                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 ELECTRONIC PRIVACY INFORMATION
 CENTER,

    Plaintiff,
                                                         Civil Action No. 12-667 (CKK)
           v.

 FEDERAL BUREAU OF
 INVESTIGATION,

    Defendant.


                                MEMORANDUM OPINION
                                   (March 28, 2013)

       Plaintiff Electronic Privacy Information Center, or EPIC, filed suit against the Federal

Bureau of Investigation, seeking injunctive relief under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. After EPIC submitted a request for documents relating to the use of

cell-site simulator technology to the FBI, EPIC filed suit alleging that the FBI failed to comply

with the statutory deadlines to respond to EPIC’s FOIA request. Presently before the Court is

the FBI’s [14] Motion for an Open America Stay. Upon consideration of the pleadings,1 the

relevant legal authorities, and the record as whole, the Court finds the FBI has not demonstrated

exceptional circumstances exist so as to warrant the fourteen-month stay of proceedings

requested by the FBI. Accordingly, the FBI’s motion is DENIED. This case shall proceed in

accordance with the Order accompanying this Memorandum Opinion.

                                     I. BACKGROUND

       According to the Complaint, EPIC is a “public interest research organization incorporated

       1
         Def.’s Mot., ECF No. [14]; Pl.’s Opp’n, ECF no. [15]; Def.’s Reply, ECF No. [16];
Errata, ECF No. [17].
as a not-for profit corporation in Washington, D.C. EPIC[] conducts oversight of Government

activities and policies and analyzes their impact on civil liberties and privacy interests.” Compl.,

ECF No. [1], ¶ 4. On February 10, 2012, EPIC submitted a FOIA request to the FBI requesting

agency records regarding cell-site simulator or “StingRay” technology,2 which EPIC asserts is

used by the FBI and other federal agencies to track and locate cellular telephones and other

wireless devices. See id. at ¶¶ 6-7. The request specifically sought:

      “All documents concerning technical specifications of the StingRay device or
       other cell-site simulator technologies”;

      “All documents concerning procedural requirements or guidelines for the use of
       StingRay device or other cell-site simulator technologies (e.g. configuration, data
       retention, data deletion)”;

      “All contracts and statements of work that relate to StingRay device or other
       cellsite simulator technologies”;

      “All memoranda regarding the legal basis for the use of StingRay device or other
       cell-site simulator technologies”; and

      “All Privacy Impact Assessments or Reports concerning the use or capabilities of
       StingRay device or other cell-site simulator technologies.”

Id. at ¶ 20. EPIC asked the FBI to expedite its response to the request, grant EPIC “News

Media” fee status, and waive all duplication fees. Id. at ¶¶ 21-23.

       The FBI acknowledged receipt of EPIC’s request on February 16, 2012 and assigned the

request a tracking number. Answer, ECF No. [11], ¶ 25. On March 20, 2012, having received

no further correspondence from the FBI regarding its request, EPIC filed an administrative

appeal with the Office of Information Policy, part of the Department of Justice. Compl. ¶¶ 30-

31. According to EPIC, the Department of Justice failed to respond to EPIC’s appeal within the


       2
         For purposes of this Memorandum Opinion, the Court uses the term “StingRay device”
as shorthand for all relevant cell-site simulator technologies that might fall within the scope of
EPIC’s request.
                                                 2
twenty-day deadline set by the FOIA. Id. at ¶ 35. EPIC filed suit on April 26, 2012.

       EPIC served the FBI and other relevant entities on May 7, 2012. Return of Service/Aff.,

ECF No. [5]. With EPIC’s consent, the FBI sought a one-week extension of time in which to file

its answer to the Complaint, which the Court granted. 6/8/12 Minute Order. The FBI filed its

Answer on June 13, 2012. Answer, ECF No. [11]. The FBI’s Answer indicates that on June 4,

2012, it granted EPIC a fee waiver, but denied expedited processing of EPIC’s request for

agency records. Id. at ¶ 27. The FBI also agreed to waive duplication fees because “Plaintiff’s

FOIA request will contribute to public understanding of the operations and activities of

Government.” Id. at ¶ 23.

