Brown v. CBP, No. 15-01181, 2015 WL 5535799 (N.D. Cal. Sept, 17, 2015) (Donato, J.)

Brown v. CBP, No. 15-01181, 2015 WL 5535799 (N.D. Cal. Sept, 17, 2015) (Donato, J.)

Re: Request for records concerning attorney plaintiffs' clients and non-attorney plaintiffs

Disposition: Denying defendant's motion to dismiss

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that "[t]he complaint here describes a longstanding and pervasive practice of unreasonable delay in CBP's response to FOIA requests."  The court first rejects defendant's contention that "the case should be dismissed because an agency's failure to meet the response deadline is not an actionable violation of FOIA."  The court finds that "CBP appears to believe that an actionable 'withholding' occurs only when an agency locates documents and refuses to produce them."  "But it points to nothing in the statute or a decision that supports such a restrictive definition, and simply disregards the reality that failing to respond to a FOIA request is as much a withholding as intentionally locking away responsive information."  The court also rejects "CBP['s] . . . conten[tion] that plaintiffs cannot sue on a pattern and practice of FOIA delays."  The court finds that "pattern and practice claims for unreasonable delay [are allowed] . . . 'even where the plaintiff's FOIA request had already been resolved.'"  The court also finds that "even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here."  "It is more than plausible to infer that [attorney plaintiffs] will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays."