                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 AMERICAN CENTER FOR LAW AND
 JUSTICE,

        Plaintiff,
                v.                                         Civil Action No. 16-2516 (JEB)
 UNITED STATES DEPARTMENT OF
 STATE,

        Defendant.


                                 MEMORANDUM OPINION

       Although the Freedom of Information Act requires agencies to issue decisions on requests

for documents within twenty working days, few departments consistently meet this deadline.

Plaintiff American Center for Law and Justice believes that the State Department, in fact, has an

actual policy or practice of not complying until the requester brings suit. In this case, ACLJ both

seeks specific documents and asserts such a policy-or-practice claim. This Court initially

dismissed the latter count without prejudice, but allowed Plaintiff to file an Amended Complaint.

Once ACLJ did so, the Court permitted the claim to proceed, despite a renewed Motion to

Dismiss. State now moves for partial summary judgment on this count alone. Concluding that

the third time is the charm for Defendant, the Court grants the Motion.

I.     Background

       The Court has already laid out the facts of the case in its prior Opinions, but briefly

recounts background relevant to the specific question at issue here. See Am. Ctr. for Law &

Justice v. Dep’t of State, 249 F. Supp. 3d 275 (D.D.C. 2017) (ACLJ I); Am. Ctr. for Law &

Justice v. Dep’t of State, 254 F. Supp. 3d 221 (D.D.C. 2017) (ACLJ II). On July 25, 2016,


                                                 1
Plaintiff, a non-profit organization focused on governmental accountability, submitted a FOIA

request to State for certain documents relating to its funding of a political organization that

opposed Israeli Prime Minister Benjamin Netanyahu. See ECF No. 28 (Amended Complaint),

¶ 7. Three days later, the agency sent ACLJ a letter acknowledging receipt of the request. The

letter also provided the Case Control Number, granted ACLJ’s request for a fee waiver, and

denied its request for expedited processing. Id., Exh. B at 1. It concluded by warning Plaintiff

that “[u]nusual circumstances . . . may arise that would require additional time to process [the]

request,” but informing it that State would “notify [it] as soon as responsive material has been

retrieved and reviewed.” Id.

       After five months of vainly waiting for such notification, Plaintiff filed this two-count

suit, alleging that the Department (1) violated FOIA by not issuing a determination on its request

within the statutorily mandated twenty days, and (2) has a policy or practice of flouting its FOIA

obligations until requesters initiate litigation. See ECF No. 1 (Complaint), ¶¶ 24, 40. State

moved to dismiss this second count, which was premised on at least seven instances where it did

not provide requested documents until ACLJ filed a lawsuit. See Opp., Attach. 1 (Plaintiff

Statement of Additional Material Facts), ¶ 2. The Court granted the Motion, finding that ACLJ

had not pled a specific policy or practice that resulted in repeated violations of FOIA. ACLJ I,

249 F. Supp. 3d at 282. Because the Court dismissed without prejudice, ACLJ went back to the

drawing board and sought to amend its Complaint.

       According to the revised Complaint, Defendant engages in an “impermissible practice,

policy, and pattern of refusing to issue a determination and/or produce responsive documents

unless and until Plaintiff files suit.” Am. Compl., ¶ 91. This second pitch, the Court found, had

“patch[ed] the[] potholes” in the earlier Complaint. ACLJ II, 254 F. Supp. 3d at 226-27. This




                                                  2
time around, ACLJ had “explicitly articulate[d] that the policy or practice is State’s refusal to

respond unless and until suit is brought,” an allegation that “no longer gesture[d] at some

nebulous policy or practice.” Id. at 227. The Court, accordingly, granted Plaintiff’s Motion for

Leave to File an Amended Complaint.

       State now takes a third swing at ACLJ’s policy-or-practice claim, arguing that the policy

of which ACLJ complains simply does not exist. The Department does not deny that it has

trouble meeting its FOIA deadlines, but asserts that any delay is an unavoidable consequence of

increased FOIA obligations and limited resources. Plaintiff opposes the Motion and

concomitantly filed its own Motion for Discovery pursuant to Federal Rule of Procedure 56(d).

Both Motions are now ripe.

II.    Legal Standard

       Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at

895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477

U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion” by “citing to particular parts of materials in the record” or

“showing that the materials cited do not establish the absence or presence of a genuine dispute,

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.




