Cause of Action Inst. v. DOJ, No. 20-5182, 2021 WL 2197710 (D.C. Cir. June 1, 2021) (Edwards, J.)
Cause of Action Inst. v. DOJ, No. 20-5182, 2021 WL 2197710 (D.C. Cir. June 1, 2021) (Edwards, 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: Reversing district court's grant in part of government's motion for summary judgment
- Procedural Requirements, "Agency Records": The Court of Appeals for the District of Columbia Circuit relates that "[a]t issue are three cover letters and four Questions for the Record ("QFR") documents that were identified by OIP as responsive to Appellant's FOIA request." "Each QFR document contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ." "Each document is self-contained, with a single, overarching heading identifying the contents of the document." "The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages." "Although it is undisputed that OIP determined that the four QFR documents contained material responsive to Appellant's FOIA request, DOJ nonetheless removed pages and redacted material from the documents." "DOJ does not claim that the pages that were removed or the material that was redacted are exempt from disclosure under FOIA." "Rather, DOJ simply claims that these pages and material need not be disclosed to Appellant because they constitute 'Non-Responsive Record[s].'" "[The court] hold[s] that DOJ's position is untenable." "This court has held that 'once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record – i.e., as a unit – except insofar as the agency may redact information falling within a statutory exemption.'" "This is because 'FOIA calls for disclosure of a responsive record, not disclosure of responsive information within a record.'" "Each of the QFR documents at issue here constitutes a unitary record, as demonstrated by DOJ's own treatment of those documents." "DOJ's position in this case is that each individual question and its corresponding answer within each of the self-contained QFR documents constitutes a separate 'record' under FOIA." "Though [the court's] case law provides for a 'range of possible ways in which an agency might conceive of a "record,"' [the court] reject[s] DOJ's approach as an untenable application of FOIA, outside the range of reasonableness." "OIP itself treated the self-contained QFR documents as unitary 'records' and released the documents, albeit with portions removed, as responsive to [the requester's] FOIA request." "Therefore, as [the court] explained in [Am. Immigr. Laws. Ass’n v. EOIR, ("AILA") 830 F.3d 667, 677 (D.C. Cir. 2016)], 'once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record – i.e., as a unit – except insofar as the agency may redact information falling within a statutory exemption.'" "There can be little dispute that OIP, on behalf of DOJ, treated each one of the self-contained QFR documents as a unitary 'record' in this case." "DOJ admits that the questions and answers 'were compiled into one large file for "efficiency."'" "The Agency released full documents, containing overarching titles and consecutive numbering, and merely redacted some questions and answers from within those documents." "Indeed, in one instance the Agency released an entire page containing only a redacted question." "This action is inconsistent with DOJ's claimed position that each question constitutes a separate record, and in fact indicates that DOJ viewed the entire QFR document in which that question appeared as a unitary 'record.'" "Under these circumstances, the question-and-answer pairings were not individual 'records,' but rather were items of information within records." The court finds that, "[h]ere, once DOJ identified the compiled QFR documents as responsive to [the requester's] request, it was not permitted to redact information from those documents, except as permitted by FOIA's statutory exemptions." "The Agency's own disclosures demonstrate that it regarded each QFR document, rather than the individual questions and answers therein, as a record." "By redacting non-exempt material from within those records, the Agency violated FOIA and this court's precedent."
Judge Rao writes separately to explain that "[t]he problem is illustrated by [the requester's] argument that if a requester seeks a word and its definition, the entire 'dictionary would . . . be the relevant "record" for disclosure.'" "This boil-the-ocean approach to FOIA would inundate requesters with irrelevant material and burden agencies with excessive disclosures." "To avoid this result, the parallel request-and-release structure of FOIA permits an agency to identify records in part based on the information requested." "In other words, FOIA does not allow a requester to go fishing for a file and reel in the file cabinet." "These commonsense principles are consistent with AILA, which repeatedly emphasizes that the agency 'identifies a record it deems responsive to a FOIA request.'" "Given the potential difficulty of responding to a FOIA request for some category of information, rather than a specific document, an agency may identify a record within a reasonable range and consider the information requested in determining how to segment material into records."
- Litigation Considerations, Pattern-or-Practice Claims: The Court of Appeals for the District of Columbia Circuit relates that "[the requester] also contends that the OIP Guidance 'violates FOIA and [DOJ's] reliance on the [G]uidance constitutes an unlawful policy or practice.'" "The District Court found that [the requester] lacked standing to challenge the OIP Guidance and thus dismissed [the requester's] policy or practice claim." "[The court] do[es] not agree that Appellant lacked standing to pursue this claim." "Nevertheless, we hold that the claim must be dismissed because it is not ripe for review." "It is clear that, at the outset of this action, [the requester] had standing to challenge DOJ's action redacting non-exempt material from within the disputed records and any Agency policy invoked by DOJ in support of its decision not to disclose materials to Appellant." The court cites D.C. Circuit precedent that says that "frequent FOIA requesters who would be affected by . . . guidelines in the future [would have standing to challenge an agency policy]." "In addition, [the requester's] challenge to the OIP Guidance is not rendered moot merely because we agree that DOJ violated FOIA in this case by redacting non-exempt material from the records at issue." "Appellant alleges that DOJ maintains an impermissible policy, memorialized in the OIP Guidance, of segmenting one record into multiple records in order to avoid disclosure." "And Appellant further contends that, 'because it [has] "additional FOIA requests" pending with DOJ at various stages of the administrative process, it [is] "at risk of receiving the same improper treatment in the future" by application of the guidance.'" "Therefore, [the requester] has standing to challenge the OIP Guidance and the claim is not moot."
However, the court holds that "the challenge to the OIP Guidance is not ripe for review." The court explains that "[the requester] asks us to declare that DOJ's alleged policy of segmenting one record into multiple records cannot be lawful under any circumstances." "'[It] do[es] not have sufficient confidence in our powers of imagination to affirm such a negative.'" "'The operation of [FOIA] is better grasped when viewed in light of a particular application.'" "'Here, as is often true, "[d]etermination of the scope [of the purported policy] in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function."'" "No bright line rules in the OIP Guidance compelled DOJ's disputed action." "Moreover, DOJ does not claim that the OIP Guidance has the force of law, and we do not regard it as legally binding." "Finally, no legally cognizable 'hardship' will come from this disposition." "[The requester] 'is not required to engage in, or to refrain from, any conduct' . . . ." "'The only hardship [Appellant] will endure as a result of delaying consideration of this issue is the burden of having to file another suit." '"This is hardly the type of hardship which warrants immediate consideration of an issue presented in abstract form.'"