American Center for Law and Justice v. US Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CENTER FOR LAW AND
JUSTICE,
Plaintiff,
Case No. 1:21-cv-01364 (TNM)
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
Court dockets in this district overflow with Freedom of Information Act (FOIA) matters.
Many of those cases seek reams of records, requiring massive efforts from defendant agencies.
Despite the at times Sisyphean effort to respond, agencies rarely object to the breadth of a
request. But sometimes they do.
This is one of those cases. The American Center for Law and Justice (ACLJ) submitted a
FOIA request to four agencies for responsive records about eight broadly defined immigration-
related subject areas. When the agencies failed to timely respond, ACLJ sued. The agencies
move to dismiss, arguing that ACLJ’s underlying FOIA request was overbroad. The Court
agrees and will dismiss the case.
I.
The southern border occupies a prominent spot in our nation’s public discourse. Border
policies tend to fluctuate with each incoming administration. The Biden Administration is no
different. After President Biden took office, he changed (sometimes wholesale) his
predecessor’s immigration policies. For example, the new administration stopped Operation
Talon, a program “aimed at removing convicted sex offenders” living illegally in the United
States. Compl. Ex. 1 at 6, ECF No. 1-1. 1
In early 2021, media outlets reported a surge of illegal migrants at the southern border.
See generally id. at 2–9. This surge threatened to overload the country’s immigration agencies.
Some policymakers worried that terrorists might slip through in the mass migration. See Compl.
Ex. 1 at 6 (statement of Rep. Katko). Indeed, media outlets reported that Customs and Border
Protection (CBP) had caught two men listed on the FBI’s Terrorist Watchlist. See id. at 8–9.
Other policymakers worried that some migrants might contract COVID-19 in the overcrowded
detention facilities and would carry the virus into the United States. See id. at 8. The media also
reported that the Biden Administration refused to call the situation a “crisis,” instead directing
officials to use the word “challenge” when discussing the chaos. See id. at 2–3.
Enter ACLJ, which submitted a FOIA request to the Department of Homeland Security
(DHS) and several of its daughter agencies: CBP, Immigration and Customs Enforcement (ICE),
and U.S. Citizenship & Immigration Services (USCIS). The request sought “any and all
records” about eight subjects: 2
• Instructions from the Biden Administration to refer publicly to the migrant surge
as a “challenge,” not a crisis, see Compl. Ex. 1 at 10;
• Records of how many migrants remain in custody, how many of those have been
released without a court date, and how many are convicted criminals. See id. at
11. More, any actions taken (1) to prevent trafficking of unaccompanied minors
1
All page citations refer to the page numbers that the CM/ECF system generates, and all exhibit
numbers refer to the numbered attachments to the CM/ECF filings.
2
ACLJ’s request technically includes nine categories of information. But the seventh and eighth
categories both discuss a CBP press release, with the former focused on Secretary Mayorkas and
the latter focused on any other CBP, ICE, or USCIS official. See Compl. Ex. 1 at 12. In all
other categories, ACLJ mentioned together Secretary Mayorkas and any other CBP, ICE, or
USCIS official. So the request as a whole deals with eight subjects, not nine.
2
and women; (2) to stem the tide of migrants across the border; and (3) to protect
Americans from migrants on various terror watch lists, see id. at 10–11;
• Instructions that DHS employees should not discuss the surge with the press, see
id. at 11;
• Records of how many migrants have COVID-19, how many of those have been
released into the nation, how the government is tracking those migrants, and how
the government is lessening the rate of infection at migrant detention centers, see
id.;
• Warnings from DHS staff that a quick repeal of the Trump Administration’s
border policies could lead to a surge at the southern border, see id. at 12;
• Cancellation of Operation Talon, see id.;
• An April 2021 CBP press release about the arrest of two migrants on the FBI’s
Terror Watch List and the removal of that press release from CBP’s website, see
id.; and
• Arrest or detention of any person at the border who is on the government’s
terrorism watch lists, see id. at 13.
