UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, 

INC.,

Plaintiff, 

v.

UNITED STATES DEPARTMENT OF 

JUSTICE,

Defendant.

Civ. Action No. 20-2810 (EGS)

MEMORANDUM OPINION

Plaintiff The Protect Democracy Project (“Protect 

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

inform the public’s understanding of government operations and 

activities, including the conduct of elections” by “gathering 

and disseminating information that is likely to contribute 

significantly to the public’s understanding of executive branch 

operations and activities”—brings this lawsuit against Defendant 

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

1 ¶ 10.1 Protect Democracy alleges that DOJ has failed to comply 

with its duties under the Freedom of Information Act (“FOIA”), 5 

U.S.C. § 552. See id. ¶¶ 45-47. Protect Democracy seeks a 

1 When citing electronic filings throughout this Opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document.
2

preliminary injunction ordering DOJ to “process Plaintiff’s FOIA 

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

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

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

communications with individuals in the United States Postal 

Inspection Service regarding participation in any DOJ voting or 

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

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

No. 16 at 1.2

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

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

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

I. Background

A. Statutory and Regulatory Framework

FOIA provides a “statutory right of public access to

documents and records” held by federal government agencies. 

Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). Pursuant 

to FOIA, agencies are directed to determine within 20 business 

2 Protect Democracy also requests oral argument on its motion for 

preliminary injunction. See Pl.’s Mot. Prelim. Inj., ECF No. 16 

at 2. Because the Court is ruling on the motion within 21 days 

of its filing, the Court deems oral argument unnecessary. See L. 

Civ. R. 65.1(d) (“On request of the moving party together with a 

statement of the facts which make expedition essential, a 

hearing on an application for preliminary injunction shall be 

set by the Court no later than 21 days after its filing, unless 

the Court earlier decides the motion on the papers . . . .”).
3

days whether to comply with requests it receives and to notify 

immediately the person making the request of such determination 

and of the reasons for the determination. 5 U.S.C. § 

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

in Wash. v. Fed. Election Comm’n, 711 F.3d 180, 188 (D.C. Cir. 

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

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

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

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

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

the requester that it can appeal whatever portion of the 

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

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

additional ten days by providing written notice to the person or 

entity placing a request. 5 U.S.C. § 552(a)(6)(B)(i). If the 

agency fails to comply with the statutory time requirements, the 

person or entity making the request may file suit in federal 

court before exhausting administrative remedies. Id. § 

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

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

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

retain jurisdiction and allow the agency additional time to 

complete its review of the requested records. Id.
4

Agencies typically process FOIA requests for records in the 

order in which the agency receives them. See, e.g., 28 C.F.R. § 

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

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

Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. 

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

requests for agency records, directing agencies to “process as 

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

granted expedited processing.” 5 U.S.C. § 552(a)(6)(E)(iii). 

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

person requesting the records demonstrates a compelling need; 

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

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

added in 1996 by the Electronic Freedom of Information Act 

Amendments, Pub. L. 104–231, § 8, 110 Stat. 3048, 3051–52. The 

United States Court of Appeals for the District of Columbia 

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

of these amendments, has noted that “the specified categories 

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

Fayed v. CIA, 254 F.3d 300, 310 (D.C. Cir. 2001) (quoting H.R.

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

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

10 days from receipt of the request to determine whether to

grant the request for expedition. See 5 U.S.C. § 552(a)(6)(E)
5

(ii)(I).

B. Factual Background

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

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

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

with individuals in the United States Postal Inspection Service 

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

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

Protect Democracy stated that its request “relates to potential 

political interference by the Department of Justice with the 

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

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

pandemic—an issue of utmost importance to the public.” Id. at 3. 

The organization noted its concern regarding recent remarks made 

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

which Protect Democracy interpreted as “undermining public 

confidence” in voting by mail, among other things. Id. at 3-4. 

