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DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv00686
Date Filed2017-04-18
Date Closed2017-05-24
JudgeJudge Colleen Kollar-Kotelly
Case DescriptionAllied Progress submitted a FOIA request to the Consumer Financial Protection Bureau for records concerning correspondence between the agency and 12 listed U.S. Senators. Allied Progress also requested expedited processing and a fee waiver. The agency acknowledged receipt of the request, denied Allied Progress's request for expedited processing, and indicated it would address Allied Progress's request for a fee waiver later. Allied Progress submitted a second FOIA request to the agency for correspondence from a number of employees concerning various individuals or organizations. Allied Progress requested expedited processing and a fee waiver. The agency acknowledged the second request, denied Allied Progress's request for expedited processing and indicated it would consider its request for a fee waiver later. After hearing nothing further from the agency, Allied Progress filed suit.
Complaint issues: Failure to respond within statutory time limit, Public Interest Fee Waiver, Litigation - Attorney's fees

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Opinion/Order [12]
FOIA Project Annotation: As new organizations emerge to monitor the Trump administration, a consistent unresolved problem in getting speedy access to government records has once again provided an illustration of how difficult it is for organizations to get fee category recognition and expedited processing when they have no established track record to use to persuade the agencies or the courts. In a case brought by the progressive organization Allied Progress challenging the Consumer Financial Protection Bureau's decision to deny expedited processing for the organization's requests for records pertaining to the Prepaid Rule, a recently completed regulation designed to provide consumer protections for prepaid financial products that appeared likely to be repealed by Congress under the Congressional Review Act, Judge Colleen Kollar-Kotelly has ruled that the organization had not shown a likelihood of success on the merits. Regardless of whether or not an organization such as Allied Progress could show an ability to publicly disseminate information, the paucity of any evidence supporting its claim was clearly fatal to its request for expedited processing. Further, because, as Kollar-Kotelly explained, judicial review of a denial for expedited processing was based on the administrative record before the agency, which, unfortunately for Allied Progress was nearly non-existent, the likelihood that Allied Progress could prevail was that much more difficult. While EPIC in particular has been a pioneer in litigating expedited processing denials, both Judicial Watch and Cause of Action earlier ran afoul of agencies' often literal interpretations of the criteria for qualifying for the preferential news media fee category, facing substantial resistance from agencies pertaining to their ability to disseminate information to the public. However, part of the problem for any advocacy group that considers its online presence to be sufficient to qualify for preferential fees or expedited processing is an initial assumption on their part that having a website and a vague plan to post information online immediately qualifies them for such preferential treatment. Early on in its evolution, Cause of Action in particular seemed unaware of the necessity to support such assumptions and its denial of preferential fee status by the FTC was a rude awakening in that regard. However, in Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015), the D.C. Circuit largely pruned back much of the questionable interpretation of the criteria for qualifying for news media fee status, making it considerably less difficult for an organization like Cause of Action to qualify. Nevertheless, the level of detail provided by Cause of Action in that case was substantially greater than that provided by Allied Progress in its litigation. The expedited processing provision in FOIA allows a requester to ask for expedited processing when an imminent threat to the life or physical safety of an individual exists, or when the request is made by a person primarily engaged in disseminating information where there exists an urgency to inform the public about actual or alleged federal government activity. Kollar-Kotelly noted that Allied Progress was relying on the urgency to inform prong. She explained that "there is no disagreement that the FOIA requests concern a Federal government activityâ€"the pending Congressional action with respect to the Prepaid Rule. . ." Under the CFPB FOIA regulations a person primarily engaged in dissemination of information did not include individuals who are only incidentally engaged in dissemination of information. Kollar-Kotelly pointed out that "although courts in this Circuit and elsewhere have routinely held that media organizations and newspapers qualify under this category, in light of the pertinent legislative history, other types of organizations have been held to not qualify, unless information dissemination is also their main activity, and not merely incidental to other activities that are their actual, core purpose." She explained that the only evidence to support Allied Progress' claim was its FOIA requests, which, under its request for a fee waiver, indicated that "Allied Progress will use the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. Allied Progress will also make materials it gathers available on our public website." Kollar-Kotelly observed that "neither the statement nor anything else in the FOIA Requests describe any of Plaintiff's activities, let alone indicate that information dissemination is its 'main activity.' At most, the statement relays Plaintiff's intentions with respect to the materials that it seeks to obtain via the FOIA Requests. But even the statutory language plainly speaks to the general type of activity in which the requester is 'primarily engaged,' and not merely what the requester will do in the future. Were a statement of the type proffered by Plaintiff to suffice, then any type of organization could qualify under the statute by merely representing that it intended to engage in information dissemination with respect to the fruits of its FOIA request. That result is at odds with the plain language of the statute, the pertinent legislative history, and the case law. . ." Having found that Allied Progress had not shown it was primarily engaged in dissemination of information, Kollar-Kotelly indicated that alone was sufficient to dismiss its case. However, she went on to explore whether Allied Progress could qualify under the urgency to inform prong as well. She expressed doubt that it was a matter of "current exigency to the American public" as required by the agency's FOIA regulations. She observed that "that is not to say that the Prepaid Rule is not important, and indeed, the Court in no way concludes that there is not in reality substantial public interest in the Prepaid Rule. Rather, the Court merely finds that the current record, which it was Plaintiff's burden to develop, does not provide any evidence of this public interest." Pointing out that to succeed in obtaining a preliminary injunction Allied Progress needed to show irreparable harm if an injunction was not granted, Kollar-Kotelly indicated that "courts in this Circuit have recognized that simply because a request for expedited treatment is 'time-sensitive,' does not mean that, ipso facto, failing to grant injunctive relief mandating expedited processing would lead to irreparable harm." She added that "in order to establish irreparable harm, Plaintiff must show that, absent an injunction, it would suffer harm that is both 'great' and not 'theoretical.' Plaintiff, however, has failed to demonstrate that there is substantial public interest in the records sought via the FOIA requests, such that a delay in the release of those records would cause harm that is sufficiently 'great' to constitute irreparable harm." She observed that balanced against the public interest in expediting FOIA requests generally was the need for agencies to properly protect exempt records and to make sure that other requesters were not harmed by the reallocation of resources to respond to an expedited processing request. She pointed out that "here, where Plaintiff has not provided credible evidence of a significant public debate over the subject of the FOIA Requests, the Court cannot conclude that the public interest is best served by directing resources toward Plaintiff's requests, and away from others."
