United States Court of Appeals, District of Columbia Circuit
September 15, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01983)
M. Burke argued the cause and filed the briefs for appellant.
Paul J. Orfanedes entered an appearance.
Carroll, Attorney, U.S. Department of Justice, argued the
cause for appellee. With her on the brief was Mark B. Stern,
Before: Rogers, Srinivasan, and Pillard, Circuit Judges.
Rogers, Circuit Judge.
years, Judicial Watch has monitored expenditures of U.S.
Government funds on "VIP" travel by submitting
requests for records pursuant to the Freedom of Information
Act ("FOIA"), 5 U.S.C. § 552, to the U.S.
Secret Service and other agencies and reporting its findings
to the public. Between 2012 and 2014, when the Secret Service
failed to make requested records available in a timely
manner, Judicial Watch was forced to file a lawsuit on five
separate occasions in order to obtain the records. Upon such
filing, the Secret Service produced non-exempt records,
mooting the litigation.
November 2015, Judicial Watch was forced again to file a
lawsuit when the Secret Service failed to make available
records in response to nineteen travel-related FOIA requests
submitted over a thirteen-month period. This time, in
addition to seeking an order that the Secret Service produce
requested records, Judicial Watch sought injunctive relief so
the Secret Service would not continue to violate FOIA's
mandate that federal agencies "shall" make
requested records "promptly available." 5 U.S.C.
§ 552(a)(3)(A). Judicial Watch alleged that the Secret
Service "has a policy and practice of violating
FOIA's procedural requirements," by "regularly
failing" to either produce requested records or make a
determination regarding their availability in accord with
FOIA's timetables, 5 U.S.C. § 552(a)(6)(A), or
within a reasonable time. Compl. ¶ 22. Four months after
the lawsuit was filed, the Secret Service, much as it had
done on the five prior occasions when Judicial Watch had
sued, produced non-exempt records, thereby mooting the
only question now before the court is whether the complaint
adequately alleged a "policy or practice" claim
under FOIA. The district court ruled that Judicial Watch had
failed to plead sufficiently egregious facts and granted
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Because the court's precedent recognizes
that a policy or practice claim may be predicated upon an
agency's abuse of FOIA's statutory scheme, we reverse
and remand to the district court for further proceedings.
Freedom of Information Act provides that federal agencies,
"upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly
available." 5 U.S.C. § 552(a)(3)(A) (emphasis
added). To ensure this mandate did not become a dead letter,
Congress adopted a two-part approach. First, Congress imposed
a set of requirements on federal agencies: It established
timetables for agencies to respond to requests as well as
procedures for agencies to obtain additional time, and
required adoption of records management systems to facilitate
"prompt" responses. Second, Congress provided
members of the public whose records requests were denied a
right to an administrative appeal and a right to seek
judicial relief. Briefly summarized, the salient features of
this two-part scheme are as follows:
an agency "shall determine" within twenty business
days (one month) of receiving a FOIA request "whether to
comply with such request," and "shall immediately
notify the person making such request of such determination
and the reasons therefor." Id. §
552(a)(6)(A). The agency may toll the response period once
while seeking further information from the requester on the
scope of the information sought. Id. In
"unusual circumstances," the agency may extend the
determination deadline by ten business days (two weeks) upon
explaining the circumstances to the requester. Id.
§ 552(a)(6)(B)(i). If additional time is required to
address the request, the agency "shall notify the
[requester] . . . and shall provide the person an opportunity
to limit the scope of the request . . . or an opportunity to
arrange with the agency an alternative time frame for
processing the request or a modified request."
Id. § 552(a)(6)(B)(ii).
promote "efficient and appropriate compliance" with
FOIA, id. § 552(j)(2)(A), agencies
"shall" publish their internal organization and
procedures relating to records requests, id. §
552(a)(1), and provide in electronic format instructions on
how records may be requested, id. §§
552(a)(2), (g). Agencies "shall" also maintain
records systems by which requesters can obtain status updates
on pending requests. Id. § 552(a)(7). Further,
agencies "shall promulgate regulations" that
"provid[e] for expedited processing of requests"
when, for example, "the person requesting the records
demonstrates a compelling need," and that
"ensure" the agency makes such determination within
ten business days. Id. § 552(a)(6)(E). Agencies
are encouraged to "provid[e] for multitrack processing
of requests." Id. § 552(a)(6)(D)(i). To
assist in covering the costs of these requirements, agencies
may impose reasonable fees for the processing of requests.
