PROTECT DEMOCRACY PROJECT, INC. v. U.S. DEPARTMENT OF DEFENSE et al
MEMORANDUM OPINION re: 3 Plaintiff's Motion for Preliminary Injunction. Signed by Judge Christopher R. Cooper on 7/13/2017. (lccrc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PROTECT DEMOCRACY PROJECT,
Case No. 17-cv-00842 (CRC)
U.S. DEPARTMENT OF DEFENSE, et al.,
On April 6, 2017, President Trump ordered Tomahawk cruise missile strikes against a
Syrian-government airbase. The next day, The Protect Democracy Project, Inc. (“Protect
Democracy”) submitted requests under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, to the Department of State, the Department of Defense, and three separate components of
the Department of Justice, seeking documents relating to the President’s legal authority to launch
the strikes. The organization also sought expedited processing. About one month later, with
none of the requested documents and with two of its expedited processing requests having been
denied, Protect Democracy brought suit in this Court. It then moved for a preliminary
injunction, seeking to compel all three agencies to process its requests on an expedited basis, and
to produce all responsive records by a date certain. For the reasons that follow, the Court will
grant the former relief but deny the latter.
Agencies typically process FOIA requests in the order received, but FOIA’s “expedited
processing” provision recognizes that some requests are urgent enough to warrant a spot towards
the front of the line. 5 U.S.C. § 552(a)(6)(E). As relevant here, the statute directs that requests
should be expedited where the requester shows a “compelling need” for the records sought, id.
§ 552(a)(6)(E)(i)(I)—which is the case where the requester is “primarily engaged in
disseminating information,” and there is an “urgency to inform the public concerning actual or
alleged Federal Government activity,” id. § 552(a)(6)(E)(v). Once expedited, requests must be
“process[ed] as soon as practicable.” Id. § 552(a)(6)(E)(iii). Agencies have promulgated
regulations implementing these provisions. See 28 C.F.R. § 16.5(e) (DOJ expedited processing
regulations); 32 C.F.R. § 286.8(e) (DOD regulations); 22 C.F.R. § 171.11(f) (State regulations).
Despite modest variations among the schemes, they are materially the same: Each at a minimum
implements the “compelling need” standard. See 28 C.F.R. § 16.5(e)(1)(ii); 32 C.F.R.
§ 286.8(e)(1)(i); 22 C.F.R. § 171.11(f)(2).
On April 7, 2017, the day after the U.S. conducted the above-referenced military strikes
against the Syrian government, Protect Democracy sent FOIA requests to the Department of
State (“State”), the Department of Defense (“DOD”), and three components of the Department of
Justice (“DOJ”): the Office of Information Policy, which processes FOIA requests for the
Offices of the Attorney General and Deputy Attorney General; the Office of Legal Counsel; and
the National Security Division. See Pl.’s Mem. Supp. Mot. Prelim. Inj. (“MPI”), Exs. A–E. The
identical requests sought:
Any and all records [from April 4, 2017 through the present], including but not
limited to emails and memoranda, reflecting, discussing, or otherwise relating to
the April 6, 2017 military strike on Syria and/or the President’s legal authority to
launch such a strike. This request includes, but is not limited to, internal [agency]
communications, communications between [agency] employees and the Executive
Office of the President, and communications between [agency] employees and
Pl.’s MPI, Ex. A, at 2. Protect Democracy also requested expedited processing, pointing among
other things to the public’s “immediate right to understand the administration’s position with
respect to the legality of the recent strike against Syria, and to assess whether that position is
justified.” Id. at 2–3. Citing its website and 501(c)(3) status, the organization also noted that its
“request [was] submitted in consort with [its] mission to gather and disseminate information that
is likely to contribute significantly to the public understanding of executive branch operations
and activities.” Id. at 3–4.
