Cause of Action Inst. v. DOJ, No. 18-2373, 2020 WL 1695049 (D.D.C. Apr. 6, 2020) (Jackson, J.)

Cause of Action Inst. v. DOJ, No. 18-2373, 2020 WL 1695049 (D.D.C. Apr. 6, 2020) (Jackson, J.)

Re:  Request for records concerning Executive Order 13457, "'Protecting American Taxpayers from Government Spending on Wasteful Earmarks,'" as well as certain communications concerning funding

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Procedural Requirements, "Agency Records":  "[T]he Court will grant defendant's motion insofar as it sought a judgment that its decision to divide [Questions for the Record ("QFR")] documents into discrete records consisting of individual questions and their answers was lawful, but it will deny defendant's motion insofar as it sought the Court's approval of treating a sub-question and its answer as a discrete record."  "The Court finds that the agency's decision to treat a sub-question as distinct from the overall question of which it was a part of is too narrow, but plaintiff's definition, which would require disclosure of questions and responses that are wholly unrelated to plaintiff's FOIA request, is too broad."  "The Court finds that a record in this case should be defined as a question, including all subparts or sub-questions, and any corresponding answers."  "This finding is based upon the nature of the QFRs, the structure of the documents, the D.C. Circuit's decision in AILA, and how records have been defined by other courts in this district."  The court explains that "[e]ach QFR is essentially a separate communication, although several may be bundled together for transmission to streamline the question and answer process."  The court finds that "[t]he QFR and the response to it together make up one record, because much like an email that is sent in reply, the response to a QFR incorporates the question, and together the two form a unified exchange."  "Within that unified exchange may be a sub-question, because a sub-question naturally pertains to the question in which it is embraced."  "Defendant's definition, which separates a sub-question and the response to it as a distinct record, is too narrow."  "If the umbrella question was disclosed, then logically any sub-questions and their corresponding answers should also be disclosed."  "On the other hand, plaintiff's proposed definition of a record as applied here would be unduly broad:  it is not necessary to disclose all QFRs and their responses to understand the ones that are responsive to plaintiff's FOIA request; nor are they necessary to provide context or helpful background information."  Finally, the court notes that "[t]he non-responsive information was not interwoven within the text of otherwise responsive information – rather, the non-responsive 'records' were discrete units that are easily distinguished from one another as distinct groupings of information."
   
• Litigation Considerations, Pattern-or-Practice Claims:  "Because 'generalized grievance' cannot confer standing, . . . the Court finds that plaintiff does not have standing to bring [a pattern-or-practice claim]."  "[T]he Court has largely upheld the agency's application of its own policy; it took issue with just one specific aspect of the agency's subdivision of documents into records."  "And, while plaintiff has conclusorily alleged that it may be harmed by the invocation of the OIP policy in the future, it has not alleged facts to demonstrate that it will suffer an injury-in-fact, that is '"an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical."'"  The court finds that "[a]ny possibility that OIP's Guidance on what is a 'record' might result in the unlawful withholding of information in future FOIA requests that plaintiff has submitted is speculative given the fact-specific nature of the inquiry."  The court holds that "while plaintiff has asserted that agencies have withheld information as non-responsive in prior cases, it has not demonstrated that the agency has been withholding information that it should be disclosing because of OIP's Guidance, and that the agency will continue to do so."  "Indeed, in this case, the Court found that defendant appropriately withheld information as non-responsive records."  "Finally, the Court has resolved the controversy pending before it without reference or application of OIP’s Guidance." "Thus, the Court need not take up the lawfulness of the policy as a general matter."