Id. § 552(a)(4)(A).
agency also "shall designate" a Chief FOIA Officer,
id. § 552(j), to monitor implementation of
FOIA, keep government officials apprised of the agency's
performance, develop policy recommendations, and otherwise
facilitate public understanding of FOIA's exemptions,
id. § 552(k). The officer, in turn, "shall
designate" public liaisons responsible for
"assisting in reducing delays, increasing transparency
and understanding of the status of requests, and assisting in
the resolution of disputes." Id. §§
552(k)(6), (l). Congress also required that agencies
"shall annually report" to it on the requests
received, processing times, determinations made,
administrative appeals, pending cases, and related
information. Id. §§ 552(e), (k)(4)-(5).
FOIA provides procedural protections for a member of the
public requesting records from an agency. Upon a denial of a
request, the requester may seek reconsideration by the head
of the agency. Id. § 552(a)(6)(A)(i). Upon
exhausting the administrative appeal, the requester may seek
judicial relief. Id. §§ 552(a)(4)(B),
(a)(6)(A)(ii). Exhaustion is excused when the agency fails to
make a timely determination - that is, within the timetables
established in § 552(a)(6) - whether to produce records
or to withhold them pursuant to a statutory exemption.
Id. § 552(a)(6)(C)(i). Judicial relief, in
turn, may extend beyond requiring production to providing
injunctive relief. Id. § 552(a)(4)(B).
FOIA "reflect[s] 'a general philosophy of full
agency disclosure unless information is exempted under
clearly delineated statutory language.'"
Dep't of Air Force v. Rose, 425 U.S. 352, 360-61
(1976) (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3
(1965)). It "stand[s] in sharp relief against" the
prior procedures under the Administrative Procedure Act,
which were "generally recognized as falling short of its
disclosure goals and came to be looked upon more as a
withholding statute than a disclosure statute." EPA
v. Mink, 410 U.S. 73, 79 (1973). FOIA "seeks to
permit access to official information long shielded
unnecessarily from public view and attempts to create a
judicially enforceable public right to secure such
information from possibly unwilling official hands."
Id. at 80. Congress's use of the word
"shall" in issuing directives to agencies in
support of the overarching mandate to make records
"promptly available," 5 U.S.C. § 552(a)(3)(A),
instructs courts that Congress contemplated meaningful agency
engagement upon receipt of a FOIA request. Agencies initially
have a month to determine whether records can be made
available in light of nine statutory exemptions, id.
§ 552(b)(1)- (9), and have several ways to obtain
additional time to respond to requests. This engagement is
premised on agencies improving records management systems to
enable "prompt" responses. Congress underscored the
importance it attached to prompt responses by allowing
judicial recourse, bypassing administrative exhaustion, if an
agency fails to meet statutory timetables for disclosure or
to justify its delay in making non-exempt records available
upon request. See Mink, 410 U.S. at 93; McGehee
v. CIA, 697 F.2d 1095, 1101 (D.C. Cir. 1983).
instant appeal brings into sharp focus the meaning of
FOIA's mandate that agencies "shall" make
requested records "promptly available" under this
two-part scheme. Between July 2014 and August 2015, Judicial
Watch submitted nineteen FOIA requests to the Secret Service
for records on public expenditures for travel by President
Obama and the First Lady, Vice President Biden, and former
President Carter. Upon acknowledging receipt of and assigning
tracking numbers to 17 of the 19 requests, the Secret Service
took no further action and stood mute. In November 2015 -
between three and eighteen months after the Secret Service
had received Judicial Watch's records requests - Judicial
Watch filed suit. Attached to its complaint was a chart
showing as to each request that the Secret
Service had not made any of the requested records
available nor advised Judicial Watch whether any records were
exempt from disclosure. Citing the five lawsuits it had filed
against the Secret Service in similar circumstances to obtain
similar records, Judicial Watch alleged that "[t]he
Secret Service regularly fails to issue
determinations . . . within the time period required by FOIA,
causing [Judicial Watch] to bring suit in order to obtain the
requested records." Compl. ¶¶ 7-8, 13
(emphasis added). The repeated, prolonged, and unexplained
delays have prevented Judicial Watch from gathering complete
records for its reports to the public on federally funded VIP
travel. See id. ¶ 16. Further, Judicial Watch
"intends to continue submitting identical or nearly
identical travel-related FOIA requests as part of its
on-going efforts to educate and inform the public about
'what their government is up to' and promote
transparency, integrity, and accountability in government and
fidelity to the rule of law." Id. ¶ 17.
