Protect Democracy Project, Inc. v. U.S. Dep't of Justice
| Decision Date | 30 October 2020 |
| Docket Number | Civ. Action No. 20-2810 (EGS) |
| Parties | The PROTECT DEMOCRACY PROJECT, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
David Stanley Frankel, Pro Hac Vice, Harry Pattridge Morgenthau, Pro Hac Vice, Daniel I. Sugarman, Pro Hac Vice, Kramer Levin Naftalis & Frankel LLP, New York, NY, Laurence M. Schwartztol, Protect Democracy Project, Watertown, MA, for Plaintiff.
Indraneel Sur, U.S. Department of Justice, Washington, DC, for Defendant.
Plaintiff The Protect Democracy Project ("Protect Democracy")—a nonpartisan non-profit organization that "seeks to inform the public's understanding of government operations and activities, including the conduct of elections" by "gathering and disseminating information that is likely to contribute significantly to the public's understanding of executive branch operations and activities"—brings this lawsuit against Defendant United States Department of Justice ("DOJ"). See Compl., ECF No. 1 ¶ 10.1 Protect Democracy alleges that DOJ has failed to comply with its duties under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. See id. ¶¶ 45-47. Protect Democracy seeks a preliminary injunction ordering DOJ to "process Plaintiff's FOIA request on an expedited basis" and to "produce, by a date certain set by this Court, all non-exempt records responsive to Protect Democracy's FOIA request for ‘[a]ny and all communications with individuals in the United States Postal Inspection Service regarding participation in any DOJ voting or voting fraud task force,’ or, if no such records exist, an acknowledgment to that effect." See Pl.’s Mot. Prelim. Inj., ECF No. 16 at 1.2
Upon consideration of the Plaintiff's motion, the response, the reply thereto, the applicable law, and the entire record, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion.
FOIA provides a "statutory right of public access to documents and records" held by federal government agencies. Pratt v. Webster , 673 F.2d 408, 413 (D.C. Cir. 1982). Pursuant to FOIA, agencies are directed to determine within 20 business days whether to comply with requests it receives and to notify immediately the person making the request of such determination and of the reasons for the determination. 5 U.S.C. § 552(a)(6)(A)(i) ; see also Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n , 711 F.3d 180, 188 (D.C. Cir. 2013) ("CREW ") (). If "unusual circumstances" exist, as defined by the statute, this deadline may be extended for an additional ten days by providing written notice to the person or entity placing a request. 5 U.S.C. § 552(a)(6)(B)(i). If the agency fails to comply with the statutory time requirements, the person or entity making the request may file suit in federal court before exhausting administrative remedies. Id. § 552(a)(6)(C)(i). The court then may either order the production of any agency records improperly withheld or, upon a finding of "exceptional circumstances" and "due diligence" by the agency, retain jurisdiction and allow the agency additional time to complete its review of the requested records. Id.
Agencies typically process FOIA requests for records in the order in which the agency receives them. See, e.g. , 28 C.F.R. § 16.5(a) (); see also Open Am. v. Watergate Special Prosecution Force , 547 F.2d 605, 614-16 (D.C. Cir. 1976). But FOIA also provides for expedited processing of requests for agency records, directing agencies to "process as soon as practicable any request for records to which [they have] granted expedited processing." 5 U.S.C. § 552(a)(6)(E)(iii). Expedition is available for requests: "(I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency." Id. § 552(a)(6)(E)(i). The FOIA expedited processing provision was added in 1996 by the Electronic Freedom of Information Act Amendments, Pub. L. 104–231, § 8, 110 Stat. 3048, 3051–52. The United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"), in examining the legislative history of these amendments, has noted that "the specified categories for compelling need are intended to be narrowly applied." Al–Fayed v. CIA , 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R. Rep. No. 104–795, at 26 (1996), 1996 U.S.C.C.A.N. 3448, 3469). When a request for expedited processing is filed, the agency has 10 days from receipt of the request to determine whether to grant the request for expedition. See 5 U.S.C. § 552(a)(6)(E) (ii)(I).
