United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Daily Caller News Foundation (“DCNF”) filed suit
on August 6, 2018, against Defendant, the Federal Bureau of
Investigation (“FBI”), pursuant to the Freedom of
Information Act (‘FOIA”), 5 US.C. § 552,
seeking access to records withheld by Defendant FBI.
“relating to FBI Special Government Employee
(“SGE”) Daniel Richman, including FBI
communications with and about him, as well as his
relationship with former FBI Director James Comey.”
Compl., ECF No. 1, at ¶¶ 1-2. Plaintiff alleges
that the FBI has failed to comply with the statutory
deadlines to respond to Plaintiff's FOIA request.
before the Court are Defendant's  Motion for an
Open America Stay and Memorandum in Support thereof
(“Def.'s Mot.”), Defendant's [14-1]
Declaration of David M. Hardy (“Hardy Decl.”);
Plaintiff's  Opposition to Defendant's Motion
(“Pl.'s Opp'n”), Plaintiff's [15-1]
Declaration of Eric R. Bolinder (“Bolinder
Decl.”) and the exhibits thereto; and Defendant's
 Reply to Plaintiff's Opposition (“Def.'s
Reply”). Upon consideration of the pleadings, the
relevant legal authorities, and the record as a whole,
Court shall DENY Defendant's  Motion for an Open
to the Complaint, DCNF is “a 501(c)(3) non-profit
organization that provides original investigative reporting
from a team of professional reporters who operate for the
public benefit” and provide content that is
“available without charge to any eligible news
publisher that can provide a large audience.” Compl.,
ECF No. , at ¶ 6. On April 25, 2018, DCNF submitted
an online FOIA request to the FBI seeking access to
“all records, documents, and communications pertaining
to Daniel Richman, a Special Government Employee hired by
former Director James Comey.” Compl, ECF No. 1, at
¶ 8; Ex. 1, ECF No. 1-1 (FOIA Request).
letter dated May 7, 2018, the FBI acknowledged receipt of
DCNF's FOIA request, but it did not provide an estimated
date of completion or otherwise indicate that the request was
being processed. Compl., ECF No. 1, at ¶ 14. Plaintiff
filed suit on August 6, 2018. The Complaint alleges, and the
FBI does not dispute, that the FBI failed to make any
determination regarding DCNF's FOIA request within the
twenty-day deadline set by the FOIA. See Compl., ECF
No. 1, at 3-4; Def.'s Answer, ECF No. 11, at 4.
letter dated September 17, 2018, the FBI advised Plaintiff
that its request to expedite processing had been denied and
further, that the FBI had located approximately 11, 000 pages
of potentially responsive records. Hardy Decl., ECF No. 14-1,
at ¶10. In an effort to accelerate the processing of the
request by moving it into a small processing queue, the FBI
offered DCNF an opportunity to reduce the scope of its
request. Id. On October 24, 2018, DCNF narrowed the
scope of its request as follows: “All final work
product (i.e., memoranda) sent by Daniel Richman to
Director Comey or anyone else at the FBI, and all draft
versions of any of this work product can be excluded from
processing. All other responsive records, such as
emails/communications, would still be included as
responsive.” Hardy Decl., ECF No. 14-1, at ¶ 4.
With respect to the narrowed request, the FBI has identified
approximately 7, 000 pages of potentially responsive records.
the filing of the FBI's Answer, the Court ordered the
parties to confer and propose a schedule for proceeding in
this matter. See Order (Oct. 15, 2018), ECF No. 12.
Pursuant to that Order, the parties filed a Joint Status
Report, whereby the FBI proposed that “due to workload
and litigation constraints, it intend[ed] to file a motion
for an Open America stay, ” and the parties
set out two variations of a briefing schedule. Jt. Status
Rpt., ECF No. 13, at 2-3. The Court set a briefing schedule,
and Defendant filed its Motion for an Open America
Stay, requesting a stay of proceedings until December 2020.
Defendant's Motion is ripe for resolution by this Court.
Freedom of Information Act, 5 U.S.C. § 552(a)(6)(A),
provides in relevant part that upon receipt of a FOIA
request, the responding agency must:
(i) determine within 20 days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such
request whether to comply with such request and shall
immediately notify the person making such request of (1) such
determination and the reasons therefor, . . . [and] (lll) in
the case of an adverse determination (aa) the right of such
person to appeal to the head of the agency.
5 U.S.C. § 552(a)(6)(A)(i). Section 552(a)(6)(C)(i)
provides that if a requesting party files suit following the
responding agency's failure to comply with the statutory
deadlines, “[i]f the Government can show exceptional
circumstances exist and that the agency is exercising due
diligence in responding to the request, the court may retain
jurisdiction and allow the agency additional time to complete
its review of the records.” In Open America v.
Watergate Special Prosecution Force, 547 F.2d
605 (D.C. Cir. 1976), the D.C. Circuit found that an agency
is entitled to additional time under this “exceptional
circumstances” provision when the agency:
is deluged with a volume of requests for information vastly
in excess of that anticipated by Congress, when the existing
resources are inadequate to deal with the volume of such
requests within the time limits of subsection (6)(A), and
when the agency can show that it “is exercising due
diligence” in processing the requests.
Id. at 616 (quoting 5 U.S.C. § 552(a)(6)(C)).
subsequently amended the Freedom of Information Act to
include two additional factors for the Court to consider in
analyzing whether ...