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Electronic Frontier Foundation v. Dep't of Justice

June 30, 2008

ELECTRONIC FRONTIER FOUNDATION, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

Memorandum Opinion

The plaintiff, Electronic Frontier Foundation ("EFF"), brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C § 552 (2006), against the United States Department of Justice ("DOJ"), seeking the release of agency records from the Federal Bureau of Investigation ("FBI") concerning the FBI's Investigative Data Warehouse ("Data Warehouse").*fn1

Complaint ("Compl.") ¶ 1. Currently before the Court is the defendant's motion for an Open America stay of the proceedings pursuant to 5 U.S.C. § 552(a)(6)(C) and Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). Specifically, the defendant requests that the Court allow the FBI "approximately 71 months, or until February of 2013, to process [the] plaintiff's FOIA requests and complete the release of responsive records." Memorandum of Points and Authorities in Support of Motion for Open America Stay ("Def.'s Mem.") at 2. As grounds for its request, the defendant maintains that "[t]here is no way of accurately predicting how many of the [] documents are likely to be responsive [to the plaintiff's request]." Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Preliminary Injunction and Supplement to Motion for Open America Stay ("Def.'s Supp. Mem."), Exhibit ("Ex.") 1 (Second Declaration of David M. Hardy) ("Hardy Decl. II") at 4. However, the defendant anticipates that "before processing begins, it will be able to significantly reduce the total time required to complete processing by eliminating a significant volume of documents that are not responsive to the plaintiff's requests and will not need to be processed."*fn2

Def.'s Mem. at 2.

On April 23, 2007, the plaintiff filed its opposition to the defendant's motion for the Open America Stay, arguing that the request for a stay should be denied because, inter alia, the information requested is of "widespread and exceptional media interest" resulting from "the FBI's [purported] abuse of NSL [National Security Letter] authority" and the revelation that "personal information obtained through the issuance of NSLs has been incorporated into the [Data Warehouse]." Plaintiff's Opposition to Defendant's Motion for Open America Stay ("Pl.'s Opp'n") at 5.*fn3 The plaintiff reasons that these set of circumstances raise "possible questions about the government's integrity which effect public confidence," thereby giving greater urgency to its FOIA request. Id. at 5 (quoting Pl.'s Opp'n, Ex. 2 (Letter from Marcia Hofman, EFF Staff Attorney, to Tasia Scolinos, Director of Public Affairs, Office of Public Affairs ("OPA"), Mar. 12, 2007). Further, the plaintiff argues that the "defendant has failed to show that it should be granted the wildly excessive stay that it seeks" because the "defendant has failed to cite the kind of 'exceptional circumstances' sufficient to satisfy the well-established Open America standard as construed in this Circuit." Id. at 11,13.

For the following reasons, the Court will grant the defendant's request for an Open America stay of these proceedings until August 1, 2008.

I. Background

A. Procedural History

On August 25 and September 1, 2006, the plaintiff requested, pursuant to FOIA, specific agency records from the FBI concerning the Data Warehouse.*fn4 Compl. ¶ 4. The search effort to retrieve documents potentially responsive to the plaintiff's FOIA requests disclosed approximately 72,000 pages of documents. Def.'s Mem. at 11. The plaintiff's requests were being processed on a "first-in first-out basis" in conjunction with other FOIA requests of similar size.*fn5 Id. at 11-12. After the FBI failed to timely respond to the plaintiff's FOIA requests, the plaintiff initiated this action on October 17, 2006.*fn6 Pl.'s Opp'n at 4. The parties then submitted an agreed upon briefing schedule for the filing of dispositive motions and responses thereto, along with a status report. Feb. 23, 2007 Joint Status Report and Proposed Schedule. In accordance with the parties' proposed briefing schedule, the Court issued a Scheduling Order on March 27, 2007.