Over the next several weeks, each of the DOJ components granted Protect Democracy’s
requests for expedited processing. See Pl.’s MPI, Exs. F & G; Defs.’ Mem. Opp’n Pl.’s MPI
(“Defs.’ Opp’n”), Ex. 1. At the same time, the DOJ components had not conducted even a
preliminary search for relevant documents, and they offered no estimated processing timeline.
For example, OIP indicated that it had “not yet completed a search to determine whether there
are records within the scope of [the] request,” and that the “time needed to process [the] request
[would] necessarily depend on the complexity of our records search and on the volume and
complexity of any records located.” Pl.’s MPI, Ex. F. DOD and State, on the other hand, denied
the expedition requests, summarizing the relevant regulations but not explaining how Protect
Democracy’s request fell short of those standards. See MPI, Exs. I & J.
On May 8, roughly one month after submitting its requests, Protect Democracy brought
suit in this Court, alleging FOIA violations. See Pl.’s Compl., ECF No. 1. Two weeks after that,
before Defendants had responded to the Complaint, Protect Democracy moved for a preliminary
injunction that would “compel all Defendants to process its FOIA requests on an expedited basis,
and produce all requested records (or acknowledge if there are no such records)” within a date
certain. Pls.’ MPI 2. Defendants opposed the motion, and the Court held a hearing.
“A [party] seeking a preliminary injunction must establish  that he is likely to succeed
on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,
 that the balance of equities tips in his favor, and  that an injunction is in the public
interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original)
(quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). “[I]t is especially important
for the movant to demonstrate a likelihood of success on the merits.” Nat’l Head Start Ass’n v.
U.S. Dep’t of Health & Human Servs., 297 F. Supp. 2d 242, 246 (D.D.C. 2004) (citing
Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360, 366 (D.C. Cir. 1999)). A preliminary
injunction is an “extraordinary” remedy, and so “should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (per curiam) (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 2948 (2d ed. 1995)).
When brought under FOIA, preliminary injunction motions generally present one of two
questions. First, has the relevant agency appropriately denied a request for expedited
processing? See, e.g., Progress v. Consumer Fin. Prot. Bureau, No. 17-686, 2017 WL 1750263
(D.D.C. May 4, 2017); Wadelton v. Dep’t of State, 941 F. Supp. 2d 120 (D.D.C. 2013);
Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270 (D.D.C. 2012). Second, assuming a
request should be expedited, is the agency processing it as quickly as “practicable,” 5 U.S.C.
§ 552(a)(6)(E)(iii)? See, e.g., Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1 (D.D.C.
2015); Elec. Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30 (D.D.C. 2006). Protect
Democracy’s motion implicates both questions. The Court will evaluate each in turn, according
to the four preliminary injunction factors.
A. Whether Processing Should Be Expedited
1. Likelihood of Success on the Merits
The Court first asks whether Protect Democracy is likely to succeed on the merits of its
claim that its requests are entitled to expedited processing. Because the DOJ components have
already granted Protect Democracy’s expedition requests, only DOD’s and State’s denials
remain relevant to this issue. A decision denying expedited processing is reviewed by the courts
de novo, Al-Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001), “based on the record before the
agency at the time of the determination,” 5 U.S.C. § 552(a)(6)(E)(iii). Recall that, under FOIA,
requests should be expedited where the requester shows a “compelling need” for the relevant
information, 5 U.S.C. § 552(a)(6)(E)(i)(I), meaning that (1) the requester is “primarily engaged
in disseminating information” and (2) there is an “urgency to inform the public concerning actual
or alleged Federal Government activity,” id. § 552(a)(6)(E)(v).
