Judicial Watch, Inc. v. U.S. Dep't of Homeland SEC.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2017 Decided July 17, 2018

No. 16-5339

JUDICIAL WATCH, INC.,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01983)

Lauren M. Burke argued the cause and filed the briefs for

appellant. Paul J. Orfanedes entered an appearance.

Sarah Carroll, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief was Mark

B. Stern, Attorney.

Before: ROGERS, SRINIVASAN, and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge PILLARD.

2

Dissenting opinion filed by Circuit Judge SRINIVASAN.

ROGERS, Circuit Judge: For years, Judicial Watch has

monitored expenditures of U.S. Government funds on “VIP”

travel by submitting requests for records pursuant to the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the

U.S. Secret Service and other agencies and reporting its

findings to the public. Between 2012 and 2014, when the

Secret Service failed to make requested records available in a

timely manner, Judicial Watch was forced to file a lawsuit on

five separate occasions in order to obtain the records. Upon

such filing, the Secret Service produced non-exempt records,

mooting the litigation.

In November 2015, Judicial Watch was forced again to file

a lawsuit when the Secret Service failed to make available

records in response to nineteen travel-related FOIA requests

submitted over a thirteen-month period. This time, in addition

to seeking an order that the Secret Service produce requested

records, Judicial Watch sought injunctive relief so the Secret

Service would not continue to violate FOIA’s mandate that

federal agencies “shall” make requested records “promptly

available.” 5 U.S.C. § 552(a)(3)(A). Judicial Watch alleged

that the Secret Service “has a policy and practice of violating

FOIA’s procedural requirements,” by “regularly failing” to

either produce requested records or make a determination

regarding their availability in accord with FOIA’s timetables,

5 U.S.C. § 552(a)(6)(A), or within a reasonable time. Compl.

¶ 22. Four months after the lawsuit was filed, the Secret

Service, much as it had done on the five prior occasions when

Judicial Watch had sued, produced non-exempt records,

thereby mooting the production request.

3

The only question now before the court is whether the

complaint adequately alleged a “policy or practice” claim

under FOIA. The district court ruled that Judicial Watch had

failed to plead sufficiently egregious facts and granted

judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). Because the court’s precedent recognizes that

a policy or practice claim may be predicated upon an agency’s

abuse of FOIA’s statutory scheme, we reverse and remand to

the district court for further proceedings.

I.

The Freedom of Information Act provides that federal

agencies, “upon any request for records which (i) reasonably

describes such records and (ii) is made in accordance with

published rules . . . shall make the records promptly available.”

5 U.S.C. § 552(a)(3)(A) (emphasis added). To ensure this

mandate did not become a dead letter, Congress adopted a two-

part approach. First, Congress imposed a set of requirements

on federal agencies: It established timetables for agencies to

respond to requests as well as procedures for agencies to obtain

additional time, and required adoption of records management

systems to facilitate “prompt” responses. Second, Congress

provided members of the public whose records requests were

denied a right to an administrative appeal and a right to seek

judicial relief. Briefly summarized, the salient features of this

two-part scheme are as follows:

First, an agency “shall determine” within twenty business

days (one month) of receiving a FOIA request “whether to

comply with such request,” and “shall immediately notify the

person making such request of such determination and the

reasons therefor.” Id. § 552(a)(6)(A). The agency may toll the

response period once while seeking further information from

the requester on the scope of the information sought. Id. In

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“unusual circumstances,” the agency may extend the

determination deadline by ten business days (two weeks) upon

explaining the circumstances to the requester. Id.

§ 552(a)(6)(B)(i). If additional time is required to address the

request, the agency “shall notify the [requester] . . . and shall

provide the person an opportunity to limit the scope of the

request . . . or an opportunity to arrange with the agency an

alternative time frame for processing the request or a modified

request.” Id. § 552(a)(6)(B)(ii).

To promote “efficient and appropriate compliance” with

FOIA, id. § 552(j)(2)(A), agencies “shall” publish their internal

organization and procedures relating to records requests, id.

§ 552(a)(1), and provide in electronic format instructions on

how records may be requested, id. §§ 552(a)(2), (g). Agencies

“shall” also maintain records systems by which requesters can

obtain status updates on pending requests. Id. § 552(a)(7).

Further, agencies “shall promulgate regulations” that

“provid[e] for expedited processing of requests” when, for

example, “the person requesting the records demonstrates a

compelling need,” and that “ensure” the agency makes such

determination within ten business days. Id. § 552(a)(6)(E).

Agencies are encouraged to “provid[e] for multitrack

processing of requests.” Id. § 552(a)(6)(D)(i). To assist in

covering the costs of these requirements, agencies may impose

reasonable fees for the processing of requests. Id.

§ 552(a)(4)(A).

Each agency also “shall designate” a Chief FOIA Officer,

id. § 552(j), to monitor implementation of FOIA, keep

government officials apprised of the agency’s performance,

develop policy recommendations, and otherwise facilitate

public understanding of FOIA’s exemptions, id. § 552(k). The

officer, in turn, “shall designate” public liaisons responsible for

“assisting in reducing delays, increasing transparency and

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understanding of the status of requests, and assisting in the

resolution of disputes.” Id. §§ 552(k)(6), (l). Congress also

required that agencies “shall annually report” to it on the

requests received, processing times, determinations made,

administrative appeals, pending cases, and related information.

Id. §§ 552(e), (k)(4)–(5).

Second, FOIA provides procedural protections for a

member of the public requesting records from an agency.

Upon a denial of a request, the requester may seek

reconsideration by the head of the agency. Id.

§ 552(a)(6)(A)(i). Upon exhausting the administrative appeal,

the requester may seek judicial relief. Id. §§ 552(a)(4)(B),

(a)(6)(A)(ii). Exhaustion is excused when the agency fails to

make a timely determination — that is, within the timetables

established in § 552(a)(6) — whether to produce records or to

withhold them pursuant to a statutory exemption. Id.

§ 552(a)(6)(C)(i). Judicial relief, in turn, may extend beyond

requiring production to providing injunctive relief. Id.

§ 552(a)(4)(B).

In sum, FOIA “reflect[s] ‘a general philosophy of full

agency disclosure unless information is exempted under clearly

delineated statutory language.’” Dep’t of Air Force v. Rose,

425 U.S. 352, 360–61 (1976) (quoting S. REP. No. 813, 89th

Cong., 1st Sess., 3 (1965)). It “stand[s] in sharp relief against”

the prior procedures under the Administrative Procedure Act,

which were “generally recognized as falling short of its

disclosure goals and came to be looked upon more as a

withholding statute than a disclosure statute.” EPA v. Mink,

410 U.S. 73, 79 (1973). FOIA “seeks to permit access to

official information long shielded unnecessarily from public

view and attempts to create a judicially enforceable public right

to secure such information from possibly unwilling official

hands.” Id. at 80. Congress’s use of the word “shall” in issuing

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directives to agencies in support of the overarching mandate to

make records “promptly available,” 5 U.S.C. § 552(a)(3)(A),

instructs courts that Congress contemplated meaningful agency

engagement upon receipt of a FOIA request. Agencies initially

have a month to determine whether records can be made

available in light of nine statutory exemptions, id. § 552(b)(1)–

(9), and have several ways to obtain additional time to respond

to requests. This engagement is premised on agencies

improving records management systems to enable “prompt”

responses. Congress underscored the importance it attached to

prompt responses by allowing judicial recourse, bypassing

administrative exhaustion, if an agency fails to meet statutory

timetables for disclosure or to justify its delay in making non-

exempt records available upon request. See Mink, 410 U.S. at

93; McGehee v. CIA, 697 F.2d 1095, 1101 (D.C. Cir. 1983).

The instant appeal brings into sharp focus the meaning of

FOIA’s mandate that agencies “shall” make requested records

“promptly available” under this two-part scheme. Between

July 2014 and August 2015, Judicial Watch submitted nineteen

FOIA requests to the Secret Service for records on public

expenditures for travel by President Obama and the First Lady,

Vice President Biden, and former President Carter. Upon

acknowledging receipt of and assigning tracking numbers to 17

of the 19 requests, the Secret Service took no further action and

stood mute. In November 2015 — between three and eighteen

months after the Secret Service had received Judicial Watch’s

records requests — Judicial Watch filed suit. Attached to its

complaint was a chart showing as to each request that the Secret

Service 1 had not made any of the requested records available

1

The Secret Service is a “distinct” entity within the Department

of Homeland Security. See Homeland Security Act of 2002, Pub. L.

No. 107-296 § 821, 116 Stat. 2135, 2224 (codified at 6 U.S.C.

§ 381).

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nor advised Judicial Watch whether any records were exempt

from disclosure. Citing the five lawsuits it had filed against the

Secret Service in similar circumstances to obtain similar

records, Judicial Watch alleged that “[t]he Secret Service

regularly fails to issue determinations . . . within the time

period required by FOIA, causing [Judicial Watch] to bring suit

in order to obtain the requested records.” Compl. ¶¶ 7–8, 13

(emphasis added). The repeated, prolonged, and unexplained

delays have prevented Judicial Watch from gathering complete

records for its reports to the public on federally funded VIP

travel. See id. ¶ 16. Further, Judicial Watch “intends to

continue submitting identical or nearly identical travel-related

FOIA requests as part of its on-going efforts to educate and

inform the public about ‘what their government is up to’ and

promote transparency, integrity, and accountability in

government and fidelity to the rule of law.” Id. ¶ 17.

Judicial Watch’s complaint was in two counts. Count I

alleged the Secret Service is “violating FOIA by failing to

conduct a search reasonably calculated to uncover all records

responsive to each . . . request[] and is unlawfully withholding

records responsive to each request.” Id. ¶¶ 19–20. As relief it

sought an order directing the Secret Service to search and

produce the non-exempt records “by a date certain.” Id. at 6–

7. Count II alleged that the Secret Service, “[o]n information

and belief . . . has a policy and practice of violating FOIA’s

procedural requirements” by “regularly failing or refusing to

produce requested records or otherwise demonstrate that [they]

are exempt from production within the time period required by

FOIA or at least within a reasonable period of time,” id. ¶ 22,

causing it irreparable harm, id. ¶ 23. It sought in relief an order

enjoining the Secret Service from adhering to its policy or

practice. Id. at 7.

