United States District Court, District of Columbia
E. BOASBERG United States District Judge.
Rome could not be built in a day, Plaintiff American Center
for Law and Justice believes that the government should be
able to assess Freedom of Information Act requests in twenty.
In the lead-up to this case, ACLJ asked Defendant Department
of State for records pertaining to its funding of an
organization that opposed Israeli Prime Minister Benjamin
Netanyahu during that country's 2015 elections. FOIA
allows federal agencies twenty days to decide whether to
release information in response to such requests. That time
passed, and State did not signal whether it would do so or
not. Citing this infraction and other instances of delay,
Plaintiff brought this action to challenge both the
withholding of documents related to its specific request and
Defendant's broader policy or practice of FOIA
Department now moves to dismiss that latter claim. While ACLJ
has shown that State is indeed slow, Plaintiff has not
plausibly alleged that the government subscribes to some
policy or practice of slow-walking its requests for
information. For this reason, the Court will grant
Defendant's partial Motion to Dismiss, narrowing this
case into a basic FOIA challenge related to one particular
a non-profit organization “dedicated to the defense of
constitutional liberties secured by law.” ECF No. 1
(Complaint), ¶ 5. Its activities involve
“monitor[ing] government activity with respect to
governmental accountability” and “promot[ing]
integrity, transparency, and accountability in government and
fidelity to the rule of law.” Id. In line with
its organizational mission, Plaintiff regularly makes records
requests to federal, state, and local governments and then
publishes its findings. Id.
case stems from one such request. In recounting the
procedural history, the Court, for the purposes of this
Motion, accepts as true ALCJ's factual retelling of all
that has transpired so far.
sent State the instant request on July 25, 2016. See
Compl., Exh. A (Request). In its fifteen-page letter, ACLJ
sought “any and all records pertaining in any way to
the grant funds awarded by the U.S. Department of State (DOS)
to OneVoice Israel and OneVoice Palestine, where said
organizations campaigned to ‘take [Netanyahu]
down.'” Id. at 1 (quoting Staff of S.
Subcomm. on Investigations, 114th Cong., Review of U.S.
State Department Grants to OneVoice 19 (2016)).
Following a treatment of State's dealings with OneVoice,
id. at 1-7, Plaintiff set forth twelve categories of
records aimed at unearthing this connection. Id. at
the letter arrived on July 26, the Department wrote back in
two days' time, acknowledging receipt of ACLJ's FOIA
request, assigning a case number, and advising that the
agency would begin processing. See Compl., Exh. B
(July 28, 2017, Acknowledgment Letter from State Department
to ACLJ) at 1. Defendant qualified that “[u]nusual
circumstances (including the number and location of
Department components involved in responding to your request,
the volume of requested records, etc.) may arise that would
require additional time to process your request.”
Id. The letter ended by stating that the agency
intended to “notify [ACLJ] as soon as responsive
material has been retrieved and reviewed” and by
providing the agency's contact information. Id.
sets the relevant time limits for such processing. It
requires as a baseline that federal agencies “determine
within 20 days . . . after the receipt of any . . . request
whether to comply” and “immediately notify the
person making such request of . . . such determination and
the reasons thereof.” 5 U.S.C. § 552(a)(6)(A)(i).
Although in “unusual circumstances” the
government may write to let the requesting party know that it
needs ten extra working days, id. §
552(a)(6)(B), whenever an agency does not abide by whichever
applicable deadline, the records-seeker can sue in federal
court without waiting for an answer. Id. §
December 26, 2016, ALCJ filed this suit after having not
received a response to its FOIA request since the end of
July. See Compl., ¶ 28. Its Complaint alleged a
pair of counts, the first challenging State's
“improper withholding of [the] requested records”
and the second attacking its “impermissible practice,
policy, and pattern of untimely and noncompliant FOIA
responses.” Id., ¶¶ 36, 49.
Motion to Dismiss concerns only that second claim. Plaintiff
pleads that the State Department “has a reputation for
flaunting [sic] and disregarding its public
accountability and FOIA obligations.” Id.,
¶ 40. As support, ACLJ cites how State has been
similarly dilatory in producing records and is being
non-responsive with its acknowledgment letters for three
others of its FOIA requests - including one in which the
Department granted expedited processing. Id.,
¶¶ 40, 43, 46 (citing ACLJ v. Dep't of
State, No. 16-1355 (D.D.C.); ACLJ v. Dep't of
State, No. 16-1751 (D.D.C.); ACLJ v. Dep't of
State, No. 16-1975 (D.D.C.)). According to a recent
Department of Justice report, it took Defendant 111 days to
respond on average in 2014, and only 10 percent of its FOIA
officers have gone through requisite training, both marks
being the worst of any major federal agency. Id.,
¶ 41 (referencing Dep't of Justice, 2016 Chief
FOIA Officer Reports - Assessment of Federal Departments and
Agencies 73, 109 (2016)). This reputation for
delinquency is apparently well known. Id., ¶ 42
(citing news stories).
sums it up, “This is the fourth FOIA lawsuit
against this Defendant in the past approximately six months,
and the fourth case where Defendant failed to comply
with the threshold requirement of the FOIA in its
‘response' to Plaintiff's FOIA requests.”
Id., ¶ 47. The organization thus complains
that, as in a past case, “Defendant did not take
Plaintiff's FOIA request seriously until Plaintiff filed
its lawsuit.” Id., ¶ 46. These facts
together purportedly show that State “is engaging in an
established impermissible practice, policy, and pattern of
not responding as required by the clear requirements of 5
U.S.C. § 552(a)(6)(A).” Id., ¶ 48.
To put a stop to the agency's repeated tardiness, ACLJ
asks for broad declaratory and injunctive relief to
“force Defendant to cease” its delay.
Id., ¶¶ 49, 52(e), 52(f).
Motion to Dismiss this policy-or-practice count is now ripe.
Rule of Civil Procedure 12(b)(6) permits a Court to dismiss
any count of a complaint that fails “to state a claim
upon which relief can be granted.” In evaluating a
motion to dismiss, the Court “must treat the
complaint's factual allegations as true and must grant
plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.'” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (quoting Schuler v. United States, 617 F.2d
605, 608 (D.C. Cir. 1979)) (citation omitted). The Court need
not accept as true, however, “a legal conclusion
couched as a factual allegation” or an inference
unsupported by the facts set forth in the Complaint.
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286
12(b)(6)'s pleading standard is “not meant to
impose a great burden upon a plaintiff, ” Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), as a
count will survive so long as there is a
“‘reasonably founded hope that the [discovery]
process will reveal relevant evidence' to support the
claim.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 563 n.8 (2007) (quoting Dura Pharm., 544 U.S.
at 347). While “detailed factual allegations” are
not necessary to withstand a dismissal motion, id.
at 555, a complaint still “must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). In other words, a
plaintiff must put forth “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. A
complaint may survive even if “‘recovery is very
remote and ...