Washington Lawyers’ Committee for Civil Rights and Urban Affairs v. United States Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 31, 2025 Decided July 25, 2025
No. 24-5127
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND
URBAN AFFAIRS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-01328)
Blake E. Stafford argued the cause for appellant. With him
on the briefs were Kristin McGough, Stephen P. Barry, James
D. Friedland, and Hannah M. Mullen.
Thomas Pulham, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, at the time the brief was filed, and Mark B. Stern,
Attorney.
Before: PILLARD and GARCIA, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The Washington Lawyers’
Committee frequently submits Freedom of Information Act
requests for records from the Bureau of Prisons to inform its
representation of individuals incarcerated in the federal prison
system. Stymied by the Bureau’s persistent failure to respond
promptly to those requests, the Committee filed this suit
claiming the Bureau’s delays manifest a policy or practice of
violating FOIA. It seeks an injunction requiring the Bureau to
reform its FOIA processes to speed up the agency’s production
of records. The district court ruled that the Committee stated a
viable policy or practice claim but, crediting an affidavit
describing the Bureau’s efforts to respond faster and more
efficiently to the large volume of FOIA requests it receives, the
district court granted summary judgment to the Bureau.
The Committee appeals that judgment. It objects that the
Bureau requires it to submit an individual FOIA request each
time it seeks access to its clients’ disciplinary and educational
records, rather than offering those records through an expedited
process akin to the one the Bureau developed to facilitate
release of prisoners’ medical records requested under the
Privacy Act. The Bureau’s policy of channeling individual
records requests into the agency’s general FOIA pipeline, the
Committee claims, unnecessarily increases the Bureau’s
backlog of FOIA requests and contributes to its failure to
timely respond.
The Committee has identified no provision of FOIA that
forbids the Bureau from regularly processing requests for
individual prisoners’ disciplinary or educational records under
FOIA. The Bureau’s adherence to its practice of reviewing
those records requests for potential FOIA exemptions, rather
than establishing a categorical release process as it did for

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prisoners’ Privacy Act requests for their own medical
information, is not a policy or practice contrary to FOIA. The
Committee does not allege that the Bureau’s failure to further
streamline access to prisoners’ disciplinary and educational
records violates the Privacy Act, or that the disparate treatment
of medical records and other individual records is arbitrary or
capricious. Because the policy or practice claim fails as a
matter of law, we need not resolve the Committee’s alternative
argument that the district court applied the wrong legal
standard in denying the Committee’s request for discovery.
The Committee’s claims do not warrant discovery even under
its preferred standard.
I.
A.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552,
requires federal agencies to make their records “promptly
available to any person” upon request. Reps. Comm. for
Freedom of the Press v. FBI, 3 F.4th 350, 357 (D.C. Cir. 2021)
(quoting 5 U.S.C. § 552(a)(3)). After receiving a request for
records, the agency must “determine within 20 [business days]
after the receipt of any such request whether to comply with
such request and shall immediately notify the person making
such request” of the agency’s determination and the requester’s
rights. 5 U.S.C. § 552(a)(6)(A). The Act does not require the
agency to “actually produce” the requested documents within
twenty days, “[b]ut the agency must at least indicate within the
relevant time period the scope of the documents it will produce
and the exemptions it will claim with respect to any withheld
documents.” Citizens for Resp. & Ethics in Wash. v. FEC
(CREW), 711 F.3d 180, 182-83 (D.C. Cir. 2013). FOIA
permits the agency to extend that period for ten additional days
if the agency demonstrates “unusual circumstances,” which

