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Judicial Watch • JW v DHS VIP travel opinion order 5339 01983

JW v DHS VIP travel opinion order 5339 01983

JW v DHS VIP travel opinion order 5339 01983

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Date Created:July 25, 2018

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USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
United States Court Appeals
FOR THE DISTRICT COLUMBIA CIRCUIT
Argued September 15, 2017
Decided July 17, 2018
No. 16-5339
JUDICIAL WATCH, INC.,
APPELLANT
UNITED STATES DEPARTMENT HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District Columbia
(No. 1:15-cv-01983)
Lauren Burke argued the cause and filed the briefs for
appellant. Paul Orfanedes entered appearance.
Sarah Carroll, Attorney, U.S. Department Justice,
argued the cause for appellee. With her the brief was Mark Stern, Attorney.
Before: ROGERS, SRINIVASAN, and PILLARD, Circuit
Judges.
Opinion for the Court filed Circuit Judge ROGERS.
Concurring opinion filed Circuit Judge PILLARD.
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
Dissenting opinion filed Circuit Judge SRINIVASAN.
ROGERS, Circuit Judge: For years, Judicial Watch has
monitored expenditures U.S. Government funds VIP
travel submitting requests for records pursuant the
Freedom Information Act FOIA U.S.C. 552, the
U.S. Secret Service and other agencies and reporting its
findings the public. Between 2012 and 2014, when the
Secret Service failed make requested records available
timely manner, Judicial Watch was forced file lawsuit
five separate occasions order obtain the records. Upon
such filing, the Secret Service produced non-exempt records,
mooting the litigation. November 2015, Judicial Watch was forced again file lawsuit when the Secret Service failed make available
records response nineteen travel-related FOIA requests
submitted over thirteen-month period. This time, addition seeking order that the Secret Service produce requested
records, Judicial Watch sought injunctive relief the Secret
Service would not continue violate FOIA mandate that
federal agencies shall make requested records promptly
available. U.S.C. 552(a)(3)(A). Judicial Watch alleged
that the Secret Service has policy and practice violating
FOIA procedural requirements, regularly failing
either produce requested records make determination
regarding their availability accord with FOIA timetables, U.S.C. 552(a)(6)(A), within reasonable time. Compl.
22. Four months after the lawsuit was filed, the Secret
Service, much had done the five prior occasions when
Judicial Watch had sued, produced non-exempt records,
thereby mooting the production request.
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
The only question now before the court whether the
complaint adequately alleged policy practice claim
under FOIA. The district court ruled that Judicial Watch had
failed plead sufficiently egregious facts and granted
judgment the pleadings pursuant Federal Rule Civil
Procedure 12(c). Because the court precedent recognizes that policy practice claim may predicated upon agency
abuse FOIA statutory scheme, reverse and remand
the district court for further proceedings.
The Freedom Information Act provides that federal
agencies, upon any request for records which (i) reasonably
describes such records and (ii) made accordance with
published rules shall make the records promptly available. U.S.C. 552(a)(3)(A) (emphasis added). ensure this
mandate did not become dead letter, Congress adopted twopart approach. First, Congress imposed set requirements federal agencies: established timetables for agencies
respond requests well procedures for agencies obtain
additional time, and required adoption records management
systems facilitate prompt responses. Second, Congress
provided members the public whose records requests were
denied right administrative appeal and right seek
judicial relief. Briefly summarized, the salient features this
two-part scheme are follows:
First, agency shall determine within twenty business
days (one month) receiving FOIA request whether
comply with such request, and shall immediately notify the
person making such request such determination and the
reasons therefor. Id. 552(a)(6)(A). The agency may toll the
response period once while seeking further information from
the requester the scope the information sought. Id.
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
unusual circumstances, the agency may extend the
determination deadline ten business days (two weeks) upon
explaining the circumstances the requester.
Id.
552(a)(6)(B)(i). additional time required address the
request, the agency shall notify the [requester] and shall
provide the person opportunity limit the scope the
request opportunity arrange with the agency
alternative time frame for processing the request modified
request. Id. 552(a)(6)(B)(ii). promote efficient and appropriate compliance with
FOIA, id. 552(j)(2)(A), agencies shall publish their internal
organization and procedures relating records requests, id.
552(a)(1), and provide electronic format instructions
how records may requested, id. 552(a)(2), (g). Agencies
shall also maintain records systems which requesters can
obtain status updates pending requests. Id. 552(a)(7).
Further, agencies shall promulgate regulations that
provid[e] for expedited processing requests when, for
example, the person requesting the records demonstrates
compelling need, and that ensure the agency makes such
determination within ten business days. Id. 552(a)(6)(E).
Agencies are encouraged provid[e] for multitrack
processing requests. Id. 552(a)(6)(D)(i). assist
covering the costs these requirements, agencies may impose
reasonable fees for the processing requests.
Id.
552(a)(4)(A).
Each agency also shall designate Chief FOIA Officer,
id. 552(j), monitor implementation FOIA, keep
government officials apprised the agency performance,
develop policy recommendations, and otherwise facilitate
public understanding FOIA exemptions, id. 552(k). The
officer, turn, shall designate public liaisons responsible for
assisting reducing delays, increasing transparency and
USCA Case #16-5339
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understanding the status requests, and assisting the
resolution disputes. Id. 552(k)(6), (l). Congress also
required that agencies shall annually report the
requests received, processing times, determinations made,
administrative appeals, pending cases, and related information.
Id. 552(e), (k)(4) (5).
Second, FOIA provides procedural protections for
member the public requesting records from agency.
Upon denial request, the requester may seek
reconsideration the head the agency.
Id.
552(a)(6)(A)(i). Upon exhausting the administrative appeal,
the requester may seek judicial relief. Id. 552(a)(4)(B),
(a)(6)(A)(ii). Exhaustion excused when the agency fails
make timely determination that is, within the timetables
established 552(a)(6) whether produce records
withhold them pursuant statutory exemption. Id.
552(a)(6)(C)(i). Judicial relief, turn, may extend beyond
requiring production providing injunctive relief. Id.
552(a)(4)(B). sum, FOIA reflect[s] general philosophy full
agency disclosure unless information exempted under clearly
delineated statutory language. Dep Air Force Rose,
425 U.S. 352, 360 (1976) (quoting REP. No. 813, 89th
Cong., 1st Sess., (1965)). stand[s] sharp relief against
the prior procedures under the Administrative Procedure Act,
which were generally recognized falling short its
disclosure goals and came looked upon more
withholding statute than disclosure statute. EPA Mink,
410 U.S. 73, (1973). FOIA seeks permit access
official information long shielded unnecessarily from public
view and attempts create judicially enforceable public right secure such information from possibly unwilling official
hands. Id. 80. Congress use the word shall issuing
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
directives agencies support the overarching mandate
make records promptly available, U.S.C. 552(a)(3)(A),
instructs courts that Congress contemplated meaningful agency
engagement upon receipt FOIA request. Agencies initially
have month determine whether records can made
available light nine statutory exemptions, id. 552(b)(1)
(9), and have several ways obtain additional time respond requests. This engagement premised agencies
improving records management systems enable prompt
responses. Congress underscored the importance attached
prompt responses allowing judicial recourse, bypassing
administrative exhaustion, agency fails meet statutory
timetables for disclosure justify its delay making nonexempt records available upon request. See Mink, 410 U.S.
93; McGehee CIA, 697 F.2d 1095, 1101 (D.C. Cir. 1983).
The instant appeal brings into sharp focus the meaning
FOIA mandate that agencies shall make requested records
promptly available under this two-part scheme. Between
July 2014 and August 2015, Judicial Watch submitted nineteen
FOIA requests the Secret Service for records public
expenditures for travel President Obama and the First Lady,
Vice President Biden, and former President Carter. Upon
acknowledging receipt and assigning tracking numbers the requests, the Secret Service took further action and
stood mute. November 2015 between three and eighteen
months after the Secret Service had received Judicial Watch
records requests Judicial Watch filed suit. Attached its
complaint was chart showing each request that the Secret
Service had not made any the requested records available
The Secret Service distinct entity within the Department Homeland Security. See Homeland Security Act 2002, Pub.
No. 107-296 821, 116 Stat. 2135, 2224 (codified U.S.C.
381).
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
nor advised Judicial Watch whether any records were exempt
from disclosure. Citing the five lawsuits had filed against the
Secret Service similar circumstances obtain similar
records, Judicial Watch alleged that [t]he Secret Service
regularly fails issue determinations within the time
period required FOIA, causing [Judicial Watch] bring suit order obtain the requested records. Compl.
(emphasis added). The repeated, prolonged, and unexplained
delays have prevented Judicial Watch from gathering complete
records for its reports the public federally funded VIP
travel. See id. 16. Further, Judicial Watch intends
continue submitting identical nearly identical travel-related
FOIA requests 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. Id. 17.
Judicial Watch complaint was two counts. Count
alleged the Secret Service violating FOIA failing
conduct search reasonably calculated uncover all records
responsive each request[] and unlawfully withholding
records responsive each request. Id. 20. relief
sought order directing the Secret Service search and
produce the non-exempt records date certain. Id. Count alleged that the Secret Service, [o]n information
and belief has policy and practice violating FOIA
procedural requirements regularly failing refusing
produce requested records otherwise demonstrate that [they]
are exempt from production within the time period required
FOIA least within reasonable period time, id. 22,
causing irreparable harm, id. 23. sought relief order
enjoining the Secret Service from adhering its policy
practice. Id.