       Upon the filing of the FBI’s Answer, the Court ordered the parties to confer and propose

a schedule for proceeding in this matter. 6/14/12 Minute Order. In response, the parties filed a

Joint Status Report, proposing vastly divergent schedules. EPIC proposed a schedule under

which document production would be completed within two months from the date of the status

report, with summary judgment briefing to be completed approximately three and one-half

months after document production ended. Jt. Status Report, ECF No. [12], at 2. For its part, the

FBI proposed completing the production of documents two years and five months after the

submission of the status report, with completion of a Vaughn index taking an additional four

months. Id. at 3-4. Under the FBI’s proposed schedule, the parties’ cross-motions for summary

judgment would not be fully briefed until July 2015, over three years after the filing of the

Complaint. In light of the extensive delay the FBI’s proposed schedule would entail, the Court

ordered the FBI to file a formal motion for a stay of proceedings.

       The FBI subsequently filed the present motion, seeking a stay of proceedings in this case

until October 31, 2014. In support of their motion, the FBI submitted a declaration from David

                                                3
M. Hardy, the Section Chief of the Record/Information Dissemination Section, Records

Management Division, of the FBI. See generally First Hardy Decl., ECF No. [14-1]; Second

Hardy Decl., ECF No. [16-1]; Third Hardy Decl., ECF No. [17-1]. The First Hardy Declaration

provides additional insight into the status of EPIC’s request. Based on the breadth of the EPIC’s

request, the types of documents at issue, and the FBI’s experience processing a similar request

received in November 2011, the FBI determined that a traditional search of its Central Records

System would likely be inadequate. First Hardy Decl. ¶ 19. Instead, the FBI decided “to

conduct a more individualized inquiry (outside of the CRS) of certain FBI divisions and offices”

reasonably likely to have potentially responsive records.3     Id.   However, the FBI did not

immediately send a request for information to those offices. Id. Rather, the FBI elected to wait

until it received the materials collected in response to the November 2011 request in order to

determine if any of those documents were responsive to EPIC’s request. Id. The FBI finally

issued the request to relevant offices on May 23, 2012. First Hardy Decl. ¶ 20. As of July 30,

2012, the FBI had gathered approximately 25,000 potentially responsive pages, although an

initial assessment revealed a number of duplicate records within the 25,000 pages. Id. at ¶¶ 4

n.2, 21. The FBI estimates that approximately 25% of the responsive pages will be subject to

classification/declassification review. Id. at ¶ 4 n.3.

                                     II. LEGAL STANDARD

       The Freedom of Information Act provides, in relevant part, that upon receipt of a FOIA

request, the responding agency must




       3
          The Court makes no finding at this stage as to the adequacy of the FBI’s search for
responsive documents. This information is provided merely as context for the Court’s decision
on the FBI’s motion for a stay of proceedings.
                                               4
        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 such
        determination and the reasons therefor, and of the right of such person to appeal
        to the head of the agency any adverse determination.

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 exceptional circumstances exist

in a particular case:

        [T]he 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.

        Refusal by a person to reasonably modify the scope of a request or arrange an
        alternative time frame for processing a request (or a modified request) . . . after
        being given an opportunity to do so by the agency to whom the person made the
        request shall be considered as a factor in determining whether exceptional
        circumstances exist for purposes of this subparagraph.

5 U.S.C. § 552(a)(6)(C)(ii)-(iii). The legislative history of these amendments indicates that

                                                5
Congress intended the amendments to be “consistent with the holding in Open America,” and

merely sought to “clarify 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. Courts have routinely held that in addition to the issues outlined in

the statute, other circumstances are relevant considerations when faced with a request for an

Open America stay, including “an agency’s efforts to reduce the number of pending requests, the

amount of classified material, [and] the size and complexity of other requests processed by the

agency.” Elec. Frontier Found. v. Dep’t of Justice, 517 F. Supp. 2d 111, 117 (D.D.C. 2007).

