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Democracy Forward Foundation v. Department of Justice

United States District Court, District of Columbia

December 7, 2018

DEMOCRACY FORWARD FOUNDATION, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta, United States District Judge.

         I. INTRODUCTION

         This case involves a rare ask for a stay by a federal agency in responding to a Freedom of Information Act (“FOIA”) request under the D.C. Circuit's decision in Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). Defendant Department of Justice maintains that a stay is warranted due to an unexpected, dramatic increase in FOIA requests received by the agency over the last two years. Defendant submits that, acting within the agency's resource constraints, it has exercised due diligence in responding to the increased number of FOIA requests, but nevertheless requires a stay under the extraordinary circumstances it faces. Plaintiff Democracy Forward Foundation and a group of amici oppose the stay.

         For the reasons that follow, the court grants Defendant's Motion for an Open America stay. These proceedings shall be stayed until January 13, 2019, at which time Defendant must be prepared to produce records responsive to Plaintiff's FOIA request.

         II. BACKGROUND

         Plaintiff Democracy Forward Foundation is a “not-for-profit media organization” that “works to promote transparency and accountability in government, in part by educating the public on government actions and policies.” Compl., ECF No. 1, ¶ 7. Plaintiff indicates that it fulfills its mission, in part, by posting “information it receives from FOIA requests on the internet, ” as well as writing about this information in a variety of media outlets. Id.

         This action concerns a FOIA request made by Plaintiff on January 30, 2018, to Defendant Department of Justice, Office of Information Policy (“OIP”). Plaintiff's request sought “all records that have been provided to the Office of Legal Policy by individuals (or on the behalf of those individuals) who have been nominated to judgeships on the federal courts of appeals.” Id. ¶ 9. Plaintiff identified the relevant time period for the request as “January 20, 2017, until the day the search is run.” Id. ¶ 10.

         Defendant asserts that when it received Plaintiff's request, OIP “assigned the request to the ‘complex' processing track” and “sent a search notification to the [Office of Legal Policy].” Def.'s Mot. for Stay of Proceedings, ECF No. 12 [hereinafter Def.'s Mot.], Decl. of Vanessa R. Brinkmann, ECF No. 12-1 [hereinafter Brinkmann Decl.], ¶ 41. Additionally, OIP sent a “search notification” to the Office of Legal Policy, which “promptly and thoroughly canvassed its documents and identified pertinent custodians and search methods, which it then discussed in detail with OIP, resulting in a comprehensive search plan” to procure the information sought by Plaintiff. Id.

         On February 28, 2018, OIP sent a letter via e-mail to Plaintiff, acknowledging receipt of the FOIA request and “informing Plaintiff that because the request required ‘a search in and/or consultation with another Office,' ‘unusual circumstances' existed that warranted an extension of time to respond beyond the ten additional days provided by statute.” Def.'s Mot. at 2; see also Brinkmann Decl., Ex. B. In the month that followed, Defendant provided no more information to Plaintiff regarding the status of its FOIA request. Compl. ¶¶ 18-19.

         Plaintiff filed this FOIA action on April 2, 2018. See generally Compl. Thereafter, the parties conferred and agreed to narrow Plaintiff's FOIA request to “all records that have been provided to the Office of Legal Policy by individuals (or on the behalf of those individuals) who have been nominated to judgeships on [the] U.S. Court of Appeals for the Fifth Circuit and the U.S. Court of Appeals for the D.C. Circuit, ” presumably also from January 20, 2017, onward. Brinkmann Decl. ¶ 43. Plaintiff asserts that this tailored request now covers only six individuals. Plaintiff's Opp'n to Def.'s Mot., ECF No. 15 [hereinafter Pl.'s Opp'n], at 2.

         Defendant filed its Motion for Stay of Proceedings on June 22, 2018. See Def.'s Mot. As grounds for its request, Defendant claimed that it had seen an unexpected rise in both the number and complexity of FOIA requests, as well as FOIA-related litigation, beginning in Fiscal Year 2017, and that despite the agency's diligence in responding to these requests, it lacked the adequate resources to address many FOIA requests, including Plaintiff's, within the statutory limits. See generally id. Defendant supported its motion with the Declaration of Vanessa R. Brinkmann, Senior Counsel in OIP. See generally Brinkmann Decl. Plaintiff opposed the stay. See Pl.'s Opp'n.

         On July 20, 2018, several organizations sought leave to file a joint amicus curiae memorandum in this matter. See Mot. for Leave to File Amicus Curiae Memorandum, ECF No. 14. These organizations are American Oversight, Citizens for Responsibility and Ethics in Washington, National Security Counselors, Open the Government, Project in Government Oversight, Public Citizen, Inc., and Sunlight Foundation. The court granted leave to file the memorandum. See Minute Order, July 20, 2018.

         III. LEGAL STANDARD

         FOIA provides that, upon receipt of a request, the responding agency must “determine within 20 days . . . whether to comply with such request and shall immediately notify [the requestor].” 5 U.S.C. § 552(a)(6)(A)(i). The statute allows the agency to grant itself an additional 10 days to respond in “unusual circumstances, ” so long as the agency notifies the requestor of the unusual circumstances and specifies “the date on which a determination is expected to be dispatched.” Id. § 552(a)(6)(B)(i). Upon receiving notice of a unilateral extension, the requestor has the right to “limit the scope of the request so that it may be processed within” the applicable time limit. Id. § 552(a)(6)(B)(ii). “Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request.” Id. ยง 552(a)(6)(C)(i). In the event an agency fails to meet the statute's time limits, the statute permits ...


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