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018 answering the complaint, the Secret Service
acknowledged that had not made final response all
[Judicial Watch FOIA requests, Answer 14, and
otherwise denied violating FOIA. also moved for judgment the pleadings pursuant Rule 12(c) and dismiss Count with prejudice. accompanying memorandum, the
Secret Service stated that would, accord with the district
court scheduling order, produce all non-exempt records
March 18, 2016. Within four months the filing the
complaint, the Secret Service had produced Judicial Watch
satisfaction all requested non-exempt records, including some
requested two years earlier, sought Count Count
request for injunctive relief, the Secret Service argued that the
complaint failed allege facts sufficient support policy
practice claim. Judicial Watch opposed the motion Count and requested discovery the Secret Service FOIA
practices responding its requests. Acknowledging that the
repeated and unexplained failure respond within FOIA
timetables reasonable time could due host
causes, Judicial Watch stated that was unaware any
unusual exceptional circumstances asserted the
Secret Service justify its repeated failures timely respond
because the Secret Service never has nor does now
offer such reason [or] justification. Pl. Opp Mot. for Pldgs., (Mar. 12, 2016). such, Judicial Watch
argued, it[s] [non-responses] could also the result
policy practice. Id.
The district court dismissed Count moot once the
Secret Service produced the requested records. also granted
the Rule 12(c) motion for judgment Count II, ruling that
Judicial Watch had failed allege sufficient facts
establishing that the Secret Service had adopted, endorsed,
implemented some policy practice that constitutes
ongoing failure abide the terms FOIA. Judicial Watch
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018 Dep Homeland Security, 211 Supp. 143, 146
(D.D.C. Sept. 29, 2016) (quoting Muttitt Dep State, 926 Supp. 284, 293 (D.D.C. Mar. 2013)). particular, the
district court stated that Judicial Watch points fact
statement establish why requests were delayed how the
delays were the result either formal informal policy
practice violate FOIA requirements, rather than inevitable
but unintended delay attributable lack resources. Id.
146. sought explanation from the Secret Service but
speculated the delays were likely due lack resources.
Judicial Watch appeals the Rule 12(c) judgment Count
II. Our review novo, accepting true, must, the
factual allegations the complaint. Mpoy Rhee, 758 F.3d
285, 287 (D.C. Cir. 2014) (citing Ashcroft Iqbal, 556 U.S.
662, 678 (2009)).
II.
FOIA lawsuits generally become moot once agency has
made available requested non-exempt records, whether
voluntarily after court order. See Perry Block, 684 F.2d
121, 125 (D.C. Cir. 1982) (citations omitted). This court has
recognized exception mootness where agency has
policy practice that will impair the party lawful access information the future. Payne Enterprises, Inc. United
States, 837 F.2d 486, 491 (D.C. Cir. 1988) (citing Better Gov
Ass Dep State, 780 F.2d 86, (D.C. Cir. 1986)).
The First Circuit had recognized similar exception
Lybarger Cardwell, 577 F.2d 764, 767 (1st Cir. 1978), and
the Ninth Circuit has followed suit, see Hajro U.S.
Citizenship Immigr. Servs., 811 F.3d 1086, 1103 (9th Cir.
2015). FOIA authorizes court not only order the
production any agency records improperly withheld, but
also enjoin the agency from withholding agency records.
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018 U.S.C. 552(a)(4)(B). This injunctive authority does not
limit the district court inherent injunctive powers. See
Renegotiation Bd. Bannercraft Clothing Co., Inc., 415 U.S. (1974). this circuit settled law that informal agency conduct
resulting long delays making requested non-exempt
records available may serve the basis for policy practice
claim. Our decision Payne instructive. There, for almost
two years Air Force officials repeatedly refused produce
requested copies bid abstracts for government contracts
invoking two FOIA exemptions even though the Secretary
the Air Force had repeatedly determined the exemptions were
inapplicable. Payne, 837 F.2d 487 90. Payne sought
administrative review, which [w]ithout exception resulted
the production the requested records. Id. 489. Payne
nonetheless filed suit challenging the agency practice
unjustified delay. Id. 487. appeal, this court identified
the nature policy practice claim:
The fact that the practice issue informal, rather
than crystalized regulation official statement policy, irrelevant determining whether
challenge that policy practice moot. Courts
have long recognized that there may very well
circumstances which prolonged delay making
information available unacceptably onerous
opportunities for viewing disclosed information
require judicial intervention. 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, party
challenge the policy practice cannot mooted
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018 the release the specific documents that prompted
the suit.
Id. 491 (quoting Lybarger, 577 F.2d 767).
Upon concluding that Payne case was not moot, id.
494, the court also concluded that the agency repeated
delays making requested records available were wholly
unjustified and clear violations FOIA, id. 488 89.
[T]hat Payne eventually obtained the information sought
provides scant comfort when stale information little value
yet more costly than fresh information ought be. Id. 494.
The court endorsed the interpretation FOIA that:
Congress did not intend for agenc[ies] use
FOIA offensively hinder the release non-exempt
documents. The appellants [i.e., the requesting
parties] have fully complied with the administrative
scheme. was the [agency] abuse this scheme
that forced the appellants bring several lawsuits
obtain release the documents.
These
unreasonable delays disclosing non-exempt
documents violate the intent and purpose the FOIA,
and the courts have duty prevent these abuses.
Id. (quoting Long IRS, 693 F.2d 907, 910 (9th Cir. 1982)). remanding the case afford Payne declaratory relief, this
court instructed the district court consider the propriety
injunctive relief, id. 494 95, after evaluat[ing] the
likelihood that the Air Force will return its illicit practice
delay the absence injunction, id. 495.
The court applied Payne Newport Aeronautical Sales
Dep Air Force, 684 F.3d 160 (D.C. Cir. 2012). There, the
agency had repeatedly invoked FOIA exemption deny
USCA Case #16-5339
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Filed: 07/17/2018
requests for technical data, forcing government contractor
request the records pursuant the agency more onerous
disclosure scheme, which required submission information
that the contractor did not have due the nature its business.
Id. 162 63.
The contractor sued, challenging the
permissibility the agency interpretation FOIA. This
court held that the Air Force belated disclosure requested
records after the contractor filed suit did not moot the policy
practice claim because the Air Force had persisted its
challenged practice non-disclosure. Id. 163 (citing
Payne, 837 F.2d 491).
Judicial Watch does not allege agency misconduct
invoking FOIA exemptions occurred Payne good-faith
agency error interpreting FOIA exemption occurred
Newport. Nor does Judicial Watch point any formal policy other substantive response the Secret Service explaining
its failures promptly produce requested non-exempt
records. Instead, Judicial Watch policy practice claim
based the Secret Service repeated, unexplained, and
prolonged delay making information available. Payne,
837 F.2d 491. alleges that the Secret Service regularly
fails issue determinations response [Judicial Watch
travel-related FOIA requests within the time period required
FOIA, causing [Judicial Watch] bring suit order obtain
the requested records. Compl. (emphasis added). points the five lawsuits had been forced file when the Secret
Service had previously employed the same non-responsive
conduct: acknowledge receipt the FOIA requests and assign
See Judicial Watch, Inc. U.S. Secret Service, No. 12-1562
(D.D.C. 2012); Judicial Watch, Inc. U.S. Secret Service, No. 130647 (D.D.C. 2013); Judicial Watch, Inc. U.S. Secret Service, No.
13-0950 (D.D.C. 2013); Judicial Watch, Inc. U.S. Secret Service,
No. 14-0046 (D.D.C. 2014); Judicial Watch, Inc. U.S. Secret
Service, No. 14-1732 (D.D.C. 2014).
USCA Case #16-5339
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them tracking numbers, remain mute until Judicial Watch filed lawsuit, and only then undertake make requested nonexempt records available, thereby mooting the litigation and
escaping judicial review its failures comply with FOIA
procedural requirements.
Now seeking injunctive relief view the Secret
Service alleged flouting the statutory scheme, Judicial
Watch complaint posits that the Secret Service has
informal practice, harmful Judicial Watch mission and
work, repeatedly withholding nearly identical records,
without explanation, for unreasonable periods time. Id. 14, 22. Pointing the FOIA requests underlying
this lawsuit, Judicial Watch shows that the Secret Service made determinations, timely otherwise, whether would make
any the records available. For example, August the
Secret Service acknowledged receipt the requests July
and 28, 2014, for travel expenditures for President Obama
trips New York City, Seattle, San Francisco, and Los
Angeles, but had further communication with Judicial
Watch these requests, twelve other requests. For three
requests, the Secret Service provided communication
unidentified nature, but did not produce any requested records.
Two requests were ignored entirely.
