Delay has been an endemic problem for the Freedom of Information Act (“FOIA”) regime.  As a 2016 staff report of the House Committee on Government and Oversight Reform said:

Agencies fail to articulate reasons for delays or explain how to navigate the process. Requesters wait months, not weeks, before receiving any response. Even a denial on a technicality can be significantly delayed because the agency may fail to read the request for months. Unreasonable requests for detail and repeated ultimatums to respond within narrow windows or start all over reinforce the perspective that the process is designed to keep out all but the most persistent and experienced requesters.

House Committee on Government and Oversight Reform, FOIA is Broken 2 (Jan. 16, 2016); accord, id. at 22-26, 29-31, 34-37;  ProPublica, Delayed Denied, Dismissed: Failures on the FOIA Front (July 21, 2016).

Delay may reflect Congress’ chronic failure to provide the budgetary commitments to match its transparency ideals.  FOIA is popular with Congress, after all it assists individuals and organizations that ease the burden’s of Congress’s  oversight responsibilities .  But Congress may be unwilling to devote the funds needed to match the demands FOIA places on agencies.  For example, the Congressional Budget Office estimated that the implementation of the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016), would cost $20 million over a five-year period, Sen. Rep. No. 114-4, at 12–13 (2015), but Congress provided no increase in authorizations to account for those implementation costs, FOIA Improvement Act, § 5.  Or perhaps agencies, facing budgetary constraints and numerous competing priorities, may fail to direct adequate resources to a process that does little to further the agency’s substantive missions.  See, Judicial Watch v. Department of Homeland Security, 2018 WL 3431725 *13 (D.C. Cir. July 17, 2018)(Pillard, J., concurring).

FOIA accords agencies a mere twenty days to “determine” whether they will comply with a request for documents and communicate that determination to the requester.  5 U.S.C. § 552(a)(6)(A)(i). The documents must then be provided “reasonably promptly.” 5 U.S.C. § 552(a)(3)(A).  FOIA itself provides a penalty for an agency’s failure to comply with such deadlines, the agency forfeits the right to assess search or duplication fees (at least in some circumstances).  5 U.S.C. § 552(a)(4)(A)(viii)(I).

In Citizens for Responsibility & Ethics in Washington v. Federal Election Comm’n, 711 F.3d 180, 182 (D.C. Cir. 2013)(“ CREW v. FEC”), written by Judge Kavanaugh, the D.C. Circuit held that even though an agency need not produce responsive documents within the twenty-day window for making determinations, it must at least set forth the scope of documents it will produce and the scope of the exemptions it will claim.  Id. at 182-83, 188.  The Court asserted that the sole penalty for failure to meet the deadline (other than forfeiture of fees) was the agency’s loss of the right to invoke the exhaustion of administrative remedies defense.  Id. at 284-85.  Subsequently, in Electronic Privacy Information Center v. Department of Justice (“EPIC v. DOJ (2014)”), 15 F. Supp. 3d 32 (D.D.C. 2014), a D.C. District Judge held that FOIA requesters were not entitled to a preliminary injunction based on an agency’s failure to meet the twenty-day deadline, departing from a prior D.C. District Court precedent, Electronic Privacy Information Center v. Department of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006).

In Judicial Watch v. Department of Homeland Security, 2018 WL 3431725, decided July 17, a fractured D.C. Circuit panel held that “repeated, prolonged, and unexplained failures” to meet the twenty-day deadline and the requirement that documents be supplied “reasonably promptly” thereafter, id. at *3, *5, could provide the basis for a FOIA “policy and practice” suit, id. at *6.

The Decision

Judicial Watch monitors Secret Service expenditures on VIP travel, periodically seeking receipts for such travel from the agency.  Id. at *1.  With respect to 10 requests made between 2012 and 2014, Judicial Watch filed five separate lawsuits demanding a response.  Id.; accord, id. at *11 (Pillard, J. concurring).  In each case, the Secret Service produced the documents after the litigation commenced, mooting the litigation.  Id. at *1.  By November 2015, the Secret Services had failed to respond to 19 similar requests over a thirteen-month period.  Id. at *1,*3.   Judicial Watch brought a sixth suit, pairing a conventional cause of action to obtain the requested documents with one to enjoin the Secret Service’s policy and practice of failing to make “determinations” and produce documents “reasonably promptly.”  (In its answer to the complaint, the Secret Service acknowledged that it had issued no “determination” regarding the 19 requests. Id. at *3; id. at *11 (Pillard, J. concurring)).

