Judicial Watch, Inc. v. U.S. Dep't of Homeland SEC. ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2017 Decided July 17, 2018
No. 16-5339
JUDICIAL WATCH, INC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01983)
Lauren M. Burke argued the cause and filed the briefs for
appellant. Paul J. Orfanedes entered an appearance.
Sarah Carroll, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was Mark
B. Stern, Attorney.
Before: ROGERS, SRINIVASAN, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge PILLARD.
2
Dissenting opinion filed by Circuit Judge SRINIVASAN.
ROGERS, Circuit Judge: For years, Judicial Watch has
monitored expenditures of U.S. Government funds on “VIP”
travel by submitting requests for records pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the
U.S. Secret Service and other agencies and reporting its
findings to the public. Between 2012 and 2014, when the
Secret Service failed to make requested records available in a
timely manner, Judicial Watch was forced to file a lawsuit on
five separate occasions in order to obtain the records. Upon
such filing, the Secret Service produced non-exempt records,
mooting the litigation.
In November 2015, Judicial Watch was forced again to file
a lawsuit when the Secret Service failed to make available
records in response to nineteen travel-related FOIA requests
submitted over a thirteen-month period. This time, in addition
to seeking an order that the Secret Service produce requested
records, Judicial Watch sought injunctive relief so the Secret
Service would not continue to violate FOIA’s mandate that
federal agencies “shall” make requested records “promptly
available.” 5 U.S.C. § 552(a)(3)(A). Judicial Watch alleged
that the Secret Service “has a policy and practice of violating
FOIA’s procedural requirements,” by “regularly failing” to
either produce requested records or make a determination
regarding their availability in accord with FOIA’s timetables,
5 U.S.C. § 552(a)(6)(A), or within a reasonable time. Compl.
¶ 22. Four months after the lawsuit was filed, the Secret
Service, much as it had done on the five prior occasions when
Judicial Watch had sued, produced non-exempt records,
thereby mooting the production request.
3
The only question now before the court is whether the
complaint adequately alleged a “policy or practice” claim
under FOIA. The district court ruled that Judicial Watch had
failed to plead sufficiently egregious facts and granted
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Because the court’s precedent recognizes that
a policy or practice claim may be predicated upon an agency’s
abuse of FOIA’s statutory scheme, we reverse and remand to
the district court for further proceedings.
I.
The Freedom of Information Act provides that federal
agencies, “upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available.”
5 U.S.C. § 552(a)(3)(A) (emphasis added). To ensure this
mandate did not become a dead letter, Congress adopted a two-
part approach. First, Congress imposed a set of requirements
on federal agencies: It established timetables for agencies to
respond to requests as well as procedures for agencies to obtain
additional time, and required adoption of records management
systems to facilitate “prompt” responses. Second, Congress
provided members of the public whose records requests were
denied a right to an administrative appeal and a right to seek
judicial relief. Briefly summarized, the salient features of this
two-part scheme are as follows:
First, an agency “shall determine” within twenty business
days (one month) of receiving a FOIA request “whether to
comply with such request,” and “shall immediately notify the
person making such request of 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 on the scope of the information sought. Id. In
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“unusual circumstances,” the agency may extend the
determination deadline by ten business days (two weeks) upon
explaining the circumstances to the requester. Id.
§ 552(a)(6)(B)(i). If additional time is required to address the
request, the agency “shall notify the [requester] . . . and shall
provide the person an opportunity to limit the scope of the
request . . . or an opportunity to arrange with the agency an
alternative time frame for processing the request or a modified
request.” Id. § 552(a)(6)(B)(ii).
To promote “efficient and appropriate compliance” with
FOIA, id. § 552(j)(2)(A), agencies “shall” publish their internal
organization and procedures relating to records requests, id.
§ 552(a)(1), and provide in electronic format instructions on
how records may be requested, id. §§ 552(a)(2), (g). Agencies
“shall” also maintain records systems by which requesters can
obtain status updates on pending requests. Id. § 552(a)(7).
Further, agencies “shall promulgate regulations” that
“provid[e] for expedited processing of requests” when, for
example, “the person requesting the records demonstrates a
compelling need,” and that “ensure” the agency makes such
determination within ten business days. Id. § 552(a)(6)(E).
Agencies are encouraged to “provid[e] for multitrack
processing of requests.” Id. § 552(a)(6)(D)(i). To assist in
covering the costs of these requirements, agencies may impose
reasonable fees for the processing of requests. Id.
§ 552(a)(4)(A).
Each agency also “shall designate” a Chief FOIA Officer,
id. § 552(j), to monitor implementation of FOIA, keep
government officials apprised of the agency’s performance,
develop policy recommendations, and otherwise facilitate
public understanding of FOIA’s exemptions, id. § 552(k). The
officer, in turn, “shall designate” public liaisons responsible for
“assisting in reducing delays, increasing transparency and
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understanding of the status of requests, and assisting in the
resolution of disputes.” Id. §§ 552(k)(6), (l). Congress also
required that agencies “shall annually report” to it on 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 a
member of the public requesting records from an agency.
Upon a denial of a request, the requester may seek
reconsideration by the head of 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 is excused when the agency fails to
make a timely determination — that is, within the timetables
established in § 552(a)(6) — whether to produce records or to
withhold them pursuant to a statutory exemption. Id.
§ 552(a)(6)(C)(i). Judicial relief, in turn, may extend beyond
requiring production to providing injunctive relief. Id.
§ 552(a)(4)(B).
In sum, FOIA “reflect[s] ‘a general philosophy of full
agency disclosure unless information is exempted under clearly
delineated statutory language.’” Dep’t of Air Force v. Rose,
425 U.S. 352, 360–61 (1976) (quoting S. REP. No. 813, 89th
Cong., 1st Sess., 3 (1965)). It “stand[s] in sharp relief against”
the prior procedures under the Administrative Procedure Act,
which were “generally recognized as falling short of its
disclosure goals and came to be looked upon more as a
withholding statute than a disclosure statute.” EPA v. Mink,
410 U.S. 73, 79 (1973). FOIA “seeks to permit access to
official information long shielded unnecessarily from public
view and attempts to create a judicially enforceable public right
to secure such information from possibly unwilling official
hands.” Id. at 80. Congress’s use of the word “shall” in issuing
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directives to agencies in support of the overarching mandate to
make records “promptly available,” 5 U.S.C. § 552(a)(3)(A),
instructs courts that Congress contemplated meaningful agency
engagement upon receipt of a FOIA request. Agencies initially
have a month to determine whether records can be made
available in light of nine statutory exemptions, id. § 552(b)(1)–
(9), and have several ways to obtain additional time to respond
to requests. This engagement is premised on agencies
improving records management systems to enable “prompt”
responses. Congress underscored the importance it attached to
prompt responses by allowing judicial recourse, bypassing
administrative exhaustion, if an agency fails to meet statutory
timetables for disclosure or to justify its delay in making non-
exempt records available upon request. See Mink, 410 U.S. at
93; McGehee v. CIA, 697 F.2d 1095, 1101 (D.C. Cir. 1983).
The instant appeal brings into sharp focus the meaning of
FOIA’s 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 to the Secret Service for records on public
expenditures for travel by President Obama and the First Lady,
Vice President Biden, and former President Carter. Upon
acknowledging receipt of and assigning tracking numbers to 17
of the 19 requests, the Secret Service took no further action and
stood mute. In November 2015 — between three and eighteen
months after the Secret Service had received Judicial Watch’s
records requests — Judicial Watch filed suit. Attached to its
complaint was a chart showing as to each request that the Secret
Service 1 had not made any of the requested records available
1
The Secret Service is a “distinct” entity within the Department
of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296 § 821, 116 Stat. 2135, 2224 (codified at 6 U.S.C.
§ 381).
7
nor advised Judicial Watch whether any records were exempt
from disclosure. Citing the five lawsuits it had filed against the
Secret Service in similar circumstances to obtain similar
records, Judicial Watch alleged that “[t]he Secret Service
regularly fails to issue determinations . . . within the time
period required by FOIA, causing [Judicial Watch] to bring suit
in order to obtain the requested records.” Compl. ¶¶ 7–8, 13
(emphasis added). The repeated, prolonged, and unexplained
delays have prevented Judicial Watch from gathering complete
records for its reports to the public on federally funded VIP
travel. See id. ¶ 16. Further, Judicial Watch “intends to
continue submitting identical or nearly identical travel-related
FOIA requests as part of its on-going efforts to educate and
inform the public about ‘what their government is up to’ and
promote transparency, integrity, and accountability in
government and fidelity to the rule of law.” Id. ¶ 17.
Judicial Watch’s complaint was in two counts. Count I
alleged the Secret Service is “violating FOIA by failing to
conduct a search reasonably calculated to uncover all records
responsive to each . . . request[] and is unlawfully withholding
records responsive to each request.” Id. ¶¶ 19–20. As relief it
sought an order directing the Secret Service to search and
produce the non-exempt records “by a date certain.” Id. at 6–
7. Count II alleged that the Secret Service, “[o]n information
and belief . . . has a policy and practice of violating FOIA’s
procedural requirements” by “regularly failing or refusing to
produce requested records or otherwise demonstrate that [they]
are exempt from production within the time period required by
FOIA or at least within a reasonable period of time,” id. ¶ 22,
causing it irreparable harm, id. ¶ 23. It sought in relief an order
enjoining the Secret Service from adhering to its policy or
practice. Id. at 7.
