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Case 16-5339, Judicial Watch and Inc.

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Appellant versus the United States Department of Homeland Security.

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Mrs. Burke, appellant.

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Mrs. Carol, appellee.

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Good morning.

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Good morning.

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Thank you, Your Honors.

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Lauren Burke, arguing for a repellent judicial watch.

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Your Honors, if I may, I'd like to talk a little bit to you about actual factual details, because that is essentially why we are here today, the basis of a dismissal of a complaint at the pleading stage.

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And yet, if we take a look at the complaint itself, there are real, solid, concrete, actual, factual details that support the allegation that there is a policy or practice claimed for conduct ongoing at the Department of Homeland Security.

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So the district court said there was no statement as to why or how, and under ICBOL,

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the fact that they may have a practice and policy.

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What the government argues is there's no allegation of, how do they put it in their brief?

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They say, deliberate mishandling of your request.

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Well, that is correct.

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That was what the lower court did say.

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What I would argue is that it's not necessary to have a deliberate mishandling.

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The burden is not on the plaintiff at the pleading stage to go into such detail and identify any specific policy that may be being held at the agency.

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What needs to be alleged, what needs to be

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included in the complaint is enough detailed facts so that the court can infer the allegation to be true.

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So in your opposition to the motion for judgment on the pleadings, you made the point, as I understand it, on page 10 of that opposition as to what your theory was.

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All right?

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and you contrasted that with the fact that the burden was on the government, and yet as soon as you filed litigation, the government responded very quickly.

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Why is that a sufficient allegation of a policy or practice, the implication of which is the policy and practice is somehow inconsistent with the government's obligations?

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the policy and practice that we are alleging is ongoing, which essentially is continued delay and no response until we do file suit.

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So Congress said, essentially, I just need some help on this.

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Congress said the government should respond in 20 days, sometimes 30.

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And Congress thought the fact that if it didn't,

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the requester to go to court was going to be sufficient incentive for the government to comply.

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Because once it gets into court, the government's no longer in control.

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Why isn't that consistent with the statutory scheme such that your complaint by merely saying they delayed is not enough?

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Well, the stage that

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this was dismissed at was right on the pleading stage.

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And so the argument here really is that there were enough factual details to support the allegation and should have been pursued a little bit further, whether it was to a summary judgment stage or something.

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But I think the question that's being asked is why do we assume that there's something to be pursued unless we think that there's a statutory violation to begin with?

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And on the question of whether there's a statutory violation to begin with,

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Your allegations are that there's been a routine effort on the part of the government not to respond within 20 days.

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And the government's response is, so what?

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Because, as I understand it, because 20 days isn't a statutory requirement to begin with, all it is

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is an opportunity for the government to avoid getting taken straight to court without having an administrative exhaustion procedure put in place.

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And so the government's point is, well, you can allege all you want that the 20 days has been routinely missed, but that doesn't allege something that gives rise to a claim because that's not a violation of the statute.

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That's correct, which is why we brought this second claim, the policy and practices claim.

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It steps a little bit further while there is jurisdiction.

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What does it go further?

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Because I thought the policy and practice claim is just that there's a policy and practice routinely going past 20 days.

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And if... Routinely not responding specifically to Judicial Watch FOIA requests with regards to VIP travel.

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Every single one of the requests identified in the complaint, and there is now an attached related complaint in the lower court as well as an additional... But when you say routinely not responding, you mean not responding within 20 days?

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I mean not responding at all until litigation is filed.

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Okay, but what's the significance of a difference between 20 days and litigation being filed?

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Because I thought the point here is that once 20 days goes by without a response, that benefits you, a requester, because then a requester can go straight to court.

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Correct.

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Right?

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And so I'm not sure I see a difference between missing the 20 days and being straight in court, because it seems like the direct result of missing the 20 days is that you go

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is that the requester can go straight to court.

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So they seem like they're the same thing.

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And then the question becomes, and maybe I'm wrong about that, but they seem like they're the same thing.

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And then if they are, then the question becomes, why is there a violation at the point that the 20 days is missed and the requester gets to go straight to court?

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That just seems like the way FOIA works.

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There's an administrative process, and then there's potentially a judicial process.

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But just because the judicial process has been triggered doesn't mean that there's been a violation of FOIA.

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It's a part of FOIA that the judicial process comes into being.

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I would respectfully disagree that once the

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No response within 20 days or any due diligence and efforts to search and produce records is a violation of FOIA.

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Okay, but due diligence to search, that seems like that's a different thing because what the statute presupposes is that there's a 20-day period

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for the government to have the opportunity to respond.

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And if the government doesn't respond within 20 days, well, then you get to go straight to court.

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You don't have to go through the administrative appeal architecture.

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You get to go straight to court.

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And then when you go straight to court, well, then the court takes a look at what's been going on.

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And if the court concludes that the government's exercising due diligence, well, then everybody's fine.

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But if the court doesn't conclude that the government's exercising due diligence, then I assume what happens, I mean, you tell me you've done a lot of these cases, but I assume what happens at that point is then the court will make a conclusion that the government's been dilatory in the way it's responded to your request, and they'll enter an order that requires the production of documents.

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Correct.

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But your complaint is not predicated on the courts ultimately entering an order.

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What your complaint is predicated on is the government's missing the 20 days.

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And it just seems like at that point, if I'm understanding it correctly, we don't know that there's been a statutory violation yet, because missing the 20 days could be fine.

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I respectfully understand that you are correct in the understanding of FOIA.

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The complaint here and the claim before this court on appeal is actually the second claim, which is the policy and practices.

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Right.

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I'm a little confused by your response to Judge Srinivasan because I understood your claim to be

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that non-production within 20 days or in unusual circumstances cases, non-production within 30 days is a violation of the statute.

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Period.

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You've been subjected to multiple violations of the statute.

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In fact, a practice.

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of violations of the statute.

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And you have many filings to show.

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You have a chart in your briefing to show you have allegations in the complaint of other similar cases where the government did not meet the requirements of the statute.

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So you have a pattern of violations of the statute.

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And that's why even though once you've filed suit, they've produced documents, it's not moot because of the

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The pattern allegations, right?

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Correct.

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So it's not that they haven't violated the statute.

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It's not that the only thing that happens when 20 days has passed is that, well, you don't have to exhaust.

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It's that actually your rights have been violated.

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Correct.

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OK.

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You think that there's actually a statutory violation every time the 20 days is missed?

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There is.

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Yes.

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Really?

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So that means that there's a successful, can you get attorney's fees?

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Yes.

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Every time the 20 days is missed, there's attorney's fees.

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Well, you can seek infallibility.

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Then what happens in a situation where the 20 days is missed, it goes to court, and the court says the government's exercising due diligence.

