In this action plaintiff challenges the Department of State's practice of imposing a "date-of- request cut-off" on its responses to requests for records under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") as unlawful under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA") The date-of-request cut-off is invalid, plaintiff submits, because the Department has not met the procedural or substantive requirements for such a Rule.

    First, the cut-off rule was never been noticed as a proposed rule for public comment, as required by the APA. 5 U.S.C. § 553(b). Second, the cut-off is contrary to law because the Department has not complied with the Court of Appeals' decision in McGehee v. CIA, which declared that an identical date-of-request cut-off was unlawful unless the government could make a factual showing that less-restrictive cut-offs were not feasible. 697 F.2d 1095, 1100-01 (D.C. Cir. 1983), aff'd in pertinent part and vacated in part, 711 F.2d 1076 (D.C. Cir. 1983). No such factual showing has been made by the Department and the Department's argument that FOIA rules are exempt from notice and comment rule making is based on a misreading of the APA.

    In its Motion to Dismiss, the Department argues that plaintiff's challenge to the cut-off is not justiciable because plaintiff lacks standing and the issue is not ripe. These arguments are without merit. Plaintiff has standing because it has a pending FOIA request subject to the cut-off, and plans to file additional requests in the future. In prior cases, the Court of Appeals has held that FOIA requesters like Public Citizen have standing to challenge an agency's FOIA processing practices when they have been subject to those practices in the past, and expect to make similar requests in the future. See Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) and Better Government Ass'n v. Department of State, 780 F.2d 86 (D.C. Cir. 1986). In addition, the Department's assertion that McGehee held that FOIA cut-offs are not subject to facial challenge is erroneous. The plaintiff in McGehee did not bring a facial challenge to a cut-off rule based on the APA, as Public Citizen has done here. Moreover, nothing in McGehee provides that cut-off rules should enjoy a special immunity from facial challenge.     Plaintiff also challenges the defendants' claims that certain records fall wholly or partially within exemptions provided in the FOIA. Defendants have moved for summary judgment on these claims, relying on two declarations to support their claims that the records withheld are exempt from disclosure because the information is classified or protected by the work-product privilege. To prevail on this claim, defendants must demonstrate that the records fall entirely within the exemptions. Defendants' declarations are plainly inadequate on this score. The declarations fail to address essential elements, and at least some segments of the record that are being withheld are clearly not exempt from disclosure. Accordingly, the defendants' motion for summary judgment should be denied, and the court should order the agencies to release the documents or permit discovery on the government's exemption claims.See footnote 1

    The main purpose of the FOIA is "to 'open[] up the workings of government to public scrutiny." Stern v. FBI, 737 F.2d 84, 88 (1984) (quoting McGehee, 697 F.2d at 1108). Unfortunately, this goal has been frustrated because many federal agencies are substantially backlogged in responding to requests, and these backlogs have resulted in significant delays in making records available.See footnote 2 Congress has recognized that "excessive delay by the agency in its response is often tantamount to denial." H.R. Rep. No. 876, 93rd Cong., 2d Sess. 6 (1974). The FOIA now directs agencies "make records available promptly," 5 U.S.C. § 552(a)(3), and to make determinations on requests within twenty working days. Id. § 552(a)(6)(A). Despite these mandates, long delays continue to exist at many agencies.See footnote 3
 
    In particular, for many years the Department of State has had substantial FOIA backlogs that delay responses to FOIA requests for a year or more. For example, in a 1996 report to the Department of Justice, the Department reported that it was still working on responding to thousands of FOIA requests that it received two to three years earlier -- and that the number of requests in the backlog was growing. See Sforza Decl., Exhibit F, Department of State Report to the Department of Justice at 2 (dated August 19, 1996). These processing delays are not new, but are longstanding.See footnote 4 This declaration was filed with this Court on behalf of the Department in Springman v. Department of State, D.D.C. No. 94-1814, on Aug. 19, 1994.See footnote 5

    The harm imposed by these backlogs is exacerbated if the agency imposes a "date-of-request cut-off." Under such a cut-off, if an agency delays its response to a FOIA request for several months or years, when the FOIA requester eventually receives a response the records released will not include any documents added to the agency's files during the long period of delay. Thus, if an agency with a date-of-request cut-off delays in responding to a FOIA request for a year, the requester must not only wait a year for a response, but the records that the requester eventually receives will be over a year old. In order to obtain more recent records, the requester must continually submit new requests for the same records. However, even if the requester continually submits new requests, it can never obtain the agency's current records on a topic because the cut-off will always exclude the most recent records from the agency's response.

   In 1983, the Court of Appeals held that such a cut-off requires special justification because limiting responses to FOIA requests based on a cut-off is inconsistent with the agency's obligation to take "reasonable steps to ferret out requested documents." McGehee, 697 F.2d at 1101 (emphasis in original). In McGehee v. CIA, the Court of Appeals reviewed the CIA's decision to impose a date-of-request cut-off on a FOIA request for records relating to the Jonestown Massacre. The CIA did not respond to the request until almost two and a half years after McGehee and the agency agreed on the scope of the original request. See id. at 1098-1100. When the CIA finally responded, the documents it provided did not include any records after the date of McGehee's request. See id. at 1100. During the course of the litigation, McGehee learned that the CIA had eliminated any documents created during the intervening period by imposing an undisclosed time-of-request cut-off. See id.

    On review, the district court upheld the cut-off because it accepted the agency's affidavit asserting that an alternative cut-off date "would exacerbate the delays experienced by FOIA requesters and would increase the cost of compliance." McGehee v. Central Intelligence Agency, 533 F. Supp. 861, 866 (D.D.C. 1982) (citing Bacon Affidavit), reversed and remanded, 697 F.2d 1095, aff'd in pertinent part, 711 F.2d 1076 (D.C. Cir. 1983). The Court of Appeals reversed and remanded, holding that the agency's affidavit was inadequate to justify the time-of-request cut-off.

