Thompson v. DOJ, No. 23-69, 2023 WL 5493591 (W.D.N.C. Aug. 24, 2023) (Cogburn, Jr., J.)

Thompson v. DOJ, No. 23-69, 2023 WL 5493591 (W.D.N.C. Aug. 24, 2023) (Cogburn, Jr., J.)

Re:  Several requests for records concerning plaintiff

Disposition:  Denying defendant’s partial motion to dismiss

• Litigation Considerations, Pattern-or-Practice Claims:  The court relates that “Plaintiff alleges that Defendant has repeatedly stymied his ability to receive requested government records in a timely manner, amounting to a persistent failure to adhere to FOIA’s requirements.”  “Defendant . . . argues that Plaintiff’s policy-or-practice claim is moot” because “[a]ll of Plaintiff’s FOIA requests predating this litigation have received a response of some kind.”  The court holds that “[o]rdinarily, when an agency completes its review of a request and releases responsive records during the pendency of a FOIA action, the case becomes moot.”  “The case is not moot, however, if the agency has a general, ongoing policy or practice of violating FOIA.”  “At this stage in the litigation, Plaintiff has sufficiently alleged an ongoing policy or practice of delay that has personally harmed him in the past and presents a sufficient likelihood to harm him in the future.”  The court relates that “in addition to describing his own FOIA delayed requests, Plaintiff provides a summary of Defendant’s timely-response compliance rate as to all requesters for fiscal years 2018-2022.”  The court finds that “[the provided] statistics suggest that Defendant has not always adhered to FOIA timelines.”  Additionally, the court finds that “The history of Defendant’s conduct in response to Plaintiff’s FOIA requests, as alleged in the complaint, suggests that Plaintiff has been forced to file lawsuits to obtain requested non-exempt records–all relating to the same subject matter.”  Finally, the court relates that “Plaintiff has submitted additional FOIA requests to Defendant, and thereby may face future delays.”  The court finds that “[g]iven Defendant’s alleged track record with Plaintiff’s requests, Plaintiff has alleged a sufficient likelihood of future harm by Defendant’s delays.”  “Therefore, Defendant’s motion to dismiss Plaintiff’s policy or practice claim will be denied.”