                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
MIDDLE EAST FORUM,                  )
                                     )  Case No. 17-cv-0767 (RCL/GMH)
                  Plaintiff,         )
                                     )
v.                                   )
                                     )
U.S. DEPARTMENT OF HOMELAND )
SECURITY,                           )
                                     )
                  Defendant.        )
____________________________________)
 
                         MEMORANDUM OPINION AND ORDER

       In this 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. The case was filed in April 2017, and Defendant

received several extensions of time to answer (with Plaintiff’s consent) while it searched for

documents responsive to Plaintiff’s requests. [Dkts. 8, 10, 12]. Beginning in August 2017,

however, Plaintiff began to oppose such extensions, noting that the parties had been unable to

agree on a timeline for production of documents. [Dkt. 15, ¶ 3; Dkt. 17, ¶ 3]. On December 20,

2017, the Honorable Royce C. Lamberth, United States District Judge, granted, nunc pro tunc,

Defendant’s September 2017 motion seeking an extension of time to answer until October 30,

2017, granted Plaintiff’s motion for a status conference, and referred the case to the undersigned

to “set a scheduling order . . . and give the government an opportunity to cure its current default

posture.” [Dkt. 21].

       On January 25, 2018, the status conference was held. Defendant represented that its

searches had found over 27,000 potentially responsive documents, and proposed a schedule in
which it would review 500 documents per month to determine whether they were responsive or

subject to exemptions for disclosure. Minute Order dated Jan. 25, 2018. Plaintiff objected and

sought a schedule requiring Defendant to review at least 1,000 documents per month. Id. Plaintiff

further agreed to meet with Defendant to attempt to narrow the range of potentially responsive

documents. Id. The Court ordered a status update on the meet and confer process, written

submissions on the proposed review schedule, extended the time for Defendant to respond, nunc

pro tunc, to January 25, 2018, and with consent of Plaintiff, stayed Defendant’s obligation to

respond to the Complaint until “completion of its production of documents in this case, the

production schedule for which will be set . . . after review of the [ordered] filings.” Id.

              On February 16, the parties reported that, pursuant to an agreement, the universe of

potentially responsive documents had been narrowed to approximately 3,400, and Defendant

anticipated that it would begin reviewing and processing those prioritized records beginning in

March 2018. [Dkt. 25]. Defendant also submitted a declaration from James V.L.M. Holzer, the

deputy chief FOIA Officer for the DHS Privacy Office (“DHS Privacy”)—which is responsible

for processing the requests at issue here—explaining the agency’s staffing and workload.1

According to Mr. Holzer, DHS Privacy has a FOIA staff of approximately 15 individuals

(including management personnel), and was responsible for almost 3,000 FOIA requests between

2013 and 2016, approximately 1,200 of which were complex requests. [Dkt. 26-1, ¶¶ 9–11]. In

2017, DHS Privacy received approximately 1,350 FOIA requests (representing an 87% increase

from the yearly average for the previous four years and a 125% increase from 2016 alone), 791 of



                                                            
1
  In addition to processing the FOIA requests it receives itself, DHS Privacy processes FOIA requests directed to
DHS’ Office of the Secretary, Office of the Citizenship and Immigration Services Ombudsman, Office for Civil Rights
and Civil Liberties, Office of the Executive Secretary, DHS Management Directorate, Countering Weapons of Mass
Destruction Office, Office of the General Counsel, Office of Legislative Affairs, Office of Public Affairs, Office of
Operations Coordination, and Office of Policy. [Dkt. 26-1, ¶ 7].

                                                               2 
 
which were complex (representing a 164% increase from the yearly average for the previous four

years). Id., ¶ 11. There are currently 464 backlogged cases. Id. The office has also experienced

a 65% increase in FOIA-related litigation since 2016. Id., ¶ 13. Mr. Holzer asserts that the office

       is subject to court orders in three cases that collectively require [it] to process at
       least 2,500 pages per month, and anticipates that court orders may be issued in one
       or more other pending cases. In addition [the agency] has been processing
       approximately 3,000 additional pages per month for other cases that are in litigation
       but for which the court has not ordered [it] to process a minimum number of pages
       per month.

