Am. Ctr. for Law & Just. v. FBI, No. 19-2643, 2020 WL 3605624 (D.D.C. July 2, 2020) (Contreras, J.)

Am. Ctr. for Law & Just. v. FBI, No. 19-2643, 2020 WL 3605624 (D.D.C. July 2, 2020) (Contreras, J.)

Re:  Three requests for records concerning meeting between former President and Attorney General, records concerning possible criminal charges against former Secretary of State, and all emails of former FBI director within a particular period

Disposition:  Granting defendant's partial motion to dismiss

• Litigation Considerations, Pattern-or-Practice Claims:  "[T]he Court will grant Defendant's motion and dismiss the policy-or-practice claim."  The court alleges that "'[t]he FBI has adopted and is engaged in a policy and practice of violating FOIA's procedural requirements when processing FOIA requests by intentionally refusing to produce all non-exempt documents in the manner required under 5 U.S.C. § 552(a)(6) and unless and until Plaintiff files suit.'"  "The Court is not convinced that these episodes allow the required inference."  "First, [plaintiff's] three prior examples each implicate requests of strikingly different subject matter and scope . . . ."  "To be sure, the Circuit has never articulated a 'single subject' or 'single type of request' requirement for a policy-or-practice claim."  "But the similarity of the underlying requests is a factor courts take into consideration, as it suggests that the agency's behavior stems from a considered decision (for example, the applicability of a particular exemption to a particular category of documents) rather than isolated mistakes."  "Second, the FBI's behavior across each of the three episodes was not uniform, and [plaintiff's] complaint does not consistently identify or describe the offensive practice."  "Certainly, an agency's behavior need not be entirely consistent to support a policy-or-practice claim."  "But here, particularly in light of the small sample size, the variation in the three cases cuts against an inference that the FBI is acting pursuant to an informal or formal policy and, by definition, undermines the contention that the FBI is engaged in a persistent practice."  The court relates that "[plaintiff's] response, in essence, is to describe the FBI's behavior at a higher level of generality."  "[Plaintiff's] argument boils down to the contention that the FBI, like many agencies engaged in repeat litigation with regular FOIA litigants, has violated FOIA multiple times in different ways in response to three novel kinds of requests."  "To the Court's knowledge, an agency policy or practice has never been inferred from such a diversity of conduct."  "[Plaintiff's] most plausible argument rests on the idea that Judicial Watch makes persistent or prolonged delay itself actionable, regardless of the kind of request or reason for the delay."  "And while the complaint characterized the FBI's missteps in different ways, there is a modest pattern of delays across the three episodes:  the FBI did not issue a determination as to any of the three requests within the statutorily-required time period, and, in all three cases, only started producing documents after lawsuits were filed."  The court finds that "there is little, if anything, beyond the delays themselves that 'could signal the agency has a policy or practice of ignoring FOIA's requirements.'"  "In declining to recognize a policy-or-practice claim here, the Court does not mean to endorse or excuse the FBI's alleged noncompliance."  "But FOIA offers its own mechanism for disciplining an agency’s unjustified conduct in individual cases: fee awards."  "This counsels against inferring a policy or practice from a small number of episodes."