The Secret Service, moving for judgment pursuant
Rule 12(c), has treated its non-responsiveness Judicial
Watch requests consistent with FOIA: When agency
fails promptly produce requested non-exempt records
invoke exemption within statutory timetables, the
requesting party may file lawsuit without exhausting the
administrative remedy. See U.S.C. 552(a)(6)(C)(i). That
is, failures adhere FOIA pre-litigation requirements,
including response deadlines and records management
provisions needed enable prompt determinations, not
USCA Case #16-5339
Document #1740921
Filed: 07/17/2018
establish FOIA violation and consequently cannot the
basis for policy practice claim. See Appellee Br. 19. other words, the Secret Service concludes the text FOIA
allows for this interpretation because even where agency
repeatedly fails conform FOIA procedural requirements the first part the statutory scheme, the requester can, under
the second part the scheme, file lawsuit any time seeks gain access agency records. That is, the Secret Service
interprets FOIA the same way any statute affording right
that may vindicated judicial enforcement; enacting
FOIA directives pre-litigation requirements thus was
unnecessary.
This interpretation untenable for any number reasons.
Most significantly, [t]he basic purpose FOIA ensure informed citizenry, vital the functioning democratic
society, needed check against corruption and hold the
governor accountable the governed. NLRB Robbins Tire Rubber Co., 437 U.S. 214, 242 (1978); see Nat Archives
Records Admin. Favish, 541 U.S. 157, 171 (2004). Nonexempt records are made promptly available, U.S.C.
552(a)(3)(A), for little more than payment copying costs.
The Secret Service interpretation renders FOIA mandate
prompt response superfluous, i.e., dead letter. Judicial
Watch complaint reflects that has repeatedly been
confronted with prolonged, unexplained delays the same
agency with regard the same type records and that six
nearly identical lawsuits have not produced any change the
Secret Service response its proper requests until after has
filed lawsuit. According the complaint, only that point
has the Secret Service conducted search determine whether
records can made available are exempt from disclosure, engaged consultations with Judicial Watch. The
government points nothing that would suggest that
providing judicial remedy secure such information from
USCA Case #16-5339
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possibly unwilling official hands, Mink, 410 U.S. 80,
Congress intended agency repeated flaunting FOIA
pre-litigation procedural requirements excused once the
requested records are made available upon being sued. That
interpretation inconsistent with Congress remedial purpose enacting FOIA enhance government transparency subject limited statutory exemptions, using two-part scheme that
imposed specific requirements federal agencies. Our
precedent policy practice claims disposes any
suggestion that Congress intended the repeated filing
lawsuits practical requirement for obtaining records
from agency flaunting the statute. See Payne, 893 F.2d
494 (citing Long, 693 F.2d 910). Filing lawsuit hardly
ensures prompt[] availab[ility], U.S.C. 552(a)(3)(A),
the instant case and the five other lawsuits against this agency
demonstrate, see supra note not mention the chilling effect
that litigation costs can have members the public much
less the burden imposed the courts.
Therefore, plaintiff states plausible policy practice
claim under Payne alleging prolonged, unexplained delays producing non-exempt records that could signal the agency
has policy practice ignoring FOIA requirements. Payne, the plaintiff must allege pattern prolonged delay
amounting persistent failure adhere FOIA
requirements and that the pattern delay will interfere with its
right under FOIA promptly obtain non-exempt records from
the agency the future. Judicial Watch complaint meets
these requirements. Given the Secret Service repeated,
prolonged, and yet unexplained delays making requested
non-exempt records available, cannot gainsaid that
Judicial Watch alleges sufficient facts under Federal Rule
Civil Procedure 8(a)(2) and Supreme Court precedent draw
the reasonable inference that the Secret Service has adopted
practice delay, contrary FOIA two-part scheme,
USCA Case #16-5339
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repeatedly standing mute over prolonged period time and
using Judicial Watch filing lawsuit organizing tool
for setting its response priorities. Iqbal, 556 U.S. 678; Bell
Atlantic Corp. Twombly, 550 U.S. 544, 570 (2007).
The conclusion that such unreasonable delay
disclosing non-exempt documents abuse [FOIA
scheme follows ineluctably from the recognition that
Congress did not intend for the [agency] use the FOIA
offensively hinder the release non-exempt documents force[] the appellant[] bring several lawsuits obtain
release the documents. Payne, 837 F.2d 494 (quoting
Long, 693 F.2d 910). And long established this circuit
that agency compliance with FOIA depends upon its
good faith effort and due diligence comply with all
lawful demands [for records] short time
possible. Open America Watergate Special Prosecution
Force, 547 F.2d 605, 616 (D.C. Cir. 1976). Congress
reinforced the importance FOIA timetables and its
overarching mandate prompt availability when amended
FOIA 1974. Responding agencies concerns about the
high volume requests and lack resources, Congress
allowed agencies only ten additional days respond where
there were unusual circumstances.
See U.S.C.
552(a)(6)(B). Judge Leventhal has explained:
[T]he 1974 Amendments were deliberately drafted
force increased expedition the handling FOIA
requests: [E]xcessive delay the agency its
response often tantamount denial. the intent this bill that the affected agencies required
respond inquiries and administrative appeals within
specific time limits. REP. No. 93-876, 93d Cong., Sess. (1974). The Congress even rejected 30-
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day extension provision, narrowly drafted take
account the special exigencies facing agencies.
Open America, 547 F.2d 617 (Leventhal, J., concurring
the result) (emphasis added). Much Congress has done
adopting technology-forcing provisions other contexts,
see, e.g., Union Elec. EPA, 427 U.S. 246, 256 (1976),
Congress contemplated that agencies would improve their
records management systems ensure requested records are
made promptly available, U.S.C. 552(a)(3)(A).
authority has been cited that either the Supreme Court this
court has retreated from this understanding FOIA text,
purpose, and history. agency use lawsuit
organizing tool for prioritizing responses renders FOIA
requirements insignificant, not wholly superfluous.
Duncan Walker, 533 U.S. 167, 174 (2001).
The district court, however, conceived the issue
sufficiency pleading differently. First, treated Payne and
Newport establishing floor for policy practice claim. contrast with what described the egregious, intentional
agency conduct Payne and Newport, the district court ruled
that Judicial Watch had alleged mere delay. Judicial Watch,
211 Supp. 147. best, Judicial Watch alleged facts
are merely consistent with policy practice claim. Id.; see
id. 145 (citing Iqbal, 556 U.S. 678). This court did not
require egregious agency action state policy practice
claim. Rather, the court stated Payne that even beyond
refusal supply information, agency may engage
some other failure abide the terms the FOIA that
could basis for finding the agency has unlawful policy practice. Payne, 837 F.2d 491 (emphasis added). would ironic policy practice claim could based
misapplication FOIA exemption (as Payne and
Newport), but not agency total disregard the
USCA Case #16-5339
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obligations mandated Congress and failure take
advantage provisions allowing additional time respond.
Second, the district court shifted the requesting party the
burden that FOIA places the agency explain its delay
making requested records available. See, e.g., U.S.C.
552(a)(4)(B), (a)(6)(A) (C); ACLU U.S. Dep
Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). Concluding that
Judicial Watch failed show that the Secret Service had
adopted, endorsed, implemented some policy practice
that constitutes ongoing failure abide the terms the
FOIA, Judicial Watch, 211 Supp. 146 (quoting
Muttitt, 926 Supp. 293), the district court focused
Judicial Watch shortcomings point[ing] fact
statement establish why the requests were delayed how the
delays were the result agency policy practice, rather
than inevitable but unintended delay attributable lack
resources, id. Pretermitting whether lack resources could
ever suffice excuse repeated, prolonged, and yet
unexplained delay, the district court interjected, id. 147,
FOIA text and structure require that the agency least
indicate within the relevant time period the scope the
documents will produce and the exemptions will claim with
respect any withheld documents.
Citizens for
Responsibility Ethics Wash. Fed. Election Comm 711
F.3d 180, 183 (D.C. Cir. 2013) CREW This threshold
requirement stands gateway the transparency FOIA
envisions.
The history the Secret Service conduct response
Judicial Watch FOIA requests, alleged the complaint,
wherein Judicial Watch has been forced file six lawsuits
obtain requested non-exempt records all relating the same
subject matter sufficed state plausible claim that the
agency practice was utilize delay flaunt FOIA
USCA Case #16-5339
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procedural requirements, and that filing lawsuit obtain
requested records was empty gesture terms preventing
future prolonged delays, much less obtaining future relief,
because the agency would moot the litigation and escape
judicial review its compliance with FOIA. The Secret
Service alleged practice prolonged, repeated, and
unexplained delay, allowed continue, would harm Judicial
Watch mission inform the public about the costs VIP
travel unlawfully interfering with its statutory right
promptly obtain non-exempt records upon request. See
Newport, 684 F.3d 163 64. course, not all agency delay other failure comply
with FOIA procedural requirements will warrant judicial
intervention, much less injunctive relief. FOIA provisions
for extensions response time, where for example the agency
shows
exceptional
circumstances
exist
upon
demonstrat[ing] reasonable progress reducing the backlog pending requests, U.S.C. 552(a)(6)(C), indicate
much. Even assuming for purposes argument that Congress
intended the judicial remedy principal means
overcome unlawful agency withholding interpretation
FOIA that this court has long rejected authority has been
cited suggest agencies may require requester routinely
resort court obtain responsive non-exempt records.
seems doubtful such authority would exist when agency good
faith effort and due diligence are the touchstones underlying
FOIA statutory scheme. Open America, 547 F.2d 616.