Watch's complaint was in two counts. Count I alleged the
Secret Service is "violating FOIA by failing to conduct
a search reasonably calculated to uncover all records
responsive to each . . . request and is unlawfully
withholding records responsive to each request."
Id. ¶¶ 19-20. As relief it sought an order
directing the Secret Service to search and produce the
non-exempt records "by a date certain."
Id. at 6- 7. Count II alleged that the Secret
Service, "[o]n information and belief . . . has a policy
and practice of violating FOIA's procedural
requirements" by "regularly failing or refusing to
produce requested records or otherwise demonstrate that
[they] are exempt from production within the time period
required by FOIA or at least within a reasonable period of
time," id. ¶ 22, causing it irreparable
harm, id. ¶ 23. It sought in relief an order
enjoining the Secret Service from adhering to its policy or
practice. Id. at 7.
answering the complaint, the Secret Service acknowledged that
it had not made "a final response to all of [Judicial
Watch's] FOIA requests," Answer ¶ 14, and
otherwise denied violating FOIA. It also moved for judgment
on the pleadings pursuant to Rule 12(c) and to dismiss Count
II with prejudice. In an accompanying memorandum, the Secret
Service stated that it would, in accord with the district
court's scheduling order, produce all non-exempt records
by March 18, 2016. Within four months of the filing of the
complaint, the Secret Service had produced to Judicial
Watch's satisfaction all requested non-exempt records,
including some requested two years earlier, sought in Count
I. As to Count II's request for injunctive relief, the
Secret Service argued that the complaint failed to allege
facts sufficient to support a policy or practice claim.
Judicial Watch opposed the motion as to Count II and
requested discovery of the Secret Service's FOIA
practices in responding to its requests. Acknowledging that
the repeated and unexplained failure to respond within
FOIA's timetables or a reasonable time "could be due
to a host of causes," Judicial Watch stated that it was
unaware of any "unusual" or "exceptional"
circumstances asserted by the Secret Service to justify its
repeated failures to timely respond because the Secret
Service "never has - nor does it now - offer such a
reason [or] justification." Pl.'s Opp'n to Mot.
for J. on Pldgs., at 6-7 (Mar. 12, 2016). "As
such," Judicial Watch argued, "it[s]
[non-responses] could also be the result of a policy or
district court dismissed Count I as moot once the Secret
Service produced the requested records. It also granted the
Rule 12(c) motion for judgment on Count II, ruling that
Judicial Watch had "failed to allege sufficient
facts" establishing that the Secret Service had
"adopted, endorsed, or implemented some policy or
practice that constitutes an ongoing failure to abide by the
terms of FOIA." Judicial Watch v. Dep't
of Homeland Security, 211 F.Supp.3d 143, 146-47 (D.D.C.
Sept. 29, 2016) (quoting Muttitt v. Dep't of
State, 926 F.Supp.2d 284, 293 (D.D.C. Mar. 4, 2013)). In
particular, the district court stated that Judicial Watch
"points to no fact or statement to establish
why requests were delayed or how the delays
were the result of an either formal or informal policy or
practice to violate FOIA's requirements, rather than
inevitable but unintended delay attributable to a lack of
resources." Id. at 146. It sought no
explanation from the Secret Service but speculated the delays
were likely due to a lack of resources.