Id., ¶ 13. Processing 1,000 pages per month on Plaintiff’s requests would require DHS Privacy to

reallocate resources from other FOIA requests, some of which were received prior to Plaintiff’s,

and to corral additional personnel. Id., ¶¶ 17, 19–20. Even this might not substantially increase

processing capacity given that such processing requires knowledge of the relevant law and DHS’

organization and activities, and new staff would be inexpert. Id. Mr. Holzer is also concerned that

processing documents at a 1,000-per-month clip would not allow “adequate time to conduct intra-

agency and inter-agency reviews that [he] expect[s] will be necessary.” Id., ¶ 18.

       Plaintiff responds that courts “regularly impose a production schedule greater than 500

pages per month upon the government in FOIA cases.” [Dkt. 27 at 2]. Citing a case from the

Northern District of Illinois, Plaintiff further contends that the Court should not take into account

the effect that ordering DHS Privacy to process more than 500 pages per month will have on other

FOIA requests because “the Court can only focus on the fairness of [the agency’s] treatment of

plaintiff, who made a proper and valid request for documents under the FOIA statute.” Id. at 3

(emphasis omitted) (quoting Transcript of Proceedings at 5, Boundaoui v. FBI, No. 17 C 4782

(N.D. Ill., filed Oct. 2, 2017)). Plaintiff seeks to avoid a “long delay” in receiving its documents,

and suggests that Mr. Holzer’s affidavit is not credible. Id. at 3–4.




                                                 3 
 
       Plaintiff’s position fails to take into account two long-standing principles that apply to

FOIA cases in this Circuit. First, since 1976 at the latest, courts in this Circuit have considered

the effect of other FOIA requests when analyzing the burden on an agency of meeting deadlines

for review and production of FOIA material in a given case. See, e.g., Open America v. Watergate

Special Prosecution Force, 547 F.2d 605, 612, 614 (D.C. Cir. 1976) (noting that “team to which

Open America’s request has been assigned is in various stages of processing 33 other projects, all

of which were received prior to Open America’s request,” and that agency at issue had been

“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 requests within

the [statutory] time limits”); see also, e.g., Energy Future Coalition v. Office of Mgmt. & Budget,

200 F. Supp. 3d 154, 161 (D.D.C. 2016) (rejecting plaintiff’s motion to mandate review of 1,000

documents per month, and taking into account increase in number of FOIA requests directed to

agency, number of FOIA requests under review, and number of FOIA litigations in which agency

involved); Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 47 (D.D.C. 2014)

(denying plaintiff’s motion for preliminary injunction requesting immediate production of

documents pursuant to FOIA request and weighing effect injunction would have on other FOIA

requesters); cf. Nat’l Sec. Counselors v. U.S. Dep’t of Justice, 848 F.3d 467, 471–72 (D.C. Cir.

2017) (in context of challenge to FOIA processing fees, stating policy of processing 500 pages per

request per month “serves to promote efficient responses to a larger number of requesters”).

       Moreover, “[a]gency affidavits are accorded a presumption of good faith, which cannot be

rebutted by purely speculative claims.” Energy Future Coalition, 200 F. Supp. 3d at 159 (quoting

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Plaintiff has presented no

evidence to undermine Mr. Holzer’s declaration. Rather, it cites scattered cases from various



                                                4 
 
jurisdictions in which courts have entered orders requiring agencies to process more than 500

pages per month and a couple of articles stating that review for the purposes of discovery in a civil

action can progress significantly faster. [Dkt. 27 at 2–4]. Moreover, none of the cases concern

FOIA requests for which DHS Privacy is responsible—they relate to Immigration and Customs

Enforcement, the Department of Energy, the Department of Health and Human Services, and the

FBA—and Plaintiff has made no attempt to show that the processing capabilities of those agencies

are analogous to that of DHS Privacy. [Dkt. 27 at 2; Dkt. 26-1, ¶ 7]. The articles, as noted, concern

document review in the context of conventional civil litigation and do not address reviewing and

processing documents pursuant to FOIA [Dkt. 27 at 3–4], which “is distinct from civil discovery,”

with “different considerations determin[ing] the outcome of efforts to obtain disclosure,” Stonehill

v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009).

