ASPCA v. APHIS & Dep't of Agric.

21-1489
ASPCA v. APHIS & Dep’t of Agric.
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 21-1489
AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS,
Plaintiff-Appellant,
v.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE,
UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: JUNE 2, 2022
DECIDED: FEBRUARY 16, 2023
Before: LEVAL, PARKER, and MENASHI, Circuit Judges.
The American Society for the Prevention of Cruelty to Animals
(“ASPCA”) appeals the judgment of the district court dismissing its
“policy or practice” claim brought under the Freedom of Information
Act (“FOIA”) against the Department of Agriculture and its
component agency the Animal and Plant Health Inspection Service.
The ASPCA alleged that the agencies adopted a policy or practice of
violating the FOIA when, on February 3, 2017, the agencies
decommissioned two online databases of frequently requested
documents. The ASPCA argued that the policy or practice violates the
FOIA because the decommissioning exacerbated delays in processing
FOIA requests and caused some requests to be improperly withheld
through excessive redaction.
While the ASPCA’s action was pending before the district
court, Congress enacted a new statute that required the agencies to
recommission the databases, and the agencies complied. The district
court held that the ASPCA’s policy or practice claim was resolved
when the agencies recommissioned the databases as required by law.
We agree and hold that under these circumstances the ASPCA cannot
state a policy or practice claim. The judgment of the district court is
affirmed.
Judge Menashi concurs in a separate opinion.
KATHLEEN R. HARTNETT, Cooley LLP, San Francisco, CA
(Patrick Hayden, Cooley LLP, New York, NY, and Erin
Estevez, Holland & Knight, Tysons, VA, on the brief), for
Plaintiff-Appellant.
NATASHA W. TELEANU, Assistant United States Attorney
(Benjamin H. Torrance, Assistant United States Attorney,
on the brief), for Damian Williams, United States Attorney
for the Southern District of New York, New York, NY.
2
PER CURIAM:
Plaintiff-Appellant the American Society for the Prevention of
Cruelty to Animals (“ASPCA”) appeals the judgment of the district
court granting judgment on the pleadings to Defendants-Appellees
the U.S. Department of Agriculture and the Animal and Plant Health
Inspection Service (“APHIS”), a component agency of the
Department (together, “the agencies”). The ASPCA brought twenty-
six claims under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, challenging the withholding and redaction of requested
records. According to the ASPCA, the records revealed information
about the agencies’ maintenance of animal welfare standards,
including the licensing and regulation of animal dealers and
exhibitors. The district court adjudicated each of the withholdings.
The ASPCA’s last challenge—and the only one at issue in this
appeal—was a “policy or practice” claim against the agencies. The
ASPCA alleged that the agencies adopted a policy or practice that
systematically violated the FOIA in a manner requiring equitable
relief from the district court. The district court concluded that the
ASPCA failed to state a policy or practice claim. We affirm.
BACKGROUND
On April 8, 2019, 1 the ASPCA sued the agencies under the
FOIA alleging that the agencies followed a “policy or practice” of
1The ASPCA filed an amended complaint on May 31, 2019. J. App’x 11-83.
We rely on the ASPCA’s allegations in the amended complaint.
3
violating the FOIA. 2 Specifically, the ASPCA alleged that the
agencies
have regularly and repeatedly failed or refused to abide
by the FOIA’s requirement that agencies shall determine
within 20 business days 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.
Furthermore, [the agencies] have regularly and
repeatedly failed or refused to respond to [the ASPCA’s]
appeals within the time period required by the FOIA and
have regularly and repeatedly failed or refused to release
requested records promptly, within a reasonable period
of time, or at all.
J. App’x 80-81; see also 5 U.S.C. § 552(a)(6)(A)(i). In addition, the
ASPCA alleged that the agencies had “released only substantially
redacted records, citing FOIA [e]xemptions that do not apply.”
J. App’x 81. The ASPCA’s “policy or practice” claim encompassed the
“erroneous redactions” as well as the “unreasonable, inexcusable and
unexplained delays,” both of which “blocked the ASPCA’s access to
vital information contained in the requested records.” J. App’x 81.
