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Daily Caller News Foundation v. Federal Bureau of Investigation

United States District Court, District of Columbia

June 7, 2019

DAILY CALLER NEWS FOUNDATION, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Presently before the Court are Defendant's [14] 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 [15] 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 [19] Reply to Plaintiff's Opposition (“Def.'s Reply”). Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, [1] the Court shall DENY Defendant's [14] Motion for an Open America Stay.

         I. BACKGROUND

         According 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. [1], 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).

         By 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.

         By 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. Id.

         Upon 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.

         II. LEGAL STANDARD

         The 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)).

         Congress subsequently amended the Freedom of Information Act to include two additional factors for the Court to consider in analyzing whether ...


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