              To be sure, “a court . . . may use its equitable powers to require the agency to process

documents according to a court-imposed deadline,” Clemente v. FBI, 71 F. Supp. 3d 262, 269

(D.D.C. 2014), but Plaintiff has not shown here that Defendant can or should process documents

at a rate faster than 500 per month. For example, it has not asserted that it is entitled to expedited

processing under FOIA or its implementing regulations, which can be available when a requester

establishes (1) an imminent threat to the life or physical safety of an individual, (2) an “urgency to

inform the public about an actual or alleged federal government activity,” (3) a threatened loss of

substantial due process rights, or (4) “[a] matter of widespread and exceptional media interest in

which there exist possible questions about the government’s integrity which affect public

confidence.”2 6 C.F.R. 5.5(e)(1). Nor has it claimed—other than in vague and generalized

statements that the material “is of significant importance to the debates of the day” and of “time-

                                                            
2
 Expedited processing requires submission of a special request, along with “a statement, certified to be true and
correct, explaining in detail the basis for making the request for expedited processing.” 6 C.F.R. § 5.5(e)(2)–(3).

                                                               5 
 
sensitive importance” to debates over appropriations—that accelerated processing is necessary.

Cf., e.g., Clemente, 71 F. Supp. 3d at 268–69 (ordering FBI to process 5,000 pages per month

where requests involved serious allegations of widespread corruption in law enforcement,

requester represented in litigation individuals who were victims of allegedly corrupt FBI agent,

and requester provided medical records showing she had terminal illness); cf. also, e.g., Seavey v.

Dep’t of Justice, 266 F. Supp. 3d 241, 247–48 (D.D.C. 2017) (ordering FBI to process 2,850 pages

per month where request culled over 100,000 potentially responsive documents and agency

administratively treated request as 372 distinct requests by assigning 372 different tracking

numbers, but considered request as singular for purposes of 500-page-per-month rate of review).

              At Defendant’s proposed rate of 500 pages per month, the current universe of prioritized

material will be processed in approximately seven months, rather than the three-and-one-half

months Plaintiff urges. On this record, 500 pages per month is an appropriate rate of production.3

This opinion should not be read to imply that Plaintiff’s requests are insignificant or unimportant,

or that a more robust schedule should not be ordered in a suitable case. Here, however, Plaintiff

has not provided reasons that its requests should take precedence over the duly-made FOIA

requests of others.




                                                            
3
  In a number of recent cases in this District, a production rate of 500 pages per month has been approved. For
example, in Judicial Watch v. Dep’t of Justice, No. 16-cv-2046, the Honorable Tanya S. Chutkan approved such a
rate over the plaintiff’s objection. Compare Joint Status Report, ¶ 5, Judicial Watch v. Dep’t of Justice, No. 16-cv-
2046 (D.D.C. Jan. 6, 2017), with Joint Status Report at 1–2, Judicial Watch v. Dep’t of Justice, No. 16-cv-2046
(D.D.C. Apr. 17, 2017), and Minute Order, Judicial Watch v. Dep’t of Justice, No. 16-cv-2046 (D.D.C. Apr. 19, 2017).
The Honorable James E. Boasberg has similarly approved a “500 page-per-month pace.” Republican Nat’l Comm. v.
U.S. Dep’t of State, No 16-cv-486, 2016 WL 9244625, at *1 (D.D.C. Sept. 16, 2016). The Honorable Colleen Kollar-
Kotelly did so twice in Energy Future Coalition v. Office of Mgmt. & Budget. See Energy Future Coalition, 201 F.
Supp. 3d 55, 59–60 (D.D.C. 2016) (“OMB shall continue to review 500 documents per month with respect to
Plaintiffs’ request, in accordance with the Order issued on July 25, 2016.”).

                                                               6 
 
        It is therefore

        ORDERED that Defendant shall process records responsive to Plaintiff’s FOIA requests

at a rate of at least 500 pages per month; it is further

        ORDERED that Defendant shall make its first production under this Order no later than

March 30, 2018; it is further

        ORDERED that Defendant shall produce responsive documents on a rolling basis every

thirty days until production is complete; it is further

        ORDERED that the parties shall file a joint status update on March 30, 2018, and every

thirty days thereafter until production is complete or the Court orders otherwise.

        SO ORDERED.                                               Digitally signed by
                                                                  G. Michael Harvey
                                                                  Date: 2018.03.05
Date: March 5, 2018
                                                                  12:43:11 -05'00'
                                                ___________________________________
                                                G. MICHAEL HARVEY
                                                UNITED STATES MAGISTRATE JUDGE




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