 8
In answering the complaint, the Secret Service
acknowledged that it had not made “a final response to all of
[Judicial Watch’s] FOIA requests,” Answer ¶ 14, and
otherwise denied violating FOIA. It also moved for judgment
on the pleadings pursuant to Rule 12(c) and to dismiss Count
II with prejudice. In an accompanying memorandum, the
Secret Service stated that it would, in accord with the district
court’s scheduling order, produce all non-exempt records by
March 18, 2016. Within four months of the filing of the
complaint, the Secret Service had produced to Judicial Watch’s
satisfaction all requested non-exempt records, including some
requested two years earlier, sought in Count I. As to Count II’s
request for injunctive relief, the Secret Service argued that the
complaint failed to allege facts sufficient to support a policy or
practice claim. Judicial Watch opposed the motion as to Count
II and requested discovery of the Secret Service’s FOIA
practices in responding to its requests. Acknowledging that the
repeated and unexplained failure to respond within FOIA’s
timetables or a reasonable time “could be due to a host of
causes,” Judicial Watch stated that it was unaware of any
“unusual” or “exceptional” circumstances asserted by the
Secret Service to justify its repeated failures to timely respond
because the Secret Service “never has — nor does it now —
offer such a reason [or] justification.” Pl.’s Opp’n to Mot. for
J. on Pldgs., at 6–7 (Mar. 12, 2016). “As such,” Judicial Watch
argued, “it[s] [non-responses] could also be the result of a
policy or practice.” Id.
The district court dismissed Count I as moot once the
Secret Service produced the requested records. It also granted
the Rule 12(c) motion for judgment on Count II, ruling that
Judicial Watch had “failed to allege sufficient facts”
establishing that the Secret Service had “adopted, endorsed, or
implemented some policy or practice that constitutes an
ongoing failure to abide by the terms of FOIA.” Judicial Watch
9
v. Dep’t of Homeland Security, 211 F. Supp. 3d 143, 146–47
(D.D.C. Sept. 29, 2016) (quoting Muttitt v. Dep’t of State, 926
F. Supp. 2d 284, 293 (D.D.C. Mar. 4, 2013)). In particular, the
district court stated that Judicial Watch “points to no fact or
statement to establish why requests were delayed or how the
delays were the result of an either formal or informal policy or
practice to violate FOIA’s requirements, rather than inevitable
but unintended delay attributable to a lack of resources.” Id. at
146. It sought no explanation from the Secret Service but
speculated the delays were likely due to a lack of resources.
Judicial Watch appeals the Rule 12(c) judgment on Count
II. Our review is de novo, accepting as true, as we must, the
factual allegations in the complaint. Mpoy v. Rhee, 758 F.3d
285, 287 (D.C. Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009)).
II.
FOIA lawsuits generally become moot once an agency has
made available requested non-exempt records, whether
voluntarily or after court order. See Perry v. Block, 684 F.2d
121, 125 (D.C. Cir. 1982) (citations omitted). This court has
recognized an exception to mootness where an agency has a
“policy or practice” that “will impair the party’s lawful access
to information in the future.” Payne Enterprises, Inc. v. United
States, 837 F.2d 486, 491 (D.C. Cir. 1988) (citing Better Gov’t
Ass’n v. Dep’t of State, 780 F.2d 86, 90–92 (D.C. Cir. 1986)).
The First Circuit had recognized a similar exception in
Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978), and
the Ninth Circuit has followed suit, see Hajro v. U.S.
Citizenship & Immigr. Servs., 811 F.3d 1086, 1103 (9th Cir.
2015). FOIA authorizes a court not only to “order the
production of any agency records improperly withheld,” but
also to “enjoin the agency from withholding agency records.”
10
5 U.S.C. § 552(a)(4)(B). This injunctive authority does not
limit the district court’s inherent injunctive powers. See
Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S.
1, 20 (1974).
In this circuit it is settled law that informal agency conduct
resulting in long delays in making requested non-exempt
records available may serve as the basis for a policy or practice
claim. Our decision in Payne is instructive. There, for almost
two years Air Force officials repeatedly refused to produce
requested copies of bid abstracts for government contracts by
invoking two FOIA exemptions even though the Secretary of
the Air Force had repeatedly determined the exemptions were
inapplicable. Payne, 837 F.2d at 487–90. Payne sought
administrative review, which “[w]ithout exception” resulted in
the production of the requested records. Id. at 489. Payne
nonetheless filed suit challenging the agency’s “practice of
unjustified delay.” Id. at 487. On appeal, this court identified
the nature of a policy or practice claim:
The fact that the practice at issue is informal, rather
than crystalized in regulation or an official statement
of policy, is irrelevant to determining whether a
challenge to that policy or practice is moot. Courts
have long recognized that there “may very well be
circumstances in which prolonged delay in making
information available or unacceptably onerous
opportunities for viewing disclosed information
require judicial intervention.” So long as an agency’s
refusal to supply information evidences a policy or
practice of delayed disclosure or some other failure to
abide by the terms of the FOIA, and not merely
isolated mistakes by agency officials, a party’s
challenge to the policy or practice cannot be mooted
11
by the release of the specific documents that prompted
the suit.
Id. at 491 (quoting Lybarger, 577 F.2d at 767).
Upon concluding that Payne’s case was not moot, id. at
494, the court also concluded that the agency’s “repeated
delays” in making requested records available were “wholly
unjustified” and “clear violations” of FOIA, id. at 488–89.
“[T]hat Payne eventually obtained the information it sought
provides scant comfort when stale information is of little value
yet more costly than fresh information ought to be.” Id. at 494.
The court endorsed the interpretation of FOIA that:
Congress did not intend for . . . agenc[ies] to use
FOIA offensively to hinder the release of non-exempt
documents. The appellants [i.e., the requesting
parties] have fully complied with the administrative
scheme. It was the [agency]’s abuse of this scheme
that forced the appellants to bring several lawsuits to
obtain release of the documents. . . . These
unreasonable delays in disclosing non-exempt
documents violate the intent and purpose of the FOIA,
and the courts have a duty to prevent these abuses.
Id. (quoting Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982)).
In remanding the case to afford Payne declaratory relief, this
court instructed the district court to “consider the propriety of
injunctive relief,” id. at 494–95, after “evaluat[ing] the
likelihood that the Air Force will return to its illicit practice of
delay in the absence of an injunction,” id. at 495.
The court applied Payne in Newport Aeronautical Sales v.
Dep’t of Air Force, 684 F.3d 160 (D.C. Cir. 2012). There, the
agency had repeatedly invoked a FOIA exemption to deny
12
requests for technical data, forcing a government contractor to
request the records pursuant to the agency’s more onerous
disclosure scheme, which required submission of information
that the contractor did not have due to the nature of its business.
Id. at 162–63. The contractor sued, challenging the
permissibility of the agency’s interpretation of FOIA. This
court held that the Air Force’s belated disclosure of requested
records after the contractor filed suit did not moot the policy or
practice claim because the Air Force had persisted in its
challenged practice of non-disclosure. Id. at 163–64 (citing
Payne, 837 F.2d at 491).
Judicial Watch does not allege agency misconduct in
invoking FOIA exemptions as occurred in Payne or good-faith
agency error in interpreting a FOIA exemption as occurred in
Newport. Nor does Judicial Watch point to any formal policy
or other substantive response by the Secret Service explaining
its failures to “promptly” produce requested non-exempt
records. Instead, Judicial Watch’s policy or practice claim is
based on the Secret Service’s repeated, unexplained, and
“prolonged delay in making information available.” Payne,
837 F.2d at 491. It alleges that the Secret Service “regularly
fails to issue determinations in response to [Judicial Watch’s]
travel-related FOIA requests within the time period required by
FOIA, causing [Judicial Watch] to bring suit in order to obtain
the requested records.” Compl. ¶ 7 (emphasis added). It points
to the five lawsuits 2 it had been forced to file when the Secret
Service had previously employed the same non-responsive
conduct: acknowledge receipt of the FOIA requests and assign
2
See Judicial Watch, Inc. v. U.S. Secret Service, No. 12-1562
(D.D.C. 2012); Judicial Watch, Inc. v. U.S. Secret Service, No. 13-
0647 (D.D.C. 2013); Judicial Watch, Inc. v. U.S. Secret Service, No.
13-0950 (D.D.C. 2013); Judicial Watch, Inc. v. U.S. Secret Service,
No. 14-0046 (D.D.C. 2014); Judicial Watch, Inc. v. U.S. Secret
Service, No. 14-1732 (D.D.C. 2014).
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them tracking numbers, remain mute until Judicial Watch filed
a lawsuit, and only then undertake to make requested non-
exempt records available, thereby mooting the litigation and
escaping judicial review of its failures to comply with FOIA’s
procedural requirements.
Now seeking injunctive relief in view of the Secret
Service’s alleged flouting of the statutory scheme, Judicial
Watch’s complaint posits that the Secret Service has an
informal practice, harmful to Judicial Watch’s mission and
work, of repeatedly withholding “nearly identical” records,
without explanation, for unreasonable periods of time. Id.
¶¶ 7–9, 13–14, 22. Pointing to the FOIA requests underlying
this lawsuit, Judicial Watch shows that the Secret Service made
no determinations, timely or otherwise, whether it would make
any of the records available. For example, on August 8, the
Secret Service acknowledged receipt of the requests of July 21
and 28, 2014, for travel expenditures for President Obama’s
trips to New York City, Seattle, San Francisco, and Los
Angeles, but had no further communication with Judicial
Watch on these requests, or on twelve other requests. For three
requests, the Secret Service provided a communication of an
unidentified nature, but did not produce any requested records.
Two requests were ignored entirely.
The Secret Service, in moving for judgment pursuant to
Rule 12(c), has treated its non-responsiveness to Judicial
Watch’s requests as consistent with FOIA: When an agency
fails “promptly” to produce requested non-exempt records or
invoke an exemption within statutory timetables, the
requesting party may file a lawsuit without exhausting the
administrative remedy. See 5 U.S.C. § 552(a)(6)(C)(i). That
is, failures to adhere to FOIA’s pre-litigation requirements,
including response deadlines and records management
provisions needed to enable “prompt” determinations, do not
14
establish a FOIA violation and consequently cannot be the
basis for a policy or practice claim. See Appellee Br. 17–19.
In other words, the Secret Service concludes the text of FOIA
allows for this interpretation because even where an agency
repeatedly fails to conform to FOIA’s procedural requirements
in the first part of the statutory scheme, the requester can, under
the second part of the scheme, file a lawsuit any time it seeks
to gain access to agency records. That is, the Secret Service
interprets FOIA the same way as any statute affording a right
that may be vindicated by judicial enforcement; enacting
FOIA’s directives on pre-litigation requirements thus was
unnecessary.