Consider first the requirement that a requester be “primarily engaged in disseminating
information.” As suggested by the statute’s plain meaning and legislative history, the standard
“requires that information dissemination be the main [and not merely an incidental] activity of
the requestor.” Progress, 2017 WL 1750263, at *3 (quoting Landmark Legal, 910 F. Supp. 2d at
276). On the other hand, publishing information “need not be [the organization’s] sole
occupation.” Id. The Court easily finds that, with its representations to DOD and State, Protect
Democracy satisfied these standards. The organization noted in both requests that it “intend[ed]
to disseminate the information obtained”; that its “core mission . . . is to inform public
understanding on operations and activities of government,” including by “gather[ing] and
disseminat[ing] information that is likely to contribute significantly to the public understanding
of executive branch operations and activities”; and that it “intend[ed] to give the public access to
documents transmitted via FOIA on [its] website.” Pl.’s MPI, Exs. D, E at 2–4. These
representations likely established that Protect Democracy is “primarily engaged in disseminating
information.” 5 U.S.C. § 552(a)(6)(E)(v).
The Court turns next to whether Protect Democracy’s request likely demonstrated an
“urgency to inform the public concerning actual or alleged Federal Government activity.” 5
U.S.C. § 552(a)(6)(E)(v). In evaluating whether this criterion has been satisfied, courts have
been directed to weigh three main factors: “(1) whether the request concerns a matter of current
exigency to the American public; (2) whether the consequences of delaying a response would
compromise a significant recognized interest; and (3) whether the request concerns federal
government activity.” Al-Fayed, 254 F.3d at 310. The relevant agency regulations identify
similar considerations. See 22 C.F.R. 171.11(b)(2) (State Regulation) (“urgently needed”
information must have “a particular value that will be lost if not disseminated quickly”); 32
C.F.R. § 286.8(e)(3) (DOD Regulation) (requester “must establish a particular urgency to inform
the public about the [relevant] government activity”).
There is no dispute that Protect Democracy’s requests relate to federal government
activity. But do the requests touch on “a matter of current exigency to the American public,” and
would “delaying a response . . . compromise a significant recognized interest,” Al-Fayed, 254
F.3d at 310? Likely, the answer to both questions is yes. Regarding nationwide “exigency”: In
its requests, submitted the day after the April 6 missile strikes against Syria, Protect Democracy
explained that “the President’s decision to initiate military action is of the utmost importance to
the public,” and that “whether the President has the legal authority to launch [such] a military
strike” is similarly critical. Pl.’s MPI, Exs. D, E at 2. Few would take issue with these
assertions. But as evidence that they were justified, one need look no further than the
widespread media attention—including by some of the nation’s most prominent news outlets—
paid both to the April 6 strike and its legality, as early as the date of Protect Democracy’s
requests.1 Under the regulations promulgated by both DOD and State, such media coverage is
strong evidence of an “urgency to inform” the public. See 32 C.F.R. § 286.8(e)(3) (DOD) (“The
existence of numerous articles published on a given subject can be helpful in establishing the
requirement that there be an ‘urgency to inform’ the public on the topic.”); 22 C.F.R. § 171.11
(State) (defining “[u]rgently needed information” as being “[o]rdinarily” related to “a breaking
news story of general public interest”). There is little doubt, in other words, that “the subject
matter of the request[s] [is] central to a pressing issue of the day.” Wadelton v. Dep’t of State,
941 F. Supp. 2d 120, 123 (D.D.C. 2013).2
Relatedly, the Court also finds it likely that a significant delay in processing Protect
Democracy’s requests would “compromise a significant recognized interest.” Al-Fayed, 254
F.3d at 310. In particular, if production is unduly delayed, both Protect Democracy and the
See, e.g., Charlie Savage, Was Trump’s Syria Strike Illegal? Explaining Presidential
War Powers, N.Y. Times, Apr. 7, 2017,
Lizza, Was Trump’s Strike on Syria Legal?, The New Yorker, Apr. 7, 2017,
http://www.newyorker.com/news/ryan-lizza/was-trumps-strike-on-syria-legal; Ariane de Vogue,
Was Trump’s Syria strike legal? An expert weighs in, CNN Politics, Apr. 7, 2017,
Siddiqui & Lauren Gambino, Are Donald Trump’s Missile Strikes in Syria Legal?, The
Guardian, Apr. 7, 2017, https://www.theguardian.com/us-news/2017/apr/07/donald-trump-usmissile-strikes-syria-legal.
