You are on page 1of 19

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________
CITIZENS FOR RESPONSIBILITY AND :
ETHICS IN WASHINGTON :
:
Plaintiff, :
:
v. : Civil Action No.
:
U.S. DEPARTMENT OF HOMELAND :
SECURITY :
:
Defendant. :
____________________________________:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF


PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

STATEMENT

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for

expedited processing and release of agency records concerning visits to the White House and the

residence of the vice president by leading health care industry executives from January 21, 2009,

to the present. There has been widespread and exceptional media interest in the virtual gridlock

between Congress and the administration as they wrestle with a legislative solution to the health

care crisis confronting our nation. President Obama reportedly has had closed-door talks with

industry executives in an effort to win over industry support for his proposal and is pushing

Congress to finish up its committee work on overhauling health care with a goal of having a bill

by October. The economic consequences of not reaching a consensus on health care legislation

are predicted to be quite dire. Under these circumstances, where members of the public have an

urgent and compelling need for the requested information to weigh in with their congressional

representatives before the enactment of health care legislation, CREW quite clearly has a right to
expedited processing of its request.

Nevertheless, Defendant Department of Homeland Security (“DHS”) has refused to

process CREW’s request at all, much less on an expedited basis. Instead, DHS claims the “vast

majority” of records responsive to CREW’s request are presidential records not subject to the

FOIA and otherwise exempt in their entirety. The government makes this claim despite multiple

court rulings that the requested records are agency records for which the Secret Service, a

component of defendant U.S. Department of Homeland Security (“DHS”), has a legal obligation

to search and produce under the FOIA. At most, DHS has held out the possibility that the White

House – not a party to this litigation – could decide at some future indeterminate time to make a

discretionary release of at least some of the requested records. This remote possibility is clearly

no substitute, however, for the expedited processing to which CREW is entitled under the FOIA.

As a result, DHS’s refusal to process CREW’s request presents a clear violation of the

FOIA and conflicts with the statutory purpose of expedition. Where, as here, time is at the

essence of plaintiff’s rights and defendant DHS’s obligations, the Court should issue an order

compelling DHS to process and disclose the requested records immediately.

FACTUAL BACKGROUND

President Obama has made one of the core issues of his presidency bringing the spiraling

health care costs under control, something he has described as “essential to providing all

Americans with affordable, quality care, making our businesses more competitive, and closing

our budget deficits . . .” Exhibit 1 to Letter from Anne L. Weismann, CREW, to United States

2
Secret Service (June 22, 2009) (hereinafter “CREW FOIA Request”) (Attached as Exhibit A) .1

Toward that end, members of Congress have offered competing legislative solutions, while the

president has issued his own directives on the form health care legislation must take. The

economic stakes are enormous, with some legislative proposals topping one trillion dollars, and

the president already has held closed-door talks with industry representatives to build support for

his approach. See, e.g., Sheryl Gay Stolberg and Robert Pear, Obama Open to Reining in

Medical Suits, The New York Times, June 15, 2009 (Exhibit 2 to CREW’s FOIA Request). The

health care issue dominates the news as the administration and Congress slog through the various

and competing approaches and attempt to deal with the very powerful and significant economic

interests the health care industry represents.

In the wake of this issue, the push to have legislation enacted by October, and in light of

the president’s oft stated commitment to transparency and accountability, CREW sent a FOIA

request to the Secret Service on June 22, 2009, seeking records of any visits to the White House

and the vice president’s residence that 18 leading health care executives may have made.

Acknowledging the position the government has recently taken in response to another FOIA

request from CREW for White House visitor records – that the requested records are

presidential, not agency, records and therefore not subject to the FOIA – CREW also asked the

Secret Service to make a discretionary release of the requested records. As CREW noted, the

White House already has acknowledged publicly meetings the president or other administration

officials have held with a number of the individuals included in CREW’s FOIA request. See

1
Exhibit A contains CREW’s FOIA request as we1l as the exhibits attached to that
request.

3
Exhibit 1 to CREW’s FOIA Request.

CREW sought expedited processing of its request for the express purpose of

disseminating any responsive documents to the public. CREW explained the particular urgency

to inform the public about the possible influences to which the administration may have been

subject in formulating its health care policy, pointing to reported closed-door talks between the

president and industry executives, the potential economic impact of not reaching a consensus on

a health care proposal, and the virtual gridlock in Congress over this critical issue. CREW FOIA

Request at p. 5. CREW also sought a waiver of fees associated with processing its request. Id.

at pp. 3-5.

