United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Energy Future Coalition and Urban Air Initiative, Inc. filed
suit against Defendants, the Office of Management and Budget
and the Office of Information and Regulatory Affairs, seeking
declaratory and injunctive relief under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552.
After Plaintiffs submitted a request for documents relating
to toxic emissions, Plaintiffs filed suit alleging that OMB
and OIRA failed to comply with the statutory deadlines to
respond to Plaintiffs’ FOIA request.
before the Court are Plaintiffs’  Motion for
Scheduling Order and Defendants’  Motion for an
Open America Stay. Upon consideration of the
pleadings,  the relevant legal authorities, and the
record as a whole, the Court shall GRANT Defendants’
 Motion for an Open America stay and shall DENY
the relief requested by Plaintiffs in their  Motion for
Scheduling Order. Specifically, the Court shall stay the
proceedings in this matter for six months, until January
to the Complaint, Plaintiff Energy Future Coalition
(“EFC”) is “an unincorporated initiative of
the Better World Fund, which is in turn a nonprofit publicly
supported organization.” Compl., ECF No. , at ¶
3. Its purpose is “to identify and advance pragmatic
solutions to energy and environmental policy challenges that
can achieve broad-based bipartisan support in the public
interest.” Id. Plaintiff Urban Air Initiative,
Inc. (“UAI”) is a “social welfare
organization dedicated to educating the public about health
threats posed by domestic use of petroleum-based fuels, and
to taking positive steps to reduce the threat to public
health by encouraging a change in the additives used in such
fuels.” Id. at ¶ 4.
March 17, 2015, EFC and UAI (collectively, “EFC”)
submitted a FOIA request to the Office of Management and
Budget (“OMB”) and the Office of Information and
Regulatory Affairs (“OIRA”)-which is a component
of OMB-requesting agency records “that pertain to
tailpipe emissions, air toxics, aromatic hydrocarbons,
particulate matter (PM), and fine particulate matter (PM2.5),
” dated from January 20, 2009 to May 21, 2010.
Id. at ¶ 6.
about September 30, 2015, OMB’s paralegal left a
voicemail message for EFC’s counsel regarding
Plaintiffs’ request on or about September 30,
2015. Hardy Decl., ECF No. [23-1], at ¶ 13.
That same day, Plaintiffs’ counsel returned the call
and discussed the possibility of narrowing the scope of the
FOIA request. See Transcript of Phone Call (Sept.
30, 2015), ECF No. [24-1], at 4-6. During that phone call,
OMB’s paralegal indicated that she would “touch
base with my boss” regarding the possibility of
narrowing the scope of the FOIA request, and would call
Plaintiffs’ counsel at a later time to further discuss
the matter. Id. at 6. Having received no further
correspondence from OMB regarding its request, Plaintiffs
filed suit on November 11, 2015. See Compl., ECF No.
; Gustafson Decl., ECF No. [24-1] at ¶ 8. The
Complaint alleges, and OMB does not dispute, that OMB failed
to make a determination with regard to EFC’s FOIA
request within the twenty-day deadline set by the FOIA.
See Compl., ECF No. , at 3; Def.’s Answer,
ECF No. , at ¶ 9.
the filing of OMB’s Answer, the Court ordered the
parties to confer and propose a schedule for proceeding in
this matter. See Order (Jan. 20, 2016), ECF No.
. Pursuant to that Order, the parties filed a Joint
Status Report, proposing that OMB file a status report
containing its proposed document production schedule and
addressing whether a motion for an Open America Stay
was necessary. See Jt. Status Report, ECF No. ,
at 3. OMB submitted a proposed document production schedule,
under which OMB would review 500 documents per month out of
an estimated 4, 900 emails that had been identified as
potentially responsive to Plaintiffs’ request, not
including attachments. Defs.’ Status Report (Mar. 9,
2016), ECF No. . In addition, OMB indicated that it would
exclude attachments to emails from the search for responsive
documents, without prejudice to Plaintiffs’ right to
receive the responsive attachments, subject to applicable
FOIA exemptions, upon request following Plaintiffs’
review of the email(s) to which they were attached. See
Id. OMB also indicated that in the event that Plaintiffs
requested that OMB provide a Vaughn Index for any
documents produced prior to OMB completing production of all
responsive documents, OMB would provide Plaintiffs with a
Vaughn Index within a reasonable period of time, not
more than 60 days, following such request. See id.
response, Plaintiffs requested a more accelerated production
schedule, under which OMB would (1) review 1, 000 email
records per month, (2) identify all email attachments
withheld from the produced emails, (3) produce any
attachments within 60 days of Plaintiffs’ request, and
(4) produce a Vaughn index within 60 days of
Plaintiffs’ request, identifying any withheld or
redacted documents and explaining the basis for the
withholding or redaction. See Pls.’ Motion for
Scheduling Order, ECF No. , at 4.
subsequently filed its motion to grant OMB an Open
America Stay and to sustain OMB’s proposed
production schedule. See Def.’s Resp., ECF No.
 at 1-2. In support of its motion, OMB submitted a
declaration from Dionne Hardy, the FOIA Officer at OMB.
