Recent Court Rulings on Demands for Expedited Processing Demonstrate Key Takeaways to Reduce Delay for Individuals Submitting FOIA Requests

During the past year, the COVID-19 pandemic has illuminated, more than ever before, the critical role government agencies have in virtually all aspects of our lives, including public health. The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., is the federal law which mandates disclosure of  records and information maintained by governmental agencies absent specific exemptions and exclusions set forth in the statute. Under FOIA, agencies are also required to grant a request for expedited processing if the requester “demonstrates a compelling need” by showing either (1) that the requester is a “person primarily engaged in disseminating information” and that an “urgency to inform the public concerning actual or alleged Federal Government activity” exists; or (2) “that a failure to obtain requested records on an expedited basis … could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.” 5 U.S.C. § 552(A)(6)(E)(v). If a requester succeeds in demonstrating a compelling need for completion of the  FOIA request, the agency must process the request as quickly “as practicable”. 5 U.S.C. § 552(a)(6)(E)(iii).

During the pandemic, many agencies experienced a significant increase in FOIA demands as well as requests for expedited processing seeking information related to agencies’ activities during the COVID-19 pandemic. Despite their importance, fulfillment of these requests on an expedited basis, were, in some instances, made seemingly impossible considering limitations on staffing dedicated to request processing as well as logistical restraints associated with working remotely.

As a result, many requesters seeking records and information about governmental activities under FOIA initiated litigation and motions for injunctive relief to compel the production of records on an expedited basis with varying levels of success. In January 2020, the United States District Court for the District of Columbia in American Immigration Council v. U.S. Department of Homeland Security  ordered the production of all non-exempt documents relating to COVID-19 protocols and data for detained individuals in the possession of the U.S Department of Homeland Security (“DHS”) and the U.S. Immigration and Customs Enforcement (“ICE”) on an expedited basis within a two (2) month time period.[1] Prior to initiating suit, the request for expedited processing had already been granted during the administrative phase but, subsequently, DHS refused to provide an estimated timeframe for production. In this case, the District Court found that plaintiff had demonstrated a likelihood of success in showing an urgent need to obtain information guiding ICE’s policies and motivate public discourse about ICE’s efforts to safeguard the rights of individuals held in immigration detention facilities during a deadly pandemic. Further, the Court was not persuaded by defendant agencies’ arguments that plaintiff had failed to demonstrate irreparable harm absent injunctive relief because plaintiff could not point to a concrete deadline for which it needed the records, noting that “the fact that the COVID-19 pandemic is an ongoing public health crisis only bolsters Plaintiff’s claim of irreparable harm.”[2]

Just a year later, the United States District Court for the District of Columbia in New York Times v. Def. Health Agency et al., denied an application for injunctive relief, seeking an order compelling expedited processing of two FOIA requests by the Defense Health Agency (“DHA”) and the Department of Human and Health Services (“DHS”) for detailed vaccine distribution and adverse reaction data throughout the nation, in its entirety.[3] Critically, the district court in New York Times did not even reach the question of whether the plaintiff demonstrated a compelling need for the information because plaintiff did not specifically plead relief under 5 U.S.C. § 552(a)(6)(E) in its complaint when initiating suit. Accordingly, the district court correctly held that plaintiff had not shown a likelihood of success on the merits as required to be eligible for injunctive relief because the court could not rule upon a claim that was never properly brought before the court. Consequently, the court never had to opine on whether plaintiff demonstrated a compelling need to expedite processing by consideration of the mandatory factors of “(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.”[4]

For the remainder of the opinion, the broad scope and extensive data of the underlying requests repeatedly undermined the ability of plaintiff to secure injunctive relief. Unlike the information sought in American Immigration, which was limited to a discrete population of individuals in custody, the requester in New York Times demanded four data sets of information for the entire nation, even on a county by county level. It was then of no surprise that, as a second strike against injunctive relief,  the court found that plaintiff failed to demonstrate any irreparable harm absent expedited processing of the requests because the harms referenced by plaintiff were not sufficiently certain, concrete or imminent. Interestingly, in stark contrast to the decision in American Immigration, the court also found that failure of the plaintiff to point to a specific deadline for the information further established the lack of irreparable harm. Then, in weighing the respective hardships of the parties and public interest, the court emphasized the extensive scope of the data sought in the underlying requests and the extreme undue burdens to the agency, as well as other individuals with requests pending, to respond to the New York Times before any other pending requests. This analysis included a review of the total number of FOIA requests processed by the agencies, total staff and total number of FOIA lawsuits as a function of time. This information unequivocally showed that defendant agencies were consistently understaffed in responding to an increasing volume of FOIA demands.  As a result, the court found that plaintiff had not established any of the elements required for the issuance of injunctive relief and plaintiff’s motion for expedited processing was denied.

These cases illustrate that, in order to successfully obtain expedited processing, FOIA requests must be narrowly drafted to describe discrete categories of information for the agency to fulfill. Broad requests that vaguely describe the information and records to satisfy the request are susceptible to significant delays by the agency. These broad requests are likely to be delayed due to analysis for exemptions or potential custodians of the records.

Similarly, when it comes to data, specificity is king. Unless it cannot be avoided, keep the volume of data required by the agency to the minimum necessary to satisfy the underlying purpose of the request. Ultimately, if a FOIA request is not sufficiently narrowed, the requestor will inevitably experience increased processing times as the request is placed in a specific queue for complex requests. More importantly, large volumes of data are unlikely to be compelled from  an agency on an expedited basis, unless there is a  strong showing that the information is needed to prevent irreparable harm. As the amount of data and responsive records increase, the arguments in support of irreparable harm become more and more attenuated. In contrast, if the need for a response can be linked to a specific need for the public to know or an individual’s health or safety by a date certain, a court is more likely to find that the plaintiff has shown irreparable harm in the absence of injunctive relief. Otherwise, as seen in New York Times,  an uncertain risk of irreparable harm is, in and of itself, an independent basis for a court to deny an order to compel expedited processing.

The administrative record is crucial in securing a FOIA requestor’s rights to relief. This record begins at the initial request to demonstrate to the agency that there is a compelling need to process the request before all others. Unlike typical FOIA requests, agency denials of expedited processing requests are immediately subject to judicial review. However, without appropriately tailoring an initial FOIA request and the subsequent administrative record, a requestor can quickly fail to demonstrate a right to injunctive relief to compel expedited processing.

How Frier Levitt Can Help

Frier Levitt routinely assists clients navigate the complexities of FOIA. Frier Levitt can assist in requesting documents and information pursuant to FOIA, appeal for denials of expedited processing, and complaints for records. Contact us today to speak with an attorney.

 

[1] Am. Immigration Council v. U.S. Dep’t of Homeland Sec. et al, 470 F.Supp.3d 32, 34 (D.D.C. 2020).

[2] Id. at 38.

[3] New York Times v. Def. Health Agency et al., No. 21-566 (D.D.C. April 25, 2021).

[4] Al-Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001). 

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