Keeping Government Beholden, Inc. v. Department of Justice
Civil Action No. 2017-1569
| D.D.C. | Dec 1, 2017Background
- Plaintiff Keeping Government Beholden, Inc. sued DOJ/FBI seeking records responsive to Count Five: emails sent/received by former FBI Director James Comey from 1/1/17–5/9/17 containing the word "transitory."
- Plaintiff asked the district court to order expedited processing of those records under 28 U.S.C. § 1657(a), requesting biweekly releases at a rate >500 pages/month.
- Plaintiff did not request expedited processing from the FBI at the administrative level under FOIA’s expedited-processing provision, 5 U.S.C. § 552(a)(6)(E).
- DOJ/FBI opposed judicial-ordered expedition and submitted a declaration stating responsive documents have been located and preserved.
- The court considered whether § 1657(a) can be used to require an agency to expedite FOIA processing and whether plaintiff demonstrated the "good cause" needed to invoke § 1657(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may use 28 U.S.C. § 1657(a) to compel an agency to expedite FOIA processing | § 1657(a) allows a court to expedite consideration and thus can be used to order DOJ to speed processing | FOIA provides the administrative mechanism for expedition; § 1657(a) does not authorize courts to order agencies to expedite processing | Court: § 1657(a) is not plainly applicable to compel agency FOIA processing; FOIA’s administrative expedition remedy is the proper route |
| Whether plaintiff’s failure to seek agency-level expedition can be excused | Plaintiff contends § 1657(a) provides an alternative path and seeks judicial expedition without administrative request | Defendant argues plaintiff must first seek expedition administratively under FOIA; courts have required exhaustion of that procedure | Court: Plaintiff’s failure to seek administrative expedition is not excused absent a clear statutory basis and strong showing of need |
| Whether plaintiff demonstrated "good cause" for expedited judicial review under § 1657(a) | Plaintiff asserted public interest and concern about possible destruction of records justify expedition | Defendant noted lack of urgent, specific need and represented documents are preserved; many similar requests exist and public interest alone is insufficient | Court: No showing of the type of urgent need (e.g., death penalty, imminent deportation) required to invoke § 1657(a); denial of expedition |
| Whether preservation concerns justified immediate judicial relief | Plaintiff alleged imminent destruction risk of responsive records | Defendant declared all potentially responsive documents have been located and preserved | Court: Preservation by FBI moots urgency; no relief granted |
Key Cases Cited
- American Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24 (D.D.C. 2004) (requiring FOIA requestors to seek administrative expedition before seeking court relief)
- Judicial Watch, Inc. v. U.S. Naval Observatory, 160 F. Supp. 2d 111 (D.D.C. 2001) (agency should be given first opportunity to address expedition requests)
- Hidalgo v. Federal Bureau of Investigation, 344 F.3d 1256 (D.C. Cir. 2003) (discussing administrative record development and agency role in FOIA disputes)
- Summers v. Department of Justice, 733 F. Supp. 443 (D.D.C. 1990) (courts have used § 1657(a) in FOIA context only where manifest urgent need existed)
- Ferguson v. Federal Bureau of Investigation, 722 F. Supp. 1137 (S.D.N.Y. 1989) (expedition granted where lengthy agency delay implicated defendant’s liberty)
- Long v. Department of Homeland Security, 436 F. Supp. 2d 38 (D.D.C. 2006) (public interest alone, without specific time-sensitive need, does not justify expedited processing)
Decision: Plaintiff’s motion to expedite under 28 U.S.C. § 1657(a) is DENIED. The court encouraged negotiation with the government for a faster processing schedule.