Center for Public Integrity v. U.S. Department of Defense

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR PUBLIC INTEGRITY,
Plaintiff
v. Civil Action No. 19-3265(CKK)
UNITED STATES DEPARTMENT OF
DEFENSE, et al.,
Defendants
MEMORANDUM OPINION
(November 25, 2019)
This is a Freedom of Information Act (“FOIA”) action, in which Plaintiff Center for
Public Integrity seeks records from the United States Department of Defense (“DOD”) and the
United States Office of Management and Budget (“OMB”) regarding communications between
the DOD and the OMB with the DOD’s comptroller concerning the DOD’s Ukraine Security
Assistance Initiative (“USAI”). The subject matter of Plaintiff’s FOIA requests closely relate to
an ongoing impeachment inquiry before the United States House of Representatives, considering
whether or not President Donald Trump and his administration withheld payments under the
USAI in order to pressure the government of Ukraine to conduct an investigation. Before the
Court is Plaintiff’s [4] Motion for a Preliminary Injunction, which is opposed. Upon
consideration of the pleadings, 1 the relevant legal authorities, and the record for purposes of this
motion, the Court GRANTS Plaintiff’s [4] Motion. While preliminary injunctions are infrequent
1
The Court’s consideration has focused on the following documents:
• Pl.’s Mot. for a Prelim. Inj. (“Pl.’s Mot.”), ECF No. 4;
• Defs.’ Opp’n to Pl.’s Mot. for a Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 10;
• Pl.’s Reply in Support of its Mot. for a Prelim. Inj. (“Pl.’s Reply”), ECF No. 11;
• The Parties’ Joint Status Report (“JSR”), ECF No. 12;
• Defs.’ Notice (“Notice”), ECF No. 13; and
• Pls.’ Res. to Defs.’ Notice (“Pl.’s Res.”), ECF No. 15.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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in the FOIA context, the Court concludes that Plaintiff has made the requisite showing for a
preliminary injunction.
In its Motion, Plaintiff requests the release of all responsive, non-exempt documents by
December 12, 2019 or by a date reasonable to the Court. Following Plaintiff’s Motion,
Defendants identified 120 unique records, totaling approximately 211 pages, responsive to
Plaintiff’s requests. In their Notice, Defendants indicated that they are able to make an initial
release of responsive non-exempt records on December 12, 2019 with the release of remaining
non-exempt records on December 20, 2019. However, Defendants did not indicate the number of
records which would be processed by the December 12, 2019 production. Plaintiff requests that
Defendants process half of the responsive pages—at least 106 pages—by the December 12, 2019
production and the remaining half by the December 20, 2019 production. As such, at this point,
the only dispute is the number of pages that Defendants will process prior to the December 12,
2019 production.
The Court ORDERS that Defendants process at least half the responsive pages—
approximately 106 pages—and produce the responsive, non-exempt documents to Plaintiff by
DECEMBER 12, 2019.2 The Court further ORDERS that the remaining records be processed,
and all responsive, non-exempt documents be produced by DECEMBER 20, 2019, at the latest.
As practicable, Defendants shall release responsive, non-exempt documents to Plaintiff on a
rolling basis between December 12, 2019 and December 20, 2019.
2
The Court recognizes that processing exactly 106 pages may result in Defendants processing
only a portion of a document. The Court would expect that Defendants complete the processing
of that document even if doing so results in the processing of slightly more than 106 pages.
2
I. BACKGROUND
Plaintiff is a nonprofit, nonpartisan, non-advocacy, independent journalism organization.
Compl., ECF No. 1, ¶ 4. Plaintiff submitted two FOIA requests. On September 25, 2019,
Plaintiff requested from the DOD “[a]ll records reflecting any communication between Defense
Department acting comptroller Elaine McCusker or other officials within the comptroller’s office
and employees or officials of the Office of Management and Budget concerning the Ukraine
Security Assistance Initiative.” Id. at ¶ 7. Plaintiff also requested from the DOD “[a]ll records
reflecting any communication between Defense Department acting comptroller Elaine McCusker
or other officials within the comptroller’s office and Secretary of Defense Mark Esper or Deputy
Secretary of Defense David Norquist concerning the Ukraine Security Assistance Initiative.” Id.