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I think that's a possible factual scenario, right?

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The 20 days is missed, you go straight to court, and the court says the government's exercising due diligence.

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Has there been a statutory violation?

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of FOIA itself, the specific?

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Of the only statute that I think is an issue, which is FOIA, right.

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Is there a violation of FOIA when the government misses the 20 days, it goes to court, which is your entitlement to do after 20 days, and the court gets involved in the process and the court says, per the statute, that it can retain jurisdiction and allow the agency additional time to complete its review of the records because the agency's exercising due diligence in responding to the request?

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Yes.

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There's already been a violation of the statute, even though the court makes that determination.

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Well, the remedy for the violation by the government is that the plaintiff can go to court.

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Right.

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So you think it's a relevant violation of the statute that what happens is you get to go to the court only to have the court say the government's doing fine because it's exercising due diligence.

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I must be misunderstanding your question.

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Okay, let me see if I can, maybe I'm misunderstanding how FOIA works, but as I understand it, the government misses the 20 days, you go to court.

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You can go to court after 20 days.

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You have a right to go to court.

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You have a right to go to court, and let's suppose that you do.

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You go to court, and then the government says to the court, before you come down on us, there's a statutory provision that says that as long as we're exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time.

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The statute says that the court can do that.

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So let's take this out and say that that happens.

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The court says, okay, now I've looked at everything that's been going on.

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Yes, you missed the 20 days, but I think you're exercising due diligence, and so I'm going to give you more time.

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Do you think that there's been a violation of FOIA?

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To the extent that

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The agency did not fill its obligations to respond or do what they were required to do under the statute within the 20 days, thereby giving plaintiff the remedy to go to court.

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Violation of FOIA, is that what the question is?

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I think it's question is, when instead of FOIA functioning so that when you request you get the documents, you've actually had to go to court and spend the time and money.

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The question is, let's say the

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government asks the court for more time.

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We need more time.

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We're searching.

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We're diligently searching.

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In fact, we've set up some great new systems.

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We're speeding everything up.

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Can you, before you order us to produce, can you give us three more months?

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And the court looks at the proffer and says, you seem to be doing a reasonable job.

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We'll give you three more months.

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Then after three months, you get your documents

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And then you turn around and you say, OK, who pays?

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Do we have a fee petition against the government?

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Because even though the court gave the government the three months and said they were making reasonable progress in reducing their backlog, there's still an underlying violation that caused you to have to go into court rather than just go ask the agency and get the documents.

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And the question is, do you have a claim for fees because of the underlying violation of the 20-day

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I understand your question.

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Yes, and it actually is a little bit of a topic that we talk about and I haven't specifically litigated it.

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The question is whether or not if the court becomes involved, required or as the right of the plaintiff, which incurs costs and all that sort of thing and issues in order, whether it be you have six months for anything like that.

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then yes, once a court order has been issued, plaintiff has a right to go collect attorney's fees.

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All right.

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So let's focus on this case, all right, which I didn't understand to be about attorney's fees, but I understand my colleague's focus.

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Your opposition to the motion for judgment on the pleadings articulated the theory that the repeated failure

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to respond within the initial 20-day period was an abuse of the statute by the government.

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And you adopted, as this court did, in pain the Ninth Circuit approach in law that you got 19 requests, and none of them are responded to within 20 days.

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And that that was the theory.

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of your case, not the individual 20-day violation gives rise, well, let's not use the word violation.

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The government's failure to meet the 20 days is not the statutory violation on which you're suing.

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Rather, it's that Congress said you are entitled to these documents, and the burden is on the government to demonstrate you are not.

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And I understand that theory.

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And what I'm trying to understand is the point that Judge Srinivasan, I thought, was exploring with you, is Congress did say all that.

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And indeed, this Court has commented on, particularly Judge Leventhal, on the concern about the Court sort of shifting the burden here to the requester instead of the government.

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But the problem, or not the problem, but the issue I'm trying to understand is Congress said, yes, you do have a right.

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The burden is on the government to show you don't have that right.

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And as you've been exploring with the judge, you get to go to court.

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And normally the fact that you get to go to court is not enough to show harm.

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And you're not alleging here that you had any timely

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need for this particular information, but that you were entitled to it.

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If I may answer, I run out of time.

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I know, but we've been taking up a lot of time with your questions.

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And so that's why I started out by saying the government's position is that your complaint at least has to show or allege some misconduct, almost in the sense of bad faith.

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by the government.

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Near delay is not enough, given this statutory scheme.

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That is correct, yes.

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And if I may point out that the plaintiff's complaint does indicate it gives the actual factual details of 19 requests over a period of two years that went completely undetermined.

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These are very simple routine request that

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Again, within the complaint, the four corners of the complaint, the plaintiff did state with factual basis that they were personally harmed.

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They have been unable to gather and collect this data and distribute it to their members as well.

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They anticipated a sufficient likelihood of future harm given that there have been five prior litigations filed.

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This was one litigation composing of 19 requests and at the same time there was a related case that has stayed in the lower court right now.

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The related cases are mentioned in the appendix page 6 at paragraph 7 of the client.

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You also in paragraph

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Sixteen of the complaint on page eight of the joint appendix mentioned some incomplete responses.

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How do those relate?

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Are those incomplete responses relating to those five cases or are those wholly separate?

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This is where you talk about press releases about production of records.

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Correct.

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Related to golf vacations and Italy trips, but you also note in those press releases that certain documents still have not been produced.

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Are those a subset of the further articulation of the course of production of the lawsuits mentioned in paragraph seven, or is it a whole separate set of facts relevant to the pattern?

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The separate, you're comparing paragraph 16 to paragraph seven.

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So paragraph seven is specifically, yes, the five prior litigations that

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were based on the identical requests submitted here that required Judicial Watch to go to court, litigate, and that was the only way records were produced.

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I apologize, I was not specifically involved with each of those individual prior litigations, but as far as paragraph 16, those are a separate set of facts to show what

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judicial watch does with the information that they gather and in their requests for these for this information and having been without

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requests over a period of two years to 19 of the requests submitted, they have been harmed by being unable to fully include the data and the information into here because the Secret Service is just one component of the FD Travel-related document.

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You may not know the answer to this, but the specific question I had was whether paragraph 16 is

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Those productions were productions without litigation, those incomplete productions, or were those incomplete productions a result of the litigation mentioned in paragraph seven?

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You may not know.

[00:20:01] Speaker 05:
No, I think I comprehend your question a little bit better.

[00:20:05] Speaker 05:
So these are examples of, and as I said, when we put out the press releases related to VIP travel costs, it involves several different agencies, including Secret Service and Department of Defense.

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In order to put that information out, part of the press release noted that Secret Service had failed to respond to the request.

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So those went out.