Unexplained agency delay still requires the district court determine whether the agency conduct failing
conform FOIA procedural requirements demonstrates
lack due diligence and delinquent recalcitrant
warrant injunctive relief because ordinary remedies, such
production order, see U.S.C. 552(a)(4)(B), would
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inadequate overcome agency policy practice. See Ctr.
for the Study Servs. Dep Health Human Servs., 874
F.3d 287, 292 (D.C. Cir. 2017); Citizens for Responsibility
Ethics Wash. U.S. Dep Justice, 846 F.3d 1235, 1242,
1246 (D.C. Cir. 2017) CREW Newport, 684 F.3d 164;
Payne, 837 F.2d 491; Lybarger, 577 F.2d 767. When
injunctive relief sought, the necessary determination that
there exists some cognizable danger recurrent violation,
something more than the mere possibility which serves keep
the case alive. U.S. W.T. Grant Co., 345 U.S. 629, 633
(1952). Factors considered are the bona fides the
expressed intent comply, the effectiveness the
discontinuance [of the violation] and, some cases, the
character the past violations. Id. the FOIA context, the
court prime consideration should the effect the public disclosure non-disclosure. Long, 693 F.2d 909 (citing
W.T. Grant, 345 U.S. 633). And Congress limited
reaction amending FOIA suggests, staffing shortages and
work overload may not render injunctive relief inappropriate.
See Open America, 547 F.2d 616; id. 617 (Leventhal, J.,
concurring the result). The indication government
counsel during oral argument that agency might permissibly
use litigation organizing tool for responding FOIA
requests, see Oral Arg. 25:18 26:59, not encouraging
sign.
Our dissenting colleague interpretation FOIA raises
the question why Congress bothered enact FOIA all. After
all, prior FOIA, person could request agency records and
upon failing obtain them seek relief court, albeit
expensive and time-consuming process. Yet neither agency
practices nor lawsuits under the prior statutory scheme resulted transparency government operations. The Supreme Court
and this court have understood that Congress purpose
enacting FOIA was achieve greater transparency support
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the burden agencies act good faith and exercise due
diligence make records available quickly possible,
invoke exemption, and improve their records
management systems enable prompt responses without
routine judicial involvement. Our colleague interpretation
would bypass Congress decision about how this goal can best achieved. doing so, our colleague concludes Judicial Watch
complaint fails state claim for relief based policy
practice. Diss. Op. does this reading the
complaint narrowly despite the Rule stage the proceedings,
Mpoy, 758 F.3d 287 (citing Iqbal, 556 U.S. 678 79),
ignoring factual allegations that must accepted true,
reasonable inferences from the detailed chart accompanying
the complaint, and the context which Judicial Watch was
forced file this sixth lawsuit against the same agency for
release the same type records. His reading renders
FOIA requirements insignificant best and effectively
reinstates the pre-FOIA scheme. When properly read, the
complaint alleges that the Secret Service continues abuse the
statutory scheme and repeatedly moot litigation escape
judicial oversight, thereby denying Judicial Watch the prompt
transparency that Congress intended enacting FOIA.
Further, our colleague proceeds address whether
Judicial Watch could prevail beyond the Rule pleading stage. misreads the record and speculates how the government
might have responded had the complaint not been dismissed,
Diss. Op. 16, thereby placing pleading burden Judicial
Watch beyond what Rule requires and flipping the
requester the burden that FOIA places the agency explain
its delay. The record the time the district court granted the
government Rule 12(c) motion shows that the Secret Service
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had done nothing beyond acknowledging receipt and assigning
tracking numbers most Judicial Watch requests. The
record provides basis assume Judicial Watch was kept
informed what, anything, the Secret Service had done
responding its requests, see Diss. Op. 13; paragraphs the complaint allege the contrary. speculating about
the government explanation, our colleague embraces the idea
that taking hundreds days process requests, Diss. Op. permissible interpretation agency obligations under
FOIA, when the statutory structure and our precedent CREW 711 F.3d 186 87, are the contrary. twists the
congressional reporting requirement, Diss. Op. designed
enable Congress ensure agency compliance with FOIA into
evidence congressional approval agency failure
comply. See, e.g., REP. 93-854, (May 16, 1974);
H.R. REP. 104-795, 14, (Sept. 17, 1996); see also REP. 110-59, (Apr. 30, 2007). And conjuring
the notion that Judicial Watch requests were complex,
Diss. Op. 11, our colleague again fails read the record must this Rule stage. Even appeal the Secret Service
has not characterized Judicial Watch requests complex.
Accordingly, reverse the Rule 12(c) judgment the
request for injunctive relief and remand Count the district
court for further proceedings. Our disposition conforms
longstanding precedent interpreting agencies obligations
good faith effort and due diligence upon receiving FOIA
request. Open America, 547 F.2d 616. The district court less obligated determine upon well-pleaded complaint
that agency has organized its records management systems enable prompt determinations produce records
invoke exemption, and monitor when necessary
agency progress adjusting its records management systems enable comply with FOIA. See Ctr. for the Study
Servs., 874 F.3d 292; CREW II, 846 F.3d 1246. The
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government suggestion that Judicial Watch seeks broad
injunction requiring the Secret Service prioritize its
responses Judicial Watch future FOIA requests, thereby
distort[ing] the statutory scheme and resulting harm
other members the public who have equal right seek
information from the government, Appellee Br. 22, not
well-taken. The Secret Service will have the opportunity
remand explain its delays and confirm how intends
the future conform FOIA mandate make requested
non-exempt records promptly available. The district court,
upon considering the complaint and the parties further
submissions, will determine, the first instance, the
appropriateness discovery and tailored injunctive relief.
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PILLARD, Circuit Judge, concurring: join the majority opinion full. view the
disagreement between colleagues, write separately
emphasize what see the alleged Freedom Information
Act (FOIA) violations, and spell out how, because the
complaint alleges persistent practice violating FOIA, the
Secret Service production records response Judicial
Watch lawsuit did not render the claims moot.
Judicial Watch wants keep the public informed how
much taxpayer money spent travel the First Families
and others who travel under Secret Service protection. FOIA designed make such project easy and inexpensive.
Under FOIA, information showing what [the] government to, EPA Mink, 410 U.S. 73, 105 (1973) (Douglas, J.,
dissenting), presumptively available for the asking
lawyer needed any person little cost. But has
not worked out that way for Judicial Watch. The organization
has had wait for many months, and devote resources that
would unaffordable most requesters file half dozen
lawsuits, just get this simple information.
Judicial Watch alleges continuing practice virtually
complete passivity the Secret Service responding the
series straightforward requests that Judicial Watch alleges
has made and plans continue make. these
circumstances, complete but belated response does not moot
the case. The statute does not allow agencies keep FOIA
requests bottled for months years end while avoiding
any judicial oversight. Citizens for Responsibility Ethics
Wash. FEC, 711 F.3d 180, 190 (D.C. Cir. 2013) (CREW).
Because the pleadings show statutorily adequate
explanation for the agency persistent practice alleged
delays violation FOIA, the district court retains
jurisdiction over whatever further proceedings are needed
determine whether declaratory injunctive relief
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appropriate. remand, the district court should call the
Secret Service either bring its FOIA process into line with
the statute, explain the court satisfaction that has
already done so.
When member the public makes request for
government records, FOIA requires the agency determine
within days what responsive records has and can produce
consistent
with
FOIA
exemptions,
U.S.C.
552(a)(6)(A)(i), immediately notify the requester its
determination, id., and follow making nonexempt
records promptly available, id. 552(a)(3)(A). FOIA thus
sets default 20-day deadline for the underlying determination,
and simply requires that the ensuing production records
made the requester promptly thereafter.
These
requirements are tied together, for Congress plainly intended
production records follow close the heels the
determination. explained CREW, promptly under
Section 552(a)(3)(A) typically would mean within days
few weeks determination, not months years. See
CREW, 711 F.3d 188-89.
There doubt that Congress intended FOIA time
limits mandatory. See Open America Watergate
Special Prosecution Force, 547 F.2d 605, 617 (D.C. Cir. 1976)
(Leventhal, J., concurring) Excessive delay the agency
its response often tantamount denial. the intent this
bill that the affected agencies required respond
inquiries within specific time limits. (quoting H.R. Rep.
No. 93-876, 93d Cong., Sess. (1974)). Our dissenting
colleague minimizes the importance the 20-day deadline for
the agency make its determination noting that, once
agency exceeds it, the requester released from FOIA
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administrative exhaustion requirement. See Diss. Op. 4-5, infers from its relevance exhaustion that the 20-day
deadline somehow not itself enforceable. Id. have never held, nor need pass that question today. The
violations alleged here are not limited missing the 20-day
deadline, but include the Secret Service additional failures
make the responsive records promptly available. U.S.C.