This interpretation is untenable for any number of reasons.
Most significantly, “[t]he basic purpose of FOIA is to ensure
an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governor accountable to the governed.” NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (1978); see Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 171–72 (2004). Non-
exempt records are to be made “promptly available,” 5 U.S.C.
§ 552(a)(3)(A), for little more than payment of copying costs.
The Secret Service’s interpretation renders FOIA’s mandate of
“prompt” response superfluous, i.e., a dead letter. Judicial
Watch’s complaint reflects that it has repeatedly been
confronted with prolonged, unexplained delays by the same
agency with regard to the same type of records and that six
nearly identical lawsuits have not produced any change in the
Secret Service’s response to its proper requests until after it has
filed a lawsuit. According to the complaint, only at that point
has the Secret Service conducted a search to determine whether
records can be made available or are exempt from disclosure,
or engaged in consultations with Judicial Watch. The
government points to nothing that would suggest that in
providing a judicial remedy “to secure such information from
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possibly unwilling official hands,” Mink, 410 U.S. at 80,
Congress intended an agency’s repeated flaunting of FOIA’s
pre-litigation procedural requirements to be excused once the
requested records are made available upon being sued. That
interpretation is inconsistent with Congress’s remedial purpose
in enacting FOIA to enhance government transparency subject
to limited statutory exemptions, using a two-part scheme that
imposed specific requirements on federal agencies. Our
precedent on policy or practice claims disposes of any
suggestion that Congress intended the repeated filing of
lawsuits to be a practical requirement for obtaining records
from an agency flaunting the statute. See Payne, 893 F.2d at
494 (citing Long, 693 F.2d at 910). Filing a lawsuit hardly
ensures “prompt[] availab[ility],” 5 U.S.C. § 552(a)(3)(A), as
the instant case and the five other lawsuits against this agency
demonstrate, see supra note 2, not to mention the chilling effect
that litigation costs can have on members of the public much
less the burden imposed on the courts.
Therefore, a plaintiff states a plausible policy or practice
claim under Payne by alleging prolonged, unexplained delays
in producing non-exempt records that could signal the agency
has a policy or practice of ignoring FOIA’s requirements. As
in Payne, the plaintiff must allege a pattern of prolonged delay
amounting to a persistent failure to adhere to FOIA’s
requirements and that the pattern of delay will interfere with its
right under FOIA to promptly obtain non-exempt records from
the agency in the future. Judicial Watch’s complaint meets
these requirements. Given the Secret Service’s repeated,
prolonged, and as yet unexplained delays in making requested
non-exempt records available, it cannot be gainsaid that
Judicial Watch alleges sufficient facts under Federal Rule of
Civil Procedure 8(a)(2) and Supreme Court precedent to “draw
the reasonable inference” that the Secret Service has adopted a
practice of delay, contrary to FOIA’s two-part scheme, by
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repeatedly standing mute over a prolonged period of time and
using Judicial Watch’s filing of a lawsuit as an organizing tool
for setting its response priorities. Iqbal, 556 U.S. at 678; Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The conclusion that such “unreasonable delay in
disclosing non-exempt documents” is an “abuse of [FOIA’s]
scheme” follows ineluctably from the recognition that
“Congress did not intend for the [agency] to use the FOIA
offensively to hinder the release of non-exempt documents so
as to “force[] the appellant[] to bring several lawsuits to obtain
release of the documents.” Payne, 837 F.2d at 494 (quoting
Long, 693 F.2d at 910). And it is long established in this circuit
that an agency’s compliance with FOIA depends upon its
“good faith effort and due diligence . . . to comply with all
lawful demands [for records] . . . in as short a time as is
possible.” Open America v. Watergate Special Prosecution
Force, 547 F.2d 605, 616 (D.C. Cir. 1976). Congress
reinforced the importance of FOIA’s timetables and its
overarching mandate of prompt availability when it amended
FOIA in 1974. Responding to agencies’ concerns about the
high volume of requests and lack of resources, Congress
allowed agencies only ten additional days to respond where
there were “unusual circumstances.” See 5 U.S.C.
§ 552(a)(6)(B). Judge Leventhal has explained:
[T]he 1974 Amendments were deliberately drafted to
force increased expedition in the handling of FOIA
requests: “[E]xcessive delay by the agency in its
response is often tantamount to denial. It is the intent
of this bill that the affected agencies be required to
respond to inquiries and administrative appeals within
specific time limits.” H. REP. No. 93-876, 93d Cong.,
2d Sess. (1974). . . . The Congress even rejected a 30-
17
day extension provision, narrowly drafted to take
account of the special exigencies facing agencies.
Open America, 547 F.2d at 617 (Leventhal, J., concurring in
the result) (emphasis added). Much as Congress has done in
adopting “technology-forcing” provisions in other contexts,
see, e.g., Union Elec. Co v. EPA, 427 U.S. 246, 256–57 (1976),
Congress contemplated that agencies would improve their
records management systems to ensure requested records are
made “promptly available,” 5 U.S.C. § 552(a)(3)(A). No
authority has been cited that either the Supreme Court or this
court has retreated from this understanding of FOIA’s text,
purpose, and history. An agency’s use of a lawsuit as an
organizing tool for prioritizing responses renders FOIA’s
requirements “insignificant, if not wholly superfluous.”
Duncan v. Walker, 533 U.S. 167, 174 (2001).
The district court, however, conceived the issue of
sufficiency of pleading differently. First, it treated Payne and
Newport as establishing a floor for a policy or practice claim.
In contrast with what it described as the “egregious, intentional
agency conduct” in Payne and Newport, the district court ruled
that Judicial Watch had alleged “mere delay.” Judicial Watch,
211 F. Supp. 3d at 147. “At best, Judicial Watch’s alleged facts
are merely consistent with a policy or practice claim.” Id.; see
id. at 145 (citing Iqbal, 556 U.S. at 678). This court did not
require egregious agency action to state a policy or practice
claim. Rather, the court stated in Payne that even beyond a
“refusal to supply information,” an agency may engage in
“some other failure to abide by the terms of the FOIA” that
could be a basis for finding the agency has an unlawful policy
or practice. Payne, 837 F.2d at 491 (emphasis added). It would
be ironic if a policy or practice claim could be based on
misapplication of a FOIA exemption (as in Payne and
Newport), but not on an agency’s total disregard of the
18
obligations mandated by Congress and failure to take
advantage of provisions allowing additional time to respond.
Second, the district court shifted to the requesting party the
burden that FOIA places on the agency to explain its delay in
making requested records available. See, e.g., 5 U.S.C.
§§ 552(a)(4)(B), (a)(6)(A)–(C); ACLU v. U.S. Dep’t of
Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). Concluding that
Judicial Watch failed to show that the Secret Service had
“adopted, endorsed, or implemented some policy or practice
that constitutes an ongoing failure to abide by the terms of the
FOIA,” Judicial Watch, 211 F. Supp. 3d at 146 (quoting
Muttitt, 926 F. Supp. 2d at 293), the district court focused on
Judicial Watch’s shortcomings in “point[ing] to no fact or
statement to establish why the requests were delayed or how the
delays were the result” of an agency policy or practice, “rather
than an inevitable but unintended delay attributable to a lack of
resources,” id. Pretermitting whether a lack of resources could
ever suffice to excuse repeated, prolonged, and as yet
unexplained delay, as the district court interjected, id. at 147,
FOIA’s text and structure require that the agency “at least
indicate within the relevant time period the scope of the
documents it will produce and the exemptions it will claim with
respect to any withheld documents.” Citizens for
Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 711
F.3d 180, 183 (D.C. Cir. 2013) (“CREW I”). This threshold
requirement stands as a gateway to the transparency FOIA
envisions.
The history of the Secret Service’s conduct in response to
Judicial Watch’s FOIA requests, as alleged in the complaint,
wherein Judicial Watch has been forced to file six lawsuits to
obtain requested non-exempt records — all relating to the same
subject matter — sufficed to state a plausible claim that the
agency’s practice was to utilize delay to flaunt FOIA’s
19
procedural requirements, and that filing a lawsuit to obtain
requested records was an empty gesture in terms of preventing
future prolonged delays, much less obtaining future relief,
because the agency would moot the litigation and escape
judicial review of its compliance with FOIA. The Secret
Service’s alleged practice of prolonged, repeated, and
unexplained delay, if allowed to continue, would harm Judicial
Watch’s mission to inform the public about the costs of VIP
travel by unlawfully interfering with its statutory right to
“promptly” obtain non-exempt records upon request. See
Newport, 684 F.3d at 163–64.
Of course, not all agency delay or other failure to comply
with FOIA’s procedural requirements will warrant judicial
intervention, much less injunctive relief. FOIA’s provisions
for extensions of response time, where for example the agency
shows “exceptional circumstances exist” upon
“demonstrat[ing] reasonable progress in reducing the backlog
of pending requests,” 5 U.S.C. § 552(a)(6)(C), indicate as
much. Even assuming for purposes of argument that Congress
intended the judicial remedy to be a principal means to
overcome unlawful agency withholding — an interpretation of
FOIA that this court has long rejected — no authority has been
cited to suggest agencies may require a requester routinely
resort to court to obtain responsive non-exempt records. It
seems doubtful such authority would exist when agency “good
faith effort and due diligence” are the touchstones underlying
FOIA’s statutory scheme. Open America, 547 F.2d at 616.
