Case 1:19-cv-02934-CRC Document 15 Filed 10/25/19 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
Plaintiff,
v.

Case No. 19-cv-2934 (CRC)

U.S. DEPARTMENT OF STATE,
Defendant.
OPINION AND ORDER
In May 2019, Plaintiff American Oversight filed two Freedom of Information Act
(“FOIA”) requests with the Department of State. The requests sought the production of, among
other records, (1) documents reflecting communications between senior State Department
officials and Rudolph W. Giuliani, President Trump’s personal lawyer, and (2) documents
reflecting communications between State Department officials and the White House regarding
the May 2019 recall of former U.S. Ambassador to Ukraine Marie Yovanovich. State responded
some two months later, advising American Oversight that it would not be able to resolve the
requests within the deadlines imposed by FOIA.
In August 2019, the Inspector General of the Intelligence Community received a
whistleblower complaint indicating that President Trump may have “us[ed] the power of his
office to solicit interference from a foreign country in the 2020 U.S. election.” 1 The complaint
specifically alleged that in a July 25, 2019 telephone call, President Trump had pressured

1

Unsigned Letter to Sen. Richard Burr, Chairman, S. Select Comm. on Intelligence, and
Rep. Adam Schiff, Chairman, H.R. Permanent Select Comm. on Intelligence, at 1 (Aug. 12,
2019).

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Ukrainian President Volodymyr Zelensky to “help [his] 2020 reelection bid” by investigating
business dealings in Ukraine by former Vice President Biden’s son. 2 It also suggested that,
contrary to official statements, Ambassador Yovanovich had been removed from her post
because she disagreed with allegations made by the Ukrainian Prosecutor General that his
political rivals had obstructed investigations into Ukraine’s supposed meddling in the 2016 U.S.
elections. 3 The complaint identified Mr. Giuliani as “a central figure” in these efforts and
indicated that he had corresponded with State Department officials regarding his interactions
with Ukrainian officials on the President’s behalf. 4 Mr. Giuliani has since acknowledged having
had such communications via text messages. Compl. ¶ 11 (citing news reports of Mr. Giuliani’s
statements).
After the whistleblower complaint came to light and the President partially declassified
the transcript of his July 25th call with President Zelensky, the United States House of
Representatives commenced an impeachment inquiry into whether President Trump’s purported
conduct constituted an abuse of his presidential power. House leadership have indicated that this
inquiry will be conducted swiftly. See Greg Stohr & Erik Wasson, Pelosi Need for Speed on
Impeachment Makes Court Help Unlikely, Bloomberg (Oct. 14, 2019),
https://bloom.bg/31g9IBT. The Senate Majority Leader, in turn, has stated that a trial on any
articles of impeachment received from the House could be completed by Christmas. See

2

Id. at 2.

3

Id. at 4–6.

4

Id. at 1, 7.
2

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Burgess Everett, McConnell Eyes Quick Impeachment Trial in the Senate, Politico (Oct. 16,
2019), https://www.politico.com/news/2019/10/16/mcconnell-impeachment-trial-senate-048599.
With this rare impeachment process underway, American Oversight sent a letter to the
State Department on September 20, 2019 requesting expedited processing of its two FOIA
requests. When the ten-day deadline for responding to an expedited processing request passed,
see 5 U.S.C § 552(a)(6)(E)(ii)(I), American Oversight filed this suit, along with a motion for a
preliminary injunction, seeking a court order to compel both expedited processing and the release
of all responsive, non-exempt records by November 15, 2019. State granted the request for
expedited processing a week later. The only issue remaining before the Court, then, is American
Oversight’s motion for a preliminary injunction ordering State to process its two requests in full
by a date certain. The Court held a hearing on that motion on October 23, 2019.
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FOIA specifically permits counts to “enjoin [an] agency from withholding agency
records and to order the production of any agency records improperly withheld.” 5 U.S.C.
§ 552(a)(4)(B). But preliminary injunctions in FOIA cases are uncommon. For good reason.
Ordering production in a FOIA case on an accelerated basis, prior even to an answer being filed,
effectively allows the requestor to jump the queue in front of other requesters who have been
waiting patiently for the agency’s response to their requests, including requests that are subject to
expedited processing. Very few cases are that urgent. Moreover, there is rarely a need for an
injunction prior to the commencement of the agency’s production process because courts are
typically able to assess how promptly the agency can and should reply to a particular request in
the normal course of FOIA litigation.

