UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.,

Plaintiff,

v. Civ. Action No. 20-2810 (EGS)

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Plaintiff The Protect Democracy Project (“Protect

Democracy”)—a nonpartisan non-profit organization that “seeks to

inform the public’s understanding of government operations and

activities, including the conduct of elections” by “gathering

and disseminating information that is likely to contribute

significantly to the public’s understanding of executive branch

operations and activities”—brings this lawsuit against Defendant

United States Department of Justice (“DOJ”). See Compl., ECF No.

1 ¶ 10. 1 Protect Democracy alleges that DOJ has failed to comply

with its duties under the Freedom of Information Act (“FOIA”),

. See

. Protect Democracy seeks a

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. preliminary injunction ordering DOJ to “process Plaintiff’s FOIA

request on an expedited basis” and to “produce, by a date

certain set by this Court, all non-exempt records responsive to

Protect Democracy’s FOIA request for ‘[a]ny and all

communications with individuals in the United States Postal

Inspection Service regarding participation in any DOJ voting or

voting fraud task force,’ or, if no such records exist, an

acknowledgment to that effect.” See Pl.’s Mot. Prelim. Inj., ECF

No. 16 at 1. 2

Upon consideration of the Plaintiff’s motion, the response,

the reply thereto, the applicable law, and the entire record,

the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion.

I. Background

A. Statutory and Regulatory Framework

FOIA provides a “statutory right of public access to

documents and records” held by federal government agencies.

Pratt v. Webster,

(D.C. Cir. 1982). Pursuant

to FOIA, agencies are directed to determine within 20 business

2 Protect Democracy also requests oral argument on its motion for preliminary injunction. See Pl.’s Mot. Prelim. Inj., ECF No. 16 at 2. Because the Court is ruling on the motion within 21 days of its filing, the Court deems oral argument unnecessary. See L. Civ. R. 65.1(d) (“On request of the moving party together with a statement of the facts which make expedition essential, a hearing on an application for preliminary injunction shall be set by the Court no later than 21 days after its filing, unless the Court earlier decides the motion on the papers . . . .”). 2 days whether to comply with requests it receives and to notify

immediately the person making the request of such determination

and of the reasons for the determination.

(a)(6)(A)(i); see also Citizens for Responsibility & Ethics

in Wash. v. Fed. Election Comm’n,

(D.C. Cir.

2013) (“CREW”) (noting that a government agency must respond to

a FOIA request within twenty business days and “at least: (i)

gather and review the documents; (ii) determine and communicate

the scope of the documents it intends to produce and withhold,

and the reasons for withholding any documents; and (iii) inform

the requester that it can appeal whatever portion of the

‘determination’ is adverse”). If “unusual circumstances” exist,

as defined by the statute, this deadline may be extended for an

additional ten days by providing written notice to the person or

entity placing a request.

(a)(6)(B)(i). If the

agency fails to comply with the statutory time requirements, the

person or entity making the request may file suit in federal

court before exhausting administrative remedies.

§

552(a)(6)(C)(i). The court then may either order the production

of any agency records improperly withheld or, upon a finding of

“exceptional circumstances” and “due diligence” by the agency,

retain jurisdiction and allow the agency additional time to

complete its review of the requested records. Id.

3 Agencies typically process FOIA requests for records in the

order in which the agency receives them. See, e.g.,

(a) (DOJ “[c]omponents ordinarily shall respond to requests

according to their order of receipt”); see also Open Am. v.

Watergate Special Prosecution Force,

(D.C.

Cir. 1976). But FOIA also provides for expedited processing of

requests for agency records, directing agencies to “process as

soon as practicable any request for records to which [they have]

granted expedited processing.”

(a)(6)(E)(iii).

Expedition is available for requests: “(I) in cases in which the

person requesting the records demonstrates a compelling need;

and (II) in other cases determined by the agency.”

§

552(a)(6)(E)(i). The FOIA expedited processing provision was

added in 1996 by the Electronic Freedom of Information Act

Amendments, Pub. L. 104–231, § 8,

, 3051–52. The

United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”), in examining the legislative history

of these amendments, has noted that “the specified categories

for compelling need are intended to be narrowly applied.” Al–

Fayed v. CIA,

(D.C. Cir. 2001) (quoting H.R.

Rep. No. 104–795, at 26 (1996), 1996 U.S.C.C.A.N. 3448, 3469).