The District Court had dismissed the complaint, based on Judicial Watch’s failure to allege sufficient facts from which to infer 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 v. Dep’t of Homeland Security, 211 F. Supp. 3d 143, 146–47 (D.D.C. 2016) (quoting Muttitt v. Department of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013).  It faulted Judicial Watch for failing to identify any fact or statement that “establish[ed] why requests were delayed or how the delays were the result of [any] policy or practice to violate FOIA’s requirements, rather than inevitable but unintended delay attributable to a lack of resources.” Id. at 146.  The Court cited Ashcroft v. Iqbal, 556 U.S. 662 (2009), in support.  Id. at 145, 147.

The D.C. Circuit panel reversed.  Judge Rogers wrote the opinion for the court.  Judge Pillard filed a concurrence, while Judge Srinivasan dissented.

Judge Rogers’ Opinion

Judge Rogers began by asserting that FOIA’s timelines “instruct courts that Congress contemplated meaningful agency engagement upon receipt of a FOIA request.” Judicial Watch v. Department of Homeland Security, at *2.  Such engagement was “premised on agencies improving records management systems to enable ‘prompt’ responses.” Id. Thus, FOIA’s timeframes were analogous to the technology-forcing provisions Congress had used in other contexts. Id. at *7; accord, id. at *14 (Pillard, concurring).

She explained that although an agency’s production of all requested non-exempt records generally moots FOIA cases, the D.C. Circuit has recognized an exception to that principle where an agency has a “policy or practice” that “will impair the party’s lawful access to information in the future.” Id. at *4 (citing Payne Enterprises, Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)); see, Newport Aeronautical Sales v. Dep’t of Air Force, 684 F.3d 160 (D.C. Cir. 2012).  The First and Ninth Circuit have also recognized “policy or practice” causes of action, Hajro v. U.S. Citizenship & Immigration. Services, 811 F.3d 1086, 1103 (9th Cir. 2015); Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978).  Though Judge Rogers did not mention it, a California federal judge had permitted a “policy or practice” claim against the agency for failing to meet the statutory deadlines in Brown v. U.S. Customs and Border Protection, 132 F. Supp. 3d 1170 (N.D. Cal. 2015).

Asserting that Payne had established that “agency conduct resulting in long delays in making requested non-exempt records available may serve as the basis for a policy or practice claim,” id, at *4, Judge Rogers acknowledged that entertaining Judicial Watch’s policy or practice cause of action required an extension of the D.C. Circuits two “policy or practice” cases, Payne and Newport Aeronautical.  In both, the delays had been caused by the agency’s persistently erroneous use of an exemption to withhold records.  Id. at *5; see, id. at *17 (Srinivasan, J., dissenting).

The Secret Service argued that Judicial Watch’s only remedy was a suit to obtain the requested agency records, rather than a policy or practice claim, because failure to meet FOIA timeframes does not establish a violation of the Act.  Id. at *6.  (There is a vigorous dispute among judges on this score, see, Navigators Insurance Company v. Department of Justice, 155 F.Supp.3d 157, 166-67 (D. Conn. 2016)).  Judge Rogers summarily rejected the argument—it would make FOIA’s “prompt response” mandate “a dead letter.”  Id.

In short, “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.”  Id. (emphasis added).  More particularly, plaintiff must “[1] allege a pattern of prolonged delay amounting to a persistent failure to adhere to FOIA’s requirements and [2] that the pattern of delay will interfere with its right under FOIA to promptly obtain non-exempt records from the agency in the future.” Id.

Turning to the opinion below, Judge Rogers faulted the District Court both for reading Payne and Newport Aeronautical to require egregious agency action, akin to the fact patterns in those cases, before an agency could be called upon to defend itself against a policy or practice claim, and concluding that “mere delay” could not satisfy that standard.  Id. at 7.  To the contrary, Judge Rogers asserted, “[i]t would be ironic if a policy or practice claim could be based on misapplication of a FOIA exemption (as in Payne and Newport [Aeronautical]), but not on an agency’s total disregard of the obligations mandated by Congress and failure to take advantage of provisions allowing additional time to respond.” Id.  Moreover, the District Court erred in placing the burden of explaining the delay upon the requester, rather than where it belonged, on the agency.  Even if “a lack of resources could . . . suffice to excuse repeated, prolonged, and as yet unexplained delay,” 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.” Id. (quoting CREW v. FEC, 711 F.3d at 183).

