Bayala v. DHS, No. 14-5279, 2016 WL 3524098 (D.C. Cir. June 28, 2016) (Millett, J.)

Bayala v. DHS, No. 14-5279, 2016 WL 3524098 (D.C. Cir. June 28, 2016) (Millett, J.)

Re: Request for records concerning requester's asylum application

Disposition: Reversing district court's grant of defendant's motion for summary judgment and remanding case

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The Court of Appeals for the District of Columbia Circuit holds that, "[w]hile the Department is correct then that any dispute over the earlier withholding of the documents that the Department has now turned over is moot, the entire FOIA case is not moot because [the requester] has not received all of the documents that he requested."  The court explains that "[s]hortly after [the requester] filed suit . . . the Department reversed course and spontaneously released a number of previously withheld documents, while offering a heavily revamped explanation for its remaining withholdings."  However, the court finds that "[the requester's] FOIA request sought, among other things, 'a copy of the Assessment to Refer of the Asylum Officer.'"  "As of this date, [the requester] has not yet received that document and, accordingly, there is still a live controversy over whether the Department may lawfully withhold that document."  The court also notes that while "[t]he Department cited the exemption for internal agency memoranda privileged by law from public disclosure, 5 U.S.C. § 552 (b)(5)" to "defend[] its decision to omit the Assessment from its more recent tranche of disclosures[,]" "the propriety of that withholding determination has not yet been adjudicated and is very much contested, so this FOIA case is not moot."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the District of Columbia Circuit holds that "[t]he Department's argument that exhaustion of its original administrative decision was required . . . became moot once it chose to abandon its previous determination, make a sua sponte disclosure of documents, and craft a new, five-page-long explanation for this different withholding decision in the district court, the content and specificity of which went far beyond the original, perfunctory administrative decision."  "That new FOIA determination rendered the propriety of the original agency decision – and any administrative challenges to it – an entirely academic question."  "Instead, once the government abandoned its original FOIA decision, the dispute between the parties centered on the correctness of the Department's materially novel and different in-court disclosure decision."  "There is no required administrative exhaustion process for that in-court litigation decision."  "The government, for its part, cites no authority – and we can conceive of none – for compelling a FOIA claimant to administratively exhaust a decision that the agency no longer stands by and that has been overtaken by new and different in-court disclosures and explanations."