Cause of Action Inst. v. U.S. Dep't of Justice

• Decision Date: 01 June 2021
• Docket Number: No. 20-5182,20-5182
• Citation: 999 F.3d 696
• Parties: CAUSE OF ACTION INSTITUTE, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

999 F.3d 696

CAUSE OF ACTION INSTITUTE, Appellant

v.UNITED STATES DEPARTMENT OF JUSTICE, Appellee

No. 20-5182

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 2021

Decided June 1, 2021

Ryan P. Mulvey, Danbury, CT, argued the cause for appellant. With him on the briefs was R. James Valvo, III.

Casen B. Ross, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, and Daniel Tenny, Attorney.

Before: Rao and Walker, Circuit Judges, and Edwards, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge Rao.

Edwards, Senior Circuit Judge:

In December 2013, Appellant Cause of Action Institute submitted a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request to the Office of Information Policy ("OIP") in the Department of Justice ("DOJ") seeking access to specified DOJ records. OIP issued a "final response" to Appellant on January 30, 2018. Joint Appendix ("J.A.") 23. In that response, OIP indicated that it had "located 143 pages that contain[ed] records that [were] responsive to [Appellant's] request." Id . Appellant filed an administrative appeal claiming that DOJ had improperly segmented responsive records into what it claimed were multiple smaller "records" and, in doing so, improperly withheld information that was not otherwise exempt under FOIA. OIP denied the appeal.

At issue are three cover letters and four Questions for the Record ("QFR") documents that were identified by OIP as responsive to Appellant's FOIA request. The QFR documents are described in detail in part I.B., infra . Each QFR document contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ. Each document is self-contained, with a single, overarching heading identifying the contents of the document. The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages.

Although it is undisputed that OIP determined that the four QFR documents contained material responsive to Appellant's FOIA request, DOJ nonetheless removed pages and redacted material from the documents. DOJ does not claim that the pages that were removed or the material that was redacted are exempt from disclosure under FOIA. Rather, DOJ simply claims that these pages and material need not be disclosed to Appellant because they constitute "Non-Responsive Record[s]." See, e.g. , J.A. 36.

In October 2018, Appellant filed a suit in District Court, challenging DOJ's refusal to disclose the pages that had been deleted from the QFR documents and the questions and answers that had been redacted and labeled "Non-Responsive." Appellant also challenged DOJ's alleged policy or practice of segmenting one record into multiple records to avoid disclosure. The District Court largely upheld DOJ's actions and dismissed Appellant's policy or practice claim for lack of standing. See Cause of Action Inst. v. DOJ , 453 F. Supp. 3d 368, 378, 380 (D.D.C. 2020). Appellant now appeals.

On the record before us, we hold that DOJ's position is untenable. We therefore reverse the judgment of the District Court denying Appellant's request for disclosure of the QFR documents. This court has held that "once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record – i.e., as a unit – except insofar as the agency may redact information falling within a statutory exemption." Am. Immigr. Laws. Ass'n v. Exec. Off. for Immigr. Rev. ("AILA "), 830 F.3d 667, 677 (D.C. Cir. 2016) (citing 5 U.S.C. § 552(a)(3)(A), (b) ). This is because "FOIA calls for disclosure of a responsive record, not disclosure of responsive information within a record." Id. Each of the QFR documents at issue here constitutes a unitary record, as demonstrated by DOJ's own treatment of those documents. Therefore, DOJ violated the requirements of FOIA and the commands of AILA by withholding non-exempt information from within the responsive records. We reverse the District Court's judgment to the contrary. However, we dismiss Appellant's challenge to DOJ's alleged policy or practice as unripe.

I. BACKGROUND

A. Legal Background

1. FOIA

FOIA provides that "upon [receiving] any request for records " that reasonably describes the records and meets procedural requirements, agencies "shall make ... records promptly available." 5 U.S.C. § 552(a)(3)(A) (emphases added). "[O]nce the government concludes that a particular record is responsive to a disclosure request, the sole basis on which it may withhold particular information within that record is if the information falls within one of [FOIA's] statutory exemptions." AILA , 830 F.3d at 670.

