Citizens for Resp. & Ethics in Wash. v. DOJ, No. 24-1497, 2025 WL 879664 (D.D.C. Mar. 21, 2025) (Alikhan, J.)

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 24-1497, 2025 WL 879664 (D.D.C. Mar. 21, 2025) (Alikhan, J.)

Re:  Request for records concerning now-closed criminal investigation of former Congressman Matt Gaetz

Disposition:  Granting in part defendant’s motion to dismiss

• Litigation Considerations, Pleadings & “Policy or Practice” Claims:  The court relates that “Count II alleges that DOJ and its components employed an improper policy of issuing Glomar responses to any request for records relating to publicly disclosed investigations.”  “Relatedly, Count III alleges that the FBI has an improper policy of categorically denying such requests under Exemptions 6 and 7(C) without conducting any case-by-case balancing.”  “The court addresses both claims in turn.”  “DOJ’s primary argument on Count II is that the responses to [plaintiff’s] requests were too varied to suggest a policy or practice.”  “Because separate and isolated incidents cannot support a policy-or-practice claim, Count II’s survival largely depends on whether the court can aggregate the actions of DOJ’s components to reveal a single pattern.”  The court finds that “DOJ is the overarching agency that holds its various components together, and it therefore can exercise control over its components’ FOIA policies.”  “Components are, after all, parts of a whole – together, they compose a single entity.”  “[T]he actions of the subdivisions of an agency entity, wherever they may sit on an organizational chart, can still demonstrate the existence of a uniform policy or practice.”  “After all, FOIA is primarily concerned with agencies, ‘not . . . agency components.’” “So, if multiple components carried out the same blanket policy at the direction of a head agency, then that direction should be actionable against the head agency, too.” “It may very well be the case that [plaintiff] would have valid policy-or-practice claims against the Office of Information Policy, EOUSA, Criminal Division, and FBI separately.”  “But that does not preclude [plaintiff] from suing the entire DOJ under the same theory, provided that it sufficiently alleges DOJ has promulgated a universal practice that its components all follow.”  “And against such a claim, DOJ cannot rely on its own regulations – which treat its components as miniature agencies – to shield itself while allegedly orchestrating violations of FOIA.”
  
  “DOJ’s counterarguments are not persuasive.” “The agency mostly reiterates the general principle that FOIA requests are directed to (and processed by) each of its constituent components.”  “But, as alluded to above, the routine treatment of specific one-off FOIA requests does not dictate the outcome of [plaintiff’s] policy-or-practice claim.” “It makes sense to treat an agency’s components separately for individual requests when they each have different collections of documents.”  “But the same principle does not logically apply when the plaintiff alleges a general, non-individualized policy of violating FOIA that transcends multiple components, as [plaintiff] does here.”  “Such a claim has nothing to do with which components possess which documents.”  “DOJ’s emphasis on the individuality of its components also conveniently overlooks the fact that DOJ is, itself, an agency.”  “Just as one of its components can be guilty of instituting a pattern or practice, so too can DOJ writ large.”  “If DOJ has a global policy that applies to all its constituent parts or refuses to correct its components’ ‘noncompliance with the FOIA,’ [plaintiff] may be ‘entitle[d] . . . to declaratory relief.’”  “The court is not required to look the other way simply because the evidence of such a policy is scattered across several subdivisions of a single agency.” “[Plaintiff] may therefore aggregate the actions of DOJ’s components to prove its case.”  “Taken together, then, [plaintiff] has identified six instances of potentially violative conduct across the four DOJ components.”  “That is numerically sufficient to show a pattern for purposes of a motion to dismiss.”  “Whether those instances are substantively similar enough to demonstrate a policy or involve actual FOIA violations, however, remains to be resolved.”
  
