Project on Gov’t Oversight v. DHS, No. 22-2424, 2025 WL 1897819 (D.D.C. June 26, 2025) (Berman Jackson, J.)

Project on Gov’t Oversight v. DHS, No. 22-2424, 2025 WL 1897819 (D.D.C. June 26, 2025) (Berman Jackson, J.)

Re: Request for records concerning DHS OIG’s “alleged removal of damaging information from a draft report”

Disposition:  Granting in part and denying in part plaintiff’s request for a FOIA processing order; denying plaintiff’s request for discovery

• Litigation Considerations, Discovery:      The court relates that “Plaintiff’s request to take limited discovery is based on public information that raised questions about the agency’s record-keeping practices.”      “[P]laintiff highlights the alleged revelation that . . . the DHS Inspector General (‘IG’) at the time, frequently deleted text messages from his government-issued phone.”      “The Court [previously] ordered defendant ‘to submit a supplemental declaration addressing the scope of its search for text message communications to or from the Inspector General, as well as the volume of text messages it has produced to plaintiff.’”  “In light of [the new] declarations, the Court will deny plaintiff’s request to embark on discovery.”  “The D.C. Circuit and courts in this District have repeatedly held that ‘discovery is rarely appropriate in FOIA cases.’”  “Here, plaintiff is not seeking information concerning the adequacy of the search.”  “It instead seeks to depose various individuals ‘to get to the bottom of [the IG’s] conduct and any other DHS official who may have aided the IG in preventing the issue of his document destruction from coming to light.’”      “Plaintiff may take umbrage with the manner in which DHS officials have retained (or not retained) records existing on mobile phones, but, as the Court noted in its February 18, 2025 Order, ‘it is not within the purview of this case for plaintiffs to conduct discovery to unearth or police violations of the Federal Records Act or DHS policy.’”  “This lawsuit concerns the Department’s response to plaintiff’s FOIA request, and the proffered declarations describe with specificity the manner in which defendant conducted a search for responsive records.”  “In light of the facts described, deposing [the IG] for the purpose of unearthing facts about alleged document ‘destruction,’ as plaintiff puts it, . . . would not advance the purpose of this litigation:  to determine whether the agency properly searched for and produced responsive records.”  “The same is true for plaintiff’s request that this Court order defendant to search for ‘all potentially responsive text messages.’”      “Defendant’s averments make clear that text message searches were performed as part of DHS’s FOIA response.”      “If plaintiff is dissatisfied with the manner in which that search was conducted, the proper procedure is to challenge the adequacy of the search as part of the progression of this litigation rather than seek a prophylactic order compelling the ultimate relief to be granted.”
   
• Litigation Considerations:  The court holds that, “[w]ith respect to plaintiff’s other request, ‘[c]ourts have broad discretion to determine a reasonable processing rate for a FOIA request.’”  “Plaintiff submitted its FOIA request almost three years ago, and litigation in this Court has lasted almost as long.”  “Plaintiff estimates that it would take approximately 38 years to produce the total number of records given the current estimated number of responsive documents . . . and defendant has failed to come forward with a rationale for its pace of production beyond general administrative demand.”  “Although the parties should continue their effort to further narrow plaintiff’s request, a moderate increase from 600 pages to 750 pages per month is warranted.”