    The Court of Appeals held that, because a time-of-request cut-off is at odds with FOIA's mandate for prompt and full disclosure, the agency bears the burden of persuading the trier of fact that the cut-off is necessary. 697 F.2d at 1100-1101. Although the Court left open the possibility that an CIA might be able to meet this burden on remand, the Court made clear that it would be extremely difficult to make the necessary showing.

    Apart from the fact that the CIA's cut-off was unpublished, the Court stated that the agency must also demonstrate that alternative cut-off dates that would be more responsive to requesters were not feasible. See id. at 1104-05. It was highly unlikely that an agency could make this showing, the Court concluded, because "alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by [the CIA], readily come to mind." Id. at 1104. Indeed, the Court even spelled out language that the agency could use to implement an alternative that would provide requesters with records created up through the date that the agency initiated its search for the records. See id.

    In their Memorandum in this case, defendants suggest that the rehearing decision in McGehee altered the Court of Appeals' mandate on the cut-off date; that "[t]he case never reached the district court"; and that "McGehee left the CIA's cut-off condition intact." Defs' Memorandum at 23, 29. Each of these statements is incorrect. On rehearing, the panel vacated Part IV of its opinion, which contained its discussion of evidence on the separate issue of whether the CIA may have acted in bad faith. See 711 F.2d 1076-77. The rehearing decision explicitly states that "[a]ll other aspects of our original opinion are reaffirmed," which include the Court's ruling on the legality of date-of-request cut-offs. Id. at 1076. Contrary to defendants' representation, McGehee did continue on remand in the district court, where the CIA abandoned its effort to apply the date-of-request cut-off to McGehee and agreed to search for records "up to and including September 15, 1983" -- a cut-off date long after the date of McGehee's request. See Plfs' Memorandum in Support of Discovery, Affidavit of Louis J. Dube filed in McGehee v. Central Intelligence Agency, C.A. No. 80-2997 (dated June 29, 1984).

    The Department of State has adopted a date-of-request cut-off that is identical to the cut-off rejected in McGehee:
    The Department has established that the cut-off date for retrieving records is the date of the initial request letter. Only records that were created on or before the date of your request will be retrieved.

Tab 1, p. 2, Department of State Responses to Frequently Asked Questions concerning the FOIA. The Department describes this cut-off as one of the "controlling conditions for FOIA requests," and the Department informs requesters that it is one of the conditions that "governs all Freedom of Information Act requests." Defs' Declarations, Tab A, Declaration of Margaret P. Grafeld, ¶ 6 and Exhibit 3 ("Grafeld Decl.")

    The Department's date-of-request cut-off, however, has never been noticed for comment as a proposed rule for public comment in accordance with the APA. The Department has published other FOIA rules for notice and comment, see 62 Fed. Reg. 48,787 (1997), but has not included the cut-off rule in these proposed rule makings.

    Plaintiff Public Citizen is a nonprofit, public interest organization, that seeks to promote public health, safety and consumer welfare through lobbying, research, publications, and educational activities. Public Citizen's research and educational programs make extensive use of records held by federal agencies, and it regularly uses the FOIA to obtain records from government agencies, including the Department of State. See Tab 2, Declaration of Michelle Sforza ¶¶ 2-3 ("Sforza Decl.")See footnote 6

    Public Citizen has repeatedly submitted FOIA requests to the Department and has been consistently informed by the Department that its requests are subject to the "date-of-request cut-off." See Tab 2, Sforza Decl. ¶ 6. Indeed, the Department imposes this restriction even if the request specifically seeks records created after the date of the cut-off. For example, on June 22, 1998, Public Citizen submitted a FOIA request seeking records concerning activities from April 1 through November 1998. Id. Exhibit A. The Department has stated that this request is subject to the date-of- request cut-off, and "no documents which originated after the date of your letter will be retrieved." Id. Exhibit B. Public Citizen intends to continue to submit FOIA requests for records concerning the Department of State's current activities, and the date-of-request cut-off significantly impairs Public Citizen's access to these records. Id. ¶¶ 8, 9.

    In this action, Public Citizen charges that the date-of-request cut-off is (1) procedurally invalid because, if the Department has a justification for its cut-off rule, it has never subjected the rule or its justification to public scrutiny and comment in a rule making in accordance with the APA, see Complaint ¶¶ 10-13, 16; and (2) substantively invalid because the Department cannot justify the cut- off condition under McGehee.

    Public Citizen's complaint in this action also challenges the State Department's and the USTR's response to FOIA requests submitted on April 17, 1998 for records on each agency's management and disposal of electronic communications. See Complaint ¶ 5. Just before moving for summary judgment, each agency released records that it previously withheld and abandoned all but one of its claims of exemption under 5 U.S.C. § 552. Consequently, the agencies' "Vaughn" declarations address two records.

    First, the State Department records at issue are entries in Department record schedules describing certain agency files and the schedule on which they are to be destroyed or transferred. Such schedules are submitted to the Archivist of the United States for public comment when they are first drafted. 44 U.S.C. § 3303a(a). The State Department schedules at issue here were not classified at the time this lawsuit began, but the government now claims that they were classified in the course of responding to Public Citizen's request. Grafeld Decl. at 10. Second, USTR is withholding, in its entirety, a document that it claims is "attorney work product" and therefore exempt under 5 U.S.C. § 552(b)(5). See Defs' Exhibit B, Decl. of Bruce Overton ¶ 4.

