CREW v. Department of Education: Re: Susan Landry: 9/10/08 - DOE Motion to Dismiss

8/7/2019 CREW v. Department of Education: Re: Susan Landry: 9/10/08 - DOE Motion to Dismiss

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CITIZENS FOR RESPONSIBILITYAND ETHICS IN WASHINGTON,

))

)

Plaintiff, )

)

v. ) Civil Action No. 07-2055 (JDB)

)

U.S. DEPARTMENT OF EDUCATION, )

)

Defendant. )

)

DEFENDANTS MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

Pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure, Defendant, the United

States Department of Education, by and through undersigned counsel, hereby moves the Court for

summary judgment on Claim One, and to dismiss Claims Two and Three of the Complaint.

Summary judgment on Claim One is appropriate because Defendant has released all reasonably

segregable, nonexempt records that are responsive to Plaintiffs request under the Freedom of

Information Act, 5 U.S.C. 552. Dismissal of Claim 2 is appropriate because that claim is moot.

And dismissal of Claim 3 is appropriate because it fails to state a claim for which relief can be

granted, and, as a threshold matter, is not ripe and Plaintiff lacks standing to assert it. The grounds

for this motion are set forth at length in the accompanying memorandum of law.

Dated: September 10, 2008 Respectfully submitted,

GREGORY G. KATSAS

Assistant Attorney General

JEFFREY A. TAYLOR

United States Attorney

Case 1:07-cv-02055-JDB Document 13 Filed 09/10/2008 Page


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JOHN R. TYLER

Senior Trial Counsel

/s/ Eric Beckenhauer

ERIC B. BECKENHAUER

Cal. Bar No. 237526Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave. NW

Washington, DC 20530

Telephone: (202) 514-3338

Facsimile: (202) 616-8470

E-mail: [email protected]

Counsel for the U.S. Department of Education



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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CITIZENS FOR RESPONSIBILITYAND ETHICS IN WASHINGTON,

))

)

Plaintiff, )

)

v. ) Civil Action No. 07-2055 (JDB)

)

U.S. DEPARTMENT OF EDUCATION, )

)

Defendant. )

)

MEMORANDUM IN SUPPORT OF DEFENDANTS

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT



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ii

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Plaintiffs FOIA Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Response to Plaintiffs FOIA Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. This Action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON CLAIM ONE

OF THE COMPLAINT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Legal Standards for Summary Judgment in FOIA Cases.. . . . . . . . . . . . . . . . . . . . 7

B. Defendant Has Properly Withheld Materials Not Responsive to the Request.. . . . 9

1. Extraneous names in document headers. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. Portions of e-mail chains concerning matters unrelated to the

substance of Plaintiffs request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3. Internal Department communications, and communicationsbetween Department officials and other agencies or branches

of government, which were not identified in Plaintiffs request. . . . . . . . 12

C. Defendant Has Properly Withheld Materials Under Exemption 5,

The Deliberative Process Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Comments on draft congressional testimony. . . . . . . . . . . . . . . . . . . . . . . 15

2. Initial proposals for vetting a potential witness at a congressional

hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3. Preparations for conferences on early childhood education.. . . . . . . . . . . 17

4. Discussion of potential policy initiatives prompted by newspaper

articles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21



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II. CLAIM THREE OF THE COMPLAINT SHOULD BE DISMISSED.. . . . . . . . . . . . . . 22

A. Because Plaintiff fails to establish that the Departments purported

pattern and practice of FOIA noncompliance is likely to cause it future

injury, it lacks standing to sue for prospective relief. . . . . . . . . . . . . . . . . . . . . . . 24

B. Because Plaintiff fails to demonstrate that the alleged practice has

sufficiently crystallized, or that it would be harmed if review were

delayed, Claim Three is not ripe for review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

C. Plaintiff Fails to State a Policy or Practice Claim Under the FOIA.. . . . . . . . . . . 35

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF SERVICE



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INTRODUCTION

This action arises out of a Freedom of Information Act (FOIA) request that Plaintiff,

Citizens for Responsibility and Ethics in Washington (CREW), submitted to Defendant, the United

States Department of Education (the Department), on May 11, 2007. Plaintiffs request sought

any and all Department communications with officials in the Executive Office of the President,

the White House, and the Office of the First Lady, regarding Dr. Susan Landry, an expert in early

childhood education, and several other educational institutions and products. The request also

sought any and all Department communications with any employee of those various institutions,

regardless of topic, and included a request for a public interest fee waiver.

Initial negotiations over the scope of Plaintiffs request faltered when Plaintiff neglected to

respond to a letter from the Department requesting clarifying information and, accordingly, the

Department denied the request. This action followed. After negotiations resumed, the parties

stipulated to the scope of the search for responsive documents, the Department granted Plaintiff a

fee waiver for the agreed-upon search, and the Department conducted that search and produced

responsive, nonexempt records. The parties have since stipulated that the only remaining issues in

this case are (1) whether the Department properly withheld material as nonresponsive to Plaintiffs

request or as exempt from disclosure pursuant to FOIA Exemption 5; and (2) whether the

Department has engaged in a pattern and practice of failing to properly respond to Plaintiffs FOIA

requests and requests for fee waivers.

As amply demonstrated below, and by the detailed declaration and Vaughn index submitted

herewith, Defendants Exemption 5 withholdings are sound, and all reasonably segregable,

nonexempt information that is responsive to Plaintiffs request has been released. Moreover,

Plaintiff fails to state a pattern and practice claim, and, as a threshold matter, that claim is not ripe



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and Plaintiff lacks standing to assert it. Accordingly, Defendant is entitled to summary judgment

on Claim One of the Complaint, and Claims Two and Three should be dismissed.

BACKGROUND

A. Plaintiffs FOIA Request

On May 11, 2007, Plaintiff submitted a FOIA request seeking any and all communications

from January 21, 2001, to the present between officials at the Department of Education and officials

at (1) the Executive Office of the President, (2) the White House Office, and (3) the Office of the

First Lady, regarding any and all of the following six items:

(a) Susan Landry or Susan Landry Moore;

(b) University of Texas Health Science Center at Houstons

Childrens Learning Institute;

(c) University of Texas Health Science Center at Houstons Center

for Improving the Readiness of Children for Learning and Education

(CIRCLE);

(d) Texas State Center for Childhood Development (SCECD);

(e) Texas Early Education Model (TEEM); and/or

(f) Wireless Generations mCLASS:CIRCLE software.

Compl. Ex. 1 at 1. Plaintiffs request did not identify any particular Department of Education

program, nor did it name any of the officials whose communications were sought. See id.

Plaintiffs request also sought any and all communications from January 21, 2001, to the

present, regardless of topic, between officials at the Department of Education and

(a) Susan Landry or Susan Landry Moore;

(b) Officials or employees at the University of Texas Health Science

Center at Houstons Childrens Learning Institute (CLI);

(c) Officials or employees at the University of Texas Health Science



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Center at Houstons Center for Improving the Readiness of Children

for Learning and Education (CIRCLE);

(d) Officials or employees at the Texas State Center for Childhood

Development (SCECD); and/or

(e) Officials or employees at Wireless Generation.

Id. at 1-2. Again, Plaintiff identified no particular Department of Education program, nor any

employee of the Department or of the various other institutions whose communications were

sought. See id. Plaintiff also requested that the Department waive the fees associated with the

production of any records responsive to its request. Id. at 3. The Department received Plaintiffs

request on May 15, 2007, and assigned it Request No. 07-00655-F. Compl. Ex. 2 at 1.

B. Response to Plaintiffs FOIA Request

The Department of Education initially declined to process Plaintiffs FOIA request on the

ground that it did not reasonably describe the documents sought. In a letter dated June 20, 2007, the

Department explained that because Plaintiffs request sought any and all communications between

various officials without identifying specific individuals or any subject(s), it encompasse[d] a

potentially large volume of information on broad topics related to anyone in the Department and

anyone at certain outside organizations. Id. at 1-2. Accordingly, the Department concluded that

[the] request as stated does not describe the records sought with a reasonable amount of detail such

that a Department employee would be able to locate potentially responsive documents with a

reasonable amount of effort. Id. at 2. The Department indicated, however, that it might reconsider

its decision if Plaintiff submitted supplemental or clarifying information. Id. at 3. In the same letter,

the Department denied Plaintiffs request for a fee waiver. Id.