  “DOJ next argues that, even if the court aggregates the six requests at issue under Count II, those requests do not ‘all relat[e] to the same subject matter’ and therefore cannot form a consistent policy.” “Here, all six of [plaintiff’s] requests were about the same subject matter (publicly disclosed investigations into third parties) and triggered the same exemptions in response (Exemptions 6 and 7(C)).”  “DOJ counters that [plaintiff] sought records on ‘four different individuals . . . relating to completely different investigations.’”  “But the requests need not be identical in every respect to generate a pattern.”  “As long as they involve the same ‘subject matter,’ that is enough.”  “In the court’s view, changing the specific target of a government investigation does not put the request in another realm.” “Here, [plaintiff] seeks documents relating to publicly disclosed investigations of third parties (specifically, four government officials).”  “DOJ next argues that the responses to the requests were also ‘materially different.’”  The court compares two responses and finds that “the only difference is that [one DOJ component] did not cite Exemption 6 (which, like Exemption 7(C), protects against unwarranted invasions of privacy).”  “In all other respects, the two components issued virtually verbatim responses.” “Minor discrepancies are not enough to warrant dismissal at this stage because ‘superficial differences in agency responses should not defeat a policy-or-practice claim.’”  “The court therefore concludes that the six FOIA requests under Count II are sufficiently related – both in their substance and the responses they generated – to form a pattern.”  “The final question is whether the above pattern forms a ‘policy or practice that constitutes an ongoing “failure to abide by the terms of the FOIA.”’” “At the motion-to-dismiss stage, [plaintiff] need only plead sufficient facts to suggest that DOJ has ‘adopted, endorsed, or implemented’ such a policy.”  “DOJ argues that a policy must be ‘sufficiently outrageous’ for it to be actionable.”  “This terminology, however, derives from the district court opinion that was later reversed . . . .”  “Further undermining DOJ’s position, the Circuit expressly ‘d[oes] not require egregious agency action to state a policy or practice claim.’”  “Instead, a plaintiff may be able to prevail by showing ‘some other failure to abide by the terms of the FOIA’ beyond a mere ‘refusal to supply information.’”  “Here, [plaintiff] has alleged sufficient facts to survive a motion to dismiss on Count II.”  “It asserts that four DOJ components consistently provide Glomar responses whenever [plaintiff] seeks records relating to a publicly disclosed investigation of a third party.” “[Plaintiff] supports this assertion with exhibits of six FOIA responses, . . . several of which use identical language despite coming from different components . . . .” “[Plaintiff] convincingly argues that this categorical approach ‘is contrary to binding precedent.’”  “[T]he D.C. Circuit [has] held that Glomar responses to requests for investigative records are generally not appropriate when the existence of an investigation is already public knowledge.”  “DOJ argues that a ruling in [plaintiff’s] favor would ‘impose an obligation that all DOJ components coordinate and maintain uniformity in their practices for responding to FOIA requests – something that is clearly not contemplated by the applicable regulations.’”  “But the only ‘obligation’ the court would impose (assuming that it eventually agrees with [plaintiff] on the merits) is requiring the entire DOJ to comply with FOIA – something it should already be doing.” “[Plaintiff] is not asking for the agency and its components to respond to every request identically; it merely asks that they follow the law when doing so.”  “Each DOJ component can still employ its own unique procedures for handling document requests as long as those procedures abide by FOIA’s requirements.”
   
• Litigation Considerations, “Policy or Practice” Claims:  The court relates that “Count III . . . alleges a policy-or-practice claim only against a single component (the FBI) and focuses on three different responses (concerning Secretary Zinke, Arizona State Senator Mark Finchem, and Congressman Matt Gaetz).”  “DOJ first argues that [plaintiff’s] three requests for investigative records pertaining to Mr. Zinke, . . . Mr. Finchem, . . . and Mr. Gaetz, . . . are too dissimilar to form any sort of pattern . . . .”  “This argument largely mirrors its argument about Count II and fails for the same reasons.”  “As explained previously, . . . ‘superficial differences in agency responses should not defeat a policy-or-practice claim,’ . . . and requests about separate targets of government investigations are not sufficiently different in kind . . . .” “DOJ’s next argument, however, is much more persuasive.”  “DOJ asserts that the responses to [plaintiff’s] three requests were not uniform, thereby dooming Count III.”  “The court agrees.”  “The thrust of [plaintiff’s] claim is that the FBI did not conduct a case-by-case analysis in response to each request.”  “But the exhibits of the FBI’s responses – which the court may consider at this stage because [plaintiff] attached them to its complaint . . . – belie this claim.”  “In stark contrast to the six responses under Count II, the three responses under Count III appear far too varied to support a policy-or-practice claim.”  “At best, only two responses (regarding Mr. Finchem and Mr. Gaetz) share themes in that both relied on Exemptions 6 and 7(C) and contained similar language.”  “But even if these two responses were sufficiently similar, the court expresses serious doubt as to whether only two separate instances could amount to a detectable pattern.”
  
  “CREW also argues that a ‘categorical denial in . . . cases [involving investigations of government officials] is per se inappropriate.’”  “While there is some truth to this, it tends to overstate the rule.” “Both the Supreme Court and the D.C. Circuit have explained that a categorical approach to FOIA requests is only appropriate if ‘a case fits into a genus in which the balance [of private and public interests] characteristically tips in one direction.’”  “Put differently, a categorical approach can only be used in situations where the balance usually favors disclosure or nondisclosure.” “While the Circuit has not held that this framework applies to all investigative contexts, it is likely that categorical denials for records concerning publicly disclosed investigations are inappropriate.”  “And if [plaintiff] were to level that charge in a suit directed at a specific withholding (like it does with Count I here), it may very well prevail.”  “But that is a different legal question from whether the FBI has an established policy or practice of issuing across-the-board categorical denials for every request for records concerning a publicly disclosed investigation.”  “Based only on the three examples available in the record, the court cannot conclude that [plaintiff] has sufficiently pled this claim.”