See generally Hardy Decl., ECF No. [23-1]. The Hardy
Declaration provides additional details as to the current
state of the backlog of FOIA requests before OMB. Over the
past several years, OMB has faced a significant increase in
the number of FOIA requests, resulting in a growing backlog
in the processing of such requests. Id. at ¶ 6.
Apart from EFC’s request, OMB is in litigation in two
other FOIA cases and is in the process of reviewing
approximately 68 additional FOIA requests. Id. at
¶ 7. To address this backlog, OMB hired a dedicated FOIA
paralegal specialist in or about April 2015. Id. at
¶ 6. OMB also obtained the services of a contractor on
or about August 24, 2015. Id. While the addition of
this contractor helped reduce backlog, it did not eliminate
it, and the contractor left OMB in or about December 2015.
Id. OMB is actively seeking to hire a new contractor
to help reduce the backlog. Id.
present, OMB employs two full-time employees devoted to
processing FOIA requests and one employee who, among other
duties, processes FOIA requests. See Id. at ¶
6; see also Defs.’ Notice, ECF No. , at 1.
OMB’s FOIA staff currently reviews approximately 575
documents per day to keep up with current requests as well as
ongoing litigation. Id. at ¶ 6-7; According to
OMB, it “primarily focuses its limited resources on . .
. older, complex requests, which were received in fiscal
years 2013, 2014, and 2015.” Defs.’ Notice of
Filing, ECF No. , at 1. As of the date of this Memorandum
Opinion, there are a total of 27 FOIA requests being
processed by OMB that predate Plaintiff’s request,
which was received on March 18, 2015. Id. This
number includes eight pending requests from 2015, fourteen
pending requests from 2014 (two of which are in litigation),
and five pending requests from 2013. Id.
also notes that it has recently adopted new procedures to
address the significant increase in the number and complexity
of FOIA requests that the agency receives. Id.
Previously, it generally prioritized the review and
production of documents for requests in the order in which
they are received. Id. However, given the rise in
volume and complexity of FOIA requests and appeals received
by the agency, OMB is “no longer able to process purely
on such a ‘first-in, first-out’ basis.”
Id. Instead, OMB has adopted a
“multi-track” processing system, under which OMB
now places requests in one of three queues: (1) expedited,
(2) simple, and (3) complex. Id. The “simple
track” is for requests that do not involve voluminous
records of lengthy consultations with other entities.
Id. The “complex track” is for requests
that OMB determines involve voluminous records, requests for
which lengthy or numerous consultations are required, or
requests that may involve sensitive records. Id. The
“expedited track” is for requests that OMB grants
expedited tracking in accordance with the FOIA statute and
applicable OMB regulations. Id.; see also 5
U.S.C. § 522(a)(6)(E); 5 C.F.R. § 1303.10(d).
this “multi-track” processing system,
“reviews and produces documents to the requester on a
rolling basis, ” and it “reviews of these older,
complex requests are being done concurrently.”
Id. at 1-2. Additionally, in order to avoid a large
backlog of requests while OMB works through the older complex
requests, OMB devotes a small percentage of its resources to
process “simple” FOIA requests it has received in
the current fiscal year. Id. at 2. According to OMB,
responses to these “simple” requests do not
involve the review of a large volume of records or
consultation with other offices. Id. OMB asserts
that this system allows it to respond quickly to the
placed Plaintiffs’ FOIA request in the “complex
track.” Defs.’ Supplemental Notice, ECF No. .
OMB maintains that due to limited resources and its ongoing
responses to FOIA requests that proceeded Plaintiffs’
request, OMB can commit to reviewing only 500 documents each
month in response to Plaintiffs’ request. Hardy Decl.,
ECF No. [23-1], at 5. According to OMB, it cannot commit to
reviewing more than 500 documents per month without impacting
its ability to response to the FOIA requests that preceded
Plaintiffs’ request. Id.
do not dispute the validity of OMB’s decision to place
Plaintiffs’ FOIA request in the “complex track,
” nor do Plaintiffs argue that their request qualifies
for “expedited” treatment under applicable
authorities. Instead, Plaintiffs contend that the agency has
not exercised due diligence in responding to
Plaintiffs’ request, and that ...