Judicial Watch, Inc. v. DHS, No. 16-5339 (D.C. Cir. 2018)
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The DC Circuit reversed the district court's judgment on the pleadings in an action brought by Judicial Watch under the Freedom of Information Act (FOIA), seeking records in response to nineteen travel-related FOIA requests submitted over a thirteen-month period. Judicial Watch alleged two counts: Count 1 alleged that the Secret Service violated FOIA by failing to conduct a search reasonably calculated to uncover all responsive records; and Count 2 alleged that the Secret Service has a policy and practice of violating FOIA's procedural requirements. Count 1 was dismissed as moot when the Secret Service agreed in its answer to produce the requested records.
The court held that in this circuit it is settled law that informal agency conduct resulting in long delays in making requested non-exempt records available may serve as the basis for a policy or practice claim. The court held that Judicial Watch alleged sufficient facts under Federal Rule of Civil Procedure 8(a)(2) and Supreme Court precedent to draw the reasonable inference that the Secret Service has adopted a practice of delay, contrary to FOIA's two-part scheme, by repeatedly standing mute over a prolonged period of time and using Judicial Watch's filing of a lawsuit as an organizing tool for setting its response priorities. The court remanded as to Count 2 so that the Secret Service will have the opportunity to explain its delays and to confirm how it intended to conform to FOIA's mandate in the future.
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