The Secret Service responded by letter dated July 7, 2009. Referring to pending

litigation, DHS advised CREW of:

the government’s position that the vast majority, if not all, of


the records that would have to be searched to determine whether
any records responsive to your request exist are not agency
records subject to the FOIA. Rather, these records are records
governed by the Presidential Records Act, 44 U.S.C. § 2201
et seq., and remain under the exclusive legal custody and
control of the White House Office and the Office of the Vice
President.

Letter from Craig W. Ulmer, Special Agent in Charge, U.S. Secret Service to Anne L.

Weismann, CREW (July 7, 2009) (attached as Exhibit B). According to DHS, the Department of

Justice has determined that “disclosing some or all of the requested records could reveal

information protected by the presidential communications privilege.” Id. As for CREW’s

alternative request that DHS make a discretionary release, the agency stated “the White House

and the Office of the Vice President are currently reviewing the policy for such discretionary

releases,” and promised to respond to the request for a discretionary release “[i]f necessary”

4
when that review is completed. Id. While DHS did not address CREW’s request for expedition,

it represented it would address CREW’s fee waiver request if the White House determined to

make a discretionary release. Id. DHS did not afford CREW any administrative appeal rights.

ARGUMENT

I. THE COURT HAS JURISDICTION TO GRANT THE REQUESTED RELIEF

A. Preliminary Injunctive Relief To Compel Expedited Processing Is


Appropriate.

The FOIA confers jurisdiction on this Court, upon the filing of a complaint, “to enjoin

the agency from withholding agency records and to order the production of any agency records

improperly withheld . . .” 5 U.S.C. § 552(a)(4)(B). A requester is deemed to have exhausted its

administrative remedies “if the agency fails to comply with the applicable time limit provisions .

. .” 5 U.S.C. § 552(a)(6)(C). See Oglesby v. Dep’t of the Army, 920 F.2d 57,62 (D.C. Cir.

1990), appeal on remand, 79 F.3d 1172 (D.C. Cir. 1996) (“If the agency has not responded

within the statutory time limits, then . . . the requester may bring suit.”); cf. Am. Civil Liberties

Union v. U.S. Dep’t of Justice, 321 F.Supp.2d 24, 28 (D.D.C. 2004 (“ACLU v. Dep’t of

Justice”) (FOIA authorizes review of challenges to agency denial of expedited processing).

Courts have specifically recognized the general availability of injunctive relief to compel

expedited processing of FOIA requests. See, e.g., Long v. Dep’t of Homeland Sec., 436 F.Supp.

2d 38 (D.D.C. 2006) (denying injunctive relief in FOIA case after considering request under

four-factor preliminary injunction test); Elec. Privacy Info. Ctr. v Dep’t of Justice, 416

F.Supp.2d 30, 35 (D.D.C. 2006) (“EPIC”) (granting preliminary injunction to compel expedited

processing); Al-Fayed v. CIA, 2000 U.S. Dist. LEXIS 21476, at *6 (D.D.C. Sept. 20, 2000)

(denying injunction after considering request under four-factor preliminary injunction test), aff’d

5
254 F.3d 300 (D.C. Cir. 2001); Aguilera v. FBI, 941 F.Supp. 144, 152-53 (D.D.C. 1996)

(granting preliminary injunction and ordering expedited release of documents).

That preliminary injunctive relief is an appropriate form of relief in a FOIA case is

highlighted by the language of the FOIA itself, which mandates that FOIA cases “take

precedence on the docket over all other causes and shall be assigned for hearing and trial at the

earliest practicable date and expedited in every way.” 5 U.S.C. § 552(a)(3). See also

Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 13 (1974) (under section 552

“the FOIA suit generally is to take precedence on the court’s docket and is to be expedited on the

calendar.”).