And, on September 30, 2019, Plaintiff requested from the OMB “[a]ll records reflecting any
communication between officials and employees of the Office of Management and Budget and
the office of Defense Department acting comptroller Elaine McCusker or other officials within
the comptroller’s office concerning the Ukraine Security Assistance Initiative.” Id. at ¶ 12.
Plaintiff requested expedited processing for both FOIA requests. Id. at ¶¶ 7, 12.
Defendants acknowledged receipt of the FOIA requests. But, prior to the filing of this
lawsuit, Defendants did not provide a determination on Plaintiff’s requests. Defendant DOD
initially denied Plaintiff’s request for expedited processing, but Defendant OMB has yet to make
a decision on Plaintiff’s request. Dec. of Mark H. Herrington, ECF No. 10-1, ¶ 9; Dec. of
Heather V. Walsh, ECF No. 10-2, ¶ 10.
On October 30, 2019, Plaintiff filed this lawsuit. And, on October 31, 2019, Plaintiff filed
its Motion, requesting the release of all non-exempt documents responsive to Plaintiff’s FOIA
requests by December 12, 2019 or by a date deemed appropriate by the Court. Pl.’s Mot., ECF
No. 4, 1.
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In their Opposition, Defendants indicated that, beginning on October 3, 2019, the DOD
General Counsel issued a memorandum across the DOD requesting cooperation in identifying,
preserving, and collecting documents and other records regarding the USAI based on anticipated
requests for such material. Dec. of Mark H. Herrington, ECF No. 10-1, ¶ 7. Despite the fact that
Defendant DOD initially denied Plaintiff’s request for expedited processing, following the
submission of Plaintiff’s Motion, the DOD Office of Information Counsel conducted a search
within that repository of documents for records responsive to both of Plaintiff’s FOIA requests.
Initially, 500 potentially responsive records, inclusive of duplicates, were located. Id. at ¶ 10. In
their Opposition, Defendants indicated that they would be able to make an initial production of
an undisclosed number of documents by December 20, 2019. Defs.’ Mot., ECF No. 10, 7.
Briefing on Plaintiff’s Motion was completed on November 14, 2019. On November 15,
2019, the Court ordered the parties to file a further Joint Status Report indicating whether or not
Defendants would be able to process and release all non-exempt, responsive records by
December 20, 2019. On November 19, 2019, the parties filed a Joint Status Report. In that
Report, Defendants stated that they “anticipate they will be able to provide a final response to
Plaintiff’s FOIA requests and release all non-exempt, responsive information to Plaintiff by
December 20, 2019.” JSR, ECF No. 12.
Following this Report, the Court held a teleconference with the parties, during which a
court reporter was present. The Court asked whether or not Defendants would be able to begin
making rolling productions of responsive, non-exempt documents on December 12, 2019 with a
final production of all documents by December 20, 2019. Defendants indicated that making
rolling productions would slow the processing of documents. However, at the time of the
teleconference, Defendants were still unsure of how many documents, exclusive of duplicates,
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were responsive to Plaintiff’s FOIA requests. The Court ordered the parties to file a further
notice updating the Court as to the number of documents, exclusive of duplicates, responsive to
Plaintiff’s FOIA requests.
On November 22, 2019, Defendants filed a Notice indicating that only 120 documents,
totaling approximately 211 pages, require processing prior to the release of all non-exempt
documents responsive to Plaintiff’s FOIA requests. Notice, ECF No. 13. As previously stated,
Defendants have agreed to release all non-exempt, responsive documents by December 20, 2019.
JSR, ECF No. 12. Defendants have further agreed to process an undisclosed number of
documents and make an initial production by December 12, 2019. Notice, ECF No. 13. Plaintiff
requests that Defendants process half the pages prior to the December 12, 2019 production and
the remaining pages prior to the December 20, 2019 production. Pl.’s Res., ECF No. 15.
II. LEGAL STANDARD
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.’” Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A
plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the
merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392(quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “‘When
seeking a preliminary injunction, the movant has the burden to show that all four factors, taken
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together, weigh in favor of the injunction.’” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir.