On July 17, 2020, Protect Democracy sent DOJ's Office of Information Policy ("OIP"), Civil Rights Division, and Criminal Division a FOIA request seeking "[a]ny and all communications with individuals in the United States Postal Inspection Service [("USPIS")] regarding participation in any DOJ voting or voting fraud task force." See Ex. A to Pl.’s Mot., ECF No. 16-4 at 2. Protect Democracy stated that its request "relates to potential political interference by the Department of Justice with the U.S. Postal Service's preparations for processing the anticipated surge in voting by mail in light of the COVID-19 pandemic—an issue of utmost importance to the public." Id. at 3. The organization noted its concern regarding recent remarks made by President Donald J. Trump and Attorney General William Barr, which Protect Democracy interpreted as "undermining public confidence" in voting by mail, among other things. Id. at 3-4. Protect Democracy also asserted that the situation was made more urgent because, "[e]ven without DOJ interference, the USPS is at risk of falling fall short of carrying out its crucial responsibility in the upcoming election." Id. at 4. Protect Democracy requested the records within the time period of "March 1, 2020 through the date that the searches are conducted for records responsive to this FOIA request." Id. at 3. It also requested that the relevant DOJ divisions search for records from "all components of the Department of Justice that may be reasonably likely to produce responsive results, including but not limited to the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of the Associate Attorney General, the Civil Rights Division, and the Criminal Division." Id.
Protect Democracy requested expedited processing of its FOIA request under 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 16.5(e) because, according to Protect Democracy, the subject matter "concerns ‘[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence,’ 28 C.F.R. § 16.5(e)(1)(iv), and because there is an urgent need ‘to inform the public about an actual or alleged Federal Government activity’ and the request is ‘made by a person who is primarily engaged in disseminating information,’ 28 C.F.R. § 16.5(e)(1)(ii)." Id.
DOJ's Civil Rights Division responded to Protect Democracy's FOIA request on July 22, 2020. Ex. B to Pl.’s Mot., ECF No. 16-5 at 2. The Civil Rights Division wrote that it "was extending the time limit to respond to [Protect Democracy's] request beyond the ten additional days provided by the statute" pursuant to 5 U.S.C. § 552(a)(6)(B)(i)-(iii). Id. at 3. The Civil Rights Division did not inform Protect Democracy whether it would grant expedited consideration of the FOIA request. On October 23, 2020, the Civil Rights Division sent Protect Democracy a letter stating that the searches had been conducted and no responsive records were found. Ex. A to Sur Suppl. Decl., ECF No. 23-1.
DOJ's OIP also responded to Protect Democracy on July 22, 2020. Ex. C to Pl.’s Mot., ECF No. 16-6 at 2. OIP handles FOIA requests for three of the entities from which Plaintiffs seek records: the Office of the Attorney General, Office of the Associate Attorney General, and Office of the Deputy Attorney General. Def.’s Opp'n, ECF No. 21 at 10. OIP denied Protect Democracy's request for expedited processing. Ex. C to Pl.’s Mot., ECF No. 16-6 at 2-3. Similar to the Civil Rights Division, OIP also cited to 5 U.S.C. § 552 (a)(6)(B)(i)-(iii) and informed Protect Democracy that due to "unusual circumstances," OIP "w[ould] need to extend the time limit to respond to [Protect Democracy's] request beyond the ten additional days provided by the statute." Id. On October 20, 2020, OIP sent Protect Democracy a letter stating that the searches had been conducted and "no records responsive to your request were located." Ex. A to Sur Decl., ECF No. 21-1 at 3.
On July 27, 2020, DOJ's Criminal Division responded to Plaintiff's FOIA request and denied expedited processing. Ex. B to Butler Decl., ECF No. 21-2 at 24-25. The Criminal Division is conducting an "initial search" of email communications, and the search is still in progress. Butler Decl., ECF No. 21-2 ¶ 9. The Criminal Division remains the only DOJ entity to have not completed the processing of Protect Democracy's FOIA request.
On October 2, 2020, Protect Democracy filed its lawsuit against DOJ, Compl., ECF No. 1, and subsequently moved for a preliminary injunction on October 9, 2020, Pl.’s Mot., ECF No. 16. DOJ filed its opposition on October 20, 2020, Def.’s Opp'n, ECF No. 21, and Protect Democracy filed its reply on October 23, 2020, Pl.’s Reply, ECF No. 24. The motion...
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