The Court of Appeals for the District of Columbia Circuit broke new ground in a pattern and practice case brought by Judicial Watch against the Secret Service. Judicial Watch made a number of requests to the Secret Service that were only fulfilled after the group filed lawsuits (and the lawsuits were well after the 20 working day statutory time period). They filed a lawsuit against the Secret Service seeking an injunction that would make the Secret Service respond to future requests in a timely manner rather than make the group file litigation each time requests were made.
The District Court dismissed the pattern and practice claim because their were sufficient allegations in the complaint concerning the pattern and practice. In a 2-1 decision, the Court of Appeals remanded the case back to the District Court. Up to this decision, pattern and practice claims in FOIA had to allege either agency misconduct or good faith agency error in interpreting FOIA exemptions. Neither were alleged here, only the facts that the requester made requests, they were ignored until lawsuits were filed, and then the material was released. The Court found these unexplained delays were enough to allow an inference of a practice of delay. This ruling will allow the case to proceed at a lower level, where the Secret Service will now have to explain that its delays are not a pattern or practice unsupported by the FOIA. It is likely additional case law will come from the lower court decision or the government could try to get an en banc hearing (as this was a split decision) on the issue thereby delaying lower court action.