Debevoise & Plimpton LLP successfully defeated a key motion for reconsideration in FOIA litigation in U.S. District Court, Southern District of New York, representing pro bono client Open Society Justice Initiative (“OSJI”) in a case over OSJI’s request for U.S. government records relating to the killing of Jamal Khashoggi.
Debevoise assisted OSJI in filing several FOIA requests seeking records related to the Khashoggi killing in late 2018. When the Government agencies did not respond, Debevoise represented OSJI in filing suit in U.S. District Court, and the Departments of Defense and State proposed that they would process records at a pace far slower than OSJI preferred. Given the urgency of the public’s need for information regarding the killing, OSJI pressed for a faster processing rate, and Judge Paul A. Engelmayer agreed, finding that a rate of 5,000 pages per month appropriately balanced the agencies’ administrative burdens with the urgency of the issue of the Khashoggi killing. In so holding, Judge Englemayer agreed with OSJI that the circumstances surrounding the murder of Mr. Khashoggi, and the knowledge of the U.S. Government were questions of paramount public importance.
The Government moved for the Court to reconsider its decision, putting forward evidence to argue the 5,000 page-per-month rate was impracticable and unreasonable. Debevoise’s brief in opposition argued the rate was in fact reasonable and that the Government had not met the high standard for a motion for reconsideration.
In a reasoned decision issued on August 6, Judge Engelmayer ruled in OSJI’s favor, underscored the “paramount importance” of OSJI’s FOIA requests, and interpreted FOIA in a manner that will prove important precedent for FOIA cases going forward, by clarifying that FOIA requires not just disclosure, but disclosure on a timely basis. In rejecting the Government’s arguments that the agencies’ technological limitations permitted them to move more slowly, Judge Engelmayer stated that FOIA’s provisions must be read in terms of what a “reasonable agency” would do, suggesting agencies must update their FOIA practices to keep up with a bare-minimum technological baseline.
Debevoise partner Catherine Amirfar and associates Matthew Forbes, Ashika Singh, Moeun Cha, Sebastian Dutz, and Sidra Mahfooz are on the team representing OSJI.
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Read the court’s opinion here and the Law360 article here.