Here, where plaintiff is asserting a statutory entitlement to expedited review of its FOIA

request premised upon a showing of “compelling need” for the requested information, 5 U.S.C. §

552(a)(6)(E), and the agency has failed to respond on an expedited basis, the FOIA quite clearly

confers jurisdiction on the Court to consider the requested preliminary injunction. See EPIC,

416 F.Supp.2d at 35 and cases cited therein; Elec. Frontier Found. v. Office of the Director of

Nat’l Intelligence, 542 F.Supp.2d 1181, 1185 (N.D. CA. 2008); The Washington Post v. Dep’t of

Homeland Sec., 459 F.Supp.2d 61, 66 (D.D.C. 2006), vacated by, appeal dismissed as moot,

2007 U.S. App. LEXIS 6682 (D.C. Cir. Feb. 27, 2007) (“Washington Post”).; see also Edmonds

v. Fed. Bureau of Investigation, 417 F.3d 1319, 1323 (D.C. Cir. 2005 (“expedited processing of a

FOIA request is a statutory right”).

B. The Court Has Jurisdiction Over This Action.

Plaintiff may argue the Court lacks jurisdiction to entertain this action because the

records at issue are not subject to the FOIA. This is, of course, one of the ultimate merits issue

6
the Court likely will be called upon to decide. In considering this matter, the Court should be

guided by the conclusion of every court to have reached this issue to date – the records at issue

are agency records of the Secret Service that must be produced in response to a properly

submitted FOIA request.

The requested records are generated by two electronic systems the Secret Service uses to

monitor visitors to the White House, the Worker and Visitor Entrance System (“WAVES”) and

the Access Control Records System (“ACR”), as well as records generated by the Secret

Service’s separate system for monitoring and clearing visitors to the Vice President’s Residence

(“VPR”). WAVES records include information White House pass holders provide in advance to

the Secret Service – the proposed visitor’s identifying information (name, date of birth, social

security number), time and location of the scheduled appointment, name of the person submitting

the request, name of the recipient of the visitor, date of the request, and type of visitor expected

(e.g., press, temporary worker) – as well as any additional information the Secret Service adds as

a result of a background check. See CREW v. U.S. Dep’t of Homeland Sec., 527 F.Supp.2d 76,

80 (D.D.C. 2007), appeal pending, No. 09-5014 (D.C. Cir.). ACR records are created when a

visitor swipes his or her pass upon entering and exiting the White House Complex, and include

the visitor’s name and badge number, the time and date of his or her entry and exit, and the

specific post that recorded the swipe. Id.

United States District Court Judge Royce C. Lamberth, after evaluating a complete

factual record and applying the two-prong test for agency records enunciated by the Supreme

7
Court in U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989),2 concluded all of these

records are agency records subject to the FOIA.3 Judge Lamberth found the first factor –

whether the records were created or obtained by the Secret Service – indicated agency record

status based on the process by which the visitor records are generated, 527 F.Supp. at 90-91, and

the fact they “are created primarily for the agency’s use.” Id. at 91.

Judge Lamberth’s conclusion that the White House visitor records are under the control

of the Secret Service – the second prong of the two-part analysis – was reached after considering

four factors identified by the D.C. Circuit:

(1) the intent of the document’s creator to retain or relinquish


control over the records; (2) the ability of the agency to use and
dispose of the record as it sees fit; (3) the extent to which agency
personnel have read or relied upon the document; and (4) the
degree to which the document was integrated into the agency’s
record system or files.

Id. at 92, quoting Burka v. U.S. Dep’t of Health & Human Serv., 87 F.3d 508, 515 (D.C. Cir.

1996). Balancing these four factors, Judge Lamberth “ha[d] no difficulty concluding the visitor

records are under the Secret Service’s control.” Id. at 97. While the Secret Service claimed no

intention to control the records, its “historical use of the visitor records suggest that it does in

fact control the records.” Accordingly, the Court held “use trumps intent.” Id. As Judge

Lamberth reasoned, “[b]ecause the Secret Service creates, uses and relies on, and stores the

visitor records, ‘in the legitimate conduct of its official duties,’ they are under its control.” Id. at

2
The Supreme Court identified two factors for determining what constitutes agency
records under the FOIA : (1) whether the records are obtained or created by the agency, and (2)
whether the records are under the agency’s control. See id. at 88.
3
The FOIA request before him sought records of White House visits by leading Christian
conservative leaders.