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Occasionally, however, issuing a preliminary injunction in a FOIA case may be
warranted. 5 In making that determination, the familiar factors apply. The party “seeking a
preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is
likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama,
742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644
F.3d 388, 392 (D.C. Cir. 2011)). A preliminary injunction is an “extraordinary” remedy, and so
“should not be granted unless the movant, by a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis in original) (quoting
11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)).
For the reasons briefly summarized below, the Court will partially grant American
Oversight’s motion and will order State to carry out accelerated processing of the requests after
the parties have met and conferred in good faith to narrow and prioritize the requests to allow for
processing and production by November 22, 2019.
Likelihood of Success on the Merits. American Oversight is likely to succeed on the
merits. Agencies are required to determine “whether to comply with” a FOIA request in twenty
business days of the receipt of the request, 5 U.S.C. § 552(a)(6)(A)(i), and may extend that

5

Courts in this district have granted a handful of preliminary injunctions in cases like this
one where FOIA requestors have sought records to inform an imminent public debate on a matter
of national concern. See, e.g., Wash. Post v. U.S. Dep’t of Homeland Sec., 459 F. Supp. 2d 61
(D.D.C. 2006) (seeking records of visitors to the White House and the Vice President’s residence
in advance of midterm elections within a month); Elec. Privacy Info. Ctr. v. U.S. Dep’t of
Justice, 416 F. Supp. 2d 30 (D.D.C. 2006) (seeking records related to the Bush Administration’s
legal justifications for its warrantless wiretapping program in the course of ongoing
congressional hearings); Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d
246 (D.D.C. 2005) (seeking data regarding the Department of Justice’s responses to electionrelated civil rights violations in advance of the imminent expiration of the Voting Rights Act).
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period by ten days in “unusual circumstances,” id. § 552(a)(6)(B)(i). “If additional time is
required to address the request, the agency ‘shall notify the [requester] . . . and shall provide the
person an opportunity to limit the scope of the request . . . or an opportunity to arrange with the
agency an alternative time frame for processing the request or a modified request.’” Judicial
Watch, Inc. v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 774 (D.C. Cir. 2018) (quoting 5
U.S.C. § 552(a)(6)(B)(ii)) (alteration in original). After the agency responds, it must make nonexempt records “‘promptly available,’” which “typically [means] within days or a few weeks of
a ‘determination’, not months or years.” CREW v. FEC, 711 F.3d 180, 188–89 (D.C. Cir. 2013)
(Kavanaugh, J.) (quoting 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)(i)). When the agency does not
respond by the statutory deadline, the requestor may sue in federal court without exhausting
internal agency appeal processes. 5 U.S.C § 552(a)(4)(B).
Typical FOIA cases involve either or both of two kinds of claims: (1) that the agency
violated FOIA by failing to issue a determination by the statutory deadline or (2) after the
agency’s determination and initial production, that the agency performed an inadequate search or
improperly withheld documents under one of FOIA’s exemptions, see, e.g., Francis v. U.S. Dep’t
of Justice, 267 F. Supp. 3d 9 (D.D.C. 2017) (CRC). The first type of claim, which is alleged
here, is normally mooted when the agency makes the required determination during litigation
and produces documents. Judicial Watch, 895 F.3d at 777. And if a court-supervised production
by the agency does not resolve all the issues, the court will then consider the second category of
claims. Where, as here, the agency has not yet issued a determination and the statutory deadline
has passed, it has violated FOIA. Id. at 779–80.
The requests at issue have sat without a determination for five months. And now that
State has agreed that the requests should be expedited, it is required to issue a determination (and

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produce non-exempt responsive documents) even more quickly. In its motion, American
Oversight requests a determination by November 15, 2019, which is twenty-three business days
after State granted its request for expedited processing. That is longer than the statutory deadline
for a non-expedited case. Because State has missed the statutory deadlines, American Oversight
is certain to succeed on the merits of its claim that State owes it a determination on its requests.
And since disclosure of non-exempt documents must follow shortly thereafter, the Court may
order those disclosures at the same time under its customary supervisory authority in FOIA
matters.
Irreparable Harm. American Oversight is also likely to suffer irreparable harm if
processing of at least some aspects of its requests is not completed by the end of the ongoing
impeachment process. The records it seeks (and has committed to disclosing to the public)
potentially go to the heart of one of the issues that the Congress is considering: Mr. Giuliani’s
alleged efforts to enlist Ukraine’s assistance in furthering the President’s reelection prospects.
As government counsel acknowledged at the hearing, the public interest in this information is
significant. Hr’g Tr. 19 (Oct. 23, 2019).
As the Supreme Court has observed, public awareness of the government’s actions is “a
structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 172 (2004). Timely awareness is equally necessary because “stale information is of little
value.” Payne Enters. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988). When “time is
necessarily of the essence,” the harm in agency delay is more likely to be irreparable. Elec.
Privacy Info. Ctr. v. U.S. Dep’t of Justice, 416 F. Supp. 2d 30, 40–41 (D.D.C. 2006) (“EPIC”)
(granting a preliminary injunction in FOIA case involving a request for documents related to the