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Plaintiff asserts in the Complaint that it did not receive the Departments August 23 letter.1

Compl. 23. However, the record establishes that that letter was indeed sent. See Goodridge Decl.

10 (Department staff placed this letter in the bin for outgoing U.S. Mail in the RIMS office on

August 23, 2007. That bin is emptied nightly by a Department mail room clerk, and its contents are

transmitted to the U.S. Postal Service for delivery. This is the routine procedure and standard

practice for all RIMS correspondence sent by U.S. Mail. A signed copy of the final version of this

4

By letter dated July 11, 2007, Plaintiff responded to the Department of Educations invitation

to provide additional information. Compl. Ex. 3. Plaintiffs response disputed the Departments

conclusion that its request did not reasonably describe the records sought. In Plaintiffs view, there

was no ambiguity about the targeted records: all Education communications with three White

House offices on six specified topics and all Education communications with Dr. Landry and four

associated organizations, regardless of subject. Id. at 2. Plaintiffs response provided no clarifying

information. Plaintiff did, however, indicate a willingness to narrow its request if the Department

were to provide information regarding the existence and likely location of the records sought. Id.

at 3.

The Department responded to Plaintiffs July 11 letter, which it construed as an appeal, by

letter dated August 23, 2007. Answer Ex. A. The Department explained that Plaintiffs FOIA

request potentially implicated several Department of Education programs, and asked Plaintiff to

specify the particular programs and officials whose records were sought to enable the Department

to focus its search. Id. at 1. The Department identified two programs Reading First and Early

Reading First as the programs most likely implicated by Plaintiffs request. Id. However, it

explained that it would be unable to process [the] request further until Plaintiff specified the

Department officials whose communications [were] sought or identified a specific program or

specific subject matter focus for the Departments search for responsive records. Id. at 1-2.

Plaintiff did not respond to the Departments August 23 letter. See Compl. Ex. 5 at 4. As1



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letter was retained in RIMS files.). Cf. CREW v. Dept of Interior, 503 F. Supp. 2d 88, 103

(D.D.C. 2007) (The Court agrees with the defendant that the sworn declarations by the [agency]

employees who were involved in the process of sending the letter provides sufficient evidentiary

support for its position that the letter was signed and sent.).

5

a result, on October 22, 2007, the Department denied Plaintiffs FOIA appeal. Id. At the same time,

the Department explained that Plaintiffs fee waiver request, which Plaintiff had separately appealed,

see Compl. Ex. 4, was therefore moot. Compl. Ex. 5 at 2. This action followed.

C. This Action

On November 14, 2007, Plaintiff filed a Complaint asserting three claims. First, Plaintiff

alleged that the Department of Education violated the FOIA by failing to produce records in response

to Request No. 07-00655-F. See Compl. 30-34. Second, Plaintiff alleged that the Department

violated the FOIA by denying Plaintiffs request for a fee waiver in connection with Request No.

07-00655-F. See Compl. 35-37. Third, Plaintiff alleged that the Department violated the FOIA

by engaging in a pattern and practice of failing to properly respond to Plaintiffs FOIA requests and

requests for fee waivers. See Compl. 38-41.

During subsequent negotiations, the parties agreed that the Department of Education would

attempt to locate records responsive to Plaintiffs request, if any, by performing the following search:

Defendant will search the records of relevant personnel in the Office

of the Secretary (OS), the Office of the Deputy Secretary (ODS),the Early Reading First and Early Childhood Educator Professional

Development programs within the Office of Elementary and

Secondary Education (OESE), and the Fund for Improvement in

Education within the Office of Innovation and Improvement (OII)

which are the departmental offices with staff members responsible

for implementation of the No Child Left Behind Act generally and/or

the above-specified programs for records from January 20, 2001,

to the present that contain the e-mail suffix eop.gov and the

following terms:

a. Susan Landry or Susan Landry Moore or



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In view of this stipulation, Claim Two is not addressed further in this memorandum, and2

it should be dismissed as moot. See Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006).

6

b. Childrens Learning Institute or CLI or

c. Center for Improving the Readiness of Children for Learning and

Education or CIRCLE or

d. Texas State Center for Childhood Development or SCECD or

e. Texas Early Education Model or TEEM or

f. mCLASS

Joint Status Report (Apr. 2, 2008) 3 [Dkt. #9]. The parties agreed that this search represents the

full scope of Plaintiffs request, id. 4, and that, for the sole purpose of resolving this action, the

[Department] will grant Plaintiff a public interest fee waiver for this search, id. 5.

The Department produced responsive, nonexempt records to Plaintiff on June 16, 2008.

Joint Status Report (July 14, 2008) 3 [Dkt. #11]. Of the 78 pages of records produced, 52 pages

were released in full and 26 pages were withheld in whole or in part.

Following production, the Court stayed proceedings to allow the parties to attempt to narrow

the issues remaining for the Courts resolution. See Order of July 14, 2008. The parties have

stipulated as follows:

Claim 1 (Failure to Produce Records). Plaintiff challenges

Defendants redaction of certain records as nonresponsive or as

exempt from disclosure pursuant to 5 U.S.C. 552(b)(5), but

otherwise does not dispute that Defendant has met its FOIA

obligations with respect to Request No. 07-00655-F.

Claim 2 (Improper Denial of Fee Waiver). The parties agree that

Claim 2 is moot.[2]

Claim 3 (Pattern and Practice). This claim remains pending.

Joint Status Report (Aug. 4, 2008) 4 [Dkt. #12].



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ARGUMENT

I. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON CLAIM ONE OF

THE COMPLAINT

A. Legal Standards for Summary Judgment in FOIA Cases

Most FOIA cases are properly resolved through summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993)

(Generally, FOIA cases should be handled on motions for summary judgment, once the documents

in issue are properly identified.). Summary judgment should be freely granted where, as in this

case, there are no material facts at issue and the agency is entitled to judgment as a matter of law.

See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314-15 (D.C. Cir. 1988).

The FOIA requires agencies to release documents responsive to a properly submitted request,

except for those documents (or portions of documents) subject to any of nine statutory exemptions

to the general disclosure obligation. See 5 U.S.C. 552(a)(3), (b)(1)-(b)(9). In discharging this

obligation, an agency must conduct a reasonable search for responsive documents, and, in

withholding a document (or portions thereof) on the basis of one of the statutory exemptions, must

release those portions of the document containing reasonably segregable non-exempt material.

5 U.S.C. 552(b). A court reviews an agencys response to a FOIA request de novo. See 5 U.S.C.

552(a)(4)(B). The government bears the burden of justifying its withholdings under one or more

of the FOIAs nine exemptions. See Johnson v. Exec. Office for U.S. Attys, 310 F.3d 771, 774

(D.C. Cir. 2002).

The government may satisfy this burden through submission of an agency declaration and/or

index, describing the withheld material with reasonable specificity, explaining the reasons for non-

disclosure, and demonstrating with reasonable specificity that reasonably segregable material has



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been released. See U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 753 (1989). Given the unique nature of FOIA cases, an agency declaration is accorded

substantial weight. See Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982). Ultimately, an

agencys justification for invoking a FOIA exemption is sufficient if it appears logical or

plausible. Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007). Thus, an agency should prevail

upon a motion for summary judgment if the declaration submitted is clear, specific, reasonably

detailed, and describes the withheld information in a factual and nonconclusory manner. See Miller

v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984); Hemenway v. Hughes, 601 F. Supp. 1002, 1004

(D.D.C. 1985) (recognizing that, in FOIA cases, summary judgment hinges not on the existence of

genuine issue of material fact but rather on the sufficiency of agency affidavits).

