Judicial Watch, Inc. v. DHS, No. 16-5339, 2018 WL 3431725 (D.C. Cir. July 17, 2018) (Rogers, J.)

Judicial Watch, Inc. v. DHS, No. 16-5339, 2018 WL 3431725 (D.C. Cir. July 17, 2018) (Rogers, J.)

Re:  Request for records on expenditures of government funds on travel for the President, First Lady, Vice President, and a former President

Disposition:  Reversing district court's grant of government's motion to dismiss; remanding to the district court for further proceedings

• Litigation Considerations, Pleadings & Procedural Requirements:  "Between July 2014 and August 2015, [the requester] submitted nineteen FOIA requests to the Secret Service for records on public expenditures for travel by President Obama and the First Lady, Vice President Biden, and former President Carter."  "Upon acknowledging receipt of and assigning tracking numbers to 17 of the 19 requests, the Secret Service took no further action and stood mute."  "In November 2015 — between three and eighteen months after the Secret Service had received Judicial Watch's records requests — Judicial Watch filed suit."  The Court finds that, "FOIA lawsuits generally become moot once an agency has made available requested non-exempt records, whether voluntarily or after court order . . . [but] [t]his court has recognized an exception to mootness where an agency has a 'policy or practice' that 'will impair the party's lawful access to information in the future.'"  "Judicial Watch's policy or practice claim is based on the Secret Service's repeated, unexplained, and 'prolonged delay in making information available.'" 
  The Court finds that, "[g]iven the Secret Service's repeated, prolonged, and as yet unexplained delays in making requested non-exempt records available, it cannot be gainsaid that Judicial Watch alleges sufficient facts under Federal Rule of Civil Procedure 8(a)(2) and Supreme Court precedent to 'draw the reasonable inference' that the Secret Service has adopted a practice of delay, contrary to FOIA's two-part scheme, by repeatedly standing mute over a prolonged period of time and using Judicial Watch's filing of a lawsuit as an organizing tool for setting its response priorities."  "The conclusion that such 'unreasonable delay in disclosing non-exempt documents' is an 'abuse of [FOIA's] scheme' follows ineluctably from the recognition that 'Congress did not intend for the [agency] to use the FOIA offensively to hinder the release of non-exempt documents so as to force . . . the appellant . . . to bring several lawsuits to obtain release of the documents.'" 
  
  Finally, the Court finds that, "[u]nexplained agency delay still requires the district court to determine whether the agency's conduct in failing to conform to FOIA's procedural requirements demonstrates a lack of due diligence and is so delinquent or recalcitrant as to warrant injunctive relief because ordinary remedies, such as a production order . . . would be inadequate to overcome an agency policy or practice."  "When injunctive relief is sought, 'the necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive' . . . [f]actors to be 'considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance [of the violation] and, in some cases, the character of the past violations.'"  "In the FOIA context, 'the court's prime consideration should be the effect on the public of disclosure or non-disclosure.'"