When a request for expedited processing is filed, the agency has

10 days from receipt of the request to determine whether to

grant the request for expedition. See

(a)(6)(E)

4 (ii)(I).

B. Factual Background

On July 17, 2020, Protect Democracy sent DOJ’s Office of

Information Policy (“OIP”), Civil Rights Division, and Criminal

Division a FOIA request seeking “[a]ny and all communications

with individuals in the United States Postal Inspection Service

[(“USPIS”)] regarding participation in any DOJ voting or voting

fraud task force.” See Ex. A to Pl.’s Mot., ECF No. 16-4 at 2.

Protect Democracy stated that its request “relates to potential

political interference by the Department of Justice with the

U.S. Postal Service’s preparations for processing the

anticipated surge in voting by mail in light of the COVID-19

pandemic—an issue of utmost importance to the public.”

.

The organization noted its concern regarding recent remarks made

by President Donald J. Trump and Attorney General William Barr,

which Protect Democracy interpreted as “undermining public

confidence” in voting by mail, among other things.

.

Protect Democracy also asserted that the situation was made more

urgent because, “[e]ven without DOJ interference, the USPS is at

risk of falling fall short of carrying out its crucial

responsibility in the upcoming election.”

. Protect

Democracy requested the records within the time period of “March

1, 2020 through the date that the searches are conducted for

records responsive to this FOIA request.”

. It also

5 requested that the relevant DOJ divisions search for records

from “all components of the Department of Justice that may be

reasonably likely to produce responsive results, including but

not limited to the Office of the Attorney General, the Office of

the Deputy Attorney General, the Office of the Associate

Attorney General, the Civil Rights Division, and the Criminal

Division.”

Protect Democracy requested expedited processing of its

FOIA request under

(a)(6)(E) and

(e) because, according to Protect Democracy, the subject

matter “concerns ‘[a] matter of widespread and exceptional media

interest in which there exist possible questions about the

government’s integrity that affect public confidence,’

(e)(1)(iv), and because there is an urgent need ‘to inform

the public about an actual or alleged Federal Government

activity’ and the request is ‘made by a person who is primarily

engaged in disseminating information,’

(e)(1)(ii).”

DOJ’s Civil Rights Division responded to Protect

Democracy’s FOIA request on July 22, 2020. Ex. B to Pl.’s Mot.,

ECF No. 16-5 at 2. The Civil Rights Division wrote that it “was

extending the time limit to respond to [Protect Democracy’s]

request beyond the ten additional days provided by the statute”

pursuant to

(a)(6)(B)(i)-(iii).

. The

6 Civil Rights Division did not inform Protect Democracy whether

it would grant expedited consideration of the FOIA request. On

October 23, 2020, the Civil Rights Division sent Protect

Democracy a letter stating that the searches had been conducted

and no responsive records were found. Ex. A to Sur Suppl. Decl.,

ECF No. 23-1.

DOJ’s OIP also responded to Protect Democracy on July 22,

2020. Ex. C to Pl.’s Mot., ECF No. 16-6 at 2. OIP handles FOIA

requests for three of the entities from which Plaintiffs seek

records: the Office of the Attorney General, Office of the

Associate Attorney General, and Office of the Deputy Attorney

General. Def.’s Opp’n, ECF No. 21 at 10. OIP denied Protect

Democracy’s request for expedited processing. Ex. C to Pl.’s

Mot., ECF No. 16-6 at 2-3. Similar to the Civil Rights Division,

OIP also cited to

(a)(6)(B)(i)-(iii) and informed

Protect Democracy that due to “unusual circumstances,” OIP

“w[ould] need to extend the time limit to respond to [Protect

Democracy’s] request beyond the ten additional days provided by

the statute.”

On October 20, 2020, OIP sent Protect

Democracy a letter stating that the searches had been conducted

and “no records responsive to your request were located.” Ex. A

to Sur Decl., ECF No. 21-1 at 3.

On July 27, 2020, DOJ’s Criminal Division responded to

Plaintiff’s FOIA request and denied expedited processing. Ex. B

7 to Butler Decl., ECF No. 21-2 at 24-25. The Criminal Division is

conducting an “initial search” of email communications, and the

search is still in progress. Butler Decl., ECF No. 21-2 ¶ 9. The

Criminal Division remains the only DOJ entity to have not

completed the processing of Protect Democracy’s FOIA request.

