Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec.

• Citation: 895 F.3d 770
• Decision Date: 17 July 2018
• Docket Number: No. 16-5339,16-5339
• Parties: JUDICIAL WATCH, INC., Appellant v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

895 F.3d 770

JUDICIAL WATCH, INC., Appellant

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Appellee

No. 16-5339

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 2017

Decided July 17, 2018

Lauren M. Burke argued the cause and filed the briefs for appellant. Paul J. Orfanedes entered an appearance.

Sarah Carroll, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Mark B. Stern, Attorney.

Before: ROGERS, SRINIVASAN, and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge : For years, Judicial Watch has monitored expenditures of U.S. Government funds on "VIP" travel by submitting requests for records pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the U.S. Secret Service and other agencies and reporting its findings to the public. Between 2012 and 2014, when the Secret Service failed to make requested records available in a timely manner, Judicial Watch was forced to file a lawsuit on five separate occasions in order to obtain the records. Upon such filing, the Secret Service produced non-exempt records, mooting the litigation.

In November 2015, Judicial Watch was forced again to file a lawsuit when the Secret Service failed to make available records in response to nineteen travel-related FOIA requests submitted over a thirteen-monthperiod. This time, in addition to seeking an order that the Secret Service produce requested records, Judicial Watch sought injunctive relief so the Secret Service would not continue to violate FOIA’s mandate that federal agencies "shall" make requested records "promptly available." 5 U.S.C. § 552(a)(3)(A). Judicial Watch alleged that the Secret Service "has a policy and practice of violating FOIA’s procedural requirements," by "regularly failing" to either produce requested records or make a determination regarding their availability in accord with FOIA’s timetables, 5 U.S.C. § 552(a)(6)(A), or within a reasonable time. Compl. ¶ 22. Four months after the lawsuit was filed, the Secret Service, much as it had done on the five prior occasions when Judicial Watch had sued, produced non-exempt records, thereby mooting the production request.

The only question now before the court is whether the complaint adequately alleged a "policy or practice" claim under FOIA. The district court ruled that Judicial Watch had failed to plead sufficiently egregious facts and granted judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Because the court’s precedent recognizes that a policy or practice claim may be predicated upon an agency’s abuse of FOIA’s statutory scheme, we reverse and remand to the district court for further proceedings.

I.

The Freedom of Information Act provides that federal agencies, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available ." 5 U.S.C. § 552(a)(3)(A) (emphasis added). To ensure this mandate did not become a dead letter, Congress adopted a two-part approach. First, Congress imposed a set of requirements on federal agencies: It established timetables for agencies to respond to requests as well as procedures for agencies to obtain additional time, and required adoption of records management systems to facilitate "prompt" responses. Second, Congress provided members of the public whose records requests were denied a right to an administrative appeal and a right to seek judicial relief. Briefly summarized, the salient features of this two-part scheme are as follows:

First, an agency "shall determine" within twenty business days (one month) of receiving a FOIA request "whether to comply with such request," and "shall immediately notify the person making such request of such determination and the reasons therefor." Id. § 552(a)(6)(A). The agency may toll the response period once while seeking further information from the requester on the scope of the information sought. Id . In "unusual circumstances," the agency may extend the determination deadline by ten business days (two weeks) upon explaining the circumstances to the requester. Id. § 552(a)(6)(B)(i). If additional time is required to address the request, the agency "shall notify the [requester] ... and shall provide the person an opportunity to limit the scope of the request ... or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request." Id. § 552(a)(6)(B)(ii).

To promote "efficient and appropriate compliance" with FOIA, id . § 552(j)(2)(A), agencies "shall" publish their internal organization and procedures relating to records requests, id. § 552(a)(1), and provide in electronic format instructions on how records may be requested, id. §§ 552(a)(2), (g). Agencies "shall" also maintain records systems by which requesters can obtain status updates on pending requests.

