Heritage Found. v. DOJ, No. 23-1854, 2023 WL 4678763 (D.D.C. July 19, 2023) (Friedrich, J.)

Heritage Found. v. DOJ, No. 23-1854, 2023 WL 4678763 (D.D.C. July 19, 2023) (Friedrich, J.)

Re:  Request for records concerning investigation of Robert Hunter Biden, son of President of the United States, Joseph R. Biden

Disposition:  Denying plaintiff’s motion for preliminary injunction

• Litigation Considerations, Preliminary Injunction & Procedural Requirements, Expedited Processing:  [T]he Court will deny [plaintiff’s] motion for a preliminary injunction without prejudice.”  The court finds that “[o]n the existing record, the plaintiffs have not made a sufficient showing of irreparable harm.”  “Nor have they shown that they are sufficiently likely to succeed on the merits, or that the balance of the equities or the public interest weigh in favor of an entering an injunction.”  First, regarding irreparable harm, the court finds that “plaintiffs cannot show irreparable harm simply because ‘[t]he information sought by this Motion goes to the heart of on-going House investigations and raging political controversy.’”  “The public debate inside and outside of Congress over Hunter Biden’s actions, his criminal prosecution, and any involvement therein by the President of the United States will not end on [the date by which plaintiffs would like the records produced].”  “Indeed, the issue may become even more salient over time as relevant investigations continue.”  Additionally, “as to the only specific event on a particular date on which the plaintiffs rely – Hunter Biden’s scheduled July 26, 2023 plea hearing[, the date by which plaintiffs are requesting production] – the plaintiffs have not established how their access to this information would have any bearing on a judicial plea proceeding.”  “The plaintiffs are not party to Hunter Biden’s criminal case in the U.S. District Court for the District of Delaware . . . .”  “And whether that court should accept Hunter Biden’s guilty plea is not a political question subject to public debate that could be sparked by the production of documents under FOIA; it is a legal question for the presiding judge to determine under Rule 11 of the Federal Rules of Criminal Procedure.”  “The plaintiffs have provided no reason to think that the court in Hunter Biden’s case is incapable of deciding for itself whether it has sufficient information to determine whether to accept the plea or whether it must demand more.”  “Moreover, further undermining a claim of irreparable harm, DOJ has provided substantial reason to think that the requested records ‘are highly likely to be exempt in whole or significant part.’”  “On its face, the plaintiffs’ request appears to call for the production predominantly of documents that would fit squarely within [Exemptions 5 and 7(A)] and other exemptions.”  “Of course, none of this is to prejudge any legal issues that may arise if and when the agency ultimately asserts these exemptions when producing responsive records.”  “As in all cases, these FOIA exemptions do not give the agency a blank check to refuse to produce documents; instead, they simply authorize the withholding of documents in specific circumstances, subject to review by the Court.”  “At least at this stage, however, it appears to the Court that the documents most likely to vindicate the plaintiffs’ asserted interests justifying injunctive relief are those that are also most likely to be exempt from disclosure under FOIA.” 
  
  Second, the court finds that “DOJ has raised serious doubts about the plaintiffs’ likelihood of success on the merits.”  “Both parties agree that the relevant merits question is whether DOJ is ‘actually processing the request as soon as practicable,’ . . . .”  “DOJ submitted along with its opposition an affidavit stating that there are ‘2,523 pages of potentially responsive records,’ . . . and attesting to several factors contributing to possible delays in processing the plaintiffs’ request.”  “None of this is to say that the Court specifically endorses or tacitly accepts DOJ’s proposed production schedule; that will be determined in the near future, after DOJ answers the complaint.”  “But it does cast substantial doubt on the plaintiffs’ claim – for which they marshal virtually no supporting evidence – that the ‘as soon as practicable’ standard demands production on or before [the date by which plaintiff requests that the records be produced], just 22 days after the filing of the plaintiffs’ preliminary injunction motion and just a week after the plaintiffs’ last filing in support of it.”  “It is not enough to respond that production must occur at breakneck speed because of ‘the extreme gravity and urgency of this case.’”  “DOJ does not contest – for good reason – that the plaintiffs’ request involves ‘[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.’”  “But all the statute requires is that, once a request is expedited, the agency process it as soon as practicable.”  “The plaintiffs provide no authority for the proposition that within the category of expedited requests, DOJ has an obligation to prioritize productions based on their ‘gravity and urgency.’”  “To the contrary, an agency faces the same obligation for ‘any’ expedited request: namely, to process it ‘as soon as practicable.’”
  
  “Finally, the balance of the equities and the public interest militate against entering a preliminary injunction here.”  “Granting this preliminary injunction would mean effectively granting the plaintiffs’ request extra-expedited status, jumping the line ahead of other requests deemed similarly time-sensitive under FOIA’s expedition standards.”  “Here, DOJ has explained that other expedited requests before the EOUSA include ‘sensitive matters such as the January 6th Capitol riots, the search on Mar-A-Lago, classified records and communications related to the Special Counsel’s Office, and criminal case files for a Capital Habeas case.’”  “The inevitable delay in processing those requests that would result from entering a preliminary injunction here further tilts the scale in DOJ’s favor.”