According to the ASPCA, these actions showed that the agencies
“adopted, endorsed, or implemented a policy or practice that
constitutes an ongoing failure to abide by the FOIA’s requirements in
2 The ASPCA’s suit followed exhaustion of its administrative appeals. See
5 U.S.C. § 552(a)(6)(C)(i).
4
connection with the processing of [the ASPCA’s] FOIA requests and
appeals.” J. App’x 80.
The allegations focused on the agencies’ decommissioning of
two public databases that included frequently requested documents.
The ASPCA had relied on the databases to access information. These
databases—the “Animal Care Information Search” and the
“Enforcement Action” databases—“provided access to agency
records detailing inspections of [Animal Welfare Act (‘AWA’)]-
licensed facilities, including commercial breeding facilities, and
enforcement actions taken by [the agencies] against these licensees for
AWA violations.” J. App’x 17-18. 3 The “ASPCA regularly reviewed
inspection records and enforcement actions” by consulting the
databases, so the decommissioning of the databases hindered its
ability to obtain that information. J. App’x 18. The agencies
decommissioned the databases on February 3, 2017, and, as a result,
the ASPCA needed to request the records through the FOIA process.
The ASPCA alleged that, “[a]s a predictable consequence” of
the decommissioning of the databases, the agencies’ “FOIA requests
increased significantly,” leading to “a systemic breakdown” and a
significant backlog of requests. J. App’x 21. Thus, the ASPCA alleged,
the agencies’ “policy or practice” was a “self-inflicted” harm pursued
in “bad faith” and executed “when [the agencies] abruptly blocked
3 Access to these records, according to the ASPCA, provides information
about “commercial dog and cat breeders” subject to AWA regulations and
serves “not only to warn the public about cruel puppy mill operations, but
also to monitor [the agencies’] administration of the AWA, identify needed
policy changes and provide guidance to lawmakers.” J. App’x 18.
5
access to the[] databases and failed to take adequate measures to
respond to the individual FOIA requests.” J. App’x 21.
The ASPCA further alleged that “it is substantially likely that
[the agencies] will similarly improperly withhold inspection
photographs, enforcement records, and inspection reports in
response to future FOIA requests.” J. App’x 52. To remedy the alleged
policy or practice violation, the ASPCA requested declaratory and
injunctive relief, including the “[i]ssu[ance of] a permanent injunction
directing [the agencies] to release to [the ASPCA] all wrongfully
withheld records,” a “[d]eclar[ation] that [the agencies’] policy or
practice of failing to abide by the FOIA’s procedural requirements is
unlawful,” and an injunction barring the agencies “from maintaining
or continuing their policy or practice of violating the FOIA’s
procedural requirements.” J. App’x 82.
The agencies denied having any policy or practice that violated
the FOIA and argued that, in any event, an intervening act of
Congress resolved the ASPCA’s policy or practice claim. The Further
Consolidated Appropriations Act of 2020 became law on December
20, 2019 and required the agencies to recommission the databases.
7 U.S.C. § 2146a, Pub. L. No. 116-94, § 788, 133 Stat. 2534, 2657 (2019).
The Act directed the agencies to, “within 60 calendar days, restore on
its website the searchable database and its contents that were
available on January 30, 2017, and all content generated since that
date; and … hereafter, make publicly available via searchable
database, in their entirety without redactions except signatures,”
records including “all final Animal Welfare Act inspection reports”
and “enforcement records.” 7 U.S.C. § 2146a(a), (b)(1)-(2). In
compliance with the Act, the agencies “removed certain redactions
from inspection reports and animal inventories already posted in its
6
Public Search Tool and reposted all inspection reports and inventories
dating back to January 2014” on February 18, 2020. J. App’x 231. Less
than a month later, the agencies began posting final enforcement
records as well. J. App’x 231. As a result, “many of the records
requested” through the FOIA were “proactive[ly] post[ed]” and made
“available online.” J. App’x 231.