Protect Democracy also asserted that the situation was made more 

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

risk of falling fall short of carrying out its crucial 

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

Democracy requested the records within the time period of “March 

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

records responsive to this FOIA request.” Id. at 3. It also
6

requested that the relevant DOJ divisions search for records 

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

reasonably likely to produce responsive results, including but 

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

the Deputy Attorney General, the Office of the Associate 

Attorney General, the Civil Rights Division, and the Criminal 

Division.” Id. 

Protect Democracy requested expedited processing of its 

FOIA request under 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R. § 

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

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

interest in which there exist possible questions about the 

government’s integrity that affect public confidence,’ 28 C.F.R. 

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

the public about an actual or alleged Federal Government 

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

engaged in disseminating information,’ 28 C.F.R. § 

16.5(e)(1)(ii).” Id.

DOJ’s Civil Rights Division responded to Protect 

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

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

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

request beyond the ten additional days provided by the statute” 

pursuant to 5 U.S.C. § 552(a)(6)(B)(i)-(iii). Id. at 3. The 
7

Civil Rights Division did not inform Protect Democracy whether 

it would grant expedited consideration of the FOIA request. On 

October 23, 2020, the Civil Rights Division sent Protect 

Democracy a letter stating that the searches had been conducted 

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

ECF No. 23-1.

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

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

requests for three of the entities from which Plaintiffs seek 

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

Associate Attorney General, and Office of the Deputy Attorney 

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

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

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

OIP also cited to 5 U.S.C. § 552 (a)(6)(B)(i)-(iii) and informed 

Protect Democracy that due to “unusual circumstances,” OIP 

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

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

the statute.” Id. On October 20, 2020, OIP sent Protect 

Democracy a letter stating that the searches had been conducted 

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

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

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

Plaintiff’s FOIA request and denied expedited processing. Ex. B 
8

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

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

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

Criminal Division remains the only DOJ entity to have not 

completed the processing of Protect Democracy’s FOIA request.

On October 2, 2020, Protect Democracy filed its lawsuit 

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

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

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

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

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

Court’s adjudication.

II. Legal Standard

“A plaintiff seeking a preliminary injunction must 

establish [1] that he is likely to succeed on the merits, [2] 

that he is likely to suffer irreparable harm in the absence of 

preliminary relief, [3] that the balance of equities tips in his 

favor, and [4] that an injunction is in the public interest.’” 

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration 

in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 

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

party, the balance of equities and public interest factors 

merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A 

preliminary injunction is an “extraordinary remedy that may only 
9

be awarded upon a clear showing that the plaintiff is entitled 

to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 

U.S. 7, 22 (2008) (citation omitted). “The purpose of a 

preliminary injunction is merely to preserve the relative 

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

held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In 

this Circuit, the four factors have typically been evaluated on 

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

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

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

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 

(D.C. Cir. 2009). 

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

Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C. 

Circuit has suggested that a positive showing on all four 

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

71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644 

F.3d at 393 (“[W]e read Winter at least to suggest if not to 

hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.” (citation 

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

no occasion to decide this question because it has not yet 

encountered a post-Winter case where a preliminary injunction 
10

motion survived the less rigorous sliding-scale analysis.” 

ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C. 2014).

III. Analysis

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

Claim

Plaintiff argues that it is likely to succeed on the merits 

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

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

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

Regarding Protect Democracy’s first argument, Plaintiff 

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

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

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

Democracy contends that DOJ has “failed to gather and review 

responsive documents” within the statutorily prescribed time 

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

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

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

Democracy acknowledges that “FOIA itself does not require 

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

3 The D.C. Circuit has defined “determination” as requiring that 

“within the relevant time period, the agency must at least 

inform the requester of the scope of the documents that the 

agency will produce, as well as the scope of the documents that 

the agency plans to withhold under any FOIA exemptions.” CREW, 

711 F.3d at 186.
11

equitable power to order accelerated production schedules as 

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

agencies are meeting their production responsibilities. Pl.’s 

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

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

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

available.’” Def.’s Opp’n, ECF No. 21 at 21 (quoting 5 U.S.C. § 

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

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

have exhausted administrative remedies for purposes of seeking 

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

request.” Id.