2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
The Court notes that where, as here, the preliminary injunction would be a mandatory one,
meaning that its terms would alter rather than preserve the status quo, the Court’s power to issue
a preliminary injunction “should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168,
1173 (D.C. Cir. 1969).
“The four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at
1291 (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an
unusually strong showing on one of the factors, then it does not necessarily have to make as
strong a showing on another factor.” Id. at 1291-92. But, it is not clear whether this Circuit’s
sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme
Court’s decision in Winter. See Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d
108, 112 (D.D.C. 2015). Several judges on the United States Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) have “read Winter at least to suggest if not to hold ‘that a
likelihood of success is an independent, free-standing requirement for a preliminary injunction.’”
Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the
Court of Appeals has yet to hold definitively that Winter has displaced the sliding-scale analysis.
See Id.; see also Save Jobs USA, 105 F. Supp. 3d at 112. In any event, this Court need not
resolve the viability of the sliding-scale approach today as the Court determines that a
preliminary injunction is warranted under either approach.
III. DISCUSSION
The Court begins by acknowledging that preliminary injunctions are ordinarily not
awarded in FOIA cases. However, this is not an ordinary FOIA case. Currently, the United States
House of Representatives is in the process of conducting impeachment proceedings concerning
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the same subject matter as the documents requested by Plaintiff. As such, the requested
documents are sought in order to inform the public on a matter of extreme national concern.
Only an informed electorate can develop its opinions and persuasively petition its elected
officials to act in ways which further the aims of those opinions. In FOIA cases such as this,
where the records are sought to inform an imminent public debate, courts in this Circuit have
granted preliminary injunctions. See Wash. Post v. U.S. Dep’t of Homeland Sec., 459 F. Supp. 2d
61 (D.D.C. 2006) (granting a preliminary injunction where the records concerned White House
visitor logs and where midterm elections were occurring shortly); Leadership Conference on
Civil Rights v. Gonzales, 404 F. Supp. 2d 246 (D.D.C. 2005) (granting expedited processing of
records where the records concerned the monitoring of federal elections and certain provisions of
the Voting Rights Act were set to expire); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 416 F.
Sup. 2d 30 (D.D.C. 2006) (granting preliminary injunction where records concerned the
presidential administration’s policy of conducting surveillance of domestic communications
without prior authorization and congressional hearings were ongoing); Am. Oversight v. U.S.
Dep’t of State, No. 19-cv-2934-CRC, 2019 WL 5665930 (D.D.C. Oct. 25, 2019) (granting
preliminary injunction for communications between the State Department and the President’s
personal lawyer and documents concerning the recall of a U.S. ambassador to Ukraine because
the documents were relevant to the ongoing impeachment inquiry).
Having determined that preliminary injunctions may be appropriate in cases such as this,
the Court will now explain why the four factors to consider in deciding a motion for a
preliminary injunction—likelihood of success on the merits, irreparable harm, the balance of the
hardships, and the public interest—weigh in favor of granting the requested relief.
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A. Plaintiff Establishes a Likelihood of Success on the Merits
Plaintiff seeks expedited processing with respect to its FOIA requests; as such, the Court
finds that the question with respect to Plaintiff’s likelihood of success on the merits “is whether
[Plaintiff] is entitled to expedited processing and not just whether it is entitled to a response.”
Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 274 (D.D.C. 2012); Wadelton v. U.S.
Dep’t of State, 941 F. Supp. 2d 120, 122 (D.D.C. 2013) (evaluating the plaintiff’s likelihood of
success in obtaining expedited processing). Defendant DOD has already denied Plaintiff’s
request for expedited processing. In denying Plaintiff’s request for expedited processing,
Defendant DOD explained that Plaintiff had “not clearly demonstrated how the information will
lose its value if not processed on an expedited basis.” Dec. of Mark H. Herrington, ECF No. 10-
1, Ex. B. Defendant OMB has yet to make a decision on Plaintiff’s request.
A court reviews an agency’s denial of expedited processing de novo. 5 U.S.C. §
552(a)(6)(E)(iii), id. § 4(B). And, “judicial review shall be based on the record before the agency
at the time of the determination.” Id. § 552(a)(6)(E)(iii).
