Protect Democracy Project, Inc. v. U.S. Dep't of Def., Case No. 17–cv–00842 (CRC)

• Decision Date: 13 July 2017
• Docket Number: Case No. 17–cv–00842 (CRC)
• Citation: 263 F.Supp.3d 293
• Parties: PROTECT DEMOCRACY PROJECT, INC., Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

263 F.Supp.3d 293

PROTECT DEMOCRACY PROJECT, INC., Plaintiff,

v.U.S. DEPARTMENT OF DEFENSE, et al., Defendants.

Case No. 17–cv–00842 (CRC)

United States District Court, District of Columbia.

Signed July 13, 2017

Benjamin Leon Berwick, Allison F. Murphy, Washington, DC, for Plaintiff.

Kathryn Celia Davis, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

On April 6, 2017, President Trump ordered Tomahawk cruise missile strikes against a Syrian-government airbase. The next day, The Protect Democracy Project, Inc. ("Protect Democracy") submitted requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the Department of State, the Department of Defense, and three separate components of the Department of Justice, seeking documents relating to the President's legal authority to launch the strikes. The organization also sought expedited processing. About one month later, with none of the requested documents and with two of its expedited processing requests having been denied, Protect Democracy brought suit in this Court. It then moved for a preliminary injunction, seeking to compel all three agencies to process its requests on an expedited basis, and to produce all responsive records by a date certain. For the reasons that follow, the Court will grant the former relief but deny the latter.

I. Background

Agencies typically process FOIA requests in the order received, but FOIA's "expedited processing" provision recognizes that some requests are urgent enough to warrant a spot towards the front of the line. 5 U.S.C. § 552(a)(6)(E). As relevant here, the statute directs that requests should be expedited where the requester shows a "compelling need" for the records sought, id. § 552(a)(6)(E)(i)(I) —which is the case where the requester is "primarily engaged in disseminating information," and there is an "urgency to inform the public concerning actual or alleged Federal Government activity," id. § 552(a)(6)(E)(v). Once expedited, requests must be "process[ed] as soon as practicable." Id. § 552(a)(6)(E)(iii). Agencies have promulgated regulations implementing these provisions. See 28 C.F.R. § 16.5(e) (DOJ expedited processing regulations); 32 C.F.R. § 286.8(e) (DOD regulations); 22 C.F.R. § 171.11(f) (State regulations). Despite modest variations among the schemes, they are materially the same: Each at a minimum implements the "compelling need" standard. See 28 C.F.R. § 16.5(e)(1)(ii) ; 32 C.F.R. § 286.8(e)(1)(i) ; 22 C.F.R. § 171.11(f)(2).

On April 7, 2017, the day after the U.S. conducted the above-referenced military strikes against the Syrian government, Protect Democracy sent FOIA requests to the Department of State ("State"), the Department of Defense ("DOD"), and three components of the Department of Justice ("DOJ"): the Office of Information Policy, which processes FOIA requests for the Offices of the Attorney General and Deputy Attorney General; the Office of Legal Counsel; and the National Security Division. See Pl.'s Mem. Supp. Mot. Prelim. Inj. ("MPI"), Exs. A–E. The identical requests sought:

Any and all records [from April 4, 2017 through the present], including but not limited to emails and memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on Syria and/or the President's legal authority to launch such a strike. This request includes, but is not limited to, internal [agency] communications, communications between [agency] employees and the Executive Office of the President, and communications between [agency] employees and other agencies.

Pl.'s MPI, Ex. A, at 2. Protect Democracy also requested expedited processing, pointing among other things to the public's "immediate right to understand the administration's position with respect to the legality of the recent strike against Syria, and to assess whether that position is justified." Id. at 2–3. Citing its website and 501(c)(3) status, the organization also noted that its "request [was] submitted in consort with [its] mission to gather and disseminate information that is likely to contribute significantly to the public understanding of executive branch operations and activities." Id. at 3–4.