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Now, I don't know that I would maybe be able to get back to you at a later date to match up.

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Specifically, if these press releases are related to the litigated requests that are mentioned in paragraph seven.

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I just wondered if this was further information about the breadth of the pattern, or I recognize that it's in the complaint going to harm.

[00:20:47] Speaker 05:
Well, and that is the argument that this complaint was dismissed on the pleadings and there are sufficient and an abundance of facts.

[00:21:00] Speaker 05:
There are the prior lawsuits, there are the harm that is being caused to judicial watch because of the

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missing information these are continued violations and interestingly if I can just enlighten you I apologize somebody did mention that it seems that the government did respond very quickly once litigation was filed and that is true and that has now happened in the past five similar litigations of identical records requests which

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if this were to pursue and litigation were to proceed, that would come out that they are not complex FOIA requests and that they've been able to actually produce records.

[00:21:40] Speaker 01:
So can I ask you this question in that regard?

[00:21:42] Speaker 01:
So suppose that this is the way I think the statute works, and I'm not sure that this is right, but just suppose that for purposes of this question that

[00:21:48] Speaker 01:
There's not been an actionable problem every time the 20 days is missed, but that in some situations, there might be.

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Suppose the government engages in, as Judge Rogers described it, bad faith conduct or deletory conduct of some variety with respect to the 20 days.

[00:22:05] Speaker 01:
And in those situations, at least, the court comes down and says, no due diligence.

[00:22:11] Speaker 01:
I'm entering an order right now that you need to turn over the documents, because I can't, for the life of me, understand why you haven't turned over the documents yet.

[00:22:17] Speaker 01:
That's a possible scenario.

[00:22:18] Speaker 01:
There's also possible scenarios in which missing the 20 days is totally fine because the government's doing what it can.

[00:22:24] Speaker 01:
It just can't get everything together in 20 or even 30 days, and so it naturally goes to court.

[00:22:29] Speaker 01:
So you have those two possibilities.

[00:22:31] Speaker 01:
Is there anything in your complaint that alleges that what we're dealing with is the worst set

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of government conduct as opposed to the innocent set of government conduct.

[00:22:42] Speaker 01:
Because as I read your complaint, it proceeds on the theory that there's been a repetitive violation, and I'll use your conception of it, a repetitive violation of the 20 days, ergo there's a pattern or practice of violating the statute, ergo we're entitled to relief.

[00:22:59] Speaker 01:
And a response to that might be, well, the predicate, which is that there's been a repetitive breach of the 20 days, doesn't necessarily establish a pattern or practice of violating the statute because some, many, all of those might have been in the first category and that they were totally fine.

[00:23:16] Speaker 01:
So there's something in your complaint that says that it's not just the violation, the breach of the 20 days, but that these are breaches of the 20 days that are bad ones.

[00:23:28] Speaker 05:
I'm going to very simply know there's nothing in the complaint itself that says that, and that's because we are still at the pleading stage.

[00:23:35] Speaker 05:
We have gone no further.

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There's been no real communication or anything.

[00:23:39] Speaker 01:
But at the pleading stage, you still have to allege something that gives you an entitlement to relief.

[00:23:44] Speaker 05:
We are alleging that.

[00:23:46] Speaker 05:
The pattern and practice is allegation is supported by all of these facts and would like to proceed further with the civil litigation and get into discovery, which while discovery is not really a FOIA issue, given the pattern and practice and evidence and facts that still need to be developed, that's where we would like to get to.

[00:24:06] Speaker 05:
There may be some we didn't mean to, it got lost, all that sort of stuff.

[00:24:10] Speaker 05:
We haven't reached that stage of the litigation itself, which is why we're here today appealing the dismissal.

[00:24:16] Speaker 03:
All right, why don't we hear from the government?

[00:24:23] Speaker 05:
Thank you.

[00:24:31] Speaker 02:
May it please the court, Sarah Carroll, on behalf of the government.

[00:24:34] Speaker 02:
The district court correctly dismissed this case on the pleadings.

[00:24:37] Speaker 02:
DHS has satisfied the request that underlay this suit.

[00:24:40] Speaker 02:
DHS has satisfied the request that underlay the related suit that my colleague referred to.

[00:24:45] Speaker 02:
As far as I'm aware, there's no... Satisfied the request?

[00:24:48] Speaker 03:
What does that mean?

[00:24:49] Speaker 02:
Has produced... Judicial Watch has conceded that DHS has produced all of the non-exempt documents... But that's not the issue... That's not the issue before us.

[00:24:58] Speaker 02:
Right.

[00:24:59] Speaker 02:
So Judicial Watch also makes this sort of conclusory claim that DHS must have a policy or practice of delaying response to its requests.

[00:25:08] Speaker 02:
But this court held in Open America that an agency complies with FOIA by acting in good faith and with due diligence to process requests on a first-in, first-out basis.

[00:25:18] Speaker 01:
So can I ask you this?

[00:25:19] Speaker 01:
If an agency has a policy

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of just never complying with the 20 days and just suppose it just issues.

[00:25:27] Speaker 01:
It just says, you know what?

[00:25:28] Speaker 01:
I'm fine with going to court actually every single time.

[00:25:32] Speaker 01:
We're just never going to respond with the determination within 20 days and then we'll deal with it in court.

[00:25:37] Speaker 01:
Is that okay under the statute?

[00:25:41] Speaker 02:
I'm not sure, Your Honor.

[00:25:42] Speaker 02:
I think

[00:25:43] Speaker 02:
In that case, I think there would still be a decent argument that the ordinary FOIA remedy is enough.

[00:25:51] Speaker 02:
A person who wants their documents can go to court and get the documents, which is what they're entitled to under FOIA.

[00:25:56] Speaker 01:
But so why are you hesitating?

[00:25:57] Speaker 01:
Because as I understood at the back half of your brief, your argument is that breach of the 20 days isn't a statutory violation.

[00:26:05] Speaker 02:
Yes, that's right, Your Honor.

[00:26:06] Speaker 01:
Then if that's true, then I take it

[00:26:09] Speaker 01:
Maybe there's a situation in which there's three tiers.

[00:26:12] Speaker 01:
There's the missing of the 20 days that's okay.

[00:26:15] Speaker 01:
are two tiers.

[00:26:16] Speaker 01:
There's the missing of the 20 days that's okay, and the missing of the 20 days that's not okay.

[00:26:19] Speaker 01:
But as I understood your brief, it was that the missing of the 20 days is never a statutory violation.

[00:26:24] Speaker 01:
And if it's never a statutory violation, then it seems like an agency could have just a blanket policy that says, we're fine with going to court every single time.

[00:26:31] Speaker 01:
We understand that that means there's not going to be administrative exhaustion, and the secretary is never going to have a chance to weigh in.

