Skip to content

Case Detail

[Subscribe to updates]
Case TitleCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2019cv01552
Date Filed2019-05-28
Date ClosedOpen
JudgeJudge Amy Berman Jackson
PlaintiffCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
Case DescriptionCitizens for Responsibility and Ethics in Washington submitted a FOIA request to the Office of Legal Counsel at the Justice Department for records concerning the office's views given to Attorney General William Barr as to whether the evidence developed by the Special Counsel is sufficient to establish that President Trump obstructed justice. CREW also requested expedited processing and a fee waiver. OLC informed CREW that its request for expedited processing had been denied and that it would be unable to respond within 20 days. CREW then filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees, Expedited processing

DefendantU.S. DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [10]
FOIA Project Annotation: While requests for expedited processing have become a more common feature in FOIA requests as requesters scramble to establish their need to get records more quickly, there are still few occasions in which a district court is asked to assess an agency's decision not to provide expedited processing. Part of the reason for the scarcity of court decisions on expedited processing is likely the result of strategic decisions on the part of plaintiffs to not press forward with expedited processing claims that are no longer relevant months or years later when the court actually rules on the merits of the case. Nevertheless, Judge Amy Berman Jackson was in a position to address the issue of expedited processing recently in a case brought by CREW against the Department of Justice for records concerning what evidence was available to Attorney General William Barr when he made his public remarks downplaying the findings of Special Counsel Robert Mueller's report on Russian interference in the 2016 presidential campaign on the issue of whether President Donald Trump obstructed justice. Shortly after Barr made his public statement on April 18, 2019, CREW submitted a FOIA request to the Office of Legal Counsel for records related to whether the evidence developed by Mueller was sufficient to establish that Trump had obstructed justice. CREW also sent a request to the Office of Public Affairs, asking for expedited processing. OPA told CREW that is was denying its request for expedited processing because "CREW's FOIA request is not a matter in which there exist possible questions about the government's integrity that affect public confidence." CREW filed a two-count complaint. Count I alleged wrongful withholding of records while Count II alleged that DOJ had violated FOIA by denying its expedited processing request. DOJ argued that Count II should be dismissed because CREW had failed to exhaust its administrative remedies. Berman Jackson began by noting that judicial review of agency denials of expedited processing were subject to a different standard than the more common de novo review when an agency failed to respond within the statutory time limit. Instead, she pointed out that for denials of expedited processing "agency action to deny or affirm denial of a request for expedited processing. . .shall be subject to judicial review." She then explained that "while the D.C. Circuit has not spoken on this matter, courts in this district have interpreted that language to relieve plaintiffs of the exhaustion requirements when appealing a denial of expedited processing." Indicating that she found these district court decisions persuasive, Berman Jackson pointed out that "their reading of the statute is consistent with the purpose underlying the provision that makes expedited review available, and the express Congressional acknowledgment that time may be of the essence for certain requests. To require a requestor who has been denied expedited processing to exhaust administrative remedies before seeking judicial review would defeat the section's aim of accelerating response time." Turning to the basis of DOJ's denial of CREW's request for expedited processing, Berman Jackson found the denial wanting as well, noting that "OPA's mere recitation of the language in the DOJ provision on expedited review does not suffice as a reasoned explanation of CREW's request." Berman Jackson cited Al Fayed v. CIA, 254 F.3d 300 (D.C. Cir. 2001), in which the D.C. Circuit first examined the standard to be used in assessing an agency's response to an expedited processing request, indicating that in Al Fayed the D.C. Circuit "found the review of agency action under the Administrative Procedure At to be analogous," explaining that an agency regulation "is entitled to judicial deference. . . as is each agency's reasonable interpretation of its own regulations." Applying that level of deference here, Berman Jackson indicated