                                                  3
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

       When a non-movant believes that summary judgment is premature, she may file a motion

for discovery under Rule 56(d). The motion must provide “specific reasons demonstrating the

necessity and utility of discovery to enable her to fend off summary judgment.” Strang v. U.S.

Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989). Bare allegations are

not enough; the non-movant must show “what facts [s]he intend[s] to discover that would create

a triable issue” of fact. Byrd v. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999). The decision

whether to grant a 56(d) motion lies within the discretion of the district court. Exxon Corp. v.

FTC, 663 F.2d 120, 126 (D.C. Cir. 1980).

       FOIA cases typically are decided on motions for summary judgment. See Brayton v.

Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may

accept an “agency’s affidavits, without pre-summary judgment discovery, if the affidavits are

made in good faith and provide reasonably specific detail concerning the methods used to

produce the information sought.” Broaddrick v. Executive Office of the President, 139 F. Supp.

2d 55, 64 (D.D.C. 2001). “Agency affidavits are accorded a presumption of good faith, which

cannot be rebutted by purely speculative claims about the existence and discoverability of other

documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal

quotation marks and citation omitted).

III.   Analysis

       In seeking summary judgment, State avers that it does not have a policy or practice of

pushing off FOIA requests (from ACLJ or other requesters) until litigation, much less a policy

egregious enough to warrant injunctive relief. ACLJ, unsurprisingly, disagrees and argues that it




                                                 4
can prove the existence of such a policy or at least raise an issue for trial with the aid of

discovery. The Court first addresses the summary-judgment Motion and, finding ACLJ’s claim

wanting, then concludes that Plaintiff is also not entitled to relief under Rule 56(d).

       A. Policy-or-Practice Claim

       ACLJ claims that State refuses to issue a determination on FOIA requests until

organizations file a lawsuit. The Act requires an agency to “determine within 20 days . . . after

the receipt of any . . . request whether to comply with such request” and immediately notify the

requester about its decision. See 5 U.S.C. § 552(a)(6)(A)(i). “In unusual circumstances,” the

agency can extend the deadline by a maximum of ten days, but it must provide the requester

“written notice . . . setting forth the unusual circumstances for such extension and the date on

which a determination is expected to be dispatched.” Id. § 552(a)(6)(B)(i). Despite the clear

statutory language, agencies have had difficulty meeting the FOIA deadline since it was added in

1974. From the beginning, they have felt that having to respond to requesters in such a short

timeframe would engender “the very real problem of spreading available resources too thin.” H.

Rep. No. 93-876, at 137 (1973) (Letter from Malcolm D. Hawk, Acting Asst. Att’y Gen., Dep’t

of Justice). Congress, nevertheless, has insisted that agencies adhere to the strict timetable and

has provided requesters a private right of action when the agency fails to perform its statutory

duty. See 5 U.S.C. § 552(a)(4)(B). When this occurs, “the ‘penalty’ is that the agency cannot

rely on the administrative exhaustion requirement to keep cases from getting into court.”

Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180, 189 (D.C.

Cir. 2013).

       When an agency’s non-compliance shifts from a singular instance to a “policy or practice

[to] impair the party’s lawful access to information,” however, a court can order broader




                                                   5
equitable relief. Payne Enterp., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988); cf.

Citizens for Responsibility & Ethics in Wash. v. DOJ, 846 F.3d 1235, 1241 (D.C. Cir. 2017)

(courts have “broad equitable authority” to enforce FOIA). Standing in such cases to challenge

and receive relief from an agency policy or practice is limited “to the FOIA requests submitted

by [the p]laintiff actually at issue in this case.” Cause of Action Inst. v. Eggleston, 224 F. Supp.

3d 63, 71 (D.D.C. 2016). To warrant equitable relief, a plaintiff must show that the agency

(1) repeatedly violates FOIA through a (2) policy or practice that is (3) “sufficiently outrageous.”

ACLJ II, 249 F. Supp. 3d at 281-82. As the agency does not dispute that its delays contravene

the Act, the Court focuses on the last two elements.

               1. Policy or Practice

       ACLJ argues that State cannot “demonstrate the absence of an impermissible pattern,

practice and/or policy . . . of refusing to issue a determination and/or produce responsive

documents unless and until Plaintiff files suit.” Opp. at 7. It further suggests that this policy is

targeted especially toward Plaintiff. Id. As circumstantial evidence of such a policy, ACLJ

points to Defendant’s chronic FOIA understaffing and undertraining, as well as its admitted

policy of prioritizing FOIA requests in litigation over others. State denies it has any intentional

policy to violate FOIA and points to its recent efforts to address its delays.

