MEMORANDUM OPINION
Beginning in the spring of 2015, numerous print, television, and internet media outlets began aggressively investigating and reporting on former Secretary of State Hillary Clinton’s use of a private email server during her time at the U.S. Department of State (“State Department” or “agency”). The plaintiff, a 24-hour online news publication, submitted five requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the State Department seeking the .release of records potentially related to its ongoing coverage of this story. , Although .the State Department has acknowledged receipt of these requests, and has agreed to process each request on an expedited basis, the agency has neither completed its collection and review of potentially responsive records nor produced more than a small number оf records in response to the plaintiffs requests.
Seeking to accelerate further the agency’s processing of its outstanding, requests, the plaintiff initiated this action on October 21, 2015. See Compl., ECF No.^1. Pending before the Court is the plaintiffs Motion for Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65, seeking an order requiring the State Department to collect, review and produce all non-exempt documents responsive to each of its outstanding request's-within the next twenty business days. PL’s Mot. Prelim. Injunc. (“PL’s- Mot.”), ECF No. 3; see also Compl. at 1L-12. For the reasons discussed below, the plaintiffs motion is denied.
I. BACKGROUND
• With public attention turning to the 2016 presidential election, and former Secretary of State Clinton’s candidacy for the Democratic nomination, the State Department has since late 2014 received numerous FOIA requests seeking documents rеlated to various aspects of Clinton’s tenure at the agency. In particular, following initial reports of Clinton’s use of a private email server in early March 2015, see Michael S. Schmidt, Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules, N.Y. TIMES (Mar. 2, 2015), numerous, individual reporters and publications filed FOIA requests seeking State Department records related to this arrangement, including emails that were in the possession of former Secretary Clinton and members of her staff, .Order Denying Mot. Designation of Coordinating Judge at 1, In re: U.S. Dep’t of State FOIA Litig. Regarding Emails of Certain Former Officials, No. 15-mc-1188 (D.D.C. Oct. 8, 2015), ECF No. 41. These requests, and the attendant challenges in responding 'fully and on a timely basis to each request, have in turn begat extensive litigation against the State Department, with some three dozen cases stemming from these requests pending before this Court as of early October 2015. Id.
After the State' Department’s motion to designate a coordinating judge to oversee these cases was denied, id.- at 2, the cases
Among this flood of Clinton-related activity are the five requests at issue here, which the plaintiff submitted to the agency between March 2015 and August 2015. The plaintiffs requests are summarized as follows:
• FOIA Request F-2015-04623 (March 3, 2015), seeking all State Department processing, notes stemming from six prior FOIA requests submitted by the plaintiff seeking information relating to Secretary Clinton’s emails and those of her aides. Deck Chuck Ross (“First Ross Deck”) ¶ 6, ECF No. 3-2.
• FOIA Request F-2015-04646 (March 5, 2015), seeking all communications, electronic or otherwise, sent to or from various senior State Department officials referring in any way to Secretary Clinton. Id. ¶ 11.
• FOIA Request F-2015-04997 (March 11, 2015), seeking all separation statements signed by Sеcretary Clinton or three former aides. Id. ¶ 15.
• FOIA Request F-2015-11536 (June 27,2015), seeking all records handled by a State Department Undersecretary pertaining to Secretary Clinton’s use of a personal email address and private server. Id. ¶ 19.
• FOIA Request F-2015-12685 (Aug. 5, 2015), seeking all employment records related to a former State Department special information technology advisor, as well as any emails sent to or from this advisor or sent to or from the previously referenced former Undersecretary referring to this advisor. Id. ¶ 23.
After acknowledging receipt of each of these requests, the State Department granted, on or before August 11, 2015, the plaintiffs further application for both expedited processing and a fee waiver as a member of the news media. Id. ¶¶ 6, 11, 15, 19; Sec. Deck Chuck Ross (Nov. 24, 2015) (“Sec. Ross Deck”) ¶ 19, ECF No. 17-1. While failing to prоvide a definite time limit for its processing of each of these requests, First Ross Deck ¶¶ 8, 12, 16, 20, 25, the agency has notified the plaintiff that certain of the sought-after documents have been made publicly available on the agency’s website in response to other outstanding FOIA requests, Hackett Deck ¶ .12.
