State of Washington v. US General Services Administration

• Court: District Court, W.D. Washington
• Decided: March 18, 2022
• Docket: 2:21-cv-00794
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 STATE OF WASHINGTON, CASE NO. 2:21-cv-00794-TL 11 Plaintiff, ORDER ON PLAINTIFF’S MOTION FOR 12 v. SUMMARY JUDGMENT AND MOTION FOR STATUS CONFERENCE 13 US GENERAL SERVICES ADMINISTRATION, 14 Defendant. 15 16 This matter comes before the Court on the State of Washington’s (“Plaintiff’s” or 17 “Washington’s”) motion for summary judgment (Dkt. No. 11) and motion requesting a status 18 conference (Dkt. No. 26). The Court has considered the pleadings filed in support of and in 19 opposition to the motions and the file herein and finds that oral argument is unnecessary. 20 Washington seeks summary judgment against the United States General Services Administration 21 (“Defendant” or “GSA” or “Agency”) for failing to meet its obligations under the Freedom of 22 Information Act (“FOIA”). Specifically, Washington claims that GSA (1) failed to provide a 23 required determination regarding its records request, (2) delayed production of responsive 24 1 records, and (3) has improperly asserted certain FOIA exemptions to withhold or redact 2 otherwise responsive information. As discussed below, the Court GRANTS IN PART and DENIES IN 3 PART Washington’s motion for summary judgement. Consequently, the Court DENIES 4 Washington’s request for a status conference as moot. 5 I. BACKGROUND

6 This is Washington’s second round of FOIA litigation arising from requests for records 7 related to the Federal National Archives in Seattle. 8 A. FOIA Litigation: Round 1 9 In February 2020, after learning of a proposed plan to sell the Seattle National Archives 10 building, Washington requested records about the federal government’s plans from four different 11 federal agencies involved in the planning, including Defendant. In August and September 2020, 12 Washington filed similar FOIA lawsuits against each agency alleging the agencies failed to 13 promptly respond. See State of Washington v. Office of Management and Budget, 2:20-cv-1231- 14 RSL (W.D. Wash. 2020); State of Washington v. U.S. National Archives and Records

15 Administration, 2:20-cv-1232-RSL (W.D. Wash. 2020); State of Washington v. U.S. General 16 Services Administration, 2:20-cv-1233-RSL (W.D. Wash. 2020); State of Washington v. Public 17 Buildings Reform Board, 2:20-cv-1364-RSL (W.D. Wash. 2020). In December 2020—4 months 18 after filing the lawsuit and 10 months after its original FOIA requests—Washington was granted 19 summary judgment in its case against the Public Buildings Reform Board. See State of 20 Washington v. Public Buildings Reform Board, 2:20-cv-1364-RSL at Dkt. No. 18. There, the 21 Court ordered the agency to produce all remaining responsive documents on an expedited 22 timeline. Id. All four cases subsequently resolved through cooperation of the parties without the 23 need for further judicial intervention by December 2021. 24 1 B. FOIA Litigation: Round 2 2 This case arises from a new set of FOIA requests for additional records related to the 3 National Archives building that Washington made on February 25, 2021. Dkt. No. 11 at 6. On 4 February 26, GSA acknowledged receipt of the request and provided a tracking number. Dkt. 5 No. 17 at 3. Since Washington did not request expedited processing, GSA scheduled the request

6 for standard processing. Id. While that process was underway, this lawsuit was filed in 7 June 2021.1 Dkt. No. 1. Like the Round 1 cases, Washington alleges the Agency has failed to 8 meet its FOIA obligations in responding to the new February 2021 request. 9 After the lawsuit was initiated, counsel for the Agency began communicating with 10 counsel for Washington regarding the Agency’s progress. Washington acknowledges that the 11 Agency identified a “large volume of materials” that it was reviewing. Dkt. No. 11 at 7. The 12 Parties worked cooperatively to identify appropriate search parameters to make the process more 13 efficient and started to negotiate a stipulated production schedule. Id. at 7-8, Dkt. No. 17 at 4-7. 14 Despite these communications, by August 2021 (six months after making the new FOIA requests

15 and two months after filing the lawsuit), Washington had only received a fraction of the 16 identified documents, many of which were withheld or redacted. Dkt. No. 11 at 7-8. 17 Washington moved for summary judgment, requesting injunctive relief in the form of an 18 expedited production schedule and preliminary determinations on the appropriateness of certain 19 exemptions invoked in the Agency’s initial productions. Dkt. No. 11. The motion, originally 20 noted for September 10, 2021, was voluntarily re-noted for October 1 by Washington (see Dkt. 21 22

