                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                                     )
DEMOCRACY FORWARD FOUNDATION,                        )
                                                     )
       Plaintiff,                                    )
                                                     )
               v.                                    )       Case No. 18-cv-00734 (APM)
                                                     )
DEPARTMENT OF JUSTICE,                               )
                                                     )
      Defendant.                                     )
________________________________________             )

                          MEMORANDUM OPINON AND ORDER

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



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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




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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.

§ 552(a)(6)(C)(i). In the event an agency fails to meet the statute’s time limits, the statute permits

the requestor to seek relief in federal court without first exhausting administrative remedies.

See id. §§ 552(a)(4)(B), 552(a)(6)(C)(i). Congress’s insistence that agencies timely respond to

FOIA requests is therefore apparent from the face of the statute.

       Congress, however, provided agencies with a “safety valve” from the statute’s strict time

limits. Open America, 547 F.2d at 610. The agency may obtain a stay of proceedings if it “can

show exceptional circumstances exist and that the agency is exercising due diligence in responding

to the [FOIA] request.” 5 U.S.C. § 552(a)(6)(C)(i). In this Circuit, such stays are commonly

referred to as “Open America stays,” so named after the leading decision on the subject.

In Open America, the D.C. Circuit held:

               [W]e interpret Section 552(a)(6)(C) to mean that “exceptional
               circumstances exist” when an agency . . . is deluged with a volume

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               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.

547 F.2d at 616 (quoting 5 U.S.C. § 552(a)(6)(C)). Accordingly, when the Open America standard

is met, FOIA’s time limits “become not mandatory but directory.” Id. The court concluded: “The

good faith effort and due diligence of the agency to comply with all lawful demands under the

Freedom of Information Act in as short a time as is possible by assigning all requests on a first-in,

first-out basis, except those where exceptional need or urgency is shown, is compliance with the

Act.” Id.

       Over 20 years after Open America, in 1996, as part of the Electronic Freedom of

Information Act, Congress amended FOIA to cabin the definition of “exceptional circumstances.”

Section 552(a)(6)(C)(ii) now provides:

               For purposes of this subparagraph, the term “exceptional
               circumstances” does not include a delay that results from a
               predictable agency workload of requests under this section, unless
               the agency demonstrates reasonable progress in reducing its backlog
               of pending requests.

5 U.S.C. § 552(a)(6)(C)(ii). According to legislative history of the Act, Congress intended for this

amendment to be “consistent with the holding in Open America,” and only “clarif[ied] that routine,

predictable agency backlogs for FOIA requests do not constitute exceptional circumstances.” H.R.

Rep. 104–795 at 24 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3467. Thus, it is not enough

that an agency receives a high number of FOIA requests, or even that an agency has a large backlog

of requests to which it must respond. Rather, an agency must show that the number of requests

received in the relevant period was truly unforeseen and remarkable.           See e.g. Leadership

Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 259 n.4 (D.D.C. 2005) (noting that



                                                 5
“[a]n agency must show more than a great number of requests to establish[ ] exceptional

circumstances under the FOIA”). Since the 1996 amendments, courts in this District have

continued to hold that “where an agency is making good faith efforts and exercising due diligence

in processing requests on a first-in, first-out basis, a stay of proceedings is authorized so long as

the agency also demonstrates ‘reasonable progress in reducing its backlog of pending requests.’”

Ctr. for Pub. Integrity v. Dep’t of State, Civ. Action No. 05-2313 (JDB), 2006 WL 1073066, at *2

(D.D.C. Apr. 24, 2006) (citing Appleton v. FDA, 254 F. Supp. 2d 6, 9–10 & n.4 (D.D.C.

2003); Wilderness Soc’y v. Dep’t of the Interior, No. Civ. A. 04-0650 CKK, 2005 WL 3276256,

at *6 (D.D.C. Sept. 12, 2005)) (internal quotations marks omitted)).