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may include a need to search for records from other facilities
or agencies or examine a voluminous number of separate
records. 5 U.S.C. § 552(a)(6)(B).
Once the agency has determined it will withhold requested
records, the requester must exhaust administrative remedies by
appealing any adverse determination—such as the agency’s
decision to invoke a FOIA exemption and not release
responsive records—to the head of the agency before seeking
judicial review. Id. § 552(a)(6)(A)(i)(III); CREW, 711 F.3d at
184. But, if the agency fails to timely make the requisite
determination, a requester “shall be deemed to have exhausted
his administrative remedies” and can immediately sue in
district court to compel the release of the disputed records. 5
U.S.C. § 552(a)(6)(C)(i).
Once a suit is filed, “the burden is on the agency to sustain
its action,” and if it fails to do so the court may order the agency
to produce the requested records. Id. § 552(a)(4)(B). The
agency may only be granted additional time to decide whether
to produce documents or assert applicable exemptions if it
shows “exceptional circumstances exist and that the agency is
exercising due diligence in responding to the request.” Id.
§ 552(a)(6)(C)(i). FOIA is generally silent on what might
constitute “exceptional circumstances,” even as it warns that “a
delay that results from a predictable agency workload of
requests” can only be excused if “the agency demonstrates
reasonable progress in reducing its backlog of pending
requests.” Id. § 552(a)(6)(C)(ii). Once the agency has
determined the records should be released, it must make them
“promptly available” to the requester. Id. § 552(a)(6)(C)(i).
Release of requested records, “however fitful or delayed,”
typically moots ongoing litigation concerning an agency’s
failure to respond to a specific FOIA request. Payne Enters. v.

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United States, 837 F.2d 486, 490-91 (D.C. Cir. 1988) (citation
omitted). However, we have recognized that the production of
documents in response to individual requests “will not moot a
claim that an agency policy or practice will impair the party’s
lawful access to information in the future.” Id. at 491. In a
case in which a plaintiff raises such a claim, the court must
consider whether the challenged policy or practice will
“interfere with [the plaintiff’s] right under FOIA to promptly
obtain non-exempt records from the agency in the future,” and,
if necessary, provide appropriate injunctive relief. Judicial
Watch, Inc. v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 780
(D.C. Cir. 2018).
FOIA is not the only mechanism for private access to
government records. The Privacy Act, 5 U.S.C. § 552a,
requires federal agencies to provide an individual “access to his
record or to any information pertaining to him” that is
contained in an agency system of records, id. § 552a(d)(1). But
Privacy Act carveouts allow agencies to deny access under that
statute to any system of records “maintained by an agency or
component thereof which performs as its principal function any
activity pertaining to the enforcement of criminal laws,”
including “reports identifiable to an individual compiled at any
stage of the process of enforcement of the criminal laws from
arrest or indictment through release from supervision.” Id.
§ 552a(j)(2). The Bureau of Prisons’s regulations accordingly
exempt many agency records from the Privacy Act, 28 C.F.R.
§ 16.97, leaving requesters—including incarcerated
individuals (or their lawyers) who wish to access their own
records—to seek them through the same FOIA process
available to all members of the public. Id. §§ 513.50, 513.60.

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B.
The Washington Lawyers’ Committee (WLC or
Committee), a nonprofit legal services provider that often
represents individuals incarcerated in the federal prison system,
filed this suit against the Department of Justice in the district
court in May 2023. The Committee alleged that the Federal
Bureau of Prisons (Bureau), a component within the
Department of Justice, required it to file FOIA requests to
obtain basic information about its clients, even as the Bureau
routinely failed to make any substantive response to such
requests within the statutory deadline. The Committee further
alleged that the Bureau “inflat[ed] the number of FOIA
requests directed to it by funneling all information requests
through FOIA, despite no statutory duty to do so,” and then
sought to use the resulting high “volume of FOIA activity” as
a perennial excuse for its inability to provide timely responses.
Compl. ¶ 19 (J.A. 10-11). The complaint included a list of over
forty separate FOIA requests WLC had submitted to the
Bureau since 2019, almost all of which had yet to yield release
of the requested records. Compl. Ex. A (J.A. 19-21).
The complaint includes two counts: Count I challenges
the Bureau’s failure to timely respond to each of WLC’s
identified FOIA requests and Count II challenges the Bureau’s
alleged “policy and practice of violating FOIA’s procedural
requirements” by “failing to produce requested records or
otherwise demonstrate that requested records are exempt from
production within the time period required by FOIA.” Compl.
¶ 40 (J.A. 15). The Committee requested, among other relief,
that the court “[e]njoin [the Bureau] from failing or refusing to
produce all non-exempt records responsive to WLC’s current
and future FOIA requests or otherwise demonstrate that