8

In answering the complaint, the Secret Service

acknowledged that it had not made “a final response to all of

[Judicial Watch’s] FOIA requests,” Answer ¶ 14, and

otherwise denied violating FOIA. It also moved for judgment

on the pleadings pursuant to Rule 12(c) and to dismiss Count

II with prejudice. In an accompanying memorandum, the

Secret Service stated that it would, in accord with the district

court’s scheduling order, produce all non-exempt records by

March 18, 2016. Within four months of the filing of the

complaint, the Secret Service had produced to Judicial Watch’s

satisfaction all requested non-exempt records, including some

requested two years earlier, sought in Count I. As to Count II’s

request for injunctive relief, the Secret Service argued that the

complaint failed to allege facts sufficient to support a policy or

practice claim. Judicial Watch opposed the motion as to Count

II and requested discovery of the Secret Service’s FOIA

practices in responding to its requests. Acknowledging that the

repeated and unexplained failure to respond within FOIA’s

timetables or a reasonable time “could be due to a host of

causes,” Judicial Watch stated that it was unaware of any

“unusual” or “exceptional” circumstances asserted by the

Secret Service to justify its repeated failures to timely respond

because the Secret Service “never has — nor does it now —

offer such a reason [or] justification.” Pl.’s Opp’n to Mot. for

J. on Pldgs., at 6–7 (Mar. 12, 2016). “As such,” Judicial Watch

argued, “it[s] [non-responses] could also be the result of a

policy or practice.” Id.

The district court dismissed Count I as moot once the

Secret Service produced the requested records. It also granted

the Rule 12(c) motion for judgment on Count II, ruling that

Judicial Watch had “failed to allege sufficient facts”

establishing that the Secret Service had “adopted, endorsed, or

implemented some policy or practice that constitutes an

ongoing failure to abide by the terms of FOIA.” Judicial Watch

9

v. Dep’t of Homeland Security, 211 F. Supp. 3d 143, 146–47

(D.D.C. Sept. 29, 2016) (quoting Muttitt v. Dep’t of State, 926

F. Supp. 2d 284, 293 (D.D.C. Mar. 4, 2013)). In particular, the

district court stated that Judicial Watch “points to no fact or

statement to establish why requests were delayed or how the

delays were the result of an either formal or informal policy or

practice to violate FOIA’s requirements, rather than inevitable

but unintended delay attributable to a lack of resources.” Id. at

146. It sought no explanation from the Secret Service but

speculated the delays were likely due to a lack of resources.

Judicial Watch appeals the Rule 12(c) judgment on Count

II. Our review is de novo, accepting as true, as we must, the

factual allegations in the complaint. Mpoy v. Rhee, 758 F.3d

285, 287 (D.C. Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S.

662, 678–79 (2009)).

II.

FOIA lawsuits generally become moot once an agency has

made available requested non-exempt records, whether

voluntarily or after court order. See Perry v. Block, 684 F.2d

121, 125 (D.C. Cir. 1982) (citations omitted). This court has

recognized an exception to mootness where an agency has a

“policy or practice” that “will impair the party’s lawful access

to information in the future.” Payne Enterprises, Inc. v. United

States, 837 F.2d 486, 491 (D.C. Cir. 1988) (citing Better Gov’t

Ass’n v. Dep’t of State, 780 F.2d 86, 90–92 (D.C. Cir. 1986)).

The First Circuit had recognized a similar exception in

Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir. 1978), and

the Ninth Circuit has followed suit, see Hajro v. U.S.

Citizenship & Immigr. Servs., 811 F.3d 1086, 1103 (9th Cir.

2015). FOIA authorizes a court not only to “order the

production of any agency records improperly withheld,” but

also to “enjoin the agency from withholding agency records.”

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5 U.S.C. § 552(a)(4)(B). This injunctive authority does not

limit the district court’s inherent injunctive powers. See

Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S.

1, 20 (1974).

In this circuit it is settled law that informal agency conduct

resulting in long delays in making requested non-exempt

records available may serve as the basis for a policy or practice

claim. Our decision in Payne is instructive. There, for almost

two years Air Force officials repeatedly refused to produce

requested copies of bid abstracts for government contracts by

invoking two FOIA exemptions even though the Secretary of

the Air Force had repeatedly determined the exemptions were

inapplicable. Payne, 837 F.2d at 487–90. Payne sought

administrative review, which “[w]ithout exception” resulted in

the production of the requested records. Id. at 489. Payne

nonetheless filed suit challenging the agency’s “practice of

unjustified delay.” Id. at 487. On appeal, this court identified

the nature of a policy or practice claim:

The fact that the practice at issue is informal, rather

than crystalized in regulation or an official statement

of policy, is irrelevant to determining whether a

challenge to that policy or practice is moot. Courts

have long recognized that there “may very well be

circumstances in which prolonged delay in making

information available or unacceptably onerous

opportunities for viewing disclosed information

require judicial intervention.” So long as an agency’s

refusal to supply information evidences a policy or

practice of delayed disclosure or some other failure to

abide by the terms of the FOIA, and not merely

isolated mistakes by agency officials, a party’s

challenge to the policy or practice cannot be mooted

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by the release of the specific documents that prompted

the suit.

Id. at 491 (quoting Lybarger, 577 F.2d at 767).

Upon concluding that Payne’s case was not moot, id. at

494, the court also concluded that the agency’s “repeated

delays” in making requested records available were “wholly

unjustified” and “clear violations” of FOIA, id. at 488–89.

“[T]hat Payne eventually obtained the information it sought

provides scant comfort when stale information is of little value

yet more costly than fresh information ought to be.” Id. at 494.

The court endorsed the interpretation of FOIA that:

Congress did not intend for . . . agenc[ies] to use

FOIA offensively to hinder the release of non-exempt

documents. The appellants [i.e., the requesting

parties] have fully complied with the administrative

scheme. It was the [agency]’s abuse of this scheme

that forced the appellants to bring several lawsuits to

obtain release of the documents. . . . These

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.

Id. (quoting Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982)).

In remanding the case to afford Payne declaratory relief, this

court instructed the district court to “consider the propriety of

injunctive relief,” id. at 494–95, after “evaluat[ing] the

likelihood that the Air Force will return to its illicit practice of

delay in the absence of an injunction,” id. at 495.

The court applied Payne in Newport Aeronautical Sales v.

Dep’t of Air Force, 684 F.3d 160 (D.C. Cir. 2012). There, the

agency had repeatedly invoked a FOIA exemption to deny

12

requests for technical data, forcing a government contractor to

request the records pursuant to the agency’s more onerous

disclosure scheme, which required submission of information

that the contractor did not have due to the nature of its business.

Id. at 162–63. The contractor sued, challenging the

permissibility of the agency’s interpretation of FOIA. This

court held that the Air Force’s belated disclosure of requested

records after the contractor filed suit did not moot the policy or

practice claim because the Air Force had persisted in its

challenged practice of non-disclosure. Id. at 163–64 (citing

Payne, 837 F.2d at 491).

Judicial Watch does not allege agency misconduct in

invoking FOIA exemptions as occurred in Payne or good-faith

agency error in interpreting a FOIA exemption as occurred in

Newport. Nor does Judicial Watch point to any formal policy

or other substantive response by the Secret Service explaining

its failures to “promptly” produce requested non-exempt

records. Instead, Judicial Watch’s policy or practice claim is

based on the Secret Service’s repeated, unexplained, and

“prolonged delay in making information available.” Payne,

837 F.2d at 491. It alleges that the Secret Service “regularly

fails to issue determinations in response to [Judicial Watch’s]

travel-related FOIA requests within the time period required by

FOIA, causing [Judicial Watch] to bring suit in order to obtain

the requested records.” Compl. ¶ 7 (emphasis added). It points

to the five lawsuits 2 it had been forced to file when the Secret

Service had previously employed the same non-responsive

conduct: acknowledge receipt of the FOIA requests and assign

2

See Judicial Watch, Inc. v. U.S. Secret Service, No. 12-1562

(D.D.C. 2012); Judicial Watch, Inc. v. U.S. Secret Service, No. 13-

0647 (D.D.C. 2013); Judicial Watch, Inc. v. U.S. Secret Service, No.

13-0950 (D.D.C. 2013); Judicial Watch, Inc. v. U.S. Secret Service,

No. 14-0046 (D.D.C. 2014); Judicial Watch, Inc. v. U.S. Secret

Service, No. 14-1732 (D.D.C. 2014).

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them tracking numbers, remain mute until Judicial Watch filed

a lawsuit, and only then undertake to make requested non-

exempt records available, thereby mooting the litigation and

escaping judicial review of its failures to comply with FOIA’s

procedural requirements.

Now seeking injunctive relief in view of the Secret

Service’s alleged flouting of the statutory scheme, Judicial

Watch’s complaint posits that the Secret Service has an

informal practice, harmful to Judicial Watch’s mission and

work, of repeatedly withholding “nearly identical” records,

without explanation, for unreasonable periods of time. Id.

¶¶ 7–9, 13–14, 22. Pointing to the FOIA requests underlying

this lawsuit, Judicial Watch shows that the Secret Service made

no determinations, timely or otherwise, whether it would make

any of the records available. For example, on August 8, the

Secret Service acknowledged receipt of the requests of July 21

and 28, 2014, for travel expenditures for President Obama’s

trips to New York City, Seattle, San Francisco, and Los

Angeles, but had no further communication with Judicial

Watch on these requests, or on twelve other requests. For three

requests, the Secret Service provided a communication of an

unidentified nature, but did not produce any requested records.

Two requests were ignored entirely.

The Secret Service, in moving for judgment pursuant to

Rule 12(c), has treated its non-responsiveness to Judicial

Watch’s requests as consistent with FOIA: When an agency

fails “promptly” to produce requested non-exempt records or

invoke an exemption within statutory timetables, the

requesting party may file a lawsuit without exhausting the

administrative remedy. See 5 U.S.C. § 552(a)(6)(C)(i). That

is, failures to adhere to FOIA’s pre-litigation requirements,

including response deadlines and records management

provisions needed to enable “prompt” determinations, do not

14

establish a FOIA violation and consequently cannot be the

basis for a policy or practice claim. See Appellee Br. 17–19.

