Brennan Ctr. for Just. at NYU Sch. of L. v. DOC, No. 20-2674, 2020 WL 6381949 (D.D.C. Oct. 30, 2020) (Kelly, J.)

Brennan Ctr. for Just. at NYU Sch. of L. v. DOC, No. 20-2674, 2020 WL 6381949 (D.D.C. Oct. 30, 2020) (Kelly, J.)

Re:  Request for records concerning 2020 United States census

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

• Litigation Considerations, Preliminary Injunctions:  The court holds that "Plaintiff's Motion for Preliminary Injunction . . . will be granted in part."  First, the court finds that "[plaintiff] has established a likelihood of success that its requests are entitled to expedited processing based on either the 'widespread and exceptional interest' or the 'urgency to inform the public' ground."  The court notes that "Defendants do not contest [the majority of] [plaintiff's] assertion . . . they only contest it as to Part 4 [of the request which seeks] . . . records 'relating to the 2020 Census' to the extent 'there is any mention of, involvement in, or communication with' a list of individuals and organizations [plaintiff] believes may have been involved in the matters . . . ."  "Defendants argue that this request is 'far broader' than any 'widespread and exceptional' interests at stake."  "The Court disagrees."  "Although this part will capture a broader set of documents, it still seeks records 'relating to the 2020 Census,' . . . ."  Second, the court finds that "[plaintiff] has also shown a likelihood of success on the merits of the 'urgency to inform the public' ground for expedited processing of all parts of its requests."  "Defendants do not dispute [plaintiff's] status as an organization 'primarily engaged in disseminating information,' . . . and other courts have found that similar organizations meet this standard."  The court relates that "Defendants argue that [plaintiff] has not demonstrated there is 'urgency to inform the public concerning actual or alleged Federal Government activity' because [plaintiff] did not make its requests earlier, closer to when the President issued Executive Order 13880 . . . in July 2019."  "But the Court declines to weigh this timing against [plaintiff]."  "As [plaintiff] points out, if it had requested records shortly after the President issued that order, few responsive records would have existed."  "And nothing in the record suggests that [plaintiff] would have received expedited treatment a year ago and be much closer to receiving the records at issue had it requested them then."
  
  Moreover, the court finds that "this is the rare case where after a date certain, the value of the information sought by [plaintiff] to inform the public about these matters would be materially lessened or lost."  "And without a preliminary injunction ordering production by that date certain, based on the estimates provided by Defendants, [plaintiff] will not receive responses to its requests in time to contribute to the public debate and discussion."  "In contrast, [plaintiff] has not made the same showing as to Part 4 of its requests, even if Part 4 meets the statutory and regulatory requirements for expedition."  The court explains that "it has not shown that it is likely that a document responsive to Part 4 that is not responsive to Parts 1–3 would materially contribute to the debate and discussion about the topics they have identified."  "Thus, under these circumstances, and given Defendants' representations described below concerning the many other demands on their ability to process expedited FOIA requests, [plaintiff] has not shown that the 'as soon as practicable' standard requires processing of Part 4 by any date certain."  "Most importantly, Defendants' argument that the burdens of other FOIA requests prevent it from processing [plaintiff's] requests more quickly assumes that the requests remain in the 'first-in-first-out' expedited processing queue."  "But given that [plaintiff] has met its burden of showing that it is entitled to processing of its requests by a date certain, Defendants may, if necessary, move its requests to the front of the expedited processing line to comply with the Court's order that they be processed by then."
  
  Regarding irreparable harm, the court finds that "[plaintiff] has not shown that it will suffer irreparable harm if its requests are not processed by November 2, 2020, but it has shown that such harm will occur if it does not receive responses to Parts 1–3 of its requests in time to use them by January 25, 2021."  "This is so because . . . the records it seeks will become stale when the 2020 census and reapportionment process ends, upon the Clerk of the House of Representatives sending reapportionment certificates to the States."  "Thus, the harm would be beyond remediation because under current law the census and the reapportionment process – and the opportunity for the public to be informed about them while they are ongoing – would be over."  However, the court finds that "[plaintiff] has not shown that it will suffer irreparable harm if the Court does not order Defendants’ processing of its requests to conclude months in advance of the 'staleness date' to account for potential litigation over Defendants' withholdings."  Additionally, as described above, the court finds that "[plaintiff] has not carried its burden to show that it will suffer irreparable harm if Part 4 of its requests is not expedited or processed in time for it to use responsive records by January 25, 2021."
  
  Finally, the court finds that "[t]he balance of equities and the public interest here weigh in [plaintiff's] favor."  "Although Defendants will have to process and produce these records quickly, and face substantial backlogs, their burden is outweighed by [plaintiff's] pressing need for the information and the public interest in being informed on a matter – the 2020 census and reapportionment of seats in the House of Representatives – that is of 'the highest national concern.'"  Also, the court finds that "Defendants' suggestions that inadvertent release of exempted documents might occur are insufficient to tip the balance in its favor, especially when the Court is ordering processing to occur on a much more extended timeline than [plaintiff] requested."