On October 2, 2020, Protect Democracy filed its lawsuit

against DOJ, Compl., ECF No. 1, and subsequently moved for a

preliminary injunction on October 9, 2020, Pl.’s Mot., ECF No.

16. DOJ filed its opposition on October 20, 2020, Def.’s Opp’n,

ECF No. 21, and Protect Democracy filed its reply on October 23,

2020, Pl.’s Reply, ECF No. 24. The motion is ripe for the

Court’s adjudication.

II. Legal Standard

“A plaintiff 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,

(D.C. Cir. 2014) (alteration

in original) (quoting Sherley v. Sebelius,

(D.C. Cir. 2011)). Where the federal government is the opposing

party, the balance of equities and public interest factors

merge. See Nken v. Holder,

(2009). A

preliminary injunction is an “extraordinary remedy that may only

8 be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter v. Nat. Res. Def. Council, Inc.,

(2008) (citation omitted). “The purpose of a

preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be

held.” Univ. of Tex. v. Camenisch,

(1981). In

this Circuit, the four factors have typically been evaluated on

a “sliding scale,” such that if “the movant makes an unusually

strong showing on one of the factors, then it does not

necessarily have to make as strong a showing on another factor.”

Davis v. Pension Benefit Guar. Corp.,

, 1291–92

(D.C. Cir. 2009).

In the wake of the Supreme Court’s decision in Winter v.

Natural Resources Defense Council,

(2008), “the D.C.

Circuit has suggested that a positive showing on all four

preliminary injunction factors may be required.” Holmes v. FEC,

, 183 n.4 (D.D.C. 2014); see also Sherley,

(“[W]e read Winter at least to suggest if not to

hold that a likelihood of success is an independent, free-

standing requirement for a preliminary injunction.” (citation

and quotation marks omitted)). Nonetheless, “the Circuit has had

no occasion to decide this question because it has not yet

encountered a post-Winter case where a preliminary injunction

9 motion survived the less rigorous sliding-scale analysis.”

ConverDyn v. Moniz,

, 46 n.2 (D.D.C. 2014).

III. Analysis

A. Plaintiff Is Likely To Succeed On The Merits Of Its Claim

Plaintiff argues that it is likely to succeed on the merits

of its claim because (1) DOJ “failed to meet FOIA’s unambiguous

deadlines,” and (2) DOJ “improperly denied Plaintiff’s request

for expedited treatment.” Pl.’s Mot., ECF No. 16-1 at 28.

Regarding Protect Democracy’s first argument, Plaintiff

asserts that, as of the date of its filing the pending motion,

DOJ “had let nearly 60 business days pass without issuing the

required determination.” 3 Pl.’s Reply, ECF No. 24 at 10. Protect

Democracy contends that DOJ has “failed to gather and review

responsive documents” within the statutorily prescribed time

period, and because of that violation, it “is certain to succeed

on the merits of its claim that [DOJ] owes it a determination on

its requests.” Pl.’s Mot., ECF No. 16-1 at 28-29. While Protect

Democracy acknowledges that “FOIA itself does not require

production by a date certain,” it asserts that “courts have

3 The D.C. Circuit has defined “determination” as requiring that “within the relevant time period, the agency must at least inform the requester of the scope of the documents that the agency will produce, as well as the scope of the documents that the agency plans to withhold under any FOIA exemptions.” CREW,

. 10 equitable power to order accelerated production schedules as

well as production by dates certain” in order to ensure that

agencies are meeting their production responsibilities. Pl.’s

Reply, ECF No. 24 at 11. In response, the DOJ argues that

“[a]gencies are not required to make all records available

within the 20 days, but rather to make them ‘promptly

available.’” Def.’s Opp’n, ECF No. 21 at 21 (quoting

(a)(3)(A)). Therefore, “even when an agency fails to respond

to the request within 20 days, the requester is simply deemed to

have exhausted administrative remedies for purposes of seeking

immediate judicial review of the agency’s processing of the FOIA

request.”

The Court finds that Protect Democracy has “misconstrue[d]

the consequences of an agency’s failure to meet” its FOIA

deadlines. Daily Caller v. U.S. Dep’t of State,

(D.D.C. 2015) (BAH). While FOIA generally requires

government agencies to communicate its determination within

twenty business days, this deadline “serves primarily as a means

to obtain immediate judicial supervision over an agency’s

response to an outstanding FOIA request.”