In other words, the Secret Service concludes the text of FOIA

allows for this interpretation because even where an agency

repeatedly fails to conform to FOIA’s procedural requirements

in the first part of the statutory scheme, the requester can, under

the second part of the scheme, file a lawsuit any time it seeks

to gain access to agency records. That is, the Secret Service

interprets FOIA the same way as any statute affording a right

that may be vindicated by judicial enforcement; enacting

FOIA’s directives on pre-litigation requirements thus was

unnecessary.

This interpretation is untenable for any number of reasons.

Most significantly, “[t]he basic purpose of FOIA is to ensure

an informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold the

governor accountable to the governed.” NLRB v. Robbins Tire

& Rubber Co., 437 U.S. 214, 242 (1978); see Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 171–72 (2004). Non-

exempt records are to be made “promptly available,” 5 U.S.C.

§ 552(a)(3)(A), for little more than payment of copying costs.

The Secret Service’s interpretation renders FOIA’s mandate of

“prompt” response superfluous, i.e., a dead letter. Judicial

Watch’s complaint reflects that it has repeatedly been

confronted with prolonged, unexplained delays by the same

agency with regard to the same type of records and that six

nearly identical lawsuits have not produced any change in the

Secret Service’s response to its proper requests until after it has

filed a lawsuit. According to the complaint, only at that point

has the Secret Service conducted a search to determine whether

records can be made available or are exempt from disclosure,

or engaged in consultations with Judicial Watch. The

government points to nothing that would suggest that in

providing a judicial remedy “to secure such information from

15

possibly unwilling official hands,” Mink, 410 U.S. at 80,

Congress intended an agency’s repeated flaunting of FOIA’s

pre-litigation procedural requirements to be excused once the

requested records are made available upon being sued. That

interpretation is inconsistent with Congress’s remedial purpose

in enacting FOIA to enhance government transparency subject

to limited statutory exemptions, using a two-part scheme that

imposed specific requirements on federal agencies. Our

precedent on policy or practice claims disposes of any

suggestion that Congress intended the repeated filing of

lawsuits to be a practical requirement for obtaining records

from an agency flaunting the statute. See Payne, 893 F.2d at

494 (citing Long, 693 F.2d at 910). Filing a lawsuit hardly

ensures “prompt[] availab[ility],” 5 U.S.C. § 552(a)(3)(A), as

the instant case and the five other lawsuits against this agency

demonstrate, see supra note 2, not to mention the chilling effect

that litigation costs can have on members of the public much

less the burden imposed on the courts.

Therefore, a plaintiff states a plausible policy or practice

claim under Payne by alleging prolonged, unexplained delays

in producing non-exempt records that could signal the agency

has a policy or practice of ignoring FOIA’s requirements. As

in Payne, the plaintiff must allege a pattern of prolonged delay

amounting to a persistent failure to adhere to FOIA’s

requirements and that the pattern of delay will interfere with its

right under FOIA to promptly obtain non-exempt records from

the agency in the future. Judicial Watch’s complaint meets

these requirements. Given the Secret Service’s repeated,

prolonged, and as yet unexplained delays in making requested

non-exempt records available, it cannot be gainsaid that

Judicial Watch alleges sufficient facts under Federal Rule of

Civil Procedure 8(a)(2) and Supreme Court precedent to “draw

the reasonable inference” that the Secret Service has adopted a

practice of delay, contrary to FOIA’s two-part scheme, by

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repeatedly standing mute over a prolonged period of time and

using Judicial Watch’s filing of a lawsuit as an organizing tool

for setting its response priorities. Iqbal, 556 U.S. at 678; Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The conclusion that such “unreasonable delay in

disclosing non-exempt documents” is an “abuse of [FOIA’s]

scheme” follows ineluctably from the recognition that

“Congress did not intend for the [agency] to use the FOIA

offensively to hinder the release of non-exempt documents so

as to “force[] the appellant[] to bring several lawsuits to obtain

release of the documents.” Payne, 837 F.2d at 494 (quoting

Long, 693 F.2d at 910). And it is long established in this circuit

that an agency’s compliance with FOIA depends upon its

“good faith effort and due diligence . . . to comply with all

lawful demands [for records] . . . in as short a time as is

possible.” Open America v. Watergate Special Prosecution

Force, 547 F.2d 605, 616 (D.C. Cir. 1976). Congress

reinforced the importance of FOIA’s timetables and its

overarching mandate of prompt availability when it amended

FOIA in 1974. Responding to agencies’ concerns about the

high volume of requests and lack of resources, Congress

allowed agencies only ten additional days to respond where

there were “unusual circumstances.” See 5 U.S.C.

§ 552(a)(6)(B). Judge Leventhal has explained:

[T]he 1974 Amendments were deliberately drafted to

force increased expedition in the handling of FOIA

requests: “[E]xcessive delay by the agency in its

response is often tantamount to denial. It is the intent

of this bill that the affected agencies be required to

respond to inquiries and administrative appeals within

specific time limits.” H. REP. No. 93-876, 93d Cong.,

2d Sess. (1974). . . . The Congress even rejected a 30-

17

day extension provision, narrowly drafted to take

account of the special exigencies facing agencies.

Open America, 547 F.2d at 617 (Leventhal, J., concurring in

the result) (emphasis added). Much as Congress has done in

adopting “technology-forcing” provisions in other contexts,

see, e.g., Union Elec. Co v. EPA, 427 U.S. 246, 256–57 (1976),

Congress contemplated that agencies would improve their

records management systems to ensure requested records are

made “promptly available,” 5 U.S.C. § 552(a)(3)(A). No

authority has been cited that either the Supreme Court or this

court has retreated from this understanding of FOIA’s text,

purpose, and history. An agency’s use of a lawsuit as an

organizing tool for prioritizing responses renders FOIA’s

requirements “insignificant, if not wholly superfluous.”

Duncan v. Walker, 533 U.S. 167, 174 (2001).

The district court, however, conceived the issue of

sufficiency of pleading differently. First, it treated Payne and

Newport as establishing a floor for a policy or practice claim.

In contrast with what it described as the “egregious, intentional

agency conduct” in Payne and Newport, the district court ruled

that Judicial Watch had alleged “mere delay.” Judicial Watch,

211 F. Supp. 3d at 147. “At best, Judicial Watch’s alleged facts

are merely consistent with a policy or practice claim.” Id.; see

id. at 145 (citing Iqbal, 556 U.S. at 678). This court did not

require egregious agency action to state a policy or practice

claim. Rather, the court stated in Payne that even beyond a

“refusal to supply information,” an agency may engage in

“some other failure to abide by the terms of the FOIA” that

could be a basis for finding the agency has an unlawful policy

or practice. Payne, 837 F.2d at 491 (emphasis added). It would

be ironic if a policy or practice claim could be based on

misapplication of a FOIA exemption (as in Payne and

Newport), but not on an agency’s total disregard of the

18

obligations mandated by Congress and failure to take

advantage of provisions allowing additional time to respond.

Second, the district court shifted to the requesting party the

burden that FOIA places on the agency to explain its delay in

making requested records available. See, e.g., 5 U.S.C.

§§ 552(a)(4)(B), (a)(6)(A)–(C); ACLU v. U.S. Dep’t of

Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). Concluding that

Judicial Watch failed to show that the Secret Service had

“adopted, endorsed, or implemented some policy or practice

that constitutes an ongoing failure to abide by the terms of the

FOIA,” Judicial Watch, 211 F. Supp. 3d at 146 (quoting

Muttitt, 926 F. Supp. 2d at 293), the district court focused on

Judicial Watch’s shortcomings in “point[ing] to no fact or

statement to establish why the requests were delayed or how the

delays were the result” of an agency policy or practice, “rather

than an inevitable but unintended delay attributable to a lack of

resources,” id. Pretermitting whether a lack of resources could

ever suffice to excuse repeated, prolonged, and as yet

unexplained delay, as the district court interjected, id. at 147,

FOIA’s text and structure require that the agency “at least

indicate within the relevant time period the scope of the

documents it will produce and the exemptions it will claim with

respect to any withheld documents.” Citizens for

Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 711

F.3d 180, 183 (D.C. Cir. 2013) (“CREW I”). This threshold

requirement stands as a gateway to the transparency FOIA

envisions.

The history of the Secret Service’s conduct in response to

Judicial Watch’s FOIA requests, as alleged in the complaint,

wherein Judicial Watch has been forced to file six lawsuits to

obtain requested non-exempt records — all relating to the same

subject matter — sufficed to state a plausible claim that the

agency’s practice was to utilize delay to flaunt FOIA’s

19

procedural requirements, and that filing a lawsuit to obtain

requested records was an empty gesture in terms of preventing

future prolonged delays, much less obtaining future relief,

because the agency would moot the litigation and escape

judicial review of its compliance with FOIA. The Secret

Service’s alleged practice of prolonged, repeated, and

unexplained delay, if allowed to continue, would harm Judicial

Watch’s mission to inform the public about the costs of VIP

travel by unlawfully interfering with its statutory right to

“promptly” obtain non-exempt records upon request. See

Newport, 684 F.3d at 163–64.

Of course, not all agency delay or other failure to comply

with FOIA’s procedural requirements will warrant judicial

intervention, much less injunctive relief. FOIA’s provisions

for extensions of response time, where for example the agency

shows “exceptional circumstances exist” upon

“demonstrat[ing] reasonable progress in reducing the backlog

of pending requests,” 5 U.S.C. § 552(a)(6)(C), indicate as

much. Even assuming for purposes of argument that Congress

intended the judicial remedy to be a principal means to

overcome unlawful agency withholding — an interpretation of

FOIA that this court has long rejected — no authority has been

cited to suggest agencies may require a requester routinely

resort to court to obtain responsive non-exempt records. It

seems doubtful such authority would exist when agency “good

faith effort and due diligence” are the touchstones underlying

FOIA’s statutory scheme. Open America, 547 F.2d at 616.