Watch appeals the Rule 12(c) judgment on Count II. Our review
is de novo, accepting as true, as we must, the
factual allegations in the complaint. Mpoy v. Rhee,
758 F.3d 285, 287 (D.C. Cir. 2014) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)).
lawsuits generally become moot once an agency has made
available requested non-exempt records, whether voluntarily
or after court order. See Perry v. Block, 684 F.2d
121, 125 (D.C. Cir. 1982) (citations omitted). This court has
recognized an exception to mootness where an agency has a
"policy or practice" that "will impair the
party's lawful access to information in the future."
Payne Enterprises, Inc. v. United States, 837 F.2d
486, 491 (D.C. Cir. 1988) (citing Better Gov't
Ass'n v. Dep't of State, 780 F.2d 86, 90-92
(D.C. Cir. 1986)). The First Circuit had recognized a similar
exception in Lybarger v. Cardwell, 577 F.2d 764, 767
(1st Cir. 1978), and the Ninth Circuit has followed suit,
see Hajro v. U.S. Citizenship & Immigr. Servs.,
811 F.3d 1086, 1103 (9th Cir. 2015). FOIA authorizes a court
not only to "order the production of any agency records
improperly withheld," but also to "enjoin the
agency from withholding agency records." 5 U.S.C. §
552(a)(4)(B). This injunctive authority does not limit the
district court's inherent injunctive powers. See
Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415
U.S. 1, 20 (1974).
circuit it is settled law that informal agency conduct
resulting in long delays in making requested non-exempt
records available may serve as the basis for a policy or
practice claim. Our decision in Payne is
instructive. There, for almost two years Air Force officials
repeatedly refused to produce requested copies of bid
abstracts for government contracts by invoking two FOIA
exemptions even though the Secretary of the Air Force had
repeatedly determined the exemptions were inapplicable.
Payne, 837 F.2d at 487-90. Payne sought
administrative review, which "[w]ithout exception"
resulted in the production of the requested records.
Id. at 489. Payne nonetheless filed suit challenging
the agency's "practice of unjustified delay."
Id. at 487. On appeal, this court identified the
nature of a policy or practice claim:
The fact that the practice at issue is informal, rather than
crystalized in regulation or an official statement of policy,
is irrelevant to determining whether a challenge to that
policy or practice is moot. Courts have long recognized that
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." So long as an 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.
Id. at 491 (quoting Lybarger, 577 F.2d at
concluding that Payne's case was not moot, id.
at 494, the court also concluded that the agency's
"repeated delays" in making requested records
available were "wholly unjustified" and "clear
violations" of FOIA, id. at 488-89.
"[T]hat Payne eventually obtained the information it
sought provides scant comfort when stale information is of
little value yet more costly than fresh information ought to
be." Id. at 494. The court endorsed the
interpretation of FOIA that:
Congress did not intend for . . . agenc[ies] to use FOIA
offensively to hinder the release of non-exempt documents.
The appellants [i.e., the requesting parties] have
fully complied with the administrative scheme. It was the
[agency]'s abuse of this scheme that forced the
appellants to bring several lawsuits to obtain release of the
documents. . . . These unreasonable delays in disclosing
non-exempt documents violate the intent and purpose of the
FOIA, and the courts have a duty to prevent these abuses.
Id. (quoting Long v. IRS, 693 F.2d 907, 910
(9th Cir. 1982)). In remanding the case to afford Payne
declaratory relief, this court instructed the district court
to "consider the propriety of injunctive relief,"
id. at 494-95, after "evaluat[ing] the
likelihood that the Air Force will return to its illicit
practice of delay in the absence of an injunction,"
id. at 495.
court applied Payne in Newport Aeronautical
Sales v. Dep't of Air Force, 684 F.3d 160 (D.C. Cir.
2012). There, the agency had repeatedly invoked a FOIA
exemption to deny requests for technical data, forcing a
government contractor to request the records pursuant to the
agency's more onerous disclosure scheme, which required
submission of information that the contractor did not have
due to the nature of its business. Id. at 162-63.
The contractor sued, challenging the permissibility of the
agency's interpretation of FOIA. This court held that the
Air Force's belated disclosure of requested records after
the contractor filed suit did not moot the policy or practice
claim because the Air Force had persisted in its challenged
practice of non-disclosure. Id. at 163-64 (citing
Payne, 837 F.2d at 491).