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

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

deadlines. Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 

1, 10 (D.D.C. 2015) (BAH). While FOIA generally requires 

government agencies to communicate its determination within 

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

to obtain immediate judicial supervision over an agency’s 

response to an outstanding FOIA request.” Id. According to the 

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

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

on the administrative exhaustion requirement to keep cases from 

getting into court.” Crew, 711 F.3d at 189. This “penalty” is 
12

underscored by the fact that FOIA provides, where a requester 

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

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

ongoing progress, ensuring that the agency continues to exercise 

due diligence in processing the request.” Id. (citing 5 U.S.C. § 

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

extend its response time if it demonstrates ‘exceptional 

circumstances’ to the court.” Id. at 185 (citing 5 U.S.C. § 

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

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

responding to the request, the court may retain jurisdiction and 

allow the agency additional time to complete its review of the 

records.’” Id. (quoting 5 U.S.C. § 552(a)(6)(C)(i)).

Accordingly, because the Criminal Division has not yet 

communicated its determination on the FOIA request, Protect 

Democracy is deemed to have exhausted its administrative 

remedies and may proceed with its suit. See CREW, 711 F.3d at 

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

demonstrate that the plaintiff is likely to prevail in its 

underlying effort to accelerate the processing of its FOIA 

requests and the ultimate production of any responsive, nonexempt records.” Daily Caller, 152 F. Supp. 3d at 10-11 (quoting 

Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 

41 (D.D.C. 2014)).
13

The Court next addresses Protect Democracy’s argument that 

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

improperly denied its request for expedited treatment. A 

decision denying expedited processing is reviewed by the courts 

de novo, Al–Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001);

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

determination,” 5 U.S.C. § 552(a)(6)(E)(iii). Pursuant to FOIA,

agencies are to provide expedited processing where the requester 

shows a “compelling need” for the relevant information, 5 U.S.C. 

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

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

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

Federal Government activity,” id. § 552(a)(6)(E)(v)(II); see 

also 28 C.F.R. § 16.5(e)(1)(ii) (same).

The Court first turns to whether Protect Democracy is 

“primarily engaged in disseminating information.” 5 U.S.C. § 

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

dissemination be the main [and not merely an incidental] 

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

U.S. Dep’t of Def., 263 F. Supp. 3d 293, 298 (D.D.C. 2017) (CRC) 

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

Prot. Bureau, No. 17-686, 2017 WL 1750263, at *3 (D.D.C. May 4, 

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

organization’s] sole occupation.’” Id.
14

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

intended to “disseminate information and analysis about this 

request—and any information obtained in response—through its 

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

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

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

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

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

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

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

Id. (citation omitted). It also listed examples of previous 

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

requests to a wide audience.” Id. In addition, at least one 

other court in this District has recently found that Protect 

Democracy “easily” satisfies the requirement that the 

organization is “primarily engaged in disseminating information”

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

Protect Democracy Project, 263 F. Supp. 3d at 298 (finding 

Protect Democracy met the requirement where it noted that it 

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

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

operations and activities of government”). Accordingly, the 

Court finds that Protect Democracy has established that its 

representations within its FOIA request likely satisfy this 
15

requirement.

The Court next considers whether Protect Democracy’s FOIA 

request likely demonstrated an “urgency to inform the public 

concerning actual or alleged Federal Government activity.” 5 

U.S.C. § 552(a)(6)(E)(v). Such urgency must “extend[] beyond the 

public’s right to know about government activity generally.” 28 

C.F.R. § 16.5(e)(3). In addition, and as the D.C. Circuit has 

explained, courts should consider the following factors in 

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

whether the request concerns a matter of current exigency to the 

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

response would compromise a significant recognized interest; and 

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

Al–Fayed, 254 F.3d at 310.