On April 2, 2007, in light of the large number of pages located as potentially responsive to the plaintiff's FOIA requests and a recent decrease in the number of personnel available to process the FBI's FOIA requests, the defendant filed the motion which is the subject of this opinion, requesting a stay of these proceedings pursuant to 5 U.S.C. § 552(a)(6)(C) (2006) and Open America, 547 F.2d 605. Def.'s Mem. at 2-3. Two days after the defendant filed its motion for the stay, the plaintiff submitted a formal request to the DOJ's OPA for expedited processing of its pending FOIA request pursuant to 28 C.F.R. § 16.5(d)(1)(iv).*fn7 Memorandum in Support of Plaintiff's Motion for a Preliminary Injunction ("Pl.'s P.I. Mem.") at 2. Though initially resistant, the OPA ultimately granted the plaintiff's request for expedited processing because it concluded that the Data Warehouse "is a matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity which affects public confidence." Id. (quoting Pl.'s P.I. Mem., Ex. A (Letter from David M. Hardy, Chief, FBI's Records/Information Dissemination Section, Records Management Division to David L. Sobel, EFF's Senior Counsel, Aug. 3, 2007 (quoting 28 C.F.R. § 16.5(d)(1)(iv))). As a result of this decision, "the plaintiff's FOIA requests [were] moved ahead of all earlier FOIA requests to the FBI that ha[d] not received expedited processing."*fn8 Def.'s Supp. Mem, Ex. 1 (Hardy Decl. II) at 5.

B. The FBI's Processing of the Plaintiff's FOIA Request

The FBI's Record/Information Dissemination Section ("Record Section") processes all FOIA requests submitted to the FBI. Def.'s Mem. at 3. To streamline the processing of such requests, the Record Section presently is undergoing relocation of its personnel and resources from FBI Headquarters in Washington, D.C. to a new facility in Frederick County, Virginia. Defendant's January 25, 2008 Status Report ("Def.'s First Stat. Rpt."), Ex. 1 (Third Declaration of David M. Hardy) (Hardy Decl. III") at 9. Unfortunately, many of the Record Section's senior personnel chose to retire or separate from the FBI rather than relocate to the new facility. Id. Consequently, the section suffered a loss of several experienced employees. Id. Thus, while the FBI is actively recruiting new employees, the Record Section currently is operating at about two-thirds of its funded staffing level. Id. This depleted workforce is responsible for processing all new and backlogged FOIA requests,*fn9 reviewing administratively appealed requests, and meeting court imposed deadlines secured by requesters in FOIA litigation.*fn10 Id. at 9-10.

The defendant represents that the FBI is doing everything possible to expedite the processing of the plaintiff's request, but due to the lack of experienced personnel, pending litigation, and the complex review procedure specific to the plaintiff's request, the processing cannot be completed as expeditiously as the plaintiff desires. Id. at 10-11. The defendant provides the following explanation for why processing the plaintiff's request is not a simple task:

[T]here are several time-consuming steps that are necessary to complete the processing of plaintiff's FOIA requests. The first step is to scan in the records which have been determined to be responsive into an electronic format and upload these records into the FDPS [computerized FOIA Document Processing System]. The next step is to forward these documents to DCU [Declassification Unit] for classification and/or declassification review of these documents pursuant to Executive Order 12958, as amended. This classification and/or declassification review involves a page-by-page, line-by-line review of the responsive documents to determine which, if any, information is currently classified and/or should be declassified pursuant to Executive Order 12958, as amended, and to properly mark and stamp the classified information at the appropriate classification level. After completion of the classification/declassification review, the documents are then to be returned to [the] FOIPA Disclosure Unit 3 for processing of these documents pursuant to the FOIA. This FOIA processing involves a page-by-page line-by-line review of the responsive documents to determine which, if any, FOIA exemptions may apply. This FOIA processing also includes the redaction of any exempt material and the notation of the applicable FOIA exemption(s) in the margin of each page and/or preparation of deleted page information sheets when pages are withheld in their entireties. During the course of their review, [the] FOIPA Disclosure Unit 3 may need to consult with other United States Government agencies for their determination as to the releasability of the other agency's information contained within these FBI records, or refer non-FBI documents to those originating agencies ...


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