Original document created: 2000/6/8

SUSAN B. LONG and DAVID BURNHAM
                 Plaintiffs,                   
                                                             Civil Action No. 1:00CV00211 PLF
v.

DEPARTMENT OF JUSTICE
                  Defendant. 

Introduction

As described in plaintiffs' initial Memorandum, these motions arise because the Department of Justice -- after many months giving plaintiffs formal assurances the agency was actively processing records for release in accordance with prior exemption determinations -- suddenly renounced its own statements concerning both what data would be released to plaintiffs, and when the data would be released. The Department's Opposition papers offer no justification for this conduct but, instead, add insult to the injury by presenting a fictionalized version of what occurred during the past year and mischaracterizing what remains at issue.

First, the Department asserts that plaintiffs' motions are moot because the Executive Office for the United States Attorneys (“EOUSA”) has “completed the processing of much of the information that Plaintiffs seek in their motions.” Defendant's Opp. at 2. This is grossly inaccurate. The Department has only released a small fraction of the records at issue, and it has declined to commit to a schedule for releasing the remainder. Plaintiffs' claim for prompt release of these records is far from moot.

Second, the Department offers no evidence to justify the months of delay that have already occurred in the release of these records and, instead, invents an explanation that bears no relationship to the facts. To excuse its conduct, the Department invokes the provision of FOIA that states that a court may grant an agency “additional time to complete its review of records” if the agency shows that it has been overwhelmed by “extraordinary circumstances” and it is processing a request with “due diligence,” 5 U.S.C. § 552(a)(6)(C)(i). Defendant's Opp. at 11- 12. This provision has no application to this case, where the Department made (and makes) no claim that the conditions set forth in the statute are present. Moreover, the Department assured plaintiffs that the agency determined its position on exemptions in October 1999, and was actively processing the records for release.

Finally, the Department mischaracterizes its own actions and the complaint when it asserts that plaintiffs' claim for declaratory relief on the deliberative process privilege has been rendered moot because the Department is no longer making this claim for the specific records identified in plaintiffs' April 15, 1999 request. Contrary to the representations in the Opposition, the Department did not limit its deliberative process claim to the April 15, 1999 request, but announced a generally applicable agency position against the release of these types of records before the end of the fiscal year. The complaint explicitly challenges this position, not just the agency's response to the April 15, 1999 request. Under these circumstances, the case law makes clear the agency's decision to no longer apply this position to a specific FOIA request does not render the dispute moot, and plaintiffs are entitled to declaratory relief.

In the end, Defendant's Opposition rests on the contention that FOIA's mandate that agencies make non-exempt records “promptly available” to requesters is unenforceable and meaningless because, according to the Department, courts cannot grant interim injunctive relief to enforce the statute; even a partial release of records renders moot a suit to preclude additional delay by an agency; and an agency has no obligation to account for its delay in releasing records. These claims are untenable under the statute and case law, and the Court should enter injunctive relief to establish a schedule for the prompt and complete release of the records at issue.

I.    THE DEPARTMENT CONTINUES TO WITHHOLD MOST OF THE RECORDS AT ISSUE IN THIS ACTION.

The Department's arguments that plaintiffs' motion has been rendered “Largely Moot” or is actually “moot,” Defs' Opposition at 6, 9, are based on inaccurate statements and gross mischaracterizations. The Department's papers seek to convey the impression that the records delivered to plaintiffs on May 23, 2000 and June 2, 2000 (the day Defendant's Opposition was filed) represent most of the records at issue.1   In fact, the records that Department has released represent only a small fraction of the records at issue, and the Department has spurned plaintiffs' request for a firm schedule for release of the remainder. Our discussion below of what has been requested and what has been released follows the categories set forth in the Amended Complaint and Motion for Partial Summary Judgment.

A.    Requests for Year-End Fiscal Year Data from 1974-1997, 1999

Plaintiffs have requested release of the Central System database data from the end of fiscal years 1974-1997 and 1999, and the documentation for these database records. See Statement of Material Facts ¶ 7. In January of this year, The EOUSA represented that the 1999 data would be released shortly and that the 1992-1997 data would be released by early March. See Plfs' Exhibits, Tab A, Long Decl. ¶¶ 19, 20.