ACLJ’s request also specified that it sought records “sent from, prepared by, sent to,
received by, reviewed by, or in any way communicated to or by, [DHS] Secretary Alejandro
Mayorkas, his aides, staff, representative or agents, or acting predecessor, or any CBP, ICE, or
USCIS official.” Id. at 10–14. ACLJ limited the request to any records from November 4, 2020
“to the date this Request is processed.” Id. at 10.
Both USCIS and CBP acknowledged ACLJ’s request and invoked FOIA’s provision
allowing 30 days for the agency to respond. See 5 U.S.C. § 552(a)(6); Compl. Exs. C and D,
ECF Nos. 1-3 and 1-4. But 30 days later, DHS and its daughter agencies still had not responded.
So ACLJ sued, arguing that the agencies had violated FOIA. 3 See Compl. ¶¶ 25–41. The
3
On the same day that ACLJ filed its Complaint, DHS acknowledged receipt of the request. See
Defendants’ Reply (“Defs.’ Reply”) Ex. 1, ECF No. 17-1.
3
agencies moved to dismiss that complaint. See Defs.’ Motion to Dismiss (“Defs.’ MTD”), ECF
No. 15. That motion is now ripe. 4
II.
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The plaintiff must plead
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. In considering a motion to dismiss, the Court “treat[s] the
complaint’s factual allegations as true and must grant the plaintiff the benefit of all inferences
that can be derived from the facts alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir.
2017) (cleaned up). The Court, however, need not credit legal conclusions couched as factual
allegations. See Iqbal, 556 U.S. at 678.
FOIA exposes “agency action to the light of public scrutiny.” DOJ v. Reps. Comm. for
Freedom of the Press, 489 U.S. 749, 772 (1989). The Act requires an agency to release records
not otherwise exempt from disclosure when the agency receives a request that “reasonably
describes such records.” 5 U.S.C. § 552(a)(3)(A). And a request “reasonably describes” agency
records when it “would be sufficient [to enable] a professional employee of the agency who was
familiar with the subject area of the request to locate the record with a reasonable amount of
effort.” Truitt v. Dep’t of State, 897 F.2d 540, 545 n.36 (D.C. Cir. 1990). 5 “Agencies must read
4
The Court has jurisdiction under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.
5
FOIA also requires a request to be “in accordance with” an agency’s FOIA regulations. 5
U.S.C. § 552(a)(3)(A). DHS rules incorporate the Act’s “reasonably describes” requirement.
See 6 C.F.R. § 5.3(b) (“Requesters must describe the records sought in sufficient detail to enable
DHS personnel to locate them with a reasonable amount of effort.”). The Court thus need not
analyze whether ACLJ’s request violates DHS regulations. If the request violates FOIA’s
“reasonably describes” requirement, it also violates those regulations. See Freedom Watch, Inc.
v. Dep’t of State, 925 F. Supp. 2d 55, 60 n.1 (D.D.C. 2013).
4
FOIA requests as drafted,” Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984), and “[b]road,
sweeping requests lacking specificity are not sufficient.” Dale v. IRS, 238 F. Supp. 2d 99, 104
(D.D.C. 2002).
III.
A.
Congress enacted FOIA in 1966 to “assure public access to all governmental records
whose disclosure would not significantly harm specific governmental interests.” Dep’t of Air
Force v. Rose, 425 U.S. 352, 362–65 (1976). FOIA has ably served the public interest, checking
government corruption and “hold[ing] the governors accountable to the governed.” NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). But those benefits are not costless,
especially as agency records have multiplied in recent decades with the ubiquity of computers.
To see why, some background is necessary. FOIA allows members of the public to
request “agency records” and to go to court for responsive records if the agency withholds them.
5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136,
150 (1980). As one might guess, requestable agency communications for much of FOIA’s fifty
years were in paper form. See, e.g., Kissinger, 445 U.S. at 140 (analyzing whether paper
transcripts qualified as “agency records”).