    Defendants have moved for dismissal or for summary judgment. Defendants do not dispute that the cut-off rule has never been published, but argue that publication is not required and the rule is substantively justified as a way to minimize processing delays. See Defs' Memorandum at 23-25. Defendants also claim that the Public Citizen lacks standing to challenge the rule, and that this claim is either not ripe or moot. Both the Department of State and the USTR have moved for summary judgment on the grounds that their declarations satisfy their obligation to demonstrate that the records withheld are exempt from disclosure in their entirety. In its Order of December 17, 1998, this Court denied plaintiff's request for discovery pursuant to Fed. R. Civ. P. 56(f) and directed plaintiff to respond on the merits.See footnote 7

    This Court should deny defendants motion to dismiss and for summary judgment and, instead, enter partial summary judgment for plaintiffs by declaring the date-of-request cut-off rule invalid. The issues presented by the respective motions are addressed here in three sections.

    First, we address defendants' claims that plaintiff's challenge to the date-of-request cut-off is not justiciable. Defendants' argument that plaintiff lacks standing or the claim is not ripe are without merit because plaintiff has been, is presently, and expects in the future to be, subject to the Department of State rule that is at issue here. Thus, plaintiff has standing to challenge the rule.
Moreover, the issue of whether the Department's rule should have been noticed for comment or is substantively invalid is ripe for decision because further factual development will not crystallize the dispute.

    Second, the Court should deny defendants' motion and enter partial summary judgment for the plaintiff because the undisputed facts show that the cut-off rule is invalid for procedural and substantive reasons. Procedurally, the Department never published the rule for notice and comment, and defendants' arguments that this rule is exempt from this requirement are without merit. Substantively, the Department's rule cannot be reconciled with the Court of Appeals' decision in McGehee that an agency cannot impose a date-of-request cut-off unless alternative cut-offs are not feasible _ particularly where the agency has a lengthy delay in its FOIA processing.

    Third, Defendants' motion for summary judgment on the FOIA exemption claims must be denied because the agencies' declarations do not show that the agencies are entitled to withhold these records. To the contrary, it is evident that portions of the Department of State records have been improperly withheld, and USTR has not shown that the document it is withholding was prepared for litigation.
I.    DEFENDANTS' MOTION TO DISMISS MUST BE DENIED BECAUSE DEFENDANTS' ARGUMENTS THAT THE VALIDITY OF THE DEPARTMENT'S CUT-OFF DATE IS NOT JUSTICIABLE ARE WITHOUT MERIT.

    The Department argues that Public Citizen's challenge to the cut-off rule should be dismissed because it has not been injured by the rule, or because the challenge is not yet "ripe" for judicial review. The Department's sole basis for this argument is its claim that, because it has already responded to Public Citizen's April 17, 1998 FOIA request and the cut-off did not restrict the response to that request, Public Citizen's challenge is moot.

    Public Citizen's complaint and declaration, however, demonstrate that it has been injured by the cut-off rule in other FOIA requests, and that it will continue to be injured by the rule in the future. Because this suit involves a challenge to a generally applicable rule that governs not only the April 17, 1998 request, but all FOIA requests, Defendants' arguments are misplaced.

   Indeed, two prior FOIA cases demonstrate that Public Citizen has standing to bring a facial challenge to this rule because it will continue to be subject to the harm imposed by the cut-off condition. In Better Government Ass'n v. Department of State, 780 F.2d 86 (D.C. Cir. 1986), a FOIA requester brought an action to challenge the validity of guidelines used by the Department of State and other agencies to determine whether FOIA requesters were entitled to a waiver of fees. After the complaint was filed, the government granted the specific fee waiver requests identified in the complaint. The government then asserted that the plaintiff no longer had standing, and argued that the plaintiff's facial challenge to the guidelines was not ripe for review. The Court of Appeals rejected both arguments. It held that the plaintiffs had standing because, even though the specific fee waiver was no longer at issue, the plaintiffs were frequent FOIA requesters and would continue to be subject to the challenged guidelines. Id. at 91-92. Plaintiff's challenge satisfied the prudential considerations for determining whether a claim is ripe because the validity of the fee waiver guidelines did not depend on the facts concerning a specific fee waiver request, and the plaintiffs had an interest in prompt consideration of the legality of the guidelines because the guidelines affected their ability to obtain records under the FOIA. Id. at 92-94.

    Similar standing and ripeness arguments were rejected in Payne Enterprises, Inc. v United States, 837 F.2d 486 (D.C. Cir. 1988). Payne concerned a corporation that routinely submitted FOIA requests for records on government contracts. The Air Force claimed that the records were exempt but, when the corporation took an administrative appeal, the Air Force acknowledged that the exemption claim was not justified and released the records. The corporation brought suit because, even though it was winning its administrative appeals, the exemption claims forced it to undertake repetitive appeals and unnecessarily delayed its access to the records. The government argued that the corporation's challenge was not justiciable because the Air Force had released the requested records and instructed its officials not to make the exemption claims in the future, but the Court of Appeals rejected these arguments. The Court of Appeals found that the corporation had standing to challenge an agency practice that impaired its access to information, even if the practice was informal. Id. at 491. The challenge was also ripe because the practice at issue did not depend on the individual FOIA request, and the corporation's need for prompt responses to its FOIA requests gave it a concrete interest having its claim adjudicated now, rather that forcing it to file additional FOIA suits. Id. at 494-95. As we show in more detail below, these cases demonstrate that the Court of Appeals has already rejected the standing and ripeness arguments made in the Defendants' Motion to Dismiss.

    A.    Public Citizen Has Standing. 

    As alleged in the Complaint and confirmed by the Sforza declaration, Public Citizen has submitted numerous FOIA requests to the Department of State and plans to continue to submit such requests. Complaint ¶ 13; Sforza Decl. ¶¶ 3, 4. The Department has routinely imposed the date-of- request cut-off on these requests. Id. ¶ 6. For example, Public Citizen has a pending FOIA request for Department of State records concerning travel during the period from April 1 through November 1998. The Department, however, has stated that it will not retrieve records after the date of the request, June 22, 1998, based on the date-of-request cut-off. Id. ¶ 5. Moreover, the Department has stated that it does not expect to respond until a year after the request was received. See Defs' Opposition to Plaintiff's Motion for Leave to File Amended Complaint at 2 (Jan. 28, 1999) (stating that Department does not expect to complete processing for another five months). Thus, under the date-of-request cut-off, Public Citizen will not receive the records that it has requested from after June 22, 1998, and any records that it does receive will be at least a year out of date. As a result, the "date of request cut-off is a significant impairment to [Public Citizen's] access to State Department records under the FOIA." Id. ¶ 8.