       Reviewing the undisputed record, the Court finds no evidence that State has any policy,

formal or otherwise, of forcing requesters to file suit before releasing material. No one would

deny that Defendant is habitually late in providing determinations to requesters, but “while

tardiness would violate FOIA, it only becomes actionable when ‘some policy or practice’ also

undergirds it.” ACLJ I, 249 F. Supp. 3d at 283 (quoting Muttitt v. Dep’t of State, 926 F. Supp. 2d

284, 293 (D.D.C. 2013)). “[D]elay alone, even repeated delay, is not the type of illegal policy or




                                                  6
practice that is actionable under Payne.” Id. (quoting Cause of Action Inst., 224 F. Supp. 3d at

72). A policy-or-practice plaintiff must, rather, show that the agency’s actions are “done to delay

requests.” Cause of Action Inst., 224 F. Supp. 3d at 71-72. State supported its Motion for Partial

Summary Judgment with the declaration of Eric Stein, the Director of the Department’s Office of

Information Programs and Services, which handles FOIA requests. See MSJ, Exh. A. As

Director of IPS, Stein has personal knowledge of “all of the Department’s policies and practices,

both formal and informal, concerning responses to FOIA requests.” Id., ¶¶ 3,5. He avers that

Defendant does not have any policy or practice of FOIA non-compliance but instead suffers from

a “substantial FOIA caseload and backlog” made worse by “high FOIA litigation demands.” Id.,

¶ 14. Indeed, the Department’s annual reports substantiate Stein’s statements.

       State began 2016 with 11,731 pending requests and processed 15,482 throughout the

year. See MSJ, Exh. B (2016 Annual Report) at 11. It still ended up in the hole, however,

because it received a whopping 27,961 requests that year. Id. Going into 2017, therefore, State

had 24,210 pending requests — more than double what it started the year with. Id. It is hardly

shocking, then, that Defendant rarely meets the twenty-day FOIA-response deadline. When

State processes FOIA requests, they “are placed in different processing tracks” (simple, complex,

or expedited) “on the basis of the complexity of the search and/or review of the responsive

material.” Id. at 5. On average in 2016, it took the Department almost a full calendar year (342

days) to process a simple request and 517 days for a complex request. Id. at 22. Even taking

into account that the average can be misleading because requests can vary widely in the number

of documents sought, the Department is still woefully behind schedule. The median number of

days for a simple request was 166, with 392 needed for a complex one — roughly 8 and 20 times

longer than FOIA allows. Id. Although a requester can ask for expedited processing, it likely




                                                 7
will not help very much; those requests took State an average of 139 days to process. Id. While

these statistics are clear evidence of the Department’s non-compliance with FOIA, the numbers

do not lead to the conclusion that litigation is the only hope for requesters. State “is engaged in

approximately 108 FOIA litigation cases,” which is roughly 1% of the total requests. See Stein

Decl., ¶ 17. The vast majority of FOIA requests, then, are completed without judicial

involvement.

       Trying another tack, Plaintiff argues that State cannot truly mean to comply with FOIA

because it “intentionally understaff[s] its FOIA department.” Opp. at 8. Although the agency

has roughly 130 full-time FOIA staff members, ACLJ latches onto Defendant’s admission that,

because of a Department-imposed hiring freeze, the FOIA arm of State has 18 job vacancies, and

there are another 13 FOIA support positions currently unfilled. See Stein Decl., ¶¶ 37-38. Yet

viewed within the context of the affidavit, State’s “concession” is evidence that it is trying to

bring itself into FOIA compliance, not “intentionally understaff[ing] its FOIA department.” Opp.

at 8. Once State received authorization for 25 new FOIA positions, it quickly filled “10 positions

directly supporting FOIA.” Stein Decl., ¶ 36. It is also actively “pursuing alternative means to

increase its number of reviewers using existing Department resources,” including reassigning

Foreign Service Officers to assist in FOIA processing. Id., ¶ 38. This evidence strongly supports

Defendant’s assertion that it is its FOIA backlog and caseload — not lack of effort or a specific

policy — that makes it difficult (if not impossible) to comply with the statutory deadlines.