Watch does not allege agency misconduct in invoking FOIA
exemptions as occurred in Payne or good-faith agency
error in interpreting a FOIA exemption as occurred in
Newport. Nor does Judicial Watch point to any formal
policy or other substantive response by the Secret Service
explaining its failures to "promptly" produce
requested non-exempt records. Instead, Judicial Watch's
policy or practice claim is based on the Secret Service's
repeated, unexplained, and "prolonged delay in making
information available." Payne, 837 F.2d at 491.
It alleges that the Secret Service "regularly
fails to issue determinations in response to [Judicial
Watch's] travel-related FOIA requests within the time
period required by FOIA, causing [Judicial Watch] to bring
suit in order to obtain the requested records." Compl.
¶ 7 (emphasis added). It points to the five
lawsuits it had been forced to file when the Secret
Service had previously employed the same non-responsive
conduct: acknowledge receipt of the FOIA requests and assign
them tracking numbers, remain mute until Judicial Watch filed
a lawsuit, and only then undertake to make requested
non-exempt records available, thereby mooting the litigation
and escaping judicial review of its failures to comply with
FOIA's procedural requirements.
seeking injunctive relief in view of the Secret Service's
alleged flouting of the statutory scheme, Judicial
Watch's complaint posits that the Secret Service has an
informal practice, harmful to Judicial Watch's mission
and work, of repeatedly withholding "nearly
identical" records, without explanation, for
unreasonable periods of time. Id. ¶¶ 7-9,
13-14, 22. Pointing to the FOIA requests underlying this
lawsuit, Judicial Watch shows that the Secret Service made no
determinations, timely or otherwise, whether it would make
any of the records available. For example, on August 8, the
Secret Service acknowledged receipt of the requests of July
21 and 28, 2014, for travel expenditures for President
Obama's trips to New York City, Seattle, San Francisco,
and Los Angeles, but had no further communication with
Judicial Watch on these requests, or on twelve other
requests. For three requests, the Secret Service provided a
communication of an unidentified nature, but did not produce
any requested records. Two requests were ignored entirely.
Secret Service, in moving for judgment pursuant to Rule
12(c), has treated its non-responsiveness to Judicial
Watch's requests as consistent with FOIA: When an agency
fails "promptly" to produce requested non-exempt
records or invoke an exemption within statutory timetables,
the requesting party may file a lawsuit without exhausting
the administrative remedy. See 5 U.S.C. §
552(a)(6)(C)(i). That is, failures to adhere to FOIA's
pre-litigation requirements, including response deadlines and
records management provisions needed to enable
"prompt" determinations, do not establish a FOIA
violation and consequently cannot be the basis for a policy
or practice claim. See Appellee Br. 17-19. In other
words, the Secret Service concludes the text of FOIA allows
for this interpretation because even where an agency
repeatedly fails to conform to FOIA's procedural
requirements in the first part of the statutory scheme, the
requester can, under the second part of the scheme, file a
lawsuit any time it seeks to gain access to agency records.
That is, the Secret Service interprets FOIA the same way as
any statute affording a right that may be vindicated by
judicial enforcement; enacting FOIA's directives on
pre-litigation requirements thus was unnecessary.
interpretation is untenable for any number of reasons. Most
significantly, "[t]he basic purpose of FOIA is to ensure
an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governor accountable to the governed." NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978); see Nat'l Archives & Records Admin. v.
Favish, 541 U.S. 157, 171-72 (2004). Non-exempt records
are to be made "promptly available," 5 U.S.C.
