Documented NY v. United States Dep't of State
| Decision Date | 16 September 2021 |
| Docket Number | 20-CV-1946 (AJN) |
| Parties | Documented NY, Plaintiff, v. United States Department of State, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Documented NY on September 17, 2020, filed its second motion to expedite the U.S. Department of State's production of documents in response to Plaintiffs outstanding request under the Freedom of Information Act. State in its latest status update committed to processing 300 pages each month. Plaintiff most recently requested that the remaining 2, 600 pages be produced by November 30, 2021, and that all three Defendants produce Vaughn indices by December 15 2021, so that Plaintiff may consider any challenges to State's exemptions and the adequacy of its search. For the reasons that follow, the Court denies in part Plaintiffs motion and orders State to process a minimum of 400 pages of documents each month.
On October 4, 2019, President Trump issued Proclamation 9945 which suspended the entry of any immigrant that could not demonstrate the means to obtain private health insurance within 30 days of arriving in the United States. Proclamation No. 9945, 84 Fed. Reg. 53, 991 (October 4, 2019). The proclamation was enjoined on November 3, 2019, before it went into effect. Doe #1 v. Trump, 414 F.Supp.3d 1307 (D. Or. 2019) (); Doe v. Trump, 418 F.Supp.3d 573 (D. Or. 2019) ().[1] President Biden later revoked the proclamation on May 14, 2021. Proclamation No. 10209, 86 Fed. Reg. 27, 015 (May 14, 2021).
Plaintiff is a non-profit news site that covers, among other topics salient to New York City's immigrant population, changes in federal immigration policy. Complaint at 3-4, Dkt. No. 6. Its coverage has included reporting on the effects of Proclamation 9945.[2]
On November 21, 2019, Plaintiff submitted a FOIA request to the U.S. Department of State, the U.S. Department of Health and Human Services, and the Office of Management of Budget, for records pertaining to Proclamation 9945 and requested that it receive expedited processing. Schwarz Decl., Ex. 1, Dkt. No. 21. State denied the expedited-processing request on February 24, 2020. Id.
Plaintiff on March 4, 2020, filed the present action against the Defendant agencies as authorized by 5 U.S.C. § 552(a). On July 16, 2020, it filed a motion to expedite State's release of documents responsive to its FOIA requesting, seeking the production of 3, 000 pages in the first two weeks and 2, 500 pages each following month. PI. First Motion, Attach. 1, Dkt. No. 19; PI. Br. at 9, Dkt. No. 20.[3] State filed an opposition, suggesting it instead process 300 pages per month, State First Resp., Dkt. No. 22, and Plaintiff filed a reply, PI. First Reply, Dkt. No. 24. The Court on July 28, 2020, denied Plaintiffs motion and adopted State's 300-page monthly target, emphasizing the constraints that the COVID-19 pandemic had imposed on State's production capacity. Dkt. No. 26. The Court also ordered that State file a status update in September. Id.
On September 11, 2020, State explained that it could process only 200 pages each month because of constraints imposed by obligations in other FOIA litigation and the COVID-19 pandemic as well as due to the time-consuming nature of the documents that Plaintiff requested. First Status Update, Dkt. No. 27. This update prompted Plaintiff to file a second motion to expedite, this time requesting that the Court order State "either to produce 1000 pages per month or to process 1500 pages per month," and that State produce a Vaughn index so that Plaintiff may challenge State's exemptions. Second Motion at 2, Dkt. No. 28. The motion is fully briefed. State Second Resp., Dkt. No. 30; PI. Second Reply, Dkt. No. 32.
The Court on August 26, 2021, ordered State to file a second status update, which it did on September 3, 2021. Dkt. No. 38. State explained that its production capacity continued to be limited by its obligations in other litigation and by the COVID-19 pandemic, but that it had met or exceeded its 200-page processing commitment each month since its first status update, and that it could now commit to its typical pre-pandemic rate of processing 300 pages per month. Second Status Update at 2-3 & nn.2, Dkt. No. 39. At that pace, with approximately 2, 600 pages of potentially responsive documents left to process, State estimated that it would complete processing by May 31, 2022. Id. at 3. Plaintiff filed a reply, requesting that all 2, 600 remaining pages be processed and produced by November 30, 2021, and that all three Defendants produce Vaughn indices by December 15, 2021. PI. Third Reply, Dkt. No. 40.