As noted earlier, the only remaining issues with respect to Claim One are whether the

Department properly withheld material as nonresponsive to Plaintiffs request or as exempt from

disclosure pursuant to FOIA Exemption 5. Descriptions of the withheld materials, as well as the

factual predicates for the withholdings, are set out in detail in the declaration of Marcella Goodridge,

annexed hereto as Exhibit 1. In addition, the Vaughn index (Index), annexed to the Goodridge

Declaration as Exhibit A, provides more individualized descriptions and explanations of the

withholdings. Finally, to the extent that material was released in part, additional information about

the withheld materials can be gleaned from the redacted versions of the documents themselves,

which are attached to the Goodridge Declaration as Exhibit B. As explained below, and as amply

demonstrated in these supporting documents, the Departments withholdings are sound, and it has

released all reasonably segregable, nonexempt information that is responsive to Plaintiffs request.

Accordingly, the Court should enter summary judgment for Defendant on Claim One.



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B. Defendant Has Properly Withheld Materials Not Responsive to the Request

Although an agency is required to construe a FOIA request liberally, see Nation Magazine

v. U.S. Customs Service, 71 F.3d 885, 890 (1995), it is obligated to release only those records that

a particular request reasonably describes, 5 U.S.C. 552(a)(3). See also LaCedra v. Exec. Office

for U.S. Attys, 317 F.3d 345, 348 (2003). In deciding whether an agency has improperly withheld

records responsive to a FOIA request, a reviewing court must determine whether the agencys

interpretation of the scope of that request is reasonable. See LaCedra, 317 F.3d at 346, 348. In this

case, the material withheld as nonresponsive to Plaintiffs request falls into three categories: (1)

extraneous names in document headers; (2) portions of e-mail chains concerning matters unrelated

to the substance of Plaintiffs request; and (3) internal Department communications, and

communications between Department officials and other agencies or branches of government, which

were not identified in Plaintiffs request.

1. Extraneous names in document headers

On 12 of the 78 pages released to Plaintiff, an extraneous name was redacted from the

document header. See Goodridge Decl. 18; Index # 28. Each such record was retrieved from the

archived electronic files of former Department employees that were opened and printed from the

computer terminal of a current employee. Goodridge Decl. 18. This process added to the

document header the name of the current employee whose terminal was used to print the record.

Id. This current employee neither sent nor received the original, archived e-mail messages. Id.

Moreover, these redactions did not alter or obscure the information in the original records, which

were otherwise released, subject to applicable exemptions. Id. Because the current employees

name is incidental and irrelevant to the records sought, and, indeed, was added to those records only

as a consequence of their retrieval and printing from electronic archives, it was reasonable for the



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Department to consider those names nonresponsive, and, accordingly, to redact them. See LaCedra,

317 F.3d at 345, 348.

2. Portions of e-mail chains concerning matters unrelated to the substance

of Plaintiffs request

On 3 pages, the Department redacted information concerning matters such as lunch or dinner

plans, or transportation and lodging options, that it determined to be unrelated to the substance of

Plaintiffs request. See Goodridge Decl. 19; Index ## 6-8, 11, 22-23. Such information was

typically part of a chain of e-mails that, while at some point containing responsive material,

ultimately touched upon unrelated subjects. Goodridge Decl. 19.

As explained in the Goodridge Declaration, searches for electronic documents responsive

to a FOIA request commonly yield a large volume of extended e-mail chains that address several,

often unrelated, sometimes private, topics before concluding. Id. Processing such voluminous

electronic records to determine which contain material that is exempt from disclosure under the

FOIA can be laborious, often requiring several layers of review, depending on the particular FOIA

exemption(s) that may be applicable. Id. This significantly increases not only the burden, but also

the cost, to the Department of responding to any particular FOIA request. Id. Thus, when the

contents of an e-mail appear to be unrelated to the subject matter of the request, withholding such

information as nonresponsive both reduces the processing burden on the Department and allows it

to respond to requests more expeditiously. Id.

Here, the Department reasonably concluded that the subject-matter focus of Plaintiffs

request was the No Child Left Behind Act, the Reading First program, the Early Childhood

Educator Professional Development program, [and] the Fund for Improvement in Education, based

on the parties agreement to limit the scope of the search to the Department offices and personnel



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responsible for those programs. Id. Indeed, the record establishes that, before that agreement was

reached, Plaintiff had repeatedly declined the Departments requests to clarify the subject-matter

scope of the request. For example, the Departments initial response to Plaintiffs request explained

that, because the request sought any and all communications of various officials without

identifying specific individuals or any subject(s), it encompasse[d] a potentially large volume of

information on broad topics related to anyone in the Department and anyone at certain outside

organizations that could not be processed with a reasonable amount of effort. Compl. Ex. 2 at

1-2. Cf. Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (request for any and all documents

relating to a particular subject does not describe the records sought with reasonably sufficient

detail in light of both statutory guidance and case law). Although the Department indicated that

it might reconsider its decision if Plaintiff submitted supplemental or clarifying information, id. at

3, Plaintiffs response asserted that there was no ambiguity about the targeted records and provided

no additional information, Compl. Ex. 3 at 2.

The Departments next letter to Plaintiff again explained that the request potentially

implicated several Department of Education programs, and asked Plaintiff to specify the particular

programs and officials whose records were sought to enable the Department to focus its search.

Answer Ex. A at 1. The Department also identified two programs Reading First and Early

Reading First as the programs most likely implicated by Plaintiffs request, but explained that it

would be unable to process [the] request further until Plaintiff specified the Department officials

whose communications [were] sought or identified a specific program or specific subject matter

focus for the Departments search for responsive records. Id. at 1-2. Plaintiff did not respond to

this letter. See Compl. Ex. 5 at 4. In view of Plaintiffs reticence, it was certainly reasonable for the

Department to conclude, based on the parties agreement during the course of litigation to limit the



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search to the offices responsible for implementing the No Child Left Behind Act, the Reading First

program, the Early Childhood Educator Professional Development program, and the Fund for

Improvement in Education, that those programs were the focus of the request. Cf., e.g., Dettmann

v. U.S. Dept of Justice, 802 F.2d 1472, 1475-76 (D.C. Cir. 1986) (evaluating agencys interpretation

of the scope of a dragnet request for all documents in the context of its communications with

requester, and approving of its sensible approach in coping with the increasing demands of FOIA

requests).

Ultimately, the e-mails withheld in this category contained no substantive discussion of the

No Child Left Behind Act, the Reading First program, the Early Childhood Educator Professional

Development program, or the Fund for Improvement in Education. Goodridge Decl. 19. Indeed,

they contained no substantive discussion of any Departmental or governmental program. Id.

Thus, the Department sensibly, and reasonably, determined that these e-mails fell outside the scope

of Plaintiffs request, and properly withheld them as nonresponsive. See LaCedra, 317 F.3d at 345,

348; Dettman, 802 F.2d at 1476. Cf. Reporters Committee, 489 U.S. at 775 (core purpose of the

FOIA is to contribut[e] significantly to public understanding of the operations or activities of the

government) (quoting the public interest fee waiver statute, 5 U. S. C. 552(a)(4)(A)(iii)).

3. Internal Department communications, and communications between

Department officials and other agencies or branches of government,

which were not identified in Plaintiffs request

On 15 pages, communications internal to the Department, and communications between

Department officials and employees of other Executive agencies or branches of government, are

withheld as nonresponsive to Plaintiffs request. See Goodridge Decl. 20; Index ## 1-2, 9-10, 12,

19-21. Plaintiffs request sought only communications . . . between Department of Education

officials and those at the (1) Executive Office of the President, (2) White House Office, and (3)



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Although a number of such communications were originally released in redacted form under3

Exemption 5, the Department determined, in the course of preparing for summary judgment, that

these e-mails are actually not responsive to the request, and they are additionally withheld on that

basis. Goodridge Decl. 20.

13

Office of the First Lady and certain nonfederal entities. Compl. Ex. 1 at 1-2. Thus, internal

Department communications, and communications between Department officials and other

Executive agencies (for example, the Department of Health and Human Services, which includes the

National Institutes of Health), and, in one instance, Congress are plainly not responsive to

Plaintiffs request. Goodridge Decl. 20. Accordingly, e-mails in this category are properly3

withheld as nonresponsive. See Kowalczyk v. Dept of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996)

(agency not obliged to look beyond the four corners of the request in search for responsive

documents); Mogenhan v. Dept of Homeland Sec., No. 06-2045, 2007 WL 2007502, at *3 (D.D.C.