[00:26:37] Speaker 01:
But we're fine with that.

[00:26:38] Speaker 01:
That's our policy.

[00:26:39] Speaker 02:
Right.

[00:26:39] Speaker 02:
That's right, Your Honor.

[00:26:40] Speaker 02:
The 20-day provision

[00:26:41] Speaker 02:
you know, this court has made clear in the 2013 Crew Case, really relates to administrative exhaustion and a requester's ability to get into court.

[00:26:50] Speaker 02:
And, you know, it sort of plays a channeling role.

[00:26:53] Speaker 02:
It determines which cases have to go through an administrative appeal first and which cases can go directly to federal court.

[00:26:58] Speaker 01:
But... So then if you get into court in that situation, suppose you have the agency that does that, and then the court just says, what are you doing?

[00:27:04] Speaker 01:
Because the statute at least presupposes that every case isn't going to come to court.

[00:27:09] Speaker 01:
that there's going to be some dialogue between the requester and the agency, whether it's within 20 days or 30 days, and the government ought to be playing some role in filtering these cases so that we, the district courts, aren't subjected to every single piece of litigation every time there's a request made at this agency.

[00:27:26] Speaker 01:
Do you think the agency can come right back and say, sorry, that's just, we're entitled to do that under the statute, and that's the spot you're in, or is there at least some situations in which

[00:27:36] Speaker 01:
a breach of the 20 days based on an intentional policy that says, you know, we're never going to even try within 20 days, at least some situations in which that would occasion, itself occasion a lawsuit that would give rise to a remedy or an injunction against the government to start doing better with the 20 days.

[00:27:55] Speaker 02:
once the case got into court, I think that the district court, as you mentioned earlier, would have to decide whether the agency had to really produce the documents right away.

[00:28:05] Speaker 04:
What determines that?

[00:28:08] Speaker 04:
In a case like this, where the agency produces the documents, but the requester has shown

[00:28:17] Speaker 04:
that over many cases and over many requests, the delays are not 20 days, but 200 days, 300 days.

[00:28:27] Speaker 04:
What then?

[00:28:28] Speaker 04:
So you say that the district judge here was correct in saying, well, there's no showing of

[00:28:34] Speaker 04:
bad faith, so first in, first out, fine.

[00:28:41] Speaker 04:
You see that as the proper application of the statute.

[00:28:44] Speaker 02:
Yes, that's right.

[00:28:45] Speaker 02:
I mean, certainly, Your Honor, in an individual case, seeking a response to a FOIA request, as Judicial Watch was doing in the first count of its complaint, a litigant could say to the district court, hey, look, we've been waiting a long time for these documents.

[00:28:58] Speaker 02:
What's going on?

[00:28:58] Speaker 02:
You should order the agency to produce them much more quickly.

[00:29:01] Speaker 02:
And at that stage,

[00:29:02] Speaker 02:
If someone wished to litigate that timeliness issue, the district court would have to consider whether the agency had been acting with due diligence and whether there were exceptional circumstances.

[00:29:11] Speaker 04:
But the exceptional circumstances is it's the burden on the government to ask the district court for more time.

[00:29:19] Speaker 04:
Only if, as I understand it, are 552A6C Romanet 2.

[00:29:28] Speaker 04:
Exceptional circumstances does not include delay resulting from a predictable agency workload of requests.

[00:29:37] Speaker 02:
Right, unless the government can show that it's making reasonable progress in reducing the back load.

[00:29:43] Speaker 04:
So how could this case have properly been dismissed on the pleadings given that that's in effect an affirmative defense or an opportunity for an agency to have some time before the court orders it to produce documents?

[00:30:03] Speaker 04:
It's an opportunity for the agency to get a little more time.

[00:30:06] Speaker 02:
In this case and the related case and other cases involving similar requests, as far as I'm aware, Judicial Watch has come to court, agreed to accept rolling productions.

[00:30:16] Speaker 02:
DHS has told the district courts, we think we can complete production by X date.

[00:30:21] Speaker 02:
Here it was March 18th, 2016.

[00:30:24] Speaker 02:
And then the district courts have then entered an order requiring production by that date and supervised the production to make sure the agency complied.

[00:30:32] Speaker 02:
So there really was no opportunity in this case for DHS to try to litigate how much time it was entitled to because everyone agreed that the schedule DHS said was feasible was okay.

[00:30:44] Speaker 04:
And just to back up, so your view of how Congress intended the statute to work was, you know, agencies are going to have a lot of requests.

[00:30:51] Speaker 04:
In this case, I gather the Secret Service gets maybe four requests a day.

[00:30:57] Speaker 04:
So nobody really has a hope of getting timely 20 days, 30 days production.

[00:31:04] Speaker 04:
They have to go to court.

[00:31:06] Speaker 04:
So it's your view that that's what Congress envisioned, that if you want prompt production, you go to court, and then in court, we work it out under the supervision of the judge.

[00:31:19] Speaker 04:
And if we produce the documents, the person who's gone to court is not entitled to even two fees.

[00:31:27] Speaker 04:
No violation of FOIA.

[00:31:30] Speaker 02:
That's right.

[00:31:30] Speaker 02:
In that case.

[00:31:31] Speaker 02:
Right, no violation of FOIA.

[00:31:33] Speaker 04:
What statutory language are you relying on for that?

[00:31:36] Speaker 02:
We're relying, I mean, I think we're relying just on the fact that while FOIA requires agencies to make records available to requesters, we're relying on this court's interpretation of the exceptional circumstances prong and the rest of the statutory scheme.

[00:31:53] Speaker 02:
which makes clear that the 20-day deadline really just relates to administrative exhaustion.

[00:31:59] Speaker 03:
Well, the legislative history of the statute says that Congress heard from the agencies about their concern about not being able

[00:32:13] Speaker 03:
to meet the 20-day deadline and said, we don't care.

[00:32:19] Speaker 03:
This is too important a matter.

[00:32:22] Speaker 03:
Open government, people are entitled to know what their government is doing.

[00:32:27] Speaker 03:
And the burden is on the government.

[00:32:30] Speaker 03:
And you mentioned open America.

[00:32:32] Speaker 03:
And as Judge Leventhal pointed out, there's a lot of dictum in that case.

[00:32:35] Speaker 03:
But I just want to be clear.

[00:32:37] Speaker 03:
If Congress said everybody has a right

[00:32:43] Speaker 03:
to this information.

[00:32:45] Speaker 03:
And the government has to figure out whether they can refuse to turn it over because it falls within one of the narrow exceptions Congress provided.

[00:32:59] Speaker 03:
Then how can it be that an agency can, over a period of time, simply fail to produce this information?