552(a)(3)(A). Suffice say that court which are
aware has given Section 552(a)(6)(A)(i) 20-day default
deadline the restricted role the dissent envisions, whereas
least one sister circuit reads support legal challenge
where agency responded well beyond the twenty-day limit
without notice any unusual circumstances justifying
extension. Hajro U.S. Citizenship Immigration Servs.,
811 F.3d 1086, 1106-07 (9th Cir. 2015).
Regardless whether ignoring the 20-day deadline alone
actionable, there question that substantial delays can
support cognizable FOIA claims: have held that
unreasonable delays disclosing non-exempt documents
violate the intent and purpose the FOIA, and the courts have duty prevent these abuses. Payne Enters., Inc. United
States, 837 F.2d 486, 494 (D.C. Cir. 1988) (quoting Long
IRS, 693 F.2d 907, 910 (9th Cir. 1982)); cf. McGehee CIA,
697 F.2d 1095, 1110 (D.C. Cir. 1983) (holding that agency
internal procedures for processing documents may violate
FOIA where the net effect significantly increase the
amount time [the requester] must wait obtain them
Faced with information suggesting that agency responses request for information have been tardy and grudging,
courts should sure they not abdicate their own duty.
McGehee, 697 F.2d 1114. Allegations agency
unexplained delay here, alleged failures for several months respond simple requests make responsive, non-exempt
records promptly available suffice state FOIA claim.
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When, often happens, agency voluntarily produces
requested records during the course lawsuit, that
production typically satisfies the requester and ends the case.
But not always. Voluntary cessation unlawful conduct
moots case, general matter, only subsequent events
made absolutely clear that the allegedly wrongful behavior
could not reasonably expected recur. Friends the
Earth, Inc. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189
(2000). Moreover, [t]he heavy burden persuading the court
that the challenged conduct cannot reasonably expected
start again lies with the party asserting mootness. Id.
the FOIA context, ongoing agency policy practice
unlawful nondisclosure may mean the voluntary release
responsive records does not deprive the tribunal power
hear and determine the case, i.e., does not make the case moot.
Payne, 837 F.2d 490 (quoting United States W.T. Grant
Co., 345 U.S. 629, 632 (1953); citing Cty. L.A. Davis, 440
U.S. 625, 631 (1979)); see Newport Aeronautical Sales
Dep Air Force, 684 F.3d 160, 163-64 (D.C. Cir. 2012);
Hajro, 811 F.3d 1103, 1106; Mayock Nelson, 938 F.2d
1006 (9th Cir. 1991). plaintiff plausibly alleging that its
plans request similar agency records will stymied
ongoing practice unjustified delays may entitled
injunctive declaratory relief.
The question here whether Judicial Watch has
adequately alleged such practice. The answer yes.
Over period years, Judicial Watch routinely asked for
VIP travel expense information wanted include
reports its interested public. See Compl. 16, Judicial
Watch, Inc. Dep Homeland Sec., 15-cv-1983 (D.D.C.
Nov. 10, 2015). Judicial Watch alleges that the agency failed,
time and again, make prompt disclosure. When Judicial
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Watch filed this suit, the nineteen sequential requests issue
here had been pending for anywhere from seven fifteen
months without single determination let alone
production any the requested travel-expense
information. Id. Ex. Judicial Watch complaint also
references five preceding lawsuits, involving earlier
sequence ten requests, seeking the very same kind
information the nineteen requests issue here. Id. Each those requests had likewise been pending for several months
before Judicial Watch filed each related lawsuit. See id.
With allegations similar requests across six lawsuits
met unexplained months waiting for the Secret Service
produce responsive records, the complaint makes out
consistent practice delay violation FOIA. Even though
the 20-day deadline had elapsed many times over, the Secret
Service admits that had not made the requisite
determinations. See U.S.C. 552(a)(6)(A)(i); Compl.
13-16; Answer 14, Judicial Watch, 15-cv-1983 (D.D.C. Dec.
22, 2015). Nor did give plaintiff written notice any
unusual circumstances that might have entitled
additional ten working days make its determinations. See
U.S.C. 552(a)(6)(B)(i). The statute obligates the agency
reach out requesters will not meet the initial 20-day
deadline order negotiate potential efficiencies, such
agreeing alternative timeframe for processing
narrowing request that may processed within [the
20-day] time limit, see id. 552(a)(6)(B)(i), (ii), (iii), but there indication that the Secret Service made any such overtures Judicial Watch, see Compl. 14; Answer 14. For most
the nineteen requests issue this suit, the Secret Service
simply assigned tracking number and provided further
communication Judicial Watch, see Compl. 11; for some the requests, the agency failed even that much, id.
10. The Secret Service made production the records
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before faced litigation and even when each earlier lawsuit
eventually dislodged some requested records, the cycle began
again with ensuing requests. None the eventual production
was within timeframe that our cases accept prompt the
absence any justification from the Secret Service. See
U.S.C. 552(a)(3)(A); CREW, 711 F.3d 189. The
allegations, considered together with reasonable inferences
therefrom drawn Judicial Watch favor, make out
persistent Secret Service practice violating FOIA
requirements for making nonexempt government records
promptly available the public. the pleading stage, lack critical context about the
alleged delays and cannot simply assume and
unquestioningly accept that they are justified. sure, what
counts prompt production varies depending the
circumstances. CREW, 711 F.3d 188. But were
hold that the circumstances alleged here, without more,
satisfied the Secret Service statutory duties under FOIA, the
roles Congress assigned the courts the primary enforcer
FOIA and agencies the proactive stewards FOIA
implementation would substantially undermined.
Consider the character the requests themselves. The
requested records are generally the form receipts
evidencing, for example, expenditures for flights, rental cars,
and hotels subject only routine redactions under FOIA
exemptions. See, e.g., U.S. Secret Service, Response FOIA
Request
Number
20131414
(June
12,
2014),
http://www.judicialwatch.org/wp-content/uploads/2014/
10/2323_Responses.pdf.1 familiar fact life the
These records were produced response one Judicial Watch
travel-related FOIA requests, see Compl. 21-24, Judicial Watch U.S.
Secret Service, 14-cv-0046 (D.D.C. Jan. 13, 2014), that was the subject earlier Judicial Watch suit; the current complaint refers that request
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hundreds millions people the United States who travel
each year for their work that employers collect and process
travel expense information regularly; any adequately
functioning organization should able produce travel
expense information with dispatch. There suggestion that
the requests issue this case involve any subtle relevance
questions about where how search, cumbersome interagency collaboration identify what information kept, and
where might found. Cf. McGehee, 697 F.2d 1098-99.
The Secret Service presumably already keeps and
electronically tracks government-paid travel expense
information for any number internal reasons. And, now,
Judicial Watch repeated requests themselves may provide
additional reason for so: FOIA obligates agencies
take initiative even the absence further request
facilitate public access commonly sought information, such publishing advance, see U.S.C. 552(a)(2)(D), and
fast-tracking simple requests, id. 552(a)(6)(D); see also U.S.
Dep Homeland Sec., 2018 Chief FOIA Officer Report
the Attorney General the United States 22-23 (Mar. 2018),
https://www.dhs.gov/sites/default/files/publications/2018%20
Chief%20FOIA%20Officer%20Report.pdf (2018 DHS Chief
FOIA Officer Report) (describing Steps Taken Increase
Proactive Disclosures, and asserting that the Secret Service
has begun posting least some travel expense information
advance requests). For all one can glean from the pleadings,
Judicial Watch requests are wholly mundane.
The dissent, however, assumes the requests are
complex, Diss. Op. 11, and finds their processing time
reasonable light the average complex request
processing times listed Secret Service FOIA report. See
and lawsuit, among others, alleging the persistent practice slow
responses. See Compl.
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id. (citing U.S. Dep Homeland Sec., 2015 FOIA Report
the Attorney General the United States Table V.A. (Feb.
2016), https://go.usa.gov/xXQVvf).
That FOIA report,
however, was not incorporated any pleading. was not even
mentioned briefing. the pleading stage, the district
court correctly recognized, Judicial Watch Dep
Homeland Sec., 211 Supp. 143, 145 n.1 (D.D.C. 2016), confine our review the allegations, see Banneker
Ventures, LLC Graham, 798 F.3d 1119, 1133 (D.C. Cir.
2015). any event, the FOIA report says nothing about how
these requests compare with those the Secret Service itself
denominated complex, terms the difficulty and time
needed process them. are here required make the
reasonable inference Judicial Watch favor that its VIPtravel expense requests are wholly straightforward; open the agency remand seek show otherwise. sum, Judicial Watch has plausibly alleged persistent
practice delay that violates FOIA mandate make
responsive records promptly available. See U.S.C.
552(a)(3)(A). the pleading stage, more required
support the district court jurisdiction consider, view
the agency potential justifications, any need for equitable
relief.
Our dissenting colleague sees allegations delay that
could violate FOIA. See Diss. Op. 12. His main point that
agencies cannot expected respond post haste every one the thousands FOIA requests that agencies today receive.
But assume the pleading stage that agency faces hurdles
and can offer rationales that were never pleaded proved
contravenes both Federal Rule Civil Procedure 12(c) and
FOIA itself. are well aware that FOIA processing
picnic: can painstaking and sometimes highly technical
for requestors, agencies, and courts alike. But FOIA
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nonetheless requires each federal agency swiftly disclose all
nonexempt information, even must accurately sort and
withhold information that falls within the statute exemptions.
Needless say, busy agencies, ever pressed more with
limited resources, lack incentives get that done. That
precisely why Congress enacted FOIA timeframes and
authorized district courts enjoin agencies from improperly
delaying public access non-exempt records.