In fact, the first installments of this data were not released until May 24, 2000, when plaintiffs received some of the data files for fiscal year 1999, and June 2, 2000, when plaintiffs received tapes with some of the data files for fiscal years 1995, 1996, and 1997. See Defs' Opposition, Exhibit A ¶¶ 5, 8. These data files represent a partial release of the records for only four out of twenty-five fiscal years covered by these requests. Even for the four fiscal years covered by the released records, the Department still has not made a complete release:

• Collections Files. The Central System databases cover three categories of matters: civil, criminal, and collections. The Department has not yet released any of the data on collections matters. See Defs' Opposition, Exhibit A ¶¶ 6; Second Long Declaration ¶ 4 (attached to this Reply at Tab E).
• Event Files. The Central System databases on criminal and civil matters include files known as “Event Records.” See Tab F, Second Declaration of Verlyn L. Bryant, Jr. ¶ 7. The Department has not yet released any of these Event Records. Second Long Declaration ¶ 5.
• Code Translations. The Central System databases rely heavily on codes. Without the records explaining the meaning of these codes, the data cannot be understood and interpreted. Second Long Declaration ¶¶ 6, 7. Plaintiffs' FOIA letters specifically request that the Department provide the necessary codes, including any changes in the codes for each fiscal year and the “local” codes defined by the United States Attorneys Offices, so that plaintiffs can make full use such data. The Department has not yet released any of the records on local codes, nor has it released records on recent changes in the codes. See Defs' Opposition, Exhibit A, ¶ 7; Second Long Declaration ¶¶ 6, 7.

The Department has not made any claim that these records are exempt in their entirety under the FOIA. Consequently, plaintiffs are entitled to prompt release of the records described above for fiscal years 1995, 1996, 1997 and 1999, and all of the Central System databases and documentation for the other twenty-one fiscal years.

B.    Request for Fiscal Year 1999 Data Prior to Year End Verification

Plaintiffs' April 15, 1999 FOIA request seeks the EOUSA Central System database records from the first six months of fiscal year 1999, and the documentation for these databases, including the records for translating the codes used in the data. Statement of Material Facts ¶ 14. Despite the Department's claim that all of the data is protected by the deliberative process privilege prior to year-end verification, the Department delivered some of this data to plaintiffs on May 24, 2000. The Department's response to the April 15 request is far from complete, however, because, as with the records discussed above, the Department has not released the collections files, the event records, or the code translation records for the first half of fiscal year 1999. Second Long Declaration ¶¶ 4-7.

C.    Request for Data Processing Procedures

Plaintiffs' November 23, 1999 request seeks copies of all records pertaining to the procedures and standards used in compiling, updating, verifying, and validating the centrally maintained EOUSA computerized case management database files. Statement of Material Facts ¶ 19. The Department's Opposition contains an unsubstantiated assertion that “all known records” responsive to this request were released on May 24, 2000. Defs' Opposition at 6. In fact, the records released by the Department contain little or no information on the standards and procedures at issue, and it is evident that most of the records covered by this request have not been produced.

For example, the Department has not released (1) records describing its procedures for validating and finalizing the Central System data; (2) records describing the procedures for screening local records for inclusion in the Central System data; (3) records describing the procedures for altering local records so that they conform to the format and values used in the Central System files. See Second Long Declaration ¶¶ 9-10.2   Moreover, the Department has not released records describing the procedures for conversion of the data from a variety of local systems that were used by the United States Attorneys Offices before 1997, when a new system for local data was implemented nationwide, even though plaintiffs' FOIA letter specifically requests these records. Second Long Declaration ¶ 11.3  

It is axiomatic that the Department cannot render the November 23, 1999 FOIA request “moot” simply by asserting that it has produced “all known records”-- particularly when the evidence points to the opposite conclusion. The agency must affirmatively show, through reasonably detailed evidence, that it has conducted a reasonable search and pursued any reasonable leads for locating responsive records. See, e.g., Valencia-Lucena v. United States Coast Guard, 180 F. 3d 321, 325-26 (D.C. Cir. 1999). Plaintiffs informed the Department before the June 2 Opposition was filed that the records that the Department produced on May 23, 2000 appear to be far from complete. See Plaintiffs' Exhibits, Tab I, May 26, 2000 Letter. Nonetheless, the Department filed its Opposition with only a conclusory assertion that all responsive records have been produced. This assertion is inadequate to support a mootness claim as a matter of law and, more importantly, is inaccurate as a matter of fact.