On April 20, 2020, the agencies moved for judgment on the
pleadings or, in the alternative, summary judgment. The agencies
argued that the ASPCA failed to state a policy or practice claim
because the databases had been recommissioned. The agencies also
reiterated the denial that the APHIS “ha[d] a pattern or practice,
either formal or informal, of refusing to timely respond to FOIA
requests or otherwise refusing to comply with the FOIA until a
requester files a lawsuit.” J. App’x 222. The agencies submitted a
declaration that the APHIS “makes every effort to respond … to FOIA
requests and appeals within the 20-day statutory timeframe,” “seeks
to fully comply with the FOIA,” and “does not purposely or
intentionally seek to violate the FOIA for any reason.” J. App’x 222
(Declaration of APHIS FOIA and Privacy Act Director Tonya Woods).
The agencies acknowledged the FOIA backlog 4 and described ways
in which the agencies were “engaged in improving processes” to
resolve it, including additional resources. J. App’x 227-28 (Woods
Declaration). 5 The agencies also expressed “hope” that the
4 Since fiscal year 2016, the APHIS “has had challenges in reducing its
backlog” because of “setbacks” including “increased FOIA requests and
litigation, which impact APHIS’s ability to timely close FOIA requests and
appeals.” J. App’x 222-23.
5 Woods stated that the APHIS “has requested and been granted additional
resources”—including “three consecutive contracts” funding “contract
7
recommissioning of the databases would “reduce the number of
incoming FOIA requests,” further helping to address the backlog.
J. App’x 231. The ASPCA cross-moved for summary judgment on
May 18, 2020.
The district court granted the agencies’ motion for judgment on
the pleadings. ASPCA v. APHIS, No. 19-CV-3112, 2021 WL 1163627(S.D.N.Y. Mar. 25, 2021). 6 The district court noted that the Second
Circuit has neither recognized nor “delineated any legal standards for
evaluating policy and practice claims,” and it therefore applied “the
legal framework established by the D.C. Circuit.” 2021 WL 1163627,
at *14. The district court concluded that the ASPCA’s “allegations
plausibly demonstrate that the [a]gencies made a decision … that led
to a self-inflicted breakdown in their ability to timely process FOIA
requests and promptly produce responsive records.” Id. at *15. Yet the
district court explained that the ASPCA’s allegations did “not relate
the entire story” because “Congress intervened to reverse” the
decommissioning of the databases “by enacting Section 788 of the
Further Consolidated Appropriations Act of 2020.” Id. at *16.
Because “the offending policy and practice described in the
Amended Complaint was the systemic collapse of the [a]gencies’
FOIA processes following their decision to shut down the databases
attorneys to assist with the processing of animal welfare related FOIA
requests and requests associated with FOIA litigation” “totaling
approximately $1.5 million”—and had “created a new intake team” to log
and respond to FOIA requests more efficiently. J. App’x 227-28.
6 The district court also adjudicated the other twenty-six counts of the
ASPCA’s complaint, granting in part and denying in part each of the
parties’ motions for summary judgment. As a result, the ASPCA has
received or will receive all the requested documents to which it is entitled.
8
in February 2017,” the district court concluded that “the ASPCA has
not established that the [c]ourt must intervene to correct a policy or
practice that the [a]gencies have in place that will impair the ASPCA’s
lawful access to information in the future.” Id. at *16 & n.13 (internal
quotation marks and alteration omitted). The district court rejected
the ASPCA’s argument that the Appropriations Act and the
recommissioning did not fully resolve its policy or practice claim
because it sought an additional category of documents—photographs
taken during licensee inspections—that the Act did not require to be
published in the databases. The district court said that the amended
complaint “does not plausibly support that the [a]gencies
implemented some special policy or practice of withholding
photographs from FOIA productions.” Id. at *16 n.13. For these
reasons, the district court decided that “the ASPCA does not state a
valid policy and practice claim upon which relief can be granted.” Id.
at *16.
The district court also decided, “[i]n the alternative,” that even
if it had “broken new ground in the Circuit and found that the ASPCA
successfully stated a policy and practice claim,” the district court
“would grant the [a]gencies’ motion for summary judgment on the
issue for substantially the same reasons: because Congress has
already acted to address the challenged policies and practices, the
record does not convince the [c]ourt that the equitable relief the
ASPCA seeks is warranted.” Id. at *16 n.15. The district court granted
the agencies’ motion for judgment on the pleadings and denied as
moot the parties’ cross-motions for summary judgment on the policy
or practice claim. Id. at *17. The ASPCA timely appealed. J. App’x 732.