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requested records are exempt from production within the time
period required by FOIA.” Compl. 11 (J.A. 16).
The Bureau moved to dismiss the policy or practice claim
or, in the alternative, for partial summary judgment on that
claim. The district court denied the motion to dismiss, holding
both that the Committee was not required to administratively
exhaust its policy or practice claim and that it stated a claim
that the Bureau has an unlawful policy or practice of unjustified
delays in responding to its FOIA requests. Wash. Lawyers’
Comm. for C.R. & Urb. Affs v. U.S. Dep’t of Just., No. 23-1328,
2024 WL 1050498, at *7-9 & n.6 (D.D.C. Mar. 10, 2024).
In the same order, however, the court granted summary
judgment to the Bureau on the policy or practice claim “based
on the facts established in defendant’s declarations.” Id. at *10.
As agencies routinely do in FOIA cases, the Bureau had
submitted in support of summary judgment a declaration
describing its process for responding to FOIA requests. See
Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 584 (D.C. Cir.
2020).
The declaration of Eugene Baime, the Bureau’s
Supervisory Attorney for its FOIA Section, explained that, in
recent years, the Bureau processed an average of 5,846 requests
per year by sorting requests into simple, complex, or expedited
tracks and working diligently to respond to requests of
increasing complexity. Baime Decl. ¶¶ 7, 9, 14, 22 (J.A. 62-
64, 66, 69). The Baime Declaration disavowed any Bureau
intent to violate FOIA. More usefully, it identified steps the
Bureau has taken to improve its FOIA processing, including
proactively posting some information on the Bureau website,
adopting a “Centralization Light” plan to better oversee
regional counsels’ FOIA processing that improved weekly
processing rates by 36.5%, and upgrading staff training and

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oversight. Baime Decl. ¶¶ 12, 21, 27-28 (J.A. 65, 68-69, 70-
71). The Bureau’s FOIA Section also responds to information
requests under the Privacy Act, and the Baime Declaration
described that office’s steps to streamline its workload by
creating a separate, accelerated process during the COVID-19
pandemic to provide attorneys their incarcerated clients’
medical records. Baime Decl. ¶ 18 (J.A. 67). The backlog of
FOIA requests continues to grow, but the steps the Bureau
identified are substantially reducing the rate of increase.
WLC’s only rebuttal to the Baime Declaration was to point
to its own long-pending FOIA requests, reiterate its claim that
the Bureau “forces all requesters to submit FOIA requests for
virtually any agency record,” Pl.’s Mem. in Opp’n to Mot. to
Dismiss 18 (J.A. 112), and emphasize the Bureau’s
acknowledgement that it “has allocated resources away from
its FOIA office and staff” and “prioritizes requests in active
litigation over other requests,” all of which the district court
deemed insufficient to create a material factual issue in support
of the policy or practice claim. Wash. Lawyers’ Comm., 2024
WL 1050498, at *11. The court also denied the Committee’s
request for an opportunity to take discovery before the court
ruled on the Bureau’s summary judgment motion because
WLC failed to “state with sufficient particularity why
additional discovery is warranted on the record in this case.”
Id.
The district court observed that the Bureau had provided
undisputed evidence of “multiple explanations” for the time it
took to process FOIA requests. Id. It recounted the Bureau’s
“recently implemented and so far successful programmatic
efforts to address delays.” Id. That information, the court held,
sufficed “to show that [the Bureau] does not have a policy or
practice of ‘repeated, unexplained, and prolonged delay in
making information available’ in response to FOIA requests

