Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________
)
JOAN WADELTON et al ., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-0412 (ESH) )
DEPARTMENT OF STATE, )
)
Defendant. )
_______________________________________)
MEMORANDUM OPINION
Plaintiffs Joan Wadelton and Truthout have filed suit pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq ., the Privacy Act, 5 U.S.C. § 552a et seq ., the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, and the All Writs Act, 28 U.S.C. § 1651, seeking to compel the United States Department of State to produce certain documents pertaining to Wadelton on an expedited basis. ( See Complaint (“Compl.”) [ECF No. 1] at 1, 12.) Plaintiffs filed a motion for a preliminary injunction simultaneously with their filing of the complaint. For the reasons stated below, the Court will deny plaintiffs’ motion.
BACKGROUND
Wadelton joined the Foreign Service in 1980 and worked her way up to the highest rank short of the Senior Foreign Service. ( See Compl. ¶ 7.) She has served in Iraq, among other places, and has been assigned to several prestigious posts. ( See Compl. ¶¶ 9-13.) Wadelton alleges that she has been treated unfairly by the State Department’s Bureau of Human Resources (“BHR”) since 2000, culminating in her termination in 2011 in retaliation for her whistleblowing activities regarding problems in the Foreign Service promotion process. ( Compl. ¶¶ 14-40; Plaintiff’s Motion for a Preliminary Injunction (“Pl. Mot.”) [ECF No. 3] at 1.) Truthout is a *2 news media organization that intends to publish a story about Wadelton’s case. ( See Pl. Mot. at 4). The State Department has recognized Truthout as co-requester on each of Wadelton’s FOIA requests. ( See Compl. ¶¶ 50, 57, 66, 74.)
Wadelton and Truthout have made three FOIA requests pertaining to Wadelton’s employment as a Foreign Service officer:
(1) July 17, 2012 request for all Office of the Legal Advisor records created about Wadelton since 2002;
(2) October 1, 2012 request for all emails and other documents pertaining to Wadelton from 2000-present maintained or created by BHR or in which a BHR employee or contractor was a sender or recipient; and
(3) October 1, 2012 request for all emails or other documents pertaining to Wadelton from 2004-present maintained or created by the Under Secretary of Management (“USM”) or in which a USM employee or contractor was a sender or recipient.
( See id . ¶¶ 47, 54, 61.) In response to this third request, the State Department informed plaintiffs that it has identified eighteen responsive records and will release eight in full, withhold six in full, and coordinate with other offices regarding the remaining four records. ( See id . ¶ 63.) On February 4, 2013, plaintiffs requested expedited processing of all three requests. ( See id . ¶ 64.) On February 14, 2013, plaintiffs appealed the State Department’s withholdings and requested expedited processing of the appeal. ( See id . ¶ 65.) On March 22, 2013, the State Department denied the request for expedited processing. ( id . ¶ 72.) Plaintiffs filed suit and moved for a preliminary injunction to force the State Department to process all three FOIA/PA requests and the appeal in expedited fashion.
ANALYSIS
I. Legal Standard
In considering a plaintiff’s request for a preliminary injunction, the Court must weigh
four factors: “(1) whether the plaintiff has a likelihood of success on the merits; (2) whether the
*3
plaintiff would suffer irreparable injury were an injunction not granted; (3) whether an injunction
would substantially injure other interested parties; and (4) whether the grant of an injunction
would further the public interest.”
Al-Fayed v. Cent. Intelligence Agency
,
“In deciding whether to grant an injunction, the district court must balance the strengths
of the requesting party’s arguments in each of the four required areas. If the arguments for one
factor are particularly strong, an injunction may issue even if the arguments in other areas are
rather weak.”
CityFed Fin. Corp. v. Off. Of Thrift Supervision
,
II. Applying the Four Preliminary Injunction Factors A. Likelihood of Success on the Merits
With respect to the first and most important factor in this case, FOIA directs agencies to
provide expedited processing when a requestor demonstrates “compelling need.” 5 U.S.C. §
552(a)(6)(E)(i)(II). FOIA defines “compelling need,” in relevant part, as meaning “with respect
to a request made by a person primarily engaged in disseminating information, urgency to inform
the public concerning actual or alleged Federal Government activity.”
Id
. § 552(a)(6)(E)(v). A
district court reviews an agency’s denial of expedition under the
de novo
standard, and does not
*4
defer to agency determinations of “compelling need.”
See Al-Fayed
,
The State Department does not contest that Truthout is “primarily engaged in disseminating information” or that the subject of the records concerns “actual or alleged Federal Government activity.” The only disputed issue, therefore, is plaintiffs’ claim of urgency. The Court of Appeals has held that
in determining whether requestors have demonstrated “urgency to inform,” and hence “compelling need,” courts must consider at least three factors: (1) whether the request concerns a matter of current exigency to the American public; (2) whether the consequences of delaying a response would compromise a significant recognized interest; and (3) whether the request concerns federal government activity. The legislative history also indicates that “[t]he credibility of a requestor” is a relevant consideration.
