JW v DHS VIP travel opinion order 5339 01983
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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 Document #1740921 Filed: 07/17/2018 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 Document #1740921 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 Document #1740921 Filed: 07/17/2018 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 Document #1740921 Filed: 07/17/2018 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 Document #1740921 Filed: 07/17/2018 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- USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 Document #1740921 Filed: 07/17/2018 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 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 open government, and that accomplish this goal placed 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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); USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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, USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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 USCA Case #16-5339 Document #1740921 Filed: 07/17/2018 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. USCA Case #16-5339 Document #1740917 Filed: 07/17/2018 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.