United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued March 9, 2021 Decided June 1, 2021 No. 20-5182 CAUSE OF ACTION INSTITUTE, APPELLANT v. UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-02373) Ryan P. Mulvey argued the cause for appellant. With him on the briefs was R. James Valvo, III. Casen B. Ross, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, and Daniel Tenny, Attorney. Before: RAO and WALKER, Circuit Judges, and EDWARDS, Senior Circuit Judge. 2 Opinion for the Court filed by Senior Circuit Judge EDWARDS. Concurring opinion filed by Circuit Judge RAO. EDWARDS, Senior Circuit Judge: In December 2013, Appellant Cause of Action Institute submitted a Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, request to the Office of Information Policy (“OIP”) in the Department of Justice (“DOJ”) seeking access to specified DOJ records. OIP issued a “final response” to Appellant on January 30, 2018. Joint Appendix (“J.A.”) 23. In that response, OIP indicated that it had “located 143 pages that contain[ed] records that [were] responsive to [Appellant’s] request.” Id. Appellant filed an administrative appeal claiming that DOJ had improperly segmented responsive records into what it claimed were multiple smaller “records” and, in doing so, improperly withheld information that was not otherwise exempt under FOIA. OIP denied the appeal. At issue are three cover letters and four Questions for the Record (“QFR”) documents that were identified by OIP as responsive to Appellant’s FOIA request. The QFR documents are described in detail in part I.B., infra. Each QFR document contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ. Each document is self-contained, with a single, overarching heading identifying the contents of the document. The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages. Although it is undisputed that OIP determined that the four QFR documents contained material responsive to Appellant’s FOIA request, DOJ nonetheless removed pages and redacted 3 material from the documents. DOJ does not claim that the pages that were removed or the material that was redacted are exempt from disclosure under FOIA. Rather, DOJ simply claims that these pages and material need not be disclosed to Appellant because they constitute “Non-Responsive Record[s].” See, e.g., J.A. 36. In October 2018, Appellant filed a suit in District Court, challenging DOJ’s refusal to disclose the pages that had been deleted from the QFR documents and the questions and answers that had been redacted and labeled “Non-Responsive.” Appellant also challenged DOJ’s alleged policy or practice of segmenting one record into multiple records to avoid disclosure. The District Court largely upheld DOJ’s actions and dismissed Appellant’s policy or practice claim for lack of standing. See Cause of Action Inst. v. DOJ, 453 F. Supp. 3d 368, 378, 380 (D.D.C. …
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