Unexplained agency delay still requires the district court

to determine whether the agency’s conduct in failing to

conform to FOIA’s procedural requirements demonstrates a

lack of due diligence and is so delinquent or recalcitrant as to

warrant injunctive relief because ordinary remedies, such as a

production order, see 5 U.S.C. § 552(a)(4)(B), would be

20

inadequate to overcome an agency policy or practice. See Ctr.

for the Study of Servs. v. Dep’t of Health & Human Servs., 874

F.3d 287, 292 (D.C. Cir. 2017); Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1242,

1246 (D.C. Cir. 2017) (“CREW II”); Newport, 684 F.3d at 164;

Payne, 837 F.2d at 491; Lybarger, 577 F.2d at 767. When

injunctive relief is sought, “the necessary determination is that

there exists some cognizable danger of recurrent violation,

something more than the mere possibility which serves to keep

the case alive.” U.S. v. W.T. Grant Co., 345 U.S. 629, 633

(1952). Factors to be “considered are the bona fides of the

expressed intent to comply, the effectiveness of the

discontinuance [of the violation] and, in some cases, the

character of the past violations.” Id. In the FOIA context, “the

court’s prime consideration should be the effect on the public

of disclosure or non-disclosure.” Long, 693 F.2d at 909 (citing

W.T. Grant, 345 U.S. at 633). And as Congress’s limited

reaction in amending FOIA suggests, staffing shortages and

work overload may not render injunctive relief inappropriate.

See Open America, 547 F.2d at 616; id. at 617 (Leventhal, J.,

concurring in the result). The indication by government

counsel during oral argument that an agency might permissibly

use litigation as an organizing tool for responding to FOIA

requests, see Oral Arg. 25:18–26:59, is not an encouraging

sign.

Our dissenting colleague’s interpretation of FOIA raises

the question why Congress bothered to enact FOIA at all. After

all, prior to FOIA, a person could request agency records and

upon failing to obtain them seek relief in court, albeit an

expensive and time-consuming process. Yet neither agency

practices nor lawsuits under the prior statutory scheme resulted

in transparency of government operations. The Supreme Court

and this court have understood that Congress’s purpose in

enacting FOIA was to achieve greater transparency in support

21

of open government, and that to accomplish this goal it placed

the burden on agencies to act in good faith and exercise due

diligence to make records available as quickly as possible, or

invoke an exemption, and to improve their records

management systems to enable prompt responses without

routine judicial involvement. Our colleague’s interpretation

would bypass Congress’s decision about how this goal can best

be achieved.

In doing so, our colleague concludes Judicial Watch’s

complaint fails to state a claim for relief based on a policy or

practice. Diss. Op. 2, 7–8. He does this by reading the

complaint narrowly despite the Rule 8 stage of the proceedings,

Mpoy, 758 F.3d at 287 (citing Iqbal, 556 U.S. at 678–79),

ignoring factual allegations that must be accepted as true,

reasonable inferences from the detailed chart accompanying

the complaint, and the context in which Judicial Watch was

forced to file this sixth lawsuit against the same agency for

release of the same type of records. His reading renders

FOIA’s requirements insignificant at best and effectively

reinstates the pre-FOIA scheme. When properly read, the

complaint alleges that the Secret Service continues to abuse the

statutory scheme and repeatedly moot litigation to escape

judicial oversight, thereby denying Judicial Watch the prompt

transparency that Congress intended in enacting FOIA.

Further, our colleague proceeds to address whether

Judicial Watch could prevail beyond the Rule 8 pleading stage.

He misreads the record and speculates on how the government

might have responded had the complaint not been dismissed,

Diss. Op. 10–16, thereby placing a pleading burden on Judicial

Watch beyond what Rule 8 requires and flipping to the

requester the burden that FOIA places on the agency to explain

its delay. The record at the time the district court granted the

government’s Rule 12(c) motion shows that the Secret Service

22

had done nothing beyond acknowledging receipt and assigning

tracking numbers to most of Judicial Watch’s requests. The

record provides no basis to assume Judicial Watch was kept

informed of what, if anything, the Secret Service had done in

responding to its requests, see Diss. Op. 13; paragraphs 8–12

of the complaint allege to the contrary. In speculating about

the government’s explanation, our colleague embraces the idea

that taking “hundreds of days to process requests,” Diss. Op. 9,

is a permissible interpretation of an agency’s obligations under

FOIA, when the statutory structure and our precedent in CREW

I, 711 F.3d at 186–87, are to the contrary. He twists the

congressional reporting requirement, Diss. Op. 9, designed to

enable Congress to ensure agency compliance with FOIA into

evidence of congressional approval of agency failure to

comply. See, e.g., S. REP. 93-854, at 32–33 (May 16, 1974);

H.R. REP. 104-795, at 7, 14, 27–29 (Sept. 17, 1996); see also

S. REP. 110-59, at 2, 7 (Apr. 30, 2007). And by conjuring up

the notion that Judicial Watch’s requests were “complex,”

Diss. Op. 10–11, our colleague again fails to read the record as

it must at this Rule 8 stage. Even on appeal the Secret Service

has not characterized Judicial Watch’s requests as complex.

Accordingly, we reverse the Rule 12(c) judgment on the

request for injunctive relief and remand Count II to the district

court for further proceedings. Our disposition conforms to

longstanding precedent interpreting agencies’ obligations of

“good faith effort and due diligence” upon receiving a FOIA

request. Open America, 547 F.2d at 616. The district court is

no less obligated to determine upon a well-pleaded complaint

that an agency has organized its records management systems

to enable prompt determinations to produce records or to

invoke an exemption, and to monitor when necessary an

agency’s progress in adjusting its records management systems

to enable it to comply with FOIA. See Ctr. for the Study of

Servs., 874 F.3d at 292; CREW II, 846 F.3d at 1246. The

23

government’s suggestion that Judicial Watch seeks a broad

injunction requiring the Secret Service to prioritize its

responses to Judicial Watch’s future FOIA requests, thereby

“distort[ing] the statutory scheme” and resulting in harm to

“other members of the public who have an equal right to seek

information from the government,” Appellee Br. 21–22, is not

well-taken. The Secret Service will have the opportunity on

remand to explain its delays and to confirm how it intends in

the future to conform to FOIA’s mandate to make requested

non-exempt records “promptly available.” The district court,

upon considering the complaint and the parties’ further

submissions, will determine, in the first instance, the

appropriateness of discovery and tailored injunctive relief.

PILLARD, Circuit Judge, concurring:

I join the majority opinion in full. In view of the

disagreement between my colleagues, I write separately to

emphasize what I see as the alleged Freedom of Information

Act (FOIA) violations, and to spell out how, because the

complaint alleges a persistent “practice” of violating FOIA, the

Secret Service’s production of records in response to Judicial

Watch’s lawsuit did not render the claims moot.

Judicial Watch wants to keep the public informed of how

much taxpayer money is spent on travel by the First Families

and others who travel under Secret Service protection. FOIA

is designed to make such a project easy and inexpensive.

Under FOIA, information showing “what [the] government is

up to,” EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J.,

dissenting), is presumptively available for the asking—no

lawyer needed—to any person at little or no cost. But it has

not worked out that way for Judicial Watch. The organization

has had to wait for many months, and to devote resources that

would be unaffordable to most requesters to file half a dozen

lawsuits, just to get this simple information.

Judicial Watch alleges a continuing practice of virtually

complete passivity by the Secret Service in responding to the

series of straightforward requests that Judicial Watch alleges it

has made and plans to continue to make. In these

circumstances, a complete but belated response does not moot

the case. The statute “does not allow agencies to keep FOIA

requests bottled up for months or years on end while avoiding

any judicial oversight.” Citizens for Responsibility & Ethics in

Wash. v. FEC, 711 F.3d 180, 190 (D.C. Cir. 2013) (CREW).

Because the pleadings show no statutorily adequate

explanation for the agency’s persistent practice of alleged

delays in violation of FOIA, the district court retains

jurisdiction over whatever further proceedings are needed to

determine whether declaratory or injunctive relief is

2

appropriate. On remand, the district court should call on the

Secret Service either to bring its FOIA process into line with

the statute, or to explain to the court’s satisfaction that it has

already done so.

* * *

When a member of the public makes a request for

government records, FOIA requires the agency to “determine

within 20 days” what responsive records it has and can produce

consistent with FOIA’s exemptions, 5 U.S.C.

§ 552(a)(6)(A)(i), to “immediately” notify the requester of its

determination, id., and to follow up by making nonexempt

records “promptly available,” id. § 552(a)(3)(A). FOIA thus

sets a default 20-day deadline for the underlying determination,

and simply requires that the ensuing production of records be

made to the requester “promptly” thereafter. These

requirements are tied together, for Congress plainly intended

production of records to follow close on the heels of the

determination. As we explained in CREW, “promptly” under

Section 552(a)(3)(A) “typically would mean within days or a

few weeks of a ‘determination,’ not months or years.” See

CREW, 711 F.3d at 188-89.

There is no doubt that Congress intended FOIA’s time

limits to be mandatory. See Open America v. Watergate

Special Prosecution Force, 547 F.2d 605, 617 (D.C. Cir. 1976)

(Leventhal, J., concurring) (“Excessive delay by the agency in

its response is often tantamount to denial. It is the intent of this

bill that the affected agencies be required to respond to

inquiries . . . within specific time limits.”) (quoting H.R. Rep.

No. 93-876, 93d Cong., 2d Sess. (1974)). Our dissenting

colleague minimizes the importance of the 20-day deadline for

the agency to make its determination by noting that, once an

agency exceeds it, the requester is released from FOIA’s

3

administrative exhaustion requirement. See Diss. Op. 4-5, 8.

He infers from its relevance to exhaustion that the 20-day

deadline is somehow not itself enforceable. Id. We have never

so held, nor need we pass on that question today. The

violations alleged here are not limited to missing the 20-day

deadline, but include the Secret Service’s additional failures to

make the responsive records “promptly available.” 5 U.S.C.

§ 552(a)(3)(A). Suffice it to say that no court of which we are

aware has given Section 552(a)(6)(A)(i)’s 20-day default

deadline the restricted role the dissent envisions, whereas at

least one sister circuit reads it to support a legal challenge

where an agency responded “well beyond the twenty-day limit”

without “notice of any ‘unusual circumstances’ justifying an

extension.” Hajro v. U.S. Citizenship & Immigration Servs.,

811 F.3d 1086, 1106-07 (9th Cir. 2015).

Regardless whether ignoring the 20-day deadline is alone

actionable, there is no question that substantial delays can

support cognizable FOIA claims: We have held that

“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., Inc. v. United

States, 837 F.2d 486, 494 (D.C. Cir. 1988) (quoting Long v.