Protect Democracy also cites “time-sensitive” Congressional debates over U.S. military
actions in Syria. Pl.’s MPI 6, 21. However, as Defendants point out, see Defs.’ Opp’n 12–13,
none of those pending congressional resolutions specifically concerns the legality of the April 6
strikes against the Syrian government.
public at large will be “precluded . . . from obtaining in a timely fashion information vital to the
current and ongoing debate surrounding the legality of” a high-profile government action, EPIC
I, 416 F. Supp. 2d at 41—namely, military strikes against the Syrian government. Being closed
off from such a debate is itself a harm in an open democracy. See Elec. Frontier Found. v.
Office of Dir. of Nat. Intelligence, 2007 WL 4208311, at *7 (N.D. Cal. Nov. 27, 2007)
(“[O]ngoing public and congressional debates about issues of vital national importance cannot be
restarted or wound back.”) (internal quotations omitted). But there is another potential harm,
too: The possibility for the strikes to recur without legal justification. By then, any damage will
have been done. See Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir.
1988) (“[S]tale information is of little value.”). In short, because Protect Democracy has
demonstrated a “compelling need” for the information it requested, the Court finds that the
organization is likely to prevail on the merits of its expedited processing claim.
2. Irreparable Harm
The Court turns to assessing Protect Democracy’s expedition request in light of the
remaining preliminary injunction factors, beginning with the likelihood of “irreparable harm in
the absence of preliminary relief.” Aamer, 742 F.3d at 1038. As may be apparent, in the course
of evaluating whether “delaying a response would compromise a significant recognized interest,”
Al-Fayed, 254 F.3d at 310, the Court also found that harm would result from undue delay. But
there is a key distinction between the analysis above and here. In assessing the merits of the
agencies’ denial decisions, the Court considered only information available to the agencies “at
the time of the determination[s].” 5 U.S.C. § 552(a)(6)(E)(iii). The Court is not aware of any
similar constraint, however, that applies in assessing irreparable harm or the other preliminary
injunction factors. In other words, the Court may here consider events that have transpired since
Protect Democracy’s April 7 requests.
Those intervening events have a common theme: increasing U.S. hostility towards the
Syrian government. U.S.-led forces conducted strikes against pro-regime forces in Syria on May
18, June 6, and June 8,3 and a U.S. fighter jet shot down a Syrian military jet on June 18.4 As the
Government points out, these military actions may not have been directly related to the April 6
strike, which was aimed at punishing the Syrian government for its suspected use of chemical
weapons. See Defs.’ Opp’n 13. But they nevertheless evidence mounting U.S. hostilities against
pro-Syria forces. And on June 26, the White House indicated that another April 6-like attack
may be imminent: It stated that Syria appeared to be readying for another chemical weapons
attack, and “warned that [it] would ‘pay a heavy price’ if one took place.”5 At the same time,
despite public requests from at least two members of Congress,6 the Administration has not
offered any detailed legal support for the April 6 strike.
The recent escalation in hostilities between U.S. and Syria, plus indications from the
See CJTF-OIR, Coalition Statement on At Tanf Garrison, May 18, 2017,
CJTF-OIR, Coalition Statement on Actions Near At Tanf, Syria, June 7, 2017,
http://www.inherentresolve.mil/News/Article/1205543/coalitionstatement-%20on-actions-nearat-tanf-syria; CJTF-OIR, Coalition Statement on At Tanf, June 8, 2017,
See Thomas Gibbons-Neff & Kareem Fahim, U.S. Aircraft Shoots Down a Syrian
Government Jet Over Northern Syria, Pentagon Says, June 18, 2017, Wash. Post,
Michael D. Shear, Helene Cooper & Eric Schmitt, Syria Will ‘Pay a Heavy Price’ for
Another Chemical Attack, White House Says, N.Y. Times, June 26, 2017,
Jeremy Herb, Kaine, Schiff Demand White House Legally Justify Syria Strike, CNN
Politics, Apr. 25, 2017, http://www.cnn.com/2017/04/25/politics/kaine-schiff-syriastrike/index.html.