9
STANDARD OF REVIEW
A party may move for, and a district court may grant, judgment
on the pleadings after the pleadings are closed if the motion is filed
“early enough not to delay trial.” Fed. R. Civ. P. 12(c). We review such
a judgment de novo under the same standard as the grant of a motion
to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th
293, 301 (2d Cir. 2021). That is, we evaluate a judgment on the
pleadings to see whether the complaint fails to state a claim that is
“plausible on its face.” Id. In doing so, we “draw all reasonable
inferences in the plaintiff’s favor” to assess “whether a complaint’s
factual allegations plausibly give rise to an entitlement to relief.” Id.(alteration omitted). While we “should assume th[e] veracity” of
“well-pleaded factual allegations,” we are “not bound to accept as
true a pleading’s legal conclusion.” Lynch v. City of New York, 952 F.3d
67, 75 (2d Cir. 2020) (emphasis and alteration omitted).
DISCUSSION
We agree with the district court that, even assuming that a
“policy or practice” claim is cognizable, the ASPCA failed to state
such a claim against the agencies because the Further Consolidated
Appropriations Act of 2020 reversed the alleged policy or practice.
The Act directed the agencies to “restore” each decommissioned
database “and its contents” to the status quo ante and to “make
publicly available” in the databases the AWA inspection reports and
enforcement records that the ASPCA had sought in this litigation.
7 U.S.C. § 2146a(a), (b). The Act also required that such records be
made available “in their entirety without redactions except
signatures.” 7 U.S.C. § 2146a(a), (b)(1)-(2). These requirements
10
address both aspects of the ASPCA’s policy or practice claim—the
alleged delays in responding to requests and the allegedly excessive
withholdings and redactions. J. App’x 80-81.
The ASPCA urges us to follow the logic of the D.C. Circuit’s
decision in Payne Enterprises, Inc. v. United States, which held 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.” 837 F.2d 486, 491 (D.C. Cir. 1988); Appellant’s Br. 35-36. But
even if we were to adopt that court’s reasoning, the D.C. Circuit in
Payne contended with an extraordinary set of circumstances not
present here. In that case, the requester had repeatedly sought agency
records, in the form of bid abstracts, from the U.S. Air Force. 837 F.2d
at 488-89. The agency repeatedly denied the requests without
thorough explanation, and the requester appealed through the
administrative process to the Secretary of the Air Force, who “made
it clear that the officers’ position was wholly unjustified” and ordered
the records disclosed “without exception.” Id. at 489. The officers,
however, “continued to withhold the bid abstracts,” forcing the
requester “to make repeated appeals to the Secretary to obtain the
information.” Id. at 490. The D.C. Circuit decided that while the
requester had received individual documents, the agency was
“merely … refraining from the conduct of which [the requester] has
complained while the case is pending” and was “free to return to [its]
old ways.” Id. at 491.
Following the logic of Payne would not warrant reversal in this
case. Here, the agencies are not “free to return to [their] old ways”
given the change in law that prohibits the agencies from
decommissioning the databases and from withholding or redacting
11
many of the documents the ASPCA sought. Even if the ASPCA were
correct that the allegedly improper responses to FOIA requests
resulted from an agency policy, that policy is no longer operative due
to a change in governing law. The agencies have not altered their
conduct only while litigation is pending.
The ASPCA tries to rescue its claim by pointing to (1) the
absence of certain agency records from the databases and (2) its
allegation that the agencies initially improperly redacted some of the
requested documents. First, the ASPCA notes that requested
inspection photographs remain excluded from the publicly available
documents in the two databases. Appellant’s Br. 40-41. We disagree
that absent photographs are enough to save the claim. The allegation
regarding the delayed response and processing of the photograph
requests cannot by itself sustain a policy or practice claim based on
the “systemic breakdown” of the agencies’ FOIA process resulting
from the decommissioning of the databases. J. App’x 21. As noted by
the district court, this alleged breakdown has been resolved by
congressional action. Nothing in the complaint indicates that any
future requests for photographs would not be processed in a timely
fashion now that the agencies have recommissioned the databases
and freed resources to devote to the relatively fewer FOIA requests
for non-database records. 7
Second, the ASPCA suggests that its allegation of improper
redaction can stand apart from the allegation of unlawful delay.