Unexplained agency delay still requires the district court
to determine whether the agency’s conduct in failing to
conform to FOIA’s procedural requirements demonstrates a
lack of due diligence and is so delinquent or recalcitrant as to
warrant injunctive relief because ordinary remedies, such as a
production order, see 5 U.S.C. § 552(a)(4)(B), would be
20
inadequate to overcome an agency policy or practice. See Ctr.
for the Study of Servs. v. Dep’t of Health & Human Servs., 874
F.3d 287, 292 (D.C. Cir. 2017); Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1242,
1246 (D.C. Cir. 2017) (“CREW II”); Newport, 684 F.3d at 164;
Payne, 837 F.2d at 491; Lybarger, 577 F.2d at 767. When
injunctive relief is sought, “the necessary determination is that
there exists some cognizable danger of recurrent violation,
something more than the mere possibility which serves to keep
the case alive.” U.S. v. W.T. Grant Co., 345 U.S. 629, 633
(1952). Factors to be “considered are the bona fides of the
expressed intent to comply, the effectiveness of the
discontinuance [of the violation] and, in some cases, the
character of the past violations.” Id. In the FOIA context, “the
court’s prime consideration should be the effect on the public
of disclosure or non-disclosure.” Long, 693 F.2d at 909 (citing
W.T. Grant, 345 U.S. at 633). And as Congress’s limited
reaction in amending FOIA suggests, staffing shortages and
work overload may not render injunctive relief inappropriate.
See Open America, 547 F.2d at 616; id. at 617 (Leventhal, J.,
concurring in the result). The indication by government
counsel during oral argument that an agency might permissibly
use litigation as an organizing tool for responding to FOIA
requests, see Oral Arg. 25:18–26:59, is not an encouraging
sign.
Our dissenting colleague’s interpretation of FOIA raises
the question why Congress bothered to enact FOIA at all. After
all, prior to FOIA, a person could request agency records and
upon failing to obtain them seek relief in court, albeit an
expensive and time-consuming process. Yet neither agency
practices nor lawsuits under the prior statutory scheme resulted
in transparency of government operations. The Supreme Court
and this court have understood that Congress’s purpose in
enacting FOIA was to achieve greater transparency in support
21
of open government, and that to accomplish this goal it placed
the burden on agencies to act in good faith and exercise due
diligence to make records available as quickly as possible, or
invoke an exemption, and to improve their records
management systems to enable prompt responses without
routine judicial involvement. Our colleague’s interpretation
would bypass Congress’s decision about how this goal can best
be achieved.
In doing so, our colleague concludes Judicial Watch’s
complaint fails to state a claim for relief based on a policy or
practice. Diss. Op. 2, 7–8. He does this by reading the
complaint narrowly despite the Rule 8 stage of the proceedings,
Mpoy, 758 F.3d at 287 (citing Iqbal, 556 U.S. at 678–79),
ignoring factual allegations that must be accepted as true,
reasonable inferences from the detailed chart accompanying
the complaint, and the context in which Judicial Watch was
forced to file this sixth lawsuit against the same agency for
release of the same type of records. His reading renders
FOIA’s requirements insignificant at best and effectively
reinstates the pre-FOIA scheme. When properly read, the
complaint alleges that the Secret Service continues to abuse the
statutory scheme and repeatedly moot litigation to escape
judicial oversight, thereby denying Judicial Watch the prompt
transparency that Congress intended in enacting FOIA.
Further, our colleague proceeds to address whether
Judicial Watch could prevail beyond the Rule 8 pleading stage.
He misreads the record and speculates on how the government
might have responded had the complaint not been dismissed,
Diss. Op. 10–16, thereby placing a pleading burden on Judicial
Watch beyond what Rule 8 requires and flipping to the
requester the burden that FOIA places on the agency to explain
its delay. The record at the time the district court granted the
government’s Rule 12(c) motion shows that the Secret Service
22
had done nothing beyond acknowledging receipt and assigning
tracking numbers to most of Judicial Watch’s requests. The
record provides no basis to assume Judicial Watch was kept
informed of what, if anything, the Secret Service had done in
responding to its requests, see Diss. Op. 13; paragraphs 8–12
of the complaint allege to the contrary. In speculating about
the government’s explanation, our colleague embraces the idea
that taking “hundreds of days to process requests,” Diss. Op. 9,
is a permissible interpretation of an agency’s obligations under
FOIA, when the statutory structure and our precedent in CREW
I, 711 F.3d at 186–87, are to the contrary. He twists the
congressional reporting requirement, Diss. Op. 9, designed to
enable Congress to ensure agency compliance with FOIA into
evidence of congressional approval of agency failure to
comply. See, e.g., S. REP. 93-854, at 32–33 (May 16, 1974);
H.R. REP. 104-795, at 7, 14, 27–29 (Sept. 17, 1996); see also
S. REP. 110-59, at 2, 7 (Apr. 30, 2007). And by conjuring up
the notion that Judicial Watch’s requests were “complex,”
Diss. Op. 10–11, our colleague again fails to read the record as
it must at this Rule 8 stage. Even on appeal the Secret Service
has not characterized Judicial Watch’s requests as complex.
Accordingly, we reverse the Rule 12(c) judgment on the
request for injunctive relief and remand Count II to the district
court for further proceedings. Our disposition conforms to
longstanding precedent interpreting agencies’ obligations of
“good faith effort and due diligence” upon receiving a FOIA
request. Open America, 547 F.2d at 616. The district court is
no less obligated to determine upon a well-pleaded complaint
that an agency has organized its records management systems
to enable prompt determinations to produce records or to
invoke an exemption, and to monitor when necessary an
agency’s progress in adjusting its records management systems
to enable it to comply with FOIA. See Ctr. for the Study of
Servs., 874 F.3d at 292; CREW II, 846 F.3d at 1246. The
23
government’s suggestion that Judicial Watch seeks a broad
injunction requiring the Secret Service to prioritize its
responses to Judicial Watch’s future FOIA requests, thereby
“distort[ing] the statutory scheme” and resulting in harm to
“other members of the public who have an equal right to seek
information from the government,” Appellee Br. 21–22, is not
well-taken. The Secret Service will have the opportunity on
remand to explain its delays and to confirm how it intends in
the future to conform to FOIA’s mandate to make requested
non-exempt records “promptly available.” The district court,
upon considering the complaint and the parties’ further
submissions, will determine, in the first instance, the
appropriateness of discovery and tailored injunctive relief.
PILLARD, Circuit Judge, concurring:
I join the majority opinion in full. In view of the
disagreement between my colleagues, I write separately to
emphasize what I see as the alleged Freedom of Information
Act (FOIA) violations, and to spell out how, because the
complaint alleges a persistent “practice” of violating FOIA, the
Secret Service’s production of records in response to Judicial
Watch’s lawsuit did not render the claims moot.
Judicial Watch wants to keep the public informed of how
much taxpayer money is spent on travel by the First Families
and others who travel under Secret Service protection. FOIA
is designed to make such a project easy and inexpensive.
Under FOIA, information showing “what [the] government is
up to,” EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J.,
dissenting), is presumptively available for the asking—no
lawyer needed—to any person at little or no cost. But it has
not worked out that way for Judicial Watch. The organization
has had to wait for many months, and to devote resources that
would be unaffordable to most requesters to file half a dozen
lawsuits, just to get this simple information.
Judicial Watch alleges a continuing practice of virtually
complete passivity by the Secret Service in responding to the
series of straightforward requests that Judicial Watch alleges it
has made and plans to continue to make. In these
circumstances, a complete but belated response does not moot
the case. The statute “does not allow agencies to keep FOIA
requests bottled up for months or years on end while avoiding
any judicial oversight.” Citizens for Responsibility & Ethics in
Wash. v. FEC, 711 F.3d 180, 190 (D.C. Cir. 2013) (CREW).
Because the pleadings show no statutorily adequate
explanation for the agency’s persistent practice of alleged
delays in violation of FOIA, the district court retains
jurisdiction over whatever further proceedings are needed to
determine whether declaratory or injunctive relief is
2
appropriate. On remand, the district court should call on the
Secret Service either to bring its FOIA process into line with
the statute, or to explain to the court’s satisfaction that it has
already done so.
* * *
When a member of the public makes a request for
government records, FOIA requires the agency to “determine
within 20 days” what responsive records it has and can produce
consistent with FOIA’s exemptions, 5 U.S.C.
§ 552(a)(6)(A)(i), to “immediately” notify the requester of its
determination, id., and to follow up by making nonexempt
records “promptly available,” id. § 552(a)(3)(A). FOIA thus
sets a default 20-day deadline for the underlying determination,
and simply requires that the ensuing production of records be
made to the requester “promptly” thereafter. These
requirements are tied together, for Congress plainly intended
production of records to follow close on the heels of the
determination. As we explained in CREW, “promptly” under
Section 552(a)(3)(A) “typically would mean within days or a
few weeks of a ‘determination,’ not months or years.” See
CREW, 711 F.3d at 188-89.
There is no doubt that Congress intended FOIA’s time
limits to be mandatory. See Open America v. Watergate
Special Prosecution Force, 547 F.2d 605, 617 (D.C. Cir. 1976)
(Leventhal, J., concurring) (“Excessive delay by the agency in
its response is often tantamount to denial. It is the intent of this
bill that the affected agencies be required to respond to
inquiries . . . within specific time limits.”) (quoting H.R. Rep.
No. 93-876, 93d Cong., 2d Sess. (1974)). Our dissenting
colleague minimizes the importance of the 20-day deadline for
the agency to make its determination by noting that, once an
agency exceeds it, the requester is released from FOIA’s
3
administrative exhaustion requirement. See Diss. Op. 4-5, 8.
He infers from its relevance to exhaustion that the 20-day
deadline is somehow not itself enforceable. Id. We have never
so held, nor need we pass on that question today. The
violations alleged here are not limited to missing the 20-day
deadline, but include the Secret Service’s additional failures to
make the responsive records “promptly available.” 5 U.S.C.
§ 552(a)(3)(A). Suffice it to say that no court of which we are
aware has given Section 552(a)(6)(A)(i)’s 20-day default
deadline the restricted role the dissent envisions, whereas at
least one sister circuit reads it to support a legal challenge
where an agency responded “well beyond the twenty-day limit”
without “notice of any ‘unusual circumstances’ justifying an
extension.” Hajro v. U.S. Citizenship & Immigration Servs.,
811 F.3d 1086, 1106-07 (9th Cir. 2015).
Regardless whether ignoring the 20-day deadline is alone
actionable, there is no question that substantial delays can
support cognizable FOIA claims: We have held that
“unreasonable delays in disclosing non-exempt documents
violate the intent and purpose of the FOIA, and the courts have
a duty to prevent these abuses.” Payne Enters., Inc. v. United
States, 837 F.2d 486, 494 (D.C. Cir. 1988) (quoting Long v.
