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Washington Post v. Dep't of Homeland

October 19, 2006

THE WASHINGTON POST PLAINTIFF,
v.
DEPARTMENT OF HOMELAND, SECURITY DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 3

MEMORANDUM OPINION

GRANTING THE PLAINTIFF'S MOTION FOR APRELIMINARY INJUNCTION

I. INTRODUCTION

The plaintiff, The Washington Post (the "Post"), seeks records concerning individuals who visited Vice President Richard Cheney and his senior staff at both the White House Complex and the Vice President's residence from the United States Secret Service ("Secret Service"), a division of the United States Department of Homeland Security ("DHS"). The plaintiff claims that it is entitled to this information under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et. seq., and that under FOIA, the Secret Service must process and fulfill the plaintiff's record request on an expedited schedule. This case is before the court on the plaintiff's motion for a preliminary injunction. Specifically, the Post asks the court to order the Secret Service to immediately process the Post's request and produce all responsive records which are not exempt from disclosure within 10 days of the court's order. Because the records sought are agency records, because the plaintiff will be irreparably harmed without expedited processing of its FOIA request, and because it is in the public, the court grants the plaintiff's motion for a preliminary injunction.

II. BACKGROUND

On June 12, 2006, Post staff writer Jo Becker, by letter, requested certain records under FOIA from the Secret Service. Pl.'s Mot. for a Prelim. Inj. ("Pl.'s Mot."), Ex. 1. Specifically, the journalist sought records from October 2004 to the present regarding visitor logs of physical access to the White House Complex ("WHC") and the Vice President's residence ("VPR"), "reflecting or concerning the entries and/or exits of any persons who sought or were scheduled to visit the following people in the Office of the Vice President: Vice President Cheney; David Addington, I. Lewis 'Scooter' Libby, C. Dean McGrath, Steven Schmidt, John Hannah, Eric Edelman, Ron Christie, Victoria Nuland, Aaron Friedberg, Stephen Yates, Samantha Ravich, and David Wurmser." Id.

With regard to the WHC, the plaintiff's request sought records maintained on two access monitoring systems -- the Worker and Visitor Entrance System ("WAVES") and the Access Control Records System ("ACR").*fn1 Id. WAVES consists of records generated when "information is submitted by an authorized White House pass holder to the Secret Service about workers and visitors who need access to the White House" for various purposes. Def.'s Opp'n, Ex. B ("Morrisey Decl.") ¶7. ACR contains "records generated when a pass holder, worker, or visitor, swipes his or her pass over one of the electronic pass readers located at entrances to and exists from the White House Complex." Id. ¶ 6.

With regard to the VPR, Becker sought records "reflecting or concerning the entries and/or exits of any persons, other than the members of the Cheney family, visiting the vice-president's residence." Pl.'s Mot., Ex.1. This request is similarly limited to records from October 2004 to the present. Id.

Becker requested that the Secret Service expedite its processing of the plaintiff's FOIA request pursuant to a provision of that statute requiring expedited processing in instances presenting a "compelling need" for the information. Id. (relying on the language from 5 U.S.C. § 552 (a)(6)(E)(II)). That statutory provision mandates expedited processing if, as relevant here, the request is made "by a person primarily engaged in disseminating information," and has an "urgency to inform the public concerning actual or alleged Federal Government activity." 5 U.S.C. § 552(a)(6)(E)(v)(II). Becker asserted that his request satisfied the statutory requirement for mandatory expedited processing for four reasons: (1) "as a journalist, I am primarily engaged in disseminating information to the public;" (2) "the subject matter of the request concerns actual operations of the federal government, namely [] meetings of the Vice President and his senior aides on official business;" (3) "there is an urgency to inform the public about these governmental activities" because the information will assist the public in "the degree to which lobbyists and special interest representatives may have influenced policy decisions of the Bush administration" and the ongoing CIA-leak case investigation; and (4) "[w]ith the midterm elections looming, any delay in processing this request would deprive the public of its ability to make its views known in a timely fashion[.]" Pl.'s Mot., Ex.1.