The statute places the burden the agency, not the FOIA
requester, justify delays processing. Once agency has
been sued district court for improperly withholding records,
the burden the agency sustain its action. U.S.C.
552(a)(4)(B). But see Judicial Watch, 211 Supp. 147;
Diss. Op. 13. FOIA requires agency that has not made
prompt production explain its delinquency: allows
additional processing time only [i]f the Government can show
exceptional circumstances exist and that the agency
exercising due diligence responding the request. See
U.S.C. 552(a)(6)(C)(i).
The statute spells out that
exceptional circumstances not include delay that
results from predictable agency workload requests unless
the agency affirmatively shows that making reasonable
progress reducing its backlog pending requests. Id.
552(a)(6)(C)(ii). emphatically not permissible under
FOIA for court simply assume that agency
circumstances are exceptional. There ground this
record for relieving the Secret Service its burden
justification and simply presuming the Secret Service
systemically entitled the additional time referred
Section 552(a)(6)(C)(ii). few additional points: The dissent contends that,
requiring agencies issue reports the number delayed
requests and provide tracking numbers requesters, FOIA
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expressly tolerates across-the-board, prolonged waits for
production nonexempt information. See Diss. Op. But
nothing about FOIA reporting and tracking mechanisms
suggests they excuse violations the statute determination
deadline its expectation that, once determination made, requester will immediately informed and responsive
records will produced promptly. FOIA excuses slow
processing nonexempt information only when the agency
has carried its burden justify withholding records, U.S.C.
552(a)(4)(B), and explain how its delays are warranted
exceptional circumstances, id. 552(a)(6)(B), (C)(i).
short, the statute does not condone agency personnel sitting
behind accumulating mounds FOIA requests and requiring
each requester take number and wait many months
years for the agency comply. innovation-forcing,
requiring agencies consider adjustments practices,
policies, personnel, and funding may necessary
improve its implementation the statute, including the
timely processing requests for information. See id.
552(j)(2)(C), (3)(D); see also 2018 DHS Chief FOIA Officer
Report, 26-27 (discussing Steps Taken Greater Utilize
Technology
Recognizing that Judicial Watch has stated policy
practice claim here imposes new untenable burdens
agencies. Our circuit has recognized the policy practice
doctrine for thirty years. See Newport Aeronautical Sales, 684
F.3d 164 (recognizing that, even though party may have
obtained relief specific request under the FOIA, this will
not moot claim that agency policy practice will impair
the party lawful access information the future
(emphasis original) (citing Payne, 837 F.2d 489). District
courts, moreover, have many tools their disposal focus and
streamline inquiry into whether the agency production times
are justified. See generally Fed. Civ. 26(b)(2)(c);
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McGehee, 697 F.2d 1112-13 (discussing reliance agency
affidavits the summary judgment stage FOIA exemption
dispute). considering the propriety injunctive declaratory
relief, the district courts should mindful their duty
prevent abuses FOIA. Payne, 837 F.2d 494. They
should assess whether agency acting with due diligence
and making reasonable progress reducing backlogs,
including availing itself tools improve its efficiency.
***
Congress FOIA expressed national commitment
open government. democratic society requires informed
citizenry not only check against corruption and hold
government accountable, but also dispel misconceptions and
fallacies that secrecy feeds. widely emulated has been
here and abroad, FOIA not the only necessarily the
best way make the workings government open
practicable the people whose name its officials wield
power and resources. See generally David Pozen, Freedom Information Beyond the Freedom Information Act, 165
Pa. Rev. 1097 (2017). Nevertheless, Congress enacted
and have applied it, FOIA supports Judicial Watch
policy practice claim. thus join the opinion the court
holding that the Secret Service did not defeat the district court
jurisdiction consider whether equitable relief might still
warranted even though after repeatedly failing for months
respond simple requests provided the information full
after the lawsuit was filed.
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SRINIVASAN, Circuit Judge, dissenting: The Freedom
Information Act serves the important aim promoting the
timely release requested government records. Ordinarily,
when agency completes its review request and releases
responsive records during the pendency FOIA action, the
case becomes moot. The case not moot, however, the
agency has general, ongoing policy practice violating
FOIA. that event, the court can enjoin the unlawful agency
policy practice going forward.
The complaint this case claims that the Secret Service
has policy practice unlawfully withholding the release requested records violation FOIA. The question
face whether the complaint allegations, true, establish
policy practice violating FOIA. colleagues conclude
that the answer yes. respectfully disagree.
This case involves nineteen requests for records
submitted the Secret Service Judicial Watch. The
complaint salient allegations are that (i) the agency failed
determine whether would produce the requested records
within twenty-day period set out the statute, (ii) several
months had elapsed without any production records the
time this suit was filed, and (iii) the agency, past cases
involving the same sorts requests Judicial Watch,
ultimately produced the records after the filing suit.
those allegations make out policy practice FOIA
violations? view, they not.
With regard the statute default twenty-day period for
determining whether produce requested records, agency
failure make that determination within twenty days not
actionable violation FOIA. Nor was necessarily
violation FOIA that the requests were still pending before
the agency when the suit was filed. Indeed, the statute
expressly contemplates that agency could take several
months process FOIA request, and agencies regularly
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and lawfully take that long determine whether produce
requested records. And while may true that the Secret
Service has previously produced records after Judicial Watch
filed suit (and did again this case), the mere fact that
agency produces records following the initiation judicial
proceedings tells nothing about whether the non-production the documents before that point violated the statute. short,
the allegations the complaint, even true, are consistent with
lawful conduct under FOIA.
The complaint this case therefore fails allege policy practice violating FOIA. deciding otherwise and
allowing this action forward, the court today enables
FOIA suits proceed past the pleadings broad range
situations which agency practices are fully keeping
with the statute requirements. Agencies often (and lawfully)
take significantly longer than twenty days process FOIA
request. But agency that does so, under the court rationale
today, would routinely subject ostensibly viable claim
that has policy practice violating the statute. The
statute, respectful view, does not countenance that result. understand why the complaint this case fails allege policy practice violating FOIA, necessary review some detail the statute provisions governing the processing request for records. Upon proper request for records
submitted any person, FOIA generally calls for federal
agency make the requested records promptly available
the requester unless the records fit within one the statutory
exemptions. See U.S.C. 552(a)(3)(A). Depending the
nature request, identifying and examining responsive
records, and determining whether exemption applies, can
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take considerable time. FOIA thus prescribes fixed
timeframe within which agency must produce non-exempt
records. Rather, the statute establishes set procedures for
agencies (and requesters) follow furtherance the
general mandate make non-exempt records promptly
available.
Whenever the agency will take longer than ten days
process request, the statute requires the agency assign the
requester individualized tracking number.
Id.
552(a)(7)(A). The tracking number enables the requester
obtain information about the status [her] request through telephone line Internet service set the agency.
Id. 552(a)(7)(B). The status information available the
requester must include estimated date which the agency
will complete action the request. Id. 552(a)(7)(B)(ii).
requester, then, can readily ascertain when the agency
anticipates complet[ing] action the request. Id.
How long might that take? default matter, FOIA
provides that agency shall determine within
[business] days whether comply with [a] request for
records, and shall immediately notify the requester such
determination and the reasons therefor. Id. 552(a)(6)(A)(i).
That determination marks the culmination agency
processing FOIA request i.e., the determination the
agency whether will produce the requested records instead
will withhold any production records (because, for instance, FOIA exemption applies there are responsive records).
The statute does not envision that agency invariably
will able process request within the twenty-day period.
That timeline not absolute. Citizens for Responsibility
Ethics Wash. (CREW) FEC, 711 F.3d 180, 184 (D.C. Cir.
2013). instead only default. Id. 189. After all,
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would practical impossibility for agencies process all
FOIA requests completely within twenty days. Id. (brackets
and internal quotation marks omitted).
For instance, the event certain unusual
circumstances specified the statute, the agency can extend
the time period for processing request additional ten
business days (or thirty days total). U.S.C. 552(a)(6)(B)(i).
(Unusual circumstances exist when request: requires
accessing records off-site location, involves
voluminous amount records, implicates the interests
multiple agencies components. Id. 552(a)(6)(B)(iii).) The
statute, moreover, affirmatively contemplates that those
unusual circumstances could cause the agency take longer
than thirty days process request. that event, the agency
must give the requester the opportunity limit the scope her
request work with the agency develop alternative time
frame for processing it. Id. 552(a)(6)(B)(ii). addition, apart from the enumerated unusual
circumstances, the statute separately allows agency
show that exceptional circumstances (as opposed unusual
circumstances exist, and that the agency exercising due
diligence responding the request. Id. 552(a)(6)(C)(i). that event, the agency allowed additional time
complete its review the records. Id. Exceptional
circumstances can include delay that results from
predictable agency workload requests the agency
demonstrates reasonable progress reducing its backlog
pending requests. Id. 552(a)(6)(C)(ii). The statute thus
expressly envisions that agency could have backlog
FOIA requests preventing from processing new request
within twenty days, and that the agency would allowed
additional time long making reasonable progress
reducing the backlog.