Id. § 552(a)(7). Further, agencies "shall promulgate regulations" that "provid[e] for expedited processing of requests" when, for example, "the person requesting the records demonstrates a compelling need," and that "ensure" the agency makes such determination within ten business days. Id. § 552(a)(6)(E). Agencies are encouraged to "provid[e] for multitrack processing of requests." Id. § 552(a)(6)(D)(i). To assist in covering the costs of these requirements, agencies may impose reasonable fees for the processing of requests. Id . § 552(a)(4)(A).

Each agency also "shall designate" a Chief FOIA Officer, id. § 552(j), to monitor implementation of FOIA, keep government officials apprised of the agency’s performance, develop policy recommendations, and otherwise facilitate public understanding of FOIA’s exemptions, id. § 552(k). The officer, in turn, "shall designate" public liaisons responsible for "assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes." Id. §§ 552(k)(6), (l ). Congress also required that agencies "shall annually report" to it on the requests received, processing times, determinations made, administrative appeals, pending cases, and related information. Id. §§ 552(e), (k)(4)–(5).

Second, FOIA provides procedural protections for a member of the public requesting records from an agency. Upon a denial of a request, the requester may seek reconsideration by the head of the agency. Id. § 552(a)(6)(A)(i). Upon exhausting the administrative appeal, the requester may seek judicial relief. Id. §§ 552(a)(4)(B), (a)(6)(A)(ii). Exhaustion is excused when the agency fails to make a timely determination — that is, within the timetables established in § 552(a)(6) — whether to produce records or to withhold them pursuant to a statutory exemption. Id. § 552(a)(6)(C)(i). Judicial relief, in turn, may extend beyond requiring production to providing injunctive relief. Id. § 552(a)(4)(B).

In sum, FOIA "reflect[s] ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’ " Dep’t of Air Force v. Rose , 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting S. REP. No. 813, 89th Cong., 1st Sess., 3 (1965)). It "stand[s] in sharp relief against" the prior procedures under the Administrative Procedure Act, which were "generally recognized as falling short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute." EPA v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). FOIA "seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." Id. at 80, 93 S.Ct. 827. Congress’s use of the word "shall" in issuing directives to agencies in support of the overarching mandate to make records "promptly available," 5 U.S.C. § 552(a)(3)(A), instructs courts that Congress contemplated meaningful agency engagement upon receipt of a FOIA request. Agencies initially have a month to determine whether records can be made available in light of nine statutory exemptions, id. § 552(b)(1)–(9), and have several ways to obtain additional time to respond to requests. This engagement is premised on agencies improving records management systems to enable "prompt" responses. Congress underscored the importance it attached to prompt responses by allowing judicial recourse, bypassing administrative exhaustion, if an agency fails to meet statutory timetables for disclosure or to justify its delay in making nonexempt records available upon request. See Mink , 410 U.S. at 93, 93 S.Ct. 827 ; McGehee v. CIA , 697 F.2d 1095, 1101 (D.C. Cir. 1983).

The instant appeal brings into sharp focus the meaning of FOIA’s mandate that agencies "shall" make requested records "promptly available" under this two-part scheme. Between July 2014 and August 2015, Judicial Watch submitted nineteen FOIA requests to the Secret Service for records on public expenditures for travel by President Obama and the First Lady, Vice President Biden, and former President Carter. Upon acknowledging receipt of and assigning tracking numbers to 17 of the 19 requests, the Secret Service took no further action and stood mute. In November 2015 — between three and eighteen months after the Secret Service had received Judicial Watch’s records requests — Judicial Watch filed suit. Attached to its complaint was a chart showing as to each request that the Secret Service¹ had not made any of the requested records available nor advised Judicial Watch whether any records were exempt from disclosure. Citing the five lawsuits it had filed against the Secret Service in similar circumstances to obtain similar records, Judicial Watch alleged that "[t]he Secret Service regularly fails to issue determinations ... within the time period...