8
98, citing Tax Analysts, 492 U.S. at 145.4 See also CREW v. U.S. Dep’t of Homeland Sec., 592

F.Supp.2d 127 (D.D.C. 2009), appeal pending, No. 09-5014 (D.C. Cir.) (same conclusion as to

White House visitor records requested for visits by Stephen Payne); Washington Post, 459

F.Supp. 2d 61 (preliminary injunction compelling agency to process FOIA request on an

expedited basis granted based, in part, on finding plaintiff had likelihood of success because

White House visitor records sought are agency records subject to FOIA).

As this precedent makes clear, the records at issue are agency records subject to the

FOIA. Accordingly, the Court has jurisdiction to consider plaintiff’s requested preliminary

relief.

II. CREW IS ENTITLED TO A PRELIMINARY INJUNCTION

A. Standards For Preliminary Injunctive Relief.

This Circuit employs a four-part test to determine whether preliminary injunctive relief is

warranted: (1) the plaintiff’s likelihood of success on the merits; (2) irreparable injury to the

plaintiff absent the requested relief; (3) harm to other interested parties; and (4) the public

interest. See, Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998), quoting

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995); see also

Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir.

1977); EPIC, 416 F.Supp.2d at 35-36. These factors are balanced against each other on a sliding

scale and a stronger showing on one factor can compensate for a weaker showing on another.

4
Judge Lamberth reaffirmed this conclusion when the case came before him once again
on remand from the D.C. Circuit, 592 F.Supp. 2d 127, 130-31 (D.D.C. 2009). The appellate
court had dismissed the government’s appeal of the December 2007 ruling for lack of
jurisdiction. See CREW v. U.S. Dep’t of Homeland Sec., 532 F.3d 860 (D.C. Cir. 2008).

9
CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C. Cir. 2005. “An injunction may be justified,

for example, where there is a particularly strong likelihood of success on the merits even if there

is a relatively slight showing of irreparable harm.” CityFed Fin. Corp., 58 F.3d at 747.

B. Plaintiff Is Likely To Prevail On The Merits.

In assessing plaintiff’s likelihood of success this Court must consider whether plaintiff is

entitled to expedited processing of its request and whether DHS has processed the request

consistent with that entitlement. On this issue plaintiff is likely to prevail.

Amendments to the FOIA, enacted in 1996 as the Electronic Freedom of Information Act

Amendments, require among other things that agencies provide for expedited processing of

FOIA requests in certain cases. 5 U.S.C. § 552(a)(6)(E). Under the FOIA, a requester is entitled

to expedition upon a showing of a “compelling need, 5 U.S.C. § 552(a)(6)(E)(I), which the FOIA

defines as including requests “made by a person primarily engaged in disseminating

information” where there is an “urgency to inform the public concerning actual or alleged

Federal Government activity.” Id. at § 552(a)(6)(E)(v)(II).

When an agency grants a request for expedited processing, it is statutorily obligated to

process the request “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). The legislative history

to these amendments makes clear Congress did not impose a specific deadline on agencies to

complete expedited processing, “its intent was to ‘give the request priority for processing more

quickly than otherwise would occur.’” EPIC, 416 F.Supp.2d at 38 (emphasis in original),

quoting S. Rep. No. 104-272 at 17 (1996).

DHS regulations provide for expedited processing of FOIA requests in two instances: (1)

where the lack of expedition “could reasonably be expected to pose an imminent threat to the life

10
or physical safety of an individual”; and (2) where there is “[a]n urgency to inform the public

about an actual or alleged federal government activity” and the requester is “primarily engaged

in disseminating information.” 6 C.F.R. §§ 5.5(d)(1)(I)-(ii). Requesters seeking expedition

based on the second instance must “establish a particular urgency to inform the public about the

government activity beyond the public’s right to know about government activity generally.” 6

C.F.R. § 5.5(d)(3). In addition, a requester that is not a full-time member of the media must

establish that “their main professional activity or occupation is information dissemination,” but it

need not be their “sole occupation.” Id. DHS regulations further require DHS to grant or deny a

request for expedited processing within 10 calendar days of receipt, and to give priority and

process requests “as soon as practicable” when expedition is granted. 6 C.F.R. § 5.5(4).

