Protect the Pub.’s Trust v. U.S. Dep’t of Labor, No. 22-2849, 2023 WL 6160014 (D.D.C. Sept. 21, 2023) (Kelly, J.)

Protect the Pub.’s Trust v. U.S. Dep’t of Labor, No. 22-2849, 2023 WL 6160014 (D.D.C. Sept. 21, 2023) (Kelly, J.)

Re:  Request for certain communications between political appointees and twenty-five separate organizations

Disposition:  Granting defendant’s motion to dismiss

• Procedural Requirements, Proper FOIA Requests:  The court holds that “Plaintiff’s FOIA request does not ‘reasonably describe’ the requested records and so is not a proper request that obliges Defendant to respond.”  “Thus, Plaintiff has failed to state a claim, and so the Court will grant Defendant’s motion and dismiss the complaint.”  The court relates that plaintiff requested “[a]ll records and communications, documents, and other records from January 20, 2021 through the date this request is processed, between any political appointees (all PAS, non-career SES and Schedule C) and any employee or representative of the following selected external organizations [twenty-five separate organizations].”  The court finds that, “[t]o begin, Plaintiff’s request fails to reasonably describe the records sought because it uses the phrase ‘any employee or representative’ to identify individuals associated with the twenty-five named organizations.”  “The Court agrees with Defendant that Plaintiff’s failure to do so creates ‘ambiguity’ and would require Defendant to ‘investigate who at the . . . listed non-Department entities might qualify.’”  “Plaintiff’s request here is . . . deficient because the phrase ‘any employee or representative’ is also a ‘vague catch-all.’”  “And that vagueness is not some trifling matter.”  “The terms ‘employee’ and ‘representative’ . . . admit of ‘wide range[s] of plausible meanings.’”  “And Plaintiff offers no criteria for how Defendant should settle on any particular meaning to apply to each of those terms.”  “Compounding that general concern, ‘employee’ and ‘representative’ can take on different meanings based on the individualized contexts of each of the twenty-five organizations that are the subject of Plaintiff’s request.”
  
  “Plaintiff appears to try to paper over the ambiguity of ‘employee or representative’ by suggesting that category is ‘easily identified.’”  “But it does not offer any substantive response to Defendant’s argument that ‘employee or representative’ is not reasonably described.”  “In the end, a FOIA processer would be left in a similarly ‘hopeless muddle without clear guidance about what documents are being sought’ through Plaintiff’s request.”  “Thus, Plaintiff has failed to reasonably describe the requested records for this reason alone.”  “But the problems with Plaintiff’s request do not stop with the ambiguous phrase ‘employee or representative.’”  “Three other aspects of Plaintiff’s request, when taken together, render it impermissibly overbroad on additional grounds as well.”  “First, the request seeks records of ‘any political appointees’ of the Department of Labor – a large federal agency.”  “Second, Plaintiff seeks the communications between those unidentified political appointees and unidentified individuals from twenty-five organizations, with no subject-matter limitation.”  “Third, Plaintiff’s request seeks ‘all records,’ which it defines to include everything from ‘documents’ to ‘telephone notes’ to ‘digital logs’ to ‘photographs’ to ‘maps’ and more.”  “Perhaps in isolation, these three aspects of Plaintiff’s request would not warrant dismissal under Rule 12(b)(6).”  “But taken together, they make Plaintiff’s request ‘fatally overbroad’ for a separate reason, in addition to its use of the ambiguous phrase ‘employee or representative.’”  “In response, Plaintiff argues that even if its ‘request is vague to the point of being legally infirm . . . the Department’s Motion to Dismiss fails because the Department has failed to attempt to clarify or refine the scope of the request as required by FOIA and applicable Department regulations.’”  “But while perhaps ‘permissible,’ or even ‘preferable,’ ‘nothing in FOIA requires’ ‘[a] request by the Government to narrow the scope of a FOIA request’ if the request is improper.”