According to the

D.C. Circuit, “[i]f the agency does not adhere to FOIA’s

explicit timelines, the ‘penalty’ is that the agency cannot rely

on the administrative exhaustion requirement to keep cases from

getting into court.” Crew,

. This “penalty” is

11 underscored by the fact that FOIA provides, where a requester

seeks judicial redress, that “the agency may continue to process

the request, and the court . . . will supervise the agency’s

ongoing progress, ensuring that the agency continues to exercise

due diligence in processing the request.”

(citing

(a)(6)(C)). “Once in court, . . . the agency may further

extend its response time if it demonstrates ‘exceptional

circumstances’ to the court.”

at 185 (citing

(a)(6)(C)(i)). And “[i]f exceptional circumstances exist,

then so long as ‘the agency is exercising due diligence in

responding to the request, the court may retain jurisdiction and

allow the agency additional time to complete its review of the

records.’”

(quoting

(a)(6)(C)(i)).

Accordingly, because the Criminal Division has not yet

communicated its determination on the FOIA request, Protect

Democracy is deemed to have exhausted its administrative

remedies and may proceed with its suit. See CREW,

. “Standing alone, however, this fact does not conclusively

demonstrate that the plaintiff is likely to prevail in its

underlying effort to accelerate the processing of its FOIA

requests and the ultimate production of any responsive, non-

exempt records.” Daily Caller,

-11 (quoting

Elec. Privacy Info. Ctr. v. Dep’t of Justice,

(D.D.C. 2014)).

12 The Court next addresses Protect Democracy’s argument that

it is likely to succeed on the merits of its claim that DOJ

improperly denied its request for expedited treatment. A

decision denying expedited processing is reviewed by the courts

de novo, Al–Fayed v. CIA,

(D.C. Cir. 2001);

“based on the record before the agency at the time of the

determination,”

(a)(6)(E)(iii). Pursuant to FOIA,

agencies are to provide expedited processing where the requester

shows a “compelling need” for the relevant information,

(a)(6)(E)(i)(I); meaning that (1) the requester is

“primarily engaged in disseminating information” and (2) there

is an “urgency to inform the public concerning actual or alleged

Federal Government activity,”

§ 552(a)(6)(E)(v)(II); see

also

(e)(1)(ii) (same).

The Court first turns to whether Protect Democracy is

“primarily engaged in disseminating information.”

(a)(6)(E)(v). This standard “requires that information

dissemination be the main [and not merely an incidental]

activity of the requestor.” Protect Democracy Project, Inc. v.

U.S. Dep’t of Def.,

(D.D.C. 2017) (CRC)

(alteration in original) (quoting Progress v. Consumer Fin.

Prot. Bureau, No. 17-686,

, at *3 (D.D.C. May 4,

2017)). However, “publishing information ‘need not be [the

organization’s] sole occupation.’”

13 In Protect Democracy’s FOIA request, it stated that it

intended to “disseminate information and analysis about this

request—and any information obtained in response—through its

website . . . ; its Twitter feed . . . , which has more than

36,000 followers; its email list of approximately 30,000 people;

and sharing information with other members of the press.” Ex. A

to Pl.’s Mot., ECF No. 16-4 at 5. It noted that its “purpose”

was to “gather information of potential interest to a segment of

the public, use its editorial skills to turn the raw materials

into distinct work, and distribute that work to an audience.”

(citation omitted). It also listed examples of previous

instances when it “disseminate[d] information about its FOIA

requests to a wide audience.”

In addition, at least one

other court in this District has recently found that Protect

Democracy “easily” satisfies the requirement that the

organization is “primarily engaged in disseminating information”

based on similar statements made in a prior FOIA request. See

Protect Democracy Project,

(finding

Protect Democracy met the requirement where it noted that it

“intend[ed] to disseminate the information obtained” and that

its “core mission . . . is to inform public understanding on

operations and activities of government”). Accordingly, the

Court finds that Protect Democracy has established that its

representations within its FOIA request likely satisfy this

14 requirement.

The Court next considers whether Protect Democracy’s FOIA

request likely demonstrated an “urgency to inform the public

concerning actual or alleged Federal Government activity.”

(a)(6)(E)(v). Such urgency must “extend[] beyond the

public’s right to know about government activity generally.”