Plaintiff here sought expedition of its FOIA request based on the urgent need “to inform

the public about the possible influences to which the administration may have been subject in

formulating its health care policy,” CREW FOIA Request at 5, thus invoking the provisions of 6

C.F.R. § 5.5(d)(ii). This need is premised on the very substantial current public interest in the

administration’s approach to health care policy, already identified closed-door talks President

Obama has had with health care industry executives, the administration’s ongoing efforts to win

over public and congressional support for is health care proposal, the potentially enormous

economic impact of not reaching consensus on such a proposal, as well as the president’s push to

have a legislative package before him by October. See CREW’s FOIA Request at 5. The

ongoing national debate on an issue of such enormous public significance establishes decisively

plaintiff’s right to expedition. See Washington Post, 459 F.Supp.2d at 65 (requester seeking

White House visitor records to “assist the public in ‘the degree to which lobbyists and special

11
interest representatives may have influenced policy decisions of the Bush administration’”

entitled to expedition) (citation omitted); Long v. Dep’t of Homeland Sec., 436 F.Supp.2d at 43

(noting “judges of this Court have found sufficient exigency to grant expedited processing in

situations where there was an ongoing public controversy associated with a specific time

frame.”); Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 260 (D.D.C.

2005) (“urgency element” met where legislation related to subject of request about to expire);

ACLU v. Dep’t of Justice, 321 F.Supp.2d at 28-29 (cited newspaper articles discussing

“widespread public concern” in issue for which FOIA requester sought documents).

This conclusion is underscored by the broad statutory language Congress used to describe

when expedition is mandated: where there is an “urgency to inform the public concerning actual

or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v) (emphasis added). As the

court in Bloomberg v. U.S. Food & Drug Admin., 500 F.Supp.2d 371, 377 (S.D.N.Y. 2007),

noted:

The use of the word “concerning” in this context is significant


because it does not suggest an exclusive or definitive source of
the information that might shed light on the relevant government
activity. Instead, the word “concerning” in its ordinary meaning
is much more broadly understood. Its definition is ‘relating to;
to be about; to bear on.’ Merriam-Webster Online Dictionary,
http://www.merriam-webster.com.

In addition, CREW is “primarily engaged in disseminating information,” as both the

FOIA and DHS regulations require. CREW is a non-profit, non-partisan organization that

“routinely and systematically disseminates information in a variety of ways to accomplish its

stated goal of informing the public about the activities of government officials.” CREW’s FOIA

Request at 4. Those methods of disseminating information include:

12
• maintenance of a frequently visited website, www.citizensforethics.org (it
received 114,015 visits in May 2009) on which CREW posts documents it
acquires from its many FOIA requests;

• publication of an on-line newspaper, CREWCuts, that had 13,912


subscribers at the time CREW submitted its FOIA request in June 2009;

• publication of a blog, Citizens blogging for responsibility and ethics in


Washington, that reports on and analyzes newsworthy developments and
provides links directing readers to other articles and commentary
(CREW’s blog had 2,280 hits in May 2002);

• publication of numerous reports, available at


http://www.citizensforethics.org, (examples include The Revolving Door,
a comprehensive look at the post-government activities of 24 former
members of President George W. Bush’s cabinet; 2008 Top Ten Ethics
Scandals; 2008 Most Embarrassing Re-Elected Members of Congress;
2008 Most Corrupt Members of Congress; and Those Who Dared: 30
Officials Who Stood Up For Our Country).;

• dissemination of documents CREW acquires from its FOIA requests


through www.governmentdocgs.org, an interactive website CREW
founded that includes thousands of pages of public documents from a
number of organizations in addition to CREW.

CREW’s FOIA Request at 4-5.

As with the Electronic Privacy Information Center and the ACLU, two organizations the

courts have found satisfy the criteria for expedition, CREW “gathers information of potential

interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct

word, and distributes that work to an audience.’” ACLU v. Dep’t of Justice, 321 F.Supp.2d at 30

n.5, quoting EPIC v. Dep’t of Defense, 241 F.Supp.2d 5, 11 (D.D.C. 2003). See also Leadership

Conference on Civil Rights v. Gonzales, 404 F. Supp.2d at 260 (requester deemed “primarily

engaged in disseminating information” where it maintained a website intended “to serve as the

site of record for relevant and up-to-the-minute civil rights news and information.”).

Accordingly, CREW is likely to prevail on its entitlement to expedition.