White House that another chemical weapons attack may be in the offing, make it more likely that
irreparable harm will result without expedited processing of Protect Democracy’s requests.
Again, the potential for irreparable harm under these circumstances exists “because ongoing
public and congressional debates about issues of vital national importance cannot be restarted or
wound back.” Elec. Frontier Found., 2007 WL 4208311, at *7. That is especially so, here,
where the use of military force is implicated. That fact distinguishes this case from those where
the looming event is, for example, the promulgation of an administrative rule, see Landmark
Legal Found. v. EPA, 910 F. Supp. 2d 270 (D.D.C. 2012), or even the passage of legislation, see
Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 46 (D.D.C. 2014). Military strikes cannot be
3. Other Preliminary Injunction Factors
In light of the Court’s finding that Protect Democracy’s requests likely warrant expedited
processing, both “the balance of equities” and “the public interest,” Aamer, 742 F.3d at 1038,
counsel in favor of granting that relief. Defendants nowhere claim that it would overburden
them merely to comply with FOIA’s expedited processing requirements. Instead, they take issue
with Protect Democracy’s request for the production of documents by a date certain, which the
Court addresses in the following section. Furthermore, it is clear that the public interest favors
expediting Protect Democracy’s requests, assuming those requests meet the relevant “compelling
need” standards, 5 U.S.C. § 552(a)(6)(E)(v). Not only would the public benefit from
participation in the “ongoing debate” discussed above, but an agency’s compliance with a
mandatory statutory regime is presumably always in the public interest. See Jacksonville Port
Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977) (“[T]here is an overriding public interest . . . in
the general importance of an agency’s faithful adherence to its statutory mandate.”). In sum, for
the reasons just outlined, Protect Democracy is entitled to a preliminary injunction directing the
expedited processing of its requests.
B. Processing the Requests “As Soon As Practicable”
Protect Democracy has shown that it is entitled to expedited processing, but that is only
half its battle. The organization also seeks an order directing that its requests be processed and
responsive documents produced by a date certain. It must therefore carry its burden to show that
the four preliminary injunction factors support awarding that relief, as well.
1. Likelihood of Success on the Merits
FOIA directs agencies to process expedited requests “as soon as practicable.” 5 U.S.C.
§ 552(a)(6)(E)(iii). Protect Democracy argues that, because FOIA also requires agencies to
make a “determination” within twenty days of receiving a typical, non-expedited request, see 5
U.S.C. 552(a)(6)(A)(i), an agency’s “failure to respond [to an expedited request] in twenty
working days creates a rebuttable presumption that the agency has not processed [that] request
‘as soon as practicable.’” Pl.’s Reply 11; see also Pl.’s MPI 19–20. Protect Democracy misreads
the applicable provision, however. The automatic “penalty” for failing to meet FOIA’s twentyday timeline is not the imposition of another explicit timeline, but rather “that the agency cannot
rely on the administrative exhaustion requirement to keep cases from getting into court.”
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180, 189
(D.C. Cir. 2013). Once FOIA’s deadlines have passed, “the agency may continue to process the
request, and the court (if suit has been filed) will supervise the agency’s ongoing progress,
ensuring that the agency continues to exercise due diligence in processing the request.” Id.; see
also Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 10 (D.D.C. 2015) (“[The twenty-day]
provision . . . serves primarily as a means to obtain immediate judicial supervision over an
agency’s response to an outstanding FOIA request.”). In cases where expedited processing has
been granted, it follows that the district court’s supervision will aim to ensure that the agency is
processing a request with “due diligence” and as quickly “as practicable.” 5 U.S.C.