(e)(3). In addition, and as the D.C. Circuit has

explained, courts should consider the following factors in

evaluating whether this criterion has been satisfied: “(1)

whether the request concerns a matter of current exigency to the

American public; (2) whether the consequences of delaying a

response would compromise a significant recognized interest; and

(3) whether the request concerns federal government activity.”

Al–Fayed,

.

Because Plaintiff’s request concerns a serious and time-

sensitive matter, the Court finds that Protect Democracy also

has likely satisfied this requirement. First, regarding whether

the FOIA request pertains to a “matter of current exigency,”

Protect Democracy explained that its request “relates to

potential political interference by the Department of Justice

with the U.S. Postal Service’s preparations for processing the

anticipated surge in voting by mail in light of the COVID-19

pandemic—an issue of utmost importance to the public.” Ex. A to

Pl.’s Mot., ECF No. 16-4 at 3. Protect Democracy noted that it

15 had concerns regarding some of President Trump and Attorney

General Barr’s recent remarks about alleged voter fraud in the

upcoming election, and that, “[e]ven without DOJ interference,

the USPS is at risk of falling short of carrying out its crucial

responsibility in the upcoming election.” Id. at 3-4. Protect

Democracy further asserted that, in view of the impending

election and with mail-in voting underway, “[t]he public

urgently needs to know whether the USPS is on track to carry out

its role in enabling a free and fair election to proceed in

November, and whether DOJ is in any way obstructing the Postal

Service’s efforts.” Id. at 5. Accordingly, the Court finds that

Protect Democracy’s statements in its FOIA letter likely

establish that the subject matter of its requested information—

DOJ’s potential interference with postal services—was a matter

of “current exigency,” particularly given the imminence of

Election Day and the widespread media attention to the issue of

voter fraud and slowed postal service deliveries. 4 See 28 C.F.R.

4 See Ex. A to Pl.’s Mot., ECF No. 16-4 (citing, e.g., Paul Rosenzweig & Bryson Bort, Trump and Barr Are Making False Claims About Mail-in Ballots to Scare Us Out of Voting, USA Today (July 4, 2020), https://www.usatoday.com/story/opinion/2020/07/04/attorney- general-bill-barrwrong- mail-voting-open-floodgates-fraud- column/3258807001/; Joshua A. Geltzer, Four Ways William Barr Is Already Subverting the 2020 Elections, Wash. Post (June 26, 2020), https://www.washingtonpost.com/outlook/barr-attorney- general-election/2020/06/26/7ad4fc7e-b6fb-11ea-a510- 55bf26485c93_story.html; Amy Gardner & Elise Viebeck, GOP Pushes Voting by Mail—With Restrictions—While Trump Attacks It as 16 § 16.5(e)(3) (“The existence of numerous articles published on a

given subject can be helpful in establishing the requirement

that there be an ‘urgency to inform’ the public on the topic.”).

Second, further delay in processing Protect Democracy’s request

would likely “compromise a significant recognized interest,” as

well. Al–Fayed,

. As the D.C. Circuit has

recognized, “stale information is of little value.” Payne

Enterprises, Inc. v. United States,

(D.C. Cir.

1988). With less than a week before Election Day, Protect

Democracy is at risk of losing its ability to timely facilitate

public awareness regarding the subject matter of its request.

See Leadership Conf. on Civil Rights v. Gonzales,

(D.D.C. 2005) (RCL) (recognizing the urgency of the

plaintiff’s request given “the upcoming expiration of the

special provisions of the Voting Rights Act of 2007”); ACLU v.

Dep’t of Just.,

(D.D.C. 2004) (ESH)

(finding exigency because of the “ongoing debate regarding the

renewal and/or amendment of the Patriot Act”). Third, Protect

Democracy’s FOIA request undoubtedly concerns “federal

government activity.” Al–Fayed,

.

‘Corrupt,’ Wash. Post (Apr. 13, 2020), https://www.washingtonpost.com/politics/gop-pushes-voting-by- mail--withrestrictions-- as-trump-attacks-it-as- corrupt/2020/04/12/526057a4-7bf8-11ea-a130- df573469f094_story.html). 17 Accordingly, the Court concludes that Protect Democracy has

shown a likelihood of success on the merits of its request for

expedited processing. 5 See, e.g., Ctr. for Pub. Integrity v. U.S.