Pursuant to FOIA, agencies are to provide expedited processing when the requester
shows a “compelling need.” Id. § 552(a)(6)(E)(i)(I). In turn, a requester has demonstrated a
compelling need “with respect to a request made by a person primarily engaged in disseminating
information” where there is “urgency to inform the public concerning actual or alleged Federal
Government activity.” Id. § 552(a)(6)(E)(v)(II).
Reviewing the request for expedited processing de novo, the Court concludes that
Plaintiff has shown a likelihood of success on the merits. In making this determination, the Court
considers the record before the agencies at the time of the determination. In its FOIA request to
Defendant DOD, Plaintiff requested expedited processing. First, Plaintiff explained that it is an
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organization primarily engaged in disseminating information. Ex. A, ECF No. 1-1. Plaintiff
further explained that it “intends to produce one or more original investigative reports based on
the analysis of the requested information.” Id. Second, Plaintiff explained that it requested the
information because there is an urgency to inform the public concerning Federal Government
activity. According to Plaintiff, “the topic of the Defense Department’s handling of the Ukraine
Security Assistance program is a matter of immediate concern to the American public, given
extensive media interest in the fate of the program and pressure placed upon the department
regarding this program. These matters are the subject of imminent congressional hearings and
action.” Id. Plaintiff’s proffer to Defendant OMB in its request for expedited processing was the
same as its proffer to Defendant DOD in all relevant ways. Ex. B, ECF No. 1-1.
The Court finds that Plaintiff has established a likelihood of success on the merits of its
requests for expedited processing because Plaintiff has shown a compelling need for obtaining
the requested information in an expedited manner. Plaintiff has established that it is an entity
primarily engaged in disseminating information. And, Plaintiff has explained that it requests the
information in order to share the information with the public through investigative reports.
Additionally, Plaintiff has established an urgent need to obtain the information which concerns
Federal Government activity. Plaintiff explained that the subject matter of the requested
information—the White House’s potential influence on the USAI funding—is of immediate
concern to the American public due to the ongoing congressional hearings. In fact, Congress
itself has issued subpoenas to both the DOD and the OMB which encompass the information
requested by Plaintiff’s FOIA requests. See Infra Sec. III.B. Given that the congressional
hearings and any potential congressional action are “imminent,” the Court finds that Plaintiff
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adequately demonstrated that the value of the information would be lessened or lost absent
expedited processing.
For these reasons, the Court concludes that Plaintiff has shown a likelihood of success on
the merits of its requests for expedited processing.
B. Plaintiff Shows Irreparable Harm
Plaintiff has also made a sufficient showing that it will suffer irreparable harm if a
preliminary injunction is not issued. To show that a preliminary injunction is warranted, Plaintiff
must demonstrate that there is a likelihood of irreparable harm. See Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“A movant’s failure to show any
irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the
other three factors entering the calculus merit such relief.”). The D.C. Circuit “has set a high
standard for irreparable injury.” Id. “First, the injury must be both certain and great; it must be
actual and not theoretical.” Id. (internal quotation marks omitted). “Second, the injury must be
beyond remediation.” Id.In this case, the value and import of the information requested by Plaintiff is directly tied
to the current, ongoing impeachment proceedings. The records sought by Plaintiff go to the core
of the impeachment proceedings as alleged—whether or not President Trump and his
administration withheld payments under the USAI in order to pressure Ukraine to conduct an
investigation. As an impeachment proceeding has the potential to result in the removal of the
President from office, the current impeachment proceedings are of the highest national concern.
Additionally, Plaintiff has requested the information in order to inform the public about
matters relating to the impeachment proceeding. The dissemination of information relating to the
ongoing impeachment proceedings contributes to an informed electorate capable of developing
knowledgeable opinions and sharing those knowledgeable opinions with their elected leaders. As
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the United States Supreme Court has opined, an informed public is “a structural necessity in a
real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
If the requested information is released after the impeachment proceedings conclude, the
information may still be of historical value. However, for Plaintiff, the primary value of the
information lies in its ability to inform the public of ongoing proceedings of national importance;
and, in these circumstances, “stale information is of little value.” Payne Enterprises, Inc. v.