That began to change in the mid-1980s when some agencies started using email. See,
e.g., Armstrong v. Exec. Off. of the President, 1 F.3d 1274, 1279 (D.C. Cir. 1993). With email
came an explosion of agency records. Discussions among agency employees now occurred in a
medium that generated records which could be located and searched, rather than during phone
calls or unrecorded meetings. Since then, email has only expanded in use, dramatically boosting
the amount of potential records to which a FOIA requester might be entitled and, by extension,
5
the amount of agency time needed to find all responsive records. See Melanie Ann Pustay,
Memorandums to Messages: The Evolution of FOIA in the Age of the Internet, 126 Yale L.J. F.
252 (2016) (“The proliferation of records can make locating and processing responsive material
incredibly time-consuming.”). To make matters tougher for agencies, they must respond to any
request within at most 30 days. 5 U.S.C. § 552(a)(6)(A)(i), (a)(6)(B)(iii). Surprising no one,
agencies often miss that deadline. According to the Justice Department, agencies in Fiscal Year
2020 spent on average 30.23 days to respond to “simple” requests. 6 And over half of “complex”
requests—which are requests that seek records from multiple locations—required more than 40
days for the agency to process. 7
In that sense, FOIA has not evolved with the realities and technologies of government
operations. Thanks to email, today’s agencies must search through more records than ever to
find responsive ones. And they must respond to a deadline enacted 25 years ago, well before
email’s proliferation in the American workplace. See Electronic Freedom of Information Act
Amendments of 1996, Pub. L. No. 104-231, § 8(b), 110 Stat. 3048, 3052 (1996). 8 Failure to
meet that deadline brings courts into the fray. See Citizens for Resp. and Ethics in Wash. v. FEC,
711 F.3d 180, 185 (D.C. Cir. 2013) (“If the agency does not make a determination within the
relevant statutory time period, the requester may file suit without exhausting administrative
appeal remedies.”).
As outstanding requests pile up at agencies, so do FOIA cases on court dockets. Judges
in this district currently have 991 active FOIA cases, which represent almost a quarter of the
6
See Dep’t of Justice, Summary of Annual FOIA Reports for Fiscal Year 2020 at 12, located at
https://www.justice.gov/oip/page/file/1393381/download.
7
See id. at 13.
8
Admittedly, most agencies probably used email in 1996, but not to the same extent as today.
6
district’s entire civil docket. 9 And many of those take years to resolve. See, e.g., Reps. Comm.
for Freedom of the Press v. FBI, 3 F.4th 350, 359 (D.C. Cir. 2021) (resolving a FOIA dispute
seven years after the plaintiff had originally filed its FOIA request); McGehee v. U.S. Dep’t of
Just., 362 F. Supp. 3d 14, 16 (D.D.C. 2019) (“In 1998, the Indianapolis Colts drafted Peyton
Manning, Britney Spears released her hit single “Baby One More Time,” and Fielding McGehee
submitted a [FOIA] request to the FBI. While the heydays of Mr. Manning and Ms. Spears have
come and gone, Mr. McGehee’s FOIA request lingers.”).
Nonprofit FOIA plaintiffs create much of that backlog. FOIA generously allows requests
and suits by “any person,” meaning anyone opposed to an agency’s mission or policies can use
FOIA requests to “dig up dirt on the policy and the people behind it.” David E. Pozen, Freedom
of Information Beyond the Freedom of Information Act, 165 U. Pa. L. Rev. 1097, 1127 (2017).
Nonprofit organizations dedicated to certain causes or policies often march in the vanguard of
such objectors and thus “employ similar tactics, backed up by a continuous succession of FOIA
lawsuits.” Id.And nonprofits are doing so at an increasing rate. According to Syracuse University’s
FOIA Project, nonprofits accounted for 56% of all FOIA lawsuits filed nationwide in 2018,
compared to just 14.2% in 2001. 10 And of those nonprofit plaintiffs, many are repeat litigants.
From 2001–2018, plaintiffs with one FOIA lawsuit accounted for only 15% of all FOIA suits by
nonprofits. The other 85% can be explained by nonprofit requesters who bring more than one
9
Statistics based on district-wide case filing system as of November 9, 2021.