§ 552(a)(3)(A), for little more than payment of copying
costs. The Secret Service's interpretation renders
FOIA's mandate of "prompt" response
superfluous, i.e., a dead letter. Judicial
Watch's complaint reflects that it has repeatedly been
confronted with prolonged, unexplained delays by the same
agency with regard to the same type of records and that six
nearly identical lawsuits have not produced any change in the
Secret Service's response to its proper requests until
after it has filed a lawsuit. According to the complaint,
only at that point has the Secret Service conducted a search
to determine whether records can be made available or are
exempt from disclosure, or engaged in consultations with
Judicial Watch. The government points to nothing that would
suggest that in providing a judicial remedy "to secure
such information from possibly unwilling official
hands," Mink, 410 U.S. at 80, Congress intended
an agency's repeated flaunting of FOIA's
pre-litigation procedural requirements to be excused once the
requested records are made available upon being sued. That
interpretation is inconsistent with Congress's remedial
purpose in enacting FOIA to enhance government transparency
subject to limited statutory exemptions, using a two-part
scheme that imposed specific requirements on federal
agencies. Our precedent on policy or practice claims disposes
of any suggestion that Congress intended the repeated filing
of lawsuits to be a practical requirement for obtaining
records from an agency flaunting the statute. See
Payne, 893 F.2d at 494 (citing Long, 693 F.2d
at 910). Filing a lawsuit hardly ensures "prompt
availab[ility]," 5 U.S.C. § 552(a)(3)(A), as the
instant case and the five other lawsuits against this agency
demonstrate, see supra note 2, not to mention the
chilling effect that litigation costs can have on members of
the public much less the burden imposed on the courts.
a plaintiff states a plausible policy or practice claim under
Payne by alleging prolonged, unexplained delays in
producing non-exempt records that could signal the agency has
a policy or practice of ignoring FOIA's requirements. As
in Payne, the plaintiff must allege a pattern of
prolonged delay amounting to a persistent failure to adhere
to FOIA's requirements and that the pattern of delay will
interfere with its right under FOIA to promptly obtain
non-exempt records from the agency in the future. Judicial
Watch's complaint meets these requirements. Given the
Secret Service's repeated, prolonged, and as yet
unexplained delays in making requested non-exempt records
available, it cannot be gainsaid that Judicial Watch alleges
sufficient facts under Federal Rule of Civil Procedure
8(a)(2) and Supreme Court precedent to "draw the
reasonable inference" that the Secret Service has
adopted a practice of delay, contrary to FOIA's two-part
scheme, by repeatedly standing mute over a prolonged period
of time and using Judicial Watch's filing of a lawsuit as
an organizing tool for setting its response priorities.
Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
conclusion that such "unreasonable delay in disclosing
non-exempt documents" is an "abuse of [FOIA's]
scheme" follows ineluctably from the recognition that
"Congress did not intend for the [agency] to use the
FOIA offensively to hinder the release of non-exempt
documents so as to "force the appellant to bring
several lawsuits to obtain release of the documents."
Payne, 837 F.2d at 494 (quoting Long, 693
F.2d at 910). And it is long established in this circuit that
an agency's compliance with FOIA depends upon its
"good faith effort and due diligence . . . to comply
with all lawful demands [for records] . . . in as short a
time as is possible." Open America v. Watergate
Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir.
1976). Congress reinforced the importance of FOIA's
timetables and its overarching mandate of prompt availability
when it amended FOIA in 1974. Responding to agencies'
concerns about the high volume of requests and lack of
resources, Congress allowed agencies only ten additional days
to respond where there were "unusual
circumstances." See 5 U.S.C. §
552(a)(6)(B). Judge Leventhal has explained:
[T]he 1974 Amendments were deliberately drafted to force
increased expedition in the handling of FOIA requests:
"[E]xcessive delay by the agency in its response is
often tantamount to denial. It is the intent of this bill
that the affected agencies be required to respond to
inquiries and administrative appeals within specific time
limits." H. Rep. No. 93-876, 93d Cong., 2d Sess. (1974).
. . . The Congress even rejected a 30-day extension
provision, narrowly drafted to take account of the special
exigencies facing agencies.
Open America, 547 F.2d at 617 (Leventhal, J.,
concurring in the result) (emphasis added). Much as Congress
has done in adopting "technology-forcing"
provisions in other contexts, see, e.g., Union
Elec. Co v. EPA, 427 U.S. 246, 256-57 (1976), Congress
contemplated that agencies would improve their records
management systems to ensure requested records are made
"promptly available," 5 U.S.C. § 552(a)(3)(A).
No authority has been cited that either the Supreme Court or
this court has retreated from this understanding of
FOIA's text, purpose, and history. An agency's use of
a lawsuit as an organizing tool for prioritizing responses