity the rule law. part its mission, Plaintiff regularly requests
records from federal agencies pursuant FOIA. Plaintiff analyzes the agencies responses and
disseminates both its findings and the requested records the American public inform them
about what their government to.
For years, Plaintiff has regularly monitored expenditures U.S. Government funds
VIP travel. part this on-going monitoring, Plaintiff has served numerous FOIA requests
the U.S. Secret Service Secret Service component Defendant, seeking access records
about U.S. Government funds expended travel the President, members the First Family,
and other VIPs receiving Secret Service protection. Secret Service records typically include
records expenses incurred for ground transportation, lodging, meals, and other related costs
for the VIP and accompanying Secret Service detail. Plaintiff also regularly serves FOIA
requests the U.S. Air Force and other agencies for records about federally-funded, VIP travel.
U.S. Air Force records reflect the cost air travel. Compl. (ECF No.
Plaintiff typically analyzes the records receives response its requests and issues
reports its findings. Compl. (ECF No. The Secret Service regularly fails issue
determinations response Plaintiff VIP, travel-related FOIA requests within the time period
required FOIA, causing Plaintiff bring suit order obtain the requested records. Compl.
(ECF No.
During the time period from July 21, 2014 August 24, 2015, Plaintiff submitted
travel-related FOIA requests the Secret Service part Plaintiff on-going monitoring
federally-funded, VIP travel. All the requests were identical nearly identical but for the
name the VIP and the date and/or destination the travel. Plaintiff requests sought: All
records concerning use U.S. Government funds provide security and/or any other services
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page [name VIP] and any other companions their [date] trip [location]. Compl. (ECF No. November 10, 2015, when Plaintiff filed its Complaint, the Secret Service had not
made determination single, travel-related FOIA request served Plaintiff since July 21,
2014. Compl. (ECF No. Pursuant U.S.C. 552(a)(6)(A)(i), the Secret Service was
required determine whether comply with each request within twenty (20) working days
receipt and notify Plaintiff immediately its determination, the reasons therefor, and the right appeal any adverse determination. all but two instances, the Secret Service acknowledged
receipt Plaintiff request and assigned tracking number the request. Compl. (ECF No.
10. three instances, the Secret Service provided further communication about the status
the request, but otherwise failed issue determination whether comply with the request,
produce responsive records, demonstrate that responsive records were exempt from
production under one more FOIA exemptions. Compl. (ECF No. 11.
Plaintiff intends continue submitting identical nearly identical, travel-related FOIA
requests the Secret Service part its on-going efforts educate and inform the public
about what their government and promote transparency, integrity, and accountability government and fidelity the rule law. Compl. (ECF No. 17. Defendant continues
fail make proper and timely determinations Plaintiff travel-related FOIA requests.1
result, Plaintiff has been, and continues be, prevented from gathering complete records
Plaintiff sent FOIA request Secret Service October 13, 2015 seeking information and records
regarding President Obama October 2015 trip San Diego, CA. Defendant acknowledged receipt the request October 30, 2015 and assigned File No. 20160177. the date this filing, there has been further
communication regarding the October 13, 2015 request. January 2016, Plaintiff sent FOIA request Secret
Service seeking information and records regarding President Obama December 2015-January 2016 trip
Honolulu, HI. the date this filing, Defendant has been response the January 2016 request either.
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page
federally-funded, VIP travel, and Plaintiff reports about federally-funded, VIP travel have been
incomplete. Compl. (ECF No. 16.
Legal Standard.
The basic purpose FOIA ensure informed citizenry, vital the functioning democratic society, needed check against corruption and hold the governors accountable the governed. NLRB Robbins Tire Rubber Co., 437 U.S. 214, 242 (1978). Ensuring that
agency records disclosed timely manner important effectuating the purpose FOIA. the legislative history FOIA makes clear, Congress recognized that delay releasing
information can tantamount denial access. See Rep. No. 876, 93rd Cong., Sess.,
reprinted 1974 U.S. Code Cong. Admin. News, 6267, 6271. The value information
partly function time. Fiduccia U.S. Dep Justice, 185 F.3d 1035, 1041 (9th Cir.
1999). Consequently, agencies are required determine within twenty days the receipt
request for records whether comply with such request and immediately notify the person
making such request such determination and the reasons thereof. U.S.C. 552(a)(6)(A)(I).
This time limit can extended ten working days the agency determines that unusual
circumstances exist. U.S.C. 552(a)(6)(B).
Given the unique nature FOIA litigation, parties typically not engage the normal
civil discovery process. Discovery permitted certain circumstances, however. See, e.g, Tax
Analysts Internal Revenue Service, 214 F.3d 179, 185 (D.C. Cir. 2000) (remanding for
discovery narrow and fact-specific question concerning disclosability specific type
document); Citizens for Responsibility Ethics Washington Office Admin., 2008 U.S.
Dist. LEXIS 111094 (D.D.C. Feb. 11, 2008) (order authorizing jurisdictional discovery
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page
FOIA/PRA case); Public Citizen Food and Drug Administration, 997 F.Supp. 56, (D.D.C.