       According to ACLJ, these “efforts” are merely a façade because they have not “actually

resulted in any increase in the rate of FOIA requests processed each year and/or response time to

FOIA requests.” Opp. at 9. Indeed, between 2015 and 2016, for example, State’s wait times to

process simple requests did increase from 111 to 342 days. See MSJ, Exh. C (2015 Annual




                                                  8
Report) at 24; 2016 Annual Report at 22. Complex requests marginally slowed down as well,

going from 511 days to 517. Id. These numbers, however, comport with State’s own

explanation — that delays are due to “the massive FOIA caseload facing the Department and the

complicated, laborious review process that the Department must undertake in responding to

many of the FOIA requests it receives,” in addition to increased litigation. See MPSJ at 11-12.

In fact, total processed requests increased by 10.5% between 2015 and 2016, and, in this past

year, the agency’s backlog decreased by a substantial 52%. See 2015 Annual Report at 15; 2016

Annual Report at 13; Stein Decl., ¶ 28. In absolute terms, therefore, the agency is showing some

improvement. Neither is the Department alone in facing this issue. See Opp., Exh. 1 (2016

Office of Inspector General Report) at 6 (noting that “few agencies are able to meet the 20-day

deadline for complex requests”).

        The Court also rejects ACLJ’s argument that State’s practice of prioritizing FOIA

requests in litigation over others is somehow evidence of a policy to wait until a requester files

suit to process requests. Faced with limited resources, the agency must decide which FOIA

requests get priority. It is true that cases in litigation and expedited requests are given top billing,

and then simple or complex requests are processed on a first-in, first-out basis. See MPSJ, Exh.

D (2017 Chief FOIA Officer Report) at 13. Prioritizing litigation cases, however, is not “an

improper litigation-forcing policy,” MPSJ at 12 n.3, but part of the statutory scheme. See Daily

Caller v. Dep’t of State, 152 F. Supp. 3d 1, 10 (D.D.C. 2015) (“[T]his twenty-day deadline serves

primarily as a means to obtain immediate judicial supervision over an agency’s response to an

outstanding FOIA request.”). In fact, it seems that litigation — such as the five suits brought by

ACLJ — only exacerbates delays. For example, current court orders require the agency to

process a minimum of 9,100 pages every month across 16 cases. See Stein Decl., Exh 1 at 1. In




                                                   9
another 18 cases, the Department does not have a monthly minimum but must process some

documents on a monthly to bi-monthly basis. Id. at 1-2. Four more cases are in the pipeline. Id.

at 2-3. FOIA suits cost the agency over $19 million in 2016, though it only collected $1,373.55

in fees from requesters. See 2016 Annual Report at 31-32. In addition to the demands that all

litigation imposes, once State is under a court-ordered schedule, it has to divert resources and

personnel from processing non-litigation requests to court-ordered processing and production.

See 2017 Chief FOIA Officer Report at 2. This resource split is no small matter; in 2016 the

Department had “to allocate about 80% of its FOIA resources to meet these court-ordered

productions.” Id. Though State has been able to satisfy its litigation obligations, “these

accomplishments were done at the expense of all other requesters seeking information from the

government. The Department’s FOIA backlog increased from 10,045 cases in FY 2014 to

28,505 at the beginning of FY 2016.” Stein Decl., ¶ 20.

       Finally, to the extent ACLJ claims that State specifically targets it in connection with

FOIA delays, see Opp. at 7, the numbers also belie that conclusion. According to Plaintiff,

“Regardless of whether Defendant is given 1 month or 8 months — i.e. up to 286 days,” it does

not respond (other than the perfunctory acknowledgment-of-receipt letter) to ACLJ requests until

litigation. See Opp. at 2. But, in the context of overall response times, 286 days — the high end

of ACLJ’s wait time — is still two months shorter than the Department’s average time for all

simple FOIA requests. The statistics thus do not bear out ACLJ’s claim that State treats it

differently. Perhaps Plaintiff would prefer State to move faster in filling open positions and

processing requests, but the Department’s pace does not amount to a “willful and intentional

dereliction of its FOIA responsibilities.” Id. at 9.

               2. Sufficiently Outrageous




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       Nor does the policy that ACLJ describes rise to the level necessary to warrant equitable

relief. See Judicial Watch, Inc. v. Dep’t Homeland Security, 211 F. Supp. 3d 143, 147 (D.D.C.

2016) (noting that Payne and “subsequent cases recognizing policy and practice claims involved

more egregious, intentional conduct than mere delay”); ACLJ I, 249 F. Supp. 3d at 286 (“‘[O]nly

a rare instance of agency delinquency’ would warrant an injunction.”) (quoting CREW, 846 F.3d

at 1246).

       Policy-or-practice claims find their root in two main cases, Payne and Long v. IRS, 693

F.2d 907 (9th Cir. 1982). In the former, Air Force officers refused to hand over copies of bid

abstracts to Payne, a company that sells information and advice about government contracts to

prospective contractors. See 837 F.2d at 487-88. The Air Force, afraid that releasing the

information might result in higher bid prices from contractors in the future, repeatedly denied

Payne access to the documents for over two years, even after the Secretary of the Air Force

demanded their disclosure. Id. at 487. Payne filed suit and the D.C. Circuit held that the

company had a right to equitable relief based on “[t]he Secretary’s inability to deal with [Air

Force] officers’ noncompliance with the FOIA, and the Air Force’s persistent refusal to end a

practice for which it offers no justification.” Id. at 494. In reaching its decision, the Payne court

looked to Long, another case of inexcusable agency non-compliance. The plaintiffs there sought

data documents from the IRS. The agency conceded that the documents should be released but

outright refused to do so until requesters filed a lawsuit. Long, 693 F.2d at 908. Not only did the

IRS deliberately delay release of documents it had already decided should be disclosed, but it

also did so with the intent of “forcing the [plaintiffs] to file FOIA lawsuits.” Id. Only after faced

with litigation did the agency “voluntarily” release the documents, id., all the while “retain[ing]




                                                 11
the right to” do the same with similar documents in the future. Id. at 910. The Ninth Circuit

held that such an “abuse” of FOIA’s statutory scheme warranted injunctive relief. Id.

       The conduct that ACLJ accuses State of here, even if true, is not “sufficiently

outrageous” as it was in Payne and Long to necessitate an injunction. ACLJ I, 249 F. Supp. 3d at

281 (quoting Payne, 837 F.2d at 494). First, unlike the Air Force or IRS, State is not refusing “to

end a practice for which it offers no justification,” Payne, 837 F.2d at 494, or using “FOIA

offensively to hinder the release of non-exempt documents.” Long, 693 F.2d at 910; see S. Yuba

River Citizens League v. Nat’l Marine Fisheries Serv., 2008 WL 2523819, at *6 (E.D. Cal. June

20, 2008) (injunction appropriate when agency did not justify repeated FOIA delays). State has,

by contrast, provided reasons for its delays that suggest it is impossible for it to meet its FOIA

demands. Further, in both Payne and Long, the agency admitted that the documents should be

released but intentionally decided not to. Here, State has not even made its determination about

whether to disclose ACLJ’s requested documents. See Cause of Action, 224 F. Supp. 3d at 72

(finding that plaintiff had not alleged policy-or-practice claim in part because “unlike the

plaintiff in Payne Enterprises, Plaintiff d[id] not allege that the Agency Defendants have decided,

even initially, to not produce any records that should be produced”). An agency’s intransigence

in processing requests could give rise to a “viable” policy-or-practice claim, Muttitt v. U.S.

Central Command, 813 F. Supp. 2d 221, 231 (D.D.C. 2011), but “inevitable but unintended

delay attributable to lack of resources” is insufficient to support one. See Judicial Watch, 211 F.

Supp. 3d at 146. “FOIA was not intended to reduce government agencies to full-time

investigators on behalf of requesters.” Sack v. CIA, 53 F. Supp. 3d 154, 163 (D.D.C. 2014)

(citation omitted).