[00:33:12] Speaker 03:
And what I'm getting at is you want it dismissed, or not you, but your argument is that the district court properly dismissed this, even though we don't know what the situation is.

[00:33:24] Speaker 03:
And hypothetically, there could be, following Judge Srinivasan's analysis, good delay and bad delay, as it were.

[00:33:38] Speaker 03:
But the point is it sort of shifts

[00:33:43] Speaker 03:
the burden.

[00:33:44] Speaker 03:
I'm just trying to understand that in terms of your response.

[00:33:48] Speaker 03:
And in Open America, I mean, the court went on for pages reviewing what the agency's procedures were.

[00:33:56] Speaker 03:
We have no idea, basically, what the agency's procedures were.

[00:33:59] Speaker 03:
We know the results, but we don't know why they've done things.

[00:34:04] Speaker 03:
And it might well be the Secret Service says, look, we have greater priorities.

[00:34:08] Speaker 03:
All right?

[00:34:09] Speaker 03:
And these requests simply

[00:34:11] Speaker 03:
are not going to be given high priority.

[00:34:17] Speaker 02:
I think that Judicial Watch's allegations are entirely consistent with the state of the world in which the Secret Service is receiving a very high volume of requests.

[00:34:25] Speaker 02:
They received, I think, almost 1,500 requests in fiscal year 2015.

[00:34:29] Speaker 03:
Congress heard all that and still wouldn't allow an extension of that initial period of time.

[00:34:36] Speaker 02:
Well, I think there's lots of information out there that shows that a whole lot of agencies are dealing with a lot of FOIA requests and acting.

[00:34:43] Speaker 03:
No, what I'm trying to get you to focus on is Congress heard the agency's concerns.

[00:34:49] Speaker 03:
We're inundated with requests, all right?

[00:34:52] Speaker 03:
We don't have staff to handle them.

[00:34:56] Speaker 03:
And Congress said we are not going to extend that provision.

[00:35:01] Speaker 03:
The agency, it's its burden to figure out how

[00:35:05] Speaker 03:
to either organize, computerize, whatever, in order to, as we said in Crew, at least tell the requester when they're going to get the answer.

[00:35:19] Speaker 03:
And of course, this case raises another issue that would go beyond Crew.

[00:35:25] Speaker 02:
Right, so there is this 20-day timeline, for sure, Your Honor.

[00:35:29] Speaker 02:
But this court has made clear that when Congress imposed that timeline, it was simply providing a judicial remedy that is a right to go to court for people.

[00:35:38] Speaker 03:
So even though Congress thought open government was terribly important, I have to hire a lawyer, pay a filing fee, sit around and wait for the court's docket to get to my case.

[00:35:55] Speaker 03:
and then have motions practiced, probably have an appeal.

[00:35:59] Speaker 03:
And at what point does sort of the weight of what's going on shift?

[00:36:07] Speaker 03:
And isn't that the point of the Ninth Circuit's approach in terms of it's an abuse of the system not to be able to ever provide this information within a 20 day period?

[00:36:23] Speaker 04:
Well, I think this court has recognized in the McCrew decision that it would be... I think your overriding crew talks about whether exhaustion is required and says it's not.

[00:36:33] Speaker 04:
Right.

[00:36:33] Speaker 04:
If one were to read it as limited to that question and as not resolving the question before us today about whether the 20 days deadline is also a requirement, it says the government must respond to the 20 days, if it is also a requirement, and I understand that's not your argument, if it is also a requirement,

[00:36:52] Speaker 04:
What's the government to do?

[00:36:53] Speaker 04:
One question I have is about the practicalities here.

[00:36:57] Speaker 04:
When this information is produced, in what form is it produced?

[00:37:02] Speaker 04:
Do you have any idea?

[00:37:03] Speaker 04:
And maybe this is a better question for your opponent on rebuttal.

[00:37:09] Speaker 04:
For example, Congress would like to incentivize agencies to anticipate common requests and organize the information in a way that makes it easy for the agency to produce.

[00:37:23] Speaker 04:
And in some ways, we're in a better world now than when FOIA was enacted when

[00:37:28] Speaker 04:
you know, the FBI had to look through index cards to figure out where the files were and go around the country to physically pull them.

[00:37:36] Speaker 04:
Here we have a lot of ways to make this easier.

[00:37:39] Speaker 04:
Is there not a database in the Secret Service that

[00:37:43] Speaker 04:
organizes the costs of providing security relating to different trips, where you could just say, I'm gonna pull that up.

[00:37:50] Speaker 04:
I assume there is, no?

[00:37:51] Speaker 02:
I'm not aware of one.

[00:37:52] Speaker 02:
So far as I'm aware, Your Honor, I think that the FOIA officers at the Secret Service have to go to individual Secret Service personnel and collect things from various offices.

[00:38:01] Speaker 04:
I don't think there's any... The government doesn't know how much it's spending on official VIP travel until Judicial Watch comes and asks.

[00:38:10] Speaker 02:
I think they requested all records related to the costs.

[00:38:14] Speaker 02:
And I don't think that all the records are stored in one central place.

[00:38:18] Speaker 04:
But you're saying maybe if all they wanted was the cost in a spreadsheet, they could get that much more quickly?

[00:38:24] Speaker 02:
I'm not sure, Your Honor.

[00:38:25] Speaker 02:
As far as I'm aware, they never modified their request to ask for that.

[00:38:29] Speaker 02:
So I'm just not sure how that would be.

[00:38:31] Speaker 04:
And it never occurred to the government that maybe we could provide the information that the public is actually interested in in a much more efficient way.

[00:38:39] Speaker 04:
because the government didn't feel pressured to do that?

[00:38:42] Speaker 02:
I'm just not sure, Your Honor.

[00:38:43] Speaker 02:
I'm not sure.

[00:38:44] Speaker 03:
All right.

[00:38:44] Speaker 03:
So back to the point, I guess following up on Judge Pillard, government's over-reading pain, too.

[00:38:52] Speaker 03:
We never said it was a narrow exception.

[00:38:54] Speaker 03:
Indeed, the language in pain is much broader.

[00:38:57] Speaker 03:
Just the facts in pain led it.

[00:39:00] Speaker 03:
And I thought that was a theory in your brief, that there has to be some allegation of bad faith or deliberate

[00:39:09] Speaker 03:
misconduct.

[00:39:11] Speaker 02:
I don't know whether or when an intent requirement would be required, but pain involved egregious facts as the court found them.

[00:39:21] Speaker 03:
But my point, your brief keeps saying a narrow exception.

[00:39:25] Speaker 03:
We don't use that word.

[00:39:26] Speaker 03:
But in any event, I just want to understand, is that the minimum that you think is required to avoid dismissal on the pleadings?

[00:39:39] Speaker 03:
some sort of intent, allegation?