Generally, a plaintiff seeking expedited processing of a FOIA request must demonstrate a "compelling need." 5 U.S.C. § 552(a)(6)(E)(i).[4] A compelling need can be shown either when "failure to obtain requested records on an expedited basis . . . could reasonably be expected to pose an imminent threat to the life or physical safety of an individual," or when the plaintiff is "primarily engaged in disseminating information" and there is "urgency to inform the public concerning actual or alleged Federal Government activity." Id. §§ 552(a)(6)(E)(v)(I)-(II).
If expedited processing is warranted, the agency "shall process [the request] as soon as practicable." Id. § 552(a)(6)(E)(iii). This requirement does not impose on the agency "any particular timeframe to release ... the records sought" but rather "moves the plaintiffs request 'to the front of the agency's processing queue.'" Landmark Legal Found, v. E.P.A., 910 F.Supp.2d 270, 275 (D.D.C. 2012) (quoting Leadership Conf. on C.R. v. Gonzales, 404 F.Supp.2d 246, 259-60 (D.D.C. 2005)). In opposing a plaintiffs motion to expedite the processing rate, the agency bears the burden of presenting "credible evidence that disclosure within such time period [requested by the plaintiff] is truly not practicable." Brennan Ctr. for Just. At N.Y. Univ. Sch. of L. v. U.S. Dep't of State, 300 F.Supp.3d 540, 549 (S.D.N.Y. 2018) ). Courts consider, for example, evidence of the agency's resource constraints, obligations to other FOIA requests, whether the request implicates sensitive or confidential materials, and whether there is evidence that the agency is not representing its capacity in good faith. See Elec. Priv. Info. Ctr. v. Dep't of Just, 15 F.Supp.3d 32, 43 (D.D.C. 2014); Elec. Priv. Info. Ctr., 416 F.Supp.2d at 40 (); cf. Brennan Ctr. for Just, 300 F.Supp.3d at 549-50 ().[5]
Plaintiff argues that it has a "compelling need" to receive the documents it has requested, entitling it to expedited processing, PI. Br. at 7-9; PI. First Reply at 2-5, and that State's rate of processing 300 pages each month is not "as soon as practicable," even taking account of the COVID-19 pandemic, Second Motion at 1-2; PI. Second Reply at 1-2. Related to its expedited-processing request, Plaintiff also requests that each Defendant produce a Vaughn index of its production. PI. Third Reply.
State does not dispute that Plaintiff satisfies two of the three requirements of a "compelling need" because Plaintiff is primarily engaged in disseminating information to the public and its request for documents relating to Presidential Proclamation 9945 concerns a federal government activity. See Landmark Legal Found., 910 F.Supp.2d at 275 (). Instead, State contests that there is adequate "urgency to inform the public." State First Resp. at 9 (quoting 5 U.S.C. § 552(a)(6)(E)(v)(II)); State Second Resp. at 2.
Courts construe urgency narrowly, as defined by three factors: (1) "whether the request concerns a matter of exigency to the American public; (2) whether the consequences of delaying a response would compromise a significant recognized interest; and (3) whether the request concerns federal government activity." Bloomberg, L.P. v. U.S. Food & Drug Admin., 500 F.Supp.2d 371, 377 (S.D.N.Y. 2007) .
The Court has serious doubts that Plaintiffs request demonstrates the adequate urgency. Proclamation 9945 was enjoined before going into effect and that injunction had been in place for nearly three weeks before Plaintiff submitted its FOIA request to Defendants. See Doe #1, 414 F.Supp.3d at 1319 (Proclamation 9945 enjoined November 3); Schwarz Decl., Ex. 1 (FOIA request submitted November 21). That injunction was still in place when Plaintiff filed its second motion to expedite. And Proclamation 9945 has since been revoked by President Biden. While the Court agrees that, as Plaintiff has shown, Proclamation 9945 is both newsworthy and of importance to the general public, Plaintiffs request likely does not implicate the level of exigency necessary to compel expedited processing. See Al-Fayed, 254 F.3d at 310 ("Although these topics may continue to be newsworthy, none of the events at issue is the subject of a currently unfolding story."); Wadelton v. Dep't of State, 941 F.Supp.2d 120, 123 (D.D.C. 2013) (collecting cases).
As of the latest status update, there is still considerable distance between the parties' proposals. State expressed a commitment to process 300 pages of documents each month which it contends was its standard...
To continue reading
Request your trial