                                        III. DISCUSSION

       The Freedom of Information Act requires the FBI to make two showings before the Court

may grant a stay of the proceedings: (1) that exceptional circumstances exist; and (2) that the FBI

is “exercising due diligence” in responding to EPIC’s request. 5 U.S.C. § 552(a)(6)(C)(i). The

FBI argues that its motion satisfies both requirements, and thus asks the Court to stay

proceedings in this matter until October 31, 2014. EPIC contends the FBI failed to make the

necessary showing, and that the Court should instead order the FBI to (1) process all non-

classified records within sixty days; (2) identify and account for all classified, responsive records

within sixty days; and (3) complete processing of all classified, responsive records within six

months (or less). Pl.’s Opp’n at 1. As set forth below, the Court finds the FBI failed to show

that exceptional circumstances exist in this case, therefore the Court does not reach the parties’

remaining arguments.4



       4
           For the first time in its Reply, the FBI specifically argued that it has insufficient
resources to response to the increased volume, size, and complexity of requests it receives, a
factor the Court considered in Buc v. Food & Drug Admin., 762 F. Supp. 2d 62 (D.D.C. 2011).
See Def.’s Reply at 6-8. The Court shall not consider arguments raised the FBI failed to raise in
                                                6
       A.     Number & Complexity of Requests

       Initially, the FBI argues that exceptional circumstances exist in this case because of the

“marked increase” in the number of FOIA and Privacy Act requests the agency has received on

an annual basis since FY 2005, as well as the increased complexity of those requests. Def.’s

Mot. at 19-20. EPIC disagrees with the FBI’s characterization of the underlying data, asserting

that with the exception of certain isolated outlying years, the average number of incoming

requests, measured on a monthly basis, has remained stable over the past twenty years. Pl.’s

Mot. at 15-16. The FBI does not dispute the evidence relied on by EPIC, but rather contends that

the Court’s analysis should be limited solely to a comparison of the number of requests received

in fiscal years 2011 and 2012. Def.’s Reply at 3. Certainly, aberrational spikes in the number of

requests in any given year are relevant to the Court’s analysis, even if the long-term rates

generally remain static. But the FBI itself relies on multi-year comparisons at numerous points

in its own motion, acknowledging that the Court’s inquiry should in fact consider the data

provided regarding FY 2011 and FY 2012 in a broader context.

       The bottom line is that the FBI failed to show that it is “deluged with [a] volume of

requests . . . vastly in excess of that anticipated by Congress.” Open America, 547 F.2d at 616.

The number of FOIA/Privacy Act requests received by the FBI increased from 17,755 in FY

2011 to 19,599 through the first eleven months of FY 2012. Second Hardy Decl. ¶ 5; Third

Hardy Decl. ¶ 3. In its motion, the FBI did not provide the number of requests received in fiscal

years prior to 2010, but the publicly available data reported by the Department of Justice

indicates that the number of FOIA requests received by the FBI dropped by over 25% between




its initial motion. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008).
                                               7
FY 2008 (17,241 requests) and FY 2012 (12,783 requests).5 Though not directly comparable to

the information provided by the FBI (insofar as it excludes of Privacy Act requests included in

the FBI’s totals), the data strongly suggests that the number of requests received by the FBI in

the past two fiscal years is not “vastly in excess” of the volume anticipated by Congress, and, if

anything, has dropped substantially over the past several fiscal years. The increase in requests

between FY 2010 and FY 2011—which, excluding Privacy Act requests, increased by only 15—

viewed in the context of the overall trend of decreased requests, does not demonstrate

“exceptional circumstances.”

        The FBI also emphasizes that complexity of the requests it receives has increased

significantly over time and that the average size of each request has more than doubled since FY

2009, both of which the FBI argues support a finding of exceptional circumstances. Second

Hardy Decl. ¶ 6 (noting the average size of requests increased from 500 pages in FY 2009 to

1,128 pages in FY 2012). With respect to this latter point, as the agency admits, that increase is

the Department of Justice’s own doing. In 2009, the Department of Justice issued new FOIA

guidelines, to which the FBI attributes the increased average size of requests. First Hardy Decl.