10
For the statistics that appear in this paragraph, see FOIA Suits Filed by Nonprofit/Advocacy
Groups Have Doubled Under Trump, The FOIA Project (Oct. 18, 2018),
http://foiaproject.org/2018/10/18/nonprofit-advocacy-groups-foia-suits-double-under-trump/.
7
FOIA lawsuit. The implication is clear: as more nonprofits file FOIA suits, some nonprofits file
a disproportionate number of them.
The civil docket in this district features some of these frequent flyers. For example,
ACLJ has 12 pending FOIA cases before judges here. As of this writing, American Oversight
has 74 active FOIA cases, Judicial Watch has 63, Citizens for Responsibility and Ethics in
Washington has 27, the Center for Biological Diversity has 15, and the Democracy Forward
Foundation has 14. 11
To be sure, nonprofits have plenty of reason to file FOIA requests and to pursue those
requests through litigation. Some might oppose the political party in charge of government and
thus use FOIA requests to focus on policies that receive comparatively little attention elsewhere.
More, nonprofits might view FOIA requests as necessary to the nonprofit’s specific mission. No
one could deny those motivations as reasons for a robust FOIA practice by nonprofits. But
FOIA itself offers nonprofits additional inducements to sue.
First, the Act limits what an agency can charge noncommercial requesters to cover the
costs of any search and response. See 5 U.S.C. § 552(a)(4)(A)(ii)(II) (“[F]ees shall be limited to
reasonable standard charges for document duplication when records are not sought for
commercial use and the request is made by an educational or noncommercial scientific
institution . . . .”). Requesters can even waive payment of any fees if the request “is not
primarily in the commercial interest of the requester.” Id. § 552(a)(4)(A)(iii). Because nonprofit
organizations by definition have no commercial interests, they will usually qualify for a fee
waiver, lowering the barrier to filing a FOIA request in the first place. See Jud. Watch, Inc. v.
11
All statistics current as of November 9, 2021.
8
Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be
liberally construed in favor of waivers for noncommercial requesters.”) (cleaned up).
Second, FOIA requesters may receive attorney’s fees if they “substantially prevail[]” in
the ensuing litigation. 5 U.S.C. § 552(a)(4)(E). As the D.C. Circuit has observed, that provision
by design encourages requesters to seek judicial review of an agency’s response. See Davy v.
CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008) (“A grudging application of this provision, which
would dissuade those who have been denied information from invoking their right to judicial
review, would be clearly contrary to congressional intent.”) (cleaned up).
Thanks to these two provisions, nonprofit requesters have little to lose when they file a
FOIA lawsuit. And much to gain. Both provisions also encourage broadly worded requests.
With no fees forcing a nonprofit to internalize the cost of its request, it would have little reason
not to request a broader universe of documents. And the odds of an insufficient agency
response—and by extension the odds of prevailing in later litigation—increase as the request
expands in scope and the agency risks overlooking responsive documents.
The mismatched incentives are clear. Nonprofit litigants like ACLJ have everything to
gain and little to lose from posing broad, complicated FOIA requests. Agencies, deprived of fees
for their FOIA services, have little reason to prioritize FOIA requests over their other statutory
duties. Combine that with the recent explosion of nonprofit FOIA requests, and the agency will
fall further and further behind in processing requests. And when the nonprofit requester sues for
an overdue response, the parties can endure years of litigation, with the agency ultimately footing
the bill. This is the system Congress hath wrought. And which this Court must dutifully
implement.
9
B.
But even in the above-described environment, this case is an outlier. ACLJ requested
“any and all records, communications, or briefings” on eight subjects. The phrase “any and all”
is capacious, involving a huge number of potentially responsive documents. But requests for all
documents are neither inherently unreasonable nor uncommon. See Yeager v. DEA, 678 F.2d
315, 326 (D.C. Cir. 1982) (“the number of records appears to be irrelevant to the determination
whether they have been reasonably described”). ACLJ seizes on this point and touts it to suggest
the narrowness of its request. See Plaintiff’s Opposition to Motion to Dismiss (“Opp’n”) at 17,
ECF No. 16 (“Indeed, the essence of Defendants’ Motion to Dismiss seems to be their dislike of
the ‘any and all.’”). But the request includes other language, all of which broadens it beyond the
bounds of reasonableness.