To process the plaintiffs requests, the agency has assigned a designated FOIA analyst to coordinate the search for and review of potentially responsive records. Id. ¶ 15. As of November 19, 2015, the agency’s Director of Information Programs and Services reports that this effort is ongoing, and the agency has yet to determine the total volume of potentially responsive records. Id. Further, because
Nonetheless, not content' with the current processing pace, and contending that the agency is under á strict dutyvto process fully all FOIA requests within twenty days of receipt, the plaintiff filed this action to hasten the release of all nonexempt agency records responsive to its various requests. See PL’s Mot. Specifically, the plaintiff requests a court order requiring the agency to: (1) expedite processing of each of the plaintiffs outstanding FOIA requests;
II. LEGAL STANDARD
' “ ‘A [party] seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.’” Aamer v. Obama,
The D.C. Circuit has, in the past, followed the “sliding scale” approach to evaluating preliminary injunctions, where “a court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant [preliminary relief] .if the movant, has made a substantial case on the merits.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,
The viability of the sliding scale approach is questionable, however, in light of the Supreme Court’s holding in Winter v. Nat. Res. Def. Council,
Finally, where, as here, the plaintiff’s requested injunction is “mandatory— that is, where its'terms would alter, rather than preserve, the status quo by commanding some positive act,” judges on this Court have required the moving party to “meet a higher standard than in the ordinary ease by showing clearly that he or she is entitled' to relief or that extreme or very serious damage will result from the denial of the injunction.” See, e.g., Elec. Privacy Info. Ctr. v. Dep’t of Justice,
III. DISCUSSION
Filed concurrently with the plaintiff’s initial Complaint, the instant motion is striking both in its mandatory nature and in the scope of preliminary relief the plaintiff requests. Indeed, in seeking a preliminary order requiring the State Department to process fully the plaintiffs outstanding FOIA requests, and produce all responsive non-exempt documents within twenty business days, the plaintiff es
With this in mind, the plaintiffs request for immediate injunctive relief is; analyzed below after an overview of the relevant statutory and regulatory provisions applicable to the plaintiffs outstanding FOIA requests.
A. Statutory and Regulatory Framework
Congress enacted the FOIA as a means “to ‘open agency action to the light of public scrutiny,’ ” Am. Civil Liberties Union v. U.S. Dep’t of Justice,
Under both the statute and the State Department’s implementing regulations, the agency generally must determine'within twenty days after receipt of a FOIA request “whether to comply with such request.”- 5 U.S.C. § 552(a)(6)(A)(i); see also 22 C.F.R. § 171.12(d).
In general, federal agencies process incoming' FOIA requests on a first-in/first-out basis. See Open Am. v. Watergate Special Prosecution Force,
State Department regulations implementing this provision provide that “[r]equests ... shall be taken out of order and given expedited treatment whenever a requester has demonstrated that a ‘compelling need’ for the information exists.” 22 C.F.R. § 171.12(b).
Set against this background, the Court turns next to the plaintiffs request for preliminary injunctive relief. As more fully explained below, because the plaintiff has failed to demonstrate, that extraordinary injunctive relief is warranted to hasten the agency’s response to the plaintiffs expedited requests, the plaintiffs motion will be denied.
B. The Plaintiff Fails to Demonstrate that Preliminary Relief is Warranted
The parties do not dispute that this Court maintains the authority to grant the plaintiffs requested equitable relief. Indeed, FOIA grants this Court “jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld,” 5 U.S.C. § 552(a)(4)(B), and the statute “imposes no limits on courts’ equitable powers in enforcing its terms,” Payne Enters., Inc. v. United States,
In opposing the present motion, the State Department contests only that- it is required to process fully the plaintiffs requests and produce all responsive, nonexempt records within a statutory twenty-day deadline, such that the plaintiff is entitled to production of the sought-after records in less than a month. Def.’s Mem. Oрp’n PL’s Mot. Prelim. Injunc. at 10 (“Def.’s Opp’n.”), EOF No. 14. Instead,, given the agency’s ongoing effort to process the plaintiffs requests as quickly as possible within the resource constraints imposed by its current workload, the agency argues that its current efforts are already in full compliance with its duty to produce the requested records “as soon as practicable.” Id.
To assess whether the plaintiff is entitled to further acceleration of this ongoing process in the form of the injunctive relief requested, each of the four factors governing issuance of a preliminary injunction is examined.