United States, 837 F.2d 486, 494 (D.C. Cir. 1988). As such, Plaintiff has shown that a delay in
the release of the requested information would cause irreparable harm. See Wash. Post., 459 F.
Supp. 2d at 75 (“Because the urgency with which the plaintiff makes its FOIA request is
predicated on a matter of current national debate, due to the impending election, a likelihood for
irreparable harm exists if the plaintiff’s FOIA request does not receive expedited treatment.”);
Aguilera v. FBI, 941 F. Supp. 144, 151-152 (D.D.C. 1996) (finding irreparable harm where the
requested documents were to be used as evidence in an evidentiary hearing scheduled for the
near future); Am. Oversight, 2019 WL 5665930, at * 3-4 (finding irreparable harm where the
requested documents related to the ongoing impeachment proceedings).
Defendants counter that Plaintiff has failed to show irreparable harm because Plaintiff has
failed to establish a date certain for when the impeachment proceedings will conclude causing
the information to become stale. While congressional politicians have expressed hope that the
impeachment proceedings will conclude by the end of the year, an end-date has yet to be
announced. See Heather Caygle, Pelosi Has ‘No Idea’ if Impeachment Inquiry Will Wrap by
Year’s End, Politico (Nov. 17, 2019), https://www.politico.com/news/2019/11/17/pelosi-
impeachment-democrats-trump-071315.
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The Court finds that the lack of a precise end-date for the impeachment proceedings is
not detrimental to Plaintiff’s claim of irreparable harm. The impeachment proceedings are
ongoing. And, in order to ensure informed public participation in the proceedings, the public
needs access to relevant information. As such, irreparable harm is already occurring each day the
impeachment proceedings move forward without an informed public able to access relevant
information. Given that the impeachment proceedings are ongoing, that they are of immense
national concern, and that they are intended to conclude by the end of the year, the Court finds
that the processing of at least 106 pages and the release of non-exempt documents by December
12, 2019, with the remaining approximately 106 pages processed and the non-exempt documents
released by December 20, 2019, is reasonable. See Wash. Post, 459 F. Supp. 2d at 75(preliminary injunction requiring production of responsive documents in 10 days).
Defendants further argue that Plaintiff has failed to show irreparable harm because “it is
likely that much of the information in any responsive records will be exempt from disclosure.”
Defs.’ Opp’n, ECF No. 10, 21. While some of the requested information may very well be
exempt from disclosure, Plaintiff’s Motion requests only non-exempt information. And, at this
point in the litigation, knowing nothing about the content of the responsive documents, the Court
is not prepared to find that all of the requested information is exempt from FOIA.
Moreover, absent an expedited response to Plaintiff’s FOIA request, it is not clear to the
Court that the public would otherwise have access to this relevant information. Congress has
sought similar documents from both the DOD and the OMB through subpoenas. See Letter from
Adam Schiff, Chairman, House Permanent Select Comm. on Intelligence, Eliot Engle,
Chairman, House Comm. on Foreign Affairs, and Elijah Cummings, Chairman, House Comm.
on Oversight and Reform, to Mark T. Esper, Sec. of Defense (Oct. 7, 2019); see also Letter from
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Adam Schiff, Chairman, House Permanent Select Comm. on Intelligence, Eliot Engle,
Chairman, House Comm. on Foreign Affairs, and Elijah Cummings, Chairman, House Comm.
on Oversight and Reform, to Russell T. Vought, Acting Director, Office of Management and
Budget (Oct. 7, 2019). However, the White House has indicated that it has no intention of
responding to these subpoenas due to White House concerns about the validity of the
impeachment process. See Letter from Pat A. Cipollone, Counsel to the President, to Nancy
Pelosi, Speaker, House of Representatives, Adam Schiff, Chairman, House Permanent Select
Comm. on Intelligence, Eliot Engle, Chairman, House Comm. on Foreign Affairs, and Elijah
Cummings, Chairman, House Comm. on Oversight and Reform (Oct. 8, 2019). And, even if the
DOD and the OMB were to provide the requested documents to the House of Representatives,
there is no guarantee that such documents would be made public.