Al-Fayed
,
Plaintiffs – using the language of the State Department’s regulations, rather than the Court of Appeals’ standard – argue that “[t]he information responsive to these requests definitely has a particular value that will be lost if not disseminated quickly.” (Pl. Mot. at 4.) They base this assertion on four facts: (1) Wadelton’s story is “the subject of a widely-read series of articles written by veteran international affairs blogger Patricia Kushlis”; (2) Wadelton’s allegations *5 gave rise to a 2010 investigation by the State Office of the Inspector General (“OIG”); (3) there is an ongoing investigation by the Government Accountability Office (“GAO”) into Wadelton’s allegations; and (4) Truthout “intends to publish ‘an in-depth story on Ms. Wadelton’s case and its place in the greater picture of State Department bureaucracy.’” (Pl. Mot. at 4.)
None of these facts support a finding that there is an “urgency to inform.” That articles
on this topic appear on a specialized blog dedicated to the Foreign Service and are read by
“several thousand people” (Defendant’s Opposition to Plaintiff’s Motion for a Preliminary
Injunction (“Def. Opp.”) [ECF No. 7] at 11), does not demonstrate that the information is a
“matter of a current exigency to the American public.”
Al-Fayed
,
By way of contrast, courts have found a “compelling need” to exist when the subject
matter of the request was central to a pressing issue of the day, such as public debate over the
renewal of the USA PATRIOT Act,
see Amer. Civil Liberties Union v. Dep’t of Justice
, 321 F.
Supp. 2d 24, 29 (D.D.C. 2004); a breaking news story about domestic surveillance of anti-war
protesters,
see Am. Civil Liberties Union of N. Cal. v. United States Dep’t of Def
. (“
ACLU-NC v.
DOD
”), No. C 06-1698,
While this motion was pending, plaintiffs supplemented the record with an article that recently appeared on The Atlantic magazine’s website, but the submission merely highlights the contrast between this case and those in which “compelling need” has been found. ( See Notice of Filing of Additional Exhibit [ECF No. 9] (attaching D.B. Grady, The State Department Need a Watchdog – Now, Not Later , Atlantic, Apr. 23, 2013,
http://www.theatlantic.com/nationa/archive/2013/04/the-state-department-needs-a-watchdog-
now-not-later/275198).) In those cases, plaintiffs successfully demonstrated the existence of
widespread media interest by citing nearly one thousand hits in the Nexis database for relevant
articles during the previous ninety days,
see Gerstein v. Cent. Intelligence Agency
, No. C 06-
4643,
In sum, the Court concludes that plaintiffs are not likely to succeed on the merits of their claim to expedited processing. Therefore, there is no need for the Court to consider the remaining factors. However, even if these were to be considered, they would not favor plaintiffs.
B. Irreparable Injury to Plaintiffs Plaintiffs’ arguments regarding the irreparable injury prong are essentially the same as their arguments for compelling need. They argue that there is a “public discussion taking place now” and a citizen has the “right to engage in the public debate at the time of the public debate.” (Pl. Mot. at 5, 6) (emphasis in the original). For the reasons articulated above, the Court does not find that there is a robust public discussion taking place on this topic at this time, such that plaintiffs would be harmed by receiving the information they seek at a later date.
C. Lack of Injury to the State Department
Plaintiffs suggest that their requests should not cause any hardship to the State Department. State has not made any representations in this regard, but the Court is well aware that many FOIA requesters are standing in line waiting for the agency to fulfill their obligations under FOIA [2] and sequestration will undoubtedly only diminish the agency’s ability to respond in the future to FOIA requests in timely fashion.
*8 D. Public Interest
Plaintiffs argue that a preliminary injunction will be in the public interest, based on little
more than the core purpose of FOIA being to “allow the public to be informed about ‘what their
government is up to’” – in this case, with respect to the Foreign Service promotion process. (Pl.
Mot. at 6 (quoting
Dep’t of Justice v. Reporters Comm. for Freedom of the Press
,
CONCLUSION
For the reasons stated above, the Court finds that plaintiffs are not entitled to a preliminary injunction and it will therefore deny plaintiffs’ motion. A separate Order accompanies this Memorandum Opinion.
/s/ ELLEN SEGAL HUVELLE United States District Judge Date: April 25, 2013
Notes
[1] The Court of Appeals, however, noted that FOIA gives agencies “latitude to expand the criteria
for expedited access” beyond cases of “compelling need,” and such regulations would be entitled
to deference.
Al-Fayed
,
[2] For fiscal year 2012, the State Department (including OIG) had 8,611 FOIA requests pending at the outset; received 18,521 new requests; processed 15,343 requests; and ended with 11,789 requests still pending. U.S. Department of State Freedom of Information Act Annual Report Fiscal Year 2012, at 10, http://www.state.gov/documents/organization/205272.pdf.