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       In an attempt to liken its case to Payne and Long, Plaintiff points to a 2016 Officer of

Inspector General Report that identified “numerous deficiencies within the State Department in

responding to FOIA requests in a timely and lawful manner,” Opp. at 3; see Opp. Exh. 1, but the

OIG report and recommendations actually cut against ACLJ. State has not despondently thrown

up its hands and ignored the OIG’s recommendations. Rather, it has implemented several

changes to its FOIA process over the past couple of years in an effort to reduce its backlog and

respond in more timely fashion. See 2017 Chief FOIA Officer Report at 14. First, the agency

has decided to post more documents to its FOIA website, reducing the number of redundant

requests. Id. Second, it has requested additional resources and increased its budget for FOIA

from $18 million in 2014 to $32.5 million in 2016. See Stein Decl., ¶ 31. Defendant has used

the extra money to train more staff and create new standard operating procedures to complete

expedited requests more quickly. See 2017 Chief FOIA Officer Report at 14. OIG has approved

of these efforts and lauded State’s “‘success[es]’ in implementing its recommendations” in

accordance with the 2016 OIG report. See MPSJ at 13 n.4. The Court expects that the

Department will continue to find ways to increase FOIA compliance. Weighing State’s non-

compliance against its good-faith efforts to come up with ways to reduce its backlog and respond

promptly, as well as the absence of malice in its delays, the Court sees no need for an injunction

here. See Our Children’s Earth Found. v. Nat’l Marine Fisheries Serv., Nos. 14-4365, 14-1130,

15-2558, 2015 WL 6331268, at *9 (N.D. Cal. Oct. 21, 2015) (granting declaratory relief but not

issuing injunction when “ongoing efforts of the [agency] to improve suggested that intervention

by the Court may not be necessary to fix ongoing violations”). State has begun to address its

FOIA backlog and has implemented procedures to improve its response time. Absent some




                                                13
evidence that the agency is deliberately trying to shirk its FOIA obligations or other ill intent,

ACLJ is not entitled to equitable relief.

       B. Motion for Discovery

       In an attempt to save its policy-or-practice claim, ACLJ has also submitted a Motion for

Discovery. Under Rule 56(d) (formerly 56(f)), a court may deny or defer a summary-judgment

motion when a non-movant “shows by affidavit or declaration that, for specified reasons, it

cannot present facts essential to justify its opposition” to the motion. The implication, then, is

that the “requested discovery would alter the court’s determination,” Cheyenne Arapaho Tribes

of Ok. v. United States, 558 F.3d 592, 596 (D.C. Cir. 2009), rather than serve as a “fishing

expedition.” Graham v. Mukasey, 608 F. Supp. 2d 50, 54 (D.D.C. 2009) (citation omitted).

“[M]erely asserting that the evidence supporting a [party’s] allegation is in the hands of the

[opposing party] is insufficient to justify” granting a 56(d) motion. Jensen v. Redevelopment

Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir. 1993) (alterations in original) (internal

quotation marks and citation omitted).

       ACLJ contends here that it “is entitled to explore the actual policies and practices

currently implemented and/or followed by Defendant, whether formal or informal, regarding the

Department’s FOIA practices, both general and as applied specifically to Plaintiff’s requests.”

See Mot. for Discovery, Attach. 1 (Declaration of Abigail A. Southerland), ¶ 3. The organization

accordingly asks for discovery regarding a broad array of information regarding State’s

(1) “FOIA practices, including any such documents specifically concerning treatment of

Plaintiff”; (2) “issuance of its initial letter to FOIA requestors”; (3) “FOIA backlog”; (4)

prioritization of FOIA requests; (5) funding for FOIA operations and any plans to increase the

Department’s FOIA resources; and (6) training programs for FOIA personnel. Id. State argues




                                                 14
that because FOIA cases are typically decided without discovery, ACLJ is not entitled to this

information absent some showing that the agency’s evidence was put forth in bad faith.

       At the outset, the Court rejects Defendant’s presumption that ACLJ is not entitled to

discovery simply because this is a FOIA case. See Def. Reply at 8. State correctly notes that

discovery is generally “disfavored” in mine-run FOIA cases. Justice v. IRS, 798 F. Supp. 2d 43,

47 (D.D.C. 2011). Yet, in a typical FOIA case the question is whether the “agency has conducted

a thorough search” and given “reasonably detailed explanations why any withheld documents

fall within an exemption.” Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994). “The peculiarities

inherent in FOIA litigation, with the responding agencies often in sole possession of requested

records and with information searches conducted only by agency personnel, have led federal

courts to rely on government affidavits to determine whether” the agency has met its FOIA

obligations. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). Indeed, the statute itself

instructs courts to “accord substantial weight to an affidavit of an agency concerning the

agency’s determination” of exemptions and reproducibility. See 5 U.S.C. § 552(a)(4)(B). That

does not mean, however, that agencies get to phone it in when defending their FOIA conduct.