1 Plaintiff has also asserted similar claims against the other three agencies from the Round 1 litigation in separate 23 lawsuits. See State of Washington v. Office of Management and Budget, No. 2:21-cv-00564-TL (filed Apr. 27, 2021); State of Washington v. U.S. National Archives and Records Administration, No. 2:21-cv-00565-TL (filed 24 Apr. 27, 2021); State of Washington v. Public Buildings Reform Board, No. 2:21-cv-00566-TL (filed Apr. 27, 2021). 1 No. 14), and the briefing schedule was adjusted accordingly by stipulation of the parties. See 2 Dkt. Nos. 15, 16. 3 In late November 2021, the Parties further stipulated to continuing the previously adopted 4 dispositive motion briefing schedule and revisiting the need for additional dispositive motions 5 after Washington’s then pending motion for summary judgment was resolved. Dkt. Nos. 22, 23.

6 On February 16, 2022, Washington filed an opposed motion requesting a status conference with 7 the Court. Dkt. Nos. 26, 29, 30. 8 II. SUMMARY JUDGMENT STANDARD 9 Most FOIA cases resolve on summary judgment. Animal Legal Def. Fund v. U.S. Food & 10 Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc) (per curiam). Summary judgment is 11 appropriate where, viewing “the evidence in the light most favorable to the nonmoving party,” 12 the court determines that there is no genuine issue as to any material fact and that the moving 13 party is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(c)). Material facts 14 are those which might affect the outcome of the suit under governing law. Moujtahid v. United

15 States Citizenship & Immigr. Servs., 2020 WL 4000980, at *3 (W.D. Wash. July 15, 2020) 16 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To survive summary 17 judgment “the nonmoving party must make a ‘sufficient showing on an essential element of her 18 case with respect to which she has the burden of proof.’” Id. (quoting Celotex Corp. v. Catrett, 19 477 U.S. 317, 323 (1986)). 20 III. DISCUSSION 21 FOIA establishes a “judicially enforceable public right” of access to federal agency 22 records. Elec. Frontier Found. v. Off. of the Dir. of Nat. Intel., 639 F.3d 876, 882 (9th Cir. 2010), 23 abrogated on other grounds by Animal Legal Def. Fund, 836 F.3d at 989. In doing so, it imposes 24 certain requirements upon any federal agency presented with a valid records request, including a 1 duty to: (1) determine within 20 days—or 30 days in unusual circumstances—whether to comply 2 with the request (see 5 U.S.C. § 552(a)(6)(A), (B)); and (2) make all appropriately requested 3 records promptly available to the requestor (5 U.S.C. § 552(a)(3)(A)). An agency may withhold 4 or redact otherwise responsive records by invoking any of nine narrowly construed statutory 5 exceptions. 5 U.S.C. § 552(b). However, “FOIA's strong presumption in favor of disclosure

6 means that an agency that invokes one of the statutory exemptions to justify the withholding of 7 any requested documents or portions of documents bears the burden of demonstrating that the 8 exemption properly applies to the documents.” Elec. Frontier Found., 639 F.3d at 883 (internal 9 quotations and citations omitted). 10 Plaintiff seeks summary judgment on its FOIA claims by arguing that Defendant has 11 failed to meet its FOIA obligations in three ways: (1) it has failed to provide an initial 12 determination; (2) it has failed to promptly produce responsive records; and (3) it has invoked 13 exemptions to withhold and redact records without sufficient justification. 14 A. FOIA’s Determination Requirement

15 FOIA requires an agency to make its initial determination within 20 days of receiving a 16 request or within 30 days under unusual circumstances. 5 § 552(a)(6)(A)(i), (a)(6)(B)(i); see also 17 Aguirre v. United States Nuclear Regul. Comm'n, 11 F.4th 719, 725 (9th Cir. 2021); Citizens for 18 Resp. & Ethics in Washington v. Fed. Election Comm'n (CREW), 711 F.3d 180, 182 (D.C. 19 Cir. 2013). The agency’s determination must include “the scope of the documents that the 20 agency will produce, as well as the scope of the documents that the agency plans to withhold 21 under any FOIA exemptions.” CREW, 711 F.3d at 186; accord Aguirre, 11 F.4th at 726 n.1 22 (citing to CREW as “delineating the requirements for a proper response”). Defendant appears to 23 concede that it missed its statutory deadline but argues that it eventually met its determination 24 obligations by informing Plaintiff of the results of its search efforts, the scope of exemptions 1 invoked in its initial productions, and its expectation that similar exemptions would be required 2 for future productions. Dkt. No. 17 at 9-11. Plaintiff argues that the information Defendant has 3 provided is not specific enough to communicate the scope of documents it will produce or 4 withhold, sufficient to meet its FOIA obligations. Dkt. No. 21 at 2-3. Although undeniably 5 untimely, the Court finds that Defendant has nonetheless met its obligation to provide a