Judge Rogers noted that “not all agency delay or other failure to comply with FOIA’s procedural requirements will warrant judicial intervention, much less injunctive relief.”  Id. at *8.  However, “[u]nexplained agency delay . . . requires the district court to determine whether the agency’s conduct . . . demonstrates a lack of due diligence” that warrants injunctive relief.  Id.  Indeed, a district court is “obligated to determine,” upon a well-pleaded complaint, whether “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.”  Id. at *9.  When injunctive relief is sought, the “[f]actors 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. at *8.  Judge Rogers went on to observe that injunctive relief may be appropriate even if the agency is hampered by “staffing shortages and work overload.”  Id.

Judge Rogers closed by explaining that the majority’s disposition “conforms to longstanding precedent interpreting agencies’ obligations of ‘good faith effort and due diligence’ upon receiving a FOIA request. Id at *9 (citing Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976)).

Judge Pillard’s Concurrence

Judge Pillard’s separate concurrence largely echoed Judge Rogers’ opinion for the Court, emphasizing the mandatory nature of FOIA’s timeframes and the Government’s obligation to explain its failure to meet those timelines.  Id. at *10, *13.  She noted that the case was not solely about failing to satisfy the twenty-day determination obligation, but also the obligation to produce documents “reasonably promptly,” id. at *10-*11, perhaps suggesting that her reaction might have differed were the allegations solely about the twenty-day “determination” deadline.  She also noted that FOIA obligates the agency to reach out to requesters if it cannot meet the initial twenty-day deadline to negotiate a consensual revision of the statutory deadlines or narrowing of the request, 5 U.S.C.  § 552(a)(6)(B)(i)-(iii), and that the pleadings suggested that the Secret Service had even failed to acquit that responsibility, id. at 11.

She expressed particular dismay at the Secret Service’s lack of response given the nature of the records requested, namely receipts, which “any adequately functioning organization should be able to produce  . . . with dispatch.”  Id. at *12. She noted that Judicial Watch’s requests did not appear to “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.” Id.

Judge Sirinavasan’s Dissent

In dissent, Judge Srinivasan observed that agencies “often (and lawfully) take significantly longer than twenty days to process a FOIA request,” and that the majority’s ruling makes any such agency vulnerable to a policy or practice claim.  Id. at *15.  Citing CREW v. FEC, he argued that the twenty-day timeline for a determination “is not absolute.”  Id.  And given that the determination marks the culmination of an agency’s processing of a request—i.e., the agency’s conclusions regarding which agency records are responsive and non-exempt, “it would be a practical impossibility for agencies to process all FOIA requests completely within twenty days.”  Id.  Moreover, because the lapse of the twenty-day period is not actionable—the consequence is merely the agency’s loss of its ability to insist upon exhaustion of administrative remedies—repeated lapses cannot be considered actionable.  Id. at *17.

In his view, FOIA’s reporting provisions suggest that agencies can take hundreds of days to process requests.  Id. at *18.  FOIA provides that agencies are to categorize the length of time in which they make determinations with respect to each FOIA request in 20-day increments, up to 200 days.  And the agency reports regarding the number of days it takes to process requests, provide categories for requests processed within a period of 200-300 business days, 300-400 business days, and over 400 business days.  Id.

Judge Srinivasan asserted that even though Judicial Watch had pleaded the length of the delays, its pleading “does not establish why the time periods might be considered unreasonably—much less unlawfully—long.” Id. at *18.  At the time Judicial Watch filed the Complaint, the requests had been pending between 54 and 329 days.  Id. at *19.  Such delays were consistent with the Secret Service’s typical processing times for producing non-exempt documents and asserting exemptions, and were not “conspicuous[ly]” longer than other DHS components’ processing times.

Judge Sirinvasan faulted the majority not only for its characterization of the delay as “prolonged,” i.e., how much delay qualifies as “prolonged,” but also as “unexplained.”  Id. at *20.  Judge Sirinavassan noted in particular that FOIA required agencies to give requesters tracking numbers for each request to arm the requester with an efficient means of obtaining information about the estimated date by which the request would be processed. Id.  Nothing in the pleadings suggested that Judicial Watch could not have availed itself of “this important form of communication.”  Id.  (Judge Rogers noted that the Secret Service had even failed to provide a tracking number in two instances.  Id. at *3.)

Observations

Three observations are in order.