Over the next several weeks, each of the DOJ components granted Protect Democracy's requests for expedited processing. See Pl.'s MPI, Exs. F & G; Defs.' Mem. Opp'n Pl.'s MPI ("Defs.' Opp'n"), Ex. 1. At the same time, the DOJ components had not conducted even a preliminary search for relevant documents, and they offered no estimated processing timeline. For example, OIP indicated that it had "not yet completed a search to determine whether there are records within the scope of [the] request," and that the "time needed to process [the] request [would] necessarily depend on the complexity of our records search and on the volume and complexity of any records located." Pl.'s MPI, Ex. F. DOD and State, on the other hand, denied the expedition requests, summarizing the relevant regulations but not explaining how Protect Democracy's request fell short of those standards. See MPI, Exs. I & J.

On May 8, roughly one month after submitting its requests, Protect Democracy brought suit in this Court, alleging FOIA violations. See Pl.'s Compl., ECF No. 1. Two weeks after that, before Defendants had responded to the Complaint, Protect Democracy moved for a preliminary injunction that would "compel all Defendants to process its FOIA requests on an expedited basis, and produce all requested records (or acknowledge if there are no such records)" within a date certain. Pls.' MPI 2. Defendants opposed the motion, and the Court held a hearing.

II. Legal Standard

"A [party] seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) ). "[I]t is especially important for the movant to demonstrate a likelihood of success on the merits." Nat'l Head Start Ass'n v. U.S. Dep't of Health & Human Servs., 297 F.Supp.2d 242, 246 (D.D.C. 2004) (citing Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360, 366 (D.C. Cir. 1999) ). A preliminary injunction is an "extraordinary" remedy, and so "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995) ).

III. Analysis

When brought under FOIA, preliminary injunction motions generally present one of two questions. First, has the relevant agency appropriately denied a request for expedited processing? See, e.g., Progress v. Consumer Fin. Prot. Bureau, No. 17-686, 2017 WL 1750263 (D.D.C. May 4, 2017) ; Wadelton v. Dep't of State, 941 F.Supp.2d 120 (D.D.C. 2013) ; Landmark Legal Found. v. EPA, 910 F.Supp.2d 270 (D.D.C. 2012). Second, assuming a request should be expedited, is the agency processing it as quickly as "practicable," 5 U.S.C. § 552(a)(6)(E)(iii) ? See, e.g., Daily Caller v. U.S. Dep't of State, 152 F.Supp.3d 1 (D.D.C. 2015) ; Elec. Privacy Info. Ctr. v. Dep't of Justice, 416 F.Supp.2d 30 (D.D.C. 2006). Protect Democracy's motion implicates both questions. The Court will evaluate each in turn, according to the four preliminary injunction factors.

A. Whether Processing Should Be Expedited

1. Likelihood of Success on the Merits

The Court first asks whether Protect Democracy is likely to succeed on the merits of its claim that its requests are entitled to expedited processing. Because the DOJ components have already granted Protect Democracy's expedition requests, only DOD's and State's denials remain relevant to this issue. A decision denying expedited processing is reviewed by the courts de novo , Al–Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001), "based on the record before the agency at the time of the determination," 5 U.S.C. § 552(a)(6)(E)(iii). Recall that, under FOIA, requests should be expedited where the requester shows a "compelling need" for the relevant information, 5 U.S.C. § 552(a)(6)(E)(i)(I), meaning that (1) the requester is "primarily engaged in disseminating information" and (2) there is an "urgency to inform the public concerning actual or alleged Federal Government activity," id. § 552(a)(6)(E)(v).

Consider first the requirement that a requester be "primarily engaged in disseminating information." As suggested by the statute's plain meaning and legislative history, the standard "requires that information dissemination be the main [and not merely an incidental] activity of the requestor." Progress, 2017 WL 1750263, at *3 (quoting Landmark Legal, 910 F.Supp.2d at 276 ). On the other hand, publishing information "need not be [the organization's] sole occupation." Id. The Court easily finds that, with its representations to DOD and State, Protect Democracy satisfied these standards. The organization noted in both requests that it "intend[ed] to disseminate the information obtained"; that its "core mission ... is to inform public understanding on operations and activities of government," including by "gather[ing] and disseminat[ing] information that is likely to contribute significantly to the public understanding of executive branch operations and activities"; and that it "intend[ed] to give the public access to documents transmitted via FOIA on [its] website." Pl.'s MPI, Exs. D, E at 2–4. These representations likely established that Protect Democracy is "primarily engaged in disseminating information." 5 U.S.C. § 552(a)(6)(E)(v).

The Court turns next to whether Protect Democracy's request...