IRS, 693 F.2d 907, 910 (9th Cir. 1982)); cf. McGehee v. CIA,

697 F.2d 1095, 1110 (D.C. Cir. 1983) (holding that an agency’s

internal procedures for processing documents may violate

FOIA where the “net effect” is “significantly to increase the

amount of time [the requester] must wait to obtain them”).

Faced with information suggesting that “an agency’s responses

to a request for information have been tardy and grudging,

courts should be sure they do not abdicate their own duty.”

McGehee, 697 F.2d at 1114. Allegations of an agency’s

unexplained delay—here, alleged failures for several months

to respond to simple requests to make responsive, non-exempt

records “promptly available”—suffice to state a FOIA claim.

4

When, as often happens, an agency voluntarily produces

requested records during the course of a lawsuit, that

production typically satisfies the requester and ends the case.

But not always. Voluntary cessation of unlawful conduct

moots a case, as a general matter, only “if subsequent events

made it absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189

(2000). Moreover, “[t]he heavy burden of persuading the court

that the challenged conduct cannot reasonably be expected to

start up again lies with the party asserting mootness.” Id. In

the FOIA context, an ongoing agency “policy or practice” of

unlawful nondisclosure may mean the voluntary release of

responsive records “does not deprive the tribunal of power to

hear and determine the case, i.e., does not make the case moot.”

Payne, 837 F.2d at 490 (quoting United States v. W.T. Grant

Co., 345 U.S. 629, 632 (1953); citing Cty. of L.A. v. Davis, 440

U.S. 625, 631 (1979)); see Newport Aeronautical Sales v.

Dep’t of Air Force, 684 F.3d 160, 163-64 (D.C. Cir. 2012);

Hajro, 811 F.3d at 1103, 1106; Mayock v. Nelson, 938 F.2d

1006 (9th Cir. 1991). A plaintiff plausibly alleging that its

plans to request similar agency records will be stymied by an

ongoing practice of unjustified delays may be entitled to

injunctive or declaratory relief.

The question here is whether Judicial Watch has

adequately alleged such a practice. The answer is yes.

Over a period of years, Judicial Watch routinely asked for

“VIP travel” expense information it wanted to include in

reports to its interested public. See Compl. ¶ 16, Judicial

Watch, Inc. v. Dep’t of Homeland Sec., 15-cv-1983 (D.D.C.

Nov. 10, 2015). Judicial Watch alleges that the agency failed,

time and again, to make prompt disclosure. When Judicial

5

Watch filed this suit, the nineteen sequential requests at issue

here had been pending for anywhere from seven to fifteen

months without a single determination—let alone

production—on any of the requested travel-expense

information. Id. at Ex. A. Judicial Watch’s complaint also

references five preceding lawsuits, involving an earlier

sequence of ten requests, seeking the very same kind of

information as the nineteen requests at issue here. Id. ¶ 7. Each

of those requests had likewise been pending for several months

before Judicial Watch filed each related lawsuit. See id.

With allegations of 29 similar requests across six lawsuits

met by unexplained months of waiting for the Secret Service to

produce responsive records, the complaint makes out a

consistent practice of delay in violation of FOIA. Even though

the 20-day deadline had elapsed many times over, the Secret

Service admits that it had not made the requisite

“determinations.” See 5 U.S.C. § 552(a)(6)(A)(i); Compl. ¶¶

13-16; Answer ¶ 14, Judicial Watch, 15-cv-1983 (D.D.C. Dec.

22, 2015). Nor did it give plaintiff written notice of any

“unusual circumstances” that might have entitled it to an

additional ten working days to make its determinations. See 5

U.S.C. § 552(a)(6)(B)(i). The statute obligates the agency to

reach out to requesters if it will not meet the initial 20-day

deadline in order to negotiate potential efficiencies, such as by

agreeing to an alternative timeframe for processing or by

narrowing a request “so that it may be processed within [the

20-day] time limit,” see id. § 552(a)(6)(B)(i), (ii), (iii), but there

is no indication that the Secret Service made any such overtures

to Judicial Watch, see Compl. ¶ 14; Answer ¶ 14. For most of

the nineteen requests at issue in this suit, the Secret Service

simply assigned a tracking number and provided no further

communication to Judicial Watch, see Compl. ¶ 11; for some

of the requests, the agency failed to do even that much, id. ¶

10. The Secret Service made no production of the records

6

before it faced litigation—and even when each earlier lawsuit

eventually dislodged some requested records, the cycle began

again with ensuing requests. None of the eventual production

was within a timeframe that our cases accept as “prompt” in the

absence of any justification from the Secret Service. See 5

U.S.C. § 552(a)(3)(A); CREW, 711 F.3d at 189. The

allegations, considered together with reasonable inferences

therefrom drawn in Judicial Watch’s favor, make out a

persistent Secret Service practice of violating FOIA’s

requirements for making nonexempt government records

promptly available to the public.

At the pleading stage, we lack critical context about the

alleged delays and so cannot simply assume and

unquestioningly accept that they are justified. To be sure, what

counts as prompt production varies “depending on the

circumstances.” CREW, 711 F.3d at 188. But if we were to

hold that the circumstances alleged here, without more,

satisfied the Secret Service’s statutory duties under FOIA, the

roles Congress assigned the courts as the primary enforcer of

FOIA and agencies as the proactive stewards of FOIA’s

implementation would be substantially undermined.

Consider the character of the requests themselves. The

requested records are generally in the form of receipts—

evidencing, for example, expenditures for flights, rental cars,

and hotels—subject to only routine redactions under FOIA’s

exemptions. See, e.g., U.S. Secret Service, Response to FOIA

Request Number 20131414 (June 12, 2014),

http://www.judicialwatch.org/wp-content/uploads/2014/

10/2323_Responses.pdf.1 It is a familiar fact of life to the

1

These records were produced in response to one of Judicial Watch’s

travel-related FOIA requests, see Compl. ¶¶ 21-24, Judicial Watch v. U.S.

Secret Service, 14-cv-0046 (D.D.C. Jan. 13, 2014), that was the subject of

an earlier Judicial Watch suit; the current complaint refers to that request

7

hundreds of millions of people in the United States who travel

each year for their work that employers collect and process

travel expense information regularly; any adequately

functioning organization should be able to produce travel

expense information with dispatch. There is no suggestion that

the requests at issue in this case involve any subtle relevance

questions about where or how to search, or cumbersome inter-

agency collaboration to identify what information is kept, and

where it might be found. Cf. McGehee, 697 F.2d at 1098-99.

The Secret Service presumably already keeps and

electronically tracks government-paid travel expense

information for any number of internal reasons. And, by now,

Judicial Watch’s repeated requests themselves may provide an

additional reason for it to do so: FOIA obligates agencies to

take initiative—even in the absence of a further request—to

facilitate public access to commonly sought information, such

as by publishing it in advance, see 5 U.S.C. § 552(a)(2)(D), and

fast-tracking simple requests, id. § 552(a)(6)(D); see also U.S.

Dep’t of Homeland Sec., 2018 Chief FOIA Officer Report to

the Attorney General of the United States 22-23 (Mar. 2018),

https://www.dhs.gov/sites/default/files/publications/2018%20

Chief%20FOIA%20Officer%20Report.pdf (2018 DHS Chief

FOIA Officer Report) (describing “Steps Taken to Increase

Proactive Disclosures,” and asserting that the Secret Service

has begun posting at least some travel expense information in

advance of requests). For all one can glean from the pleadings,

Judicial Watch’s requests are wholly mundane.

The dissent, however, assumes the requests are

“complex,” Diss. Op. 11, and finds their processing time

reasonable in light of the average “complex” request

processing times listed in a Secret Service FOIA report. See

and lawsuit, among others, in alleging the persistent practice of slow

responses. See Compl. ¶ 7.

8

id. (citing U.S. Dep’t of Homeland Sec., 2015 FOIA Report to

the Attorney General of the United States 5, Table V.A. (Feb.

2016), https://go.usa.gov/xXQVvf). That FOIA report,

however, was not incorporated in any pleading. It was not even

mentioned in briefing. At the pleading stage, as the district

court correctly recognized, Judicial Watch v. Dep’t of

Homeland Sec., 211 F. Supp. 3d 143, 145 n.1 (D.D.C. 2016),

we confine our review to the allegations, see Banneker

Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir.

2015). In any event, the FOIA report says nothing about how

these requests compare with those the Secret Service itself

denominated as “complex,” in terms of the difficulty and time

needed to process them. We are here required to make the

reasonable inference in Judicial Watch’s favor that its VIP-

travel expense requests are wholly straightforward; it is open

to the agency on remand to seek to show otherwise.

In sum, Judicial Watch has plausibly alleged a persistent

practice of delay that violates FOIA’s mandate to make

responsive records “promptly available.” See 5 U.S.C.

§ 552(a)(3)(A). At the pleading stage, no more is required to

support the district court’s jurisdiction to consider, in view of

the agency’s potential justifications, any need for equitable

relief.

Our dissenting colleague sees no allegations of delay that

could violate FOIA. See Diss. Op. 12. His main point is that

agencies cannot be expected to respond post haste to every one

of the thousands of FOIA requests that agencies today receive.

But to assume at the pleading stage that an agency faces hurdles

and can offer rationales that were never pleaded or proved

contravenes both Federal Rule of Civil Procedure 12(c) and

FOIA itself. We are well aware that FOIA processing is no

picnic: It can be painstaking and sometimes highly technical

for requestors, agencies, and courts alike. But FOIA

9

nonetheless requires each federal agency to swiftly disclose all

nonexempt information, even as it must accurately sort and

withhold information that falls within the statute’s exemptions.

Needless to say, busy agencies, ever pressed to do more with

limited resources, lack incentives to get that done. That is

precisely why Congress enacted FOIA’s timeframes and

authorized district courts to enjoin agencies from improperly

delaying public access to non-exempt records.

The statute places the burden on the agency, not the FOIA

requester, to justify delays in processing. Once an agency has

been sued in district court for improperly withholding records,

“the burden is on the agency to sustain its action.” 5 U.S.C.

