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Census Records Must Be Shared Before Reappointment, Judge Rules

Nov. 3, 2020, 2:24 AM

Several federal agencies must expedite Freedom of Information Act requests for documents regarding the 2020 census because the records will become stale after the congressional reapportionment process ends, a federal judge said.

The Commerce Department is required to conduct the census every 10 years, partly to determine congressional district maps based on population changes. The Brennan Center for Justice sought records from the agencies in early July after concerns were raised about the problems of fact gathering during a pandemic and whether the census form should include questions about citizenship.

The Brennan Center, at the New York University School of Law, sought a preliminary injunction in September to force the agencies to expedite the processing of its FOIA requests. It wanted the documents released by Nov. 2. Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia partially granted the injunction Oct. 30, but he gave federal authorities until Jan. 11 to produce the materials.

The Brennan Center hadn’t shown it would suffer irreparable harm if its requests weren’t processed by Nov. 2, but such harm will occur if it doesn’t receive responses in time to use them by Jan. 25, Kelly said. That’s when the reapportionment of congressional districts is concluded.

Eight agencies—including the Department of Commerce and its Census Bureau, the Civil Rights Division of the Justice Department, and the Office of Management and Budget—must comply with the injunction, Kelly said.

The agencies must process most of the center’s requests by Jan. 11 and produce an index of requested documents that it doesn’t include, Kelly said.

Requests for three categories of records must be expedited. They relate to: records on how citizenship data collected pursuant to an executive order could be used or considered in census-related activities, the process by which the Commerce secretary will report the state population totals to President Donald Trump, and the process by which the president will report those totals to Congress.

But the center failed to show it would suffer irreparable harm without a fourth group of requested documents. Those materials cover any mention of or involvement with a list of individuals and organizations the Brennan Center believes may have been involved in the matters covered in the other three categories of documents, Kelly said. Those three categories will capture most of the documents responsive to the fourth group, and the center hasn’t shown that a document responsive to the fourth group that isn’t responsive to the first three would materially contribute to the public debate and discussion, the judge wrote.

Wilmer Cutler Pickering Hale & Dorr LLP represents the center. The Department of Justice represents the agencies.

The case is Brennan Ctr. for Justice at NYU Sch. of Law v. Dep’t of Commerce, 2020 BL 422289, D.D.C., No. 20-2674, 10/30/20.

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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