1998) (permitting discovery investigating the scope the agency search for responsive
documents, the agency indexing procedures, and the like see also Heily U.S. Dep
Commerce, Fed. App 171, 174 (4th Cir. 2003) (per curiam) (explaining that discovery may permitted regarding the scope agency search and its indexing and classification
procedures Alley U.S. Dep Health and Human Services, 2008 U.S. Dist. LEXIS 106884,
**19-20 (N.D. Ala. May 2008) (granting plaintiff leave conduct limited discovery flesh out
his claim that agency has policy unreasonably denying FOIA requests that take over two hours process and/or that require create computer programming
Plaintiff Should Allowed Conduct Discovery Regarding its Policy and
Practice Claim.
Plaintiff Complaint alleges that Defendant has policy and practice ignoring
delaying its responses Plaintiff FOIA requests. Compl. (ECF No. 22. Defendant denies
the existence such policy practice, raising quintessential factual dispute about issue
central this lawsuit. Def Answer (ECF No. 22. The fact that Defendant failed
respond multiple requests within the timeframe and parameters proscribed under FOIA, yet
produced records quickly after litigation was initiated, only confirms the likelihood that
Defendant has policy and practice ignoring delaying its responses Plaintiff FOIA
requests. result, Plaintiff seeks discovery into Defendant handling Plaintiff FOIA
requests and, particular, why many Plaintiff requests went unanswered for more than
year. The objective this discovery will obtain admissible evidence support
Plaintiff pattern and practice claim. Specifically, Plaintiff intends seek discovery into the
number and nature FOIA requests Defendant receives; Defendant processes for responding
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page FOIA requests; whether other FOIA requestors experienced the same delays experienced
Plaintiff; the existence any communications directives concerning the processing
Plaintiff FOIA requests; and why how Defendant was able provide responses quickly the FOIA requests identified the Complaint when confronted with litigation. Permitting
discovery targeted these factually disputed issues appropriate and necessary fully
adjudicate Plaintiff policy and practice claim.
Plaintiff Policy and Practice Claim well-supported. state claim for relief under the policy practice doctrine articulated [Payne
Enterprises United States, 837 F.2d 486 (D.C. Cir. 1987)] plaintiff must allege facts
establishing that the agency has adopted, endorsed, implemented some policy practice that
constitutes ongoing failure abide the terms the FOIA. Mutitt Dep State, 926 Supp. 284, 293 (D.D.C. 2013) (quoting Payne Enterprises, 837 F.2d 491). Courts have
held that claim that agency policy practice will impair the party lawful access
information the future valid and justiciable where plaintiff can show that applicable facts
demonstrate its specific injury. Hajro U.S. Citizenship and Immigration Services, 807
1054 (9th Cir. 2015), citing Payne Enters., Inc., 837 F.2d 491; see also Newport Aeronautical
Sales Dep the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012); Mayock Nelson, 938 F.2d
1006 (9th Cir. 1991); Long IRS, 693 F.2d 907, 909-10 (9th Cir. 1982).
Plaintiff policy and practice claim well-supported. Plaintiff Complaint identifies travel-related FOIA requests submitted between July 2014 and August 2015 response
which Defendant did not make single determination until Plaintiff filed this lawsuit. Compl.
(ECF No. 8-12, Attach. Plaintiff Complaint also alleges that: (1) Defendant
repeated failure respond was not isolated incident, but the result policy practice
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page
(Compl. (ECF No. 8-12); (2) Plaintiff was personally harmed the alleged policy
practice (Compl. (ECF No. 16); and (3) Plaintiff has sufficient likelihood future harm the policy practice. Compl. (ECF No. 17, 23. Defendant does not assert that
Plaintiff Complaint does not state pattern practice claim and admitted its Answer that had not issued final responses any the requests. Def Answer (ECF No. 14.
nonetheless filed Motion for Judgment the Pleadings asserting that there are material
facts dispute and that entitled judgment matter law.2 (ECF No. 11-1). Plainly,
that motion cannot adjudicated until Plaintiff has had the opportunity take discovery and
obtain admissible evidence support its claim.
Finally, Plaintiff policy practice claim not mooted Defendant anticipated
production documents before March 18, 2016. Payne Enters., Inc., the Court held
that pattern practice claim remains viable [s]o long agency refusal supply
information evidences policy practice delayed disclosure some other failure abide
the terms the FOIA, and not merely isolated mistakes agency officials. 837 F.2d 491;
see also Hajro, 807 F.3d 1070. Plaintiff alleged this the case, has demonstrated factual
basis for its claim, and must allowed discovery order obtain admissible evidence
support its claim. Discovery must proceed Plaintiff policy and practice claim before
the Court can adjudicate Defendant motion for judgment.
For the foregoing reasons, Plaintiff respectfully requests that granted leave take
discovery support policy practice claim against Defendant.
Dated: February 22, 2016
Respectfully submitted,
Pursuant the Court February 2016 scheduling order, Plaintiff response Defendant Motion
due March 11, 2016. Plaintiff intends address Defendant argument full that time.
Case 1:15-cv-01983-RJL Document Filed 02/22/16 Page
/s/ Lauren Burke
Lauren Burke
D.C. Bar No. 1028811
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Counsel for Plaintiff