Appellant’s Br. 4-5, 33, 41. But the only such plausible allegation in
the complaint is a conclusory statement that the agencies have
7 The complaint notes that the initial commissioning of one of the databases
in 2009 “reduced incoming FOIA requests by 35%.” J. App’x 18.
12
“released only substantially redacted records” with “FOIA
[e]xemptions that do not apply.” J. App’x 81. The ASPCA alleged that
this practice began “on or about” the time of the decommissioning of
the databases. J. App’x 81. A claim based on this allegation cannot
survive the intervening change in law that required not only the
recommissioning of the databases but also the publication of the
records “in their entirety without redactions except signatures.”
7 U.S.C. § 2146a(b).
We thus reach the same conclusion as the district court that the
ASPCA has not stated a claim on which relief may be granted. The
ASPCA does not ask us to adjudicate its claims over particular
documents or to order the disclosure of documents improperly
withheld. It asks us to order the agencies to comply with the FOIA. 8
But “[u]nder Rule 65(d), an injunction must be more specific than a
simple command that the defendant obey the law.” S.C. Johnson &
Son, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir. 2001) (quoting
Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir. 1996)).
Moreover, in adjudicating a FOIA dispute, “[a] declaration that an
agency’s initial refusal to disclose requested information was
unlawful, after the agency made that information available, would
constitute an advisory opinion in contravention of Article III of the
Constitution.” Payne, 837 F.2d at 491. Because the ASPCA’s concrete
complaints about the databases and withholdings have been
resolved, the ASPCA cannot state a policy or practice claim to seek a
broad order mandating that an agency conform its FOIA process to a
requester’s notion of what would be reasonably expeditious—even
8 See Oral Argument Audio Recording at 29:22 (“We were seeking
compliance with FOIA.”).
13
assuming that a policy or practice claim could be stated in the first
place.
CONCLUSION
The ASPCA cannot state a policy or practice claim that the
agencies systematically violated the FOIA after an intervening
statutory enactment required the restoration of the databases that
underpinned the ASPCA’s claim. We affirm the judgment of the
district court.
14
21-1489
ASPCA v. APHIS & Dep’t of Agric.
MENASHI, Circuit Judge, concurring:
I agree with the court that, even if we were to recognize a
“policy or practice” claim as cognizable under the Freedom of
Information Act (“FOIA”), the ASPCA has not stated such a claim in
this case. I write separately to explain that a “policy or practice” claim
is not cognizable under the FOIA.
I
Once a complaint is properly filed, the FOIA provides a federal
district court with “jurisdiction to enjoin the agency from withholding
agency records and to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).
To decide whether such a remedy is appropriate, the court “may
examine the contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld under any
of the exemptions” set forth in the FOIA. Id. If the court decides that
the records have been improperly withheld, it may “order[] the
production of any agency records improperly withheld from the
complainant and assess[] against the United States reasonable
attorney fees and other litigation costs” and, if warranted, the court
may “additionally issue[] a written finding that the circumstances
surrounding the withholding raise questions whether agency
personnel acted arbitrarily or capriciously with respect to the
withholding.” Id. § 552(a)(4)(F)(i). In such a case, however, the court
may not order the agency to alter its FOIA procedures or otherwise
change its operations. Instead, the FOIA contemplates that “the
Special Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or
employee who was primarily responsible for the withholding” and
the “Special Counsel, after investigation and consideration of the
evidence submitted, shall submit his findings and recommendations
to the administrative authority of the agency concerned.” Id. It is then
the responsibility of the “administrative authority” to “take the
corrective action that the Special Counsel recommends.” Id.
This statutory scheme authorizes a federal district court to
provide the narrow remedies of enjoining an agency from improperly
withholding records and ordering it to disclose the requested records
that were improperly withheld. It does not authorize a court to
superintend the policies and practices of that agency.