1. The Plaintiff Fails to Establish a Likelihood of Success on the Merits
Turning first to the ■ plaintiffs likelihood of success on the merits, the plaintiffs contention that it is “exceedingly likely” to prevail in its claim against the agency relies largely on its faulty-assumption that the agency is under a strict mandate to process incoming FOIA requests in no more than twenty days. PL’s Mem. Supp. PL’s Mot. Prelim. Injunc. (“PL’s Mem.”) at 5-11, ECF No. 3-1. Under the plaintiffs proposed construction of FOIA and implementing State Department regulations, the statute requires the agency to process all standard FOIA requests within twenty business days of receipt. Id. at 6. By extension, because requests granted expedited status must be processed before standard requests, id. at 6-7 (citing 5 U.S.C. § 552(a)(6)(E)(iii)), the plaintiff argues that an agency that “violates the twenty-day deadline applicable to standard FOIA requests presumptively also fails to process an expedited request ‘as soon as practicable.’ ” Id. at 7 (internal quotations omitted) -(quoting Elec. Privacy Info. Ctr. v. Dep’t of Justice,
The agency responds that the FOIA provision authorizing expedited processing is merely an “ordering mechanism” designed to,allow requesters demonstrating an urgent need for agency records to “avoid the ordinary ‘first in, first out’ pro--cessing queue.” Def.’s Opp’n at 11 (citing Hackett Decl. ¶ 8). According to the agency, because this provision requires only that agencies process requests granted expedited status “as soon as practicable,”, an agency’s efforts to respond to an outstanding FOIA request must be reviewed under this “practicability” standard. Id. at 11. Further, relying on the D.C. Circuit’s recent holding in Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n,
Much the same, though FOIA generally requires agencies to make a determination as to its anticipatéd response to an incoming request within twenty days, the ’plaintiff misconstrues the consequences of an agency’s failure to meet this deadline. As previously noted, FOIA generally requires agencies to determine within twenty days after receipt of a FOIA request “whether to comply with such request.” 5 U.S.C. § 552(a)(6)(A)©; see also 22 C.F.R. § 171.12(d). Under the plaintiffs cramped interpretation, this provision flatly requires agencies to provide an initial determination'to all FOIA re-questers no more than twenty days after receipt of their respective requests. On the contrary, however, the CREW Court explained that this twenty-day- deadline serves primarily as a means to obtain immediate judicial supervision over an agency’s response to an outstanding FOIA request. CREW,
Indeed, far from demanding full collection and review of responsive documents ■within twenty days, FOIA explicitly provides for continued processing of a request pending the outcome of litigation challenging an agency’s delayed response. Thus, where a requester seeks judicial review under this provision, “the agency'may continue to process the request, and-the court ... will supervise the agency’s ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request.” Id. at 189 (citing 5 U.S.C. §. 552(a)(6)(C)). “Once in. court, ... the agency may further extend its .response time if. it demonstrates ‘excеptional circumstances’ to the court.” Id. at 185 (citing 5 U.S.C.' § 552(a)(6)(C)©). If the agency makes such a showing, “then so long as ‘the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its re
Properly understood, then, the fact that the State Department did not issue a final determination within the twenty-day statutory deadline is sufficient to merit immediate judicial review of the agency’s diligence in responding to the plaintiffs requests, Standing alone, however, this fact does* not conclusively demonstrate that the plaintiff is likely to prevail in its underlying effort to accelerate the processing of its FOIA requests and the ultimate production of any responsive, non-exempt records. Accord EPIC II,
Likewise, while the plaintiff argues that Judges on this Court have routinely granted the relief plaintiff requests where a FOIA requester demonstrates an urgent need for requested agency records, the plaintiffs reliance on distinguishable, noil-binding precedent offers scant support for its contention that it is likely to prevail in the instant action. For example, the plaintiff relies on EPIC I for the proposition that a “prima facie showing of agency delay exists when an agency fails to process an expedited FOIA request within the time limit applicable to standard FOIA requests.” EPIC I,
. The plaintiffs reliance on Wash. Post v. Dep’t of Homeland Sec.,
Nonetheless, even assuming that the statute does not impose a strict twenty-day deadline, the plaintiff further contends that the agency has failed to demonstrate that the present delay is the result of “exceptional circumstances” or that the agency is otherwise exercising due diligence in processing the plaintiffs requests. Pl.’s Reply at 9-15. In particular, describing the agency’s FOIA caseload throughout the last decade, the plaintiff argues that the present backlog of requests is not unusual. Id. at 11-13. Thus, because “exceptional circumstances” is defined to exclude “a delay that results from a predictable agency workload of requests ..., unless the agency demonstrates reasonable progress in reducing its backlog of pending requests,” 5 U.S.C. § 552(a)(6)(C)(ii), the plaintiff contends that the agency cannot rely on this provision to prolong its review of the plaintiffs requests, PL’s Reply at 10 (citing authorities). For its part, the State Department asserts that its FOIA resources “are currently strained to the limit by the volume of FOIA litigation — including but not limited to, FOIA litigation implicating the emails of former Secretary Clinton and other former officials.” Id. (citing Hackett Decl. ¶¶ 6-7).
