Wash. Law.s’ Comm. for C.R. & Urb. Affs. v. DOJ, No. 23-1328, 2024 WL 1050498 (D.D.C. Mar. 10, 2024) (Howell, J.)

Wash. Law.s’ Comm. for C.R. & Urb. Affs. v. DOJ, No. 23-1328, 2024 WL 1050498 (D.D.C. Mar. 10, 2024) (Howell, J.)

Re:  Alleged delays by defendant in responding to several of plaintiff’s FOIA requests

Disposition:  Granting defendants motion for partial summary judgment as to plaintiff’s policy or practice claim; granting defendant’s motion to dismiss as conceded; severing several of plaintiff’s claims

• Litigation Considerations, Exhaustion of Administrative Remedies & “Policy or Practice” Claims:  The court holds that “no administrative exhaustion is required for judicial review of policy or practice claims under the FOIA.”  The court relates that “Defendant seeks dismissal of Count II, arguing that plaintiff has failed administratively to exhaust this policy-or-practice claim because BOP ‘has no record of Plaintiff ever raising a challenge with respect to the alleged policy or practice’ in any of its FOIA requests or appeals to the Office of Information Policy.”  “Plaintiff counters that the administrative exhaustion requirement is satisfied through constructive exhaustion of the individual FOIA requests [at issue], since the crux of plaintiff’s policy-or-practice claim is that defendant is not responding to its FOIA requests, and thus plaintiff ‘had nothing to appeal and no way to afford the agency an “opportunity to correct its own errors.”’”  “As administrative exhaustion poses jurisprudential questions about the availability of judicial review, this grounds for dismissal will be considered before turning to defendant’s motion for partial summary judgment on Count II.”  “Turning to the basic principles governing exhaustion, under binding precedent in this Circuit, resolves this issue.”  “First, failure to exhaust is by no means an automatic bar to judicial review, as ‘courts usually look at the purposes of exhaustion and the particular administrative scheme in deciding whether they will hear a case or return it to the agency for further processing.’”  “‘Exhaustion applies only if its underlying purposes “support such a bar,”’ and the D.C. Circuit has held that the purpose of exhaustion does not support barring a challenge to an agency’s broad interpretation of its statutory obligations under FOIA.”  “In the instant context of a policy or practice claim alleging undue delay in response to FOIA requests, in particular counsel requests for client records with the concomitant urgency associated with such requests, plaintiff accurately assesses that a requirement to exhaust administrative remedies would be impractical, or even futile, and serve only to let the defendant evade judicial review because the agency could merely continue its alleged conduct of failing timely or adequately to respond to FOIA requests.”  Here, “where BOP’s alleged policy of treating all record requests the same, without differentiating requests from counsel, like plaintiff, in their active representation of clients in BOP’s custody, which policy allegedly creates and contributes to delays in response to all FOIA requests, renders the presentation of a policy-or-practice claim during the administrative appeals process all but futile.”

