Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 19-1552, 2020 WL 515884 (D.D.C. Jan. 31, 2020) (Jackson, J.)

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 19-1552, 2020 WL 515884 (D.D.C. Jan. 31, 2020) (Jackson, J.)

Re:  Request for records concerning documents Attorney General William Barr may have reviewed in advance of his public announcement concerning the report transmitted to him by Special Counsel Robert Mueller

Disposition:  Denying defendant's partial motion to dismiss

• Procedural Requirements, Expedited Processing & Litigation Considerations, Exhaustion of Administrative Remedies:  "[T]he Court will deny the motion to dismiss on exhaustion grounds."  The court relates that "FOIA . . . [states] in the provision relating to denials of requests for expedited processing:  '[a]gency action to deny or affirm denial of a request for expedited processing . . . shall be subject to judicial review.'"  "While the D.C. Circuit has not spoken on the matter, courts in this district have interpreted that language to relieve plaintiffs of the exhaustion requirement when appealing a denial of expedited processing."  The court finds that "[this] reading of the statute is consistent with the purpose underlying the provision that makes expedited review available, and the express Congressional acknowledgment that time may be of the essence for certain requests."
   
• Procedural Requirements, Expedited Processing:  Substantively, "the Court finds that OPA's mere recitation of the language in the DOJ provision on expedited review does not suffice as a reasoned explanation for its denial of [plaintiff's] request."  "Put simply, 'the agency must explain why it decided to act as it did.'"  "And, pursuant to the FOIA statute, judicial review of an agency's decision to grant or deny a request for expedited processing 'shall be based on the record before the agency at the time of the determination.'"  The court finds that "[s]ince the agency did nothing more than parrot its own regulatory language, and offered no reasoning or analysis, its decision, as in the APA context, is entitled to little deference."  Additionally, the court finds that "[n]either FOIA nor the departmental regulations require the requester to prove wrongdoing by the government in order to obtain documents on an expedited basis."  "The request must simply provide grounds to support the contention that the matter is time sensitive, and that it is a 'matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.'"  "Here, [plaintiff] stated in its request that the Attorney General of the United States had mischaracterized some of the core conclusions contained in a report of great public significance, written by the Department's own duly appointed Special Counsel, in advance of its public release."  "[T]he request raised 'possible questions' about government integrity that could affect public confidence. And the disclosure of any material that either influenced or contradicted those public statements could very well bear upon the resolution of those questions."  "Since DOJ provided no explanation for its flat assertion to the contrary, it does not stand up to judicial review."