[00:39:42] Speaker 02:
I don't know whether intent would always be required, and I don't think this court necessarily needs to decide that in this case, but pain involved egregious circumstances.

[00:39:52] Speaker 02:
Pain itself did not even grant an injunction.

[00:39:54] Speaker 03:
Well, the district court said, one, the complaint doesn't tell me how.

[00:39:58] Speaker 03:
Two, the complaint doesn't tell me why.

[00:40:01] Speaker 03:
And indeed, counsel has conceded that it may just be a workload problem.

[00:40:08] Speaker 03:
or there may be other reasons.

[00:40:12] Speaker 02:
Right, and on that point, Your Honor, I mean, I think this case is actually pretty analogous to cases like Twombly, in which, for example, in Twombly, the plaintiff alleged that the defendants had engaged in parallel conduct and then tacked on a conclusory allegation of an antitrust conspiracy.

[00:40:28] Speaker 02:
But Ms.

[00:40:28] Speaker 04:
Carroll, this is very different from Twombly in that the burden is on the government to produce, and if it doesn't produce,

[00:40:39] Speaker 04:
to explain the burden is not on the complainant to show anything more than a practice over time of failing to meet the obligations of the statute.

[00:40:55] Speaker 02:
But they haven't plausibly alleged a failure to meet the obligations of the statute.

[00:41:00] Speaker 04:
19 requests delayed 10-fold to 20-fold the statutory deadline.

[00:41:06] Speaker 04:
Five prior suits on the same topic.

[00:41:09] Speaker 04:
That's not a pattern.

[00:41:11] Speaker 02:
Your Honor, I suspect that if Judicial Watch were entitled to discovery on this claim, I suspect that there would be a lot of other requesters that would be entitled to discovery about the FOIA practices of a lot of agencies.

[00:41:23] Speaker 01:
Does the statute have a production deadline?

[00:41:25] Speaker 03:
No, the statute does not impose any production deadline.

[00:41:27] Speaker 03:
So what the government faces is having district courts issue a lot of injunctions.

[00:41:35] Speaker 03:
That's sort of the theory Congress had, that you wouldn't want to be in court most of the time.

[00:41:39] Speaker 03:
You'd want to handle this.

[00:41:40] Speaker 03:
I mean, how much money is spent on presidential travel?

[00:41:45] Speaker 03:
Is that sealed information in the budget process?

[00:41:50] Speaker 02:
I'm not sure, Your Honor, but to the

[00:41:54] Speaker 02:
Here, plaintiffs have received judicial supervision of the processing of their requests.

[00:41:59] Speaker 02:
And if judicial watch were to get relief or even discovery here, instead, we would have district courts supervising discovery into the FOIA practices of a whole lot of agencies out there.

[00:42:11] Speaker 02:
Because a whole lot of people would say the agency has not satisfied this administrative exhaustion.

[00:42:16] Speaker 03:
I found a lot of requests.

[00:42:17] Speaker 03:
The floodgates argument.

[00:42:19] Speaker 03:
You know where that gets you.

[00:42:21] Speaker 03:
So the question is, just in this case, what more needed to be in the complaint, if anything?

[00:42:29] Speaker 03:
And I read your brief to say the district court was correct for all the reasons, and then you say, well, there should be some deliberate mishandling of plaintiff's requests.

[00:42:44] Speaker 02:
You would need something pretty egregious, Judge Rogers.

[00:42:47] Speaker 02:
You would need some plausible reason to think that an agency had kind of abdicated its duties under FOIA.

[00:42:53] Speaker 02:
Perhaps Judge Srinivasan referred to orders in individual cases on requests where courts perhaps might find an agency had been acting in a dilatory manner.

[00:43:03] Speaker 02:
Maybe if you had some of those, then you had some good reason to think as in pain that the agency was gonna continue to

[00:43:10] Speaker 02:
shirk its FOIA responsibilities, maybe then we would be in the zone where it might be appropriate to at least understand why someone would try to... What happens is a practical matter in cases in which the 20 days missed.

[00:43:24] Speaker 01:
So the 20 days missed, the requester goes to court and says, I don't have to go up to the secretary now, I can go directly to court.

[00:43:32] Speaker 01:
And then suppose the district court looks at it and just says, I don't understand why the documents haven't been turned over yet.

[00:43:37] Speaker 01:
What does the district court do in that situation?

[00:43:40] Speaker 02:
So in some cases, I think, if, as Judicial Watch did here, the parties sort of agreed, okay, well, it'll be okay to produce the documents by X date, my understanding is that district courts in this circuit sometimes just enter an order requiring production by that date and then make sure that that happens.

[00:44:01] Speaker 02:
If, on the other hand, the district court said,

[00:44:04] Speaker 02:
this is taking too long and the requester was pressing to, you know, wouldn't agree with the agency to a deadline, then I think the district court would make this, you know, due diligence exceptional circumstances calculation.

[00:44:18] Speaker 01:
Well, suppose you have a situation then in which the allegations of the complaint, I'm not sure this complaint says that, but suppose you have a situation in which in the allegations the complaint says the following, the government routinely misses the 20 days.

[00:44:29] Speaker 01:
and then we're routinely having to go to court.

[00:44:31] Speaker 01:
And then every time we go to court, the court just turns around immediately and says, I don't understand why this is taking so long.

[00:44:39] Speaker 01:
I'm going to enter an order requiring the government to produce the documents within two weeks.

[00:44:45] Speaker 01:
And the requester who brings the complaint says there's therefore a pattern or practice of situations in which district courts have to get involved and have to enter an order requiring the production of documents ex post.

[00:44:59] Speaker 01:
And that's just a waste of my time and money because I have to go to court every single time.

[00:45:04] Speaker 01:
And there's no explanation for why I have to go to court every single time.

[00:45:08] Speaker 01:
The district courts don't perceive there to be any explanation because the court's immediately just entering an order requiring this agency to produce documents within two weeks.

[00:45:16] Speaker 01:
That's a pattern of practice of FOIA violations, and this court to which I'm bringing the pattern of practice claim ought to be able to enter an injunction requiring this agency to do better.

[00:45:26] Speaker 01:
Would your position be that just that complaint just fails to state a claim because the process is occurring just as FOIA envisioned it would, which is that it ends up in court.

[00:45:37] Speaker 01:
The court gets involved and the court enters a production order, but that's all just the way FOIA works.

[00:45:42] Speaker 01:
Or would your position be, well, maybe in that situation there would be an actionable complaint stated in the complaint because we're alleging something where the courts have to enter an order every single time, and that's a problem under FOIA.

[00:45:57] Speaker 02:
I think we would likely argue that the FOIA system was working the way it's supposed to.