ACLJ sought documents “referencing or regarding in any way” eight topics. See Compl.
Ex. 1 at 10–13. A request for documents that merely “reference” certain topics might not be
unreasonable. In that scenario, responsive documents could probably be found with a simple
keyword search across agency databases. But ACLJ’s request goes further. It also seeks
documents that “regard[] in any way” the eight specified topics. That is a much broader request.
See Shapiro v. CIA, 170 F. Supp. 3d 147, 155 (D.D.C. 2016) (“[T]here is a difference in kind
between requests for documents that ‘mention’ or ‘reference’ a specified person or topic and
those seeking records ‘pertaining to,’ ‘relating to,’ or ‘concerning’ the same.”).
Such expansive phrasing would sweep in any communication “even remotely related” to
the eight categories being requested. Defs.’ MTD at 15. Consider some examples. An email
between Border Patrol agents about a migrant who might have COVID-19 (but also might not)
could qualify as a record pertaining to “the number of migrants with COVID.” Compl., Ex. 1 at
10
11. And one might think a briefing to Border Patrol agents on COVID-19 avoidance to “regard[]
or referenc[e]” the number of migrants with COVID, given how many migrants the agents
encounter every day. Or consider a message between USCIS and DHS about a sex offender who
entered the country illegally. ACLJ would have a viable argument that, depending on when the
letter was sent, it could “regard” in some way the cancellation of Operation Talon, which might
have otherwise snagged that criminal. Id. at 12. Finally, as the Government points out, a record
need not even discuss a detention at the border to still relate “in any way” to “the arrest or
detention of any person at the U.S. Border who is on any government terror-related or no-fly
watch list.” Defs.’ MTD at 16.
Those broad descriptions do not allow the agency “to determine precisely what records
are being requested.” Tax Analysts, 117 F.3d 607, 610 (D.C. Cir. 1997) (quoting Kowalczyk v.
Dep’t of Just., 73 F.3d 386, 388 (D.C. Cir. 1997)). Indeed, they leave the unfortunate FOIA
processor assigned to such a case in a hopeless muddle without clear guidance about what
documents are being sought. Courts in this district have dismissed similarly worded requests on
the same basis. See, e.g., Cable News Network v. FBI, 271 F. Supp. 3d 108, 112 (D.D.C. 2017)
(dismissing as overbroad a request for records that “relate in any way to” certain subject areas);
Dale, 238 F. Supp. 2d at 104 (finding request for documents “that refer or relate in any way to”
subject matter did not reasonably describe records sought).
ACLJ responds with a circular statement that those cases “rejected FOIA requests that
were inherently vague and overbroad because they were vague and overbroad.” Opp’n at 17.
The Court disagrees—those cases involved requests for documents that relate “in any way” to
certain topics. ACLJ offers no meaningful way to distinguish those requests from ACLJ’s
identically worded one here.
11
The scope of ACLJ’s request also would require more than a “reasonable amount of
effort” to find responsive documents. See Truitt, 897 F.2d at 545, n.36. ACLJ requested records
that were “sent from, prepared by, sent to, received by, reviewed by, or in any way
communicated to or by” the DHS Secretary and his “aides, staff, representative or agents, or
acting predecessor, or any other CBP, ICE, or USCIS official.” Compl. Ex. 1 at 10. The
population of the Secretary’s “representative or agents” encompasses each of the Department’s
240,000 employees. 12 They all carry out policy directives as pronounced by him. See
Representative, Black’s Law Dictionary (11th ed. 2019) (“Someone who stands for or acts on
behalf of another.”).