Because Plaintiff’s request concerns a serious and timesensitive matter, the Court finds that Protect Democracy also 

has likely satisfied this requirement. First, regarding whether 

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

Protect Democracy explained that its request “relates to 

potential political interference by the Department of Justice 

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

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

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

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

had concerns regarding some of President Trump and Attorney 

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

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

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

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

Democracy further asserted that, in view of the impending 

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

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

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

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

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

Protect Democracy’s statements in its FOIA letter likely 

establish that the subject matter of its requested information—

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

of “current exigency,” particularly given the imminence of 

Election Day and the widespread media attention to the issue of 

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

4 See Ex. A to Pl.’s Mot., ECF No. 16-4 (citing, e.g., Paul 

Rosenzweig & Bryson Bort, Trump and Barr Are Making False Claims 

About Mail-in Ballots to Scare Us Out of Voting, USA Today (July 

4, 2020), 

https://www.usatoday.com/story/opinion/2020/07/04/attorneygeneral-bill-barrwrong- mail-voting-open-floodgates-fraudcolumn/3258807001/; Joshua A. Geltzer, Four Ways William Barr Is 

Already Subverting the 2020 Elections, Wash. Post (June 26, 

2020), https://www.washingtonpost.com/outlook/barr-attorneygeneral-election/2020/06/26/7ad4fc7e-b6fb-11ea-a510-

55bf26485c93_story.html; Amy Gardner & Elise Viebeck, GOP Pushes 

Voting by Mail—With Restrictions—While Trump Attacks It as 
17

§ 16.5(e)(3) (“The existence of numerous articles published on a 

given subject can be helpful in establishing the requirement 

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

Second, further delay in processing Protect Democracy’s request 

would likely “compromise a significant recognized interest,” as 

well. Al–Fayed, 254 F.3d at 310. As the D.C. Circuit has 

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

Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 

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

Democracy is at risk of losing its ability to timely facilitate 

public awareness regarding the subject matter of its request. 

See Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 

2d 246, 260 (D.D.C. 2005) (RCL) (recognizing the urgency of the 

plaintiff’s request given “the upcoming expiration of the 

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

Dep’t of Just., 321 F. Supp. 2d 24, 29 (D.D.C. 2004) (ESH) 

(finding exigency because of the “ongoing debate regarding the 

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

Democracy’s FOIA request undoubtedly concerns “federal 

government activity.” Al–Fayed, 254 F.3d at 310.

‘Corrupt,’ Wash. Post (Apr. 13, 2020), 

https://www.washingtonpost.com/politics/gop-pushes-voting-bymail--withrestrictions-- as-trump-attacks-it-ascorrupt/2020/04/12/526057a4-7bf8-11ea-a130-

df573469f094_story.html).
18

Accordingly, the Court concludes that Protect Democracy has 

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

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

Dep’t of Def., 411 F. Supp. 3d 5, 11 (D.D.C. 2019) (CKK) 

(finding plaintiff had established a likelihood of success on 

the merits where plaintiff explained it was “primarily engaged 

in disseminating information,” it intended to produce original 

reports based on the analysis of the requested information, and 

the information was “a matter of immediate concern to the 

American public” because it was “the subject of imminent 

congressional hearings and action”).

B. Plaintiffs Face Irreparable Harm

“In this Circuit, a litigant seeking a preliminary 

injunction must satisfy ‘a high standard’ for irreparable 

injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of 

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

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

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

5 Protect Democracy also argues that it is entitled to expedited 

processing because it has shown that its request concerns a 

“matter of widespread and exceptional media interest in which 

there exist possible questions about the government’s integrity 

that affect public confidence” under 28 C.F.R. § 16.5(e)(1)(iv). 

Pl.’s Mot., ECF No. 16-1 at 29. Because the Court has found that 

Protect Democracy is entitled to expedition because it has 

likely demonstrated an “urgency to inform the public concerning 

actual or alleged Federal Government activity,” the Court need 

not evaluate this argument at this time.
19

“of such imminence that there is a clear and present need for 

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

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and 

emphasis omitted). “District courts in this circuit have 

recognized that, where an obligation to disclose exists, a 

plaintiff may suffer irreparable harm if denied access to 

information that is highly relevant to an ongoing public 

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

20-1196 (TFH), 2020 WL 3639733, at *4 (D.D.C. July 6, 2020); see 

also Elec. Privacy Information Ctr. v. Dep’t of Just., 416 F. 