July 10, 2007) (agency acted properly by limiting the scope of responsive records to the four

corners of the request) (citation omitted).

C. Defendant Has Properly Withheld Materials Under Exemption 5, The

Deliberative Process Privilege

Exemption 5 exempts from mandatory disclosure inter-agency or intra-agency

memorandums or letters which would not be available by law to a party . . . in litigation with the

agency. 5 U.S.C. 552(b)(5). In particular, it exempt[s] those documents . . . [that are] normally

privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149

(1975). Exemption 5 incorporates the common law and executive privileges, including the

deliberative process privilege, the attorney-client privilege, and the work product doctrine. In this

case, Defendant has withheld materials, in whole and in part, under Exemption 5 because they are

protected under the deliberative process privilege.



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Documents covered by the deliberative process privilege and therefore exempt from release

include those reflecting advisory opinions, recommendations and deliberations comprising part of

a process by which governmental decisions and policies are formulated. NLRB, 421 U.S. at 150.

As the Supreme Court has explained:

The deliberative process privilege rests on the obvious realization

that officials will not communicate candidly among themselves if

each remark is a potential item of discovery and front page news,

and its object is to enhance the quality of agency decisions by

protecting open and frank discussion among those who make them

within the Government.

Dept of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 9-10 (2001) (internal

quotation marks and citations omitted). [E]fficiency of Government would be greatly hampered

if, with respect to legal and policy matters, all Government agencies were prematurely forced to

operate in a fishbowl. EPA v. Mink, 410 U.S. 73, 87 (1973) (abrogated by statute on other

grounds, Pub. L. No. 93-502, 88 Stat. 1561 (1974)).

In deciding whether a document should be protected by the privilege [courts] look to

whether the document is predecisional [ ] whether it was generated before the adoption of an

agency policy [ ] and whether the document is deliberative [ ] whether it reflects the give-and-

take of the consultative process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980). To establish that the document is predecisional, the agency need not point to an

agency final decision, but merely establish what deliberative process is involved, and the role that

the documents at issue played in that process. Judicial Watch v. Export-Import Bank, 108 F. Supp.

2d 19, 35 (D.D.C. 2000) (citing Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1223 (D.C. Cir. 1989)).

In addition, [t]here should be considerable deference to the [agencys] judgment as to what

constitutes . . . part of the agency give-and-take of the deliberative process by which the



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This is also a purely intra-Department e-mail and, for that reason, is also withheld as4

nonresponsive as explained supra in Part I.B.3.

15

decision itself is made. Chemical Mfrs. Assn v. Consumer Prod. Safety Commn, 600 F. Supp.

114, 118 (D.D.C. 1984) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). The

agency is best situated to know what confidentiality is needed to prevent injury to the quality of

agency decisions. Id. at 118 (quoting NLRB, 421 U.S. at 151). In this case, the Department has

identified four general categories of records that are protected under the deliberative process

privilege and therefore are properly withheld on the basis of FOIA Exemption 5: (1) comments on

draft congressional testimony; (2) initial proposals for vetting a potential witness at a congressional

hearing; (3) preparations for conferences on early childhood education; and (4) discussion of

potential policy initiatives prompted by newspaper articles. Goodridge Decl. 22. Each category

of materials, and the corresponding basis for protection under the deliberative process privilege, are

discussed below.

1. Comments on draft congressional testimony

This category of documents consists of a single, one-sentence e-mail, redacted only in part,

that reflects the authors role in drafting and arriving at the final version of the congressional

testimony presented by Dr. G. Reid Lyon of the National Institutes of Health (NIH) to the Senate

Committee on Health, Education, Labor, and Pensions on July 22, 2003. Goodridge Decl. 23; see

Index # 1. The final version of this testimony was released in full. Goodridge Decl. 23; see id.,4

Attach. B, Bates Nos. 1-14.

This e-mail is protected under the deliberative process privilege because both draft material

and the drafting process itself are inherently predecisional and deliberative. See, e.g., Exxon Corp.

v. Dep t of Energy, 585 F. Supp. 690, 697 (D.D.C. 1983) ([d]raft documents by their very nature,



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are typically predecisional and deliberative); Dudman Comms. Corp. v. Dept of Air Force, 815

F.2d 1565, 1569 (D.C. Cir. 1987) (disclosure of decisions to insert or delete material or to change

a drafts focus or emphasis would stifle the creative thinking and candid exchange of ideas

necessary to produce good historical work). Disclosure of such materials would expose individual

employees contributions to the drafting process to public scrutiny, which would likely inhibit

deliberations, and, ultimately, threaten the quality of recommendations made within the Department

and to collaborating Executive branch agencies. Goodridge Decl. 24; see, e.g., Russell v. Dept

of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (recognizing that disclosure of draft manuscript

could stifle candor in the drafting process and lead to confusion of the public); Marzen v. HHS, 825

F.2d 1148, 1155 (7th Cir. 1987) (Exemption 5 protects not only the opinions, comments and

recommendations in the draft, but also the process itself). Thus, the Department properly withheld

this e-mail in part as protected by the deliberative process privilege.

2. Initial proposals for vetting a potential witness at a congressional

hearing

This category consists of two overlapping e-mail chains, redacted in part, that reflect the

Executive branchs initial proposals for vetting Dwayne Crompton, a potential witness at a

congressional hearing on the Head Start program, and preliminary feedback regarding his

suitability. Goodridge Decl. 26; see Index ## 3-5. These e-mail chains were prompted by an

inquiry from a staff member in the House of Representatives to an official in the Departments

Office of the Secretary, requesting input from the Executive branch regarding Mr. Cromptons

suitability as a potential witness. Goodridge Decl. 26; see Index # 2.

These e-mail chains are protected by the deliberative process privilege. The discussions they

contain are predecisional, as they reflect the Executive branchs initial proposals for vetting Mr.



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Crompton and preliminary feedback regarding his suitability, which were gathered in the process of

formulating a response to the House staffers inquiry. Goodridge Decl. 27; see Gutman v. U.S.

Dept of Justice, 238 F. Supp. 2d 284, 292 (D.D.C. 2003) (predecisional documents are those

antecedent to the adoption of agency policy). They are also deliberative, because they contain the

sort of preliminary ideas, requests for assistance and advice, initial impressions, and non-final

assessments that reflect the give-and-take of the consultative process. Goodridge Decl. 27. Such

e-mail communications reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which government decisions and policies are formulated fall

squarely within the scope of the deliberative process privilege. Gutman, 238 F. Supp. 2d at 292-93;

see also Natl Wildlife Fed. v. U.S. Forest Service, 861 F.2d 1114, 1121 (9th Cir. 1988)

(Recommendations on how to best deal with a particular issue are themselves the essence of the

deliberative process.); Hamilton Sec. Group v. Dept of Housing & Urban Dev., 106 F. Supp. 2d

23, 31 (D.D.C. 2000) (deliberative documents include recommendations, draft documents,

proposals, suggestions, and other subjective documents which reflect the personal opinion of the

writer rather than the policy of the agency). Thus, the Department properly withheld these two e-

mail chains in part as protected by the deliberative process privilege.

3. Preparations for conferences on early childhood education

This category of documents consists of several chains of e-mail that reflect preparations for

two conferences on early childhood education. Goodridge Decl. 29. As is evident from the

records released in full and the unredacted portions of the records released in part, the first of these

conferences, called the Early Childhood Education Retreat, took place in the Riggs Library at

Georgetown University on January 31 and February 1, 2002. Id.; see id., Attach. B, Bates No. 49.

The planning of this conference was a collaborative effort among various officials in the



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Index # 10 is also withheld as nonresponsive as explained supra in Part I.B.35

18

Department of Education, the Department of Health and Human Services, and the White House.

Id.