    In addition, Public Citizen intends to continue to submit FOIA requests for records concerning the Department's current activities, and the cut-off will impair Public Citizen's interest in timely access to those records. Id. ¶ 9. Thus, the Department's recent response to the April 17, 1998 FOIA request does not render this action moot because Public Citizen is being, and will continue to be, injured by the cut-off rule if it is not struck down.

    Better Government Ass'n and Payne underscore the lack of merit in the Department's standing argument. Like the requesters in those cases, Public Citizen has made repeated FOIA requesters subject to the practice that is being challenged as unlawful in this action. Public Citizen's ongoing need for access to records without the restriction imposed by the date-of-request cut-off provides standing for this challenge to the Department's rule. As the Circuit Court has observed, Payne and Better Government Ass'n establish that plaintiff who alleges harm from ongoing policy has standing to challenge the continued implementation of that policy under this Circuit's cases following Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22 (1974). See City of Houston v. Dep't of Housing and Urban Development, 24 F.3d 1421, 1428, 1430 (D.C. Cir. 1994).

    As part of its standing argument, the Department asserts that Public Citizen lacks standing because the Department's declaration states that no more documents would have been located in response to the April 17, 1998 request even if the Department did not have a date-of-request cut-off. See Defs' Memorandum at 26. This claim misses the mark for two reasons. First, as explained above, the injury that establishes Public Citizen's standing does not arise from a specific request but from the fact that its FOIA access is generally subject to this condition. Thus, in Better Government Ass'n, although the government granted the requesters' fee waiver for the specific requests that triggered the suit, the Court of Appeals nevertheless held that the requesters had standing to challenge the fee waiver guideline because they were frequent FOIA requesters. The same situation is present here.

    Second, the Department's argument that the cut-off imposes no harm if the agency later reports that a more complete search would not have located more documents is erroneous. The harm of the cut-off policy also arises from its effect on the "primary conduct" of requesters. See Better Government Ass'n, 780 F.2d at 93. Because of the cut-off, the only way for Public Citizen to determine whether additional records exist beyond the date of the cut-off is to either file suit and demand a more thorough search, or to file repeated requests for records of the same subject matter. Repeatedly having to confront the consequences of an agency practice is precisely the harm that the Circuit Court found established standing in Better Government Ass'n and Payne.

    B.    McGehee Does Not Preclude Facial Challenges To Rules. 

    The Department argues that Public Citizen's challenge to the cut-off rule should be dismissed because McGehee indicates that a plaintiff can never bring a facial challenge to a date-of-request cut- off. According to the Department's theory, McGehee states that the validity of date-of-request cut- off conditions depends on the "specific factual setting in which they have been applied," and, therefore, the rule must be challenged repeatedly for each individual request. Defs' Memorandum at 15-16.

   This argument is without merit because McGehee says nothing of the sort. Nothing in McGehee holds that a date-of-request cut-off governing all requests cannot be challenged as an invalid rule. Moreover, even if McGehee required that the plaintiff have a specific request pending, Public Citizen has a pending request for records beyond the date-of-the-request and the Department has stated that its response to that request will be limited by the cut-off rule. See Sforza Decl. ¶ 5.

    The Department's argument that McGehee states that a Court cannot determine whether a cut-off rule is valid misreads the opinion. In McGehee, the Court of Appeals rejected the government's argument that date-of-request cut-offs "are always proper" as a matter of law, and held that it was necessary to examine "the particular facts of the case before us to assess the reasonableness of the agency's conduct." McGehee, 697 F.2d at 1102-03. The "particular facts" to be examined, however, were not facts concerning McGehee's specific FOIA request, but the CIA's contention that facts concerning its processing of FOIA requests justified the cut-off. Id. at 1103-04. The Court of Appeals did not remand for development of the record concerning McGehee's individual request, but placed the burden on the CIA to produce facts showing that its FOIA processing procedures justify the cut-off and render alternatives impractical. Id. at 1104-05. The opinion does not hold or even suggest, that a court cannot evaluate whether a cut-off rule is invalid and must adjudicate the application of the cut-off to each individual request. Nor does McGehee indicate that a cut-off rule is exempt from the APA's mandate that rules adopted without complying with the requisite procedures must be set aside. See 5 U.S.C. § 706(2)(D).

    Moreover, Public Citizen's challenge to the cut-off rule here is directly analogous to the challenges that the Court of Appeals held were justiciable in    Better Government Ass'n and Payne. In Better Government Ass'n the Court held that the facial challenge to the agency's policy on fee waivers was ripe because the district court's ability to appraise the legitimacy of the agency guidelines "in light of the statutory requirements of FOIA and the APA would not be enhanced by the existence of a particular FOIA fee waiver request." Better Government Ass'n, 780 F.2d at 92-93. In Payne the Court found that, although facts were involved in the case, the legal issues did not depend on character of a specific request and the government's claim that "each request is different and may implicate different concerns misses the point of the case." Payne, 837 F.2d at 492. Similarly, the determinative facts in evaluating the Department of State's compliance with McGehee are (i) the failure to publish the rule for comment; and (ii) the facts concerning the Department's basis (or lack of basis) for the cut-off -- not facts concerning any individual requests. Under McGehee, the factual issues cited by the Department, such as the number of documents covered by a particular request, see Defs' Memorandum at 16 -- are irrelevant because the Department maintains that the cut-off governs all requests, regardless of these factors.