Courts require that any supporting affidavits are “relatively detailed[,] . . . nonconclusory[,] and

. . . submitted in good faith.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978). Relying on

affidavits when deciding whether the agency has properly searched or withheld documents

allows courts to balance FOIA’s overarching purpose of disclosure with the Executive’s need to

prevent “adverse effects [that] might occur as a result of public disclosure of a particular”

sensitive record. Weissman v. CIA, 565 F.2d 692, 697 n.10 (D.C. Cir. 1977) (quoting S. Rep.

No. 93-1200, at 12 (1974)).




                                                 15
       The scales may shift, however, in a FOIA policy-or-practice suit, in which confidentiality

is not typically at issue. While a court may still accord agency affidavits a presumption of good

faith in such cases, persistent and unexplained delays in processing FOIA requests may “raise a

sufficient question of bad faith on the part of the government . . . to warrant further exploration

through discovery.” Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 05-2078, 2006

WL 1518964, at *2-3 (D.D.C. June 1, 2006) (permitting limited discovery when “even after a

full round of briefing and a motions hearing, there still remain[ed] unanswered questions

regarding the government’s position that what occurred . . . [was] ordinary and normal [FOIA]

processing”). In such cases, a plaintiff may need to conduct narrow discovery on the agency’s

“policies and practices for responding to FOIA requests, and the resources allocated to ensure its

compliance with the FOIA time limitations.” Gilmore v. Dep’t of Energy, 33 F. Supp. 2d 1184,

1190 (N.D. Cal. 1998).

       Unfortunately for ACLJ, this is not one of those cases. As the Court has just explained,

State convincingly avers that its “policy is to fully comply with the FOIA and to continue

improving its FOIA operations.” Stein Decl., ¶ 7. The Court has agreed with Stein that

Defendant “does not have a policy or practice, either formal or informal, of refusing to respond

to FOIA requests or otherwise refusing to comply with the FOIA until a requester files a

lawsuit.” Id., ¶ 8. Plaintiff nonetheless argues that these are just “bald assertions of fact and

conclusory statements,” Opp. at 5, which it cannot rebut without discovery. The Court concludes

otherwise.

       Given the undisputed facts in the record, Plaintiff’s request seems little more than the

proverbial fishing expedition. ACLJ claims it requires discovery because “Defendant asserts in

conclusory fashion that it does not maintain a policy of intentionally violating FOIA . . . but fails




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to provide a single policy of the Department regarding its FOIA practices.” Mot. for Discovery,

¶ 3.a. Not so. The 2017 Chief FOIA Officer Report clearly outlines State’s FOIA policy:

                The Department makes every effort to respond to FOIA requests
                within the statutory response period. In an effort to respond to all
                requests in the most comprehensive manner, the Department
                processes FOIA requests incrementally and makes interim
                responses to requesters as document searches and reviews are
                completed rather than waiting until all responsive records are
                located and reviewed. To implement its statutory responsibilities
                under FOIA, the Department has established a centralized and
                comprehensive FOIA Program, in which a single office receives and
                coordinates the processing of FOIA requests made to the
                Department. Whether that coordination is with the Department’s
                domestic offices and bureaus, its posts overseas, other federal
                agencies, or foreign governments, the process is managed by the
                FOIA Program in the Bureau of Administration’s Office of
                Information Programs and Services (A/GIS/IPS).

2017 Chief FOIA Officer Report at 1.

        As discussed above, moreover, State’s disavowal of any litigation-forcing policy is not

based on “bald assertions of fact and conclusory statements,” Opp. at 5, but is instead supported

by hard data corroborating its claim that it must handle immense FOIA obligations with limited

resources. ACLJ has not provided any evidence to suggest bad faith on the part of the

Department, and it is hard to see what information Plaintiff would hope to find that would matter

to the litigation at hand. Plaintiff’s 56(d) Motion for Discovery will, therefore, be denied.

IV.     Conclusion

        For these reasons, the Court will grant Defendant’s Motion for Partial Summary

Judgment on Count II and deny Plaintiff’s Motion for Discovery. A separate Order so stating

will issue this day.




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                              /s/ James E. Boasberg
                              JAMES E. BOASBERG
                              United States District Judge
Date: January 30, 2018




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