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Bush Administration’s legal justifications for its warrantless wiretapping program in light of
related ongoing congressional hearings).
Time is clearly of the essence here. The impeachment inquiry is in full swing. and, as
noted above, congressional leaders expect it to conclude by Christmas. American Oversight
filed its requests with State over five months ago. Apart from offering a very preliminary and
incomplete estimate of the number of potentially responsive documents, the agency has not even
begun to process them. That State has agreed to process the requests on an expedited basis,
while helpful, does not ensure that any responsive records will see the light of day while the
impeachment process is ongoing.
The likely irreparable harm to American Oversight also stems from the fact that, if nonexempt responsive records exist, the public may not otherwise have access to them. Congress
has sought similar—if not identical—documents through subpoenas to the State Department. 6
Congress may not get them, however, as the White House has indicated that the Administration
“cannot participate” in the impeachment inquiry out of purported concerns about the inquiry’s
partisanship and constitutionality. 7 And even if Congress were to obtain the subpoenaed records,
there is no assurance that they would be made public.

6

Letter from Rep. Eliot L. Engel, Chairman, H.R. Comm. on Foreign Affairs, Rep. Adam
Schiff, Chairman, H.R. Permanent Select Comm. on Intelligence, and Rep. Elijah E. Cummings,
Chairman, H.R. Comm. on Oversight and Reform, to Michael R. Pompeo, Sec’y of State, U.S.
Dep’t of State (Sept. 27, 2019).
7

Letter from Pat A. Cipollone, Counsel to the President, The White House, to Rep.
Nancy Pelosi, Speaker, House of Representatives, Rep. Eliot L. Engel, Chairman, H.R. Comm.
on Foreign Affairs, Rep. Adam Schiff, Chairman, H.R. Permanent Select Comm. on Intelligence,
and Rep. Elijah E. Cummings, Chairman, H.R. Comm. on Oversight and Reform (Oct. 8, 2019).
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State rightly points out that American Oversight will not be irreparably harmed by further
delay if the documents it seeks can be lawfully withheld from disclosure under FOIA’s
exemptions. Certain categories of the requested documents may well meet that description.
Others, however, would not appear to be subject to any FOIA exemptions. This is especially
true for communications between Department officials and Mr. Giuliani, who is not a
government employee.
Accordingly, the Court finds that the harm of delay beyond the anticipated timeline of the
impeachment inquiry would be irreparable, especially with respect to those categories of
requested records that are unlikely to be subject to FOIA exemptions.
Public Interest and Balancing of the Equities. This is the extraordinary case where the
public interest favors placing American Oversight’s requests ahead of other requests in the State
Department’s FOIA queue. Presidential impeachment investigations are solemn affairs, which
Congress thankfully has seen fit to undertake only a few times in the Nation’s history. The
records American Oversight seeks, if they exist, could directly inform the present investigation
and the surrounding public debate. The public’s interest in disclosure of responsive, non-exempt
records is therefore high and outweighs any harm to other FOIA requesters that might result
from a temporary diversion of the State Department’s FOIA resources to accelerate processing of
this request. That said, the Court appreciates that the Department faces a substantial FOIA
backlog, including numerous other Ukraine-related requests that post-date American
Oversight’s. It will therefore order the parties to meet and confer in an effort to narrow the
specific requests so as reduce the number of records that will require accelerated processing.
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For the foregoing reasons, it is hereby
ORDERED that [ECF No. 4] Plaintiff’s Motion for a Preliminary Injunction is
GRANTED in part. It is further
ORDERED that the parties shall Meet and Confer to prioritize and narrow the requests
consistent with this ruling and the Court’s observations at the hearing. It is further
ORDERED that the parties shall file a Joint Status Report on or before October 30,
2019 summarizing the results of their discussions and noting any disagreements, which the Court
is prepared to resolve promptly. It is further
ORDERED that the Department of State shall process and release all non-exempt
documents from the narrowed requests on or before November 22, 2019. Any remaining nonexpedited aspects of the requests may be processed thereafter. It is further
ORDERED that the parties shall file a further Joint Status Report on or before November
25, 2019, which shall include an update on the status of the disclosures and the need for further
proceedings.
SO ORDERED.

CHRISTOPHER R. COOPER
United States District Judge
Date: October 25, 2019

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