The e-mail chains concerning preparations for the Early Childhood Education Retreat are

protected by the deliberative process privilege. Two such e-mail chains deal with preliminary

matters such as suggestions and deliberations about potential dates and venues for, and invitees to,

the conference. Goodridge Decl. 30; see Index ## 10, 13-16. One of these includes a frank5

discussion of the relative qualifications of potential experts in the field of early childhood education

who might be invited to participate in the conference, as well as recommendations for proposed

content and cost minimization. See Index ## 13-16. These discussions are by definition

predecisional, as they reflect debate about impending decisions. Goodridge Decl. 30; see Quarles

v. Dept of Navy, 893 F.2d 390, 392 (D.C. Cir. 1990) (materials are predecisional when prepared

in order to assist in arriving at . . . decisions). They too are deliberative, as they reflect the

preliminary ideas, suggestions, and recommendations that characterize the give-and-take of the

decisionmaking process. Goodridge Decl. 30; Hamilton Securities, 106 F. Supp. 2d at 31.

Disclosure of such materials would impede the frank and candid exchange of ideas and information

within the Department and among cooperating agencies, reveal the reasoning and recommendations

of Executive branch officials, and ultimately have a chilling effect on intra- and inter-agency

communications. Goodridge Decl. 30. Thus, the Department properly withheld these two e-mail

chains in part as protected by the deliberative process privilege.

A third chain of e-mails concerning the Early Childhood Education Retreat is likewise

protected by the deliberative process privilege. This chain centers on a draft set of materials that



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This e-mail chain is also withheld as nonresponsive as explained supra in Part I.B.3.6

19

their author, Dr. G. Reid Lyon of the NIH, proposed for use at the conference. Goodridge Decl.

31; see Index at 21. Dr. Lyon circulated these draft materials for review and comment from6

various officials in the Department of Education, the Department of Health and Human Services, and

the White House, as well as Dr. Susan Landry at the University of Texas Health Science Center at

Houston, an expert on early childhood education and invitee to the conference, whom officials at the

Department (and other agencies) sometimes consulted for advice on scientific developments and

recent research. Goodridge Decl. 31 (citation omitted); see CREW v. U.S. Dept of Homeland

Sec., 514 F. Supp. 2d 36, 44 (D.D.C. 2007) (agencys solicitation of opinions and recommendations

from outside consultants considered intra-agency for FOIA purposes). As established above,

both draft material and the drafting process itself are inherently predecisional and deliberative. See

supra Part I.C.1. If officials in the Executive branch believed that the drafting process and their

contributions to that process were open to public scrutiny, they would likely be less candid and frank

about their suggestions and edits, and consequently, the speed and quality of the drafting process,

and the final product, would suffer. Goodridge Decl. 32. Thus, the Department properly withheld

this e-mail chain as protected by the deliberative process privilege.

The second conference on early childhood education, the Ready to Read, Ready to Learn

summit, took place in Florida on October 1, 2002, according to the records released in full and the

unredacted portions of the records released in part. Goodridge Decl. 33; see id., Attach. B, Bates

Nos. 57-58. This conference was part of First Lady Laura Bushs national Ready to Read, Ready

to Learn initiative, which featured a series of nationwide educational summits based on the content

developed for the earlier conference at Georgetown University. Goodridge Decl. 33; Index # 18.



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In planning these conferences, White House officials often consulted with state officials to identify

key local experts on early childhood education who might be invited to participate. Goodridge

Decl. 33. In the months leading up to the Florida conference, federal officials worked closely with

state officials (in the governor's office and in the Florida Department of Education) to develop a

program that would achieve national priorities and accommodate local interests, while working

toward the common goal of improving early childhood education. Id.

The redacted material in the single e-mail chain concerning this conference is likewise

protected by the deliberative process privilege. That e-mail chain contains suggested changes to

a draft of the agenda for the conference, including proposed speakers and topics, and an evaluation

of the progress of the preparations for the event. Id. (citation omitted); see Index ## 17-18. Again,

draft material and the drafting process itself are inherently predecisional and deliberative. See supra

Part I.C.1. Likewise, preliminary evaluations of the progress of ongoing preparations are

predecisional because they predate and relate to decisions that have not yet been finalized, and are

deliberative because they reflect the opinions and analysis of their author rather than the position

of the agency. Goodridge Decl. 34; see Hamilton Securities, 106 F. Supp. 2d at 31. Release of

these deliberative materials would inhibit the frank and candid exchange of ideas and information,

reveal the reasoning and recommendations of Executive branch officials, and ultimately have a

chilling effect on inter-agency communications, as well as on federal efforts to consult with state

government officials to achieve common policy goals. Goodridge Decl. 34; see CREW v. U.S.

Dept of Homeland Sec., 514 F. Supp. 2d at 44-45 (communication with state agency officials

acting in a consulting capacity does not vitiate intra-agency nature of deliberations). Thus, the

Department properly withheld this e-mail chain as protected by the deliberative process privilege.



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4. Discussion of potential policy initiatives prompted by newspaper articles

The final category of documents is a redacted chain of e-mails discussing whether and

how the federal government could support local government efforts to improve the standardized

test scores of public school students in the District of Columbia. Goodridge Decl. 35; see Index

## 24-26. This discussion was prompted by a newspaper article, which was disclosed in full.

Goodridge Decl. 35; see id., Attach. B, Bates Nos. 71-72. Moreover, this discussion arose in the

context of larger policy deliberations regarding the role of the federal government in improving

student achievement and the usefulness of standardized test scores in setting goals and measuring

progress on that front, Goodridge Decl. 35.

This e-mail chain is protected by the deliberative process privilege. The redacted discussion

is predecisional because it took place during the course of an ongoing policy discussion about the

federal governments potential role in assisting local government in meeting educational goals. Id.

36. Although this discussion may not have resulted in a final decision, it nevertheless

constitutes part of the Executive branchs predecisional deliberations. Id.; see Judicial Watch v.

Export-Import Bank, 108 F. Supp. 2d 19, 35 (D.D.C. 2000) (To establish that the document is

predecisional, the agency need not point to an agency final decision, but merely establish what

deliberative process is involved, and the role that the documents at issue played in that process.)

(citing Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1223 (D.C. Cir. 1989)). The redacted e-mails

are deliberative because they reflect the give-and-take of a consultative process, and include a

preliminary discussion of ideas and options for federal assistance to local government. Goodridge

Decl. 36. Such online conversations in which agency staff [are] deciding what action, if any,

[the agency] should take in response to a media article are quintessentially deliberative. CREW v.

U.S. Dept of Labor, 478 F. Supp. 2d 77, 83 (D.D.C. 2007). Moreover, were discussions regarding



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22

the possibility of federal assistance subject to public disclosure, the frank and candid exchange of

ideas and information among Executive officials would be chilled and initial suggestions and

informal deliberations might be mistaken for official policy. Goodridge Decl. 36. Accordingly,

the Department properly withheld this e-mail chain as protected by the deliberative process privilege.

* * * * *

Because the record before the Court demonstrates that the Department released all reasonably

segregable, nonexempt records that are responsive to Plaintiffs request, and appropriately withheld

or redacted those documents set forth on the accompanying Vaughn index, summary judgment is

appropriate on Claim One.

II. CLAIM THREE OF THE COMPLAINT SHOULD BE DISMISSED

In Claim Three of the Complaint, Plaintiff alleges that the Department has engaged in a

pattern and practice of failing to properly respond to CREWs FOIA requests and requests for fee

waivers that is arbitrary, capricious, and contrary to the FOIA and the Departments fee waiver

regulations. Compl. 39-41 (citing 5 U.S.C. 552 and 34 C.F.R. 5.64). To remedy this alleged

violation, Plaintiff seeks four forms of prospective relief: (1) a declaration that the Departments

purported pattern and practice of nonresponsiveness to CREWs FOIA requests is arbitrary,

capricious and contrary to law, Compl. (Prayer for Relief 4); (2) an injunction requiring the

Department to cease its standard response to requests from CREW that the requests fail to describe

the records sought with a reasonable amount of detail such that a Department employee would be

able to locate potentially responsive documents with a reasonable amount of effort, id. (Prayer for

Relief 5); (3) a declaration that the Departments alleged pattern and practice of refusing to grant

CREW a fee waiver is arbitrary, capricious and contrary to law, id. (Prayer for Relief 6); and

(4) an injunction requiring the Department to cease its standard response of denying CREWs



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In Claim Three, Plaintiff appears to rely exclusively on the FOIA and the Departments fee7

waiver regulations to support its claim for relief. See Compl. 39-41 (citing 5 U.S.C. 552 and

34 C.F.R. 5.64). In the Complaints introduction, however, Plaintiff asserts in passing that the

alleged pattern and practice violates the Administrative Procedure Act (APA), 5 U.S.C. 706.