6 substantive determination. 7 An agency’s substantive determination obligations are met once the requestor has “actual 8 notice” of the information required for a determination. Jud. Watch, Inc. v. U.S. Dep't of Just., 9 410 F. Supp. 3d 216, 224 (D.D.C. 2019). The record here indicates that the Parties worked 10 cooperatively, at least until Plaintiff decided to file this motion, to identify the universe of 11 documents that would be reviewed for responsiveness and exemption based on negotiated search 12 parameters and then to determine a production schedule based on the results of those searches. 13 Thus, Plaintiff was fully aware of the scope of records involved in its request. Further, having 14 produced a subset of those records upon which exemption determinations were made, Defendant

15 appears to have met its obligations as to the scope of potential exemptions contemplated in 16 CREW. See Cmty. Ass'n for Restoration of the Env't, Inc. v. U.S. E.P.A., 36 F. Supp. 3d 1039, 17 1049 (E.D. Wash. 2014) (finding that it was sufficient for the agency to inform the requestor that 18 it would apply similar exemptions to future productions as were applied to a subset of documents 19 previously produced). 20 The “penalty” for an agency missing its determination deadline “is that the agency cannot 21 rely on [FOIA’s] administrative exhaustion requirement to keep cases from getting into court.” 22 CREW, 711 F.3d at 189. GSA does not challenge Washington’s lawsuit on administrative 23 exhaustion grounds, but instead argues that Washington cannot receive its requested relief on 24 summary judgment due to the Agency’s untimely determination. Dkt. No. 17 at 10-11. On the 1 contrary, Washington argues that injunctive relief is appropriate where there is a demonstrated 2 pattern or practice of violations by the Agency and where the delay in providing a determination 3 is egregious. Dkt. No. 11 at 12; Dkt. No. 21 at 3. 4 1. Washington Fails to Raise an Actionable Pattern or Practice Claim 5 “[P]attern-or-practice claims are viable under FOIA” when adequately alleged. Aguirre,

6 11 F.4th at 728; see also Hajro v. U.S. Citizenship & Immigr. Servs., 811 F.3d 1086, 1107 (9th 7 Cir. 2016) (noting that “FOIA's prescribed relief is injunctive or declaratory, [so] generally a 8 plaintiff alleging a pattern or practice claim under FOIA must also meet th[e] future harm 9 requirement” to establish standing). Washington argues that it has adequately alleged a pattern or 10 practice claim that warrants injunctive relief. Dkt. No. 11 at 1-2. The Agency responds that no 11 such claim was raised in Washington’s Complaint, nor were sufficient facts alleged in the 12 Complaint to establish standing for a pattern or practice claim. Dkt. No. 17 at 10-11 n.3. 13 Washington counters by arguing that “it did include allegations regarding GSA’s prior FOIA 14 violations related to the same subject matter” in its Complaint. Dkt. No. 21 at 3. The only

15 allegations regarding its prior FOIA requests included in Washington’s Complaint are an oblique 16 reference to this being the second round of FOIA requests related to the Seattle National 17 Archives, Dkt. No. 1 at ¶ 1, and a footnote referencing the then still pending litigation stemming 18 from the first round of requests. Id. at 1 n.1. Even if these references were sufficient to imply a 19 pattern or practice claim was being raised, as Washington appears to argue, they are not 20 sufficient to meet the future harm requirement needed to establish standing for such a claim. Nor 21 may Washington amend its Complaint through briefing on summary judgment. 22 2. GSA’s Delay Was Not Egregious 23 Washington argues that the amount of time between its initial request and the Agency’s 24 initial production demonstrates an egregious delay. Dkt. No. 11 at 12-13. Washington relies 1 primarily on P.W. Arms, Inc. v. United States, which found that a 20-month delay before the 2 agency in question even initiated a search was sufficiently egregious to warrant injunctive relief. 3 P.W. Arms, Inc. v. United States, 2017 WL 319250, at *2 (W.D. Wash. Jan. 23, 2017). Similarly, 4 Washington points to Oregon Natural Desert Association v. Gutierrez, where the requestor was 5 left in the dark for eight months without a response from the agency. Oregon Nat. Desert Ass'n v.

