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Energy Future Coalition v. Office of Management and Budget

United States District Court, District of Columbia

July 25, 2016




         Plaintiffs 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.

         Presently before the Court are Plaintiffs’ [16] Motion for Scheduling Order and Defendants’ [23] Motion for an Open America Stay. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court shall GRANT Defendants’ [23] Motion for an Open America stay and shall DENY the relief requested by Plaintiffs in their [16] Motion for Scheduling Order. Specifically, the Court shall stay the proceedings in this matter for six months, until January 25, 2017.

         I. BACKGROUND

         According 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. [1], 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.

         On 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.

         On or about September 30, 2015, OMB’s paralegal left a voicemail message for EFC’s counsel regarding Plaintiffs’ request on or about September 30, 2015.[2] 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. [1]; 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. [1], at 3; Def.’s Answer, ECF No. [10], at ¶ 9.

         Upon 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. [11]. 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. [12], 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. [14]. 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.

         In 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. [16], at 4.

         OMB 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. [23] 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.

         At 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. [26], 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. [26], 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.

         OMB 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).

         Under 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 requester. Id.

         OMB has placed Plaintiffs’ FOIA request in the “complex track.” Defs.’ Supplemental Notice, ECF No. [29]. 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.

         Plaintiffs’ 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 ...

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