§ 552(a)(4)(B). But see Judicial Watch, 211 F. Supp. 3d at 147;

Diss. Op. 13. FOIA requires an agency that has not made

prompt production to explain its delinquency: It allows

additional processing time only “[i]f the Government can show

exceptional circumstances exist and that the agency is

exercising due diligence in responding to the request.” See 5

U.S.C. § 552(a)(6)(C)(i). The statute spells out that

“exceptional circumstances” do “not include a delay that

results from a predictable agency workload of requests” unless

the agency affirmatively shows that it is making “reasonable

progress in reducing its backlog of pending requests.” Id.

§ 552(a)(6)(C)(ii). It is emphatically not permissible under

FOIA for a court simply to assume that an agency’s

circumstances are “exceptional.” There is no ground on this

record for relieving the Secret Service of its burden of

justification and simply presuming the Secret Service is

systemically entitled to the “additional time” referred to in

Section 552(a)(6)(C)(ii).

A few additional points: The dissent contends that, by

requiring agencies to issue reports on the number of delayed

requests and to provide tracking numbers to requesters, FOIA

10

expressly tolerates across-the-board, prolonged waits for

production of nonexempt information. See Diss. Op. 3, 9. But

nothing about FOIA’s reporting and tracking mechanisms

suggests they excuse violations of the statute’s “determination”

deadline or its expectation that, once a determination is made,

a requester will be “immediately” informed and responsive

records will be produced “promptly.” FOIA excuses slow

processing of nonexempt information only when the agency

has carried its burden to justify withholding records, 5 U.S.C.

§ 552(a)(4)(B), and to explain how its delays are warranted by

“exceptional” circumstances, id. § 552(a)(6)(B), (C)(i). In

short, the statute does not condone agency personnel sitting

behind accumulating mounds of FOIA requests and requiring

each requester to “take a number” and wait many months or

years for the agency to comply. It is innovation-forcing,

requiring agencies to consider “adjustments to . . . practices,

policies, personnel, and funding as may be necessary to

improve its implementation of” the statute, including “the

timely processing of requests for information.” See id.

§ 552(j)(2)(C), (3)(D); see also 2018 DHS Chief FOIA Officer

Report, at 26-27 (discussing “Steps Taken to Greater Utilize

Technology”).

Recognizing that Judicial Watch has stated a policy or

practice claim here imposes no new or untenable burdens on

agencies. Our circuit has recognized the “policy or practice”

doctrine for thirty years. See Newport Aeronautical Sales, 684

F.3d at 164 (recognizing that, “even though a party may have

obtained relief as to a specific request under the FOIA, this will

not moot a claim that an agency policy or practice will impair

the party’s lawful access to information in the future”)

(emphasis in original) (citing Payne, 837 F.2d at 489). District

courts, moreover, have many tools at their disposal to focus and

streamline inquiry into whether the agency’s production times

are justified. See generally Fed. R. Civ. P. 26(b)(2)(c);

11

McGehee, 697 F.2d at 1112-13 (discussing reliance on agency

affidavits at the summary judgment stage in FOIA exemption

dispute).

In considering the propriety of injunctive or declaratory

relief, the district courts should be mindful of their “duty to

prevent . . . abuses” of FOIA. Payne, 837 F.2d at 494. They

should assess whether an agency is acting with due diligence

and making reasonable progress in reducing backlogs,

including by availing itself of tools to improve its efficiency.

***

Congress in FOIA expressed a national commitment to

open government. A democratic society requires an informed

citizenry—not only to check against corruption and to hold

government accountable, but also to dispel misconceptions and

fallacies that secrecy feeds. As widely emulated as it has been

here and abroad, FOIA is not the only—or necessarily the

best—way to make the workings of government as open as

practicable to the people in whose name its officials wield

power and resources. See generally David E. Pozen, Freedom

of Information Beyond the Freedom of Information Act, 165 U.

Pa. L. Rev. 1097 (2017). Nevertheless, as Congress enacted

and we have applied it, FOIA supports Judicial Watch’s

“policy or practice” claim. I thus join the opinion of the court

holding that the Secret Service did not defeat the district court’s

jurisdiction to consider whether equitable relief might still be

warranted even though—after repeatedly failing for months to

respond to simple requests—it provided the information in full

after the lawsuit was filed.

SRINIVASAN, Circuit Judge, dissenting: The Freedom of

Information Act serves the important aim of promoting the

timely release of requested government records. Ordinarily,

when an agency completes its review of a request and releases

responsive records during the pendency of a FOIA action, the

case becomes moot. The case is not moot, however, if the

agency has a general, ongoing policy or practice of violating

FOIA. In that event, the court can enjoin the unlawful agency

policy or practice going forward.

The complaint in this case claims that the Secret Service

has a policy or practice of unlawfully withholding the release

of requested records in violation of FOIA. The question we

face is whether the complaint’s allegations, if true, establish a

policy or practice of violating FOIA. My colleagues conclude

that the answer is yes. I respectfully disagree.

This case involves nineteen requests for records

submitted to the Secret Service by Judicial Watch. The

complaint’s salient allegations are that (i) the agency failed to

determine whether it would produce the requested records

within a twenty-day period set out in the statute, (ii) several

months had elapsed without any production of records by the

time this suit was filed, and (iii) the agency, in past cases

involving the same sorts of requests by Judicial Watch,

ultimately produced the records after the filing of a suit. Do

those allegations make out a policy or practice of FOIA

violations? In my view, they do not.

With regard to the statute’s default twenty-day period for

determining whether to produce requested records, an agency’s

failure to make that determination within twenty days is not an

actionable violation of FOIA. Nor was it necessarily a

violation of FOIA that the requests were still pending before

the agency when the suit was filed. Indeed, the statute

expressly contemplates that an agency could take several

months to process a FOIA request, and agencies regularly—

2

and lawfully—take that long to determine whether to produce

requested records. And while it may be true that the Secret

Service has previously produced records after Judicial Watch

filed suit (and did so again in this case), the mere fact that an

agency produces records following the initiation of judicial

proceedings tells us nothing about whether the non-production

of the documents before that point violated the statute. In short,

the allegations in the complaint, even if true, are consistent with

lawful conduct under FOIA.

The complaint in this case therefore fails to allege a policy

or practice of violating FOIA. By deciding otherwise and

allowing this action to go forward, the court today enables

FOIA suits to proceed past the pleadings in a broad range of

situations in which an agency’s practices are fully in keeping

with the statute’s requirements. Agencies often (and lawfully)

take significantly longer than twenty days to process a FOIA

request. But an agency that does so, under the court’s rationale

today, would routinely be subject to an ostensibly viable claim

that it has a policy or practice of violating the statute. The

statute, in my respectful view, does not countenance that result.

I.

A.

To understand why the complaint in this case fails to allege

a policy or practice of violating FOIA, it is necessary to review

in some detail the statute’s provisions governing the processing

of a request for records. Upon a proper request for records

submitted by “any person,” FOIA generally calls for a federal

agency to make the requested records “promptly available” to

the requester unless the records fit within one of the statutory

exemptions. See 5 U.S.C. § 552(a)(3)(A). Depending on the

nature of a request, identifying and examining responsive

records, and determining whether an exemption applies, can

3

take considerable time. FOIA thus prescribes no fixed

timeframe within which an agency must produce non-exempt

records. Rather, the statute establishes a set of procedures for

agencies (and requesters) to follow in furtherance of the

general mandate to make non-exempt records promptly

available.

Whenever the agency will take longer than ten days to

process a request, the statute requires the agency to assign the

requester an “individualized tracking number.” Id.

§ 552(a)(7)(A). The tracking number enables the requester to

obtain “information about the status of [her] request” through

a “telephone line or Internet service” set up by the agency.

Id. § 552(a)(7)(B). The “status” information available to the

requester must include “an estimated date on which the agency

will complete action on the request.” Id. § 552(a)(7)(B)(ii). A

requester, then, can readily ascertain when the agency

anticipates “complet[ing] action on the request.” Id.

How long might that take? As a default matter, FOIA

provides that an agency “shall . . . determine within 20

[business] days . . . whether to comply with [a] request” for

records, and “shall immediately notify” the requester “of such

determination and the reasons therefor.” Id. § 552(a)(6)(A)(i).

That “determination” marks the culmination of an agency’s

processing of a FOIA request—i.e., the determination by the

agency whether it will produce the requested records or instead

will withhold any production of records (because, for instance,

a FOIA exemption applies or there are no responsive records).

The statute does not envision that an agency invariably

will be able to process a request within the twenty-day period.

That “timeline is not absolute.” Citizens for Responsibility &

Ethics in Wash. (CREW) v. FEC, 711 F.3d 180, 184 (D.C. Cir.

2013). It is instead only a “default.” Id. at 189. After all, “it

4

would be a practical impossibility for agencies to process all

FOIA requests completely within twenty days.” Id. (brackets

and internal quotation marks omitted).

For instance, in the event of certain “unusual

circumstances” specified in the statute, the agency can extend

the time period for processing a request by an additional ten

business days (or thirty days total). 5 U.S.C. § 552(a)(6)(B)(i).

(Unusual circumstances exist when a request: requires

accessing records in an off-site location, involves a

“voluminous amount” of records, or implicates the interests of

multiple agencies or components. Id. § 552(a)(6)(B)(iii).) The

statute, moreover, affirmatively contemplates that those

“unusual circumstances” could cause the agency to take longer

than thirty days to process a request. In that event, the agency

must give the requester the opportunity to limit the scope of her

request or work with the agency to develop an alternative time

frame for processing it. Id. § 552(a)(6)(B)(ii).

In addition, apart from the enumerated “unusual

circumstances,” the statute separately allows an agency to

show that “exceptional circumstances” (as opposed to “unusual

circumstances”) exist, and that the agency “is exercising due

diligence in responding to the request.” Id. § 552(a)(6)(C)(i).

In that event, the agency is allowed “additional time to

complete its review of the records.” Id. “Exceptional

circumstances” can “include a delay that results from a

predictable agency workload of requests” if “the agency

demonstrates reasonable progress in reducing its backlog of

pending requests.” Id. § 552(a)(6)(C)(ii). The statute thus

expressly envisions that an agency could have a backlog of

FOIA requests preventing it from processing a new request

within twenty days, and that the agency would be allowed

additional time as long as it is making reasonable progress in

reducing the backlog.

