498 F.Supp.3d 87
D.D.C.2020Background
- In July 2020 the Brennan Center sent substantially identical FOIA requests to nine federal entities seeking records about the 2020 Census: methodology for state-population totals, any use of citizenship data, and processes for reporting/apportionment.
- The Brennan Center sought expedited processing; most agencies denied or did not timely grant expedition; limited grants and slow processing followed.
- Key contextual events: Executive Order 13880 and a presidential memorandum about excluding unlawful aliens from apportionment; Supreme Court and district-court litigation over those actions; COVID-19-related operational changes and deadline disputes for the Census.
- Brennan Center sued (filed Sept. 21, 2020) and moved for a preliminary injunction (Oct. 2) asking expedited processing and production of Vaughn indices by Nov. 2, 2020.
- Statutory deadlines implicated: Commerce must report state totals by Dec. 31, 2020; presidential transmission to Congress by Jan. 10, 2021; Clerk must issue reapportionment certificates by Jan. 25, 2021—the court treated Jan. 25 as the dispositive end of the active reapportionment process.
- The Court granted the motion in part: all Defendants except OLC must process Parts 1–3 and provide rolling productions and Vaughn indices by January 11, 2021, so the Brennan Center can use records by Jan. 25, 2021.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to expedited processing under FOIA | Requests involve a matter of widespread, exceptional public interest and Brennan Center is primarily engaged in disseminating information with urgency to inform the public | Agencies said they are complying with expedition standards and pointed to backlog/staffing burdens; contested breadth of Part 4 | Court: Brennan Center likely entitled to expedition under both "widespread and exceptional interest" and "urgency to inform" tests for Parts 1–3 and Part 4 (though Part 4 later limited on timing grounds) |
| Whether processing must be completed by Nov. 2, 2020 | Nov. 2 is needed to litigate withholdings before Dec. 31 reporting deadline | Agencies: statute requires processing "as soon as practicable" but backlog and other expedited requests justify more time | Court: Brennan Center failed to show November 2 is required; Nov. 2 denial. But court found completion by Jan. 11, 2021 (for Parts 1–3) required so records can be used by Jan. 25, 2021 |
| Irreparable harm from delay | Delay would make information stale and prevent public participation in an ongoing, time-limited reapportionment process | Agencies argued debate could continue beyond reapportionment and that no irreparable harm is shown | Court: Brennan Center showed irreparable harm if it does not receive Parts 1–3 in time to use by Jan. 25, 2021 (process ends then); did not show irreparable harm tied to Nov. 2 or for Part 4 |
| Scope/timing for Part 4 (broad lists of persons/orgs) | Part 4 related to Census and linked to Parts 1–3; seeks communications with identified entities | Agencies said Part 4 is overbroad and need not be completed by the same date | Court: Part 4 meets expedition standards but Brennan Center did not show it needed completion by the January 11 date; Part 4 not compelled on same schedule as Parts 1–3 |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (governing preliminary injunction standard)
- Department of Commerce v. New York, 139 S. Ct. 2551 (2019) (context on citizenship question and census procedure)
- National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) (public access and the role of information in democracy)
- Payne Enterprises v. United States, 837 F.2d 486 (D.C. Cir. 1988) (stale information has diminished public value)
- Center for Public Integrity v. Department of Defense, 411 F. Supp. 3d 5 (D.D.C. 2019) (date-certain FOIA relief where records would become stale during ongoing national proceedings)
- Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) (high standard for irreparable injury)
- League of Women Voters of the U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) (irreparable harm in time-sensitive public-information contexts)