II.    PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF TO ENSURE DISCLOSURE OF THE REMAINING RECORDS WITHOUT FURTHER DELAY.

The multiple categories of records that the Department has not released, but does not claim are exempt, make clear that plaintiffs' motion for a schedule to prevent further delay in the release of these non-exempt records is not moot. Even before filing this motion, plaintiffs have attempted, without success, to get the Department to commit to a schedule that would ensure their release without unreasonable delay. See Tab H, May 4, 2000 Letter. The Department's Opposition also offers no commitment to release the records by a particular date.4   Instead, the Department argues that there is a “well-established rule” that FOIA requesters, like plaintiffs must simply wait for the agency to complete release of records “'however fitful or delayed the release . . . may be.'” Defs' Opposition at 9 (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)). The law is to the contrary, as this Circuit's decision in Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988), and the Ninth Circuit's decision in Long v. IRS, 693 F.2d 907 (9th Cir. 1982) emphasize.

A.    Plaintiffs' Request for Injunctive Relief Before Final Judgment Is Proper.

The Department asserts that plaintiffs' request for injunctive relief at this stage is “not Properly Presented” because “the relief that they seek is permanent, and is not available to them at this stage of a FOIA proceeding.” Defs' Opposition at 5. The Department's arguments, however, mischaracterize the relief plaintiffs have requested and the applicable law.

First, plaintiffs have not requested any relief that prejudices the Department's exemption claims or adjudicates those claims (with the exception of the deliberative process claim for which, as we discuss below, the Department has offered no defense). Plaintiffs only seek to compel disclosure of the records that the Department concedes are not exempt, but still has not released. See Orders attached to Plaintiffs' Motions for Partial Summary Judgment and Preliminary Injunction (exempting “fields and records that the Department contends are covered by 5 U.S.C. § 552(b)”). Nothing in plaintiffs' proposed injunction requires that the Department turn over records it contends are exempt without a full hearing on the merits of those claims.     The Department's contention that a FOIA requester cannot obtain such relief prior to a final judgment is erroneous. A preliminary injunction is properly used to grant relief that is less than the full relief to which plaintiff may be entitled in a final judgment. See United States v. Barrows, 404 F.2d 749, 752 (9th Cir. 1968). In this case, the preliminary injunction will not provide full relief because plaintiffs must pursue a final judgment to secure disclosure of the information that the Department withholds under contested exemption claims. Moreover, there is nothing unusual in courts entering orders, prior to final judgment, that set a deadline for an agency to release records for which the agency has claimed no exemption. See, e.g., Grove v. Dep't of Justice, 802 F. Supp. 506, 518 (D.D.C. 1992); Hunter v. Christopher, 923 F. Supp. 5, 8 (D.D.C. 1996).

Second, the Department asserts that plaintiffs' motion is improper because it would “alter the status quo.” Def's Opposition at 3. However, the adage that preliminary injunctions serve to preserve the status quo “cannot be mechanically applied” and preliminary relief is appropriate where, as here, it is the defendant's failure to act that causes or threatens irreparable injury. Crowley v. Local No. 82, Furniture and Patio Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers, 679 F.2d 978, 995 (1st Cir. 1982). Indeed, the very cases that the Department cites hold that preliminary injunctions may be used to compel action. In Friends for All Children v. Lockheed Aircraft Corp., 746 F.2d 816, 828-30 (D.C. Cir. 1984), the Circuit Court held that it was proper for the district court to enter a preliminary injunction compelling the defendant to establish a fund to pay monetary liability, even though this order altered the “status quo” and the amount of the defendant's liability would not be determined until the final judgment. As the Fifth Circuit explained in Canal Authority v. Calaway, 489 F.2d 567 (5th Cir. 1974):         It is often loosely stated that the purpose of a preliminary injunction is to preserve the status quo. . . . It must not be thought, however, that there is any particular magic in the phrase “status quo.” The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits. . . . If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, either by returning to the last uncontested status quo between the parties, by the issuance of a mandatory injunction, or by allowing parties to take proposed action that the court finds will minimize the irreparable injury. Id. at 576 (citations omitted).