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The exceptional circumstances determination made court after requester initiates the statute process
judicial review. See id. 552(a)(6)(C). FOIA vests district
courts with jurisdiction conduct novo review
agency processing request, and enjoin the agency from
any improper[] withh[olding] responsive records. Id.
552(a)(4)(B). Ordinarily, requester must exhaust her
remedies with the agency before bringing the matter court.
See Wilbur CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). But
requester deemed have constructively exhausted her
administrative remedies agency takes longer than the
default twenty-day period process her request. U.S.C.
552(a)(6)(C); see CREW, 711 F.3d 182, 185. that point, the requester, she wishes, can proceed
directly court rather than continue pursue the matter
within the agency. Once court, the agency has the burden
justify any decision withhold responsive documents,
U.S.C. 552(a)(4)(B), show that, due exceptional
circumstances (potentially including backlog FOIA
requests), the agency needs additional time process
request, id. 552(a)(6)(C). agency produces the requested records while the
matter pending court, the aim the requester claim for
the records would have been realized and her claim generally
becomes moot. See Payne Enters., Inc. United States, 837
F.2d 486, 490-91 (D.C. Cir. 1988). the ordinary case, then, agency production the requested records will occasion dismissal the requester suit. our court recognized Payne, however, agency
production will not moot claim agency policy
practice will impair the party lawful access information
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the future. Id. 491 (emphasis omitted). requester thus
can avoid dismissal mootness grounds plausibly alleging:
first, that the agency refusal supply information evidences policy practice delayed disclosure some other failure abide the terms the FOIA, and, second that the
agency policy practice will continue injure the requester the future. Id. other words, requester can maintain her
action, notwithstanding the agency production the
requested records, the agency follows policy practice
unlawfully withholding records under FOIA and might
continue absent judicial intervention. Otherwise,
agency could have policy unlawfully refusing release
responsive documents, produce the documents when (and only
when) sued order moot given case, and then resume its
unlawful withholding policy thereafter. have recognized the viability requester policyor-practice claim just two prior occasions. Both cases
involved agency allegedly unlawful withholding
documents based erroneous assertion FOIA
exemption. See id. 487; Newport Aeronautical Sales
Dep Air Force, 684 F.3d 160, 163-64 (D.C. Cir. 2012).
each case, allowed the requester proceed policy-orpractice claim notwithstanding the agency production the
requested documents. did because the risk that the
agencies would continue withhold responsive records the
future reliance inapplicable statutory exemption.
II.
Unlike the requesters Payne and Newport, Judicial
Watch does not contend that the Secret Service has policy
practice withholding requested records based the
agency erroneous invocation FOIA exemption. Rather,
Judicial Watch alleges that the Secret Service has policy and
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practice 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.
22. Judicial Watch claim unlawful agency practice
thus pertains solely the time taken the agency process
its records requests: there allegation that the agency
acting unlawfully any other way, such refusing
produce records invalid reliance inapplicable
exemption. its complaint, Judicial Watch alleges the following facts support its claim that the Secret Service has policy
practice violating FOIA. Between July 2014 and August
2015, Judicial Watch submitted the nineteen FOIA requests
issue this case. The statute default twenty-day period
elapsed without any determination the Secret Service
whether would comply with the requests. the time
Judicial Watch filed suit (in November 2015), the agency had
yet complete its processing the requests. And, five
previous occasions which the Secret Service had failed
make determination Judicial Watch request within
twenty days, the agency produced the requested records after
Judicial Watch filed suit. Compl. 7-9, 13-14.
Those factual allegations, view, not state claim
that the Secret Service has policy practice violating
FOIA. The complaint advances two potential theories how
the Secret Service has engaged policy practice
violating FOIA: first, the agency repeatedly failed make
determinations Judicial Watch requests within the time
period required FOIA, Compl. i.e., the default
twenty-day period, 552(a)(6)(A); and second, the agency
failed produce responsive documents over sixteen-month
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period between the submission the first request and the filing the suit. Neither those theories states claim for relief.
Judicial Watch first argues that the Secret Service
repeatedly failed make determinations its requests within
twenty days, with the nineteen requests issue this case
and the five previous cases identified the complaint. But the
lapse the default twenty-day period not itself actionable
violation FOIA. repeated lapse the twenty-day period,
then, cannot form the predicate viable policy-or-practice
claim.
The failure process FOIA request within twenty days,
while not itself actionable FOIA violation, does have
consequence under the statute. that event, the requester can
bypass the normal requirement seek administrative review adverse determination her request and instead proceed
directly district court. See U.S.C. 552(a)(6)(A)(i)-(ii),
(C)(i); see CREW, 711 F.3d 185, 189-90. The court then
would conduct novo review the agency processing
the request. See U.S.C. 552(a)(4)(B).
The court would not, though, grant judgment the
requester favor merely because the default twenty-day period
had elapsed without determination the agency. Rather, the
statute presupposes that the court could recognize that the
agency should given additional time process the request.
That would warranted if, have seen, the agency shows exercising due diligence responding the request and making reasonable progress reducing [a] backlog
pending requests. Id. 552(a)(6)(C)(i),(ii). Given that the
agency can lawfully take additional time process request,
the mere lapse the twenty-day period does not establish that
the agency has violated FOIA.
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Other provisions the statute reinforce that lapse the
twenty-day period cannot itself amount FOIA violation.
The requirement provide tracking number for any request
that will take longer than ten days process, id.
552(a)(7)(A), presupposes that agency might often require
more than twenty days complete its review. Otherwise,
tracking number would have relevance only for request that
the agency anticipates will take more than ten days but less than
twenty days, implausible reading the statute.
Indeed, FOIA expressly contemplates that agency could
take hundreds days process requests. The statute calls for
each agency submit annual report the Attorney General
setting out, among other things, the number requests
which the agency made determination within specified ranges business days. Each agency must, for example, identify the
number requests for which made determination within period and including days, and 20-day increments and including 200 days. Id. 552(e)(1)(G)(i). The
agency must also specify the number requests processed
within period 200-300 business days, 300-400 business
days, and greater than 400 business days.
Id.
552(e)(1)(G)(ii)-(iv). Congress thus expressly envisioned
that agency might, with some regularity, take several
hundred days more not just twenty days process
request.
Judicial Watch then errs supposing that lapse the
default twenty-day timeframe for processing request
constitutes actionable violation FOIA. follows that the
complaint cannot state viable policy-or-practice claim based the Secret Service failure make determination within
the twenty-day period for the requests issue.
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Judicial Watch complaint also states that the Secret
Service has policy practice failing produce requested
records within reasonable period time. Compl. 22.
That contention perhaps could construed allege that, even the lapse the twenty-day period does not itself establish
FOIA violation, the Secret Service failure make
determinations within reasonable time (beyond twenty
days) infringed FOIA overarching mandate make records
promptly available. Id. 552(a)(3)(A). That, however,
legal conclusion, which not accept true. Ashcroft
Iqbal, 556 U.S. 662, 678 (2009). The legal conclusion instead
must rest plausible factual allegations that, true, would
establish the unlawfulness the agency action. Id.
Judicial Watch alleges such facts here. Judicial Watch
contends that, the time filed suit November 2015, the
Secret Service had yet produce records responsive
nineteen requests submitted between July 2014 and August
2015. See Compl. 14. The requests had been pending for
between and 329 business days. Id. Ex. The complaint
contains allegations suggesting why those time periods
might considered unreasonably much less unlawfully
long. Rather, even assuming Judicial Watch allegations are
true, the Secret Service might well have been working through
the nineteen requests reasonable and lawful manner.
Indeed, the statute, explained, expressly envisions that
agencies may take hundreds days more process
requests. See U.S.C. 552(e)(1)(G)(i)-(iv).
Consider that regard how the response times for the
requests this case stack when compared with the Secret
Service general processing FOIA requests 2015, the
year the complaint was filed. The Secret Service processed
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roughly 1200 requests that year. U.S. Dep Homeland
Security, 2015 Freedom Information Act Report the
Attorney General the United States 13, tbls. VII.C(1)-(2)
(Feb. 2016), https://go.usa.gov/xXQvf (hereinafter 2015 DHS
FOIA Report). Almost all (roughly 90%) the requests
processed 2015 were categorized complex. Id. (1050
complex requests versus 145 simple requests). And the
average processing time for those requests was 317 days, with
the response time for roughly one out every four the
requests exceeding 300 business days. Id. 12-13, tbls. VII.B,
VII.C(2).
Considered that context, the time for which the nineteen
requests this case had been pending when Judicial Watch
filed its suit (54 329 business days) step with the Secret
Service general handling FOIA requests. Nor the Secret
Service some sort conspicuous outlier among DHS
components its processing times. See id. tbl. VII.B.
(Contrary colleagues suggestion, Maj. Op. 22; Conc
Op. 7-8, not necessarily assume that the requests this
case would categorized complex, although almost all
requests processed the Secret Service were classified.
Rather, identifying suitable comparison point help
highlight that processing times 329 days not alone
demonstrate FOIA violation, appropriate reference the
average processing time for the largest group requests for
which there available data, group that makes some 90% all requests.)