Issues: Expedited processing - Compelling Need
User-contributed Documents
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-04-181COMPLAINT against CONSUMER FINANCIAL PROTECTION BUREAU ( Filing fee $ 400 receipt number 0090-4917440) filed by ALLIED PROGRESS. (Attachments: # 1 Civil Cover Sheet, # 2 LRCv7.1, # 3 Summons, # 4 Summons, # 5 Summons)(Hodes, Scott) (Main Document 1 replaced on 4/18/2017) (zsth). (Entered: 04/18/2017)
2017-04-182MOTION for Temporary Restraining Order by ALLIED PROGRESS (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit, # 4 Text of Proposed Order, # 5 Certificate of Service)(Hodes, Scott) (Entered: 04/18/2017)
2017-04-18Case Assigned to Judge Colleen Kollar-Kotelly. (sth) (Entered: 04/18/2017)
2017-04-183SUMMONS (3) Issued Electronically as to CONSUMER FINANCIAL PROTECTION BUREAU, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 04/18/2017)
2017-04-194ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on April 19, 2017. (NS) (Entered: 04/19/2017)
2017-04-19MINUTE ORDER: On April 19, 2017, the Court held a telephonic conference on the record regarding Plaintiff's 2 Motion for Temporary Restraining Order and Preliminary Injunction. As agreed to by the parties, Defendant shall file its response to the Motion by APRIL 25, 2017, and Plaintiff shall file its reply by APRIL 28, 2017. The briefing shall address, among other pertinent issues, whether Plaintiff has exhausted its administrative remedies, and if not, whether that precludes suit before this Court; the appropriateness of expedited processing for Plaintiff's FOIA requests; the volume of documents responsive to Plaintiff's FOIA requests; the expected timeframe for producing such documents on both an expedited and non-expedited basis; and the viability of Plaintiff's APA claim. Signed by Judge Colleen Kollar-Kotelly on 4/19/2017. (lcckk1) (Entered: 04/19/2017)
2017-04-19Set/Reset Hearings: Telephone Conference on the record set for 4/19/2017 at 2:30 PM in Chambers before Judge Colleen Kollar-Kotelly. (dot) (Entered: 04/19/2017)
2017-04-19Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Telephone Conference held on 4/19/2017. (Court Reporter Lisa Foradori.) (dot) (Entered: 04/19/2017)
2017-04-19Set/Reset Deadlines: Defendant's Response to 2 due by 4/25/2017. Reply due by 4/28/2017. (dot) (Entered: 04/20/2017)
2017-04-255NOTICE of Appearance by Christopher Charles Hair on behalf of CONSUMER FINANCIAL PROTECTION BUREAU (Hair, Christopher) (Entered: 04/25/2017)
2017-04-256NOTICE of Appearance by Fred Elmore Haynes on behalf of CONSUMER FINANCIAL PROTECTION BUREAU (Haynes, Fred) (Entered: 04/25/2017)
2017-04-257Memorandum in opposition to re 2 MOTION for Temporary Restraining Order filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Attachments: # 1 Declaration of Raynell Lazier, # 2 Declaration Lisa Kosow)(Hair, Christopher) (Entered: 04/25/2017)
2017-04-288REPLY to opposition to motion re 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by ALLIED PROGRESS. (Hodes, Scott) (Entered: 04/28/2017)
2017-05-029RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/24/2017. Answer due for ALL FEDERAL DEFENDANTS by 5/24/2017. (Hodes, Scott) (Entered: 05/02/2017)
2017-05-0210RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/24/2017. (Hodes, Scott) (Entered: 05/02/2017)
2017-05-0211RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CONSUMER FINANCIAL PROTECTION BUREAU served on 4/24/2017 (Hodes, Scott) (Entered: 05/02/2017)
2017-05-0412MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 5/4/2017. (lcckk1) (Entered: 05/04/2017)
2017-05-0413ORDER. Signed by Judge Colleen Kollar-Kotelly on 5/4/2017. (lcckk1) (Entered: 05/04/2017)
2017-05-2314NOTICE of Voluntary Dismissal by ALLIED PROGRESS (Hodes, Scott) (Entered: 05/23/2017)
2017-05-2415ORDER. This case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Colleen Kollar-Kotelly on 5/24/2017. (lcckk1) (Entered: 05/24/2017)
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by FOIA Project Staff
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