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until requester litigation is initiated.” Id. (quoting Judicial
Watch, 895 F.3d at 779).
As for WLC’s individual FOIA requests, jointly pressed in
Count I, the district court acted “in the interest of efficiency
and judicial economy” to sever all but one of those claims with
leave to refile them separately. Id. at *14. The court reasoned
that those requests were each separately submitted, “almost all
on different dates over a time span of three years, with each
seeking different records related to different individuals or
about the operations of various [Bureau] programs.” Id. at *13.
The court provided that “the claims of timely refiled suits will
relate back to the date on which the instant case was filed.” Id.
at *14. That decision is not at issue here.
The Committee appealed the judgment only as to the
policy or practice claim and related discovery request. We
have jurisdiction under 28 U.S.C. § 1291. We review the grant
of summary judgment de novo, Evans, 951 F.3d at 584, and
affirm if, viewing the record in the light most favorable to the
nonmoving party, there are no genuine disputes of material
fact, and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We review the denial of discovery for
abuse of discretion. Cruz v. McAleenan, 931 F.3d 1186, 1191
(D.C. Cir. 2019).
II.
We first address WLC’s argument that summary judgment
was unwarranted. The Committee pleaded a valid claim that
the Bureau maintained a policy or practice of violating FOIA,
but more is needed to survive summary judgment. On appeal,
the Committee refines its argument, unsuccessful in the district
court, that the Bureau has made insufficient effort to speed up
its FOIA processing. Before us the Committee underscores
that the Bureau unnecessarily requires members of the public

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to file FOIA requests to obtain information it could more
efficiently provide through a process akin to the one it adopted
under the Privacy Act for release of prisoner medical records
to prisoners’ counsel. Because that argument fails as a matter
of law, we affirm the district court’s judgment.
“[A] plaintiff states a plausible policy or practice
claim . . . 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.”
Judicial Watch, 895 F.3d at 780. At the pleading stage, a
plaintiff need not identify a precise “formal policy” of the
agency responsible for those delays. Id. at 779. Once a
plaintiff has stated a policy or practice claim, the task falls to
the court to provide the agency with “the opportunity . . . to
explain its delays and to confirm how it intends in the future to
conform to FOIA’s mandate” and “determine whether the
agency’s conduct . . . demonstrates a lack of due diligence and
is so delinquent or recalcitrant as to warrant injunctive relief.”
Id. at 783-84.
This case has proceeded along the path mapped by Judicial
Watch. WLC plausibly alleged unexplained and unresolved
delays in responding to its FOIA requests, thereby shifting the
burden to the Bureau to explain and justify its practices. The
Bureau did so in the Baime Declaration, which described its
process for responding to FOIA requests, the causes of its
continued backlog, and the steps the Bureau has taken to
improve processing speeds.
The parties disagree on the applicable standard for
assessing whether the Baime Declaration suffices to support
summary judgment. The Committee, citing Judicial Watch,
argues that the Bureau must demonstrate that it is “mak[ing]
records available as quickly as possible.” 895 F.3d at 783. The

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Bureau, relying on a different passage in Judicial Watch,
responds that it need only show “good faith effort and due
diligence” in responding to requests. Id. (quoting Open Am. v.
Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C.
Cir. 1976)). A third possibility, rooted in the language of the
statute, is that to defeat the claim of a policy or practice of
unlawful delay, the Bureau must “show exceptional
circumstances exist and that the agency is exercising due
diligence.” 5 U.S.C. § 552(a)(6)(C)(i). That quoted provision
addresses the normal conditions to excuse noncompliance with
FOIA’s statutory deadlines, at least in cases involving an
individual request. Neither party argues that the “exceptional
circumstances” standard should apply to policy or practice
claims, so we do not address that possibility here.
Evidence that an agency generally attempts to respond to
FOIA requests in good faith is not enough to entitle the
government to summary judgment on a FOIA policy or
practice claim. Nothing in FOIA suggests that a plaintiff in a
FOIA policy or practice case must affirmatively demonstrate
that the agency is acting in bad faith to survive summary
judgment. Per Judicial Watch, a court resolving such a case
must “determine whether the agency’s conduct in failing to
conform to FOIA’s procedural requirements demonstrates a
lack of due diligence and is so delinquent or recalcitrant as to
warrant injunctive relief because ordinary remedies, such as a
production order, would be inadequate to overcome an agency
policy or practice.” 895 F.3d at 783 (citation omitted). An
agency may be “delinquent or recalcitrant” in meeting its FOIA
obligations without rising to the level of bad faith. To be sure,
we have acknowledged that “not all agency delay or other
failure to comply with FOIA’s procedural requirements will
warrant judicial intervention, much less injunctive relief.” Id.
at 782. But it is equally true that an agency’s invocation of
factors like “staffing shortages and work overload” do not by