FOIA's text provides little precise guidance on what constitutes a record, and no definition of that term. See id. at 678. However, 5 U.S.C. § 552(f)(2) states that " ‘record’ and any other term used in [the Act] in reference to information includes ... any information that would be an agency record ... when maintained by an agency in any format, including an electronic format." FOIA thus distinguishes between "records" and "information." See also, e.g. , 5 U.S.C. § 552(a)(8)(A) ("An agency shall ... consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible." (emphases added)); id. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted ... shall be indicated on the released portion of the record ." (emphases added)).

2. The AILA Decision

As noted above, in AILA , this court held that "once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record – i.e., as a unit – except insofar as" a statutory exemption applies. 830 F.3d at 677 (citation omitted). The court emphasized that "nothing in the statute suggests that the agency may parse a responsive record to redact specific information within it even if none of the statutory exemptions shields that information from disclosure." Id. This is because "FOIA calls for disclosure of a responsive record, not disclosure of responsive information within a record." Id.

The AILA court acknowledged that it had "no cause to examine" the "antecedent question of what constitutes a distinct ‘record’ for FOIA purposes," because the agency in that case had itself identified the relevant material as a responsive "record" and then redacted information from within the record. See id. at 678-79. The court thus declined "to consider the range of possible ways in which an agency might conceive of a ‘record.’ " Id. at 678.

The AILA decision offered some words of caution, however:

Insofar as the government in a different case might undertake to conceive of an individual "record" more narrowly, we note that, here, the agency's redactions on grounds of non-responsiveness went down to the level of an individual sentence within a paragraph within an email message. We find it difficult to believe that any reasonable understanding of a "record" would permit withholding an individual sentence within a paragraph within an email on the ground that the sentence alone could be conceived of as a distinct, non-responsive "record."

Id. at 679. Following the issuance of AILA , DOJ's Office of Information Policy updated its guidance on "Defining a ‘Record’ under the FOIA." DEP'T OF JUSTICE, OIP GUIDANCE: DEFINING A "RECORD" UNDER THE FOIA (updated Feb. 15, 2017), J.A. 64-66 ("OIP Guidance"). DOJ does not claim that the OIP Guidance has the force of law. Rather, it merely offers advice to agency officials regarding how they might handle FOIA claims.

B. Facts and Procedural History

Appellant Cause of Action Institute is a non-profit government oversight organization. In December 2013, Appellant submitted a FOIA request to OIP, seeking release of several categories of DOJ records. OIP and Appellant agreed in April 2016 that one portion of the request would cover "all communications between a Department political appointee and Members of Congress, their staff, or employees of the White House relating to grants of the Office of Justice Programs, Office on Violence Against Women, and Community Oriented Policing Services" and "records relating to Executive Order 13457." See J.A. 23. Executive Order 13,457 provides that "executive agencies should not commit, obligate, or expend funds on the basis of earmarks included in any non-statutory source, including requests in ... communications from or on behalf of Members of Congress," except in limited circumstances. Exec. Order No. 13,457, 73 Fed. Reg. 6,417, 6,417 (Jan. 29, 2008).

OIP initially identified 1,021 pages responsive to Appellant's request. OIP referred most of those pages to other units in DOJ for processing. OIP then issued a "final response" on January 30, 2018. This final response advised Appellant that OIP had:

located 143 pages that contain records that are responsive to your request. [We] have determined that thirty-two pages are appropriate for release without excisions, and one page is appropriate for release with excisions made pursuant to Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). Copies are enclosed. Please be advised that these pages also contained non-responsive records, which we have marked accordingly.

Furthermore, [we] have determined that seventy-one pages should be withheld in full pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5).

J.A. 23.

As noted above, three cover letters and four QFR documents are at issue in this case. These materials include:

(1) A letter dated January 4, 2011 from Assistant Attorney General Ronald Weich to John Conyers, Jr., Chairman of the U.S. House Committee on the

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