Found. for Gov't Accountability v. U.S. Dep't of Justice

688 F.Supp.3d 1151

The FOUNDATION FOR GOVERNMENT ACCOUNTABILITY, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Case No: 2:22-cv-252-JLB-KCD

United States District Court, M.D. Florida, Fort Myers Division

Signed August 25, 2023

Jeffrey M. Harris, Pro Hac Vice, Frank Hyok Chang, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, for Plaintiff.

Brian C. Rosen-Shaud, Laurel H. Lum, DOJ-Civ, Federal Programs Branch, Washington, DC, for Defendant.

ORDER

JOHN L. BADALAMENTI, United States District Judge

In this Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, case, Plaintiff, the Foundation for Government Accountability ("FGA"), requests that the Court order Defendant, the United States Department of Justice ("DOJ"), to respond to FGA's FOIA requests and produce to FGA responsive documents related to President Biden's Executive Order 14019 ("EO 14019"). EO 14019 directed the head of each executive agency, including DOJ, to submit to the White House a Strategic Plan outlining the ways the agency can promote voter registration and voter participation.

Before the Court is DOJ's Motion for Summary Judgment (Doc. 50) and FGA's Cross-Motion for Summary Judgment and, Alternatively, for In Camera Inspection and Limited Discovery and Opposition to

Defendant's Motion for Summary Judgment (Doc. 52). DOJ has responded (Doc. 56), and FGA has replied (Doc. 57). After careful review of the pleadings and the entire record before the Court, the Court GRANTS in part and DENIES in part DOJ's Motion for Summary Judgment (Doc. 50) and GRANTS in part and DENIES in part FGA's Motion for Summary Judgment (Doc. 52).

The Court hereby orders DOJ to provide the Court for in camera review copies of the withheld documents identified in Vaughn Index entries 53 and 71 because a genuine issue of material fact exists as to whether the deliberative process privilege applies to those documents.

The Court further orders DOJ to provide the Court for in camera review a copy of DOJ's "STRATEGIC PLAN for the Implementation of Executive Order 14019, Promoting Access to Voting," listed at the bottom of its Vaughn Index. This Strategic Plan was identified as responsive to FGA's FOIA request but was withheld from disclosure based on DOJ's contention that the presidential communications privilege and the deliberative process privilege apply. Based on a review of the entire record before the Court, viewing the facts in the light most favorable to DOJ, the Court holds that the deliberative process privilege does not apply to the Strategic Plan and that genuine issues of material fact remain as to the applicability of the presidential communications privilege.

FACTS

On March 7, 2021, President Biden signed EO 14019, entitled "Promoting Access to Voting." 86 Fed. Reg. 13,623. Section 3(b) of EO 14019 provides as follows: "Within 200 days of the date of this order, the head of each agency shall submit to the Assistant to the President for Domestic Policy a strategic plan outlining the ways identified under this review that the agency can promote voter registration and voter participation." Id. § 3(b).

FGA describes itself as "a non-partisan, non-profit organization that helps millions achieve the American dream by improving welfare, work, health care, and election integrity policy in the states and in Washington, D.C." (Doc. 1 at ¶ 4). On July 30, 2021, FGA submitted FOIA requests to DOJ, requesting the production of documents containing the following information:

1. DOJ's "strategic plan developed pursuant to [EO 14019] outlining ways [the DOJ] identified . . . to promote voter registration and voter participation, as directed by EO 14019."

2. "[A] copy of the written explanation for the decision provided by the head of [the] agency to President Biden, as directed by EO 14019" if DOJ "declined to consent to a request by a State to be designated as a voter registration agency pursuant to section 7(a)(3)(B)(ii) of the National Voter Registration Act."

3. "[A]ny formal notifications provided to any State in which [DOJ] provides services notifying the State that [DOJ] would agree to designation as a voter registration agency pursuant to section 7(a)(3)(B)(ii) of the National Voter Registration Act."

4. "[A]ll communications with the White House related to Executive Order 14019 and/or the strategic plan requested through EO 14019," including "any and all communications with the Vice President's Office and staff, as well as with Domestic Policy Advisor Susan Rice and her staff related to EO 14019."

5. "[A]ll communication between [DOJ] and the non-profit organization Demos and/or any of its employees or officers or the 501(c)(4) organization associated with Demos, known as 'Demos Action,' related to EO 14019," including "the dates, time, and purpose of any meeting(s), in-person or remote, that [DOJ] conducted with Demos, Demos Action, or any of its employees or officers."

