N.Y. Times Co. v. Def. Health Agency, No. 21-566, 2021 WL 1614817 (D.D.C. Apr. 25, 2021) (Howell, J.)

N.Y. Times Co. v. Def. Health Agency, No. 21-566, 2021 WL 1614817 (D.D.C. Apr. 25, 2021) (Howell, J.)

Re:  Request for data regarding federal government's nationwide effort to distribute coronavirus vaccines to American public

Disposition:  Denying plaintiff's motion for a preliminary injunction

• Litigation Considerations, Preliminary Injunctions:  The court holds that "[h]aving failed to demonstrate that any of the factors governing review of the instant motion favor preliminary injunctive relief, plaintiff cannot meet its burden to show that issuance of this relief is warranted."  First, the court finds that "Plaintiff's insufficient showing of a likelihood of success on the merits requires denial of its motion for preliminary injunctive relief."  The court relates that "Plaintiff's sole asserted basis for entitlement to immediate record production 'within 20 business days of the Court's order,' . . . is that defendants failed to issue a final determination within the 20-day statutory deadline, but the absence of an agency's final determination within 20 business days of the filing of a FOIA request merely opens the courthouse doors for a lawsuit and authorizes judicial supervision of the agency's diligence in responding to the request."  "This cited 'failure' by defendant does not trigger entitlement to production of responsive records, much less immediate production, of the enormous data sets plaintiff's FOIA requests seek."  Additionally, the court finds that defendants "persuasively demonstrate that defendants' present circumstances, coupled with the sheer anticipated volume of records responsive to plaintiff's data requests, are sufficiently extreme and unusual to allow for some delayed processing."  "Moreover, defendants have taken various steps to address both of plaintiff's FOIA requests, as evidenced by [the Defense Health Agency's] interim response, which projected an anticipated completion date . . . the agency's initiation of a search for the requested records 'with two Program Offices,' . . . and HHS' initiation of processing plaintiff's request, . . . indicating the exercise of due diligence and warranting additional time to complete the request."
  
  Second, the court holds that "Plaintiff fails to meet the 'high standard for irreparable injury' required for preliminary injunction relief."  The court relates that "[t]o support its claimed irreparable harm, plaintiff describes a parade of harms from delay in releasing the four requested data sets, contending that such delay could 'pose an imminent threat to the life and safety of individuals in the United States,' . . . by diminishing the strength of public oversight, . . . preventing the public's access to accurate reporting about the efficacy of the vaccine and the equity of the vaccine rollout, . . . and depriving public health officials of information that would help them 'develop appropriate responses to . . . inequities' and stem 'preventable deaths' . . . ."  "While attention-grabbing, these purported harms to oversight, vaccination hesitancy and equitable vaccine distribution, which are all important to public health generally, are all premised on theoretical injuries, with no assurance that the remedy for these cited public health ills is production of the datasets requested in plaintiff's FOIA requests."
  
  "Finally, plaintiff has not shown that the balance of hardships and the public interest weigh in favor of injunctive relief."  The court finds that "[i]ssuing the requested injunction here would impose an extraordinary burden on defendants."  "As detailed above, defendants already face significant challenges in keeping up with FOIA requests and litigation and adding plaintiff's massive request for four data sets to the workload of each agency on an expedited timeline would force the agencies to shift their already strained resources toward fulfilling this request."  "The injunction would also impose undue hardship on similarly situated FOIA requesters, who are depending on, and adhering to, regular administrative FOIA record production processes to obtain information important to them from DHA and HHS."  "The potential public harm by grant of the requested preliminary injunction is further exacerbated by the nature of the records plaintiff seeks."  "Although plaintiff's request is for 'raw data concern[ing] the geography and demographics of vaccine distribution and anonymous information about adverse reactions,' . . . whether all potentially responsive data is maintained in an anonymized fashion or must be processed to render it disclosable is unclear on the current record."  "Consequently, requiring defendants to produce these records on an artificially abbreviated deadline 'raises a significant risk of inadvertent disclosure of records properly subject to exemption under FOIA.'"