Brennan Ctr. for Justice at N.Y. Univ. Sch. Of Law v. Dep't of State, No. 17-7520, 2018 WL 369783 (S.D.N.Y. Jan. 10, 2018) (Gardephe, J.)

Brennan Ctr. for Justice at N.Y. Univ. Sch. Of Law v. Dep't of State, No. 17-7520, 2018 WL 369783 (S.D.N.Y. Jan. 10, 2018) (Gardephe, J.)

Re: Request for records concerning President Trump's September 24, 2017 Proclamation entitled "'Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats"'

Disposition: Granting plaintiff's motion to expedite

• Litigation Considerations & Procedural Requirements, Expedited Processing:  "Because (1) Plaintiff has demonstrated that its FOIA request merits expedited treatment, and (2) Defendant has not rebutted the presumption of agency delay, [the court holds that] Plaintiff's motion to expedite will be granted."  The court first notes that "'there is no dispute that [Plaintiff's] FOIA requests are entitled to expedited processing,' because the State Department conceded that Plaintiff's FOIA request 'warrant[s] expedited processing.'"  "Moreover, given the 'great public and media attention that the Government's [entry restrictions] have garnered[,]' the public interest is served 'by the expedited release of the requested documents [.]'"  "Accordingly, what remains in dispute is (1) whether Plaintiff’s proposed 21-day production schedule is 'practicable' under 5 U.S.C. § 552(a)(6)(E)(iii), and (2) whether Plaintiff's request for production of a Vaughn index within 28 days is premature."  The court finds that "[i]t has now been nearly six months since Plaintiff's FOIA request was submitted, and nothing has been produced. Nor is there any schedule for production."  "Accordingly, the presumption of agency delay applies."  "Moreover, Defendant has not offered evidence rebutting the presumption of agency delay."  "As an initial matter, Defendant cannot evade responsibility for failing to produce the requested records by referring the request to DHS or other Executive Branch components for review."  "It is well-settled that the referring agency 'is ultimately responsible for processing responsive records in its custody and control at the time of the FOIA request, [and that] a referral of records could constitute an improper withholding if the "net effect [of the referral procedure] is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them."'"  "Moreover, Defendant's claim that Plaintiff's request is 'broad and complex,' and 'burdensome' in light of the State Department's backlog of FOIA requests, . . . is not supported by the record."  "Here, the State Department has had nearly six months to respond to Plaintiff's FOIA request."  "Given that the documents at issue 'have been produced to others, [and] . . . are known to exist, degrees of classification have [presumably] been determined for many of them.'"  Additionally, "Defendant's argument that production of a Vaughn index is premature prior to summary judgment is not persuasive."  The court explains that "it is well-established that '[a]gainst the backdrop of the anti-delay policy of FOIA, district courts . . . balance[ ] the same equities pertinent to the timing of a response to a FOIA document request in their determinations of the appropriate timing of a response to a Vaughn index request.'"  The court finds that "given that '[D]efendant has not even indicated when it plans to file [a dispositive] motion[,] "[i]t would be unfair to allow [Defendant] months to prepare its case and then force [Plaintiff] to formulate [its] entire case within [the short time it would] have to respond to that motion."'"