Supp. 2d 30, 41 (D.D.C. 2006) (finding irreparable harm where 

plaintiff would be “precluded, absent a preliminary injunction, 

from obtaining in a timely fashion information vital to the 

current and ongoing debate surrounding the legality of the 

Administration's warrantless surveillance program”).

Protect Democracy contends that its request for “materials 

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

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

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

example” of the type of request that should be processed 

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

argues that the “need for prompt compliance” is further 

heightened here because the subject matter of the FOIA request

concerns a “critical question that has yet to be answered 
20

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

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

DOJ to conduct these investigations is critical given USPIS’s 

role as the law enforcement arm of the federal agency charged 

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

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

ballots across the country, potentially risking the 

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

at 17.

In opposition, DOJ argues that Protect Democracy has not 

shown that harm will result without a preliminary injunction 

because, while the events described in the FOIA request occurred 

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

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

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

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

assertion that its FOIA request addresses a “critical question 

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

disagreement about the scope of the disclosure the Department 

has already made about its inquiries into potential violations 

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

Protect Democracy has already asserted that DOJ’s “activities 

regarding potential voter fraud are misaligned with that 

‘incidence of . . . fraud,’” DOJ contends that “awaiting 
21

ordinary processing of its FOIA request will not deprive it of 

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

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

that Protect Democracy puts forth no evidence showing why the 

processing of its request must be completed prior to the 

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

public information about the Department’s efforts to prevent 

voter fraud, including news releases and news media interviews 

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

Id. at 7, 17-18.

The Court finds that Protect Democracy has established a 

likelihood of irreparable harm absent a preliminary injunction. 

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

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

impending election, in which voting is already underway. While 

the Court does not conclude at this time that any responsive 

communications must be processed prior to Election Day—after 

all, new voter fraud investigations may commence subsequent to 

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

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

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

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

ballots submitted by mail must be postmarked by Election Day and 

be received within 7 days after Election Day), 
22

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

established that the American public has a need to know

information regarding investigations into matters potentially 

affecting voting rights while the inquiries are still ongoing.

The Court also disagrees with DOJ’s argument that the 

timing of Protect Democracy’s FOIA request and pending motion 

reflects any undue delay. The Court is persuaded that Protect 

Democracy’s FOIA request was based upon multiple sources of 

information regarding USPS’s ability to timely deliver election 

mail and remarks concerning the integrity of mail-in voting 

procedures, some of which were reported within days of Protect 

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

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

injunction motion only two days after ProPublica and the New 

York Times reported that DOJ had revised its “longstanding ‘noninterference with elections’ policy to permit overt 

investigative steps, including questioning witnesses, in 

investigations of suspected election fraud involving postal 

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

Furthermore, though DOJ refers to publicly available 

information that Plaintiff can utilize regarding efforts to 

prevent voter fraud, DOJ does not refer to any public 

information specifically relating to Protect Democracy’s request 

about USPIS involvement in such efforts. It is thus uncertain 
23

whether there is any information currently available to the 

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

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

role.” Pl.’s Reply, ECF No. 24 at 17.

Accordingly, the Court finds that Protect Democracy has 

sufficiently shown it will likely suffer irreparable harm absent 

a preliminary injunction.

C. The Balance of Equities and Public Interest Favor an 

Injunction

The balance-of-equities factor directs the Court to 

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

effect on each party of the granting or withholding of the 

requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting 

Winter, 555 U.S. at 24). “When the issuance of a preliminary 

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

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

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

v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast, 

the balance of equities may favor a preliminary injunction that 

serves only “to preserve the relative positions of the parties 

until a trial on the merits can be held.” Rufer v. FEC, 64 F. 