ACLJ counters that, because the request lists “aides” and “staff” before “representative or
agents,” the request is therefore limited to an identifiable group of DHS employees: those
closest to the Secretary. See Opp’n at 11. But the Court, like the agency, must read the request
as drafted, not as ACLJ “might wish it was drafted,” Miller, 730 F.2d at 777, and the request
specifically includes the Secretary’s “representative and agents.” If ACLJ had intended to
include only the Secretary’s immediate staff, it should have said so from the start. And ACLJ’s
decision to include groups beyond “aids” and “staff” strongly suggests it thought this subset of
DHS employees was insufficient.
In any event, the request also applies to communications by “any other CBP, ICE, or
USCIS official.” Compl. Ex. 1 at 10 (emphasis added). ACLJ does not try to cabin this
language to particular employees at those agencies. Nor could it. Anyone employed at those
agencies would qualify as an “official.” See Official, Black’s Law Dictionary (11th ed. 2019)
(“Someone who holds or is invested with a public office.”). Every employee at these three
12
For the number of DHS employees, see Defs.’ MTD at 16.
12
sprawling agencies would therefore be implicated by ACLJ’s request, including those that have
nothing to do with the border.
For example, USCIS adjudicates visa petitions. An email about a visa petitioner who
contracted COVID-19 would qualify as a record “referencing or regarding in any way . . . the
number of migrants with COVID,” even though the USCIS visa officer has no responsibility or
involvement with the southern border. Compl. Ex. 1 at 11. ACLJ has thus failed to limit its
search to anyone who “might have had something to do” with the issue that prompted the
requests. Freedom Watch, 925 F. Supp. 2d at 61. That failure reinforces the unreasonably broad
nature of ACLJ’s request. See AFGE v. Dep’t of Com., 907 F.2d 203, 209 (D.C. Cir. 1990)
(rejecting FOIA requests as overly broad when the burden of the search was “largely
unnecessary to the [requester’s] purpose”).
Finally, ACLJ’s request is not at all limited to certain records. The request instead
defines “record” as “any information that qualifies under [FOIA] and includes, but is not limited
to, the original or any full, complete, and unedited copy” of 19 types of written communication.
Compl. Ex. 1 at 9. “Briefing” has a similarly capacious definition, “includ[ing], but [ ] not
limited to, any in-person meeting, teleconference, electronic communication, or other means of
gathering or communicating by which information was conveyed to more than one person.” Id.
at 10. Such descriptions are not uncommon in a FOIA request. Yet when paired with ACLJ’s
other language, they only further broaden ACLJ’s request.
To be sure, ACLJ limited its request in one regard. It sought records from only
November 4, 2020 to May 18, 2021. See Compl. Ex. 1 at 10. Although that temporal limitation
is important, it does not change ACLJ’s use of broad language to identify the records sought nor
the applicability of that language to all DHS employees. Consider: a request for a week’s worth
13
of all records about President Biden would be significantly vaguer and broader than a similarly
worded request for a month’s worth of records about his public statements on the Supreme
Court. A shorter timeframe does not necessarily cure an overly broad description of the records.
And the description is what matters. See 5 U.S.C. § 552(a)(3)(A) (agency must respond to a
FOIA request that “reasonably describes” the requested records); see also Machado Amadis v.
Dep’t of State, 971 F.3d 364, 370 (D.C. Cir. 2020) (“Agencies must read FOIA requests as
drafted.”). ACLJ’s descriptions here are too broad to describe, much less “reasonably,” the
records requested. Id.The Court thus agrees with the Government that any search responsive to the plain
language of ACLJ’s request would require, at a minimum, a review of communications by “any
and all employees” at three agencies (ICE, CBP, and USCIS) that might be “remotely related” to
ACLJ’s eight categories, “without any limitation on the method or form of communication.”
Defs.’ MTD at 15. And recall that all DHS employees would likely need to be included. That
type of search would be “unduly burdensome,” see Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir.