5

The “exceptional circumstances” determination is made

by a court after a requester initiates the statute’s process of

judicial review. See id. § 552(a)(6)(C). FOIA vests district

courts with jurisdiction to conduct a de novo review of an

agency’s processing of a request, and to enjoin the agency from

any “improper[] withh[olding]” of responsive records. Id.

§ 552(a)(4)(B). Ordinarily, a requester must exhaust her

remedies with the agency before bringing the matter to court.

See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). But a

requester is deemed to have constructively exhausted her

administrative remedies if an agency takes longer than the

default twenty-day period to process her request. 5 U.S.C.

§ 552(a)(6)(C); see CREW, 711 F.3d at 182, 185.

At that point, the requester, if she wishes, can proceed

directly to court rather than continue to pursue the matter

within the agency. Once in court, the agency has the burden to

justify any decision to withhold responsive documents, 5

U.S.C. § 552(a)(4)(B), or to show that, due to exceptional

circumstances (potentially including a backlog of FOIA

requests), the agency needs additional time to process a

request, id. § 552(a)(6)(C).

B.

If an agency produces the requested records while the

matter is pending in court, the aim of the requester’s claim for

the records would have been realized and her claim generally

becomes moot. See Payne Enters., Inc. v. United States, 837

F.2d 486, 490-91 (D.C. Cir. 1988). In the ordinary case, then,

an agency’s production of the requested records will occasion

a dismissal of the requester’s suit.

As our court recognized in Payne, however, an agency’s

production will not “moot a claim” if “an agency policy or

practice will impair the party’s lawful access to information in

6

the future.” Id. at 491 (emphasis omitted). A requester thus

can avoid dismissal on mootness grounds by plausibly alleging:

first, that the “agency’s refusal to supply information evidences

a policy or practice of delayed disclosure or some other failure

to abide by the terms of the FOIA,” and, second that the

agency’s policy or practice will continue to injure the requester

in the future. Id. In other words, a requester can maintain her

action, notwithstanding the agency’s production of the

requested records, if the agency follows a policy or practice of

unlawfully withholding records under FOIA and might

continue to do so absent judicial intervention. Otherwise, an

agency could have a policy of unlawfully refusing to release

responsive documents, produce the documents when (and only

when) sued in order to moot a given case, and then resume its

unlawful withholding policy thereafter.

We have recognized the viability of a requester’s policy-

or-practice claim on just two prior occasions. Both cases

involved an agency’s allegedly unlawful withholding of

documents based on an erroneous assertion of a FOIA

exemption. See id. at 487; Newport Aeronautical Sales v.

Dep’t of Air Force, 684 F.3d 160, 163-64 (D.C. Cir. 2012). In

each case, we allowed the requester to proceed on a policy-or-

practice claim notwithstanding the agency’s production of the

requested documents. We did so because of the risk that the

agencies would continue to withhold responsive records in the

future in reliance on an inapplicable statutory exemption.

II.

Unlike the requesters in Payne and Newport, Judicial

Watch does not contend that the Secret Service has a policy or

practice of withholding requested records based on the

agency’s erroneous invocation of a FOIA exemption. Rather,

Judicial Watch alleges that the Secret Service “has a policy and

7

practice of . . . regularly failing or refusing to produce requested

records or otherwise demonstrate that requested records are

exempt from production within the time period required by

FOIA or at least within a reasonable period of time.” Compl.

¶ 22. Judicial Watch’s claim of an unlawful agency practice

thus pertains solely to the time taken by the agency to process

its records requests: there is no allegation that the agency is

acting unlawfully in any other way, such as by refusing to

produce records in invalid reliance on an inapplicable

exemption.

In its complaint, Judicial Watch alleges the following facts

in support of its claim that the Secret Service has a policy or

practice of violating FOIA. Between July 2014 and August

2015, Judicial Watch submitted the nineteen FOIA requests at

issue in this case. The statute’s default twenty-day period

elapsed without any determination by the Secret Service

whether it would comply with the requests. By the time

Judicial Watch filed suit (in November 2015), the agency had

yet to complete its processing of the requests. And, on five

previous occasions in which the Secret Service had failed to

make a determination on Judicial Watch’s request within

twenty days, the agency produced the requested records after

Judicial Watch filed suit. Compl. ¶¶ 7-9, 13-14.

Those factual allegations, in my view, do not state a claim

that the Secret Service has a policy or practice of violating

FOIA. The complaint advances two potential theories of how

the Secret Service has engaged in a policy or practice of

violating FOIA: first, the agency repeatedly failed to make

determinations on Judicial Watch’s requests “within the time

period required by FOIA,” Compl. ¶ 22—i.e., the default

twenty-day period, § 552(a)(6)(A); and second, the agency

failed to produce responsive documents over a sixteen-month

8

period between the submission of the first request and the filing

of the suit. Neither of those theories states a claim for relief.

A.

Judicial Watch first argues that the Secret Service

repeatedly failed to make determinations on its requests within

twenty days, as with the nineteen requests at issue in this case

and the five previous cases identified in the complaint. But the

lapse of the default twenty-day period is not itself an actionable

violation of FOIA. A repeated lapse of the twenty-day period,

then, cannot form the predicate of a viable policy-or-practice

claim.

The failure to process a FOIA request within twenty days,

while not itself an actionable FOIA violation, does have a

consequence under the statute. In that event, the requester can

bypass the normal requirement to seek administrative review

of an adverse determination on her request and instead proceed

directly to district court. See 5 U.S.C. § 552(a)(6)(A)(i)-(ii),

(C)(i); see CREW, 711 F.3d at 185, 189-90. The court then

would conduct a de novo review of the agency’s processing of

the request. See 5 U.S.C. § 552(a)(4)(B).

The court would not, though, grant judgment in the

requester’s favor merely because the default twenty-day period

had elapsed without a determination by the agency. Rather, the

statute presupposes that the court could recognize that the

agency should be given additional time to process the request.

That would be warranted if, as we have seen, the agency shows

it “is exercising due diligence in responding to the request” and

is making “reasonable progress in reducing [a] backlog of

pending requests.” Id. § 552(a)(6)(C)(i),(ii). Given that the

agency can lawfully take additional time to process a request,

the mere lapse of the twenty-day period does not establish that

the agency has violated FOIA.

9

Other provisions in the statute reinforce that a lapse of the

twenty-day period cannot itself amount to a FOIA violation.

The requirement to provide a tracking number for any request

“that will take longer than ten days to process,” id.

§ 552(a)(7)(A), presupposes that an agency might often require

more than twenty days to complete its review. Otherwise, a

tracking number would have relevance only for a request that

the agency anticipates will take more than ten days but less than

twenty days, an implausible reading of the statute.

Indeed, FOIA expressly contemplates that an agency could

take hundreds of days to process requests. The statute calls for

each agency to submit an annual report to the Attorney General

setting out, among other things, the number of requests to

which the agency made a determination within specified ranges

of business days. Each agency must, for example, identify the

number of requests for which it made a “determination within

a period up to and including 20 days, and in 20-day increments

up to and including 200 days.” Id. § 552(e)(1)(G)(i). The

agency must also specify the number of requests it processed

within a period of 200-300 business days, 300-400 business

days, and greater than 400 business days. Id.

§ 552(e)(1)(G)(ii)-(iv). Congress thus expressly envisioned

that an agency might, with some regularity, take several

hundred days or more—not just twenty days—to process a

request.

Judicial Watch then errs in supposing that a lapse of the

default twenty-day timeframe for processing a request

constitutes an actionable violation of FOIA. It follows that the

complaint cannot state a viable policy-or-practice claim based

on the Secret Service’s failure to make a determination within

the twenty-day period for the requests at issue.

10

B.

Judicial Watch’s complaint also states that the Secret

Service has a policy or practice of failing to produce requested

records “within a reasonable period of time.” Compl. ¶ 22.

That contention perhaps could be construed to allege that, even

if the lapse of the twenty-day period does not itself establish a

FOIA violation, the Secret Service’s failure to make

determinations within a “reasonable” time (beyond twenty

days) infringed FOIA’s overarching mandate to make records

“promptly available.” Id. § 552(a)(3)(A). That, however, is a

legal conclusion, which we do not accept as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). The legal conclusion instead

must rest on plausible factual allegations that, if true, would

establish the unlawfulness of the agency’s action. Id.

Judicial Watch alleges no such facts here. Judicial Watch

contends that, by the time it filed suit in November 2015, the

Secret Service had yet to produce records responsive to

nineteen requests submitted between July 2014 and August

2015. See Compl. ¶¶ 8, 14. The requests had been pending for

between 54 and 329 business days. Id. Ex. A. The complaint

contains no allegations suggesting why those time periods

might be considered unreasonably—much less unlawfully—

long. Rather, even assuming Judicial Watch’s allegations are

true, the Secret Service might well have been working through

the nineteen requests in a reasonable and lawful manner.

Indeed, the statute, as explained, expressly envisions that

agencies may take hundreds of days or more to process

requests. See 5 U.S.C. § 552(e)(1)(G)(i)-(iv).

Consider in that regard how the response times for the

requests in this case stack up when compared with the Secret

Service’s general processing of FOIA requests in 2015, the

year the complaint was filed. The Secret Service processed

11

roughly 1200 requests that year. U.S. Dep’t of Homeland

Security, 2015 Freedom of Information Act Report to the

Attorney General of the United States 13, tbls. VII.C(1)-(2)

(Feb. 2016), https://go.usa.gov/xXQvf (hereinafter 2015 DHS

FOIA Report). Almost all (roughly 90%) of the requests

processed in 2015 were categorized as “complex.” Id. (1050

complex requests versus 145 simple requests). And the

average processing time for those requests was 317 days, with

the response time for roughly one out of every four of the

requests exceeding 300 business days. Id. at 12-13, tbls. VII.B,

VII.C(2).

Considered in that context, the time for which the nineteen

requests in this case had been pending when Judicial Watch

filed its suit (54 to 329 business days) is in step with the Secret

Service’s general handling of FOIA requests. Nor is the Secret

Service some sort of conspicuous outlier among DHS

components in its processing times. See id. at 12 tbl. VII.B.