Third, the Department asserts that preliminary injunctive relief is “at odds with the jurisdictional provisions of The FOIA.” Def's Opposition at 5. To the contrary, the statute provides that the court has jurisdiction “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(B). Nothing in this provision suggests that the courts' power to enjoin agencies can only be exercised in a final judgment, rather than a preliminary injunction or partial summary judgment. All that the statute requires is that the court find that the records have been “improperly withheld.”

B.     The Department's Claim That Plaintiffs Are Not Entitled To Relief On The Merits Because The Agency's Failure To Release The Records Promptly Is Proper Bear No Relationship To The Facts In This Case.

In the Memorandum in Support of this Motion, we discussed the cases that showed that improper withholding under the FOIA occurs not only when an agency absolutely refuses to release records, but when it unreasonably increases the amount of time the requester “'must wait to obtain them.'” Plfs' Memorandum at 14 (quoting McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983), aff'd in pertinent part and vacated in part, 711 F.2d 1076 (D.C. Cir. 1983)). Moreover, the burden of proving that the withholding of the records is not improper rests on the agency. Id.; see also Gilmore v. U.S. Dep't of Energy, 33 F. Supp.2d 1184, 1186-87 (N.D. Cal. 1998) (concluding that legislative history, McGehee, Payne and Long suggest “that an agency's failure to comply with the FOIA's time limits is, by itself, a violation of the FOIA, and is an improper withholding of the requested documents”).

The only justifications that the Department offers to explain its withholding of the records at issue here are invented claims that bear no relation to the facts in this case. First, the Department asserts it was not reasonable for plaintiffs to expect the 1974-1997 records until June 2000, Def's Opposition at 11 -- even though the Department itself told plaintiffs that the fiscal year 1999 and 1992-1997 records would be completely processed and released by March 2000. Then, the Department offers an abstract argument that there is nothing improper in an agency delaying release of non-exempt records for many months because “courts have recognized that agencies may become overwhelmed,” and FOIA authorizes “multi-track processing.” Def's Opposition at 11. The Department fails to mention, however, that the statute (and the case law cited by the Department) specify that when an agency claims that it needs additional time to complete processing of records, it must show that “'exceptional circumstances exist and that the agency is exercising due diligence in responding to the request.'” Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C. Cir. 1976) (quoting 5 U.S.C. § 552(a)(6)(C)).5   Moreover, when an agency finds that it is unable respond within ten working days after the statutory deadline or assigns a request to a “slow” track, the agency must provide the requester with notice and an opportunity to modify the request to arrange for faster processing. 5 U.S.C. § 552(a)(6)(B)(ii); Id. § 552(a)(6)(D)(ii).

The provisions on additional time and multi-track processing that the Department cites have no relevance to what actually occurred here. The Department does not claim that the delay was caused by a backlog arising from unforeseen “exceptional circumstances,” it does not offer any proof that it exercised due diligence in processing plaintiffs' request, and it never gave plaintiffs the notice mandated by statute. Indeed, not only is there no evidence that the delay was caused by an overwhelming a backlog of requests, the evidence is to the contrary. The Department responded to plaintiffs' requests for the fiscal year 1974-1997 case management data by stating that the agency had made its determination (i.e., to release the year-end data in accordance with the June 1999 Vaughn) and that it was, in fact, copying the data for release. See Plaintiffs' Tab A, Long Decl. ¶¶ 11, 19. With respect to the November 23, 1999 FOIA request, the Department never notified plaintiffs that it would need additional time, and it did not release any part of the responsive records until over 100 days after plaintiffs filed this suit in February. Id. ¶¶ 23, 24.