IRS, 693 F.2d 907, 910 (9th Cir. 1982)); cf. McGehee v. CIA,
697 F.2d 1095, 1110 (D.C. Cir. 1983) (holding that an agency’s
internal procedures for processing documents may violate
FOIA where the “net effect” is “significantly to increase the
amount of time [the requester] must wait to obtain them”).
Faced with information suggesting that “an agency’s responses
to a request for information have been tardy and grudging,
courts should be sure they do not abdicate their own duty.”
McGehee, 697 F.2d at 1114. Allegations of an agency’s
unexplained delay—here, alleged failures for several months
to respond to simple requests to make responsive, non-exempt
records “promptly available”—suffice to state a FOIA claim.
4
When, as often happens, an agency voluntarily produces
requested records during the course of a lawsuit, that
production typically satisfies the requester and ends the case.
But not always. Voluntary cessation of unlawful conduct
moots a case, as a general matter, only “if subsequent events
made it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189
(2000). Moreover, “[t]he heavy burden of persuading the court
that the challenged conduct cannot reasonably be expected to
start up again lies with the party asserting mootness.” Id. In
the FOIA context, an ongoing agency “policy or practice” of
unlawful nondisclosure may mean the voluntary release of
responsive records “does not deprive the tribunal of power to
hear and determine the case, i.e., does not make the case moot.”
Payne, 837 F.2d at 490 (quoting United States v. W.T. Grant
Co., 345 U.S. 629, 632 (1953); citing Cty. of L.A. v. Davis, 440
U.S. 625, 631 (1979)); see Newport Aeronautical Sales v.
Dep’t of Air Force, 684 F.3d 160, 163-64 (D.C. Cir. 2012);
Hajro, 811 F.3d at 1103, 1106; Mayock v. Nelson, 938 F.2d
1006 (9th Cir. 1991). A plaintiff plausibly alleging that its
plans to request similar agency records will be stymied by an
ongoing practice of unjustified delays may be entitled to
injunctive or declaratory relief.
The question here is whether Judicial Watch has
adequately alleged such a practice. The answer is yes.
Over a period of years, Judicial Watch routinely asked for
“VIP travel” expense information it wanted to include in
reports to its interested public. See Compl. ¶ 16, Judicial
Watch, Inc. v. Dep’t of Homeland Sec., 15-cv-1983 (D.D.C.
Nov. 10, 2015). Judicial Watch alleges that the agency failed,
time and again, to make prompt disclosure. When Judicial
5
Watch filed this suit, the nineteen sequential requests at issue
here had been pending for anywhere from seven to fifteen
months without a single determination—let alone
production—on any of the requested travel-expense
information. Id. at Ex. A. Judicial Watch’s complaint also
references five preceding lawsuits, involving an earlier
sequence of ten requests, seeking the very same kind of
information as the nineteen requests at issue here. Id. ¶ 7. Each
of those requests had likewise been pending for several months
before Judicial Watch filed each related lawsuit. See id.
With allegations of 29 similar requests across six lawsuits
met by unexplained months of waiting for the Secret Service to
produce responsive records, the complaint makes out a
consistent practice of delay in violation of FOIA. Even though
the 20-day deadline had elapsed many times over, the Secret
Service admits that it had not made the requisite
“determinations.” See 5 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 it give plaintiff written notice of any
“unusual circumstances” that might have entitled it to an
additional ten working days to make its determinations. See 5
U.S.C. § 552(a)(6)(B)(i). The statute obligates the agency to
reach out to requesters if it will not meet the initial 20-day
deadline in order to negotiate potential efficiencies, such as by
agreeing to an alternative timeframe for processing or by
narrowing a request “so that it may be processed within [the
20-day] time limit,” see id. § 552(a)(6)(B)(i), (ii), (iii), but there
is no indication that the Secret Service made any such overtures
to Judicial Watch, see Compl. ¶ 14; Answer ¶ 14. For most of
the nineteen requests at issue in this suit, the Secret Service
simply assigned a tracking number and provided no further
communication to Judicial Watch, see Compl. ¶ 11; for some
of the requests, the agency failed to do even that much, id. ¶
10. The Secret Service made no production of the records
6
before it faced litigation—and even when each earlier lawsuit
eventually dislodged some requested records, the cycle began
again with ensuing requests. None of the eventual production
was within a timeframe that our cases accept as “prompt” in the
absence of any justification from the Secret Service. See 5
U.S.C. § 552(a)(3)(A); CREW, 711 F.3d at 189. The
allegations, considered together with reasonable inferences
therefrom drawn in Judicial Watch’s favor, make out a
persistent Secret Service practice of violating FOIA’s
requirements for making nonexempt government records
promptly available to the public.
At the pleading stage, we lack critical context about the
alleged delays and so cannot simply assume and
unquestioningly accept that they are justified. To be sure, what
counts as prompt production varies “depending on the
circumstances.” CREW, 711 F.3d at 188. But if we were to
hold that the circumstances alleged here, without more,
satisfied the Secret Service’s statutory duties under FOIA, the
roles Congress assigned the courts as the primary enforcer of
FOIA and agencies as the proactive stewards of FOIA’s
implementation would be substantially undermined.
Consider the character of the requests themselves. The
requested records are generally in the form of receipts—
evidencing, for example, expenditures for flights, rental cars,
and hotels—subject to only routine redactions under FOIA’s
exemptions. See, e.g., U.S. Secret Service, Response to FOIA
Request Number 20131414 (June 12, 2014),
http://www.judicialwatch.org/wp-content/uploads/2014/
10/2323_Responses.pdf.1 It is a familiar fact of life to the
1
These records were produced in response to one of Judicial Watch’s
travel-related FOIA requests, see Compl. ¶¶ 21-24, Judicial Watch v. U.S.
Secret Service, 14-cv-0046 (D.D.C. Jan. 13, 2014), that was the subject of
an earlier Judicial Watch suit; the current complaint refers to that request
7
hundreds of millions of people in the United States who travel
each year for their work that employers collect and process
travel expense information regularly; any adequately
functioning organization should be able to produce travel
expense information with dispatch. There is no suggestion that
the requests at issue in this case involve any subtle relevance
questions about where or how to search, or cumbersome inter-
agency collaboration to identify what information is kept, and
where it might be found. Cf. McGehee, 697 F.2d at 1098-99.
The Secret Service presumably already keeps and
electronically tracks government-paid travel expense
information for any number of internal reasons. And, by now,
Judicial Watch’s repeated requests themselves may provide an
additional reason for it to do so: FOIA obligates agencies to
take initiative—even in the absence of a further request—to
facilitate public access to commonly sought information, such
as by publishing it in advance, see 5 U.S.C. § 552(a)(2)(D), and
fast-tracking simple requests, id. § 552(a)(6)(D); see also U.S.
Dep’t of Homeland Sec., 2018 Chief FOIA Officer Report to
the Attorney General of 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 to Increase
Proactive Disclosures,” and asserting that the Secret Service
has begun posting at least some travel expense information in
advance of requests). For all one can glean from the pleadings,
Judicial Watch’s requests are wholly mundane.
The dissent, however, assumes the requests are
“complex,” Diss. Op. 11, and finds their processing time
reasonable in light of the average “complex” request
processing times listed in a Secret Service FOIA report. See
and lawsuit, among others, in alleging the persistent practice of slow
responses. See Compl. ¶ 7.
8
id. (citing U.S. Dep’t of Homeland Sec., 2015 FOIA Report to
the Attorney General of the United States 5, Table V.A. (Feb.
2016), https://go.usa.gov/xXQVvf). That FOIA report,
however, was not incorporated in any pleading. It was not even
mentioned in briefing. At the pleading stage, as the district
court correctly recognized, Judicial Watch v. Dep’t of
Homeland Sec., 211 F. Supp. 3d 143, 145 n.1 (D.D.C. 2016),
we confine our review to the allegations, see Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir.
2015). In any event, the FOIA report says nothing about how
these requests compare with those the Secret Service itself
denominated as “complex,” in terms of the difficulty and time
needed to process them. We are here required to make the
reasonable inference in Judicial Watch’s favor that its VIP-
travel expense requests are wholly straightforward; it is open
to the agency on remand to seek to show otherwise.
In sum, Judicial Watch has plausibly alleged a persistent
practice of delay that violates FOIA’s mandate to make
responsive records “promptly available.” See 5 U.S.C.
§ 552(a)(3)(A). At the pleading stage, no more is required to
support the district court’s jurisdiction to consider, in view of
the agency’s potential justifications, any need for equitable
relief.
Our dissenting colleague sees no allegations of delay that
could violate FOIA. See Diss. Op. 12. His main point is that
agencies cannot be expected to respond post haste to every one
of the thousands of FOIA requests that agencies today receive.
But to assume at the pleading stage that an agency faces hurdles
and can offer rationales that were never pleaded or proved
contravenes both Federal Rule of Civil Procedure 12(c) and
FOIA itself. We are well aware that FOIA processing is no
picnic: It can be painstaking and sometimes highly technical
for requestors, agencies, and courts alike. But FOIA
9
nonetheless requires each federal agency to swiftly disclose all
nonexempt information, even as it must accurately sort and
withhold information that falls within the statute’s exemptions.
Needless to say, busy agencies, ever pressed to do more with
limited resources, lack incentives to get that done. That is
precisely why Congress enacted FOIA’s timeframes and
authorized district courts to enjoin agencies from improperly
delaying public access to non-exempt records.
The statute places the burden on the agency, not the FOIA
requester, to justify delays in processing. Once an agency has
been sued in district court for improperly withholding records,
“the burden is on the agency to sustain its action.” 5 U.S.C.