       When considering a request for an Open America stay, “[a]gency affidavits are accorded a

presumption of good faith, which cannot be rebutted by purely speculative claims.” SafeCard

Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citations

omitted); see also Gov’t Accountability Project v. U.S. Dep’t of Health & Human Servs., 568

F. Supp. 2d 55, 59 (D.D.C. 2008).

IV.    DISCUSSION

       Defendant contends that a stay is warranted in this case because the recent, unanticipated

spike in FOIA requests and litigation, combined with its limited resources, constitute “exceptional

circumstances,” and because the agency is “exercising due diligence” in responding to these

requests, including that of Plaintiff. See Def.’s Mot. at 6–12. Alternatively, Defendant argues

that, even if the increase in requests was foreseeable, a finding of exceptional circumstances is still

warranted because the agency is making reasonable progress in reducing its backlog of requests.

See id. at 13–15. Because the court finds that exceptional circumstances exist based on the

dramatic increase in FOIA requests and the agency’s exercise of due diligence in responding to



                                                  6
those requests, the court need not reach the question whether Defendant is making reasonable

progress in reducing its backlog. See Ctr. for Pub. Integrity, 2006 WL 1073066 at *5 (holding

that the “reasonable progress” requirement does not apply where “the increase in the workload

was not ‘predictable’”).

       A.      Deluge of Requests

       The parties vigorously dispute whether the recent increase in FOIA requests submitted to

OIP is “vastly in excess of that anticipated by Congress, when the existing resources are inadequate

to deal with the volume of such requests . . . ” Open America, 547 F.2d at 616. Defendant has the

better of that argument.

       The Brinkmann Declaration establishes that the uptick in FOIA demands over the last two

years is a significant departure from the rate of increase seen over the prior decade. The summary

chart below included in the Brinkmann Declaration provides a snapshot of the FOIA demands

placed on OIP since FY 2008.




Brinkmann Decl. ¶ 16. As the chart shows, the number of FOIA requests received by OIP

increased from 904 in FY 2008 to 1803 in FY 2016. During this period, the number of FOIA

requests went up, but at a steady pace. The average annual increase from FY 2008 to FY 2016


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(including the reductions seen in FY 2013 and FY 2014) was 100 requests. Compare that to the

spike experienced in the last two years. From FY 2016 to FY 2017, the number of FOIA requests

increased by 1,015—a ten-fold increase over the average increase over the prior nine years. The

current fiscal year saw not quite as dramatic a jump, but a significant one nonetheless. The number

of requests is expected to increase by 578, a more than five-fold increase over the pace seen from

FY 2008 to FY 2016. What these large spikes mean is that OIP has seen a near doubling of FOIA

demands over a two-year period, when it previously took eight years for the number of requests to

double. Congress surely could not have anticipated such a dramatic acceleration of the number of

requests for information made of OIP.1

         Plaintiff’s efforts to downplay the sudden increase in requests are unpersuasive. Plaintiff,

for instance, maintains that the last two years reflect no more than “the clear and predictable

upward trend” over the last decade. Pl.’s Opp’n at 5. But, as the above numbers bear out, while

the number of FOIA requests steadily increased from 2008 to 2016, the increases in the last two

years have far exceeded what OIP experienced during that earlier period. Plaintiff also argues that

the agency should have anticipated the increase due to the presidential election cycle in 2016 and

the subsequent transition period. See id. at 6. Yet, as Brinkmann points out, the increases seen

during the last election/transition cycle far exceed increases seen in past such cycles. See

Brinkmann Decl. at 6, n.5 (noting a “2.5x” increase in demands over the prior transition period);

see also Pl.’s Opp’n at 6. Finally, Plaintiff insists that the recent surge in requests is not “vastly in

excess of that anticipated by Congress,” because Congress has increased the agency’s funding in

the last three fiscal years. See id.at 7 (quoting Open America, 547 F.2d at 616). Congress,


1
  Additionally, OIP points to the increase in FOIA-related litigation and complexity of the FOIA requests it receives
as dramatic changes from the previous status quo. OIP asserts that it did not track litigation statistics until March
2016, see Brinkmann Decl. at 8, n. 8, but it logs an increase from 29 cases in FY 2016 to 80 in FY 2018, as of the
filing of Defendant’s Motion for Stay, see id. at 8.

