United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
case, Plaintiff Middle East Forum seeks information from
Defendant United States Department of Homeland Security
(“Defendant” or “DHS”) pursuant to
the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. On March 5, 2018, resolving a dispute between the
parties on the rate of the government's production of
documents in response to Plaintiff's FOIA requests, the
undersigned ordered the government to “process records
responsive to Plaintiff's requests at a rate of at least
500 per month, ” make its first production on March 30,
2018, and on a rolling basis every 30 days until production
is complete, as well as file periodic status updates.
Middle East Forum v. U.S. Dep't of Homeland
Security, 297 F.Supp.3d 183, 187 (D.D.C. 2018).
April 30, 2018, Plaintiff claimed that the March 30, 2018
production was defective because “all the records
released [on that date] were previously released in November
2017, and such re-release of material was not in
keeping” with the order of March 5, 2018. [Dkt. 32,
¶ 3]. The parties have not resolved that dispute, and
Plaintiff therefore sought the intervention of the Court
“to compel production of the ordered March 2018
release.” [Dkt. 33, ¶ 3; Dkt. 34 at 4]. Defendant
explains that the Court need not consider Plaintiff's
application because, as noted in a status report filed prior
to the order of March 5, 2018, “the parties had agreed
to prioritize a subset of records consisting of 3, 368
potentially responsive pages, ” and the production of
those documents will be completed this month. [Dkt. 35 at 1].
point is well-taken. Considerations of judicial efficiency
counsel against the Court wading into a dispute that will
soon be resolved without its input. But Defendant's
argument also indicates another reason to deny
Plaintiff's requested relief. Prior to ruling on the
parties' original dispute as to the rate of the
government's production of documents to Plaintiff. The
Court ordered the parties to “meet and confer to
attempt to reduce the range of potentially responsive
documents” from the 27, 000 that the government had
previously identified. Minute Order (Jan. 25, 2018). In
response, Plaintiff “proposed and agreed to further
narrow its request by reducing the number of custodians from
five to three individuals, ” and also “requested
that [Defendant] further prioritize review from those three
individuals to records containing additional search terms
that [Plaintiff] provided.” [Dkt. 25, ¶ 2].
Implementation of those requests resulted in identification
of 3, 368 potentially responsive pages. Id., ¶
3. It was in the context of that reduction in scope to
“approximately 3, 400” responsive documents that
the order of March 5, 2018, was decided. Middle East
Forum, 297 F.Supp.3d at 194.
is no suggestion that the pages the government produced in
its March 30, 2018 production were not from that collection
of documents, culled in compliance with the parties'
agreement. And the government has adequately countered
Plaintiff's accusation that Defendant “merely redid
work already done and directed [P]laintiff to the original
results” [Dkt. 34 at 3], asserting that in response to
the agreement on search terms and custodians, Defendant
“ran the revised search on all the potentially
responsive records that had originally been located.”
[Dkt. 35 at 1-2]. Rather, for the March production, it
reviewed a 650-page document that comprised some material
that had previously been reviewed and some that had not.
Id. The document had to be evaluated to see what
could be released, as well as to determine whether any of its
subparts had been released previously. Id. at 2. The
government explains that it took “a significant amount
of time and effort to figure out that some of the records had
already been released or withheld and to ensure that its
March production was consistent with prior releases.”
Id. at 2.
Defendant has complied with the order of March 5, 2018, the
undersigned will not grant Plaintiffs request that the Court
order Defendant to “properly process the 500 records it
should have for March 2018 and release such records subject
to the appropriate exemptions to FOIA.” [Dkt. 34 at 4].
that the parties shall submit their July status report as
directed in the order of March 5, 2018; it is further
that, by August 10, 2018, the parties shall meet and confer
and determine whether additional productions or searches are
necessary; it is further
that the parties shall submit a status report on or before
August 10, 2018, to report on the outcome of those
discussions; it is further
that a status conference shall be held on August 14, 2018, at
11:00 a.m., in Courtroom 6 at the ...