The Department's argument from these provisions amounts to a contention that, although the agency has no explanation for its actual conduct here, it should not be held accountable for its conduct because the court could imagine circumstances in which an agency might be able to show that long delays are lawful under the statute. This argument is as empty as it sounds. If anything, FOIA's provisions concerning additional time underscore that courts should not tolerate delays in processing FOIA without demanding that the agency justify the delay. By making the conditions for additional time demanding, Congress has made clear that it intended to give teeth to FOIA's time limits and the statute's mandate that records be made promptly available. See Gilmore, 33 F.Supp.2d at 1187 (legislative history shows “Congress has repeatedly stressed the need for timely compliance with the requirements of the FOIA.”)

The Department's quotation of language from cases where the agency had released all records by the time the court ruled, see Def's Opposition at 7, 9, is also misplaced. Apart from the fact that these cases are inapposite because the Department is still withholding most of the records at issue here, the cases do not support the Department's contention that FOIA provides no remedy for agency delay. For example, the Department quotes the language from Perry v. Block, 684 F.2d at 125, stating that the court cannot remedy “fitful or delayed release” after-the-fact. Def's Opposition at 9. But the Department ignores the next sentence, in which the Court cites and quotes from the First Circuit's decision in Lybarger v. Cardwell, 577 F.2d 764 (1st Cir. 1978), in which the court observed that, in appropriate circumstances, courts may intervene to remedy agency delays:
There may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information require judicial intervention. Indeed, the Act clearly indicates as such. 5 U.S.C. § 552(a)(6)(C) states that “Upon any determination by an agency to comply with a request for records the records shall be made promptly available to such person making such requests.” 577 F.2d at 767. Two subsequent cases, discussed at length in our initial memorandum, Payne Enterprises, Inc. v. United States and Long v. United States Internal Revenue Service, take the next step suggested by this language and hold that district courts abused their discretion when they dismissed FOIA actions in which agencies belatedly released records without addressing the plaintiffs' complaints concerning unjustified delay. See Plaintiffs' Memorandum of Points and Authorities at 16-17.

The circumstances presented here warrant the equitable relief against delay contemplated by the appellate courts in Payne and Long. The agency has withheld non-exempt records for months; it has unapologetically refused to abide by its own representations concerning when records would be released; and it has offered no justification for failing to release (or even process) the records during the many months that these requests were pending at the agency before this litigation began. Moreover, the vast majority of the records still have not been released and, rather than commit to release these records promptly, the agency has responded with a untenable claim that a partial release renders plaintiffs' request for prompt access “moot.”

C.     The Equities Favor Injunctive Relief.

The Department asserts that, even if plaintiffs have established on the merits that the agency has violated the statute by failing to disclose non-exempt records promptly, there is no equitable basis for injunctive relief to insure prompt disclosure of the records. These arguments are without merit.

The Department argues that the government will be harmed by the injunction, and the public interest weighs against granting the injunction. See Def's Opposition at 16-19. Both of these arguments are founded on the false premise that the injunction would compel the disclosure of records that the Department considers to be exempt. As discussed above, the injunctive relief that plaintiffs seek only mandates prompt disclosure of records for which the Department has made no exemption claim. See supra. p. 9 Thus, neither of these factors weighs against disclosure.