13
Just as clearly, DHS has not met its statutory and regulatory obligations to rule on and

grant CREW’s request for expedited processing. DHS’s letter of July 7, 2009 – the only

communication CREW has received from the agency regarding its FOIA request – does not even

acknowledge CREW’s request for expedition and makes no representation on whether and when

the Secret Service will process the FOIA request. Without question DHS has not acted on

CREW’s request for expedition within 10 calendar days of receipt as governing regulations

require, 6 C.F.R. § 5.5(4). Nor has DHS given CREW’s request priority and processed it “ as

soon as practicable,” id.; indeed, the agency has denied any obligation to process the request at

all.

On the basis of the record before the Court, plaintiff has a substantial likelihood , if not a

certainty, of prevailing on the merits of its claim that defendant has failed to expedite CREW’s

FOIA request.

C. Plaintiff Will Suffer Irreparable Injury Absent The Requested Injunctive Relief.

Unless the Court immediately enjoins DHS from failing to comply with its obligations to

expedite the processing of plaintiff’s FOIA request, plaintiff will suffer irreparable injury. The

very nature of the right plaintiff seeks to vindicate through this action – expedited processing –

depends on the agency’s timeliness. As courts have recognized, where “time is of the essence”

preliminary injunctive relief is appropriate. See, e.g., United States v. BNS, Inc., 858 F.2d 456,

465 (9th Cir. 1988); Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982).

Particularly in the FOIA context “stale information is of little value.” Payne Enterprises, Inc. v.

United States, 837 F.2d 486, 494 (D.C. Cir. 1988). Further, where expedition of a FOIA request

is “statutorily proscribed, the specter of information becoming stale and of little value,

14
increases.” EPIC, 416 F.Supp.2d at 41.

In addition to the loss of its clearly established statutory right, further delay in processing

plaintiff’s FOIA request will irreparably harm plaintiff’s ability, and that of the public, to obtain

in a timely and useful fashion information vital to the current and ongoing debate over national

health care policy. Under these circumstances, “the public interest is particularly well-served by

the timely release of the requested documents.” Id. at 42. See also Washington Post, 459

F.Supp.2d at 75 (“Because the urgency with which the plaintiff makes its FOIA request is

predicated on a matter of current national debate, due to the impending election, a likelihood for

irreparable harm exists if the plaintiff’s FOIA request does not receive expedited treatment.”).

Indeed, delay under these circumstances “may well result in disclosing the relevant documents

after the need for them in the formulation of national . . . policy has been overtaken by events.”

Natural Resources Defense Council v. Dep’t of Energy, 191 F.Supp.2d 41, 43 (D.D.C. 2002),

aff’d in part, rev’d in part, remanded, 412 F.3d 125 (D.C. Cir. 2005) (granting motion for

release of documents).

The scramble in Congress to put a legislative package on health care together in short

order, a factor that weighs in favor of expedited processing,5 also evidences the harm to plaintiff

and the public if expedition is denied. Meaningful debate over and consideration of the health

care crisis our nation faces “cannot be based solely upon information that the Administration

voluntarily chooses to disseminate.” EPIC, 416 F.Supp.2d at 41 n.9. Indeed, the public

oversight mechanism the FOIA provides is central to open and democratic debate on critical

5
Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d at 260; ACLU v.
Dep’t of Justice, 321 F.Supp.2d at 31.

15
policy issues such as the best direction health care legislation should take. As the Supreme

Court has observed, the FOIA is “a means for citizens to know ‘what the Government is up to.’

This phrase should not be dismissed as a convenient formalism. It defines a structural necessity

in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004)

(emphasis added; citation omitted).

If the information plaintiff seeks here is to contribute to the public debate on health care

policy, it must be disclosed expeditiously. Because time is of the essence in this matter, plaintiff

will be irreparably harmed unless the Court acts now, “when it [is] still possible to grant

effective relief,” and before “all opportunity to grant the requested relief [is] foreclosed.” Local

Lodge No. 1266 v. Panoramic Corp., 668 F.2d 276, 290 (7th Cir. 1981).