First, the scope of the opinion for the Court and its implications for other agencies is unclear.  The nature of the requests and the Secret Service’s non-responsiveness presents what may be an extreme case.  The Secret Service never made “determinations,” nor did it communicate with Judicial Watch to attempt to negotiate a means to ease its compliance burdens.  Agencies may not typically behave so cavalierly.  (And litigation counsel’s incautious suggestion that the agency was using the filing of a complaint as a tool for prioritizing its responses, commencing work on requests only after a FOIA suit was initiated, did not help matters.  Judicial Watch v. Department of Homeland Security, at *8.)  The nature of the series of requests may make the case somewhat unusual, involving a single requester making virtually identical periodic requests.  The requests themselves seem straightforward, as Judge Pillard observed, and the redaction of exempt information could presumably have been standardized (in light of the minimal need to make the type ever-varying, fact-specific judgments regarding application of exemptions that FOIA requests often involve).

That said, read at its broadest, particularly the passages regarding agency obligations to craft information management systems that enable agencies to meet FOIA’s strict time demands, the majority opinion could require courts to review, and potentially supervise, numerous agencies’ records systems.  The Supreme Court has construed the power conferred by FOIA’s bare-bones remedial provision generously, Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20 (1974)(FOIA’s remedial provision arms the courts with the full range of inherent powers of an equity court).  However, the separation of powers issues inherent in the robust approach suggested by Judge Rogers’ opinion together with the general and arguably plaintiff-specific nature of FOIA’s remedial provision, see, Kennecott Utah Copper Corp. v. Department of Interior, 88 F.3d 1191, 1203 (D.C. Cir. 1996)(FOIA’s remedial provision “is aimed at relieving the injury suffered by the individual complainant, not by the general public”), might lead the Supreme Court to react adversely to judge’ expansive view of their powers  in such policy or practice cases,.

Second, there is a potential anomaly in terms of the pleading requirements in such cases.  Even though the Federal Rules of Civil Procedure merely require notice pleading, Fed. R. Civ. P. 8(a), plaintiffs arguably must plead some facts to show that the agency’s delays are unreasonable, because “not all agency delay or other failure to comply with FOIA’s procedural requirements will” amount to an actionable policy or practice, see, Judicial Watch v. Department of Homeland Security, at *8.  For instance in Ashcroft v. Iqbal, it was not sufficient to show that a high percentage of post-9/11 detainees were Muslim or that they were kept in “secure” (i.e., harsh) conditions, plaintiffs had to plead something more with regard to defendant’s motives to adequately plead discrimination.  Ashcroft v. Iqbal, 556 U.S. 662, 680-83 (2009).

But it is unclear how the FOIA requester who repeatedly encounters prolonged delays in receiving requested documents is supposed to prove that the agency has not been reasonably diligent when the agency does not communicate regarding the reasons for such delay.  And indeed, Judge Sirinavasan’s approach, while logical given Iqbal, would mean that agencies can successfully move to dismiss such policy or practice cases at the pleading stage so long as the agency is consistent in terms of its delayed responses.  But it is surely the agency that, throughout the litigation, should bear the burden of justifying its failure to comply with FOIA’s strict time deadlines.

Third, Congress may well have taken an “action-forcing” approach with regard to FOIA, setting forth the standards agencies must meet and allowing agencies to best marshal their resources to meet those standards (while pursuing their various other missions).  But for such an action-forcing approach to succeed, the consequences of failure must be credible.  In the FOIA context, the threat of consequences may have only limited credibility.  The courts will not likely be willing to strip agencies of their ability to invoke exemptions when they miss FOIA deadlines.  See, Navigators Insurance Company v. Department of Justice, 155 F.Supp.3d at 167-68; EPIC v. DOJ (2014), 15 F.Supp.3d at 46, 48.  Those exemptions protect important interests, both of the government and of private citizens who deal with the government, Bernard W. Bell, Sanctuary Cities, Government Records, And The Anti-Commandeering Doctrine, 69 RUTGERS U. L. REV. 1553, 1567-69 (2017), and to preclude the Government from raising them would itself contravene a core aspect of the FOIA regime, see, Federal Public Records Law: Hearings on H.R. 5012, et al., before Subcommittee of the House Government Operations Committee, 89th Cong. 5 (1965)(democracy requires delicate balancing easy access to information and secrecy).  Of course, courts may find that the true source of the chronic agency delays is not any inadequacy in agency records management systems or agency misallocation of resources, but Congress’ failure to provide adequate resources to enable agencies to meet FOIA’s deadlines.  If so, the party upon whom the action-forcing approach will need to work is Congress itself, the very institution that crafted the “action-forcing” approach.  The threat of consequences is surely not sufficiently credible to alter congressional budgetary priorities.