    C.    The Validity Of The Cut-Off Rule Is Ripe For Adjudication

    Moreover, the cut-off rule is not a vague standard that requires the court to guess at how it would be applied. To the contrary, the Department's cut-off rule is a bright-line standard that squarely presents the legal issue of whether an agency may cut-off its response to FOIA requests. The Department's own documents unequivocally state:

    The Department has established that the cut-off date for retrieving records is the date of the initial request letter. Only records that were created on or before the date of your request will be retrieved. . . . Notice of this procedure is sent to each requester in the Department's acknowledgment letter. It will soon be included in the Department's FOIA regulations.Tab 1 at 3. The Department's declaration and letters underscore that the cut-off rule "governs all Freedom of Information Act requests," see Grafeld Decl., Exhibit 3, and is treated as one of the "controlling conditions for FOIA requests," ¶ 6. There is no provision for waiver or exception, nor any ambiguity that requires interpretation for judicial review. To the contrary, the Department has consistently told Public Citizen that all FOIA requests are subject to this cut-off. See Tab 2, Sforza Decl. ¶ 7.See footnote 8

    Thus, the Department's cut-off rule "has 'crystallized' sufficiently for purposes of judicial review," because "the outlines and impact of the disputed practice are manifest." Payne, 837 F.2d at 492-93. As in Better Government Ass'n, the record shows that the agency "ha[s] utilized and will continue to utilize" the challenged standard in its present form. Better Government Ass'n, 780 F.2d at 93.

    The Department argues that City of Houston v. Dep't of Housing and Urban Development, 24 F.3d 1421 (D.C. Cir. 1994), governs the ripeness issue in this case. See Defs' Memorandum at 17. This claim is clearly misplaced. Unlike this case, the plaintiff in City of Houston did not bring a facial challenge, but filed suit challenging a specific agency decision on a funding request. Id. at 1430. When the specific claim became moot and the plaintiff sought to convert the suit into a facial challenge, the Court of Appeals found that such a challenge was not ripe because HUD had not announced any policy, guideline or rule that would be generally applicable in future cases. Id. at 1430-31. The case would be different, the Court of Appeals observed, if HUD had "announced a firm policy applicable in all cases," id. -- as the Department of State has done here.

    D.    Defendants' Claim That The Hardship Of Having To Repeatedly Challenge The Rule Is Not Sufficient To Make The Case Ripe For Review Is Erroneous.

    Finally, the Department asserts that the Court may dismiss this case on prudential grounds, so that Public Citizen would have to file another suit bringing the same challenge to the cut-off, because dismissal would not result in any hardship. Defs' Memorandum at 19-20. Payne and Better Government Ass'n make clear that this claim is without merit. For example, in Payne the Court of Appeals held that the mere possibility of unreasonable delay in making records available under the FOIA and requiring an administrative appeal was sufficient to show that the plaintiff had "'an interest in prompt consideration of the allegedly unlawful agency action'" and the case should not be dismissed for prudential ripeness. Payne, 837 F.2d 486 (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985)). Similarly, in Better Government the Court of Appeals held that the fact that the plaintiff relied on access to agency records under the FOIA as part of its mission demonstrated the necessary hardship for judicial review. See 780 F.2d at 93-94.

    As in these prior cases, the FOIA practice at issue here has a direct and immediate impact on the "primary conduct" of Public Citizen and other requesters seeking access to the Department's records. See Declaration of Michelle Sforza ¶ 8. The Department itself acknowledges that, if this Court lets the date-of-request cut-off stand without deciding whether it is legal, Public Citizen might be required to file additional FOIA requests and "suffer an unreasonable FOIA response" that could only be remedied by filing another lawsuit. There is no basis for deferring judicial review of the cut- off rule to another lawsuit.

II.    THE DATE-OF-REQUEST CUT-OFF RULE IS PROCEDURALLY AND SUBSTANTIVELY INVALID. CONSEQUENTLY, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT MUST BE DENIED AND PARTIAL SUMMARY JUDGMENT SHOULD BE ENTERED FOR PLAINTIFF BY DECLARING THE CUT-OFF RULE VOID.

    As we show below, the cut-off rule is both procedurally and substantively invalid. First, the rule is procedurally invalid because, although it impairs substantial rights of private parties seeking records under the FOIA, it has never been published as a proposed rule for comment, as required by the APA. Second, even if notice and comment rule making is not required, the cut-off rule is invalid because FOIA does not give the Department authority to limit requests and the cut-off is inconsistent with the Court of Appeal's decision in McGehee. Defendant's Motion for Summary Judgment upholding the cut-off must be denied because motion asks this Court to accept the arguments that were rejected by the Court of Appeals in McGehee.

    A.    The Date Of Request Cut-off Is Invalid Because The Department Of State Adopted It Without Considering Public Comment, As Required By The APA.

    The APA requires that agencies publish a notice describing any proposed rules, and solicit public comment. 5 U.S.C. § 553(b). Rules that are issued without complying with these notice and comment procedures are invalid and may not be enforced. See United States v. Picciotto, 875 F.2d 345, 346 (D.C. Cir. 1989); Community Nutrition Institute v. Young, 818 F.2d 943, 945 (D.C. Cir. 1987).

    The Department concedes that it adopted the cut-off rule without publishing it as a proposed rule or considering public comments. See Answer ¶ 12. Thus, the Department has never allowed commenters to rebut whatever factual assumptions underlie the rule, and it has never permitted public scrutiny of its rationale for the rule, as contemplated by the APA.