§ 552(a)(4)(B). But see Judicial Watch, 211 F. Supp. 3d at 147;
Diss. Op. 13. FOIA requires an agency that has not made
prompt production to explain its delinquency: It allows
additional processing time only “[i]f the Government can show
exceptional circumstances exist and that the agency is
exercising due diligence in responding to the request.” See 5
U.S.C. § 552(a)(6)(C)(i). The statute spells out that
“exceptional circumstances” do “not include a delay that
results from a predictable agency workload of requests” unless
the agency affirmatively shows that it is making “reasonable
progress in reducing its backlog of pending requests.” Id.
§ 552(a)(6)(C)(ii). It is emphatically not permissible under
FOIA for a court simply to assume that an agency’s
circumstances are “exceptional.” There is no ground on this
record for relieving the Secret Service of its burden of
justification and simply presuming the Secret Service is
systemically entitled to the “additional time” referred to in
Section 552(a)(6)(C)(ii).
A few additional points: The dissent contends that, by
requiring agencies to issue reports on the number of delayed
requests and to provide tracking numbers to requesters, FOIA
10
expressly tolerates across-the-board, prolonged waits for
production of nonexempt information. See Diss. Op. 3, 9. But
nothing about FOIA’s reporting and tracking mechanisms
suggests they excuse violations of the statute’s “determination”
deadline or its expectation that, once a determination is made,
a requester will be “immediately” informed and responsive
records will be produced “promptly.” FOIA excuses slow
processing of nonexempt information only when the agency
has carried its burden to justify withholding records, 5 U.S.C.
§ 552(a)(4)(B), and to explain how its delays are warranted by
“exceptional” circumstances, id. § 552(a)(6)(B), (C)(i). In
short, the statute does not condone agency personnel sitting
behind accumulating mounds of FOIA requests and requiring
each requester to “take a number” and wait many months or
years for the agency to comply. It is innovation-forcing,
requiring agencies to consider “adjustments to . . . practices,
policies, personnel, and funding as may be necessary to
improve its implementation of” the statute, including “the
timely processing of requests for information.” See id.
§ 552(j)(2)(C), (3)(D); see also 2018 DHS Chief FOIA Officer
Report, at 26-27 (discussing “Steps Taken to Greater Utilize
Technology”).
Recognizing that Judicial Watch has stated a policy or
practice claim here imposes no new or untenable burdens on
agencies. Our circuit has recognized the “policy or practice”
doctrine for thirty years. See Newport Aeronautical Sales, 684
F.3d at 164 (recognizing that, “even though a party may have
obtained relief as to a specific request under the FOIA, this will
not moot a claim that an agency policy or practice will impair
the party’s lawful access to information in the future”)
(emphasis in original) (citing Payne, 837 F.2d at 489). District
courts, moreover, have many tools at their disposal to focus and
streamline inquiry into whether the agency’s production times
are justified. See generally Fed. R. Civ. P. 26(b)(2)(c);
11
McGehee, 697 F.2d at 1112-13 (discussing reliance on agency
affidavits at the summary judgment stage in FOIA exemption
dispute).
In considering the propriety of injunctive or declaratory
relief, the district courts should be mindful of their “duty to
prevent . . . abuses” of FOIA. Payne, 837 F.2d at 494. They
should assess whether an agency is acting with due diligence
and making reasonable progress in reducing backlogs,
including by availing itself of tools to improve its efficiency.
***
Congress in FOIA expressed a national commitment to
open government. A democratic society requires an informed
citizenry—not only to check against corruption and to hold
government accountable, but also to dispel misconceptions and
fallacies that secrecy feeds. As widely emulated as it has been
here and abroad, FOIA is not the only—or necessarily the
best—way to make the workings of government as open as
practicable to the people in whose name its officials wield
power and resources. See generally David E. Pozen, Freedom
of Information Beyond the Freedom of Information Act, 165 U.
Pa. L. Rev. 1097 (2017). Nevertheless, as Congress enacted
and we have applied it, FOIA supports Judicial Watch’s
“policy or practice” claim. I thus join the opinion of the court
holding that the Secret Service did not defeat the district court’s
jurisdiction to consider whether equitable relief might still be
warranted even though—after repeatedly failing for months to
respond to simple requests—it provided the information in full
after the lawsuit was filed.
SRINIVASAN, Circuit Judge, dissenting: The Freedom of
Information Act serves the important aim of promoting the
timely release of requested government records. Ordinarily,
when an agency completes its review of a request and releases
responsive records during the pendency of a FOIA action, the
case becomes moot. The case is not moot, however, if the
agency has a general, ongoing policy or practice of violating
FOIA. In that event, the court can enjoin the unlawful agency
policy or practice going forward.
The complaint in this case claims that the Secret Service
has a policy or practice of unlawfully withholding the release
of requested records in violation of FOIA. The question we
face is whether the complaint’s allegations, if true, establish a
policy or practice of violating FOIA. My colleagues conclude
that the answer is yes. I respectfully disagree.
This case involves nineteen requests for records
submitted to the Secret Service by Judicial Watch. The
complaint’s salient allegations are that (i) the agency failed to
determine whether it would produce the requested records
within a twenty-day period set out in the statute, (ii) several
months had elapsed without any production of records by the
time this suit was filed, and (iii) the agency, in past cases
involving the same sorts of requests by Judicial Watch,
ultimately produced the records after the filing of a suit. Do
those allegations make out a policy or practice of FOIA
violations? In my view, they do not.
With regard to the statute’s default twenty-day period for
determining whether to produce requested records, an agency’s
failure to make that determination within twenty days is not an
actionable violation of FOIA. Nor was it necessarily a
violation of FOIA that the requests were still pending before
the agency when the suit was filed. Indeed, the statute
expressly contemplates that an agency could take several
months to process a FOIA request, and agencies regularly—
2
and lawfully—take that long to determine whether to produce
requested records. And while it may be true that the Secret
Service has previously produced records after Judicial Watch
filed suit (and did so again in this case), the mere fact that an
agency produces records following the initiation of judicial
proceedings tells us nothing about whether the non-production
of the documents before that point violated the statute. In short,
the allegations in the complaint, even if true, are consistent with
lawful conduct under FOIA.
The complaint in this case therefore fails to allege a policy
or practice of violating FOIA. By deciding otherwise and
allowing this action to go forward, the court today enables
FOIA suits to proceed past the pleadings in a broad range of
situations in which an agency’s practices are fully in keeping
with the statute’s requirements. Agencies often (and lawfully)
take significantly longer than twenty days to process a FOIA
request. But an agency that does so, under the court’s rationale
today, would routinely be subject to an ostensibly viable claim
that it has a policy or practice of violating the statute. The
statute, in my respectful view, does not countenance that result.
I.
A.
To understand why the complaint in this case fails to allege
a policy or practice of violating FOIA, it is necessary to review
in some detail the statute’s provisions governing the processing
of a request for records. Upon a proper request for records
submitted by “any person,” FOIA generally calls for a federal
agency to make the requested records “promptly available” to
the requester unless the records fit within one of the statutory
exemptions. See 5 U.S.C. § 552(a)(3)(A). Depending on the
nature of a request, identifying and examining responsive
records, and determining whether an exemption applies, can
3
take considerable time. FOIA thus prescribes no fixed
timeframe within which an agency must produce non-exempt
records. Rather, the statute establishes a set of procedures for
agencies (and requesters) to follow in furtherance of the
general mandate to make non-exempt records promptly
available.
Whenever the agency will take longer than ten days to
process a request, the statute requires the agency to assign the
requester an “individualized tracking number.” Id.
§ 552(a)(7)(A). The tracking number enables the requester to
obtain “information about the status of [her] request” through
a “telephone line or Internet service” set up by the agency.
Id. § 552(a)(7)(B). The “status” information available to the
requester must include “an estimated date on which the agency
will complete action on the request.” Id. § 552(a)(7)(B)(ii). A
requester, then, can readily ascertain when the agency
anticipates “complet[ing] action on the request.” Id.
How long might that take? As a default matter, FOIA
provides that an agency “shall . . . determine within 20
[business] days . . . whether to comply with [a] request” for
records, and “shall immediately notify” the requester “of such
determination and the reasons therefor.” Id. § 552(a)(6)(A)(i).
That “determination” marks the culmination of an agency’s
processing of a FOIA request—i.e., the determination by the
agency whether it will produce the requested records or instead
will withhold any production of records (because, for instance,
a FOIA exemption applies or there are no responsive records).
The statute does not envision that an agency invariably
will be able to process a request within the twenty-day period.
That “timeline is not absolute.” Citizens for Responsibility &
Ethics in Wash. (CREW) v. FEC, 711 F.3d 180, 184 (D.C. Cir.
2013). It is instead only a “default.” Id. at 189. After all, “it
4
would be a practical impossibility for agencies to process all
FOIA requests completely within twenty days.” Id. (brackets
and internal quotation marks omitted).
For instance, in the event of certain “unusual
circumstances” specified in the statute, the agency can extend
the time period for processing a request by an additional ten
business days (or thirty days total). 5 U.S.C. § 552(a)(6)(B)(i).
(Unusual circumstances exist when a request: requires
accessing records in an off-site location, involves a
“voluminous amount” of records, or implicates the interests of
multiple agencies or components. Id. § 552(a)(6)(B)(iii).) The
statute, moreover, affirmatively contemplates that those
“unusual circumstances” could cause the agency to take longer
than thirty days to process a request. In that event, the agency
must give the requester the opportunity to limit the scope of her
request or work with the agency to develop an alternative time
frame for processing it. Id. § 552(a)(6)(B)(ii).
In addition, apart from the enumerated “unusual
circumstances,” the statute separately allows an agency to
show that “exceptional circumstances” (as opposed to “unusual
circumstances”) exist, and that the agency “is exercising due
diligence in responding to the request.” Id. § 552(a)(6)(C)(i).
In that event, the agency is allowed “additional time to
complete its review of the records.” Id. “Exceptional
circumstances” can “include a delay that results from a
predictable agency workload of requests” if “the agency
demonstrates reasonable progress in reducing its backlog of
pending requests.” Id. § 552(a)(6)(C)(ii). The statute thus
expressly envisions that an agency could have a backlog of
FOIA requests preventing it from processing a new request
within twenty days, and that the agency would be allowed
additional time as long as it is making reasonable progress in
reducing the backlog.