§ 552(a)(6)(E)(iii). But there is no reason to assume that any request processed in less than
twenty days has failed to meet that standard.7 In light of Defendants’ representations that they
are actively processing Protect Democracy’s requests, and without evidence to the contrary, the
Court finds that the merits weigh in favor of Defendants on this issue.
2. Irreparable Harm and Other Preliminary Injunction Factors
The Court previously found that Protect Democracy had demonstrated a “compelling
need” for the information it requested, and that the organization and the public would be
irreparably harmed if the release of that information were unduly delayed. It cannot be said,
however, that there will be irreparable harm if the requested information is not released within,
say, twenty days. As Defendants note, Protect Democracy “has not identified a single imminent
deadline” related to its request, or any event set to occur on a particular date. Defs.’ Opp’n 13.
And while U.S.-Syria tensions have been rising, there is no reason to expect further hostilities
within any definite time window—for example, next week or next month. Accordingly, Protect
Democracy has not demonstrated that it will experience irreparable harm without an order
directing processing by a date certain.
Finally, “the balance of equities” and “the public interest,” Aamer, 742 F.3d at 1038,
previously on the side of Protect Democracy, here favor Defendants. Imposing on Defendants an
Protect Democracy’s “rebuttable presumption” argument rests on a single, nonprecedential case. See EPIC I, 416 F. Supp. 2d 30. While the EPIC I court did initially apply a
rebuttable presumption that processing had occurred less quickly than “practicable” based on
FOIA’s twenty-day timeline, id. at 39, it later reconsidered that order, and ultimately allowed the
defendants up to 120 additional days. See Defs.’ Opp’n, Ex. 5.
arbitrary deadline for processing would run the risk of overburdening them, and could even lead
to the mistaken release of protected information. See Daily Caller, 152 F. Supp. 3d at 14
(“Requiring the agency to process and produce [requested] materials under an abbreviated
deadline raises a significant risk of inadvertent disclosure of records properly subject to
exemption under FOIA.”). And requiring production by a date certain, without any factual basis
for doing so, might actually disrupt FOIA’s expedited processing regime rather than implement
it. See Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 47 (D.D.C. 2014) (“[A]llowing [a
plaintiff] to jump to the head of the line would upset the agency’s processes and be detrimental
to the other expedited requesters, some of whom may have even more pressing needs.”)
(emphasis added). In short, all four preliminary injunction factors counsel against requiring
Defendants to process Protect Democracy’s requests by a date certain, at least at this stage and
on this record.
For the foregoing reasons, the Court will grant in part and deny in part Protect
Democracy’s motion for a preliminary injunction. As set forth in the accompanying Order, the
Court will direct Defendants to process Protect Democracy’s requests on an expedited basis, but
will stop short, at this juncture at least, of ordering production by a date certain.
In accordance with its supervisory role, however, and in light of the fact that, as it
represented at the hearing, Protect Democracy has offered to narrow its request to cover only
documents specifically related to legal justifications for the April 6 Syria strikes, the Court will
direct Defendants to file, by July 28, 2017, a status report on their ongoing search and processing
efforts. That status report at a minimum should include the estimated number of documents
responsive to Protect Democracy’s requests, and a proposed processing and production timeline.
No later than August 2, 2017, Protect Democracy may file a response to Defendants’ timeline,
including its own proposal for processing and production. The Court will consider both
proposals, and direct further proceedings as necessary.8
CHRISTOPHER R. COOPER
United States District Judge
July 13, 2017
As noted at the hearing, the Court also encourages the parties to work together to
prioritize the processing of documents from particular components—such as the Office of Legal
Counsel, State’s Legal Advisor’s Office, and the DOD General Counsel’s offices—that are most
likely to contain responsive and material records.
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