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however, can increase an agency’s appropriations for any number of reasons that have nothing to

do with FOIA. A general increase in appropriations for the Department of Justice thus tells the

court nothing about what Congress actually foresaw as to the future rate of FOIA requests.

       For the reasons discussed, the court finds that, over the last two fiscal years, OIP has faced

a substantial increase in FOIA requests that Congress could not have reasonably anticipated. Thus,

this aspect of the “exceptional circumstances” standard is satisfied here. See Nat’l Sec. Archive v.

U.S. S.E.C., 770 F. Supp. 2d 6, 9 (D.D.C. 2011) (finding an increase in FOIA requests of over

300% over a 7-year period constituted “exceptional circumstances”).

       B.      Due Diligence

       The parties also contest whether OIP has acted with due diligence both as to the increased

number of FOIA requests generally, as well as Plaintiff’s specific request. The court finds that

OPI has acted with sufficient diligence.

       Brinkmann describes what steps OIP has taken to address the recent rise in such requests.

According to Brinkmann, in FY 2016, OIP “undertook a comprehensive review of . . . Staff

structure and procedures to identify opportunities to create additional efficiencies,” which resulted

in reorganization of staff and the request-processing structure. Brinkmann Decl. ¶ 20. For

instance, OIP reorganized its staff to create a dedicated team to handle less time-consuming matters

such as new requests, search initiation, requester negotiations, and “simple track” requests (as

opposed to “complex” or “expedited” track requests). See id. The reorganization resulted in

improved processing time for “simple track” requests. See id. ¶ 21. Correspondingly, “complex”

and “expedited” track processing times likewise improved because staff assigned to such requests

could concentrate solely on those types of cases. See id. ¶ 22 & n. 13. Brinkmann concedes that

OIP has “not been able to substantially increase staffing levels, or even to backfill all existing open



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positions, due to budgetary constraints.” Id. ¶ 23. Yet, OIP has responded by reassigning other

OIP staff to FOIA processing on an ad hoc basis, and it has made modest staff additions to the

FOIA team. Id.

       Plaintiff and amici are dismissive of these efforts, complaining primarily that “the agency

is not seeking additional funding for FOIA processing . . .” Pl.’s Opp’n at 12; see also Mem. of

Amici Curiae in Support of Pl.’s Opp’n, ECF No. 16 [hereinafter Amici Curiae Br.], at 24. They

point out that the Department of Justice, for instance, has requested less total funding from

Congress for FY 2018 and FY 2019, and that it has sought to reduce the number of employees

funded through the agency’s general appropriations, under which OIP operates. See Pl.’s Opp’n

at 13–14. These are fair criticisms. Yet, as a general matter, it is not the role of the judiciary to

question how executive agencies request and allocate resources, absent some compelling evidence

of purposeful conduct. See Edmond v. U.S. Atty., 959 F. Supp. 1, 3 n.2 (D.D.C. 1997) (noting, in

response to plaintiff’s argument that “[d]efendants failed to exercise due diligence, in part, as a

result of their alleged poor planning and management,” that the “[c]ourt [was] not prepared . . . to

second-guess decisions by the executive and legislative branches on administrative support and

funding for the processing of FOIA requests in the absence of some evidence that the cooperative

branches sought to circumvent the law”). Here, neither Plaintiff nor amici point to any such

evasive conduct by the Department of Justice. Cf. Amici Curiae Br. at 16 (observing that some

agencies, though not naming the Department of Justice, are decreasing “proactive disclosures,”

such as officials’ schedules and public remarks). The court simply is not in a position, at this point,

to fairly judge whether the agency’s budgetary decision-making reflects an indifference to its

FOIA obligations or is attributable to other political factors to which the court is not privy.