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themselves necessarily “render injunctive relief inappropriate.”
Id. at 783. We need not spell out here the precise legal standard
because the Committee’s legal theory fails regardless.
The flaw WLC claims in the Bureau’s FOIA processing is
that the Bureau has an “admitted policy of needlessly”—in its
view—“channeling [some] requests for individual records
through its lengthy FOIA review process.” WLC Br. 24; WLC
Reply Br. 3, 11. Specifically, it points out that the Bureau
responds to requests from prisoners (and their attorneys)
seeking their medical records through a separate, expedited
process under the Privacy Act that does not suffer the delays
associated with the FOIA process. See Privacy Act of 1974;
Systems of Records, 89 Fed. Reg. 49,906 (June 12, 2024)
(Medical Records Notice); 28 C.F.R. § 16.97(a)(5). The
Bureau voluntarily initiated that expedited process during the
COVID-19 pandemic, when it began offering ready access to a
prisoner’s last two years of medical records if sought by an
attorney in support of a motion for compassionate release or a
request for home confinement. Baime Decl. ¶ 18 (J.A. 67).
The Bureau has since expanded that system to apply to all
attorney requests for their clients’ medical records, regardless
of the specific purpose or the records’ timeframe. Medical
Records Notice, 89 Fed. Reg. at 49,909.
That Privacy Act program is inadequate for the
Committee’s needs because it does not encompass other
individual prisoner records—such as educational or
disciplinary records. Prisoners’ individual educational and
disciplinary records remain exempt from disclosure under the
Privacy Act, leaving prisoners and their counsel to seek them
under FOIA. That is, no doubt, why the Committee makes no
Privacy Act claim in this case. Rather, the Committee argues
that the Bureau’s policy of channeling requests for non-medical
individual records through FOIA, rather than establishing a

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speedier track as it did for medical records under the Privacy
Act, violates FOIA. On appeal, the Committee identifies no
other defect with the Bureau’s FOIA processing—whether
inadequate staffing, insufficient training, a lack of diligence in
processing requests, or anything else. It objects only that the
Bureau requires it to file FOIA requests in the first place, rather
than offering a different, more expeditious system for obtaining
the desired records.
The Bureau’s adherence to FOIA processing of requests
for prisoners’ educational and disciplinary records cannot
amount to a claim that the Bureau has a policy or practice of
violating FOIA. Critically, the Bureau’s efforts to offer
attorneys expedited access to client medical records—which
WLC says illustrate how the Bureau could further improve its
FOIA operations—are in fact entirely separate from the
Bureau’s FOIA policies or practices. The Bureau did not
simplify access to prisoner medical records by reforming its
FOIA processes. Instead, those medical records are now
available because, although all Bureau records are normally
exempt from access under the Privacy Act as pertaining to
criminal law enforcement, see 5 U.S.C. § 552a(j)(2); 28 C.F.R.
§ 16.97(a)(5), the Bureau elected to waive that exemption for
certain medical records requested under the Privacy Act so that
eligible requesters may obtain them without filing FOIA
requests at all. Medical Records Notice, 89 Fed. Reg. at
49,909. The Committee thus in effect argues that FOIA
requires the Bureau to go even further in waiving the agency’s
statutory entitlements under the Privacy Act. But it is the
Privacy Act, and not FOIA, that determines the extent of the
Bureau’s obligations to allow access to its records via the
Privacy Act’s non-FOIA processes.
WLC’s implicit conflation of the Bureau’s activities under
the two statutes is mistaken. The Privacy Act’s disclosure