that "but that does not mean the Court has no say in the matter. . .Thus, in this context, as in others, an agency is required to offer an adequate explanation for its actions so that a court is able to 'evaluate the agency's rationale at the time of the decision.' Put simply, 'the agency must explain why it decided to act as it did.' And pursuant to the FOIA statute, judicial review of an agency's decision to grant or deny a request for expedited processing 'shall be based on the record before the agency at the time of the determination.'" Berman Jackson printed the text of CREW's detailed three-paragraph justification for its request for expedited processing. She noted that "the agency responded with a single sentence: 'CREW's FOIA request is not a matter in which there exist possible questions about the government's integrity that affect public confidence.' Since the agency did nothing more than parrot its own regulatory language, and offered no reasoning or analysis, its decision, as in the APA context, is entitled to little deference." Berman Jackson found that DOJ's rote response did not satisfactorily address CREW's justification for its expedited processing request. She pointed out that "neither FOIA nor the departmental regulations require the requester to prove wrongdoing by the government in order to obtain documents on an expedited basis. The request must simply provide grounds to support the contention that the matter is time sensitive, and that it is a 'matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.'" She observed that "CREW's submission supported an inference that at best, the Attorney General undertook to frame the public discussion on his own terms while the report itself remained under wraps, and at worst, that he distorted the truth. For these reasons, the request raised 'possible questions' about the government's integrity that could affect public confidence. And the disclosure of any material that either influenced or contradicted those public statements could very well bear upon the resolution of those questions. Since DOJ provided no explanation for its flat assertion to the contrary, it does not stand up to judicial review."
Issues: Expedited processing - Compelling Need
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-05-281COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-6147874) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Department of Justice, # 3 Summons U.S. Attorney, # 4 Summons Attorney General)(Weismann, Anne) (Entered: 05/28/2019)
2019-05-282LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 05/28/2019)
2019-05-31Case Assigned to Judge Amy Berman Jackson. (zef, ) (Entered: 05/31/2019)
2019-05-313SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 05/31/2019)
2019-06-124RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 6/7/2019, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/7/19., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/7/2019. ( Answer due for ALL FEDERAL DEFENDANTS by 7/7/2019.) (Weismann, Anne) (Entered: 06/12/2019)
2019-07-085Partial MOTION to Dismiss by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Text of Proposed Order)(Straus Harris, Julie) (Entered: 07/08/2019)
2019-07-196Memorandum in opposition to re 5 Partial MOTION to Dismiss filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 07/19/2019)
2019-07-237Unopposed MOTION for Extension of Time to File Response/Reply as to 5 Partial MOTION to Dismiss by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Straus Harris, Julie) (Entered: 07/23/2019)
2019-07-25MINUTE ORDER granting 7 Defendant's Unopposed Motion for an Extension of Time. It is ORDERED that defendant shall file its reply in support of Defendant's Partial Motion to Dismiss by August 2, 2019. Signed by Judge Amy Berman Jackson on 7/25/19. (DMK) (Entered: 07/25/2019)
2019-08-028REPLY to opposition to motion re 5 Partial MOTION to Dismiss filed by U.S. DEPARTMENT OF JUSTICE. (Straus Harris, Julie) (Entered: 08/02/2019)
2020-01-319ORDER. Pursuant to Federal Rules of Civil Procedure 12 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's Partial Motion to Dismiss 5 is DENIED. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/31/2020. (lcabj3) (Entered: 01/31/2020)
2020-01-3110MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 1/31/2020. (lcabj3) (Entered: 01/31/2020)
2020-02-1411ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Straus Harris, Julie) (Entered: 02/14/2020)
2020-02-20MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before March 20, 2020.SO ORDERED. Signed by Judge Amy Berman Jackson on 2/20/2020. (lcabj3) (Entered: 02/20/2020)
2020-02-21Set/Reset Deadlines: Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before 3/20/2020. (jth) (Entered: 02/21/2020)
2020-03-2012Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Straus Harris, Julie) (Entered: 03/20/2020)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar