United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta, United States District Judge.
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
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
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.
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.
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.
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.
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.
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
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.
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. §
552(a)(6)(C)(i). In the event an agency fails to meet the
statute's time limits, the statute permits ...