On June 16, 2006, the Secret Service denied Becker's request for expedited processing, stating that Becker had not demonstrated a "particular urgency to inform the public about an actual or alleged federal government activity." Pl.'s Mot., Ex. 2. After the Post appealed this decision, id., Ex. 3, the Deputy Director of the Secret Service, on August 31, 2006, found that "expedited treatment is appropriate in this matter," and reversed the Secret Service's prior decision, id., Ex. 4. After the Deputy Director's decision, however, on September 20, 2006, the Freedom of Information and Privacy Acts Officer for the Department of Homeland Security notified Becker that the records sought are not agency records under FOIA and are governed by the Presidential Records Act, 44 U.S.C. § 2201, et seq. Id., Ex. 6. This official explained that because the records "remain under the exclusive legal custody and control of the White House and the Office of the Vice President . . . the [Secret Service] lacks the authority" to provide the requested records.

The plaintiff subsequently commenced this action on October 10, 2006, seeking injunctive relief. See generally, Pl.'s Mot. Because the plaintiff alleges a violation of a statutory right to expedited processing of a FOIA request, the court ordered expedited briefing. Minute Order (Oct. 12, 2005). Now fully briefed, the court turns to the pending motion.

III. ANALYSIS

A. The Preliminary Injunction Standard is Appropriate In This Case

Before assessing the plaintiff's claims, the court must address the defendant's argument that expedited judicial review of the plaintiff's claims is inappropriate because the plaintiff seeks all of the relief it would be entitled to if it prevailed on the merits.*fn2 Def.'s Opp'n at 8. To the defendant, the plaintiff seeks "immediate disclosure of non-exempt documents." Id.

For two reasons, the defendant's claims are unwarranted. First, the plaintiff does not now seek court ordered disclosure, but rather, it seeks court ordered expedited processing of its FOIA request. Pl.'s Reply at 2-3.

Second, in numerous cases in this federal district, courts have considered motions for preliminary injunctions in FOIA cases on an expedited bases. Long v. Dep't of Homeland Sec., 436 F. Supp. 2d 38 (D.D.C. 2006) (denying injunctive relief after considering a FOIA request under the preliminary injunction four-prong test); Elec. Privacy Info. Ctr. v. Dep't of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006) (granting a preliminary injunction and ordering expedited processing and disclosure of documents concerning the Bush Administration's policy of conducting surveillance of domestic communications); Al-Fayed v. CIA, 2000 WL 34342564, at *6 (D.D.C. Sept. 20, 2000) (denying a FOIA request after considering the plaintiff's claims under the preliminary injunction's four-pronged test), aff'd 254 F.3d 300 (D.C. Cir. 2001); Aguilera v. FBI, 941 F. Supp. 144, 152-53 (D.D.C. 1996) (granting a preliminary injunction and mandating expedited release of documents). In each of these cases, the plaintiffs sought expedited review of their FOIA request pursuant to 5 U.S.C. § 552 (a)(6)(E). And in each case, the district court rendered its decision prior to the incident upon which the plaintiffs' assertions of expedited need were based.

The court agrees with these decisions. In each case, and true here, the plaintiff asserts statutory entitlement to expedited review of the FOIA request, based on the statutory predicate that the plaintiff has a "compelling need" for the information. 5 U.S.C. § 552 (a)(6)(E). To afford the plaintiff less than expedited judicial review would all but guarantee that the plaintiff would not receive expedited agency review of its FOIA request. See Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 35.

The court recognizes the urgency presented by the current case. With regard to typical, non-"compelling need" FOIA requests, "unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent [these] abuses." Payne Enters. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1998). This statement resounds with greater force in this case because the plaintiff claims statutory entitlement to expedited treatment. And it seems the exceptional case where a plaintiff can litigate his case via an ordinary time-table for federal litigation and, if victorious, still attain "expedited review" of his FOIA request.*fn3

Indeed, the statutory provision which grants the district court jurisdiction over FOIA cases provides that they "take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way." 5 U.S.C. § 552 (a)(3); Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 13 (1974) (recognizing that Section 552 "provides that the FOIA suit generally is to take precedence on the court's docket and is to be expedited on the calendar").

Here, the plaintiff claims statutory entitlement to expedited agency review of its FOIA request. Pl.'s Mot. at 2; 5 U.S.C. § 552 (a)(6)(E)(v) (mandating expedited processing when there exists an "urgency to inform the public"). The court considers expedited review of the plaintiff's claims patently appropriate in providing the plaintiff meaningful judicial review of its claims.

The judicial review provision under FOIA states that "[o]n complaint, the district court . . . has jurisdiction to enjoin the agency . . . In such a case the court shall determine the matter de novo." 5 U.S.C. ยง 552(a)(4)(B). The court will consider the matter de novo, and will assess ...


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