Dep’t of Def.,

, 11 (D.D.C. 2019) (CKK)

(finding plaintiff had established a likelihood of success on

the merits where plaintiff explained it was “primarily engaged

in disseminating information,” it intended to produce original

reports based on the analysis of the requested information, and

the information was “a matter of immediate concern to the

American public” because it was “the subject of imminent

congressional hearings and action”).

B. Plaintiffs Face Irreparable Harm

“In this Circuit, a litigant seeking a preliminary

injunction must satisfy ‘a high standard’ for irreparable

injury.” ConverDyn,

(quoting Chaplaincy of

Full Gospel Churches, 454 F.3d at 297). The movant must

demonstrate that it faces an injury that is “both certain and

great; it must be actual and not theoretical,” and of a nature

5 Protect Democracy also argues that it is entitled to expedited processing because it has shown that its request concerns a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence” under

(e)(1)(iv). Pl.’s Mot., ECF No. 16-1 at 29. Because the Court has found that Protect Democracy is entitled to expedition because it has likely demonstrated an “urgency to inform the public concerning actual or alleged Federal Government activity,” the Court need not evaluate this argument at this time. 18 “of such imminence that there is a clear and present need for

equitable relief to prevent irreparable harm.” Wis. Gas Co. v.

FERC,

, 674 (D.C. Cir. 1985) (quotation marks and

emphasis omitted). “District courts in this circuit have

recognized that, where an obligation to disclose exists, a

plaintiff may suffer irreparable harm if denied access to

information that is highly relevant to an ongoing public

debate.” Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., No.

20-1196 (TFH),

, at *4 (D.D.C. July 6, 2020); see

also Elec. Privacy Information Ctr. v. Dep’t of Just.,

(D.D.C. 2006) (finding irreparable harm where

plaintiff would be “precluded, absent a preliminary injunction,

from obtaining in a timely fashion information vital to the

current and ongoing debate surrounding the legality of the

Administration's warrantless surveillance program”).

Protect Democracy contends that its request for “materials

related to Defendant’s plans for investigating mail-in voter

fraud in the November 2020 election,” with Election Day now only

a few days away and early voting ongoing, is the “quintessential

example” of the type of request that should be processed

expeditiously. Pl.’s Mot., ECF No. 16-1 at 33. Protect Democracy

argues that the “need for prompt compliance” is further

heightened here because the subject matter of the FOIA request

concerns a “critical question that has yet to be answered

19 publicly,” as well as citizens’ fundamental right to vote.

According to Protect Democracy, “[w]hether USPIS is working with

DOJ to conduct these investigations is critical given USPIS’s

role as the law enforcement arm of the federal agency charged

with overseeing voting by mail,” noting that “[t]his role gives

USPIS a unique opportunity to disrupt and delay the flow of mail

ballots across the country, potentially risking the

disenfranchisement of American voters.” Pl.’s Reply, ECF No. 24

at 17.

In opposition, DOJ argues that Protect Democracy has not

shown that harm will result without a preliminary injunction

because, while the events described in the FOIA request occurred

“as early as April 14, 2020,” Protect Democracy did not submit

its request until July 17, 2020 and did not file its motion for

a preliminary injunction until October 9, 2020. Def.’s Opp’n,

ECF No. 21 at 16. DOJ also contends that Protect Democracy’s

assertion that its FOIA request addresses a “critical question

that has yet to be answered” merely amounts to a “policy

disagreement about the scope of the disclosure the Department

has already made about its inquiries into potential violations

of federal law arising from mail-in voting.” Id. at 17. Because

Protect Democracy has already asserted that DOJ’s “activities

regarding potential voter fraud are misaligned with that

‘incidence of . . . fraud,’” DOJ contends that “awaiting

20 ordinary processing of its FOIA request will not deprive it of

the ability to advance those views in public, before or after

the election.” Id. (alteration in original). DOJ further argues

that Protect Democracy puts forth no evidence showing why the

processing of its request must be completed prior to the

election, and that it has not shown that “it cannot use existing

public information about the Department’s efforts to prevent

voter fraud, including news releases and news media interviews

granted by the Department itself, to foster public dialogue.”

Id. at 7, 17-18.

The Court finds that Protect Democracy has established a

likelihood of irreparable harm absent a preliminary injunction.