See Compl. 2. In any event, APA review of Plaintiffs pattern and practice claim is not available

here, because the FOIA itself provides an adequate remedy. See Edmonds Inst. v. U.S. Dept of

Interior, 383 F. Supp. 2d 105, 111 (D.D.C. 2005) (The law is clear . . . that review under the APA

is unavailable when another statute provides an adequate remedy.) (collecting cases).

By its terms, APA review is available [e]xcept to the extent that prior, adequate, and

exclusive opportunity for judicial review is provided by law. 5 U.S.C. 703 (emphasis added); see

also id. at 704 (limiting reviewable actions to those for which there is no other adequate remedy

in a court). As the Supreme Court has explained, Congress did not intend the general grant of

review in the APA to duplicate existing procedures for review of agency action, and 704 does

not provide additional judicial remedies in situations where Congress has provided special and

adequate review procedures. Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (citation omitted).

The FOIA provides a specific and limited remedy in those circumstances where an agency acts

in an arbitrary and capricious manner in responding to a FOIA request, 5 U.S.C. 552(a)(4)(F), and

the D.C. Circuit has made clear that absent the narrow and specific circumstances set forth in that

section, courts are not authorized to make advisory findings of legal significance on the characterof the agency conduct vis-a-vis any requester of information. Perry v. Block, 684 F.2d 121, 125

(D.C. Cir. 1982). Because the FOIA provides express and limited judicial review for the type of

conduct alleged by Plaintiff here, the APA does not apply. Moreover, the FOIA provides for judicial

review of policy or practice claims under limited circumstances. See infra Sections II.B-C.

Although those circumstances are not present here, the availability of such review in appropriate

cases under the FOIA renders the APA inapplicable. See Bowen, 487 U.S. at 903. Thus, Plaintiffs

pattern and practice claim is not cognizable under the APA.

23

requests for fee waivers based on [the Departments] unfounded claim that disclosure of the

requested records would not contribute significantly to public understanding of government

operations or activities, id. (Prayer for Relief 7).7

The allegations offered in support of this claim, however, fail to establish the existence of

an improper pattern or practice. Plaintiff does not allege that the Department has formally adopted

such a practice, whether by regulation, guideline, or official policy statement. Rather, the Complaint

offers only the conclusory assertion that an informal practice exists, and two examples of this

alleged practice. Compl. 26-29. As discussed infra in Part II.C, such meager allegations are



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insufficient to state a pattern and practice claim under the FOIA. The Court need not reach that

question, however, for Plaintiffs pattern and practice claim founders on two more fundamental

grounds. First, Plaintiff lacks standing to seek prospective relief because it fails to establish that the

alleged pattern or practice will cause it future injury. Second, this claim is not ripe, because Plaintiff

fails to demonstrate that the alleged practice has sufficiently crystallized, or that CREW would be

harmed if review were delayed. But whether framed as a lack of standing, lack of ripeness, or failure

to state a claim, the result is clear: Claim Three should be dismissed.

A. Because Plaintiff fails to establish that the Departments purported pattern and

practice of FOIA noncompliance is likely to cause it future injury, it lacks

standing to sue for prospective relief.

Article III of the Constitution limits the federal judicial power to the resolution of cases and

controversies. Allen v. Wright, 468 U.S. 737, 750 (1984). An essential and unchanging

component of the case-and-controversy requirement is the doctrine of standing. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). This bedrock requirement ensures that the federal courts

exercise power only in the last resort, Allen, 468 U.S. at 752, and that legal questions are resolved

in a concrete factual context conducive to a realistic appreciation of the consequences of judicial

action, Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454

U.S. 464, 472 (1982).

To establish standing under Article III, a plaintiff must demonstrate the familiar elements of:

(1) an injury in fact; (2) causation; and (3) redressability. Lance v. Coffman, 127 S. Ct. 1194, 1196

(2007) (citing Lujan, 504 U.S. at 560-61). As the party invoking the Courts jurisdiction, Plaintiff

bears the burden clearly to allege facts demonstrating each of these three elements. Warth v.

Seldin, 422 U.S. 490, 518 (1975). The necessary facts must affirmatively appear in the record and

cannot be inferred argumentatively from averments in the pleadings. Spencer v. Kemna, 523 U.S.



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1, 10-11 (1998) (citation omitted); Advanced Mgmt. Tech. v. FAA, 211 F.3d 633, 636 (D.C. Cir.

2000). These requirements must be met for each claim asserted and form of relief sought. See

Allen, 468 U.S. at 752 (requiring careful judicial examination of a complaints allegations to

ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims

asserted); Friends of the Earth v. Laidlaw, 528 U.S. 167, 185 (2000) ([A] plaintiff must

demonstrate standing separately for each form of relief sought.).

To satisfy Article IIIs injury-in-fact requirement, a plaintiff must establish a concrete and

particularized injury that is actual or imminent, not speculative or hypothetical. Lujan, 504 U.S. at

560. Moreover, to obtain prospective relief whether in the form of an injunction or a declaration

invalidating an agency policy it is not enough to allege a past injury. City of Los Angeles v.

Lyons, 461 U.S. 95, 102 (1983); OShea v. Littleton, 414 U.S. 488, 495-96 (1974); Haase v.

Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (Lyons applies to claims for declaratory relief).

Rather, a plaintiff must demonstrate that there is a real and immediate threat that he will suffer

some future harm. Lyons, 461 U.S. at 102; see also id. at 109 (plaintiff must demonstrate that he is

realistically threatened by a repetition of the alleged violation). Indeed, the threatened injury must

be certainly impending to satisfy the standing requirements for prospective relief. Whitmore v.

Arkansas, 495 U.S. 149, 158 (1990); Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).

Here, Plaintiff lacks standing to seek prospective relief the only type of relief it seeks with

respect to its pattern and practice claim because there is no indication that, in the future, it will

face immediate or certain harm from the pattern and practice it alleges. In the Complaint,

Plaintiff asserts a single injury: that the Departments alleged failure to comply with the FOIA

harms [its] ability to provide full, accurate and current information to the public on a matter of

public interest and impairs its mission of educating the public to ensure that the public continues



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to have a vital voice in government decisions. Compl. 7. To be sure, this injury adequately

asserts a past harm supporting Plaintiffs standing to assert Claim One. See Zivotofsky v. Secy of

State, 444 F.3d 614, 617 (D.C. Cir. 2006) (noting that [a]nyone whose [FOIA] request for specific

information has been denied has standing to bring an action). But that past harm, of course, would

be fully remedied by the release of all nonexempt records responsive to Request No. 07-00655-F

the very relief Plaintiff seeks in connection with Claim One of the Complaint. See Compl. (Prayer

for Relief 2). Beyond that, the Complaint is devoid of any allegation of ongoing harm that is,

that Plaintiff will be subject to this purported pattern and practice in the future.

Plaintiff cannot cure its failure to allege a concrete, future injury by arguing that it is a repeat

FOIA requester and, therefore, the Departments alleged practice of FOIA noncompliance causes it

ongoing harm. Such an assertion would amount to nothing more than pure conjecture, which is

insufficient to confer standing under Article III. For that reason, two Judges of this Court have

rejected this argument under analogous circumstances. In CREW v. U.S. Department of Homeland

Security, 527 F. Supp. 2d 101 (D.D.C. 2007), CREW challenged the denial of its FOIA request for

certain White House visitor logs and, at the same time, raised an Administrative Procedure Act

challenge to DHSs policy governing the retention of those records. Id. at 102. Judge Lamberth

concluded that CREW lacked standing to seek prospective injunctive or declaratory relief with

respect to its policy challenge because it had alleged only a past harm namely, that some records

responsive to its FOIA request had been deleted pursuant to the challenged policy. Id. at 105-06.