6 Gutierrez, 409 F. Supp. 2d 1237, 1248 (D. Or. 2006). Even though length of delay was a 7 consideration in these cases, it was not the sole determinative factor in deciding that the 8 agencies’ actions constituted egregious delay. Unlike in P.W. Arms or Gutierrez, here the 9 Agency: (1) actively communicated with Washington about its efforts to identify the universe of 10 potentially responsive documents; (2) worked with Washington to ensure it was conducting the 11 appropriate searches; and (3) upon identifying the scope of potentially responsive documents, 12 cooperated with Washington to negotiate a review and production schedule. Dkt No. 11 at 7; 13 Dkt. No. 17 at 4-7. At no point was Washington left completely in the dark as to whether the 14 Agency would respond to its request. To the contrary, Washington was kept informed of the

15 Agency’s progress along the way. 16 While there is no doubt that the Agency failed to meet the statutory deadline for 17 providing a complete determination, its actions do not rise to the level of egregious delay as to 18 warrant injunctive relief. The appropriate “penalty” for the Agency’s delay is to relieve 19 Washington of FOIA’s administrative exhaustion requirement, but that is not at issue here. This 20 approach preserves the “[statutory] scheme [that] provides an incentive for agencies to move 21 quickly but recognizes that agencies may not always be able to adhere to the timelines that 22 trigger the exhaustion requirement.” CREW, 711 F.3d at 189. 23 Plaintiff is not entitled to its requested relief for Defendant’s untimely determination as a 24 matter of law. The Court therefore DENIES summary judgement on these grounds. 1 B. FOIA’s Prompt Production Requirement 2 Agencies are expected to make requested documents “promptly available” which 3 typically means “within days or a few weeks . . . not months or years.” CREW, 711 F.3d at 188; 4 see also Kinnucan v. Nat'l Sec. Agency, 2021 WL 6125809, at *9 (W.D. Wash. Dec. 28, 2021) 5 (same) (quoting CREW, 711 F.3d at 188). Here, more than six months elapsed before the Agency

6 was prepared to even begin producing documents and, even then, at a relatively constrained 7 pace. Dkt. No. 17 at 5-6. The Agency proposed rolling productions that would not be completed 8 until the end of November 2021—or nine months after receipt of the request—assuming 9 sufficiently prompt interagency cooperation on a significant subset of requested documents. Id. 10 That this kind of months long delay could result in summary judgement should be no surprise to 11 the Agency. See Public Buildings Reform Board, 2:20-cv-01364-RSL at Dkt. No. 18 (granting 12 summary judgment to the Plaintiff for the Agency’s failure to promptly produce documents in a 13 case involving similar parties, represented by the same counsel, regarding similar requests, under 14 similar circumstances). The Agency argues that its proposed production schedule meets its

15 prompt production obligation and that unusual circumstances warrants excusing the initial six- 16 month production delay. Dkt. No. 17 at 12-16. 17 The Parties appear to agree that such a delay is excusable if the Agency can show that the 18 delay was due to exceptional circumstances and that the Agency was nonetheless acting with due 19 diligence to complete the request. See 5 U.S.C. § 552(a)(6)(C). GSA relies on the fact that it has 20 experienced an increase in the volume of requests it has received since 2017 to demonstrate 21 exceptional circumstances. Dkt. No. 17 at 15. Despite acknowledging the steady increase in its 22 backlog for the prior four years, GSA admits that it only began investing resources to improve its 23 FOIA program “in recent months.” Dkt. No. 19 at ¶ 7. FOIA provides that “the term ‘exceptional 24 circumstances’ does not include a delay that results from a predictable agency workload of 1 requests under this section, unless the agency demonstrates reasonable progress in reducing its 2 backlog of pending requests.” 5 U.S.C. § 552(a)(6)(C)(ii). GSA fails to meet its burden of 3 demonstrating “reasonable progress in reducing its backlog” and, therefore, cannot establish the 4 delay was due to exceptional circumstances. For this reason, the Court need not decide whether 5 GSA was acting with due diligence, as its delay cannot be excused without a showing of

