411 F.Supp.3d 5
D.D.C.2019Background
- Plaintiff Center for Public Integrity submitted FOIA requests to the Department of Defense (DOD) and Office of Management and Budget (OMB) seeking communications about the DOD’s Ukraine Security Assistance Initiative (USAI), including communications involving acting comptroller Elaine McCusker.
- Plaintiff requested expedited processing given the requests’ close connection to ongoing House impeachment proceedings; DOD denied expedited processing and OMB had not decided before suit.
- Plaintiff sued (Oct. 30, 2019) and moved for a preliminary injunction to compel production of all non-exempt responsive records by December 12, 2019 (or another prompt date).
- After briefing, Defendants identified 120 unique responsive records (~211 pages) and agreed to produce all non-exempt responsive information by December 20, 2019 and to make an initial production on December 12, 2019, but did not specify how many pages would be produced on December 12.
- Plaintiff sought at least half the pages (~106) in the December 12 production and the remainder by December 20; the Court granted the preliminary injunction ordering at least 106 pages processed and produced by December 12 and the rest by December 20 (with rolling releases as practicable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to expedited processing under FOIA | Center for Public Integrity is a news-disseminator with a compelling need because the records are urgently needed to inform the public about ongoing impeachment-related government activity | DOD said plaintiff did not clearly show that the information would lose value if not expedited; OMB had not decided | Court: Plaintiff likely to succeed on merits of expedited-processing claim—plaintiff showed compelling need tied to imminent congressional proceedings |
| Irreparable harm from delay | Delay would prevent public from timely access to information central to impeachment hearings; stale info loses value for immediate public debate | Defendants: no definite end-date to proceedings; many responsive portions may be exempt so harm speculative | Court: Delay constitutes irreparable harm—ongoing proceedings create daily harm to public discourse; expedited release is warranted |
| Balance of hardships & public interest | Public interest in disclosure of government activity during impeachment outweighs defendants' administrative burden | Defendants: FOIA processing burden and backlog; expedited treatment may delay others | Court: Hardship to government minimal (211 pages) and public interest favors disclosure; equities tip to plaintiff |
| Scope & timing of relief requested | At least half (~106 pages) processed and released by Dec 12; remainder by Dec 20; rolling releases | Defendants agreed to produce by Dec 20 and an initial December 12 production but would not commit to page split; asserted rolling production slows processing | Court: Ordered processing/production of at least 106 pages by Dec 12 and all remaining non-exempt pages by Dec 20; rolling releases encouraged |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (preliminary injunction is extraordinary; movant must show likelihood of success and irreparable harm).
- Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (discussing preliminary injunction standard in D.C. Circuit).
- Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (four-factor preliminary injunction framework).
- Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) (sliding-scale discussion for injunction factors).
- Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270 (D.D.C. 2012) (evaluating entitlement to expedited FOIA processing).
- The Washington Post v. U.S. Dep’t of Homeland Sec., 459 F. Supp. 2d 61 (D.D.C. 2006) (preliminary injunction/expedited FOIA relief where records implicated imminent public debate).
- Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006) (granting preliminary injunction to permit timely public access during ongoing oversight).
- NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) (purpose of FOIA to ensure an informed citizenry).
- Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (stale information has diminished value).