The court specifically rejected CREWs claim of a continuing injury based on its intention to

continue to use the FOIA to gain access to agency records in the future efforts that CREW

contended would continue to be frustrated by DHSs record retention policy. Id. at 106 (citation

omitted). Although the court described this injury as certainly plausible, it found it too



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speculative and remote to ground standing for prospective relief because nothing in the record

before the Court suggests how frequently these requests are made . . . and whether (or when) CREW

expects to file future FOIA requests. Id. In short, the possibility that CREW might someday file

another FOIA request was not enough to establish an imminent, non-speculative injury-in-fact

sufficient to ground standing to seek prospective relief. Id. at 107.

Judge Kollar-Kotelly rejected a similar argument in American Historical Association v.

National Archives and Records Administration, 310 F. Supp. 2d 216 (D.D.C. 2004). The plaintiffs

in that case, who sought access to the presidential records of former President Reagan, challenged

the legality of an Executive Order pursuant to which those records had been withheld. Id. at 218.

Arguing that the Executive Order conflicted with the Presidential Records Act, they sought a

declaratory judgment that the Executive Order was invalid and an injunction barring its future

application. Id. at 224 n.5. By the time the Court considered the plaintiffs claim, however, most

of the records plaintiffs sought had already been released; the balance had been withheld pursuant

to an assertion of privilege, over which there was no dispute; and the plaintiffs had no outstanding

requests for presidential records. Id. at 223-24, 228. Thus, while the court accepted that the

plaintiffs had suffered a past harm (in the form of delay in the release of the records), it concluded

that their assertion of future harm, based on their regular[] and extensive use of the records of

former presidents, was too speculative to support standing. Id. at 228. The court concluded that

even the significant likelihood that [p]laintiffs will again seek access to presidential records, and

face indeterminate delays in accessing them, does not establish the requisite future injury that is

sufficiently imminent, and not conjectural and hypothetical, and thus dismissed plaintiffs claims

for prospective relief for lack of standing. Id. at 228-29.



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So too here. As a general matter, a plaintiffs standing to pursue a claim rests on the theory

of injury presented in the complaint and the facts alleged in support of the claim. Haase, 835 F.2d

at 907. And in a case such as this, more than a nebulous assertion of the existence of a policy is

required to establish standing. [The plaintiff] must not only demonstrate its existence but also that

[he is] likely to be subjected to the policy again. Id. at 911. Here, Plaintiff cannot establish that the

alleged practice is sufficiently likely to cause it imminent harm, because the Complaint fails to

establish when, if ever, CREW will be subject to the alleged practice in the future. Accordingly,

Plaintiff lacks standing to seek prospective injunctive or declaratory relief with respect to its pattern

and practice claim.

B. Because Plaintiff fails to demonstrate that the alleged practice has sufficiently

crystallized, or that it would be harmed if review were delayed, Claim Three is

not ripe for review.

To determine whether a claim is ripe for judicial review, a court must evaluate both the

fitness of the issues for judicial decision and the hardship to the parties of withholding court

consideration. Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Under the fitness of the

issues prong, a reviewing court must first ask whether the disputed claims raise purely legal

questions and would, therefore, be presumptively suitable for judicial review. City of Houston v.

Dept of Housing & Urban Dev., 24 F.3d 1421, 1431 (D.C. Cir. 1994) (quoting Better Govt Assn

v. Dept of State, 780 F.2d 86, 92 (D.C. Cir. 1986)). Second, it must consider whether the court

or the agency would benefit from postponing review until the policy in question has sufficiently

crystallized by taking on a more definite form. Id. (citation omitted).

1. Fitness of the issues

Although courts applying this framework have occasionally found FOIA pattern and

practice claims ripe for review, that is true only in two narrow circumstances, neither of which



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applies here: (1) where a written, generally applicable policy is challenged, see, e.g., Better Govt,

780 F.2d at 88 (challenge to published FOIA guidelines and regulation); Pub. Citizen v. Dept of

State, 276 F.3d 634, 641 (D.C. Cir. 2002) (challenge to published FOIA guidance); or (2) where the

claim is predicated on a course of conduct so prolonged and specific that the contours of an informal

practice had undoubtedly crystallized, see, e.g., Payne Enters. v. United States, 837 F.2d 486, 488,

490 & n.8, 492 (D.C. Cir. 1988) (agencys blanket refusal to release a particular category of

documents bid abstracts over a nearly two-year period amounted, by its own admission, to a

concerted policy); Long v. IRS, 693 F.2d 907, 909-10 (9th Cir. 1982) (agencys abuse of FOIA

administrative scheme repeatedly hindered the disclosure of specific documents data processing

instructions causing prolonged and unreasonable delays).

In Payne, for example, the plaintiff had regularly requested and received copies of bid

abstracts from the Air Force over the course of fifteen years, when FOIA officers suddenly began

to refuse disclosure of a particular subset of abstracts those prepared in connection with contracts

for which there had been limited competition. 837 F.2d at 488. Air Force FOIA officers repeatedly

refused to release these abstracts upon request, perfunctorily invoking FOIA exemptions that did not

legitimately apply. Id. at 487-88, 492. Upon administrative appeal, the Secretary of the Air Force

without exception ordered disclosure of the abstracts. Id. at 487. Nevertheless, [the FOIA]

officers continued to refuse [the plaintiffs] FOIA requests for bid abstracts, thereby necessitating

further and invariably successful administrative appeals. Id. This pattern of conduct lasted

nearly two years, see id. at 487-88, and, indeed, the Air Force conceded that its FOIA officers had

adopted a concerted policy of refusing to release to plaintiff the disputed bid abstracts, id. at 491

n.8. In the face of such repeated conduct concerning a specific type of document, and the Air Forces

admission that its practice amounted to a de facto policy, the D.C. Circuit held that the challenged



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practice was sufficiently crystallized, noting that the outlines and impact of the disputed practice

are manifest. Id. at 493; see also Long, 693 F.2d at 910 (finding injunctive relief appropriate to

prevent the prolonged delays and repeated litigation over disclosure of the same type of documents

in the future); see also Pub. Employees for Envtl. Responsibility v. U.S. Dept of Interior, No. 06-

182, 2006 WL 3422484, at *9 (D.D.C. Nov. 28, 2006) (relief under Payne is limited to instances

where a defendant voluntarily ceases to engage in allegedly illegal conduct during the course of

litigation or where a plaintiff challenges an illegal agency policy).

In this case, by contrast, the purported pattern and practice is plainly uncrystallized.

Plaintiff challenges no published regulation, guideline, or formal policy. Cf. Better Govt, 780 F.2d

at 88; Public Citizen, 276 F.3d at 641. And the informal practice it alleges lacks the defining

characteristics that made the conduct in Payne and Long fit for review. First, Plaintiff identifies no

prolonged course of repeated conduct. While it vaguely alleges that the Department has denied a

number of its other FOIA requests and has consistently denied its requests for fee waivers,

Compl. 26, it provides just two examples of each, id. 28, 29. Second, CREW identifies no

particular type of documents to which this alleged practice applies, leaving its outlines open to

conjecture. In fact, the two examples that CREW submits to illustrate a pattern of improper fee

waiver denials themselves differ: one was denied for failing to satisfy the first element of the public

interest analysis (i.e., records must concern specifically identifiable government operations), see

Compl. 28 & Ex. 8, while the other was denied for failing to meet the fourth element of that

analysis (i.e., disclosure must contribute significantly to public understanding), see id. 29 & Ex.

9. Thus, to review this claim, the Court would have to guess not only at the ramifications of the

purported pattern and practice, but at its substance. Because it is not clear whether [the

Department] actually has a fully developed policy as alleged, Regional Mgmt. Corp. v. Legal Servs.



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Corp., 186 F.3d 457, 465 (4th Cir. 1999), CREWs pattern and practice claim is not ripe.