6 exceptional circumstances. 7 The Agency’s equitable arguments are now essentially moot. GSA spends much of its 8 opposition arguing that regardless of whether the Court finds that it has violated its FOIA 9 obligations, the Court should exercise its equitable discretion to deny Washington’s request for 10 injunctive relief in the form of expedited production. Dkt. No. 17 at 16-18. Essentially, GSA 11 argues that the balance of equities tilts in its favor because of the hardships an expedited 12 production schedule would cause to its process, likely negatively effecting the processing of 13 other requests, and because it would likely increase the risk of inadvertent disclosure of exempt 14 records. Id. The Court notes that at the time GSA prepared its opposition briefing, the Agency

15 was projecting being able to complete all productions by November 2021, barring any 16 unavoidable delay due to the need for interagency cooperation on certain requests. Id. at 4. Thus, 17 whatever the balance of equities may have been at the time, GSA has now had more than three 18 months beyond its own proposed deadline to complete the records request. Any argument against 19 Washington’s requested injunctive relief based on the balance of equities is no longer availing. 20 For these reasons, the Court GRANTS summary judgment for Washington due to GSA’s 21 failure to promptly produce requested records. As such, the Court ORDERS GSA to produce all 22 remaining non-exempt public records responsive to the state’s request within 21 days of the date 23 of this Order. 24 1 C. The Agency’s Redactions of Documents 2 An agency may withhold or redact records by invoking any of nine narrowly construed 3 statutory exceptions, 5 U.S.C. § 552(b), but the agency “bears the burden of demonstrating that 4 the exemption properly applies to the documents.” Elec. Frontier Found., 639 F.3d at 883 5 (internal quotations and citations omitted). Washington challenges some of the exemptions that

6 the Agency invoked in the limited production it had received at the time of filing its motion for 7 summary judgment, arguing that the Agency’s conclusory justifications are insufficient. 8 Specifically, Washington argues that the Agency failed to produce a Vaughn index, or the 9 equivalent, with its initial productions. Dkt. No. 11 at 21. GSA responds by noting that a Vaughn 10 index is typically the product of litigation and is not a requirement under the statute. Dkt. No. 17 11 at 19. While the Court generally agrees with the Agency on this point, the Court is nonetheless 12 concerned about Washington’s allegations regarding the lack of information provided by the 13 Agency to support its invocation of exemptions. That said, the Court recognizes that the Agency 14 had produced only a fraction of the documents involved in this litigation at the time Washington

15 filed its motion and does not intend to make exemption determinations on a piecemeal basis, as 16 that would be extremely inefficient. 17 Therefore, the Court DENIES as premature Washington’s challenges to the Agency’s 18 exemption claims in its limited production set. However, the Court notes that “counsel for GSA 19 suggested a Vaughn index prior to motions practice as way to potentially resolve any disputes 20 over FOIA Exemptions, after GSA had completed its production and the parties had a chance to 21 meet and confer.” Dkt. No. 17 at 19. In line with the Court’s order regarding expedited 22 completion of all remaining productions and GSA’s suggestion, the Court ORDERS GSA to 23 provide Washington with a complete and comprehensive Vaughn index within ten (10) days of 24 completing its production (or within ten (10) days of the date of this order, if the production has 1 already been completed). The Parties are further ORDERED to meet and confer regarding the 2 exemptions and to prepare a joint status report regarding the scope of any remaining exemption 3 issues and a proposed briefing schedule regarding unresolved exemption challenges by no later 4 than April 25, 2022. The Court anticipates the Parties will be able to narrow the scope of 5 remaining exemption challenges requiring Court intervention through this process.

6 D. Plaintiff’s Request for a Status Conference 7 The Court DENIES the request for a status conference as moot per this Order. The Parties 8 may request a status conference if warranted on alternate grounds. 9 IV. ORDER 10 Therefore, the Court GRANTS IN PART and DENIES IN PART Washington’s motion for 11 summary judgement (Dkt. No. 11) and DENIES Washington’s request for a status conference 12 (Dkt. No. 26). The Court further ORDERS that 13 1. GSA will produce to Washington all remaining non-exempt responsive records within 14 twenty-one (21) days of the date of this Order;

15 2. GSA will produce to Washington a complete and comprehensive Vaughn index within 16 ten (10) days of the completion of all remaining productions (or within ten (10) days of the date 17 of this Order if all productions have already been completed); 18 3. The Parties shall meet and confer to narrow the scope of any remaining exemption 19 challenges and shall prepare a joint status report and proposed dispositive motion briefing 20 schedule to be filed no later than April 25, 2022. 21 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 22 to any party appearing pro se at said party’s last known address. 23 24 1 Dated this 18th day of March 2022. 2 A 3 Tana Lin United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24