Supp. 3d 195, 206 (D.D.C. 2014) (CRC) (quoting Camenisch, 451 

U.S. at 395). “The purpose of . . . interim relief is not to 

conclusively determine the rights of the parties, Univ. of Tex. 
24

v. Camenisch, 451 U.S. 390, 395 (1981), but to balance the 

equities as the litigation moves forward. In awarding a 

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

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

Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) 

(second alteration in original).

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

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

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

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

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

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

category of documents and, even if expedited processing slowed 

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

extraordinary case where the public interest favors placing 

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

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

original) (citations omitted). Protect Democracy further 

contends that the public interest favors the requested relief 

because the “public will benefit from a better understanding of 

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

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

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

DOJ “has already proven that it can conduct a prompt search for 
25

records responsive to this narrowly tailored request”: four of 

the five division within DOJ have already completed their search 

for records responsive to its request and have communicated the 

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

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

search for records. Id.

In opposition, DOJ argues that “entry of a preliminary 

injunction expediting a FOIA request over other pending requests 

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

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

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

DOJ contends that the Criminal Division would also be “unduly 

burdened” by expedited processing because it handles “about 880 

open administrative requests and 50 open litigation matters as 

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

adjustments because of the COVID-19 pandemic created an 

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

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

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

consideration here because by its terms it is evident that a 

significant portion of the records potentially responsive to the 

Project’s request for communications between USPIS and the 

Department could be exempt.” Id. at 29.

Here, the balance of the equities and the public interest 
26

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

expedited release of the requested documents because it furthers 

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

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

416 F. Supp. 2d at 42 (alteration in original) (citation 

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

Treasury, 49 F. Supp. 2d 3, 5 (D.D.C. 1999) (JR) (“There is 

public benefit in the release of information that adds to

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

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

submitted their ballots by mail, and that there is significant 

media attention and public debate on the topic of alleged voter 

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

timely release of the requested documents. There is no doubt 

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

great importance. See Am. Oversight v. U.S. Dep’t of State, 414 

F. Supp. 3d 182, 187 (D.D.C. 2019) (CRC) (noting that where 

records “could directly inform the [impeachment] investigation 

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

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

Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 76

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

mandating expedited treatment, the public’s interest in 

expedited processing of the plaintiff’s request outweighs any 
27

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

FOIA requests.”).

The Court is also unpersuaded by DOJ’s assertions regarding 

the risks of disclosing exempted documents, particularly where 

it is unknown whether there are any documents responsive to 

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

suggestions that inadvertent release of exempted documents might

occur are insufficient to outweigh the very tangible benefits 

that FOIA seeks to further—government openness and 

accountability.” Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 

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

Division would face a particularly heavy burden in, at the 

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

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

“communications” regarding a narrowed subject matter and time 

period. The Court acknowledges that the Criminal Division faces 

a substantial FOIA backlog, including two expedited FOIA matters 

relating to Ukraine. However, Protect Democracy clarified in its 

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

production schedule that is not unduly burdensome to DOJ.

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

the Criminal Division does identify potentially responsive 

documents, Protect Democracy is committed to working with both 

Defendant and the Court on a processing schedule that serves 
28

Protect Democracy’s need to inform the public debate while 

imposing a minimal burden on both Defendant and the other 

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

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

to devise a joint proposed schedule for the production of any 

non-exempt communications responsive to Protect Democracy’s FOIA 

request.

Accordingly, the Court finds that the balance of the 

equities and the public interest favor an injunction.

IV. Conclusion

For the foregoing reasons, the Court GRANTS IN PART and 

DENIES IN PART the Plaintiff’s motion for a preliminary 

injunction. Any request to stay this decision pending appeal 

will be denied for substantially the same reasons as those 

articulated in this Opinion. An appropriate Order accompanies 

this Memorandum Opinion.

SO ORDERED. 

Signed: Emmet G. Sullivan

United States District Judge

October 30, 2020