Insofar FOIA requester can make out viable policyor-practice claim based solely agency response times,
then, Judicial Watch needed allege something more than
that: submitted multiple FOIA requests, filed suit when
permitted the statute, and its requests had been pending for
some 329 business days that time. Those allegations
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are consistent with lawful conduct the agency. They thus not show policy practice violating FOIA. colleagues the majority nonetheless conclude that
Judicial Watch complaint states valid policy-or-practice
claim. They reason that the complaint alleg[es] prolonged,
unexplained delays producing non-exempt records that
could signal the agency has policy practice ignoring
FOIA requirements. Maj. Op. 15.
Which FOIA requirements the Secret Service
plausibly alleged have ignored? The only requirement
which the complaint relies the default twenty-day period for
processing request. For the reasons already set out, however,
the lapse that period does not amount actionable
violation FOIA. breach the twenty-day period were
itself actionable violation FOIA, then requester could
immediately file suit after the twenty-day period passes
day twenty one, for instance and qualify right away for the
entry judgment her favor and award attorneys fees substantially-prevailing party.
See U.S.C.
552(a)(4)(E). That cannot correct. for colleagues assertion that Judicial Watch
experienced prolonged delays obtaining responsive
records, Maj. Op. 15, there explanation why the
response periods alleged the complaint might cross the line
from permissible unlawfully prolonged. The lapse the
default twenty-day period, have seen, does not itself
establish that the agency response was unlawfully prolonged. so, then what point (beyond twenty days) did the agency
response times for the requests this case become unlawfully
prolonged? colleagues not say. And unclear how district court make that determination.
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For instance, are the response times prolonged because,
for three the nineteen requests the case, more than 300
business days had elapsed the complaint without
determination the agency? See Compl. Ex. The Secret
Service was doing worse that metric with regard the
nineteen requests issue than did for all requests processed 2015. See DHS 2015 FOIA Report 13, tbl. VII.C(2) (253
the roughly 1200 total responses took more than 300 business
days process). And agency violates FOIA whenever
takes more than 300 business days respond request,
Customs and Border Patrol would have violated the statute
that basis alone more than 20,000 times 2015. See id. effort bolster the idea that the Secret Service
response times this case some point became unduly
prolonged, concurring colleague would infer that the
requests issue are wholly straightforward. Conc Op.
The complaint, though, alleges (or says) nothing about the
comparative complexity Judicial Watch requests. any
rate, regardless whether the Secret Service ultimately
prevails its competing assertion that Judicial Watch
requests are labor intensive, Campbell Decl. (D.D.C.
Mar. 18, 2016), ECF No. 16-1, neither the concurring opinion
nor the court opinion identifies when (beyond twenty days)
response times become sufficiently prolonged such that the
time periods alleged complaint alone are enough make
out policy-or-practice claim. addition asserting that the Secret Service response
times were unduly prolonged, colleagues also say that the
response times were unexplained. Maj. Op. 15. that
regard, colleagues presumably rely Judicial Watch
indication that, for number the requests the case, the
Secret Service made communication Judicial Watch
beyond giving tracking number. See Compl. Ex.
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But the purpose requiring agency give
individualized tracking number for requests that will take
more than ten days process arm the requester with
efficient means obtaining information about the status
[her] request, including estimated date which the agency
will finish processing the request. U.S.C. 552(a)(7)(B).
That important form communication the agency
the requester, and there indication that was unavailable Judicial Watch (or any allegation that was somehow
deficient). particular request implicates one FOIA three
enumerated unusual circumstances and the agency will take
more than thirty business days process it, the statute calls for
the agency give the requester opportunity either limit
the request scope arrange for alternative timeframe
for processing it. Id. 552(a)(6)(B)(ii); see Conc Op. But
the requirement engage that dialogue arises only one
the enumerated unusual circumstances exists. And there suggestion Judicial Watch much less any allegation
the complaint that any those circumstances might exist
this case (or, for that matter, that the agency fell short any
resulting obligation initiate the contemplated dialogue). colleagues, finally, assume that the Secret Service has practice responding Judicial Watch requests only
after has filed lawsuit. Maj. Op. 14. [O]nly that
point, colleagues submit, has the Secret Service
conducted search determine whether records can made
available are exempt from disclosure, engaged
consultations with Judicial Watch. Id. assume would violate FOIA for agency adhere practice refusing process request unless the requester
brings lawsuit. not read the complaint allege that the
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Secret Service has any such policy, however. sure, the
complaint references five prior cases which the Secret
Service produced records after Judicial Watch filed suit, and
the agency this case produced records responsive the
nineteen requests after Judicial Watch brought this action. See
Compl. 14. But the fact that the agency eventually
produced records after lawsuit course hardly means that
produced the records only because the lawsuit, much less
that did work all process the request until the suit was
filed. See Iqbal, 556 U.S. 680-82.
Indeed, assuming (as must) that the Secret Service gave
Judicial Watch tracking number upon receiving the requests,
see Compl. 10, the agency also would have provide[d]
information about the status [the] request[s] including
estimated date which would complete action them, U.S.C. 552(a)(7)(B). That means the agency necessarily
would have work the requests regardless any (as yet
unfiled) suit. The complaint itself thus negates any notion that
the agency did work the requests until Judicial Watch
filed suit.
The complaint therefore does not allege and least does
not plausibly allege that the Secret Service policy
withhold processing production documents unless the
requester sues: say that documents were produced after
suit not say that there would have been processing
production absent the suit. Cf. Bell Atl. Corp. Twombly, 550
U.S. 554, 556-57 (2007) (while parallel conduct may
consistent with illicit agreement, allegations about parallel
conduct not substantiate otherwise conclusory allegation
illicit agreement). Judicial Watch fact conceded the
district court that the time taken the agency process the
requests could have been due host causes, including
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agency backlog. Pl. Opp Mot. Pldgs. 6-7 (D.D.C.
Mar. 12, 2016), ECF No. 14. colleagues reason that, regardless whether the
Service Service response times are caused agency
recalcitrance justifiable backlog, the delay has the effect
making practical requirement for Judicial Watch sue order obtain records. Maj. Op. 15. But the Secret
Service conduct, even assuming the truth the allegations
the complaint, has not required Judicial Watch sue.
Rather, the statute affords requesters choice: twenty
days comes and goes without determination, the requester
may check the tracking information and decide wait until the
estimated completion date arrives, she may choose
involve court effort set different timeline for
production. That how the statute designed work. And
nothing the complaint suggests that the process did not work
that way here. The remedial process, along with the other
provisions the statute, aim advance FOIA ultimate
mandate prompt production non-exempt records.
agency does not violate that mandate when the statutorilyprescribed process works was supposed to.
The evident result the court holding today that any
requester who alleges that she made more than one request for
records, that she received determination within twenty days,
and that she obtained records before suing, can state policy practice claim based agency delay. That would
even though the agency may well its way production,
and even though there plausible allegation agency
recalcitrance. any such instance, disclosure the requested
records accordance with court-ordered schedule would not
moot the case. Rather, district court would charged with
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examining how agency has organized its records
management systems and monitor[ing] when necessary
agency progress adjusting its records management
systems. Maj. Op. 22. That holding implicates not only the
Secret Service handling the requests this case, but also
the processes numerous governmental agencies who
routinely take longer than twenty days process requests
given the practical impossibility invariably meeting that
timeframe. See CREW, 711 F.3d 189. view, neither the terms, structure, nor purpose
FOIA demands that result. course not take lightly
FOIA highly important mandate that agencies promptly
disclose non-exempt records. Nor discount the possibility
that various agencies are not processing FOIA requests
quickly they might. The annual reports required
Congress presumably would shed light poorly performing
agencies. FOIA also provides for investigatory proceeding the Office Special Counsel whenever court issues
written findings that circumstances surrounding [an agency
withholding raise questions whether agency personnel acted
arbitrarily capriciously. U.S.C. 552(a)(4)(F)(i). And agency has practice unlawfully withholding the
disclosure responsive records say, persistently invoking inapplicable exemption will subject injunction
barring the practice. See Payne, 837 F.2d 490-92. this case, however, the Secret Service actions,
alleged the complaint, not reflect policy practice
violating FOIA. Rather, the allegations are consistent with
lawful conduct the agency part. result, the case
became moot when the agency finished processing the requests
and disclosed responsive documents pursuant the schedule
ordered the district court. thus respectfully dissent from colleagues disposition this appeal.
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United States Court Appeals
FOR THE DISTRICT COLUMBIA CIRCUIT
No. 16-5339
September Term, 2017
FILED ON: JULY 17, 2018
JUDICIAL WATCH, INC.,
APPELLANT
UNITED STATES DEPARTMENT HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District Columbia
(No. 1:15-cv-01983)
Before: ROGERS, SRINIVASAN, and PILLARD, Circuit Judges
JUDGMENT
This cause came heard the record appeal from the United States District
Court for the District Columbia and was argued counsel. consideration thereof,
ORDERED and ADJUDGED that the judgment the District Court appealed from this
cause hereby reversed and the case remanded District Court for further proceedings,
accordance with the opinion the court filed herein this date.
Per Curiam
FOR THE COURT:
Mark Langer, Clerk
BY:
/s/
Ken Meadows
Deputy Clerk
Date: July 17, 2018
Opinion for the court filed Circuit Judge Rogers.
Concurring opinion filed Circuit Judge Pillard.
Dissenting opinion filed Circuit Judge Srinivasan.