(See Doc. 1-2 at 2-3).

FOIA mandates that an agency "shall" have twenty business days to notify the requestor of the agency's "determination" as to "whether to comply with such request" and to provide "the reasons therefor." 5 U.S.C. § 552(a)(6)(A)(i). Section 552(a)(6)(B)(i)-(iii), however, provides that in "unusual circumstances,"¹ the agency may extend this time limit provided that it "notif[ies] the person making the request . . . and . . . provide[s] the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request."

On August 4, 2021, DOJ Civil Rights Division's ("CRT") FOIA Unit ("the FOIA Unit") sent an acknowledgment letter to FGA regarding its request and assigned the request a request number. (Doc. 50-2 at 22-23). In this letter, CRT's FOIA Unit noted that FGA's request would require the Unit to "examine a voluminous amount of records" and to "consult with other offices in the Civil Rights Division." (Id. at 23). The FOIA Unit then noted that "[b]ecause of these unusual circumstances, we are extending the time limit to respond to your request beyond the ten additional days provided by the statute. The time needed to process your request will necessarily depend on the volume and complexity of the records located." (Id.) The FOIA Unit offered FGA a chance "narrow the scope of [its] request to limit the number of potentially responsive records or agree to an alternative time frame for processing." (Id.) The FOIA Unit also added that "there may be some delay in the processing of [FGA]'s request" because of the COVID-19 pandemic. (Id.) The letter neither provided a specific time frame for the FOIA Unit's processing of FGA's request, nor did it provide a date on which a determination was expected to be dispatched. See 5 U.S.C. § 552(a)(6)(B)(i).

There is no record evidence that after receiving the acknowledgment letter, FGA made an effort to "reasonably modify the request or arrange such an alternative time frame."² See id. § 552(a)(6)(B)(ii). On March 23, 2022, nearly eight months after receiving the letter acknowledging receipt of FGA's request from CRT's FOIA Unit, Stewart Whitson, a Senior Fellow at FGA, emailed the Unit to inquire about the status of FGA's request. (See Doc. 1-3 at 2-3). Two days later, April N. Freeman, a member of the FOIA Unit responded:

We referred your request to the Voting Section and the Office of the Assistant Attorney General as the offices likely to have information pertaining to your request. We recently received information stating they are conducting a search for responsive records. As soon as we receive their response, we will review the information and process your request accordingly. I'm unable to provide an estimate of completion, but we hope to have a response to you soon. Please note, the request number you provided was an auto-generated number given by a system this office does not monitor. For future inquiries, please reference request number, 21-00271-F.

(Id. at 2).

On April 20, 2022, still having not heard whether DOJ would comply with FGA's requests, FGA filed this lawsuit to compel DOJ to search for and, where appropriate, to produce responsive records. (Doc. 1 at ¶¶ 29-30). There are two counts in FGA's Complaint: Count I asserts that DOJ failed to comply with FOIA by failing to (1) timely make and communicate its determination as to each of FGA's requests and (2) produce the records responsive to FGA's FOIA requests; and Count II asserts that DOJ should not assess any search fees associated with FGA's FOIA request. (See id. at ¶¶ 22-35).

In the parties' July 5, 2022 Case Management Report, DOJ stated that it "ha[d] located approximately 5,500 records that are potentially responsive to FGA's FOIA request." (Doc. 24 at 10). DOJ also stated that it "offered FGA a generous processing rate of over 1,000 records per month," which DOJ believed "would allow [it] to conclude its responsiveness review by November 1, 2022, and to complete the processing and production of any responsive, non-exempt documents by January 1, 2023." (Id.) FGA, however, found January 1, 2023 too late a deadline to receive all the documents, stating, "FGA needs the documents that it requested no later than September [2022] to meaningfully make use of the documents, educate the public regarding DOJ's implementation of EO14019, and unearth any improper influence that outside groups may be asserting over federal policies prior to the 2022 elections." (Id. at 9) (emphasis in original).

The Magistrate Judge assigned to this case ordered DOJ to produce all non-exempt documents by September 1, 2022. (Doc. 31). DOJ moved, unopposed, for a one-week extension, (Doc. 34), which the Court granted, (Doc. 35; Doc. 37), and on September 8, 2022, DOJ produced the responsive, non-exempt records, (Doc. 49 at ¶ 2). Specifically, the "release comprised 135 pages with redactions and 15 pages withheld in full pursuant to Exemptions 5 and 6[...