(Contrary to my colleagues’ suggestion, Maj. Op. 22; Conc’g

Op. 7-8, I do not necessarily assume that the requests in this

case would be categorized as “complex,” although almost all

requests processed by the Secret Service were so classified.

Rather, in identifying a suitable comparison point to help

highlight that processing times of 54 to 329 days do not alone

demonstrate a FOIA violation, it is appropriate to reference the

average processing time for the largest group of requests for

which there is available data, a group that makes up some 90%

of all requests.)

Insofar as a FOIA requester can make out a viable policy-

or-practice claim based solely on an agency’s response times,

then, Judicial Watch needed to allege something more than

that: it submitted multiple FOIA requests, it filed suit when

permitted by the statute, and its requests had been pending for

some 54 to 329 business days at that time. Those allegations

12

are consistent with lawful conduct by the agency. They thus

do not show a policy or practice of violating FOIA.

C.

My colleagues in the majority nonetheless conclude that

Judicial Watch’s complaint states a valid policy-or-practice

claim. They reason that the complaint “alleg[es] prolonged,

unexplained delays in producing non-exempt records that

could signal the agency has a policy or practice of ignoring

FOIA’s requirements.” Maj. Op. 15.

Which of “FOIA’s requirements” is the Secret Service

plausibly alleged to have ignored? The only “requirement” on

which the complaint relies is the default twenty-day period for

processing a request. For the reasons already set out, however,

the lapse of that period does not amount to an actionable

violation of FOIA. If a breach of the twenty-day period were

itself an actionable violation of FOIA, then a requester could

immediately file suit after the twenty-day period passes—on

day twenty one, for instance—and qualify right away for the

entry of judgment in her favor and an award of attorneys’ fees

as a substantially-prevailing party. See 5 U.S.C.

§ 552(a)(4)(E). That cannot be correct.

As for my colleagues’ assertion that Judicial Watch

experienced “prolonged” delays in obtaining responsive

records, Maj. Op. 15, there is no explanation of why the

response periods alleged in the complaint might cross the line

from permissible to unlawfully “prolonged.” The lapse of the

default twenty-day period, as we have seen, does not itself

establish that the agency’s response was unlawfully prolonged.

If so, then at what point (beyond twenty days) did the agency’s

response times for the requests in this case become unlawfully

prolonged? My colleagues do not say. And it is unclear how

a district court is to make that determination.

13

For instance, are the response times “prolonged” because,

for three of the nineteen requests in the case, more than 300

business days had elapsed as of the complaint without a

determination by the agency? See Compl. Ex. A. The Secret

Service was doing no worse on that metric with regard to the

nineteen requests at issue than it did for all requests it processed

in 2015. See DHS 2015 FOIA Report 13, tbl. VII.C(2) (253 of

the roughly 1200 total responses took more than 300 business

days to process). And if an agency violates FOIA whenever it

takes more than 300 business days to respond to a request,

Customs and Border Patrol would have violated the statute on

that basis alone more than 20,000 times in 2015. See id.

In an effort to bolster the idea that the Secret Service’s

response times in this case at some point became unduly

prolonged, my concurring colleague would infer that the

requests at issue are “wholly straightforward.” Conc’g Op. 8.

The complaint, though, alleges (or says) nothing about the

comparative complexity of Judicial Watch’s requests. At any

rate, regardless of whether the Secret Service ultimately

prevails in its competing assertion that Judicial Watch’s

requests are “labor intensive,” Campbell Decl. at ¶ 11 (D.D.C.

Mar. 18, 2016), ECF No. 16-1, neither the concurring opinion

nor the court’s opinion identifies when (beyond twenty days)

response times become sufficiently “prolonged” such that the

time periods alleged in a complaint alone are enough to make

out a policy-or-practice claim.

In addition to asserting that the Secret Service’s response

times were unduly “prolonged,” my colleagues also say that the

response times were “unexplained.” Maj. Op. 15. In that

regard, my colleagues presumably rely on Judicial Watch’s

indication that, for a number of the requests in the case, the

Secret Service made no communication to Judicial Watch

beyond giving a tracking number. See Compl. ¶ 11 & Ex. A.

14

But the purpose of requiring an agency to give an

“individualized tracking number” for requests that will take

more than ten days to process is to arm the requester with an

efficient means of obtaining “information about the status of

[her] request,” including an estimated date on which the agency

will finish processing the request. 5 U.S.C. § 552(a)(7)(B).

That is an important form of communication by the agency to

the requester, and there is no indication that it was unavailable

to Judicial Watch (or any allegation that it was somehow

deficient).

If a particular request implicates one of FOIA’s three

enumerated “unusual circumstances” and the agency will take

more than thirty business days to process it, the statute calls for

the agency to give the requester an opportunity either to limit

the request’s scope or to arrange for an alternative timeframe

for processing it. Id. § 552(a)(6)(B)(ii); see Conc’g Op. 5. But

the requirement to engage in that dialogue arises only if one of

the enumerated “unusual circumstances” exists. And there is

no suggestion by Judicial Watch—much less any allegation in

the complaint—that any of those circumstances might exist in

this case (or, for that matter, that the agency fell short in any

resulting obligation to initiate the contemplated dialogue).

My colleagues, finally, assume that the Secret Service has

a practice of responding to Judicial Watch’s requests only

“after it has filed a lawsuit.” Maj. Op. 14. “[O]nly at that

point,” my colleagues submit, “has the Secret Service

conducted a search to determine whether records can be made

available or are exempt from disclosure, or engaged in

consultations with Judicial Watch.” Id.

I assume it would violate FOIA for an agency to adhere to

a practice of refusing to process a request unless the requester

brings a lawsuit. I do not read the complaint to allege that the

15

Secret Service has any such policy, however. To be sure, the

complaint references five prior cases in which the Secret

Service produced records after Judicial Watch filed suit, and

the agency in this case produced records responsive to the

nineteen requests after Judicial Watch brought this action. See

Compl. ¶¶ 7, 9, 14. But the fact that the agency eventually

produced records after a lawsuit of course hardly means that it

produced the records only because of the lawsuit, much less

that it did no work at all to process the request until the suit was

filed. See Iqbal, 556 U.S. at 680-82.

Indeed, assuming (as we must) that the Secret Service gave

Judicial Watch a tracking number upon receiving the requests,

see Compl. ¶ 10, the agency also would have “provide[d]

information about the status of [the] request[s]” including an

“estimated date” by which it would “complete action” on them,

5 U.S.C. § 552(a)(7)(B). That means the agency necessarily

would have to work on the requests regardless of any (as yet

unfiled) suit. The complaint itself thus negates any notion that

the agency did no work on the requests until Judicial Watch

filed suit.

The complaint therefore does not allege—and at least does

not plausibly allege—that it is the Secret Service’s policy to

withhold processing or production of documents unless the

requester sues: to say that documents were produced after a

suit is not to say that there would have been no processing or

production absent the suit. Cf. Bell Atl. Corp. v. Twombly, 550

U.S. 554, 556-57 (2007) (while parallel conduct may be

consistent with an illicit agreement, allegations about parallel

conduct do not substantiate otherwise conclusory allegation of

illicit agreement). Judicial Watch in fact conceded in the

district court that the time taken by the agency to process the

requests could have been due to a “host of causes,” including

16

agency backlog. Pl.’s Opp’n to Mot. J. on Pldgs. 6-7 (D.D.C.

Mar. 12, 2016), ECF No. 14.

My colleagues reason that, regardless of whether the

Service Service’s response times are caused by agency

recalcitrance or justifiable backlog, the delay has the effect of

making it a “practical requirement” for Judicial Watch to sue

in order to obtain records. Maj. Op. 15. But the Secret

Service’s conduct, even assuming the truth of the allegations in

the complaint, has not required Judicial Watch to sue.

Rather, the statute affords requesters a choice: if twenty

days comes and goes without a determination, the requester

may check the tracking information and decide to wait until the

estimated completion date arrives, or she may choose to

involve a court in an effort to set a different timeline for

production. That is how the statute is designed to work. And

nothing in the complaint suggests that the process did not work

that way here. The remedial process, along with the other

provisions of the statute, aim to advance FOIA’s ultimate

mandate of prompt production of non-exempt records. An

agency does not violate that mandate when the statutorily-

prescribed process works as it was supposed to.

* * * * *

The evident result of the court’s holding today is that any

requester who alleges that she made more than one request for

records, that she received no determination within twenty days,

and that she obtained no records before suing, can state a policy

or practice claim based on agency delay. That would be so

even though the agency may be well on its way to production,

and even though there is no plausible allegation of agency

recalcitrance. In any such instance, disclosure of the requested

records in accordance with a court-ordered schedule would not

moot the case. Rather, a district court would be charged with

17

examining how “an agency has organized its records

management systems” and “monitor[ing] when necessary an

agency’s progress in adjusting its records management

systems.” Maj. Op. 22. That holding implicates not only the

Secret Service’s handling of the requests in this case, but also

the processes of numerous governmental agencies who

routinely take longer than twenty days to process requests

given the practical impossibility of invariably meeting that

timeframe. See CREW, 711 F.3d at 189.

In my view, neither the terms, structure, nor purpose of

FOIA demands that result. I of course do not take lightly

FOIA’s highly important mandate that agencies promptly

disclose non-exempt records. Nor do I discount the possibility

that various agencies are not processing FOIA requests as

quickly as they might. The annual reports required by

Congress presumably would shed light on poorly performing

agencies. FOIA also provides for an investigatory proceeding

by the Office of Special Counsel whenever a court issues

written findings that “circumstances surrounding [an agency’s]

withholding raise questions whether agency personnel acted

arbitrarily or capriciously.” 5 U.S.C. § 552(a)(4)(F)(i). And if

an agency has a practice of unlawfully withholding the

disclosure of responsive records—say, by persistently invoking

an inapplicable exemption—it will be subject to an injunction

barring the practice. See Payne, 837 F.2d at 490-92.

In this case, however, the Secret Service’s actions, as

alleged in the complaint, do not reflect a policy or practice of

violating FOIA. Rather, the allegations are consistent with

lawful conduct on the agency’s part. As a result, the case

became moot when the agency finished processing the requests

and disclosed responsive documents pursuant to the schedule

ordered by the district court. I thus respectfully dissent from

my colleagues’ disposition of this appeal.