This case falls in line not with Payne and Long, but with Webb v. Department of Health and

Human Services, 696 F.2d 101 (D.C. Cir. 1982), and City of Houston v. Department of Housing and

Urban Development, 24 F.3d 1421 (D.C. Cir. 1994) cases in which the amorphous factual context

made generic challenges to the prospective application of policies unripe for review. In Webb, the

plaintiff filed a FOIA request with the FDA for safety and effectiveness data contained in a New

Drug Application (NDA) for an investigational drug. 696 F.2d at 103-04. The FDA denied the

request, relying in part on 21 C.F.R. 314.14, which limits the amount of NDA data released under

FOIA depending on where the NDA stands in the approval process and how much information is

already publicly available. Id. The plaintiff brought suit, challenging the denial of his FOIA request

and seeking to invalidate the regulation. Id. at 104. Although the FOIA claim was mooted by

disclosure of the information, the plaintiff pressed his challenge to the regulation. Id. at 106. The

D.C. Circuit rejected this claim, however, holding that the regulation was unfit for review outside

the context of a particularized FOIA request. Id. Central to the courts analysis was the fact that the

validity of applying section 314.14 to a FOIA request will vary from one case to the next,

depending on what information is actually contained in the NDA file. Id. Thus, to rule on the

regulation outside of a concrete factual context would have required the court to engage in the

unwelcome task of conduct[ing] a pseudo-rulemaking proceeding, examining all of the

considerations that led the agency to permit or prevent disclosure in the various situations. Id. at

107. Because judicial appraisal would stand on a much surer footing in the context of a specific

application of this regulation than could be the case in the framework of [a] generalized challenge,

the court found the plaintiffs policy challenge unfit for review. Id.



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Similarly, in City of Houston, the Department of Housing and Urban Development (HUD)

awarded a community development grant to the city of Houston. 24 F.3d at 1424. Four months

later, it reduced the size of that grant because the city had failed to meet certain spending targets.

Id. Houston filed suit, seeking a declaration that HUD could not reduce its grant award without a

hearing, as well as an injunction restoring the grant money. Id. Although Houstons claim for

injunctive relief was mooted by the expiration of the relevant congressional appropriation, the city

pressed its claim for declaratory relief. Id. at 1426-28. The D.C. Circuit rejected that claim,

however, finding the factual development incomplete and the contours of the policy insufficiently

crystallized to enable review. Id. at 1431-32. In the courts view, the central dispute concerned the

proper characterization of the specific action the agency took in this case namely, whether HUD

had penalized the citys present or future disbursement of grant funds, which was the distinction

upon which the requirement for a hearing turned. Id. at 1431 (emphasis added). The court held that

declaratory relief was inappropriate because this question could not be answered for prospective

cases with unknown facts: There is simply no way for this court to consider whether HUD can act

without a hearing in some amorphous category of cases such as this one, because the actual

contours of the cases within the category are potentially determinative of their outcome. Id.

Here, as in Webb and City of Houston, there is simply no way for the Court to consider the

prospective application of the alleged practice because the actual contours of future requests will

be determinative of their outcome. City of Houston, 24 F.3d at 1431. Plaintiff asks the Court to

enjoin the Department from determining that its FOIA requests fail to reasonably describe the

documents sought, see Compl. (Prayer for Relief 5), and to enjoin the Department from

determining that its fee waiver requests fail to demonstrate that disclosure would contribute

significantly to public understanding, see id. (Prayer for Relief 7). But unlike in Payne and Long,



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This case would be quite different if, for example, [the Department] announced a firm8

policy, applicable in all cases of not responding to FOIA requests or not granting fee waivers. City

of Houston, 24 F.3d at 1431. The Department has done no such thing, and CREW does not allege

otherwise. Defendants conduct is, of course, entitled to [t]he presumption of regularity [that]

supports the official acts of public officers. United States v. Chemical Found., 272 U.S. 1, 14

(1926). [I]n the absence of clear evidence to the contrary, courts presume that they have properly

discharged their official duties. Id. at 14-15.

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where the illegitimacy of the agencys response to the FOIA requests was obvious or had been

conceded, here the validity of the Departments response to Plaintiffs hypothetical future requests

will vary from one case to the next, depending on what information is actually contained in those

requests. Webb, 696 F.2d at 106. Indeed, the responses challenged by Plaintiff are indisputably

proper in some circumstances, as it is the requesters burden to submit requests that reasonably

describe the documents sought, see 5 U.S.C. 552(a)(3)(A), and to establish that a fee waiver is in

the public interest, see S. Utah Wilderness Alliance v. U.S. Bureau of Land Mgmt., 402 F. Supp. 2d

82, 87 (D.D.C. 2005). Whether or not the Departments determinations are correct in any given case,

it cannot be disputed that that question turns on the content of a particular request. Because the

propriety of these determinations cannot be measured for future cases with unknown facts,

prospective relief is inappropriate, and Plaintiffs generalized challenge is unfit for review.8

2. Hardship to the parties

Plaintiffs pattern and practice claim also fails the second prong of the ripeness test, which

requires consideration of the hardship of withholding review. See Webb, 696 F.2d at 106. Here, the

only hardship [Plaintiff] will endure as a result of delaying consideration of this issue is the burden

of having to file another suit which is hardly the type of hardship which warrants immediate

consideration of an issue presented in abstract form. Id. at 107. First, because the alleged practice

does not purport to regulate its conduct, Plaintiff faces no choice between burdensome compliance



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and risky noncompliance. Id. (quoting N.Y. Stock Exchange v. Bloom, 562 F.2d 736, 741 (D.C.

Cir. 1977)). Second, there is no danger that the alleged practice will never be reviewable. Although

the Departments [g]ranting full access to the [nonexempt] requested documents, as was done in

this case, terminates a FOIA action, the [d]enial of full access, which conceivably may occur in

the next case [Plaintiff] files, will preserve the controversy. Id. at 107-08.

To be sure, courts have sometimes found that denying review of a formal policy would cause

hardship to a FOIA requester. However, this is true only where the policy raises (1) purely legal

issues affecting (2) an indisputably repeat FOIA requester. See, e.g., Better Govt, 780 F.2d at 95

(considering the alleged facial inconsistency of the DOJs fee waiver guidelines with the FOIA);

Payne, 837 F.2d at 492 (further factual development unnecessary where agency admitted policy of

blanket refusal to release records). Here, however, as in Webb, the practice CREW challenges

is uniquely fact-based, inasmuch as the validity of its application to a [particular] FOIA request

will vary depending on what information that request contains. Better Government, 780 F.2d at 95.

Moreover, as explained supra in Part II.A, CREW has not alleged that it intends to submit any future

FOIA request to the Department, let alone the sort of repeat requests for specific types of documents

governed by a specific policy or practice that were at issue in the cases discussed above. Cf., e.g.,

Payne, 837 F.2d at 494. Thus, unlike the plaintiffs in cases where courts have found challenges to

an agencys FOIA policies ripe, Plaintiff has given us no reason to think that it is likely to file

another FOIA request subject to the Departments alleged pattern and practice, and thus no reason

to think that [the] alleged [practice] will affect [it]. Regional Management, 186 F.3d at 466-67.

Accordingly, the only hardship posed by delayed review is the burden of having to file another

suit, and, as the D.C. Circuit has observed, the inconvenience of having to initiate more than one

suit [is not] a hardship sufficient to justify review when the issues are not otherwise fit for judicial



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What is more, the two examples that CREW submits to illustrate the alleged pattern and9

practice of improper denials of FOIA requests and fee waiver requests already are (or have been) the

subject of separate lawsuits in this district court. See CREW v. U.S. Dept of Educ., No. 07-1708

(JDB) (cf. Compl. 28) (complaint filed Sept. 25, 2007; notice of voluntary dismissal filed Feb. 7,

2008); CREW v. U.S. Dept of Educ., No. 07-963 (RMU) (cf. Compl. 29) (complaint filed May

23, 2007; cross-motions for summary judgment pending).

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decision. Webb, 696 F.2d at 107 (citation omitted).9

C. Plaintiff Fails to State a Policy or Practice Claim Under the FOIA

Fina