D. Injunctive Relief Will Not Burden Others’ Interests.

Requiring DHS to comply with the law and expedite its processing of CREW’s FOIA

request can hardly be characterized as an undue “burden” that outweighs the clear harm to

plaintiff if injunctive relief is denied. All that plaintiff seeks through a preliminary injunction is

the government’s compliance with what the law already mandates. Nor will the requested relief

burden the interests of other parties who have submitted FOIA requests to DHS in any manner

beyond that foreseen by Congress when it enacted the expedited processing provisions of the

FOIA. In providing for expedited processing of qualifying requests, Congress intended such

requests would take precedence over those that do not qualify for expedition. Fulfillment of the

legislative intent cannot be characterized as a burden on any party’s interests. See Washington

Post, 459 F.Supp.2d. at 75 (concluding under similar circumstances preliminary injunction does

not burden any other interested party).

16
E. The Public Interest Favors The Requested Relief.

As the D.C. Circuit has recognized, “there is an overriding public interest . . . in the

general importance of an agency’s faithful adherence to its statutory mandate.” Jacksonville Port

Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977), quoted in EPIC, 416 F.Supp.2d at 42. This is

no more important than in the context of the FOIA, which was enacted to provide public access

to government records “to ensure an informed citizenry, vital to the functioning of a democratic

society . . .” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Likewise, it is

“axiomatic that an ‘agency is required to follow its own regulations.’” Edmonds v. FBI, 2002

U.S. Dist. LEXIS 26578, at *9 (D.D.C. Dec. 3, 2002) (quoting Cherokee Nation v. Babbitt, 117

F.3d 1489, 1499 (D.C. Cir. 1997).

Such adherence is all plaintiff seeks. Particularly where, as here, there is great public and

media interest in the administration’s formulation of health care policy, “[t]here is public benefit

in the release of information that adds to citizens’ knowledge” of government activities. Ctr. to

Prevent Handgun Violence v. Dep’t of the Treasury, 49 F.Supp.2d 3, 5 (D.D.C. 1999). The

public interest favors the issuance of an order directing defendant DHS to immediately process

and release the requested information.

III. THE COURT SHOULD ORDER DHS TO PROCESS CREW’S


FOIA REQUEST IMMEDIATELY

Although preliminary injunctive relief is not the norm in FOIA cases, such relief plainly

is appropriate and necessary here to give meaning to the statute’s expedited processing

provisions. See EPIC, 416 F.Supp.2d at 35 n. 4 (“the court may use its equitable power to

prevent agency delay, even when exercise of such authority is preliminary in nature.”).

Congress expressly required agencies to make determinations on requests for expedited

17
processing within 10 calendar days, 5 U.S.C. § 552(a)(6)(E)(ii)(I), and provided for immediate

judicial review of adverse determinations, 5 U.S.C. § 552(a)(6)(E)(iii), demonstrating an intent

that the courts should act quickly to vindicate the right to expedition. See, e.g., ACLU v. Dep’t

of Justice, 321 F.Supp.2d at 28-29 (exhaustion of administrative remedies not a prerequisite to

judicial review of agency expedition decision).

Given this context, the entry of a preliminary injunction here compelling DHS to process

CREW’s FOIA request immediately is both necessary and appropriate. As explained above,

CREW satisfies each of the four prerequisites for the entry of a preliminary injunction.

Moreover, the appropriate form of relief is clear. DHS regulations mandate the agency give

priority to expedited requests and process them “as soon as practicable.” 6 C.F.R. § 5.5(4).

Accordingly, the Court should order DHS to process plaintiff’s FOIA request immediately.

In addition, recognizing the significant public interest in the records at issue and to

facilitate the informed participation of the public in the current and ongoing debate over the

appropriate solution to the nation’s health care crisis, the Court should direct DHS to complete

processing plaintiff’s request and produce all non-exempt documents within 10 days of the

issuance of the order plaintiff seeks. This time-frame takes into account the very fast pace at

which health care legislation is proceeding – the president is pushing Congress to have a health

care package completed by the August recess – as well as the relatively light burden processing

CREW’s request is likely to impose given the short period of time is encompasses.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for a preliminary injunction should be

granted. Plaintiff asks that the Court, pursuant to Local Rule 65.1(d), schedule a hearing on this

18
motion at the Court’s earliest convenience.

Respectfully submitted,

__________________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D. C. 20005
Telephone: 202-408-5565
Fax: 202-588-5020

July 22, 2009 Attorneys for Plaintiff

19