5
The “exceptional circumstances” determination is made
by a court after a requester initiates the statute’s process of
judicial review. See id. § 552(a)(6)(C). FOIA vests district
courts with jurisdiction to conduct a de novo review of an
agency’s processing of a request, and to enjoin the agency from
any “improper[] withh[olding]” of responsive records. Id.
§ 552(a)(4)(B). Ordinarily, a requester must exhaust her
remedies with the agency before bringing the matter to court.
See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). But a
requester is deemed to have constructively exhausted her
administrative remedies if an agency takes longer than the
default twenty-day period to process her request. 5 U.S.C.
§ 552(a)(6)(C); see CREW, 711 F.3d at 182, 185.
At that point, the requester, if she wishes, can proceed
directly to court rather than continue to pursue the matter
within the agency. Once in court, the agency has the burden to
justify any decision to withhold responsive documents, 5
U.S.C. § 552(a)(4)(B), or to show that, due to exceptional
circumstances (potentially including a backlog of FOIA
requests), the agency needs additional time to process a
request, id. § 552(a)(6)(C).
B.
If an agency produces the requested records while the
matter is pending in court, the aim of the requester’s claim for
the records would have been realized and her claim generally
becomes moot. See Payne Enters., Inc. v. United States, 837
F.2d 486, 490-91 (D.C. Cir. 1988). In the ordinary case, then,
an agency’s production of the requested records will occasion
a dismissal of the requester’s suit.
As our court recognized in Payne, however, an agency’s
production will not “moot a claim” if “an agency policy or
practice will impair the party’s lawful access to information in
6
the future.” Id. at 491 (emphasis omitted). A requester thus
can avoid dismissal on mootness grounds by plausibly alleging:
first, that the “agency’s refusal to supply information evidences
a policy or practice of delayed disclosure or some other failure
to abide by the terms of the FOIA,” and, second that the
agency’s policy or practice will continue to injure the requester
in the future. Id. In other words, a requester can maintain her
action, notwithstanding the agency’s production of the
requested records, if the agency follows a policy or practice of
unlawfully withholding records under FOIA and might
continue to do so absent judicial intervention. Otherwise, an
agency could have a policy of unlawfully refusing to release
responsive documents, produce the documents when (and only
when) sued in order to moot a given case, and then resume its
unlawful withholding policy thereafter.
We have recognized the viability of a requester’s policy-
or-practice claim on just two prior occasions. Both cases
involved an agency’s allegedly unlawful withholding of
documents based on an erroneous assertion of a FOIA
exemption. See id. at 487; Newport Aeronautical Sales v.
Dep’t of Air Force, 684 F.3d 160, 163-64 (D.C. Cir. 2012). In
each case, we allowed the requester to proceed on a policy-or-
practice claim notwithstanding the agency’s production of the
requested documents. We did so because of the risk that the
agencies would continue to withhold responsive records in the
future in reliance on an inapplicable statutory exemption.
II.
Unlike the requesters in Payne and Newport, Judicial
Watch does not contend that the Secret Service has a policy or
practice of withholding requested records based on the
agency’s erroneous invocation of a FOIA exemption. Rather,
Judicial Watch alleges that the Secret Service “has a policy and
7
practice of . . . regularly failing or refusing to produce requested
records or otherwise demonstrate that requested records are
exempt from production within the time period required by
FOIA or at least within a reasonable period of time.” Compl.
¶ 22. Judicial Watch’s claim of an unlawful agency practice
thus pertains solely to the time taken by the agency to process
its records requests: there is no allegation that the agency is
acting unlawfully in any other way, such as by refusing to
produce records in invalid reliance on an inapplicable
exemption.
In its complaint, Judicial Watch alleges the following facts
in support of its claim that the Secret Service has a policy or
practice of violating FOIA. Between July 2014 and August
2015, Judicial Watch submitted the nineteen FOIA requests at
issue in this case. The statute’s default twenty-day period
elapsed without any determination by the Secret Service
whether it would comply with the requests. By the time
Judicial Watch filed suit (in November 2015), the agency had
yet to complete its processing of the requests. And, on five
previous occasions in which the Secret Service had failed to
make a determination on Judicial Watch’s request within
twenty days, the agency produced the requested records after
Judicial Watch filed suit. Compl. ¶¶ 7-9, 13-14.
Those factual allegations, in my view, do not state a claim
that the Secret Service has a policy or practice of violating
FOIA. The complaint advances two potential theories of how
the Secret Service has engaged in a policy or practice of
violating FOIA: first, the agency repeatedly failed to make
determinations on Judicial Watch’s requests “within the time
period required by FOIA,” Compl. ¶ 22—i.e., the default
twenty-day period, § 552(a)(6)(A); and second, the agency
failed to produce responsive documents over a sixteen-month
8
period between the submission of the first request and the filing
of the suit. Neither of those theories states a claim for relief.
A.
Judicial Watch first argues that the Secret Service
repeatedly failed to make determinations on its requests within
twenty days, as with the nineteen requests at issue in this case
and the five previous cases identified in the complaint. But the
lapse of the default twenty-day period is not itself an actionable
violation of FOIA. A repeated lapse of the twenty-day period,
then, cannot form the predicate of a viable policy-or-practice
claim.
The failure to process a FOIA request within twenty days,
while not itself an actionable FOIA violation, does have a
consequence under the statute. In that event, the requester can
bypass the normal requirement to seek administrative review
of an adverse determination on her request and instead proceed
directly to district court. See 5 U.S.C. § 552(a)(6)(A)(i)-(ii),
(C)(i); see CREW, 711 F.3d at 185, 189-90. The court then
would conduct a de novo review of the agency’s processing of
the request. See 5 U.S.C. § 552(a)(4)(B).
The court would not, though, grant judgment in the
requester’s favor merely because the default twenty-day period
had elapsed without a determination by the agency. Rather, the
statute presupposes that the court could recognize that the
agency should be given additional time to process the request.
That would be warranted if, as we have seen, the agency shows
it “is exercising due diligence in responding to the request” and
is making “reasonable progress in reducing [a] backlog of
pending requests.” Id. § 552(a)(6)(C)(i),(ii). Given that the
agency can lawfully take additional time to process a request,
the mere lapse of the twenty-day period does not establish that
the agency has violated FOIA.
9
Other provisions in the statute reinforce that a lapse of the
twenty-day period cannot itself amount to a FOIA violation.
The requirement to provide a tracking number for any request
“that will take longer than ten days to process,” id.
§ 552(a)(7)(A), presupposes that an agency might often require
more than twenty days to complete its review. Otherwise, a
tracking number would have relevance only for a request that
the agency anticipates will take more than ten days but less than
twenty days, an implausible reading of the statute.
Indeed, FOIA expressly contemplates that an agency could
take hundreds of days to process requests. The statute calls for
each agency to submit an annual report to the Attorney General
setting out, among other things, the number of requests to
which the agency made a determination within specified ranges
of business days. Each agency must, for example, identify the
number of requests for which it made a “determination within
a period up to and including 20 days, and in 20-day increments
up to and including 200 days.” Id. § 552(e)(1)(G)(i). The
agency must also specify the number of requests it processed
within a period of 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 an agency might, with some regularity, take several
hundred days or more—not just twenty days—to process a
request.
Judicial Watch then errs in supposing that a lapse of the
default twenty-day timeframe for processing a request
constitutes an actionable violation of FOIA. It follows that the
complaint cannot state a viable policy-or-practice claim based
on the Secret Service’s failure to make a determination within
the twenty-day period for the requests at issue.
10
B.
Judicial Watch’s complaint also states that the Secret
Service has a policy or practice of failing to produce requested
records “within a reasonable period of time.” Compl. ¶ 22.
That contention perhaps could be construed to allege that, even
if the lapse of the twenty-day period does not itself establish a
FOIA violation, the Secret Service’s failure to make
determinations within a “reasonable” time (beyond twenty
days) infringed FOIA’s overarching mandate to make records
“promptly available.” Id. § 552(a)(3)(A). That, however, is a
legal conclusion, which we do not accept as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The legal conclusion instead
must rest on plausible factual allegations that, if true, would
establish the unlawfulness of the agency’s action. Id.
Judicial Watch alleges no such facts here. Judicial Watch
contends that, by the time it filed suit in November 2015, the
Secret Service had yet to produce records responsive to
nineteen requests submitted between July 2014 and August
2015. See Compl. ¶¶ 8, 14. The requests had been pending for
between 54 and 329 business days. Id. Ex. A. The complaint
contains no allegations suggesting why those time periods
might be considered unreasonably—much less unlawfully—
long. Rather, even assuming Judicial Watch’s allegations are
true, the Secret Service might well have been working through
the nineteen requests in a reasonable and lawful manner.
Indeed, the statute, as explained, expressly envisions that
agencies may take hundreds of days or more to process
requests. See 5 U.S.C. § 552(e)(1)(G)(i)-(iv).
Consider in that regard how the response times for the
requests in this case stack up when compared with the Secret
Service’s general processing of FOIA requests in 2015, the
year the complaint was filed. The Secret Service processed
11
roughly 1200 requests that year. U.S. Dep’t of Homeland
Security, 2015 Freedom of Information Act Report to the
Attorney General of 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%) of the requests
processed in 2015 were categorized as “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 of every four of the
requests exceeding 300 business days. Id. at 12-13, tbls. VII.B,
VII.C(2).
Considered in that context, the time for which the nineteen
requests in this case had been pending when Judicial Watch
filed its suit (54 to 329 business days) is in step with the Secret
Service’s general handling of FOIA requests. Nor is the Secret
Service some sort of conspicuous outlier among DHS
components in its processing times. See id. at 12 tbl. VII.B.
(Contrary to my colleagues’ suggestion, Maj. Op. 22; Conc’g
Op. 7-8, I do not necessarily assume that the requests in this
case would be categorized as “complex,” although almost all
requests processed by the Secret Service were so classified.