The D.C. Circuit has yet to delineate which party bears the burden in demonstrating either exceptional circumstance, or a lack thereof, in resolving a request for a preliminary injunction under FOIA. See CREW,
Second, as previously noted, supra Part I,-the agency is presently engaged in extensive litigation, involving nearly three dozen separate cases before multiple Judges on this Court. In addition to the agency’s increased workload, the agency has presented evidence that this ongoing litigation has further strained the State Department’s FOIA-related resources. Hackett Decl. ¶ 5- 7,15. Finally, as noted above, the State Department has demonstrated that it is taking steps to reduce the present backlog both through the dedicated work of current State Department employees, as well as other federal employees detailed to assist this effort, and through
For these reasons, at least at this stage of the litigation, the plaintiff has failed to demonstrate a substantial likelihood that it will prevail on the merits of its claim against the agency. 4
2. The Plaintiff Fails to Demonstrate Risk of Irreparable Harm
The plaintiff argues' that any further delay in the production of responsive, noh-exempt records works an irreparable injury by depriving the plaintiff of its ability to “provide its unique analysis and reporting onto the ‘breaking’ and ‘ongoing’ news story” at issue here. Pl.’s Mem. at 9: Relying again on the authorities discussed above, the plaintiff suggests that this Court has routinely mandated the release of rеcords subject to an outstanding FOIA request for records related to such “urgent news stor[ies].” Id. at 8 (citing authorities).
Without doubt, timely disclosure of information of potential public ’interest was among Congress’s central aims in enacting FOIA. Indeed, Congress has long recognized that “information is often Useful only if it is timely[, such that] excessive delay by the agency in its response is often tantamount to denial.” H.R.Rep. No. 93-876, at 6‘(1974). The D.C. Circuit likewise has emphasized this interest in prompt disclosure of time-sensitive information held by federal agencies, noting that “stale information is of little value.” Payne Enters.,
Though mindful of the plaintiffs significant interest in receiving timely access to documents with''potential bearing on a matter of obvious’ public- interest, the Court is not persuaded that any injury the plaintiff will experience absent the requested injunction will irreparably hinder its'ability to continue its coverage. Contrary to the' plaintiffs assertion that the agency has provided no indication of the time frame in which it expects to respond to the plaintiffs requests, the State Department has indicated both that it has assigned an analyst to coordinate the search-for and processing of records potentially responsive to the plaintiffs requests, Hackett Decl. ¶ 15, and that a reviewer with the necessary credentials and expertise -will be available to assist in final processing in early 2016, id. ¶-22. Thus, the plaintiffs requested injunction would compel production of the sought-after- materials, at most, only marginally sooner than the agency -has indicated it intends to complete its processing of- the plaintiffs request without -such - compulsion, Cf. Wash. Post,
Finally, even assuming the plaintiff maintains a unique interest in the accelerated processing of its own outstanding requests, this interest, must be weighed against the corresponding interests of other similarly situated requesters. As discussed below, the plaintiff’s broad interest in timely disclosure is largely. offset by both the interests of the plaintiffs fellow requesters and the public interest in careful review, of potentially sensitive agency records.