As stated above, the Court has concluded that the subject matter

of Protect Democracy’s FOIA request is time sensitive due to the

impending election, in which voting is already underway. While

the Court does not conclude at this time that any responsive

communications must be processed prior to Election Day—after

all, new voter fraud investigations may commence subsequent to

that day, particularly in view of the state laws providing that

certain mail-in ballots may be received and counted up to

several days after Election Day, e.g., Absentee Voting, N.Y.

State Bd. of Elections (last visited Oct. 30, 2020) (noting that

ballots submitted by mail must be postmarked by Election Day and

be received within 7 days after Election Day),

21 https://www.elections.ny.gov/votingabsentee.html—Plaintiff has

established that the American public has a need to know

information regarding investigations into matters potentially

affecting voting rights while the inquiries are still ongoing.

The Court also disagrees with DOJ’s argument that the

timing of Protect Democracy’s FOIA request and pending motion

reflects any undue delay. The Court is persuaded that Protect

Democracy’s FOIA request was based upon multiple sources of

information regarding USPS’s ability to timely deliver election

mail and remarks concerning the integrity of mail-in voting

procedures, some of which were reported within days of Protect

Democracy filing its request. See Ex. A to Pl.’s Mot., ECF No.

16-4. In addition, Protect Democracy filed its preliminary

injunction motion only two days after ProPublica and the New

York Times reported that DOJ had revised its “longstanding ‘non-

interference with elections’ policy to permit overt

investigative steps, including questioning witnesses, in

investigations of suspected election fraud involving postal

workers or military employees.” Pl.’s Reply, ECF No. 24 at 16.

Furthermore, though DOJ refers to publicly available

information that Plaintiff can utilize regarding efforts to

prevent voter fraud, DOJ does not refer to any public

information specifically relating to Protect Democracy’s request

about USPIS involvement in such efforts. It is thus uncertain

22 whether there is any information currently available to the

public given Protect Democracy’s assertion that, as far as it is

aware, “no information has yet been made public about USPIS’s

role.” Pl.’s Reply, ECF No. 24 at 17.

Accordingly, the Court finds that Protect Democracy has

sufficiently shown it will likely suffer irreparable harm absent

a preliminary injunction.

C. The Balance of Equities and Public Interest Favor an Injunction

The balance-of-equities factor directs the Court to

“balance the competing claims of injury and . . . consider the

effect on each party of the granting or withholding of the

requested relief.” ConverDyn,

(quoting

Winter,

). “When the issuance of a preliminary

injunction, while preventing harm to one party, causes injury to

the other, this factor does not weigh in favor of granting

preliminary injunctive relief.” Id.; see also Serono Labs., Inc.

v. Shalala,

(D.C. Cir. 1998). By contrast,

the balance of equities may favor a preliminary injunction that

serves only “to preserve the relative positions of the parties

until a trial on the merits can be held.” Rufer v. FEC,

(D.D.C. 2014) (CRC) (quoting Camenisch,

). “The purpose of . . . interim relief is not to

conclusively determine the rights of the parties, Univ. of Tex.

23 v. Camenisch,

(1981), but to balance the

equities as the litigation moves forward. In awarding a

preliminary injunction a court must also ‘conside[r] . . . the

overall public interest,’ Winter, [555 U.S.] at 26.” Trump v.

Int’l Refugee Assistance Project,

(2017)

(second alteration in original).

Protect Democracy argues that DOJ “cannot be ‘burdened’ by

a requirement that it merely comply with the law,” and that,

“[t]o the extent that there is a burden to others awaiting

processing of FOIA requests, it is one imposed by Congress.”

Pl.’s Mot., ECF No. 16-1 at 34. Protect Democracy further argues

that any burden would be minimal, as it has only requested one

category of documents and, even if expedited processing slowed

the processing of other FOIA requests, “[t]his is the

extraordinary case where the public interest favors placing

[Protect Democracy’s] request[] ahead of other requests in

[Defendant’s] FOIA queues.” Id. at 34-35 (alterations in

original) (citations omitted). Protect Democracy further

contends that the public interest favors the requested relief

because the “public will benefit from a better understanding of

DOJ’s plans for the upcoming election, and particularly the

extent to which DOJ is working with USPIS to conduct voter fraud

investigations.” Id. at 35. Protect Democracy points out that

DOJ “has already proven that it can conduct a prompt search for

24 records responsive to this narrowly tailored request”: four of

the five division within DOJ have already completed their search

for records responsive to its request and have communicated the

results of that search. Pl.’s Reply, ECF No. 24 at 20. The

Criminal Division is the only unit that has not yet conducted a

search for records. Id.