With respect to the third factor, the injury to plaintiffs, the FOIA does not require that a requester demonstrate irreparable injury in order to obtain a final injunction. To the contrary, if records are not exempt, the statute mandates the disclosure of the records -- without regard to the purpose for which the records are requested. See Soucie v. David, 448 F.2d 1067, 1072 n. 12 (D.C. Cir. 1970) (If nondisclosure is not supported by statutory exemption or constitutional privilege, the FOIA “requires issuance of an injunction to compel the” agency to release the record); United States v. North, 881 F.2d 1088, 1096 (D.C. Cir. 1989) (intended use of records has no bearing on merits of FOIA request). Moreover, as a general rule, “where the plaintiff seeks an injunction to prevent the violation of a federal statute that specifically provides for injunctive relief, it need not show irreparable harm.” Illinois Bell Telephone Co. v. Illinois Commerce Comm'n, 740 F.2d 566, 571 (7th Cir. 1984); accord Trailer Train Co. v. State Board of Equalization, 697 F.2d 860 (9th Cir. 1983). Thus, the only relevant issue is whether preliminary injunctive relief is warranted because plaintiffs will be harmed by delay in release of the non-exempt records during the period before a final judgment is likely to be entered.6  

Plaintiffs' declarations clearly show that continued delay will result in such injury because “stale information is of little value,” Payne, 837 F.2d at 494, and “excessive delay by the agency in its response is often tantamount to denial.” H.R. Rep. No. 876, 93rd Cong., 2d Sess. 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271. In response, the Department asserts that TRAC's inability to obtain records that are relevant to current, ongoing public debates, and TRAC's inability to fulfill its mission to make data on these matters available to others do not qualify as “injury” because these harms are “suffered primarily by 'the public,'” or represent “harm to TRAC's clients, not to TRAC.” Def's Opposition at 14, 15. This response is without merit. It is well established that when an entity is denied records or information that it seeks for its own use, or for the purpose of fulfilling its mission of providing information to others, the entity suffers a legal “injury” for which it is entitled to seek redress -- regardless of whether the public and those that rely on the entity's activities are also injured.7   Indeed, in Payne the Circuit Court specifically emphasized that FOIA requesters that rely “'heavily and frequently on FOIA' to conduct work that is 'essential to the performance of certain of their primary institutional activities,'” have demonstrated sufficient injury to warrant equitable relief against agency practices that delay the release of requested records. Payne, 837 F.2d at 494 (quoting Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 91 (D.C. Cir. 1986)).

Plaintiffs have also shown that they need access to the records the Department is withholding to be able to participate fairly in the administrative process in which the Archivist is evaluating the Department's proposal to destroy regularly most case management records. See Plfs' Memorandum of Points and Authorities at 26-27. The Department casually dismisses this harm as “specious” by asserting that Plaintiffs are “fully aware of the type of information that is contained in the databases.” Def's Opposition at 16. This response is disingenuous, as the plaintiffs are not “fully aware” because the Department has not “fully” released the records that are relevant to the issues in this proceeding. As explained in plaintiffs' declarations, one of the critical issues in this proceeding is the Department's contention that the local district database should be destroyed because the Central System databases adequately capture the historically valuable information in the local databases. However, the Department has not released the records that describe the procedures and standards used for creating the Central System databases from the local records. See supra at p. 7. Without these records, plaintiffs' ability to address the Department's claims is prejudiced.

III.    PLAINTIFFS' CLAIM FOR DECLARATORY RELIEF IS NOT MOOT.

Plaintiffs' motion also requests two declaratory rulings: (1) that the Department has acted improperly by failing to release promptly the fiscal year-end data, documentation for this data, and the records requested in plaintiffs' November 23, 1999 letter; and (2) that the Department's practice of withholding data from the case management database on the basis that it is exempt from disclosure under 5 U.S.C. § 552(b)(5) until verification procedures are completed at the end of the fiscal year is contrary to law. The discussion above concerning injunctive relief demonstrates that the first declaratory request is not moot. As we now show, the Department's contention that the second is moot is also erroneous.

The Department has released some of the case management data from the first half of fiscal year 1999, which was requested by plaintiffs on April 15, 1999. See supra at p. 6. The Department released this data without indicating whether it has officially disavowed its prior position that such data is exempt, or has simply chosen to make a “discretionary release” in this instance.8   The Department now claims that this release precludes review of its claim that such records are protected by the deliberative process privilege because (1) the Department did not articulate a policy or practice of withholding such data, but only denied a specific request; and (2) plaintiffs have not brought a challenge that seeks relief against such a policy or practice. Def's Opposition at 8-9. Both contentions are factually inaccurate.