[00:46:03] Speaker 02:
This court has explained that where the agency doesn't satisfy the 20-day deadline, what the requester has a right to is judicial supervision to make sure that the agency proceeds to process the request.

[00:46:14] Speaker 01:
And in those cases, then, can the requester get fees?

[00:46:18] Speaker 02:
I don't know, Your Honor.

[00:46:21] Speaker 02:
Certainly, I don't think the requester would have an automatic rate to fees or anything like that.

[00:46:26] Speaker 01:
But would they be automatically out on asking for fees?

[00:46:28] Speaker 01:
Because I think they would say, I had to go through this elaborate thing of bringing a lawsuit.

[00:46:33] Speaker 01:
It turned out that the minute I did it, just like the last 10 times, the court just saw that there was nothing to the government's resistance and entered an order requiring the government to respond, it's costing me money to do this.

[00:46:46] Speaker 01:
I should be entitled to fees.

[00:46:48] Speaker 01:
Would the government say, no, because in order to be entitled to fees, there has to be a predicate violation to begin with.

[00:46:54] Speaker 01:
There's no predicate violation because the system's working as it was designed to work.

[00:46:58] Speaker 01:
Or would the government litigate the fees on its merits and say, we're not saying it's a threshold matter.

[00:47:02] Speaker 01:
There could be no entitlement to fees.

[00:47:04] Speaker 01:
What we're saying is that our behavior wasn't egregious enough to warrant fees.

[00:47:08] Speaker 02:
I'm honestly not sure, Your Honor.

[00:47:09] Speaker 02:
I haven't litigated that kind of case, and I don't want to get out and say something.

[00:47:13] Speaker 04:
Let me ask you, Ms.

[00:47:14] Speaker 04:
Carroll, about the facts of this case.

[00:47:16] Speaker 04:
When the Secret Service does produce the documents, are you aware whether routinely they have exemptions that they claim, or is it really a matter of collecting the information and the kind of information that Judicial Watch has routinely been requesting in these is made available?

[00:47:32] Speaker 04:
And I also would like to hear from Ms.

[00:47:35] Speaker 04:
Burke on that.

[00:47:36] Speaker 02:
I'm not 100% sure about that, Your Honor.

[00:47:38] Speaker 02:
I don't remember seeing a Vaughan index or anything in this case.

[00:47:43] Speaker 02:
And I know that Judicial Watch said it was satisfied with the production of non-exempt documents here, but I don't know for sure whether that meant anywhere with that.

[00:47:53] Speaker 04:
So here's my question.

[00:47:54] Speaker 04:
This has been a long course of interaction between the Secret Service and Judicial Watch.

[00:48:00] Speaker 04:
Is it really not feasible for the Secret Service when it gets yet another of this familiar sort of request, instead of putting it at the bottom of the pile, to shoot out a letter, a standardized, computerized letter, to Judicial Watch saying, we plan to give you these documents, which would, if they do that within 20 days, meet their statutory obligation?

[00:48:26] Speaker 02:
It's a good question, Your Honor.

[00:48:28] Speaker 02:
So I suppose the question is whether, even without having located the documents, the agency could make the determination, okay, we know what these documents are going to be, we're going to produce them, and we know kind of how this will play out.

[00:48:44] Speaker 02:
One problem with that is that it's hard for me to see how the agency could then gather and produce all the documents without jumping judicial watch ahead of everyone else who had filed requests before judicial watch.

[00:48:58] Speaker 04:
Is it your understanding that the statute requires lockstep production?

[00:49:02] Speaker 04:
That if an agency can see efficiencies in a subset of type of production, it cannot organize those and be proactive in production?

[00:49:11] Speaker 04:
That's not the way you read the statute, is it?

[00:49:13] Speaker 02:
The statute, I think, allows multi-track processing, so if there's a simple request that don't make a lot of sense.

[00:49:20] Speaker 04:
Yes, in fact, calls for efficiencies, calls for agencies to look for ways to make things available in a format that's convenient and efficient.

[00:49:31] Speaker 02:
The statute certainly does allow that, Your Honor.

[00:49:34] Speaker 02:
I'm not persuaded or I think it's not likely that the Secret Service would view these requests as simple.

[00:49:44] Speaker 02:
And Judicial Watch submits dozens of FOIA requests to the Secret Service.

[00:49:49] Speaker 02:
So essentially requiring the Secret Service to favor Judicial Watch's requests over other ones would really just be hurting a whole lot of other people who submitted requests before Judicial Watch.

[00:50:00] Speaker 03:
Yeah, I did think at my very agency to agency

[00:50:04] Speaker 03:
in terms of the time the agency may need.

[00:50:07] Speaker 03:
But following up, if there was some automatic production of a form, people fill out.

[00:50:15] Speaker 03:
And so Judicial Watch says all of these requests were about presidential or travel expenses, changing the name from time to time of who was doing the traveling.

[00:50:28] Speaker 03:
But once the agency's decided that, well, travel requests involving ex-official going to ex-country, that comes within a certain exemption.

[00:50:39] Speaker 03:
But the others, you know, don't.

[00:50:41] Speaker 03:
So why couldn't, I mean, where is the incentive for the agency to do something like that under the process you describe?

[00:50:53] Speaker 03:
Unless you file suit.

[00:50:56] Speaker 02:
I think that agency, I assume that the Secret Service doesn't enjoy being sued by judicial watch over and over and going to court.

[00:51:04] Speaker 02:
I think that if the Secret Service could easily set up some way to satisfy these requests much more quickly, it probably would.

[00:51:10] Speaker 03:
I don't think Congress was concerned about enjoyment.

[00:51:15] Speaker 03:
I was concerned about releasing this information.

[00:51:19] Speaker 02:
Right.

[00:51:20] Speaker 02:
So there's a declaration that DHS submitted in response to Judicial Watch's discovery motion, which the district court didn't consider.

[00:51:28] Speaker 02:
But it explains that.

[00:51:29] Speaker 03:
But you rely on in your brief.

[00:51:31] Speaker 03:
And that was another question I had.

[00:51:33] Speaker 03:
You're sort of putting forth defenses here.

[00:51:36] Speaker 03:
So you knew what the argument that was about to be made was all about.

[00:51:42] Speaker 03:
You were on notice that.

[00:51:45] Speaker 03:
exactly what Judicial Watch was asking for, that they had repeatedly asked for, not you personally, but the Secret Service or Homeland Security.

[00:51:57] Speaker 03:
So the fact that these were repetitive suggests that maybe they could have been handled differently, I understand why.

[00:52:04] Speaker 03:
And where is the incentive for the agency ever to do that, rather than just sit back and say, well, hire a lawyer and go to court?

[00:52:14] Speaker 02:
I have no reason to think that the Secret Service does not want to satisfy Judicial Watch's request as quickly as it can in good faith.

