Judicial Watch, Inc. v. U.S. Dep't of Homeland SEC.
895 F.3d 770
D.C. Cir.2018Background
- Judicial Watch submitted 19 FOIA requests (2014–2015) to the U.S. Secret Service for travel-related expenditure records; most requests received only acknowledgements/tracking numbers and then long silence.
- Judicial Watch filed suit after delays of 3–18 months; the Secret Service produced non-exempt records within months of suit, mooting the production claim.
- Judicial Watch also alleged a broader Count II: that the Secret Service has a policy or practice of violating FOIA procedural requirements by repeatedly failing to timely determine or produce records, and sought injunctive relief.
- The district court granted judgment on the pleadings for the Secret Service as to Count II, finding Judicial Watch’s allegations insufficient to show an agency policy or practice of violating FOIA.
- The D.C. Circuit reversed and remanded, holding that repeated, prolonged, unexplained delays can plausibly allege a FOIA "policy or practice" that preserves jurisdiction and may warrant injunctive relief.
- The court emphasized FOIA’s two-part scheme (agency procedural duties and judicial remedies) and precedent permitting challenges to informal practices of delay (not just formal policies or exemption misapplications).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeated, prolonged, unexplained delays in processing FOIA requests can state a "policy or practice" claim that avoids mootness even after voluntary production | Judicial Watch argued delays across many requests and repeated prior suits show an ongoing practice of ignoring FOIA timelines that will impair its future access and thus supports injunctive relief | Secret Service argued that a requester may sue when an agency misses statutory deadlines, and voluntary production after suit moots the case; procedural lapses alone (e.g., missing the 20‑day determination) do not establish an actionable policy or practice | Reversed: Court held that allegations of repeated, prolonged, unexplained delay plausibly plead a policy or practice of violating FOIA and survive mootness at the pleading stage |
| Whether the lapse of FOIA’s 20‑day determination period (or similar delays) alone is an actionable violation sufficient to plead a policy/practice claim | Judicial Watch contended the Service repeatedly failed to make determinations or produce records promptly, showing abuse of FOIA’s scheme | Secret Service contended missing the 20‑day deadline mainly frees requesters to sue and does not itself establish a statutory violation or systemic policy | Court: A mere missed 20‑day deadline is not per se dispositive, but a pattern of repeated, prolonged, and unexplained delays can amount to an abuse of FOIA’s scheme and plausibly support a policy/practice claim; agency must be given opportunity on remand to explain delays |
Key Cases Cited
- Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (agency's repeated unjustified delays can constitute an informal policy or practice keeping FOIA requests from being promptly satisfied and justify injunctive relief)
- Newport Aeronautical Sales v. Dep't of Air Force, 684 F.3d 160 (D.C. Cir. 2012) (followed Payne in preserving policy/practice claims where agency's repeated conduct suggested persisted non-disclosure)
- Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976) (agencies must exercise good faith and due diligence to process FOIA requests promptly; excessive delay can be tantamount to denial)
- Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C. Cir. 2013) ("promptly available" means production shortly after determination; statutory timetables are meaningful)
- Long v. I.R.S., 693 F.2d 907 (9th Cir. 1982) (unreasonable delays violate FOIA’s purpose; courts must prevent abuses)
- Dep't of Air Force v. Rose, 425 U.S. 352 (U.S. 1976) (FOIA fosters broad disclosure and judicially enforceable public right to information)
- Mink v. Department of Army, 410 U.S. 73 (U.S. 1973) (FOIA intended to open government information and provide judicial remedies)
- United States v. W.T. Grant Co., 345 U.S. 629 (U.S. 1953) (voluntary cessation doctrine: plaintiff must show wrongful conduct is not reasonably likely to recur)