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Center for Public Integrity v. United States Department of Defense

United States District Court, District of Columbia

November 25, 2019

CENTER FOR PUBLIC INTEGRITY, Plaintiff
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al ., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge

         This is a Freedom of Information Act (“FOIA”) action, in which Plaintiff Center for Public Integrity seeks records from the United States Department of Defense (“DOD”) and the United States Office of Management and Budget (“OMB”) regarding communications between the DOD and the OMB with the DOD's comptroller concerning the DOD's Ukraine Security Assistance Initiative (“USAI”). The subject matter of Plaintiff's FOIA requests closely relate to an ongoing impeachment inquiry before the United States House of Representatives, considering whether or not President Donald Trump and his administration withheld payments under the USAI in order to pressure the government of Ukraine to conduct an investigation. Before the Court is Plaintiff's [4] Motion for a Preliminary Injunction, which is opposed. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS Plaintiff's [4] Motion. While preliminary injunctions are infrequent in the FOIA context, the Court concludes that Plaintiff has made the requisite showing for a preliminary injunction.

         In its Motion, Plaintiff requests the release of all responsive, non-exempt documents by December 12, 2019 or by a date reasonable to the Court. Following Plaintiff's Motion, Defendants identified 120 unique records, totaling approximately 211 pages, responsive to Plaintiff's requests. In their Notice, Defendants indicated that they are able to make an initial release of responsive non-exempt records on December 12, 2019 with the release of remaining non-exempt records on December 20, 2019. However, Defendants did not indicate the number of records which would be processed by the December 12, 2019 production. Plaintiff requests that Defendants process half of the responsive pages-at least 106 pages-by the December 12, 2019 production and the remaining half by the December 20, 2019 production. As such, at this point, the only dispute is the number of pages that Defendants will process prior to the December 12, 2019 production.

         The Court ORDERS that Defendants process at least half the responsive pages- approximately 106 pages-and produce the responsive, non-exempt documents to Plaintiff by DECEMBER 12, 2019.[2] The Court further ORDERS that the remaining records be processed, and all responsive, non-exempt documents be produced by DECEMBER 20, 2019, at the latest. As practicable, Defendants shall release responsive, non-exempt documents to Plaintiff on a rolling basis between December 12, 2019 and December 20, 2019.

         I. BACKGROUND

         Plaintiff is a nonprofit, nonpartisan, non-advocacy, independent journalism organization. Compl., ECF No. 1, ¶ 4. Plaintiff submitted two FOIA requests. On September 25, 2019, Plaintiff requested from the DOD “[a]ll records reflecting any communication between Defense Department acting comptroller Elaine McCusker or other officials within the comptroller's office and employees or officials of the Office of Management and Budget concerning the Ukraine Security Assistance Initiative.” Id. at ¶ 7. Plaintiff also requested from the DOD “[a]ll records reflecting any communication between Defense Department acting comptroller Elaine McCusker or other officials within the comptroller's office and Secretary of Defense Mark Esper or Deputy Secretary of Defense David Norquist concerning the Ukraine Security Assistance Initiative.” Id. And, on September 30, 2019, Plaintiff requested from the OMB “[a]ll records reflecting any communication between officials and employees of the Office of Management and Budget and the office of Defense Department acting comptroller Elaine McCusker or other officials within the comptroller's office concerning the Ukraine Security Assistance Initiative.” Id. at ¶ 12. Plaintiff requested expedited processing for both FOIA requests. Id. at ¶¶ 7, 12.

         Defendants acknowledged receipt of the FOIA requests. But, prior to the filing of this lawsuit, Defendants did not provide a determination on Plaintiff's requests. Defendant DOD initially denied Plaintiff's request for expedited processing, but Defendant OMB has yet to make a decision on Plaintiff's request. Dec. of Mark H. Herrington, ECF No. 10-1, ¶ 9; Dec. of Heather V. Walsh, ECF No. 10-2, ¶ 10.

         On October 30, 2019, Plaintiff filed this lawsuit. And, on October 31, 2019, Plaintiff filed its Motion, requesting the release of all non-exempt documents responsive to Plaintiff's FOIA requests by December 12, 2019 or by a date deemed appropriate by the Court. Pl.'s Mot., ECF No. 4, 1.

