Am. Ctr. for Law & Justice v. Dep't of State, No. 16-2516, 2017 WL 1377909 (D.D.C. Apr. 17, 2017) (Boasberg, J.)

Am. Ctr. for Law & Justice v. Dep't of State, No. 16-2516, 2017 WL 1377909 (D.D.C. Apr. 17, 2017) (Boasberg, J.)

Re: Request for records concerning funding of organization that opposed Israeli Prime Minister Benjamin Netanyahu during that country's 2015 elections

Disposition: Granting defendant's partial motion to dismiss

• Litigation Considerations, Pleadings: The court holds that "[w]hile [plaintiff] has shown that State is indeed slow, Plaintiff has not plausibly alleged that the government subscribes to some policy or practice of slow-walking its requests for information." First, the court finds that "[t]he aspects of Plaintiff's Complaint premised on delay alone are . . . fatally flawed." The court explains that, "while tardiness would violate FOIA, it only becomes actionable when 'some policy or practice' also undergirds it." "This aligns with the rule that the sole 'penalty' for mere procrastination is that 'the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court.'" Second, the court finds that "unless [plaintiff] can show that sending out receipt letters that comply with FOIA is somehow tantamount to violating the Act – whether it be by causing delay or something else – its attack on this aspect of the agency-disclosure process falls flat." The court explains that "State's acknowledgment letters do what the Act mandates." "Each letter informs the requestor of its case number, the agency's date of receipt, and contact information for any inquiries." "[Plaintiff] does not assert that these letters were somehow shams and that State is instead buying time." "Nor does it contend that something in these missives gives individuals a false hope that the agency will be timely, leaving them in a lurch while it dilly-dallies." Third, the court finds that "this Complaint does not sufficiently identify a policy or practice of compelling lawsuits." The court explains that "[e]ven if some dash of State's lawsuit-inducing behavior is present, the dish that [plaintiff] assembles does not pass the taste test." "Although individuals may choose to sue following agency inaction, . . . once again, Plaintiff does not express in its Complaint that State's policy or practice is to force lawsuits." Finally, the court finds that "[e]ven if [plaintiff] were to succeed on this specific cause of action, that would not necessarily earn the organization the broad declaratory and injunctive relief that it seeks." "The D.C. Circuit has recently held that, in a FOIA case, the Court likely has no power to enjoin the government from engaging in a policy or practice of delayed disclosure writ large, but can only order the agency to cease any actions vis-à -vis the plaintiffs in the lawsuit."