Am. Oversight v. Dep't of State, No. 19-2934, 2019 WL 5665930 (D.D.C. Oct. 25, 2019) (Cooper, J.)

Am. Oversight v. Dep't of State, No. 19-2934, 2019 WL 5665930 (D.D.C. Oct. 25, 2019) (Cooper, J.)

Re:  Request for records concerning communications between senior State Department officials and President's personal lawyer, as well as between State Department officials and White House, regarding recall of former Ambassador to Ukraine

Disposition:  Granting in part plaintiff's motion for preliminary injunction

• Litigation Considerations, Preliminary Injunctions:  First, the court finds that "[plaintiff] is likely to succeed on the merits."  The court explains that "[t]he requests at issue have sat without a determination for five months."  "And now that State has agreed that the requests should be expedited, it is required to issue a determination (and produce non-exempt responsive documents) even more quickly."  "Because State has missed the statutory deadlines, [plaintiff] is certain to succeed on the merits of its claim that State owes it a determination on its requests."  "And since disclosure of non-exempt documents must follow shortly thereafter, the Court may order those disclosures at the same time under its customary supervisory authority in FOIA matters."  Second, the court finds that "[plaintiff] is also likely to suffer irreparable harm if processing of at least some aspects of its requests is not completed by the end of the ongoing impeachment process."  "The records it seeks (and has committed to disclosing to the public) potentially go to the heart of one of the issues that the Congress is considering . . . ."  "Time is clearly of the essence here."  "The impeachment inquiry is in full swing[] and, as noted above, congressional leaders expect it to conclude by Christmas."  "The likely irreparable harm to [plaintiff] also stems from the fact that, if non-exempt responsive records exist, the public may not otherwise have access to them."  "Congress has sought similar – if not identical – documents through subpoenas to the State Department."  "Congress may not get them, however, as the White House has indicated that the Administration 'cannot participate' in the impeachment inquiry out of purported concerns about the inquiry's partisanship and constitutionality."  "And even if Congress were to obtain the subpoenaed records, there is no assurance that they would be made public."  Discussing the public interest and balancing the equities, the court finds that "[t]his is the extraordinary case where the public interest favors placing [plaintiff's] requests ahead of other requests in the State Department's FOIA queue."  "Presidential impeachment investigations are solemn affairs, which Congress thankfully has seen fit to undertake only a few times in the Nation's history."  "The records [plaintiff] seeks, if they exist, could directly inform the present investigation and the surrounding public debate."  "The public's interest in disclosure of responsive, non-exempt records is therefore high and outweighs any harm to other FOIA requesters that might result from a temporary diversion of the State Department's FOIA resources to accelerate processing of this request."  "That said, the Court appreciates that the Department faces a substantial FOIA backlog, including numerous other Ukraine-related requests that post-date [plaintiff's]."  "It will therefore order the parties to meet and confer in an effort to narrow the specific requests so as reduce the number of records that will require accelerated processing."