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provisions are materially different from those under FOIA.
Most notably, FOIA’s purpose is to provide transparency to the
public about the operations of government. The Privacy Act,
by contrast, protects the privacy of personal information
collected by the government. As relevant here, the Privacy Act
provides for disclosures in response to requests “by any
individual to gain access to his record or to any information
pertaining to him.” 5 U.S.C. § 552a(d)(1) (emphases added).
A successful Privacy Act request does not make the requester’s
records available to the public at large.
FOIA, on the other hand, obliges agencies to make records
available to “any person” who files a proper FOIA request, id.
§ 552(a)(3)(A), and under most circumstances “the identity of
the requesting party has no bearing on the merits of his or her
FOIA request,” U.S. Dep’t of Just. v. Reps. Comm. for Freedom
of the Press, 489 U.S. 749, 771 (1989). In other words, once
one requester gets access to information under FOIA, it is
treated as generally publicly available. FOIA also permits
agencies to invoke exemptions when producing records that are
tailored to the contents of particular documents, whereas the
Privacy Act’s statutory carveouts apply at the level of an
agency “system of records” and provide for fewer but more
sweeping exemptions. Compare 5 U.S.C. § 552(b), with id. §
552a(j)-(k).
The Committee has not challenged the Bureau’s general
regulation governing disclosure of agency records pursuant to
applicable laws like FOIA and the Privacy Act, nor has it
challenged the Bureau’s regulations decreeing that ordinary
records requests, including prisoner requests for individual
records categorically exempt from Privacy Act disclosure, are
processed though FOIA. See 28 C.F.R. §§ 513.32, 513.60,
513.50. The Committee has raised no claim under the Privacy
Act that the Bureau’s practices violate that statute, nor any

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claim that its decision to permit expedited access to medical
records but no other records was arbitrary and capricious. And,
while the Committee seeks to use FOIA to force the Bureau to
treat prisoner disciplinary and educational records similarly to
its treatment of prisoner medical records under the Bureau’s
Privacy Act waiver, the Committee does not identify any
provision of FOIA that it contends requires the Bureau to make
an analogous waiver under FOIA, let alone to respond to the
Committee’s FOIA policy or practice claim by expanding the
scope of its Privacy Act waiver.
In sum, nothing in FOIA forbids the Bureau from requiring
records requests to be submitted and processed under FOIA,
and the fact that the Bureau does so cannot be the basis for a
claim that the Bureau has a policy or practice of violating
FOIA. As the Committee has offered no other reason for us to
conclude that the Bureau’s practice is unlawful, we affirm the
district court’s grant of summary judgment.
That said, our holding should not be understood as an
unconditional or uncritical endorsement of the Bureau’s
current FOIA-processing practices. FOIA is designed to “force
increased expedition in the handling of FOIA requests” to
achieve “greater transparency in support of open government.”
Judicial Watch, 895 F.3d at 781, 783 (formatting altered). To
that end, Congress placed the burden on agencies to be
proactive and enterprising to achieve efficiencies, including by
“improv[ing] their records management systems to enable
prompt responses without routine judicial involvement.” Id. at
783; see id. at 784 (underscoring the courts’ role in ensuring
“that an agency has organized its records management systems
to enable prompt determinations to produce records or to
invoke an exemption, and to monitor when necessary an
agency’s progress in adjusting its records management systems
to enable it to comply with FOIA”). FOIA requires each

