People for the Ethical Treatment of Animals v. Dep't of Agriculture, No. 18-5074, 2019 WL 1212181 (D.C. Cir. Mar. 15, 2019) (Williams, S. C. J.)

People for the Ethical Treatment of Animals v. Dep't of Agriculture, No. 18-5074, 2019 WL 1212181 (D.C. Cir. Mar. 15, 2019) (Williams, S. C. J.)

Re:  Requester's allegation that removal of documents from website violated FOIA

Disposition:  Reversing and remanding district court's grant of government's motion to dismiss; affirming district court's denial of requester's motion for discovery

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The Court of Appeals for the District of Columbia Circuit "remand[s] to the district court to take up plaintiffs' objections to new redactions from the reposted records on the merits (including examining whether plaintiffs have satisfied FOIA's exhaustion requirements . . . and substantive provisions)."  The court finds that "since the new redactions post-date the filing of the complaint, plaintiffs could have known of them at the outset of litigation only in the most general way, as a possibility of unknown scope."  Additionally, the court "read[s] the complaint as demanding an order requiring USDA to repost documents in their original, pre-takedown form."  Additionally, the court finds that "[o]n the present record, . . . there is not enough clarity fully to assess the agency's intentions with respect to future posting of certain categories of records."  The court finds that the government "doesn't express the agency's position clearly enough to convince us that, as to all requested document types, it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur[.]'"  "[The court] thus remand[s] for clarification . . . ."  The court further rules that "[i]f the agency makes clear that it commits to timely posting on an ongoing basis, such a declaration will moot [plaintiff's] non-redaction claims."
   
• Litigation Considerations, Discovery:  The Court of Appeals for the District of Columbia Circuit "find[s] that the district court did not abuse its discretion in denying plaintiffs' request for discovery against the agency aimed at showing that the 'voluntary cessation' doctrine isn't met."  "In light of USDA's seemingly unproblematic rationale for removing the records; the one-time nature of the takedown; the absence of any signs of bad faith in litigation; and a presumption of regularity when government officials express a clear intention to do as the complaint requests, [the court] conclude[s] that a declaration by (or on behalf of) USDA officials that the agency intends to post documents in the inspection reports and entity lists categories on an ongoing basis will moot [the requester's] claims."