For these reasons, the Court concludes that Plaintiff has shown irreparable harm absent a
preliminary injunction.
C. The Balance of Hardships and the Public Interest Weigh in Plaintiff’s Favor
Finally, the Court finds that Plaintiff has shown that the balance of hardships and the
public interest weigh in favor of granting injunctive relief. “‘These factors merge when the
Government is the opposing party.’” FBME Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 127 (D.D.C.
2015) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). When balancing the equities, the
Court must “consider the effect on each party of the granting or withholding of the requested
relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted). Moreover, “courts of equity
should [have] particular regard for the public consequences in employing the extraordinary
remedy of injunction.” Id. (internal quotation marks omitted).
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Here, the Court finds that the hardship placed on Defendants is minimal. The Court
acknowledges that Defendants have a pressing FOIA backlog. However, Defendants’ search in
response to Plaintiff’s FOIA requests identified only approximately 211 pages for processing.
Notice, ECF No. 13. Additionally, Plaintiff requests only non-exempt information, which means
that Defendants will not be required to create a Vaughn index or to provide declarations in
support of withholdings at this time. Moreover, Defendants have already agreed to process and
produce some responsive, non-exempt documents by December 12, 2019, with the remainder of
non-exempt documents processed and released by December 20, 2019. Id. From the time that
Defendants agreed to make an initial production on December 12, 2019, Defendants had
approximately three weeks to process responsive documents in preparation for that production.
As such, the only concession required is that Defendants agree to process at least 106 pages and
release non-exempt records by December 12, 2019—the agreed upon date for an initial
production. As Defendants, presumably, will not be waiting until the final week to process the
majority of the responsive documents, processing at least half the pages by December 12, 2019
presents a minimal burden.
Additionally, the Court finds that the hardship on other FOIA requesters is not a bar to
relief. The grant of a preliminary injunction in this case will likely place Plaintiff’s request ahead
of others in Defendants’ FOIA queues. However, the Court finds that the extraordinary
circumstances presented in this case warrant such line-cutting. Moreover, as of the date of
Defendants’ Opposition, Defendant DOD had received at least 12 other FOIA requests and
Defendant OMB had received at least 22 other FOIA requests all related to the same subject
matter as Plaintiff’s FOIA requests. Defs.’ Opp’n, ECF No. 10, 6, 8. In processing the documents
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responsive to Plaintiff’s FOIA requests, Defendants will also be completing some of the work
necessary for processing the other, similar FOIA requests.
Finally, the Court finds that public interest merits the extraordinary relief of a preliminary
injunction in this case. “There is public benefit in the release of information that adds to citizens’
knowledge” of the activities of their government. Ctr. To Prevent Handgun Violence v. U.S.
Dep’t of Treasury, 49 F. Supp. 2d 3, 5 (D.D.C. 1999). Here, Plaintiff’s FOIA requests relate to
the federal government’s activities concerning the USAI, the subject matter of ongoing
impeachment proceedings.
“The 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 governors accountable
to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). This case
presents an archetypal FOIA case. The requested information has the potential to inform citizens
about an issue of the highest national concern—the validity of impeachment proceedings
alleging that the President conditioned the USAI funding on Ukraine’s agreement to conduct an
investigation. In a functioning democracy, an informed electorate always inures to the public
benefit.
Accordingly, the Court finds that both the balance of the hardships and the public interest
weigh in favor of granting a preliminary injunction.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s [4] Motion for a Preliminary Injunction is
GRANTED. Plaintiff has shown that it has a likelihood of success on the merits, that it will face
irreparable harm, and that the balance of the hardships and the public interest weigh in Plaintiff’s
favor. The Court ORDERS that Defendants process at least 106 pages of responsive records by
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DECEMBER 12, 2019 and release the non-exempt documents to Plaintiff by DECEMBER 12,
2019. The Court further ORDERS that the remaining responsive, non-exempt documents be
produced no later than DECEMBER 20, 2019. As practicable, Defendants shall release responsive,
non-exempt documents to Plaintiff on a rolling basis between December 12, 2019 and December
20, 2019.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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