    Moreover, in its motion for judgment, the Department does not dispute that the cut-off is a "rule" under the APA. See 5 U.S.C. § 551(4) (defining "rule"). Instead, it argues that the cut-off rule is exempt from the notice and comment requirements of 5 U.S.C. 553(b) because (1) the FOIA implicitly exempts rules regarding FOIA from notice and comment rule making; or (2) the rule falls within the explicit exemption for "rules of agency organization, procedure or practice. Id. § 553(b)(A). As show below, both claims are without merit because the first exemption does not exist, and the second does not apply. Because the cut-off rule is not exempt, plaintiff is entitled to judgment on its claim that the cut-off rule is in valid because it was never published for comment in accordance with the APA.

     1.    FOIA Does Not Exempt Regulations From The Notice and Comment Requirements of the APA.

    The Department of State asserts that, although notice and comment is required for agency rules, the FOIA, in 5 U.S.C. § 552(a)(1)(A)-(E), provides that regulations governing FOIA procedures need "only be published in the Federal Register." Defs' Memorandum at 29-30. According to the Department, 5 U.S.C. § 552(a)(1) creates a special rule for FOIA procedures such that "the only publication requirement that applies to FOIA policies is that they appear in the Federal Register." Defs' Memorandum at 33.

    This argument is without merit because the Department's description of 5 U.S.C. § 552(a)(1) as a special requirement for FOIA procedural rules is totally inaccurate. Section 552(a)(1) is not limited to FOIA procedures, but requires that all types of procedural and substantive rules "be published in the Federal Register for the guidance of the public." See Northern California Power Agency v. Morton, 396 F. Supp. 1187, 1191 (D.D.C. 1975), aff'd, 539 F.2d 243 (D.C. Cir. 1976). Nothing in this section singles out FOIA rules for special treatment -- much less implies that such FOIA rules may be issued without notice and comment.

    To the contrary, Sections 552(a)(1) and 553(b) are parallel requirements generally applicable to agency rules. Section 553(b) requires that proposed rules be published in the Federal Register. Section 552(a)(1) requires that final rules (as well as other materials) be published in the Federal Register. Both of these publication requirements apply regardless of whether the rules concern FOIA.

    The Department also misconstrues the relationship between Sections 552(a)(1) and 553(b) when it argues that Public Citizen cannot challenge the failure to publish the proposed rule because it had actual notice that the Department had adopted the cut-off rule. Defs' Memorandum at 31-32. The Department claims that FOIA requirements that were never published as proposed rules can be applied against parties with actual notice of the rule because Section 552(a)(1) provides that rules that should have been published in the Federal Register may not be applied to a person unless the person had "actual and timely notice of the terms thereof." Id. at 30-32.

    Notice of the final rule, however, does not cure the agency's failure to publish a proposed rule for notice and comment. Contrary to the Department's claim, the case law makes clear that a party can challenge the agency's failure to publish a proposed rule in accordance with Section 553(b) even if the party has actual notice of the final rule. For example, in United States v. Picciotto, 875 F.2d 345, National Park Service sought to enforce a rule that was provided to Picciotto before he violated the rule, even though the rule was never subject to notice and comment. Although Picciotto had notice of the rule, the Court held that the rule was invalid and overturned Picciotto's conviction because the agency did not follow the notice and comment procedures of Section 553(b). Similarly, in Syncor International Corp v. Shalala, 127 F.3d 90 (D.C. Cir. 1997), the plaintiffs' challenge to a published FDA notice was upheld on the grounds that the notice was a rule that must first be noticed for comment as a proposed rule -- even though the plaintiffs plainly had actual notice of the terms of the challenged notice. Id. at 95-96.

    Moreover, actual notice can not cure violation of Section 553(b) because the publication requirements of Section 552(a)(1) and 553(b) serve different purposes. Section 552(a)(1) is intended to assure that agencies put persons affected by their rules on notice of what is required, so the statute provides that actual and timely notice is a substitute for publication. Section 553(b), on the other hand, is intended "to allow the agency to benefit from the experience and input of the parties who file comment with regard to the proposed rule" before the agency decides to adopt the rule as law. National Tour Brokers Ass'n v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978). Actual notice of the rule after the agency has made its decision does nothing to remedy the agency's failure to comply with Section 553(b). Id. at 901-02. By adopting the cut-off rule without any public notice, the Department of State deprived Public Citizen and others subject to the rule the opportunity to convince the agency that the cut-off rule is illegal or, at least, unwise or based on false assumptions. Because the cut-off rule was adopted without complying with this procedural requirement, it is invalid.

    The Department's claim that FOIA rules are implicitly exempt from the notice and comment requirements of the APA is also foreclosed by 5 U.S.C. § 559. This section of the APA provides that a "[s]ubsequent statute may not be held to supersede or modify this subchapter . . . except to the extent that it does so expressly." Through this provision, Congress made clear that "[e]xemptions from the Administrative Procedure act are not lightly to be presumed." Marcello v. Bonds, 349 U.S. 302, 310 (1991). Nothing in the FOIA states that agency rules concerning the FOIA are exempt from the procedural requirements of the APA.

    Despite Section 559, the Department argues that Asiana Airlines v. FAA, 134 F.3d 393 (D.C. Cir. 1998), supports its claim for an implicit exception. Defs' Memorandum at 31. This claim is unavailing because the Department cannot point to any statute here that is remotely similar to the statute at issue in Asiana Airlines. Asiana Airlines involved a statute that specifically directed the FAA to publish "`an initial fee schedule and associated collection process as an interim final rule,'" and request comments on this interim final rule to expedite collection of the fees. 134 F.3d at 395 (quoting 49 U.S.C. § 45301(b)(2)). The Court concluded that "when Congress sets forth specific procedures that 'express its clear intent that APA notice and comment procedures need not be followed,' an agency may lawfully depart from the normally obligatory procedures of the APA." Id. at 398 (quoting Methodist Hospital of Sacramento v. Shalala, 38 F.3d 1225 (D.C. Cir. 1994). The specific procedures in the FAA statute required such an exception because the statute "cannot be reconciled with the notice and comment requirements of § 553" under any reasonable construction. Id. In contrast, no such conflicting statute is at issue here. Congress has not enacted any statute that specifies special procedures for FOIA rules that are irreconcilable with compliance with the APA.