¶ 23. Beyond emphasizing the increased average of size of incoming requests, the FBI fails to

articulate why the agency’s own policy change should support a finding of exceptional

circumstances, as opposed to being considered part of the “predictable workload” the statute

specifically states does not justify a stay.

        Admittedly, the number of requests involving more than 8,000 pages has increased since

FY 2007, but today those requests still constitute less than three percent of all pending requests.

Cf. Second Hardy Decl. ¶ 6 (disclosing 93 pending “behemoth” requests as of August 30, 2012)

        5
            This data is available in the “data” section of foia.gov (last accessed Mar. 27, 2013).
                                                    8
with id. at ¶ 5 (indicating a backlog of 3,764 requests as of August 30, 2012). The Declarant

avers that his “experience indicates that the number of requests with multiple parts has increased

substantially in the past five years,” Second Hardy Decl. ¶ 6, but “there is simply insufficient

evidence in the record to draw any concrete and meaningful conclusions as to the composition of

the [FBI’s] workload today in comparison to years past, at least in terms of complexity.” Buc v.

Food & Drug Admin., 762 F. Supp. 2d 62, 68 (D.D.C. 2011).

       B.       Other FOIA Litigation

       The FBI also contends that the “exceptionally large number” of FOIA cases involving the

FBI currently in litigation is further evidence of exceptional circumstances. Def.’s Mot. at 21.

As examples, the First Hardy Declaration lists six cases pending against the FBI which require

ongoing document productions. First Hardy Decl. ¶ 27. The deadline for the FBI to produce

documents has since or will soon pass in three of the cases. Id. at ¶¶ 27 (b), (d), (e). Overall,

this anecdotal evidence does not “permit the Court to draw any broader conclusions about the

[FBI’s] workload as it has developed over time.” Buc, 762 F. Supp. 2d at 69. In other words,

without more elaboration as to the FBI’s litigation-related processing obligations over specific

periods of time, the Court cannot determine what, if any, impact these obligations should have on

the Court’s analysis of the FBI’s FOIA workload. If anything, the fact that the FBI indicated on

August 1, 2012, that it anticipated being able to process approximately 5,000 pages per month in

another case6 demonstrates that the FBI is not facing such exceptional circumstances that it can

only review 1,500 pages per month in response to EPIC’s request.

       C.       Classified Material

       As previously acknowledged by this Court, the amount of classified material involved in

       6
           Lardner v. FBI, No. 03-874, Status Report, ECF No. [111] (D.D.C. filed Aug. 1, 2012).
                                                9
a particular request is relevant to exceptional circumstances analysis. Elec. Frontier Found., 517

F. Supp. 2d at 117. Here, the FBI estimates that performing classification/declassification

review of an estimated 5,000 pages (25% of potentially responsive pages) would require

approximately six months. Def.’s Reply at 8. Assuming arguendo EPIC’s request contains a

significantly greater amount of classified information than even the average “behemoth” request,

by the FBI’s own estimate this would only add six months of processing time, and only with

respect to a subset of pages. The amount of classified material, even if considered with the other

factors at issue, does not demonstrate exceptional circumstances justifying a stay of the length

requested by the FBI.

       D.      EPIC’s Refusal to Narrow the Scope of Its Request

       The FBI notes that the EPIC refused its request to omit “classified” information and

operating manuals from the scope of the request, and suggests this refusal should be relevant to

the Court’s exceptional circumstances analysis. Section 552(a)(6)(C)(iii) provides that “[r]efusal

by a person to reasonably modify the scope of a request . . . shall be considered as a factor in

determining whether exceptional circumstances exist.” EPIC faults the FBI for a vague offer to

exclude documents, and the FBI faults EPIC for not seeking clarification of that issue. On

balance, the considers EPIC’s refusal as a factor weighing in favor of finding exceptional

circumstances, but the record as a whole does not demonstrate exceptional circumstances exist.