1978), and would be a “massive undertaking,” see Nat’l Sec. Cnslrs. v. CIA, 969 F.3d 406, 410
(D.C. Cir. 2020). The agency need not respond to such a request. See AFGE, 907 F.2d at 208–
09; Krohn v. DOJ, 628 F.2d 195, 198 (D.C. Cir. 1980) (holding as overly broad a FOIA request
that would have required review of “each and every . . . criminal case in order to determine
whether it contains any evidence of the data” requested) (cleaned up).
ACLJ responds by comparing its request to one at issue in a previous case. See Opp’n at
9–10. In Freedom Watch v. Department of State, 925 F. Supp. 2d 55 (D.D.C. 2013), the court
held that the plaintiff’s requests for “all records that refer or relate” to 63 categories of records
did not reasonably describe the records being sought. Id. at 56, 61–62. The plaintiff there
14
requested all records relating or referring to “any and all communications to or from President
Obama, his administration, or the White House in general” about China. Id. at 61. ACLJ argues
that because its request is less broad than those in Freedom Watch, the Court should reach an
opposite result. See Opp’n at 10.
Not so. Decisions from a district court do not create a floor for what a FOIA request
must do to pass muster. To say that ACLJ’s request is narrower than in another case does not
answer whether ACLJ’s request here meets FOIA’s requirements.
In any event, ACLJ overlooks obvious similarities between its request and those in
Freedom Watch. Both requests sweep in employees who do not deal with the particular issue
named in the request. See id. at 61 (“Aside from the clarity of ‘President Obama,’ the request
did not in any limit the scope of ‘his administration’ or ‘the White House in general’ to those
persons, for instance, who might have had something to do with China . . . .”). And the plaintiff
in Freedom Watch requested all records that “refer[red] or relate[d]” to a particular category—
language much like ACLJ’s request, which adds the expansive phrase “in any way” to its
descriptions of the requested records. See id. at 57. To be sure, the requests in Freedom Watch
dealt with 63 categories of records, not eight. But the near-identical language in the requests
makes the two cases much closer than ACLJ believes.
ACLJ also argues that the Government cannot move to dismiss a FOIA request without
first coordinating with the plaintiff to narrow the request. See Opp’n at 9, 11–12, 17. ACLJ’s
brief cites no authority for that proposition, relying instead on the author’s “years of practicing.”
Id. at 12. With respect, counsel’s experience does not matter. A request by the Government to
narrow the scope of a FOIA request might be “permissible.” Id. at 8 (quoting Rugiero v. DOJ,
257 F.3d 534, 538 (6th Cir. 2001)). It might even be preferable. But nothing in FOIA requires
15
such an action. That agencies have negotiated the scope of past requests does not graft a new
requirement onto FOIA’s express terms. 13 ACLJ cites no authority to the contrary, nor is the
Court aware of any.
In sum, ACLJ has not “reasonably described” the requested records. ACLJ could have
done so—for example, it could have limited the request to members of the Secretary’s office or
to documents referencing fewer subjects. But ACLJ is the master of its request and instead
chose to include broad language encompassing many other employees and documents. The
Court must read that request as drafted. See Amadis, 971 F.3d at 370.
* * *
FOIA provides an important check against the abuses of government. Nonprofits have
wielded FOIA in that laudable spirit, often to positive effect for all concerned about how
government operates. But FOIA also encourages the same nonprofits requesters to push further.
And many have, some persistently. Those incentives breed requests like this one—imposing
crushing burdens on limited agency resources with no clear scope or result. FOIA envisions that
applicants will reasonably describe the records they seek, and agencies are entitled to demand it.
IV.
For these reasons, Defendants’ Motion to Dismiss will be granted. ACLJ’s Complaint
will be dismissed without prejudice. A separate Order will issue.
2021.11.10
15:03:25 -05'00'
Dated: November 10, 2021 TREVOR N. McFADDEN, U.S.D.J.
13
ACLJ also fails to mention DHS’s accommodating response to the request. Although DHS
did not negotiate to narrow, it did invite ACLJ to “resubmit [the] request containing a reasonable
description of the records.” Defs.’ Reply, Ex. 1 at 3.
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