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       With regard to Plaintiff’s individual FOIA request, OIP employs a multi-track first-in, first-

out process, which now applies to even those cases in litigation. (Previously, OIP had bumped

litigated requests to the front of the line.) See Def.’s Mot. at 8–9. Plaintiff’s request was placed

on the “complex” track when received. Id. at 2. OIP sent a search notification to the Office of

Legal Policy, the office responsible for handling the necessary search, and thereafter, with the

Office of Legal Policy, created “a comprehensive search plan” to address Plaintiff’s request.

Brinkmann Decl. ¶ 41.

       While the steps taken as to Plaintiff’s specific FOIA request are quite limited in scope,

Defendant’s efforts pass muster in the face of the current circumstances. See Nat’l Sec. Archive,

770 F. Supp. 2d at 9 (finding that where defendant had “implement[ed] the FIFO system” and

“new technology to streamline and expedite the processing of FOIA requests,” as well as “made

agency records available on the SEC’s public website,” it had shown sufficient evidence of due

diligence); see also Ctr. for Pub., 2006 WL 1073066 at *4 (finding that the defendant was “acting

in good faith and exercising due diligence” where it “processe[d] requests on a first-in, first-out

basis, with two tracks-simple/fast and routine/complex.”). It is true, as Plaintiff points out, that

Defendant has not made any interim productions, a feature of several cases granting stays. Pl.’s

Opp’n at 12. But Plaintiff cites to no case that makes interim productions a necessary condition

to a finding of due diligence. Nor is Plaintiff entitled to preferential treatment of its request merely

because it has filed suit. See Open America, 547 F.2d at 615 (“We believe that Congress intended

to guarantee access to Government agency documents on an equal and fair basis.”). OIP, in this

case, has taken the steps necessary to proceed immediately with search and production efforts upon

expiration of the stay. Under the present circumstances, those steps are sufficient to establish the

agency’s diligence under Open America.



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       C.      Reasonable Efforts to Reduce Backlog

       As noted, because the court finds that “extraordinary circumstances” exist to warrant a stay,

the court need not determine whether OIP has undertaken reasonable efforts to reduce its backlog.

That said, the court is concerned that the growth in OIP’s backlog has outpaced the growth in the

number of requests received for the last two years. From FY 2016 to FY 2017, OIP saw a more

than 56% increase in FOIA requests, but its backlog grew over 109% during the same period. See

Brinkmann Decl. ¶ 16. Likewise, from FY 2017 to FY 2018, OIP is on pace to see an over 20%

increase in FOIA requests, yet the backlog is expected to grow by over 41% during the same

period. Id. OIP’s backlog is outpacing the increase in requests it receives by double, creating a

trend that, unless reversed, will stifle the purpose and efficacy of FOIA. This is cause for real

concern. Unless Defendant’s efforts and resource allocation to its responsibilities under FOIA

improve in the near future, this court will view less favorably any future stay request. Cf. Ctr. for

Pub. Integrity, 2006 WL 1073066, at *5, n.6. The court urges other judges in this District to do

the same.

IV.    CONCLUSION AND ORDER

       For the reasons stated above, the court finds that Defendant has demonstrated “exceptional

circumstances,” and further that Defendant has responded with due diligence to the recent spike in

FOIA requests, as well as to Plaintiff’s specific request. These proceedings shall be stayed until

January 13, 2019, and this court will retain jurisdiction over this matter.

       Upon expiration of the stay, the court will not accept from Defendant an extended schedule

to search for and produce responsive records. Ten months have already passed since Plaintiff

made its request, which it then narrowed. It would behoove Defendant to take the next six weeks




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to craft and execute a plan to expeditiously produce the requested records upon expiration of this

stay.

        The parties shall file a Joint Status Report on February 13, 2019, that updates the court on

Defendant’s search and processing efforts.



Dated: December 7, 2018
                                                             Amit P. Mehta
                                                             United States District Judge




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