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agency to consider “adjustments to . . . practices, policies,
personnel, and funding as may be necessary to improve its
implementation” of the statute, including “the timely
processing of requests for information.” 5 U.S.C.
§ 552(j)(2)(C), (3)(D).
The information before us suggests persistent failures to
make exemption determinations, and repeated and prolonged
delays, some lasting years, in the production under FOIA of the
commonly requested types of records WLC seeks here. The
fact that the alleged delays prevent prisoners’ (and their
attorneys’) access to their own records—a discrete type of
frequently requested record of obvious importance to efforts to
vindicate constitutional rights—may not be relevant to WLC’s
FOIA claim but is nonetheless troubling as a practical matter.
As the district court observed, the Bureau has made appreciable
improvements in its FOIA processing. And the Bureau’s
innovation in releasing medical records to prisoners and their
counsel under the Privacy Act, thereby loosening the clogged
FOIA pipeline, is to be commended. Given its persistent
backlogs and long wait times, the Bureau would do well to keep
looking for new ways to up its game.
III.
The Committee also argues that the district court abused
its discretion by applying the wrong legal standard in denying
WLC’s discovery request. Our normal practice in non-FOIA
cases is to permit properly requested discovery before ruling
on summary judgment. See Fed. R. Civ. P. 56(d); see, e.g.,
Convertino v. U.S. Dep’t of Just., 684 F.3d 93, 99 (D.C. Cir.
2012). And, when the Bureau moved for summary judgment,
WLC made a Rule 56(d) request for discovery, arguing that it
could not otherwise “present facts essential to justify its
opposition.” See Hart Decl. ¶¶ 19-21 (J.A. 135-36); Fed. R.

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Civ. P. 56(d). The district court denied discovery under our
circuit’s “FOIA-specific standard,” under which “discovery in
individual FOIA cases is rare” and was not shown to be
warranted here. Wash. Lawyers’ Comm., 2024 WL 1050498,
at *12 (internal quotation marks omitted).
The Committee does not challenge the distinct practice of
limiting discovery in FOIA litigation but argues that it should
apply only to cases concerning specific record requests, and not
policy or practice claims. We have yet to address whether the
standard for discovery differs in a FOIA policy or practice case.
Judicial Watch held only that the district court on remand
would “determine, in the first instance, the appropriateness of
discovery,” 895 F.3d at 784, and could “focus and streamline
inquiry into whether the agency’s production times are
justified,” including through “reliance on agency affidavits at
the summary judgment stage,” id. at 790 (Pillard, J.,
concurring) (citing McGehee v. CIA, 697 F.2d 1095, 1112-13
(D.C. Cir. 1983)).
The contours of WLC’s claim matter here. The
Committee argues that the Bureau violates FOIA by adhering
to a policy or practice of delay that it effectively attributes to
the Bureau’s failure to make a categorical, ex ante waiver of
FOIA exemptions for prisoners’ disciplinary or educational
records. The Committee supports that claim by analogy to the
Bureau’s treatment of medical records in its Privacy Act
disclosure system. In essence, even though the Bureau has no
obligation to disclose prisoners’ records to them under the
Privacy Act, it has chosen to do so for medical records, and
WLC says that shows the Bureau could and should treat
disciplinary and educational records requested under FOIA the
same way. But, as noted above, FOIA disclosures are to the
public at large.

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Because the Committee’s claim fails as a matter of law, it
does not support discovery under any standard. We therefore
need not decide whether the FOIA-specific discovery standard
applies to policy or practice claims in the same way it does to
other FOIA cases. We also need not address whether the
Committee waived its argument for a distinct standard by
apparently endorsing the typical FOIA discovery standard in
the district court, see Pl.’s Mem. in Opp’n to Mot. to Dismiss
21-22 (J.A. 115-16), nor whether the Bureau forfeited the
forfeiture argument by failing to raise it before our court.
WLC has sought discovery into the Bureau’s internal
communications and records related to how it prioritizes and
processes FOIA requests, trains staff, allocates resources, and
otherwise complies with the statute. Hart Decl. ¶ 19 (J.A. 135-
36); see Oral Argument at 8:10. While such information might
be relevant to other claims that the Committee might bring in a
different lawsuit, none of it could validate WLC’s erroneous
theory that FOIA requires that the Bureau justify the limits of
its waivers under the Privacy Act.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

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