Rather, in identifying a suitable comparison point to help
highlight that processing times of 54 to 329 days do not alone
demonstrate a FOIA violation, it is appropriate to reference the
average processing time for the largest group of requests for
which there is available data, a group that makes up some 90%
of all requests.)
Insofar as a FOIA requester can make out a viable policy-
or-practice claim based solely on an agency’s response times,
then, Judicial Watch needed to allege something more than
that: it submitted multiple FOIA requests, it filed suit when
permitted by the statute, and its requests had been pending for
some 54 to 329 business days at that time. Those allegations
12
are consistent with lawful conduct by the agency. They thus
do not show a policy or practice of violating FOIA.
C.
My colleagues in the majority nonetheless conclude that
Judicial Watch’s complaint states a valid policy-or-practice
claim. They reason that the complaint “alleg[es] prolonged,
unexplained delays in producing non-exempt records that
could signal the agency has a policy or practice of ignoring
FOIA’s requirements.” Maj. Op. 15.
Which of “FOIA’s requirements” is the Secret Service
plausibly alleged to have ignored? The only “requirement” on
which the complaint relies is the default twenty-day period for
processing a request. For the reasons already set out, however,
the lapse of that period does not amount to an actionable
violation of FOIA. If a breach of the twenty-day period were
itself an actionable violation of FOIA, then a requester could
immediately file suit after the twenty-day period passes—on
day twenty one, for instance—and qualify right away for the
entry of judgment in her favor and an award of attorneys’ fees
as a substantially-prevailing party. See 5 U.S.C.
§ 552(a)(4)(E). That cannot be correct.
As for my colleagues’ assertion that Judicial Watch
experienced “prolonged” delays in obtaining responsive
records, Maj. Op. 15, there is no explanation of why the
response periods alleged in the complaint might cross the line
from permissible to unlawfully “prolonged.” The lapse of the
default twenty-day period, as we have seen, does not itself
establish that the agency’s response was unlawfully prolonged.
If so, then at what point (beyond twenty days) did the agency’s
response times for the requests in this case become unlawfully
prolonged? My colleagues do not say. And it is unclear how
a district court is to make that determination.
13
For instance, are the response times “prolonged” because,
for three of the nineteen requests in the case, more than 300
business days had elapsed as of the complaint without a
determination by the agency? See Compl. Ex. A. The Secret
Service was doing no worse on that metric with regard to the
nineteen requests at issue than it did for all requests it processed
in 2015. See DHS 2015 FOIA Report 13, tbl. VII.C(2) (253 of
the roughly 1200 total responses took more than 300 business
days to process). And if an agency violates FOIA whenever it
takes more than 300 business days to respond to a request,
Customs and Border Patrol would have violated the statute on
that basis alone more than 20,000 times in 2015. See id.
In an effort to bolster the idea that the Secret Service’s
response times in this case at some point became unduly
prolonged, my concurring colleague would infer that the
requests at issue are “wholly straightforward.” Conc’g Op. 8.
The complaint, though, alleges (or says) nothing about the
comparative complexity of Judicial Watch’s requests. At any
rate, regardless of whether the Secret Service ultimately
prevails in its competing assertion that Judicial Watch’s
requests are “labor intensive,” Campbell Decl. at ¶ 11 (D.D.C.
Mar. 18, 2016), ECF No. 16-1, neither the concurring opinion
nor the court’s opinion identifies when (beyond twenty days)
response times become sufficiently “prolonged” such that the
time periods alleged in a complaint alone are enough to make
out a policy-or-practice claim.
In addition to asserting that the Secret Service’s response
times were unduly “prolonged,” my colleagues also say that the
response times were “unexplained.” Maj. Op. 15. In that
regard, my colleagues presumably rely on Judicial Watch’s
indication that, for a number of the requests in the case, the
Secret Service made no communication to Judicial Watch
beyond giving a tracking number. See Compl. ¶ 11 & Ex. A.
14
But the purpose of requiring an agency to give an
“individualized tracking number” for requests that will take
more than ten days to process is to arm the requester with an
efficient means of obtaining “information about the status of
[her] request,” including an estimated date on which the agency
will finish processing the request. 5 U.S.C. § 552(a)(7)(B).
That is an important form of communication by the agency to
the requester, and there is no indication that it was unavailable
to Judicial Watch (or any allegation that it was somehow
deficient).
If a particular request implicates one of FOIA’s three
enumerated “unusual circumstances” and the agency will take
more than thirty business days to process it, the statute calls for
the agency to give the requester an opportunity either to limit
the request’s scope or to arrange for an alternative timeframe
for processing it. Id. § 552(a)(6)(B)(ii); see Conc’g Op. 5. But
the requirement to engage in that dialogue arises only if one of
the enumerated “unusual circumstances” exists. And there is
no suggestion by Judicial Watch—much less any allegation in
the complaint—that any of those circumstances might exist in
this case (or, for that matter, that the agency fell short in any
resulting obligation to initiate the contemplated dialogue).
My colleagues, finally, assume that the Secret Service has
a practice of responding to Judicial Watch’s requests only
“after it has filed a lawsuit.” Maj. Op. 14. “[O]nly at that
point,” my colleagues submit, “has the Secret Service
conducted a search to determine whether records can be made
available or are exempt from disclosure, or engaged in
consultations with Judicial Watch.” Id.
I assume it would violate FOIA for an agency to adhere to
a practice of refusing to process a request unless the requester
brings a lawsuit. I do not read the complaint to allege that the
15
Secret Service has any such policy, however. To be sure, the
complaint references five prior cases in which the Secret
Service produced records after Judicial Watch filed suit, and
the agency in this case produced records responsive to the
nineteen requests after Judicial Watch brought this action. See
Compl. ¶¶ 7, 9, 14. But the fact that the agency eventually
produced records after a lawsuit of course hardly means that it
produced the records only because of the lawsuit, much less
that it did no work at all to process the request until the suit was
filed. See Iqbal, 556 U.S. at 680-82.
Indeed, assuming (as we must) that the Secret Service gave
Judicial Watch a tracking number upon receiving the requests,
see Compl. ¶ 10, the agency also would have “provide[d]
information about the status of [the] request[s]” including an
“estimated date” by which it would “complete action” on them,
5 U.S.C. § 552(a)(7)(B). That means the agency necessarily
would have to work on the requests regardless of any (as yet
unfiled) suit. The complaint itself thus negates any notion that
the agency did no work on the requests until Judicial Watch
filed suit.
The complaint therefore does not allege—and at least does
not plausibly allege—that it is the Secret Service’s policy to
withhold processing or production of documents unless the
requester sues: to say that documents were produced after a
suit is not to say that there would have been no processing or
production absent the suit. Cf. Bell Atl. Corp. v. Twombly, 550
U.S. 554, 556-57 (2007) (while parallel conduct may be
consistent with an illicit agreement, allegations about parallel
conduct do not substantiate otherwise conclusory allegation of
illicit agreement). Judicial Watch in fact conceded in the
district court that the time taken by the agency to process the
requests could have been due to a “host of causes,” including
16
agency backlog. Pl.’s Opp’n to Mot. J. on Pldgs. 6-7 (D.D.C.
Mar. 12, 2016), ECF No. 14.
My colleagues reason that, regardless of whether the
Service Service’s response times are caused by agency
recalcitrance or justifiable backlog, the delay has the effect of
making it a “practical requirement” for Judicial Watch to sue
in order to obtain records. Maj. Op. 15. But the Secret
Service’s conduct, even assuming the truth of the allegations in
the complaint, has not required Judicial Watch to sue.
Rather, the statute affords requesters a choice: if twenty
days comes and goes without a determination, the requester
may check the tracking information and decide to wait until the
estimated completion date arrives, or she may choose to
involve a court in an effort to set a different timeline for
production. That is how the statute is designed to work. And
nothing in the complaint suggests that the process did not work
that way here. The remedial process, along with the other
provisions of the statute, aim to advance FOIA’s ultimate
mandate of prompt production of non-exempt records. An
agency does not violate that mandate when the statutorily-
prescribed process works as it was supposed to.
* * * * *
The evident result of the court’s holding today is that any
requester who alleges that she made more than one request for
records, that she received no determination within twenty days,
and that she obtained no records before suing, can state a policy
or practice claim based on agency delay. That would be so
even though the agency may be well on its way to production,
and even though there is no plausible allegation of agency
recalcitrance. In any such instance, disclosure of the requested
records in accordance with a court-ordered schedule would not
moot the case. Rather, a district court would be charged with
17
examining how “an agency has organized its records
management systems” and “monitor[ing] when necessary an
agency’s progress in adjusting its records management
systems.” Maj. Op. 22. That holding implicates not only the
Secret Service’s handling of the requests in this case, but also
the processes of numerous governmental agencies who
routinely take longer than twenty days to process requests
given the practical impossibility of invariably meeting that
timeframe. See CREW, 711 F.3d at 189.
In my view, neither the terms, structure, nor purpose of
FOIA demands that result. I of course do not take lightly
FOIA’s highly important mandate that agencies promptly
disclose non-exempt records. Nor do I discount the possibility
that various agencies are not processing FOIA requests as
quickly as they might. The annual reports required by
Congress presumably would shed light on poorly performing
agencies. FOIA also provides for an investigatory proceeding
by the Office of Special Counsel whenever a court issues
written findings that “circumstances surrounding [an agency’s]
withholding raise questions whether agency personnel acted
arbitrarily or capriciously.” 5 U.S.C. § 552(a)(4)(F)(i). And if
an agency has a practice of unlawfully withholding the
disclosure of responsive records—say, by persistently invoking
an inapplicable exemption—it will be subject to an injunction
barring the practice. See Payne, 837 F.2d at 490-92.
In this case, however, the Secret Service’s actions, as
alleged in the complaint, do not reflect a policy or practice of
violating FOIA. Rather, the allegations are consistent with
lawful conduct on the agency’s part. As a result, the case
became moot when the agency finished processing the requests
and disclosed responsive documents pursuant to the schedule
ordered by the district court. I thus respectfully dissent from
my colleagues’ disposition of this appeal.