    Finally, the Department also argues that, because FOIA states that agencies shall promulgate regulations concerning fees "pursuant to notice and receipt of public comment," 5 U.S.C. § 552(a)(4)(A)(1), this Court should imply that all other FOIA rules are exempt from notice and comment.See footnote 9 Defs' Memorandum at 32. Nothing supports this implication, and it is plainly inconsistent with 5 U.S.C. § 559's mandate that exemptions from the APA -- including the notice and comment provisions -- must be express. Moreover, the Department's argument is contrary to the basic canons of statutory interpretation that "repeals by implication are disfavored." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017-18 (1984). "'[W]here two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.'" Id. (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34 (1974), quoting Morton v. Mancari, 417 U.S. 535, 551 (1954)). The requirement in FOIA that rules concerning fees be published for notice and comment does not implicitly repeal 5 U.S.C. § 553 for FOIA regulations or impose inconsistent mandates. Rather, the law provides that agencies must publish both fee schedules and FOIA rules that fall within 5 U.S.C. § 553 for notice and comment.

    Indeed, review of the Federal Register shows that agencies, including the State Department, routinely publish proposed rules concerning FOIA procedures -- including those that do not concern fees -- in accordance with the APA. See 62 Fed. Reg. 48757 (Sept. 17, 1997) (State Department publishes interim rules, claiming "good cause" exemption under 5 U.S.C. § 553); 62 Fed. Reg.45184 (Aug. 26, 1997) (Department of Justice proposed rules published for comment); 62 Fed. Reg. 52668 (Oct. 9, 1997) (Office of Management and Budget proposed rules published for comment). The Department has never previously claimed that its FOIA rules are exempt from notice and comment under the APA, and no court has ever recognized an exception for FOIA rules. In short, the APA requires that agency rules be published for notice and comment unless there is express exemption, and nothing in the FOIA provides an express or implied exemption.

     2.    The Cut-Off Rule Is Not Within the Exemption for Rules of Agency Organization, Procedure and Practice. 

    The Department's alternative argument that notice and comment is not required because the cut-off falls within the statute's express exception for "rules of agency organization, procedure or practice," 5 U.S.C. § 553(b), is even weaker than its argument for an implied exception. This exception, like other exceptions to the notice and comment requirement "is to be construed very narrowly." Reeder v. FCC, 865 F.2d 1298, 1305 (D.C. Cir. 1989). Accordingly, the courts have held that purportedly procedural rules are not exempt if they "substantively affect private parties and resolve important issues without the beneficial input that those parties could provide." National Assoc. of Home Health Agencies v. Schweiker, 690 F.2d 932, 950 (D.C. Cir. 1982), cert. denied, 459 U.S. 1205 (1983). Because the cut-off rule limits on requester's substantive rights to agency records under the FOIA, it does not fall within this exemption.

    The decisions in this Circuit construing Section 553(b)(A) emphasize that the "'critical feature' of the procedural exception is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which parties present themselves or their viewpoints to the agency." JEM Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). Thus, housekeeping rules that prescribe the format or timetable in which parties in a proceeding may present their claims are covered by the exception. See id. at 327-28; Pickus v. United States Board of Parole, 507 F.2d 507, 1107, 1114 (D.C. Cir. 1974) (regulation that merely prescribes order and formality in Parole Board transactions without affecting decisions is procedural). Similarly, plans and procedures that guide how an agency will exercise its enforcement authority, but do not alter substantive standards, are considered procedural. See, e.g., Aulenback, Inc. v. Federal Highway Administration, 103 F.3d 156, 168 (D.C. Cir. 1997)("The primary purpose of the procedural rule exception in § 553 is 'to ensure that agencies retain latitude in organizing their internal operations.'" (quoting American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987)).

    The procedural rule exception, however, has never been held applicable to a rule that, like the cut-off rule, curtails the obligation of an agency to a private party and, consequently, limits the rights of private parties. In Pickus v. United States Parole Board, 507 F.2d 1107 (D.C. Cir. 1974), the Circuit Court emphasized that the procedural rule exception "should not be deemed to include any action which goes beyond formality and substantially affects the rights of those over whom the agency exercises authority." Id. at 1113. Moreover, the exception must be construed to exclude "action which is likely to have considerable impact on ultimate agency decisions." Id. at 1114. In Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980), the Circuit court found that a change to a methodology that affected private parties' entitlements to employment grants was not exempt because this exemption does not apply "where the agency action trenches on substantive rights and interests. . . The critical question is whether the agency action jeopardizes the rights and interests of parties." Id.

    The Department's cut-off rule certainly affects the rights and interests of requesters seeking agency documents under the FOIA. Indeed, the "substantive" issue under FOIA is what records the agency is obligated to make promptly available in response to a request from a private party. 5 U.S.C. § 552(a)(3). The cut-off rule substantively alters the agency's decision on what records will be released by providing that a private party cannot obtain records created after the date of the request, even if it would be reasonable for the agency to provide such records. Moreover, if a requester like Public Citizen specifically requests records created after the cut-off date, the cut-off rule provides that the agency will automatically deny that portion of the request.

    Perhaps most importantly, the cut-off rule is not, as the Department claims, merely a matter of timing without substantive effect. As long as the Department applies the cut-off rule, requesters will be denied the right to examine current records. No matter how many repeated requests a private party submits for a particular type of records, the agency will not release the records created during the weeks and months of delay between the submission of the request and the agency's response.