First, the Department announced in an October 29, 1999 letter that, as a general proposition, it would only disclose year-end data to plaintiffs: Your third request is for the production of current central data on a six-month basis. We will provide central data only when it is verified and finalized. Accordingly, data for 1999 will not be provided until mid-December 1999, after the verification process has been completed by the districts and the data is in final form. Interim, draft data is unreliable and clearly falls within the definition of pre-decisional/work product which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5). Therefore, we deny the portion of your request for current central databases to be provided on a six month basis. Plfs' Exhibits, Tab 3. This statement of position is not limited to the April 15, 1999 request and, indeed, the letter contains no reference to that request.

Second, plaintiffs' complaint (both initial and amended) and Motion for Partial Summary Judgment are not limited to the April 15, 1999 request, but challenge the past and future application of the Department's position that interim data is exempt. The complaint alleges that plaintiffs “have submitted FOIA requests” for release of data before the year end, and “plan to submit requests for such records in the future,” and that “[t]he EOUSA's contention that” such data “is exempt from disclosure under 5 U.S.C. § 552(b)(5) until the end of the fiscal year verification process 'has been completed by the districts and the data is final' is contrary to law.” Amended Complaint ¶¶ 44, 45. The request for relief seeks a declaration that “the Department of Justice's practice of withholding data from the case management database on the basis that it is exempt from disclosure under 5 U.S.C. § 552(b)(5) until verification procedures are completed at the end of the fiscal year is unlawful under the FOIA.” Id. at 14 (italics added).

Consequently, the Department is mistaken when it asserts that Long v. IRS and Payne are inapplicable to plaintiffs' request for declaratory relief on the deliberative process claim. Def's Opposition at 7-8. As in Long v. IRS, the agency here delayed access to records based on an exemption claim that it has now abandoned, but may reassert to delay or deny access again in the future. Consequently, plaintiffs here seek declaratory relief precluding the agency “from withholding the same type of documents in the future.” Long v. IRS, 693 F.2d at 909. As in Payne, plaintiffs seek a judgment “declaring a particular policy of withholding to be invalid and barring that policy's future application.” Def's Opposition at 8 (describing Payne decision). The Department's partial release of records from fiscal year 1999 does not moot this issue because “even though a party may have obtained relief as to a specific request under the FOIA, this will not moot a claim that an agency policy or practice will impair the party's lawful access to information in the future.” Payne, 837 F.2d at 491 (italics in original).

Moreover, the Department's announcement of its position in the October 29, 1999 letter sufficiently establishes an agency position that is subject to challenge. As Payne emphasizes: The fact that the practice at issue is informal, rather than articulated in regulations or an official statement of policy, is irrelevant to determining whether a challenge to that policy or practice is moot. . . . So long as the agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials, a party's challenge to the policy or practice cannot be mooted by the release of the specific documents that prompted the suit. Payne, 837 F.2d at 491. The Department has offered no evidence that the statements in the October 29, 1999 letter were unauthorized, the result of an “isolated mistake,” or otherwise contrary to the Department's actual position.

In short, the deliberative process claim squarely presents a legal issue concerning the Department's interpretation of the FOIA that plaintiffs are entitled to have settled in this action, rather than risk that the Department will delay or deny pending or future requests for the release on the same basis and demand that plaintiffs litigate the exemptions applicable to this data in a third suit.9   As in Payne and other cases involving “voluntary cessation,” an agency cannot avoid review of whether its position is unlawful simply by abandoning its application of that position in a specific instance. See City of New York v. Baker, 878 F. 2d 507, 511-12 (D.C. Cir. 1989) ("It is well settled that voluntary cessation of a challenged practice does not in and of itself moot a case when the party could renew it.")

For reasons stated in Plaintiffs' initial memorandum and above, partial summary judgment should be entered for plaintiffs, and the Department should be directed to release the remainder of the records responsive to plaintiffs' FOIA requests, with the exception of fields and records that the Department contends are covered by 5 U.S.C. § 552(b), without further delay.