[00:52:22] Speaker 02:
It's just that it receives many, many hundreds of requests from other people as well who have an equal right to seek information from the government.

[00:52:29] Speaker 02:
And with limited staff, it's difficult to respond to all of those requests and also respond to them.

[00:52:35] Speaker 03:
Well, maybe they do and maybe they don't.

[00:52:37] Speaker 03:
I mean, you have an organization whose mission is a certain type of mission as opposed to

[00:52:43] Speaker 03:
somebody who has a patently frivolous request.

[00:52:49] Speaker 03:
Right, I mean I just, all right, any other questions?

[00:52:55] Speaker 03:
No?

[00:52:56] Speaker 03:
Anything of a point you want to make?

[00:53:02] Speaker 02:
I guess the two basic points that maybe I've already made that I would like to reiterate are, number one, FOIA has a scheme set up for dealing with these kind of things and Judicial Watch is essentially seeking to make an end run around it.

[00:53:15] Speaker 02:
And second, I would point out that the relief that Judicial Watch is requesting here, the people that it would hurt really are the hundreds of other people who have submitted requests, many of which might not be

[00:53:27] Speaker 02:
institutional FOIA requesters who wouldn't be able to bring a broadsuit like this and seek the relief that Judicial Watch is seeking here.

[00:53:33] Speaker 02:
Thank you.

[00:53:34] Speaker 02:
Thank you.

[00:53:37] Speaker 03:
All right.

[00:53:38] Speaker 03:
Councilor Pellant will give you a minute.

[00:53:47] Speaker 05:
I appreciate the opportunity to address a couple of issues that each of you raised with opposing counsel, specifically Judge Pillard.

[00:53:57] Speaker 05:
As far as the format and- So you know, Judge Pillard.

[00:54:01] Speaker 05:
Pillard, I apologize.

[00:54:03] Speaker 05:
With respect to the request to the Secret Service and specifically the information that we're looking for in our complaint, it does say it's a routine request that we send out.

[00:54:15] Speaker 05:
It is one office.

[00:54:16] Speaker 05:
They are hotel, I think, car expenses.

[00:54:20] Speaker 05:
There's a number of different expenses.

[00:54:22] Speaker 05:
They are data sets.

[00:54:23] Speaker 05:
We are not looking for communications.

[00:54:24] Speaker 05:
This isn't an email.

[00:54:26] Speaker 05:
issue, they are relatively easy to the extent, which is another aspect that we would like to pursue through discovery and the litigation process, that when we did sue on this 19 requests that had gone undetermined over a period of two years, the Secret Service produced all records in less than four months.

[00:54:51] Speaker 04:
uh... bay really just to clarify if they have to database anticipating the vip travel request would be coming in for your question coming in and they just had field that's a you know trip to aspen hotel meals you know transportation and use that to you on a regular basis without the satisfactory i think i think that i would be very good

[00:55:18] Speaker 01:
Is it your experience that agencies routinely respond to judicial watch requests by creating a database designed to respond to judicial watch requests?

[00:55:24] Speaker 05:
That has not been our experience, no.

[00:55:26] Speaker 05:
But if you would like to order it, my client would be very, very happy.

[00:55:31] Speaker 01:
Can I ask you this?

[00:55:33] Speaker 01:
Can I ask you this?

[00:55:34] Speaker 01:
Your complaint says that, and I'm quoting from

[00:55:39] Speaker 01:
Paragraph 22, I think, that it's plaintiff's FOIA request and in particular, regularly failing and refusing to produce requested records within the time period required by FOIA.

[00:55:49] Speaker 01:
So is that your, do you think that the agency's required to produce documents within some statutory time frame?

[00:55:59] Speaker 05:
They are required to respond and make a determination.

[00:56:03] Speaker 05:
If they are going to make a determination that records will be produced but can't be done so for six months or that type of thing, that is within statutory obligations they do meet.

[00:56:12] Speaker 01:
Right, but your complaint speaks in terms of producing within the statutory time frame.

[00:56:16] Speaker 01:
And I think your request for relief speaks in terms of producing.

[00:56:22] Speaker 05:
Well, we didn't receive anything, even responses.

[00:56:26] Speaker 05:
as far as whether or not they would be.

[00:56:27] Speaker 01:
Right, but it sounds like what your complaint says you're entitled to is not just a response, it's entitled to production.

[00:56:32] Speaker 05:
We are entitled to production, if they're... Within a statutory timeframe?

[00:56:37] Speaker 01:
I don't... Within the time periods required by FOIA?

[00:56:40] Speaker 01:
Required by FOIA, yes.

[00:56:43] Speaker 01:
Does FOIA impose a requirement with respect to production?

[00:56:47] Speaker 05:
I believe it does, yes.

[00:56:48] Speaker 01:
What is that?

[00:56:49] Speaker 05:
Is it 30 days unless there are extenuating circumstances or have been worked out between the parties or ordered by you?

[00:56:56] Speaker 01:
You need FOIA to require production within 30 days.

[00:56:59] Speaker 01:
Production of the documents.

[00:57:01] Speaker 01:
Not the determined.

[00:57:01] Speaker 05:
I apologize.

[00:57:02] Speaker 05:
I don't know whether I'm drawing a blank or I just don't have it right in front of me.

[00:57:06] Speaker 05:
I would have to get back to you.

[00:57:07] Speaker 05:
I'm willing to do that.

[00:57:08] Speaker 05:
OK.

[00:57:08] Speaker 05:
That's fine.

[00:57:09] Speaker 05:
And just to sort of follow up on the simplicity and routine

[00:57:15] Speaker 05:
non-complex requests that are at issue here and actually the reason that we did pursue and are seeking and would like to pursue litigation and discovery on a policy and practices claim is that most recently we have filed

[00:57:33] Speaker 05:
If I may, I'm going to take a step back because I wanted to respond to something that the opposing counsel had mentioned as far as responding.

[00:57:40] Speaker 03:
I think you have to wrap it up here.

[00:57:42] Speaker 05:
Wrapping it up.

[00:57:43] Speaker 05:
As far as responding to your question, though, as what more would need to be pled in the complaint to make it a well-plead complaint to pursue.

[00:57:51] Speaker 05:
I believe she said something more or something that would be a little bit more egregious as showing that they were

[00:57:59] Speaker 05:
They were continuing to shirk their responsibilities.

[00:58:03] Speaker 05:
Since the filing of this complaint, we have filed additional complaints for a total of 52 requests that have gone undetermined, and that is for a total of 11 litigations that Judicial Watch has had to pursue in order to receive these documents.

[00:58:23] Speaker 03:
All right, thank you.

[00:58:24] Speaker 03:
Take the case under advisement.