In opposition, DOJ argues that “entry of a preliminary

injunction expediting a FOIA request over other pending requests

‘would severely jeopardize that public’s interest in an orderly,

fair, and efficient administration of [] FOIA.’” Def.’s Opp’n,

ECF No. 21 at 27 (alteration in original) (citation omitted).

DOJ contends that the Criminal Division would also be “unduly

burdened” by expedited processing because it handles “about 880

open administrative requests and 50 open litigation matters as

of October 20, 2020.” Id. at 11, 28. “Moreover, operational

adjustments because of the COVID-19 pandemic created an

unanticipated delay in certain aspects of the FOI/PA Unit’s

processing workflow.” Id. at 12. Finally, DOJ argues that

“[r]isk of inadvertent disclosure is an especially weighty

consideration here because by its terms it is evident that a

significant portion of the records potentially responsive to the

Project’s request for communications between USPIS and the

Department could be exempt.” Id. at 29.

Here, the balance of the equities and the public interest

25 favor an injunction. The public interest is best “served by the

expedited release of the requested documents because it furthers

FOIA’s core purpose of ‘shed[ding] light on an agency’s

performance of its statutory duties.’” Elec. Privacy Info. Ctr.,

(alteration in original) (citation

omitted); see also Ctr. to Prevent Handgun Violence v. Dep't of

Treasury,

(D.D.C. 1999) (JR) (“There is

public benefit in the release of information that adds to

citizens’ knowledge . . . .”). Furthermore, given that Election

Day is days away, that a large portion of voters have already

submitted their ballots by mail, and that there is significant

media attention and public debate on the topic of alleged voter

fraud, the public interest is particularly well-served by the

timely release of the requested documents. There is no doubt

that the subject matter of the FOIA request concerns a matter of

great importance. See Am. Oversight v. U.S. Dep’t of State,

, 187 (D.D.C. 2019) (CRC) (noting that where

records “could directly inform the [impeachment] investigation

and the surrounding public debate,” the public’s interest in the

information “outweigh[ed] any harm to other FOIA requesters”);

Wash. Post v. Dep’t of Homeland Sec.,

(D.D.C. 2006) (RMU) (“[P]ursuant to the statutory provision

mandating expedited treatment, the public’s interest in

expedited processing of the plaintiff’s request outweighs any

26 general interest that it has in first-in-first-out processing of

FOIA requests.”).

The Court is also unpersuaded by DOJ’s assertions regarding

the risks of disclosing exempted documents, particularly where

it is unknown whether there are any documents responsive to

Protect Democracy’s request in the first place. “Vague

suggestions that inadvertent release of exempted documents might

occur are insufficient to outweigh the very tangible benefits

that FOIA seeks to further—government openness and

accountability.” Elec. Privacy Info. Ctr.,

. In addition, the Court is not persuaded that the Criminal

Division would face a particularly heavy burden in, at the

least, making a determination on Plaintiff’s FOIA request.

Plaintiff’s request is relatively limited in that it only seeks

“communications” regarding a narrowed subject matter and time

period. The Court acknowledges that the Criminal Division faces

a substantial FOIA backlog, including two expedited FOIA matters

relating to Ukraine. However, Protect Democracy clarified in its

reply brief that it is willing to confer with DOJ on proposing a

production schedule that is not unduly burdensome to DOJ.

Protect Democracy has stated that, “if after running that search

the Criminal Division does identify potentially responsive

documents, Protect Democracy is committed to working with both

Defendant and the Court on a processing schedule that serves

27 Protect Democracy’s need to inform the public debate while

imposing a minimal burden on both Defendant and the other

requesters in line.” Pl.’s Reply, ECF No. 24 at 20-21. The Court

will therefore order the parties to meet and confer in an effort

to devise a joint proposed schedule for the production of any

non-exempt communications responsive to Protect Democracy’s FOIA

request.

Accordingly, the Court finds that the balance of the

equities and the public interest favor an injunction.

IV. Conclusion

For the foregoing reasons, the Court GRANTS IN PART and

DENIES IN PART the Plaintiff’s motion for a preliminary

injunction. Any request to stay this decision pending appeal

will be denied for substantially the same reasons as those

articulated in this Opinion. An appropriate Order accompanies

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge October 30, 2020

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