Those who are “adversely affected or aggrieved by agency
action” may instead challenge a policy or practice under the
Administrative Procedure Act (“APA”). 5 U.S.C. § 702. “The APA
‘sets forth the procedures by which federal agencies are accountable
to the public and their actions subject to review by the courts.’” DHS
v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (quoting
Franklin v. Massachusetts, 505 U.S. 788, 796 (1992)). “It requires
agencies to engage in ‘reasoned decisionmaking,’” id. (quoting
Michigan v. EPA, 576 U.S. 743, 750 (2015)), “and directs that agency
actions be ‘set aside’ if they are ‘arbitrary’ or ‘capricious,’” id. (quoting
5 U.S.C. § 706(2)(A)).
In this case, the ASPCA might have pursued a challenge to the
agencies’ decommissioning of the databases under the APA. The
ASPCA decided not to do so because it would have faced “different
exhaustion requirements” and would have needed to identify “a
specific final agency action we could point to under the APA.”1 In
1 Oral Argument Audio Recording at 27:25.
2
addition to the requirements to exhaust administrative remedies and
to identify a final agency action, the ASPCA would have needed to
establish on the merits that the decision to decommission the
databases was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). By
pursuing its challenge to the decommissioning of the databases not as
an APA claim but as a “policy or practice” claim under the FOIA, the
ASPCA evaded these legal requirements. It argued that a court
should order the agencies to reverse the decision to decommission the
databases not because that decision violated the law or the
requirements of reasoned decisionmaking but because it created a
FOIA backlog. The FOIA provides no authority for a court to entertain
such a challenge to agency action without following the requirements
of the APA, and courts should not allow parties to evade APA
requirements by using the FOIA in this way. The proper avenue for
challenging the policies and practices of agencies is the APA, 5 U.S.C.
§ 706.
II
In any event, allegations based on an agency policy of “delay”
cannot state a claim on which relief can be granted. The FOIA
“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.” Judicial Watch, Inc. v. DHS, 895 F.3d 770, 791 (D.C. Cir.
2018) (Srinivasan, J., dissenting).
For example, the statute provides a “default 20-working-day
timeline,” CREW v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013), in which
the agency determines “whether to comply with [a FOIA] request” and
3
notifies “the person making such request” of that decision, 5 U.S.C.
§ 552(a)(6)(A)(i) (emphasis added). But “the statute expressly
contemplates that an agency could take several months to process a
FOIA request, and agencies regularly—and lawfully—take that long
to determine whether to produce requested records.” Judicial Watch,
895 F.3d at 791 (Srinivasan, J., dissenting). A court may not “grant
judgment in the requester’s favor merely because the default twenty-
day period had elapsed without a determination by the agency,”
considering that “the statute presupposes that the court could
recognize that the agency should be given additional time to process
the request.” Id. at 794. The agency may show that it is “exercising
due diligence in responding to the request” and making “reasonable
progress in reducing its backlog of pending requests.” 5 U.S.C.
§ 552(a)(6)(C). Such a showing would be a basis for a court to “allow
the agency additional time to complete its review of the records.” Id.Given the statutory scheme, a requester cannot establish a violation
of the FOIA merely by alleging that the agency has engaged in
“delay.”
Courts that have recognized “policy or practice” claims have
emphasized that a requester must at least allege “prolonged,
unexplained delays in producing non-exempt records.” Judicial Watch,
895 F.3d at 780 (majority opinion) (emphasis added). The unexplained
character of the delay allows for the inference that the agency could
have “a policy or practice of ignoring FOIA’s requirements.” Id.In this case, the alleged delays were not unexplained. The
ASPCA itself alleged that the delays resulted from the agencies’
backlog of FOIA requests following the decommissioning of the
databases in 2017. [A 21] Thus, the ASPCA challenged not the “delay”
itself but the agencies’ policy of decommissioning the databases. The
4
case therefore turned on whether the agencies’ database policy was
lawful. The FOIA could not answer that question; it contains no
provision requiring the agencies to maintain those databases. The
nature of the claim here—a challenge to the lawfulness of the
decommissioning of the databases—underscores the importance of
entertaining challenges to an agency’s policy or practice through the
framework of the APA rather than under the FOIA.
5