         In their Opposition, Defendants indicated that, beginning on October 3, 2019, the DOD General Counsel issued a memorandum across the DOD requesting cooperation in identifying, preserving, and collecting documents and other records regarding the USAI based on anticipated requests for such material. Dec. of Mark H. Herrington, ECF No. 10-1, ¶ 7. Despite the fact that Defendant DOD initially denied Plaintiff's request for expedited processing, following the submission of Plaintiff's Motion, the DOD Office of Information Counsel conducted a search within that repository of documents for records responsive to both of Plaintiff's FOIA requests. Initially, 500 potentially responsive records, inclusive of duplicates, were located. Id. at ¶ 10. In their Opposition, Defendants indicated that they would be able to make an initial production of an undisclosed number of documents by December 20, 2019. Defs.' Mot., ECF No. 10, 7.

         Briefing on Plaintiff's Motion was completed on November 14, 2019. On November 15, 2019, the Court ordered the parties to file a further Joint Status Report indicating whether or not Defendants would be able to process and release all non-exempt, responsive records by December 20, 2019. On November 19, 2019, the parties filed a Joint Status Report. In that Report, Defendants stated that they “anticipate they will be able to provide a final response to Plaintiff's FOIA requests and release all non-exempt, responsive information to Plaintiff by December 20, 2019.” JSR, ECF No. 12.

         Following this Report, the Court held a teleconference with the parties, during which a court reporter was present. The Court asked whether or not Defendants would be able to begin making rolling productions of responsive, non-exempt documents on December 12, 2019 with a final production of all documents by December 20, 2019. Defendants indicated that making rolling productions would slow the processing of documents. However, at the time of the teleconference, Defendants were still unsure of how many documents, exclusive of duplicates, were responsive to Plaintiff's FOIA requests. The Court ordered the parties to file a further notice updating the Court as to the number of documents, exclusive of duplicates, responsive to Plaintiff's FOIA requests.

         On November 22, 2019, Defendants filed a Notice indicating that only 120 documents, totaling approximately 211 pages, require processing prior to the release of all non-exempt documents responsive to Plaintiff's FOIA requests. Notice, ECF No. 13. As previously stated, Defendants have agreed to release all non-exempt, responsive documents by December 20, 2019. JSR, ECF No. 12. Defendants have further agreed to process an undisclosed number of documents and make an initial production by December 12, 2019. Notice, ECF No. 13. Plaintiff requests that Defendants process half the pages prior to the December 12, 2019 production and the remaining pages prior to the December 20, 2019 production. Pl.'s Res., ECF No. 15.

         II. LEGAL STANDARD

         “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.'” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “‘When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.'” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). The Court notes that where, as here, the preliminary injunction would be a mandatory one, meaning that its terms would alter rather than preserve the status quo, the Court's power to issue a preliminary injunction “should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969).

         “The four factors have typically been evaluated on a ‘sliding scale.'” Davis, 571 F.3d at 1291 (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291-92. But, it is not clear whether this Circuit's sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court's decision in Winter. See Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F.Supp.3d 108, 112 (D.D.C. 2015). Several judges on the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.'” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the Court of Appeals has yet to hold definitively that Winter has displaced the sliding-scale analysis. See Id.; see also Save Jobs USA, 105 F.Supp.3d at 112. In any event, this Court need not resolve the viability of the sliding-scale approach today as the Court determines that a preliminary injunction is warranted under either approach.

         III. DISCUSSION

         The Court begins by acknowledging that preliminary injunctions are ordinarily not awarded in FOIA cases. However, this is not an ordinary FOIA case. Currently, the United States House of Representatives is in the process of conducting impeachment proceedings concerning the same subject matter as the documents requested by Plaintiff. As such, the requested documents are sought in order to inform the public on a matter of extreme national concern. Only an informed electorate can develop its opinions and persuasively petition its elected officials to act in ways which further the aims of those opinions. In FOIA cases such as this, where the records are sought to inform an imminent public debate, courts in this Circuit have granted preliminary injunctions. See Wash. Post v. U.S. Dep't of Homeland Sec., 459 F.Supp.2d 61 (D.D.C. 2006) (granting a preliminary injunction where the records concerned White House visitor logs and where midterm elections were occurring shortly); Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246 (D.D.C. 2005) (granting expedited processing of records where the records concerned the monitoring of federal elections and certain provisions of the Voting Rights Act were set to expire); Elec. Privacy Info. Ctr. v. U.S. Dep't of Justice, 416 F.Supp.2d 30 (D.D.C. 2006) (granting preliminary injunction where records concerned the presidential administration's policy of conducting surveillance of domestic communications without prior authorization and ...


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