• Litigation Considerations, “Policy or Practice” Claims:  The court holds that “Count II’s policy-or-practice claim would survive the plausibility assessment required under Rule 12(b)(6), . . . but defendant nevertheless is entitled to summary judgment on Count II based on the facts established in defendant’s declarations.”  “Plaintiff has failed to rebut the evidence offered by defendant to establish that summary judgment is warranted on plaintiff’s policy or practice claim in Count II.”  “BOP receives an extraordinary number of FOIA requests each year, and ‘works tirelessly to promote governmental transparency and respond to FOIA requests providing as much releasable information as possible as quickly as it possibly can given [the Bureau’s] resource constraints and its backlog of outstanding FOIA requests.’”  “BOP has improved its training processes and made significant progress in addressing its FOIA backlog in recent years.”  “Indeed, BOP recently implemented a new structural change to the processing of FOIA requests, wherein one Central Office employee maintains national oversight over all FOIA request processing.”  “This program has allowed BOP staff to process 36.5% more requests per week than prior to its implementation, and to reduce its backlog.”  “Each of these facts serves to show that BOP does not have a policy or practice of ‘repeated, unexplained, and prolonged delay in making information available’ in response to FOIA requests until requester litigation is initiated.”  “Plaintiff's only effort to rebut BOP’s declarations is to point to its own FOIA requests ‘that have gone unanswered for months and even years,’ . . . along with admissions from BOP that it ‘has allocated resources away from its FOIA office and staff’ and ‘prioritizes requests in active litigation over other requests,’ . . . as evidence of a material dispute precluding the grant of summary judgment.”  “Such statements, however, neither support a finding of bad faith, . . . nor establish a genuine dispute of material fact as to whether BOP has a policy or practice of intentionally failing to comply with the agency’s FOIA obligations.”  “Defendant has provided detailed explanations of its process for responding to FOIA requests and the reason for delays in responding to requests, including explanation of ‘the challenges it faces regarding its backlog, and the steps that the Bureau has already taken in response to those challenges.’”  “‘These declarations are not controverted by any competent evidence’ provided by plaintiff, . . . and plaintiff’s reliance on BOP’s admitted delays in processing FOIA requests are insufficient to ‘suggest[] a policy or practice of violating’ the FOIA, . . . to preclude the grant of summary judgment in the face of BOP’s undisputed declarations providing multiple explanations for those delays, describing recently implemented and so far successful programmatic efforts to address delays, and denying that BOP has such a claimed policy or practice of violating the statute.”

• Litigation Considerations, Discovery:  The court holds that “Plaintiff fails to meet [the] standard to state with sufficient particularity why additional discovery is warranted on the record in this case.”  “Plaintiff merely states its belief that ‘discovery will yield more evidence of the nature and extent of BOP’s policy or practice of FOIA noncompliance.’”  “Certainly, permitting plaintiff to obtain discovery of, inter alia, BOP’s FOIA processes, training, resource allocation, prioritization to comply with court orders in ongoing FOIA litigation, and crushing increases in the volume of FOIA requests, could ‘yield’ a lot more information about any and all of those matters, but that misses the point.”  “Plaintiff has suggested nothing to rebut the presumption of good faith afforded to defendant’s declarations or to alter crediting BOP’s explanations for the delays about which plaintiff complains in responding to FOIA requests.”

• Litigation Considerations, Pleadings:  The court holds that “the Complaint’s Count I lacks clarity as to which of the FOIA requests . . . are covered, though the parties’ briefing on the pending motion and joint reports to the Court clarified that 39 outstanding FOIA requests remain at issue.”  “All but one of the dozens of individual FOIA claims in Count I will be severed.”  “[E]ach of the 39 FOIA requests at issue were submitted by plaintiff separately, almost all on different dates over a time span of three years, with each seeking different records related to different individuals or about the operations of various BOP programs.”  “The Complaint and [accompanying] Chart, even read together, provide little information to determine the precise subject matter of plaintiff’s requests for individual records, making any determination of similarities or overlap between the records requested impossible.”  “Thus, the only connections between the FOIA requests in these charts seem to be that they were filed by the same requestor, against the same agency, and form part of the basis of plaintiff’s policy or practice claim due to delays in response.”  “[The] Court has previously expressed concern about using FOIA policy-or-practice claims, which are cognizable in this Circuit, as a ‘hook’ to shoehorn a broad array of FOIA claims into a single civil action.”  “This sort of catch-all pleading has a tendency to delay, rather than expedite, the Court’s consideration of such cases because dispositive motions are inevitably filed in piecemeal fashion.”  “Severance of plaintiff's individual FOIA claims is thus appropriate . . . .”  “The conclusion is . . . based on the particular claims at issue in the instant case, which challenge the BOP’s handling, apparently, of 39 outstanding FOIA requests that seek records relating to different individuals or different types of more general BOP information, that are at varying stages of administrative processing and thus are ‘logically distinct’ and should be severed.”  “Thus, the claims encompassed in Count I, relating to the processing of 39 individual FOIA requests, in the interest of efficiency and judicial economy, will be severed – with the exception of the FOIA request submitted at the earliest date and pending the longest with BOP . . . – and dismissed unless, by March 22, 2024, plaintiff refiles claims for these FOIA requests in appropriate separate actions.”