    The cut-off rule "also encodes a substantive value judgment." American Hospital Ass'n v. Bowen, 834 F.2d at 1047. In analyzing the cut-off rule in McGehee, the Circuit Court recognized that the agency had made a substantive decision to reject alternative, later cut-offs dates that would be more favorable to requesters, and that the agency had allowed its administrative concerns to trump FOIA's mandate for maximum disclosure. See McGehee, 697 F.2d at 1101-02. Such a decision, the Circuit Court emphasized, could not be justified unless the agency was able to demonstrate that alternative cut-offs were impractical, and the CIA's factual submissions were inadequate to support such a finding. Id. at 1103-05. The selection between alternative cut-offs, based on factual considerations, is precisely the type of decision "which notice and comment rule making is meant to inform." Syncor International Corp. v. Shalala, 127 F.3d at 95.

    Section 553(b) also provides that "interpretive rules" and "policy statements" are exempt from notice and comment rule making, but the Department does not even offer any claim that the cut-off rule falls within these exceptions. The case law demonstrates that such a claim would be unavailing. The cut-off cannot qualify as an interpretive rule because "[i]t does not purport to construe any language in a relevant statute or regulation; it does not interpret anything." Syncor International, 127 F.3d at 95; see also American Hosp. Ass'n v. Bowen, 834 F.2d at 1046 (interpretive rule "merely reminds parties of existing duties" and tracks regulatory or statutory language). The cut-off rule is more than a "policy statement" because, unlike a policy statement, the cut-off rule is set forth in mandatory language that indicates that it has "a present effect" and establishes a "binding norm." See Community Nutrition Institute v. Young, 818 F.2d at 947. Unlike a substantive rule, a policy statement "does not establish a binding norm" and does not purport to be "finally determinative of the issues or rights to which it is addressed." American Hosp. Ass'n v. Bowen, 834 F.2d at 1046. The cut-off rule establishes such a binding, determinative norm by providing that the rights of all FOIA requesters are subject to the cut-off. Consequently, the rule is procedurally invalid under the APA and cannot be lawfully applied to Public Citizen or to any other requester.

    B.    The Date-of-Request Cut-Off Is Not Authorized By The FOIA And Is Inconsistent With McGehee.

    In addition to being adopted without notice, the date-of-request cut-off is substantively inconsistent with the FOIA. Nothing in the FOIA provides that records created after the date-of- request are not subject to the FOIA, or that an agency may refuse to produce such records. To the contrary, FOIA provides that, as long as the request "reasonably describes" the records sought, the agency "shall make the records promptly available to" the requester. 5 U.S.C. § 552(a)(3). Agencies may only withhold records covered by the nine exemptions set forth in 5 U.S.C. § 552(b) -- none of which exempt records created after the date of the request. Moreover, the case law emphasizes that the agency must conduct "a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Agencies may not limit the scope of a request; where the requester has reasonably described materials, "FOIA's text and legislative history make plain the agency's obligation to bring them forth." Truitt v. Department of State, 897 F.2d 540, 543-44 (D.C. Cir. 1990).

    Indeed, McGehee conclusively demonstrates that records created after the date of the request are subject to the FOIA. The Court of Appeals explicitly rejected the argument that a "time-of- request cut-off date is always reasonable," 697 F.2d at 1102. Instead, the Court held that temporal limitations on the records retrieved are only valid if the agency can convince "the trier of fact that its less than comprehensive search is reasonable under the circumstances." Id. at 1101. To meet this burden, the agency must show, with "detailed substantiation," that alternatives which provide for a later cut-off are not feasible. Id. at 1104.

    Two considerations show that the Department cannot make the necessary showing here. First, alternative procedures using a later cut-off appear to be feasible. As noted above, the Department has a backlog of FOIA requests and, consequently, the search for records and response often does not occur until many months or even years after the initial request. In McGehee, the Court of Appeals observed that, in this situation, "one can easily imagine a system that incorporates a cut-off date much later than the time of the original request," and, consequently, "results in a much fuller search and disclosure." Id. at 1104. For example, the agency could adopt a procedure in which the cut-off was closer to the date when the request nears the head of the processing "queue" for backlogged requests. Id. (setting forth proposed procedure).

    Second, such alternative procedures do not "appear unduly burdensome, expensive or productive of 'administrative chaos.'" Id. To the contrary, these procedures are less burdensome the agency because the date-of-request cut-off encourages repetitive requests that require the agency to perform multiple searches. For example, if the Department has a six-month backlog of requests processed on a first-in, first-out basis, and does not use a date-of-request cut-off, it can answer a request by making one search for all records created before the date of the request and the six months after the request when the request reaches the front of the line. However, if the agency imposes a date-of-request cut-off, the requester will be encouraged to resubmit the identical request periodically in order to get more recent records. If the requester resubmits each month, the agency will be required to return to the same files each month to determine if there are any records from before the date-of-request. Rather than performing one search of the files to cover the six-month period, the agency may need to perform six searches of the same files to respond to the multiple requests that the early cut-off encourages. Because the date-of-request cut-off invites "an excessive number of supplementary demands," McGehee, 697 F.2d at 1104, that would require repetitive searches of the same file, it does not reduce the burden on the agency.

    Nonetheless, in its Motion for Summary Judgment the Department of State argues that date- of-request cut-offs are always reasonable as a matter of law because, it contends, records created after a FOIA request was received are not "records" and, therefore, agencies never have an obligation to produce such records. See Defs' Memorandum at 21-22. This is precisely the same argument that the Court of Appeals rejected in McGehee. Indeed, the CIA's Brief in McGehee shows that the CIA also argued that the case law indicated that FOIA requesters are not entitled to records created after the FOIA request was received. See Plfs' Memorandum in Support of Discovery, Tab 3 at 9-12. But the cases cited by the Department and the CIA only provide that an agency is not required to reconstruct or recover records that were destroyed or removed before a FOIA request is receive