       E.      FBI’s Efforts to Reduce Its Request Backlog

       If, as here, the agency can show no more than a “predictable agency workload of

requests,” exceptional circumstances will not lie “unless the agency [further] demonstrates

reasonable progress in reducing its backlog of pending requests.” 5 U.S.C. § 552(a)(6)(C)(ii).

The FBI points to the restructuring of its FOIA processing division as evidence of its

                                               10
commitment to reducing the backlog. While admirable, the numbers belie any claim that the

FBI’s progress in reducing its backlog has been “reasonable.” Assuming the FBI received 1,781

additional FOIA/Privacy Act requests in September 2012 (the average for the eleven months

prior), between FY 2011 and FY 2012, the number of FOIA/Privacy Act requests received by the

FBI increased by 20%, yet the backlog of requests at the end of each year increased by nearly

220%.7 See First Hardy Decl. ¶ 24; Second Hardy Decl. ¶ 5. Using the publicly available data,

the number of FOIA requests received by the FBI increased by 15% in FY 2012, but the backlog

of requests increased by 65%. For broader context, consider that the FBI backlog of FOIA

requests increased by 55% between FY 2008 (1476 pending requests) and FY 2012 (2296

pending requests), despite a 27% decrease in new FOIA requests. The FBI’s efforts to increase

the efficiency of its system for processing FOIA requests is certainly commendable, but on this

record the Court cannot find that these efforts have led to “reasonable progress” in reducing the

agency’s backlog.

                                     IV. CONCLUSION

       For the foregoing reasons, the Court finds the FBI failed to demonstrate exceptional

circumstances exist to justify a stay of these proceedings until October 31, 2014. The number of

FOIA and Privacy Act requests received by the FBI increased during FY 2012 as compared to

the prior year, but overall the number of requests the FBI receives on a yearly basis has

decreased significantly since FY 2008. The average size of such requests has nearly doubled

since FY 2009, but the FBI readily admits that increase is due to agency regulations. Moreover,

outside of anecdotal evidence to suggest more and more requests contain subparts, the FBI did



       7
           This calculation is an approximation insofar as it uses the number of backlogged
requests for FY 2012 with one month remaining in the fiscal year. Second Hardy Decl. ¶ 5.
                                              11
not provide the Court with sufficient information from which it could conclude that the overall

complexity of the FBI’s workload has increased over time. The FBI is involved in other

litigation regarding FOIA requests, but the FBI’s representations in those cases belie its claim

that its workload is vastly greater than what Congress anticipated such that it should only be

required to process 1,500 pages relating to EPIC’s request per month. The amount of classified

material involved in EPIC’s request as well as EPIC’s refusal to narrow its request as suggested

by the FBI support a stay to some degree, but considering the record as a whole, exceptional

circumstances do not exist. Finally, although the FBI has implemented changes to increase the

efficiency of its FOIA processing system, the increase in its backlog of requests is vastly

disproportionate to the increased number of requests, precluding a finding that the FBI has made

reasonable progress in reducing its backlog. Therefore, the Court finds the FBI failed to make

the threshold showing that exceptional circumstances exist as required for a stay of proceedings

under 5 U.S.C. § 552(a)(6)(C)(i). Accordingly, the FBI’s [14] Motion for an Open America Stay

is DENIED.

       The FBI indicated in its motion that its FOIA processing unit received the 25,000

potentially responsive pages by no later than July 30, 2012. First Hardy Decl. ¶ 21. Therefore,

as set forth in the accompanying Order, the FBI shall be required to produce all responsive, non-

exempt records not subject to classification/declassification review on a rolling basis, but in any

event by no later than August 1, 2013. Furthermore, by no later than May 31, 2013, the FBI

shall indicate how many pages are subject to classification/declassification review, and propose a

deadline for completing production of those documents, as appropriate.

                                                         /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     UNITED STATES DISTRICT JUDGE

                                                12