3. Both the Balance of Equities and the Public Interest Weigh Against Imposition of an Arbitrary Disclosure Deadline
Again relying on its misguided interpretation of FOIA’s statutory deadlines, • the plaintiff argues, that any burden imposed by requiring the agency to process fully the plaintiff’s requests within- .twenty days •is easily outweighed by-the plaintiffs asserted interest in prompt disclosure.- Pl.’s Mem. at 9-10. Further, the plaintiff-contends that the expedited status already granted to each the FOIA requests at issue obviates any claim of undue burden on the agency to process FOIA requests “according to an expedited .processing schedule.” Id, at 9-10. Finally, invoking the broad aim of public disclosure embodied by FOIA and the “great public and media attention associated with” Secretary Clinton’s tenure аt the State Department, the plaintiff contends that the requested injunction would serve -the public interest by requiring’earlier production of the requested records.' Id, at 10-11. ■
Even taking into account both the broad public interest in disclosure and the plaintiffs unique interest'in obtaining a prompt response to its particular requests, however, the plaintiffs effort to jump to the head of the FOIA processing line would work a significant burden- on both the agency and numerous interested parties. For example, as the Court has summarized above, the agency already has committed significant resources to . the expeditious processing of the recent deluge- of Clinton-related FOIA requests. See supra Part I. In .so doing, and in working to process all outstanding, requests as quickly as possible, the agency has a -responsibility to balance the publiс’s interest in disclosure with equally important public and private interests in safeguarding potentially sensitive information. United Techs. Corp.,
In short, forcing the agency to produce all requested records on an impracticably brief deadline, raises, a significant .risk,,of harm to the public and private interests served by the thorough processing of responsive agency records prior to their ultimate production. At the same time, the plaintiffs effort to accelerate review of its requests necessarily will displace in processing priority those of third parties who submitted equally urgent requests before the plaintiff. Balanced against these substantial interests, the plaintiffs bald reliance on its own interest in obtaining the sought-after records and the more generalized public interest in the disclosure of those records does little to distinguish the plaintiffs requests from every other time-sensitive FOIA request. For that reason, the Court finds that the plaintiff has failed to demonstrate that any harm that may accrue to it, absent the requested extraordinary relief, clearly outweighs the irreparable harm that may result from granting the requested preliminary injunction.
IY. CONCLUSION
Having failed to demonstrate that any of the factors governing the Court’s review of the instant motion point in its favor,,th# plaintiff cannot meet it's burden to show that issuance of a preliminary injunction is warranted. Accordingly, for the foregoing reasons, the plaintiffs request for immediate relief on the merits of its underlying аction, and the entry of an order requiring the agency to process and produce all nonexempt requested agency records, along with a Vaughn index, within a month, is DENIED.
The plaintiffs claim therefore will proceed to the merits, with the Court exercising its authority to supervise the agency’s progress in processing the plaintiffs requests while ensuring that the agency continues to exercise due diligence in doing so. CREW,
Notes
. On November 6, 2015, at the Court’s direction, the parties jointly submitted a briefing schedule to govern the resolution of the instant motion. See Joint Status Report & Proposed Briefing Schedule, ECF No. 12. The Court observes that; in proposing this briefing schedule, the parties necessarily agreed, and the Court finds, that a ruling on the plaintiff's application for preliminary injunction beyond the 21-day timeline set forth in Local Civil Rule 65.1(d) will not prejudice the parties. See LCvR 65.1, • .
. In initiating this action, the plaintiff initially sought an order compelling the agency: to grant the plaintiff's request for expedited processing of its August 5, 2015 request. Compl. at 11. In subsequent filings, however,¿.the parties Indicate ■ that the State Department granted this request on August 11, 2015. See PL’s Reply Supp. Pl,'s Mot. Prelim. Injunc. at 3 n.3,EGF No. 17 (citing Hackett Decl, ¶ 14 &‘Ex. 5 and Sec. Ross Decl-. ¶¶ 19-20). Accordingly, the plaintiff’s request for injunc-tive relief on this score is denied as moot.
. A Vaughn index identifies agency records responsive to a FOIA re'quests that are withheld from disclosure-under one or more statutory exemptions. See Vaughn v. Rosen,
. The D.C. Circuit has not opined on the issue, but application of a heightened standard of review to requests for mandatory preliminary injunctive relief has been adopted by other Circuits. See, e.g., Pashby v. Delia,
. FOIA permits an agency to extend this twenty-day deadline by no more than ten days in "unusual circumstances” and upon written notice to the requester. 5 U.S.C. § 552(a)(6)(B)(i). An agency seeking additional time to respond may also provide a requester "аn opportunity to arrange with the agency an alternative time frame.for processing the request.” Id. § 552(a)(6)(B)(ii). The defendant has provided no such notice or opportunity to the plaintiff in response to any of the relevant. requests. See Compl. ¶ 57.
. As relevant here, these regulations define “compelling need” to include, inter alia, a demonstration that "[t]he information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity.” 22 C.F.R. § 171.12(b)(2) (indicating that "[n]ews media requesters would normally qualify"); see also 5 U.S.C. § 552(a)(6)(E)(v)(II).
. The D,C. Circuit subsequently held in another case that not all White House visitor logs maintained by the U.S. Secret Service are "agency records” within the meaning of the statute. Judicial Watch, Inc. v. United States Secret Serv.,